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ARGUMENT FOR THE PLAINTIFFS 
 
 £ 
 
 IN THE CASE OF THE 
 
 GOLDEN ROCKET 
 
 BEFORE THE 
 
 SUPREME COURT OF MAINE. 
 
 TAKING BY REBELS ON THE HIGH SEAS IS 
 
 PIRACY, NOT CAPTURE, SEIZURE, OR DETENTION, 
 
 BY THE LAW OF INSURANCE. 
 
 Non alias magis sua populique Romani contumelia indoluisse Csesarem ferunt 
 quam quod desertor et prosdo hostium more ageret. 
 
 BOSTON: 
 
 PRESS OF JOHN WILSON AND SON. 
 
 1862. 
 
.Jh** Sc , '7°^ 
 
STATE OF MAINE. 
 
 jSuprrme Suturial Court* 
 
 PENOBSCOT COUNTY. APRIL TERM, 1862. 
 
 CHARLES E. DOLE & ANOTHER 
 
 vs. 
 
 MERCHANTS’ MUTUAL MARINE INSURANCE CO. 
 
 ARGUMENT FOR THE PLAINTIFFS. 
 
 The policy upon which this action is brought was made on the 
 19th of November, 1860, before any of the pretended ordinances 
 of secession or other acts relied on by the defendants. 
 
 This policy purports, in the body thereof, to insure the 
 Golden Rocket, for one year, against “ perils of the seas, fire, 
 enemies, pirates, assailing thieves, restraints and detainments of 
 all kings, princes, and people, of what nation or quality soever, 
 barratry of the master (unless the insured be owner of the ves¬ 
 sel) and of the mariners,” &c. 
 
 “It is also agreed, that, in case of capture or detention, the 
 insured shall not have the right to abandon therefor, until proof 
 is exhibited of condemnation, or of the continuance of the deten¬ 
 tion (by capture or other arrest) for at least ninety days.” 
 
 “It is also agreed, that the insurers shall not be answerable 
 for any charge, damage, or loss, which may arise in consequence 
 of a seizure or detention for or on account of illicit or prohibited 
 trade, or trade in articles contraband of war.” 
 
 In the margin of the policy, this clause is printed: “ War¬ 
 ranted by the assured free from capture, seizure, detention, or 
 the consequences of any attempt thereat, any stipulation to this 
 policy to the contrary notwithstanding.” 
 
4 
 
 The declaration alleges that the ship was “ forcibly taken by 
 pirates and assailing thieves, and utterly burned and destroyed, 
 and thereby to the said plaintiffs totally lost.” 
 
 The facts of the case, as found by Mr. Justice Appleton, for 
 the purposes of this argument, are, that on the third day of July, 
 1801, the Golden Rocket was taken by the Sumter, an armed 
 steamer, having no national character, but claiming to act 
 under the so-called Confederate States, and first deceiving the 
 officers of the Golden Rocket by displaying a United States 
 flag (Report, p. 1) ; that “ the people of the so-called Confede¬ 
 rate States, and their assumed government,” were “ conceded 
 to be in a state of rebellion against the Government of the United 
 States ” (Report, p. 3) ; that the officers and crew of the Sum¬ 
 ter took out the officers and crew of the Golden Rocket, 
 stripped the Golden Rocket of her sails, spars, &c., and of all 
 that could be easily taken away, and then set her on fire, by 
 which she was destroyed (Report, p. 1); and that due notice, 
 demand, and proof of loss, were made (Report, p. 2). 
 
 The defendants offered in evidence sundry pretended ordi¬ 
 nances of secession of several of the United States, and a pretended 
 organization of a government of the so-called Confederate States ; 
 their creation of a navy, and issue of commissions therein to the 
 officers of the Sumter; and that the rebellious people of those 
 States were carrying on war against the United States. All 
 which the presiding Judge rejected as immaterial, and ordered 
 judgment for the plaintiffs. 
 
 Such being the case, as presented by the report, the plaintiffs 
 agree that the only question now arising thereon is accurately 
 stated in the opening argument for the defendants thus: 
 
 “ The inquiry is not the broad and general one, whether, 
 under some clause in the body of this policy, this loss might 
 come, but whether it was a loss by pirates and assailing thieves;” 
 “ whether the act of the Sumter was piratical, as between 
 underwriter and assured, within the meaning of this policy.” 
 
5 
 
 If the rulings at the trial were right, then the judgment for 
 the plaintiffs is to stand. If not, the default is to be taken off, 
 and the cause stand for trial (Report, p. 4). 
 
 The issue presented by the report naturally divides itself into 
 two questions: 
 
 I. Whether the loss was by “ pirates and assailing thieves,” 
 within the meaning of the body of the policy. 
 
 II. Whether such a loss falls within the risks excepted in the 
 marginal clause. 
 
 I. THE LOSS WAS BY PIRATES AND ASSAILING THIEVES. 
 
 Upon the first question, the grounds taken by the learned 
 counsel for the defendants make it proper to go into a fuller 
 demonstration than would otherwise have been presented. 
 
 The facts found are, that the Sumter held herself out as an 
 armed vessel of the United States, until she had induced the 
 captain of the Golden Rocket to go on board of her; that she 
 then took out the officers and crew of the Golden Rocket, 
 deprived them of their ship, took and carried away her sails, 
 spars, &c., and destroyed her by fire. 
 
 These acts, done without a commission from any recognized 
 power, were piratical, according to every system of law known 
 among civilized nations. 
 
 1. Pirates by the Municipal Law. 
 
 These acts were criminally punishable as piracy by the com¬ 
 mon and statute law of England, of the British Colonies in 
 America, and of the United States. 
 
 “ A pirate, at the common law, is a person who commits any 
 of those acts of robbery and depredation upon the high seas, 
 which, if committed on land, would have amounted to felony 
 there.” 
 
 1 Hawk. c. 37, § 4. 
 
 4 Bl. Com. 72. 
 
 1 Russell on Crimes (7th ed.), 100. 
 
6 
 
 Lord Coke says, “ This word ‘ pirat,’ in Latiue pirata, is de¬ 
 rived from the Greek word ‘■Keip&rricf which again is fetched from 
 ‘mipua transeundo mare , of roving upon the sea; and therefore, 
 in English, a pirat is called a rover and a robber upon the 
 sea.” 3 Inst. 113. 
 
 At common law, before the statute of 25 Edward 3, piracy 
 committed by one subject upon another was treason, being con¬ 
 trary to his natural allegiance; though in an alien it was only 
 felony. 
 
 4 Bl. Com. 71. 
 
 1 Molloy, c. 4, §§ 9,10. 
 
 In 1699, the British Parliament, in order to remove the doubts 
 entertained by some civilians upon the conviction for piracy of 
 persons holding commissions as privateers from James the Second, 
 by the admiralty judges of William the Third, passed the statute 
 of 11 & 12 W. 3, c. 7 ; by § 8 of which, any natural-born subject, 
 committing any act of hostility upon the high seas against other 
 British subjects, under color of a commission from any foreign 
 power, should be deemed a pirate, although this would be only 
 an act of war in an alien. 
 
 Hawkins & Blackstone, ubi supra. 
 
 ,1 Molloy, c. 4, § 24. 
 
 The laws of France and of Holland contained like pro¬ 
 visions. 
 
 2 Valin, Ordonnance de la Marine, 235 & seq. 
 
 Bynkershoek, Qu. Jur. Pub. lib. 1, c. 17. 
 
 In 1782, it was held by all the judges of England, that under 
 this statute of William 3, and the statute of 18 Geoi'ge 2 in 
 pari materia , traitors levying war at sea against the king might 
 be tried and convicted as pirates. 
 
 Evans’s Case, 2 East P. C. 798, 799. 
 
 The English Statute of 11 & 12 W. 3 was made perpetual 
 by St. 6 G. 1, c. 19, § 3. It in terms extended to the Colonies, 
 

 and was used and adopted here, especially in the Province of Mas¬ 
 sachusetts Bay; and therefore remained in full force here after 
 the Revolution, until altered or repealed. 
 
 St. 11 & 12 W. 3, c. 7, §§ 1, 14,15. 
 
 See also St. 4 G. 1, c. 11, §§ 7, 9. 
 
 2 Chalmers Opinions, 202, 219, 221. 
 
 Trial of Quelch (1704), 14 Howell’s State Trials, 1067. 
 
 Cases of Corbet and Nickerson (1769), 2 John Adams’s Works, 
 224, 526, 533 ; 3 Hutchinson’s Hist. Mass. 231, 420. 
 
 Constitution of Massachusetts, c. 6, § 6. 
 
 The laws of the Massachusetts Colony on this subject are 
 worthy of being referred to, as matter of curiosity, if not of au¬ 
 thority, to show how applicable their principles are to the present 
 time, and, in part at least, to the case at bar. 
 
 By the Body of Liberties of 1641,art. 94,§ 12, “if any man shall 
 conspire and attempt any invasion, insurrection, or public rebellion, 
 against our Commonwealth, or shall endeavor to surprise any 
 town or towns, fort or forts, therein, or shall treacherously and 
 perfidiously attempt the alteration and subversion of our frame 
 of polity or government fundamentally, he shall be put to 
 death.” 28 Mass. Hist. Coll. 233 ; Anc. Chart. 59. 
 
 By a Colony law of 1673, piracy in harbors or at sea, by 
 piratically seizing a vessel or rising on the master, was punished 
 with death, in terms very like those of the subsequent English 
 Statute of W. 3. 
 
 4 Mass. Col. Rec. part ii. 563 ; 7 Dane Ab. 90. 
 
 By the Constitution of the United States, Congress has power 
 “ to define and punish piracies and felonies committed on the high 
 seas.” Constitution U.S., art. 1, § 8. 
 
 In the exercise of this power, the first Congress of the United 
 States in terms adopted the common law of England, and the 
 statute of 11 & 12 W. 3, c. 7, § 8, as follows: 
 
 “ If any person shall commit upon the high seas murder 
 or robbery, or any other offence, which, if committed within 
 
8 
 
 the body of a county, would, by the laws of the United States, 
 be punishable with death,” “ every such offender shall be 
 deemed, taken, and adjudged to be a pirate and felon ; and, being 
 thereof convicted, shall suffer death.” 
 
 Act of 1790, c. 35, § 8; 1 U.S. Sts. at Large, 113. 
 
 It is not necessary, to make robbery on the high seas piracy, 
 under this section, that it should, if committed on land, be 
 punishable with death; or that it should be accompanied with 
 any force or violence to the person robbed, or any putting in 
 fear. 
 
 United States vs. Palmer, 8 Wheat. 610, 628, 630. 
 
 United States vs. Hutchings, 2 Wheeler C. C. 547. 
 
 United States vs. Tully, 1 Gallis. 252, 253. 
 
 By a subsequent act, “ if any person shall upon the high 
 seas commit the ci'ime of robbery in and upon any ship or vessel, 
 or upon any of the ship’s company of any ship or vessel, or the 
 lading thereof, such person shall be adjudged to be a pirate,” 
 and, upon conviction, shall suffer death. 
 
 Act of Congress of 1820, c. 113, § 3 ; 8 U. S. Sts. at Large, 600. 
 
 The act of 1790 further provides that “if any citizen shall 
 commit any piracy or robbery aforesaid, or any act of hostility 
 against the United States or any citizen thereof, upon the high 
 seas, under color of any commission from any foreign prince or 
 state, or on pretence of authority from any person, such offender 
 shall, notwithstanding the pretence of any such authority, be 
 deemed, adjudged, and taken to be a pirate, felon, and robber; 
 and, on being thereof convicted, shall suffer death.” 
 
 Act of 1790, c. 85, § 9 ; 1 U.S. Sts. at Large, 114. 
 
 Within these definitions, the officers and crew of the Sumpter 
 were pirates — 
 
 First, In robbing and despoiling the owners, master, and crew 
 of the Golden Rocket of their vessel, and of its spars, sails, <fcc. 
 
 Second, In committing an act of hostility against the United 
 States, on a pretence of authority. 
 
 It is true, as suggested by the defendants’ counsel, that in 
 
9 
 
 order to bring the case within the acts of 1790, c. 35, § 9, or 1847, 
 c. 51, it must appear that some of the officers and crew of the 
 Sumter were citizens of the United States, or of a foreign State 
 by treaty between which and the United States they are to be 
 deemed pirates. But, if nothing else is wanting, the defendants 
 can hardly wish to go to trial upon that question. 
 
 The defendants, however, have appealed from the municipal 
 law to the law of nations, for a definition of piracy ; in answer to 
 which, the plaintiffs respectfully submit — 
 
 2. Pirates by the Law oe Nations. 
 
 The Sumter’s men were pirates, within the definitions of that 
 crime by the most eminent civilians and writers on the law of 
 nations. 
 
 The oldest definition we have found is one quoted by Selden 
 and Ducange from an old Greek commentator on the Ajax of 
 Sophocles, who defines “ndpa” as “ bblor Kai ~tx v v,'' (fraud or craft,) 
 
 “ o&ev Kai neipurai bi ko.tu OuXaoBav KuKOvoyoL,” (whence evil-doei’S Oil tile 
 
 sea are called pirates.) 
 
 Mare Clausum, c. 10; 2 Selden’s Works, 1313. 
 
 Ducange Gloss, voce “ Pirata.” 
 
 Ducange seems to give the preference to the definition of “an 
 armed sea-thief” — “ Miles maritimus, qui Latinis prcedo, vel. latro 
 maritimus. Latrones nude piratos vocat Florus , et latrocinari 
 dixit pro piraticam exercereP 
 
 The etymology of “ pirata,” by some of the early jurists cited 
 by Ducange, was derived from "nip,” fire, from their habit of 
 burning ships; e.g.: “ Pirata; sunt prcedones marini , ah incen- 
 dio navium vel insularum quos capiebant.” “ Pyrata dicitur 
 a pir , quod est ignis , quia ferunt ignem in manu sua 
 
 Although this may not be sound as etymology, it pretty clear¬ 
 ly shows that such acts were piratical. 
 
 Bynkershoek says, “ Qui autem nullius principis auctoritate , 
 sive mari, sive terra , rapiunt , piratarum praidonumque vocabulo 
 
 2 
 
10 
 
 intelliguntur Or, as translated by Duponceau, 44 We call pirates 
 and plunderers , those who, without the authorization of any 
 sovereign, commit depredations by sea or land.” 
 
 Bynkershoek, Qu. Jur. Pub. lib. 1, c. 17. 
 
 Law of War, 127. 
 
 44 If a pirate shall attack a ship, and the master, for the re¬ 
 demption, shall give his oath to pay a sum certain, though there 
 be no taking, yet is the same piracy by the law marine; but by 
 the common law there must be an actual taking, though it be 
 but to the value of a penny, as to a robbery on the high¬ 
 way.” 1 Molloy, c. 4, § 18; citing authorities. 
 
 If one ship attacks another ship at sea, and takes out some 
 victuals, cables, ropes, anchors, or sails, this is piracy; unless 
 the attacking ship is in necessity, and pays for the things 
 taken. 1 Molloy, c. 4, § 20. 
 
 So Dr. Browne: 44 Piracy is depredation without any authori¬ 
 ty from any prince or state ; or transgression of authority given, 
 by despoiling beyond its warrant.” 2 Civ. & Adm. Law (2d ed.), 
 461. 
 
 Duponceau suggests, as a definition of a pirate, 44 he who, 
 sailing without being authorized by any sovereign, (or with com¬ 
 missions from different sovereigns at war with each other,) 
 commits depredations at sea or on shore.” 
 
 Law of War, 128, note. 
 
 It is true that Judge Story, in a case (on which the defendants 
 rely) under the act of Congress of 1819, c. 76, § 5, punishing 
 44 the crime of piracy as defined by the law of nations,” said, 
 44 Whatever may be the diversity of definitions in other respects, 
 all writers concur in holding that robbery or forcible depredation 
 upon the sea, animo furandi, is piracy.” 
 
 United States vs. Smith, 5 Wheat. 161. 
 
 But he did not say that the intent to steal was essential to the 
 crime; and the authorities collected by him (1 Story’s Life of 
 Story, 283,) in a note to that case, show that it was not; and are 
 cited by Mr. Wheaton (who can hardly have misunderstood their 
 meaning) as establishing this proposition : 
 
11 
 
 “ Piracy is defined by the text-writers to be the offence of 
 depredating on the seas, without being authorized by any sove¬ 
 reign state, or with commissions from different sovereigns at war 
 with each other.” 
 
 Wheaton’s Elements of International Law (6th ed.), 184. 
 
 In that note, Judge Story observes, that “ the state trials for pi¬ 
 racy in the reign of William 3 are entitled to great consideration, 
 both from the eminent talents of the judges who constituted the 
 tribunal, and the universal approbation of the legal principles as¬ 
 serted by them. It is also worthy of remark, that in none of their 
 indictments was there any averment that the prisoners were British 
 subjects ; and most of them were for piracies committed on foreign 
 subjects and vessels. They were all framed as indictments at 
 common law, or for general piracy, without reference to any Bri¬ 
 tish statute.” 5 Wheaton, 177, note. 
 
 In one of the cases thus referred to, Sir Charles Hedges, Judge 
 of the High Court of Admiralty, assisted by Lord Holt and other 
 eminent common lawyers and civilians, laid down this rule: “If 
 any man be assaulted within the jurisdiction of the Admiralty, 
 and his ship or goods violently taken away without legal au¬ 
 thority, this is robbery and piracy.” 
 
 Dawson’s Trial, 13 Howell’s State Trials, 454. 
 
 In another, Lord Holt recognized the doctrine, that prizes, 
 taken by persons not acting “ by a commission from a sovereign 
 prince that was an enemy,” “ would make them to be pirates.” 
 
 Vaughan’s Trial, 13 Howell’s State Trials, 525. 
 
 It would seem to be fully established by these authorities, that 
 the only elements necessary to constitute the crime of piracy, by 
 the law of nations, are forcible depredation on the high seas, and 
 want of authority from any sovereign state. 
 
 3. Rebellion no Excuse for Treason or Piracy. 
 
 Rebels in arms are not entitled by the law of nations to be 
 recognized as belligerents by their own country. 
 
12 
 
 “If the Constitution be altered by an unjust rebellion, the 
 liberty thus usurped so long continues unlawful as the rightful 
 prince shall labor to reduce the rebels to obedience ; or, at least, 
 by solemn declaration shall protest and preserve his right over 
 them ; till, by long acquiescence and silence, he may be pre¬ 
 sumed to have given up his claim.” 
 
 Puffendorf, lib. 7, c. 7, § 5. 
 
 Grotius classes belligerent rebels with pirates and robbers, 
 and not with nations who can wage war, quoting from the civil 
 law, thus: “ Et Paulus. A piratis aut latronibus capti liberi 
 permanent (Captives of pirates and robbers remain free). 
 Accedat illud Ulpiani. In civilis dissensionibus . . . qui in 
 alterutras partes discedent vice liostium non sunt eorum inter 
 quos jura captivitatum aut postliminiorum fuerint; et ideo captos, 
 et venundatos, posteaque manumissos, placuit supervacuo repelere 
 a Principe ingenuitatem , quam nulla captivitate amiserant (In 
 civil wars, members of opposing parties are not like enemies, be¬ 
 tween whom the rights of captivity and postliminy take effect; 
 and therefore, if taken and sold, and afterwards freed, they need 
 no restitution of the rights of free-born citizens, which they had 
 lost by no captivity).” 
 
 De Jure Belli & Pacis, lib. 3, c. 3, art. 1, § 1. 
 
 Indeed, to the mind of Grotius, robbers and armed rebels 
 were so identical, that, on the next page (art. 2, § 3,) he con¬ 
 founds the application of the two passages above cited ; saying, 
 U A latronibus captos capientium non fieri supra dicentem audi- 
 vimus Ulpianum (The captives of robbers do not become their 
 slaves, as we have heard Ulpian say above).” Whereas, in fact, it 
 was Paulus that spoke of pirates and robbers, and Ulpian of civil 
 dissensions only. 
 
 Dr. Rutherforth, speaking of forcible resistance to the laws, 
 says, “ When the seditious members are so strong, that the execu¬ 
 tive body is obliged to interpose and to take the command and 
 direction of the military force, this contention is called a rebel¬ 
 lion on the part of the subjects, and may be called a civil war on 
 the part of the society.” 
 
 2 Rutherforth’s Institutes, lib. 2, c. 9, p. 483 (3d ed.). 
 
13 
 
 General Halleck, after stating that, in civil wars, “ each party 
 is usually entitled to the rights of war as against the other, and 
 also with respect to neutrals,” adds, “ Mere rebellions, however, 
 are considered as exceptions to this rule ; as every govern¬ 
 ment treats those who rebel against its authority according to its 
 own municipal laws, and without regard to the general rules of 
 war which international jurisprudence establishes between sove¬ 
 reign states.” “ Every neutral State in such a contest must 
 determine for itself when it will consider a party in a rebellion, 
 insurrection, revolution, or civil war, entitled to the rights of a 
 belligerent in its international relations.” 
 
 Halleck’s International Law, c. 14, § 9. 
 
 Upon this point, the decisions in cases of treason are very 
 strong. It is perfectly well settled, that adhering to armed 
 rebels, giving them aid and comfort, is to be indicted as levying 
 war against the king, and not as adhering to the king’s enemies, 
 because, as Lord Coke says, “ the subjects of the king, though 
 they be in open war or rebellion against the king, yet are they 
 not the king’s enemies, but traitors ; for enemies be those that 
 be out of the allegiance of the king.” 3 Inst. 11. 
 
 So Lord Hale: “ Those that raise war against the king may 
 be of two kinds, subjects or foreigners : the former are not pro¬ 
 perly enemies, but rebels or traitors ; the latter are those that 
 come properly under the name of enemies.” 1 Hale P. C. 159. 
 
 And this principle has been very recently applied to the pre¬ 
 sent rebellion by Mr. Justice Swayne, of the Supreme Court of 
 the United States, by whom an indictment against one who sup¬ 
 plied the rebels with arms was quashed, because it described the 
 rebels as enemies, and charged the defendant with adhering to 
 them, giving them aid and comfort, instead of directly charging 
 him with levying war against the United States. 
 
 United States vs. Chenweth, C. C. U. S. Ohio, April, 1862. 
 
 ♦ 
 
 In England, in 1693, privateersmen, taken “since the com¬ 
 mencement of King William’s war ” (how soon after does not 
 
14 
 
 appear by the report, further than that they had been in prison for 
 some time before the trial), acting under commissions from James 2, 
 were, after full consideration and discussion, tried, condemned, 
 and executed as pirates, notwithstanding that James was admit¬ 
 ted to have once been, and still claimed to be, the rightful king 
 of Great Britain. 
 
 Trials of Golding & others, 12 Howell’s State Trials, 1269-1280. 
 
 These are among the trials which Judge Story said (a«/e, 11,) 
 were entitled to great consideration. And Dr. Phillimore, after 
 stating the arguments in the matter, concludes: “ The reason 
 of the tiling must be allowed to preponderate greatly towards the 
 position, that these privateers were jure gentium pirates.” 
 
 1 Phillimore’s International Law, 406. 
 
 In the debate in the House of Lords on the 14th of May, 
 1861, on the Queen’s proclamation recognizing the rebels as belli¬ 
 gerents, Lord Kingsdown (better known to lawyers as Pemberton 
 Leigh), in speaking of the effect, upon rebel privateersmen, of the 
 proclamation of the President of the United States declaring 
 them to be pirates, said, “ Of course it was a matter for their 
 own consideration what was to be the operation of that proclama¬ 
 tion.” Lord Chelmsford (recently Lord High Chancellor) 
 agreed, that “ if the Southern Confederacy had not been recog¬ 
 nized as a belligerent power, if any Englishman were to fit out a 
 privateer for the purpose of assisting the Southern States against 
 the Northern States, he would be guilty of piracy.” Lord 
 Brougham said that Englishmen, even now, could not expect their 
 government to interfere. And although a difference of opinion 
 was manifested upon the questions, whether Englishmen, since 
 England had recognized the rebels as belligerents, could be 
 treated as pirates by the United States; and whether it would 
 be civilized in the United States to treat the rebels as pirates ; 
 no doubt was expressed that the United States might lawfully 
 hang the rebels as pirates, if they should see fit. 
 
 1 Moore’s Rebellion Record, 249, 250. 
 
15 
 
 The argument of the learned counsel for the defendants 
 (p. 3) — “Neither was there any purpose to act as hostis hurnani 
 generis , but only to prosecute a civil war against the Government 
 of the United States” — is but a restatement of the point made 
 by Sir Thomas Pinfold, before the Lords of the Council, in favor 
 of James the Second’s privateersmen. 
 
 “ It was impossible they should be pirates; for a pirate was 
 1 hostis humani generis: ’ but they were not enemies to all man¬ 
 kind ; therefore they could not be pirates.” “ Upon which,” it is 
 reported, “ all smiled ; and one of the lords asked him, Whether 
 there ever was any such thing as a pirate, if none could be pirate 
 but he that was actually in war with all mankind ? To which he 
 did not reply, but only repeated what he had said before.” 
 
 In reporting this, Dr. Tindall adds an explanation not inap¬ 
 plicable to the case at bar. “ Hostis humani generis he says, 
 “ is neither a definition, or as much as a description, of a pirate, 
 but a rhetorical invective to show the odiousness of that crime. 
 As a man, who, though he receives protection from a government, 
 and has sworn to be true to it, yet acts against it as much as lie 
 dares, may be said to be an enemy to all governments, because 
 he destroyeth, as far as in him lieth, all government, and all 
 order, by breaking all those ties and bonds that unite people in a 
 civil society under any government: so a man that breaks the 
 common rules of honesty and justice, which are essential to 
 the well-being of mankind, by robbing but one nation, may justly 
 be termed ‘ hostis humani generis ; ’ and that nation has the same 
 right to punish him, as if he had actually robbed all nations.” 
 Tindall’s Law of Nations, quoted in 12 Howell’s State Trials, 
 1271, 1272, note, and approved by Phillimore (ante, 14), and by 
 Lord Chelmsford, 1 Moore’s Rebellion Record, 250. 
 
 In Davison vs. Seal Skins, 2 Paine, 324, relied on by the 
 defendants (p. 3), the seizure in question was made under a com 
 mission from Buenos Ayres, after it had been recognized by the 
 United States as an independent government. That case is more 
 in point upon the other branch of this case — the meaning of the 
 word “ seizure,” post , 44. 
 
16 
 
 Even acts (lone under a commission from a recognized foreign 
 government, or by insurgents in arms against such a government, 
 are not always protected from the consequences of piracy. 
 
 Act of Congress of 1790, c. 35, § 9, ante , 8. 
 
 United States vs. Brailsford, 5 Wheat. 188, 201, 202. 
 
 United States vs. Jones, 3 Wash. C. C. 216, 232. 
 
 The Magellan Pirates, 1 Spinks, 83, 84, 85. 
 
 The defendants do not contend that the officers and crew 
 of the Sumter owed any allegiance to any of the States, singly 
 or as a confederacy, that pretended to have seceded, which 
 would excuse them from their allegiance to the Federal Go¬ 
 vernment. And, although the expression of their counsel, “ If the 
 commission under which they acted should be held to confer no 
 legal authority” (p. 3), would seem to contemplate a possibility 
 that the Court might hold such a commission to confer some legal 
 authority, the counsel for the plaintiffs do not consider it neces¬ 
 sary or fit to argue to this Court the unconstitutionality, ille¬ 
 gality, and invalidity of secession. 
 
 In United States vs. Klintock, 5 Wheat. 149, (on which the 
 defendants rely as showing that “ it may be a most material 
 inquiry, whether they did not act in good faith,” p. 3,) the 
 defendant produced a commission purporting to be issued by a 
 foreign officer outside of the territory of the United States, but 
 was held guilty of piracy on proof of acts which his commission 
 did not even pretend to justify; and Chief Justice Marshall, 
 according to his practice of abstaining from extrajudicial dicta , 
 omitted all expression of opinion upon the question, “ whether 
 a person, acting with good faith under such commission , may 
 or may not be guilty of piracy.” 
 
 But when that point was judicially before him, upon a trial 
 for piracy of the master of a vessel having a commission from 
 Buenos Ayres, then at war with Spain, which had taken only 
 Spanish vessels ; although “ the general conduct of” his ship “ ap¬ 
 peared to be that of a regularly commissioned vessel,” and the 
 indictment was not uuon ^ 9 of the act of 1790, for acting under 
 
17 
 
 a commission of a foreign government, or other pretence of au¬ 
 thority, but upon § 8, for robbery upon the high seas; the Chief 
 Justice refused to admit the commission in justification, upon 
 the ground, “ that, as our Executive had never recognized the 
 independence of Buenos Ayres, it was not competent to the 
 Court to pronounce its independence; that therefore the Court 
 could not acknowledge the right of that country to have a na¬ 
 tional seal, and of course that the seals attached to the com¬ 
 missions in question proved nothing.” 
 
 U. S. vs. Hutchings, 2 Wheeler C. C. 543, 544, 546, 547. 
 
 An able discussion of this question in the American Jurist 
 concludes thus: “ It is, then, a principle not to be contradicted, 
 that whoever takes a commission to wage private war from any 
 other than his own sovereign, does it at his own peril, and must 
 know that the commission that he receives is lawful; otherwise 
 he cannot shelter himself under the plea of good faith. Any 
 other position appears inconsistent with the safety of mankind. 
 There can be no good faith when a man receives a commission 
 from an individual, styling himself as he will, who undertakes to 
 deliver them, while his right so to do is unacknowledged by the 
 government of the country where he is, and when the nation, 
 in the service of which he claims to be, is not even known to that 
 government.” 10 Amer. Jurist, 267, 268. 
 
 We have just seen that the United States statute of 1790, as 
 expounded by Chief Justice Marshall, is not confined to acts done 
 under false pretences, but extends to acts, which would be law¬ 
 ful in a belligerent, done in good faith, under an actual commis¬ 
 sion, the only objection to which is that it comes from a power 
 whose right to wage war is not recognized by the Government of 
 the United States. 
 
 Much less can one, committing acts of hostility upon the 
 high seas against citizens of the United States, find protection 
 under a commission from an independent government within the 
 territory of the United States, which he is bound to know, and 
 our courts are bound to hold, to be illegal. 
 
 3 
 
18 
 
 The laws of foreign countries are treated in our courts as 
 facts, the ignorance of which may be excusable. But the igno¬ 
 rance, whether wilful or accidental, of our own Constitution and 
 laws, is no excuse in our Courts. Juris ignorantia est cum jus 
 nostrum ignoramus. 
 
 . Church vs. Hubbart, 2 Cranch, 236. 
 
 Haven vs. Foster, 9 Pick. 130. 
 
 “ Ignorance or mistake is another defect of will; when a man, 
 intending to do a lawful act, does that which is unlawful.” “ But 
 this must be an ignorance or mistake of fact, and not an error in 
 point of law.” “ If a man thinks he has a right to kill a person 
 excommunicated or outlawed, wherever he meets him, and does 
 so, this is wilful murder. For a mistake in point of law, which 
 every person of discretion not only may, but is bound and 
 presumed to know, is, in criminal cases, no sort of defence. 
 Ignorantia juris, quod quisque tenetvr scire , neminem excusat , 
 is as well the maxim of our own law as it was of the Roman.” 
 
 4 Bl. Com. 27. 
 
 So it is no excuse for killing a man in a duel, and no reason 
 for admitting the murderers to bail, that they were foreigners, 
 ignorant that by the law of England it was murder; and that, by 
 their own law, killing under such circumstances would not be 
 murder. In Re Barronet & others, 1 El. & Bl. 1. 
 
 And courts are obliged to hold men guilty for transgressions 
 of a statute which could not possibly have been known to them at 
 the time of the offence, because they were on the high seas, or 
 had left port too soon after its enactment. 
 
 Rex vs. Bailey, Russ. & Ry. 1. 
 
 . The Ann, 1 Gallis. 62. 
 
 4. A sufficient Criminal Intent. 
 
 It is argued for the defendants (p. 3), that here was no 
 animus furandi; that “ the purpose was to destroy, and not 
 to appropriate; and the defendants offered to prove that what 
 was done was for the purpose of prosecuting the civil war. At 
 
19 
 
 all events, the animus furandi, being a most material fact, should 
 be passed upon by the jury.” In answer to which — 
 
 (1.) It might be siifficient to say, that the defendants did not 
 ask to have that question put to the jury, but submitted all the 
 evidence to the Court. 
 
 (2.) The acts of the officers of the Sumter were such as to 
 raise a presumption, which, if not conclusive of felonious intent, 
 was sufficient, in the absence of controlling evidence. 
 
 (3.) The best authorities do not (as the learned counsel 
 contends) make “the animus furandi a most material fact,” even 
 in criminal prosecutions for piracy, much less in civil proceedings. 
 
 See the authorities collected, ante , 8, 10, 11; post , 22, 23. 
 
 (4.) The intent entirely to deprive the owner of his pro¬ 
 perty is all that is required, even to constitute the crime of 
 larceny; and it is immaterial whether the thief appropriates, or 
 intends to appropriate, the property, or gives it to another person, 
 or destroys it. 
 
 Out of a multitude of cases on this subject, only a few are 
 cited, that were determined by all the judges of England. 
 
 Seamen, rising in order to redress grievances, and not to run 
 away with the ship, are none the less pirates. 
 
 Rex vs. Hastings, 1 Moody C. C. 82. 
 
 A pilot, taking away, by collusion with the master of a ship, a 
 cable and anchor, not for the purpose of defrauding the owners 
 of the ship, but for the purpose of defrauding the underwriters 
 for their benefit, is guilty of “ feloniously and piratically steal¬ 
 ing.” Rex vs. Curling, Russ. & Ry. 123. 
 
 Servants, taking oats of their master with the intent to give 
 them to their masters’ horses, although they are not responsible 
 for the condition of the horses, and have no intent to apply the 
 oats to their own use, are guilty of larceny. 
 
 Regina vs. Privett, 2 Car. & Kirw. 114. 
 
20 
 
 And a maidservant, who, having been promised a place if 
 a satisfactory answer should be returned by her former mistress 
 to an inquiry about her character, took the letter containing such 
 inquiry out of the post-office, and burned it, was held guilty of 
 larceny. Regina vs. Jones, 2 Car. & Kirw. 236. 
 
 (5.) The commission of one crime is not excused by an in¬ 
 tent to commit another equally heinous. 
 
 Lord Bacon tells us, 11 In criminalibus svfficit generalis malilia 
 intentionis cum facto paris gradus. All crimes have their con¬ 
 ception in a corrupt intent, and have their consummation and 
 issuing in some particular fact; which though it be not the fact 
 at the which the intention of the malefactor levelled, yet the law 
 giveth him no advantage of the error, if another particular ensue 
 of as high a nature.” Maxims of the Law, reg. 15. 
 
 So Serjeant Hawkins says, “ It is a general rule, that wher¬ 
 ever a man, intending to commit one felony, happens to commit 
 another, he is as much guilty as if he had intended the felony 
 which he actually commits.” 1 Hawk. c. 29, § 11. 
 
 The defence may be likened to the case in which two men, 
 indicted for an assault with intent to maim and disfigure, con¬ 
 tended that their intention was to murder, and not to maim. But 
 Chief Justice King instructed the jury, “ If the intention was to 
 murder, you are to consider whether the means made use of in 
 order to effect and accomplish that murder, and the consequences 
 of those means, were not in the intention and design of the party; 
 and whether every blow and cut, and the consequences thereof, 
 were not intended, as well as the end for which it is alleged those 
 blows and cuts were given.” 
 
 Trial of Woodbourne & Coke, 16 Howell’s State Trials, 81. 
 
 Upon like principles, the Supreme Court of Massachusetts 
 has decided, that proof that au offence was murder is no defence 
 to an indictment for manslaughter; and that a complaint for an 
 assault with a weapon not dangerous to life is supported by evi¬ 
 dence of an assault with a dangerous weapon. 
 
 Commonwealth vs. M‘Pike, 3 Cush. 181. 
 
 Commonwealth vs. Burke, 14 Gray, 100. 
 
21 
 
 Yet the purpose of the Sumter’s men^ the learned counsel 
 says, was “ only to prosecute a civil war against the Govern¬ 
 ment of the United States;” which is but saying — only to prose¬ 
 cute the highest crime known to the law, in the only manner in 
 which, under the Constiution, it could be committed. 
 
 U.S. Constitution, art. 3, § 3 ; ante , 13. 
 
 The result of the defendants’ argument would seem to be, 
 that treason wipes out piracy, and that traitors cannot be 
 pirates. 
 
 5. Orders of a Superior no Justification. 
 
 The officers and crew of the Sumter could find no protection 
 in their orders or commissions. 
 
 Even officers and magistrates, acting according to the express 
 directions of a statute, are liable to an action, if the statute is 
 unconstitutional. 
 
 Fisher vs. McGii’r, 1 Gray, 48. 
 
 Kelly vs. Bemis, 4 Gray, 83. 
 
 And instructions of a lawful military superior, or of the Pre¬ 
 sident of the United States himself, in excess of his constitution¬ 
 al and legal power, will not justify an inferior officer. 
 
 Little vs. Barreme, 2 Cranch, 179. 
 
 Mitchell vs. Harmony, 13 How. 137. 
 
 As Judge Washington said, “ No military or civil officer can 
 command an inferior to violate the laws of his country; nor will 
 such command excuse, much less justify, the act. Can it be for 
 a moment pretended, that the general of an army, or the com¬ 
 mander of a ship of war, can order one of his men to commit 
 murder or felony ? Certainly not.” 
 
 United States vs. Jones, 3 Wash. C. C. 220. 
 
 But, in the case at bar, the givers and the holders of the com¬ 
 mission were alike rebels and traitors, acting in open violation of 
 the Constitution, and opposition to the laws of the United States. 
 
The argument that seeks to protect the Sumter’s men from 
 the charge of piracy, by a commission from Jefferson Davis, 
 is much the same as the English argument, that Andr6 was not a 
 spy, because he had a pass from Benedict Arnold. Of which 
 General Halleck well says, “ His defenders seem to forget, that 
 the passport of a traitor, given for treasonable purposes, could 
 afford no protection.” 
 
 Halleck’s International Law, c. 16, § 27. 
 
 6. Piracy in Civil Causes. 
 
 But the question in this case is, not who might be punished, 
 but what was the nature of the act; and, whatever may be the 
 definitions of criminal jurisprudence, the words “piracy” and 
 “ piratical,” in applying the law of nations as between individuals, 
 do not necessarily imply an intent to steal, but include any un¬ 
 authorized depredation on the high seas. 
 
 On an application to the High Court of Admiralty, “ in a 
 cause of piracy, civil and maritime,” in behalf of the King of 
 Spain and some of his subjects, to receive out of the registry of the 
 court the proceeds of a vessel and cargo, as having been seized 
 by British subjects on the high seas, under a commission from 
 Buenos Ayres, then a rebellious province of Spain, which had 
 been recognized by England as a belligerent, Lord Stowell said, 
 “ The question is, whether the court has authority to entertain 
 such a cause. The question must be understood to refer to piracy 
 in its simple and ordinary sense.” “ The present inquiry relates 
 to piracy as understood in the general law of nations, and as con¬ 
 sisting, so far as the present application is concerned, in an unwar¬ 
 rantable violation of property committed upon the high seas.” 
 
 The Hercules, 2 Dods. 368, 370. 
 
 So a claim by American citizens against a Spanish vessel, 
 which they had seized under a commission from the insurgent 
 Government of Buenos Ayres, for taking which, as the treaty be¬ 
 tween the United States and Spain declared, they should be 
 punished as pirates, was dismissed by the Supreme Court of the 
 
23 
 
 United States, upon tlie ground, that, whatever difficulties might 
 exist in “ punishing such aggressions as acts of piracy, it is not 
 to be questioned that they are prohibited acts, and intended to 
 be stamped with the character of piracy.” 
 
 The Bello Corrunes, 6 Wheat. 171. 
 
 Upon a libel under the Act of Congress of 1819, c. 77, § 4, 
 against a vessel as used in a “ piratical aggression or depreda¬ 
 tion ” (which had, in fact, done much less than the Sumter in 
 this case), Judge Story, in delivering the opinion of the Supreme 
 Court of the United States, said, “ The argument for the claim¬ 
 ants seems to suppose, that the act does not intend to punish any 
 aggression, which, if carried into complete execution, would not 
 amount to positive piracy in contemplation of law ; that it 
 must be mainly, if not exclusively, done animo furandi or lucri 
 causa; and that it must unequivocally demonstrate, that the 
 aggression is with a view to plunder, and not for any other pur¬ 
 pose, however hostile or atrocious or indispensable [indefensible ?] 
 such purpose may be. We cannot adopt any such narrow and limit¬ 
 ed interpretation of the words of the act; and, in our judgment, 
 it would manifestly defeat the objects and policy of the act, which 
 seems designed to carry into effect the general law of nations on 
 the same subject in a just and appropriate manner. Where the £ict 
 uses the word ‘ piratical,’ it does so in a general sense, import¬ 
 ing that the aggression is unauthorized by the law of nations, hos¬ 
 tile in its character, wanton and criminal in its commission, and 
 utterly without any sanction from any public authority or so¬ 
 vereign power.” 
 
 The Malek Adhel, 2 How. 232. 
 
 7. Pirates and Assailing Thieves by the Law of Insurance. 
 
 In a policy of insurance, the word “ pirates,” in its usual 
 connection with “ assailing thieves,” has always received a very 
 liberal construction. 
 
 The best modern text-writers on the law of insurance agree, 
 that, under this clause, underwriters are liable for piracy or 
 
24 
 
 robbery, or plunder by force, either by persons not belonging to 
 the vessel or by the mariners belonging to it, where it could not 
 have been prevented by reasonable precautions. 
 
 1 Phil. Ins. § 1106, and authorities cited. 
 
 3 Kent Com. (6th ed.) 303, and authorities. 
 
 2 Arnould Ins. § 306. 
 
 Where a vessel with a cargo of corn was driven into a port, 
 and there seized by a mob, who assumed the government of her, 
 and forced the captain to sell the corn at a low price, Lord Ken¬ 
 yon was of opinion that this was a loss by pirates. 
 
 Nesbit vs. Lushington, 4 T.R. 787. 
 
 So the loss of a ship by the insurrection of a cargo of con¬ 
 victs is a loss by pirates, within the meaning of a policy of 
 insurance. 
 
 The General Wood, Perry’s Oriental Cases, 297. 
 
 And the English Courts of Exchequer and Exchequer Cham¬ 
 ber both held that a loss by insurrection of Coolie passengers 
 might be recovered under a declaration for loss by piracy and 
 theft, notwithstanding the suggestion of counsel, that “ this act 
 does not fall within the definition of piracy, as given by the most 
 celebrated text-writers.” 
 
 Naylor vs. Palmer, 8 Excli. 739, 750; 10 Exch. 382, 385, 389. 
 
 The case has been thus far discussed as if all the evidence of¬ 
 fered by the defendants had been introduced. 
 
 8. A Question for Governments, and not for Courts. 
 
 But that evidence was rightly rejected, because it concerned 
 a question which was not to be decided by the courts of justice, 
 but by the political department of the Government. 
 
 Lord Chief Justice Eyre, upon an indictment for treason, said 
 that the proposition, “ that a people had a right to alter their 
 government,” “ ought not to have been introduced into a court 
 
25 
 
 of justice, bound to administer tlie law of the existing Govern¬ 
 ment, and to suffer no innovation upon it.” 
 
 Hardy’s Trial, 24 Howell’s State Trials, 1371. 
 
 Lord Stowell defined the relation of Great Britain and other 
 neutral powers to the Spanish-American Provinces, during their 
 war of independence, thus : “ Orders have been issued to observe 
 what is termed a neutrality between the Crown of Spain, and 
 communities, which, till they are acknowledged by other govern¬ 
 ments., are , upon all the ordinary principles of law , in peril of 
 being considered as mere insurgents by the tribunals of those 
 governments which have not acknowledged them. No man can 
 take upon himself to say, that it belongs to those tribunals to 
 determine the question of independence, upon which their own 
 governments find it necessary to be silent. There may be, and 
 is, a time at which insurrection is legitimated: but it is not for 
 foreign courts of justice , but for foreign governments , to deter¬ 
 mine when that time is arrived ; at least, so far as their own tri¬ 
 bunals are to act upon transactions respecting them. The 
 tribunals themselves have neither competency of knowledge, nor 
 authority, for such a purpose.” 
 
 The Hercules, 2 Dods. 360. 
 
 The English courts, in cases which came before them some 
 time after the treaty of peace of 1783, relating to matters which 
 took place in the United States after the Declaration of Inde¬ 
 pendence and before that treaty, went much further than is 
 necessary for this case. 
 
 The Court of King’s Bench held, that a confiscation under an 
 act of New York, passed in 1779, and an entry under the title 
 thereby acquired, were no breach of covenants of seisin and 
 quiet enjoyment in a conveyance of land in New York; and that 
 such acts of confiscation must be held by the English courts null 
 and void. 
 
 Dudley vs. Folliott, 3 T. R. 581. 
 
 Ogden vs. Folliott, 3 T. R. 726. 
 
 4 
 
26 
 
 Lord Kenyon said, “ That Province set about a reform, and 
 to assert what is called their rights, but which I, sitting here, am 
 bound to say was an act of rebellion against the sovereignty of 
 the State, and that their act was illegal at that time, whatever 
 confirmation it might afterwards receive there by the subsequent 
 treaty of peace.” 3 T. R. 732. 
 
 So it was held by the Court of Chancery, that bank stock in 
 England, held by trustees of the Province of Maryland, appointed 
 before the Revolution, could not be recovered by the State of 
 Maryland after the treaty of peace, upon the ground, as stated 
 by Lord Eldon, that “ that State [meaning the Province] was 
 only a corporation under the great seal, dissolved by means which 
 a court of justice was obliged to consider rebellious ; and then the 
 transfer of title from the State of Maryland to any other State 
 was a question a court of justice could look at, as a question of 
 law, only one way : and the principle was, that the Court could 
 not admit that the title passed to the independent States of Ame¬ 
 rica by an act which we were obliged to call rebellion.” 
 
 Barclay vs. Russell, 3 Yes. 424. 
 
 Dolder vs. Lord Hunting-field, 11 Yes. 294. 
 
 Chief Justice Marshall, in the leading American case, states 
 the facts and lays down the law thus: 11 The colony of St. Do¬ 
 mingo, originally belonging to France, had broken the bond which 
 connected her with the parent State, had declared herself inde¬ 
 pendent, and was endeavoring to support that independence by 
 arms. France still asserted her claim of sovereignty, and had 
 employed a military force in support of that claim. A war de 
 facto then unquestionably existed between France and St. Do¬ 
 mingo. It has been argued, that the colony, having declared 
 itself a sovereign State, and having thus far maintained its sove¬ 
 reignty by arms, must be considered and treated by other nations 
 as sovereign in fact, and as being entitled to maintain the same 
 intercourse with the world that is maintained by other belligerent 
 nations. In support of this argument, the doctrines of Vattel 
 have been referred to. But the language of that writer is evidently 
 
27 
 
 addressed to sovereigns, not to courts. It is for governments to 
 decide whether they will consider St. Domingo as an independent 
 nation ; and until such decision shall be made, or Prance shall 
 relinquish her claim, courts of justice must consider the ancient 
 state of things as unaltered, and the sovereign power of France 
 over that colony as still subsisting.” 
 
 Rose vs. Himely, 4 Cranch, 272. 
 
 “ No doctrine is better established, than that it belongs exclu¬ 
 sively to governments to recognize new States in the revolutions 
 which may occur in the world; and until such recognition, either by 
 our own government or the government to which the new State 
 belonged, courts of law are bound to consider the ancient state of 
 things as remaining unaltered.” 
 
 Gelston vs. Hoyt, 3 Wheat. 324. 
 
 See also United States vs. Palmer, 3 Wheat. 634, 035. 
 
 Williams vs. Suffolk Ins. Co., 3 Sumner, 273; 13 Pet. 420. 
 
 Halleck’s International Law, c. 3, § 22. 
 
 So the boundaries of the United States, and the rightful 
 Governments of the several States, must be ascertained and 
 determined by the political, and not the judicial, department of 
 the Government. 
 
 Foster vs. Elam, 2 Pet. 309. 
 
 Garcia vs. Lee, 12 Pet. 517. 
 
 Luther vs. Borden, 7 How. 42, 43. 
 
 Perhaps the most striking application of this doctrine is to be 
 found in a suit to enforce a contract, the consideration of which 
 was advances made in the United States to secure by arms the 
 independence of Texas; which was dismissed by the Supreme 
 Court of the United States, upon the ground that Texas had not, 
 at the time of the making of the contract, been recognized by the 
 United States as an independent State; although it was acknow¬ 
 ledged as such within six months afterwards, (and it was strenu¬ 
 ously argued that such acknowledgment did not fix the date of 
 actual independence,) and, long before the argument, had been 
 admitted into the Union as a State. 
 
 Kenneth vs. Chambers, 14 How. 38, 43, 51. 
 
•is 
 
 It has also been determined by the Supreme Court of the 
 United States, that what is declared piracy by the treaties or 
 statutes of the United States must be deemed such by the courts, 
 at least in civil proceedings. 
 
 The Bello Corrunes, 6 Wheat. 171. 
 
 The defendants, in one paragraph of their argument, seem to 
 admit this doctrine; and, in the next, seek to qualify it thus : 
 “ Such a cruising, concerning which the political departments 
 have such an election, is not piracy, within the meaning of a 
 policy of insurance” (p. 4). 
 
 But the authorities just cited do not allow courts of justice, 
 while the contest is going on, and before any step has been taken 
 by the Government, to consider any question of right as in doubt 
 between the contending parties ; but oblige them to “ consider 
 the ancient state of things as unaltered.” 
 
 And this doctrine, established by repeated decisions of the 
 Supreme Court of the United States, applies with peculiar force 
 to a rebellion, within the territory of the Union, by its own citi¬ 
 zens, seeking to overthrow its Constitution, and to establish a 
 foreign power within its limits. 
 
 9. How TREATED BY THE GOVERNMENT. 
 
 The defendants assert, that, “ thus far,” “ those engaged 
 in cruising against the commerce of the United States, under 
 Confederate commissions,” “ have been treated as waging war, 
 and not as pirates ” (p. 4). But, though the right of referring 
 to any public document of the United States is reserved by the 
 report (p. 4), the defendants have not referred to a single docu¬ 
 ment or public act to support this position ; and a reference to 
 a very few acts of the Government will show that they have been 
 treated as both. 
 
 On the 4th of March, 1861, the President, in his Inaugural 
 Address, declared that he held, “ that, in the contemplation of 
 
29 
 
 universal law and of the Constitution, the Union of these States 
 is perpetual.” On the 15th of April, he issued his proclamation, 
 reciting that the laws of the United States were opposed, and the 
 execution thereof obstructed, in some of the States of the Union, 
 “ by combinations too powerful to be suppressed by the ordinary 
 course of judicial proceedings, or by the powers vested in the 
 marshals by law; ” and therefore calling out the militia, in order 
 to suppress said combinations, and to cause the laws to be duly 
 executed ; and convening Congress on the 4th of July, “ to con¬ 
 sider and determine such measures as, in their wisdom, the public 
 safety and interest may seem to demand.” On the 19tli of the 
 some month, he issued another proclamation, by which, after 
 reciting the breaking out of “ an insurrection against the Govern¬ 
 ment of the United States;” the issue of his former proclama¬ 
 tion ; and that “ a combination of persons engaged in such 
 insurrection have threatened to grant pretended letters of marque, 
 to authorize the bearers thereof to commit assaults on the lives, 
 vessels, and property of good citizens of the country, lawfully 
 engaged in commerce on the high seas and in waters of the 
 United States ; ” he declared a blockade of the ports within those 
 States, (extended on the 27th of April to Virginia and North 
 Carolina,) for the purpose of repressing the insurrection; and 
 that “ if any person , under the pretended authority of said 
 States , or under any other pretence , shall molest a vessel of the 
 United States, or the persons or cargo on hoard of her , such per¬ 
 son will he held amenable to the laivs of the United States for 
 the prevention and punishment of piracy .” On the 3d of May, 
 he called out an additional military force, “ for the protection of 
 the National Constitution, and the preservation of the National 
 Union, by the suppression of the insurrectionary combinations 
 now existing in several States for opposing the laws of the Union, 
 and obstructing the execution thereof.” 
 
 11 U.S. Sts. at Large, Appendix, i-iv. 
 
 At the time of the loss of the Golden Rocket, July 3, 1861, 
 such was the position of the Government of the United States, 
 and Congress had not yet assembled. It may well be doubted, 
 
30 
 
 whether subsequent acts can vary the rights of the parties under 
 this contract of insurance. 
 
 See English cases cited, ante , 25, 26. 
 
 The Pelican, Edw. Adna. It. appendix, D. 
 
 Kennett vs. Chambers, 14 How. 51 ; stated ante, 27. 
 
 But the subsequent acts of the Executive and Congress pro¬ 
 ceed upon the same principle. 
 
 Acts of Congress of July Session, 1881, c. 9, § 1 ; c. 24, § 6; 
 cc. 25, 28, 33, 35 ; c. 45, §§ 8, 52 ; cc. 47, 48 ; 11 U.S. Sts. 
 at Large, 268, 281, 283, 284, 285, 295, 311, 314. 
 President’s Proclamation of Aug. 16,1861, (11 U.S. Sts. at Large, 
 Appendix, v.,) and Messages of July and December, 1861. 
 
 See also Confiscation Acts of July Session, 1861, c. 60 (11 
 U.S. Sts. at Large, 319), and July 17, 1862. 
 
 The Acts of Congress of the present session, containing simi¬ 
 lar provisions, are not yet in a shape to be conveniently referred 
 to. But that no change has taken place in the position of the 
 Government is sufficiently shown by the report of the committee 
 on commerce of the United States Senate, upon a resolution in¬ 
 structing them to inquire whether any legislation was necessary in 
 relation to vessels of loyal American citizens taken by the rebels, 
 and retaken from them. This committee, in their report made 
 by Senator Morrill on the 12th of June, 1862, after an elaborate 
 examination of the subject, state the argument, “ that these 
 States are entitled, for the time being at least, to the rights of 
 lawful belligerents; that they may rightfully capture and confis¬ 
 cate vessels of our citizens, without subjecting the captors to 
 the penalties of piracy under the laws of the United States.” 
 In answer to this, the committee quote the President’s pro¬ 
 clamation of April 19, 1851, (above referred to,) as “ a fresh 
 pledge of the national faith to each citizen, that the law of 
 piracy would be enforced against the domestic enemy, and that 
 property and the rights of property would be protected to the 
 loyal citizen; ” and conclude that the property of citizens of 
 the United States, employed in lawful trade, could not “ become 
 
31 
 
 prize of war by the acts of its own citizens,” and that all claims 
 “ for prizes or salvage, on vessels of citizens retaken from the 
 rebels by public vessels of the United States, or vessels acting- 
 under authority thereof,” were unauthorized. And the com¬ 
 mittee reported a bill to secure the rights of the original owners, 
 which is believed to have since passed both houses, and been ap¬ 
 proved by the President. 
 
 10. The United States Sovereign as well as Belligerent. 
 
 The facts, that the ordinary process of the courts is powerless 
 to suppress this rebellion ; that it has assumed the proportions of 
 war, and must be dealt with by the sword; that the Govern¬ 
 ment of the United States is meeting and subduing it accordingly, 
 and, in so doing, seeks to secure all legitimate advantages, and 
 avoid unnecessary cruelty ; and that the President, in the exercise 
 of his executive functions, may see fit, for reasons of policy, to 
 discharge the accused, or pardon the guilty ; give no rights 
 to the rebels nor their pretended government, nor to any one 
 claiming under them or their acts. Upon this point, the practice 
 of nations and the decisions of the courts of the United States 
 are alike conclusive. 
 
 Even in the American Revolution, which was deemed by the 
 English Government a rebellion in the strictest sense, and which, 
 as we have seen {ante, 25, 26), was so treated by their courts long- 
 after the Independence of the United States had been recognized 
 by treaty, exchanges of prisoners (including privateersmen) were 
 freely made, without its ever being contended that any rights had 
 been thereby waived on either side ; as has been conclusively 
 shown in the Report of a Committee of the Massachusetts Histori¬ 
 cal Society, consisting of Mr. Sparks, Mr. Everett, Mr. George T. 
 Curtis, and others; and in a letter of Mr. Bancroft to the Presi¬ 
 dent of the New York Historical Soeiety. 
 
 Mass. Hist. Soc. Proceedings, December, 1861. 
 
 Report of Committee, &c., pp. 6, 8, 9, 10, 17, 21, 23, 25. 
 
 6 New York Historical Magazine, 96-99. 
 
The defendants, following Chief Justice Marshall, admit “ a 
 sovereign, who is endeavoring to reduce his revolted subjects 
 to obedience, to possess both sovereign and belligerent rights, and 
 to be capable of acting in either character.” And that great 
 judge declared, in the same connection, “ It is not intended to say 
 that belligerent rights may not be superadded to those of sove¬ 
 reignty.” 
 
 Rose vs. Himely, 4 Cranch, 272. 
 
 See also Cheriot vs. Foussat, 3 Binn. 253. 
 
 Since the loss of the Golden Rocket, cruisers under commis¬ 
 sions from the so-called Confederate States have been indicted by 
 the officers of the Government, and tried in the courts of the 
 United States for the Districts of New York and Pennsylvania, for 
 piracy, and one of them convicted. 
 
 Pamphlet Trial of William Smith, Philadelphia, 1861. 
 
 Trial of the Savannah Privateersmen, New York, 1862. 
 
 The opinions of the courts of the United States during the 
 present rebellion are of the very highest authority upon these 
 questions, and supersede the necessity of any further argument 
 of this branch of the case. 
 
 In the trial of Smith, in October, 1861, Judge Grier said, in 
 charging the jury, “ 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 as such. Consequently, this Court, 
 sitting here to execute the laws of the United States, can view 
 those in rebellion against them 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 sea, as pirates 
 and robbers.” 
 
Judge Cadwallader added, “ The commission of a revolu¬ 
 tionary government, whose existence is not recognized by that 
 of the United States, can confer no such authority as will change 
 the legal character of piracy, by merely giving to it the name 
 and form of privateering.” 
 
 Smith’s Trial, 96, 99. 
 
 In the case of the Savannah privateersmen, Judge Nelson, in 
 answer to the position, that, in the existing war, a commission of 
 the Confederate States, by their president, Jefferson Davis, to an 
 armed vessel, “ affords a defence according to the law of nations, 
 in the courts of the enemy, against a charge of robbery or piracy 
 on the high seas, of which they might be guilty in the absence of 
 such authority,” instructed the jury, that “this branch of the 
 defence involves considerations that do not belong to the courts 
 of this country.” He then stated the doctrines established by 
 the decisions already cited, and added, “And if this is the rule 
 of the Federal courts in the case of a revolt and erection of a new 
 government, as it respects foreign nations, much more is the rule 
 applicable when the question arises in respect to a revolt and the 
 erection of a new government within the limits and against 
 the authority of the government under which we are engaged 
 in administering her laws. And, in this connection, it is proper 
 to say, that as the Confederate States must first be recognized by 
 the political departments of the mother government, in order to 
 be recognized by the courts of the country (namely, the legisla¬ 
 tive and executive departments), we must look to the acts of these 
 departments as evidence of the fact. The act is the act of the 
 nation through her constitutional public authorities.” 
 
 Trial of Savannah Privateersmen, 371, 372, 373. 
 
 At May Term, 1861, of the Circuit Court of the United States 
 for the District of Massachusetts, Judge Sprague charged the 
 grand jury thus: “ Suppose that a number of States undertake 
 bv revolution to throw off the Government of the United States, 
 and erect themselves into an independent nation, and assume in 
 
34 
 
 that character to issue commissions authorizing the capture of 
 vessels of the United States: will such commissions afford any 
 protection, to those acting under them, against any penal laws of 
 the United States ? Cases have heretofore arisen, where a portion 
 of a foreign empire, a colony, has undertaken to throw off the 
 dominion of the mother country, and assumed the attitude and 
 claimed the rights of an independent nation; and in such cases 
 it has been held, that the relation which the United States should 
 hold to those who thus attempt and claim to institute a new 
 government is a political rather than a legal question; that if 
 those departments of our government which have a right to give 
 the law, and which regulate our foreign intercourse, and deter¬ 
 mine the relation in which we shall stand to other nations, 
 recognize such new and self-constituted government -as having 
 the rights of a belligerent in a war between them and their 
 former rulers, and the United States hold a neutral position in 
 such war, then the judiciary, following the other departments, 
 will, to the same extent, recognize the new nation. 
 
 “ But if the legislative and executive departments of the go¬ 
 vernment utterly refuse to recognize such new government, or to 
 acknowledge it as having any belligerent or national rights, and, 
 instead of taking a neutral attitude, endeavor by force to suppress 
 depredations on commerce by such assumed government, as vio¬ 
 lating the rights and infringing the laws of the United States, 
 then the judiciary will hold, that such depredations are not to be 
 considered as belligerent and entitled to the immunities of law¬ 
 ful war, but as robbery or other lawless depredations, subject to 
 the penalties denounced by our laws against such offences. The 
 judiciary certainly cannot adopt a more indulgent rule towards 
 those who are in open rebellion against the authority of the 
 United States, or towards aliens co-operating with and acting 
 under the assumed authority of such rebels. While the other 
 departments of the government and the nation refuse to regard 
 any State, or association of States, as having the rights of a bel¬ 
 ligerent, or as carrying on legitimate war, and are exerting not 
 only moral but physical force against them as rebels, and lawless 
 
35 
 
 aggressors upon the United States and its citizens, the courts also 
 must so regard them, and cannot admit that any legislation or 
 assumption of power by such State or States can authorize acts 
 in violation of the laws of the United States, or change the cha¬ 
 racter of offences under them.” 
 
 Charge upon the Law of Piracy, 24 Law Reporter, 17,18. 
 
 In a prize cause in the District Court of the United States for 
 the same District, a year later, Judge Sprague said, “ Some have 
 thought, that, because the rebels are traitors, their hostilities can¬ 
 not be deemed war, in the legal or constitutional sense of that 
 term; but, without such war, there can be no traitors. Such is 
 the clear language of the Constitution. It declares that treason 
 against the United States ‘ shall consist only in levying war 
 against them, or in adhering to their enemies, giving them aid 
 and comfort.’ Some have apprehended, that, if this conflict of 
 arms is to be deemed war, our enemies must have, against the 
 Government, all the immunities of international belligerents. 
 But this is to overlook the double character which these enemies 
 sustain. They are at the same time belligerents and traitors, and 
 subject to the liabilities of both; while the United States sustain 
 the double character of a belligerent and sovereign, and have the 
 rights of both. These rights co-exist, and may be exercised at 
 pleasure. Thus we may treat the crew of a rebel privateer 
 merely as prisoners of war, or as pirates or traitors; or we may, 
 at the same time, give to a part of the crew the one character, 
 and to the residue the other; and, after treating them as prison¬ 
 ers of war, we may exercise our sovereign power, and deal with 
 them as traitors. The temporary non-user of such rights is not 
 a renunciation of them ; but they may be called into practical ex¬ 
 ercise at pleasure. In modern times, if a rebellion has assumed 
 such dimensions as to raise armies and involve great numbers, it 
 has not been usual, during the contest, to exercise towards pri¬ 
 soners the sovereign right of dealing with them as traitors. They 
 have generally been treated as prisoners of war until the contest 
 is over. But this forbearance does not preclude their govern- 
 
36 
 
 ment from afterwards inflicting such punishment as justice and 
 policy may require.” 
 
 The Amy Warwick, 24 Law Reporter, 344. 
 
 In summing up this part of the argument, the plaintiffs re¬ 
 spectfully, but confidently, contend, that the officers and crew of 
 the Sumter were pirates by the municipal law, and by the law 
 of nations, according to the rules either of criminal or of civil 
 jurisprudence; that their pretended commissions were no defence; 
 that their being rebels and traitors did not make them less 
 pirates ; that their position is to be ascertained by the political, 
 and not by the judicial, department of the Government; that the 
 rights of sovereignty are not impaired by being vindicated in arms, 
 and according to the usages of civilized warfare; and that in the 
 view of the only department authorized by the law of nations, 
 and the Constitution of the United States, to determine this ques¬ 
 tion, those who took the plaintiffs’ vessel were rebels, traitors, and 
 pirates, or, in the words of the policy, “ pirates and assailing 
 thieves.” 
 
 II. THIS PIRATICAL TAKING WAS NOT A CAPTURE, SEIZURE, 
 OR DETENTION, WITHIN THE MEANING OF THE EXCEP¬ 
 TION IN THE MARGIN OF THE POLICY. 
 
 This question is much simpler, and may be disposed of 
 more •briefly. All the authorities cited by the defendants may 
 be easily distinguished, and shown to be inapplicable, except one; 
 and that one, the plaintiffs hope to he able to show, is by no means 
 so formidable, or so directly in point, as the defendants assert. 
 
 In the body of the policy are specified (aside from the ele¬ 
 ments, and “ barratry,” which may be laid out of this case) two 
 classes of risks : 
 
 First , From acts of governments — “enemies,” “restraints 
 and detainments of all kings, princes, and people, of what nation 
 or quality soever.” 
 
37 
 
 Second , From individual depredation — “ pirates, assailing 
 thieves.” 
 
 Chancellor Kent lays down this distinction in the most expli¬ 
 cit terms: “ The enumerated perils of the sea, pirates , rovers , 
 thieves , include the wrongful and violent acts of individuals, 
 whether in the open character of felons, or in the character of a 
 mob, or as a mutinous crew, or as plunderers of shipwrecked 
 goods on shore.” “ But the stipulation of indemnity against 
 takings at sea , arrests , restraints and detainments of all kings , 
 princes , and people , refers only to the acts of government for 
 government purposes, whether right or wrong.” 
 
 3 Kent Com. (6th ed.) 303. 
 
 And the later writers on the law of insurance make the same 
 classification. 
 
 1 Phil. Ins. §§ 1106, 1108. 
 
 2 Arnould on Ins. §§ 303, 305, 306. 
 
 Maude & Pollock on Shipping, 23, 231, 232. 
 
 2 Parsons Marit. Law, 236, 246. 
 
 In order to ascertain what risks in the policy the words in the 
 margin are to be construed to refer to and limit, it is necessary to 
 ascertain, 
 
 1st, The meaning of the general words in the body of the 
 policy; 
 
 2d, The meaning of those in the marginal exception; 
 
 3d, The rule of construction in applying such an exception 
 to the body of the policy. 
 
 The words in the policy, defining in general the risks as¬ 
 sumed, must be taken first. 
 
 1. “Enemies.” 
 
 “ Enemies ” are evidently governments, vested, according to 
 the law of nations, with belligerent power. 
 
38 
 
 2. “Restraints and Detainments of Kings, Princes, and People.” 
 
 It is perfectly well settled, that the words 44 arrests, re¬ 
 straints, and detainments of kings, princes, and people, of what 
 nation, condition, or quality soever,” extend only to acts of the 
 supreme ruling power of the country. They were doubtless 
 originally inserted with the view of enumerating all possible 
 forms of government, monarchical, aristocratical, and demo¬ 
 cratic. 
 
 In the leading case on this subject, Lord Kenyon and Mr. 
 Justice Bullerboth much relied on the maxim, Noscitur a sociis; 
 and the latter said, “ ‘ People’ means 4 the supreme power,’ ‘ the 
 ruling power of the country,’ whatever it may be. This appears 
 clear from another part of the policy ; for, where the underwriters 
 insure against the wrongful acts of individuals, they describe 
 them by the names of ‘ pirates, rogues, thieves: ’ then, having 
 stated all the individual persons against whose acts they engage, 
 they mention other risks, those occasioned by the acts of ‘ kings, 
 princes, and people , of what nation, condition, or quality so¬ 
 ever.’ Those words therefore must apply to ‘ nations ’ in then- 
 collective capacity.” 
 
 Nesbit vs. Lushington, 4 T. R. 788. 
 
 Even 44 unlawful arrests, &c., of all kings, princes, and peo¬ 
 ple,” &c., Judge Story says, 44 have always been held to mean the 
 arrests of kings, princes, or people, in their sovereign and na¬ 
 tional capacity, and not as individuals.” 
 
 M‘Call vs. Marine Ins. Co., 8 Cranch, 66. 
 
 See also Gracie vs. New York Ins. Co., 13 Johns. 170. 
 
 Oliveira vs. Union Ins. Co., 3 Wheat. 189, 190. 
 
 The language of Chief Justice Marshall, in this last case, is a 
 safe guide in the case at bar: “Although the word, as usually 
 understood, would seem to comprehend the case, yet this mean¬ 
 ing cannot be sustained, if, in policies, it has uniformly received 
 a different construction. The form of this contract has been long 
 settled; and the parties enter into it without a particular con¬ 
 sideration of its terms. Consequently, no received construction 
 of those terms ought to be varied.” 
 
39 
 
 3. “Pirates and Assailing Thieves.” 
 
 The meaning of the words “ pirates and assailing thieves ” 
 has already been sufficiently discussed in the first branch of this 
 argument. 
 
 It may, however, conveniently be added here, by way of con¬ 
 nection with the words remaining to be defined, that, by the law 
 of England, these are “ perils of the sea,” and need no special 
 stipulation to meet them. 
 
 Bright vs. Cowper, 1 Brownl. 21. 
 
 Pickering vs. Barkley, Style, 132. 
 
 2 Molloy, c. 7, § 14. 
 
 But there is no authority, it is believed, either in England or 
 in the United States, that capture by enemies is a peril of the 
 sea; and it has been expressly decided in England that a 
 “ seizure ” is not. 
 
 Spence vs. Chodwick, 10 Q. B. 517. 
 
 We are thus brought to consider the meaning of the words 
 “ capture, seizure, and detention,” in the marginal exception. 
 
 4. “ Capture.” 
 
 “ Capture, as applied to the subject of marine insurance, 
 may be said to be the taking of the ships or goods belonging 
 to the subjects of one country, by those of another, when in a 
 state of public war.” Park on Ins. c. 4, p. 73. 
 
 “ Capture, properly so called, is a taking by the enemy as 
 prize, in time of open war, or by way of reprisals, with intent to 
 deprive the owner of all dominion or right of property over the 
 thing taken.” 2 Arnould on Ins. § 303. 
 
 “A capture,” said Chief Justice Parsons, in a case of marine 
 insurance, “is a seizure as prize, with the intent or expectation 
 of obtaining a condemnation.” 
 
 Richardson vs. Maine F. & M. Ins. Co., 6 Mass. 108. 
 
40 
 
 “ Taking by pirates,” says Mr. Dane, “ lias none of the effects 
 of legal capture.” “ But taking by pirates is unlike a capture 
 made by captors not commissioned.” 
 
 7 Dane Ab. 92; and see pp. 639 4* seq. 
 
 The Queen of England’s proclamation of March 29, 1854, 
 granting reprisals against Russia, provided for a commission “ to 
 take cognizance of, and judicially proceed upon, all, and all 
 manner of, captures, seizures, prizes,” <fcc. 
 
 1 Spinks, Appendix, i. ii.; and see p. ix. 
 
 The Constitution of the United States, art. 1, § 8, gives Con¬ 
 gress power to “ make rules concerning captures on land and 
 water.” 
 
 See also Ordinances of the Congress of the Confederation, 
 1775-1782, 6 Wheat. Appendix, 103, 115, 120, 126. 
 
 Halleck’s International Law, c. 30. 
 
 The only judicial opinion cited by the defendants, which has 
 any tendency to show that a taking by a pirate is a “ capture ” 
 within the meaning of the law of insurance, is one of Lord Mans¬ 
 field’s. The whole of the paragraph, part of which is relied on by 
 the defendants, is as follows: 
 
 “ A capture by a pirate (and in Spain, Venice, and England, 
 the goods go to the captors of the pirates, against the owner; as 
 there can be no condemnation to entitle the pirate), or a capture 
 under a commission, where there is no war, do not change the 
 property. Yet, as between the insurer and insured, they are 
 just upon the same foot as capture by any enemy.” 
 
 Goss vs. Withers, 2 Burr. 694, 695. 
 
 This was merely obiter dictum; for the case concerned only 
 capture by and from an enemy, and there was no pirate in it. 
 
 The other dictum in the same paragraph (included in the pa¬ 
 renthesis, and omitted in the defendants’ quotation) is clearly 
 not law; and the reason assigned, so far from supporting the 
 conclusion, refutes it, and contradicts itself: for how should the pi¬ 
 rate’s incapacity to condemn the goods give him a title without 
 condemnation? And it was then and has been ever since the well 
 
41 
 
 settled law of England (as it is the general law of nations), that 
 goods taken by a pirate, and retaken from him, belong to the ori¬ 
 ginal owner. A piratis capta dominium non mutant. 
 
 Case of the Spanish Merchants, 2 R. 3, pi. 4; Jenk. Cent. 165. 
 
 Case of Piracy, 12 Co. 73. 
 
 Greenway vs. Baker, Godb. 193. 
 
 1 Molloy, c. 4, § 23. 
 
 2 Wooddeson’s Lectures, 431. 
 
 The Hercules, 2 Dods. 372. 
 
 The Calypso, 2 Hagg. Adm. R. 213. 
 
 1 Phillimore’s International Law, 379. 
 
 Dr. Wooddeson well says of the passage above quoted from 
 Burrow’s Reports, “ The reason assigned (viz. that there can be 
 no condemnation to entitle the pirate) shows he acquired no 
 property, and therefore could transmit none. It is also said, 
 that 1 a capture under a commission, where there is no war, does 
 not change the property;’ the reverse of which is laid down by 
 Grotius. The sentence in Burr, is involved ; and the subject 
 perhaps not being familiar to the reporter, he might easily mis¬ 
 take the Court’s meaning.” 
 
 2 Wooddeson’s Lectures, 431. 
 
 It will be remembered, that Sir James Burrow himself said 
 of his work, “ Its merit consists in the correctness of the states of 
 the cases. In this respect, it must be of some use, especially when 
 compared with other notes. In all other respects, I know it is 
 very faulty ; and I beg pardon of the bar, and much more of the 
 bench, for innumerable injuries I must have done them as to 
 language and argument. I do not take my notes in short hand. 
 I do not always take down the restrictions with which the speaker 
 may qualify a proposition to guard against its being understood 
 universally, or in too large a sense. And therefore I caution the 
 reader alwa} r s to imply the exceptions which ought to be made, 
 when I l’eport such propositions as falling from the Judges. I 
 watch the sense, rather than the words; and therefore may often 
 use some of my own. If I chance not fully to understand the 
 subject, I can then only attend to the words ; and must, in such 
 
 6 
 
cases, be liable to mistakes. If I do not happen to know the autho¬ 
 rities shortly alluded to, I must be at a loss to comprehend (so as 
 to take with accuracy and precision) the use made of them. Un¬ 
 avoidable inattention and interruptions must occasion chasms, 
 want of connection, and confusion, in many parts: which must 
 be patched up and connected by memory, guess, or invention ; or 
 those passages totally struck out, which are so inexplicably puz¬ 
 zled, in the original rough note, that no glimpse of their meaning 
 remains to be seen. 
 
 “ I am thoroughly aware of all these faults. I am conscious 
 too, that, not having had the good fortune of acquiring that know¬ 
 ledge in the science of the law which is gotten only by a lucrative 
 experience at the bar, (from which I was very early removed,) 
 and not being blessed with the quickest natural parts, I may have 
 misapprehended topics and allusions ; I may have made blun¬ 
 ders in the sense, by endeavoring to rectify those of my pen. 
 These are imperfections which diligence could not cure. 1 am 
 only concerned lest my errors should be imputed, not to myself, 
 but to those whose discourses I may happen (through my own 
 infirmities) to misrepresent.” 
 
 The Italics and capitals are the reporter’s own. 
 
 Pref. to 1 Burr, ix, x. 
 
 In McCargo vs. New Orleans Ins. Co., 10 Robinson’s Louisiana 
 R. 202, the only question decided was, that a policy on a cargo of 
 slaves, against the usual risks, and “ chiefly against that of foreign 
 interference,” but “ warranted by the assured free from elopement 
 or insurrection,” or from “ mutiny or desertion,” did not make 
 the insurers liable for a loss by a mutiny and successful insur¬ 
 rection of the slaves, who took possession of the ship, and deserted 
 at the first port at which they arrived, by the law of which they 
 became free (pp. 312 Sf sec/.). The point which the present defend¬ 
 ants’ counsel, following Mr. Phillips (1 Phil. Ins. § 1110), allege 
 to have been decided, “ that a loss by an insurrection of slaves, on 
 board as passengers, was a loss by capture,” was not even sug¬ 
 gested ; and the word “ capture ” docs not appear to have been in 
 
that policy ; and was not mentioned by the court, except by way of 
 illustrating the meaning of the clause, “ warranted free from ” 
 (p. 313). The question, whether the slaves had committed piracy, 
 was discussed by counsel. For the plaintiff, it was contended 
 that they had (p. 301) ; while “ F. B. Conrad, T. Slidell, and 
 Benjamin,” for the defendants, with an unwonted spirit of freedom, 
 argued that “ these slaves were instigated, not by the thirst for 
 plunder, but by the mere desire of liberty ; ” and that “ slavery is 
 against the law of nature, and of no force or binding effect beyond 
 the jurisdiction of the nation that chooses to establish it” (pp. 
 259, 277, 279.) But the court decided the case upon the particu¬ 
 lar clause, “ insurrection ” or “ mutiny,” without touching either 
 “ piracy ” or “ capture.” 
 
 Mr. Phillips does state, (as lie is quoted by the defendants,) 
 that “ the word 1 capture ’ is of itself broad enough to comprehend 
 any forcible seizure, arrest, or detention, which may be lawfully 
 insured against.” But he prefaces this dictum with a statement, 
 that this clause of the policy, in its usual form, “ is more generally 
 understood to apply to captures, seizures, and detention by the 
 commissioned officers and agents of some lawful and acknow¬ 
 ledged government.” And he concludes the section with a simi¬ 
 lar statement. 
 
 1 Phil. Ins. § 1110; and see §§ 1108, 1109. 
 
 Much reliance is placed by the defendants on Emerigon’s defi¬ 
 nition of the French word “ Prise,” in his chapter thus entitled, 
 translated “Capture” by Mr. Meredith. On which it may be 
 observed, 
 
 (1.) Emerigon relies particularly upon the form of the 
 French policies, which is omitted in the translation cited by the 
 defendants’ counsel, but which, in the original edition, includes 
 “ all acts of God or man, of friends , enemies , known or unknown , 
 takings and detention of government, reprisals, just or unjust;” 
 or, as it stands in the French, “ Yeut que tons ceux qui prendront 
 de cette assured passent le meme risque que lui, taut divin 
 
44 
 
 qu’humain, d ’amis, ennemis, connus ou inconnus, prises et deten¬ 
 tion de seigneurie, represailles justes ou injustes.” The Italics 
 are in the original, and seem to show that he would class pirates 
 among unknown enemies. 
 
 1 Emerigon des Assurances, c. 12, § 18. 
 
 (2.) But he has a separate section on the subject of “ Pi¬ 
 rates,” which he commences by referring such losses to the head 
 of “ pillage ” in the Ordonnance de la Marine, although the very 
 next preceding word in that ordinance is this very word “ prise.” 
 
 1 Emerigon des Assurances, c. 12, § 28. 
 
 1 Valin, Ordonnance de la Marine, lib. 3, tit. 6, art. 26. 
 
 And (3.) the primary meaning of the French word “ prise” is 
 the general one of “ taking ” or “ taking up ; ” and the meaning 
 of “ capture ” is but a secondary one. 
 
 2 Fleming A Tibbins’s Dictionary, voce “ Prise.” 
 
 As Mr. Blackburn, the successful counsel in the case prin¬ 
 cipally relied on by the defendants, well said, in arguing that 
 case, “ The definitions given by Emerigon of ‘ prise ’ are not of 
 much value in interpreting the English words ‘ seizure ’ and ‘ cap¬ 
 ture,’ which are analogous, but not necessarily identical in mean¬ 
 ing ; and which have, moreover, from long usage in policies, 
 acquired a distinct and well known character of their own.” 
 
 Kleimvort vs. Shepard, post, 48 4" seq. 
 
 Defendants’ Argument, Appendix, p. 12. 
 
 5. “ Seizure and Detention,” in the Margin of the Policy. 
 
 The words “ seizure ” and “ detention ” are ejusdem gene¬ 
 ris with capture. The difference between them is, that “ cap¬ 
 ture ” is appropriate to acts of belligerents; and “ seizure,” to 
 any other acts of governments or their authorized officers, such as 
 embargoes; and both look to final condemnation of the thing 
 seized; while “ detention ” is only temporary in its character. 
 Out of the great number of authorities, a few will suffice. 
 
 Rhinelander vs. Ins. Co. of Pennsylvania, 4 Crancli, 42-44. 
 
 Carrington vs. Merchants’ Ins. Co., 8 Pet. 518, 519. 
 
45 
 
 Bradstreet vs. Neptune Ins. Co., 3 Sumner, 605, 606, 615,616. 
 
 Davison vs. Seal Skins, 2 Paine, 324. 
 
 Higginson vs. Pomeroy, 11 Mass. 110. 
 
 Black vs. Marine Ins. Co., 11 Johns. 292. 
 
 Thompson vs. Read, 12 S. & R. 443. 
 
 Halleck’s International Law, c. 12, § 14. 
 
 The following case well illustrates the meaning of these words : 
 Under a declaration for a forcible seizure, taking, and deten¬ 
 tion by persons unknown, the facts were, that the ship’s papers 
 had been taken by a foreign government in whose port she was, 
 and an insufficient abandonment made by the assured as for a 
 constructive total loss; the vessel was finally seized and unladen 
 by that government; which was relied on as an actual total loss. 
 The argument was interrupted by the following conversation: 
 For the defendants it was argued, “ Can they recover upon this 
 record as for a capture? [Le Blanc, J. The record states a 
 seizure. Lord Ellenborough, C. J. Every capture is a seiz¬ 
 ure.] In a policy, the word seizure does not contemplate a 
 hostile seizure. [ Lord Ellenborough, C. J. By the term 
 seizure the parties must have contemplated hostile seizure or 
 capture.]” And the plaintiffs were held entitled to recover. 
 
 Mellish vs. Andrews, 15 East, 15, 16. 
 
 6. “ Capture, Seizure, and Detention,” in the Body of the Policy. 
 
 These words are used in the same sense in the body of this 
 policy; to wit, “ seizure or detention for or on account of prohi¬ 
 bited trade, or trade in articles contraband of war.” 
 
 And the previous clause in the body of the policy, b_j* which, 
 “ in case of capture or detention ,” the assured cannot abandon 
 “ until proof of condemnation ” (which could only be by a recog¬ 
 nized government), or “ of the continuance of the detention , by 
 capture or other arrest’’’’ (“arrest” also a word indicating an 
 act in form of law), for ninety days, seems to put the meaning 
 of the exception beyond a doubt. 
 
Rule of Construction. 
 
 The clause “ warranted free from,” it is well understood, 
 does not import a warranty in the ordinary sense of the law 
 of insurance, but only that the insurers shall not be liable for 
 losses thus enumerated. 
 
 1 Phil. Ins. § 1150. 
 
 This clause, being introduced for the benefit of the insurers, 
 is, in case of doubt, to be construed most strongly against them, 
 and so as to give fair effect to the general words of the po¬ 
 licy. 
 
 Yeaton vs. Fry, 5 Cranch, 341. 
 
 Palmer vs. Warren Ins. Co., 1 Story R. 364. 
 
 Blackett vs. Royal Exchange Ass. Co., 2 Cr. A Jerv. 251. 
 
 Bullen vs. Denning, 5 B. & C. 847 ; 8 D. A R. 662. 
 
 Archibald vs. Mercantile Ins. Co., 3 Pick. 74. 
 
 Thus, under a policy against perils of the sea on live animals, 
 “ warranted free of mortality or jettison,” the underwriters are 
 liable for animals, properly secured, dying in consequence of the 
 rolling of the ship in a storm, or in consequence of their breaking 
 down the partitions in a storm, and kicking and bruising each 
 other. 
 
 Lawrence vs. Aberdein, 5 B. A Aid. 107. 
 
 Gabay vs. Lloyd, 5 D. A R. 641; 3 B. A C. 793. 
 
 So, by a policy against the usual risks, including barratry, but 
 “ warranted free ” from seizure for illicit trade, the insurers are 
 not exempted from liability for loss by seizure and forfeiture for 
 illicit trade barratrously carried on by the master and mariners. 
 
 Suckley vs. Delaficld, 2 Caines R. 222. 
 
 American Ins. Co. vs. Dunham, 12 Wend. 463; 15 Wend. 1. 
 
 Havelock vs. Hancill, 3 T. R. 277. 
 
47 
 
 It has even been held in New York and Louisiana, that “ war¬ 
 ranted free ” from loss “ by capture or detention for or on account 
 of any illicit trade, or trade in articles contraband of war,” did 
 not exempt the insurers from liability for capture and condemna¬ 
 tion of the vessel and cargo (including the goods insured) for 
 carrying other goods contraband of war. 
 
 Bowne vs. Shaw, 1 Caines R. 489. 
 
 Cucullu vs. Orleans Ins. Co., 18 Martin, 13. 
 
 And it is well settled, that the exception just quoted must be 
 limited to seizures for a legal and justifiable cause, according to 
 the law of nations as recognized by our own Government; and that 
 for a seizure made without such cause, though made “ for prohi¬ 
 bited trade,” the insurers are liable; although, as Chief Justice 
 Tilghman said (4 S. & R. 59), “That it is within the words of 
 the warranty, is certain.” 
 
 Johnston vs. Ludlow, 1 Caines Cas. xxi; 2 Johns. Cas. 481. 
 
 Smith vs. Delaware Ins. Co., 3 S. & R. 82. 
 
 Faudel vs. Phoenix Ins. Co., 4 S. & R. 29. 
 
 Carrington vs. Merchants’ Ins. Co., 8 Pet. 518, 524. 
 
 8. Powell vs. Hyde. 
 
 In Powell vs. Hyde, 5 El. <fc Bl. 607 (relied on by the defend¬ 
 ants), Lord Campbell, Coleridge, and Wightman, JJ., held that 
 the loss of a British vessel in the Danube, by being fired upon by 
 the Russians (then at war with Turkey, but not with England), 
 was within the exception of “ warranted free from capture and 
 seizure, and the consequences of any attempt thereat.” 
 
 But that was a “ capture ” or “ seizure,” in the usual sense of 
 the words, made by a power authorized to wage war, and then 
 actually waging war. As was suggested by Mr. Justice Erie 
 (now Chief Justice of the Common Bench, who was present at 
 the argument, but took no part in the decision), “ If the seizure 
 or capture was supported by the government of the party seizing, 
 it might constitute a casus belli.'''’ Mr. Justice Coleridge (the 
 
48 
 
 best lawyer of the three judges who made the decision) puts it 
 upon the ground, that “ this was a capture by lawful authority; 
 though it was a capture that could not have been afterwards sus¬ 
 tained.” 
 
 And, as the Russians had no ground for their acts, it may be 
 doubted whether that decision is consistent with the American 
 cases above referred to, none of which were cited. 
 
 9. Kleixwort vs. Shepard. 
 
 The only case in which “ seizure ” has been said to include 
 acts of individuals, not acting under the authority of a recognized 
 government, is that of Kleinwort vs. Shepard, 5 Jur. N.S. 863, 
 and 1 El. A El. 447, in which it was extended by the Court of 
 Queen’s Bench to a mutiny of Coolie passengers. 
 
 Mr. Justice Coleridge had now resigned; and this case was 
 argued before Lord Campbell, Wightman, Crompton, and Hill, 
 JJ., none of whom had any peculiar experience or authority in 
 commercial law, and the weight of whose opinion must therefore 
 depend upon the soundness of the reasons assigned for it. 
 
 But the only reasons, if reasons they can be called, assigned 
 by Lord Campbell for this novel conclusion, were, 
 
 (1.) That “ Dr. Johnson defines ‘seizure’ to be the act of 
 taking forcible possession.” But, if dictionaries are to decide 
 such questions, it may be observed that Johnson’s dictionary does 
 not purport to contain legal definitions; that Webster adds 
 to Johnson’s definitions, “ The act of taking by warrant, as 
 the seizure of contraband goods;” that one of Worcester’s defi¬ 
 nitions is “ (Law) — Act of taking possession by virtue of an 
 execution or legal authority; ” and that in Homans’s Cyclopaedia 
 of Commerce (a better authority than any of these on such 
 a subject) the definition is, “ Seizure, in commerce , the arrest 
 of some merchandise, movable, or other matter, either by conse¬ 
 quence of some law, or of some express order of the sovereign.” 
 
 (2.) “ There is no decision that it must be confined to belli- 
 
49 
 
 gerent seizure.” But precedents are usually required of those 
 who extend the application of a word or doctrine. 
 
 (3.) Lord Campbell says (what may well be admitted, although 
 he gives no reasons for it) that the Court think it cannot be con¬ 
 fined to seizure from without. If a passenger were an authorized 
 government agent, doubtless a seizure by him would be within 
 the exception. 
 
 (4.) “ The conjectural motives which may have influenced 
 the parties cannot influence us.” This is sound law, but strange¬ 
 ly inconsistent with his own next two reasons. 
 
 (5.) That as the ship was Dutch, and Holland not at war, or 
 likely to be, the object could not have been merely to exclude 
 hostile capture and seizure. 
 
 (6.) That the insurers and insured had probably discussed 
 together the case of Naylor vs. Palmer, ( ante , 24.) 
 
 (7.) “ The plain meaning of the language.” Of which, how¬ 
 ever, either by itself, or in connection with the rest of the policy, 
 he vouchsafes no explanation. 
 
 It does not appear that there was any repetition, in the body 
 of that policy, of the words of exception, which might explain 
 their meaning; and it is not probable that there was; for it is 
 believed that the clause requiring condemnation or ninety days’ 
 detention, to make a loss by capture total, is of American ori¬ 
 gin. 
 
 The distinction, that the words, though not confined to the 
 acts of governments at war with that of the assured, might still 
 reasonably be limited to acts of government, and not extend to 
 those of private individuals, (if presented by counsel,) was mani¬ 
 festly not seen, much less answered, by the Court; and none 
 of the cases or reasons which support that distinction, or explain 
 the words used in the exception, appear to have been adduced; 
 the only authorities cited being Goss vs. Withers, and Powell vs. 
 Hyde, which have been stated above, ante, 40, 47. 
 
 It is hard to see how Kleinwort vs. Shepard can stand with 
 the American decisions on analogous exceptions, and especially 
 
 7 
 
50 
 
 with Suckley vs. Delafield, and American Ins. Co. vs. Dunham, or 
 the English case of Havelock vs. Hancill (ante, 46). It would 
 certainly be a most absurd result to exempt iinderwriters from 
 liability for a loss by a rising of passengers temporarily on board, 
 and not selected by the assured ; and yet to hold them liable 
 for barratry, of which Lord Mansfield, in one of the earliest 
 cases, very sensibly said, “ It is somewhat extraordinary that it 
 should have crept into insurances, and still more that it should 
 have continued in them so long; for the underwriter insures the 
 conduct of the captain (whom he does not appoint, and cannot 
 dismiss) to the owner, who can do either.” 
 
 Nutt vs. Bourdieu, 1 T.R. 330. 
 
 The case of Kleinwort vs. Shepard was decided by only four 
 of the fifteen English common law judges, and may probably, be¬ 
 fore it is finally disposed of, be taken to the Court of Exchequer 
 Chamber, if not to the House of Lords, and^ their decision over¬ 
 ruled. It is hardly in any respect such a decision as should induce 
 this Court to go against the whole current of American authority, 
 or against the recent express decision of the Superior Court of 
 the city of New York, (which has long held the position of a very 
 high authority on questions of maritime law,) upon the following 
 case: 
 
 A policy of insurance was made on the schooner Lawrence 
 Waterbury, against the usual perils, including “pirates, rovers, 
 thieves,” but “ warranted free from loss or expense arising from 
 capture, seizure, or detention, or the consequences of any attempt 
 thereat.” She was lying at Norfolk, for repair, on the 21st of 
 April, 1861, four days after the passage, by the State of Virginia, 
 of her secession ordinance, when twenty-five or thirty men came 
 alongside of her with a steamboat, and professing to act by autho¬ 
 rity of the State of Virginia, and without riot or tumult, filled 
 her with stones, towed her out into the channel, and there 
 sunk her. The Superior Court, at first at nisi prius , and then at 
 a general term, held that the secession ordinance could not be 
 admitted in evidence for the defence; and that the loss did not 
 
51 
 
 come within the exception, but was a loss by pirates, rovers, and 
 thieves. The plaintiffs are much disappointed that they have not 
 yet been able to procure a copy of that opinion to lay before this 
 Court. 
 
 Swinnerton vs. Columbian Ins. Co., Superior Court of New York 
 
 City, 1862. 
 
 10. Conclusion. 
 
 It seems difficult to escape the conclusion, that by applying 
 the simple rules of noscitur a sociis, and reddendo singula sin¬ 
 gulis , to the construction of this policy, the clause in the 
 margin should be limited to the first class of risks only — acts 
 of government: the word “ capture ” in the margin correspond¬ 
 ing to “ enemies ” in the body of the policy ; and the more 
 technical words, “ seizure and detention,” being synonymous with 
 the more common words, “ restraints and detainments,” to de¬ 
 fine the meaning of which, the words “ of kings, princes, and 
 people,” &c., had been inserted. 
 
 There is good reason for this distinction. For acts of recog¬ 
 nized governments, if irregular or unlawful, the citizen may have 
 redress through his own government; but against the acts of 
 individual depredators his insurance is his only security. 
 
 Again: wars, and captures, seizures and detentions which 
 grow out of them, are extraordinary risks, which cannot be so 
 well estimated; but the dangers of unauthorized individual 
 depredation are less considerable and more uniform. 
 
 The history of the marginal clause in question supports the 
 same conclusion. It is generally known as the “ war clause,” 
 and was introduced years before the present rebellion. Indeed, 
 the policy in suit was issued before any of the States had under¬ 
 taken to secede, or any danger from their cruisers was appre¬ 
 hended. And it has been the usage of insurance companies, in 
 New England at least, under policies containing this clause, to 
 pay losses by piracy in the Eastern seas. 
 
If, contrary to the plaintiffs’ expectation, the Court should 
 hold that they are not entitled to judgment on this declaration, 
 they pray, if the defect is merely formal, that it may be amended, 
 and judgment then rendered for them. 
 
 Cleaves vs. Lord, 3 Gray, 71, 72, and authorities cited. 
 Stone vs. White, 8 Gray, 595, 596. 
 
 But if the Court should be of opinion that the facts, as now 
 presented, do not show a case on which the plaintiffs would be 
 entitled to recover, and that, pursuant to the terms of the Judge’s 
 report, a new trial must be granted, the plaintiffs pray for leave 
 to amend their declaration, with a view to such new trial, as was 
 done in the case, upon which the defendants so much rely, of 
 Kleinwort vs. Shepard, 5 Jur. N. S. 865. 
 
 All which is respectfully submitted by 
 
 BICHARD H. DANA, Jun., 
 HORACE GRAY, Jun., 
 
 Of Counsel for the Plaintiffs. 
 

 
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