Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-12-11
NEELY EXTRACTION CASE
Before the Supreme Court-The
Rights of the United States to Oc-
Acupy Cuba.

Rights of the United States to Oc-
cupy Cuba.
WASHINGTON, D. c., December TO-
The Nicely eXtradition case was argued
to-day in the Supreme Court. All the
judges were present. The argument
developed interesting and important
ques.liCns of law with reference to the
night of the United States to eXtradite
fugitive criminal in Jhe absence Of an
extrGSiticn treaty and especially with
reierence to he rig:lt of the President
since the Ratification of the treaty Of
Paris TO maintain a military form OF
government in the island CT Cuba. The
latter feature OF the argument made it
the first OF the arguments which bring
up fer final decision by the Supreme
Court the constitutional reistfGrf5 BET
tween -lliS Country an the territorial
acquisitions which it has gained as a
result of The Spanish American war.
: .le Nicely case referred exclusively to
the character OF these relations so far
as ne island Of Cuba was concerned,
and thus presented an independent
question from that which will be ar
guod on December II When the charac-
ter of ahese relations WITH Porto Rico
a'ad she Philippines will be under con-
sideIa.ion.
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 joint resolution
signed by the President, which declar-
ed 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 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
friendly ally. He contended, therefore
that when the treaty of Paris was rat
fled the war ceased and as no war had
been declared against the Cuban re-
public all further justification under
the war-making power to oc-
cupy Cuba ceased, and the
President should, Immediately up
on the ratification Of the traety, or
within a reasonable time thereafter,
have withdrawn the army. He claim
ed, therefore, that the institution ana
maintenance by the President OF
military government in Cuba was and
is without authority under interna-
tional law, and in fragrant contraven-
ton of the Constitution Of the united
States. He further urged that sucn
military government was unconstltu-
tional. as it was essentially prosecu-
ton of war against the Cuban repub-
lie, and as Congress alone had the
authority to declare war against the
Cuban republic the control OF Cuba oy
the President as ommander-in-chlet
was a virtual prosecution OF war with
out the authority of Congress.
He denied that such govern
ment could be justified 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
governing Cuba He relied especially up
on the case 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 with out violation of the
sixth, seventh and eighth amendments
to the Constitution. Owing to the late
ness of the hour when Mr. Lindsay con-
cluded his argument in the Nicely case
Before the Supreme Court to-day, Mr..
Beck did not speak.