alien enemies. The status of aliens, subjects of countries with which we are at war, but who reside here and obey our laws, has already been before the courts for determination.

"The case of State v. Darwin, 102 Wash. 402, 173 Pac. 29, L. R. A. 1918F 1012 (May 10, 1918) was a proceeding to compel the state fish commissioner to issue a fishing license to the relator for the Puget Sound district. It appeared that relator was an Austrian who had declared his intention to become a citizen and was law abiding. The application was resisted by the Attorney General on the ground that the relator was an alien enemy. The court granted the writ.

"Tortoriello v. Seghorn, et. al. (N. J. Ch. March 12, 1918) 103 Atl. 393, was an action to compel the specific performance of a contract for the sale of certain real estate on Warwick street, in the city of Newark, where all the parties reside. The facts in the case were undisputed.

"Defendants refused to perform their contract and convey the premises in question to complainant, because they claimed they were advised that to do so would make them subject to the penalties of fine and imprisonment imposed by the act of Congress approved October 6, 1917 (40 Stat. 411 c. 106), and known as the "Trading with the Enemy Act," as they are not citizens of the United States, and were born in the German Empire, and are considered subjects of that country, with which this country is at war, and they further claimed that they had been advised that by reason of their German citizenship they are considered alien enemies, and are not permitted under the act to complete their contract and convey their property. The court, by Foster, V. C., says (103 Atl. at pages 394, 395): **********

'My conclusion is that the defendants are not 'enemies' within the meaning of the Trading with the Enemy Act, or the President's proclamation issued thereunder, and that the record discloses no legal obstacle that prevents them from performing their contract with complainant.'

"The above case has been cited and quoted with approval

by the Court of Errors and Appeals of New Jersey in the case of Heiler vs. Goodman's Co., 105 Atl. 223 (November, 1918).

"Plaintiff contends that it must be assumed that the Legislature used the word 'alien friends' in its strict sense of a citizen or subject of a state not at war with us. It is quite true that the usual and customary definition of an alien enemy has been, as the legal and other dictionaries define it, "a subject of a nation which is at war with this country," while an alien friend is the subject of a nation which is at peace with this country. But the humane and considerate treatment accorded by this country to aliens resident within the borders since its entry into the World War is characteristic of the spirit in which the laws should be administered as to the issues which war conditions have raised.

"I think, based upon all federal statutes, our governmental course of action, and the decisions already made here and abroad, that an alien friend, within the meaning of our Real Property Law is not merely a resident subject of a nation with which we are at peace, but also a resident subject of a nation with which we are at war, but who has observed to the letter our laws and our regulations laid down for his conduct, and who in return will be protected by this country in all his civil and property rights, while he so conducts himself.

"The injustice of visiting upon the innocent the consequences of acts for which they are in no way responsible is demonstrated by the present case. Here is an American-born woman, loyal and law abiding, who, through statutory rule, has acquired the political status of her foreign-born husband, who himself is a resident, has declared his intention of becoming a citizen of this country, and is likewise loyal and law-abiding. Her father dies intestate, and normally she would inherit half of his real property. But, because 10 days earlier war had been declared between the country of her birth and residence and that of her husband's birth, it is sought to declare her as alien enemy and deprive her of her birthright, to benefit her sister. Peace will soon be declared with Austria, and she will once again even under plaintiff's contention, become an alien friend, until her husband can become an American citizen,

when she will be restored to American citizenship. But her rights could never be restored to her and her share of her father's estate could never again be hers. Such a result is abhorrent to every idea of justice and equity and the help of the courts should not be given to accomplish it." ****:

Again in the same case, the Court of Appeals (229 NY. 222), while sustaining the Supreme Court Appellate Division on the right of plaintiff to inherit realty under the Treaty of the United States with Austria-Hungary (see Treaty, Addenda T), subject to the condition that the realty be disposed of within two years as stipulated in the treaty, overruled the court below on that part of its decision which held that the plaintiff was an alien friend, within the meaning of the New York statute, the court saying: ****

"The rule at common law was that aliens might take lands by purchase, and hold until office found, but could take nothing by descent (Martin vs. Hunter's Lessee, 1 Wheat 304; Howenstein vs. Lynham, 100 U. S. 483; Haley vs. Sheridan, 190 N. Y. 331; 2 Kent's Comm. 54). 'If an alien could acquire a permanent property in lands, he must owe an allegiance equally permanent with that property to the King of England, which would probably be inconsistent with that which he owes to his own natural liege lord; besides that thereby the realm might in time be subject to foreign influence, and feel many other inconveniences' (1 Blackstone Comm. 372). Blackstone was repeating the explanation which was already traditional in his day. Inheritance by aliens says Coke (Calvin's Case, 4 Co. Rep. 1, 19), would 'tend to the destruction of the realm.' And if it be demanded 'wherein doth that destruction consist', his answer is: 'First, it tends to destruction tempore belli; for then strangers might fortify themselves in the heart of the realm and be ready to set fire on the commonwealth', for all which he finds example and warning in the legend of the Trojan horse. Artificial and farstretched may seem today this defense of the policy of the rule. We may even doubt whether it is sound in history (1 Pollock & Maitland's History of English Law, 445). That is little to the point. The rule, whatever its origin, is inveterate

and undoubted. It survives today except as statute or treaty may have abrogated or changed it.

The plaintiff is indisputably an alien. Congress has enacted that 'any American woman who marries a foreigner shall take the nationality of her husband.' (Act of March 2, 1907, ch. 2534, 34 Stat. 1229)." [This Act since repealed by Act of Sept. 22, 1922, Addenda V.] "That statute was considered in Mackenzie vs. Hare (239 U. S. 299) where an American-born woman, married to a British subject, and residing in California, was held, by force of her marriage, to have lost the right to vote. (Compare the reciprocal rights of alien women who marry citizens of the United States; U. S. R. S. 1994; 10 St. L. 604; Kelly vs. Owen, 7 Wall. 496. Marriage to an alien is voluntary expatriation. The plaintiff is in the same position as if letters of naturalization had been issued to her in Austria. She is in the same position as her husband. She is without capacity to inherit unless statute or treaty has removed the disability. **** *** "If the

the plaintiff's capacity to inherit depended solely on the statute, I should feel constrained to hold against her. I cannot follow the Appellate Division in its view that she is in law an "alien friend." The wisdom or fairness of the statute, I make no attempt to vindicate. Our duty is done when we enforce the law as it is written. In the primary meaning of the words, an alien friend is the subject of a foreign state at peace with the United States; an alien enemy is the subject of a foreign state at war with the United States (1 Kent Comm. p 55; 2 Halleck Int. L (Rev. 1908), p 1; Hall Int. Law (7th ed.), pp. 403, 126; Baty & Morgan War: Its Conduct and Legal Results, p. 247; 1 Halsbury Laws of England, p. 310; Sylvester's Case, 7 Mod. 150; the Roumanian, 1915 Prob. Div. 26; affd., 1916 1 A. C. 124; Griswold v. Waddington, 16 Johns, 437, 448; White vs. Burnley, 20 How. (U. S.) 235, 249; The Benito Estenger, 176 U. S. 568, 571; Kershaw v. Kelsey, 100 Mass. 56; so all the lexicographers, as, e. g., Webster, Murray, Abbott, Black, Bouview). This primary meaning must be taken to be the true one unless evidence is at hand that some other meaning was intended."

There are times, indeed, when alien enemies are relieved of disabilities, and treated in the same way or nearly the same way as friends, (Porter vs. Freudenberg, 1915, 1 K. B. 857; Clarke vs. Morey, 10 Johns 69; Hall Int. Law (7th ed.), p. 410; Scrutton The Law and the War, 34 Law Quarterly Rev. 120, 121; McNair Alien Enemy Litigants, 34 id. 134; Picciotto Alien Enemies in English Law, 27 Yale Law Journal, 167, 168; The Right of Alien Enemies to Sue, 27 id. 104, 105; 1 Blackstone Comm. 372, 373). Unless they are present in the hostile territory or are found adhering to the enemy, they retain, by express or implied license of the sovereign, many of the privileges that belong to them in peace. Sometimes, though loosely, we speak of them as friends for the purpose of characterizing their status when they are brought within the range of exemption, tacit or proclaimed. The truth is that they are enemies, who, within the limits placed by the sovereign upon a revocable license, enjoy the privileges of friends. Their identification with friends is never complete (Baty & Morgan "War: Its Conduct and Legal Results," p. 252). They are subject to one restriction or another betokening their enemy character. No doubt there is a growing tendency to narrow the field of disability. The day may come when the movement will have spread so far that the subject of a hostile power residing within our territory and yielding obedience to our laws will be ranked as a friend, not for some purposes, but for all. But in construing a statute we assume that the legislature has spoken in the light of the law as it is, and not as it may hereafter be. The law as declared in New York when this statute was enacted, held fast to the old moorings. Its history, briefly followed may make the solution of the problem nearer. ***

After reviewing English and American decisions and statutes, at length, the court further said: *****

***

"I find nothing that overbears the cumulative force of all this statutory definition either in the President's proclamation of December 11, 1917, issued under the authority of Section 4067, of the United States Revised Statutes, or in the act of October 6, 1917 (40 U. S. Stat. p. 411, ch. 106) "to define,