Concurring opinion by
Strong, J.I concur with my brethren in affirming the judgment given in this case, though I am not prepared to adopt all the reasons they assign for the affirmance. In my opinion the case does not call for a discussion of some of the questions which have been debated, and I think it better to confine myself to those matters that are necessarily involved. I shall endeavour to do so, and as briefly as possible.
The action, as it appeared at Nisi Prius, wa.s covenant upon a policy of insurance, dated November 24th 1860, by which the defendants insured the plaintiff for one year from the 23d day of December 1860, in the sum of $3000, upon the brig John Welsh, valued at $12,000. The contract was in one of the ordinary forms of a peace policy. The clause descriptive of the perils insured against was as follows: “ Touching the adventures and perils which the said insurance company are contented to take upon them in this voyage,they are of the seas, fires, pirates, rovers, assailing thieves, jettison, barratry of the master or mariners, unless the assured be owner or part owner of the vessel (embezzlement and illicit trade excepted in all cases), and all other perils, losses, or misfortunes that have or shall come to the detriment or damage of the said vessel, freight or property, or any part thereof.” Then followed a proviso not necessary now to be *175noticed, and a second in these words : “ And provided also that the said company shall not be liable for any claim for, or loss by seizure, capture, or detention, or the consequences of any attempt thereat.” The effect of this proviso was to restrain the generality of the description of perils against which the defendants undertook to insure. It introduced an exception, and exempted the insurers from all liability for losses arising from any of the enumerated or non-enumerated causes before mentioned, if, within the understanding of the parties, they were seizure, capture, detention, or consequences of any attempt thereat.
The vessel insured left Philadelphia in May 1861, took aboard a cai’go of sugar at Trinidad de Cuba, and sailed thence in June, 1861, for Falmouth, in England. On the morning of the 6th of July, in that year, she fell in with a strange brig which at first hoisted French colours, but afterwards ran up the secession flag and compelled her to come to. She was then boarded by armed men from the strange vessel, her' papers were demanded, plundered of what the strangers thought proper to take, and taken posession of as a prize. A prize crew was put on board, her own crew was removed to the strange vessel, and the captured vessel sailed away and has never since been heard from. The brig which made the capture proved to be the Jeff Davis, and was then cruising under letters of marque issued in pursuance of pretended authority of the so-called Confederate States. After the capture of the John Welsh, the Jeff Davis captured another vessel called the Enchantress, and her crew were themselves subsequently captured, brought into the port of Philadelphia, indicted for piracy, tried and convicted. The offence was laid as having been committed against the Enchantress. No sentence was adjudged after the conviction, but by direction of the President of the United States the accused persons were exchanged as prisoners of war.
It is out of this state of facts that the question for our decision arises. Was the loss of the John Welsh to the assured, a loss by piracy, or a loss by capture within the meaning of the policy of insurance ?
That, under the Acts of Congress, the forcible seizure of the vessel on the high seas by the officers and crew of the Jeff Davis and taking her out of the possession of her owners, was an act of piracy, is too clear for denial, and I do not understand it to be seriously controverted. Whether it was piracy at common law depends upon the answer to be given to another question, which is, whether the letters of marque under which the Jeff Davis sailed were available to change the character of the acts done by her crew, and give to them a legal significance, which, without the letters, they would not have had. But I apprehend this case is not to be determined by any answer that may be given to the question whether the capture of the John Welsh was an act of piracy, as *176defined by our Acts of Congress, or piracy according to the laws of nations. If the loss was caused by seizure, or capture, it matters not whether the capture was lawful or unlawful, made by a recognised belligerent jure belli, or made without any legitimate authority, even by a pirate. The defendants are not liable on this policy for any loss by capture of any description, though it may be called by another name. Had they insured against capture, they would have been equally responsible whether the capture was rightful or wrongful, jure belli, or contra jwem belli, whether made by a public enemy or a neutral power, or made without any pretence of right at all. See Arnould on Insurance, vol. 2, 808; Marshall on Insurance 394. And when losses by capture are excepted from the risk assured, the excepted losses must equally extend to captures of every description. Now I admit that the word “ capture,” when used in a policy of marine insurance, most frequently presents the idea of a seizure by a government, a recognised member of the family of nations. Such seizures are much more numerous than all others, and they are very common when the country is at war, or when Avar exists between tAvo other nations. The clause by w'hich underwriters assume the risk of captures is peculiarly appropriate to Avar policies, and is not found in peace policies, unless introduced negatively to limit liability to the assured. But the authorities show that wherever used, the meaning of the word “ capture,” in a policy is not confined to forcible seizure of property on the high seas by the act of governments, and to lawful taking by belligerents. It is not the character of the agent, hut the nature of the thing done, which determines whether the act is a capture. Such are the definitions given in the best elementary treatises, and such are the decisions of the courts. A very large number of these definitions are collected by Chief Justice Bigelow in the opinion of the Supreme Court of Massachusetts in Dole et al. v. The New England Mutual Insurance Company, 6 Allen 373. I shall not cite them at large, but I refer to them as cited in that case. They show incontestably that in policies of insurance theAvord “capture” means any forcible taking out of the possession of an owner, whether lawful or not, by Avhomsoever the act is committed, and that it includes a piratical taking, as well as one made by a government, or jure belli. I speak of capture unqualified, as it is used in the exceptions made in the policy issued by these defendants. If, as is often the case, it he described as a capture by kings, princes, and people of governments, the construction is more limited. The decisions of the courts also sustain the definitions given by the elementary writers. Assurers have been held liable on their policies assuming the risk of capture when the taking of the subject insured was made not by a government, either defacto or de jure, nor by any belligerent. And in some well-considered *177cases it has been held not essential to a capture that the taking should be by external force. In McCargo v. The New Orleans Insurance Co., 10 Robert (La.) 202, the loss of a slave cargo by insurrection of the slaves was held to be covered by an insurance against “capture.” That was an undoubted case of piracy, but it was also capture. In Powell v. Hyde, 5 Ellis & Blackburne 607 (85 Eng. Com. Law Reps.), goods were warranted “free from capture and seizure, and the consequences of any attempt thereat.” The risks insured against were enumerated as “ of the seas, men-of-war, fire, enemies, pirates, jettisons, letters of marque and countermart, surprisals, taking at sea, arrests, restraints, and detainment of all kings, princes, or people of what nation, condition, or quality whatsoever.” The British vessel insured passed within gunshot of a Russian fort, and was fired into and sunk, when there was no war between Great Britian and Russia. It appeared to the court from all the facts that the object of the Russians was to detain the ship. The arrest was without right and without any governmental authority. Yet it was held that the exception introduced by the warranty was not confined to legal capture, but that an illegal seizure was within both the enumerated perils and the exceptions. Hence the insurers were ruled not liable. Lord Campbell declared as his opinion that the word “ capture,” in the warranty, was not confined to lawful capture, but included any capture in consequence wdiereof the ship was lost to the assured. And in Kleinwort v. Shepard, 5 Jurist N. S. 863, where the question was, whether the taking of a vessel by mutinous coolie passengers was a capture within the meaning of a warranty “free from capture or seizure,” Lord Campbell declared that such a warranty is not confined to war risks, or belligerent seizures, and added, “ we clearly think it would extend to a capture or seizure by pirates.”
Such being the extent of the meaning of the word capture, when used in policies of insurance, as well as in common language, it must be obvious that in this policy the parties cannot be held to have intended an insurance against any such taking as that by which the John Welsh was lost to the plaintiff. Let it be that the taking was an act of piracy, both under the Act of Congress and at common law. It was more. The underwriters undertook against such piracies only as were not captures. In the light of the cases referred to, as well as in the light of common sense, the seizure of the John Welsh had all the essentials of a capture. The history of the times, which by agreement has been made part of the evidence, shows that after the policy was issued to the plaintiff, a number'of the states belonging to the Federal Union attempted to withdraw from it, adopted pretended ordinances of secession, confederated together under the forms of a new government, and agreed to a WTitten constitution that made *178provision for executive, legislative, and judicial departments, similar in many respects to those created by the Constitution of the United States. It is also a fact that this pretended government went into operation, that it has enforced obedience to its authority over large regions of country and over many millions of people; that it has by force excluded temporarily the operation of the laws of the United States; that its courts are the only courts which in large districts attempt to hold sessions; that it levies and collects taxes, raises armies, borrows money, and does all the acts which are done by legitimate governments. It is also a fact that this confederacy has, since the month of April 1861, been carrying on a war of large proportions against the government of the United States, and that our own government has in many ways recognised the contest as a civil war. I think it would be affectation to deny that the contest which has been raging for more than three years is a war, not an external but a civil war. What then is this thing, thus carrying on a war, subjecting millions of men to its formally-organized power, and excluding by force the operation of any other lawrs than its own ? A government de jure it certainly is not. All its acts are in gross violation of right. It is nowhere a recognised government. It has never been admitted into the family of nations. But though it is not a rightful government, does it not exist as a government de facto ? Is it not in fact performing the functions of a government ? I am not now inquiring whether our government, or any other is to be affected by any of its acts, or whether it can confer any authority which we must recognise. The question now is, as to the existence of a fact, not what will be the consequence if the fact be conceded. I cannot doubt that these revolting states, confederated as they have been, claiming and enforcing authority, as they have done, are to be regarded as a government defacto. This is not conceding to them any rights as a government, not even the right to carry on war either on sea or land. Nor do I think they are any less a government defacto, because they have had no interval of peaceful existence, if they have effectually excluded the rightful government, though the exclusion be but temporary, I cannot see that their continuing to carry on a war alters the fact that they do claim, exercise, and enforce governmental authority over large bodies of people and extensive districts of country. Nor do I perceive that they are any the less a government de facto because the geographical boundaries of the district over which their power is exclusively felt are not well defined. It is not essential to the existence of any government, either rightful or usurping', that it be possible to trace accurately the line of division between the territory over which it claims to exercise dominion, and the territory of an adjoining power. There is more than one government now in *179existence recognised as such, the territory of which it is impossible to define.
I repeat that though the Confederate States are a government defacto, it does not follow that they have any rights as such, or can confer any authority which we or any other nation are bound to recognise. The admission of existence in fact is no concession of right. But the fact is important in determining whether the taking of the John Welsh was a capture. The vessel was taken under an authority derived from this power, pretending to be a government. It matters not that the taking was justified by no law, not even by those of war. As has already been said, it is not essential to' a capture that it be made by any right. Many seizures have been held captures that had no pretence or justification, and some that were after-wards disavowed. What other difference can there be between a seizure made by such a power as the Confederate States, and a seizure by a recognised government, except this, that the one may be lawful, and the other cannot be ? I cannot bring my mind to doubt that the taking of the John Welsh in the manner in which she was taken, and under the direction or authority of this de facto government, though it was an usurpation, was a capture within the meaning of the defendant’s policy, and hence it was a risk which they did not assume. And such was manifestly the understanding of the parties. The one exacted and the other paid no premium for anything more than such hazards as exist in time of'peace. The risks common in time of war the defendants were not asked to assume, but they did undertake to indemnify against acts of pirates, not amounting to captures. It is one thing to insure against the acts of rovers, plunderers and freebooters on the seas, assailants who act in small bodies, who are unsupported by any considerable force, and whose assaults are less probable because the world is at enmity with them, and quite another thing to insure against the acts of a government in form, fitting out privateers and carrying on war. The hazard of loss in the one case is far less than in the other. And the latter risk is not diminished by the fact that the war is an unjust one, and that those in arms against the government have no right to make the capture. Now-it was the extent of the hazard that the parties sought to fix by the language of the policy. They could not have used more fit words to negative responsibility for such an act as was the seizure of the John Welsh, than those they have employed in the excepting proviso.
For these reasons I am of opinion the judgment should be affirmed.