New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1900-07-20
NEELYCAN BE EXTRADITED
JUDGE LACoMBE HOLDS ACT OF JUNE G,
1900. CONSTITUTIONAL.
AMERICAN GOVERNMENT MAY EXERCISE
SOVEREIGN AUTHORITY IN CUBA TO
SECURE LIFE AND PROPERTY.

SECURE LIFE AND PROPERTY.
Judge Lacombe OF the United states Circuit
Court for the Southern District OF New-York.
yesterday handed down an opinion in the appli-
cation made for the extradition Of Charles F. W.
Nicely who is charged with the embezzlement
of postal funds while in charge of the financial
department Of he Postal Service in Cuba.
The most interesting and important point in
Ills opinion is the statement that under the
Constitution American occupation in Cuba
legitimately entered upon may and should con
tfnue To secure the lives and property Of Ameri-
can citizens within that island until the politi-
cal branch Of the Government shall be satisfied
that its further continuance is unnecessary. and
that IN the objections raised by counsel no au-
thority has been cited holding such action on
the part of this Government 10 be unconstitu-
tionaL
Judge Lacombe oyerruIed the preliminary OBJ
jections, and held that the mere presentation of
an indictment was not sufficient for Neelys eX-
tradition and that further testimony must be
taken The date OF the hearing of this testi-
mOny fixed for july %.
After complaining Of the delay Of counsel in
presenting briefs, stating that the action is
brought under a recent amendment to Section
500 of the United States Revised Statutes,
known as the Act OF June G. 1900. and giving
the provisions added as 10 eXtradition the opin-
ion says:
The principal objection advanced on behalf OF
the prisoner. whose identity is not disputed, Is
that this particular Act Of June d. I9oo, Is uIi-
constitutional because II provides for eXtradi-
ton 10 foreign country occupied by or under
control Of the United States; possibly, TO
state the argument more accurately because
rnder the Constitution the United states can
not occupy or exercise control over the island
Of Cuba, since its inhabitants are free ana lnde-
pendent.
sTaTT-S OF CTrBA IN THE COURTS
The Joint resolution of April IS, 1898, declared
that the people of the island of Cuba are, and
OF right ought to be. free and independent ana
this finding as 10 their status may be accepted
by the courts Nevertheless, II is an historical
fact, Of which the courts will take Judlcla!
notice, that on that same day the territory OF
that island was occupied by Spain. Against
that Power We declared war, we sent our meets
and armies to the island. invaded 1t, joined
battle with our alien enemies therein ana con-
tinued the struggle with them until throughout
the length and breadth of the island our forces
were in full military occupation OF this foreign
territory. The declaration of war was in noWlse
obnoxious to the Constitution. the in
VasiOn the conflict the result In the
entire sequence of events down TO the date Of
SPANS acquie5cence in such result by the rati-
fcation Of the Treaty Of Paris, counsel for the
prisoner finds nothing to criticiSe obnoxious
10 the Federal Constitution On the day that
treaty was signed we were indisputably in mill
t5rv occupation Of the island Why under the
Constitution that occupation, legitmately en-
tered upon, may not continue to secure the lives
and property Of American citizens within that
territory, until the political branch of the Gov
eminent shall be satisfied that its further con-
tinuance is unnecessary il is difficult to con-
ceive and 70 authority cited in the brief
tains any such proposition.
Reference is made TO ex parte Milligan II
[. s. 2 but that case is not at all in point.
There a citizen tried by a military commits
sion. not in a foreign cQLntry. but in the State
Of Indiana, a portion OF the United States not
at that time a part of the theatre Of war, with
civil courts organized and II full operation, hav
ing jurisdiction to hear and determine all ques-
tions to the offence with which he
charged. But there is suggestion here that
If remanded to Cuba Nicely will be tried by a
court martial or Otherwise than by a civil court
following the same procedure as that prevailing
before the concession Of Cuba's independence.
And. indeed, if the criminal laws of the island
be enforced solely by courts martial that cir
cumstance would not be a sufficient answer TO a
request for extradition; having chosen the coun-
try in which commit the crime he must &C
cept the tribunals which administer its laws.
Moreover it viii be noted that the act Of June
6, 1900, is most careful to safeguard the party
accused against unsubstantial charges of crime.
It provides that before the accused is returned
there shall be an inquiry before a Judge of a
Federal Court. who shall hold such person on
evidence establishing probable cause that he is
guilty Of the offence charged: if the evidence
fails to establish probable cause the accused
shall not be returned. This means probable
cause tested by the practice Of our courts, and
supported by evidence which we would hold
competent No mere statement Of an official
that he has caused examination into the
facts TO be made with such and such a result
is Of any probable weight; nor is hearsay com
petent nor unverifed copies of documents
There must be laid before the Court sworn
statements 10 facts mot as TO beliefs or opin-
lens or deductions) from which the Judge may
despite explanatory
oence as the accused may offer that there is
prima facie case made out against him.
The objection that the act Of June 6. 1900 is
unconstitutional is unsound.
TECHNICALITIES RAISED NOT WEIGHTY
Various technical objections are urged to the
suficiency-in form-of the various documents
presented, as, for instance that certain certif-
cate is signed by the Military Governor and
not by the principal diplomatic consular Off
Ger. And that there is no certifcation that GER
tain dispositions are authenticated "as to
entitle them to be received for similar purposes
by the tribunals of the foreign country"-proba-
bly, not material when authenticated so as TO be
received upon the special independent investiga-
ton TO be had under the act OF 1900 Objec-
tions Of this class not given weight once
accorded TO them when the granting of a request
for extradition was more tealously guarded than
Il is to-day. Originally il seemed 10 be the
theory that the sole foundation Of the practice
rested in reciprocity, and that if some particu-
lar foreign country were backward about re-
turning our criminals we would be keen to keen
theirs. During this courts were astute to find
flaws IN certificates. JuratS. seals and signatures
as an excuse for refusing the request Of some
demanding government. At last. however il
seerns TO have been discovered that the thief the
ruffian or the forger not a particularly
valuable acquisition, and that although it might
be highly desirable that offenders against our
laws should be brought back here and tried as
4 deterrent example, it was possibly more i'm.
pOrtant that this country should not be made a