UNITED STATES SUPREME COURT DECISIONS ON-LINE

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 clubjuris

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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

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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.