The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-10-10
THE BILL OF RIGHTS.
Delegate Parker Explains the Action
on the Military Article.


TO TUE I;DiTop OF TIL SUN-Sir: or
the criticism by the Hon. Edgar NJ. Gull
len, former chief Judge OF the Court nj
Appeals. of tho action Of tho Coistitu-
tlonai Convention in rejecting MIR. Mar
snail's proposed amendment TO the Ril
of Rights to the effect that no civilian
should he tried by u military court while
the regularly constituted state courts
were open to administer justice, you say
cdltorially: "TIe delegates who voted
alalnst the proposed amen dmcnt owe II
to the public to explain their votes" j
think you are right. for the reason
that SO few voters understand the or
gdnizatlon and needs OF n military force
in the field, and as one who voted against
the proposed amendment ! wish to state
my reasons for so doing.
The crying need OF proper military
! preparedness IN the state and nation
is or ought to he painfully apparent to
every voter. As "a member of the Com
m.ttee on Militia and Military Affairs
of the Constitutional Convention ! pro-
, posed various amendments to that COM
mittee to meet hat need. A.. for In
stance. that compulsory military train.
ing should he a condition accompanying
all free state scholarships granted to
males. This and several other similar
proposals were summarily rejected by
W. Wv Nv
convention.
MIR. Marshall. with two other members
OF the Committee on the Hlll OF Rights,
waited upon "A subcommittee. OF which
was n member, of ,hc Committee on
Militia and Military Affairs. They pro-
posed the follow ne amendment and
asked our opinion:
! Nor shall any military tribunal exer-
else Jurisdiction over a civilian while the
| aH.fa 4, ..aasEs.t,l Gf.ta Ntrs nfa imam
to administer justice.
our subcommittee. composed OF three
members, unanimously objected to this
proposal for the reason that there are
, thousands OF civilians inseparably con-
nected with and an integral part OF an
army over whom IL is absolutely neces-
sary for the military tribunal to have
exclusive jurisdiction. For instance,
suppose the teansters of an arnmuni-
ton train. civilians. In the act of bring
ing up ammunition during an engage
ment. should .,rike Under Mr.. Mar
shalrs proposed amendment the COM
handing officer. IL In the state of New
York. and the civilian. "A citizen there
OF. would have to send possibly miles
to the rear to n state court. swear out \
warrant. have It brought back TO the
front and served by the proper legal
officer upon the teamster.
in the meantime. as a result. the en-
gagcinent might be lost. Had the mill
tary tribunal jurisdiction the striking
teaElsters could have been dealt with
~summarily. An Incident similar TO this.
/ believe, did in tact happen during the
Spanish war. when the masters OF two
transports. civilians, struck and refused
TO land their cargocs OF war munitions
and anchored two miles out 10 sea off
Porto Rico. General Miles Immediately
had them arrested and the transports
landed. which he could not have done
had he first been obliged to submit to
the jurisdiction of a civil court.
SO II was pointed out to Mr.. Marshall
that the amendment would absolutely
| cripple and tie the hands Of the mill
ttry at = time when efficiency and
prompt action were necessary To sue
cess, and that, instead OF Gripping the
military forces of the stats. we thought
II high time they should be made more
efficient. The subcommittee then ad-
journed with the understanding that the
committee on the Bill Of Rights would
further amend the proposal and again
meet with us. This they failed to do,
hut shortly before the amendment was
presented to the committee of the whole
by Nj. Marshall there was inserted these
words. unless engaged in military or
naval service SO that the proposed
amendment in It's final form read
Nor shal any military tribunal exercise
jurisdiction over a civilian. unless engaged
in military or naval service. while the regu-
larry constituted state courts are open TO
administer justice.
This wording at first glance seemed
TO obviate the difficulty. but N a mat
ter of fact il lid not. For instance.
suppose some citilian not engaged in
military or naval service" should com
init ONE act that completely frustrated
an entire campaign and his act violated
no penal law OF the state. Under the
proposed amendment the military tribu-
nails could not deal with him. and the
state courts could not deal with hun be-
cause he had violated no state law.
As an example, suppose a war CORE
spondeut AT the front should carelessly
divulge information which resulted in
disaster to ouy troops. Has he violated
any penal law Of the State No. but he
has committed a ser,ou and perhaps
disastrous military offence. Yet If the
%amendnent prevailed ana the state
courts were open the military tribunal
would have 10 jurisdiction and the state
courts would lie obliged To dischargr
him. Therefore 1t was not with any
ilea of usurping the p~rerogatives of the
state courts. but with the sole idea vi
preserving what little military efficiency
We had that the proposed ainendmen
Was voted down ny a vote OF 10 Ia 30,
More especially is this 80 because. rs
every one knows. the rights OF the citi-
zen aye absolutely protected IN this re
spcct hv the doctrine laid down in tn,
Ml.ligau case decided by the Suprem,
Court ~ the United States. and with
the exception of the West Virginia case
which you cite | do not believe our his
tory shows any inclination on the part
uf soldiers to turn Judges, except In
cases of dire necessity, for the preserVa,
ton NJ discipline and the carrying out
Of military campaigns. ! for one de.
clincd to he a party to anv measure
that might tie the hands of our mill,
iaYv forces when I'm the field. and for
that sol" reason voted against III,
amendment. IoHN NJ. rARKER.
Delegate ia the Constitutional ConVen-
tion, Forty-frst Senate district. and
member Of the Committee on Militia
and Military Affairs.
bwEGo. October 2.
Fay. widow for Husband Killed by sentry