pared this resolution, leaving blanks to be filled up in order to test the liberality of this Association upon the subject. I offer the following resolution:

"Resolved, That the sum of

dollars be, and the same is hereby appropriated by this
Association,
dollars thereof to be
drawn annually each and every year hereafter until the
whole is paid, upon draft drawn by the Association.
for the Preservation of Virginian Antiquities, and to be
used in trust by said Association toward the restoration
furnishing and repairing of the house and lot in the city
of Richmond, Virginia, which was owned and occupied
by John Marshall while he was Chief Justice of the
Supreme Court of the United States of America, and
for the collection of books and manuscripts relating to
Judge Marshall's life and period, and for the accumula-
tion of portraits and relics valuable to the perpetuation
of the memory of Chief Justice Marshall."

PRESIDENT MATHEWS: Is there any discussion of this resolution, or any motion to insert specific amounts?

JUDGE G. W. ATKINSON: It seems to me that we ought to insert, or Col. White ought to insert an exact amount, and that we ought to pay it at once instead of annually. If all the states that have been mentioned and the different societies that have been mentioned are contributing to this enterprise, I take it that they do not expect a great big sum from us. I think we ought to insert a given amount and pay it in cash

JUDGE T. P. JACOBS: I move that the resolution be referred to a special committee of three to be appointed by the President, with instructions to report tomorrow morning.

PRESIDENT MATHEWS: I take it that Col White will have no objection to the motion of Judge Jacobs.

COL. WHITE: None in the world. I know the President will appoint a committee that will give the matter proper consideration.

The motion of Judge Jacobs was seconded by Mr. J.
W. Cummins, put and carried.

The President thereupon appointed as the Special

Committee on John Marshall Resolution, Col. Robert
White, Judge T. P. Jacobs and Judge G. W. Atkinson.

MR. W. W. HUGHES: I would like to call attention to the fact that the Committee on admissions to the American Bar Association is making a strenuous campaign to get members for that Association. I have with me a number of blanks which I brought for the reason that this will be a splendid opportunity to give people the privilege of joining, and also because a majority of the local counsel will be here so that applications can be signed without being sent all over the state. If any of you feel that you would like to join the American Bar Association, I will say that there is a special inducement at this time, as the five dollar fee will not have to accompany the application, as you will be notified of your election later and can pay at that time. The next meeting will be at Montreal, Canada, and the Lord Chancellor of England will be there, and you will have a chance to take a good trip and enjoy a good meeting. I hope that a number of the members of the West Virginia Bar Association who are not already members of the American Bar Association will see fit to let us have their application.

A recess was here taken until two o'clock, p. m.

FIRST DAY AFTERNOON SESSION

The afternoon session was convened in the court room of Part I of the Circuit Court, at the court house, pursuant to recess.

PRESIDENT MATHEWS: I am sorry to report that the Secretary just received the following telegram:

Washington, D. C., July 16, 1913.

Charles McCamic, Secretary,
Wheeling, W. Va.

Senator Borah took ill last night and unable to fill engage. ment today. Earl Venable, Secretary.

PRESIDENT MATHEWS: As the first order of business is the adjourned dicsussion of the President's address, I will request Mr. Hugh Warder, the Vice-President of the Second Congressional District, to occupy the chair.

COL. ROBERT WHITE: I would like to make a report of the committee to whom the resolution about Judge Marshall was referred. The Committee came to the agreement unanimously

to fill the blanks in the resolution, the first blank being filled with eight hundred dollars, and the other blank with two hundred dollars, which will make an appropriation of eight hundred dollars, payable in four years. That is the unanimous report of the Committee.

JUDGE G. W. ATKINSON: It might be well to explain why those amounts were fixed.

COL. ROBERT WHITE: The Committee desired to know what amounts have been appropriated from other sources, and I told them the amounts which had been given by the several Bar Associations, and the amount given by the Richmond Bar Association, being one thousand dollars. The Committee suggested that we ought not to override the Richmond Bar Association, and, I believe upon the suggestion of Governor Atkinson, the blank was filled, naming eight hundred dollars payable in four annual payments.

PRESIDENT MATHEWS: The resolution then reported by the Special Committee reads that the sum of eight hundred dollars be appropriated by this Association, two hundred dollars thereof to be paid annually hereafter until the whole is paid. Is there any discussion of this resolution?

MR. N. C. HUBBARD: Is there any particular reason for taking this up out of its regular order?

JUDGE T. P. JACOBS: The motion referring the resolution to the Special Committee also included the instruction that it be reported tomorrow morning.

MR. N. C. HUBBARD: I move that the matter take its regular place under the regular order of business.

PRESIDENT MATHEWS If there is any objection, the President does not feel at liberty to take up this resolution at this time. I, therefore, request Vice-President Warder to assume the chair for the completion of the unfinished business.

VICE-PRESIDENT WARDER: (Presiding) The discussion of the President's address is now before the Association.

JUDGE T. P. JACOBS: Personally I was very much entertained, and profited, as I knew I should be, when I saw in the public print the subject of the President's address. In my study

of constitutional law, and especially the study of our own state constitution, I am thoroughly in accord with the opinion expressed by the President in his paper. I do not believe there is any authority, either in our fundamental law or in any unwritten law, to bring before a court martial or any court of inquiry convened under and by authority of any military law, to try any citizen of the state of West Virginia or any other state for any violations of law; certainly not when the civil courts are open and are proceeding in an orderly and regular way with the administration of justice. I am satisfied, to the contrary, that no court martial or any other court, called by whatever name, convened under any military law in the state of West Virginia, either in time of war or time of peace, has any authority to try a citizen. We must all concede that a court martial is necessary in the administration of the military law. Discipline is the first rule of order in the army, whether large or small. and to enforce that discipline there must be military courts, and thus, inherently, military courts possess the power to try and convict and punish or acquit, but I do not believe, as I have already said, that any citizen, for any offence which he may commit, can be tried, either in time of war or time of peace, except by the ordinary tribunals provided by the constitution. Now. it may be necessary in the conduct of military operations, at times, for the military to make arrests, but that does not imply the power to try and convict or acquit. My notion at this point is that when it shall be necessary for the military to make arrests. that speedily within a reasonable time, and so speedily as the military officers can, without detriment to the military service, the party arrested should be conveyed before and delivered to the proper civil authority to be tried in the county where the crime has been committed. I think the framers of the constitu tion meant and intended such to be the case. They have provided for a speedy trial. It is, therefore, incumbent, it seems to me, upon a military offiicer making an arrest—and he is, under the constitution, as well as the civil officer or a private citizen, in order to secure that speedy trial, required, under the circumstances, to convey the prisoner before the proper civil authorities, where the prisoner must be tried. It seems to me that no set of circumstances can exist that will warrant-and I speak with due respect to the majority of the Supreme Court of this state, because I believe them to be conscientious men-I do not believe there is any authority existing under the constitution or elsewhere authorizing the military court to try a private citizen for any kind of crime. I think it was so intended by the framers of the constitution, and that constitution is effective in time of war as well as in time of peace.

It is hardly worth while to discuss what may have been decided heretofore by the Supreme Court of the United States, although those cases were referred to by the President. Yet, it is not inappropriate, I think, to refer, at least to what I believe to be the leading case on the subject, and that is the case of Ex parte Milligan, found in 4 Wahl Reports. You will doubtless remember, those of you who have examined that case, that while the court was not unanimous in coming to the conclusion to grant the writ of habeas corpus, yet the court divided up five to four. Five of them led by Justice David Davis were of opinion to grant the writ of habeas corpus, and expressed the opinion that Congress had not authorized the military commission for the purpose of trying citizens, nor did it have the power to authorize such commission. You will remember that the litigation arose in the District of Indiana. It is true that that district was also a military district, but there had never been war in that district. The civil courts, both national and state, were in full and steady operation, and there was no moment of time running throughout the whole of the civil war when Milligan could not have been tried before a civil court of the state of Indiana. Four of the members of the Supreme Court, while coinciding with the other five as to the propriety of granting the writ of habeas corpus, denied the conclusions of the other five that Congress did not have the power, but asserted that Congress had not executed the power by the enactment of any statute. But I think they all agreed that Congress did possess the power, in case of foreign invasion or civil war to provide for some kind of tribunal to sit in lieu of the ordinary civil tribunal within the theatre of war, when civil courts were not acting and did not act. It seems to me, with the greatest respect for that court, that that conclusion is kind of non-secular, but, however that may be, that court certainly gave us the very fundamental rules of constitutional law as to the perosnal rights of citizens, and regardless of what may be the power of courts in this regard, we have a constitution of our own. Now, it was never intended, gentlemen of the Association, in my humble opinion, that the rights of life, liberty and the pursuit of happiness should be at all dependent upon the patriotism, either great or small, of the executive for the time being. Our personal rights, our personal liberties, our right to own and possess property and to exercise the rights guaranteed to us by the state constitution, depend upon that constitution, and they are carefully enumerated by language absolutely plain. It seems to me that no set of circumstances can arise, even pending a condition of war or insurrection, that can take away from a private citizen, in no way connected with the military, the right to be tried by the ordinary civil tribunal.