And Mr. Justice McLean, in speaking of the same subject, in the same case, at page 22, says:
"It is true the criminal laws of the Federal and State Governments emanated from different sovereignties; but they operate on the same people, and should have the same end in view. In this respect the Federal Government, though sovereign within the limitation of its powers, may, in some sense, be considered as the agent of the States, to provide for the general welfare by punishing offences under its own laws within its jurisdiction."
I wish also to refer to the case of the United States vs. Booth, in 21 Howard—the opinion of Chief Justice Taney—in connection with the question of what the result is where the judiciary has not power to act. He says:
"The importance which the framers of the Constitution attached to such a tribunal, for the purpose of preserving internal tranquillity, is strikingly manifested by the clause which gives this Court jurisdiction over the sovereign States which compose this Union, when a controversy arises between them. Instead of reserving the right to seek redress for injustice from another State by their sovereign powers, they have bound themselves to submit to the decision of this Court, and to abide by its judgment. And it is not out of place to say, here, that experience has demonstrated that this power was not unwisely surrendered by the States; for, in the time that has already elapsed since this Government came into existence, several irritating and angry controversies have taken place between adjoining States, in relation to their respective boundaries, and which have sometimes threatened to end in force and violence, but for the power vested in this Court to hear them and decide between them.
"The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States and jurisdiction upon its Courts. In the first case, it provides that 'this Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the Judges in every State.' The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation; and, if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State Judges bound to carry it into execution."
And further on, speaking of the claimed right of the State of Wisconsin to discharge a prisoner convicted in the United States Court upon a criminal conviction, and to refuse afterwards to obey a writ of error issued out of the Supreme Court of the United States to review that judgment, he uses language of this kind:
"This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows necessarily out of the complex character of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the Constitution of the United States, independent of the other."
Now, if your honors please, upon that question still further—that where there is no possibility of the power of the judiciary being exercised, there being, as the learned Chief Justice expresses it in his own language, "two distinct and separate sovereignties within the same territorial space" exercising jurisdiction, the right of forcible resistance exists in the State governments. I beg to refer to the Federalist, No. 28, by Alexander Hamilton, p. 126. He says:
"It may safely be received as an axiom in our political system, that the State governments will in all possible contingencies afford complete security against invasions of the public liberty by the federal authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men as of the people at large. The Legislatures will have better means of information; they can discover the danger at a distance, and, possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition; they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty."
I refer also to the Federalist, No. 46, by James Madison, where he uses this language: