Rock Island Argus. (Rock Island, Ill.) 1893-1920, 1900-12-11
NEELY'S CASE NOW UP
Supreme Court Faces One OF the
Problems Raised by the
War With Spain.
CASE AGAINST UNCLE SAM sTATLD
Senate Puts in Some More Time on
the Hay-Pauncefote Treaty
Washington Miscellany.

Washington Dec. 1.-THE Nicely
eXtraditiOn case was argued yesterday
in the supreme court. All the judges
Were present The argument will de
VclOp interesting and important ques-
lions Of law with reference TO the
right of the United States To eXtradije
fugitive criminal in the absence of
an eNtradition treaty. and especially
with reference to the right of the pres
ident since the ratification of the treaty
of Paris 10 maintain military form
of government in the island of Cuba.
The latter feature will bring up for
final decision by the supreme court the
constitutional relations between this
country and the territorial acquisitions
which il has gained a. a result of the
SpaniSh-American war. The Nicely
case refers exclusively to the charac-
ter Of these relations so far as the
island of Cuba = concerned.
Argument Presented tor Nicely.
John ID. Lindsay. of the New York
bar. opened the argument for Nicely.
He claimed that there existed in Cuba
prior to our Intervention a Cuban re
public. This republic. he argued. the
United States recognized on April 20,
1899, when ii 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
tnired States did not make war
against the Cuban republic thus recog-
niZed. but was its ally. and that there
fore the success OF the American army
did not mean that Cuba was CON
QuCred. but that the Spanish troops
were driven out of the territory of Il
friendly ally. He cOntended. there
fore, that when the treaty of Paris
WAS ratified the war ceased. and as
no war had been declared against the
Cuban republic. all further iustihca-
ton under the war-making power TO
occupy Cuba ceased. and the president
should. Immediately upon the ratitica-
ton of the treaty. or within a reason
able time thereafter. have Withdrawn
the army.
Our Presence in Cuba Unlawful.
He claimed. therefore. that the in
stitution and maintenance by the preSi-
dent of "A military government in Cuba
was and is without authority under in
ternatiOnal law. and in fragrant con
traventiOn of the constitution OF the
United States. He further urged that
such military government WAS UncOn-
StitutiOnal. as il was essentially Il
prosecution of war against the Cuban
republic. and as congress alone had the
authority TO declare war against the
Cuban republic the control of Cuba
by the president AZ communicable
chief was virtual prosecution of war
without the authority of congress. He
denied that such government could he
justified under the war power. as the
war power has no existence except in
time of war. when the war is author
lied by congress. and that the presi-
dent could not use the national forces
for the purpose of governing Cuba.
Trial without a Jury.
He relied especially upon the case
~ "a pdrJP MIlligan. lie argued final
~ that in any event. as the trial in
the Cuban courts is without Il grand
jury or Il petit jury, Nicely could not
be tried before them without violation
of the sixth. seventh and eighth amend
mentS to the constitution.