The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-10-17
CULLEN'S ARGUMENT
ANSWERED BY ROOT
Clause Suggested for New Con.
stitutiOn Would Have
Weakened Document.
SAYS EX-JUDGE IS WRONG

rlihn Root. as president Of the Consti-
,,,ional Convention. replied yesterday to
IN. contention OF ex-Judge Edgar NJ.
cullen that the Constitution should be
elected because 1t does not contain this
amendment:
Nor shall any military tribunal ex-
a,c,s. jurisdiction over n civilian. un.
l,ss engaged in military or naval ser
vice while the regularly constituted
state courts are open to administer
Justice.
xn, only does the present Constitution
adequately guarantee the people Of New
York against the abuse OF military
pov,r. SAYS ex-senator Root. but that
guarantee would he actually weakened BY
the provision which Judge Cullen insists
upon.
Nr Root also points out hat al
,bough Judge Cullen was chairman OF
, committee Of the State Bar Associa-
,ion which aided the convention with
s1gg,stions. neither in meetings OF that
committee. nor in its report to the Par
Association, nor in discussions by the
yar association. nor in the proposals
Ia before the convention, "was a word
s,id or written or printed about amend
- the Constitution in the way which
,hc Judge now thinks so important
Right Then; WrOng Vow.
our knowledge of Judge Cullen's
Character says Mr.. Root makes the
conclusion inevitable that so long as
lie convention was In session he did not
consider that the addition to the Con-
,t.,u,ion OF such "A specific provision as
r. now urges was important or desir-
sblc. th!nk he was right then and
i wrong now"
Mr.. Roots argumen follows In part:
Tie discussion on this subject has
.,olycd some misunderstanding
some instrumentation TO the effect that
the new revision changes the present
Constitution in this respect. Any such
.l.i il wholly false. The revision does
no; add a word to or take a word from
a., PROV .slons Of the existing Constitu-
Ion Affecting this subject. II the revi-
son Is adopted the guarantees OF the
constitution against the abuse OF MILL
,.ry mower will be- left exactly as they
have been since 1871 and as they have
been In substance since III.
Tho present Constitution contains
and the revision continues full. adequate
AMI effective provisions against trial by
military tribunals. These provisions
ar.
First. No person shall ne held to
answer for n capital or otherwise In
famous crime ,excrpt in cases OF I'M
urachmert, and in cases Of militia when
m actual service, and the land II naval
forces in time OF war. or which TINS
Stat. may keep with the consent or
Congress in time OF peace. and in cases
Of petty larceny. under the regulation
%: he I~..g.sla;ure) unless on present
m,nt or Indictment Of a Grand Jury
ARTICLE t.. section 81 ..
second The trial by jury in all
cases in which IL has been heretofore
used shall remain inviolate forever
,Ar,iylc l., section p =.
Third No person shall be deprived
- If. l1,ert or property without u
process OF law oArticle l., section 60
Criminal Procedure Defined.
No civilian can be tried In this state
Ms 81 military tribuna! 50 long as these
r.avSluus stand in the Constitution. II
! impossible except by violating all three
OF them. We have lived under them for
NOE than a century ana no military
~ huaol has ever tried a civilian BECAUSE,
g. everybody knows. no civilian can be
jrol for crime except beilre A jury OF
hi. .e-rs and after q grand jury has de-
clqred upon its oath that IL believes the
accusation against him to be true.
1t is said. however. that we ought to
iEt an additional provision into our
Constitution because of the decisions in
some West Virginia cases which sus-
p ned tf.als by military commissions
.r mat state during the strike c%Jntrover-
>les OF 1912 Nance vs. Brown II w.
VI, Sc The additional provision pro-
posed - AZ follows:
Nor shall any military tribunal sxer-
else jurisdiction over "A civilian. unless
Engaged in military OF naval service.
Na..e the regularly constituted State
courts ae open to administer justice.
The West Virginia cases show just
'Ne contrary. They show the futility Of
hu4 ng such provisions to the broad and
uugpmpron'sing guarantees of civil lib
'iy which oGr Constitution ALREADY con-
la.Us, for the Constitution of West Viz
-'nia contained such "A provision a. is
NV ~ sed pom us.
Notwithstanding these provisions
Nam" and others were tried by a mill
iary commission for a misdemeanor un-
''f me laws or the state and sent to
the p~tHlteutary. The Supreme Court
a. W st Virginia sustained The decision
30, upon the ground that the provisions
r; The Constitution were insufficient but
a'oh the ground that the Constitution
and 81 the provisions in IL were sus-
,c.lcI and made imperative by the i'm
sllrrrnou
Provision would he Futile,
Man.'~stly such a decision cannot be
'''' p" cutting additional prohibitions
" institution. According to the
q" an additional provisions would
"" .t--. What such a case calls
me "ula rgement of the Con-
're enforcement OF il: the
.., nm who violat il
. -- nf the West Virginia
'."' 4 - they had occurred
rs Ni.t' '...l ,Iunlly have violated
L.L L,-t.- IL ---s Sfafe m Il MN