Appellants, residents of East Germany, are the heirs of an
American citizen who died intestate in Oregon, leaving personal
property. Appellees include members of the State Land Board who
petitioned the Oregon probate court for the escheat of the
personalty pursuant to Ore.Rev.Stat. § 111.070. That section
provides for escheat where a nonresident alien claims personalty
unless (1) there is a reciprocal right of a United States citizen
to take property on the same terms as the citizen of a foreign
nation, (2) American citizens have the right to receive payment
here of funds from estates in the foreign country, and (3) foreign
heirs have the right to receive the proceeds of Oregon estates
without confiscation. The Oregon Supreme Court held that appellants
could not take the personalty, because the reciprocity required by
§ 111.070 was not present.
Held: As applied by Oregon, each of the three
provisions of § 111.070 involves the State in foreign affairs and
international relations, matters which the Constitution entrusts
solely to the Federal Government.
Clark v. Allen,
331 U. S. 503,
distinguished. Pp.
389 U. S.
432-441.
243 Ore. 567, 592, 412 P.2d 781,
415 P.2d
15, reversed.
Page 389 U. S. 430
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case concerns the disposition of the estate of a resident
of Oregon who died there intestate in 1962. Appellants are
decedent's sole heirs, and they are residents of East Germany.
Appellees include members of the State Land Board that petitioned
the Oregon probate court for the escheat of the net proceeds of the
estate under the provisions of Ore.Rev.Stat. § 111.070 (1957),
[
Footnote 1] which provides for
escheat in cases where a nonresident alien claims real or personal
property unless three requirements are satisfied:
(1) the existence of a reciprocal right of a United States
citizen to take property on the same terms as a citizen or
inhabitant of the foreign country;
Page 389 U. S. 431
(2) the right of United States citizens to receive payment here
of funds from estates in the foreign country; and
(3) the right of the foreign heirs to receive the proceeds of
Oregon estates "without confiscation."
The Oregon Supreme Court held that the appellants could take the
Oregon realty involved in the present case by reason of Article IV
of the 1923 Treaty of Friendship, Commerce and Consular Rights with
Germany [
Footnote 2] (44 Stat.
2135) but that, by reason of the same Article, as construed in
Clark v. Allen, 331 U. S. 503,
they could not take the personalty. 243 Ore. 567, 592, 412 P.2d
781,
415 P.2d
15. We noted probable jurisdiction. 386 U.S. 1030.
Page 389 U. S. 432
The Department of Justice, appearing as
amicus curiae,
submits that, although the 1923 Treaty is still in force,
Clark
v. Allen should be overruled insofar as it construed the
personalty provision of Article IV. That portion of Article IV
speaks of the rights of "[n]ationals of either High Contracting
Party" to dispose of "their personal property of every kind within
the territories of the other." That literal language and its long
consistent construction, we held in
Clark v. Allen, "does
not cover personalty located in this country and which an American
citizen undertakes to leave to German nationals." 331 U.S. at
331 U. S.
51.
We do not accept the invitation to reexamine our ruling in
Clark v. Allen. For we conclude that the history and
operation of this Oregon statute make clear that § 111.070 is an
intrusion by the State into the field of foreign affairs which the
Constitution entrusts to the President and the Congress.
See
Hines v. Davidowitz, 312 U. S. 52,
312 U. S.
63.
As already noted, [
Footnote
3] one of the conditions of inheritance under the Oregon
statute requires
"proof that such foreign heirs, distributees, devisees or
legatees may receive the benefit, use or control of money or
property from estates of persons dying in this state without
confiscation, in whole or in part, by the governments of such
foreign countries,"
the burden being on the nonresident alien to establish that
fact.
This provision came into Oregon's law in 1951. Prior to that
time the rights of aliens under the Oregon statute were defined in
general terms of reciprocity, [
Footnote 4] similar to the California Act which we had
before us in
Clark v. Allen, 331 U.S. at
331 U. S. 506,
n. 1.
We held in
Clark v. Allen that a general reciprocity
clause did not on its face intrude on the federal domain.
Page 389 U. S. 433
331 U.S. at
331 U. S.
516-517. We noted that the California statute, then a
recent enactment, would have only "some incidental or indirect
effect in foreign countries."
Id. at
331 U. S. 517.
[
Footnote 5]
Had that case appeared in the posture of the present one, a
different result would have obtained. We were there concerned with
the words of a statute on its face, not the manner of its
application. State courts, of course, must frequently read,
construe, and apply laws of foreign nations. It has never been
seriously suggested that state courts are precluded from performing
that function, albeit there is a remote possibility that any
holding may disturb a foreign nation -- whether the matter involves
commercial cases, tort cases, or some other type of controversy. At
the time
Clark v. Allen was decided, the case seemed to
involve no more than a routine reading of foreign laws. It now
appears that, in this reciprocity area under inheritance statutes,
the probate courts of various States have
Page 389 U. S. 434
launched inquiries into the type of governments that obtain in
particular foreign nations -- whether aliens under their law have
enforceable rights, whether the so-called "rights" are merely
dispensations turning upon the whim or caprice of government
officials, whether the representation of consuls, ambassadors, and
other representatives of foreign nations is credible or made in
good faith, whether there is in the actual administration in the
particular foreign system of law any element of confiscation.
In a California case involving a reciprocity provision, the
United States made the following representation:
"The operation and effect of the statute is inextricably
enmeshed in international affairs and matters of foreign policy.
The statute does not work disinheritance of, or affect ownership of
property in California by, any group or class, but, on the
contrary, operates in fields exclusively for, and preempted by, the
United States; namely, the control of the international
transmission of property, funds, and credits, and the capture of
enemy property. The statute is not an inheritance statute, but a
statute of confiscation and retaliation."
In re Bevilacqua's Estate, 161 P.2d 589, 593
(Dist.Ct.App.Cal.),
superseded by 31 Cal. 2d
580, 191 P.2d 752.
In its brief
amicus curiae, the Department of Justice
states that:
"The government does not . . . contend that the application of
the Oregon escheat statute in the circumstances of this case unduly
interferes with the United States' conduct of foreign
relations."
The Government's acquiescence in the ruling of
Clark v.
Allen certainly does not justify extending the principle of
that case, as we would be required to do here to uphold the Oregon
statute as applied, for it has more than "some incidental or
indirect effect in foreign countries,"
Page 389 U. S. 435
and its great potential for disruption or embarrassment makes us
hesitate to place it in the category of a diplomatic bagatelle.
As we read the decisions that followed in the wake of
Clark
v. Allen, we find that they radiate some of the attitudes of
the "cold war," where the search is for the "democracy quotient" of
a foreign regime, as opposed to the Marxist theory. [
Footnote 6] The Oregon statute introduces the
concept of "confiscation," which is, of course, opposed to the Just
Compensation Clause of the Fifth Amendment. And this has led into
minute inquiries concerning the actual administration of foreign
law, into the credibility of foreign diplomatic statements, and
into speculation whether the fact that some received delivery of
funds should "not preclude wonderment as to how many may have been
denied
the right to receive.' . . ." See State Land Board
v. Kolovrat, 220 Ore. 448, 46162, 349 P.2d
255, 262, rev'd sub nom. Kolovrat v. Oregon,
366 U. S. 187,
on other grounds.
Page 389 U. S. 436
That kind of state involvement in foreign affairs and
international relations -- matters which the Constitution entrusts
solely to the Federal Government -- is not sanctioned by
Clark
v. Allen. Yet such forbidden state activity has infected each
of the three provisions of § 111.070 as applied by Oregon.
In
State Land Board v. Pekarek, 234 Ore. 74, 378 P.2d
734, the Oregon Supreme Court, in ruling against a Czech claimant
because he had failed to prove the "benefit" requirement of
subsection (1)(c) of the statute, said:
"Assuming, without deciding, that all of the evidence offered by
the legatees was admissible, it can be given relatively little
weight. The statements of Czechoslovakian officials must be judged
in light of the interest which they had in the acquisition of funds
for their government. Moreover, in judging the credibility of these
witnesses, we are entitled to take into consideration the fact that
declarations of government officials in communist controlled
countries as to the state of affairs existing within their borders
do not always comport with the actual facts."
Id. at 83, 378 P.2d at 738.
Yet in
State Land Board v. Schwabe, 240 Ore. 82,
400 P.2d
10, where the certificate of the Polish Ambassador as tendered
against the claim that the inheritance would be confiscated abroad,
the Oregon court, appraising the current attitude of Washington,
D.C. toward Warsaw, accepted the certificate as true.
Id.
at 84, 400 P.2d at 11.
In
State Land Board v. Rogers, 219 Ore. 233,
347 P.2d
57, the court held Bulgarian heirs had failed to prove the
requirement of what is now § (1)(b) of the reciprocity statute, the
"right" of American heirs of Bulgarian decedents to get funds out
of Bulgaria into the United States. Such transmission of funds
required a license from the Bulgarian National Bank, but the
Page 389 U. S. 437
court held the fact that licenses were regularly given
insufficient, because they were issued only at the discretion or
"whim" of the bank.
Id. at 245, 347 P.2d at 63. [
Footnote 7]
As one reads the Oregon decisions, it seems that foreign policy
attitudes, the freezing or thawing of the "cold war," and the like
are the real desiderata. [
Footnote
8] Yet they, of
Page 389 U. S. 438
course, are matters for the Federal Government, not for local
probate courts.
This is as true of (1)(a) of § 111.070 as it is of (1)(b) and
(1)(c). In
Clostermann v. Schmidt, 215 Ore. 55,
332 P.2d
1036, the court -- applying the predecessor of
Page 389 U. S. 439
(1)(a) -- held that not only must the foreign law give
inheritance rights to Americans, but the political body making the
law must have "membership in the family of nations" (
id.
at 65, .332 P.2d at 1041), because the purpose of the Oregon
provision was to serve as
"an inducement to foreign nations to so frame the inheritance
laws of their respective countries in a manner which would insure
to Oregonians the same opportunities to inherit and take personal
property abroad that they enjoy in the state of Oregon.
Id. at 68, 332 P.2d at 1042."
In
In re Estate of Krachler, 199 Ore. 448,
263 P.2d
769, the court observed that the phrase "reciprocal right" in
what is now part (1)(a) meant a claim "that is enforceable by law."
Id. at 455, 263 P.2d at 773. Although certain provisions
of the written law of Nazi Germany appeared to permit Americans to
inherit, they created no "right," since Hitler had absolute
dictatorial powers, and could prescribe to German courts rules and
procedures at variance with the general law. Bequests "
grossly
opposed to sound sentiment of the people'" would not be given
effect. Id. at 503, 263 P.2d at 794. [Footnote 9]
Page 389 U. S. 440
In short, it would seem that Oregon judges, in construing §
111.070, seek to ascertain whether "rights" protected by foreign
law are the same "rights" that citizens of Oregon enjoy. If, as in
the
Rogers case, the alleged foreign "right" may be
vindicated only through Communist controlled state agencies, then
there is no "right" of the type § 111.070 requires. The same seems
to be true if enforcement may require approval of a Fascist
dictator, as in
Krachler. The statute, as construed, seems
to make unavoidable judicial criticism of nations established on a
more authoritarian basis than our own.
It seems inescapable that the type of probate law that Oregon
enforces affects international relations in a persistent and subtle
way. The practice of state courts in withholding remittances to
legatees residing in Communist countries or in preventing them from
assigning them is notorious. [
Footnote 10] The several States, of course, have
traditionally regulated the descent and distribution of estates.
But those regulations must give way if they impair the effective
exercise of the Nation's foreign policy.
See Miller, The
Corporation as a Private Government in the
Page 389 U. S. 441
World Community, 46 Va.L.Rev. 1539, 1542-1549 (1960). Where
those laws conflict with a treaty, they must bow to the superior
federal policy.
See Kolovrat v. Oregon, 366 U.
S. 187. Yet, even in absence of a treaty, a State's
policy may disturb foreign relations. As we stated in
Hines v.
Davidowitz, supra, at
312 U. S. 64:
"Experience has shown that international controversies of the
gravest moment, sometimes even leading to ar, may arise from real
or imagined wrongs to another's subjects inflicted, or permitted,
by a government."
Certainly a State could not deny admission to a traveler from
East Germany, nor bar citizens from going there.
Passenger
Cases, 7 How. 283;
cf. 73 U.
S. Nevada, 6 Wall. 35;
Kent v. Dulles,
357 U. S. 116. If
there are to be such restraints, they must be provided by the
Federal Government. The present Oregon law is not as gross an
intrusion in the federal domain as those others might be. Yet, as
we have said, it has a direct impact upon foreign relations, and
may well adversely affect the power of the central government to
deal with those problems.
The Oregon law does, indeed, illustrate the dangers which are
involved if each State, speaking through its probate courts, is
permitted to establish its own foreign policy.
Reversed.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
"(1) The right of an alien not residing within the United States
or its territories to take either real or personal property or the
proceeds thereof in this state by succession or testamentary
disposition, upon the same terms and conditions as inhabitants and
citizens of the United States, is dependent in each case: "
"(a) Upon the existence of a reciprocal right upon the part of
citizens of the United States to take real and personal property
and the proceeds thereof upon the same terms and conditions as
inhabitants and citizens of the country of which such alien is an
inhabitant or citizen;"
"(b) Upon the rights of citizens of the United States to receive
by payment to them within the United States or its territories
money originating from the estates of persons dying within such
foreign country; and"
"(c) Upon proof that such foreign heirs, distributees, devisees
or legatees may receive the benefit, use or control of money or
property from estates of persons dying in this state without
confiscation, in whole or in part, by the governments of such
foreign countries."
"(2) The burden is upon such nonresident alien to establish the
fact of existence of the reciprocal rights set forth in subsection
(1) of this section."
"(3) If such reciprocal rights are not found to exist and if no
heir, devisee or legatee other than such alien is found eligible to
take such property, the property shall be disposed of as escheated
property."
[
Footnote 2]
Article IV provides:
"Where, on the death of any person holding real or other
immovable property or interests therein within the territories of
one High Contracting Party, such property or interests therein
would, by the laws of the country or by a testamentary disposition,
descend or pass to a national of the other High Contracting Party,
whether resident or nonresident, were he not disqualified by the
laws of the country where such property or interests therein is or
are situated, such national shall be allowed a term of three years
in which to sell the same, this term to be reasonably prolonged if
circumstances render it necessary, and withdraw the proceeds
thereof, without restraint or interference, and exempt from any
succession, probate or administrative duties or charges other than
those which may be imposed in like cases upon the nationals of the
country from which such proceeds may be drawn."
"Nationals of either High Contracting Party may have full power
to dispose of their personal property of every kind within the
territories of the other, by testament, donation, or otherwise, and
their heirs, legatees and donees, of whatsoever nationality,
whether resident or nonresident, shall succeed to such personal
property, and may take possession thereof, either by themselves or
by others acting for them, and retain or dispose of the same at
their pleasure subject to the payment of such duties or charges
only as the nationals of the High Contracting Party within whose
territories such property may be or belong shall be liable to pay
in like cases."
[
Footnote 3]
Supra, n 1.
[
Footnote 4]
Ore. Comp. L.Ann. § 61-107 (1940).
[
Footnote 5]
In
Clark v. Allen, 331 U. S. 503, the
District Court had held the California reciprocity statute
unconstitutional because of legislative history indicating that the
purpose of the statute was to prevent American assets from reaching
hostile nations preparing for war on this country.
Crowley v.
Allen, 52 F. Supp.
850, 853 (D.C.N.D. Calif.). But when the case reached this
Court, petitioner contended that the statute was invalid, not
because of the legislature's motive, but because, on its face, the
statute constituted "an invasion of the exclusively Federal field
of control over our foreign relations." In discussing how the
statute was applied, petitioner noted that a California court had
accepted as conclusive proof of reciprocity the statement of a
foreign ambassador that reciprocal rights existed in his nation.
Brief for petitioner in
Clark v. Allen, No. 626, October
Term 1946, pp. 73-74. Thus, we had no reason to suspect that the
California statute in
Clark v. Allen was to be applied as
anything other than a general reciprocity provision requiring just
matching of laws. Had we been reviewing the later California
decision of
Estate of Gogabashvele, 195 Cal. App.
2d 503, 16 Cal. Rptr. 77,
see n 6,
infra the additional problems we now find
with the Oregon provision would have been presented.
[
Footnote 6]
See Estate of Gogabashvele, 195 Cal. App.
2d 503 16 Cal. Rptr. 7,
disapproved in Estate of
Lakin, 65 Cal. 2d 60,
416 P.2d 73, and
Estate of Chichernea, 66 Cal. 2d 83,
424 P.2d 687. One commentator has described the
Gogabashvele decision in the following manner:
"The court analyzed the general nature of rights in the Soviet
system instead of examining whether Russian inheritance rights were
granted equally to aliens and residents. The court found Russia had
no separation of powers, too much control in the hands of the
Communist Party, no independent judiciary, confused legislation,
unpublished statutes, and unrepealed obsolete statutes. Before
stating its holding of no reciprocity, the court also noted
Stalin's crimes, the Beria trial, the doctrine of crime by analogy,
Soviet xenophobia, and demonstrations at the American Embassy in
Moscow unhindered by the police. The court concluded that a leading
Soviet jurist's construction of article 8 of the law enacting the
R.S.F.S.R. Civil Code seemed modeled after Humpty Dumpty, who said,
'When I use a word . . . , it means just what I choose it to mean
-- neither more nor less.'"
Note, 55 Calif.L.Rev. 592, 594-595, n. 10 (1967).
[
Footnote 7]
The
Rogers case. we are advised, prompted the
Government of Bulgaria to register a complaint with the State
Department, as disclosed by a letter of November 20, 1967, written
by a State Department adviser to the Oregon trial court
stating:
"The Government of Bulgaria has raised with this Government the
matter of difficulties reportedly being encountered by Bulgarian
citizens resident in Bulgaria in obtaining the transfer to them of
property or funds from estates probated in this country, some under
the jurisdiction of the State sf Oregon. . . ."
[
Footnote 8]
Such attitudes are not confined to the Oregon courts.
Representative samples from other States would include statements
in the New York courts, such as "This court would consider sending
money out of this country and into Hungary tantamount to putting
funds within the grasp of the Communists," and "If this money were
turned over to the Russian authorities, it would be used to kill
our boys and innocent people in Southeast Asia. . . ." Heyman, The
Nonresident Alien's Right to Succession Under the "Iron Curtain
Rule," 52 Nw.U.L.Rev. 221, 234 (1957). In Pennsylvania, a judge
stated at the trial of a case involving a Soviet claimant that "If
you want to say that I'm prejudiced, you can, because when it comes
to Communists, I'm a bigoted anti-Communist." And another judge
exclaimed, "I am not going to send money to Russia where it can go
into making bullets which may one day be used against my son." A
California judge, upon being asked if he would hear argument on the
law, replied, "No, I won't send any money to Russia." The judge
took "judicial notice that Russia kicks the United States in the
teeth all the time," and told counsel for the Soviet claimant that
"I would think your firm would feel it honor bound to withdraw as
representing the Russian government. No American can make it too
strong." Berman, Soviet Heirs in American Courts, 6 Col.L.Rev. 257,
and n. 3 (1962).
A particularly pointed attack was made by Judge Musmanno of the
Pennsylvania Supreme Court, where he stated with respect to the
Pennsylvania Act that:
"It is a commendable and salutary piece of legislation because
it provides for the safekeeping of these funds even with accruing
interest, in the steel-bound vaults of the Commonwealth of
Pennsylvania until such time as the Iron Curtain lifts or
sufficiently cracks to allow honest money to pass through and be
honestly delivered to the persons entitled to them. Otherwise,
wages and other monetary rewards faithfully earned under a free
enterprise democratic system could be used by Communist forces
which are committed to the very destruction of that free
enterprising world of democracy."
Belemecich Estate, 411 Pa. 506, 508, 192 A.2d 740, 741,
rev'd sub nom. Consul General of Yugoslavia v.
Pennsylvania, 375 U. S. 395, on
authority of
Kolovrat v. Oregon, 366 U.
S. 187.
And further:
". . . Yugoslavia, as the court below found, is a satellite
state where the residents have no individualistic control over
their destiny, fate or pocketbooks, and where their
politico-economic horizon is raised or lowered according to the
will, wish or whim of a self-made dictator."
411 Pa. at 509, 192 A.2d at 742.
"All the known facts of a Sovietized state lead to the
irresistible conclusion that sending American money to a person
within the borders of an Iron Curtain country is like sending a
basket of food to Little Red Ridinghood in care of her
'grandmother.' It could be that the greedy, gluttonous grasp of the
government collector in Yugoslavia does not clutch as rapaciously
as his brother confiscators in Russia, but it is abundantly clear
that there is no assurance upon which an American court can depend
that a named Yugoslavian individual beneficiary of American dollars
will have anything left to shelter, clothe and feed himself once he
has paid financial involuntary tribute to the tyranny of a
totalitarian regime."
Id. a 511, 192 A.2d at 742-743.
Another example is a concurring opinion by Justice Doyle in
In re Hosova's Estate, 143 Mont. 74, 387 P.2d 305:
"In this year of 1963, the Central Committee of the Communist
Party of the U.S.S.R. issued the following directive to all of its
member[s], 'We fully stand for the destruction of imperialism and
capitalism. We not only believe in the inevitable destruction of
capitalism, but also are doing everything for this to be
accomplished by way of the class struggle and
as soon as
possible.'"
"Hence, in affirming this decision, the writer is knowingly
contributing financial aid to a Communist monolithic satellite,
fanatically dedicated to the abolishing of the freedom and liberty
of the citizens of this nation."
"By reason of self-hypnosis and failure to understand the aims
and objective of the international Communist conspiracy, in the
year 1946, Montana did not have statutes to estop us from making
cash contributions to our own ultimate destruction as a free
nation."
Id. at 85 86, 387 P.2d a 311.
[
Footnote 9]
In
Mullart v. State Land Board, 222 Ore. 463,
353 P.2d
531, the court had little difficulty finding that reciprocity
existed with Estonia. But it took pains to observe that, in 1941,
Russia
"moved in and overwhelmed it [Estonia] with its military might.
At the same time, the Soviet hastily and cruelly deported about
60,000 of its people to Russia and Siberia and, in addition,
exterminated many of its elderly residents. This policy of
destroying or decimating families and rendering normal economic
life chaotic continued long afterward."
Id. at 67, 353 P.2d at 534.
"[A]ny effort to communicate with persons in Estonia exposes
such persons to possible death or else to Siberia. It seems that
the Russians scrutinize all correspondence from friends of
Estonians in lands where freedom prevails and subjects the
recipient to suspicion of a relationship inimical to the Soviet. .
. . This line of testimony has the support of reliable historical
matter of which we take notice. We mention it as explaining the
futility of attempting, under the circumstances, to secure more
cogent evidence than hearsay in the matter."
Id. at 476, 353 P.2d at 537-538
[
Footnote 10]
See Berman, Soviet Heirs in American Courts, 62
Col.L.Rev. 257 (1962); Chaitkin, The Rights of Residents of Russia
and its Satellites to Share in Estates of American Decedents, 25
S.Cal.L.Rev. 297 (1952).
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins,
concurring.
While joining the opinion of the Court, I would go further.
Under the Oregon law involved in this case, a foreigner cannot
receive property from an Oregon decedent's estate unless he first
meets the burden of proving, to the satisfaction of an Oregon
court, that his
Page 389 U. S. 442
country (1) grants to United States citizens a "reciprocal
right" to take property on the same terms as its own citizens; (2)
assures Americans the right "to receive payment" here of funds
originating from estates in that country, and (3) gives its own
citizens the "benefit, use or control" of property received from an
Oregon estate "without confiscation, in whole or in part." The East
German claimants in this case did not show in the Oregon courts
that their country could meet any one of these criteria. I believe
that all three of the statutory requirements, on their face, are
contrary to the Constitution of the United States.
In my view, each of the three provisions of the Oregon law
suffers from the same fatal infirmity. All three launch the State
upon a prohibited voyage into a domain of exclusively federal
competence. Any realistic attempt to apply any of the three
criteria would necessarily involve the Oregon courts in an
evaluation, either expressed or implied, of the administration of
foreign law, the credibility of foreign diplomatic statements, and
the policies of foreign governments. Of course, state courts must
routinely construe foreign law in the resolution of controversies
properly before them, but here the courts of Oregon are thrust into
these inquiries only because the Oregon Legislature has framed its
inheritance laws to the prejudice of nations whose policies it
disapproves, and thus has trespassed upon an area where the
Constitution contemplates that only the National Government shall
operate.
"For local interests the several States of the Union exist, but
for national purposes, embracing our relations with foreign
nations, we are but one people, one nation, one power."
Chinese Exclusion Case, 130 U.
S. 581,
130 U. S.
606.
"Our system of government is such that the interest of the
cities, counties, and states, no less than the interest of the
people of the whole nation, imperatively requires that federal
power in the field
Page 389 U. S. 443
affecting foreign relations be left entirely free from local
interference."
Hines v. Davidowitz, 312 U. S. 52,
312 U. S.
63.
The Solicitor General, as
amicus curiae, says that the
Government does not
"contend that the application of the Oregon escheat statute in
the circumstances of this case unduly interferes with the United
States' conduct of foreign relations."
But that is not the point. We deal here with the basic
allocation of power between the States and the Nation. Resolution
of so fundamental a constitutional issue cannot vary from day to
day with the shifting winds at the State Department. Today, we are
told, Oregon's statute does not conflict with the national
interest. Tomorrow it may. But, however that may be, the fact
remains that the conduct of our foreign affairs is entrusted under
the Constitution to the National Government, not to the probate
courts of the several States. To the extent that
Clark v.
Allen, 331 U. S. 503, is
inconsistent with these views, I would overrule that decision.
MR. JUSTICE HARLAN, concurring in the result.
Although I agree with the result reached in this case, I am
unable to subscribe to the Court's opinion for three reasons.
First, by resting its decision on the constitutional
ground that this Oregon inheritance statute infringes the federal
foreign relations power, without pausing to consider whether the
1923 Treaty of Friendship, Commerce and Consular Rights with
Germany [
Footnote 2/1] itself
vitiates this application of the state statute, the Court has
deliberately turned its back on a cardinal principle of judicial
review.
Second, correctly construed the 1923 treaty, in my
opinion, renders Oregon's application of its statute in this
instance impermissible, thus requiring reversal of the state
judgment.
Third, the Court's
Page 389 U. S. 444
constitutional holding, which I reach only because the majority
has done so, is, in my view, untenable. The impact of today's
holding on state power in this field, and perhaps in other areas of
the law as well, justifies a full statement of my views upon the
case.
I
Even in this age of rapid constitutional change, the Court has
continued to proclaim adherence to the principle that decision of
constitutional issues should be avoided wherever possible.
[
Footnote 2/2] In his celebrated
concurring opinion in
Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S. 341,
Mr. Justice Brandeis listed the self-imposed rules by which the
Court has avoided the unnecessary decision of constitutional
questions. In his fourth rule, he dealt with the situation
presented by this case, declaring that:
"The Court will not pass upon a constitutional question,
although properly presented by the record, if there is also present
some other ground upon which the case may be disposed of. . . .
Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only
the latter.
Siler v. Louisville & Nashville R. Co.,
213 U. S.
175,
213 U. S. 191;
Light v.
United States, 220 U. S. 523,
220 U. S.
538."
Id. at
297 U. S. 347.
[
Footnote 2/3]
The above rule should control the disposition of this case, for
there is what I think must be regarded, within
Page 389 U. S. 445
the meaning of
Ashwander, as a nonconstitutional ground
on which the decision could be founded. Although the appellants
chose to argue only the constitutional question, the United States,
as
amicus curiae, forcefully, and I believe correctly,
contended that the full relief ought by the appellants should be
afforded by overruling the construction of the 1923 treaty, rather
than the constitutional holding, in
Clark v. Allen,
331 U. S. 503. The
Court simply states that "[w]e do not accept the invitation to
reexamine our ruling in
Clark v. Allen."
See ante
at
389 U. S. 432.
I believe that the principle of avoiding unnecessary constitutional
adjudication obliges us to accept that invitation and to inquire
whether the treaty might provide an adequate alternative ground for
affording the appellants their due. [
Footnote 2/4]
II
Article IV of the 1923 treaty with Germany provides:
"Where, on the death of any person holding real or other
immovable property or interests therein within the territories of
one High Contracting Party, such property or interests therein
would, by the laws of the country or by a testamentary disposition,
descend or pass to a national of the other High Contracting Party,
whether resident or nonresident, were he not disqualified by the
laws of the country where such property or interests therein is or
are situated, such national shall be allowed a term of three years
in which to sell the same, this term to
Page 389 U. S. 446
be reasonably prolonged if circumstances render it necessary,
and withdraw the proceeds thereof without restraint or
interference, and exempt from any succession, probate or
administrative dues or charges other than those which may be
imposed in like cases upon the nationals of the country from which
such proceeds may be drawn."
"Nationals of either High Contracting Party may have full power
to dispose of their personal property of every kind within the
territories of the other, by testament, donation or otherwise, and
their heirs, legatees and donees, of whatsoever nationality,
whether resident or nonresident, shall succeed to such personal
property, and may take possession thereof, either by themselves or
by others acting for them, and retain or dispose of the same at
their pleasure subject to the payment of such duties or charges
only as the nationals of the High Contracting Party within whose
territories such property may be or belong shall be liable to pay
in like cases."
In
Clark v. Allen, supra, this Court considered the
application of this treaty provision to a case much like the
present one. In
Clark, one who was apparently an American
citizen died in California and left her real and personal property
to German nationals. The California Probate Code provided that
"The rights of aliens not residing within the United States . .
. to take either real or personal property or the proceeds thereof
in this State by succession or testamentary disposition, upon the
same terms and conditions as residents and citizens of the United
States is dependent in each case upon the existence of a reciprocal
right upon the part of citizens of the United States to take real
and personal property and the proceeds thereof upon the same terms
and
Page 389 U. S. 447
condition as residents and citizens of the respective countries
of which such aliens are inhabitants and citizens and upon the
rights of citizens of the United States to receive by payment to
them within the United States or its territories money originating
from the estates of persons dying within such foreign
countries."
Cal. Prob.Code § 259, added by Stats. 1941, c.895, § 1. The
Clark Court first considered whether the 1923 treat with
Germany had survived the events of the years 1923-1947. It
concluded that the treaty was still in effect, and that it clearly
entitled the German citizens to take the real estate left them by
the decedent.
The Court then went on to discuss the application of the treaty
to personalty. It noted that a practically identical provision of a
treaty with Wurttemburg had been held in the 1860 case of
Frederickson v.
Louisiana, 23 How. 445, not to govern
"[t]he case of a citizen or subject of the respective countries
residing at home, and disposing of [personal] property there in
favor of a citizen or subject of the other . . . ,"
id. at
64 U. S. 447,
and that the
Frederickson decision had been followed in
1917 cases involving three other treaties. [
Footnote 2/5] The Court then said:
"The construction adopted by those cases is, to say the least,
permissible when the syntax of the sentence dealing with realty and
personalty is considered. So far as realty is concerned, the
testator includes 'any person,' and the property covered is that
within the territory of either of the high contracting parties. In
case of personalty, the provision governs the right of 'nationals'
of either contracting party to dispose of their property within
Page 389 U. S. 448
the territory of the 'other' contracting party, and it is 'such
personal property' that the 'heirs, legatees and donees' are
entitled to take."
"Petitioner, however, presents a detailed account of the history
of the Clause which was not before the Court in
Frederickson v.
Louisiana, supra, and which bears out the construction that it
grants the foreign heir the right to succeed to his inheritance or
the proceeds thereof. But we do not stop to review that history.
For the consistent judicial construction of the language since 1860
has given it a character which the treaty-making agencies have not
seen fit to alter. And that construction is entirely consistent
with the plain language of the treaty. We therefore do not deem it
appropriate to change that construction at this late date, even
though, as an original matter, the other view might have much to
commend it."
331 U.S. at
331 U. S.
515-516.
In the case now before us, an American citizen died in Oregon,
leaving property to relatives in East Germany. An Oregon statute
conditioned a nonresident alien's right to inherit property in
Oregon upon the existence of a reciprocal right of American
citizens to inherit in the alien's country upon the same terms as
citizens of that country; upon the right of American citizens to
receive payment within the United States from the estates of
decedents dying in that country, and upon proof that the alien
heirs of the American decedent would receive the benefit, use, and
control of their inheritance without confiscation. [
Footnote 2/6] The Oregon Supreme Court affirmed the
finding of the trial court that the evidence did not establish that
American citizens were accorded reciprocal rights to take property
from or to receive the proceeds of East German estates.
However,
Page 389 U. S. 449
it found that the 1923 treaty was still effective with respect
to East Germany, and consequently held that, under
Clark v.
Allen, the East German heirs must be permitted to take the
real, though not the personal, property despite the Oregon
statute.
I, too, believe that the 1923 treaty is still applicable to East
Germany. [
Footnote 2/7] However, I
am satisfied that
Clark v. Allen should not be followed
insofar as the Court there held that the words of the 1923 treaty
must be taken to bear the meaning ascribed to them in
Frederickson v Louisiana because of the "consistent
judicial construction of the language since 1860." This reasoning
assumes both that the drafters of the 1923 treaty knew of the
Frederickson decision and that they thought
Frederickson would control the interpretation of that
treaty. The first assumption seems open to substantial doubt, and
the second is not beyond question.
There is evidence that, in 1899, almost 40 years after the
Frederickson decision, the State Department's treaty
draftsmen were not aware of the meaning given to the crucial treaty
language in that opinion. For, in 1895, the British Ambassador
initiated correspondence with the State Department in which he
proposed a treaty which would assure that "no greater charges
[would] be imposed . . . on real or personal property in the United
States inherited by British subjects, whether domiciled within the
union or not, than are imposed upon property
Page 389 U. S. 450
inherited by American citizens," in return for provisions
assuring to American citizens reciprocal rights in Great Britain.
[
Footnote 2/8] The ensuing treaty
of 1899 [
Footnote 2/9] contained
language substantially identical to that in the subsequent 1923
treaty with Germany. Since it is highly unlikely that the British
Ambassador intended that British subjects should be able to inherit
personal property from American decedents only if those decedents
happened also to be British subjects, or that the State Department
so understood him, it is clear enough that the draftsmen in 1899
must have been unaware of
Frederickson.
It is also conceivable that the drafters of the 1923 treaty
thought that
Frederickson was inapplicable to that treaty.
Because the article of the Wurttemburg treaty dealing with realty
was not brought to the attention of the
Frederickson
Court, the
Frederickson decision was based largely upon
the Court's understanding that
"The case of a citizen or subject of the respective countries
residing at home, and disposing of property there in favor of a
citizen or subject of the other, was not in the contemplation of
the contracting Powers, and is not embraced in this article of the
treaty."
23 How. at
64 U. S.
447-448. Hence, the draft of the 1923 treaty might have
assumed that
Frederickson was not applicable to that
treaty, in which the inclusion of the realty provision made it
clear that the parties did consider the case of a citizen dying in
his own country. In view of these indications that the draftsmen of
the 1923 treaty very likely did not intend that the words of the
treaty should bear the meaning given them in
Frederickson,
it seems to me
Page 389 U. S. 451
that the Court in
Clark v. Allen erred in holding the
question foreclosed. Accordingly, a
de novo inquiry into
the meaning of the treaty seems entirely appropriate.
III
The language of Article IV of the 1923 treaty with Germany,
which was quoted earlier, is based upon Article X of the treaty of
1785 with Prussia. [
Footnote
2/10] Article X provided:
"The citizens or subjects of each party shall have power to
dispose of their personal goods within the jurisdiction of the
other, by testament, donation or otherwise, and their
representatives, being subjects or citizens of the other party,
shall succeed to their said personal goods . . . and dispose of the
same at their will, paying such dues only as the inhabitants of the
country wherein the said goods are, shall be subject to pay in like
cases. . . . And where, on the death of any person holding real
estate within the territories of the one party, such real estate
would by the laws of the land descend on a citizen or subject of
the other, were he not disqualified by alienage, such subject hall
be allowed a reasonable time to sell the same, and to withdraw the
proceeds without molestation, and exempt from all rights of
detraction on the part of the government of the respective
states."
This part of the treaty with Prussia was, in turn, founded upon
earlier treaties with France, the Netherlands, and Sweden.
[
Footnote 2/11] The treaty of
1778 with France
Page 389 U. S. 452
specifically freed American citizens from the burdens of two
restrictions on the right of aliens to dispose of or inherit
property which were then common in the civil law counties: the
droit d'aubaine and the
droit de detraction. The
droit d'aubaine was the feudal right of the sovereign to
appropriate the property of an alien who died within the realm; an
aspect of this doctrine was "the complementary incapacity of an
alien to inherit, even from a citizen."
Nielsen v.
Johnson, 279 U. S. 47,
279 U. S. 55, n.
2. [
Footnote 2/12] The
droit
d'aubaine was replaced during the 18th-century by the
droit de detraction, a tax "imposed on the right of an
alien to [inherit] . . . the property of persons dying within the
realm,"
Nielsen v. Johnson, supra, at
279 U. S. 56, n.
2, and levied upon the removal of the inherited property by the
alien from the decedent's country. [
Footnote 2/13]
The 1782 treaty with the Netherlands and the 1783 treaty with
Sweden were framed more generally. They provided that:
"The subjects of the contracting parties in the respective
states may freely dispose of their goods and effects either by
testament, donation or otherwise, in favour of such persons as they
think proper, and their heirs in whatever place they shall reside,
shall receive the succession. . . . [
Footnote 2/14]"
The 1785 treaty with Prussia, which is substantially identical
to the 1923 treaty, differed from the earlier treaties in two
important respects. For one thing, it dealt
Page 389 U. S. 453
separately with realty and with personalty. [
Footnote 2/15] This separate treatment stemmed
from the fact that at common law aliens could freely inherit
personalty but could not succeed to realty. [
Footnote 2/16] The Continental Congress, apparently
fearing that, under the Articles of Confederation, it lacked power
thus to alter the laws of the States, instructed the Commissioners
who negotiated the treaty
"[t]hat no rights be stipulated for aliens to hold real property
within the States, this being utterly inadmissible by their several
laws and policy,"
but that a person who would inherit realty but for his alienage
should be permitted to sell the property and withdraw the proceeds
within a reasonable time. [
Footnote
2/17]
The other important difference was that the provision of the
Prussian treaty dealing with the disposal and inheritance of
personalty, though generally based upon the corresponding language
in the Dutch and Swedish treaties, was altered by the addition of
the phrase "within the jurisdiction of the other," so a to
read:
"The citizens or subjects of each party shall have power to
dispose of their personal goods
within the jurisdiction of the
other, by testament, donation or otherwise, and their
representatives, being subjects or citizens of the other part shall
succeed to their said personal goods . . . and dispose of the same
at their will, paying such dues only as the inhabitants of the
country wherein the said goods are, shall be subject to pay in like
cases. . . ."
(Emphasis added.)
Page 389 U. S. 454
There is no precise indication why this phrase was added. Its
function seems to have been to define more clearly than the earlier
treaties the cases in which disposition of property required
protection from the
droit d'aubaine, namely those
instances when property was disposed of in a country other than
that of the citizenship of the owner. Under this construction, the
phrase would modify the word "dispose", rather than the words
"personal goods" (or "personal property" in the 1923 treaty). The
right of succession would be unaffected, since the words "said
personal goods" (or "such personal property" in the 1923 treaty)
would refer to all "personal goods" (or to "personal property of
every kind" in the 1923 treaty), and not merely to those personal
goods within the territory of the other party to the treaty.
Several factors point to the conclusion that this construction
is correct, and that the phrase "within the jurisdiction of the
other" was not intended to modify the words "personal goods" and
thereby to limit the right of succession. The addition of the
phrase "within the jurisdiction of the other" was unrelated to the
problem of freeing rights of succession from the
droit de
detraction, since that exaction was imposed upon succession by
an alien to the property of any person dying within the realm,
regardless of the citizenship of the decedent. The phrase therefore
cannot have been intended to modify the right of succession in
order to enlarge or contract this freedom.
Moreover, the terms of the newly added real property clause
affirmatively indicate that the "personal goods" clause of the 1785
treaty (and therefore the "personal property" clause of the 1923
treaty) was intended to confer the right to inherit personal
property from both alien and citizen decedents. The first draft of
the 1785 treaty was substantially similar to the earlier Dutch and
Swedish treaties, and quite clearly would have permitted
Page 389 U. S. 455
aliens to succeed to real or personal property regardless of
whether the decedent died in his own country. [
Footnote 2/18] However as noted earlier, the
Continental Congress, out of caution, instructed the Commissioners
that aliens should not be allowed by the treaty to succeed to and
hold real estate, but should be limited to sale of the land and
removal of the proceeds. This indicates that the real estate clause
was intended purely as a limitation on the rights accorded with
respect to personal property and was not supposed to confer any
greater rights. The real property clause certainly permitted
inheritance from both alien and citizen, for it allowed succession
"on the death of any person holding real estate." This was
acknowledged by the Court in
Clark v. Allen, supra, at
331 U. S. 517,
with respect to the 1923 treaty. It would seem to follow that the
more liberal personal property clause was also intended to allow
inheritance regardless of the decedent's nationality.
The conclusion that the personal property clause of the 1785
(and hence of the 1923) treaty was intended to grant a right of
inheritance no matter what the decedent's citizenship finds
additional support in the State Department's interpretations of
similar treaty provisions during the 19th century. When negotiating
substantially identical provisions in treaties with German states
in the 1840's, the then Minister to Prussia, Mr. Wheaton, indicated
his belief that the proposed treaties would protect "naturalized
Germans, resident in the U[nited] States who are entitled to
inherit the property of their relations deceased in Germany."
[
Footnote 2/19] There was no
suggestion
Page 389 U. S. 456
that the treaties would apply only to real property or, with
respect to personal property, only to the small class of
naturalized Germans whose "relations" in Germany happened also to
be American citizens. In responding to Mr. Wheaton, the State
Department instructed him to take as his "general guide" the treaty
with Prussia and others similarly worded, and instructed him that
the object should be
"the removal of all obstructions . . . to the withdrawal from
the one country, by the citizens or subjects of the other, of any
property which may have been transferred to them by . . . will, --
or which they may have inherited
ab intestate. [
Footnote 2/20]"
Later in the century, after the
Frederickson decision,
the State Department several times indicated that it regarded
similarly worded treaties as assuring citizens of one country the
right to inherit personal property of citizens of the other dying
in their own country. In 1868 and 1880, the Department asserted,
under a similarly worded treaty, [
Footnote 2/21] the right of American citizens to
inherit personal property of Swiss decedents who died in
Switzerland. [
Footnote 2/22] In
1877, it took the same position with respect to the rights of
Russian heirs to inherit the personal property of American
decedents under a like treaty with Russia. [
Footnote 2/23] The negotiation leading to the British
treaty of 1899, which have previously been described, reveal the
same attitude.
This course of history, coupled with the general principle
that
"where a provision of a treaty fairly admits of two
constructions, one restricting, the other enlarging,
Page 389 U. S. 457
rights which may be claimed under it, the more liberal
interpretation is to be preferred, [
Footnote 2/24]"
leads in my opinion to the conclusion that Article IV of the
1923 treaty should be construed as guaranteeing to citizens of the
contracting parties the right to inherit personal property from a
decedent who dies in his own country. I would overrule
Frederickson v. Louisiana, supra, and
Clark v. Allen,
supra, insofar as they hold the contrary. Consideration of
stare decisis should not stand in the way of rectifying
two decisions that rest on such infirm foundations.
Compare
Swift & Co., Inc. v. Wickham, 382 U.
S. 111,
with Kesler v. Department of Public
Safety, 369 U. S. 153.
Properly construed, the 1923 treaty, which, of course, takes
precedence over the Oregon statute under the Supremacy Clause,
entitles the appellants in this case to succeed to the personal as
well as the real property of the decedent despite the state
statute.
IV
Upon my view of this case, it would be unnecessary to reach the
issue whether Oregon's statute governing inheritance by aliens
amounts to an unconstitutional infringement upon the foreign
relations power of the Federal Government. However, since this is
the basis upon which the Court has chosen to rest its decision, I
feel that I should indicate briefly why I believe the decision to
be wrong on that score, too.
As noted earlier, the Oregon statute conditions an alien's right
to inherit Oregon property upon the satisfaction of three
conditions: (1) a reciprocal right of Americans to inherit property
in the alien's country; (2) the right of Americans to receive
payment in the United States from the estates of decedents dying
in
Page 389 U. S. 458
the alien's country, and (3) proof that the alien heirs of the
Oregon decedent would receive the benefit, use, and control of
their inheritance without confiscation. In
Clark v. Allen,
supra, the Court upheld the constitutionality of a California
statute which similarly conditioned the right of aliens to inherit
upon reciprocity, but did not contain the other two restrictions.
The Court in
Clark dismissed as "far-fetched" the
contention that the statute unconstitutionally infringed upon the
federal foreign relation power.
See 331 U.S. at
331 U. S. 517.
The Court noted that California had not violated any express
command of the Constitution by entering into a treaty, agreement,
or pact with foreign countries. It said that
"[w]hat California has done will have some incidental or
indirect effect in foreign countries. But that is true of many
state laws which none would claim cross the forbidden line."
Ibid.
It seems to. me impossible to distinguish the present case from
Clark v. Allen in this respect in any convincing way. To
say that the additional conditions imposed by the Oregon statute
amount to such distinctions would be to suggest that, while a State
may legitimately place inheritance by aliens on a reciprocity
basis, it may not take measures to assure at reciprocity exists in
practice and that the inheritance will actually be enjoyed by the
person whom the testator intended to benefit. The years since the
Clark decision have revealed some instances in which state
court judges have delivered intemperate or ill-advised remarks
about foreign governments in the course of applying such statutes,
but nothing has occurred which could not readily have been foreseen
at the time
Clark v. Allen was decided.
Nor do I believe that this aspect of the
Clark v. Allen
decision should be overruled, as my Brother STEWART would have it.
Prior decisions have established that, in the absence of a
conflicting federal policy or violation
Page 389 U. S. 459
of the express mandates of the Constitution, the States may
legislate in areas of their traditional competence even though
their statutes may have an incidental effect on foreign relations.
[
Footnote 2/25] Application of
this rule to the case before us compels the conclusion that the
Oregon statute is constitutional. Oregon has so legislated in the
course of regulating the descent and distribution of estates of
Oregon decedents, a matter traditionally within the power of a
State.
See ante at
389 U. S. 440.
Apart from the 1923 treaty, which the Court finds it unnecessary to
consider, there is no specific interest of the Federal Government
which might be interfered with by this statute. The appellants
concede that Oregon might deny inheritance rights to all
nonresident aliens. [
Footnote
2/26] Assuming that this is so, the statutory exception
permitting inheritance by aliens whose countries permit Americans
to inherit would seem to be a measure wisely designed to avoid any
offense to foreign governments, and thus any conflict with general
federal interests: a foreign government can hardly object to the
denial of rights which it does not itself accord to the citizens of
other countries.
The foregoing would seem to establish that the Oregon statute is
not unconstitutional on its face. And, in fact, the Court seems to
have found the statute unconstitutional only as applied. Its notion
appears to be that application of the parts of the statute which
require that reciprocity actually exist and that the alien heir
actually be able to enjoy his inheritance will inevitably
Page 389 U. S. 460
involve the state courts in evaluations of foreign laws and
governmental policies, and that this is likely to result in offense
to foreign governments. There are several defects in this
rationale. The most glaring is that it is based almost entirely on
speculation. My Brother DOUGLAS does cite a few unfortunate remarks
made by state court judges in applying statutes resembling the one
before us. However, the Court does not mention, nor does the record
reveal, any instance in which such an occurrence has been the
occasion for a diplomatic protest, or, indeed, has had any foreign
relations consequence whatsoever. [
Footnote 2/27] The United States says in its brief as
amicus curiae that it
"does not . . . contend that the application of the Oregon
escheat statute in the circumstances of this case unduly interferes
with the United States' conduct of foreign relations. [
Footnote 2/28]"
At an earlier stage in this case, the Solicitor General told
this Court:
"The Department of State has advised us . . . that State
reciprocity laws, including that of Oregon, have had little effect
on the foreign relations and policy of this country. . . .
Appellants' apprehension of a deterioration in international
relations, unsubstantiated by experience, does not constitute the
kind of 'changed conditions' which might call for reexamination of
Clark v. Allen. [
Footnote
2/29] "
Page 389 U. S. 461
Essentially, the Court's basis for decision appears to be that
alien inheritance laws afford state court judges an opportunity to
criticize in dictum the policies of foreign governments, and that
these dicta may adversely affect our foreign relations. In addition
to finding no evidence of adverse effect in the record, I believe
this rationale to be untenable because logically it would apply to
many other types of litigation which come before the state court.
It is true that, in addition to the many state court judges who
have applied alien inheritance statutes with proper judicial
decorum, [
Footnote 2/30] some
judges have seized the opportunity to make derogatory remarks about
foreign governments. However, judges have been known to utter dicta
critical of foreign governmental policies even in purely domestic
cases, so that the mere possibility of offensive utterances can
hardly be the test.
If the flaw in the statute is said to be that it requires state
courts to inquire into the administration of foreign law, would
suggest that that characteristic is shared by other legal rules
which I cannot believe the Court wishes to invalidate. For example,
the Uniform Foreign Money Judgments Recognition Act provides that a
foreign county money judgment shall not be recognized if it "was
rendered under a system which does not provide impartial tribunals
or procedures compatible with the requirements of due process of
law." [
Footnote 2/31] When there
is a dispute as to the content of foreign law, the court is
required under the common law to treat the question as one of fact
and to consider any evidence presented as to the actual
administration of the foreign legal system. [
Footnote 2/32] And, in the field of choice of law,
there is a nonstatutory
Page 389 U. S. 462
rule that the tort law of a foreign country will not be applied
if that country is shown to be "uncivilized." [
Footnote 2/33] Surely, all of these rule possess
the same "defect" as the statute now before us. Yet I assume that
the Court would not find them unconstitutional.
I therefore concur in the judgment of the Court upon the sole
ground that the application of the Oregon statute in this case
conflicts with the 1923 Treaty of Friendship, Commerce and Consular
Rights with Germany.
[
Footnote 2/1]
Dec. 8, 1923, 44 Stat. 2132, T.S. No. 725.
[
Footnote 2/2]
See, e.g., Giles v. Maryland, 386 U. S.
66,
386 U. S. 80-81;
Hamm v. City of Rock Hill, 379 U.
S. 306,
379 U. S. 316;
Bell v. Maryland, 378 U. S. 226,
378 U. S. 237;
Communist Party v. Catherwood, 367 U.
S. 389,
367 U. S. 392;
Poe v. Ullman, 367 U. S. 497,
367 U. S. 503;
Machinists v. Street, 367 U. S. 740,
367 U. S.
749.
[
Footnote 2/3]
See also Alma Motor Co. v. Timken Co., 329 U.
S. 129,
329 U. S.
136-137.
[
Footnote 2/4]
It is true, of course, that the treaty would displace the Oregon
statute only by virtue of the Supremacy Clause of the Constitution.
Yet I think it plain that this fact does not render inapplicable
the teachings of
Ashwander. Disposition of the case
pursuant to the treaty would involve no interpretation of the
Constitution, and this is what the
Ashwander rules seek to
bring about.
Cf. Swift & Co., Inc. v. Wickham,
382 U. S. 111,
382 U. S.
126-127.
[
Footnote 2/5]
Petersen v. Iowa, 245 U. S. 170;
Duus v. Brown, 245 U. S. 176;
Skarderud v. Tax Commission, 245 U.S. 633.
[
Footnote 2/6]
The statute appears in the majority opinion in
n 1,
ante at
389 U. S.
430.
[
Footnote 2/7]
The appellees argue that a substantial part of the 1923 treaty
has been terminated or abrogated by the 1954 Treaty of Friendship,
Commerce and Navigation with the Federal Republic of Germany, 7
U.S.T. 1839, T.I.A.S. No. 3593. However, Article XXVI of the 1954
treaty specifies that it extends only to "all areas of land and
water under the sovereignty or authority of" the Federal Republic
of German, and to West Berlin. The United States does not challenge
the holding of the Oregon Supreme Court that the 1923 treaty still
applies to East Germany.
See Brief for the United States
as
amicus curiae 6, n. 5.
[
Footnote 2/8]
125 Notes from Great Britain, Sept. 24, 1895, MSS., Nat.
Archives.
[
Footnote 2/9]
Treaty of March 2, 1899, with Great Britain, 31 Stat. 1939.
[
Footnote 2/10]
July, Aug., Sept., 1785, 8 Stat. 88.
[
Footnote 2/11]
See Art. XI, Treaty of Feb., 1778, with France, 8 Stat.
18; Art. VI, Treaty of Oct. 8, 1782, with the Netherlands, 8 Stat.
36; Art. VI, Treaty of April 3, 1783, with Sweden, 8 Stat. 64.
[
Footnote 2/12]
See also 3 Vattel, The Law of Nations or the Principles
of Natural Law § 112, at 147-148 (1916 ed.); Wheaton, Elements of
International Law § 82, at 115-116 (1866 ed.).
[
Footnote 2/13]
See Borchard, Diplomatic Protection of Citizens Abroad
§ 39, at 88 (1916 ed.); 4 Miller, Treaties and other International
Acts of the United States of America 547 (1934).
[
Footnote 2/14]
The quotation is from the Swedish treaty. The wording of the
Dutch treaty differs only slightly.
[
Footnote 2/15]
The earlier treaties used the words "effects" and "goods," which
have been held to include realty.
Todok v. Union State
Bank, 281 U. S. 449,
281 U. S.
454.
[
Footnote 2/16]
See 1 Blackstone, Commentaries 372; 2 Kent,
Commentaries 61-63.
[
Footnote 2/17]
See XXVI Journals of the Continental Congress 357,
360-361.
[
Footnote 2/18]
See Diplomatic Correspondence of the United States
1783-1789, at 111, 116-117.
[
Footnote 2/19]
Despatch, Wheaton to Legare, June 14, 1843, 3 Despatches,
Prussia, No. 226, MSS., Nat. Archives;
see 4 Miller,
Treaties and other International Acts of the United States of
America 547-548 (1934).
[
Footnote 2/20]
4 Miller,
supra, at 546, 548.
[
Footnote 2/21]
Treaty of Nov. 25, 1850, with Switzerland, 11 Stat. 587,
590.
[
Footnote 2/22]
See Diplomatic Correspondence of the United States,
1868, Pt. II, 194, 196 197; Foreign Relations of the United States,
1880, 952-953.
[
Footnote 2/23]
See 4 Moore, Digest of International Law 6 (1906). The
treaty was the Treaty of Dec. 18, 1832, with Russia, 8 Stat.
444.
[
Footnote 2/24]
Bacardi Corp. v. Domenech, 311 U.
S. 150,
311 U. S. 163,
citing
Jordan v. Tashiro, 278 U.
S. 123,
278 U. S. 127;
Nielsen v. Johnson, 279 U. S. 47,
279 U. S.
52.
[
Footnote 2/25]
See, e.g., Clarke v. Deckebach, 274 U.
S. 392;
Frick v. Webb, 263 U.
S. 326;
Webb v. O'Brien, 263 U.
S. 313;
Terrace v. Thompson, 263 U.
S. 197;
Heim v. McCall, 239 U.
S. 175.
[
Footnote 2/26]
Brief for Appellants 13. Thus, this case does not present the
question whether a uniform denial of rights to nonresident aliens
might be a denial of equal protection forbidden by the Fourteenth
Amendment.
Cf. Blake v. McClung, 172 U.
S. 239,
172 U. S.
260-261.
[
Footnote 2/27]
The communication from the Bulgarian Government mentioned in the
majority opinion in
389
U.S. 429fn2/7|>n. 7,
ante at
389 U. S. 437,
apparently refers not to intemperate comments by state court
judges, but to the very existence of state statutes which result in
the denial of inheritance rights to Bulgarians.
[
Footnote 2/28]
Brief for the United States as
amicus curiae 6, n.
5.
[
Footnote 2/29]
Memorandum for the United States 5.
[
Footnote 2/30]
See, e.g., Estate of Larkin, 65 Cal. 2d 60,
416 P.2d 473.
[
Footnote 2/31]
Uniform Foreign Money Judgments Recognition Act § 4(a)(1), 9B
Unif.Laws Ann. 67.
[
Footnote 2/32]
See generally Schlesinger, Comparative Law 31-143 (2d
ed. 1959).
[
Footnote 2/33]
See Slater v. Mexican National R. Co., 194 U.
S. 120,
194 U. S. 129
(Holmes, J.);
American Banana Co. v. United Fruit Co.,
213 U. S. 347,
213 U. S.
355-356 (Holmes, J.);
Cuba R. Co. v. Crosby,
222 U. S. 473,
222 U. S. 478
(Holmes, J.);
Walton v. Arabian American Oil Co., 233 F.2d
541, 545.
MR. JUSTICE WHITE, dissenting.
I would affirm the judgment below. Generally for the reasons
stated by MR. JUSTICE HARLAN in Part IV of his separate opinion, I
do not consider the Oregon statute to be an impermissible
interference with foreign affairs. Nor am I persuaded lat the
Court's construction of the 1923 treaty in
Clark v. Allen,
331 U. S. 503
(1947), and of similar treaty language in earlier cases should be
overruled at this late date.