Evening journal., 1900-12-14
NEELYs CASE IN COURT

NEElYS CASE IN COURT
There is much that is Of general public
interest in the Neely extradit,ca case
now under advisement in the United
States Supreme Court. In his opening
argument for Neely, John d. Lindsay
OF the New York bar, claimed that
there existed in Cuba prior to our in
'tervention a Cuban republic. This re-
public, he argued, the United States
recognized April 20, 1898. and when II
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 independ-
emit 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 Spanish troops were driven
out Of the territory of a friendly ally.
He contended, therefore, that when
the treaty OF Paris was ratified the war
ceased, and as TO war had been de-
clared again the Cuban republic all
further Justification under the war
mrking power TO occupy Cuba ceased,
and the president should, immediate
ly upon the ratification of the treaty,
or within a reasonable time thereaf-
ter, have withdrawn the army.
He claimed therefore. that the in
stitution and maintenance by the
president OF military government In
Cuba was, and is, without authority
under international law, and in IA
grant contravention OF the Constitu-
don of the United States. He further
argued that such military government
was unconstitutional, as it was essen
tally a 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 as command
ar-in-chief was a virtual prosecution Of
war without the authority Of Congress.
He denied that such government
could be justified under the war power
as the war power has no existence ex-
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 relied especially upon the
case Of exparte Milligan.
He argued finally that, in any event
as the trial i'm the Cuban courts i:
without grand jury, Neely could moi
be tried before them without violation
Of the sixth, seventh and eight
amendments to the Constitution.
In answer to these contentious AS
sistant Attorney General Beck, speak
ing for the government, characterize'
Mr.. Lindsay's contention as meaning
logically that If an American citiaei
] should apply the torch OF the incen
3 diary to the homes of the Cuban peo
e pie and assassinate its citizens. an
C men fee to this country. the Unite
States although pledged by the treat
Of Paris to protect life and property il
u Cuba during the period of its occupa
ton. was pOwerless to deliver sue
l. fugitives to the municipal authoritie
y Of Cuba. He claims that this conter
tion was without reason or authorit
= to support it. and that the truo pos
= tiCl was that this nation had the SAN
- right as other independent nations I
surrender fugitive criminals where
" felt called upon from considerations
~ comfy or public policy to do so. Nor
N over, he claimed that it was an il
. herent attribute Of sovereignty. beir
IN an international obligation which eal
n independent State must. in the conf
n Of nations, fulfill to another.
n AS to the right to govern Cuba, N
n Beck TODD issue with Mr.. Lindsa,
an whole contention. He claimed that Z
govemment, prior to the declarat
Of war against Spain. had uniformly !
sv. fused to recognize the Cuban republ
he He denied that the joint resoluti
'ch Operated to recognize the Cuban repu
ar. lie This. he said. was shown
rlx the fact that Congress struck ont
re- the. JOINT resolution a provision VII.