Mr. Eustis to Mr. Olney.

No. 327.]

Sir: As stated in my dispatch No. 323, of the 21st instant, I received from the foreign office a copy of the charges and of the sentence in the Waller case. The length of the document made it impossible to forward a copy and translation thereof the same day. I now have the honor to inclose herewith a copy and a translation of the charges and sentence, together with Mr. Hanotaux’s note of transmittal and a copy of my reply to Mr. Hanotaux.

I have, etc.,

J. B. Eustis
.
[Inclosure 1 in No. 327.]

Mr. Hanotaux to Mr. Eustis.

Mr. Ambassador: By a letter dated April 23d last your excellency was kind enough to inform me of the importance attached by you to the text of the sentence rendered by the court-martial at Tamatave against Mr. Waller, formerly consul of the United States at Madagascar.

The minister of marine has just transmitted to me the document in question and I hasten to address herewith a copy to your excellency.

Accept, etc.,

G. Hanotaux
.
[Inclosure 2 in No. 327—Translation.]

Copy of sentence rendered against Waller.

Marine. First permanent court-martial, sitting at Tamatave. The French Republic.

In the name of the French people, the first permanent court-martial, has rendered the sentence the text of which follows:

On this 8th day of March, 1895, the first permanent court-martial, composed, in accordance with articles 3 and 10 of the Code of Maritime Justice, of Messrs. Dardaigne, [Page 266]lieutenant of marine infantry; Boquet, lieutenant of marine infantry; Gagne-pain, second lieutenant of marine infantry; Nicaise, adjutant of marine infantry, judges, all appointed by the lieutenant-colonel, commander in chief of the troops and of the town of Tamatave, now in a state of siege; Mr. Maroix, second lieutenant, substitute of the commissioner of the Government; Mr. Marenger, sergeant-major, clerk of the aforesaid court martial, all of whom not being ineligible by reason of the provisions of articles 22, 23, and 29 of the code aforesaid.

The court-martial called together by order of the lieutenant-colonel, commander in chief of the troops and of the town of Tamatave, now in a state of siege, in accordance with article 141 of the Code of Maritime Justice, assembled in the usual place where its public sittings are held for the purpose of trying Waller, John, born on the 13th of January, 1850, at New Madrid, State of Missouri, United States of America, journalist, actually residing at Tamatave, age 45. Accused of having been guilty, first, of violation of the laws of article 3 of the decree of the 18th of January, 1895, by the delegate of the chief of the naval division, said violation coming under article 471 of the penal code, paragraph 15, and being applicable by virtue of article 364 of the Naval Code of Justice; second, of correspondence with the enemy, said crime coming under and being punishable by articles 2 and 78 of the ordinary penal code and viséed by article 364 of the Naval Code of Justice.

The court having been opened, the president had brought and deposited before him on his desk a copy of the military and naval codes, of the code of criminal instruction, and of the penal code, and ordered the guard to bring in the prisoner, who was presented to the court, free and without irons, accompanied by his counsel.

Interrogated through Mr. Duponsel, 38 years of age, merchant living at Avenue No. 1, in Tamatave, who was sworn according to the forms prescribed by law as to his name, surname, place of birth, trade, profession, and place of residence, he replied that his name was John Waller, born the 12th of January, 1850, at New Madrid, State of Missouri, United States of America; that he was a journalist actually residing at Tamatave.

The president, after having had read by the clerk the order convening the court-martial, the report prescribed by article 138 of the Code of Naval Justice, and the papers the reading of which he deemed necessary, made known to the accused the facts upon which the prosecution was based, and gave him, as well as his counsel, the notice indicated in article 151 of said code.

After which he proceeded to interrogate the accused and to hear the testimony of the witnesses separately and publicly, said witnesses having previously been sworn to testify, without hatred or fear, to tell the truth and nothing but the truth. One of them, Paul Bray, having been heard through Mr. Duponsel, the sworn interpreter.

Then the president of the court having besides, as regards them, observed the formalities prescribed by articles 317 and 319 of the Code of Criminal Instruction.

Mr. Molyneux was heard, to give information, by virtue of the discretionary power of the president, without being sworn and through Mr. Duponsel, the sworn interpreter. The documentary evidence was shown to the accused, which he recognized.

The prosecuting officer of the Government having been heard in his requisitions tending to establish that the aforenamed John Waller, journalist, actually domiciled at Tamatave, should be found guilty (1) of violation of the provisions be article 3 of the order (arrete) of the 18th of January, 1895, of the delegate of the chief of the naval division; (2) attempt to correspond with the subjects of a power which is an enemy, an attempt which could have as a result the furnishing to the enemy information injurious to the military and political situation of France; (3) tending besides to convince the military court to confiscate for the profit of the State the documentary evidence which served for the commission of the crime conformably to article 11 viséd by article 74 of the Code of Maritime Justice, and the accused within his own means of defense, as well as those of his defender, both having declared to have nothing to add to their means of defense, and having last spoken, the president did declare the arguments closed and ordered his counsel and the accused to retire.

The tribunal withdrew to a room for deliberation. The court having deliberated with closed doors, the president propounded the questions conformably to article 162 of the Code of Maritime Justice, as follows:

(1)
Is the accused guilty of having violated article 3 of the order (arrete) of the 18th of January, 1895, of the delegate of the chief of the naval division?
(2)
Is the accused guilty of correspondence with the enemy which could have caused injury to the military or political situation of France?
(3)
Was the offense committed under aggravating circumstances?
(4)
Was the offense committed under a circumstance which rendered it excusable? The votes taken conformably with articles 161 and 163 of the Code of Maritime Justice, beginning by the lowest rank, the president being the last to give an opinion, the court declares on the first question, by unanimity, “Yes, the accused is guilty.”

On the second question, by unanimity, “Yes, the accused is guilty.”

[Page 267]

On the third question, by a majority of three votes, “Yes, the accused is guilty under aggravating circumstances.”

On the fourth question, by unanimity, “No.”

Thereupon, and considering the conclusions drawn by the prosecuting officer of the Government in his requisitions, the president read the text of the law and again took a vote in the form prescribed by articles 161 and 164 of the Code of Maritime Justice for the application of the penalty, the court resumed public session, and the president read the reasons and conclusions as follows:

In consequence, the court condemns by a majority of three votes the aforenamed John Waller to twenty years of confinement, conformably to the articles hereafter named, and pronounces the confiscation, for the benefit of the State, of the papers produced during the trial as convicting evidence.

Penal Code.

Article 11. The committal of one to the special surveillance of the higher police, the fining, and the special confiscation either of the corpus delicti, when the property belongs to the condemned, or of the things produced by the crime, whether they be those which were used or which were destined for the commission of the crime, are common penalties relating to matters criminal and correctional.

Article 2. Every attempt to commit a crime which shall have been manifested by a commencement of it if it has not been suspended, or if it has failed of its effect only by circumstances independent of the will of the one who has made the attempt, is considered as the crime itself.

Article 78. If the correspondence with the subjects of the enemy, without having for its object one of the crimes denounced in the preceding article, has nevertheless had for result the furnishing of the enemy information injurious to the military or political situation of France or of her allies, those who shall have carried on that correspondence shall be punished by confinement, without prejudice to severer penalties in the case that this information was the result of an understanding (concert) constituting the fact of spying.

Article 471, sec. 15. Shall be punished by a fine from 1 fr. to 5 fr., inclusively, those who violate the regulations made by the administrative authority and those who shall not have conformed to the regulations or orders published by the municipal authority by virtue of articles 3 and 4, title 11, of the law of 16th and 24th August, 1790, and of the article 46, title 1st, of the law of 19th and 22nd July, 1791.

Code of Military Justice for the marine army.

Article 74. The tribunals of the marine only pass upon public action. They can, nevertheless, order for the benefit of the owners the restitution of objects seized or of papers used for conviction when their confiscation has not been decreed.

Article 104. All accused, without distinction, are amenable to a court-martial or a council of justice.

(1)
When they are all marines or soldiers in the marine army, or assimilated to them, although one or several of them should not be triable by those courts by reason of their position at the time of the commission of the crime or the offence.
(2)
If it relates to crimes and offences committed by those triable by courts-martial or of justice, and by strangers, whether on French territory or whether on foreign territory occupied by military forces.
(3)
If it relates to crimes and offences in a foreign country in the department of an expeditionary corps.

Article 364. The tribunals of the marine apply the penalties imposed by the ordinary penal laws to all crimes and offences which are not provided for by the present code, and in the case when the law authorizes the admission of attenuating circumstances they can apply articles 463 of the Penal Code.

Order of the delegate of the chief of the naval division.

Article 3. The lieutenant of the port has the surveillance of correspondence on its arrival and departure. No correspondence can be distributed except by means of the post-office, and all despatches must be sent there. No one can send letters except by the mail. Exceptions to this rule must be specially authorized each time by the delegate of the chief of division, and in his absence by the municipal authority.

Article 135 of the Code of Military Justice: In case of conviction of several crimes or offences, the highest penalty is alone imposed.

Penal Code, article 20: Whoever shall have been condemned to confinement shall be confined in one of the fortresses situated on the continental territory of the Republic, which shall have been designated by a decree rendered conformably to the regulations of the public administration.

[Page 268]

The confinement can not be imposed for less than five years, nor for more than twenty years, except in the case provided for by article 33.

The Code of Military Justice for the marine army.

Article 169. The judgment which imposes a penalty against the accused condemns him at the cost of the State. It orders, in the case provided by law, the confiscation of the objects seized, and the restitution for the benefit of the State or of the owners of all objects seized or produced at the trial as convicting evidence.

The commissioner of the Government is instructed to have read immediately in his presence the present judgment to the condemned before the assembled guard under arms, and to notify him that the law accords him a delay of twenty-four hours to make an appeal for revision.

Done and adjudged without interruption in public session at Tamatave the day, month, and year before stated, and the members of the court-martial have signed with the clerk the minutes of the present judgment.

Signed: Lacarriere, Bardonne, Bouquet, Gagnepain, Nicoise, Marenger.

In the year 1895, on the 18th of March, the present judgment was read by me, the clerk, the undersigned, to the condemned, who was advised by the prosecuting officer of the Government that the articles 171 and 173 of the Code of Maritime Justice grant twenty-four hours to take an appeal for revision, which commenced from the expiration of the present day, this reading being made in the presence of the guard under arms.

The prosecuting officer of the Government:

Maroix.

The clerk:

Marenger.

In consequence, the President of the Republic orders all process servers to execute the aforesaid judgment, all prosecuting officers at the tribunals of the first instance and all commanders and officers of the public force to aid in the execution thereof when legally required.

The appeal for revision having been rejected on the 23d day of March, 1895, the present judgment was executed on the 24th of March, 1895.

The sum of the expenses of justice amounts to 12.25 francs.

The clerk:
Marenger
.
[Inclosure 3 in No. 327.]

Mr. Eustis to Mr. Hanotaux.

Sir: I had the honor yesterday to receive your excellency’s communication dated the 18th instant, transmitting a copy of the text of the sentence in the Waller case, which includes a copy of the charges. I notice that not only is a copy of the evidence not communicated to me, but that no reference whatever is made to it, nor is any reason stated explaining this omission. If your excellency will refer to any of my communications or recall any of our several conversations in regard to the Waller case, your excellency will not fail to understand that my Government requested not only a copy of the charges and sentence, but also a copy of the evidence, and that this important part of my Government’s request could not have been formulated in more direct and explicit terms.

In view of the fact that a copy of the charges and sentence has been communicated to me, and that a copy of the evidence has not been communicated to me, I would respectfully request your excellency to inform me as soon as possible whether the French Government does or does not intend to comply with the request of my Government for a copy of the evidence in the Waller case, and, in case of refusal to comply with this request, to inform me of the reason upon which such refusal is based, so that I may at once advise my Government what it may expect from the French Government with reference to this important matter. The reason that I reiterate the earnest desire of my Government to obtain from the French Government a copy of the evidence in the Waller case is that a copy of the charges and sentence, in the absence of a copy of the evidence, does not enable my Government to determine for itself the question whether an American citizen, who has been condemned by a French military court in Madagascar to twenty years’ imprisonment, has been justly dealt with by the French authorities.

I avail, etc.,

J. B. Eustis
.