The sun., 1915-10-03
Judge Cullen on the New COnstitu-
tlOn.

Former Chief Judge EDGAR NJ. CUL.
LEN Of the Court Of Appeals has ad-
dressed to the voters Of this state a
notable protest against the adoption
Of the new Constitution proposed by
the Constitutional Convention Of 1918.
Coming, as 1t does. from one OF the
most eminent lawyers Of the State and
country. this document Is worthy OF
the most careful and respectful con.
sideration.
Judge Cullen objects to the work
Of the Constitutional Convention not
on account of what that body has
done hut what it omitted to do. The
basis Of his protest is the refusal Of
the convention 10 insert in the bill Of
rights provision prohibiting any
military tribunal from exercising ju.
risdiction over a civilian not engaged
in the military or naval service while
the regularly constituted courts are
open for the administration Of justice.
An amendment To this effect was IA
vorably reported by the committee on
the bill Of rights and was supported
in able speeches by Mr.. LOUIS MAR
SHALL. the chairman Of the commit
tee. and by Mr.. GEORGE W. WICKER
SHAN, former Genera Of the
United States. but It was rejected by
the convention after an open debate
by vote Of IL to 20.
The necessity of a prohibition
against military trials of civilians
when the ordinary civil courts are
open has been made manifest by an
extraordinary decision Of the supreme
Court Of West Virginia in case aris
ing out OF the strikes in the Goa
mining regions Of that State in 1912
In that case 1t was held that a mill
tary commission might try civilians
who were in no manner connected
with the military service OF the State
notwithstanding that the civil courts
were open and available for the trla'
Of such offenders.
This startling doctrine Of the West
Virginia courts IL in direct conflict
with the decision Of the Supreme
Court Of the United States in the
celebrated Milligan case. which arose
in Indiana toward the end Of the civil
war. In that case MILL1GAN. a citi
zen OF Indiana, in no wise connected
with the military service. was tried
before military commission for trea
of Indiana had never been seat OF
war and all the civil courts were oper
therein. After his conviction MILL
GAN sought rclea SO by means Of wrl
Of habcas corpus. and his case wa.
certified to the Supreme Court Of thu
United States. That tribunal. by one
of the greatest decisions in its history
held that the action of the military
| commits sSiOn was null and void. The
Constitution Of the United States wa,
! declared To be n charter for the Gov
ernment in times of war Ms well as II
peace. and in response to the argumen
that military trials were necessary Il
save the country the court said
"If this were true It could be IA /,
that a country preserved at the sacrifc,
Of all the cardinal principles of liber,-
is not worth the cost OF preservation"
There can he no doubt that IL tn,
! West Virginia ease to which we hav,
referred had been reviewed by tn
Supreme Court of the United State
the Judgment therein would have bee,
reversed in accordance with the doc
trim" Of tho Milligan case: 1t was no
NO reviewed, however, and the dccl
sion stands AS thai of the court of las
resort IN sovereign State. assertln
the proposition that civilians are trl
able by military tribunals although
the accused persons have no coDnec
tlon with the military service an,