Page:Hawkins v. Filkins 01.pdf/21

306Rh It would be strange, indeed, if more than ten millions of people, over whom the national sovereignty had been suspended, and, consequently, no claim, of obedience to any sovereign, superior power existed, could not, in any event, establish and maintain a valid de facto government. The mere statement of the proposition furnishes to it an answer; because if there is no ruling authority over them—no obligations of duty—then, surely, they are free, under the laws of nature and of God, to make laws for their own government, and to enforce obedience to them, over all persons within their territorial limits.

Thus, in the case of Hilldreth's heirs vs. McEntire's Devisee, 1 J. J. Marshall, page 208, it was held that "when government is entirely revolutionized, and all its departments usurped by force, or the voice of a majority, then prudence recommends, and necessity enforces obedience to the authority of those who may act as public functionaries, and in such a case, the acts of a de facto executive, a de facto judiciary, and of a de facto legislature, must be recognized as valid. There is no government in action, excepting the government de facto, because all the attributes of sovereignty, have, by usurpation, been transferred from those who had been legally invested with them to others, who sustained by a power above the forms of law, claim to act, and do act in their stead."

In the case of Hughes vs. Lilsey et al., recently decided in Kentucky, as reported in American Law Register, Jan. no. 1866, it is said: "The defendant, before the war, was a citizen of the state of Texas, and owed to that state a true and faithful allegiance.  Allegiance and protection are correlative duties, 4 Wheaton Reps. 254; 2 Gallison Rep. 500; Lawrence's Wheat. 600. And where the federal government, as is averred in this case, did not, and could not protect the defendant,  it surely would be unjust to exact from him the full and complete discharge of his duties to the federal government, and deny to him, especially in a state court, a defence based upon those rights,