Shaw, C. J.
The great Rhode Island controversy, threatening, and at one time involving, the dangers and troubles of insurrection and civil war, out of which this case grew, having happily passed away, the case itself has lost much of the interest with which it was once invested. It presents questions of unusual magnitude and importance, lying beyond the scope of those investigations with which the administration of the criminal law is usually conversant; but happily they are questions of rare occurrence. We shall ’ allude to the facts, very briefly, to make the points intelligible.
The indictment was originally returned against three persons, of whom one was acquitted and the others convicted. It was founded on the provisions of the Rev. Sts. c. 125, § 20, which prohibit the unlawful and forcible seizure, im-? prisonment, or abduction of persons.
The proof, on the part of the prosecution, tended to show, that the defendants, with about twenty other persons, armed with military weapons, about the hour of one o’clock at night, broke and entered the house of Jeremiah Crooks, who kept a tavern in Bellingham, in this county, and there seized and bound the four persons named in the indictment, to wit, William T. Olney, Oliver Ballou, Arnold Whipple and Timothy Walker, kept them there some hours in custody, and then carried them bound to Rhode Island. Some circumstances of aggravation, in the conduct of the defendants, are stated in the bill of exceptions, which seem not material to any principle involved in the case.
[79]*79It was argued in behalf of the defendants, that this case, if proved, was not within the aforesaid statute, which Was rather designed to prevent and punish kidnapping and unlawfully seizing negroes or colored persons, for the purpose of making them slaves. The terms of the statute are as follows : “ Every person who, without lawful authority, shall forcibly or secretly confine or imprison any other person, within this State, against his will, or shall forcibly carry or send such person out of this State, or shall forcibly seize and confine, or shall inveigle or kidnap any other person, with intent to cause such person to be secretly confined or imprisoned in this State, against his will, or to cause such person to be sent out of this State, against his will, or to be sold as a slave,” &c. “ shall be punished,” &c.
It may be very probable, that the legislature had in mind the offence of kidnapping, in connexion with slavery, as the more immediate inducement to the passing of the act; but the terms of the act are broad enough to include the case of unlawful confinement of another, with the intent to cause him to be carried out of this State against his will. And it is not unusual in legislation, where a particular apprehended wrong or grievance is the immediate occasion for the passing of an act, to extend it to other wrongs of the like kind, and make a general instead of a specific provision. But further; this is no new provision in the revised statutes. It is taken substantially from the ’preexisting St. of 1784, c. 72, § 10, which is the old habeas corpus act. The court are of opinion, that the case is within the statute in question, and that the first exception cannot be sustained.
The other exceptions turn upon the matter of justification or excuse arising out of the facts narrated in the very voluminous bill of exceptions, setting forth almost the entire history of the insurrection and civil war in Rhode Island, occasioned by an attempt to overthrow the existing government of the State, and to replace it by another, claimed to be the people’s constitution. Perhaps many of the facts, set forth in the bill of exceptions, might not, in strict law, be [80]*80susceptible of judicial proof; but being of general notoriety, we presume they were not much contested, and were introduced in order to show the effect and application of the instructions given or ivithheld by the court, in matter of law. It is these only which we are called upon to revise. They are extremely important to the peace of the country and the security and stability of all the state governments. The court have derived great benefit from the full and able arguments of counsel on the subject, and have given the subject the attention which its importance demanded.
It will not be necessary to recapitulate or even make a summary of the facts. They are fully detailed in the bill of exceptions. Those that concern these defendants more particularly are as follows : That an organized attempt was made to overthrow the existing government of the State, by force of arms; that the legislature had, by an act in due form, declared the State to be under martial law ; that William G. McNeill, Esq. had been appointed major-general and commander in chief of the forces raised by the State to oppose the insurrection; that the insurgents, organized and in military array, were stationed, in some force, at Chepachet and Woonsocket, villages bordering on the line of Massachusetts. It further appears, that on the evening of the 27th of June, the camp of the insurgents, at Chepachet, and other persons there assembled, were advised to disperse; that they did not afterwards appear in any considerable force, but that fears were entertained, by the people of Rhode Island, that they would again assemble within the limits of Connecticut or Massachusetts, and again annoy the. people ot Rhode Island; that on the 29th, an order was published, stating that there was no longer a necessity for the continuance of the troops in general in the field, and that they might return to their several homes; that various orders were given, with a view to arresting the fugitives, whether within the limits of the State or not, to the extent of fifty miles from Chepachet.; that by order of Major Martin, the defendant Blodgett, who was in the military service of the State, with the other [81]*81defendant, Hendrick, as a guide, with about twenty men, proceeded, as before- stated, to Crooks’s tavern in Bellingham, and there found and arrested the four persons named, who had been in arms against the State, but were not then in arms, or engaged with others in any military operation ; that the neighborhood was peaceful and quiet, the house was fastened, and the inmates asleep.
Upon these facts, stated more at large in the bill of exceptions, the counsel for the defendants prayed the court to instruct the jury, that if they found that the said Olney and others were citizens of- Rhode Island, and had been in arms as insurgents, as aforesaid, against said State, and, upon the approach of the troops of said State, had fresh fled from the insurgent camp to Massachusetts, for refuge from the authorities and troops of Rhode Island merely, they were not in the peace of Massachusetts, &c. The court declined so to instruct, but did instruct the jury, that if Rhode Island was in a state of civil war, and said Olney and others stood in the relation contemplated, yet, upon crossing the lines of Massachusetts, they were in the peace of the Commonwealth, and within the protection of her laws, exempt from the pursuit of the authorities and troops of Rhode Island; and that the defendants were criminally responsible for capturing the said Olney and others, within the boundaries of Massachusetts.
The court are of opinion that this instruction was correct. It has been argued that the State of Rhode Island, and the other States, under the circumstances in which she was placed, stood in the relation of foreign sovereign States, one of which was at war, and the other neutral; and we were referred to authorities from the laws of nations, to ascertain their respective rights and duties. It would be dangerous, perhaps impracticable, to adopt this reasoning to its full extent, and carry it out into" all its consequences. The relations of the States of the Union to each other are very peculiar, and give rise to questions of great delicacy and difficulty. If the States, and the citizens of States, are to be placed in the relations of belligerents and neutrals, and bound by the [82]*82of nations, then they must have the power of regulating their duties and obligations by negotiations and treaties, ar.d thus be enabled more effectually to provide for the performance of their relative duties, and the security of their respective rights. But the States are expressly prohibited from entering into any treaty, alliance or confederation, or, without the consent of congress, to enter into any agreement or compact with another State, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. They are, therefore, in the condition of States sovereign to some purposes, but who have by compact renounced and relinquished their sovereign powers, in regard to war and peace, and, of course, to the regulation and control of the incidents to war and peace, except the power of taking warlike measures, strictly and purely defensive, in case of an exigency, which will admit of no delay. In all other respects, the power of making war and peace, of treaties and alliances, is vested absolutely and exclusively in the general government, with their incidents. But as a compensation for this surrender, the general government of the United States is bound to protect each State against invasion, and against domestic violence. The constitution of the United States is to be taken as a whole; and whilst it restrains the States from making war and peace, and exercising powers incidental thereto, it assumes that the general government will do its duty, and effectually secure to each State that immunity from all violence, foreign and domestic, which was the obvious consideration for the surrender of these great powers. It is useless to speculate upon the contingency, as to what would be the rights of the States in case the general government should fail to afford that protection to States which the constitution guaranties to them. Such a state of things is not to be supposed. It would be one of revolution and anarchy, in which a regard to self-defence and public safety would constitute an exigency that would warrant such measures as the necessity of the case might require, under the maxim salus populi suprema est lex. The necessity, which would [83]*83create such an exigency, must limit and direct the means of meeting it.
But supposing, for the purpose of the argument, that the relations of the States to each other were those of sovereign States, in one of which an insurrection against the government existed; we think the instructions given in this case, upon the facts stated in the bill of exceptions, were correct. The exclusive right of every sovereign State to its own territory, and to the regulation and government of it, is absolute and inviolable, and extends to all persons within it. Every person entering the territory owes allegiance to the government, temporary indeed, but absolute. Whilst he continues within it, he is bound, like any other subject, by the laws of the State, owes it obedience, and is liable to the operation of its criminal laws ; and as a correlative right, he is regarded as a subject, for the purpose of protection and immunity from arrest, and all forcible invasion of his liberty or property, by any other State, except so far as the exercise of such right by foreign authority is stipulated for, by treaty, amongst sovereign States, or, amongst the States of this Union, by the constitution of the United States, and the laws and treaties made under it. According to these principles, which seem to us plain and well settled, Olney and the other persons, found at Crooks’s tavern in Bellingham, owed allegiance to Massachusetts, whilst they remained within the limits of the State; they were subject to its laws, would have been responsible for any violation of them, and, for the time being, were in the peace of the Commonwealth.
We do not mean to be understood as holding that soldiers and subordinate military officers, who are ordered by their sovereign to enter the territory of another State to pursue an enemy, and for any other purpose, may not rightfully claim impunity from the animadversion of the criminal laws of the country invaded. Such an invasion, however, must be deemed to be made flagrante bello, whether war have been declared or not; because it is in itself an act of war. But this could not be justified bv an order of the subordinate [84]*84military authorities of a State, in the exercise of their ordinary functions in the defence of a State. Nothing but the sovereign power of the State, by a previous order, directing such invasion, or by a subsequent ratification, when done in its name, will warrant such invasion, and excuse the subordinates engaged in it; because it emanates from the sovereign authority having the power to make war. The wrong done by such an invasion then becomes a question pf negotiation between sovereigns, and the subordinate agents are entitled to immunity.
The court, in saying that in their judgment the instruction to the jury was correct, in charging them that Olney, Ballou, Whipple and Walker, upon crossing the lines of Massachusetts, were in the peace of the Commonwealth, and within the protection of her laws, against the pursuit of the authorities and troops of Rhode Island, and that the defendants were criminally liable for capturing the said Olney and others, have done so on the facts stated, and in connexion with the qualifying instruction given at the same time. It was this : That if there existed a necessity, for the defence or protection of the lives and property of the citizens of Rhode Island, or for the defence of the State of Rhode Island, that the defendants should do the acts complained of in the indictment, or if there was probable cause to suppose, at the time, the existence of such a necessity, and the jury found such necessity or probable cause, they were to acquit them. And much evidence was given on both sides upon this question of fact. This instruction gave the defendants the full benefit of any excuse, arising from the use of force in the necessary defence of the State and its citizens, in whose service they were engaged ; leaving a great latitude as to the means necessary to such defence. It is not requisite, we think, in the present case, to attempt drawing any exact line of distinction as to the measures which such necessary defence would warrant, nor, perhaps, would it be practicable ; because it must depend much on the circumstances of each case. In the present case, it appears that the arrest of Olney and others was made [85]*85at midnight, in a dwelling-house and common tavern, nearly three miles from the state line, the men not being in arms or in military array, or in such numbers as to be immediately formidable ; and it is difficult to perceive how such act could be considered as done in the necessary defence of the territory of Rhode Island. The men had been in arms, and probably had rendered themselves amenable to the laws of Rhode Island ; and it might be a prudent precaution, on the part of that State, to discover, pursue and arrest them, as suspicious persons, of which they had no right to complain; and if it could have been done Avithout violating the laAvs, the peace, or the rights of this Commonwealth, it would have been quite excusable. But the question Avas rightly submitted to the jury, as one of strictly necessary defence.
Another ground taken for the defence Avas, that Rhode Island and Massachusetts stood to each other in the relation of allies ; that a civil war existed in Rhode Island; and that the military authorities of that State had a right to pursue the common enemy into the territory of Massachusetts. The counsel requested the court to instruct the jury, that Rhode Island being in a state of civil war and insurrection, and her laAvs and government guarantied by the constitution and laAvs of the United States, and being assailed by domestic violence, and the State of Massachusetts, as one of the United States, being obliged by said constitution and laws, and a party to such guaranty, these States Avere, for all the purposes of such war, but one territory; and that such Avar, Avaged against Rhode Island, was in fact a war waged by a public enemy, and in effect a Avar waged against Massachusetts, so far at least as to give to Rhode Island a right to use the territory of Massachusetts for the lawful purposes of such war; and, at all events, had a right, under the constitution and laws of the United States, to order her troops over the lines and into the State of Massachusetts, to protect herself against insurgents, as well as against a public foreign enemy, Avhenever she deemed it necessary so to do for her own protection ; she being, so far as her own citizens and troops were [86]*86concerned, the sole judge of the necessity, ¡md alone responsible to the State of Massachusetts for any undue exercise of authority through troops acting under her orders, and confining themselves strictly to the mere execution of the same ; and that this was especially true, when, as in the present case, the action of Rhode Island was confined to the capturing of her own rebel citizens only, found just over the lines.
This instruction the court refused to give, but instructed the jury, that in the case supposed, the State of Rhode Island had no such rights as above claimed, within the territory of Massachusetts, to capture her own rebel citizens; and that such captures were unlawful, unless necessary in the defence of the lives and property of the citizens of Rhode'Island, at the time ; of which necessity, or probable cause, or supposed probable cause, the jury, and not the State of Rhode Island, was the proper judge ; and that the orders of the State of Rhode Island could not shield her citizens and soldiers from being criminally responsible in the courts of Massachusetts, for acts done in the territory of Massachusetts, under and in compliance with such orders, in time of civil war and domestic insurrection, and whilst such citizens and soldiers were subject to martial law.
We are of opinion, that the court below decided correctly in refusing to give the instruction prayed for. That instruction assumes matters both as to the relations of the States to each other, and as to the authority under which the acts proposed to be excused or justified were done, and as to the condition of the persons arrested, at the time and place of arrest.
As to the relations in which the States stood to each other, which we have already partly considered: Suppose that the State of Massachusetts was ultimately bound to render aid to Rhode Island against domestic violence; some competent power must judge and decide upon the existence of the casus foederis ; and it cannot be possible that Massachusetts, and all the other States in the Union, are to be nlaced in a [87]*87state of war, by the sole judgment of the acting government of the State of Rhode Island. It must be authoritatively determined and made known, that domestic violence, and actual insurrection against the government of the State, exist, and that the acting government, resisting such violence and insurrection, by force of arms, is the true and legitimate government of the State, and entitled to the aid and assistance intended to be secured by the constitution of the United States to the respective States. If the State of Massachusetts retains her sovereign power to this extent, then it is for the government of Massachusetts, by some authentic act, to declare or recognize such state of civil war, and such duty of Massachusetts as an ally; or, if this portion of the sovereignty of the State is delegated to the general government, then it is further to recognize and declare the casus foederis, and by ordering out regular troops, and the ships of war, or by drafts of militia from other States, or otherwise, to direct the measures to be pursued. If it were true, as claimed by the defendants, that one State is the sole and exclusive judge of the necessity for waging war against its rebel subjects, and thereupon to confer on their troops an authority to make an unlimited use of the territories of all other States, it would be placing such States in a state of war, without their own consent, or the consent of the general government, to whom the power of judging and acting, in the case supposed, has been confided by the constitution. Such a state of things would tend greatly to destroy the peace, and put at hazard the security, of the States and their citizens. Besides ; such a principle, if admitted, would leave neither to the government of the State, the use of whose territory is thus claimed for hostile purposes, nor to the government of the United States, intrusted with that portion of the sovereign power of the States, the power of deciding whether the government of a State, at war with its citizens, is the true and legitimate government, or a mere usurped authority. Such a claim appears to us to be wholly untenable.
But further; the prayer for instruction assumed that the [88]*88acts done by the defendants, with the armed party accompanying them, who proceeded to Bellingham, entered the house of Crooks, and seized and carried away Olney and others, as rebels against the authority of the State of Rhode Island, were done under the sovereign authority of the State, either by a previous order, emanating from the government, or that the acts done in their name were subsequently, in due form, ratified, adopted and expressly sanctioned by the authority of the State of Rhode Island, so as to transfer the responsibility, whatever it was, from the individuals to the State. But so far from this, the case shows that they acted under the authority of an order, given by Major Martin, to do the specific duty, in conformity with a more general direction from the military commanding officer, directing the officers and soldiers to scour the country, to the distance of fifty miles, without regard to state lines, in oraer to secure the insurgents who had fled. The specific order to cross the lines of Massachusetts did not emanate from the government; it was an ordinary military operation, undertaken by the military officers, in pursuance of their general duty to defend the State against the insurgent forces. And so far from being specifically ratified, sanctioned and adopted,' by the State of Rhode Island, the governor, when applied to for that purpose by the governor of Massachusetts, declined so to do, but repudiated it, and denied that it was done by authority of the State. And the act, stated in the bill of exceptions, passed by the legislature of Rhode Island, to indemnify these defendants, against certain expenses occasioned by their prosecution, is far from that express adoption which will secure the citizen by taking the responsibility upon the State.
The other matters assumed in the prayer in question relate to the particular situation of the men at the time, as being captured just over the lines, &c. These are not of much importance, but do not seem to be warranted by the evidence.
And the court are also of opinion, that the instruction actually given, under this prayer, viz. that the acts of the [89]*89defendants were unlawful, unless done in the necessary defence of the lives and property of the citizens of Rhode Island, or in the necessary defence of the State, was sufficiently favorable to the defendants.
The last prayer for instruction is thus stated : The counsel for the defendants further prayed the court to instruct the jury, that if they found that the said Blodgett and Hendrick were citizens of Rhode Island, actually serving as soldiers in the ranks, with the troops of Rhode Island, under regular military command, in time of civil war and domestic insurrection in said State, and under martial law, and were duly ordered by their lawful military superiors, acting under and by authority of the State of Rhode Island, to cross the lines and arrest, within the territory of Massachusetts, the said Olney, Ballou, Whipple and Walker, rebel citizens of Rhode Island, recently fled to Massachusetts, for refuge merely, from the troops of Rhode Island, they were not personally liable, in the criminal courts of Massachusetts, for executing such orders without excess or unnecessary violence; but that the State of Rhode Island was alone responsible to the State of Massachusetts for the violation of her territorial rights. This instruction the court refused to give, but did instruct the jury that the defendants were personally liable, in the criminal courts of this Commonwealth, for the acts done by them as aforesaid, under the orders of the State of Rhode Island, notwithstanding such orders given, and only by them faithfully executed.
Upon this ground, the main argument, in justification 01 excuse of the defendants, has been placed. We are to presume that the instructions and directions asked for were so asked for in reference to the case stated in the bill of exceptions, and not as mere abstract propositions; and, as such, their correctness in point of law, and their adaptation to the case on trial, are to be considered. It was then a request to the judge, to instruct the jury, that if the ordinary military officers of a State, in the exercise of the military powers vested in them for the defence and protection of the State against an [90]*90insurrection, after martial law declared by the legislature, should order subordinate officers and soldiers to enter a neutral territory, the territory of another State, to arrest and secure the persons of rebel citizens, recently in arms, the persons thus ordered, being bound to obey, under the penalties of disobedience of a military command which they have no means of resisting, would not subject themselves to the animadversion of the criminal laws of the State whose territory is thus violated. This proposition, we think, cannot be maintained, upon any well recognized principle of public law. It would be an authority to every military officer, superior or subordinate,, by means of orders to those under him, in all cases where military forces are raised and organized, to extend hostilities indefinitely into the territories of neutral and independent States, to the imminent danger of the lives, property and possessions of the subjects of such neutral State; and the only remedy for the injured party would be by way of remonstrance to the government of the party doing such wrong. But, surely, this is not one of the ordinary or incidental powers conferred upon military officers by their own government. They are indeed to defend the territory and the just rights of their States by warlike measures; but these must be taken in reference to the just rights and limited powers of the State itself, under whose authority they act, and they cannot, by force of such authority, commit hostile acts against independent States, with whom their own State is at peace. If such military entry into the territory of a neutral State is supposed necessary, such act is a high prerogative of sovereignty, and the necessity of it must be judged of, and the warrant for it must be given by the express command or direction of the sovereign authority. Any other principle would make the peace of any State depend upon the judgment and discretion, or even the rash and ill judged act, of every military officer, in time of war.
It has been argued upon the ground, that men ought not to be held responsible for acts done in obedience to orders which they are compelled to obey, under severe military [91]*91discipline. But this is not the true principle ; and it would be dangerous in the extreme to carry it out into its consequences. The more general and the sounder rule is, that he who does acts injurious to the rights of others can excuse himself, as against the party injured, by pleading the lawful commands only of a superior, whom he is bound to obey. A man may be often so placed in civil life, and more especially in military life, as to be obliged to execute unlawful commands, on pain of severe penal consequences. As against the party giving such command, he will be justified ; in foro consdentice he may be excusable ; but towards the party injured, the act is done at his own peril, and he must stand responsible.
Had the government of Rhode Island ordered the expedition into Massachusetts, it would have presented the question argued in the present case, viz. whether the men would have been protected by such order, and the State- alone be responsible. War may be made without being declared; and when it is so made and recognized by the governments of the respective parties, then the rights belonging to belligerents, and incident to war, attach to the States and their respective citizens and subjects, in arms or otherwise. The argument in excuse of the defendants, to be effectual, must be put upon the ground, and g i to the extent, that in the actual state of things, there was war de facto, between Rhode Island and Massachusetts. But this is too extravagant a view to be taken by any aspect in which, upon the facts, the case can be placed. These facts show that the proceeding of Blodgett and others, in passing over the lines of Massachusetts, and doing the acts which are the subject of this prosecution, though ordered by Major Martin, acting under the general authority of Major-General McNeill, was not the act of the State of Rhode Island, either by previous special authority, or subsequent ratification or adoption. The authority of the commanding and other military officers is prima fade limited to the defence of the territory and territorial rights of the State appointing them, and must stand so limited, unless it is shown that an authority was specially vested in them by the State, to enter the territory of [92]*92another State. In the present case, if the act itself was equivocal, it was put beyond doubt, by the answer and denial of the governor of Rhode Island, that the act was not authorized or adopted as the act of the State. The acts of the defendants then, being plainly a violation of the rights and laws of Massachusetts, and of the legal rights of persons lawfully within its protection, and being denied and repudiated as an act of the State of Rhode Island, it follows, as a necessary legal consequence, that it was a lawless and unjustifiable act of violence on the part of the defendants, subjecting them, and all who assisted them, to be punished for such violation, by our laws.
If these States had stood in the relation, in all respects, of foreign states, (which is the supposition in the argument, and the one, perhaps, most favorable to the defendants,) we do not see how they could make out their justification, since the executive of Rhode Island has repudiated .the act as an act of the State.
Whether, if the measure of sending a military force into Massachusetts, being in its nature an act of wax, would have justified, and rendered the persons sent free from punishment, the facts of this case do not require us to consider. It would depend upon questions arising out of the peculiar relations in which the States stand to each other and to the general government. The constitution of the United States still recognizes that qualified sovereignty of a State, so far as to raise military forces for their own protection and defence, against both foreign invasion and domestic insurrection. The first security of a State against violence is to be sought in the duty imposed on the United States government, to take order in that respect. If, for any cause and by any means, imperious necessity or otherwise, that fails, and the State in which insurrection arises is left to take care of its own defence, it may be a grave question, whether such State would not he remitted to its natural and original rights of sovereignty, with its recognized incidents, to the extent necessary to meet that exigency, and for that purpose to issue the necessary declarations, [93]*93enter into stipulations with other States, and the like. But even in that case, soldiers and others, acting in the defence of such a State, could have no higher rights, no higher claim of impunity for acts done to the injury of others, than the citizens and subjects of a sovereign and independent State, acting under like circumstances.
On the whole, the court are of opinion that the instructions were correct and carefully considered, as well as the refusal of instructions prayed for, and therefore that the exceptions must be overruled.