John Marshall Harlan II

“ 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. ”

“ 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. ”

“ 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, 331 U.S. at 517, 67 S.Ct. at 1439, 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. ”

“ 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 demiciled within the union or not, then are imposed upon property 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. ”

“ 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, 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. ”

“ 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 these States, this being utterly inadmissible by their several laws and policy,' but that a person who would inherit personalty but for his alienage should be permitted to sell the property and withdraw the proceeds within a reasonable time. ”

“ The Court then said: 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. State of 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. ”

“ 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. ”

“ 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 ”

“ 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
6 The statute appears in the majority opinion in n. 1, ante, at 430.
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. ”

“ 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. ”