The sun. [volume] (New York [N.Y.]) 1833-1916, 1898-02-28
m TT WAS MURDER.
re Legal Aspects Of the assstisS sr spain's
Hespopsibtiity.

W awaiting Win all Oue patience ~ uhuAhs VI
the Court of Inquiry as to the cause of the de-
struction Of the Maine. It may not be amiss TO
consider what may be our rights and duties I'M
der that finding.
IL the court should be OF opinion that the
Maine was destroyed by some internal cause. the
responsibility for 1t would rest upon the officers
OF the Maine. unless it was shown that the in
jury resulted from some cause beyond the reach
OF prudence and foresight TO prevent. a United
states war vessel is legally United States terri
tory, and 1t is as much our exclusive duty TO
take oil measures necessary for the safety OF the
vessel and those on board OF her as II she were in
fact a part OF our own soil. For what goes on
there Spain is no more responsible than for
what occurs in New York city. Her turisdic-
tipn ceases at tho sides Of the vessel. and. being
without jurisdiction, she is also without re-
sponsibility.
Even II it was shown that a Spaniard had
gone on board and surreptitiously smuggled a
torpedo into tho coal bunkers. which subse-
a%uentiy exploded and wrecked the vessel. Spain
would not be responsible unless 1t was also
shown that he was the emissary OF the Spanish
authorities.
But IL tho court should find that the injury
was caused by some exterior agency. then the
responsibility would. priUd Jdcie, be upon Spain,
for the reason that 1t would have originated In
her Jurisdiction. II she could show that the ex-
plosion occurred through a nero accident that
could not have been avoided by due caro- and
diligence on the part Of her port authorities.
then, indeed. she would avoid all responsibility.
But II it appeared that the injury was caused by
an accident due TO any want OF such care and
diligence, then she would be responsible for all
the damages incurred.
A nation IL only an aggregate OF individuals.
and the law Of nations imposes on every nation
the same obligations in reference TO other ma
lions that the civil law imposes upon individ.
uals in regard TO each other. Among those OBJ
legations are justice and humanity, and the
comfy OF nations. as we'll as the general welfare
OF mankind, adds that Of hospitality.
In his message to Congress in reference to the
outrage on the crew OF the Baltimore at Valpa-
raise. President Harrison only announced a pre-
cept OF international law when he said that the
Baltimore was in the harbor of Valparaiso "by
, virtue OF that general invitation which nations
are held to extend TO the war vessels Of other
powers with which they have friendly rcia-
tons"
The same doctrine was announced by the
United States Supreme Court q Cranch. ll6l,
when 1t said:
Unless closed by local law. the ports Of Q friendly
nation are considered as open TO the public ships OF
all powers with whom It Is at peace. and they are
supposed to enter such ports. and to remain in them
while allowed 20 remain. under the protection of the
Government of the place.
In the case of the Maine this general invita-
ton was accentuated by the expression Of graf
~ifcation on the part OF the Spanish authorities,
when 1t was announced that she would visit the
harbOr OF Havana. The Spanish Minister de-
clarei that her visit was a gratifying evidence
of the friendly relations between the two coun-
tries. and the Ministry at Madrid expressed it.
self in the same way, and replied by sending
the NiZcaya 10 New York.
BY the law OF nations, therefore. and by the
common obligation OF hospitality. recognized
even by the Bedouin OF the desert who refuses
to harm the stranger who has eaten his salt.
Spain was bound to protect the Maine as long
as she remained within her waters.
Whether there were mines planted in the
harbor Of Havana is not certainly known, but
II there were, 1t was the duty of the Spanish
authorities to take oil precautions that the
Maine should receive no injury from them.
see that ex.Secretary Robert Lincoln has
expressed the opinion that any nation has
n right to protect her harbors in this way,
even in time OF peace. l do not so read
the authorities. On the contrary, whilc the
practice of protecting harbors by mines md
torpedocs Is so recent that there are few prece-
dents on the subject, both the general theory of
the law and the preccdcnts. SO far as they so. are
antagonistic to Mr.. Lincoln's statement. SELF.
defence is the first law OF nations as well as of
Individuals, and in time of war n nation may
have the right TO protect it's ports in this way.
But in time OF peace. when every nation is hold
ing out TO every other nation an invitation to
visit its ports and enjoy its hospitality, it would
seem homogeneous that it should prepare itself
to welcome them with mines and torpedoes.
The modern practice has been to allow the
protection Of harbOrs in this way in time OF
war, but It has been the custom TO notify neu-
trail nations Of their existence. So In 1877, dur.
ing the RussoTurkish war. when the Russians
protected ODESSA and other ports by torpedoes.
they gave notice OF this fact. and published
regulations for the escort OF neutral ships in
and out OF these ports by Russian officers who
knew the location OF the torpedoes. But where
mines, ,orpedocs, or other distractions have
been placed in harbors during the war, It has
always been with the understanding that they
should be removed as coon as the war was over.
In 1854. when war was threatened between
France and China, Secretary Frelinghuysen.
writing TO our Minister at Pckin in reference to !
the proposed obstruction OF the Canton River
to keep out the French feet, said:
The obstruction TO the channel at Canton and
Whampoa can only be tolerated az q temporary |
measure. TO be removed as soon as the special occa.
sion therefor shall have passed. and under no circum. |
stances TO he admitted as a precedent for setting oh.
staclea To open navigation at the treaty ports in time
OF peace, under Uretc IT OF being intended for ultimate
strategic defence in the contingency Of future tcar.
And in 1856 Mr.. Bayard wrote as follows to
Mr.. DENLY. our Minister to China:
1t is unquestionabls that a belIlgerent may, during
war. place obstructions in the channel of a belligerent
port. for the purpose OF excluding vessels OF the
other beligerent which seek the port either as hostile
cruisers or as blockade. runners. Hut while such Is
the law. 1t is equally settled by the law Of nation,
that when war ceases. such distractions when i'm.