Evening star., 1900-12-11
Case Discussed Before n the Supreme
Court. a.
RIGHTSOF TEE UNIfED HATESIN CUBA
Assistant Attorney General Beck
for the Government.
MIR. LINDSAY'S ARGUMENT

The Neely extradNion case was opened
yesterday in the Supreme Court. All the JUS
tices were present. The argument devel-
oped interesting and important questions Of
law with reference to the right Of the
United States to extradite a fugitive GRIM
inal in the absence Of an extradition treaty,
and especially with reference to the right
of the President since the ratificatio 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 decision by the Supreme Court the
constitutional relations between this coun-
try and the territorial acquisitions which
it has gained a result of the Spanish
American war. The Neely case referred
exclusively to the character of these rela-
tions so far as the Island of Cuba was con-
cerned, and thus presented an independent
question for that which will be argued De-
cember II. when the character of these
relations with Porto Rico and the Philip
pines will be under consideration.
Military Occupation of Cuba.
John d. Lindsay of the New York bar
opened the argument for Neely. He claimed
that there existed in Cuba prior to our in
terventiOn a Cuban republic. This republic,
he argued, the United States recognized
Nplli ~ 1870. anu WHtH IL passed JOINT
resolution signed by the President, which
declared that the people of the Island Of
Cuba are, and of right ought to be, free
and independent He claimed that the
United States did not make war against the
Cuban republic 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 Spanish troops
were driven out of the territory of a
friendly ally. He contended therefore, that
when the treaty of Paris was ratified the
war ceased, and as no war had been de-
clared against the Cuban republic all
further justification under the war-makng
power to occupy Cuba ceased and the
President should. Immediately upon the rat
ification CT 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able time thereafter, have withdrawn the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 mil
itary government in Cuba was, and is,
without authority under international law,
and in hagrant contravention of the Con-
stituton of the United States He further
argued that such military government was
unconstitutional, as " was essentially
prosecution of war asainstS the Cuban re-
public. and as Congress alone had the au-
thority to declare r,agsnst the Cuban
republic. the control Of Cuba by the Pres
ident as commander-in-chidf was a virtual
prosecution of war without the authority of
Congress. lR Il
He denied that suchigovers,ment could be
justified under the wac psHer, as the war
power has no existence except in time of
war when the war isaauthorized by Con-
gress, and that the President could not use
the national forces for the purpose of gov
crning Cuba. He relied especially upon the
case of ex parte Milligtan. ~
He argued finally that lin any event, as
the trial in the Cuban coufts is without a
grand jury. Nicely could not be tried before
them without violation of the sixth sew
enth and eighth amendments to the Con-
stitution. #
The Governments Contention.
Assistant Attorney General James NJ.
Beck spoke today and replied on behalf of
the government. ir-
He chara cterized Mr.. Lindsay's conten-
ton as meaning logically that if an Amer
ican citizen should apply the torch of the
incendiary to the homes of the Cuban peo-
pie and assassinate its citizens, and then
flee to this country, the United States, al
though pledged by the treaty of Paris to
protect life and property in Cuba during the
period of its occupation. was poWerless to
deliver such fugitives to the municipal
thcrities of Cuba. He c.aimes that this
contention was without reason or authority
to support it, and that the true position was
that this nation had the same right as other
independent nations 10 surrender fugitive
criminals where it felt called upon from
considerations of comfy or public policy to
do 50. Moreover, he claimed that it was
an inherent attribute Of sovereignty, being
~ International obligation which each in
dep ndeEt state must, in the comfy of ma
uons, fulfill to another.
Right to Govern Cuba.
AS to the right to govern Cuba, Mr.. Beck
took issue with Mr.. Lindsay's whole con-
tent!on. He claimed that the government,
prior to the declaration of war against
Srain had uniformly refused 10 recognize
the Cuban republic. He denied that the
joint resolution operated to recognize the
Cuban republic. This, he said, was shown
by the fact that Congress struck out of the
JOINT resolution a provision which specih-
cally recognized the existence of a Cuban
republic. In the resolution as finally passed,
Mr.. Beck pointed out that Congress mad
recognized that the Cuban people were free
and independent, but he claimed that there
was wide distinction between the term
people, and the expressions state" or
nation" There was a Jewish peope but
at this time no Jewish nation A state is,
however. political and organic entity and
whie, therefore, Congress did recc gnize that
the Cuban reople had by success in the
fed of war earned the right to be regarded
as free and independent, it did not follow
that any Cuban government as a political
Gritty, was recognized He argued, on the
contrary, that, as the result of our sue
cess on land and sea, the kingdom of Spain
had executed treaty with this country,
and that Cuba had been surrendered to
this country. and that, while this country
neld Cuba IN trust for the CUBAN people
until 1t had fulfilled the duties of such trust
and pacif1ed the island the United States
was the only de facto and de jure govern
ment In Cuba.
Military Occupation Justified.
AS disproving the suggestion that there
could be no military occupation after the
treaty of peace, Mr. Beck argued that,
even if such subsequent military occupa-
ton could not be justified by the war
making power. it was amply Justified by the
treatymaking power, undar which this
country had assumed the, obligation to gov
err Cuba until it was g,acifled and a new
and stable government nstituted. Until
such time the island Vas .Gecessarily gov
erEed under the law 5of befliserent right.
even though there extsted no present hos
Titles. and peace haf befh officially de-
Mr. Beck relied with 'esnerial force upon
the case of Cross agtseHaffison, in which
the commanding general of the United
States in California, after the Mexican war.
maintained a military gbSer Iiment from the
time of the treaty untn California was ad-
mitted into the Union ..Mr"f Beck said that,
while the political Status ,sof Cuba was
anomalous, it was not without precedent.
and he cited the Islanta Of Cyprus. in which
Turkey permitted English" Occupation and
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