Argument for Plaintiffs in Error.

"This same process has once been pursued before, and the result then reached ought to preclude further inquiry." To this answer it would be quite sufficient to reply that if justice had been done before, it could be again, and if it had not been done, it ought to be done now. But it would be an intolerable burden and expense, both to the public and to the parties, if the courts of the same country could be continually vexed with trials of the same controversy. "Interest reipublicæ ut sit finis litium." It is necessary that some limitation should be imposed; and the conclusion of state policy in this country and in England has been that the parties should be allowed one full and fair opportunity to try their grievances, and one alone. This is sufficient to prevent attempts at the private redress of injuries. Hence, the general rule applicable to domestic judgments, that the judgment of a court of competent jurisdiction is conclusive between the same parties upon the same question in another court, whether as a plea, a bar, or as evidence.

In reaching this conclusion, some concession is perhaps made from strict and absolute justice in favor of convenience. But justice nevertheless is, as it always must be, the overruling consideration; and the doctrine would never have been adopted unless the conclusion had been thought to be a safe one, that the judgment in the first and only trial allowed would be, in the vast majority of cases, a sound and righteous one.

This doctrine has been established among us in view of the fact that rules and safeguards have been adopted which, if followed, will make the judgment one which may be enforced without further inquiry. It rests upon two principal considerations: (1) That there is a reasonably safe assurance that the former judgment, reached only after the employment of precautions carefully devised for the elimination of error, is just and right; and (2) that the maxim "interest reipublicæ ut sit finis litium," which deems it a satisfaction of the duty of government to furnish remedial justice, if one fair opportunity has been given, has been duly considered. Both of these considerations are wanting in the case of foreign judgments.

Argument for Plaintiffs in Error.

Except in the case of England and some of her colonies, where the national standards of justice, and also the methods of procedure, very much resemble our own, we can have no full assurance that a just conclusion has been reached. In many, perhaps most, other instances, there are substantial differences in the general conceptions of justice, manifested sometimes by peculiar local laws, and sometimes by peculiar doctrines of general jurisprudence, and sometimes by both. And, generally, the methods deemed essential by us to the working out of a just conclusion are not enforced. Jury trials, exclusion of improper evidence, cross-examination of witnesses, etc., are matters to which comparatively little attention is given. And if we may believe what has often been alleged upon good authority, in many countries there is a scandalous amount of partiality, favor and even bribery, in the administration of justice.

The maxim, "interest reipublicæ ut sit finis litium," applies to our own nation only. It is no part of our policy to restrict litigation in the world generally. In the case where a foreign judgment is set up as conclusive, we have not as yet afforded the one fair opportunity to litigate the question upon its original merits, which it is the duty of governments to furnish.

The suggestion that the comity of nations requires conclusive force to be given to foreign judgments, inasmuch as otherwise they will not give like force to our judgments, is wholly insufficient. This comity does, indeed, have a place in this branch of the law, but by no means the force thus suggested. We can never allow the assumption that Morocco, or Turkey, or Russia, or even Germany, Italy, or France has methods of judicial administration equal to our own, so as to justify ourselves in making a tacit agreement that we will enforce their judgments, if they will ours.

Our courts cannot show a comity toward England which they would deny to Russia. If a reciprocity in the treatment of judicial proceedings should be thought desirable, it can be safely brought about by treaty alone, where it may be yielded or withheld at pleasure. We shall consider this more at length later.

Argument for Plaintiffs in Error.

If, therefore, foreign judgments are in any case to be held conclusive with us, it must be for other reasons than those upon which we hold domestic judgments conclusive. It cannot be said that foreign judgments are ever so conclusive that no inquiry into them can be allowed; but there are many cases in which they may be justly held substantially conclusive. The common characteristic of all of them is that the obligation of the State to ascertain, declare, and enforce justice according to its own conceptions of justice does not in such cases exist, or is greatly diminished in force; and that it is wiser, safer, and better to adopt and enforce the judgment of the foreign State.

A careful examination of all the cases warrants us in assuming that the question whether a foreign judgment is conclusive, so as to preclude inquiry into the original merits of the controversy, depends upon the circumstances under which it was rendered; and that it is not thus conclusive where the State is under its ordinary obligation to the party demanding such inquiry to give him at least one full and fair opportunity of having his cause adjudicated upon its original merits. It is well settled that wherever a domestic judgment is interposed as a bar to an original investigation, it must appear that such judgment was the result of a proceeding so instituted and prosecuted as to show that the party sought to be precluded from original inquiry did have, in the suit in which the judgment was rendered, this full and fair opportunity. The American courts never can have any such complete assurance that the party against whom a foreign judgment has been rendered did have a full and fair opportunity for an adjudication of his cause, according to our conceptions of justice; and consequently, if, in any case, a foreign judgment is held conclusive, it must be because there is not, in the particular case, any such obligation on the part of the State to that party to afford him even one such full and fair opportunity to have his cause adjudicated according to its conceptions of justice.

Indeed, the general doctrine, as stated in most cases in the courts of the United States, goes much further than any of

Argument for Plaintiffs in Error.

the necessities of the present controversy require; and perhaps further than would be allowed in a precise statement of its extent. It declares that foreign judgments are prima facie evidence only. Only two cases are cited to the contrary. Lazier v. Westcott, 26 N. Y. 146; and New York, Lake Erie & Western Railroad v. Henry, 21 Blatchford, 400. In the first case the only question before the appellate court was whether the record was receivable in evidence notwithstanding the technical objections. The court held it was; but the learned Judge (Davies) who gave the opinion, then proceeded to argue a question not raised, namely, whether foreign judgments were conclusive, and held that they were. This opinion is unimportant. The second was a case of precisely the same character. The judgment was in no respect impeached.

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A review of the English cases will show that the doctrine in England never has been, and is not now, inconsistent with the rule herein maintained; but that, on the contrary, the question whether a foreign judgment should be held conclusive depends upon the circumstances under which it was rendered.

First, as to the cases decided before A.D. 1800. Isquiredo v. Forbes, 1 Doug. 6 (n.). This is cited as a decision by Lord Hardwicke, that foreign judgments, when an action is brought upon them, are merely prima facie evidence on behalf of the plaintiffs.

Gage v. Bulkeley, 3 Atk. 215. On a plea of a foreign sentence in a Commissionary Court in France relating to the same matters for which a bill was brought in England, Lord Hardwicke said: "It must be overruled, for it is the most proper case to stand for an answer, with liberty to except, that I ever met with."

Sinclair v. Fraser (1768), 1 Doug. 5 (n.); more fully in Morison's Dec. 4542 (House of Lords). Mrs. Fraser, of Scotland, succeeded to an estate in Jamaica, and, being under age, her tutors appointed Sinclair to manage it. The estate was sold in 1763, and Sinclair procured a judgment in the Supreme Court of Jamaica for a balance due him upon an account cur

Argument for Plaintiffs in Error.

rent, and then brought suit in Scotland on the Jamaica judgment. The defendant prayed that plaintiff should produce the vouchers of the debts claimed, in order to introduce a fair count. The Lord Ordinary ordered the vouchers to be produced. The plaintiff appealed to the Lords of Sessions, who sustained the Lord Ordinary; upon an appeal to the House of Lords they held that the judgment of the Supreme Court of Jamaica ought to be received as evidence prima facie of the debt, and that it lay upon the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained.

The decision went only upon the question of evidence and the burden of proof. Morison so treats it. In his head note he epitomizes the decision as follows: "Found that a foreign decree bearing to have been in foro contentio, had not the effect of res judicata in Scotland, but entitled the party claiming under it to plead that the onus probandi rested on his opponent."

This decision is an authority for the claim that the merits of a foreign judgment may be attacked. The Scotch courts did not give it the effect of even prima facie evidence. In this, held they were in error, but in this alone.

Herbert v. Cook, Willes, 36 (n.), Lord Mansfield, in speaking of the judgment of the Hundred Court (a domestic tribunal), said: "Besides, it is not a judgment of a court of record, but like a foreign judgment, and not conclusive evidence of the debt."

Walker v. Witter (1778), 1 Doug. 1, was an action of debt brought in Middlesex County, England, upon a judgment of the Supreme Court of Jamaica. The question was whether nil debet or nul tiel record was the proper plea. Lord Mansfield held that the former was the proper plea, and said: "Foreign judgments are a ground of action everywhere, but they are examinable. He recollected a case of a decree on the chancery side in one of the courts of great sessions of Wales, from which there was an appeal to the House of Lords, and the decree affirmed there, and Lord Hardwicke thought himself entitled to examine into the justice of the decision of