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ceded by the treaty. It was advised that no other parcels than those defined could be substituted for them.

2 Op. 563, Taney, 1833.

6. THE HOLY SEE.

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The Pope, though deprived of the territorial dominion which he formerly enjoyed, holds, as sovereign pontiff and head of the Roman Catholic Church, an exceptional position. Though, in default of territory, he is not a temporal sovereign, he is in many respects treated as such. He has the right of active and passive legation, and his envoys of the first class, his apostolic nuncios, are specially privileged. Nevertheless he does not make war, and the conventions which he concludes with states are not called treaties, but concordats. His relations with the Kingdom of Italy are governed, unilaterally, by the Italian law of May 13, 1871, called "the law of guarantees," against which Pius IX and Leo XIII have not ceased to protest.

Rivier, Principes du Droit des Gens, I. 120–123.

"Your dispatch No. 379, on the subject of the reception of the Papal nuncio and your visit to him, has been read with much interest.

"While the probabilities seem to be almost entirely against the possibility of the restoration of any temporal power to the Pope, he is still recognized as a sovereign by many of the powers of the world, which receive from him diplomatic representatives in the person of either a nuncio or a legate, or possibly in some other capacity, and which powers also accredit to him certain diplomatic representatives.

"With all such arrangements this Government abstains from interference or criticism. It is the right of those powers to determine such questions for themselves; and when one of them, at whose court this Government has a representative, receives a representative from the Pope of higher rank than that of the representative of the United States, it becomes the duty of the latter to observe toward the Pope's representative the same courtesies and formality of the first visit, prescribed by the conventional rules of intercourse and ceremonial, and of the precedence of diplomatic agents, which have been adopted and almost invariably acted upon for the last sixty years.

"In the case which forms the subject of your very interesting dispatch you pursued the course which alone would have been expected from one of your accustomed prudence and of your experience and familiarity with the proprieties of such occasions."

Mr. Fish, Sec. of State, to Mr. Cushing, Minister to Spain, June 4, 1875, For.
Rel. 1875, p. 1119.

See, as to the withdrawal of the exequaturs of consuls of the Pontifical States,
circular of Mr. Evarts, Sec. of State, to diplomatic officers, April 3, 1877.
The exequaturs of Papal consuls in the United States had not then been
formally withdrawn.

"I have to acknowledge your letter of the 23d instant, inquiring, by a series of interrogatories (twelve in number), whether it is compatible with his official duty for the United States minister to Italy to present to His Holiness the Pope and Cardinal Simeoni a memorial from the creditors of Archbishop Purcell and transmit the reply thereto, or whether the minister can be instructed by this Department to do so personally or through an agent.

"To these questions I reply: This Government, when seeking redress for citizens of the United States from residents in Italy, is limited to diplomatic appeals to the King of Italy, either through its minister at Rome or His Majesty's minister at Washington. It can not address the Pope personally, and a minister to a foreign country can only communicate officially with persons living under its sovereignty through the channels of customary international intercourse.

"It is not consistent with the public service for one of our foreign ministers to press on the tribunals, ecclesiastical or lay, of the Government to which he is accredited, the collection of private debts. The foreign minister, in seeking redress under his Government's instructions for injuries to his country or its citizens, must alone address the sovereign to whom he is accredited; and what the minister can not be instructed to do officially he can not be authorized to do in his private capacity, either personally or through an agent."

Mr. Bayard, Sec. of State, to Mr. Dwyer, Nov. 7, 1887, For. Rel. 1887, 642; copy transmitted on the same day to Mr. Stallo, United States minister to Italy, for his information, id. 641.

IV. THE STATE AND ITS GOVERNMENT.

1. DISTINCTION BETWEEN STATE AND GOVERNMENT.

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Although, in speaking of the state, we commonly think of the organization called the government, yet the two ideas are separable. While it is true that a new state is not recognized till a government has been established in it capable of performing international obligations, yet it is also true that, after such recognition has once been given, the state may continue to exist, and its existence may continue to be acknowledged, even though the government may have been overthrown by an alien invader or destroyed by domestic factions, so that for the time being there is no organization that can be treated as the repository of the national power. Of these distinctions ample illustrations will be found in the next chapter, under the title "Recognition."

Classification and
Powers.

2. DE FACTO GOVERNMENTS.

(1) DIFFERENT KINDS.

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"There are several degrees of what is called de facto government.

"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. S. 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."

"When a colony is in revolt, and before its independence has been acknowledged by the parent country, the colonial territory belongs, in the sense of revolutionary right, to

Insurrection and

revolt. 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,
XVII. 11, 12.

"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.

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