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Dissenting Opinion: Harlan, J.

arisen. But that is not what Baldwin has done. His conspiracy is for the ill treatment itself, and not for hindering or delaying the United States in the execution of their measures to prevent it. His force was exerted against the Chinese people, and not against the government in its efforts to protect them. We are compelled, therefore, to answer the third subdivision of the seventh question in the negative, and that covers the fourth subdivision.

This disposes of the whole case, and, without answering the questions certified more in detail,

We reverse the judgment of the Circuit Court, and remand the case for further proceedings not inconsistent with this opinion.

MR. JUSTICE HARLAN dissenting.

By the treaty of 1880-1881, with China, the Government of the United States agreed to exert all its power to devise measures for the protection, against ill treatment at the hands of other persons, of Chinese laborers or Chinese of any other class, permanently or temporarily residing, at the time, in this country, and to secure to them the same rights, privileges, immunities and exemptions to which the citizens or subjects of the most favored nation are entitled, by treaty, to enjoy here. It would seem from the decision in this case, that if Chinamen, having a right, under the treaty, to remain in our country, are forcibly driven from their places of business, the Government of the United States is without power, in its own courts, to protect them against such violence, or to punish those who, in this way, subject them to ill treatment. If this be so, as to Chinamen lawfully in the United States, it must be equally true as to the citizens or subjects of every other foreign nation, residing or doing business here under the sanction of treaties. with their respective governments.

I do not think that such is the present state of the law, and must dissent from the opinion and judgment of the court.

It is conceded in the opinion of the court to be within the constitutional power of Congress to provide - as by § 5508 of

Dissenting Opinion: Harlan, J.

the Revised Statutes it has done that "if two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined," &c. It is also conceded that, in the meaning of that section, a treaty between this Government and a foreign nation is a "law" of the United States; and that the wrongs done by Baldwin and others to the subjects of the Emperor of China, named in the warrant, prevented the free exercise and enjoyment of rights and privileges secured to those aliens by the treaty between the United States and China. I concur in these views, but am unable to assent to the proposition that the offence charged is not embraced by the foregoing section or by any other valid enactment of Congress.

My brethren hold that § 5508 describes only wrongs done to a "citizen;" in other words, that Congress did not intend, by that section, to protect the free exercise or enjoyment of rights secured by the Constitution or laws of the United States, except where citizens are concerned. This, it seems to me, is an interpretation of the statute which its language neither demands nor justifies. Observe, that the subject with which Congress was dealing was the protection of "any right or priv ilege" secured by the Constitution or laws of the United States. There is, perhaps, plausible ground for holding that the first clause of § 5508 embraces only a conspiracy directed against a "citizen." But the succeeding clause describes two other and distinct offences, namely, the going of two or more persons"in disguise on the highway," and the going of two or more persons "on the premises of another"- that is, upon the premises of another person with intent, in either case, to prevent or hinder the free exercise or enjoyment by such person of any right or privilege secured to him by the Constitution or laws of the United States. The use of the word

Dissenting Opinion: Harlan, J.

"another," instead of "citizen," in the latter clause, shows that, in respect of rights and privileges so secured, Congress had in mind the protection of persons, whether citizens or not. In this view, the statute is not unlike the Fourteenth Amendment, the first section of which recognizes as well rights appertaining to citizenship as rights belonging to persons. Baldwin and others, according to the statements in the warrant, certainly did go "on the premises of another," with the intent to interfere with rights which the court concede are secured by treaty, and, therefore, by the supreme law of the land. Chew Heong v. United States, 112 U. S. 536, 540; Head Money Cases, 112 U. S. 580. In my judgment the case is within both the letter and spirit of the statute. It is, however, excepted by the court from its operation by imputing to Congress the purpose of withholding national protection from those who do not happen to enjoy the privileges of American citizenship, a purpose inconsistent with the obligations which the nation has assumed by treaties with other countries. I cannot think it possible that Congress, while providing for the punishment of two or more persons, who go on the premises of a citizen, with intent to prevent his free exercise or enjoyment of rights secured by the Constitution or laws of the United States, purposely refrained from providing for the punishment of the same persons going on the premises of one, not a citizen, with intent to prevent the enjoyment by the latter of rights secured by the same Constitution and laws.

The rule of interpretation which the court lays down, if applied in other cases, will lead to strange results. We have statutes which give "to every person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws," &c., Rev. Stat. § 2289, 2290, and 2291, the right, for purposes of a homestead, and under certain conditions, to enter unappropriated public lands. The party making the entry, or, if he be dead, his widow, &c., will be entitled ultimately to receive a patent, provided he resides upon and cultivates the land for a certain length of time, and provided, in

Dissenting Opinion: Harlan, J.

the case of the foreigner, he shall have become a citizen of the United States prior to his application for a patent. Now, suppose that an entry is made, under the homestead statute, by a citizen, and a similar entry is made at the same time, in the same locality, by one who has only filed his declaration of intention to become a citizen. During the period of residence upon and cultivation of the lands both of the parties so making entries are, we will suppose, forcibly driven from the land by a lawless band of persons, with the intent to prevent them from perfecting their respective rights to a patent. In the case of the citizen thus wronged, we held in United States v. Waddell, 112 U. S. 76, that he may invoke the protection given by § 5508, and in that way have the wrong-doers punished in a court of the United States as therein prescribed. But in the case of the person who has only declared his intention to become a citizen, the wrong-doers cannot be reached by indictment in a court of the United States, because, under the decision in this case, that section only furnishes protection to citizens.

It is said though I believe no such suggestion is made by the court that the words "if two or more persons go in disguise on the highway, or on the premises of another," apply only when the offenders are "in disguise." I cannot suppose that Congress intended to make a distinction between wrongdoers going in disguise "on the premises of another," for the purpose of interfering with rights secured by the Constitution or laws of the United States, and wrong-doers who openly and without masks enter upon the same premises with a like unlawful purpose. It intended, rather, to guard the homes of all persons against invasion by combinations of lawless men, who seek, by entering those homes, to prevent the free exercise of rights secured by the Constitution or laws of the United States. If the clause had read, "if two or more persons go on the highway in disguise, or on the premises of another," it would never occur to any one that the words on the premises of another" were qualified by the words "in disguise." The free exercise of personal rights secured by the United States should not be made to depend upon the trifling circumstance that the

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Dissenting Opinion: Harlan, J.

words "in disguise" precede, rather than follow, the words "on the highway."

In my judgment the going of two or more persons, whether openly or in disguise, on the premises of another, whether the latter be a citizen or not, with intent to prevent his free exercise or enjoyment of a right secured by the Constitution or laws of the United States, was made by § 5508 an offence against the United States.

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I feel obliged also to express my non-concurrence in so much of the opinion of the court as holds that Congress is without power under the Constitution to make it-as by § 5519 of the Revised Statutes it is made an offence against the United States for two or more persons, in any state, "to conspire, or go in disguise on the highway, or on the premises of another, for the purpose of depriving, directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any state from giving or securing to all persons

within such state

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the equal protection of the laws." It is not necessary, in this case, to inquire what is the full scope of that clause of the Fourteenth Article of Amendment, which provides that "no state shall . . deny to any person within its jurisdiction the equal protection of the laws.” It is sufficient to say, that that provision does something more than prescribe the duty and limit the power of the states. Taken in connection with the fifth section, conferring upon Congress power to enforce the Amendment by appropriate legislation, that provision is equivalent to a declaration, in affirmative language, that every person within the jurisdiction of a state has a right to the equal protection of the laws; just as the prohibition in the Thirteenth Amendment, against the existence of slavery, operated not only to annul state laws upholding that institution, but to establish "universal civil and political freedom throughout the United States," and to invest every individual person within their jurisdiction with the right of freedom, Civil Rights Cases, 109 U. S. 3, 20; and just as the prohibition in the Fifteenth Amendment, against

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