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indicates that it was not intended to restrict the trade to individual instances designated in each particular case by the President himself, but to allow a trade in some measure of more general character, in conformity with general regulations prescribed for its government. That was the construction put upon the act by the President and Secretary. And in conformity with such construction, persons embarked in the trade, and, indeed, whole communities, when brought within the dominion of the sovereign government by the military forces. A construction so made at the time, and by the chief functionaries charged with the execution of the Act of Congress, ought not now to be departed from, unless for very cogent reasons.
Such reasons are not apparent to this court.
The President repeatedly exercised his discretion and granted license to trade. This was done by the order of February 28th 1862, already recited. It was further done by his order of March 31st 1863, accompanying and approving the regulations of that date, issued by the Secretary of the Treasury. The order or license recites " that it appears that a partial restoration of intercourse between the inhabitants of sundry places and sections heretofore declared in insurrection, and the citizens of the rest of the United States, will favorably affect the public interest; therefore the President, exercising the discretion and authority confided to him by the Act of July 13th 1861, hereby doth license and permit such commercial intercourse between the citizens of the loyal states and the inhabitants of the insurrectionary states, in the cases and under the restrictions described and expressed by the regulations of the Secretary of the Treasury, of even date with the order," to wit, March 31st 1863.
A license to trade with the enemy in time of war is said to be stricti juris. By this is meant, in its ordinary application, that the license.granted to the person is to be construed strictly, as to the extent of the power granted to him by it; in respect to the manner in which he may exercise it; the objects in which he may trade; the person with whom he may deal; the times and circumstances in which he may exercise the power; the good faith on his
part in his use of it; the inability to transfer it to others or enable others to trade under it, and many other circumstances touching the construction and exercise of the authority granted by the license. But we are not aware of any principle or authoVOL. XVII.-31
rity which applies the like doctrine to the power of the sovereign or commander-in-chief of the army and navy, or to other public functionary, authorized by the public law or statutory law, to issue or grant license to trade with the enemy in time of war.
In respect to the authority granted to the public functionary to authorize such trade, the ordinary principles of construction are properly applicable. And when the authorized officer of the government has exercised the power, and the citizens of the government have largely acted under the authority, confiding in the validity of its exercise, no good reason is obvious, but on the contrary, much reason is manifest why the citizens so confiding shall not have illegality imputed to their transactions under it.
It is not to be doubted that trade authorized and conducted under the license of the President, so granted, and in conformity with the regulations of the Secretary of the Treasury, is not to be deemed illegal.
Supreme Court of North Carolina.
KANE AND WIFE 0. McCARTHY AND WIFE ET AL.
Any woman, being a free white person, and an alien friend, married after the approval of the Act of February 10th 1855, to a man who was, at the time of such marriage, a naturalized citizen of the United States, becomes, by such mar riage, ipso facto, herself a citizen of the United States, and capable of inheriting real estate, although she resided in a foreign country at the time of her said mar. riage, and has continued her actual residence there ever since.
And any alien woman answering the above description, and married before the approval of the said act, to an alien husband, who has been subsequently naturalized, becomes by his naturalization, ipso facto, herself a citizen of the United States, and capable of inheriting real estate.
It is the status of being married to-being the wife of—a citizen, which makes the alien woman a citizen of the United States.
This was an action for the partition of certain real estate in the city of Raleigh.
The facts of the case were as follows: John Kane, who was a native of Ireland, but a naturalized citizen of the United States, resident in the city of Raleigh, being seised of certain real estate in said city, died intestate May 20th 1863. The decedent left no lineal descendants. At the date of his decease all his collateral
relations were aliens, who could not inherit according to the law of North Carolina, except the femes coverts and infants, parties to the suit, who all claimed to be citizens of the United States, and therefore capable of inheriting.
The plaintiff Martha Kane was a sister of John Kane, a free white woman, and a native of Ireland, where she had always resided until after the said John Kane's death, and she was never in the United States, until she came here in 1867 to institute this action; but on the 28th day of November 1857, being of full age, she married the plaintiff Thomas Kane, her cousin, who was, at the date of said marriage, a naturalized citizen of the United States, and had resided therein from 1848 to 1857, when he returned to Ireland, after having been lawfully naturalized in the state of New York in October 1855.
Both the plaintiffs, after their marriage, remained in Ireland until after John Kane's death, having, however, always the intention of eventually removing to the United States; and in 1867, the plaintiff Martha came to this country to institute this action, leaving her husband still in Ireland.
The defendant Mary McCarthy was also a sister of John Kane, a free white woman and a native of Ireland : she immigrated into the United States during her infancy, in the year 1850, and continued to reside therein ever after. In May 1851 she intermarried with the defendant Dennis McCarthy, an Irishman, who landed in the United States on the 12th of March 1850, and has resided here ever since, having been lawfully naturalized in the state of New Jersey in October 1856.
The infant defendants, Thomas Patrick McCarthy and Isabella McCarthy, were the children of Dennis and Mary McCarthy, were both born in the state of New Jersey, and have resided there ever since their birth; and, since 1865, these infants had been in the pernancy of the rents of the real estate described in the pleadings.
The plaintiffs filed their complaint in the Superior Court of Wake county, setting forth the above facts, claiming one-half of the real estate, in right of the plaintiff Martha, as one of the heirs of John Kane, admitting that the infant defendants were entitled to the other half, as the other heirs of the said John Kane, alleging further, that the said infant defendants claimed the whole of said real estate, and that the defendants Dennis and
Mary McCarthy, in right of said Mary, also set up an unfounded claim to the whole of the said real estate, and demanded judg. ment of partition and an account of the rents and profits.
The defendants demurred, “ because it appears upon the face of the complaint, that the facts therein stated are not sufficient to constitute a cause of action, and to entitle the plaintiffs to the judgment which they demand."
The court gave judgment on the demurrer for the defendants, and thereupon the plaintiffs appealed to the Supreme Court.
Ed. Graham Haywood, for plaintiffs.- 1st. By virtue of the 2d section of the Act of Congress of the 10th of February 1855, Martha Kane was, at the time of descent cast, a citizen of the United States, and capable of inheriting to her brother John.
It is admitted that Martha Kane is a woman who has married a naturalized citizen of the United States since the act, the only question is, was she, at the date of her marriage, "a woman who might lawfully be naturalized under the existing laws." The auxiliary verb “may,” in all its forms, has a potential meaning; it is used to express, not what is, but what is possible ; and this expression, according to its natural interpretation, is equivalent to, any woman for whom, by the laws extant in 1855, naturalization was or is possible; in other words, any woman who, by the laws in force in 1855, was or is capable of becoming a citizen of the United States through the process of naturalization as then regulated by law.
2d. To ascertain who might lawfully be naturalized under the existing laws, we refer to the Naturalization Act of 1802, and find that “any alien being a free white person, provided that he or she is not an alien enemy,” is capable of becoming a citizen of the United States by the process of naturalization: 10 Stats. at Large, ch. 71, p. 604; 1 Bright. Dig. of Laws, tit. Citizenship, p. 132, and tit. Alien, p. 73; 2 Kent's Com. (ed. of 1867, by G. F. Comstock), p. 15 n., and p. 36; 1 Scrib. on Dower, from p. 174 to p. 176, and pp. 144 and 147; 2 Am. Law Reg. (0. S.) p. 193; Burton v. Burton, 3 Am. Law Reg. (N. S.) p. 425; 26 How. Prac. Rep. p. 474; Greer v. Sankston, 26 How. Prac. Rep. p. 471; Ludlam v. Ludlam, 31 Barb. (N. Y.) p. 486; affirmed in the Court of Appeals, 26 N. Y. Rep.; also 3 Am. Law Reg. (N. S.) pp. 595 and 599.
3d. The Act of 1855 was not intended to provide a new process of naturalization for alien women and children, as is apparent from its title and whole purview and meaning; it was enacted to define and regulate the legal status as to citizenship of foreignborn wives and children of United States citizens, and to identify them in citizenship with the father and husband, without any process of naturalization. Its main object was to dispense with the process of naturalization in cases coming within its operation.
4th. To allow the words “who might lawfully be naturalized . under the existing laws,” the effect of compelling an alien woman to use the whole process of naturalization, except the final step of admission by a competent court of record, before she becomes a citizen by reason of the fact that she is the wife of a citizen of the United States, is to permit this single sentence to defeat the whole policy, purpose, and scope of the act.
W. H. Battle, for infant defendants.—By the laws of the United States, the following are indispensable requisites to naturalization. 1st. Five years' residence; 2d. Proof of good character; 3d. Renouncing title of nobility; 4th. Not being an alien enemy. Martha Kane was a native of Ireland and had always resided there; what was her character does not appear, the only requisite she had was that of being a white woman. Is that alone sufficient?
Residence here was a sine qua non to being naturalized. Act of 1802 required five years' residence, proof of good moral character, and attachment to the Constitution. Act of March 1813 required five years' residence. Act of March 1816 required the same. Act of May 1824 required five years' residence even for minors. Act of 1828 required five years' continued residence and particular proof of it. Act of 1848 only strikes out the clause, “without being at any time within the said five years out of the territory of the United States,” which was in the Act of 1813, still leaving a five years' residence to be necessary. It will thus be seen that all the acts insist upon residence as an indispensable requisite to naturalization, without repeating the clause which requires proof of character.
An alien feme covert may be naturalized: see Ex parte Pic, 1 Cranch, Cir. Co. Rep. 372; and she must be naturalized before she can claim, dower: see 1 Cruise Dig., tit. Dower, chap.