2

any portion of the public domain.' The fruits thereof may be sold, but only that part accruing during the period of occupancy. 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.4

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. '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.

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.

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," 2 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.

4 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.

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).

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.

governments as de facto, has been held binding upon its own citizens and to estop them from asserting rights based upon the de facto character of the government in question. It will be noticed hereafter (infra, p. 235) that the recognition of the belligerent character of a revolutionary movement releases the legitimate government from liability to the subjects of the recognizing power for the acts of the revolutionists.

While international commissions have held almost uniformly that only a general de facto government can involve the responsibility of the state,2 it was held in one case,3 which has been sharply criticized 4

1 Jarvis (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 150 (the Paez Government in Venezuela); Janson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2902 (the Maximilian government in Mexico); Schultz (U. S.) v. Mexico, July 4, 1868, ibid. 2973 (recognition of Juarez government by U. S. estopped claimant from asserting Miramon government as the de facto government of Mexico.

A question has been raised whether the acts of the Huerta government in Mexico are binding on Mexico, and hence upon the Carranza or other government which may ultimately be established. Huerta's government having been at least a general de facto government-it was indeed recognized as the de jure government by various European powers-its acts normally bind the nation. But the further question arises whether a declaration of the President of the United States to the effect that "he will not recognize as legal or binding anything done by Huerta since he became Dictator," i. e., subsequent to Huerta's dissolution of the Mexican Congress and the arrest of certain deputies, October 10, 1913, has any effect upon the international obligations of Mexico, or operates as an estoppel upon citizens of the U. S. to whom Huerta's government incurred obligations subsequent to October 10, 1913. As against foreign governments, it would seem that the alleged statement of the President does not alter the obligations of the Mexican nation under general principles of international law. As regards citizens of the U. S., it is very doubtful whether Mexico can avail itself of any such declaration to escape obligations properly incurred and due by the nation or its authorities under recognized principles. On Mexican loans, see note by Thomas Baty in 39 Law Mag. & Rev. (1914), 470.

2 Day and Garrison (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3548, 3553 (dictum); Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 889.

The acts of local de facto government were held not to bind the state in Georgiana and Lizzie Thompson (U. S.) v. Peru (supra), and in the Don Miguel loan.

Again, e. g., Mexico was held not responsible for the acts of the Maximilian government: Janson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2902; Stückle, ibid. 2935; Baxter, ibid. 2934. Nor for those of the Zuloaga and Miramon governments: Cucullu, ibid. 2873; McKenny, ibid. 2881 and cases cited p. 2885. Nor U. S. for acts of the Confederate states, Prats (Mexico) v. U. S., ibid. 2886.

'Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 2859-2866, where the 'Lapradelle and Politis, Recueil des arbitrages, I, 466–467.

that the state was responsible for the wrongful acts of a local de facto government.

wrongful acts of a "junta" established for six months in a state of Mexico were held to render Mexico responsible.

See also Central and South American Telegraph Co. (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2938, 2942 (where a local de facto government was held entitled to take advantage of a concession permitting the "government" to suspend a cable service).

CHAPTER V

INTERNATIONAL RESPONSIBILITY OF THE STATE-Continued. ACTS OF INDIVIDUALS

86. Obligations of the Government.

Private individuals are in no sense authorities of the state. For this reason, their acts do not involve the international responsibility of the state unless the latter by some independent delinquency of its own may be charged with a violation of its international obligations. The first of these obligations in so far as it affects the present subject is to furnish legislative, administrative and judicial machinery which normally would protect the alien against injuries to his person or property by private individuals.1 This does not mean that the governmental machinery of the state must be so efficient as to prevent all injury to aliens for this would make of the state a guarantor of the security of aliens but simply that its legislation, its police, and its courts, whatever the form of government, must be so organized that a violent act by one private individual upon another is only a fortuitous event and that the judicial channels for legal recourse against the wrongdoer are freely open. A second and subsidiary duty, a default in which has often served to fasten responsibility upon the state, is the use of due diligence to prevent the injury, and in a criminal case the exertion of all reasonable efforts to bring the offenders to justice.2

1 Grotius, II, ch. 21, § 2; Vattel, liv. II, ch. VI, §§ 71-73; Hall, 215-218; Oppenheim, I, 221; Phillimore, I, 218; Halleck, ch. XIII, § 6; Moore's Dig. VI, §§ 10191021; Calvo, § 1271; Pradier-Fodéré, § 202; Fiore, §§ 669-673; Anzilotti in 13 R. G. D. I. P. (1906), 14, 298; 27 Law Mag. and Rev. (1901), 337; Pradier-Fodéré's statement (I, 336) that the state is responsible "if it refuses to repair the damage caused by one of its subjects" is inaccurate. A useful contribution to the subject is made by Georg Muszack, Ueber die Haftung einer Regierung für Schäden, welche Ausländer... gelitten haben, Strassburg, 1905, p. 37 et seq, and by R. E. Curtis, The law of hostile military expeditions, reprinted from 8 A. J. I. L. (1914), 1–37, 224-255.

* The apprehension and punishment of the offender has been held to release the government from liability on several occasions: Duvall claim v. Mexico, Mr. Gresham,