Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Assistant Attorney General Hoyt for appellant.
Messrs. Max J. Kohler and B. Lewinson for appellee.
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:
By the preamble of the act of May 6th, 1882, chap. 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 17th, 1880 (22 Stat. at L. 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 12th section of the above act was as follows:
By the act of July 5th, 1884, chap. 220, the 12th section of the above act of May 6th, 1882, was amended so as to read as follows:
Subsequently, by the act of May 5th, 1892, Chap. 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. at L. 25, 1.
The question certified to us is whether the 12th section of the act of 1882, amended and continued in force as above stated, was abrogated by the treaty with China proclaimed December 8th, 1894. 28 Stat. at L. 1210
As this question cannot be properly disposed of without examining the entire treaty, the provisions of the treaty are here given in full:
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. [185 U.S. 213, 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 co-operate in preventing the immigration or coming to this country of such persons. China itself recognized it to be its duty to co-operate 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 12 of the act of May 6th, 1882, as amended by the act of July 5th, 1884, and as continued in force by the act of May 5th, 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, 314, 7 L. ed. 415, 435, it was [185 U.S. 213, 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, 621, sub nom. 207 Half Pound Papers Smoking Tobacco v. United States, 20 L. ed. 227, 229, 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 , 599, sub nom. Edye v. Robertson, 28 L. ed. 798, 804, 5 Sup. Ct. Rep. 247, 254, 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, 194 , 31 S. L. ed. 386, 388, 8 Sup. Ct. Rep. 456, 458; '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 Court. C. C. 454, 459, Fed. Cas. No. 13,799; Clinton Bridge Case, Woolw. 155, Fed. Cas. No. 2,900; Ropes v. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; 2 Story, 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 clarly 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. [185 U.S. 213, 222] 342, 363, 10 L. ed. 987, 995; United States v. Tynen, 11 Wall. 88, 93, 20 L. ed. 153, 154; South Carolina v. Stoll, 17 Wall. 425, 431, 21 L. ed. 650, 654. In Frost v. Wenie, 157 U.S. 46, 58 , 39 S. L. ed. 614, 619, 15 Sup. Ct. Rep. 532, 537, 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 priortreaty between the United States and China. Chew Heong v. United States, 112 U.S. 536, 550 , 28 S. L. ed. 770, 774, 5 Sup. Ct. Rep. 255. 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 12th 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 [185 U.S. 213, 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.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Citation: 185 U.S. 213
Docket No: No. 503
Decided: April 21, 1902
Court: United States Supreme Court
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
FindLaw for Legal Professionals
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)