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 .

did,

SO

residing and pursuing their legitimate business and labor for the purpose aforesaid, said conspirators 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

from their residence at said town of Nico

.

and did

deprive them

.

.

of the

under

Chinese, laus, 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

Opinion of the Court.

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 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 or 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, morcover, 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

Opinion of the Court.

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 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 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 offence 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