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),
(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;
(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
We do not accept the invitation to re-examine 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, 63.
As already noted
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,
We held in Clark v. Allen that a general reciprocity clause did not on its face intrude on the federal domain.
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
In a California case, involving a reciprocity provision, the United States made the following representation:
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,"
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.
In State Land Board v. Pekarek, 234 Or. 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:
Yet in State Land Board v. Schwabe, 240 Or. 82, 400 P.2d 10, where the certificate of the Polish Ambassador was 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 Or. 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
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.
This is as true of (1) (a) of § 111.070 as it is of (1) (b) and (1) (c). In Clostermann v. Schmidt, 215 Or. 55, 332 P.2d 1036, the court—applying the predecessor of
In In re Estate of Krachler, 199 Or. 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.
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.
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.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
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
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, 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
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
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.
The above rule should control the disposition of this case, for there is what I think must be regarded, within
Article IV of the 1923 treaty with Germany provides:
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 Clark Court first considered whether the 1923 treaty 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 447, and that the Frederickson decision had been followed in 1917 cases involving three other treaties.
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.
I, too, believe that the 1923 treaty is still applicable to East Germany.
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
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
Hence, the drafters 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
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.
This part of the treaty with Prussia was in turn founded upon earlier treaties with France, the Netherlands, and Sweden.
The 1782 treaty with the Netherlands and the 1783 treaty with Sweden were framed more generally. They provided that:
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
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 as to read:
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 détraction, 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
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."
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,
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,
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
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 that 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
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
At an earlier stage in this case, the Solicitor General told this Court:
If the flaw in the statute is said to be that it requires state courts to inquire into the administration of foreign law, I 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-country 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."
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.
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 that 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.
"(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."
"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 non-resident, 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 non-resident, 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."
"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).
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 steelbound 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.
". . . 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., at 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, at 311.
"[A]ny effort to communicate with persons in Estonia exposes such persons to possible death or exile to Siberia. It seems that the Russians scrutinize all correspondence from friends of Estonians in lands where freedom prevails and subject 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.