aims to be a guide for the present. It is for this reason that the decided case is held as a guide for similar cases. And there is an adherence to the fact and the law the fact as between the parties, and the law for courts before which they may come. If the law was not binding upon the case, it cannot be binding upon the court. Certainly no one can assert that fact determined by a court would bind where law would not. Thus the principle of standing by the decision and allowing repose to things which are at rest, must, to be of any use in the development of the law, depend upon the determination of not alone the fact or the law, but the case actually before the court. And upon this basis alone may the common law become useful for the extraction of the principle of the case as a guide for courts and people.

This idea was set forth in the case of Giblin v. Jordan' as follows:

"This case may be a hard one, for it forms no reason why former decisions should be disregarded. The frequent instances in which courts have relaxed rules to avoid the consequences of cases like this have done more to confuse and complicate the law than all other causes put together. A rule once established and firmly adhered to may work hardship, apparently, in a few cases, but in the end will have more beneficial effect than if constantly deviated from."

That is the reasoning also of res adjudicata. The facts in one case may be such that in another jurisdiction the result would have been different. The same safeguard exists in respect to the courts of another jurisdiction, and those of an earlier period in the same 1 6 California, 418; Wells, Res Adjudicata, sec. 594.

jurisdiction, namely, a common method of ascertaining the facts and applying principles. This is the whole secret of the excellence and growth of the common law.

"When a question of law has been well considered and deliberately determined, whatever might have been the views of the court, before which the question is again brought, had it been res nova, it is not at liberty to disturb or unsettle such decisions unless impelled by the most cogent reasons. 'I cannot legislate,' said Lord Kenyon, 'but by industry I can discover what my predecessors have done, and I will tread in their footsteps.'" 1

$197. NECESSITY OF A SINGLE TRIBUNAL OF LAST RESORT AS TO QUESTIONS OF LAW. It is only by adherence to decisions in the strict sense of both res adjudicata and stare decisis that judges of the common law in this country can ever tread in the footsteps of their predecessors in that way, so essential to the growth of the common law, in which those who trod the path of the law "guide us," as Pardessus said of D'Aguesseau, "where they themselves had not advanced." Nor is it to be expected that this growth will be possible where the determination may be continually upset within the jurisdiction in which the common law is being developed by the assertion, of a higher jurisdiction, that the judgment was not found upon the proper rule of law. Nor can there be any desirable growth where repose is had at the expense of a sacrifice of the law of the jurisdiction in favor of

1 Baker v. Lorillard, 4 Comstock, 261; Wells, Res Adjudicata, sec. 602.

2 See the quotation in this sense from Story on the Constitution, supra, near beginning of Chapter VIII.

the conflicting law of another jurisdiction. For the rule of res adjudicata is not limited in its application to other jurisdictions but applies merely to setting litigation at rest. "The decisions of inferior courts are sometimes binding upon superior courts, although perhaps more on the principle of res adjudicata which relates chiefly to fact, than on that of stare decisis which relates to law."1

But the reason in both cases, of inferior courts and of courts of competent jurisdiction elsewhere, is that the facts were determined by the principles of a common law. And where so many questions are subject to appeal on the law to a common jurisdiction, it is not to be supposed that there is a compulsion upon courts of other States to accept fact determined upon a distinct system of law and judgments arrived at by application of different rules of law. That is repugnant to the common law and conflicts with the expressions and implications of the Constitution of the United States, especially with the Fourteenth Amendment, which allows no rights to be concluded without that due process of law defined by the common law.

There is, therefore, no basis for growth of the common law in the United States except upon the development of equal law throughout the country. For who shall say that a decision of a State court confirming an abridgment of the "privileges and immunities of the citizens of the United States" shall pass into precedent, so as to bind the courts of a State, and of the United States, by the rule of stare decisis, or the courts of other States, under the command of the Constitution, by the

1 Wells, Res Adjudicata, sec. 603.

So held in Faulkner v. Hart, 82 N. Y. 413.

rule of res adjudicata? Only that which is actually determined passes and controls,' and nothing is determined in a country with a Constitution such as ours unless it is determined in accordance with the common law of the country. It may be that the common law of the United States is meagre, but it is controlling, and the judges of the courts of every State are sworn to maintain it.2

$198. CONFLICT OF LAW WITHIN THE SAME SYSTEM LEADS TO INJUSTICE AND CONFUSION. -Actual injustice lies in the very conflict of jurisdiction. This is shown by an attempt to evade the inevitable confusion.

1 The care that must be exercised in following precedent is well brought out in Hall's International Law, 5th edition, 1904, p. 466, note, and p. 670, note. Decisions have been based upon theories of international law long since abandoned; the value of the decision depends upon the continuance of the "fact of the law." The cases in question were Am. Ins. Co. v. Canter, 1 Peters, 542; The Bermuda, 3 Wall. 59; The Springbok, 5 Wall. 1; The Peterhof, 5 Wall. 28. The principle by which the courts are bound by the declarations of the political departments of the national gov ernment, was well settled by Marshall in U. S. v. Palmer, Wheat. 3 634 (see also Foster v. Neilson, 2 Pet. 307; Prize Cases, 2 Black. 670; Fifield v. Ins. Co., 47 Penn. St. 166, 172), tends in the same direction. Where International Law is a part of the Municipal Law, and the determination of International Law (within the power of one nation) is exclusively in the province of the national government, the uncertainty of State law is easily seen.

seo.

? The meagreness of State statute law is shown by the provision in the Real Property Act: The Descent of Real Property, Laws of New York, 1896, Gen'l Laws, Vol. I. Ch. 547, Art. IX, 291: “In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of the common law." The statute law of New York is ample by comparison with the law of most of the other States. The common law referred to cannot be that of the State, for all cases were put The in the statute so far as they had arisen or could be foreseen. statute crystallized the common law of the State. is that the law rests upon a broader common law.

The admission

One of the most puzzling of the many difficult points that beset the student of the Conflict of Laws is that of determining whether a particular question forms part of the substance or obligation of a contract, to be governed by the lex loci, or whether it is one of remedy merely, to be controlled by lex fori. Frequently the two draw so close together that it becomes an intricate problem to ascertain whether the lex loci or the lex fori should be applied. The purpose is to propose a test by the application of which such problems may be solved. The substance of obligation of a contract embraces all the rights and liabilities that result expressly or impliedly from the agreement and understanding of the parties everything within the view and the intention of the parties when they enter into their contract. It is always and necessarily an implied part of the undertaking of the parties to a contract that the substance or obligation of that contract shall not be increased or diminished nor impaired in any degree without their mutual assent, for that would be to create a new contract between them to which they have not agreed. But the form of the law is often such that the matter of remedy goes to the substance of the contract and, according to the principles set forth above, undermines the contract.

"Suppose the legislature of the locus contractus to enact the law of the forum, making it applicable to the existing contract. If the result is that the obligation of the contract is neither increased nor impaired thereby, then the point to which the law of the forum relates is part of the obligation or substance of the contract, and is not merely a matter of remedy, and the lex loci, not the lex fori, should control. If, on the other hand, the result is that the obligation of the contract is not at all affected, being neither increased nor diminished, then the inquiry relates to a matter of remedy only, and the lex fori should govern.'

1 Raleigh C. Mimor, Harvard Law Review, Vol. XVI, No. 4. A perfect illustration of the failure of American justice from the sole