De Facto

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De Facto

Post by notmartha »

Governmental officers we encounter today are acting de facto. They do not have any lawful authority, but are cloaked with power by consent and/or assent through the agreements made with them or the functions they are asked to perform. Without consent or assent, they are simply acting rogue.

KJV References

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Webster’s 1828

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Bouvier’s Dictionary of Law, 1856:
DE FACTO, i. e. in deed. A term used to denote a thing actually done; a president of the United States de facto is one in the exercise of the executive power, and is distinguished from one, who being legally entitled to such power is ejected from it; the latter would be a president de jure. An officer de facto is frequently considered as an officer de jure, and his official acts are of equal validity. 10 S. & R. 250; 4 Binn. R. 371; 11 S. & R. 411, 414; Coxe, 318; 9 Mass. 231; 10 Mass. 290; 15 Mass. 180; 5 Pick. 487.

FACTO. In fact, in contradistinction to the lawfulness of the thing; it is applied to anything actually done. Vide Expostfacto.
Blacks’ Law Dictionary, 1st Edition, 1891
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Blacks’ Law Dictionary, 2nd Edition
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Blacks’ Law Dictionary, 5th Edition, 1979
De facto
In fact, in deed, actually. This phrase is used to characterize an officer, a government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate. Thus, an office, position or status existing under a claim or color of right such as a de facto corporation. In this sense it is the contrary to de jure, which means rightful, legitimate, just, or constitutional. Thus, an officer, king, or government de facto is one who is in actual possession of the office or supreme power, but by usurpation, or without lawful title; while an officer, king, or governor de jure is one who has just claim and rightful title to the office or power, but has never had plenary possession of it, or is not in actual possession. MacLeod v. United States

De facto government
One that maintains itself by a display of force against the will of the rightful legal government and is successful, at least temporarily, in overturning the institutions of the rightful legal government by setting up its own in lieu thereof. Wortham v.Walker

De facto judge
A judge who functions under color of authority but whose authority is defective in some procedural form. Riley v. Bradley

De facto officer
One who, while in actual possession of the office, is not holding such in a manner prescribed by law. Trost v. Tynatishon

Government de facto
A government of fact. A government actually exercising power and control, as opposed to the true and lawful government; a government not established according to the constitution of the nation, or not lawfully entitled to recognition or supremacy, but which has nevertheless supplanted or displaced the government de jure. A government deemed unlawful, or deemed wrongful or unjust, which, nevertheless, receives presently habitual obedience from the bulk of the community.

There are several degrees of what is called “de facto government.’ Such a government, in its highest degree, 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. Such a government might be more aptly denominated a “government of paramount force,” being maintained by active military power against the rightful authority of an established and lawful government; and obeyed in civil matters by private citizens. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less by military force. Thorington v. Smith
Blacks’ Law Dictionary, 7th Edition, 1999
De facto, adj. [Law Latin “in point of fact”]
1. Actual; existing in fact; having effect even though not formally or legally recognized <a de facto contract>
2. Illegitimate but in effect <a de facto government>.

De facto government
1. A government that has taken over the regular government and exercises sovereignty over a nation.
2. An independent government established and exercised by a group of a country’s inhabitants who have separated themselves from the parent state.

Wex Law Dictionary
De Facto Law
A typical practice that is not specifically enumerated by law

De Facto
An action taken without strict legal authority to do so, but recognized as legally valid nonetheless.
Miscellaneous Court Cases

Norton v. Shelby County
"There is no principle of law under which a de facto court can be sustained.”

The de facto officer doctrine—which confers validity upon acts performed under the color of official title even though it is later discovered that the legality of the actor's appointment or election to office is deficient—cannot be invoked to authorize the actions of the judges in question. Those cases in which this Court relied upon the doctrine in deciding criminal defendants' challenges to the authority of a judge who participated in the proceedings leading to their conviction and sentence, see, e.g., Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377, are distinguishable here because, inter alia, petitioner's claim is that there has been a trespass upon the constitutional power of appointment, not merely a misapplication of a statute providing for the assignment of already appointed judges. One who makes a timely challenge to the constitutionality of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred. Cf. Glidden Co. v. Zdanok, 370 U.S. 530, 536, 82 S.Ct. 1459, 1465, 8 L.Ed.2d 671. Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments. Buckley v. Valeo and Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704, which Buckley cited as authority, were civil cases that did not explicitly rely on the de facto officer doctrine in validating the past acts of public officials against constitutional challenges, and this Court is not inclined to extend those cases beyond their facts.
STUMP V. SPARKMAN, 435 U. S. 349 –
de facto officer cloaked with power he doesn’t have if thought he can perform a function

The de facto officer doctrine is not to the contrary. That doctrine “prevent[s] litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware.” Glidden Co. v. Zdanok , 370 U. S. 530, 535 (1962) (plurality opinion). Examples of such “technicalities” are defects in the judge’s appointment or designation. See, e.g. , Ex parte Ward, 173 U. S. 452, 456 (1899) (judge improperly appointed during a Senate recess); Wright v. United States, 158 U. S. 232, 238 (1895) (deputy marshal whose oath of office had not been properly administered); McDowell v. United States, 159 U. S. 596, 601–602 (1895) (judge whose designation to sit in a different district may have been improper under the statute); Ball v. United States, 140 U. S. 118, 128–129 (1891) (judge sitting in place of a deceased judge where designation permitted only the substitution for a disabled judge). The doctrine is, however, inapplicable “when the alleged defect of authority operates also as a limitation on this Court’s appellate jurisdiction. Ayrshire Collieries Corp . v. United States , 331 U. S. 132 (three-judge court); United States v. Emholt , 105 U. S. 414 (certificate of divided opinion).” Glidden , 370 U. S., at 535 (plurality opinion). Additionally, “when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, this Court has treated the alleged defect as ‘jurisdictional’ and agreed to consider it on direct review even though not raised at the earliest practicable opportunity.” Id ., at 535–536. This is the case here—§636(c) “embodies a strong policy” of ensuring that litigants waive their rights to an Article III judge knowingly and voluntarily. The requirement of consent is not a mere “technicality.” Sections 636(c)(1), 636(c)(2), and 636(c)(3) reference consent explicitly and require it as a precondition for the exercise of a magistrate judge’s authority and of a court of appeals’ review of the magistrate judge’s judgment. The foregoing indicates the importance of consent as a touchstone of this statutory scheme. Thus, absence of consent is a jurisdictional defect and a court of appeals must raise such defects sua sponte .
Glidden Co. v. Zdanok
No challenge to the authority of the judges was filed in the course of the proceedings before them in either case. The Solicitor General, who submitted briefs and arguments for the United States, has seized upon this circumstance to suggest that the petitioners should be precluded by the so-called de facto doctrine from questioning the validity of these designations for the first time on appeal.
Whatever may be the rule when a judge's authority is challenged at the earliest practicable moment, as it was in United States v. American-Foreign S.S. Corp., 363 U.S. 685, in other circumstances involving judicial authority, this Court has described it as well settled that, where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto, and binding upon the public.
Miscellaneous Maxims
De jure judices, de facto juratores, respondent.
The judges answer to the law, the jury to the facts.
Nomen non sufficit si res non sit de jure aut de facto.
A name does not suffice if there be not a thing by law or by fact.
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Re: De Facto

Post by notmartha »

Mike Culbert, in the Richmond, California, 27 June 1974 issue of Independent-Gazette said:
"There is a de facto “secret government” operating nationally and internationally and involved in the highest circles of the U.S. government, exercising an impact over domestic policies and economics ranging between extreme influence to, at times, outright control. This extreme influence to outright control naturally includes the Presidency. The de facto "secret government," much of whose intellectual -- and financial -- muscle are to be found in the New York office of the CFR, the great tax-free foundations, and certain international firms and corporations."
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