restrain all equally. Partial statutory requirements varying from State to State make the exercise by State and nation of police power over corporations impossible. $194. RES ADJUDICATA AND STARE DECISIS AS A BASIS OF UNIFORMITY. - The admitted rules for the development of the common law demand not only a uniform or common law upon a national basis, but also a well-defined and ascertainable body of law for the whole nation. The existing rules are the best guide for the attainment of such law. They are, indeed, proof of its actual existence.

These rules are two in number, and they are the life current of the common law the rule of res adjudicata and the rule of stare decisis et quieta non movere. These rules cannot be said to be of any State. They cannot even be said to be of the United States. They are of the common law. Their very nature explains why they cannot be passed as statutes of a State. It also explains why the denial by a State statute of their validity would have no effect.

"The two topics of res adjudicata and stare decisis1 may properly be treated together, being of a cognate character, the former controlling parties, the latter more especially furnishing a rule for courts themselves, in those matters which have been judicially considered and are afterwards again brought forward to be passed upon. In general, however, there is a distinction, likewise, that the former more usually relates to determinations of fact, the latter to decisions on questions of law. But this distinction does not destroy the classification which ren

The following quotations are from the standard work upon these subjects, Wells, Res Adjudicata.

ders the two topics capable of being considered together logically and systematically. The following is a definition of the first principle: 1

"As we understand the rule in respect to conclusiveness of verdict and judgment in a former trial between the same parties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se, it must appear by the record of the prior suit that the particular controversy sought to be concluded was necessarily tried and determined: that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties; and further in cases where the record does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact. But even where it appears from intrinsic evidence that the matter was properly within the issue controverted in the present suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.'"

"A definition may be given as to jurisdiction. According to a rule laid down in the Duchess of Kingston's Case,3 a judgment, to be conclusive afterwards, must be pronounced by a court of competent jurisdiction. And so law courts and equity courts stand on the same footing in a large measure. Thus, the Supreme Court of the United States says: 'It is not denied, as a general rule, that a fact which has been directly tried and decided by a court of competent jurisdiction, cannot be contested again be

4

1 Wells, Res Adjudicata, 1828.

2 Packet Co. v. Sickles, 5 Wall. 592; Miller, dissenting.

3 Duchess of Kingston's Case, 2 Smith's Leading Cases, 617. Hopkins v. Lee, 6 Wheat. 113; see also Babcock v. Camp, 12 Ohio St. 36.

tween the same parties in the same or any other court. Hence a verdict or judgment of a court of record, or a decree in chancery, although not binding on a stranger, puts an end to all further controversy concerning points thus decided between the parties to such suit. In this, there is, and ought to be, no difference between a verdict and a judgment in a court of common law and a decree of a court of equity. They both stand on the same footing, and may be offered in evidence under the same limitations, and it would be difficult to assign a reason why it should be otherwise. The rule has found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it an end could never be put to litigation. It is, therefore, not confined in England, nor in this country, to decisions of the same court, or to the decisions of the courts of concurrent jurisdiction, but extends to matters litigated before competent tribunals in foreign countries. It applies to sentences of courts of admiralty, to ecclesiastical tribunals and, in short, to every court which has proper cognizance of the subject matter, so far as they profess to decide the particular matter in dispute.'" 1

"When we speak of foreign judgments, we mean the judgments rendered in other nationalities. Those rendered in our sister States occupy a kind of intermediate position between domestic judgments and foreign judgments, and I therefore reserve them for consideration afterward as partaking in part of the dual nature of both domestic and foreign judgments. As to the United States courts, they are not to be regarded as in any way foreign to the State courts, because they belong to the same nationality, and, moreover, the Constitution and laws of the United States are the supreme law of each individual State; the laws of the States respectively furnish rules of decision for the United States courts; and causes may be removed from the 1 Wells, Res Adjudicata, 422, 423.

State courts into the United States courts. And, further, citizens of a State are amenable to the process thereof, and may be called as jurors to serve therein, and their property may be directly levied upon under executions issued from such courts upon their judgments.1 And so the seal of a United States court carries its own exemplification within a State.2

"Mr. Wharton, in his Conflict of Laws, section 817, quotes from Bar, a German legal writer, some striking remarks on the necessity of holding foreign judgments conclusive. The parties in such new suit could then try the case on the new facts, and new laws, and even keeping out of view the fact that in independent States distinct systems of law prevail, it is probable that in many cases opposite results would be reached even on the same legal basis. A domestic court, for instance, in a particular case, decides an issue for the plaintiff, in face of a foreign judgment to the contrary. Either the plaintiff's property or person, subsequently coming into the defendant's court, the defendant sues the plaintiff on the same cause of action, and there recovers; and so on as long as either party has anything in the other's country which could be attached. In this view, just so far as the principle is applied, is business intercourse between the countries suspended; and the shock is one which affects the subject equally with the foreigner. Each suffers equally from the failure to recognize as authoritative the judicial action of a foreign State."" 3

The obvious suggestion of the foregoing statement of the law of res adjudicata is that in the United States

1 Barney v. Patterson, 6 Har. & J. 203.

2 Pepoon v. Jenkins, 2 Johns. Cases, 119; Womack v. Dearman, 7 Port. (Ala.) 516.

3 See difference as to heirship and assets in England and America, Aspden v. Nixon, 4 How. 499. The two foregoing paragraphs are from Wells, Res Adjudicata, 510.

there is either a common law or great unfairness. As to the effect of the judgment of a State court as a bar in foreign countries, the judgment cannot be said to be conclusive even in the United States. For State judgments are based upon State law, and if this law is in conflict with the Constitution and laws of the United States, or if the matter is one which is subject to determination by the national courts, the judgment is not final despite the decision of the State court.1 This is actually true in the matter of divorce. The United States Supreme Court has decided certain divorces in State courts to be invalid in other States, supporting the courts of the other States in rejecting them. Foreign tribunals have followed this lead. And as to bankruptcy and insolvency an assignment under a State law may well be disregarded in a foreign tribunal on the ground that it was subject to proceedings in bankruptcy. And, too, by what rule of fairness can the judgment of one jurisdiction. out of forty-five in this country bind the other fortyfour, when the facts are ascertained by different procedure, different rules of evidence, and a different substantive law? And this may be asked with greater reason when the actual parties may be of different States and the action may be brought in or removed to the Circuit Court of the United States. For in the Federal Court the same variety of procedure exists as in the State courts. Under no other theory can the rule of res adjudicata be maintained than by the assumption of a common law, the assumption for the

The effect of failure to appeal is not of importance to the theory and may not enter into the question at all, the time not having elapsed.