of such an attitude being assumed, we are left simply to infer that the only position taken by Mexico was that any claim for the capital which might thereafter be made would be opposed, and possibly that the contention would be made that the award then obtained amounted to a conclusive settlement of the whole transaction, although as to this latter suggestion the view of Mexico was not clearly defined.

Considering the point last above mentioned, we believe we might well have waived all of the argument up to this point and limited ourselves to the questions we are about to discuss; for if Mexico, immediately upon the rendition of the decision of the umpire, did not contend, as we have endeavored to show she could not, that the award was contrary to public international law, or was based upon errors of law or of fact, or was vitiated or inoperative for some other reason, surely now, after a lapse of twenty-six years, and without the discovery of any new fact affecting the sanctity of the former adjudication, which new fact was not at that time discoverable, Mexico will not be permitted to attack as invalid the finding of the Mixed Commission.

We may with propriety at this point quote Lord Cairns, who, in Dundas v. Waddell (5 Appeal Cases, 263), said:

I can not imagine anything more unsafe than to attempt to cut down the effect of judgments, distinct and absolute on the face of them, on a surmise that a case was imperfectly considered, or that the court had not proper materials for a judgment. Especially does it appear to me unsafe to enter on such speculations after the lapse of nearly a century, when every source of information, except what is retained in the judgment, has been dried up by lapse of time.

THE EFFECT OF THE ARBITRAL DECISION IN THIS CASE AS RES JUDICATA.

By reference to the protocol it will appear that the former Mixed Commission adjudged the claim of the Catholic bishops of California submitted to it adversely to the Republic of Mexico, and made an award thereon of $904,700.99, the same being, as expressed in the findings of the court, for twenty-one years' interest of the annual amount of $43,080.50 upon $718,016.50 in Mexican gold. Subsequently this award was reduced, because of an error of calculation, to $904,070.79 Mexican gold, representing a diminution in the total amount of principal upon which interest should be recovered of $500. (Transcript, p. 650.) This award was paid, and in view of the demonstration in which we believe we have successfully indulged of the fact that the former award constituted res judicata as to the amount of yearly installments which could be claimed on behalf of the bishops of California, the question arises as to the consequences which flow therefrom. We have introduced in evidence the former adjudication for the purpose of establishing conclusively the amount of yearly interest we now have a right to claim. This done, Mexico would still be privileged to show, if such were the fact, that the interest had been paid. The protocol admits that this interest has not been paid or released.

Before entering into a discussion of the legal consequences of the former decision, it is worth noting the opinion expressed at the time of its rendition by the representatives of Mexico. Said Señor de Zamacona, in his opinion as commissioner:

When Mexico and the United States liquidated, so to say, their accounts in 1848, binding themselves not to seek in the past for any cause of complaint or reclamation, the Fund of California was already incorporated into the national revenues of the Republic, and the Government of Mexico had only allotted certain subsidies to the

ecclesiastical functionaries who served it as auxiliaries in that part of the confederacy. This situation the claimants now desire to alter and to oblige Mexico to pay the perpetual tribute of a rent to certain American corporations. (Transcript, p. 542.)

Again, he asks:

What is there in common between that case and that of the claimants? What do they give Mexico? What do they offer her in exchange for a sort of perpetual annuity which they want to secure in favor of their churches? (Transcript, p. 543.)

For citations to similar effect from the argument of Sr. Avila, we refer to the brief of the Messrs. Doyle, where they are collated.

It is evident that Señor de Zamacona believed that an award against his country for past interest necessarily involved the payment of future interest, which he terms "the perpetual tribute of a rent," or, in other words, "a perpetual annuity. His view of the law upon this point was absolutely correct, as we shall now proceed to show.

THE FORMER AWARD BEING RES JUDICATA, ESTABLISHES CONCLUSIVELY THE ANNUAL AMOUNT OF INTEREST TO BE PAID.

By reference to the protocol we find the recital that in the former controversy the Mixed Commission

adjudged the same adversely to the Republic of Mexico and in favor of said claimants, and made an award thereon of nine hundred and four thousand seven hundred and (904,700.99) dollars, the same, as expressed in the findings of said court, being for twenty-one years' interest of the annual amount of forty-three thousand and eighty and 19 (43,080.99) dollars upon seven hundred and eighteen thousand and sixteen and (718,016.50) dollars.

99

100

A slight correction is properly to be made in the foregoing as above indicated, inasmuch as the umpire, upon his attention being called to an arithmetical error, reduced the sum total to $904,070.79.

The language of the protocol above quoted indicates that by agreement of the two nations it is covenanted that the former tribunal adjudged not only the annual interest to be paid, but also the amount of principal upon which it was based, and we might well rely upon this single fact as a complete answer to the suggestion on behalf of the Mexican Republic that the decisory or dispositif part of the judgment had reference only to the question of interest.

But for a few moments, even though it be contrary to the actual facts of the situation, let us assume that the two Governments have not agreed as to the points upon which the decision was reached, and further assume that it is open to this court to investigate and redetermine upon the different findings of the former tribunal, provided, however, the doctrine of res judicata does not prevent such reexamination. We shall lay it down as a principle equally well established by the civil law and by the common law of England and America that the things which are of necessity implied in a decision, and without which the decision could not have had an existence, are as much an integral part of it as if they had entered into the last words spoken and the last action taken by the court.

Quoting from an eminent American authority (Freeman on Judgments, sec. 256), we may say that

A judgment is conclusive upon every matter actually and necessarily decided in the former suit, though not then directly the point in issue. If the facts involved in the second suit are so cardinal that without them the former decision can not stand, they must now be taken as conclusively settled. In an order of settlement J. G. and W. G. were adjudged to be the lawful children of William G. and Esther G. and to

have their settlement in a certain township. Afterwards a contest arose in relation to the settlement of Esther G., whereupon it was considered that as the settlement of the children depended on that of their father and on his marriage with their mother, Esther, the father's settlement and marriage must have been decided as the groundwork of the former order, and that as those facts which upheld the order of settlement of the children were necessarily and exclusively applicable to their mother, her settlement was fixed by the decision in relation to that of her children. (Regina v. Hartington, 4 El. and Bl., 780.)

Again we read in the same work in section 258:

In ascertaining whether a particular matter has become res judicata, the reasoning of the court is less to be regarded than the judgment itself, and the premises which its existence necessarily affirms.

As inferentially bearing upon the point now under consideration we may cite Doty v. Brown (4 New York, 71; 53 American Decisions. 350) as authority to the proposition that the former judgment is conclusive when the parties and the question involved in the two suits are the same, notwithstanding the property claimed in them may be different. To the same proposition we cite Keown v. Murdock (10 Ohio State, 606).

In the case of Reynolds v. Mandel (73 Illinois Appeals, 379) it was decided that where a question material to the determination of both causes has been adjudicated in the former suit by a competent court, and the same question is again at issue between the same parties, its adjudication in the former case is conclusive in the latter whether the cause of action be the same in both suits or not.

The language of the court of appeals of New York in the case of Manufacturing Company v. Walker (114 New York, 7) is much in point: The estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, were comprehended and involved in the thing expressly stated and decided, whether they were or not actually litigated or considered. It is not necessary that issue should have been taken upon the precise point controverted in the second action.

In passing to a brief consideration of the position of the English courts, we may refer to the fact that in Cromwell v. County of Sac (4 Otto, Supreme Court U. S., 351) the Supreme Court quotes approvingly the opinion of the chancellor in Henderson v. Henderson (3 Hare, Eng., 100) as follows:

In trying this question I believe I state the rule of court correctly that when a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in controversy, but which was not brought forward only because they have from negligence, inadvertence, or even accident omitted part of the case. The plea of res judicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.

The general rule is again indicated by the language of Lord Mellish in Bank of Hindustan, China, and Japan, Allison's case (L. R. Ch. Appeal Cases, vol. 9, p. 1), as follows:

It is clear, I apprehend, that the judgment of the courts of common law is not only conclusive with reference to the actual matter decided, but that it is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the actual grounds of the decision can be clearly discovered.

As supplying us with a general rule, the application of which is explained by the cases already given and those hereafter to be adduced, we may with advantage refer to the much cited opinion of Lord De Grey in The Duchess of Kingston's case (20 Howell's State Trials, 538), as follows:

From the variety of cases relative to judgments being given in evidence in civil suits these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction directly upon the point is as a plea a bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is in like manner conclusive upon the same matter between the same parties coming incidentally in question in another court for a different purpose.

Let us now consider whether the civil law treats this subject-matter in the same manner, bearing in mind the citation made by Señor Mariscal (Diplomatic Correspondence, p. 32) from the work of Professor Laurent to the effect that

The creditor sues his debtor for interest of a principal sum; the judge condemns the debtor to pay. Is there res judicata in respect to the principal? It is supposed that the decisory part of the decision affects the amount of the principal, and it has been decided that a decision in these terms does not give the force of res judicata with respect to the principal itself. (Citing decision August 25, 1829, Dalloz, Chose Jugée, No. 24.)

When, however, we examine the work of Dalloz itself, we find that the citation was simply that of a case in which judgment for compound interest had been rendered by default, and Dalloz contended that the authority of res judicata did not attach to the points or reasons announced in connection with the judgment relative to facts or questions which had not been specially submitted to the examination of the judge, even if these announcements were found in the "dispositif” of the judgment. Thus he continues:

Judgment by default which results from a demand tending solely to produce interest upon interest of a capital has not the effect of chose jugée as to the quantity of the capital, although this capital may be expressed in the judgment.

Looking at the reason suggested, we may readily grant the conclusion. No question as to the amount of the capital was "specially submitted to the examination of the judge." He was only asked to determine the amount of interest accruing upon another alleged amount of interest, and the judgment in the case being by default, there was no contest before him tending to bring out all the facts of the case. That we have correctly stated the reason for the position. taken by Dalloz sufficiently appears from a further citation from paragraph 32, in which Señor Mariscal found the quotation applied by him. There M. Laurent says:

Un jugement accorde à une personne des aliments en qualité d'enfant, A-t-il l'autorité de chose jugée sur la question d'affiliation? Si la question a été débattue entre les parties l'affirmative n'est point douteuse.

Mexico discussed

Let us apply the last citation to the case at issue. fully before the former tribunal the question of her obligation to pay the interest finally awarded against her, and the finding of the tribunal was contrary to her contentions. The question, therefore, of her liability to pay interest "a été débattue entre les parties," and, according to M. Laurent, the proposition of res judicata under such circumstances "n'est point douteuse."

As a preliminary proposition we may say that the civil law has determined that the authority of chose jugée

Pouvant être invoquée par le demandeur aussi bien que le défendeur, n'est pas toujours invoquée sous la forme d'une exception. (Répertoire Général Alphabétique du Droit Français, vol. 11, Chose Jugée, sec. 767.)

Addressing ourselves now to the underlying principle to which we are giving consideration, we read from the Dictionnaire Général de Droit et de Jurisprudence de M. Bertheau, in sec. 15535, as follows:

Il y a des motifs qui sont en quelque sorte l'âme de la sentence, qui sont avec elle dans un rapport si étroit qu'ils participent nécessairement à l'autorité attachée au dispositif. Exemple: vous me demandez le paiement d'une somme de tant. Je vous oppose la compensation; mais le jugement, écartant mon moyen de défense dans ses motifs, me condamne, dans son dispositif, à vous payer la somme réclamée. Je ne pourrais ensuite vous demander ladite somme que je prétends m'être due par vous, car il résulte des motifs du jugement que vous ne me la devez pas. On voit donc qu'ici les motifs ont indirectement autorité de chose jugée, parce qu'ils se trouvent avoir un lien nécessaire avec la sentence.

Again he says:

§15537. Les décisions formellement exprimées dans le jugement ne sont pas les seules qui bénéficient de la présomption de vérité. Il en est de même de celles que le jugement implique nécessairement, sans les déclarer cependant d'une façon

expresse.

§15538. Ainsi le jugement qui valide les poursuites dirigées en vertu d'un titre implique que le titre est valable. V. M. Demolombe, XXX. No. 294; Cass., 4 dec. 1837. (S. 38. 1. 233.)

Continuing our citations, we beg to refer to Répertoire Général Alphabétique du Droit François (vol. 11, title "Chose Jugée," sec. 213), which says:

L'autorité de la chose jugée ne s'attache pas dans une sentence à toutes les paroles du juge; elle ne s'attache pas en principe aux motifs du jugement; elle ne s'attache pas non plus aux énonciations; mais elle appartient aux décisions implicites aussi bien qu'aux décisions expresses.

In the same line is the expression found, under the same title, in section 228, which reads:

D'autre part, alors même que le dispositif contient tout ce qui a été décidé, les motifs d'un jugement peuvent servir à éclairer le dispositif. Ce dernier est souvent très bref et ne ferait pas suffisamment connaître ce qui a été jugé. On peut, pour compléter le sens d'une décision et déterminer la chose jugée par elle, en interroger les motifs lorsqu'ils sont en harmonie avec le dispositif.

*

Again, we add from section 237:

*

* Aussi les décisions implicites sont-elles admises par la jurisprudence et par tous les auteurs. (Aubry et Rau, t. 8, p. 371, s. 769; Larombière, art. 1351, n. 27; Laurent, t. 20, n. 34; Demolombe, t. 30, n. 294; Garsonnet, t. 3, p. 240, s. 465, n. 13.)

Volume 25 of the same work, title "Jugement et Arrêt," section 392, says:

La règle que l'autorité de la chose jugée ne s'attache qu'au dispositif du jugement ne s'oppose pas toujours à ce que les motifs fassent partie de la décision définitive; les motifs participent à l'autorité de la chose jugée lorsqu'ils font corps avec le dispositif, ou qu'ils en sont la base essentielle. (V. supra, Vo Chose Jugée, n. 226 et s.)

We find therefore that the common law and the civil law agree that the thing which is implied from the actual point of the decision, or which constitutes its necessary foundation (base essentielle), is as much a part of the dispositif or decisory part of the decision as if it had been fully expressed and had entered into its operative words.