1. When there are two acts of Congress on the same subject, and
the latter act embraces all the provisions of the first, and also
new provisions, and imposes different or additional penalties, the
latter act operates, without any repealing clause, as a repeal of
the first.
Accordingly, the thirteenth section of the act of Congress of
1813 "for the regulation of seamen on board the public and private
vessels of the United States," which defined certain offenses
against the naturalization laws, and prescribed their punishment,
was held to be repealed by the act of Congress of 1870, "to amend
the naturalization laws, and to punish crimes against the same, and
for other purposes," which declared not only that the commission of
the several acts mentioned in the thirteenth section of the law of
1813 should constitute a felony, but that also a great number of
other acts of a fraudulent character, in connection with the
naturalization of aliens, should constitute a similar offense, and
made the infliction of a larger punishment for each offense
discretionary with the court.
2. By the repeal of an act, without any reservation of its
penalties, all criminal proceedings taken under it fall. There can
be no legal conviction, nor any valid judgment pronounced upon
conviction, unless the law creating the offense be at the time in
existence.
Page 78 U. S. 89
Tynen, the defendant, was indicted under the thirteenth section
of the Act of Congress of March 3, 1813, entitled "An act for the
regulation of seamen on board the public and private vessels of the
United States." The general object of the act, as expressed in its
title, was carried out in the first eleven sections.
They declared that it should not be lawful, after the
termination of the war then existing with Great Britain, to employ
on board any public or private vessels of the United States any
persons except citizens of the United States, or persons of color
natives of the United States, and they required naturalized
citizens thus employed to produce to the commanders of public
vessels, or collectors of customs, as the case might be, a
certified copy of the act by which they were naturalized, setting
forth the naturalization and the date thereof. They also contained
various clauses to give effect to these requirements, but at the
same time declared that the provisions of the act should not
preclude the employment as seamen of the subjects or citizens of
any foreign nations which should not have prohibited, by treaty or
special convention with the United States, the employment on board
of her public or private vessels of native citizens of the United
States who had not become citizens or subjects of such nation.
The twelfth section declared that no person living within the
United States after the act took effect should be admitted to
become a citizen who should not, for the continued term of five
years next preceding his admission, have resided within the United
States without being at any time absent therefrom.
Then followed the thirteenth section, upon which the indictment
was found. That section declares it to be felony
"to falsely make, forge, or counterfeit, or cause or procure to
be falsely made, forged, or counterfeited, any certificate or
evidence of citizenship referred to in the act, or to pass,
Page 78 U. S. 90
utter, or use as true any false, forged, or counterfeited
certificate of citizenship, or to make sale or dispose of any
certificate of citizenship to any person other than the person for
whom it was originally issued, and to whom it may of right
belong,"
and prescribes as punishment for the offense imprisonment for a
period of
not less than three nor more than
five
years OR a fine in a sum not less than $500 nor more than $1000, at
the discretion of the court.
The indictment charged the defendant with the second of the
offenses here designated; that he did willfully, falsely, and
feloniously pass, utter, and use as true a false, forged, and
counterfeited certificate of citizenship purporting to have been
issued by one of the district courts of California, and setting
forth with particularity a compliance with the several requirements
of the law for the naturalization of aliens.
The indictment did not allege what use was made by the defendant
of the forged certificate or any purpose for which it was uttered,
and the defendant demurred. The several grounds of demurrer --
reduced to substantially one -- were that the indictment did not
charge that the certificate or evidence of naturalization was
forged to accomplish any purpose contemplated by the act of
Congress under which the indictment was found, or for any other
unlawful purpose, or with intent to injure the United States or any
state, person, corporation, or association.
Upon this demurrer, the question arose whether the indictment
charged any offense against the laws of the United States and
whether it were necessary for the indictment to aver that the
certificate or evidence of citizenship mentioned in it was produced
to the commander of a public vessel of the United States or to a
collector of the customs, as provided in previous sections of the
act, when naturalized citizens were employed as seamen on board of
the public or private vessels of the United States. Upon these
questions the judges of the circuit court were opposed in opinion,
and a certificate of division having been prepared accordingly, the
case was sent to this Court. While pending here,
Page 78 U. S. 91
on the 14th July, 1870, Congress passed an act entitled "An act
to amend the naturalization laws and to punish crimes against the
same, and for other purposes," [
Footnote 1] which embraced the whole subject of frauds
against the naturalization laws. It declared all the acts mentioned
in the thirteenth section of the law of 1813 felonies, but also
declared a great number of other acts of a fraudulent character in
connection with the naturalization of aliens felonies in addition,
and made the infliction of a larger punishment for each offense
discretionary with the court. Thus it authorized imprisonment AND
fine, either or both, in the court's discretion, where the former
act gave one OR the other only, and where the act of 1813 made the
imprisonment
not less than three years and the fine not
less than $500, the new act made the imprisonment not less than
one year and the fine not less than $300.
The matter now to be considered by this Court was what was the
effect of this act of July 14, 1870, upon the provisions of the
thirteenth section of the act of 1813, and if it worked a repeal of
those provisions, what was the proper action to be taken by the
court on the certificate of division?
MR. JUSTICE FIELD, after stating the facts of the case,
delivered the opinion of the Court as follows:
An opposition of opinion, like that in the court below, occurred
between the judges of the Circuit Court for the Southern District
of New York in a similar case which came before this Court at the
December Term of 1868, but as the opposition arose upon a motion to
quash the indictment, the case was dismissed for want of
jurisdiction. [
Footnote 2] In
the present case, the questions presented have ceased to be
material, and consequently it has become unnecessary to determine
them,
Page 78 U. S. 92
for since they arose in the circuit court, Congress has passed a
statute amending the naturalization laws and prescribing certain
punishments for their violation, which has worked a repeal of the
provisions of the 13th section of the act of 1813. That statute,
which was approved on the 14th of July, 1870, declares not only
that the commission of the several acts mentioned in the 13th
section of the law of 1813 shall constitute a felony, but that also
a great number of other acts of a fraudulent character in
connection with the naturalization of aliens shall constitute a
similar offense, and has made the infliction of a larger punishment
for each offense discretionary with the court. The act of 1813
imposes as punishment either imprisonment or fine, at the
discretion of the court. The act of 1870 authorizes either of these
punishments, or both, in the like discretion of the court. The act
of 1813 allows the imprisonment to run between three and five
years, and the fine to extend between five hundred and one thousand
dollars. The act of 1870 fixes the imprisonment between one and
five years, and the fine between three hundred and one thousand
dollars.
There is no express repeal of the 13th section of the act of
1813 declared by the act of 1870, and it is a familiar doctrine
that repeals by implication are not favored. When there are two
acts on the same subject, the rule is to give effect to both if
possible. But if the two are repugnant in any of their provisions,
the latter act, without any repealing clause, operates to the
extent of the repugnancy as a repeal of the first, and even where
two acts are not in express terms repugnant, yet if the latter act
covers the whole subject of the first and embraces new provisions
plainly showing that it was intended as a substitute for the first
act, it will operate as a repeal of that act. [
Footnote 3]
Now between the provisions of the act of 1813 and the act of
1870 there is a clear repugnancy. The first act makes
Page 78 U. S. 93
the punishment for the offenses designated imprisonment or fine.
It provides that the punishment shall be one or the other, and in
so doing declares that it shall not be both. The second act allows
both punishments in the discretion of the court; it thus permits
what the first law prohibits.
Again, the act of 1813 provides that the imprisonment, when
imposed as a punishment, shall not be less than three years, and
may be extended to five. The act of 1870 allows the imprisonment to
be fixed at one year, and from that period upwards to five years.
In this also it permits what the first act forbids.
Again, the act of 1813 declares that the fine, when imposed,
shall not be less than five hundred dollars. The act of 1870 allows
the fine to be as low as three hundred dollars, thus authorizing
what the first act declares shall not be done.
When repugnant provisions like these exist between two acts, the
latter act is held, according to all the authorities to operate as
a repeal of the first act, for the latter act expresses the will of
the government as to the manner in which the offenses shall be
subsequently treated.
One of the earliest cases on this subject is that of
Rex v.
Cator, reported in 4th Burrow. [
Footnote 4] There were two English statutes against
enticing and seducing artificers in the manufactures of the Kingdom
into foreign service. The penalty under the first statute was, for
the first offense, a fine of one hundred pounds and three months'
imprisonment; for the second offense, the fine was discretionary
and imprisonment for twelve months. Under the second statute, the
penalty was, for the first offense, a fine of five hundred pounds
and twelve months' imprisonment; for the second offense the fine
was one thousand pounds and two years' imprisonment. The latter
act, said Lord Mansfield, seems to be a repeal of the former act;
it was made to supply the deficiencies of the former. Accordingly,
the defendant, who had been convicted under both statutes, was
sentenced under the last. In
Rex v. Davis, [
Footnote 5] it appeared that there were two
statutes
Page 78 U. S. 94
against killing deer in an enclosed park. The first statute made
the offense a felony punishable with death. The last statute
punished the first offense with a fine, and made the second offense
a felony, and the twelve judges were unanimously of opinion that
the last statute amounted to a repeal of so much of the first as
related to the offense of felony.
There are numerous cases in the modern reports to the same
effect. We will cite only one, which was decided in this Court,
that of
Norris v. Crocker. [
Footnote 6] In that case, the defendants were sued in an
action of debt to recover the penalty of five hundred dollars upon
the 4th section of the act of Congress of February, 1793,
respecting fugitives from justice and persons escaping from the
service of their masters. That section provided that any person who
should knowingly and willingly obstruct or hinder the claimant, his
agent, or attorney, in seizing or arresting the fugitive from
labor, or should rescue him from such claimant, agent, or attorney,
when arrested by the authority given by the act, or should harbor
or conceal him, after notice that he was a fugitive from labor,
should forfeit and pay for each of these offenses the sum of five
hundred dollars, to be recovered by the claimant in an action of
debt.
Pending the action brought under this section against the
defendants, Congress, in 1850, passed an act amendatory of and
supplementary to the act of February, 1793, the seventh section of
which embraces the offenses specified in the act of 1793, and
creates new offenses, and affixes to each a different punishment
from that named in the old act, prescribing a fine not exceeding
one thousand dollars, and imprisonment not exceeding six months
upon indictment and conviction of the offender, and declaring that
the offender shall also forfeit and pay, by way of civil damages,
to the party injured, the sum of one thousand dollars for each
fugitive lost, to be recovered by action of debt. The act of 1850
contained no clause repealing, in terms, the act of 1793, and the
counsel of the government contended that it only added
cumulative
Page 78 U. S. 95
remedies, and was intended to give greater facilities to the
master of the slave in securing the fugitive, and could not be
construed to have a retrospective operation and wipe out
liabilities incurred under the old act, and thus deprive the master
of rights of action in suits pending, that had accrued to him; and
that the court would not favor repeals by implication. But the
Court held unanimously, Mr. Justice Catron delivering the opinion,
that the last act was plainly repugnant to the first, observing
also that, as a general rule, it was
"not open to controversy, that when a new statute covers the
whole subject of an old one, adds offenses, and prescribes
different penalties for those enumerated in the old law, that the
former statute is repealed by implication, as the provisions of
both cannot stand together."
By the repeal of the 13th section of the act of 1813, all
criminal proceedings taken under it fell. There can be no legal
conviction, nor any valid judgment pronounced upon conviction,
unless the law creating the offense be at the time in existence. By
the repeal, the legislative will is expressed that no further
proceedings be had under the act repealed. In
Norris v.
Crocker, the court said that, as the plaintiff's right to
recover in that case depended entirely on the statute, its repeal
deprived the court of jurisdiction over the subject. As said by Mr.
Justice Taney in another case, "The repeal of the law imposing the
penalty is of itself a remission." [
Footnote 7] In the case at bar, when the 13th section of
the act of 1813 was repealed, there was no offense remaining for
the court to punish in virtue of that section.
It follows that in this case no answer can be returned to the
questions certified to us, but that the case must be remanded to
the court below with directions
To dismiss the indictment.
[
Footnote 1]
Approved July 14, 1870, 16 Stat. at Large 254.
[
Footnote 2]
United States v.
Rosenburgh, 7 Wall. 580.
[
Footnote 3]
Davies v.
Fairbairn, 3 How. 636;
Bartlet v. King, 12
Mass. 537;
Commonwealth v. Cooley, 10 Pickering 36;
Pierpont v. Crouch, 10 Cal. 315;
Norris v.
Crocker, 13 How. 429; Sedgwick on Statute Law
126.
[
Footnote 4]
Page 2026.
[
Footnote 5]
1st Leach, Crown Cases 271.
[
Footnote 6]
54 U. S. 13 How.
429.
[
Footnote 7]
State of Maryland v. Baltimore
& Ohio Railroad Co., 3 How. 534.
