Statement of Facts.

of November 17, 1880; but Congress has not made such provision in § 5519, Rev. Stat., nor in § 5508, nor in § 5336.

Section 5519, Rev. Stat., is unconstitutional as a provision for the punishment of a conspiracy, within a state, to deprive an alien of rights guaranteed to him therein by a treaty of the United States: whether it can be enforced in a territory, against persons conspiring there with that object, is not now decided.

United States v. Reese, 92 U. S. 214, affirmed, and applied to the facts in this case.

To give effect to the rule that when part of a statute is constitutional and part is unconstitutional, that which is constitutional will, if possible, be enforced, and that which is unconstitutional will be rejected, the two parts must be capable of separation, so that each can be read by itself; limitation by construction is not separation.

Packet Co. v. Keokuk, 95 U. S. 80, and Presser v. Illinois, 116 U. S. 252, distinguished.

In describing the offence against a citizen of the United States for which punishment is provided by Rev. Stat. § 5508, the word "citizen" is used in its political sense, with the same meaning which it has in the Fourteenth Amendment to the Constitution; and not as being synonymous with "resident," "inhabitant," or "person."

To constitute the offence described in the first clause of Rev. Stat. § 5336, it is not enough that a law of the United States is violated, but there must be a forcible resistance to a positive assertion of their authority as a government.

To constitute an offence under the second clause of Rev. Stat. § 5336 there must be a forcible resistance to the authority of the United States while they are endeavoring to carry their laws into execution.

PETITION for writ of habeas corpus. The petitioner set forth that he was arrested by the defendant in error, United States Marshal for the District of California, under a warrant issued by a commissioner of the Circuit Court of the United States charging him with conspiring with others to deprive certain subjects of the Emperor of China "of the equal protection of the laws and of equal privileges and immunities under the laws." The petition set forth the warrant, describing the alleged illegal acts, and closed with this averment and prayer:

"And your petitioner claims and avers that the said commissioner of the said Circuit Court had no jurisdiction or authority to issue the said warrant, or to commit your said petitioner to the custody of the said United States Marshal, for the said offence alleged in the said complaint, nor has the said

Opinion of the Court.

Marshal any warrant or authority of law to confine your said petitioner or restrain him of his liberty, as aforesaid; that the offence charged in the said complaint, and for which the said warrant was issued, and for which your said petitioner is now being held in confinement, is one purely of state jurisdiction, and over which the Government of the United States and its

tribunals have no jurisdiction whatsoever. That your peti

tioner is a citizen of the United States and of the state of California, and that said offence is alleged to have been committed in the county of Sutter and within the jurisdiction of said state; Wherefore, to be relieved of said unlawful detention and imprisonment, your petitioner prays that a writ of habeas corpus, to be directed to the said J. C. Franks, may issue in this behalf, so that your petitioner may be forthwith brought before this court to do, submit to, and receive what the law may require."

The court below refused the writ. The petitioner then sued out this writ of error.

Mr. A. L. Hart for plaintiff in error.

Mr. Hall Me Allister for defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This is a writ of error brought by Thomas Baldwin, the plaintiff in error, for the review of a judgment of the Circuit Court of the United States for the District of California refusing his discharge, on a writ of habeas corpus, from the custody of the marshal of the district, and the questions presented for consideration arise on a certificate of the judges, holding the court, of a division of opinion between them in the progress of the trial. The record shows that Baldwin was held in custody by the marshal, under a warrant issued by a commissioner of the Circuit Court, on a charge of conspiracy with Bird Wilson, William Hays, and others to deprive Sing Lee and others, belonging to "a class of Chinese aliens, being . . subjects of the Emperor of China, of the equal protection of the laws and of equal privileges and immunities under the laws,

for that said

Opinion of the Court.

persons so belonging to the class of reside at the town of Nicolaus,

Chinese aliens did then in said county of Sutter, in said State of California, and were engaged in legitimate business and labor to earn a living, as they had a right to do, and they at that time had a right to reside at said town of Nicolaus, and engage in legitimate business and labor to earn a living, under and by virtue. of the treaties existing, and which did then exist, between the Government of the United States and the Emperor of China, and the Constitution and laws of the United States; but, nevertheless, while said persons were residing and pursuing their legitimate business and labor for the purpose aforesaid, said conspirators ... did, having conspired together for that purpose, unlawfully and with force and arms, violently and with intimidation, drive and expel said persons, belonging to said class of

and did

SO

under

Chinese, from their residence at said town of Nicolaus, . deprive them . . of the privilege of conducting their legitimate business and of the privilege of laboring to earn a living, and, without any legal process, placed said Chinese aliens. unlawful restraint and arrest, and so detained them for several hours, and . . . by force and arms, and with violence and intimidation, placed them upon a steamboat barge, then plying on the Feather River, and drove them from their residence and labor and from said county."

The questions certified relate only to the sufficiency of this charge for the detention of the prisoner. There are nine questions in all, the first six having reference to § 5519 of the Revised Statutes, and the others to $$ 5508 and 5336, as the authority for the prosecution. The fourth fairly presents the whole case as it arises under $ 5519, and that is as follows:

"4. Whether a conspiracy of two or more persons in the State of California, for the purpose of depriving Chinese residents, lawfully residing in California, in pursuance of the provisions of the several treaties between the United States and the Emperor of China, of the right to live and pursue their lawful vocations at the town of Nicolaus in said State,

Opinion of the Court.

and in pursuance of such conspiracy, actually, forcibly expelling such Chinese from said town, in the manner shown by the record, is: 1. A violation of and an offence within the meaning of § 5519 of the Revised Statutes of the United States. 2. Whether said section, so far as it applies to said state of facts and such Chinese residents, and makes the acts stated an offence against the United States, is constitutional and valid?"

The seventh presents all the points for consideration under $$ 5508 and 5336, as follows:

"7. Where two or more persons, with or without disguise, go upon the premises of Chinese subjects, lawfully residing in the State of California, with intent to prevent and hinder their free exercise or enjoyment of any right secured to them by the several treaties between the United States and the Emperor of China, and, in pursuance of such conspiracy, forcibly prevent their exercise and enjoyment of such rights, and expel such Chinese subjects from the town in which they reside:

"Whether (1) such acts so performed constitute an offence within the meaning of the provisions of § 5508 of the Revised Statutes of the United States? and,

"(2) If so, whether the provisions of said section, so making said acts an offence, are constitutional and valid?

"(3) Whether such acts so performed constitute an offence within the meaning of that clause of § 5336 of the Revised Statutes of the United States, which makes it an offence for two or more persons in any state to conspire, 'by force, to prevent, hinder, or delay the execution of any law of the United States,' or within the meaning of any other clause of said section? and,

"(4) Whether said section, so far as applicable to the facts stated, is a constitutional and valid law of the United States?"

The precise question we have to determine is not whether Congress has the constitutional authority to provide for the punishment of such an offence as that with which Baldwin is charged, but whether it has so done.

That the treaty-making power has been surrendered by the states and given to the United States, is unquestionable. It is

Opinion of the Court.

true, also, that the treaties made by the United States and in force are part of the supreme law of the land, and that they are as binding within the territorial limits of the states as they are elsewhere throughout the dominion of the United States.

Articles II and III of a treaty between the United States and the Emperor of China, concluded November 17, 1880, and proclaimed by the President of the United States, October 5, 1881, are as follows:

"ARTICLE II. Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities and exemptions which are accorded to the citizens and subjects of the most favored nation."

"ARTICLE III. If Chinese laborers or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, the Government of the United States will exert all its power to devise measures for their protection and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty." 22 Stat. 827.

That the United States have power under the Constitution to provide for the punishment of those who are guilty of depriving Chinese subjects of any of the rights, privileges, immunities, or exemptions guaranteed to them by this treaty, we do not doubt. What we have to decide, under the questions certified here from the court below, is, whether this has been done by the sections of the Revised Statutes specially referred to. These sections are as follows:

"SEC. 5519. If two or more persons in any state or territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection