2. DE FACTO GOVERNMENTS. (1) DIFFERENT KINDS. § 20. Classification and "There are several degrees of what is called de facto government. Powers. "Such a government, in its highest sense, assumes a character very closely resembling that of a lawful government. This is when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country. The distinguishing characteristic of such a government is, that adherents to it in war against the government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the government de jure when restored. "Examples of this description of government de facto are found in English history. The statute II. Henry VII., c. 1 (2 British Stat. at Large, 82), relieves from penalties for treason all persons who, in defence of the King, for the time being, wage war against those who endeavor to subvert his authority by force of arms, though warranted in so doing by the lawful monarch. (4 Comm. 77.) "But this is where the usurper obtains actual possession of the royal authority of the kingdom; not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due to him as king de facto. "Another example may be found in the Government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector. It was not, in contemplation of law, a government de jure, but it was a government de facto in the most absolute sense. It incurred obligations and made conquests which remained the obligations and conquests of England after the restoration. The better opinion doubtless is, that acts done in obedience to this Government could not be justly regarded as treasonable, though in hostility to the King de jure. Such acts were protected from criminal prosecution by the spirit, if not by the letter, of the statute of Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason (6 State Trials, 119), in the year following the restoration. But such a judgment in such a time has little authority. * "But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguish ing characteristics are (1), that its existence is maintained by active military power within the territories, and against the rightful authority * * of an established and lawful government; and (2), that while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force. 1812. * * "One example of this sort of government is found in the case of Castine, in Maine, reduced to British possession during the war of [United States v. Rice, 4 Wheaton, 253.] A like example is found in the case of Tampico, occupied during the war with Mexico by the troops of the United States. * [Fleming v. Page, 9 Howard, 614.] These were cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was part." Thorington v. Smith (1868), 8 Wall. 1, 8-10. * * Amelia Island, on the Florida coast, at the time belonging to Spain, having been seized and occupied by the United States in 1817, on the ground that this was necessary to root out certain buccaneers who were there congregated, it was maintained that the possession of the United States could be contested only by Spain, and that the seizure by the United States, for a violation of its own law, of a vessel of a third power within the territorial waters of the island, could not be contested by such power on the ground of Spain's titular sovereignty. Mr. Gallatin, minister to France, to Baron Pasquier, French minister of foreign affairs, June 28, 1821, Gallatin's Works, II. 187. Grants of land made by a government in territory over which it exercises political jurisdiction de facto, but which does not rightfully belong to it, are invalid as against the government to which the territory rightfully belongs. When the true boundary is ascertained, or adjusted by agreement, grants made by either sovereign beyond the limits of his rightful territory, whether he had possession or not, fail for want of title in the grantor, unless confirmed by proper stipulations. Coffee v. Groover (1887), 123 U. §. 1. While the court announced and enforced in this case the rule above stated, it made the following observation, obiter: "This is the general rule. Circumstances may possibly exist which would make valid the grants of a government de facto; as, for example, where they contravene no other rights. Grants of public domain made by Napoleon as sovereign de facto of France, may have had a more solid basis of legality than similar grants made by him as sovereign de facto of a Prussian province, derogatory to the rights of the Government and King of Prussia." revolt. "When a colony is in revolt, and before its independence has been acknowledged by the parent country, the colonial terInsurrection and ritory belongs, in the sense of revolutionary right, to the former, and in that of legitimacy, to the latter. It would be monstrous to contend that in such a contingency the colonial territory is to be treated as derelict, and subject to voluntary acquisition by any third nation. That idea is abhorrent to all the notions of right which constitute the international code of Europe and America. "And yet the assumption that, pending a war of colonial revolution, all territorial rights of both parties to the war become extinguished and the colonial territory is open to seizure by anybody, is the foundation of most of the disputed pretensions of Great Britain in Central America.” Mr. Marcy, Sec. of State, to Mr. Dallas, July 26, 1856, MS. Instr. Great Britain, "It is the duty of foreigners to avoid all interference under such circumstances [in cases of civil war], and to submit to the power which exercises jurisdiction over the places where they resort, and, while thus acting, they have a right to claim protection, and also to be exempted from all vexatious interruption, when the ascendancy of the parties is temporarily changed by the events of the contest. Undoubtedly the considerations you urge respecting the true character of an armed opposition to a government are entitled to much weight. There may be local insurrections, armed opposition to the laws, which carry with them none of the just consequences recognized by the law of nations as growing out of a state of civil war. No fixed principle can be established upon this subject, because much depends upon existing circumstances. Cases, as they arise, must be determined by the facts which they present; and the avowed objects of the parties, their relative strength, the progress they respectively make, and the extent of the movement, as well as other circumstances, must be taken into view. "While contending parties are carrying on a civil war those portions of the country in the possession of either of them become subject to its jurisdiction, and the persons residing there owe to it temporary obedience. But when such possession is changed by the events of the war and the other party expels its opponents, the occupation it acquires carries with it legitimate authority, and the right to assume and exercise the functions of the government. But it carries with it no right, so far, at any rate, as foreigners are concerned, to give a retroactive effect to its measures and expose them to penalties and punishments and their property to forfeiture for acts which were lawful and approved by the existing government when done." Mr. Cass, Sec. of State, to Mr. Osma, Peruvian minister, May 22, 1858, S. Ex. Doc. 69, 35 Cong. 1 sess. 17. See also Br. and For. State Papers, XXXI. 1097 et seq. Mr. Cass's note was based on an opinion of Attorney-General Black, May 15, 1858, 9 Op. 140. An opinion of Mr. Reverdy Johnson, as counsel, controverting some of Attorney-General Black's positions, is printed in S. Ex. Doc. 25, 35 Cong. 2 sess. The note of Mr. Cass and the opinions just cited relate to the cases of the Georgiana and Lizzie Thompson, a full history of which is given in Moore, Int. Arbitrations, II., chap. xxxvi.,.1593–1614. These cases are referred to in Lawrence's Wheaton (1863), 575, where it is stated that Mr. Cass maintained that "the citizens or subjects of a foreign nation may carry on commerce with the portions of a country in the hands of either of the parties to a civil war, and without awaiting any action on the part of their own government" toward the recognition of the insurgents. Mr. Cass, however, on the authority of Attorney-General Black, went, in the particular cases in question, somewhat further than this, and claimed for those in temporary de facto control an absolute right to dispose of the public property of the nation. This claim was not ultimately sustained by the United States, and the cases were dropped (Moore, Int. Arbitrations, II. 1612). It is probable that this result should be understood to affect not the general propositions stated by Mr. Cass when applied to ordinary commercial intercourse, but rather the broad interpretation sought to be given to them in ascribing to insurgents, who were afterwards defeated and dispersed, the same powers within the territory temporarily controlled by them as belonged to the permanent government. De facto governments "are of two kinds. One of them is such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation. *** The other kind of de facto governments * * * is such as exists where a portion of the inhabitants of a country have separated themselves from the parent state and established an independent government. The validity of its acts, both against the parent state and its citizens or subjects, depends entirely upon its ultimate success. If it fails to establish itself permanently, all such acts perish with it. If it succeed, and become recognized, its acts from the commencement of its existence are upheld as those of an independent nation. Such was the case of the State governments under the old confederation on their separation from the British Crown. Having made good their declaration of independence, everything they did from that date was as valid as if their independence had been at once acknowledged. Confiscations, therefore, of enemy's property made by them were sustained as if made by an independent nation. But if they had failed in securing their independence and the authority of the King had been reestablished in this country, no one would contend that their acts against him, or his loyal subjects, could have been upheld as resting upon any legal foundation. "No case has been cited in argument, and we think none can be found, in which the acts of a portion of a state unsuccessfully attempting to establish a separate revolutionary government have been sustained as a matter of legal right. As justly observed by the late Chief Justice in Shortridge & Co. v. Macon, decided in the circuit, and, in all material respects, like the one at bar, 'Those who engage in rebellion must consider the consequences. If they succeed, rebellion becomes revolution, and the new government will justify its founders. If they fail, all their acts hostile to the rightful government are violations of law, and originate no rights which can be recog nized by the courts of the nation whose authority and existence have been alike assailed.' Chase's Decisions, 136." Williams v. Bruffy (1877), 96 U. S. 176, 185–186. ernment: Castine. (2) MILITARY OCCUPATION. § 21. "On the first day of September, 1814, Castine was captured by the enemy, and remained in his exclusive possession, under By recognized gov- the command and control of his military and naval forces, until the ratification of the treaty of peace in February, 1815. During this period the British Government exercised all civil and military authority over the place, and established a custom-house and admitted goods to be imported, according to regulations prescribed by itself, and, among others, admitted the goods upon which duties are now demanded. These goods remained at Castine until after it was evacuated by the enemy, and upon the reestablishment of the American Government the collector of the customs, claiming a right to American duties on the goods, took the bond in question from the defendant for the security of them. * * "Under these circumstances, we are of opinion that the claim for duties can not be sustained. By the conquest and military occupation of Castine the sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. Castine was, there * * * fore, during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subject to such duties only as the British Government chose to require. Such goods were, in no correct sense, imported into the United States. The subsequent evacuation by the enemy, and resumption of authority by the United States, did not, and could not, change the character of the previous transactions." Mr. Justice Story, delivering the opinion of the court, United States v. Rice (1819), 4 Wheaton, 246. Mr. Justice Story had previously held, on circuit, that Castine, while occupied by the British, was a "foreign port" in respect of the nonimportation acts. (United States v. Hayward (1815), 2 Gallison, 485.) |