Opinion by HUNT, J.

The Court refused to do so, decided that there was no question for the jury, and directed a verdict for the Plaintiffs to the amount of their claim as proved. The Defendants' counsel excepted, and the jury found a verdict for the Plaintiffs, as directed, for $1,065.62.

The General Term of the Superior Court of the City of New York affirmed the judgment entered upon this verdict.

From this judgment the Defendants have brought their appeal to this Court.

Thomas G. Shearman for Appellants.

John H. Reynolds for Respondents.

HUNT, J.-The body of the policy on which this action is brought contains the following clause: "Touching the adventures and perils, which the said Columbian Insurance Company is contented to bear and take upon itself, in this voyage, they are of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, reprisals, taking at seas, arrests, restraints and detainments of all kings, princes, or people of what nation, condition, or quality soever."

In the margin of the policy is the following statement: “Warranted free from loss or expense arising from capture, seizure, or detention, or the consequences of any attempt thereat."

It is clear upon authority that the recital last quoted constitutes a warranty on the part of the assured, and that it is a qualification of the obligation of the insurer, contained in the covenant before cited (Dole v. Merchants' In. Co., 51 Maine, 465; Dole v. New Eng. In. Co., 6 Allen, 373; Fifield v. In. Co., 47 Pa. R. 166; The Prize Cases, 2 Black's R. 635).

It is held in the same cases that the capture of an insured vessel by a cruiser of the so-called Confederate States is within this warranty, and relieves the insurer from liability upon the policy.

These decisions were based upon the principle that when a portion of the citizens of a civil government have rebelled, established another government, resorted to arms to maintain it, and the rebellion is of such magnitude that the military and naval

Opinion by HUNT, J.

forces of the government have been called out to suppress it, they are to be regarded as belligerents.

To create belligerent rights, it is not necessary that there should be war between separate and independent powers. They may exist between the parties to a civil war. A state of actual war may exist without a formal declaration of it by either party; and this is true both of a civil and a foreign war. A civil war exists whenever the regular course of justice is interrupted by revolt, rebellion or insurrection, so that the Courts cannot be kept open (2 Black, Prize Cases, 667, 668). It is further held, by the same authorities, that the capture of an insured vessel by an unorganized body of men, who are thieves, robbers, and pirates, simply, with no pretence of authority from an organized government, does not relieve the insurer from liability, under the clauses in question. I shall examine the questions arising in this case, upon this theory of the rights of the parties.

On the 21st of April, 1861, the Plaintiffs' vessel was undergoing repairs in the port of Norfolk, Virginia, where she had been driven by stress of weather.

On the morning of that day, a body of men, thirty or forty in number, took her from the place where she was being repaired, and towed her to a wharf in another part of the city. Here, aided by an equal number of men on the wharf, they broke open the cabins of the vessel, filled her with stones, and took her about a mile down the river. She was towed off amid the cheers and shouts of those on shore, and sunk at the mouth of the channel. The person conducting these operations paid no attention to the remonstrances of the captain, but informed him that what he did. was by authority of the State of Virginia.

The captain could obtain no aid from the military, and no relief from the Courts. It was a scene of public excitement-as the witness terms it, of madness-the occasion of which will appear hereafter.

Properly to appreciate the condition and rights of the parties, it is necessary to look at the state of the country on the 21st of April, 1861, when the events we have detailed occurred.

Opinion by HUNT, J.

The written constitution, under which the government of the "United States of America" was formed, was adopted in 1787.

At the close of the war with Great Britain, in which its independence was accomplished, the Union was composed of thirteen States. In 1861 the Union consisted of thirty-six States, possessing many rights independent of each other, and independent of the United Government formed by them. Of these States Virginia was one, South Carolina, Georgia, Mississippi, Alabama, Texas, and Florida, were others. The disputes and jealousies existing between the different sections of the country, and the people of the different States, took form and shape in the autumn of the year eighteen hundred and sixty. The elections held in November of that year resulted in the choice of Abraham Lincoln as President of the United States. A portion of the Southern States, professing to consider this result, and the principles of the successful party, as destructive of the institution of African slavery then existing in those States, determined to withdraw from the Union. The right thus to withdraw had been claimed by those States for many years, while the claim had been steadily and uniformly denied by the Northern States. On the twentieth of December, eighteen hundred and sixty, with ostentatious defiance, the State of South Carolina, by a convention called to act upon this particular subject, declared that the ordinance of seventeen hundred and eighty-eight, whereby the Constitution of the United States was ratified, and all acts of the State of South Carolina ratifying amendments of that constitution, were repealed, and declaring "that the union now subsisting between South Carolina and other States, under the name of The United States of America,' is hereby dissolved.”

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The raising of armies, and the appointment of commissioners to proceed to Washington to demand the delivery to that State of all forts, light-houses, and magazines within its limits, and also for the apportionment of the public debt and a division of all the public property of the United States, immediately followed.

During the months of January and February then next, the

Opinion by HUNT, J.

States of Mississippi, Alabama, Louisiana, Florida, and Texas adopted ordinances to the same effect.

In the month of February, eighteen hundred and sixty-one, the deputies from these States assembled at Montgomery, in the State of Alabama, and organized a government upon the same general plan as the one then and now constituting the Union of the States of America. They elected a president and vice-president, and organized a congress to consist of senators and members from the several States forming their nation. A cabinet of executive officers was selected, the moneys and credits of the government were issued; commissioners for foreign States were appointed; military, naval, and civil officers were designated; a national emblem was assumed, and all the forms of a permanent and an efficient government were adopted, with the name of." The Confederate States of America." The States of North Carolina, Virginia, Tennessee, Missouri, and Arkansas subsequently joined this confederacy.

It is sufficient, for the purpose of deciding the legal questions before us, to say that the rebellion thus organized assumed gigantic dimensions.

A war was carried on for four years by land and by sea between the two governments, with varied success on the part of the different armies.

It terminated in the triumph of the government and the complete overthrow of the rebellion, in the spring of eighteen hundred and sixty-five; but not until the government had expended three thousand millions of dollars in its suppression, and three hundred thousand Northern soldiers had laid down their lives in thus maintaining the integrity of their government.

These subsequent and important transactions, to which I have alluded so briefly, are competent to be considered in determining the status, in the month of April, 1861, of the parties whose acts we are to consider (Prize Cases, sup.).

When the State of South Carolina attempted its separation from the Union, its harbor contained several forts garrisoned by United States troops.

Opinion by HUNT, J.

Both the soil and jurisdiction of these forts belonged to the United States, and that government declined to yield them to the repeated and urgent demands of South Carolina. Major Robert Anderson, of the United States Army, was in command of these forts in this month of April, and had transferred his men and munitions from Fort Moultrie to Fort Sumter, both being forts within a short distance of the city of Charleston, and in its harbor.

General Beauregard, who had been appointed by the Confederate States a brigadier-general in their service, was in command of the troops in the city of Charleston.

The refusal to surrender Fort Sumter being persisted in, that officer, on the 12th day of April, by the special order of the Secretary of War of the Confederate States, opened fire upon the fort. The preparations for its reduction had long been in progress; seventy men only formed its garrison, and seven thousand men formed the attacking force.

An unarmed vessel, loaded with provisions for the relief of the garrison, had been fired upon by the Confederate authorities, and compelled to abandon her purpose. After a siege of twenty-four hours, its men exhausted, its supplies consumed, and its quarters on fire, the fort was surrendered.

Its commander, with his forces, marched out with the honors of war, saluting the flag of his country as it was lowered.

The news of this surrender was telegraphed to the authorities at Montgomery. In answer to the congratulations of the assembled multitude, L. Pope Walker, Secretary of War of the Confederate States, announced the intention of his government to pursue its success, and predicted that, before the first of May following, the Confederate flag would float in triumph from the Washington Capitol.

On the fifteenth day of April, President Lincoln issued a proclamation, reciting that the execution of the laws of the United States was obstructed in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law,