The times. [volume] (Washington [D.C.]) 1897-1901, 1900-12-11
ARGUING NEELY'S CASE
Hearing Of the Appeal in the
United States Supreme Court.
Questions Involving Our Constitu-
fona1 Relations With Cuba-Con-
COunsc1-issistnnt Attorney Gem
eral Beck to he Heard Today.

their constitutiona!ity to reach the Su
preme Court came up for argument yes
| tefday afternoon. 1t was the appeal o
| Charles f. W. Neely, of Cuban posta
fraud notoriety, from the judgment o
Judge Lacombe. of the Circuit Court fol
| the Southern District of New York, de
nyinS his application for release on wri
of habeas corpus from the custody of vii
liam Henkel. United States marshal fol
that district, who holds him for eXtradi
tion to Cuba under the act of June 6. 1900
! The argument developed interesting ant
| important questions of law with reference
| TO the right of the United States to extra.
dite fugitive criminal in the absence O.
| an extradition treaty and especially with
reference to the right OF the President
| since the ratification of the Treaty Of
Paris to maintain a military form of gov
ernment in the Island of Cuba.
The Neely case refers exclusively to the
constitutional relations between this
| country and the territorial acquisitions
which it has gained as result of the
Spanish American war, SO far as the ISL
independent question from that which will
be argued On December II, when the char
acter of these relations with Porto Rico
and the Philippines will be under consid-
GRAFTON. The difference between the two
! is based on the terms of the Treaty OF
Paris, by which the Philippines and Porto
Rico were ceded to the United States. In
the case of Cuba Spain simply rclin-
quished its control without ceding Cuba to
ha Init fnd L.,a
assumed the responsibility of occupying
Cuba and of preserving life and property
until such time as this responsibility
could be assumed by new and stable
government of the Cuban people
The question arose by the arrest in the
city of New York Of Charles f. W. Neeiy,
VINO was the financial agent of the depart
ment OF posts in the island o: Cuba, on the
charge of having embezzled Cuban postal
funds to the amount of S67, 7,0C0. He was
arrested and detained pending a requisi-
tion by the Secretary of State to extradite
him. motion was made to quash the
warrant on the ground that the act Of
Congress. passed month after the date
Of the alleged embezzlement, authorizing
the eXtraditlon, was unconstitutional
Judge LacOmbe affirmed the constitutional
ity OF tie act and Neely then applied to
Judge Wallace for a writ of habeas corpus
on the ground that his arrest was without
warrant OF law and that tE1 act of Con-
gress which was passed to authorize it
was unconstitutional. On the denial of the
writ these appeals were taken.
The argument was offered by Mr.. Lind
say. of New York, who has been Neelys
counsel in all the proceedings leading up
to the present status OF the case. He was
heard with close attention by the court,
the Justices frequently interrupting with
questions intended to bring out more clear
ly the counsel's views.
He commenced with an exhaustive re-
view OF the events which preceded the
Spanish American war. and claimed that
there existed in Cuba prior To american
intervention Cuban Republic This Re-
public. he argued, the United States rec
ognized on April 20, 1898. when 1t passed
joint resolution which declared that
the people of the Island of Cuba are,
and of right ought to be. free and inde-
pendent" He claimed that the United
States did not make war against the Gu
ban 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 Span
ish troops were driven out of the terri
tory of friendly ally.
He contended, therefore, that when the
Treaty VI ItEiS Was TaLlllCU the war
ceased. and as no war had been declared
against the Cuban Republic, all further
justification under the war r-making power
TO occupy 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 that the institution and mainten-
ance by the President of a military gov
ernment in Cuba was and is without au-
thority under International law, and in
fragrant contrayention of the Constitution
of the United States.
The acts OF the Military Governor. in
constituting local courts. in providing a
department of posts and q postal code.
and in exercising all executive. IegisIa-
tive. and judicial authority. were, Mr.
Lindsay argued, all acts of usurpation
and that the act of Congress which au-
thoriZed Neely's extradition was plainly
intended to try him before the courts thus
established by the Military Governor,
which Sir. Lindsay claimed were in effect
courts. and was unconstitutional
Responding to Il question by Justice
Brown MIR. Lindsay reviewed the extrad-
ton treaties with Spain and countries in
which the Spanish system of jurispru-
dence was in vogue. At NO time in the
history Of the United States had it ever
agreed to surrender its own citizens for
trial Under the Spanish system. With the
exception Of the 'incomunicado" feature,
which had been abolished, Mr. Lindsay
said Cuban courts, although military, fol-
lowed the Spanish system.
Mr. Lindsay was interrupted at this
point by the arrival of the hour for ad-
journment, and will conclude his argu-
ment today. In conclusion he will argue
that the military government in Cuba is
as 1t is essentially a
Of war against the Cuban Re-
public, and as Congress alone has author
ity to declare war against the Cuban Re-
public the control of Cuba by the PreI-
dent as Commander-in- Chief is virtual
of war without the authority
of Congress.
He VIII deny that such government can
be justified under the war power, as the
war power has 10 existence except in time
CT war. when The war is authorized by
Congress. and that the President cannot
use the national forces to govern Cuba.
He relies especially upon the case of Ex
parte Milligan. in which military COM
mission in 1865. sitting in the State of
mad tried Miiiigan by court-mar-
tal and sentenced him to death. The
prisoner applied TO the United States Cir |
cult Court for a habeas corpus, and that |
court and the Supreme Court held that. as !
there was no stale OIL war III lndlana, and |
as Milligan was civilian he could not |
be tried by 4 military commission.
Mr.. Lindsay contends that this decision |
is controlling in the present case, as Neely |
Is an American citizen and a civilian. and +
the courts before which the Government |
seeks TO try him are courts which exist |
by the sufferaDce of the Military Gov !
arnor. Fir.iiy. that in any event, as the |
trial in the Cuban courts is without a |
grand jury or petit jury, Neely cannot |
be tried before them without viBlation of |
the sixth. seventh. and eighth amend |
nents 10 the Constitution.