Concurring opinion by
Read, J.The question in this case is whether piracy in the *180sense in which it is used in this policy was committed by rebels, sailing in a rebel vessel, with a rebel commission, and under a rebel flag. In discussing this question, it is to be recollected that the authorities cited relate almost exclusively to what foreign nations may consider as the law of nations by which they may regulate their conduct, in relation to the legitimate government and its rebellious subjects or citizens. They do not govern the present case, which arises between the parent government and its rebellious children.
My opinion is, that as regards the United States, all these ordinances of secession are null and void, and that the so-called Southern Confederacy is an entire and complete nullity. The country and the people embraced by this unholy rebellion are simply in a state of rebellion and are rebellious citizens, but at the same time they are enemies, and may be treated as such. They may be tried as traitors and pirates, and may under the laws of the United States be convicted and punished as such, and no man or nation could complain of it as an unjust or illegal act. This is the strict law, and therefore when the citizens of the United States who committed this depredation and robbery on the high seas, were tried and convicted as pirates by the Circuit Court of the United States, no one could dispute the justice and validity of the proceedings. But when a rebellion assumes such gigantic proportions as the present one, the lawful government cannot from motives of policy and humanity act upon strictly legal principles, but must ex necessitate rei adopt so much of the practice of civilized warfare, as would prevent indiscriminate slaughter, and the infliction of unnecessary pain and hardship. This leads necessarily to exchange of prisoners, whether on land or sea, the government waiving its legal rights, without in any manner recognising the rebel leaders, or their organization, but constantly denying them to be a government de facto or de jure, or as possessing the powers to issue letters of marque and reprisal, or to fit out privateers, or armed vessels, or to make captures, or to establish prize courts which could condemn as legal prizes the vessels captured by their cruisers. Lord Coke’s description of war is very apposite : “ so when by invasion, insurrection, rebellion, or such like, the peaceful course of justice is disturbed and stopped, so as the courts of justice be as it were shut up, et silent leges ínter arma, then it is said to be time of war.” All rebellion or insurrection is in reality war, and it becomes more evidently such, when it brings hundreds of thousands of men into the field. Still it is only a rebellion, and the citizens of the rebellious portion are only rebellious citizens, over whom the government possesses not only all its legal rights, but all those powers which a state of war confers upon it. This I think was the view taken in the dis*181cussion of the constitutionality of the draft law. It was still a rebellion.
In the policy of insurance in this case, the word pirates is used in the sense known to the commercial world, and we know that in any foreign country, it would not be considered as applicable to such captors as those who took this vessel. Can we therefore put a different construction upon it, in a commercial instrument, governed by general commercial law ? Here was a rebel cruiser, not committing a single act of robbery, but capturing vessels under rebel authority, and we cannot say that this is piracy in the sense in which it is understood by the world at large.
If this he so, then the exception of capture applies, and relieves the insurance company from liability.
I have written a separate opinion because I did not wish to be misunderstood, as to the reasons which have induced me, contrary to my first impressions, to concur in the judgment of the court. I am answerable only for my own grounds of decision, as my brethren are for theirs.