Congress has power under the Constitution to provide for the
punishment of persons guilty of depriving Chinese subjects of any
of the rights, privileges, immunities, or exemptions guaranteed to
them by the Treaty
Page 120 U. S. 679
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 offense 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 offense 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 offense 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 offense alleged in
the said complaint, nor has the said
Page 120 U. S. 680
marshal any warrant or authority of law to confine your said
petitioner or restrain him of his liberty as aforesaid; that this
offense 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 petitioner is a citizen of the
United States and of the State of California, and that said offense
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. 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,
Page 120 U. S. 681
for that said . . . persons so belonging to the class of Chinese
aliens did then . . . reside at the Town of Nicolaus, 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 . .
. so 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 Chinese, . . . from their
residence at said Town of Nicolaus, . . . and did . . . 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 . . .
under 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,
Page 120 U. S. 682
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 offense 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 offense 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 to 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 offense 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 §, so making said
acts an offense, are constitutional and valid?"
"(3) whether such acts so performed constitute an offense within
the meaning of that clause of § 5336 of the Revised Statutes of the
United States which makes it an offense 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 offense as that with which Baldwin is
charged, but whether it has so done.
That the treatymaking power has been surrendered by the states
and given to the United States is unquestionable. It is
Page 120 U. S. 683
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
of the laws, or of equal privileges and immunities under the laws,
or for the purpose of preventing or hindering the constituted
authorities of any state or territory from giving or securing to
all persons within such state or territory the equal protection
Page 120 U. S. 684
of the laws, each of such persons shall be punished by a fine of
not less than five hundred nor more than five thousand dollars, or
by imprisonment, with or without hard labor, not less than six
months, nor more than six years, or by both such fine and
imprisonment."
"SEC. 5508. 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 of enjoyment of any right or privilege
so secured, they shall be fined not more than five thousand
dollars, and imprisoned not more than ten years, and shall,
moreover, be thereafter ineligible to any office, or place of
honor, profit, or trust created by the Constitution or laws of the
United States."
"SEC. 5336. If two or more persons in any state or territory
conspire to overthrow, put down, or to destroy by force the
government of the United States, or to levy war against them, or to
oppose by force the authority thereof, or by force to prevent,
hinder, or delay the execution of any law of the United States, or
by force to seize, take, or possess any property of the United
States contrary to the authority thereof, each of them shall be
punished by a fine of not less than five hundred dollars, and not
more than five thousand dollars, or by imprisonment, with or
without hard labor, for a period not less than six months, nor more
than six years, or by both such fine and imprisonment."
As the charge on which Baldwin is held in custody was evidently
made under § 5519, and that is the section which was most
considered in the court below, we will answer the questions based
on that first. It provides for the punishment of those who
"in any state or territory conspire . . . for
Page 120 U. S. 685
the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection oft he laws, or
of equal privileges or immunities under the laws."
In
United States v. Harris, 106 U.
S. 629, it was decided that this section was
unconstitutional, as a provision for the punishment of conspiracies
of the character therein mentioned, within a state. It is now said,
however, that in that case the conspiracy charged was by persons in
a state against a citizen of the United States and of the state, to
deprive him of the protection he was entitled to under the laws of
that state, no special rights or privileges a arising under the
Constitution, laws, or treaties of the United States being
involved, and it is argued that, although the section be invalid so
far as such an offense is concerned, it is good for the punishment
of those who conspire to deprive aliens of the rights guaranteed to
them in a state by the treaties of the United States. In support of
this argument, reliance is had on the well settled rule that a
statute may be in part constitutional and in part unconstitutional,
and that under some circumstances the part which is constitutional
will be enforced, and only that which is unconstitutional rejected.
To give effect to this rule, however, the parts -- that which is
constitutional and that which is unconstitutional -- must be
capable of separation so that each may be read by itself. This
statute, considered as a statute punishing conspiracies in a state,
is not of that character, for in that connection it has no parts
within the meaning of the rule. Whether it is separable so that it
can be enforced in a territory, though not in a state, is quite
another question, and one we are not now called on to decide. It
provides in general terms for the punishment of all who conspire
for the purpose of depriving any person, or any class of persons,
of the equal protection of the laws, or of equal privileges or
immunities under the laws. A single provision, which makes up the
whole section, embraces those who conspire against citizens as well
as those who conspire against aliens -- those who conspire to
deprive one of his rights under the laws of a state and those who
conspire to deprive him of his rights under the Constitution, laws,
or treaties of the
Page 120 U. S. 686
United States. The limitation which is sought must be made, if
at all, by construction, not by separation. This, it has often been
decided, is not enough.
Thus, in
United States v. Reese, 92 U. S.
214, the indictment was against two of the inspectors of
a municipal election in Kentucky, under §§ 3 and 4 of the Act of
May 31, 1870, c. 114, 16 Stat. 140, which provided in general terms
for the punishment of inspectors who should wrongfully refuse to
receive the vote of a citizen when presented under certain
circumstances, and for the punishment of those who by unlawful
means hindered or delayed any citizen from doing any act required
to be done to qualify him to vote, or from voting at any election.
There was nothing in either of the sections to limit their
operation to a refusal or hindrance "on account of the race, color,
or previous condition of servitude" of the voter, and it was held
that they were unconstitutional because, on their face, they were
broad enough to cover wrongful acts without, as well as within, the
constitutional power of Congress. An attempt was made there as here
to limit the statute by construction so as to make it operate only
on that which Congress might rightfully prohibit and punish, but to
this the Court said, p.
92 U. S.
221:
"For this purpose we must take these sections of the statute as
they are. We are not able to reject a part which is
unconstitutional and retain the remainder, because it is not
possible to separate that which is unconstitutional, if there be
any such, from that which is not. The proposed effect is not to be
attained by striking out or disregarding words that are in the
section, but by inserting those that are not now there. Each of the
sections must stand as a whole or fall altogether. The language is
plain. There is no room for construction unless it be as to the
effect of the Constitution. The question, then, to be determined is
whether we can introduce words of limitation into a penal statute
so as to make it specific when, as expressed, it is general
only."
This was answered in the negative, the Court remarking: "To
limit his statute in the manner now asked for would be to make a
new law, not to enforce an old one."
Following this were the
Trademark Cases, 100 U. S.
82, in
Page 120 U. S. 687
which there were indictments under §§ 4 and 5 of the Act of
August 14, 1876, c. 274, 19 Stat. 141, "to punish the
counterfeiting of trademark goods, and the sale or dealing in of
counterfeit trademark goods." Of this act the Court said, speaking
through MR. JUSTICE MILLER, p.
100 U. S. 98,
that its broad purpose
"was to establish a universal system of trademark registration
for the benefit of all who had already used a trademark or who
wished to adopt one in the future, without regard to the character
of the trade to which it was to be applied or the residence of the
owner, with the solitary exception that those who resided in
foreign countries which extended no such privileges to us were
excluded from them here."
A statute so broad and sweeping was then held not to be within
the constitutional grant of legislative power to Congress, but, p.
100 U. S.
95,
"whether the trademark bears such a relation to commerce in
general terms as to bring it within congressional control, when
used or applied to the classes of commerce which fall within that
control"
was properly left undecided. The indictment, however, presented
a case in which the defendant was charged with having in his
possession counterfeits and colorable imitations of the trademarks
of foreign manufacturers, and it was suggested that if Congress had
power to regulate trademarks used in commerce with foreign nations
and among the several states, this statute might be held valid in
that class of cases, if no further; but the Court decided
otherwise, and in so doing said, p.
100 U. S.
98:
"While it may be true that when one part of a statute is valid
and constitutional and another part is unconstitutional and void,
the court may enforce the valid part when they are distinctly
separable, so that each can stand alone, it is not within the
judicial province to give to the words used by Congress a narrower
meaning than they are manifestly intended to bear in order that
crimes may be punished which are not described in language that
brings them within the constitutional power of that body."
And again, further on, after citing
United States v.
Reese and quoting from the opinion in that case, it was said,
p.
100 U. S.
99:
"If we should in the case before us undertake to make by
judicial construction a law which Congress did not make, it is
quite probable we should do what,
Page 120 U. S. 688
if the matter were now before that body, it would be unwilling
to do -- namely make a trademark law which is only partial in its
operation and which would complicate the rights which parties would
hold in some instances under the act of Congress, and in others
under a state law."
The same question was also considered, and the former decisions
approved, in
United States v. Harris, supra, and in
Virginia Coupon Cases, 114 U. S. 305,
it was said that "to hold otherwise would be to substitute for the
law intended by the legislature one they may never have been
willing by itself to enact."
It is suggested, however, that
Packet Co. v. Keokuk,
95 U. S. 80, and
Presser v. Illinois, 116 U. S. 252, are
inconsistent with
United States v. Reese and the
Trademark Cases, but we do not so understand them.
In
Packet Co. v. Keokuk, the question arose upon an
ordinance of the City of Keokuk establishing a wharf on the
Mississippi River and the rates of wharfage to be paid for its use.
In its general scope, the ordinance was broad enough to include a
part of the shore of the river declared to be a wharf, which was in
its natural condition and unimproved. The city had, however,
actually built, paved, and improved a wharf at a large expense
within the limits of the ordinance, and the charges then in
question were for the use of the facilities thus provided for
receiving and discharging cargoes. An objection was made to the
validity of the ordinance because it provided for charges to be
paid for the use of the unimproved bank as well as for the improved
wharves, but the Court said, p.
95 U. S. 89:
"The ordinance of Keokuk has imposed no charge upon these
plaintiffs which it was beyond the power of the city to impose. To
the extent to which they are affected by it, there is no valid
objection to it. Statutes that are constitutional in part only will
be upheld so far as they are not in conflict with the Constitution,
provided the allowed and prohibited parts are severable. We think a
severance is possible in this case. It may be conceded that the
ordinance is too broad, and that some of its provisions are
unwarranted. When those provisions are attempted to be enforced, a
different question may be presented."
That was
Page 120 U. S. 689
not a penal statute, but only a city ordinance regulating
wharfage, and the suit was civil in its nature. The only question
was whether the packet company was bound to pay for the use of
improved wharves when the ordinance, taken in its breadth, fixed
the charges and required payment for the use of that part of the
established wharf which was unimproved as well as that which was
improved. The precise point to be determined was whether, under
those circumstances, the vessel owners were excused from paying for
the use of that which was improved.
In
Presser v. Illinois, the indictment was for a
violation of the provisions of one of the sections of the Military
Code of Illinois, and it was claimed that the whole Code was
invalid because in its general scope and effect it was in conflict
with Title XVI of the Revised Statutes of the United States upon
the subject of the "Militia." But the Court held that even if the
first two sections of the Code, on which the objection rested, were
invalid, they were easily separable from the rest, which could be
maintained. The objectionable sections related to the enrollment of
the militia in the state generally, and the rest to the
organization of 8,000 men as a "volunteer active militia." This
evidently brought that case within the rule which controls the
determination of this class of questions, that the constitutional
part of a statute may be enforced and the unconstitutional part
rejected
"where the parts are so distinctly separable that each can stand
alone, and where the court is able to see and to declare that the
intention of the legislature was that the part pronounced valid
should be enforceable, even though the other part should fail."
Virginia Coupon Cases, 114
U. S. 305.
As was said in
Allen v. Louisiana, 103 U.
S. 84:
"The point to be determined in all such cases is whether the
unconstitutional provisions are so connected with the general scope
of the law as to make it impossible, if these were stricken out, to
give effect to what appears to have been the intent of the
legislature."
Applying this rule to the present case, it is clear that section
5519 cannot be sustained in whole or in part in its operation
within a state unless
United States v. Harris is
overruled, and this
Page 120 U. S. 690
we see no occasion for doing. That case was carefully considered
at the time, and subsequent reflection has not changed our opinion
as then expressed. For this reason we answer the second branch of
the fourth question which has been certified in the negative. This
disposes of all the other points included in the first six
questions, and no further answer to them is necessary.
We come now to the questions certified which arise under § 5508.
That this section is constitutional was decided in
Ex Parte
Yarbrough, 110 U. S. 651, and
United States v. Waddell, 112 U. S.
76. The real question to be determined therefore is
whether what is charged to have been done by Baldwin constitutes an
offense within the meaning of its provisions.
The section is found in Title LXX, c. 7, of the Revised
Statutes, embracing "Crimes against the Elective Franchise and
Civil Rights of Citizens," and it provides for the punishment of
those
"who 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 exercised the same"
and of those who go in companies of two or more
"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."
The person on whom the wrong to be punishable must be inflicted
is described as a citizen. In the Constitution and laws of the
United States, the word "citizen" is generally, if not always, used
in a political sense, to designate one who has the rights and
privileges of a citizen of a state or of the United States. It is
so used in § 1 of Article XIV of the amendments of the
Constitution, which provides that
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside,"
and that "no state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States." But it is also sometimes used in popular language to
indicate the same thing as resident, inhabitant, or person. That it
is not so used in § 5508 in the Revised Statutes is quite
Page 120 U. S. 691
clear if we revert to the original statute from which this
section was taken. That statute was the Act of May 31, 1870, c.
114, 16 Stat. 140, "to enforce the rights of citizens of the United
States to vote in the several states of this union, and for other
purposes." It is the statute which was under consideration as to
some of its sections in
United States v. Reese, supra, and
from its title, as well as its text, it is apparent that the great
purpose of Congress in its enactment was to enforce the political
rights of citizens of the United States in the several states.
Under these circumstances, there cannot be a doubt that originally
the word "citizen" was used in its can be enforced in a territory,
though statutes are but a revision and consolidation of the
statutes in force December 1, 1873, the presumption is that the
word has the same meaning there that it had originally.
This particular section is a substantial reenactment of § 6 of
the original act, which is found among the sections that deal
exclusively with the political rights of citizens, especially their
right to vote, and were evidently intended to prevent
discriminations in this particular against voters on account "of
race, color, or previous condition of servitude." Sometimes, as in
§§ 3 and 4, the language is broader than this, and therefore, as
decided in
United States v. Reese, those sections are
inoperative; but still it is every where apparent that Congress had
it in mind to legislate for citizens as citizens, and not as mere
persons, residents, or inhabitants.
This section is highly penal in its character, much more so than
any others, for it not only provides as a punishment for the
offense a fine of not more than $5,000, and an imprisonment of not
more than ten years, but it declares that any person convicted
shall "be thereafter ineligible to any office, or place of honor,
profit, or trust created by the constitution or laws of the United
States." It is therefore to be construed strictly -- not so
strictly as to defeat the legislative will, but doubtful words are
not to be extended beyond their natural meaning in the connection
in which they are used. Here, the doubtful word is "citizen," and
it is used in connection with the rights and privileges pertaining
to a man as a citizen,
Page 120 U. S. 692
and not as a person only or an inhabitant, and, besides, the
crime has been classified in the revision among those which relate
to the elective franchise and the civil rights of citizens. For
these reasons, we are satisfied that the word "citizen," as used in
this statute, must be given the same meaning it has in the
Fourteenth Amendment of the Constitution, and that, to constitute
the offense which is there provided for, the wrong must be done to
one who is a citizen in that sense.
It is true that the word "citizen" only occurs in the first
clause of the section, but in the second clause there is nothing to
indicate that any other than a citizen was meant, and the section
of the original statute from which this was taken has nothing from
which any different inference can be drawn. That clearly deals with
citizens alone, and the revision differs from it only in a
rearrangement of the original sentences, and the exclusion of some
superfluous words. Sections 5506 and 5507, which immediately
precede this in the revision, clearly refer to political rights
only, for they both relate to the privilege of voting, § 5506 being
for the protection of citizens in terms and § 5507 being for the
protection of those to whom the right of suffrage is guaranteed by
the Fifteenth Amendment of the Constitution. It may be that by this
construction of the statute some are excluded from the protection
it affords who are as much entitled to it as those who are
included, but that is a defect, if it exists, which can be cured by
Congress, but not by the courts.
We therefore answer the first subdivision of the seventh
question certified in the negative. The second subdivision need not
be answered otherwise than it has been elsewhere in this
opinion.
It remains only to consider that part of the question certified
which relates to § 5336. That section provides for the punishment
of those who conspire 1, "to overthrow, put down, or destroy by
force the government of the United States, or to levy war against
them, or to oppose by force the authority thereof," or 2, "by force
to prevent, hinder, or delay the execution of any law of the United
States," or 3, "by force to seize, take, or possess any property of
the United States contrary
Page 120 U. S. 693
to the authority thereof." This is a reenactment of similar
provisions in the Act of July 31, 1861, c. 33, 12 Stat. 284, "to
define and punish certain conspiracies," and in that of April 20,
1871, c. 22, § 2, 17 Stat. 10, "to enforce the provisions of the
Fourteenth Amendment of the Constitution of the United States, and
for other purposes."
It cannot be claimed that Baldwin has been charged with a
conspiracy to overthrow the government or to levy war within the
meaning of this section, nor is he charged with any attempt to
seize the property of the United States. All therefore depends on
that part of the section which provides a punishment for "opposing"
by force the authority of the United States, or for preventing,
hindering or delaying the "execution" of any law of the United
States.
This evidently implies force against the government as a
government. To constitute an offense under the first clause, the
authority of the government must be opposed -- that is to say,
force must be brought to resist some positive assertion of
authority by the government. A mere violation of law is not enough;
there must be an attempt to prevent the actual exercise of
authority. That is not pretended in this case. The force was
exerted in opposition to a class of persons who had the right to
look to the government for protection against such wrongs, not in
opposition to the government while actually engaged in an attempt
to afford that protection.
So too as to the second clause, the offense consists in
preventing, hindering, or delaying the government of the United
States in the execution of its laws. This as well as the other
means something more than setting the laws themselves at defiance.
There must be a forcible resistance of the authority of the United
States while endeavoring to carry the laws into execution. The
United States are bound by their treaty with China to exert their
power to devise measures to secure the subjects of that government
lawfully residing within the territory of the United States against
ill treatment, and if in their efforts to carry the treaty into
effect they had been forcibly opposed by persons who had conspired
for that purpose, a state of things contemplated by the statute
would have
Page 120 U. S. 694
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 that 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
Page 120 U. S. 695
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,"
etc. 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 offense 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 privilege" 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 offenses -- 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
Page 120 U. S. 696
"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. 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. §§ 2289-2291, 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, etc., 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
Page 120 U. S. 697
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 wrongdoers 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
wrongdoers 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
wrongdoers 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 anyone that the words "on the premises of
another" were qualified by the
Page 120 U. S. 698
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 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 offense against the United States.
I feel obliged also to express my nonconcurrence 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 offense 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 . . . 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,
109 U. S. 20, and
just as the prohibition in the Fifteenth Amendment against
Page 120 U. S. 699
the denial or abridgment of the right of citizens of the United
States to vote on account of their race, color, or previous
condition of servitude operated to invest such citizens with "a new
constitutional right," which "comes from the United States" --
namely "exemption from discrimination in the exercise of the
elective franchise on account of race, color, or previous condition
of servitude."
United States v. Cruikshank, 92 U. S.
542;
United States v. Reese, 92 U. S.
214.
In the
Civil Rights Cases, p.
109 U. S. 23, it
was held that Congress, under its express power to enforce by
appropriate legislation the provisions of the Thirteenth Amendment,
could, so far as necessary or proper, enact legislation, "direct
and primary, operating upon the acts of individuals, whether
sanctioned by state legislation or not," for the purpose of
eradicating "all forms and incidents of slavery and involuntary
servitude." And since, in the matter of voting, the exemption of
citizens from discrimination on account of race, color, or previous
condition of servitude is a right which "comes from the United
States," and is "granted or secured by the United States,"
United States v. Cruikshank, above cites, can it be
doubted that Congress, under its express power to enforce the
Fifteenth Amendment by appropriate legislation, could make it an
offense against the United States for two or more persons to
conspire to deny or abridge the citizen's right to vote on account
of his race or color? Is there any recognized exception to the
general rule that Congress may, by appropriate legislation, secure
and protect rights derived from or guaranteed by the Constitution
or laws of the United States? Believing that these questions must
be answered in the negative, I am unable to perceive any
constitutional objection to § 5519 -- certainly none of such a
serious character as to justify this Court in holding that
Congress, by enacting it, has transcended its powers. If the United
States is powerless to secure the equal protection of the laws to
persons within the jurisdiction of a state until the state, by
hostile legislation or by the action of her judicial authorities,
shall have denied such protection, and can even then interfere only
through the courts of the union in suits involving either the
validity of such state
Page 120 U. S. 700
legislation or the action of the state authorities, it is
difficult to understand why Congress was invested with power by
appropriate legislation to enforce the provisions of the Fourteenth
Amendment, for without such power of legislation, the courts of the
union are competent to annul any state laws or reverse any action
of state judicial officers which deny the equal protection of the
laws to any particular person or class of persons. Indeed, since
the organization of the government, there has existed a remedy in
the courts of the union for any denial in a state court of rights,
privileges, or immunities derived from the United States. It seems
to me that the main purpose of giving Congress power to enforce by
legislation the provisions of the amendment was that the rights
therein granted or guaranteed might be guarded and protected
against lawless combinations of individuals, acting without the
direct sanction of the state. The denial by the state of the equal
protection of the laws to persons within its jurisdiction may arise
as well from the failure or inability of the state authorities to
give that protection as from unfriendly enactments. If Congress,
upon looking over the whole ground, determined that an effectual
and appropriate mode to secure such protection was to proceed
directly against combinations of individuals who sought, by
conspiracy or by violent means, to defeat the enjoyment of the
right given by the Constitution, I do not see upon what ground the
courts can question the validity of legislation to that end.
There is another view of this question which seems to be
important. In
United States v. Waddell, 112 U. S.
76, and again in this case, the Court has sustained the
power of Congress to enact § 5508, which, among other things, makes
it an offense against the United States for two or more persons to
"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 secured by the Constitution or laws of the
United States. Now it is difficult to understand why, if Congress
can do this, it may not make it an offense for the same persons (§
5519) to
"go in disguise on the highway or on the premises of another for
the purpose
Page 120 U. S. 701
of depriving, directly or indirectly, any person or class of
persons of the equal protection of the laws."
The only possible answer to this suggestion is to say that "the
equal protection of the laws" is not a right or privilege secured
by the Constitution of the United States. But that, it seems to me,
cannot be said without doing violence to the language of that
instrument and defeating the intention with which the people
adopted it.
It was long since announced by this Court that
"Congress must possess the choice of means, and must be
empowered to use any means which are in fact conducive to the
exercise of a power granted by the Constitution."
United States v.
Fisher, 2 Cranch 358. And in
McCulloch
v. Maryland, 4 Wheat. 316,
17 U. S. 421,
Chief Justice Marshall, speaking for the Court, said:
"The sound construction of the Constitution must allow to the
national legislature that discretion with respect to the means by
which the powers it confers are to be carried into execution which
will enable that body to perform the high duties assigned to it in
the manner most beneficial to the people."
In view of these settled doctrines of constitutional law, I am
unwilling to say that it is not appropriate legislation for the
enforcement of the right given by the Constitution to the equal
protection of the laws for Congress to make it an offense against
the United States, punishable by fine and imprisonment, for two or
more persons in any state to conspire or go in disguise on the
highway, or go on the premises of another, for the purpose of
depriving him of the equal protection of the laws.
MR. JUSTICE FIELD, dissenting.
I agree with the majority of the Court in its construction of
the different sections of the Revised Statutes which have been
under consideration in this case, except the third clause of § 5336
and the last clause of § 5508.
The third clause of § 5336 declares that if two or more persons
in any state or territory conspire "by force to prevent, hinder, or
delay the execution of any law of the United
Page 120 U. S. 702
States," each of them shall be punished by a fine of not less
than $500 or more than $5,000, or by imprisonment, with or without
hard labor, for a period of not less than six months or more than
six years, or by both such fine and imprisonment.
By the Treaty with China of 1868, the United States recognize
the right of Chinese to emigrate to this country, and declare that
in the United States, the subjects of that empire shall enjoy the
same privileges and immunities in respect to residence which are
enjoyed by citizens or subjects of the most favored nation. The
complaint against the plaintiff in error is that he conspired with
others to expel by force from the Town of Nicolaus, and the County
of Sutter, in the State of California, the subjects of the Emperor
of China who were residing and doing business there, and in
furtherance of the conspiracy, entered the homes of certain persons
of that class, seized them, and forcibly placed them upon a barge
on Feather River, on the bank of which the Town of Nicolaus is
situated, and drove them from the county, and thus deprived them of
privileges and immunities conferred by the treaty. For this alleged
offense, the plaintiff in error, with others, was arrested. On
application for a habeas corpus for his discharge, the judges of
the circuit court were divided in opinion. This Court holds that a
conspiracy thus violently to expel the Chinese from the county and
town where they resided and did business, and thus defeat the
provisions of the treaty, was not a conspiracy to prevent or hinder
by force the execution of a law of the United States, although a
treaty is declared by the Constitution to be the supreme law of the
land.
Under the Constitution, a treaty between the United States and a
foreign nation is to be considered in two aspects -- as a compact
between the two nations and as a law of our country. As a compact,
it depends for its enforcement on the good faith of the contracting
parties, and to carry into effect some of its provisions may
require legislation. For any infraction of its stipulations
importing a contract the courts can afford no redress except as
provided by such legislation. The matter is one to be settled by
negotiation between the executive departments
Page 120 U. S. 703
of the two governments, each government being at liberty to take
such measures for redress as it may deem advisable.
Foster v.
Neilson, 2 Pet. 253,
27 U. S. 314;
Head Money Cases, 112 U. S. 580,
112 U. S. 598;
Taylor v. Morton, 2 Curtis 454, 459;
In re Ah
Lung, 9 Sawyer 306.
But in many instances, a treaty operates by its own force --
that is, without the aid of any legislative enactment -- and such
is generally the case when it declares the rights and privileges
which the citizens or subjects of each nation may enjoy in the
country of the other. This was so with the clause in some of our
early treaties with European nations declaring that their subjects
might dispose of lands held by them in the United States and that
their heirs might inherit such property, or the proceeds thereof,
notwithstanding their alienage. Thus the treaty with Great Britain
of 1794 provided that British subjects then holding lands in the
United States, and American citizens holding lands in the dominions
of Great Britain, should continue to hold them according to the
nature and tenure of their respective estates and titles therein,
and might grant, sell, or devise the same to whom they pleased in
like manner as if they were natives, and that neither they nor
their heirs nor assigns should, as far as might respect the said
lands and the legal remedies incident thereto, be regarded as
aliens. Article 9, 8 Stat. 122. A clause to the same purport and
embracing also movable property was in the Treaty with France of
1778, Art. 9, 8 Stat. 18, and also in that of 1800, Art. 7, 8 Stat.
182. It required no legislation to give force to this provision. It
was the law of the land by virtue of the Constitution, and
congressional legislation could not add to its efficacy. Whenever
invoked by the alien heirs, the rights it conferred were enforced
by the federal courts.
Chirac v.
Chirac, 2 Wheat. 259;
Carneal v.
Banks, 10 Wheat. 181;
Hughes v.
Edwards, 9 Wheat. 489,
22 U. S. 496.
See also the treaty with the Swiss Confederation of 1850,
Art. 5;
Haguenstein v. Lynham, 100 U.
S. 483.
This is so also with clauses found in some treaties with foreign
nations, stipulating that the subjects or citizens of those nations
may trade with the United States, and, for that purpose, freely
enter our ports with their ships and cargoes, and
Page 120 U. S. 704
reside and do business here. Thus, the Treaty of Commerce with
Italy of February 26, 1871, provides that
"Italian citizens in the United States, and citizens of the
United States in Italy, shall mutually have liberty to enter, with
their ships and cargoes, all the ports of the United States and of
Italy, respectively, which may be open to foreign commerce. They
shall also have liberty to sojourn and reside in all parts whatever
of said territories."
Art. 1, 17 Stat. 845. These stipulations operate by their own
force -- that is, they require no legislative action for their
enforcement. Treaty of Commerce with Great Britain of 1815, Art. 1
(renewed and continued for ten years by Art. 4 of the treaty of
1818, and continued indefinitely by Art. 1 of the Treaty of 1827);
Treaty with Bolivia of May 13, 1838, Art. 3; Treaty with Costa Rica
of July 10, 1851, Art. 2; Treaty with Greece of December, 1837,
Art. 1; Treaty with Sweden and Norway of July 4, 1827, Art. 1.
The right or privilege being conferred by the treaty, parties
seeking to enjoy it take whatever steps are necessary to carry the
provisions into effect. Those who wish to engage in commerce enter
our ports with their ships and cargoes; those who wish to reside
here selects their places of residence, no congressional
legislation being required to provide that they shall enjoy the
rights and privileges stipulated. All that they can ask, and all
that is needed, is such legislation as may be necessary to protect
them in such enjoyment. That they have, I think, to some extent, in
the clause punishing any conspiracy to prevent or hinder by force
the execution of a law of the United States. The section in which
this clause appears is a reenactment in part of the Act of July 31,
1861, and declares, among other things, a conspiracy of two or more
persons to overthrow by force the government of the United States,
or to oppose by force its authority, or "by force to prevent,
hinder, or delay the execution of any law of the United States," or
by force to seize and possess any of their property against their
authority, to be a high crime, and prescribes for it severe
punishment. As thus seen, the section is not intended as a
Page 120 U. S. 705
protection against isolated or occasional acts of individual
personal violence. For such offenses the laws of the states make
ample provision. It is intended to reach conspiracies against the
supremacy and authority of the government of the United States, and
against the enforcement of its laws. It is directed not only
against those who conspire to overthrow the government, but those
also who conspire to defeat the execution of its laws, including
under the latter treaties as well as statutes, and thus permanently
deprive others of the rights, benefits, and protection intended to
be conferred by such laws. In the case before us, the purpose of
the alleged conspirators was to permanently deprive the Chinese
residing in Nicolaus -- not any particular Chinese, but all of that
class of persons -- of the right of residence conferred by the
treaty. That right is not limited to any particular place; it may
be exercised wherever it is lawful for anyone to reside, without
encroachment upon the equal right of others. The conspirators well
knew, as everyone in California knows, the provision of the treaty
and its meaning, and their purpose was to nullify and defeat
it.
A treaty, in conferring a right of residence, requires no
congressional legislation for the enforcement of that right. The
treaty in that particular is executed by the intended
beneficiaries. They select their residence. They are not required,
as said above, to reside in any particular place or do business
there. A conspiracy to prevent by force a residence in the town or
county selected by then appears to me, therefore, to be a
conspiracy to prevent the operation -- that is, the execution -- of
a law of the United States, and to be within the letter and spirit
of the third clause of § 5336. If the conspirators can expel the
Chinese from their residence in the town and county of their
selection without being amenable to any law of the United States,
they can, with like exemption from legal liability, expel the
Chinese from the entire state, and this utterly defeat the
stipulations of the treaty.
So also, a conspiracy to prevent by force ships belonging to
subjects of a foreign nation -- not any particular ship, but ships
generally belonging to them -- from entering our ports with their
cargoes would, in my judgment, be a conspiracy to prevent
Page 120 U. S. 706
by force the operation of the treaty with that nation, which
stipulates that its subjects shall have that privilege. And in all
other cases, where a clause of a treaty conferring rights or
privileges operates by its own terms and does not require
congressional legislation to give it effect, a conspiracy to
prevent by force their enjoyment is a conspiracy to prevent by
force the execution of a law of the United States; that is, to
prevent its having, with respect to the rights and privileges
stipulated, any effectual operation. I do not see how Congress
could improve the matter, or do more than it has already done, by
declaring that those who thus conspire by force to deprive parties
of the rights or privileges conferred by a treaty should be
punished. Its declaration to that effect would be no more than what
the present law provides.
The last clause of § 5508 declares that,
"If two or more persons go in disguise on the highway or on the
premises of another with intent to prevent or hinder the free
exercise or enjoyment of any right or privilege so secured [by the
Constitution or laws of the United States], they shall be fined not
more than five thousand dollars, and imprisoned not more than ten
years, and shall, moreover, be thereafter ineligible to any office
or place of honor, profit, or trust created by the Constitution or
laws of the United States."
I do not agree with the majority of the Court that this clause
is limited in its application only to offenses against citizens.
The first clause of the section is thus limited, but in my judgment
the last is more extensive, and reaches an invasion of the premises
of anyone, whether citizen or alien, by two or more persons for the
unlawful purposes mentioned. But I am not clear that the
qualification of going "in disguise" on the highway does not also
extend to the going on the premises of another, and thus render the
clause inapplicable to the case before the Court; though there is
much force in the view of MR. JUSTICE HARLAN that the clause should
be read as though its words were, "if two or more persons go on the
highway in disguise, or on the premises of another, with the
intent," etc., thus making the words "in disguise" apply only to
the offense on the highway. If his view be correct, the last
provision
Page 120 U. S. 707
of the clause would describe the exact offense charged against
the plaintiff in error and his coconspirators -- that they went on
the premises of the Chinese with the intent to deprive them of
rights and privileges conferred by the treaty, the law of the land
-- an intent which they carried out by forcibly expelling the
Chinese from the town and county of their residence and business.
But without adopting or rejecting his view, I prefer to place my
dissent upon what I deem the erroneous construction by the court of
the third clause of § 5336, in holding that it does cover this
case, but applies only to cases where there has been a forcible
resistance to measures adopted by Congress for the execution of a
law, or a treaty of the United States.
The result of the decision is that there is no national law
which can be invoked for the protection of the subjects of China in
their right to reside and do business in this county,
notwithstanding the language of the treaty with that empire. And
the same result must follow with reference to similar rights and
privileges of the subjects or citizens resident in this country of
any other nation with which we have a treaty with like
stipulations. Their only protection against any forcible resistance
to the execution of these stipulations in their favor is to be
found in the laws of the different states. Such a result is one to
be deplored.