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Full Opinion
ZSCHERNIG ET AL.
v.
MILLER, ADMINISTRATOR, ET AL.
Supreme Court of United States.
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.
*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;
*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.
*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. *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 nationwhether 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 *434 launched inquiries into the type of governments that obtain in particular foreign nationswhether 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," *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.
*436 That kind of state involvement in foreign affairs and international relationsmatters which the Constitution entrusts solely to the Federal Governmentis 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 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 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 *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 *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 courtapplying the predecessor of *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]
*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 *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.
Reversed.
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 *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 *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 *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.[2] In his celebrated concurring opinion in Ashwander v. Valley Authority, 297 U. S. 288, 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, 191; Light v. United States, 220 U. S. 523, 538." Id., at 347.[3]
The above rule should control the disposition of this case, for there is what I think must be regarded, within *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 sought 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 re-examine our ruling in Clark v. Allen." See ante, at 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.[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 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 *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 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."
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 *447 conditions 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 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.[5] The Court then said:
"The construction adopted by those cases is, to say the least, permissible when the syntax of the sentences 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 *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 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.[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, *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.[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 *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 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 447-448.
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 *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.[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 shall 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.[11] The treaty of 1778 with France *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 countries: the droit d'aubaine and the droit de détraction. 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, 55, n. 2.[12] The droit d'aubaine was replaced during the 18th century by the droit de détraction, a tax "imposed on the right of an alien to [inherit] . . . the property of persons dying within the realm," Nielsen v. Johnson, supra, at 56, n. 2, and levied upon the removal of the inherited property by the alien from the decedent's country.[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 . . . ."[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 *453 separately with realty and with personalty.[15] This separate treatment stemmed from the fact that at common law aliens could freely inherit personalty but could not succeed to realty.[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.[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 as 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 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. . . ." (Emphasis added.)
*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 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