ZSCHERNIG ET AL. v. MILLER, ADMINISTRATOR, ET AL.
APPEAL FROM THE SUPREME COURT OF OREGON.
Argued November 7, 1967.
Decided January 15, 1968.
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. 432-441.
243 Ore. 567, 592, 412 P.2d 781, 415 P.2d 15, reversed.
Peter A. Schwabe, Sr., argued the cause for appellants. With him on the briefs was Peter A. Schwabe, Jr.
Wayne M. Thompson, Assistant Attorney General of Oregon, argued the cause for appellee State Land Board of Oregon. With him on the brief was Robert Y. Thornton, Attorney General.
Briefs of amici curiae were filed by Solicitor General Marshall, Acting Assistant Attorney General Eardley, John S. Martin, Jr., and Alan S. Rosenthal for the United States, and by Edward Mosk for Slaff, Mosk & Rudman. [389 U.S. 429, 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), 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; [389 U.S. 429, 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 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 . [389 U.S. 429, 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 516 .
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 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, 4 similar to the California Act which we had before us in Clark v. Allen, 331 U.S., at 506 , n. 1.
We held in Clark v. Allen that a general reciprocity clause did not on its face intrude on the federal domain. [389 U.S. 429, 433] 331 U.S. at 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 517. 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 [389 U.S. 429, 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 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," [389 U.S. 429, 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. 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, 461-462, 349 P.2d 255, 262, rev'd sub nom. Kolovrat v. Oregon, 366 U.S. 187 , on other grounds. [389 U.S. 429, 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:
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 [389 U.S. 429, 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. 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. 8 Yet they of [389 U.S. 429, 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 [389 U.S. 429, 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. 9 [389 U.S. 429, 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. 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 [389 U.S. 429, 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 64: "Experience has shown that international controversies of the gravest moment, sometimes even leading to war, 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 its citizens from going there. Passenger Cases, 7 How. 283; cf. Crandall v. 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.
[ Footnote 2 ] Article IV provides:
[ 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. 77, disapproved in Estate of Larkin, 65 Cal. 2d 60, 416 P.2d 473, and Estate of Chichernea, 66 Cal. 2d 83, 424 P.2d 687. One commentator has described the Gogabashvele decision in the following manner:
[ 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 of 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 Communism 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, 62 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:
[ 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 [389 U.S. 429, 440] many of its elderly residents. This policy of destroying or decimating families and rendering normal economic life chaotic continued long afterward." Id., at 467, 353 P.2d, at 534.
[ 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 [389 U.S. 429, 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, 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 [389 U.S. 429, 443] affecting foreign relations be left entirely free from local interference." Hines v. Davidowitz, 312 U.S. 52, 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 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 [389 U.S. 429, 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.
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. 5 The Court then said:
I, too, believe that the 1923 treaty is still applicable to East Germany. 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 [389 U.S. 429, 450] inherited by American citizens," in return for provisions assuring to American citizens reciprocal rights in Great Britain. 8 The ensuing treaty of 1899 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 1782 treaty with the Netherlands and the 1783 treaty with Sweden were framed more generally. They provided that:
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 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 [389 U.S. 429, 455] aliens to succeed to real or personal property regardless of whether the decedent died in his own country. 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 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." 19 There was no suggestion [389 U.S. 429, 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 intestato." 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, 21 the right of American citizens to inherit personal property of Swiss decedents who dies in Switzerland. 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. 23 The negotiations 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, [389 U.S. 429, 457] rights which may be claimed under it, the more liberal interpretation is to be preferred," 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. Considerations 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.
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 [389 U.S. 429, 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 "farfetched" the contention that the statute unconstitutionally infringed upon the federal foreign relations power. See 331 U.S., at 517 . The Court noted that California had not violated any express command of the Constitution by entering into a treaty, agreement or compact 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 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 [389 U.S. 429, 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. 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 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. 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 [389 U.S. 429, 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. 27 The United States says in its brief as amicus curiae that it
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." 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. 32 And in the field of choice of law there is a nonstatutory [389 U.S. 429, 462] rule that the tort law of a foreign country will not be applied if that country is shown to be "uncivilized." 33 Surely, all of these rules 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 1 ] Dec. 8, 1923, 44 Stat. 2132, T. S. No. 725.
[ Footnote 2 ] See, e. g., Giles v. Maryland, 386 U.S. 66, 80 -81; Hamm v. City of Rock Hill, 379 U.S. 306, 316 ; Bell v. Maryland, 378 U.S. 226, 237 ; Communist Party v. Catherwood, 367 U.S. 389, 392 ; Poe v. Ullman, 367 U.S. 497, 503 ; Machinists v. Street, 367 U.S. 740, 749 .
[ Footnote 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, 126 -127.
[ Footnote 6 ] The statute appears in the majority opinion in n. 1, ante, at 430.
[ Footnote 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 Germany, 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 8 ] 125 Notes from Great Britain, Sept. 24, 1895, MSS., Nat. Archives.
[ Footnote 9 ] Treaty of March 2, 1899, with Great Britain, 31 Stat. 1939.
[ Footnote 10 ] July, Aug., Sept., 1785, 8 Stat. 88.
[ Footnote 11 ] See Art. XI, Treaty of Feb. 6, 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 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 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 14 ] The quotation is from the Swedish treaty. The wording of the Dutch treaty differs only slightly.
[ Footnote 16 ] See 1 Blackstone, Commentaries 372; 2 Kent, Commentaries 61-63.
[ Footnote 17 ] See XXVI Journals of the Continental Congress 357, 360-361.
[ Footnote 18 ] See 2 Diplomatic Correspondence of the United States 1783-1789, at 111, 116-117.
[ Footnote 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 20 ] 4 Miller, supra, at 546, 548.
[ Footnote 21 ] Treaty of Nov. 25, 1850, with Switzerland, 11 Stat. 587, 590.
[ Footnote 22 ] See Diplomatic Correspondence of the United States, 1868, Pt. II, 194, 196-197; Foreign Relations of the United States, 1880, 952-953.
[ Footnote 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 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, 260 -261.
[ Footnote 27 ] The communication from the Bulgarian Government mentioned in the majority opinion in n. 7, ante, at 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 28 ] Brief for the United States as amicus curiae 6, n. 5.
[ Footnote 29 ] Memorandum for the United States 5.
[ Footnote 30 ] See, e. g., Estate of Larkin, 65 Cal. 2d 60, 416 P.2d 473.
[ Footnote 31 ] Uniform Foreign Money-Judgments Recognition Act 4 (a) (1), 9B Unif. Laws Ann. 67.
[ Footnote 32 ] See generally Schlesinger, Comparative Law 31-143 (2d ed. 1959).
[ Footnote 33 ] See Slater v. Mexican National R. Co., 194 U.S. 120, 129 (Holmes, J.); American Banana Co. v. United Fruit Co., 213 U.S. 347, 355 -356 (Holmes, J.); Cuba R. Co. v. Crosby, 222 U.S. 473, 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 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. [389 U.S. 429, 463]