United States v. Wheeler/Opinion of the Court
The case is here under the Criminal Appeals Act (Comp. St. § 1704) to directly review a judgment quashing an indictment against the 25 persons who are defendants in error. The indictment contained four counts, but as the fourth is now abandoned by the government we need not consider it.

The first count charged the accused with conspiring, in violation of section 19 of the Criminal Code (Comp. St. § 10183), to injure, oppress, threaten, or intimidate 221 named persons, alleged to be citizens of the United States residing in Arizona, of rights or privileges secured to them by the Constitution or laws of the United States; that is to say, the right and privilege pertaining to citizens of said state peacefully to reside and remain therein and to be immune from unlawful deportation from that state to another. And th overt acts alleged were: The arming of the conspirators; the seizure and holding of the persons named until by means of a railway train procured for that purpose they were forcibly transported into New Mexico, and in that state released under threat of death or great bodily harm should they ever return to the state of Arizona.

The second count was the same as the first, except that only 25 of the persons alleged in the first count to have been injured were named, and they were stated to be citizens of the United States residing in, but not citizens of, the state of Arizona.

The third count was also identical with the first, except that it embraced only 196 of the injured persons named in the first count and 1 additional person not therein named, all being declared to be citizens of the United States and of the state of Arizona, residing in that state.

The court quashed the indictment, on the ground that no power had been delegated by the Constitution to the United States to forbid and punish the wrongful acts complained of, as the right to do so was exclusively within the authority reserved by that instrument to the several states. As the entire case will be disposed of by testing the accuracy of this view, we come immediately to consider that subject.

In argument, the asserted error in the conclusion is based, not upon the direct result of any particular provision of the Constitution, but upon implications arising from that instrument as a whole, the conditions existing at the time of its adoption, and the consequences inevitably produced from the creation by it of the government of the United States. A wide field of inquiry common to all the contentions is thus opened. In order, therefore, to afford a common basis by which to measure the correctness of the various implications insisted upon, we state under separate headings doctrines which are applicable to all the contentions, and which are in reason so well founded and so conclusively sustained by authority as to be indisputable.

(a) In all the states, from the beginning down to the adoption of the Articles of Confederation, the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom, with a consequent authority in the states to forbid and punish violations of this fundamental right. Corfield v. Coryell, 4 Wash. C. C. 371, 380, 381, Fed. Cas. No. 3,230; Slaughterhouse Cases, 16 Wall. 36, 76, 21 L. Ed. 394.

(b) Whether, in disregard of the principles of comity, any of the states recognized in their own citizens rights on this subject which they refused to grant to citizens of other states, we need not consider, in view of the provision of the Articles of Confederation on the subject. By that provision uniformity was secured, not by lodging power in Congress to deal with the subject, but, while reserving in the several states the authority which they had theretofore enjoyed, yet subjecting such authority to a limitation inhibiting the power from being used to discriminate. The text of article 4 which provides for this subject is as follows:

'The better to secure and perpetuate mutual friendship and      intercourse among the people of the different states in this      Union, the free inhabitants of each of these states, paupers,      vagabonds and fugitives from justice excepted, shall be      entitled to all privileges and immunities of free citizens in      the several states; and the people of each state shall have      free ingress and egress to and from any other state, * * *'

Thus, while power remained in the several states, the boundaries demarking them became, at least for the purpose of the enjoyment of the right here in question, negligible, and the frontiers of the Confederation became the measure of the equal right secured to the inhabitants of each and all the states.

(c) That the Constitution plainly intended to preserve and enforce the limitation as to discrimination imposed upon the states by article 4 of the Confederation, and thus necessarily assumed the continued possession by the states of the reserved power to deal with free residence, ingress and egress, cannot be denied for the following reasons: (1) Because the text of article 4, § 2, of the Constitution, makes manifest that it was drawn with reference to the corresponding clause of the Articles of Confederation and was intended to perpetuate its limitations; and (2) because that view has been so conclusively settled as to leave no room for controversy. Thus in Paul v. Virginia, 8 Wall. 168, 180, 19 L. Ed. 357, considering the operation and effect of article 4, § 2, of the Constitution, it was said:

'It was undoubtedly the object of the clause in question to      place the citizens of each state upon the same footing with      citizens of other states, so far as the advantages resulting      from citizenship in those states are concerned. It relieves      them from the disabilities of alienage in other states; it      inhibits discriminating legislation against them by other      states; it gives them the right of free ingress into other      states, and egress from them; it insures to them in other      states the same freedom possessed by the citizens of those      states in the acquisition and enjoyment of property and in      the pursuit of happiness; and it secures them in other      estates the equal protection of their laws. It has been      justly said that no provision in the Constitution has tended      so strongly to constitute the citizens of the United States      one people as this.

'Indeed, without some provision of the kind removing from the      citizens of each state the disabilities of alienage in the      other states, and giving them equality of privilege with      citizens of those states, the republic would have constituted      little more than a league of states; it would not have      constituted the Union which now exists.'

Again, in Ward v. Maryland, 12 Wall. 418, 430 (20 L. Ed. 449), upon the same subject, the court declared:

'Attempt will not be made to defind the words 'privileges and      immunities,' or to specify the rights which they are intended      to secure and protect, beyond what may be necessary to the      decision of the case before the court. Beyond doubt those      words are words of very comprehensive meaning, but it will be      sufficient to say that the clause plainly and unmistakably      secures and protects the right of a citizen of one state to      pass into any other state of the Union for the purpose of      engaging in lawful commerce, trade, or business without      molestation; to acquire personal property; to take and hold real estate; to maintain actions      in the courts of the state; and to be exempt from any higher      taxes or excises than are imposed by the state upon its own      citizens.'

In the Slaughterhouse Cases, 16 Wall. 36, 75, 76, 21 L. Ed. 394, the court, after reciting both the provisions of article 4 of the Confederation and article 4, § 2, of the Constitution, said:

'There can be but little question that the purpose of both      these provisions is the same, and that the privileges and      immunities intended are the same in each. In the article of      the Confederation we have some of these specifically      mentioned, and enough perhaps to give some general idea of      the class of civil rights meant by the phrase.

'Fortunately we are not without judicial construction of this      clause of the Constitution. The first and leading case on the      subject is that of Corfield v. Coryell, decided by Mr.      Justice Washington in the Circuit Court for the District of      Pennsylvania in 1823.

"The inquiry,' he says, 'is, What are the privileges and      immunities of citizens of the several states? We feel no      hesitation in confining these expressions to those privileges      and immunities which are fundamental, which belong of right      to the citizens of all free governments, and which have at      all times been enjoyed by citizens of the several states      which compose this Union, from the time of their becoming      free, independent, and sovereign. What these fundamental      principles are it would be more tedious than difficult to      enumerate. They may all, however, be comprehended under the      following general heads: Protection by the government, with      the right to acquire and possess property of every kind, and      to pursue and obtain happiness and safety, subject,      nevertheless, to such restraints as the government may      prescribe for the general good of the whole.' 'This definition of the privileges and immunities of   citizens of the states is adopted in the main by this   court in the recent case of Ward v. State of Maryland,   while it declines to undertake an authoritative   definition beyond what was necessary to that decision.   The description, when taken to include others not named,   but which are of the same general character, embraces   nearly every civil right for the establishment and   protection of which organized government is instituted.   They are, in the language of Judge Washington, those   rights which are fundamental. Throughout his opinion,   they are spoken of as rights belonging to the individual   as a citizen of a state. They are so spoken of in the   constitutional provision which he was construing. And   they have always been held to be the class of rights   which the state governments were created to establish   and secure.'

The controlling influence of the opinion in the Slaughterhouse Cases, as well as that of Mr. Justice Washington in Corfield v. Coryell, stand out in bolder relief when it is observed that in the latter case, following the statement of the general principles contained in the passage quoted in the Slaughterhouse Cases, there is found, by way of illustration, an enumeration of particular rights declared to be clearly embraced by the general principles, one of which is described as:

'The right of a citizen of one state to pass through, or      reside in any other state, for purposes of trade,      agriculture, professional pursuits, or otherwise.'

Applying these doctrines, let us come to test the soundness of the implications from the Constitution relied upon to establish the absence of all state authority to deal with the individual wrongs complained of, and the possession by the federal government of power for that purpose, and, as pertinent thereto, to refer briefly to the authorities which it is assumed sustained those implications.

Undoubtedly the right of citizens of the states to reside peacefully in, and to have free ingress into and egress from, the several states had, prior to the Confederation, a twofold aspect: (1) As possessed in their own states; and (2) as enjoyed in virtue of the comity of other states. But although the Constitution fused these distinct rights into one, by providing that one state should not deny to the citizens of other states rights given to its own citizens, no basis is afforded for contending that a wrongful prevention by an individual of the enjoyment by a citizen of one state in another of rights possessed in that state by its own citizens was a violation of a right afforded by the Constitution. This is the necessary result of article 4, § 2, which reserves to the several states authority over the subject, limited by the restriction against state discriminatory action, hence excluding federal authority, except where invoked to enforce the limitation, which is not here the case; a conclusion expressly sustained by the ruling in United States v. Harris, 106 U.S. 629, 645, 1 Sup. Ct. 601, 27 L. Ed. 290, to the effect that the second section of article 4, like the Fourteenth Amendment, is directed alone against state action. And this was but a summary of what had been previously pointed out in the Slaughterhouse Cases, 16 Wall. 36, 21 L. Ed. 394, where, in dealing with the privileges and immunities embraced by article 4, § 2, of the Constitution, it was observed (page 77):

'It would be the vainest show of learning to attempt to prove      by citations of authority that up to the adoption of the      recent amendments, no claim or pretence was set up that those      rights depended on the federal government for their existence      or protection, beyond the very few express limitations which      the federal Constitution imposed upon the states-such, for      instance, as the prohibition against ex post facto laws,      bills of attainder, and laws impairing the obligation of      contracts. But, with the exception of these and a few other      restrictions, the entire domain of the privileges and      immunities of citizens of the states, as above defined, lay      within the constitutional and legislative power of the states, and without that of the federal government.'

Nor is the situation changed by assuming that as a state has the power, by depriving its own citizens of the right to reside peacefully therein and to free ingress thereto and egress therefrom, it may, without violating the prohibitions of article 4 against discrimination, apply a like rule to citizens of other states, and hence engender, outside of article 4, a federal right. This must be so, since the proposition assumes that a state could, without violating the fundamental limitations of the Constitution, other than those of article 4, § 2, enact legislation incompatible with its existence as a free government and destructive of the fundamental rights of its citizens, and, furthermore, because the premise upon which the proposition rests is state action and the existence of federal power to determine the repugnancy of such action to the Constitution, matters which, not being here involved, are not disputed.

This leads us furthermore to point out that the case of Crandall v. Nevada, 6 Wall. 35, 18 L. Ed. 745, so much relied upon in the argument, is inapplicable, not only because it involved the validity of state action, but because the state statute considered in that case was held to directly burden the performance by the United States of its governmental functions and also to limit rights of the citizens growing out of such functions; and hence it also follows that the observation made in Twining v. New Jersey, 211 U.S. 78, 97, 29 Sup. Ct. 14, 53 L. Ed. 97, to the effect that it had been held in the Crandall Case that the privilege of passing from state to state is an attribute of national citizenship, may here be put out of view as inapposite.

With the object of confining our decision to the case before us, we say that nothing we have stated must be considered as implying a want of power in the United States to restrain acts which, although involving ingress or egress into or from a state, have for their direct and necessary effect an interference with the performance of duties which it is incumbent upon the United States to discharge, as illustrated in the Crandall Case, supra.

Judgment affirmed.

Mr. Justice CLARKE dissents. 

Notes