The times. [volume] (Richmond, Va.) 1890-1903, 1900-12-11
THE NELLY CASE
IN SUPREME COURT
ConstitutonaIity of the Military Gov
eminent Maintained in Cuba
Called Into Question.
(gy Associated Press.)

WASHINGTON, D. c., December IL
TIL Nicely extraditlon case was argued
to-day in the Supreme Court. All the
judges were present. The argument
developed interesting and important ques-
lions of law with reference to the right
of the United States to extradite fusi-
tive criminal in the absence OF an extra
dit1on treaty, and especially with refer
ence to the right of the President since
the ratification of the treaty OF Paris
to maintain a military form OF govern
ment in the island of Cuba
RELATIONS WITH CUBA.
The latter feature of the argument made
it the first of the arguments which brinS
up for final decision by the Supreme
Court the constitutional relations between
this country and the territorial acquisl-
tons which it has gained as result
of the Spanish-American War. Inc
Nelly case referred exclusively to the
character of the relations SO far as the
island of Cuba was concerned, and thus
presented an independent question from
that which will be argued on December
17th when the character of the relations
with Porto Rico and the Philippines VIII
be under consideration.
ARGUMENT OPENED.
John B. Lindsay, of the New York Bar,
opened the argument for Nicely. He
claimed that there existed in Cuba prior
TO our intervention a Cuban republic
This republic, he argued the United
States recognized on April 20, 1893, and
when it passed a 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 indie
| dendent" 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 Span
ish troops We're driven out of the terri
tory of Il 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
republic, all further justification under
! the war-making power TO occupy Cuba
ceased, and the President should, imme-
diately upon the ratification OF the treaty,
or within q reasonable time, therefore,
have withdrawn the army.
WITHOUT AUTHORITY.
Ee claimed, therefore, that the inst.-
tuition and maintenance by the President
of a military government in Cuba was
and is without authority under internal
tional law and in fragrant contravention
of the Constitution of the United States
He further argued that such military
was-essentially a prosecution of war
against the Cuban republic. and. as Con-
gress alone had the authority 10 declare
war against the Cuban republic, the con-
troll of Cuba by the President as COM
mander in chief was virtual prosecution
of war without the authority of Congress
He dentsd that such government could
be justified under the war power, as the
war power mas no existence except in time
of war, when the war is authorized by
Congress, and that the President could not
use the national forces for the purpose OF
governing Cuba. He relied especially upon
the case Of ex par1e Milligan. He argued
finally that, in any event, as the trial IN
the Cuban courts is without grand jury,
Nicely could not be tried before them
without violation of the 9Th. lta ana
Sth amendments 10 the CONSTITUTION
BEcK's REPLY.
Assistant Acknowledgement James VI.
Beck will reply en- behalf Of the Govern
ment tomorrow.