Concurring opinion of
Agnew, J.This ease comes before us upon a marine policy, taken upon a vessel called the John Welsh. The crew of the Confederate privateer Jeff Davis boarded the John Welsh on the high sea, putting the crew of the latter in fear, and taking them off. They plundered the vessel of property on board, and carried her away. The witness, speaking of the affair, said: “ They were pirates, they robbed me on the high seas.” These acts are piracy, either under the laws of nations, or of Congress. Two questions arise — 1. Whether the letters of marque of the Jeff Davis, and the nature of the war in which she was engaged, divest these acts of their piratical character. 2. Whether it was a capture within the true meaning of this term, as used in the policy.
The public history of the country is admitted — the secession of the Southern States, their confederacy, organization of a government, rebellion, and issuing letters of marque — that the Jeff Davis, sailing under letters of marque as an armed privateer, captured the Enchantress, after boarding the John Welsh, and some of her crew were tried and convicted of piracy for this act, in the Circuit Court of the United States at Philadelphia, but not sentenced; the President taking them out of civil custody and exchanging them as prisoners of war.
To avoid qualification and circuity, I shall use the terms Confederate Government, and President, without any admission of their rightful character.
Was the act of capture of the John Welsh divested of its piratical character by the commission under which the Jeff Davis *182sailed ? This question, is solved by an answer to another — would the letters of marque protect from a conviction for piracy ? A response to it has been judicially rendered by Justices Grier and Cadwalader, in the conviction of the crew of the Jeff Davis for piracy. But I reply, they would not protect, unless the Confederate Government is one de jure or de facto. To say that it is one de jure, is to admit the right of secession, which no one concedes. To say it is one de facto, is to admit that the Union is dissolved, and that the seceding states have in fact accomplished independence, and can thereby protect their adherents, under the law of nations, from punishment for treason and piracy, and can pass title to property by capture jure belli. In view of the nature of our government, and of the facts in the case, the latter cannot be admitted, and should have no countenance from the court.
The United States are a nation, as to all the powers vested in them by the Constitution. It is immaterial as to the terms used to designate the government, National or Federal; it is the nature of the powers bestowed which must determine their national character. These powers, whether exercised by Congress, the President, or the Supreme Judiciary, are performed in solido throughout the whole territory of the United States, without regard to state boundaries. All acts of the government, whether relating to foreign or domestic affairs, falling within the domain of the conferred powers, are characterized by unity; and therefore belong to a single nationality. Without a destruction of this national unity, there can be no government set up within the United States either de jure or defacto, with power to make war, grant letters of marque, &c.
The Constitution takes away the slightest pretext for secession, confederation, and the exercise of any of the war powers. A state cannot by itself, or by confederation with others, establish any government with these forbidden powers.
“No state shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal, coin money,” &c.
“No state shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war unless when actually invaded, or in such imminent danger as will not admit of delay.” Sect. 10, Art. 1.
I hold, therefore, that secession and confederation are nullities, and heartily agree with the Chief Justice in this view of our affairs that it is as fatal to the de facto pretensions of the Confederate States as to the rightfulness of their dominion; and that the United States is the supreme government, both de jure and de facto, over the seceded territory, its functions indeed temporarily suspended in certain districts, but its actual existence continued *183everywhere within its rightful jurisdiction, and therefore necessarily excluding within the same limits, all other sovereignties.
And in view of the facts of public history, I must emphatically deny that secession has accomplished “revolution;” that confederation has acquired “ the position of an independent power defacto,” or that “the Constitution and Union are abrogated so far as they (the seceding states) are concerned,” leaving them “ under the' laws of Avar and of nations alone.”
State conventions, ordinances of secession, confederation of states, organization of a form of government, and the taking up of arms against the United States, do not abrogate the Constitution, or Avork actual dissolution of the Union. Such acts are revolutionary in their tendency, but do not constitute successful revolution, or accomplish defacto independence. They have produced insurrection and civil Avar, and called out the constitutional means of suppression and redress, but have not displaced the Federal jurisdiction. Resistance of authority suspends for a period the exercise of governmental functions, but the constant and progressive use of the means of suppression forbids the idea of the destruction of governmental authority. The restoration has been progressing successfully, until now, the Federal jurisdiction is reasserted within large tracts in every state Avithin the territory of the attempted Confederacy.
Abstractly from other facts, it would be true, that a government in the actual exercise of sovereignty over a people and a territory as large as the original thirteen states, and under a written constitution, exercising the war poAver as Avell as civil functions, would have a status, not less than a government de facto. But the application of this test to the Confederate Government, omits these essential features — that the territory, though so large, is but a part of the entire territory of one nation; and that the population, though so numerous, is but a portion of one people; that their constitution is but a compact of states, disqualified from confederating, and overridden by a higher constitution ; that the bastard progeny of this void compact is not in the exercise of exclusive sovereignty over this fraction of the territory and people of the nation; and that the true government is still supreme, de jure and de facto, exercising its sovereignty within the entire circle of-the Confederacy, occupying important portions, and commanding positions, in the territory of every state.
The true idea of a defacto government is, that it in fact represents a people or nation as such. It may be a usurpation, but it, and not another, actually exercises the authority of the nation. A rebellion or attempt at revolution by a portion of a people, taking the form of a government, but leaving the true government still in esse, active and successful in asserting *184its authority, does not constitute a de facto government; for the reason that it in no sense represents a nation or exercises its sovereignty. It lacks distinctness and completeness of separation. The body of men who set up the Confederate Government are not a people or nation in the proper sense of distinctness or complete separation. They arc a combination of persons, but possess no authority as a defacto government, whose commissions will protect. The point is not what the Confederate Government affects to be, but what it is. Granting it a form of government, the fact remains; it is not in the exercise of exclusive sovereignty; it does not represent a distinct, separate, independent nationality. The question is — What is the value of this combination ? This is the very pivot of the discussion; the inquiry being, what authority exists in the letters of marque to protect.
Secession bears no resemblance to the American Revolution. Then the colonies were actually and territorily separated from the mother country; had declared independence, and set up a government which in fact represented the entire people, and exercised their national authority. Then there was distinctness, separateness, exercise of executive sovereignty, and actual ouster of. the legitimate government. Secession has none of these. In the former case there was a defacto government; in the latter there is not.
But have the political departments of our government conceded a de facto status to the Confederate Government ? Here I must pause to notice the fallacy of any argument which, presenting a single alternative between the continued Federal sovereignty, and a substitution of Confederate sovereignty, by means of revolution and dissolution, and alleging as a fact, the admission of the latter by the political departments of the Federal Government, brings as the proof of it, the alleged concession of belligerent rights. The yielding of certain temporary benefits to rebels in arms, to moderate the rigours of war — a condition produced by the violence of force — differs essentially from the concession of a de facto governmental status to the rebels themselves — a concession demanding, according to the presented alternative, an admission of sovereignty. The substitution of the expression “belligerent rights,” in order to draw the inference from their concession, that the Federal Government, therefore, regards “ secession as a revolution which dissolved the Union,” leads to error. Belligerent rights arise from a state of war, and not necessarily from any governmental status. Civil war may exist without separation, or distinct sovereignty. It begins between members of the state, and the government, opposed in its own domain, does not concede successful revolution or separate sovereignty, by awarding belligerent rights to the rebels. A state *185of civil war undoubtedly exists, and a corresponding necessity to treat the rebels according to the usages of civilized warfare; but it does not follow that this is a concession of a defacto status to the government under which the rebels prosecute their rebellion. The Federal Government, on the contrary, has uniformly and persistently denied it. Excepting the exchange of prisoners, and the application of the law of prize to Federal captures of vessels violating the blockade, not a solitary governmental act has been pointed to, as a recognition of the Confederate status; and these, it will be shown, fail of the purpose aimed at.
I have examined all of the proclamations of the President, beginning with that of the 15th of April 1861, and all the principal laws of Congress, and have not found a single executive or legislative act which concedes a governmental status to the Confederacy. The whole ground of legislation has been aimed to “ suppress insurrection” — '“punish treason and rebellion” — “ seize and confiscate the property of rebels,” and “prevent correspondence with rebels.” The only Act of Congress in which I have noticed any mention of the Confederate Government is that “to prevent correspondence with rebelswhich terms it “ the present pretended rebel government.”
What is it to tell us that the crew of the Jeff Davis were exchanged as prisoners'of war, when all the proclamations of the President, all his orders, and the very war he is waging to subdue the rebels, teaches us that he has not for an instant acknowledged their power; when all the enactments of Congress have aimed at continued authority over their persons, property, and territory. When and in what way has any department of our government conceded to the Confederacy a position outside of the Constitution and Union, and the possession of the actual governing power within any point of the territory of the Union ? If we have exchanged prisoners, it was but the exercise of humanity to loyal citizens, and not a concession to a separate government. If we have blockaded their ports and applied the law of prize to Federal captures, one was but as a means of warfare, and the other a concession to the rights of neutrals.
Is it the fact that the rebels levy war, which confers this status ? War neither abrogates the Constitution, nor dissolves the Union. But war levied must be met by war. This war must be governed by civilized usages, and where neutrals may be affected muot be conducted so as to preserve their rights, and maintain our peace with other nations. An exchange of prisoners simply grows out of a state of war, and its effect as an act, can rise no higher than its producing cause. If war, the cause, does not ipso facto confer the assumed status, clearly exchange, the mere consequence, cannot.
War brings with it the necessity for using the means of making *186it effective. A blockade of the ports in tbe insurgent territory, as an act of war, is no more than the siege of a city. Each is intended to destroy the power of the insurgents to carry on their war. As to the rebels, therefore, it is but a means of making war effective to subdue them. It is no concession on our part, of an outside status, or of an abrogated constitution. If therefore, we choose to apply the -law of prize to our own captures, and thus escape collisions with other nations, it is but an act collateral to the blockade, as a means of warfare. We restrict ourselves so far as to consent to be governed by the law of nations as to neutrals, but as to the rebels, we do not elevate this means of warfare into a concession of their separate status.
The Supreme Court of the United States, in the prize cases, decided no more than this, that being engaged in a war with rebels, “the President had a right jure belli to institute the blockade of ports in possession of states in rebellion, which neutrals are bound to regard.” There is no intimation in the opinion of an “ abrogated constitution,” or an outside status. Had this question been before the court, I doubt not Justice Grier, who delivered the opinion, would have adhered to his own judgment in the case of these pirates. His language is worthy of reproduction, for its clear and terse statement of the whole question. “ Every government is bound by the law of self-preservation to suppress insurrections, and the fact that the number and power of the insurgents may be so great as to carry on a civil war against their legitimate sovereign, will not entitle them to be considered a state. The fact that a civil war exists for the purpose of suppressing a rebellion, is conclusive evidence that the Government of the United States refuses to acknowledge their right to be considered such. Consequently, this court, sitting here to execute the laws of the United States, can view those in rebellion in no other light than traitors to their country; and those who assume, by their authority, a right to plunder the property of our citizens on the high seas, as pirates and robbers.”
This is sound and patriotic language, and while I comprehend the necessity growing out of the exigency of a civil war, compelling the government to suspend for a time the exercise of its powers to punish rebels and pirates, I cannot conceive by what process under the Constitution, either the President or Congress can, before accomplished revolution, change the status of rebels as a portion of the people. Even the treaty-making power confers no such authority. It regards foreign relations only, not the states of the Union, which lie under the express prohibitions of the Constitution.
The clemency of the President which relieved these pirates from punishment, did not reach back to their crime, and convert piracy into privateering jure belli. Yet this is the very point of *187the reasoning which puts the case upon a capture jure belli. If they are privateersmen, and their capture jure belli, they are protected from the punishment of pirates by the letters of marque; and the capture of the John Welsh needs only a decree in admiralty to transfer the property as a lawful prize of war. The prize cases adjudicating the lawfulness of Federal captures, do not for an instant sanction rebel captures, or concede the authority of rebel prize courts.
The same argument which redeems rebel privateering from piracy, will protect its military on land from the imputation of robbery, murder, and treason. If secession be disunion and revolution, and if they confer upon the Confederate States the rights of a defacto government, leaving them under the laws of war and of nations alone, their authority under these laws will protect those in arms as to all acts done jure belli. In short, the argument which rescues pirates, by converting their piratical acts into a capture jure belli, asserts nothing less, than that treason on land protects piracy at sea.
The second question is, whether the loss of the John Welsh was by capture within the meaning of the proviso in the policy. The exception reads thus: “ Provided also, that the company shall not be liable for any claim for or loss by seizure, capture, or detention, or the consequences of any attempt thereat.”
Capture is a term specially applicable to a taking by men of war or by privateers: and it matters not whether the vessel be carried into port and condemned as a prize : 2 Burrows 294; 2 Campbell 620 ; 3 Taunton 508; 4 East 396, 402; 7 Id. 449; 9 Id. 233 ; 11 Id. 205.
The insurers become liable if they warrant against it as a peril of the sea, and the same force should be given to the term when used as an exception. It is not to be supposed that a word of definite signification, when used in a commercial instrument to create liability, would be used in a different sense as an exception in the same species of contract.
Although the commission of the Jeff Davis under which she sailed, cannot be used to characterize the capture as an act jure belli, yet it certainly may be used to give character to the act as a capture within the true intent of the policy. The vessel was not a freebooter, in quest of gain by indiscriminate pillage, but acted under a commission to capture vessels of the United States only, as enemies; and the declarations of those on board at the time of the capture accorded therewith.
A pirate, according to the most approved definitions, is a sea robber; one who robs on the high seas, irrespective of country or conditions — an indiscriminate plunderer for the sake of gain. Hence he is called hostis humanigeneris. In this case the object was not plunder, but capture and destruction of the property of persons regarded as enemies. Plunder accompanied the act, but *188was not its prime intent. We look upon these captors as rebels and pirates under our laws, but they regard themselves as enemies only. They considered themselves a part of an authorized force of a government at war with us; and therefore bore its commission, carried its flag, and made war upon us alone. The war in which they took a part, was one of terrible earnestness and gigantic proportions. The power of the rebels had compelled our Government to regard it as a civil war, and to concede to them certain belligerent rights. In every sense, therefore, affecting individual interests, in the power to seize and destroy private property, and the intent to exert this power to carry on their war and increase their own success, these captors were to be viewed as a part of a naval force, and their act as a capture of war.
This is a peace policy issued before secession and the war. It is not supposed it was the intention of the insurers, for tho ordinary premium of a peace policy, to warrant against a capture of this kind, indistinguishable from a capture jure belli, in any feature, except the want of protection in the letters of marque. They might be willing to insure against freebooters in quest of individual gain, unsupported by any kind of government, and yet be unwilling to risk the number, force, and armament of privateers, supported by a powerfully-organized combination prosecuting a formidable civil war. Indeed, in the absence of the proviso against capture, it can scarcely be supposed that this intent even lurked under the expressions “pirates, rovers, and assailing thieves.” But in view of the exception, it seems to me clear that the policy never was designed to insure against this then unknown, great, and imminent peril.
This view is strengthened by the nature of the policy as a commercial instrument. It is not a writing peculiar to ourselves, and therefore not more likely to conform in its intention, to the piratical character of the captors as vieAved under our laws; but it is a world-wide instrument, the growth of the commerce of all civilized countries, in its terms and intention conforming rather to general than particular opinions.
What would an English court think of it? Unquestionably, following the action of their own government in its recognition of the rebels as belligerents, it would be pronounced a capture. An English court would not undertake to pass upon the effect of the Southern secession under the Federal Constitution and laws, and to' pronounce the act piracy under them; but would look simply to the flag and commission of the alleged privateer, and the attitude of the Confederates as recognised by Great Britain. As a neutral, judgment would be rendered according to the apparent fact of a capture made by an armed privateer, under a commission and flag, prosecuting a general public purpose, and *189not the calling of a freebooter. Such an interpretation accords with the meaning I suppose the framers of the policy attached to the term capture, which looks to a seizure by parties prosecuting war by an armed public force, whether it be lawful or unlawful; and whether it be justified or not as an act of rightful war under the law of nations.
The Massachusetts case of Dale et al. v. New England Insurance Co., which I have seen in the proof-sheets, is an authority in point, and decided the question entirely on this interpretation of the •word capture.
I concur therefore in affirming the judgment in this case, on the ground that the exception in the policy was intended to cover a case of capture in the nature of an act of warfare, but not on the ground that the capture itself was an act jure belli.