M. Laurent refers, and, as we argued then, we think on examination it proves to be without force to sustain the contention urged, and, furthermore, as noted below, we find on the very same page of Laurent a discussion of the principle which states it in terms which would be applicable to the present case:

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

The questions which were discussed before the former tribunal, as this tribunal is aware, were the existence of the fund, which was a fact found; the purposes for which that fund was intended, which was found; the obligation of Mexico to pay the California bishops their due proportion of the income of that fund, which was found; the amount so payable, which was fixed, and including in that the rate per cent per year. All of these were fixed, and in addition, the number of years for which there had been default, and, summing up these various elements, the conclusion was reached that some forty-three thousand dollars per year was the quantity which should be paid to the Roman Catholic bishops. The contention of Mexico is, if I correctly apprehend it, that the former adjudication, if res judicata at all, was conclusive merely as to the decisory part, and that decisory part was nothing more than the direction to pay some $904,000, but was not conclusive as to the various elements without which that decisory part could not have existed. Our contention in answer to that is two-fold in character; the first is, that in point of fact the adjudication as to the annual interest does form part of the decisory portion of this judgment, for we find in the opinion of the umpire, given on page 609, the direct statement that

The annual amount of interest, therefore, which should fall to the share of the Roman Catholic Church of Upper California is $43,080.99, and the aggregate sum for twenty-one years will be $904,700.79.

These are not the last words, of course, of the opinion, but they are as much the decisory part as they could possibly be. They sum up his opinion in a few words, although the concluding lines are:

The umpire consequently awards that there be paid by the Mexican Government, on account of the above-mentioned claim, the sum of nine hundred and four thousand seven hundred Mexican gold dollars and seventy-nine cents ($904,700.79) without interest.

Our first contention, therefore, is that the award itself has included that very thing in its decisory part, and under that contention may be embraced the further one that it is stipulated by the protocol under which this court is convened, that that very fact was found by the arbitrators, for it will be found, reading from page 48" of the Appendix, and referring to the protocol under which we are acting.

M. DE MARTENS. Which page?

Mr. RALSTON. Page 48.

Whereas said mixed commission, after considering said claim, the same being designated as No. 493 upon its docket, and entitled Thaddeus Amat, Roman Catholic bishop of Monterey, a corporation sole, and Joseph S. Alemany, Roman Catholic bishop of San Francisco, a corporation sole, against the Republic of Mexico, 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 99/100 (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 99/100 (43,080.99) dollars upon seven hundred and eighteen thousand and six

a Page 158, this volume.

teen and 50/100 (718,016.50) dollars, said award being in Mexican gold dollars, and the said amount of nine hundred and four thousand seven hundred and 99,100 (904,700.99) dollars having been fully paid and discharged in accordance with the terms of said convention, etc.

So that, I think, we are justified in saying that the matter in point of fact is beyond discussion by the very terms of the protocol; but inasmuch as in the answer of Mexico this point is renewed on her behalf, we find ourselves compelled to continue the discussion beyond the point to which it has so far been carried. As this honorable tribunal is familiar with the brief placed before you, I need only state that the common law and the civil law authorities therein contained reach the position that whatever was of necessity implied or flowed as a necessary consequence from the finding of the judgment is to be considered as an integral part of it, and not to be divorced from it, and such has been the language in effect of many French and English courts cited in the brief, and such is the language as cited also from Chand and given by him on pages 48 and 49, not cited in the brief, with illustrations there given. I take a moment to read these citations, as they are not contained in the brief, and I commence on page 47 as giving examples of the rule:

In Gardner v. Buckbee, also, the suit was on a promissory note. The defendant alleged that that note with another was given for the price of a shop which was sold fraudulently by plaintiff. The plaintiff replied that the issue as to the sale being fraudulent had been decided against the defendant in a former suit on the other note, and that decision was held to be res judicata. In Van Dolsen v. Abendroth and Cleveland v. Creviston, a decision for the plaintiff for the amount of the interest claimed in respect of a bond was held to be res judicata in a suit for the amount of the bond, as to the plea of the bond being invalid for fraud, on the ground that that plea ought to have been raised in the former suit. Mr. Herman, citing a number of other cases, says: ‘In an action on a promissory note where the defence was fraud and the judgment was rendered for the defendant, the verdict was held in another action on another ground, growing out of the same transaction, conclusive evidence of the fraud. On the same principle in an action of assumpsit for goods sold and delivered, a verdict against the vendee on the ground that the same was fraudulent as against the vendor's creditors is conclusive of fraud in the subsequent action between the same parties for other goods which were not included in the first action."

* * *

Then there are a large number of citations of similar effect, with which I shall not trouble the court at the present time, simply making the reference.

In the discussion of this general subject, contained in the answer of Mexico, reference has been made to Griolet as an authority upon the subject of res judicata, to the discussion of Savigny, which is quite notable in the history of jurisprudence, and to Pantoja upon certain incidental points. I may say that unfortunately I think every reference contained in the answer of Mexico has been erroneous. I should make one single exception-the reference to the letter of Secretary Bayard. We have, with exceeding great difficulty, verified all of them and given the correct pages in the notes, except the reference to Pantoja. That we are entirely unable to verify. We can not find any corresponding pages. I call the attention of the agent of Mexico to that at this time, with the request that he will kindly furnish us with the correct reference to Pantoja. The others, as I have stated, we have found with a great deal of labor.

The first authority discussed by Mexico to the proposition that the legal principle of res judicata applies exclusively to the decision or to the decisory part of the judgment, and that the reasons are not

embraced in it, is that of Savigny. That is not the doctrine of Savigny, although that inference might perhaps be drawn from the manner in which the printer has presented the answer of Mexico. Savigny refers to it as a doctrine entertained by various ancient authors, a large number of authors, as he says, but it is not his doctrine, and he so expressly states. But the discussion by Savigny of the general underlying principle is one which I am sure the court must have found extremely interesting, for his discussion is referred to very generally, I suppose, by European writers, and his conclusion might be briefly expressed as that the force of res judicata, or chose jugée, applies to what he terms the objective parts of the judgment; that is, the things which must be found by the court in order to reach a given conclusion, as, for instance, applying it to this case, the amount of annual interest which had to be found before fixing the sum total for twenty-one years, but does not apply to what he terms the subjective reasons or the reasons which bring the mind of the court to conclude that particular things essential in the formation of a judg ment are existent; for instance, the force of res judicata, under the doctrine of Savigny, would apply to the fact found that $43,000 per year was due by Mexico to the Roman Catholic bishops of California, but would not apply to the particular reasons which induced the mind of the court to reach that conclusion, and the particular things concluded, the things which enter into, which form the integral and inseparable part of the judgment, form part of the res judicata. Thus he says:

Les motifs (meaning in this sense, as my contention is, as explained by him; that is to say, the objective motifs) font partie intégrante du jugement, et l'autorité de la chose jugée a pour limites le contenu du jugement y compris ses motifs.

He further comments:

Ce principe important, conforme à la mission du juge, a été formellement reconnu par le droit romain et appliqué dans tout son extension.

So that we may cite with absolute reliance, so far as our position is concerned, Savigny, an author of the very highest repute. It is true that Griolet, an author, we may say fairly and justly of very much less celebrity, has been cited on behalf of Mexico as differing from Savigny, and his particular language in the way of difference has been quoted in the answer of Mexico, but, as will appear by reference to the Replication on behalf of the United States, even Griolet qualifies his own language of criticism of Savigny, and so qualifies it as to make that criticism, in our judgment, meaningless, for we find, quoting from the foot of page 5 of the Replication," referring to the distinctions made by Savigny between objective and subjective motifs, that Griolet says:

Cette théorie est exacte dans sa plus grande partie, parce qu'on voit que M. Savigny considère comme motifs objectifs de la sentence les rapports de droit en vertu desquels la condamnation est demandée, et les rapports de droit que le défendeur oppose au demandeur, pour neutraliser en quelque sorte l'effet des rapports de droit qu'on invoque contre lui, et éviter ou amoindrir la condamnation.

And we follow our citation from Griolet, with illustrative cases given by him, tending to sustain the very doctrine for which we contend here to-day, and showing, as appears by the extracts on page 6, and which I will not trouble you by reading, that when he comes to apply his own theory of law, he exactly accords in application with Savigny, and agrees with the contention now advanced by us.

a Page 59, this volume.

I desire now, and in connection with the discussion of this question at this point, to refer the court to some statements of principle to be found in another treatise upon this subject, the treatise of M. Lacombe, "De l'autorité de la chose jugée." I shall read from paragraph 68, on page 67, as illustrative of his belief in the absolute necessity for what I may term a substantial following of the doctrine of Savigny, although, as I shall note, he makes some minor criticisms which have no effect or force, so far as this case is concerned, in view of the summing up of his doctrine to be given hereafter. He says:

Je dois dire tout d'abord que l'autorité de la chose jugée restreinte au dispositif seul ne donnerait nullement satisfaction aux nécessités sociales qui l'ont fait instituer, que les auteurs et les tribunaux qui ont proclamé en principe cette restriction n'auraient jamais pu l'appliquer rigoureusement à la pratique, et qu'ils ont dù, tout en la maintenant en théorie, y apporter dans l'application des dérogations sous le nombre et l'importance desquelles elle disparait presque complètement.

I think the remark just made has a very direct bearing upon the course taken by M. Griolet in this work upon the same subject-that is, as laying down the principle that the force of chose jugée attaches only to the dispositif of the judgment, immediately proceeding as he does to give a succession of cases cited in the replication of the United States which show absolutely that the formal application of such a rule to a state of facts at all similar to that presented before this honorable tribunal is absolutely impossible. He does not apply the rule laid down by him when the necessity arises.

The writer from whom I am now quoting, M. Lacombe, on page 68 indicates the way, however, which has been resorted to by such writers as M. Griolet to avoid the effect of the rule which he has undertaken to maintain, and in the note this writer says:

Nous devons du reste ajouter immédiatement que la jurisprudence applique la faculté d'interprétation du dispositif par les motifs d'une manière très large, ce qui arrive à restreindre dans une forte proportion les inconvénients de la doctrine que nous combattons,

in other words, to get rid of their own doctrine by interpretation so as to enable courts to arrive at a reasonable result.

Another contention, I read from page 74, paragraph 74:

74. C'est donc dans l'ensemble du jugement sans égard à sa division en diverses parties qu'il faut puiser tous les renseignements qui feront connaître si l'exception est ou non applicable.

The summing up in a few words of this particular author of his theory is contained in a note at the foot of page 79, as follows:

L'autorité de la chose jugée couvre non-seulement la solution proprement dite donnée par le juge, mais encore tous les rapports de droit qui sont liés à cette solution par le rapport de principe à conséquence, et peu importe, quant à ce, que l'opinion du juge à leur égard se trouve exprimée dans le dispositif du jugement ou dans ses motifs.

We have therefore the opinion of the continental text writers sustaining the position taken by the United States that the elements which of necessity enter into the judgment form part of the chose jugée. We have the opinion of the French courts, innumerable opinions, almost, cited in the brief to precisely the same effect. We have the opinion of Savigny indicating the same, and I am happy to be able to add, as I have in a note on page 7 of the replication, that the courts of the Netherlands entertain precisely the same view, and we see in the brief it is the same as that of the courts of the United States and of Eng

a This volume, page 60.

land. In fact, when it comes to a careful analysis of the situation, the objection which is raised by Mexico on this behalf seems absolutely to disappear, for if it were otherwise, when would there be an end to litigation? Suppose the position taken by Mexico were correct; suppose that it might be said that the dispositif of the judgment is the only thing to be looked at, and in that dispositif you must only look at the one fact that the defendant has been compelled to pay a certain sum without having the liberty of analysing that statement into its respective and necessary parts, the parts which come together to form the whole; let us therefore imagine for a moment the position in which Mexico might be placed. It calls for the exercise of imagination, as I think must be conceded. We obtained, let us say, under the former arbitral convention, an award against Mexico for $904,000. According to Mexico's contention, nothing is settled by the dispositif except that single fact. Well and good. Well and good. The United States on a subsequent occasion, or the bishops under whatever form of pleading may be. appropriate under the circumstances, bring a suit for one of the instalments embraced in that twenty-one years. If the doctrine of Mexico be correct, why might they not do it? Mexico might say, You obtained an award against us once for $904,000, and the reply of the United States, assuming Mexico's position, would be, Yes, we received an award of $904,000, but you can not plead that award, because the court has no right to analyse its parts and see what years that particular award covered. Therefore, accepting the very position of Mexico, she would be unable to plead that prior judgment as against a subsequent demand covering part of the same period made by the United States, unless the second tribunal possessed the right to inspect the whole record and to determine from that whole record whether the particular question was in point of fact presented to, discussed by, and passed upon by the preceding court; so that it seems to us that the contention of Mexico, if it be once carefully examined, can be reduced to what logically we might term an absurdity, and that I say, of course, with every respect for my friends on the other side.

While I do not care to trouble this tribunal with reading of matters already submitted to it in printed form, I may be pardoned for again inviting your attention particularly to the decisions of the Netherlands, which seem to us to be in exact accord with right reason upon this point, and we find a case before the Netherlands high court of justice in which it was advised by the procureur-général that every decision of the judge which by reason of the contentions of the parties he might and has given with regard to their rights, is included in the subject-matter of his judgment, no matter in what particular part thereof the decision might be found.

And again, in the discussion by Dr. Opzoomer:

Whatever has once passed through all the forms of a suit and is legally decided by the judge must never afterwards be subject to any doubt.

And further discussing, he says:

From what has been here discussed, it appears that as the legal bases are actually fundamental parts of the judgment of the judge, they should be entirely independent of the place in which they appear in such a judgment. Whether they are found in the so-called dispositif, or whether they be anywhere else, is a matter of perfect indifference. They become authority not because of the place in which they appear, but because of the inseparable connection in which they stand to the immediate decision. Those who tear the legal basis from the decision follow the abstract method of treat