The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-10-06
THE NEW CONSTITUTION.
Mr.. Louis Marshall Replies to Judge
Cullen and Explains the Defeat Of
the Civl1 Supremacy Amendment.

Is to me a sourc of great surprise to
learn that ex-Chief Judge Cullen. for
whom ! entertain the highest affec-
ton and regard. opposes the approval
Of the new Constitution, not because
Of n unmeritoriOus provision that
II contains, nor because II Is o a
marked Improvement upon h pres
ent Constitution, out solely because
the convention failed to adopt an
amendment. which as chairman Of
the Committee on the Bill of Rights 1
urgently advocated. II was IA proposal
to write into the fundamental law the
principle that. SO long as the regularly
constituted courts of the State are
open to the administration Of justice.
military courts shall be debarred from
exercising jurisdiction over any
civilian.
My attention was first directed to
the subject in the admirable address
delivered by Judge Cullen before the
state Bar Association In January,
1914, shortly after his retirement from
the bench. He there commented upon
the hen recent decisions Of the courts
Of West Virginia which sustained the
Judgments of "a court-martial. which
were properly characterized a unfor-
tunate. Although I doubted that our
courts would ever reach a similar rom
c~lusion, but was confident that they
would follow the doctrines laid down
by the Supreme Court Of the United
States in the great case known an
En- parte Milligan, 4 Wall. 2, out of
abundance Of caution I endeavored to
procure a formal declaration Of the
supremacy of the civil over the mill
tary arm OF the Government 50 far
as civilians were concerned. In the
debate ! supported the measure by
the weight Of Judge Cullen's great
name. by the more recent expressions
in the House OF Lords OF two emf
nent jurists who had been Lord Chan
cellors OF England. Halsbury and
LOreburn. and of the distinguished
student Of government Lord Bryce.
and by such additional arguments as
seemed appropriate. Mr.. Wicker
sham likewise sustained the amend
ment with great earnestness, n
know that it had the approval Of Sem
ator Root
A ma jority Of those who voted on
the oposa u'u "o. I"'"i III ""'p-
ton. Their action did not however,
proceed on opposition to the prih-
ciple. On the contrary, l was assured
that a majority of the convention
favored it. The greater part Of those
who voted in the negative did No be-
cause they deemed the declaration un-
necessary. since from l777 down there
had never in this State arisen a con-
hict between the ciVh II military
tribunals ana a theE were coh-
n that II such "a c'ash shou'u
ever arise the civil courts. oy writ OF
haheas corpus. would. as the supreme
Court OF the United states hah zone
III the Milligan case, Vindica'e the
jurisdiction OF the civil courts
There were others VINO feit that AT
a time when all or Europe was en-
gagged in i~nternecine warfare, when
there was a remote possibiity ina we
might become embroiled' ana wheh
the air was filled with charges and
suspicious OF espionage. the making
or such a declaration IN the IohS'itu-
ton was inopportune. Ihere were
also "A few. hut a very rev, VINO feit
mat the amendment tehded 10 weaken
the prestige OF the militia.
The m on n Bill OF RiShts
was grievousiy disappointed AT the
result nut was cohsoieu by 'he sat
isfaction mat other equaiiv II not
more important Oh iS reco'ni'enoa-
tons were ana ny 'he con-
rictioh tha' IL Is "''hih 'he power
OF the Legislature AT any 'lnhe 10
enact laws whlch VIII accomplish All
that Judge '"''eh "esireS W "''hs
abou'' shoniu any serious uohp' ME-.
as va the P'ehary power !" '"e CIV"
courts 10 ACT III the PROMISES
Nohceu'hS 'ha' 'h' '"hNeh,ioh
shouiu nave voted IN 'he "'tiiia'i'e'
why, ask should us entire WORK
now he rejected because Oh 'his one
sin OF omission H., as Is admitted II