New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1915-10-17
CULLEN AT FAULT,
IS ROOFS REPLY
Sees Anti-Militar Clause
for New Constitution as
Boomerang.
SHOWS HOW LABOR
MIGHT SUFFER
Ex-senator Declares Command
ants Could Seize Power by
Closing Courts.

Ex-senator Elihu Root. who was
president Of the recent Constitutional
Convention. issued statement yester-
dav in reply % the contention Of Edgar
3d. Cullen, cx-Chicf Judge Of the Court
Of Appeals. that the proposed eonstitu-
ton should be defeated al the election
on November . because it did not in
oirde the amendment. offered largely
by labor interests. providing that no
military tribunal should exercise juris-
dictor over a civilian unless engaged
90 military or naval service.
Mr Root said in part:
The discussion on this subject has
involved some misunderstanding and
some Misrepresentation 20 the effect
that the new ~cvision changes the pres
ent constitution in this respect ANY
such idea is wholly false. The revision
does not add word 10 or take word
from the provisions Of the existing
constitution affecting this subject. II
the revision is adopted the guarantees
Of the constitution against the abuse OF
military power will be left exactly as
they have been since 1921 and as they
have been in substance since l777.
1T is said, however, that We ought
10 put an additional provision into our
constitution because Of the decisions IN
some West Virginia cases which sus-
tanned trials by military commissions
100 that state during the strike contro-
vcrsies Of 1912.
Military Power Curbed.
lIr. Root cited the additional pro
vision proposed which provides: NOR
shall any military tribunal exercise
Jurisdiction over civilian. unless en-
gagged in military or naval services
while the regularly constituted state
courts are open 10 administer lusuce'
and pointed out that the West Virginia
cases show just the contrary.
"Thcv show the futilty Of adding
such provisions TO the broad and un-
compromising guarantees Of civil lib
ertv which our constitution already
contains" he continued. "for the con-
sutution Of West Virginia contained
such provision as is now urged upon
rs. Notwithstanding these provisions,
Nance and others were tried by mill
farv commission for a mlsdemcanor
and sent % the penitentiary. The SUI
prcme Court of West Virginia sus-
taincd the decision not upon the
ground that the provisions Of the con-
sjtution were insufficient but upon
'lo ground that the constitution and
ID The provisions i'm il were suspended
rrd made imperative By the lnsurrec'
ton.
"If we were 20 put into the consti-
tuton the kind OF provision which Is
now proposed. that no citizen shall be
tried by q military tribunal while the
civil courts are open, we put INTO the
constitution also a necessary lmpllca-
ton that civilians may be tried by
military tribunals when the courts are
not open; that is 10 say, # we put
such a provision into the constitution,
when martial law has been declared
within d given district and the courts
within that district have been closed
for the first time in our history the
military commander would have the
constitutional right 10 try citizens Tor
offences against the law. When we
reflect upon the ease with which a
military commander can arrange that
courts shall be closed in time OF dis
turbance. it is apparent that such o
provision would be opening the door
for the destruction by military power
Of the most valuable guarantees Of our
constitutional liberty
Mr. Root said that if he had been in
the committee when the proposed addi-
ton 10 the constitution was brought
uo be probably would have voted for
10. not because he ever thought II nee
cssary. hut "a a correct statement of
existing law. But he would have made
O. mistake by voting for II. he said,
through not fully realizing its effect,
as he has pointed out. Instead Cf add
ing strength 20 the provisions against
military usurpation, 10 would have
made the constitutional guarantees of
civil liberty weaker rather than strong
ar. he declared.
Ex-senator Root finished his state
mCnt by pointing out that, although
cX-Judge Cullen was chairman Of a
committee Of the State Bar Association
appointed TO make suggestions 70 the
convention, and the committee did
make a every able report in
no way did ex-Judge Cullen suggest
the amendment which he now regards
as so important as 10 give its omis-
sion as a reason for the defeat Of the
proposed constitution. Mr.. Roots CON
cusion was that ex-JudGe Cullen did
not thea regard the amendment as i'm
portant or desirable.
81 think he was right then and wrong
now" sand Mr, Root.