The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1900-12-14
THE QUESTION ARGUED IN THE FED
ERAL SUPREME COURT
THE Nicely EXTRADITION CASE
Raises Point OF Right OF United States
to Maintain Military Government I'm
ton OF Treaty OF Paris and Our Con-
stitution-To be q War without Az
thorization of Congress on the Cuban
Republic Recognized by Resolution
of Congress-.
ofCongross.

Washington, December 10.-The Nee
ly eNtradition caSe was argued today
in the supreme court. All the judges
were present. The argument developed
interesting and important questions of
law with reference to the right Of the
United States government to extradite
a fugitive criminal in the absence OF
an extradition treaty, and especially
with reference to the right OF the pres
ident, sinc the ratification of the
treaty of Paris. to maintain a military
form of government in the island Of
Cuba.
made it the first Of the arguments
which bring up for final decision by the
supreme court the constitutional rela-
ions between this country and the
territorial acquisitions which it has
gained as a result of the Spanish
American war.
The Nicely case referred exclusively
to the character Of these relations so
far as the island of Cub was concern
ed, and thus presented an Independent
question from that which will be ar
gued on December 18th. when the char
acter of these relations with Porto
Rico and the Philippines will be under
consideration.
John D. 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,
1898, 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
independent" He contended that
the war ceased, and az no war had
been declared against the Cuban re-
public all further justification under
the war making power to occupy Cuba
ceased, and the president should, i'm
mediately upon the ratification of the
treaty or within a reasonable time
thereafter, have withdrawn the army.
He claimed. therefore. that the insti-
tuition and maintenance by the presi-
dent Of a military government in Cuba
was, and is, without authority under
international law, and in fragrant con-
~travention of the constitution of the
United States.
He further argued that such military
government was unconstitutional, as 1t
was essentially a prosecution of wal
| against the b republic, and as con-
gress alone had the authority to de-
clare war against the republic
the control of Cuba by the president,
as commander-fn-chief. was a virtual
prosecution of war without the authori-
ty Of Congress. He denied that such
government could be justified under
the wal power, as the var power has
no existence except In time of war
when the war is authorized by con-
gress. 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 Milligan. He argued finally
that, in any event. as the trial in the
Cuban courts is without a grand jury
Nicely could not be tried before then
without violation of the sixth, seventh
and eight amendments to the constitu-
ton.
Assistant Attorney General James
NJ. Been will reply tomorrow on behalf
| Of the government.