Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President, Transmitted to Congress December 2, 1895, Part I

Report of the Secretary of State.

The President:

I have to acknowledge the receipt by reference from the Executive of the following resolutions of inquiry:

senate resolution.

Resolved, That the President be, and he is hereby, requested, if in his judgment not incompatible with the public interest, to communicate to the Senate all information which has been received by him or by the State Department in regard to the arrest and trial of John L. Waller, a citizen of the United States, by French authorities in the island of Madagascar, and his imprisonment in Paris, in the Republic of France, including all correspondence between Edward Telfair Wetter, United States consul at Madagascar, and Mr. Edwin F. Uhl, of the Department of State, and all records, documents, and evidence in any way touching said matters in his possession or in possession of the State Department.

house resolution.

Resolved, That the President be, and he is hereby, requested, if in his judgment not incompatible with the public interest, to communicate to the House of Representatives all information which has been received by him or by the State Department in regard to the arrest and trial of John L. Waller, a citizen of the United States, by French authorities in the Island of Madagascar, and his imprisonment in the Republic of France, and all records, documents, and evidence in any way touching said matters in his possession or in the possession of the State Department.

John L. Waller, a native-born citizen of the United States, was appointed United States consul at Tamatave, Madagascar, in February, 1891, entered upon the duties of the office and continued to hold the office till the last of January, 1894. From that time until October, 1894, he resided at Antananarivo, the capital of Madagascar.

W. F. Crockett, a citizen of the United States residing in Madagas-gar, died in June, 1892, leaving a native wife and two minor children. By a quasi-testamentary paper, he expressed the wish that his property might be placed in native hands so as to escape the fees and expenses which would result from its administration by the United States consul. In November, 1892, Waller reported these facts to the Department, but added that as there were claims against the estate he had assumed charge of it. The Department approved his action January, 1893, and directed him to administer upon the estate in accordance with the consular regulations. Excepting a later report from Waller to the effect that he had converted the property into money, nothing further on the subject was heard from him.

The present United States consul, Edward T. Wetter, who took charge of the consulate at Tamatave the last of January, 1894, found the records of the consulate in a state of great confusion. Waller had disappeared, the consulate was in charge of an acting vice-consul named Geldart, and there was no account on the records relating to the Crockett estate subsequent to November, 1892, when Waller took charge of it. It subsequently appeared that Waller had taken possession of the estate as appointee of the widow under a paper entitled “Appointment of John Waller as administrator and guardian for the estate of the late W. F. Crockett.” This document authorized Waller to bring up the daughter in his family and—

to lend the money which belongs to me and my children at such interest as will pay for the clothes, board, and care of the children without consuming the principal for that purpose. I want the interest paid at the end of each six months, provided that it shall always be applied to the board, lodging, and care of the children. I want a statement showing the amount of interest the principal has earned at the end of each six months.

Waller’s duty with reference to the estate is declared by sections 1709–1711 of the Revised Statutes.

March 29, 1894, Wetter called upon both Waller and Geldart for an account of the Crockett estate, (Geldart’s reply was that Waller had not turned over to him any part of the Crockett estate, but had gone away with it, claiming to be accountable to the State Department only.

Under these circumstances, Wetter caused a civil suit, in the name of the United States, to be brought against Waller, based upon averments of his negligence and mismanagement of fiduciary trusts. This suit was to have been tried in June, 1894, but on account of Waller’s health, was not actually tried till October of that year. It is in connection with this trial that two American citizens by the names of Duder and Poupard first appear upon the scene. They had been invited by the consul to sit with him as associate judges. They were, however, objected to by Waller—on what ground does not appear—and were thereupon withdrawn by the consul.

The court, as finally made up, consisted, to quote Consul Wetter’s statement:

Besides myself, of Messrs. Geldart and Ryder (Messrs. Duder and Poupard having been objected to by Waller), and of Mr. Howe, a new American arrival here. Mr. Geldart is Waller’s most intimate friend and champion. Messrs. Ryder and Howe are perfectly neutral; hence the utmost impartiality has been secured to Mr. Waller.

The court thus composed, under date of October 1, 1894, rendered judgment as follows:

Tamatave, October 1, 1894.

[The United States v. John L. Waller, administrator, guardian, etc. Negligence and mismanagement of fiduciary trusts.]

finding of the court.

This court, after careful consideration of the evidence submitted and the statements of the accused, finds:

(1.) That Mr. Waller has been guilty of gross mismanagement of the funds of said estate.

(2) That Mr. Waller has in no way benefited the widow of W. F. Crockett or his minor children, either as guardian or administrator.

(3) That the items appearing upon his accounts as charges for a trip to Antalaka, amounting to $128, were expenditures wholly unwarrantable by the exigencies of the case, and are likewise exorbitant, and are therefore disallowed.

(4) That Mr. Waller has been guilty of abuse and negligence of Ms fiduciary trusts, both as a citizen and as an official.

(5) That we therefore adjudge him unworthy of further confidence, and order his removal from said fiduciary capacities.

(6) That he pay into the United States consular court sitting in probate jurisdiction at Tamatave, within forty-five days hereof, the amount of the balance due said Crockett’s heirs now in his hands, to wit, $1,961.67, Madagascar currency.

(7) That he be further adjudged, in view of the fact that with due diligence he could have readily found investment for said amount here at Tamatave, to pay interest at 8 per cent on said sum, $1,961.67, from January 1, 1893, amounting to $294.25 in same currency.

(8) That said defendant pay all charges of this action, costs of court, etc.

Edward Telfair Wetter,
United States Consul, Acting Judicially.

Undersigned:
J. O. Ryder,
R. W. Geldart,
Daniel J. Howe,
Associate Justices.

In the dispatch of October 26, 1894, reporting this judgment, and in other subsequent dispatches, the consul refers to collateral facts of more or less importance in connection with this judgment, but not necessary to be here repeated. His letter of the 26th asks for permission to prosecute Waller criminally, to which the Department replied that it could not give any specific instructions in the matter, but if the criminal law had been violated it was the consul’s duty to take the proper measures This reply was not received, however, by the consul until after Waller was arrested by the French. In a letter dated April 21, 1895, the consul calls for such information and instructions as will enable the judgment of October 1 to be satisfied either from Waller’s estate in the United States or by proceedings against the sureties on his bond.

This same letter contains an allusion to the Waller rubber concession or land grant near Fort Dauphin. After indicating various ways in which the Crockett money may have been consumed by Waller, there is a suggestion that some of it may have been spent in bribes to secure the concession. But no evidence to that effect is reported, and neither is there any proof of the nature, extent, validity, or value of the concession. That it was believed to have some value is shown by the account of Mrs. Waller’s efforts to raise money on it for the payment of the judgment against Waller. On the other hand, the value may have been supposed to be dependent upon the issue of the contest then going on between the French and the natives, while it is certain that the French authorities have always held the concession to be without any validity.

As has already been stated, Waller returned to Tamatave from Antananarivo in October, 1894, being, as he declares, then on his way to America. He was prevented from proceeding, however, by his inability to pay the Crockett judgment, which payment the consul insisted upon as a condition of his departure. In December, 1894, the French bombarded Tamatave, captured it, took military possession, installed a garrison of seven or eight hundred men, proclaimed martial law, as Waller himself says, and put the mails under surveillance. This situation must have been well understood by Waller, for, though he afterwards professed ignorance of it, in the intercepted letter to his wife of January 20 he says:

I shall slip this letter out by English steamer via Natal; then it will not be read by the French, as all letters are here at this time.

On the 5th of March, 1895, Waller was arrested by the French authorities and his papers seized. He was subjected to the customary preliminary examinations, and on the 18th of March was brought to trial before a military tribunal described as “Marine first permanent council of war.” The charges against him were in effect, first, the dispatching of a letter from Tamatave without the same having been viséed by the French authorities in contravention of a public order promulgated January 18, 1895; and second, attempting to correspond with the enemies of France and to furnish them information prejudicial to the military and political situation of France. The counsel selected by Waller and his friends having declined to act unless money was raised for his compensation in advance, the French authorities assigned him counsel, who was assisted by Consul Wetter in the preparation of Waller’s case and who acted in his defense. The trial took place in open court; the accused was interrogated and identified certain alleged incriminating letters written by him, and the testimony of witnesses was taken, including that of Paul Bray, Waller’s stepson. After argument on both $ides, the court, by a unanimous vote, found Waller guilty on both charges, and sentenced him to twenty years’ imprisonment. An appeal taken from the judgment and sentence to a council of revision was rejected March 23.

The case having been reported to the Department by Consul Wetter, Secretary Gresham, by letter dated April 10, 1895, instructed our ambassador at Paris to call upon the French Government for a record of all the proceedings, including a copy of the evidence. This request was partially complied with in June by furnishing a document showing the charges, the general course of procedure at the trial, the judgment and sentence, and the denial of the appeal therefrom. The evidence called for did not reach the French minister for foreign affairs until the 5th of October. After scrutiny by him, and without any admission of the duty of the French Government to permit an inspection of the evidence—a duty which that Government claimed from the outset did not exist—the evidence was submitted to Mr. Eustis for such examination as lie chose to make. He accordingly examined the same, and, under instructions from the Department, has reported the conclusions thereupon reached by him.

Waller’s guilt upon the first charge, sending a letter from Tamatave without permitting the French authorities to inspect it—an offense said to be punishable by a nominal fine—stands confessed. As respects the second charge—a charge, of course, of much greater gravity—Mr. Eustis reports as follows:

The Waller record consists mainly of the following papers: The sentence of the court, embracing part of the proceedings already communicated; reports of various officials charged with collecting the evidence; interrogatories of the accused and witnesses in the secret preliminary proceedings, called in French “l’instruction;” two letters of Waller written at Tamatave under date of January 28, 1895, and addressed one to Mr. Tessier, the agent of the Hovas, and the other to his wife, both of whom were then at Antananarivo.

In order to understand the significance of the information communicated, it must be borne in mind that the French had a garrison at Tamatave and the Hovas had one at Faratafi. These two points were distant from each other a few miles. In a letter to Tessier he describes the condition at Tamatave; that smallpox is raging; that many are dying; that there are more than one hundred French soldiers in the hospitals; that they have dysentery and fever, and unless there should be a change in the order very soon the fatality of both soldiers and citizens will be very great. Then he speaks of the scarcity of provisions; of the arrest of several Hovas who were reported to have been shot.

To have communicated the enfeebled and straitened condition of the garrison at Tamatave might certainly have provoked the attack by the Hovas from Faratafi, the information being given to an agent of the Hovas.

He describes the rapes and outrages committed by French soldiers upon Malagasy women, and says that it seems strange that civilized men should commit such crimes upon the poor Malagasy women, and speaks of much Malagasy property having been destroyed by the French troops. Whether these statements were true or false, they were certainly calculated to increase the horrors of war by provoking retaliation on the part of the Hovas.

He writes that all mail leaving Tamatave for Antananarivo is read by the colonel of the French army before it can pass; that he has a chance to send this letter by the English steamer via Natal, because it will escape the eyes of the officials.

In his letter to his wife he denounces D. and P. (who are identified as Draper and Purdy) as French spies, and asks her to inform Tessier and friends of the fact. It is true that he advises that they may be sent away from the capital, but he doubtless knew that spies in time of war are not banished, but are usually shot, and when asked by the presiding officer why he exposed these two men to be executed, he replied that he did it from motives of revenge. I am credibly informed that these two men were American citizens.

He says that he will slip this letter out by English steamer via Natal, then it will not be seen or read by the French; that if she acknowledges the receipt of this letter, not to mention anything in it, but simply say, “Your 44 received;” and after she and Tessier have read it to destroy it, and not to mention its contents except to Tessier and secretaries (the latter are interpreted as meaning secretaries of the Hovas Government).

He details outrages committed by French soldiers upon Malagasy women, giving a terrible account of it. He adds that no one will know what he has suffered for the Malagasy, and that he is liable to be shot at any moment.

These letters are in the handwriting of Waller, and at the trial he acknowledges having written them.

These conclusions, stated in a letter of December 12, 1895, had been briefly summarized in a telegram of December 7, as follows:

It is proper to state that before examining the evidence I had been inclined to believe from the information I could gather that Waller was perhaps convicted on insufficient evidence; that on account of the prejudice against him he might not have had a fair trial. After examining the original letters of Waller, I have no doubt whatever of his guilt. It was not a case of inadvertent or imprudent writing, but was a deliberate attempt to give information to the enemy to the prejudice of the military situation of France. The evidence fully sustains the charge. The whole tenor of the correspondence discloses his guilty intention and no court could have hesitated to condemn him.

It should be further stated that considerable corroboration of the conclusions thus arrived at by Mr. Eustis is found in the collateral information which has come to the possession of the Department, including the statement of Mrs. Waller and her son Paul Bray. The counsel who defended Waller at the trial made some extracts from the alleged incriminating letters—doubtless those he thought most important—and also made minutes of some portions of the oral testimony. Thus, his memorandum of Waller’s letters of January 23, 1895, is as follows:

VII. Letter of Waller to his wife, January 23, 1895.

1. The case of Geldart v. Lyons. Calling up of his own case.

2. “Geldart, Duder, and Poupard are as thick now as three in a bed, and Wetter is their god. I will inform you that D. and P. are on their way to Antananarivo, and they will likely reach there long before this letter leaves Tamatave.” “Please inform M. Tessier and out friends that both of these men have been sent up there by the French to find out secretly all the movements of the Hova Government, which they will send to the French authorities from time to time. Therefore the Government had better keep a strict watch of these men and order them from the capital as soon as possible. Both of them are for French.

I shall slip this letter out by English steamer via Natal; then it will not be read by the French, as all letters are here at this time. I shall be anxious to learn that you have received this letter; therefore, when you get it, do not mention anything you find in it, but simply say, “Your. No. 44 received,” and please destroy it as soon as you and M. Tessier have read it, and do not mention to anyone but M. Tessier and secretaries about the information which I send you. —.

3. Smallpox. Numerous rapes of which he has been witness on the part of soldiers.

4. May God grant that the money shall have been raised and forwarded by you and our friends before this time. —.

5. Details as to the material difficulties of living at Tamatave; he therefore intends to go to Tamatave as soon as possible.

VIII. Letter from Waller to Tessier:

January 23, 1895.

“1. I send an important letter under your cover to my wife, which I will be pleased to have you hand her in person on account of its importance.

“I need not inform you that she will call your attention to a certain matter therein contained, the importance of which will at once challenge your most careful attention and place our friends on their guard. This matter is strictly confidential and I can assure you that our friend can not afford to lose any time in attending to it.”

“Small-pox—violence—destruction of property, poverty, provisions of beef—letter.”

Waller’s counsel also reports Waller as having testified at his second examination as follows:

He maintains that D. and P. are not Duder and Poupard.

He did not think that in writing on the subject of D. and P. he could do them any harm, for they are English; he simply wished to revenge himself for the rascally proceedings of which he had been the subject by causing them to be expelled from the capital.

These extracts from letters and minutes are not only in line with the results reached by Mr. Eustis, but raise the serious question whether Waller was not intriguing not merely against the French but against the safety and lives of American citizens. He states that by D. and P. in his letter to his wife he did not mean Duder and Poupard—two persons so named in but two lines previous of the same letter. He declares he meant two other persons, viz, Draper and Purdy. But both his wife and his stepson affirm that they bad no knowledge of any such persons, nor is anyone else shown to have heard of them. On the other hand, Duder and Poupard were the two American citizens whom Consul Wetter asked to sit with him in the Crockett case and whom Waller objected to. And since Waller admits that his allusion to D. and P. was for the purpose of revenge, the inference that Duder and Poupard were the persons aimed at is well nigh irresistible, Certainly his wife, to whom the letter was addressed, and who did not know Draper and Purdy, could not have understood the initials except as referring to Duder and Poupard.

On all the evidence, and in view particularly of his own letters, Waller was unquestionably guilty of an offense against the French Government of a serious character, and fully justifying severe punishment. It will be seen, however, that at a time when it seemed uncertain whether or not an inspection of the evidence in Waller’s case would be permitted, Mr. Eustis, by direction of the Department, submitted the record of the charges, procedure, sentence, etc., to an eminent French lawyer, M. Eduard Clunet, and asked his opinion upon the validity of the proceedings as thus shown. The opinion, given in writing, is annexed to this report. It points out that a proclamation of martial law was the basis of the jurisdiction of the court, and that the record is defective in not showing the issuance of such a proclamation. But as there is no doubt that such a proclamation was issued—Waller himself so states—the defect would seem to be of a technical rather than a substantial nature, and easily curable by an amendment of the record.

The opinion also sets forth certain other peculiarities of the procedeings, which are treated by M. Clunet rather as irregularities than as matters touching the jurisdiction. His conclusion upon the whole case, however, is that there is no mode by which the Waller judgment could be successfully challenged through the courts, and that any relief from his sentence must be sought through an application for clemency. If the evidence had not been produced and the substantial merits of the case thus disclosed, it might have been the duty of this Government to test the accuracy of M. Clunet’s findings by appropriate legal proceedings or otherwise. But the evidence having been exhibited and Waller having been thus satisfactorily shown to have, given the French Government grave cause of complaint and to be guilty of the offenses charged against him, an attack upon the proceedings of the Tamatave court for alleged irregularities—even if attended with the most successful result—could not do more for Waller than accomplish his release.

So far as compensation by damages for any illegal arrest or detention is concerned, this could only be sought later, either through the action of the United States or by suit by Waller himself in the French courts. But in view of Waller’s willful and culpable attempt against the French authority in Madagascar, it is manifest that no claim for damages on Waller’s account could be properly pressed by the United States, or could be expected to be entertained by the French Government. An international reclamation, the rejection of which may justify reprisals or even be treated as a casus belli, ought not to rest on pure technicalities when the facts and evidence are against the claim. It should be founded upon something more than the mere nonobservanee of legal formalities—upon something more than irregularities originating in ignorance or inadvertence rather than in intention, and not necessarily nor actually working any substantial wrong or injustice.

The rule laid down by the Supreme Court of the United States (110 U. S., p. 74) in relation to claims before an international tribunal of arbitration a fortiori applies to a claim made by one Government upon another direct.

International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the Government from which they come, and it is not to be presumed that any Government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own Government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity.

Hence, in accordance with this rule, notwithstanding the appearance of omissions and irregularities in the record and proceedings of the tribunal, it can not be said that substantial injustice has resulted therefrom, since upon the facts and the evidence of Waller’s own letters the result must have been the same if every technical requirement had been observed. So, though Waller has been deprived by the French of his liberty for nine or ten months, it can not be said that the penalty to which he has been subjected has been disproportionate to his offense. On the contrary, the penalty regarded as the outcome of a lawful proceeding would universally be regarded as an exceedingly moderate one. In short, the production of the evidence in Waller’s case showed him to have been guilty of a grave offense, though perhaps the strictly legal formalities and procedure necessary to make his trial unquestionably regular were not complied with.

In any event it became quite clear that any objections to the legal proceedings in the case were either technical and formal, and so not necessarily fatal to them, or, if more serious because jurisdictional or substantial, they might be met by the French Government by remanding Waller for a new trial, which upon the undisputed facts could not be expected to result any differently from the first trial.

In these circumstances, after urgent representations by this Government, an offer was made by the French Government to release Waller from further imprisonment and pardon his offense upon the condition that the affair be thereby terminated as between the two Governments and that the United States should make no claim in behalf of the prisoner based upon his arrest, conviction, or imprisonment. The acceptance of this offer seemed to be so favorable to Waller, and in view of all the facts so considerate toward our Government, that under the direction of the President our ambassador to France has been instructed to give notice of such acceptance on our part and to exchange the notes necessary to carry out the arrangement.

Waller has not consented to this adjustment and still insists that he should receive compensation from the French Government.

The fact has not been overlooked that Waller is reported to have at one time declared that on the voyage to Marseilles from Tamatave he was subjected to gross personal indignity and abuse. In view, however, of the intrinsic improbability of the charge, of its never having been repeated even by Waller himself, of there being no allusion to it in the narratives of his wife and stepson, of the alleged maltreatment forming no part of Waller’s formal specification of his injuries and claims for damages as communicated to Mr. Eustis, and of the proven unreliability and malice of Waller’s assertions in other connections, it is impossible not to regard Waller’s complaint of cruelty practiced upon him on shipboard as either wholly unfounded or at the best grossly exaggerated.

It is further discredited by the fact that the treatment of Waller since his arrival in France has been exceptionally considerate and humane. Reaching Marseilles in delicate health, he was at once provided with competent medical advice and attention, and soon after, upon the suggestion of the physician in charge, was removed to a different locality better adapted to his physical condition, and where he has since greatly improved. Nevertheless, that no possible injustice might be done to him, Waller’s complaint of ill-treatment on his journey to France was specially called to the attention of the French Government. That Government at once disavowed the cruelties charged and insisted that they could never have been inflicted, but undertook, at the request of this Government, to investigate and to punish any persons found guilty of them.

It at the same time declared, however, that even if the complaint should prove to be well founded, it could not entertain any claim of damages for Waller preferred by the United States, because the French tribunals were open to him and he could pursue his remedies there either against the Government or private individuals in the same manner and with the same effect as could any French citizen under the like circumstances. This position of the French Government—that claims of aliens cognizable by the courts of a foreign country can not be made the subject of diplomatic intervention unless there has been a palpable failure of justice after all local judicial remedies have been exhausted—is one upon which this Government has often insisted and of which it has often availed itself.

Its applicability to the case of Waller was confirmed by the opinion of the eminent French lawyer already referred to, by whom it was pointed out that in respect of remedies in the French tribunals an alien was in all respects on the same footing as a Frenchman except that the alien must furnish security for costs. As our ambassador at Paris, under instructions from this Department, could easily arrange to furnish such security should Waller desire to resort to the French courts, there seemed to be nothing in Waller’s charges of ill-treatment while on his way to France which ought to stand in the way of an acceptance of the offer of the French Government for his immediate release.

Accordingly, upon the request of Waller, our ambassador at Paris will be instructed to arrange for furnishing security for the costs of any suit before the French tribunals which Waller may be advised the facts of his case will warrant. Mr. Eustis has already been instructed to supply him with the means of transportation to the United States, should he desire to come here. It may be added as part of the history of the case, that the family of Waller being left in destitute circumstances, the Department instructed its representatives to provide for their present necessities and to furnish them the means of getting to the United States. That relief was accordingly extended to them, the charges to which this Government has thus far been put amounting to $1,317.14.

Richard Olney

.

Department of State,
Washington, February 5, 1896.