The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-12-10
RIGHTS IN CUBA
About to Be Determined by the
Supreme Court.
Nicely ExtraditiOn Case Called
Up and Argued.
UNDER AMUSEMENT.
AMUSEMENT.
The Court Will Not Render an
Opinion just Now.
Decision Will Indicate Position
on Other Questions.

supreme court. All the judges were
present The argument developed inter
esting and important questions of law
with reference to the right of the United
States to extradite a fugitive criminal
in the absence Of an extradition treaty,
and especially with reference to the
right Of the president since the ratifea-
ton of the treaty of Paris to maintain
a military form of government in the
island of Cuba The latter feature of
the argument made it the first of the
arguments which bring up for final de-
cision by the supreme court the consti-
tutionaI relations between this country
and the territorial acquisitions which it
has gained as a, result of the Spanish
American war. The Nicely case referred
exclusively to the character of these re-
iauons, so far as the island of Cuba
was concerned, and thus presented an
independent question from that which
viii be argued on December IT, when
the character of these relations with
Porto Rico and the Philippines will be
under consideration.
John d. Lindsay of the New York bar
opened the argument for Nicely He
claimed that there existed in Cuba prior
to our intervention Cuban republic.
This republic, he argued, the United
States recognized on April 20, 1885, when
it passed a joint resolution signed by
the president which declared that 1.-The
right ought to be free and independent"
He claimed that the United States did
not make war against the Cuban re-
public, thus recognized, but was its
ally, and that therefore the success of
the American army did not mean that
Cuba was conquered, but that the Span
ish troops were driven out of the ter
ritory Of a friendly ally. He contended
therefore that when the treaty of Paris
was ratified the war ceased, and as no
war had been declared against the
Cuban government, all further justifi-
cation under the war-making power to
occupy Cuba ceased, and the president
should Immediately upon the ratihca-
ton of the treaty or within a reason
able time thereafter have withdrawn the
army. He claimed therefore that the
institution and maintenance by the
president of a military government in
Cuba was and is without authority I'M
der international law, and in fragrant
contravention of the constitution of the
United States. He further urged that
such military government was uncon-
stitutional as it was essentially pros
ecution of war against the Cuban re-
public, and as congress alone had the
authority to declare war against the
Cuban republic, the control of Cuba by
the president as commander in chief
was a virtual prosecution O. war with
out the authority of congress. He de-
MED that such government could be JUS
titled under the war power as the war
power has no existence except in time
OF war, Wnen the war IS authorized Dy
congress, and that the president could
not use the national forces for the pur-
pose Of governing Cuba. He relied es-
pecially upon the case of Elk parte Mil
Iigan. He argued finally that in any
event as the trial in the Cuban courts is
without a grand jury, or petit jury,
Nelly could not be tried before them
without violation of the sixth, seventh
and eighth amendments To the consti-
tuition
Assistant Attorney General James NJ
Beck replied on behalf of the govern
ment. He characterized Mr.. Lindsay
contention as meaning logically that If
an American citizen should apply the
torch Of the incendiary to the homes Of
the Cuban people and assassinate its
citizens and then flee to this country,
the United States, although pledged by
the treaty of Paris to protect life and
property in Cuba during the period of
its occupation, was powerless to de-
liver such fugitive to the municipal au-
thorities of Cuba. He claimed that this
contention was without reason OF au-
thority to support it, and that the true
position was that this nation had the
same right other independent ma
where it felt called upon from consider
atoms of comfy or public policy TO do
so. Moreover, he claimed that it was
an inherent attribute of sovereignty, be-
ing an international obligation which
each independent state must, in the
comfy of nations, fulfill to another
As to the right to govern CUBA, Mr.
Beck took issue with Mr.. Lindsays
whole contention. He claimed that the
government prior to the declaration OF
war against Spain had uniformly re-
fused to recognize the Cuban republic
This, he said, was shown by the fact
that congress struck out of the joint
resolution a provision which specifically
recognized the existence of a Cuban re-
public In the resolution as finally
passed Mr.. Beck pointed out that con-
gress had recognized that the Cuban
people were free and Independent, but
he claimed that there was a wide dis
tinction between the term people" and
the expressions state" or nation.
There was a Jewish people. but at this
time no Jewish nation state is, how
ever, q political and organic entity ana
while therefore congress did recognize
that the Cuban people had by success
in the field of war earned the right to be
regarded as free and independent it did
not follow that any Cuban government
as a political entity, was recognized. he
argued on the contrary, that, as re-
suit of our success on land and sea. the
kingdom of Spain had executed a treaty
with this country and that Cuba had
been surrendered to this country and
that while this country held Cuba in
trust for the Cuban people until 1t had
fulfilled the duties of such trust and
pacified the island, the United States
was the only de facto and de jure gov
eminent in Cuba As disprov1ng the sug-
gestfOn that there could be no military
occupation after the treaty of peace,
Mr.. Beck argued that even if such sub
sequent military occupation could not
be justified by the war-making power,
it was amply justified by that treaty
making power, under which this coun-
try had assumed the obligation to
govern Cuba until it was pacified and
new and stable government constituted.
Until such time the island was neces-
sarily governed under the law
of be1ligerent right, even though
there existed no present hostilities and
peace had been officially declared.
Mr. Beck relied with special force