Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1900-12-11
Discussed Before Supreme Court
in Neelv Case,
OUR TREATY OBLIGATIONS,
Appellant Argues That There Can be
oErtradItlon-R Reply Of Govern
nent Counsel FavorIng IT,

washington, Dec. l0-The Nicely eX-
tradition case was argued In the SUI
prsme Court. All the judges were
rrssent. The argument developed In
teresting and important questions Of
law with reference to the right Of the
limited states to extradite a fugitive
criminal In the absence Of an extradl-
ton 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
government in the island Of Cuba.
The latter feature Of the argument
made Il the first Of the arguments
which brings up for final decision by
the Supreme Court the constitutional
relations between this country and the
territorial acquisitions which It has
gained as a result OF the Spanish
American war The Nelly case re-
ferred exclusively to the character OF
these relations so far as the island Of
Cuba was concerned. and thus pre-
sented an Independent question from
that which will be argued on December
nth. when the character OF these rela-
tl0ns with Porto Rico and the Philip
pines viii be under consideration.
John u. Lindsay Of the New York
bar opened the argument for Nicely. lie
He claimed that there existed In Cuba
prior to our Intervention, a Cuban re-
public This republic, he argued the
United States recognized in April 1898,
when 1t passed a joint resolution,
signed by the President which de-
clared that the people OF the island Of
Cuba are OF right and ought 10 be free
and independent" He claimed that
the United States did not make war
against the Cuban republic thus recog-
nIzed but was its ally AMI that there
fore the success Of the American army
ala not mean that Cuba was conquered,
but that the Spanish troops were drlv-
an out Of the territory Of q friendly
ally. He commended, 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 subject Cuba ceased.
and the President should Immediately,
upon the ratification Of the treaty, or
within a reasonable time thereafter,
have withdrawn the army. He claimed,
therefore that the institution and
maintenance by the President Of
military government In Cuba was and
IS without authority under internal
tional law and In fragrant contraven-
ton Of the Constitution OF the United
States.
He further urged that such military
government was unconstitutional. es-
scntally a war against the Cuban re-
public, and as Congress alone had the
authority 20 declare war against the
Cuban republic. the control Of Cuba
by the President as commander-ln-
chief was a virtual prosecution Of war
without the authority of Congress. He
denied that such government could be
justified under the war as the war
power has 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 parte
MilIgan. He argued finally that In any
event as the trial IN the Cuban courts
IS without a grand jury or a petit Jury
Nicely could not be tried before them
without violation OF the sixth. seventh
and eighth amendments TO the Constl-
tuition,
AssT-ATT'Y. GEN. REPLIES.
Beck replied on behalf Of the govern
Beck replies on behalf OF the govern
ment He characterized Mr. Lindsay's
contention as meaning, logically, that
II an American citizen should apply
the torch OF the incendlary 10 the
homes Of the Cuban people and as
@ssinate its citizens and then fee TO
his country, the United States al
though pledged by the treaty OF Paris
10 protect life and property in Cuba
curing the period Of its occupation,
was pOwerless to deliver such fugitive
10 the municipal authorities Of Cuba !
lie claimed that this contention was |
Without reason or authority TO support |
u and that the true position was that |
this nation had the same right as 9TH
er independent nations 10 surrender |
fugitive criminals where Il felt called |
upon from considerations Of comfy or
public policy TO do So Moreover, he |
claimed that Il was an inherent attri- |
butte OF sovereignty, being an interna- |
tona obligation which each independ- |
emf state must In the comfy Of ma |
tons. fulhn TO another.
As 10 the right 10 govern Cuba Mr. |
Beck took issue with Mr.. Lindsay's |
whole contention, He claimed that the
government prior TO the declaration OF /
war with Spain had uniformly refused |
70 recognize the Cuban republic This. |
he said, was shown by the fact that /
Congress struck out OF the Joint resolu- |
uon a provision which specifically re- /
oognized the existence Of a Cuban re- /
public. In the resolution as finally |
passed, Mr., Beck pointed out that Con- |
gress has recognized that the Cuban |
people were free and independent but |
he claimed that there was a wide dis /
uncuon between the term people" and /
NE expressions state" or nation" |
There was a Jewish word but az this |
time no Jewish nation. A state is how |
ever, a political and organic entity |
ana while therefore. Congress ala re-
cognize that the Cuban people had by /
success on the field Of war earned their /
right to be regarded as free ard !nde-
pendent II did not follow that any Gu
nan government as a political entity /
was recognized. He argued on the /
contrary that as the result OF our vic
tories on sea and land. Spain had ex-
,uleu treaty with this country ana /
mat cuba had been surrendered TO this
country, and that while this country |
he.d Cuba In trust for the Cuban peo-
IIe until II had fulhlled the duties Of
sucn trust and pacifed the island. the
united States was the only de facto and |
le lure government In cuba As dis
proving the suggestion that there could
ne no military occupation after the
ueaty Of peace. Mr. Beck argued
mat even II such subsequent
military occupation could not
ne justified by the war making power,
II was amply justified by the obligation
20 govern Cuba until II was pached
shl a stable government constituted.
until such time the island was neces-
NnrLIN nnNnrnna I,r.In. a. L.. ~ hill