what extent the acts of such a provisional government are binding upon the nation.1

It is necessary first to distinguish between the powers of a de facto government which has displaced the de jure government within the whole or practically the whole nation, as, e. g., the government of Cromwell, of Napoleon I, and of the Republic of 1848 in France, and a de facto government which controls only a limited portion of the national territory, as the Confederate government did in the United States. The former may be called a "general" de facto government, which resembles closely a lawful government, and the latter, a "local" de facto government or government of paramount force. The legal consequences of this distinction are important.2

A general government de facto, having completely taken the place of the regularly constituted authorities in the state, binds the nation. So far as its international obligations are concerned, it represents the state. It succeeds to the debts of the regular government it has displaced, and transmits its own obligations to succeeding titular governments. Its loans and contracts bind the state, and the state is responsible for the governmental acts of the de facto authorities. In general, its treaties are valid obligations of the state. It may alienate the national territory, and the judgments of its courts are admitted to be effective after its authority has ceased. An exception to these rules has occasionally been noted in the practice of some of the states of Latin-America, which declare null and void the acts of a usurping

1 Rougier, A., Les guerres civiles et le droit des gens, Paris, 1903, 481 et seq.; Wiesse, C., Le droit international appliqué aux guerres civiles, Lausanne, 1898, 235 et seq. If the de jure successor of such a de facto government is the government the latter has itself displaced, it is then known as the "intermediary" government. See also Moore's Dig. I, 41 et seq.; Ralston, International arbitral law, §§ 430, 448-456; and Gaudu, Raymond, Essai sur la legitimité des gouvernements dans ses rapports avec les gouvernements de fait, Paris, 1914.

2 Williams v. Bruffy, 96 U. S. 176, 186; Thorington v. Smith, 8 Wall. 1, 8–10. The Neapolitan Indemnity Oct. 14, 1832, Moore's Arb. 4575-4589. (Two Sicilies admitted liability for acts of Murat's government.) Treaty of July 4, 1831 between U. S. and France admitted liability of France for acts committed during the Empire. See Wiesse, op. cit., 246; Miller (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2974; Republic of Peru v. Dreyfus, L. R. 38 Chancery Div. 348, and particularly decision of Franco-Chilean Tribunal of Arbitration in Lausanne, 1901, in claim of Dreyfus Bros, Descamps and Renault, Rec int., etc., 1901, 396-398.

de facto intermediary government when the regular government it has displaced succeeds in restoring its control. Nevertheless, acts validly undertaken in the name of the state and having an international character cannot lightly be repudiated, and foreign governments generally insist on their binding force. The legality or constitutional legitimacy of a de facto government is without importance internationally so far as the matter of representing the state is concerned.3

The responsibility of the state for the acts of a local de facto government involves more delicate questions. Such a local government de facto may be maintained by military force within a portion of a larger territory, either as an enemy making war against the invaded nationa military occupant or as a revolutionary organization resisting the authority of the legitimate government or of other factions contending for national control. The power of such a de facto government to involve the responsibility of the state depends largely upon its ultimate success, so that most of its international acts, e. g., treaties, etc., are affected with a suspensive condition. Nevertheless, even if it fails, definite executed results follow from its merely temporary possession of administrative control within a defined area. These may be considered briefly.

A temporary occupant or local de facto government carries on the functions of government, supported usually directly or indirectly by military force. It may appoint all necessary officers and designate their powers, may prescribe the revenues to be paid and collect them,

1

Wiesse, op. cit., 244 et seq. We cannot enter into any detailed discussion of the various kinds of governmental acts which survive the downfall of a usurping de facto government. This is largely a question of constitutional law. Pradier-Fodéré, I, § 134.

2 Thus Peru, notwithstanding art. 10 of its Constitution and its law of 1886, declaring void the acts of the usurper Pierola, was held liable on contracts which he had made. Dreyfus (France) v. Chile, July 23, 1892 (award July 5, 1901), Descamps and Renault, Rec. int., etc. 1901, 396-398.

Bluntschli, §§ 44, 45, 120; Holtzendorff, II, § 21; Pradier-Fodéré, §§ 134, 149; Rivier, II, 131, 440; Rougier, 481; Dreyfus (France) v. Chile, Franco-Chilean Arbitration, Lausanne, p. 290, and authorities there cited, and Gaudu, op. cit.

'Moore's Dig. I, 45 et seq.; VII, 257 et seq.; 2 Op. Atty. Gen. 321; 9 ibid. 140; Magoon's Reports, 11 et seq.; Hall, part 3, chap. IV; Oppenheim, 204 et seq.; Bordwell, P., Law of war, Chicago, 1908, ch. VIII and IX; Spaight, J. M., War rights on land, London, 1911, ch. XI and XII.

and may administer justice.1 Foreigners must perforce submit to the power which thus exercises jurisdiction, and a subsequent de jure government cannot expose them to penalties for acts which were lawful and enforced by the de facto government when done. The temporary de facto government may legislate on all matters of local concern, and in so far as such legislation is not hostile to the subsequent de jure government which displaces it, its laws will be upheld.2 A military occupant as a general rule is forbidden to vary or suspend laws affecting property and private personal relations or which regulate the moral order of the community. If he does, his acts in so doing cease to have legal effect when the occupation ceases. Political and administrative laws are subject to suspension or modification in case of necessity.3

4

The collection of taxes and customs duties within the territory and during the period of occupancy or of the local de facto government relieves merchants and taxpayers from the obligation of a subsequent second payment, upon the same goods, to the succeeding de jure government. Such a temporary government may levy contributions on the inhabitants for the purposes of carrying on the war, but they must not savor of confiscation. It may seize property belonging to the state and may use it. It may receive money due the state and give receipts in the name of the state. This applies only to debts payable within the territory and period of occupancy.

6

Debts due by the state cannot be confiscated or the interest sequestrated by a temporary occupant, and private property must be respected. The occupant or local de facto government cannot alienate 1 The German legislation for the occupied territories of Belgium has been collected and edited by C. H. Huberich and A. Nicol-Speyer. The Hague, Nyhoff, 1915. 108 p.

2 Bruffy v. Williams, 96 U. S. 176, 185; U. S. v. Home Ins. Co., 22 Wall. 99; Sprott v. U. S., 20 Wall. 459, 464. But the de jure government which ousts a usurping de facto government (e. g., the Confederates) may disregard all its acts which contributed to its support, except that it cannot collect taxes and duties a second time. 3 Hall, 475-476.

1 U. S. v. Rice, 4 Wheaton, 246; Mazatlan and Bluefields cases, Moore's Dig. I, 49 et seq.; Cases in U. S. Civil War and in Colombia, ibid. VI, 995-996. Message of the President, For. Rel. 1900, xxiv; MacLeod v. U. S. (1913), 229 U. S. 416, 429. Magoon's Reports, 261, citing Phillimore and Halleck.

6 Moore's Dig. VII, 306 and authorities cited in note, p. 308.

any portion of the public domain.' The fruits thereof may be sold, but only that part accruing during the period of occupancy.2 A local de facto government may become the owner of movables, which it may sell and hypothecate. A succeeding government takes such mortgaged property as rightful owner, subject to the liens thus created in good faith. As a general rule, however, a succeeding de jure government is not liable for debts contracted by a displaced local de facto government.1

3

A person dealing with a local de facto government assumes the risk of his enterprise. The de facto government may issue paper money, and private contracts stipulating for payment in such money will be enforced in the courts of the succeeding de jure government.5 Under compulsion, a government has at times admitted liability for the wrongful acts of previous local de facto governments.

Having in a general way described the differences between a general and a local de facto government and their power to transmit responsibility, it is now necessary to examine the criteria of a de facto government, and the legal results of one of them in particular, namely, recognition by the claimant's own government.

1 Coffee v. Groover, 123 U. S. 1; Georgiana and Lizzie Thompson (U. S.) v. Peru, Moore's Arb. 1595, 4785; Munford v. Wardwell, 6 Wall. 423, 425.

2 Georgiana and Lizzie Thompson claim (U. S.) v. Peru, supra. Art. 55 of the Hague Regulations provides that a military occupant shall be regarded as the administrator and usufructuary of the public buildings of the state. See Maccas, Salonique occupée et administrée par les Grecs, 20 D. I. R. G. P. (1913), 207–242.

3 U. S. v. Prioleau (1865), 35 Law Jour. Chancery Rep. N. S., 7; U. S. v. McRae (1869), L. R. 8 Equity, 69; Hallett v. The King of Spain, 1 Dow and Cl. 169; The King of the Two Sicilies v. Wilcox, 1 Sim N. S. 332. But see Barrett (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 153, Moore's Arb. 2900, where it was held that Confederate cotton, seized by the U. S., was not subject to a lien created by contract between claimant and the Confederate states.

Don Miguel loan of 1832 was not binding on Portugal. Rougier, 523.

5 Thorington v. Smith (1868), 8 Wall. 1, 9 (contract made on a sale of property, and not in aid of the rebellion); Hanauer v. Woodruff, 15 Wall. 439, 448. As to the general effect of the acts of the Confederate government, see Baldy v. Hunter, 171 U. S. 388, 400.

6

* E. g., Lord J. Russell made his recognition of the Juarez government in Mexico conditional upon the admission of responsibility for the acts of the Miramon and Zuloaga governments. Lord J. Russell to Sir C. Wyke, March 30, 1861, 52 St. Pap. 237, Moore's Arb. 2906.

§ 85. Criteria of De Facto Government. Effect of Recognition.

The existence of a de facto government is a question of fact. Tests in establishment of this fact are the possession of supreme power in the district or country over which its jurisdiction extends,' the acknowledgment of its authority by the people or the bulk of them by their rendering it habitual obedience "from fear or favor," and finally the recognition of the government as de facto by foreign governments.3 While each of these tests is persuasive, none of them alone is conclusive, except as recognition or failure to recognize by the claimant's own state may operate as an estoppel.

5

In municipal courts, recognition in fact by the political department of the government is essential to judicial notice of the de facto character of a foreign provisional government. In one case at least, it has been held that such act or failure to act by the government was not binding on an international tribunal. The burden of proving that a particular government is a government de facto rendering the nation responsible falls upon the claimant. It has been held in several cases that recognition, while important as evidence, does not create a de facto government, nor is such recognition conclusive of its existence in fact. The failure of the United States, however, to recognize certain foreign

1 Mauran v. Insurance Co., 6 Wall. 1; Nesbitt v. Lushington, 4 Term. 763.

2 Opinion of Wadsworth, Commissioner in McKenny (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2882. But a local de facto government generally controls by force and not favor. See also U. S. v. Price, 4 Wheat. 253, and citations from Austin and Halleck in the case of Day and Garrison (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3553-54 and Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 899. See also Janson (sic in original) v. Mexico, July 4, 1868, Moore's Arb. 2902, 2930 and dictum by Wadsworth in Cucullu (U. S.) v. Mexico, ibid. 2877. 3 Thorington v. Smith, 8 Wall. 1, 9.

City of Berne v. Bank of England, 9 Vesey, 347; The Manilla, 1 Edw. Adm. 1; Rose v. Himely, 4 Cranch, 241; Gelston v. Hoyt, 3 Wheat. 246, 324; U. S. v. Palmer, 3 Wheat. 644.

5 Jarvis (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 150. See also Day and Garrison (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3560 (although it was considered an important element in arriving at the fact).

6 Day and Garrison (U. S.) v. Venezuela, supra.

7 Cucullu (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2873, 2877; McKenny (U. S.) v. Mexico, ibid. 2883 (recognition of Zuloaga government in Mexico by U. S. Minister and other foreign ministers held not to establish its de facto character as a fact); Jarvis (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 150.