Dissenting Opinion: Harlan, J.

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 exer cise 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. 23, above cited, 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 cited, can it be doubted that Congress, under its express power to enforce the Fifteenth Amendment, by appropriate legislation, could make it an offence 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

Dissenting Opinion: Harlan, J.

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 offence 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 offence for the same persons (§ 5519) to "go in disguise on the highway, or on the premises of another, for the purpose

Dissenting Opinion: Field, J.

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. 361, 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 offence 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

Dissenting Opinion: Field, J.

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 offence 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 depart

Dissenting Opinion: Field, J.

ments 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, 314; Head Money Cases, 112 U. S. 580, 598; Taylor v. Morton, 2 Curtis, 454, 459; In re Ah Lung, 9 Sawyer, 306; S. C. 18 Fed. Rep. 28.

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. Art. 9, 8 Stat. 122. A clause to the same purport, and embracing also movable property, was in the treaty with France of 1778, art. 11, 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, 496. See also the Treaty with the Swiss Confederation of 1850, art. 5, 11 Stat. 590; Hauenstine v. Lynham, 100 U. S. 483.

This is so also with clauses, found in some treaties with forcign 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