Kansas agitator. [volume] (Garnett, Kan.) 1890-1905, 1897-06-11

government analyUlcdily cousiooICu
there is no such thing rs judicial
power What we call by that name
is function of exa"Ntive power
merely.
st has been customary to consider
government under three distinct gem
eral heads-legislative. executive and
judicial. But if we permit our judg-
ment to act unincumbered by the
habit of multiplied terms, we can per-
ceive no more than two divisions of
power of which civil government is
composed, namely: That of legislating
or enacting laws and that of executing
them. Everything, therefore, apper-
tanning to civil government classes it.
itself under one or the other of these
two divisions. So far as regards the
execution of the laws, that which is
called the execution of judicial power
is strictly and properly the executive
power of the country. 1t is that
power to which every individual has
an appeal, and which causes the laws
to be executed (Paines Rights of
Man, part 9, chapter A.
Courts are but instrumentalities of
executive power!s Except as arbitra-
rly created, they constitute no separ-
ate department OF the political State,
and the work of defying the law in
the process and to the end of its exc
cution is as much the exercise of ex-
ecutive power as the delivery of blow
with the fashioned and completed in
struments by the executive arm and in
vindication of the executive right
81 do not believe it was the inten-
ton of the masters of political science
who framed and set in motion the ma
chinery of this government to disre-
gard the fundamental character of leg
islative and executive power, and OF
judicial power, so-called, and invert
the order of nature by elevating the
agent above the principal, the crea-
ture above the creator, and mignify a
mere function of one Of the parts OF
the system into the life and dominance
Of the system itself.
"We are invested with no power of
correction of the education, manners
or morals of the legislative branch.
The people, in their sovereign capac-
ity, have conferred upon that branch
Legislative power, and whatever that
is it may freely exercise. What is leg
islative power? Primarily and princi-
pally it is the power to declare rules
of action for the government, of the
constituency. and, incidentally, to ac-
quire information necessary to the
discharge of its duty and to adopt and
e',eorce rules of procedure in the con-
duct of it's business.
'That the appointment of commit
tees, such as the one in question, and
the designation of subject matter of
inquiry by concurrent resolution, is
an appropriate and constitutional ex-
ercise Of power, is not denied; in fact,
it is conceded, as l understand. The
court, then, was provided by law
as to composition and subject matter
of jurisdiction. Nothing, therefore,
remained TO be done but to confer
upon it the high judicial prerogative
Of compelling obedience to its orders.
That was done in the very way re-
quired by the majority of this court.
1t was done by law using the term
in it's narrowest and most technical
sense. 1t was done by the statute of
1891, an enactment possessing all the
requisites of the constitutional formal
ity. But in a broader sense than this,
the court in question was provided
by law The legislature, by the act
of 1891, declared that such legislative
investigating committees as might
thereafter be appointed should possess
the judicial power to issue compulsory
process and punish for contempt. 1t
declared that when such commi tees
were appointed they should be courts
1t validated their existence in
advance Of their creation. 1t, in
fact, authorized their appointment
and made ready to their hands the
machinery of judicial power when
they should be called into being. 1t,
therefore, provided them by law.
There is, in my judgment, no merit in
the petitioners contention, and he
ought to be remanded into custody
and be dealt with for his contempt Of
the committees order"