Pass / k^ . Wi;;; :l,'fV U Ayi A >j;':^!; ff^ EXCHANGE 2tMr'05 INXRODUCXION. •■•'■ •■<^The'Il6publicans should have'tlie credit of standing for ' law 'Against revolution and anarchy." Rev. Pearse Pinch in Neiv'York Vd'ide.' '"'' ' '■■"This dry 'of revolution ' and anarchy, raised against the Vfece'rit political raovenientfor unity of action among the people, iritiBtrates"a great natiohkrheresy and error. ■ ' '■' ■ '■ N^o ihdi vidual oi- cbltfection of individuals ever believes great tVuthg through mere intellectual exercise ;■ they must experience "find -f^eT their importance before they really believe them. '''When, in tlie experience of people, great triiths aire thus realized, ■' ahd'a-'great body of' inen unite for the vindication 'of 'thes^ttiiths, ■'thkt lV6clyis the' only suitiable' agency of the' national progress •^liich' those truths al-e'tiesi'ghed toinsplM"''' Every' orgarifeation "tAltes its form"^nd chatalcter from 'the' rhoti've^ 'whicht- called' it •'iiiWbeihis:; Hnd'the cOi^tinliatioh of that' uhi on- "of men for -the •■ sate of ' the ofgaiiizat i oh ' merely ,' and 'after ' th e i'n spiTati6h ' w liich 'created' it has bfeen e'X^ended, creates dead life.'' This 'is party life. The men v(h.6-stvk''7he7hbe7'S of, arid ^6 hdorig to'^^'se 'j{aVfieb''dssifyinfb'clas?s6s;the most hum'e'i''6ufe'beicbnie the "rul- •'iiig '■'class,''' and, 'in this country- of ours ^\>he■^'e 'elates kfe" so 'loudly deriouiVded, this ruling class' blindly 'beKeves all dppdsi- 'H\6n to its = ori[jariization'to be anarchistic, revbhitionary and-sub- '•V^rsive'of good citizehiBhif)'. These person^ fear conVersiBrf "as 'they^'car 'annihilatibu: ' Every inspiring revelation 'which -"is -bbrh" to the' people" out of new experience' must '"''ehcbdhter-tincl bverebme this class opposition or 1;urn- to ashes. The •fej^'W^'fii- ating process of death and a new resurrection becomes tlic indis- pensible condition of all progress. It ia the terrible realizMtion of this destructive influences of cUu>.3es which has yearly weak- ened the numbers of independent thinkers and voters in the land. There is danger in the situation. Let the people, if we have a people, awaken to the danger Taking its occasion by the wealcness which has been super- induced by this heresy and error, the "Money Power" has this year appeared in a new role. It is not the m^th we hoped to find it out to l)e. Wt- have seen it. It haa shown itself capable of tragedy, and we have been more startled than entertained by the unexpected exhil)ition of its versatile powers. The im- portance of what has just happened at the capital of Kansas is not now generally understood, ever> at home; or if in the deep convictions of men it is comprehended, it is not yet openly dis- cussed and acknowledged There is practicallv nothing local and peculiar to Kansas i« its profound signiticadce. Forces common to the wliole counti-y have^ played their respective parts. Like conditio*!* invite the repetition of what has been demonstrated in Kansas to be capable of success under environ- ments like those which exist every where. The powers which have been unmasked, and the hidden motives which have thrown off their disguise here, are national and general. The issues v^hich crystalized on the prairies of Kansas last winter are at hand in every section of the whole country. The question was that of citizenship under the constitution. When the facts of th's struggle are fully and generally known, the influence which percipitated it will have nothing further to conceal. The policy of delay has served its purpose. Any whip-stich of emergency, the turn of any moment, may marshal else- where, as well as here, upon a larger and more effective scale, the power which last winter at Topeka drew its weapons against that sovereignty of the people which is ordained in the constitution. Just as sure as that power is not thwarted it ^inust be encountered, and the time left to prepare for either is quite short enough. It is the dignity and virtue of citizenship which is in danger of being sullied and degraded. Let the cit- izen take thought and bestir himself. ''Ye have plowed wickedness; ye have reaped iniquity; ye have eaten the fruit of lies; because thou didst trust, in thy way, in the multitude of thy mighty men. Therefore shall a tumult arise among thy people, and all thy fortresses shall be spoiled. " — Hosea. "Gird yourselves and lament, ye priests, howl, (calamitous- ly) ye ministers of the alter; come, lie all night in sackcloth, ye ministers of my God. * * Let the priests, the ministers of the Lord, weep between the porch and the alter, and let them say, Spare thy people, O Lord, nnd give not thy heritage to re- proach. * * Then will the Lord be jealous for his land, and pity his people." — Jod. CHAPTER 1. Shortly after the adjournment of the last legislature in this state, Rev. Pearse Pinch, pastor of the most wealthy and aristo- cratic church in this city, Emporia, had an article in the New- York Voice on the "Kansas Legislative muddle," written to es- tablish his declaration that "The Republicans should have the credit of standing for law against revolution and anarchy." This cheap bandiuage, by no means original with the reverend gentleman, failed to expand under his treatment to any thing more important than a mere postulate; and while 1 failed to see that he said any thing of consequence, my respect for the dig- nity of the Christian ministry, as well as the belief which I en- tertain that the subject is of overshadowmg and almost unspeak- able importance to every part of this great nation, has prompted me to write about it. I am unable to dispose of the long lesson in politics which the Kansas people have learned in the school of experience during the past few months as deftly and briefly as he did, but, if the reader will grant me a candid hearing throughout what I have to say, I will gladly submit to his judgment whether his time and patience have been adequately compensated. The Duke of Marlborough (in JVeiv Revieivi o Jan. 1892, London) says ''The squirearchy of America is the legal profes- sion." The squirearchy, of course, depends upon the aristoc- racy. But have the preachers any advantage over the lawyers? Corporation lawyers, like pastors of rich churches, are general- ly, very honest, but some of the western people have learned that, in matters of politics, they are not the safest guides for (5 those who seek and dare to know the truth. I belong to the- legal profession amd claim no credence over the reverend gentle^ man . 1 only ask that since a great Kansas preacher has been heard, an humble Kansas lawyer may be heard also. The Kansas House of Representatives is limited by the' Kansas constitution to 125 members, 63 being a quorum. In the Republican house (which included all the Democrats opposed to co-operation with the People's Party, self styled "Stalwart Democrats") there were 64 persons holding certificates. One of that 64 is, and since July last has been, a resident on an Oklahoma homestead, and attended at the session in To- peka under a "leave of absence" granted by the United States land oflScers of the territory. Four of that 64 were postmasters at the time of the elec- tion, who are declared by the constitution of Kansas to be "in- eligible to a seat in the legislature." They resigned their post- office commissions before the session commenced, and the Re- publicans decided that they thereby became eligible (electible) after they were elected. Every thing goes. One of that 64 had a majority of one returned against h:m by the election supervisors, but the county board so falsified the returns as to give him a tie, and the state returning board, under an unconstitutional statute for decidmg a tie by lot, cast the Republican in and gave him a certificate. Two of that 64 were defeated in their respective districts as those districts were defined by law; but the county boards ^ave them certificates by counting votes cast outside of the dis- tricts, upon the assumption that the district boundaries were not what they ought to be, and that the county board could correct the legislative error. In the case of another of that 64, the county clerk trans- posed the names, so as to show the man to be highest who was in fact lowest in the number of votes cast for him. In extenu- 6 ation of this case it must be admitted that the Republicans ig- nored the certificate and admitted the mart who was elected, when he agreed to stay in and vote with their house; though the other man was kept on hand for an emergency. The aduiitted man was a ''Stalwart" Democrat^ In four of the above cases, those of the untrue returns, the state canvassing hoard having refused to receive evidence or corrected returns and issued the false certiticates and ad- journed, the siiprouie court, when appealed to, had decided that because of its adjournmert the state canvassino; board was le- gally dead and could not I o reconvened and compelled to issue certiticates according to the true returns. In addition to the nine cases mentioned above, five ineliffi- bles and four holding certificates by substitution of false for true returns, the Populist house, when organized, (upon contests and evidence which had been filed in the secretary of state's of- fice while the Republicans were yet in oflice) unseated yet four other Republicans; one for buying his election by bribino- voters, two because of false counts of the ballots cast, and one because of illegal votes, and an election judge substituted Re- publican tickets for Populist tickets after they were taken out of the box and before they were counted. The evidence and facts in these cases are published in the journal, and if the con- clusions are wrong the reports furnish their own condemnation. Allen Thorndike Rice used to publish editorially in the North American Review the sickening details of the vulgar methods by which the people in certain of the Eastern states were defrauded at the ballot box. Rice has been dead several years. No reformation of those abuses has been heard of and those people seem reconciled to being defrauded. Rice as well had held his peace. When the people really do any thing for their own protection, platform, pulpit, bench and press stigma- % tize them as anarchists and revolutionists. "The priests said not Where is the Lord? and they that handle the law knew me not; the pastors also transgressed against me. * * For from the least of them even unto the greatest of them every one is given toco vetonsness; and from the prophet even unto the priest every one dealeth falsely. * * The prophets prophesy falsely, and the priests bear rule by their means; and my people love to have it so; and what will ye do in the end thereof. * * Like as ye have forsaken nie, and served strange gods in your land, so shall ye serve strangers in a land that is not yours.." — Jeremiah. American liberty is not an achievement of this generation but has come down to us as a priceless inheritance from a form- er generation, embodied mainly in our state constitutions; every principle has been carried by the issue of war, every sentiment has been wrung from the oppression of years, every sentence has cost an army, and every syllable has been written in blood. While these remain we hold the possibility of supplying every treasure that greed may strip from us. When these are gone tlie loss is irreparable. We have lost our country. In the forms of state government which have Ixjen handed down to us, our fathers have sought to pceserve tiie independ- ence of the people by preserving the three departments of gov- ernment, executive, legislative and Judicial, independent of each other; with this advantage to tlie legislative department, that (I quote from the Kansas constitution) "Each house shall be iudge of the elections, returns and qualifications of its own members." These constitutions purposely take away all stand- ing room for a mediator between the people and their repre- sentatives. They certainly deny all deciding power to a state returning board composed of a portion of the oflflcers who con- stitute the executive department; and the representatives are iudges of the "elections" which are behind the returns. The courts are no less certainly excluded. The Supreme Court of the United States says (7 How. I); "Whether the members are duly chosen or not, whether their acts are accordino- to cer- tain parliamentary rules or not, whether they were voted for by a majority or not, these and several other questions equally de- batable and difficult in their solution are political (not judicial) questions. They are too near all the great fundament(il princi- ples of government, and are too momentous ever to have been entrusted by our zealous fathers to a body of men like judo-es." They were left to the judgment, patriotism and sense of justice of the people's representatives, because, as tlie Supreme Court of Indiana says (109 Ind. 127) "It is often best to entrust.high power to officers whose terms are short * * * if that pow- er is left. to. the legislature the people can, at short and often re- curring iritervals, rebuke where rebuke is needed and approve, where a,pproyal is merited." .• .,. Ip tbaij^xt chapter we shall behold the wisdom, judgpient; and patnolisni \vith which. th9se Kansas Republica,n representa- tive$ addressed themselves to the solution of these, great fiinda-. mental, important and momentous question^, ;^ ,, ,,. CHAPTER II. A statute provides that "Upon the day fixed by law for ened their respective head- quarters at the hotels: not only politicians came, but many who had never been in Topeka before in any political interest, and a noticeable number of strangers appeared from the adjacent cities of Kansas City and St. Joseph in Missouri; and when the Republican members returned on the next Monday, their bel- ligerent constituency came with them, or followed shortly after. The crowd of Republican sympathizers which reached Topeka by Thursday morning was conservatively estimated at five thousand. On. Tuesday morning the Republican house passed an elab- orate substitute for the measure to vacate the Populist's seats, naming the individuals to be removed, and carefully prescrib- ing the notice, and every detail of the contemplated procedure, and fixing Tuesday February 2 1st, as the day on which the de- capitation should be accomplished. Then, having increased their force of assistant Sergeants at Arms to an astonishing number, and ordered the arrest of Gunn, whose name will figure later in this history, they ordered that Rich should be arrested for loud reading in the discharge of his duties as chief clerk of the Populist house, and so "contemptously" disturbing the Repub- lican house, that he be brought to the bar of the House to answer for the contempt, and held subject to their further orders. ' 25 ' Aliliongh Ricli had done nothing more "tlhan the others, iio l^op- ' lilist had been lampooned by thfe Republican press as he' had "'been;' he was the ''instigator of all villianios, the arch cohspira- 'tor, the chief anarchist," and they eelected the victind lipon Whom 't'hcy coard ' inflict the utmost to exiiisperate the Populists, and' still be safe in the public opinion wliich they had built up concerning him, • Rich wfiV arrested at dinner, 'after, which tliey started with him toward the 'state house; but instead of going there, they at- tempted to take him to the Copeland hotel, which was Renubli- • can headquarters (the doughty Sergeants interpreting too literal- "■" ly their "writ to"take him ""to the bar of tlie Houie'^ j but Itich objected, his frieijds interfered, a tight ensued, "and Rich As^as rescued. ''• VV^V '''■•■ A' ■• ''^ :,n:(;. i- . ■ . i ... ■ ■ ■ ■ - ;/;:;.-.• r ;; i .' ", Ihen the Governor (and also Spea,l^er Dunsmore) called upon "'Sheriff Wilkerson of Shawnee county td talve the necessary measures to preserve peace and, order at the capitol, which that ■ '•11,1 .i.'.O- a • ••*.;•.■; : ^.■....■. -''^.i,. ; ; .. i-i\r(; . :.: ,;•, .; ; . :',: "•uft'rded for that purpose. .• ^ :>xi<'. r ■.^.. :< ^ ii.\-r-'i ■> •v ■••:• ;^l: : m .i!f-,fii'» : 'f. ;;.:.,;;;' \-i At 9 o'clock Wednesday mornins; the "Republican menlpers JK>«iK«.iiu' ;;-(.;.'.- •■.:!.; »i .••■.!.: i.T.!*? .;;.:.; -S ..v. I'/.-fu- :• r .7V. ■:.!.•;(•!; %i'|h some of their employees, 100 in all, iornied"at the Cope- .■:<<.(-.M (l:>i ■■• .'■ • '.. II- . • :.^.' '^ i.;lj.r .*».! .:i .■..•i.i M Ot ;.•(;•'. .i ■.:. hind hotel and marched to the capitol, they, forced away the , Populist Sergeants, sledge hammered through the doors, en- tered, and commenced the form of lecrislatiye busines.^. Short- . : ..■«,:: <■.;•• . .-• . ^■.' .;..' ..;;ii,' ii..' ...■ ' •■ ' '■ :.; P' ; v^>■(>4 ..i : i . •. ..:.; -.;. Iv afterwards, another procession of about 100 Republican as- sistant Sergeants formed at the Copeland and marched into Rep- resentative hall. They eiected the clerks, and attachees of the Populist house who happened to be there^ in some cases forci- bly ; they telephoned to the officials of the Santa Fe railroad to 26 order out two thousand men from the work shops to defend thetn; they hung out a huge flag at the rear end of tlie state hoiise over Representative hall: and closed and guarded the doors and assumed exclusive control. Then they issued an "Ad- dress," proclaiming the existence of an organized conspiracy to overthrow their's the lawful house, accusing the Governor of conniving at the flagrant assault upon their Sergeants in the rescue of Rich, reciting their awful perils in gaining access to the hall, that they "Were hourly threatened with the forces of Anarchy and Revolution, who openly proclaimed m. advance tlieir determination to disregard the judgynent of tlie courts,''* and calling for the instant moral and active support of all law abiding citizens. And the Governor ordered out the militia. Two provisional companies of some 20 men each wore re- cruited, a company of 20 came in from one of the suburbs, and late in the day a section of Topeka artillerymen appeared; oth:rs came during the night but not in season for that day's proceedings. The militia was placed under command of Col. Hughes and he was ordered to go to Representative hall, where a lawless body of armed men, co-operating with certain mem- bers of the legislature, were in forcible possession, and eject therefrom all persons except the members and those recognized by Speaker Dunsmore as the employees of the House. A threatening crowd at the front entrance of the capitol engaged the attention of the militia, and Hughes did not reach Repre- sentative hjilLtJiLneajt^-alGlWc; - Tlien he' made a speech to them, told tliem of the order which he had received, and stated that he should not obey it, assured them that they should not be molested, said he expected to be relieved and when he went his regiment would go with him. A portion of the militia which had been called ont, when they arrived at Topeka, instead of reporting at the state house 27 reported at the court lionse and were sworn in as deputies under Sheriff Wilkerson, who had commenced to recruit a force imder the call of the Kepubiican house. Wilkerson 's organized force, it was said, reached 32 companies of 30 men each. Their visi- ble arms were ball-bats and clubs, and they wore badge« of red in their button holes. The Sergeants at Arms carried Win- chesters and revolvers, and wore belts tilled with cartridges. Between 600 and 700 of these Sergeants at Arms received pay for three days service each. The unorganized, hooting, jeering, menacing crowds were by no means an unimportant factor of the situation. Two or three more companies of militia from interior towns came in who did not go over to the opposition, and the pretense of a line of soldiers around the capitol was maintained; but it is doubtful whether the Governor had a hun- dred armed men upon whom he could rely in a real emei-gency. During Thursday (16th) the guard lines were repeatedly forced, and in some cases, as in the instance of D. K. Anthony's ex- ploit, with the most brazen and taunting defiance. Company (t 2nd Regiment, of Marion, quartered and messed with the Republicans in Kepresentative hall on Thursday night, and that evening the Governor negotiated with Sheriff Wilkerson for a truce during the darkness of the night. The following incident of the next morning was reported in the daily papers: "About sixty deputy sheriffs made a successful rush upon the guard line in front of the state house at 9:30 this morning, * * the sherifis formed a phalanx and forced the guard back and Avent up to the House, hooting and yelling like a pack of hoodlums. * * Dr. Patee, who was acting as assistant Ad- jutant in charge of the guard, was quite seriously bruised and pounded. lie was struck on the head with a cane, and after- wards with the butt of a revolver. * * The blow with the rev(>lver cut a gash in the top of his head which bled profusely. " The position of the Governor and his friends was hourly 28 becoming more untenable. The defiant attitude of the Repub- lican thrcifjg had given place to an impatient eagerness for ag- gressive action on their side. Since the abandonment of the Governor by the militia, all thought of clearing Representative hall had been overshadowed by the uncertainty as to what would happen next. It was certain the Governor could not live long enough to assemble his political adherents from the rural dis- tricts of the state. Only the excuse of Republican bloodshed was needed to end his career as Governor, and there were men hicrh in Republican councils diligently seeking to provoke the occasion and create the excuse. Whether or not the Republi- can manao-ers were complacently planning that their forces should assassinate the governor, if the natural and probable consequences of the acts of those managers had not been inter- cepted, let the reader consider the following language in a let- ter, addressed to the Governor, and published in the principal Republican paper in the state [Cajyltal Feb. 26th) in which the chief editor ironically said: '-You no doubt owe your present good health to the fact that the state escaped a fatal collision , between the deputy sheriffs and vour forces. * *' It is a' source of conffratulatiou that Chaplain Biddison's prayer for your protection against assassination reached the throne of grace so promptly." , , But the nature of the interception, or the agency chosen to answer Chaplam Biddison's prayer, formed a ver}^ forcible com- ment on the actions of these Republican leaders. The charaqter of the crowd brought to Topeka for the ]>urpose of "upholding law and order" filled all respectable citizens there with a feel- ing of great uneasiness. They could see in the drunken reel- ino-s and brutal features, dire forebodings of riot and pillage should the impending clash come. They could see that the city would be looted and perhaps burned to the ground by these deputies from the .criniinal population of the Missouri river 29 towns. They trembled at the fearful results sure to follow if this mob M^ere turned loose to prey upon the property m the city. And they knew that a clash of arms at the capitol would be the signal for riot and their property and perhaps their lives would be the boot}'- to be claimed by this lawless horde. To be sure the majority of them sympatliized with the Kepnbliean house and hoped for the success of the Republican conspiracy to prevent legislation, but their own danger opened their eyes to the infamy of the plan (o accomplish by bloodshed what they had failed to secure by ballot. As a result of this feeling a citi- zen's committee, composed of the most prominent Republicans of Topeka, went to the capitol and besought the Republicans to eifect some sort of compromise that would prevent a resort to armed violence. This introduced a new element into the Republican position. Here were the men and here the element of society npon which they must rely to connect their schemes Avith any degree of public respectability, threatening to leave them to go it alone unless they amended their program of revolution. As a result a committee of three was appointed to meet the Governor and arrange for a return to the conditions preceding the arrest of Rich. The Populists had all the time been anxious to avoid any kind of violence and had hoped that they could get through with their work and go home, so it was a very easy matter to arrange the details of an agreement forced upon the Republican managers by the respectable element of their own party. The proposition agreed upon after being submitted by the Governor to the Populist Senators in caucus, who approved it unanimously, was finally adopted and signed by the Governor and the three representatives of the Republican house. By the terms of this agreement the militia and deputy sheriffs were to be discharged; each House was to continue its work without interruption; the Republicans were to occupy Representative Hall and the Populists were to continue their 30 meetings in the south corridor; and no provision in the agree- ment was to be used in any legal proceeding as a recognition by either House of the other as the legal House of Representa- tives. The revolutionary conspiracy of the Republican leaders di- vided the respectable members of their own party from the ad- vocates of brute force. But as will be seen, the plans of the revolutionary element in the party were only deferred for a more matured public sentiment and a more convenient season. A week of precious time had been lost to the Populists. They had kept tlie continuity of their daily sessions by meeting in an unenclosed area in the south basement of the unfinished central portion of the capitol building. Their future purpose was quickly formed. They would make this south basement their Representative hall; and they went to work, sitting on chairs and benches which had been brought in, while the car- penters sawed out and nailed up desks for them, and a platform for their speaker and clerks, and enclosed them with wooden partitions. But it was Tuesday, the 21st of February (the very day on which they had been notified that their offices would be vacated) before the carpenters were out of the way and any orderly progress of business could be resumed. But for the interruption they would have been at their homes. Xow they were a full week behind; and every day and every night they were in session, in the innocent hope that very soon the Senate and House would concurrently adjourn, and then there would be no more legislature in Topeka to be insulted and bulldozed. If the Republican party should attempt to nulefy their acts by means of a judicial decision or otherwise, it would not only be unlawful, but it would be under a weight of responsibility wdiich would be simply unbearable either by that or any other party. On the same day that Rich was arrested, February 14th, L. C. Gunn, living at Parsons, some lAO miles from Topeka, 31 was also arrested, on an order made by the Republican house at its session whicli commenced at 4 P. M. the previous day. The Republican newspapers announced "Another Populist ar- rested — they will try to release liira by haheas corpus.''' But Gnnn had no sooner reached Topeka than the President of the First National Bank, at the request of Ex-President H. C. Cross of the M. K. and T. raih-oad, both prominent Republi- cans, volunteered to become Gunn's security for his appearance before the Supreme Court at a future day, m which court a writ oi habeas corpus was at once sued out in Gunn's name, such se- curity was given, and Gunn went liomo. The Governor had no formal notice of the case. The first knowledge of it came to him, as to other citizens, through the newspapers. He conceived that it might bfecome of public con- cern, and he requested the Attorney General to appear in the case in the interest of the public, and that officer did so. Mr: Doster and Mr. Clemens assisted the Attorney General . The fact of the presence of the Attorney General in the case under these circumstances could not at all enlarge the powers of the court, and it is not so claimed or pretended. Gunn was repre- sented by Eugene Hagan, Esq. The Sergeant at Arms of the Douglass house, who had served the wariaiit on Gunn, was the respondent, and he Avas represented by three lawyers whose se- lection for eminence, ability, and influence could not be im- proved upon in the estimation of the Republicans. The legis- lature of Kansas was no parfy to the proceedings, neither was any summons, notice, or warning of any description served upon the legislature or either House of it, nor upon any of their of- ficers. The executive and legislative departments, and all the officers thereof, were entitled to that protection from the col- lateral effects of the judgment to be rendered which the law al-, ways extends to the humblest Justice of the Peace or Constable in the state. 32 Although the statute provides that the person to whom the writ of habeas corpus is directed shall make innmediate return, and the court shall summarily hear and determine the case, the case was put off six days (to Feb. 21st) before the trial was commenced. The court announced at the outset that it would not enter- tain objections to evidence, except in the closing arguments, but would hear all evidence offered by either side. During the trial, Mr. Doster asked whether evidence would be heard touch- ing the ineligibility of certain members of the Douglass house, and their right to membership upon the election returns; but the court refused such evidence. An incident occurred during the trial which became significant in the light of subsequent events. Mr. Clemens had objected that certain evidence offered by the Republicans was going beyond the proper range of in- quiry, when the Chief Justice sternly called upon Mr. Clemens to be in order and to be obedient, and added "The court ia amply able to enforce its own decisions." There was evident- ly in the mind of the Chief Justice a well defined method by •which the decision of the court, although in a case in which the •other departments of state claimed it had no jurisdiction, should be enforced. Along certain lines the evidence took the widest xansfe; all that was said and done, and the incidents of the or- ganization of the two Houses, their journals, roll calls, the reg- ularity of their actions, and all matters supposed to relate to the validity of their respective organizations. The decision of the court was orally rendered by Chief Justice Horton on Sat- urday the 25th of February, and occupied over two hours in its delivery. Judge Johnston concurred, and Judge Allen ren- dered a dissenting opinion. The decision of the court denied all validity of the Dunsmore organization, and declared the Douglass house to be the lawful and constitutional House of Representatives of Kansas, and ordered that Gunn be held to H ty a> n o ^ SB ft) '5 o 13 iX> 33 answer before that House for his disobedience of its subpoena. Since this decision has received practical obedience, and no officer or citizen within the state is arrayed against its en- forcement, it is now the legitimate subject of criticism. Any member, however humble, of that great profession which in a free government must always be honorable, (and only dishonor- able in degree as public liberty is lost) and any, whether lawyer or layman, who can pierce the problem, may render a tervice to the cause of truth more important than a great judge in high office has rendered to the cause of government. Surely profes- sional subtlety is not needed to discover such absurdities as this decision exhibits in its practical effects, as that; The same court w^hich had declared it had no power to keep fraud out of a leg- islative organization should now declare that a legislature has no power to keep fraud out of its own organization; Though the constitution forbids a non-resident to be a member of the legislature, yet a citizen of Oklahoma may participate in the organization of the legislature; That a certificate of election in the hands of a man who '\% foiljidden to he elected by the con- stitution shall ho. 2^Tima facie proof of his right to membership; That the constitutional power of a body to decide upon its own membership does not include the right to pass upon the quali- fications of the persons who shall organize the body; That a certificate of election has greater prima facie force than origin- al election returns; That a court (each House) which has the exclusive and final power to decide shall be controlled by the dictates of another court as to what effect shall be given to the evidence; That the executive department (state returning board) of one administration may fix the political character of the leg- islative department of the next administration; That there is no remedy in our system of government against fraud in a state returning board until that fraud has accomj)lished its purpose. You want the courts to be supreme in matters political as well 34 as matters judicial, but in this folly yon have misused yonr aim, for you have established the superiority of the state returning board above the power of the Supreme Court. The functions of the returning board are exclusive, it is presumed that officers will do their duty, and their frauds cannot be anticipated and redressed before they are committed; as soon as committed the board is legally dead, and it cannot be forced to correct its own wrongs, and no other power can correct them. The court, which a few weeks before had not power to revive a dead Republican returning board to redress wrongs, now has power to kill a live Populist legislature which has suppressed the wrongs. Your decision discloses no way of correcting the fraud because that is the very thing it started in not to do. You come back to the wise saio that "a certificate of election is jyrima facie valid and must be respected till the House is organized — then the House can unseat upon due contests," but the evil is wrought in or- ganizing the House. If you candidly read the authorities cited by Judge Horton you will iind never a case in which a court has said that a legislative body must give jjrima facie authority to a certificate of election; and if you search farther you will find plenty of cases where the courts have refused to do so. You ask then who shall form the organization? Shall it be settled by the muscle of the strongest party? The authorities tell us that it is left to the wisdom, patriotism, and sense of justice of the representatives whom the people have sent there. It must be confessed that the Fathers of the Republic were very silly if they had in contemplation such 'v/isdom, patriotism and justice as the Republicans exhibited when they organized the Douglass house. But farther criticism of the soundness of the decision of the Supreme Court in the Gunn habeas corpus case is aside from the precise purpose for which these chapters are written. Every paragraph thus far furnishes the most cogent, sub- 35 stantial and irrefutable demonstration of the plain and simple duty of the Senate and Populist house. The fact that the Su- preme Court without jurisdiction, and without any lawful means of enforcing its judgment, had pronounced against the validity of the legislative organization, while it might obscure, could only make that duty more emphatic and imperative. The leg- islative department of the state should assert its constitutional independence of the judicial department; should ignore the de- cision, finish its work of legislation and adjourn. To fail in that duty would show that the People's Party was inadequate to the emergencies of office, incapable of administering govern- ment, an unfit guardian of the rights and liberties of the people which should never again be trusted with public power and authojity. "Why did they not perform that duty? Why were they wanting at the moment of supreme necessity? IIow could they justify their submission without confessing that the Repub- licans were right? Why did tiiey fail m this vital, critical and decisive exigency? Kansas will say to the People's Party, An- swer these questions or thou shalt die. Never fear for the Peo- ple's Party, reader. Would to God no worse result than the de- struction of ihe Peoples Party might follow the performance at Topeka during last winter. On the Mondav evening next following the week of '-war" in Topeka, being February 20th, the day before the trial of the Gunn haheas corpus case was entered upon, the Daily Press (Democratic) contained the following: "It was stated today, on authority that would ordinarily be considered reliable, that the Republicans have arranged for about 40,000 men who could be gotton to the capital on twelve hours notice, in the event of another outbreak. From the same source comes the inforniation also that the Republicans have made their plans for a provisional form of government in order 36 to carry their point. The scheme as given out is to take pos- eession of all the state ofiices and the state house, and then call another election to settle issues involved. It can be readily seen that this plan of action would give the Republicans the power to name election officers, which would concede to them the machinery." Knowing nothing of the matter, the Populist legislator, at the time, could only read the above quoted article with a shrug of incredulity. The scheme was too stupenduous to be com- prehended, and too vicious to be credited. It therefore received but little thought and arrested no general attention. Slow and unwilling as all must be to give ear. and terrible as the enter- tainment of such a purpose may be thought to be, a series of facts and circumstances bearing on this maiter has since de- veloped; they underlie the action of the Populist legislature in surrendering to the Douglass house; they are of the most in- tense public interest, and I shall therefore endeavor to set them in order in the next chapter, leaving the reader free to sneer, if haply he may, at ihe frantic words of a partisan alarmist, or tremble, if he must, at the conditions by which he is surrounded. CHAPTER V. I have readied a point in the course of this review where I am sure of Republican readers. The manipulation of the ward heeler and the local committeeman, the castif^ations of the editorial fr}^ and the bigotry of small thought and political prejudice cannot leave me to empty benclies. The people must beai-, in their persons and property, the results of these political convulsions, whether they be blessings or curses; and when the people arouse themselves and demand to know what is coming, the magnitude of the consequences will compel a candid hearing. 1 have a Republican audience. Gentlemen, I greet you. By eveiy test of patriotism, lineage and record i am as good a Republican as the best of you. In birth I am only one gener- ation removed fiom a Revolutionary soldier; my father was a great abolition leader; 1 was a Union soldier in the sixties; I cast one of the Twelve electoral votes of my state for President Grant, and I w^as a Republican of the Republicans till 1890, when I found a better Republicanism outside of the party. And in 1894, if the present Populist state gov-ernment shall follow your lead, assert and act upon the princijdes which you have established by decision and precedent, and do as jou did during the last Republican state administration, I shall look for you even to take up arms, if necessary, to destroy your own political off-spring, and to demolish what yourselves have created; and, if so, you may look for me with a Winchester at my shoulder and a cartridge belt about my body standing in the 38 ranks of those who will not suffer the laws to be prostituted to the exigencies of parties, and to the end that we may together maintain inviolate the constitutional prerogatives of the people which were purchased by the blood of our Revolutionary sires. You must acknowledge that if you were wrong and we right, you have yourselves furnished the lawful precedent for repeating the wrong which you did without law and without precedent. Therefore whether you were wrong or whether we were wrong is a matter of moment to the people so grave that they dare not suffer party considerations to enter into their verdict: for by the eternal laws of God and human rectitude, that verdict must be right. I am embarassed by the fear that I compromise myself by citing; proof of that which Republicans most desire should be proved, and shall miss my thanks for doing them a great service, Thete is a dash, and at least physical courage, in the attitude of the revolutionist, which must command a degree of admira- tion and respect, either secret or expressed, and when it is backed by moral courage in a great and good cause, it becomes an ever brightening diadem of honor on the brow of exemplary humanity. But that kind of courage when it gets its belt and gun on does not go and strike a tragic attitude to have its picture taken; and the cause of the revolutionist is tainted with moral cowardice when he conceals and denies the real character of his purpose and action. But with whatever result, let us see what, if anything, in the action of the Republicans at Topeka last winter portended revolution. Before the arrest of Rich, a legislative appropriation bijl had passed the Populist house and senate, had been signed by the Governor, and published in the official state paper, Topeka Capi-tal, and had become a law. Upon the relation of the county attorney of Shawnee county, an injunction against the state treasurer and auditor had been sued out before the Repub- 39 lican judge of that judicial district to prevent tlicm from paying out money under this appropriation, up jn the ground that the legislature which passed the bill was not duly organized; and before the decision in the Gunn case, the district court had so decided by granting the injunction. Judicial investigation in all cases, is supposed to be limited by the injury complained of and' the remedy adminis- tered. It would have been quite proper for Judge Horton to have entertained all the opinions of law and fact which he ex- pressed in the Gunn case; he coifld. have decided, as he did decide, that the Douglass house was properly organized, and entitled to recognition, and had the right to transact certain business, and to defend itself, and might issue subpoenaes, and punish for contempt, before itobtained recognition. He might even have gone farther, and said that the Populist house was not lawfully organized, and that the decision of the Governor and senate in recognizing it did not make it a lawful part of the legislature. This surely would have disposed of all there was in the Gunn case; it would also have left the question to be decided whether the acts of the legislature as then con- stituted should be enforced as the acts of a de facto legislature when that question should be properly raised in a proper case. It is impossible, and every day's experience in public affairs, and all history a thousand times proves it to be impossible to keep the macliinery of government and of the administration of justice in motion without the recognition oide facto, officers, functionaries, and bodies, both high and low; and in the case before us there was no other door of escape, lawfid or otherwise, whereby the state and its people could be saved from the awful tragedy of blocking the' wheels of government, in the event that the two Houses should not finally agree. Please under- stand this. The legality of this ^^de facto''' rule is always and every where admitted. If the Douglass house had abandoned * 40 its orcranization and gone into the Dansraore house, and the latter, co-operating with the Senate, had passed the necessary laws to keep the state government in motion, Judge Horton himself would have said — The government shall not stop; that was a de facto legislature; notwithstanding tlic pretended jour- nal of the Dunsmore -organization was no lawful journal, in legal contemplation that house had never been organized ; the members shown by the journal to be present were not legally present, and their presence, was necessary to a lawful organiza- tion; Mr. Dunsmore had never been legally elected and was not a lawful speaker; neither had that house any lawful officers; all these defects which, according to the Gunn decision, existed in the Dunsmore house would not have deterred Judge Horton from enforcing the acts of the legislature as a deficto legisla- ture; and the same would have been true if the Douglass house, instead of going in with the Dunsmore house, had simply ad- journed, for the Dunsmore house would still have retained its 69 members, thus answering the demands of the constitution as to quorum. But every intendment of that Gunn decision was to declare that, without waiting to know the circumstances, and under any and every circumstance, the court would hold every act of that legislature, as then constituted, to be invalid. 1 do not wish to be understood that the court excluded all possibility of its en- forcing de facto legislation. But the meaning of the decision to be understood is that the court would never regard the ex- istino- legislature as a de facto legislature. I quote two extracts from the Gunn decision: "The Douglass house was not only legally organized, but its journal shows that it lias been doing, or attempting to do, business every day of its session. It has challenged the right- fulness of the Dunsmore house; it has challenged the action of the Governor and Senate, and the very first act of legislation has 41 been made the subject of an injunction in the District Court of Shawnee county, whose judgment until reversed is as valid and binding as the supreme edict of the Supreme Court of Kansas." The following is the concluding paragraph of the decision as published: "It has been sugn;este(l that Ave should hesitate to give an opinion upon the constitutionality of either of these bodies be- cause unpleasant complications might arise therefrom. It has been snoo-ested that the Governor and the Senate will not find their way clear to act with the legal house, and, therefore, the appropriations may fail, and all of the departments of the gov- ernment will be without funds; and more unfortunate still, that the educational, charitable and criminal institutions will be closed. We tmst that such will not be the result. We believe that the Governor is honest and patriotic; we believe that the Senate and the members of both these contending bodies are honest and actuated by worthy motives. We trust that there may be some way by which the House and the Senate and the Governor can act together unitedly and harmoniously. The questions involved in this case are above party and partisanship. They concern the people, the state. The gravity of the situa- tion we fully understand. Certainly no constitutional or public question can be more solemn than the one now before us. While we deplore the occasion which compels us to hear and determine this case, we feel constrained by the imperative com- mand of the constitution, and by the conscientious discharge of our duties, to declare our views irrespective of policy and irre- spective of expediency." The naked meaning of the first of the above quotations is that, since the constitution provides that "No money shall be drawn from the treasury except in pursuance of a specific ap- propriation, and no appropriation shall be made for a longer term than two years," the appropriations made by the legisla- 42 ture of two years ago having expired, now, therefore, the door of the treasury vault is locked against the payment of another cent, and the key is in the judicial pocket, and shall there re- main until there shall be a legislature which will pass muster before the courts to make further appropriations. In the other quoted paragraph the appeal which is made to the patriotism and honesty of the Governor, the Senators and the members, and the trust which the court expresses that they may find a way to act together united and harmonious is, by in- ference, a confession of the court that it has no grant of power to coerce the Governor and Senate and compel such harmonious action; in the absence of which harmonious action it is hy im- plication declaimed that the tvheels of government 8! lallhe hlocked. A judicial decision which has no alternative but obedience or revolution is no judicial decision at all within the contem- plation of constitutional government. It is nothing but a po- litical ultimatum. Harmony of action, says the court, is the only peaceful remedy possible, but that harmony of action must be xifoii th!b basis of the Douglass organization — a harmo- ny which is not harmony at all. The court appeals to patriot- ism of a broader type than itself has exhibited. It does not acknowledge the possibility of the de facto power of the exist- ing legislature to save the state from convulsion, as it might have done. That would be giving up to the Populists. The Populists shall expand their patriotism and give up to the Ee- publicans, or let the state convult. The court is impelled ''by the conscientious (W&ohiWgQ oiiis duties." After the court has completely vindicated the Douglass house, and given play to its conscientious convictions of the legal- ity of the Douglass house and the illegality of the Dunsmore house, does the conscience of the court then cease to be the servant of the state and, l)y denying the de facto\)0\yeY of the legislature, abandon the state to a physical struggle for partisan supremacy? 43 The court is "constrained by the imperative commands of the constitution^'' (section not cited) though the appropriations may fail, and all the departments of the government be without funds, and the educational, charitable, and criminal institutions be closed. What is to become of the constitutional provision for the even maintainance of justice by payment of fixed sal- aries to the judges at stated times? Does the constitution re- quire tliat felonies shall go unpunished for the next two years because the penitentiary has gone out of business? Are there higher constitutional duties than the constitutional command that the salaries of state officers shall be regularly paid at stated times? Is tJie constitutional command that "the leo-islature shall provide, at each regular session, for raising sufficient rev- enue to defray the current expenses of the state for two years" to be left without performance? Are the banks and the insur- ance companies and the railroads to go without governmental supervision, control or taxation for want of the payment of the public expenses and the compensation of the officers wdiich the constitution enjoins? The obligation of public officers to serve the state is no greater than the constitutional obligation of the state to pay its officers; if the pay should fail every public officer M'ill be furnished an excuse for neglecting public duty. The State University, established by the constitution, and all great educational institutions of the state are to be turned over to bats and owls; the charitable and benevolent institutions which, by command of the constitution are to be "nourished and support- ed" must be closed, and the insane, the blind, the deaf and the dumb are to be sent (they w^ould have to walk) back to their counties; the penitentiary wdiich the constitution commands to be established and kept closed is to be opened and the criminals turned loose upon society. Does any one suppose that the Eepublican party seriously intended that this condition of things should exist for two years 44: in the State of Kansas? . It is anarchy, pure and simple, in its worst conception. It is the complete blocking of the wheels of governmental machinery, the destruction of justice, and of law and order. Society could not endure it; and any expedient to be rid of it would be tolerated. If Governor Lewelling and the Senate would not recoffnize the Doucrliiss house then Kansas must be provided with a Ciovernor and Senate which would recognize them. What that would mean, judge ye. What meant that second proposed election of a Democrat to the United States Senate announced by the Eepublicans the week before the arrest of Rich, if it did not contemplate the reoroanization of hoth iranches of the legislature. It could not be accomplished by the consolidation of the Populists with the Douglass house. The Kepublicans claimed 6i membei"s, 2 of Mhom had voted for Martin and would do so again. All but 15 of the Senate were Martin men. The combined vote for a can- didate against Mr. Martin in the Senate and both Houses could not exceed 77 in all. On the other hand Martin would have the support of the oS certificated Populists, 2 members of the Douglass house, and all of the 25 Senators who had voted for him before; making S5, and a majority of S above the combined opposition. In a scheme of this sort no one could expect any Populist to abandon the support of Mr. Martin. There v.as no plausibility in the proposition except upon the expectation that the Senate as w^ as the House was to be reorganized. A Democrat must be their candidate because the stalwart Demo- crats in the Douglass house were necessary to their quorum re- quired to unseat Populist members to effect the reorganization. The stalwart Democrats miorht ^o into the Dunsmore house, and nothing short of the promise of a United States senatorship would hold them in a scheme of reorganization. The order for the arrest of Rich in the Douglass house was preceded by a series of resolutions, supported by an elaborate y^ — __d 45 speec-li of Spcalcer j',;/*^ tern Hoch, proclaiming the amiable will- ino-ness of the Republicans to solve all controversies by an ap- peal to the courts; but if the program for the arrest of Rich had been carried out without his being rescued it -would have fur- nished no judicial solution to which the Republicans would have adhered for a moment. There was upon the Supreme bench a Populist judge, who believed in the legality of the Populist house, and who had been elected by the Populists, the same who delivered the dissenting opinion in the Gunn case, and to whom is given by statute the same power to issue writs of habeas corjnis and finally determine the same, M'hether in term time or vacation, beyond ail power of appeal, as the Supreme Court itself; and, by Judge Allen, Rich could have been as absolute- ly and lawfully protected from all arrests and interference of the Douglass house as the Supreme Court could have done had it so desired. In some way the arrest of Rich was expected to serve the cause of the Republicans, but it was not expected to do so through a peaceable solution of the controversy by the courts. Neither had the unreasonable increase in the number of sergeants whom the Douglass house had at that time appointed, nor yet the preconcerted and systematic display of force and numbers then in Topeka, or on the road there, or which came after, any legitimate connection with the peaceable solution of the controversy in the courts. It could serve no purpose in the Rich case unless intended to overawe Judge Aden, which would have been unlawful. It could serve no purpose in the Gunn case more peaceable than to demonstrate that the trilling omission of the statute in failing to provide a means of carrying the decision in favor of the Douglass house into effect might be obviated. The great object which the Republicans had in that display of force was their belief that the Populists would not yield to the expected decision of the Supreme Court in favor of the Douii'lass house, and there let it rest. 46 Long as was the Gunn case drawn out, and late as was the decision, yet, contrary to the expectation of the Populists them- selves, the legislature had not yet adjourned when that decision was rendered. There was no known reason for its still being in session except that, with its interruptions, its deliberation, caution and slowness of action, in spite of industry, it had been unable to satisfactorily finish the legislation intended. Surely the session had not been prolonged in order to see what the de- cision of the court might be. I am not aM'are that this was more than an incident unpremediated by anybody. Of course the decision would not have, been different in any event. Sure- ly this incident was a providence to the state. If at the time of that decision the hands of the Populists had been already tied by a previous siyie die adjournment, it would have been too late for tliat 'Minited and harmonious" co-operation with the Re- publicans which the court hoped for, and there would have been nothing left for Ka^isas but the other alternative indicated in the decision. Up to the decision in the Gunn case, the Populists were practically unanimous, that the fact of the decision shonld make no difference with them, and that they should continue their labors and adjourn on or about Tuesday the last day of Febru- ary. The Iiepublican party, of course, is not to be judged by what the Republicans in the legislature did not do, but those Repnblieans are responsible for the natural and probable con- sequeiices of conditions which they had themselves brought about; if thev brono'Iit the state into a danger, the state must take warning of the Republicans notwithstanding the danger was averted from another quarter. The war proclamation of the Douglass house that the Populists "openly proclaimed in advance their determination to disregard the judgment of the courts'' in regard to the legality of the two Houses, was strict- 47 ly right in point of fact, and the Ropnhlicans are chargeable with full notice of the intentions of the Populists in this respect. If that would justify the assembling of the armed thousands in Topeka they are strictly justified. It was not concealed that that legislature itself claimed the jurisdiction which the court afterwards saw fit to assume. The binding force of such de- cision of the court alone, the Populists would have ignored for reasons which are stated above, and for many other reasons of the highest moment; and that purpose they retained until they heard from the lips of the judge, or read the printed words, that the court had decided in advance that all of their acts would be held invalid and not given de facto validity to save the state from any emergeuc3^ But so far as the Eepublicans in the leg- islature are concerned, or the court itself, or anybody, up to the time the decision was rendered, all were bound to calculate that the Populist legislature intended to complete its work and adjourn sine die. Whatever disloyalty attaches to the holding of that purpose before the decision was rendered the Populist party is fairly chargeable with. The sine die adjournment of the legislature then expected, would, under the decision in the Gunn case, be in conflict with the provision of the constitution that "neither House should ad- journ for more than two days without the consent of the other." The Populists, would go home; Init the House, which under the Gunn decision was the only constitutional and lawful House, not having consented to the- adjournment, the Republicans, Senators included, would stay in Topeka and continue the legis- lature. About the time of the Gunn decision, one of the stalwart Democrats in the Republican house received instructions from his constituents not to participate in the election of another Democratic senator, which the member decided to obey; and as the Democratic senatorial candidates could no longer hold the 48 DoiKJ-lass house under obligation for its quorum, those candi- dates abandoned tlie field and went home. As the probable ef- fect of, the post-adjournment continuation of the legislature would be to becloud Mr. Martin's right to the senatorship, the Republican house was liable to be left one short of a quorum; and the Senate would certainly be without a quorum, having 15 where 21 were necessary. But in both Houses they would be "amply able'' to enforce the right of a minority to compel the attendance of a quorum; and in both Houses the Republicans would have the majority of a mere quorum, and the right to transact business, as carefully explained in the Gunn case, and there is no constitutional limitation of the power which both the House and Senate, when so constituted, would have to de- clare vacancies. But how should they, the Senate especially, obtain the nec- essary number to "pass any bill or joint resolution" within the requirement of the constitution? The Republicans have ex- plained how this was to be accomplished in two important par- ticulars. First: The original measures for the tacation of the seats of the Populists had been scrupulously preserved by systemat- ic postponements from time to time, and were still pending in the Doucrlass house subject to final dispo.-ition, and incorporated into these proceedings was a resolution to ofiieially notify the Governor of the vacancies, to the declared end that he should issue writs of election to fill the vacancies; that the Governor must issue such writs of election upon satisfactory information of the vacancies is a plain command of the statute. Second: The court in the Gunn case had declared the doc- trine that the court had the right to imprison the Governor, if he should fail to perform what the court believed to be his stat- utory duty. The authority for this last pi-oposition was based upon a 49 case of niandarans decided by the Kansas court, (overruling, as the court admits, "the rule laid down in Pennsylvania, Georgia and in several other states") where a Republican Governor had submitted to the court's claim of jurisdiction without making a test upon it. The philosophy is that the decision of the court as to the extent of its own authority is law. and the court may command the Governor upon the presumption that the Governor will obey the law, and compel the court to imprison him. That free government must perish if the unqualified authority of such reasoning is acknowledged ought to be apparent to every lover of free government. If the right of the court to be the limit of its own authority is not kept within the constitutional lines of the judicial department, then, if the acute sensibilities and pure consciences of the judges should ever be dulled or tainted by the seductions of corporate power or great financial interests, how helpless would be the condition of the people when thus left a prey to these great jjowers and interests. The decisions of the courts are intended to be of perpetual power, they are never altered or reversed except by the sternest demands of public necessity, and the jutiiciary is but once amenable to the people where the executive and legislative ofiicers are three times amenable. The power to issue a mandamus includes the power to im- prison for disobedience of the mandamus. If the Governor re- fuses to issue writs of election upon the demands of the Doug- lass house it has been, in effect, decided that the mandamus shall issue; and when issued the Governor can protect himself from imprisonment only by obedience, if the writs of election are not issued, to jail he goes, AVhat matter if the issuance of the election writs by the Governor compels him -to repudiate his every act of recognition of, and co-operate with, the legislature which has adjourned; what matter if the issuance of those writs invalidated every pro- 50 vision wliich that legislature had made to continue the state government and maintain law and order; what matter if the is- suance of those writs would besmirch the action of the United States senate in the admission of John Martin as Senator and becloud that gentleman's title to the office; what matter that the Populist voters should be confounded by the poblem wheth- er they should repudiate the election to sustain what their rep- resentatives had done or attempt to beat the Republicans at the polls, and so ratify the Republicans' assumption of power; none of these excuses would avail. The Governor must issue the election writs or go to jail. It is not in the constitutional intendment that the execu- tive functions shall be performed under the amenities of Sheriff Wilkerson and his subordinates, either in the capitol or the Shawnee county Jail, and the imprisonment of the Governor would constitute such "Removal or other disability" as would cast the office of Governor, under the constitution, first upon the Lieutenant Governor, and next* upon the President of the Senate. These both being Populists, and refusing to issue the election writs as the Governor had done, would both be com- mitted to jail as he had been, and, under the constitution, George L. Douglass, Speaker of the House of Representative, would have become Governor of Kansas; and Governor Douglass would, of course, issue the writs of election. It may be denied that the court asserted the right to im- prison the Governor, or even fine him, for disobedience of a writ of mandamus. All the same the decision in the Gunn case gave legal sanction to proceedings already commenced which, without war and bloodshed, could end only in tiie submission, or the complete overthrow of the Populist adminstration. A statute provides, "If any officer on whom any duty is enjoined by law, relative to general or special elections, should be guilty of any willful neglect of such duty, he shall, upon conviction 61 Biereof, be guilty of a misdemeanor * * and shall be im- mediately removed from office.'" The statute further provides that, "The Secretary of State shall, immediately upon the receipt of the special election returns at his office, convene at least two of the State Board of Canvassers, beside himself, who shall proceed as in case of general elections*" The State Board of Canvassers is composed of the Governor (or, in lieu of him, first, the Lieutenant Governor and second, the President of the Senate) Secretary of State, Auditor of State, Treasurer of State and Attorney General, none of whom could be expected to can- vass the vote, and all would, by command of the statute above quoted, be removed, and Governor Douglass would, under the constitution, fill their vacancies by appointment, until the next general election, and the "Provisional Government" would be established. Kothino; less than the complete revolution of the existing government which is descril)ed above could have resulted from tlie program wliich the Republicans had arranged ; and had the Governor called upon the force oi the state to defend the gov- ernment from this oncoming revolution, as he would have done, but for the circumstance that the legislature had not adjourned when the scheme was discovered through connectino; events and between the lines of the Gunn decision, Kansas would have be- come the field of sedition, carnage and destruction too revolting and fearful to be contemplated. After this discovery, intense were the hours before the Populists had taken their resolution which decided the fate of the state. On Tuesday morning, February 2Sth, without any conference with the Republicans, without any assurance as to the payment of their employees; asking.no favors through the humility of capitulation, having spread upon their journal their unfaltering protest embracing substantially the reasons outlined in these letters, they took the flag which had draped their speak- 52 ''1?:;^ •■"f V^°^f:' '" P™'^^^^'"" inK,Eopro.entativehaII, r, rested "^' ""' °''' """"' ''"'" "'^ ''"J' "''«" ^ich ««; CHAPTEE VL Three hundred and twenty-five thousand Kansas men, on behalf of themselves, their wives and their children, comprising a population of practically one and one-half millions, have en- tered into a written compact with each other that peace, order and iustice shall be maintained throuo-hout the domain within •I o which the interests of all are centered. In this written contract these 325 thousand men have ordained unto themselves agents to carry out the provisions of, and the better to secure the ends for which, this compact was constituted. In the last election 163 thousand of these men declared their confidence in the nom- inees of the People's Party to perform the duties which that compact imposes on the ordained agents of the whole number; 157 thousand of them preferred the names on the Republican ticket; and five thousand designated their preference for yet other persons to discharge those functions. But all of these men had agreed that the choice of the larger number should de- cs o cide which class should administer and discharo-e the terms of D the compact. The agreement of the minority to render obedience to the majority was not because they were less wise or less capable of administering the government than the majority; nor yet was of the minority because they that agreement were less pow- erful than the majority. No large minority is necessarily physically weaker than, and therefore bound to submit to, a small majority. The right of a minority, however large and 54 powerful, to appeal to physical force is deliberately sur- rendered in the compact; and the great mass of the minority party of the men of Kansas today would not eliminate that feature of their compact, and take forcible possession of the adminis- tration, if they knew they could do it, and without the shedding of a drop of blood. They obey because they recognize the ne- cessity of a regulating and directing power as indispensible to peace, order and justice, and, in a government whose first prin- ciple is to concede the superiority of none, they repudiate the ao-ency of force, and acknowledge the equity of submitting to the choice of the larger number. This is the American interpre- tation of "Majority Rule," and three-fourths of the men of Kan- sas would rather fight, if fight they must, for that rule thus in- terpreted, and for the rights of a majority, however small, under that rule, than to decide any abstract and conflicting claims of jurisdiction merely; and they will never, either by ballot or bullet, decide the conflicting claims of friends or foes to the prejudice of the chartered rights of the majority under the constitutional compact. They will vote the way their fath- ers shot in 1776, part}' or no party. The ag-ents whom these 325 thousand men have ordained are of three classes, and to each class they have given their ap- propriate commands. To one class they say: prescribe rules of action, with- in the limits of our constitutional inhibition, and additional to what is therein contained, such as you, representing us, shall deem necessary to realize and carry out the purposes of our com- pact; dividing yourselves into two difi'erent bodies according to the character of the districts you represent, (for the formation of which districts our compact has provided) and we give you all the authority needful to the accomplishment of what we have commanded of you. As '-a rule of action prescribed by the supreme power of a state is law," we have given you '-Supreme" 55 power; but your commissions shall quickly expire, and all your acts shall be subject to our approval or rejection at short and often recurring intervals. To another class they say: interpret and apply the RULES OF action which we in our compact and our representa- tives in their statutes shall have prescribed. Since "Judicial power is the power to interpret and apply the laws," we name you judges. Your relation to our legislators concerns only their completed work. Your duties begin when theirs is ended. If their statutes conflict with our compact do you designate and apply that which is the higher or true law. Lest your judicial powers should be invoked to interference in the make-up of those bodies whose acts you are to judge of, we withhold from you such judicial power and vest it in those bodies themselves. You are not to have auv hand in the making of the laws. Your de- cisions shall vest rights as absolutel}'' as the most solemn con- tract, shall be binding on all officers and citizens, shall not be affected by the action of the people at the ballot box, shall be subject to reversal or modification only when yet sterner exi- gencies of actual experience shall enforce the necessity of their review, and then only in actual cases brought, and in the reg- ular forms of judicial pi'ocedure. Our compact secures the cer- tainty of your compensation at stated times. The tenure of your district officers shall be twice, and of your general and supervisory officers shall be thrice that of any other agents to whom we have delegated power. These 325 thousand men have ordained a third class of agents to "carry the rules of action into effect" which they and their representatives have prescribed and their judicial agents have interpreted and applied. There is a sense in which to apply law is to enforce it, as when a court issues execution or other process, either incidentally to enable it to perform its functions, or finally to make application of the law as the court 56 has intrepreted it; and so courts are furnislied with officers and with force to apply the law. These powers of the courts de- pend upon the consent of the parties which is contained in the constitutional compact to submit to the powers of tlie judiciary to interpret and apply the law, so that it is both true and com- mon so say "a judgment is a contract." This power of the courts is not to be confounded with the executive powers and duties of the state, for which it has ordaiwed a distinctively ex- ecutive class of agents to execute and enforce the laws. One of this class they have made a chief, and the command to him lit- erally is; "You shall see that the laws are faithfully executed." You shall adjourn and convene the legislature when the accom- plishment of jour duties require it on extraordinary occasions; you shall dispense the pardoning power; all executive officers shall report to you statedly and when you require it; you shall keep and use the great seal of state; and all commissions shall come from you. You alone may declare the existence of insur- rection; you alone may declare the necessity for the physical force of the state to execute the laws, and to suppress insurrec- tion; you alone may call for "the active support" of that physical force, and you alone shall be its chief commander when called out. Your power is great, your tenure of office is brief: you shall quickly answer to the people. Under the distribution of powers prescribed in the constitu- tional compact, let us examine certain of the performances at Topeka last winter; that war proclamation of the Republican house issued over the signature of George L. Douglass-, its Speak- er, declaring the existence of an organized conspiracy and force to over throw the lawful House, and calling the physical force of the state to its "Active Support" ; that swearing in and arming with guns and pistols of 668 deputy Sergeant at Arms, that act of their sworn agent in their personal presence and hearing of calling for two thousand Santa Fe chop men to defend them, 57 those other thirty- two companies of thirty men each, organized under the call of that House and dismissed by their pleuipoten- -taries and those other thousands of reserves called out by that House and waiting in the streets of Topeka for orders. Where ■does the lower House of the legislature fiiid in the constitution the power to do these things f Ev^ery one of these acts, the power to declare the necessity for them, the calling out, organizing, mobilising and discharg- ing of these forces, is by the constitution an executive act, and expressly given to the Governor, and to the Governor alone, and when called out he alone must be their chief commander. Bat you say "we were the lawful House and were en- titled to protection." During the thirty days while you main- tained the status quo with the Dunsmore house, they were according to you such consideration as a rival claimant as amounted to all the protection you really needed before the Senate should recognize you; all the protection that they had themselves or expected to have till they ended the legitimate work of the session. You broke up that statics quo, assumed an aggressive attitude, brought the threatening condition upon yourselves, and then called for the force of the state to protect you from what you had brought upon yourselves. Where does the lower House of the legislature find in the constitution the, power to do these things? You said you knew the court would decide in your favor, but you saw that it had no power to apply its own decision, and your breaking up of the status quo, and bringing that great force to Topeka, was a denial of the complete jurisdiction of the courts which you so loudly asserted. You said that not- withstanding the expected decision of" the courts in your favor, the Governor was conspiring with the forces of revolution and anarchy to withhold from you the protection v^hich you were entitled to have; that you would organize the people to resist 58 tlie lawles?ness of the Governor, and so obtain your legitimate pi'otection. \V/ie?'e does the loioer House of the legislature iiiid in the constitution the j)Oioer to do these things? We were compelled, you say, by conditions not contemplated in the constitution, by the failure of the Governor to furnish us that protection which the law contemplates, and by our rights as a lawful House, and by" the necessities of our situation, to assume a power which is not enumerated in the constitution as among the powers of the lower House of the legislature. But the constitution says "All powers not herein delegated remain with the people." The constitution itself concludes the discussion. The "only lawful and constitutional Plouse" has assumed powers which the constitution forbids any legislative body to assume. A legislative body, the legality of whose quorum, by the election, is at best doubtful, has both encroached upon the reserved powers of the people and assumed to exercise functions which belong to the executive department, and that, too, when a majority of the men of Kansas have elected that executive beyond a question or a peradventure. A Eepublican judicial body, while holding the judicial department' of the state, has asserted the. power to repeal all acts of a Populist legislature, and itself assumed the perform- ance of the legislative duty of organizing the legislature; a Republican legislative body has relieved the Populist Governor and taken upon itself the executive powers of Ihe state; one of the departments and a piece of the other has absorbed all the powers of the three departments of the state; the feat was accomplished by the assistance of a few thousand armed Republicans; and "The Republicians should have the credit of standing for law against revolution and anarchy." A would-be prophet of God who makes that declaration must either modify his politics or his religion, or else resign his commission, for God's promise 59 through Jeremiah is "I "^'ill give you pastors according to mine heart, which shall feed you with knowledge and understanding. The constitutional tifty days of last winter's session was consumed in solving the "Legislative Muddle." In that solution powers distributed constitutionally to the three de- partments were called into play, and all were absorbed by the court and the Douglass house, to the complete subjugation of the executive and legislative officers wliom the people had elected, and to the contempt of the voice of the people ex- pressed at the ballot box. This is the non-dcscript sort of a government which the state of Kansas had during the fifty days of last winter's session. The past is past, but what does that condition of the past foreshadow for the future. Look at those senators, Thatcher and the rest! We have for yeai-s been educated to believe them to be wise, capable and patriotic. A burst of thunder from the vaulting arch of blue above us in the midst of a summer day of cloudless sunshine could not be more astonishing than the declaration of those Repuljlicans that the senate ivas not the senate: that the Republican senators were the senate, and, with an unrecognized Ilcpublican house, they could constitute the lawful Joint Assembly to elect a state printer and a United States senator. That act transpired in the comparatively peaceful days of the early part of the session. Just as certainly as that act foreshadowed the perilous crisis which followed a few weeks after, just so surely the forceful subjugation of the constitutional department of government of last winter's session foreshadowed yet more momentous events in the unknown future. "Tlius saith the Lord, For three transgressions, and for four, I will not turn away the punishment thereof, because they remembered not the brotherly covenant. — Amos. Within the lines of the Republican party of Kansas there is a war party which calls itself, but is not, the Republican 60 party of Kansas. Dr. Mc Vicar. Ex- Governor Osborn, and the other members of tlie Itepvil)li('an delegation whicli last winter visited the Republican house and urged them to submit to the constitutional authorities, and all the balance of the Republi- cans of Kansas avIio are like that Republican delegation, do not belong to this war party. This war party, which was success- ful last winter, believes itself to be ready, has formed its alliances, has laid and charged its electric wires, has prepared the powers of its combinations to come into play '-'■in the event of another outhreaU,'''' and the finger of ambition and greed is playing on the key board of events ready to bring on the outbreak when the moment is opportune. When that moment comes, out go the lio-hts of liberty and all must grapple in the death struggle. "And coming events cast their shadows before." After the thunder-clap in mid-sunshine we expect a storm. Shall we look for sunshine to follow the war-burst at the state's capitol last winter? The way to avert and avoid danger is to be ready for it. The need now is that men should awake. The call of country is not to Republicans, not to Democrats, not to Populists, but to the men of Kansas. Look, men to your in- heritance! Let not your lethargy till the land with broken hearts and chain the independence of the people for centuries to come. Your fathers oave vou this bounteous, wealth-bear- ing land to till with a race of princes, such as were the imme- diate descendants of the Revolution. But you cannot sleep and conquer. You can, if you will, rekindle the fires of courage, fortitude and hope on domestic hearths, even in mortgaged homes, and the secret of your trium|)h shall be the independence and sovereignty which is written for the people in the constitu- tion, even of this our state of Kansas. ]S^umbT3red among those who shall read and approve what I am Avriting are Repnlilicans, and Democrats too, who will not concede to the People's Party a monopoly of these sentiments. a m I n m n t m Broken gative term "reserved powers. " It is so long since the Amer- ican citizen has trod this native heath of his own dominion that he has practically lost all remembrance of it, and it has become to him a term iiicognita. Here is the angle in the ground work of the great design of our fathers where, yielding to the seductions of natnral weakness, the people have fallen down. One by -one, here a little and there a little, unconsciously or voluntarily, powers have been dropped and surrendered until the dignity and greatness of citizenship has passed into the hands of those who have gathered up and appropriated these abandoned powers. And the mass of the people, like a herd of timid and industrious animals, all equal and alike, find themselves in the leading-strings of an immense and regulating power above them which assumes to be their shepherd and guardian. Unlike natural guardianship whose office is to prepare children for manhood^ this tutelary power keeps the people in perpetual childhood. This power does not destroy men but it degrades them, docs not break the will of man but bends and moulds that will to it& every service. Men gradually lose all uses of themselves. Their power of self-denial, of exalted and heroic action, their capacity of rational enjoyment, their functions of mental inde- 77 pcndence and competence, their individaality, and all that is God- like and masterful in their character slips from their grasp, as ap- propriate only for those in whose favor they have abdicated their powers. Their deluded and reconciled vision enables them to con- gratulate themselves as honest, while they feed the flickering life of their own paralyzed hopes and aspirations with the degrading doctrine that these things are right and necessary ; and they relish die insipid joy with which tliey kiss the hand that oppressesthem. The good to which all this evil is counter- part is in the legitimate citizenship of the constitution. The only ''way out" begins in the conquest and ends in the mastery of the domain of the supervisory and proprietary department of government, which the fathers of the Republic in onr constitutions dedicated to the exclusive occupancy and control of the common people. The lost and abandoned powers of the people must be reclaimed, kept and administered by themselves, and foi- ricli and poor alike. It is not true that "the world belongs to him who takes it," but it is true that the world cannot dispute the title of all to take that which belongs to all. You and I, my unofficial and private fellow citizen, are the ordained ministers and office bearers in this supervisory and proprietary department of con- stitutional government. Our compensation is to be the wealth which results from the application of the powers of these Many in One to the unlimited resources of a bountiful Providence lavished upon this fair land of ours. Our tenure of office is for life and during good behavior, and, at the end of faithful lives, our children succeed to the dignity and emoluments of our offi- ces. We are not public servants; the tenants of the other three departments are our servants, and take the rule of their action from our mutual compact and oar expressed will. We render no enforced obedience, ourselves being rulers. Such is American citizenship in a sovereign state of the Union as it has been placed in our hands; narturer of the purest T8, affections of heart and grandest achievements of mind*; origin and source of the nobility of nature, the aristocracy of virtue, and the knight-errantry of patriotism. It shames the bastard aristocracy of unearned wealth, whose lineage and title is a dice throw in a stock gambling den or worse, whose passion for vir- tue is consumed by greed of power, whose delicacy is cloyed by satiety, whose dignity is hood-winked by arrogance, whose tender mercies are cruel, and which has never a grace not bor- rowed from a free and honorable democracy. We say truly that Greece and Rome perished thousands of years ago. But Greece and Rome are still there, and to-day the rulers of their destiny and interests would not restore the pristine glory of the great republics if they could. In this sense the American government is in no danger of destruction, and little matter if it were; but the moral. canker of ambitious avarice and greed of power poisened the heart's core of Greece and Rome before Christ came ; and so we are in danger of de- struction by the poison of lingering ruin, and the plagues which are communicated by the touch of ill-gotten treasures. Kansas was the nation's skirmish ground in the Fifties. Shall the winter of '93 be a period of like honor in her history? Men, is American citizenship as our Fathers gave it to us worth pre- serving and restoring? Shall we save our state and nation? Never by the agency of parties. Parties are venal. Let them be destroyed. Let the land be made unanimous. Ignore parties as we did in the Sixties, or destroy parties as our Fathers did in 1776. From what happened last winter, and was like to happen, take jealous warning and alarm. Unite upon the plat- form of the constitution. Wait noi for conventions and rallies, but instantly, in every heart and conscience, declare your creed and raise the standard of the constitution, and we shall nail Old Glory to the mast head to.be wafted in its orginal purity and beauty through a thousand years to come. 79 HORTON'S DECISION REVIEWED BY G. C. CLEMENS. "■When his soaring Insolence Shall reach the people, * * * will be the fire To kindle their dry stubble; and their blaze Shall darken him forever I" — Shakespeare. " So spake the Fiend, and with Necessity, The Tyrant's plea, excused his devilish deed." — Paradise Lost. An Itinerant doctor whose specialty was fits had brought to him a patient suf- fering from asthma. "Can you cure her, doctor?" asked the anxious parent. "I can't cure asthma," said the doctor, "but if I can only throw your daughter into fits. I'm h 1 on fits I" Something like this plan is that often adopted by persons engaged in controversy. The position of an opponent being clearly unanswerable, the only ex- pedient is for the debater to assume that his antagonist has advanced some other position that can be attacked. Who has not heard of the stock advice to young law- yers: "When you have no case, abuse the lawyer on the other sidel" This is a trick older than Aristotle, for he denounces it as a trick of the Sophists ; and every boolt on Logic treats of it as the fallacy of "mistaking the question." It may astonish people who did not hear the argument of the Gunn habeas cor- pus that Chief Justice Horton's opinion was an instance of this species of sophistry; but such is the indisputable fact. We showed that the Douglass House was afflicted with asthma; the learned Chief Justice, knowing that he could not cope with that ailment, and supposing himself to be "h 1 on fits," simply sought to change the disease from one he could not cure to ona that he could. Is this doubtful? Let us see. Have you read the Chief Justice's opinion? If so, what did you find was its burden? That persons holding certificates were entitled to organize thb HOUSE. Then at the conclusion, there are some remarks from Chief Justice Marshall as to the duty of the courts to decide cases, and the proposition is advanced that THE court has jurisdiction of the case. Now, we did not deny that the members holding certificates were entitled to organize the House : we did insist that whether they were entitled to organize the House was a question for the house alone, and that the court had nothing to do with it. We did not deny that the court had juris- diction of the case, for the petitioner himself invoked that jurisdiction. But for his own petition, the case would not have been there. Neither did we deny that the court must decide whether the Douglass body was the House; for the case could not be decided without a decision of that question. What we did insist upon was that, IN DECIDING that QUESTION, the court must accept as final the previous decision of the senate and of the executive department in recognizing the Dunsniore House; or, at all events, must accept that body as the legal House, which was the House in fact. In short, the counsel for the Douglass House contended that the court might de- termine which body was the House by inquiring into the right of individual mem- bers to their seats; while counsel for the Dunsmore House contended that the court could not inquire as to individual membership, but must look at each body as a whole and see which was actually the house. Counsel for the Douglass House declared that the courts,as to all constitutional questions, are supreme over even the legisla- ture and the governor ; while counsel for the Dunsmore House insisted that, as to- every kind of question, each of the three departments of government is, within its own sphere, the equal of each of the other two and that neither department can sit in judgment upon the acts of either of the others done within its exclusive domain. We affirmed that, in deciding between two contending legislative bodies, each assum- ing to be the true legislature, courts must treat them as bodies, and cannot inquire Into the rights of the individuals composing them. The question to be decided 1» not, what persons are entitled to seats in the house, but, which of these two aggre- gate bodies is really the House? The difference between the contending counsel In 80 the case arose over this proposition. The difiference was radical and irreconcilable. Counsel for the Republicans exclaimed: "Our body contains the more members holding certificates." We answered: "But the Dunsmore body is the house!" We did not deny their assertion ; they could not deny ours. The Douglass body did have more persons holding certificates; the Dunsmore body was, in fact, the House. Neither of these affirmations was contradicted; neither could be rationally denied. So, if it was to look only at the certificates, the court must sustain the Douglass House. If the actual fact was to be considered, the court could not escape recognitioa of the Dunsmore House as the real House of Representatives. Hence, the sole ques- tion for the court to decide was: "Are we to look at the house alone, or may w9 look at THE CERTIFICATES ALONE?" Everything else would decide itself, once that question should be decided. The real point upon which the court's decision was required was: "In deciding between two rival Houses, may the courts decide for themselves what individuals in the rival organizations were entitled, under the constitution, to act as members of the House of Representatives?" The question was not, "What persons in these bodies are members of the House?"but,"Have the courts the right to decide who are members of the House?" Not the fact, but the power of the court to investigate the fact, was the point in controversy ; yet, while Chief Justice Horton's opinion devotes whole newspaper columns to debating the question : "Who were the members?" the reader will seek in vain for any honest argument upon the question : "Has this court THE right to say who were the members of the house?" — the only question the court was called upon to decide at all. There was no evidence that the persons holding certiflcites were not the persons elected. The court had declined to admit any such evidence. Hence, if the question— "Who were members?" — was to be decided at all the decision must have been— "Those holding certificates"— for the court had ad- mitted no other evidence than the certificates from which to answer that question. Is any reader so dull as not to see that the court's opinion spends itself upon an ut- terly immaterial matter, while it entirely ignores the real point in dispute? Why was so much said in the opinion concerning matters not essential to the decision — so little as to the real question? Because the Chief Justice was conscious he was de- . liberately usurping supreme, unlimited power over tbe people of Kansas; and, like all usurpers, he sought to give an air of legality to his audacious act, and hoped, by learned words and patriot cant, to conceal from the people the wicked plot for their enslavement. This is the true explanation of that irrelevant opinion of such learned length. Compare with it the frank, manly and easily comprehended opinion of Mr. Justice Allen. The former was the tyrant's artful plea; the latter was the free utter- ance of the intrepid defender of the people. Trusting that I have put beyond chance for misconception the real question pre- sented to the supreme court for decision, I shall proceed to show how that question must have been answered had the court not trampled upon the constitution. HOW^ TO FIND A HOUSE. Lately the Suprerne Court of Indiana held void the apportionment act under ■which both Houses of the Legislature had been elected ; so that, at this time, there is not in that State one single person legally a member of the House or of the Senate. Yet the court also decided that the persons now acting in Indiana as a Legislature, constitute a Legislature in fact, and can make a new apportionment law which will be valid. In Colorado, the claim was made that the apportionment act was uncon- stitutional, and that, therefore, the body which passed a certain law was not the Leg- islature ; hence,that the lawwas no law — was void. But the Supreme Court of Colorado said the body was in fact the Legislature; that the court could not look to see whether Its membership was legal ; and that, therefore, the law must be sustained as a legislative act. In deciding this, that court based its decision upon the Kansas Su- preme Court decisions to be quoted as we proceed. These two instances seem to prove that the question whether a body is the Legislature, is not to be decided by in- quiring into the legal election of its members; that the court must look at the body itself, as a whole, and discern whether it is in fact the Legislature, that if it is in FACT the Legislature, it matters not whether its members were legally admitted or not. This must be the case, for there is but one other mode of ascertaining whether a body is the Legislature, and that is to inquire into the right of its individual mem- bers to act; and this mode tbe Constitution forbids the Courts to adopt. Hence, courts must accept as the House of Representatives that body which is such in fact. Inquiry into membership is usurpation. The body itself, as a whole, can alone be lawfully regarded. 81 WHO IS ENTITLED TO A SEAT IN THE HOUSE NOT A JUDICIAL QUESTION. Back in the dimmer pages of Englisli liistory, the Chancellor wa6 the King's Secretary of State— the keei'er of the King's seal. Whatever proclamation or docu- ment of any character the King wished to put forth, was iosued by the Chancellor, who affixed to it the great seal. So, when, in after times, writs were issued to call elections for members of the House of Commons, the writs were issued Vjy the Chan- cellor, and the returns of elections were also made to him. But the King, at last, un- able to hear for himself all tlie complaints of his subjects, vested in his' Chancellor the power to redress grievances, and finally created the Court of Chancery. So, it came about that subsequent Chancellors, forgetting that their predecessors had not always been judges, assumed that, because election writs were issued by the Chancel- lor and the returns were made to him, he, as a .judge, had the sole power to decide upon the elections, returns and qualifications of members of Parliament. In the beginning very little attention was paid to this assumption. It seems to have been permitted as a mere matter of course. But in tlie reign of Elizabeth a struggle began which, under James I., resulted in a complete and lasting victory for the Commons, and the complete overthrow of the Chancellor's control of the mem- bership of Parliament. Hume gives this interesting and spirited account of the struggle of the Commons for the exclusive right to judge of the election?, returns and qualifications of their own members: •' The first business In which the Commons was engaged was of the utmost import- ance to the preservation of their privilege, and neither temper nor resolution were wanting in their conduct of it. In the former periods of the Englisli govern- ment, the House of Commons was so small weight in the balance of the Con-stitution, that little attention had been given either by the Crown, the people, or the House it- self, to the choice and continuance of the members. It had been usual, after Parlia- ments were prolonged beyond one session, for the Chancellor to exert a discretionary authority of issuing new writs to supply the places of any members whom he judged incapable of attending, either on account of their employment, their sickness, or other impediment. This practice gave that minister, and consequently the prince, AN UNLIMITED POWER OF MODELLING AT PLEASURE THE REPRESENTATIVES OF THE NA- TION ; yet SO lit tie jealousy had it created, that the Commons, of themselves, witli- out any Court influence or intrigue, and contrary to some former votes of tlieir own, confirmed it in the twenty third of Elizabeth. At that time, though some members whose places had been supplied, on account of sickness, having now recovered iheir health, appeared in the House, and claimed their seats ; such was the authority of the Chancellor, that, merely out of respect to him, his sentence was adhered to, and the new members were continued In their places. Here a most dangeroun prerogaiicc vms conferred on the Crown; but to show the genius of that age, or rather the channels in which power then ran, the Crown put very little value on this authority; insomuch that, two days afterwards, the Chancellor resigned it back to the Commons, and gave them power to judge of a particular vacancy in their House. And waen the question concerning the Chancellor's new writs was again brought on the carpet towards th'j end of the session, the Commons were so little alarmed at the precedent, that, th',ngh they readmitted some old members whose seats had been vacated on account f slight indispositions, yet they confirmed the Chancellor's sentence in instances where tlie distemper appeared to have been dangerous and incurable. Nor did they proceed any further in vindication of their privileges, than to vote "that during the setting of Parliament, there do not, at any time, any writ go out for choosing or returning any member, without the warrant of the House." In Elizabeth's reign, we may re- mark, and the reigns preceding, sessions of Parliament were not usually the twelfth part so long as the vacations, and during the latter, the Chancellor's power, if he pleased to exert it, was confirmed, at least left, by this vote, as unlimited and unre- strained as ever. In a subsequent Parliament, the absolute authority of the Queen was exerted ia a manner still more open, and began for the first time to give alarm to the C">mmons. New writs liaving been issued by the Chancellor when there was no vacancy, and a controversy arising upon that incident, the Queen sent a message to the House, in- forming them that it was impertinent for them to deal in such matters. These ques- tions, she said, belonged only to the Chancellor ; and she had appointed him to confer with the judges, in order to settle all disputes with regard to elections. The Com- mons had the courage, a few days after, to vote "that it was a most perilous prece- dent, where two Knights of a County were duly elected. If ar^y new writ should is- sue out for a second election, without order of the House Itself ; that the discussing and adjudging of this and such like differences belonged only to the House ; and that there should be no message sent to the Lord Chancellor, not so much as to inquire what he had done in the matter, because it was conceived to be a matter derogatory to the power and privilege of the House." This is the most considerablf, and almost only, instance of parliamentary liberty which occurred during the reign of that prin- cess." 82 The stniggle was renewed In the next reign— that of James I. Hnme contlnned: The Sir Francis Goodwin was chosen member from the County of Bucks, and hls^ return, as usual, was made into chancery. The Chancellor,pronouncinghim an outlaw, ▼acated his seat and issued writs for a new election. Sir John Fortescue was chosen In his place by the County. But the first act of the House was to reverse the Chancel- lor's sentence, and restore Sir Francis to his seat. At the King's suggestion the Lorda desired a conference on the subject, but were absolutely refused by the Commons, a3- the question entirely regarded their own privileges: the Commons, however, agreed to make a remonstrance to the King by the mouth of their Speaker, in which they main- tained, that, though the returns were by form made into chancery, yet the sole rifjbt of judging with regard to elect i07is belonged to the House itself, not to the Chancellor. Jame» was not satisfied, and ordered a conference between the House and the Judges, whose opinion in this case was opposite to that of the Commons. * * * • The Commons were in some perplexity. Their eyes were now opened and they saw the consequences of that power which had been assumed by the Chancellor and to which their predecessors had, in some Instances, blindly submitted. "By this course.' said a member, "the free election of the Counties is taken away, and none shall be chosen but such as shall please the King and Council. Let us, therefore with fortitude, un- derstanding and sincerity, seek to maintain our privilege. This cannot be construed any contempt in us, but merely a maintenance of our common rights, which our an- cestors have left us, and which it is just and fit for us to transmit to our posterity." Another said : " This may be called a quo warranto to seize all our liberties." "A Chancellor," added a third, '-by this course may call a Parliment consisting of what- persons he pleases. Any suggestion by any person may be the cause of sending a new writ. It is come to this question — whether the Chancery or Parliment ought to have au- thority." Notwithstanding this watchful spirit of liberty which now appeared in the Commons, their deference for majesty was so great that they appointed a committee- to confer with the Judges before the King and Council. There the question of law began to appear, in James' eyes, a little more doubtful than he had hitherto imagined; it: and in order to extricate himself with some honor, he proposed that both Good- win and Fortescue should be set aside and a writ be issued by warrant of the House, for a new election. Goodwin gave his consent, and the Commons embraced the expedl-- lent; but in such a manner, that while they showed their regard for the King, they se- cured for the future the free possession of their seats, and the right which they claimed, of' judging solely in their own elections and returns. The dispute lasted the greater part of three weeks, and Hallam Informs us that' "some of the more eager patriots were dissatisfied at the concession made by vacat- ing Goodwin's seat." The same author observes that "no attempt was ever afterward made to dispute their exclusive jurisdiction." The Constitution of the United States provided for the power of Congress to de- termine its own membership. State Constitutions have tenaciously adhered to the English precedent. And the Constitution of Kansas distinctly provides that each House shall "judge of the elections, returns and qualifictions of its own members." [Article 2. Section 8.] In the halcyon days when Populists as yet were not, the Su- preme Court of Kansas thus explained the effect of that provision: "The Constitution declares. Article 2, Section 8, that each House shall judge of' the elections, returns and qualiiications of Its own members. This is a grant of fiower, and constitutes each House the ultimate tribunal as to the qualifications of ts own members. The two Houses acting conjointly do not decide. Each House- acts for itself : a?id/jw?i /fs decision there is no appeal, not even to the two Houses. * * * * This grant of power is, in its very nature, exclusive: and it is necessary to preserve the entire independence of the two Houses. Being a< power exclusively vested in it, it cannot be granted away or transferred to any other tribunal or officer." [The State vs. Gilmore, 20 'Kansas Supreme Court ileports, 551-554. }• Again, in another case at the same term : "This power Is exclusively vested in each House, and cannothy its own consent, or by legislatice action- be vested In any other tribunal or officer." [State vs. Tomlin- •on, 20 Kansas Supreme Court Repoi ts, 692-702.1 If these decisions were right, it is difficult to understand how "by legislative ac- tion" the power could have been vested in the State Canvassing Board and the Secre- tary of State to "judge of the elections, returns and qualifications" of members of each House: and, accordingly, the Supreme Court of Maine — the Judges being Rei>ub- licans — decided that such power ca?i(io; be conferred on the Canvassing Board. Our statute simply provides for the issuing of certificates. It says nothing as to their effect. But there was in jMaine a statute as follows: "No per.-on shall be allowed to vote or take part in the organization of either branch of the Legislature as a member, unless his name appears upon the certified rollf of that branch of the Legislature in which he claims to act." Surely, a statute ought to be as high authority as a text book written by Luthei? 83 •Cushlnfjor even by Judge McCrary; and this statute provided for exactly what Chief Justice Horton, on the authority of garbled extracts from those text, books, declared ■vto be universally the law as to the organization of legislative bodies. But, .see what the Republican Supreme Court of Maine said of this statute: •'We tuink it clearly repugnant to the Constitution, which declares that each House shall be the judge of the election and qualifications of its own members. It aims to control the action of eacli within its constitutional power until after a full organization, with a utajority determined and fixed by the Governor and Council. By their action in granting certificates to men not appearing to be elected, they may con- stitute each House with a majority to suit their own purposes; thus strangling and • overthrowing the popular will as honestly expressed by the ballot. The doctrine of that act gives to the Executive Department the power to rob the people of the Legis- lature they have chosen, and force upon them one to serve its own purposes. It pois- ons the very fountains of legislation, and tends to corrupt the Legislative Department of the Government. It strikes a death-blow at the heart of popular government, and renders its foundations and great bulwark — the will of the people as expressed by the ■ballot — a farce. Each House has tlie same power and is charged with the same duty — to declare the election of its own members and organize itself in any legitimate way as before the passage of that act. (Opinions of the Justices. 70 Maine Reports, 6a6, 5S7.)' Nor did that Court stop here. It further dooIircJl: "Holders of summons which are void for the reason that the Goveruor and Coun- cil have failed to correctly perform the constitutional obligation resting upon them, have no right to take part in the organization or in any subsequent proceedings of the House to which they are wrongly certificated. They are not in fact members Bnt the mifinbers rightfully elected a,Te eniiiled to a,ppea,T a.nd act in the organization of the Houses to which they belong, i;n^.'s.s'osed Senate and House are really such. The Senate and the Governor nwn-i decide whether a certain body is the House, and decide at the beginning of the legislative session. Until that decision sl.a'l have been made, there must be legi:^lative paralysis. Neither the Senate nor the Governor can seek the advice of the Courts before deciding. The Senate and the Governor, when acting within their respective spheres, are the constitutional peers of the judiciary, and their decisions cannot be reviewed and reversed by the Coui'ts. The question which of two rival bodies is the Legislature, is a poli.ticnL not a. judicial question, and the Courts must follow, without original inquiry, the decision of the political branch of the gov- ernment. This is settled law. Beginning with the case of Luther vs. Borden (7 Howard's U.S. Sup. Ct. Reports, 1), growing out of the conflict between two rival State Governments inKhode Island, and known to history as "Dorr's Rebellion," the Supreme Court has st(5adly adhered to this doctrine. In that case, Mr. Justice Woodbury declared that such questions as, "Whether what are jiublished and acted on as the laws and Constitution of a State were made by persons duly chosen or not," are "too near all the great fundamental principles of government, and are too momentous ever to have been entrusted by our zealous fathers to a body of men like judges." In reconstruction days, the State of Georgia brought a suit in the Supreme Court of the United States to enjoin the Secretary of War, Edwin M. Stanton, from setting up a Government in that State un- der the act of Congress on the ground that the act was void: but the Court refused to even discuss the question whether the act was constitutional or not, holding that it was a political question which the court had no right to entertain. [Georgia vs, Stanton, 6 Wallace.] Who does not remember the recent attempt of the British Gov- ernment to have the Supreme Court of the United States decide the Behring sea con- troversy. The Court referred to its decision in Luther vs. Borden, and held the ques- tion political. [Behring Sea Case, 143 U. S., 503.] In a case involving the question of American rights in the Guano Islands, the same Court declared: "Who is the sover- eign, de jun or de facto, oi a, territory, is not a judicial but a political question, the determination of which by the legislative and executive departments of any Govern- ment conclusively binds the judges, as well as all other oflicers, citizens and subjects of that Government." [Jones vs. United States, 137 U. S., 'Ju2.] And in that opinion of the Supreme Court of Georgia to which Chief Justice Horton seems to have taken 60 strong and so unaccountable a dislike, is imbedded this judicial gem: "To set up the judiciary as an arbiter of the legality of the legislature.a co-ordin- ate department of the government — to make it the oracle to which contending revol- utionists shall come for judgment as to which is right — is to enthrone it as the supreme power in the State, and to confer upon it a jurisdiction dangerous to its own existence, and never contemplated by the fundamental law. To decide when a law confoi'ms to the Constitution IS one thing; to decide who are the lawmakers is another. To do the one, the people have expressly granted to the Courts; to do the other, there is not only no grant, but the claim of such a riglit is a claim foreign to the judicial office, dangerous to the independence of the legislative and executive departments, and eon- tranj la the first principles of a Government oj tlie people. Necessarily, the Courts must decide what is the law — what is the legal will of the law-making power. But if they have the right to go behind this, and to inquire whether the lawmaking power is it- 86 ■elf \ega,l,th€y beeome, in effect, the supreme poxuer in the State!" [The Macon and Augusta* Bailroad Co. vs. Little, 4o Georgia Reports, 4OG-407.] In order to escape from the brand of usurper this Georgia court fixes upon hlm^ Chief Justice Horton resorts to what in any man but a judge would be called a de- liberate falsehood. The reader shall judge whether my accusation be well founded. Here is the statement of the Chief Justice of Kansas, as taken from the opinion pub- lished in the Topeka Daily Capital: "It has been said that there are some views the other way, and a case from Penn- sylvania is cited, and a case f rrm Georgia is cited. In the Pennsylvania case, the ex- act question as to the division of the Legislature was not before the Court. If the- Court intended to say in that case that an injunction should not be granted against the Supreme Legislature, this Court would readily concur with it. If it intended to go further than that, this Court then calls the attention of Counsel to the fact that npon political questions, as they are denominated in Pennsylvania and Georgia, thia Court has heretofore differed from the Courts of tliese States. * * * There were no politics in that case. The Governor believed his duty was one way and this Court, after examining the matter, said that the rule laid down in Penn- sylvania and Georgia, and in several other States, was not the best rule, and was not the one which should be recognized by this Court. We referred directly to the Pennsylvania and Georgia decisions upon this question. * * * ♦ In the case of Marlin vs. Ingram, found in the 8cSth Kansas on page 641. all of these decisions are cited. They are all gone over; and in a most learned and able opin- ion by Mr. Justice Valentine, this whole question is examined, and so far as that particular question was concerned, was there settled. This Court differed from the Supreme Courts of the States of Pennsylvania and Georgia.,'" Waiving the naive remark about "political questions, as they are denominated in Pe^insylvania and Georgia," when the very cases lead to him in argument and thrust upon his notice in a printed brief of extracts, showed that such questions are "de- nominated political" by all courts, including the Supreme Court of the United States — let us examine this quotation from the Chief Justice's opinion with refer- erence to its truth or falsehood. Precisely what Georgia cases did he intend the public to suppose he meant by these remarks? Who, upon reading this statement does not understand it to mean that the Kansas Supreme Court, in quiet times, had examined the very Georgia cases we had just referred to in argument, and that their doc- trine had been overruled? Who does not understand it to mean that, in the case alluded to in the case of Martin vs. Ingram [SS Kansas Reports] either of the Georgia cases cited in the Gunn habeas corpus, or the doctrjne of which tliey treat. One Geor- gia case is mentioned there in Mr. Justice Valentine's opinion, and that was thirty- seven volumes earlier than the case from which I have quoted and which caused the Chief Justice so much trouble, and that one Georgia ease of ancient date had not the slightest relation to a political question. Mr. Justice Valentine's opinion lies before me as I write; and so far is it from being true that the Kansas Supreme Court "dif- fered from" the Supreme Court of Georgia, even in the case that was cited, that iNTr. Justice Valentine, at page (159, actually quotes a passage from Low vs. Lowns, Gover- nor. 8 Georgia, 372, to show that "no such question" as that under consideration then by the Supreme Court of Kansas, "was involved in the facts of" the Georgia case, and that the Georgia court was disposed to take the view the Kansas Supreme Court took of the same question. Precisely what was that Kansas case of which the Chief Justice makes so much? The Governor was. by statute, required to perform certain acts in the organization of new Counties; and in (irant County such proceedings had been taken that a temporary County seat was to be located, when the gravest frauds were discoveied to have been committed for bribes by the drunken Register of votes for county seat; and the suit was an injunction to prevent the Governor from declar- ing the town of Ulysses the temporary County seat. It was claimed that the duty cast by the Statute upon the Governor was not one to be performed as an executive act, but was wholly ministerial; and the question, not unfamiliar to lawyers, was whether the court had jurisdiction over the Goveinor as to such an act. The court reviewed the authorities, and hesitatingly held that, as to such acts, it had jurisdiction; but also held that the acts in question were not mini:^terial.and therefore decided in favor of the Governor and dissolved the temporary injunction wliich had been granted against him by a district judge 1 The precise point decided, as shown by the first syl- labus, was this : "Where purely ministerial dutiesare, by Statute, imposed upon the Governor, and such duties are only such as might be devolved upon any other officer or agent, the performance of such duties may be controlled by mandamus or injunction." (38 Kan- sas Reports, 641.) I leave the reader to judge whether there is any kinship possible between that ease and that in the Supreme' Court of Georgia from the able opinion in which I hav9 87 fluoted. But we are not yet through. We cited Kerr vs. Trego, decided by the Suprema ■Court of Pennsylvania (47 Penn. St. Rep.), in which that Court stated that legislative todies were not suliject to the Courts, but were above the law.. The Chief Justice would have us believe that this decision also fell under judicial condemnation in the case against Govei'nor Martin. He " calls the attention of counsel to the fact that upon political questions, as they are denominated in Pennsylvania and Georgia, this Court has heretofore differed from the Courts of those States;" and he is indiscreet enough to be specific and refei us to the case against Governor Martin. Now, I repeat the offer here I made as to tlie Georgia cases. If the Chief Justice will find in the Governor Martin decision the remotest allusion to the Pennsylvania case of Kerr vs. Trego, or will explain how the decision in that case could have been in any manner pertinent to the case against Governor Martin, I will confess the decision recognizing the Douglass House to have been the wisest judicial deliverance since Solomon dis- posed of the disputed baby. The Chief Justice's trouble with the Pennsylvania case was that it is the solitary decision leferred to in that remarkable book, so much be- praised by the Chief Justice— "McCrary on Elec'ions" — in support of the suggestion made in that work as to the way to decide between rival legislative bodies; and the decision, when examined, is not with reference to the Legislature, but only concerns City Councils, while the Court expressly states that itg doctrine can not be applied to the Legislature of the State, because that body is beyond the reachof Courts— is above the law I This exposure of the sandy foundation of the Chief Justice's favorite text book gave rise to the necessity of wriggling out of Kerr vs. Trego. Chief Justice Hor- ton says that, in the case against Governor Martin, the Supreme Court of Kansas "referred directly to the Pennsylvania and Georgia decisions." If he did not mean Eeople should understand he meant " the Pennsylvania and Georgia decisions" cited y counsel in the Gunn liabeos corpus case, pray why did he mention " Pennsylvania and Georgia decisions" at all? If he did mean to be so understood, was his memory at fault? Impossible; for he had been reading the Martin case, and actually quoted from its decision In the opinion he was delivering. His statements were, therefore, either utterly irrelevant, or he meant to delude the people into believing an insinu- ated lie ; for neither the Pennsylvania nor the Georgia case cited in the Gunn case was even so much as mentioned— nor was the doctrine of either alluded to even remotely —in the case against Governor Martin I THE VERY FIRST OF ITS KIND. Never before In English nor in American judicial history has any Court, save the Republican District Court of Shawnee County, reversed the action of the Senate or the Governor in recognizing the House of Representatives. The question is not new; it has arisen before; but this is absolutely the first time that a Court has disregarded the decision of the political branch of the Government as to whicli of two rival bodies should be considered the House 1 The only precedent the Chief Justice could cite was the decision of the Supreme Judicial Court of Maine ; and concernijig that, we referred him to the note of Judge Cooley, in his work on "Constitutional Limitations:" "In Maine, where there were two conflicting bodies, each claiming the right to exercise the legislative power, the Judiciary asserted and enforced the right to decide between them. It is to be observed, however, that the Governor had already recoanized the same body in whose favor the Court decided, and had approved the act whose validity •came in question In the Court." The Chief Justice carefully refrained from alluding, in his opinion, to this obser- vation. Give him all he can get out of the Maine case, and it still remains true that'B Kansas Court has the indisputable honor of being the only Court which has ever as- sumed to destroy a branch of the Legislature recognized by the other branch or by the •Governor. THE USURPATION CONDEMNED. The bold claim is made in this opinion that the Courts are the sole authoritative Interpreters of the Constitution; that the Supreme Court's decisions upon constitu- tional questions must control the political department of the Government, even when acting within its exclusive sphere. What a remarkable contrast between this latter- - of the State House, Eugene Hagan, Esq., a "stand-up" Democrat, and an intimate friend and asso- ciate of the Santa Fe Railroad Company's attorneys, went into the basement where the Supreme Court Justices vegetate, and, without the knowledge of any one inter- ested in the Dunsmore House, obtained for Gunn a writ of habras corpus, which raised the single question whether the body presided over by Douglass was the House of Representatives. The proceeding had already been twice continued, when, on Thurs- day of that eventful week, I\Ir. Justice Allen insisted that the Attorney General should be notified, and the hearing was again postponed till Saturday morning at 10 o'clock. About noon Thursday we received our first information that such a proceeding had been brought or that such a question had been raised in that Court. The Republicans were managing both sides of the case, beyond a doubt; and the Chief Justice, as I shall shovY, was a party to the collusive scheme. It was at first agreed that the Attorney General should move a dismissal of the proceedings, on the ground that they were a mere sham ; but as Mr. Hagan proposed that we should act with him, and as the ques- tion was bound to be raised in some manner in any event, the motion to dismiss was abandoned, the Governor appointed Judge Doster and myself to appear with the At- torney General, and we appeared with Mr. Hagan Saturday morning. The Court then set the case for hearing Tuesday morning, at which time the hearing began. Now, while this proceeding was jjending. Chief Justice Horton's stenographer was in the Chief Justice's room and elsewhere, wearing the red badge of a Republican House Deputy Sergeant-at-Arms, and was still wearing it the very morning we first appeared in the case. While we were waiting for the Justices to come in, this stenographer emerged from the Chief Justice's room and came into the court room to get a drink of water. I looked inquiringly at his red badge, and when next I saw him it had disap- peared. Is it likely his stenographer would have been wearing that badge had not the Chief Justice alreadj^ decided the Douglass House valid? But this is not all. I went to the State Library to examine some books, especially the Maine decisions, bearing upon the questions in the Gunn case, but discovered the Chief Justice had had them for some time. He had had them at his house /o;- rise in a cousultatinn with somebody. He had them then jn his room at the Capitol, and the Librarian got me the iemporanj use of them— they were to be immediately returned to the Chief Justice. Judge Dos- ter and I were embarrasedin our preparation for trial by tlie annoying circumstance that a number of other books bearing upon the case were missing from the library; and we liad been blaming the counsel on the other side with the cause of our troubles, but we discovered that we were accusing them erroneously— that the books were not in their possession. Where vvere the books? In Judge Horton's room? There is, in short, not the slightest reason to doubt that before we had discovered the exist- ence of the jiroceedings. Judge Horton had been preparing to render a decision in the case sustaining the Douglass House ; and, in all probability, the proceedings had been adjoitrned in order to give him more time to prepare to announce his decision. Mr. Justice Allen's requirement that the Attorney General should be notified doubtless interfered some what with theChief Justice's programme ;but,if Mr. Justice Allen should see what I have here written, he will discover why no longer time was consumed by his associate In considering before deciding : they had decided the case before the liearing—hncl been briefing up as industriously as the other lawyers in the case. I have not the slightest doubt that it was the deliberate intention to have that case heard and de- cided before we should be permitted to know that such a proceeding had been brouglit; and that a public argument of our side of the controversy was to be avoided as unde- sirable. Not even the newspapers mentioned the case. I have been twenty-two years a member of the Supreme Court bar; I get my living to-day by practicing law; and such a charge as this against two members of the highest Court in the State can do me little good in a professional way. Besides, one of the Judges, at least, is a gentle- man I very much like, and perhaps the liking is mutual. Let no reader suppose, there- for that this accusation of prejudgment is lightly made. From what I have said, I think the reader can see that the Cliief Justice at least had been actually at work m the case before the Attorney General and his associates had been told of its existence and that a decision sustaining the Douglass House had been premeditated and deter- mined upon; that before a word of argument had been uttered, the decision after- I-.ofC. 89 ■wards rendered by the Chief Justice had become already "a foregone conclusion " Our arguments had as well been made to a statue; our authorities were read to ears deafened by prejudgment; we were heard for appearance sake alone— not by an un- biased mind, honestly desirous of information. If, therefore, the Court was guilty of usurpation, it was a premeditated usurpation. THE MOTIVE. This decision destroyed the prosecutor— the Dunsmore House— whence alone ar- ticles of impeachment against these Judges might nossibly emanate. It destroyed all the legislation feared by corporations and alien mortgagees, and prevented all Greed had so far dreaded. It was without precedent. It was an usurpation— a couf) d'ctnt by the Santa Fe Railroad Company as audacious as that by Napoleon " the Little." Through this decision ran the brutal consciousness of the cowarcf bully : "We are two to one, and can do as we choose." Am I not justified in concluding this review with the assertion that Chief Justice Horton's opinion is a woof of brutal sophistry, de- liberately woven by a partisan Judge to conceal from the eyes of the people a premedi- tated act of audacious usurpation? That its motive was to prevent the supremacy of the people over the Aristocracy of Greed? That this usurpation was deemed necessary in order to save alien owners of railroads and alien mortgagees from the justice they feared at the hands of the Government by their victims? The coup d'etat was success- ful. It left the PriesvS of Mammon free for two more years to make sacrifice of human happiness and of human lives— to blot the joyful sunlight of childhood from the world of the children of the poor— to crush the rising hope in the bosom of toiling misery. It made two men— a majority of the Supreme Court— as absolute over the people of Kansas as any Eastern monarch has ever been over a nation of Orient slaves. Beneath these two men are all the people and all the departments of Gov- ernment, while above these two men there is no power this side of God himself! Our fathers beheaded Charles I. for attempting to be supreme over the people— to acknowl- edge no control by parliament. France served Louis XVI. a similar turn. George III. was informed at Bunker Hill that American freedmen could not be made slaves, and Yorktown established the truth of the information. It is an old Saxon prejudice that Legislatures, coming fresh from the people, not judges standing by force of traditional environments in the way of reforms, shall be supreme in the State. See what some patriot Judges have said in cases like this : "To whatever extent this Court might err in denying the rightful authority of the law-making department, we should chain that authority, for a long period, at our feet. It is better and safer, therefore, that the judiciary, if err it mu-t, should not err in that direction. If either department must overstep the limits of its constitutional power, it should be that whose official life will soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes." (Supreme Court of Indiana, in Brown vs. Buzaw, 24 Ind., 194, and Robertson vs. State, 109Ind., 127.) "If a mistake, or even an intentional wrong, should be committed by the Execu- tive, the remedies under our form of government are ample and prompt— the wrong to be suffered temporary. If. on the other hand, the precedent of interference by one department with the discharge of its duties by another, should be established by the form of a judicial decision, a dangerous blow would, in our judgment, be struck at one of the most vital principles of our system of government, the consequences of which no one could fortell, but which no intelligent and candid citizen could fail to see must be lasting and pernicious." (Justices of the Supreme Court of New Hampshire, 56 N. H.,577.) CONCLUSION. Now, my reader, I have been called hard names because some six years ago I be- gan to cry aloud to the people who still were sleeping the sleep of political and so- cial death ; because, before it had come, I raised my feeble voice to warn men of what has at last come to pass. Judge ye whether I spake treason when I clamored that the people might be free. Turn back to the quotations I have given in this review, and see whence they were gathered. Are they the"wild-eyed"utterances of red-handed revol- utionists? Is not every one of them from a source respected hitherto even by Pluto- cracy itself? Is this review the insane drivel of some poor wretch maddened by un- slaked thirst for official snoils? Not even my bitterest calumniator has whispered any motive for my struggles, but that of sincere desire to desaroy the existing social hell, that there may come to this beautiful world asocial heaven ; and to the intensest zeal for that consummation I delight to plead guilty. But you— what do YOU mean to do? Two men are supreme over you. Are judges more desirable as tyrants than are other men? You have a dual absolute King in Kansas. Two men are to rule you, being themselves subject to no rule. Remember what that stern old champion of freedom, John Milton, wrote when Charles Stuart claimed the power these two judges have usurped: "He that bids a man reign over him above law, may bid as well a savage beast." Topeka, Kansas, G. C. CLEMENS. (OPPOSITE UNION DEPOT) FIRST-CLASS IN EVERY RESPECT. CABLE CARS PASS THE DOOR FOR ALL PARTS OF THE OITY. KANSAS CITY, IVIO. Attorney at La^izy, 410 KANSAS AVENUE. TOPEKA. KANSAS. STORE: 224 Kansas Avenue ,Topeka. Kansas. FACTORY AJSID HIDE HOUSE: 531 and 533 Kansas Avenue, N. OSC/IR KR/IU5S, -DKALER IN- LEATER FINDINGS AND SHOE STORE SUPPLIES, Saddlery and Saddlery Hard\vare. Wholesale and Retail Dealers In glass. Paints. O'ls. Va^nisllES. BfustiBS. Ladders and Painters' Supplies. 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BKADY, Greneral Manager, Topeka, Kaiis£ The Kansas City Stock Yards Are the most commodious and best appointed in the Missouri valley. The fact that higher prices are realized here than in the east Is dae to the locution at these yards of eight packing houses, with an aggregate dally capacity of 3,600 cattle and 37,200 hogs, and the regular attendance of sharp, com- petitive buyers for the packing houses of Omaha, Chica.;o, St Louis, Indianapolis, Cincinnati, New York and Boston. The eighteen railroads running Into Kansas City have direct connections with the yards. FARMS Official receipts for 1891 • • - .'Slaughtered in Kansas City Sold to feeders Sold to shippers '1 otal Sold in Kansas City in 1891 Cattle and Calves. 1,347,487 r)70.7til 237,5t>0 355,625 1,163,946 Hogs. Sheep. Horses and Mules. 2,599,109 1,995,652 17,672 585,330 2,598,654 386,760 209,641 17,485 42,781 269,844 31,740 Cars. 91,456 C.F.MORSE. E.E.RICHARDSON, H. P. CHILD, General Manager, Secretary and Treasurer. Asst. Gen. Mgr. E. RUST. Superintendent. ^ GRASS AND FIELD SEEDS OF ALL KINDS. J. G. PEPPAl^O, 1400-1402 Union Ave., Kansas City, Mo.