The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-12-11
An Effort to Prevent E~xtradition OF
Funds tn Cuba fer Trial.
NOVEL CONTENTION MADE
UNITED STATE TROOPS HAVE NO
RIGHT IN CUBA, HE SAYS.
Cuba, He Asserts, Is n Free and In
dependent Republic and Our MILL
tary Is There by Sufferance.

WASHINGTON, Dec. 10.-The Nicely ex-
tradiction case was argued to-day in the
Supreme Court. All the judges were pres
| ent. The argument developed interesting
| and important questions of law with refer
| ence to the right of the United States to
| extradite a fugitive criminal. in the alb
| e of 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 government in the island OF Cuba
| The latter feature of the argument made
il the first of the arguments which bring
up for final decision by the Supreme Court
the constitutional relations between this
country and the territorial acquisitions
which 1t has gained as "A result of the
Spanish-American war. The Nicely case re-
ferred exclusively TO the character of these
relations SO far as the island of Cuba was
concerned, and thus presented an independ-
ent question from that which will be
argued on Dec. IL, when the character 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 republic. This
| republic, he argued, the United States
| recognized on April 20, 1895, 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 claimed
that the United States did not make war
| against the Cuban republic thu recognized.
In% NO. ;- " 4-l ,A.t ,A4ra4ra sLa
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 wal ceased, and as 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, Immediately up
| on the ratification of the treaty. or within
a reasonable time thereafter, have with
| drawn the army. He claimed that, there
! fore, the institution and maintenance by the
President of a military government in Cuba
has been and is without authority in in
ternational law, and in fragrant contraven-
ton of the Constitution of the United
States. He further urged that military
government was unconstitutional as II is
essentially a prosecution OF war against
the Cuban government, and as Congress
| alone had the authority to declare war
| against the Cuban republic, the control
of Cuba, by the President. as commander
in-chief, was a virtual prosecution of war
without the authority of Congress. He de-
MED that such government could be justi-
fed under the war power, as the war
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 gov
erning 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
or a petit jury Nicely could not be tried
before them without violation of the sixth,
seventh and eighth amendment to the
Constitution.
Owing to the late hour when Mr.. Lindsay
| concluded his argument, Assistant At
torney General Beck, who intended 10 reply
for the government, did not speak. He
will probably address the court to-day.