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Argument for the United States.

ination by the State, without "reasonable ground for the diversity of treatment." Travis v. Yale & Towne Mfg. Co., 252 U. S. 60. His only remedy, therefore, under § 2 of Art. IV for actions such as are complained of in the case at bar would be by prosecution in the state courts, if the laws of the State provided such a remedy. It is possible that Congress might provide a remedy, if the State discriminated against him, in regard to such outrages, on account of his outland citizenship; but Congress (so far as we are aware) has never done so. At any rate § 19, Crim. Code, does not do so. It is therefore not enough in the case at bar to show that the right set up in the indictment is a fundamental right common to all citizens of civilized States everywhere. It must be shown in addition that it is a right peculiar to the complex, federal citizenship which is at the basis of the "indissoluble Union of indestructible States" created by the Constitution of the United States.

In this term "citizen of the United States," are included two fundamental concepts, bound together and interacting, viz., the concept of "the United States" as a corporate entity, exercising full and paramount sovereignty within its constitutional powers over all the persons within its territorial limits, and the concept of the several States as a collective body, retaining all their sovereign powers and activities over the persons within their territorial limits except in so far as those powers have been granted to the collective aggregate. Langdell, 12 Harvard Law Rev. 365, 367-370; Tennessee v. Davis, 100 U. S. 257, 263; Ex parte Siebold, 100 U. S. 371, 394; Hoke v. United States, 227 U. S. 308, 321, 322.

The existence of the States prevents a citizen of the United States from deriving, as such, a right under the Constitution to territorial mobility within the limits of any particular State. To that extent he is dependent upon the laws and agencies of the several States. The right, how

Argument for the United States.

254 U.S.

ever, to move freely, suo intuitu, from one State into another is an entirely different matter and brings into the problem the concept of the Union. It is a right necessarily inherent in federal citizenship and secured, therefore, by the Constitution. Unless this be true, no Union was in fact established in 1789, because no less than this can be properly attributed to citizenship of the United States.

The injury done by the defendants in this case has a double aspect, one toward the individuals deported and the other toward the State into which they were deported. By their deportation the individuals became, or might become, a charge upon the State of New Mexico, a disturbance of its peace, or an offense to its own state policy. According to the decisions of this court, and especially Kansas v. Colorado, and Missouri v. Illinois, supra, the offended State was secured by the Constitution a right to sue the offending State in the federal courts, and to have applied there, not the law of the offending State, but a general or international law. Is not this a strong reason for believing that the Constitution also secured a right to the individuals, not as citizens of Arizona but as citizens of the United States, to have their cases determined in a federal court by federal law?

In every case in which this court has applied § 19, Crim. Code, the claim that the offense was only assault, murder, kidnapping, etc., could have been, and in some of them evidently was made. Yet this court upheld the federal jurisdiction because the real purpose of the conspiracy was, not to murder, assault, etc., but to prevent voting, to prevent informing of crime, to prevent egress from a State. United States v. Waddell, 112 U. S. 76, 80; Buchanan v. United States, 233 Fed. Rep. 257.

The Fourteenth Amendment has had no effect upon the question presented in this case, except incidentally in so far as it has, perhaps, enlarged and constitutionally fixed

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Argument for the United States.

the status of a citizen of the United States. That status was fully recognized before the Amendment. See the discussion, including the decision by Mr. Justice Johnson in Ex parte Eckstein, and an opinion by Attorney General Wirt, relative to acts of South Carolina affecting the ingress and egress of free negroes. (Reports Committees, 27th Cong., 3d sess., House Rep. 80, pp. 15, 27, 35; Mass. Legal Docs., 1845, Senate No. 31.) See also Prigg v. Pennsylvania, 16 Pet. 539; Passenger Cases, 7 How. 283, 465-467, 492; Crandall v. Nevada, 6 Wall. 35, 43-45. Crandall v. Nevada has been referred to by this court in later cases with full approval, and undoubtedly represents the settled law. It is on principle decisive of the case at bar. Slaughter-House Cases, 16 Wall. 36, 79, 80; Twining v. New Jersey, 211 U. S. 78, 97, 98; Cooley, Principles of Constitutional Law, pp. 245, 246.

The point that in Crandall v. Nevada, the action complained of was by the State itself, whereas in the case at bar it is by individuals, does not distinguish that case from this one. If the right be one secured by the Constitution, Congress may protect it against action by individuals, as well as against action by the State, if it deem the former mode appropriate to the end. This is decided in Prigg v. Pennsylvania, supra. The Fourteenth Amendment expressly banned state action, but it did not limit the general and original power of Congress to protect rights secured by the Constitution in such manner as it thought most effective. This is proved by the case of Crandall v. Nevada itself, which arose prior to the Fourteenth Amendment and can therefore derive no assistance from its provisions. The fact that only state action was before the court in that case proves nothing as to the question whether a right of a citizen is secured under the Constitution only against state action. Indeed, the fallacy of the argument is shown by all the decisions which have held § 19, Crim. Code, constitutional. Particular reference may be made

Argument for the United States.

254 U.S.

to the statement of this court in United States v. Reese, 92 U. S. 214, 217.

As for the authorities after the Fourteenth Amendment, [Slaughter-House Cases, 16 Wall. 36, where the court stated that a citizen of the United States has a right specially secured under the Amendment to reside in a State for the purpose of acquiring citizenship thereina right clearly violated in the case at bar-Justice Bradley's dissenting opinion, 16 Wall. 112, 113; United States v. Reese, 92 U. S. 214; James v. Bowman, 190 U. S. 127; United States v. Cruikshank, 92 U. S. 542, 552, 553; Strauder v. West Virginia, 100 U. S. 303; Ex parte Virginia, 100 U. S. 339; Ex parte Siebold, 100 U. S. 371; Ex parte Yarbrough, 110 U. S. 651, 663-666; Wiley v. Sinkler, 179 U. S. 58; Swafford v. Templeton, 185 U. S. 487; United States v. Mosley, 238 U. S. 383, 386; United States v. O'Toole, 243 U. S. 476, 485–489; United States v. Bathgate, 246 U. S. 220; United States v. Harris, 106 U. S. 629; Hodges v. United States, 203 U. S. 1, 14; United States v. Powell, 212 U. S. 564; compare United States v. Shipp, 203 U. S. 563; Logan v. United States, 144 U. S. 263, 293-295; United States v. Waddell, 112 U. S. 76, 80; In re Quarles, 158 U. S. 532, 536; Motes v. United States, 178 U. S. 458, 462, 463; Baldwin v. Franks, 120 U. S. 678; United States v. Patrick, 54 Fed. Rep. 338, 347,] we submit that the decisions of this court on the subject of the rights secured by the Constitution to a citizen of the United States show not only that these rulings do not in any manner or to any extent limit or qualify the principles made the basis of the judgment in Crandall v. Nevada, supra, but that they reinforce that decision by the uniform and consistent opinion of this court that § 19, Crim. Code, constitutionally covers every right of a citizen of the United States, as such, whether it arise from some express provision of the Constitution, or whether it be implied in the very organization and healthy operations of the Na

281.

Argument for Defendants in Error.

tional Government which substituted for a mere league of States and a single state citizenship a real, vital Union based upon a citizenship of the United States.

Mr. Charles E. Hughes, with whom Mr. E. E. Ellinwood, Mr. John Mason Ross and Mr. Clifton Mathews were on the brief, for defendants in error:

There are two classes of rights enjoyed by citizens of the United States, as such, (a) rights by which one is entitled to protection merely against action by or on behalf of States where that action is in conflict with the provisions of the Federal Constitution, and (b) rights by which one is entitled to protection against the action of individuals. Section 19, Crim. Code, is not concerned with the former, but exclusively with the latter.

This distinction between federal rights which protect the citizen simply against state action, and federal rights which protect the citizen against the action of individuals, abundantly established by decisions of this court (United States v. Cruikshank, 92 U. S. 542, 554, 555; Virginia v. Rives, 100 U. S. 313, 318; United States v. Harris, 106 U. S. 629, 639; Civil Rights Cases, 109 U. S. 3, 11-13; James v. Bowman, 190 U. S. 127; Barney v. City of New York, 193 U. S. 430; Hodges v. United States, 203 U. S. 1, 14-16) has been disregarded in this prosecution. See also Karem v. United States, 121 Fed. Rep. 250; United States v. Moore, 129 Fed. Rep. 630; United States v. Powell, 151 Fed. Rep. 648, affd. 212 U. S. 564.

It thus appears that it is not enough for the Government to establish that there is a federal right, in order to invoke 19, if it appears, as we submit it does clearly appear in the present case, that the right is of that class which connotes protection only against state action.

The decisions may be searched in vain for any authoritative precedent applying § 19, unless there is a right to protection as against individual action and not simply as