The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1900-12-11
HOLDS CUBA IS FREE FOR TAKING $4,000
Attorney for Neely Urges Novel
Point in Supreme Court.
DENIES M'KINLEY'S RULE
SAYS PRESIDENT HAS NO AU-
THoRITX OVER ISLAND.

Washington, Dec. I0.-The Nelly ex-
| tradition case was argued in the su-
preme court today. All the judges were
present. The argument developed in
teresting and important questions Of
law with reference to the right of the
United States to extradfte a fugitive
criminal in the absence of an extradf-
ton treaty, and especially with refer
ence to the rights of the president since
the ratification of the treaty of Paris
to maintain military form of govern
ment in the island of Cuba.
The latter featlre of khe argument
made il the first Of the arguments
Which bring up for final decision by the
supreme court the constitutional rela-
tons between this country and the ter
rltor1al acquisitions which il has gain
| ed as a result of the Spanish American
war. The Nicely case referred excfu-
sively 10 the character of these rela-
| tons, so far as the island of Cuba was
| concerned, and thus presented an indie
pendent question from that which will
De argued on Dec. II, when the char
acter of these relations with Porto Rico
and the Philippines viii be under con-
| sheraton
John D. Lindsay of the New York
bar opened the argument for Nicely He
claimed that there existed in Cuba prior
to American intervention a Cuban re-
public. This republic, he argued, the
United States government recognized
in April, 1898, when it passed a joint
resolution, signed by the president
which declared that the people of the
island of Cuba are of right and ought
to be free and independent" He claim
ed 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 con-
quered, but that the Spanish troops
were driven out of the territory of
friendly ally.
Cuba Declared Now Free.
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 jurisdiction of the war making
power over Cuba ceased. and the presi-
dent should Immediately, upon the rat
ificatiOn Of the treaty, or within a rea-
sonable time thereafter, have with
drawn the army. He claimed, there
fore, that the institution and mainten-
ance by the president of a military
government in Cuba was, and is, with
out authority under international law,
and in fragrant contravention of the
constitution of the United States. He
further urged that such military gov
eminent was unconstitutional. as eS
sentially a war against the Cuban re-
public for justification, and as congress
alone had the authority to declare war
against the Cuban republic, the con-
troll of Cuba by the president as COM
mander-in-chief was a virtual prOsecu-
ton of war without the authority Of
congress. He denied that such govern
ment could be justified under the war,
as the war power has no existence eK-
cept 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 argued finally that, in any
event, as the trial in the Cuban courts
is without a grand jury OF. a petit jury,
Nicely could not be tried before them
without violation of the sixth. seventh
and eighth amendments to the cOnsti-
tuition.