purposes of giving effect equally to judgments at home and abroad. § 195. "FULL FAITH AND CREDIT" CLAUSE AND UNIFORMITY. - The assumption of the common law of the United States is the only basis upon which the other fundamental doctrine of the common law can be maintained, the doctrine of stare decisis, for how can we stand by the decisions in the national courts if they are rendered upon forty-five different sets of rules? Yet they are not rendered upon different sets of rules, but upon one rule, that of the common law. Adherence to these principles demands the assertion of the common law of the United States, and it is upon the assertion of these rules that the uniform and certain development of our law depends. This will appear from a further consideration of the matter. "The conclusiveness of judgments in other States is expressly provided for by a direct provision of our national Constitution, namely, 'Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,'' so that if a judgment is conclusive in the State where it is pronounced, it is conclusive everywhere. This is the principle to be illustrated. And the matter of conclusiveness we shall find to be tested, or rather determined, in large degree from the authenticated records of the court where the judgment was rendered. The conclusiveness, however, does not preclude all inquiry into jurisdiction of persons or subject matter as to the court or as to the State itself." 2 "As early as 1813, the Supreme Court of the United States laid down the rule which is now universally followed. 1 Art. IV, sec. I. 2 Story on the Constitution, sec. 1313; Wells, Res Ajudicata, sec. 518. 'Were the contention that judgments of State courts ought to be considered prima facie evidence only, the clause in the Constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest, however, that the Constitution contemplated a power in Congress to give a conclusive effect to such judgments. And we can perceive no national interpretation of the Act of Congress, unless it declares a judgment conclusive, when a court of the particular State where it is rendered would pronounce the same decision." "In 1839 the same court gave an authoritative interpretation of the constitutional provision, and also an explanation of the ruling just quoted. The court added: 'It has been well said (in Story's Commentaries, 183) that the Constitution did not mean to confer a new power of jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the State."" $196. THE COMMON LAW AND PRECEDENT. — In these decisions the grant of power to Congress by the Constitution to enforce the national application of Mills v. Duryea, 7 Cranch, 485, Johnson, dissenting. See approval of principle in Hampton v. McConnell, 3 Wheat. 234; Wells, Res Adjudicata, sec. 519. McElmoyle v. Cohen, 13 Pet. 324, 327. That the real basis of law in the United States is the direct relation between the nation and the individual was asserted more forcibly in National Surety Co. v. State Bank (C. C. A. 8th Circuit), 61 L. R. A. 394. It was held that the prohibition on Federal courts against staying proceedings of a State court or of its officers does not prevent a Federal court from enjoining the plaintiff in an unconscionable judgment of a State court, from using it to extort money from a defendant who ought not, in equity and good conscience, to pay it. As to lack of force of such a prohibition to Federal tribunals see Ex parte Christy, 3 How. 292. a State judgment is asserted, and the same power is said to arise also from the common law. The attempt to assert that the judgments of State courts are valid in other States through a sort of obligatory comity and not through the unity of the judicial system leads to odd results. The necessary consequence is to make the national courts depend, for the national scope of their judgments, upon the act of Congress, a co-ordinate department, having certainly no greater power to extend the scope of the action of the courts than to extend its own power, both arising under the Constitution and being national. The aim of the national law should be to place within its admitted and actual scope those matters which demand for the establishment of fairness and safety, as the basis of law and commerce, not only validity of judgment all over the nation, but certainty and uniformity of the rules upon which judgment is sought. The Constitution' expressly puts under the control of Congress the principle of res adjudicata. This principle cannot be given effect throughout the nation without the extension to the same scope of the cognate principle of stare decisis. Why should we stand by the facts of a case when they are not based upon a system of law by which we should determine them? Only like systems of law give like results, and the very assertion of the principle of res adjudicata assumes like law. Where the observance of a judgment is obligatory, the observance of the law upon which judgments are based should be obligatory. As it was assumed in the Constitution that only the national Congress could enforce the obligation to observe Art. IV, sec. 1. judgments, so it was assumed that the national law alone could offer a basis upon which the obligation could be enforced. To give to the principle of stare decisis the same extension as res adjudicata is but to apply to the logic of the common law the logic of the Constitution of the United States. Let us see what the principle of stare decisis is. We may first define what it is not. It will be seen that that is not precedent which would not be res adjudicata, and vice versa, fact and law being merged into the actual case. "If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way, without affecting any right brought into question, then according to the principle of the common law, an opinion in such a question is not a decision. To make it so there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs. And, therefore, this court (and other courts organized under the common law) has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right, or title, in question between the parties. In Cohens v. State of Virginia,1 this court was much pressed with some portion of its opinion in Marbury v. Madison. Marshall, C. J., said: 'It is a maxim that general expressions of opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented. The reason of this 16 Wheat. 399. maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.' The cases of Ex parte Christy,' and Jenness v. Peck, are an illustration of the rule that any opinion. given here or elsewhere, cannot be relied upon as binding, authority, unless the case called for its expression. Its weight of reason must depend upon what it contains." " These expressions of the effect of a case as precedent show that each case has in it a principle of law applied to determined fact. If either is changed in a succeeding case the earlier case must be disregarded in the later case. And so in the application of res adjudicata, the change of the principle of law would invalidate the earlier one as a bar, for the same reason that the application of a different principle of law would invalidate it in the domestic jurisdiction as a precedent. The reason of both of these principles lies in the policy of ending litigation after justice has once been done under acknowledged rules and standards. It is considered sufficient that there should be one determination to an action. But an action cannot be determined until it is determined justly. And no action is determined justly which is determined upon the mere question of jurisdiction. But the rule refers also to that desire of the law to establish a certainty as to rights not only by litigation but by the determination of the question of law involved in the adjudged case. We learn only the past from experience. Law |