In case statutes are alleged to be inconsistent with each other,
effect must be given to both if by any reasonable interpretation
that can be done, and like principles must control when the
question is whether an act of Congress has been superseded in whole
or in part by a subsequent treaty with a foreign nation.
These three cases were all argued together. The opinion of the
Court is entitled only in No. 503,
United States v. Lee Yen
Tai. The case is stated in that opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case is here upon a certified question of law arising in
the Circuit Court of Appeals for the Second Circuit.
The facts out of which the question arose and the question
itself are shown by the following statement sent up by that
court:
"On the 8th day of October, 1900, complaint was made under
Page 185 U. S. 214
oath before a commissioner of the United States for the Northern
District of New York, charging that Lee Gin Moy, alias Lee Yen Tai,
on the sixth day of October, A.D. 1900,"
"did unlawfully come into the United States from China, he being
then and there a Chinese person and laborer, and not being a
diplomatic or other officer of the Chinese or any other government,
and without producing the certificate required of Chinese persons
seeking to enter the United States, and that he was not entitled to
be or remain within the United States."
A warrant for said defendant's arrest was issued by said United
States commissioner on the same day, and after a hearing before
said commissioner, he issued a warrant of deportation in which the
following adjudication was placed on record:
" I now hereby find and adjudge that the said Lee Gin Moy is a
Chinese person and laborer; that he is not a diplomatic or other
officer of the Chinese, or of any other government, and unlawfully
entered the United States as charged in said complaint, and I
further adjudge him, said Lee Gin Moy, guilty of not being lawfully
entitled to be or remain in the United States."
"Said defendant's immediate removal to China by the United
States marshal for said Northern District of New York upon said
warrant was ordered by said commissioner. While the marshal had him
in custody, and in process of deportation, habeas corpus was issued
by the District Court for the Southern District of New York. The
petition upon which the writ of habeas corpus issued averred, among
other things, that said Lee Yen Tai was a merchant having an
interest of one thousand dollars ($1,000) in the capital of the
firm, and is not a laborer, and has not been a laborer, but is a
merchant and member of a firm specified in the petition, and has
always been a merchant since he had any status."
"Before the district court, the prisoner was produced and a
return made which included the aforesaid warrant of deportation;
said return was traversed, and no evidence as to defendant's status
other than the allegations in the aforesaid petition and return was
before the district court. Upon the hearing in the district court,
the petitioner was discharged upon giving
Page 185 U. S. 215
bail for his appearance as may be determined by any final order
on appeal. Appeal was duly taken by the United States to this
Court."
By the preamble of the Act of May 6, 1882, c. 126, it was
declared that, in the opinion of the government of the United
States, the coming of Chinese laborers to this country endangered
the good order of certain localities within our territory. It was
therefore provided that from and after the expiration of ninety
days from the above date and until the expiration of ten years from
such date, the coming of Chinese laborers to the United States
should be suspended, and during such suspension it was made
unlawful for any Chinese laborer to come, or having come after the
expiration of said ninety days, to remain within the United States.
§ 1. Penalties were imposed upon the master of any vessel who
should knowingly bring within the United States on his vessel and
land, or permit to be landed, any Chinese laborer from any foreign
port or place. § 2. In order to identify such Chinese as were
entitled, under the Treaty of November 17, 1880, 22 Stat. 826, to
go from and come to the United States of their free will and
accord, provision was made for certificates to be granted to such
persons. § 4.
The twelfth section of the above act was as follows:
"That no Chinese person shall be permitted to enter the United
States by land without producing to the proper officer of customs
the certificate in this act required of Chinese persons seeking to
land from a vessel. And any Chinese person found unlawfully within
the United States shall be caused to be removed therefrom to the
country from whence he came, by direction of the President of the
United States and at the cost of the United States, after being
brought before some justice, judge, or commissioner of a court of
the United States, and found to be one not lawfully entitled to be
or remain in the United States."
22 Stat. 58, 61.
By the Act of July 5, 1884, c. 220, the twelfth section of the
above Act of May 6, 1882, was amended so as to read as follows:
"That no Chinese person shall be permitted to enter the United
States by land without producing to the proper officer of customs
the certificate in this act required of Chinese persons
Page 185 U. S. 216
seeking to land from a vessel. And any Chinese person found
unlawfully within the United States shall be caused to be removed
therefrom to the country from whence he came, and at the cost of
the United States, after being brought before some justice, judge,
or commissioner of a court of the United States, and found to be
one not lawfully entitled to be or to remain in the United States,
and in all such cases the person who brought or aided in bringing
such person to the United States shall be liable to the government
of the United States for all necessary expenses incurred in such
investigation and removal, and all peace officers of the several
states and territories of the United States are hereby invested
with the same authority as a marshal or United States marshal in
reference to carrying out the provisions of this act or the act of
which this is amendatory, as a marshal or deputy marshal of the
United States, and shall be entitled to like compensation to be
audited and paid by the same officers. And the United States shall
pay all costs and charges for the maintenance and return of any
Chinese person having the certificate prescribed by law as
entitling such Chinese person to come into the United States who
may not have been permitted to land from any vessel by reason of
any of the provisions of this act."
23 Stat. 115, 117, 118.
Subsequently, by the Act of May 5, 1892, c. 60, entitled "An Act
to Prohibit the Coming of Chinese Persons into the United States,"
it was provided that
"all laws now [then] in force prohibiting and regulating the
coming into this country of Chinese persons and persons of Chinese
descent are hereby continued in force for a period of ten years
from the passage of this [that] act."
27 Stat. 25, § 1.
The question certified to us is whether, the twelfth section of
the act of 1882, amended and continued in force as above stated,
was abrogated by the treaty with China proclaimed December 8, 1894.
28 Stat. 1210.
As this question cannot be properly disposed of without
examining the entire treaty, the provisions of the treaty are here
given in full:
"Whereas, on the 17th day of November, A.D. 1880, and of
Kwanghsii the sixth year, tenth moon, fifteenth day, a treaty
Page 185 U. S. 217
was concluded between the United States and China for the
purpose of regulating, limiting, or suspending the coming of
Chinese laborers to, and their residence in, the United
States;"
"And whereas the government of China, in view of the antagonism
and much deprecated and serious disorders to which the presence of
Chinese laborers has given rise in certain parts of the United
States, desires to prohibit the emigration of such laborers from
China to the United States;"
"And whereas the two governments desire to cooperate in
prohibiting such emigration, and to strengthen in other ways the
bonds of friendship between the two countries;"
"And whereas the two governments are desirous of adopting
reciprocal measures for the better protection of the citizens or
subjects of each within the jurisdiction of the other;"
"Now therefore etc. . . ."
"ART. I. The high contracting parties agree that, for a period
of ten years, beginning with the date of the exchange of the
ratifications of this convention, the coming, except under the
conditions hereinafter specified, of Chinese laborers to the United
States, shall be absolutely prohibited."
"ART. II. The preceding article shall not apply to the return to
the United States of any registered Chinese laborer who has a
lawful wife, child, or parent in the United States, or property
therein of the value of $1,000, or debts of like amount due him and
pending settlement. Nevertheless, every such Chinese laborer shall,
before leaving the United States, deposit, as a condition of his
return, with the collector of customs of the district from which he
departs, a full description in writing of his family, or property,
or debts, as aforesaid, and shall be furnished by said collector
with such certificate of his right to return under this treaty as
the laws of the United States may now or hereafter prescribe, and
not inconsistent with the provisions of this treaty, and should the
written description aforesaid be proved to be false, the right of
return thereunder, or of continued residence after return, shall in
each case be forfeited. And such right of return to the United
States shall to exercised within one year from the date of leaving
the United States, but such right of return to the United
States
Page 185 U. S. 218
may be extended for an additional period, not to exceed one
year, in cases where, by reason of sickness or other cause of
disability beyond his control, such Chinese laborer shall be
rendered unable sooner to return, which facts shall be fully
reported to the Chinese consul at the port of departure, and by him
certified, to the satisfaction of the collector of the port at
which such Chinese subject shall land in the United States. And no
such Chinese laborer shall be permitted to enter the United States
by land or sea without producing to the proper officer of the
customs the return certificate herein required."
"ART. III. The provisions of this convention shall not affect
the right at present enjoyed of Chinese subjects, being officials,
teachers, students, merchants, or travelers for curiosity or
pleasure, but not laborers, of coming to the United States and
residing therein. To entitle such Chinese subjects as are above
described to admission into the United States, they may produce a
certificate from their government or the government where they last
resided visaed by the diplomatic or consular representative of the
United States in the country or port whence they depart."
"It is also agreed that Chinese laborers shall continue to enjoy
the privilege of transit across the territory of the United States
in the course of their journey to or from other countries, subject
to such regulations by the government of the United States as may
be necessary to prevent said privilege of transit from being
abused."
"ART. IV. In pursuance of Article III of the Immigration Treaty
between the United States and China signed at Peking on the 17th
day of November, 1880 (the 15th day of the tenth month of
Kwanghsii, sixth year), it is hereby understood and agreed that
Chinese laborers or Chinese of any other class, either permanently
or temporarily residing in the United States, shall have for the
protection of their persons and property all rights that are given
by the laws of the United States to citizens of the most favored
nation, excepting the right to become naturalized citizens. And the
government of the United States reaffirms its obligation, as stated
in said Article
Page 185 U. S. 219
III, to exert all its power to secure protection to the persons
and property of all Chinese subjects in the United States."
"ART. V. The government of the United States, having by an act
of Congress approved May 5, 1892, as amended by an Act approved
November 3d 1893, required all Chinese laborers lawfully within the
limits of the United States before the passage of the first-named
act to be registered as in said acts provided, with a view of
affording them better protection, the Chinese government will not
object to the enforcement of such acts, and reciprocally the
government of the Untied states recognizes the right of the
government of China to enact and enforce similar laws or
regulations for the registration, free of charge, of all laborers,
skilled or unskilled (not merchants as defined by said acts of
Congress), citizens of the United States in China, whether residing
within or without the treaty ports. And the government of the
United States agrees that within twelve months from the date of the
exchange of the ratifications of this convention, and annually
thereafter, it will furnish to the government of China registers or
reports showing the full name, age, occupation, and number or place
of residence of all other citizens of the United States, including
missionaries, residing both within and without the treaty ports of
China, not including, however, diplomatic and other officers of the
United States residing or traveling in China upon official
business, together with their body and household servants."
"ART. VI. This convention shall remain in force for a period of
ten years, beginning with the date of the exchange of
ratifications, and if, six months before the expiration of the said
period of ten years, neither government shall have formally given
notice of its final termination to the other, it shall remain in
full force for another like period of ten years."
28 Stat. 1210.
The first propositions made on behalf of the defendant is that
the treaty of 1894 should be construed as covering the whole
subject of Chinese exclusion, and that its failure to prescribe any
judicial procedure for deportation, or to continue in force any
prior statute on that subject, shows that the commissioner was
without jurisdiction.
Page 185 U. S. 220
If the words of the treaty of 1894, reasonably interpreted,
indicate a purpose to cover the whole subject of Chinese exclusion,
including the methods to be employed to effect that result, then
the proceedings against the defendant before the commissioner were
without authority of law, for the treaty itself does not provide
any particular method by which Chinese laborers may be prevented
from entering the United States or for sending them out of the
country if they illegally enter, although both nations expressed in
the treaty a desire to cooperate in preventing the immigration or
coming to this country of such persons. China itself recognized it
to be its duty to cooperate with the United States to that end
"in view of the antagonism and much deprecated and serious
disorders to which the presence of Chinese laborers has given rise
in certain parts of the United States."
As both countries were agreed that this result should be
attained, the Court ought to hesitate to adopt any construction of
the treaty that would tend to defeat the object each had in view.
We must assume that the two governments knew that a general
prohibition of the coming of Chinese laborers to the United States
would be ineffectual if no provision were made for determining
whether a particular Chinaman seeking to enter the country, and
whose right to enter was denied, belonged to the class prohibited
from coming within our territorial limits.
It is not disputed that such provision exists if section 12 of
the Act of May 6, 1882, as amended by the Act of July 5, 1884, and
as continued in force by the Act of May 5, 1892, be held not to
have been repealed or superseded by the treaty of 1894.
That it was competent for the two countries by treaty to have
superseded a prior act of Congress on the same subject is not to be
doubted; for otherwise the declaration in the Constitution that a
treaty, concluded in the mode prescribed by that instrument, shall
be the supreme law of the land would not have due effect. As
Congress may by statute abrogate, so far at least as this country
is concerned, a treaty previously made by the United States with
another nation, so the United States may by treaty supersede a
prior act of Congress on the same subject. In
Foster v.
Neilson, 2 Pet. 253,
27 U. S. 314,
it was
Page 185 U. S. 221
said that a treaty was "to be regarded in courts of justice as
equivalent to an act of the legislature, whenever it operates of
itself without the aid of any legislative provision." In the case
of
The Cherokee
Tobacco, 11 Wall. 616,
78 U. S. 621,
this Court said "a treaty may supersede a prior act of Congress,
and an act of Congress may supersede a prior treaty." So, in the
Head Money Cases, 112 U. S. 580,
112 U. S. 599,
this Court said:
"So far as a treaty made by the United States with any foreign
nation can become the subject of judicial cognizance in the courts
of this country, it is subject to such acts as Congress may pass
for its enforcement, modification, or repeal."
Again, in
Whitney v. Robertson, 124 U.
S. 190,
124 U. S.
194,
"By the Constitution, a treaty is placed on the same footing,
and made of like obligation, with an act of legislation. Both are
declared by that instrument to be the supreme law of the land, and
no superior efficacy is given to either over the other. When the
two relate to the same subject, the courts will always endeavor to
construe them so as to give effect to both, if that can be done
without violating the language of either; but if the two are
inconsistent, the one last in date will control the other, provided
always that the stipulation of the treaty on the subject is
self-executing."
See also Taylor v. Morton, 2 Curtis 454, 459;
Clinton Bridge Case, 1 Woolworth 155;
Ropes v.
Clinch, 8 Blatchf. 304; 2 Story on Const. § 1838.
Nevertheless, the purpose by statute to abrogate a treaty or any
designated part of a treaty, or the purpose by treaty to supersede
the whole or a part of an act of Congress, must not be lightly
assumed, but must appear clearly and distinctly from the words used
in the statute or in the treaty.
In the case of statutes alleged to be inconsistent with each
other in whole or in part, the rule is well established that effect
must be given to both if by any reasonable interpretation that can
be done; that
"there must be a positive repugnancy between the provisions of
the new laws and those of the old, and even then the old law is
repealed by implication only
pro tanto, to the extent of
the repugnancy,"
and that "if harmony is impossible, and only in that event, the
former law is repealed, in part or wholly, as the case may be."
Wood v. United
States, 16 Pet.
Page 185 U. S. 222
342,
41 U. S. 363;
United States v.
Tynen, 11 Wall. 88,
78 U. S. 93;
South Carolina v.
Stoll, 17 Wall. 425,
84 U. S. 431.
In
Frost v. Wenie, 157 U. S. 46,
157 U. S. 58,
this Court said:
"It is well settled that repeals by implication are not to be
favored. And where two statutes cover, in whole or in part, the
same matter, and are not absolutely irreconcilable, the duty of the
court -- no purpose to repeal being clearly expressed or indicated
-- is, if possible, to give effect to both. In other words, it must
not be supposed that the legislature intended by a later statute to
repeal a prior one on the same subject unless the last statute is
so broad in its terms and so clear and explicit in its words as to
show that it was intended to cover the whole subject, and therefore
to displace the prior statute."
The same rules have been applied where the claim was that an act
of Congress had abrogated some of the provisions of a prior treaty
between the United States and China.
Chew Heong v. United
States, 112 U. S. 536,
112 U. S. 550.
In that case, it was held that the treaty could stand with the
subsequent statutes, and, consequently, it was enforced.
Like principles must control when the question is whether an act
of Congress has been superseded in whole or in part by a subsequent
treaty. A statute enacted by Congress expresses the will of the
people of the United States in the most solemn form. If not
repugnant to the Constitution, it is made by that instrument a part
of the supreme law of the land, and should never be held to be
displaced by a treaty subsequently concluded unless it is
impossible for both to stand together and be enforced. So far from
there being any inconsistency between the statute and treaty here
in question, the twelfth section of the act of 1882, as amended in
1884, and continued in force for ten years from and after the
passage of the act of 1892, is in absolute harmony with the treaty,
and can be enforced without affecting or impairing any right
secured by the treaty. On the contrary, the enforcement of that
section as amended will serve to advance the purpose of the two
countries in respect of Chinese laborers, as avowed in the treaty
of 1894. Despite the ingenious argument to the contrary, we do not
perceive any difficulty whatever in reaching this conclusion, after
carefully
Page 185 U. S. 223
scrutinizing the treaty and the statute. A different conclusion
would be hostile to the objects which, as avowed in the treaty,
both the United States and China desired to accomplish. This is so
clearly manifest that argument cannot, as we think, make it more
so.
The question certified is answered in the negative, and an order
so declaring will be sent to the circuit court of appeals.
MR. JUSTICE GRAY did not hear the argument, and took no part in
the decision.