The record-union., 1898-03-05
a NEW VIEW OF THE MAINE IN
CIDENT.

Charles Henry Butler of the New
York bar is out in a letter in the New
York World in which he takes 4 new
view of the Maine incident, one that
at least is interesting. His position is
that the onus probandi is not on ne
United States to prove that the expio-
sion was the result of external causes,
but that it is on Spain to prove internal
causes.
This proposition, as he confesses, ap-
parently sails III the very teeth of the
law Of evidence, but he fortiies his
position by an adroit line of argument
that is worth the reading IN briet,
Mr.. Buffers reasoning is that the pro-
lection a State extends over its people
in every country is supreme. and not
limited by the rules which bind .ndi-
viduals in their dealings with each
other. When, therefore. a sovereign
or citizens. it can do so in a more nigh
handed manner than can an individual
asserting his personal rights
He quotes Wildman as defining Inter-
national law thus:
The customary law which determines
the rights and regulates the intercourse
of independent States in peace ana
war;" and the learned Dr. Phillimore,
in his book on Interntionl Law page
6s) says, Analogy has great influence
in the decisions of international as we'll
as municipal tribunals"
He considers that under the known
circumstances it is incumbent upon
Spain to clear her skirts of ''suspi-
cion," and until she does so she must
be held responsible for the disaster. IN
part. this proceeds upon the line of
thought, several times expressed in the
Record -Union," that Spain is bound to
afford our ships in her waters reason
able protection. and If she fails IN that
she Is responsible for what happens.
But Mr.. Butler goes a step beyond that,
and we think without due warrant. We
cannot rest idle and say to Spain,
Clear yourself of suspicion; we sus-
pect, now prove your innocence Evi-
IDENTIFY our Government holds against
Mr.. Buffers view, else 1t would not
have ordered an investigation. But 1t
holds with him, in so far that it aas
assisted and encouraged Spain to make
an investigation for herself
The fact that Spain has investigated
may be taken, perhaps, as part con-
currence in the Butler position. 1t
might be construed as admission OF
duty to affirmatively clear her skirts.
We think the broader view. however,
is this, that we must first charge neg
lect on Spain, or direct purpose, before
We can hold her to account, and that
We cannot found this demand on mere
suspicion
But. says Mr.. Butler, in such cases
circumstantial evidence must play a
large part, and he cites the De Lone
case and its relation in point Of time
TO the Maine incident, as a suspicious
circumstance. This however, viii De
generally held TO be only an unfor-
tunate coincidence. But as the dis
aster occurred in de facto unfriend.y
port. says Mr. Butler, and as long as
there is any reason TO believe thai there
might have been external as we'll as
internal causes, and il there were ex-
ternai causes they must be presumed
10 have been within the knowledge of
Spain, such as mines, electrical lines TO
them, etc. the onus probandi is shifted,
under international law, upon the
shoulders of Spain.
This is certainly very ingenious. but
obvious replies suggest themselves. and
one is that there must first come from
US a suggestion. or demand. that Spain
shall clear away possible suspicion cy
Affirmative proofs. Again, says But
Ter. Captain Sigsbee might have assert
ed the extra territorial jurisdiction of
the United States which follows ships
OF war of the nation. and have refused
to comply with the rules of the port
But through naval courtesy, he accept
ed the rules, and thus placed himself
and ship in charge OF Spanish H.
censed pilot, and accepted the anchor