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De Facto

government, authority, jure, secretary, exercise, actual and office

DE FACTO. The word de facto means 'actual, in fact, based on fact," in contradis tinction to de jure, which means abased on law, by right, by lawful. title? A de facto govern ment is always a usurpation and may be said to exist when the usurping government has ex pelled the regularly constituted authorities from their customary seats and functions and has established itself in their place, so becom ing the actual government of a country. Such was the government of England under the Commonwealth. Such government continues to be a usurpation as long as it is in power or until legalized by the recognition of the de partment entrusted with the authority to recog nize the existence of a state; but the authority claimed for a de facto government must be ef fective and actually in operation before it may assume the de facto character. The United States Supreme Court has said: °Who is the sovereign de jure or de facto of a territory is not a judicial but a political question the de termination of which by the legislative and ex ecutive departments of any government con clusively binds the judges, as well as other of ficers, citizens and subjects of that government. This principle has always been upheld by this court and has been affirmed under a great vari ety of circumstances. It is equally well settled in England .° The Confederacy of 1861-65 in the United States was a de facto government and its actual exercise of authority over a given territory gained for it a certain amount of for eign recognition (see SECESSION; CONFEDERATE STATES OF AMERICA; UNITED STATES - SECES sung, etc.), but in point of law, since the Con federates did not gain independence and could not establish a government de jure, the usur pation remained illegal to the end. On the other hand, the Continental Congress exercised de facto authority which became de jure when Great Britain recognized the independence of the colonies. Thus their success gained for the colonies legal sanction of their usurping acts. A government may be de facto also when by paramount force it maintains itself by military power despite the regularly constituted authori ties and is able to compel the obedience of pri vate citizens. A de facto authority may usurp

and exercise the authority of any public office, legislative, executive or judicial, but the mere usurpation of the office does not constitute the usurper a de facto officer unless he actually ex ercises the functions of the office. Thus when President Johnson removed Secretary of War Stanton (q.v.) on 21 Feb. 1868 and appointed Lorenzo Thomas Secretary ad interim, Stan ton's refusal either to resign, to relinquish the office, or to allow another to exercise the func tions of Secretary really constituted him a usurper in spite of the Tenure-of-Office Act (partially repealed in 1869 and wholly in 1887), and his actual exercise of authority, backed by Congress, made him the de facto Secretary. The failure of Congress to sustain Stanton by removingJohnson prevented Stanton again becoming Secretary dejure which he had been prior to his removal by (Consult Dun ning, William A., (Reconstruction, Political and Economic,' pp. 90-92, 99-108, New York 1907). Acts performed under the authority of a de facto government are valid if such govern ment by legal process subsequently become the government de jure, and certain acts of a de facto government which does not become de jure may be valid, e.g., if the regular taxes for administrativeurposes he paid by a private citizen to the facto authorities, he may not be forced to pay such taxes a second time. As far as other nations are concerned such a gov ernment is treated as in most respects possess ing rightful authority; its contracts and trea ties are usually enforced; its acquisitions are retained; its legislation is in general recog nized; and the rights acquired under it are, with few exceptions, respected after the res toration of the authorities which were expelled (96 U. S. 176, 185-86). For decisions consult Thorington v. Smith, 8 Wallace 1; Williams v. Bruffy, 96 U. S. Sup. Ct. 176; Jones v. U. S., 137 U. S. 202. See GOVERNMENT; STATE; IN TERNATIONAL LAW.