regulate and punish trading with the enemy."

**

"An amendment of the statute in April, 1918, extended its scope to women (40 Stat. ch. 55, p. 531). On April 6, 1917, at the outbreak of the war with Germany, and again on November 16, 1917, the President issued proclamations regulating the conduct of German subjects resident in the United States (40 Stat. pp. 1650, 1716). On December 11, 1917, he issued a proclamation regulating the conduct of subjects of Austria-Hungary resident in the United States (40 Stat. p. 1729). After the amendment of section 4067 in April, 1918, a supplemental proclamation of May 31, 1918, brought women within the scope of the regulations then applicable to men (40 Stat. 1786). The restrictions laid upon German subjects, remaining in the United States were many and minute. *******

"The Trading with the Enemy Act (40 Stat. ch. 106, p. 411) did not invest them with a different status. Its definition of an enemy was 'for the purposes of such trading and of this act,' and for no other. Trade was prohibited with any one resident within the hostile territory, even though a citizen of the United States, and with such other persons, wherever resident, if subjects of the hostile nation, as might be brought within the term enemy by proclamation of the President. The prohibition in its main features is in line with the restrictions which would have been imposed in default of any statute. But the disability of aliens in respect of the ownership of lands has no connection with their disabilities in respect of the privileges of trade (Kershaw vs. Kelsey, 100 Mass. 561, at pp. 574, 575; Fairfax vs. Hunter's Lessee, 7 Cranch, 603, 620; London & Northern Estates Co. v. Schlesinger, 1916, 1 K. B. 20). If the state of New York had declared that all aliens should have capacity to acquire ownership by descent, neither the Trading with the Enemy Act, not any rule of the common law, would read into the statute an implied exception in the contingency of war, and withhold the right of succession from alien enemies, whether resident in hostile territory or here (Kershaw v. Kelsey; Fairfax v. Hunter, supra). The nation by act of Congress might declare their lands forfeit (Brown v. U. S., 9 Cranch, 110; Mrs. Alexander's Cotton, 2 Wall. 404;

Miller v. U. S., 11 Wall. 268), but in the absence of such a forfeiture title would be theirs. To argue, that alien enemies, resident in the United States, may inherit because they may trade is to assume that disabilities must have identity of duration though they have diversity of origin.

"Trade in aid of the enemy's resources, since it tends to prolong the combat, is illegal for every one within our jurisdiction, whether enemy or friend (The Hoop, 1 Rob. Adm. 196; Griswold v. Waddington, supra; Porter v. Freudenberg, supra; Kershaw v. Kelsey, supra; 2 Westlake Int. L. 51). The prohibition does not run against the alien as an incident of the disabilities of alienage. It runs against citizen and alien as an incident of the necessities of war. ************ The truth is that the right to trade since it does not follow lines of citizenship, should not be formulated in terms of alienage. If a citizen of the United States does business in a hostile territory, trade is prohibited with him as much as with an alien (The Peterhoff, 5 Wall. 28). To bring him within the compass of a rule imperfectly stated at the outset, he is sometimes characterized by courts as an alien enemy himself (Porter v. Freudenberg, supra). In reality, of course, he is not an alien, either enemy or friend. What is meant is that the trade with him is as unlawful as if he were an alien enemy. But plainly the statute of New York does not speak of alien friends in this special and unnatural sense. There was no thought of taking from our own citizens the right of purchase and inheritance when resident in hostile lands. The definition of enemies for the purpose of trade is thus in some features too wide and in others too narrow when fitted to this statute. It is too wide in that it includes citizens as well as aliens abroad. It is too narrow in that it excludes the alien at home. ************

"The case under the statute of New York comes down, then to this: The question, 'What are the rights of alien enemies in the absence of statutory restrictions?' is distinct from the question, 'Who are alien enemies within the scope of such restrictions?" Alien enemies, resident within our borders retain by implied license many of the civil rights of

friends. Implication ceases, however, to be legitimate when an express and conflicting prohibition occupies the field. Expressum facit cessare tacitum. The civil rights which belong to alien enemies by implied license of the Federal Government do not include the right to purchase or inherit land. That is a subject which every state, in the absence of inconsistent treaty, may regulate for itself (Blythe v. Hinckley, 180 U. S. 333, 341). The civil rights which belong to alien enemies by implied license of the states, do not include in New York the right to purchase and inherit land, for the field is occupied by statute, and there is, therefore, nothing to be implied. The legislature might have refused to draw a distinction between enemies and friends. It might have given capacity to all aliens alike, and in that event capacity would not have ended with the outbreak of the war. It chose a policy less liberal. It gave the privilege to friends and withheld the privilege from enemies. I find no ground for the belief that it intended. the definition of enemies to wait upon the varying terms of proclamations of future presidents, to be enlarged today, and restricted tomorrow, with the changing fortunes of a war. For the same reason, I cannot think that there was willingness to impair the security of titles by substituting the uncertain and fluid test of loyalty in act and speech for the certain and historic test of allegiance to the sovereign. In the law of land, more than in any other branch of law, words are used as terms of art. Here, more than in any other field, the method of history supplies the organon of interpretation for the work of legislators and judges. Deep into the soil go the roots of the words in which the rights of the owners of the soil find expression in the law. We do not readily uproot the growths of centuries. ****

Techt vs. Hughes, 229 NY. 222; certiorari denied, 254 US. 643, 41 Sup. Ct. 14.

Note: On the right to take under treaty, see Note 75, Section 9, where the opinion of the court is quoted as to that right.

9. Alien Enemy Entitled to Distributive Share of Wife's Estate Under Iowa Statutes.

"A declaration of war does not ipso facto work a con

fiscation of property of alien enemies within the territory of the belligerent power, and an alien enemy holds his property legally against all the world, except the sovereign. The modern tendency is simply to withhold the property of the alien enemy, if necessary, and restores it to him at the termination of hostilities. 27 R. C. L. 924; In re Henrichs Estate, 180 Cal. 175, 179 Pac. 883; Posselt vs. D'Espard, 87 N. J. Eq. 571, 100 Atl. 893." Weiditschka vs. Supreme Knight of Macabces, 188 Iowa, 183, 170 N. W. 835.

"Under the law of this state, as judicially interpreted, it is immaterial whether the alien is a resident or non-resident in times of peace. Casley vs. Mitchell, 121, Iowa, 96, 96 N. W. 725. The Casley Case involved a distributive share of the widow, who was a resident and citizen of England. We have not followed the spirit of the comon law, and the Constitution of Iowa clearly recognizes the acquiring by an alien of property by descent. The appellant, although technically classified as an alien enemy, was a resident of Iowa, and is entitled to the protection given him by our law. Alien enemies are permitted to remain within our borders, and the tendency of the courts is to respect their rights and privileges as though they were alien friends." "Unless the political department acted, courts are not inclined to destroy the property.rights of aliens in time of war, and this is the better rule and in keeping with "the dictates of fair dealing and the honor of the nation." The judgment entered by the trial court, denying the right asserted by the plaintiff, is reversed. Bruer vs. Beery, et. al., (Sup. Ct. Iowa) 189, N. W. 717.

10. Enemy Non-Resident Devisee May Take Realty Under Kentucky Statutes.

In the case of Garnett D. Ripley, et al., vs. Waldemar Conrad Von Zedtwitz, decided by the Court of Appeals of Kentucky, Dec. 4, 1923, not yet appearing in reports, the Court stated the facts, as follows:

"In the year 1895, Mary E. B. Caldwell, an American citizen, married Baron Von Zedtwitz, a citizen and resident of Prussia. They had only one child, Waldemar Conrad Zedtwitz,

who was born in Berlin on May 8, 1896. At the time of his birth, and for a short time thereafter, his father lived in Prussia. In the year 1908, and after the death of his father, Waldemar and his mother, it is alleged became naturalized citizens of Switzerland. His mother, Mary Caldwell Von Zedtwitz, died in the year 1910, the owner of some very valuable real estate located in Jefferson County, Kentucky. By her will, which was probated in Jefferson County, she devised the foregoing real estate to the United States Trust Company of New York and Henry Cashard to be held in trust for her son, Waldemar, upon certain terms and conditions not material to this controversy. During the World War Waldemar was a soldier in the German Army and was engaged in carrying on war against the United States." And under state statute which provides (see 2 Cyc. 98) that "In case of an alien not an enemy, and who has declared his intention to become a citizen of the United States, all disability is removed; resident alien may take and hold for actual residence, ocupation of business for twentyone years; non-resident alien may take by descent or devise, but must alienate within eight years, and within that period he may transmit title to it by descent or devise." Barbour & C., Stat. Ky. (1894), Sections 334, 337, 338, 339.": the court held that under, section 38, Stat. Ky., the common law right of a non-resident alien to take real estate by devise is not only confirmed but additional right to hold the property for a period of eight years against the state, which did not exist at common law; but whether the property in question, which is held under an active trust is subject to escheat or whether the time of holding has expired, the court did not decide, for, assuming both propositions in the affirmative, the court held that the appellants did even then have any right to the property. Said the court: "Section 338 contains no language that provides expressly, or by necessary implication, or even inferentially, that real property, which has been held by a non-resident alien devisee for more than eight years shall pass to the testator's next of kin who are capable of inheriting, but leaves the common law rule in force, and under that rule only the State may question the right of an alien to hold real property. Yeaker vs. Yeaker, 4 Met. 33, does not announce a contrary rule. In that