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

Mr. Eustis to Mr. Olney.

Embassy of the United States,
Paris, December 12, 1895. (Received December 23.)

No. 422.]

Sir: Referring to my No. 416, of December 6, inclosing a copy of the original French text of Mr. Clunet’s opinion in re John Waller, I now send herewith an English translation of the same.

I have, etc.,

J. B. Eustis

.

[Inclosure in No. 422.]

translation of opinion of mr. edouard clunet, advocate, in re john waller.

The-undersigned, Edouard Clunet, advocate of the court of Paris, consulted by the ambassador of the United States at Paris on the questions hereinafter enumerated, having seen the affidavit of John Waller, dated August 25, 1895, at the prison of Clairvaux (Auge); having seen the official copy of the judgment of the first permanent court-martial, sitting at Tamatave, dated March 18, 1895, has delivered the following opinion:

I. Jurisdiction of the first permanent court-martial of Tamatave in respect of John Waller.

The question of the jurisdiction of the court-martial in the question of John Waller is a delicate one, by reason of the somewhat vaguely defined political and international position of France at Tamatave before the occupation of Antananarivo by French forces on the 1st of October, 1895, the consequences of which will directly modify the antecedent territorial sovereignty.

France has occupied Tamatave for several years. She had even instituted a French tribunal there, composed of judges by profession, with civil, commercial, and correctional jurisdiction (see treaty of December 17, 1883, and the law of judicial organization of April 8, 1891, Clunet’s Journal of 1891, p. 356). But herself restricting the powers of the delegates of her sovereignty by the decree of August 24, 1892, she limited the extent of that jurisdiction to Frenchmen solely, so that foreigners and Malagasy might avoid it (see Le Garrec, advocate at Tamatave, on the working of the French courts in Madagascar in dealings with French citizens, natives, and aliens, Clunet’s Journal, 1895, p. 259).

John Waller, formerly vice-consul of the United States at Madagascar, had been relieved of his post. He was in March, 1895, no more than an ordinary citizen, a foreigner residing at Tamatave.

As such he was not subject to the jurisdiction of the French common-law tribunal at Tamatave, no new decree having as yet extended to the subjects of any power the effect of the decree of August 24, 1892 (see text in Clunet’s Journal, 1892, p. 1084), as was nevertheless provided in the second paragraph of the said decree.

Nor was he subjected to any native or foreign jurisdiction, since as far back as January, 1895, the military campaign against the Hova Government had already begun, Majunga being occupied by a battalion of marines in January, 1895, and because, in fact, the French authorities alone ruled at Tamatave.

Supposing Waller, or any other foreigner not in the army or assimilated thereto, guilty of a crime against, the external safety of the French state, would he have been subject to the exceptional jurisdiction of a court-martial?

If the court-martial at Tamatave had been constituted as a “court-martial in the expeditionary forces,” its jurisdiction as regards a civilian would have been based upon texts of law. Article 84 of the code of maritime justice lays down the limits of jurisdiction of such courts-martial, placed in exceptional and perilous circumstances; it permits them to apply articles 62 to 69, 71, and 75 of the code of military justice, which code gives direct jurisdiction “to courts-martial in the armies and in the territorial conscriptions in a state of war” in respect of foreigners having committed crimes of the nature of that charged against Waller. But the judgment of the court-martial of Tamatave does not mention either that article 84 nor those quoted from the code of military justice to which the said article refers, because the court did not rely upon them.

In point of fact, the court-martial of Tamatave is, as it styles itself, a “permanent court-martial,” as provided by the code of maritime justice for a state of peace, and in a normal condition of things. It existed prior to the armed conflict of France with the Hova Government; it was a normal court, the jurisdiction of which is prescribed by articles 76 to 83 of the code of maritime justice (title 1, jurisdiction of maritime courts sitting upon land; chap. 1, sec. 1, jurisdiction of permanent courts-martial in maritime districts). These courts have jurisdiction only over individuals belonging to the naval forces of those assimilated thereto. John Waller did not belong to that category.

In support of this jurisdiction the court-martial of Tamatave relies solely upon article 104 of the code of maritime justice.

This article does not apply to the case. It is taken from Title III of Book II, entitled “Jurisdiction in case of complicity,” and it provides that all prisoners, without distinction, shall be brought before the court-martial when the crime has been committed in part by persons who are ordinarily subject to its jurisdiction, and in part by others who are not personally subject thereto. In the present ease, Waller was not prosecuted as accessory or as joint author of the crime, but as sole author, thereof. Article 104, which is peculiar to cases of complicity, does not cover his case. Waller does not fall into the category of individuals dealt with in article 104 of the code of maritime justice.

One circumstance alone would have given jurisdiction to the “permanent court-martial” of Tamatave in regard to even civilian delinquents—that is to say, the lawful proclamation, prior to the proceedings, of a state of siege.

The declaration of a state of siege and its effects are regulated by the law of August 3, 1849, by the law of April 3, 1878, and for places in a state of war by a decree of October 4, 1891, rendered in consequence of the two preceding laws.

Tamatave in March, 1895, might have been considered as a place in a state of war.

By virtue of articles 189 of the decree of October 4, 1891, the military commander may declare a state of siege in case of investment of the place, of attack, of internal sedition, and of armed gatherings within a radius of 10 kilometers.

In proclaiming a state of siege the military commander makes known that all offenses, which he does not consider it, his duty to submit to the ordinary tribunals, shall be tried by the military tribunals, whatever be the status of the delinquents.

What did the military authorities do at Tamatave? Did they proclaim a state of siege? At what period did they proclaim it? Was such declaration made in the circumstances provided by the law and in the prescribed forms?

It may be doubted whether such was the case in view of the laconic tenor of the judgment of March 18, 1895.

This judgment, in fact, only mentions upon page 2, and in quite an incidental manner, that Tamatave is “in a state of siege.”

Now, from the point of view of the jurisdiction of the “permanent court-martial” in respect of a civilian, this was a circumstance of capital importance, as it alone could give jurisdiction over him. Nevertheless, the judgment does not mention either the law of 1849, nor the law of 1878, nor the decree of 1891, while, in order to fulfill article 170 of the code of maritime justice, it reproduces all the articles of law upon which it rests its jurisdiction and justifies the sentence.

Even if no court of common law or an exceptional jurisdiction existed or was competent at Tamative to take cognizance of the crime charged against John Waller or any other civilian, it does not follow that they would remain unpunished. Accused of a criminal offense perpetrated within the territory where French sovereignty was de facto exercised, and finding no judges there to judge them, the delinquents should have been removed to the nearest portion of French territory (to the Island of Réunion, for example), where all the organs of French justice were performing their regular functions, and should have been brought before a court of common law, having jurisdiction over them, in accordance with the rules of the code of criminal procedure. The crime charged against Waller (article 78 of the Penal Code) belonged to the jurisdiction of the criminal jury (court of assizes).

In order to understand the actual facts, it must be remembered that at Tamatave at that period the French army was in a condition of open war with the Hovas, and that in particular at Tamatave it was in presence of the enemy, for at a short distance the Malagasy troops occupied the Fort of Farafata.

In such a situation a military post, established even before hostilities were begun, easily assumes the characteristics of an army of occupation. Now, armies at such a junction are authorized by the law of nations and the practice of nations to secure their own protection by exceptional methods.

We may consult upon this point an authoritative article on the jurisdiction of armies of occupation in regard to offenses committed by aliens, etc. (Clunet’s Journal, 1882, p. 511, and following). Among the quotations may be remarked that of the American Instructions of 1863, and prepared for the armies in the field by the eminent Professor Lieber, revised by a commission of officers, and ratified by President Lincoln:

• “Art. 7. Martial law extends to property and persons, without distinction between the subjects of the enemy and other foreigners.
• “Art. 16. The consuls of the American and European nations are not considered as diplomatic agents. Nevertheless, their chanceries and their persons shall not be subjected to martial law except in cases of necessity. Any offense which they shall commit against the military government shall be punished as if it had been committed by an ordinary citizen, and such offense can not give rise to any international claim.”

Conclusion.—The first permanent court-martial sitting at Tamatave had jurisdiction over John Waller, who was neither a military man nor a person assimilated thereto, if Tamatave had been, prior to the proceedings, declared in a state of siege, under the conditions laid down by the laws of August 3, 1849, April 3, 1878, and the decree of October 4, 1891.

In any case, there is a serious omission in the judgment of March 18, 1895, consisting in its not having stated the grounds of the exceptional jurisdiction, in its not having cited the laws and decrees which justify such jurisdiction, and in its not having reproduced in fine the text of the declaration of the state of siege, the basis of its exceptional common-law jurisdiction in regard to a civilian, as it reproduces the text (without date, however) of the warrant of the delegate of the chief of the naval division relating to the transmission of correspondence.

II. Regularity of the judgment of the court-martial at Tamatave.

Formal criticisms may be directed against it:

1. Dates.—This judgment is dated March 8, 1895, at the beginning in the official copy; this date is indicated as being that of the meeting of the court. Now, the judgment would not have been read to the prisoner before March 18, 1895, as the judgment states in fine, and yet it must have been rendered at one sitting uninterruptedly.

2. Composition of the court.—The judgment mentions the composition of the court, and cites articles 3 and 10 of the code of maritime justice. Now, the composition of the court appears irregular from the point of view of the rank of the president and the number of the judges.

(a) Rank of the president: Article 10 of the code of maritime justice (and the decree of February 23, 1867) prescribes for the culprit of the lowest grade (a cabin boy) that the president shall be either a captain of a vessel or a frigate, or a colonel or lieutenant-colonel. Here the court was only presided over by a captain of marines. The equivalence of this rank with that prescribed by law is doubtful.

(b) Number of the judges: The judges must be seven in number, including the president. Now, here there were only five, including the president: M. Lacarriere, captain of marines, president; MM. Dardaine, Bouquet, Gagnepain, Niçaise.

No act of military authority has modified the rules of its composition; this act would be relied upon and reproduced in the sentence. However, a commander of troops, even in the enemy’s country, could have no right to modify the code of maritime justice. This code is a law which can only be modified by the intervention of the legislature.

It may be objected that the law of May 18, 1875, has modified the code of military justice, and that the new article 33 has permitted that when a corps d’armée is called upon to operate outside France that the court-martial may be composed of five judges in place of seven (the president being always a colonel or lieutenant-colonel).

The objection would not be founded upon law, upon the following grounds:

(a) The law of May 18, 1875, has modified the code of military justice of 1857, but not the code of maritime justice of 1858 applied to the present case.

(b) The court-martial at Tamatave was not a “court-martial in the army,” for which alone the number of judges has been reduced; it was a “permanent court-martial,” as is stated in the preamble to the sentence.

(c) The judgment, moreover, does not cite the new article 33 of the code of military justice, but only articles 3 and 10 of the code of maritime justice. Now, these articles, not modified by the law of 1875, prescribe the rank of the president and the number of seven judges, as has been previously pointed out.

We may add that articles 3 and 10 of the code of military justice, which correspond to the same numbers of the code of maritime justice and which concern “permanent courts-martial,” have not been modified by the law of May 18, 1875. They still require the presence of seven judges under the presidency of a colonel or lieutenant-colonel.

3. Advocate.—The name and profession of the advocate are not mentioned anywhere in the recitals (“qualites”) of the judgment, which merely mention in a formal phrase his presence. It is impossible to ascertain from what category this advocate was taken (article 140 of the code of maritime justice) nor whether this advocate was chosen by the prisoner or appointed by the court proprio motu.

4. Evidence.—All the proceedings antecedent to the investigation of the case upon trial and of the judgment form part of the official record and should be found there. As this record is not produced, it is not possible to state whether the guaranties afforded by law to the prisoner were secured to him.

This preparatory procedure comprises two phases:

(a) The investigation properly so called (arts. 113 to 137 of the code of maritime justice). The order to investigate is given by the superior authority and addressed to the commissary of the Government, and the latter forwards all the documents to the judge-delegate (rapporteur). The judge-delegate (there was one such in the Waller case, for the reading of his report is mentioned on page 5 of the judgment) must interrogate the prisoner, exhibit to him the documents upon which he is charged, ask him if his answers have been faithfully transcribed (art. 131 of the code of maritime justice). He also cites and hears witnesses (arts. 132–134).

(b) The order for trial (arts. 138–142 of the code of maritime justice). When the investigation is concluded the judge-delegate transmits his record, with his opinion to the commissary of the Government, who forwards it to the superior authority with his opinion.

Certain formalities are of particular importance. When the order for trial has been given, this order must be notified to the prisoner three days before the meeting of the court; the commissary of the Government must also make known to the prisoner the crime upon which he is tried, the texts of law applicable thereto, and the names of the witnesses whom he intends to examine. He must direct him to choose an advocate, and from that moment the prisoner may communicate with his advocate (art. 139), who is authorized to inspect, and even to copy, the documents of the record (art. 142).

The communication of this procedure prior to the trial could alone afford the information as to whether John Waller enjoyed the guaranties afforded him by law.

Evidence during the trial (arts. 143–160 of the code of military justice).—This is the phase called by the code “of the investigation and judgment.” It is public as a general rule, whereas the former procedure is secret. It is designed to complete and verify the proof made against the delinquent during the secret investigation.

Concerning the witnesses, the prosecutor examines those whose names he has notified three days before the trial. The president examines them. But, upon the trial, contrary to what has happened at the secret investigation, the depositions of the witnesses are not taken down by the clerk. In conformity with the provisions of the code of criminal procedure of common law (art. 372), article 170 (code of maritime justice) decides that the judgment (which takes the place at the court-martial of the report which the clerks must draw up of the sittings of the court of assizes in accordance with article 372 of the code of criminal procedure) must not reproduce even the answers of the prisoner or the depositions of the witnesses.

The depositions of the witnesses, examined upon public trial, against John Waller, and the answers of the latter do not therefore form a part of the record.

Extenuating circumstances.—Article 152 of the code of maritime justice prescribes the three questions which the president must submit to the judges before deliberating upon the question of the guilt of the prisoner. These three questions appear in the recitals of the judgment of March 18, 1895.

They bear the numbers 2, 3, 4. The number 1 is an additional question relating to the slight breach of the rules of correspondence.

Answers were given to these four questions, and consequently to the three questions being the minimum prescribed for every case brought before a court-martial—in this ease the numbers 2, 3, and 4.

When these questions are decided by a majority of five votes against two, against the prisoner (art. 163), the prisoner is declared guilty, and the court deliberates upon the application of the penalty (art. 164).

At this moment the question of extenuating circumstances presents itself.¹

The ministerial instructions of June 25, 1858, interpreting the code of maritime justice of 1858, are thus expressed:

“It is at the time when it deliberates upon the application of the penalty after the prisoner is found guilty, that the court is called upon, in case of need, to pronounce upon the question of extenuating circumstances, the determination of which is only mentioned in the judgment if it has been favorable to the accused; a mention of this must be made in the following terms: By a majority, extenuating circumstances are found in favor of” * * *.

In the case of John Waller “the law authorized the admission of extenuating circumstances.”

(1) Because numerous articles of the ordinary penal code were applied to Waller’s case (art. 364 of the code of maritime justice).

(2) Because Waller belonged neither to the land forces nor to the naval forces (art. 256 of the code of maritime justice).

It is the duty of the president of the court to call the attention of the judges to the question of “extenuating circumstances,” and to give them at least that “warning” which article 341 of the code of criminal procedure directs the president of the criminal jury to give: “He warns the jury, under penalty of nullity in default of such warning, that if a majority of the jury consider that there exists in favor of one or more of the accused, while adjudged guilty, extenuating circumstances, a declaration to that effect shall be entered.”

This obligation was all the more peremptory upon the president of the court-martial of Tamatave, from the fact that the court-martial of Tamatave exceptionally occupied the place of the court of common law, and that a prisoner according to the common law ought to have found before such court the same guaranties as before a court of the latter nature.

No doubt the judgment was not bound to mention the opinion of the judges upon extenuating circumstances, as such opinion is only announced and consequently inscribed upon the recitals of the judgment in case such circumstances were found in favor of the accused by a majority of votes.

But in my opinion there ought to have been found a legal record of the fact that after the prisoner had been found guilty, the president reminded the judges that in view of the status of the prisoner, and articles 256 and 364 of the code of maritime justice, it was their duty to consider whether extenuating circumstances existed in favor of the prisoner.

Such a warning constitutes a valuable guaranty for a civilian prisoner, brought thus by way of exception before a court-martial; for the admission of extenuating circumstances being a very rare circumstance in matters of military jurisdiction, a judge-office is usually inclined to forget that the law has permitted him a power of indulgence of this nature toward a civilian prisoner.

Now, in no part of the judgment are we informed that the judges had received this salutary warning or, in accordance with the very terms of the ministerial circular, “that the court had been called upon in case of need (and there was need by reason of articles 256 and 364 of the code of maritime justice) to determine upon the question of extenuating circumstances.”²

Verdict of guilty.—Article 163 of the code of military justice decides that the three questions of guilt enumerated on page 8 of the judgment can only be determined against the prisoner by a majority of five votes against two.

This majority against John Waller did not exist upon any of these questions, inasmuch as it has been said above (in regard to the composition of the court), the permanent court-martial of Tamatave was formed only of five judges in place of seven, which was in conflict with article 10 of the code of maritime justice, cited by the judgment itself.

It makes no difference that questions 1, 2, and 4 obtained a unanimous vote of five judges. The law requires that they should be considered by seven judges, and that if they are decided against the prisoner they must be so decided by five votes against two. In case among the judges there are two who differ from the others, the possibility is evident that the majority in favor of the prisoner may, during the discussion, be modified. Hence the requirement for the concurrence of seven judges in the judicial office.

Sentence.—Article 164 decides that the penalty shall be pronounced by a majority of five votes against two. For the reasons above stated, this majority could not have existed when the penalty was pronounced against John Waller. In fact, there were only three votes in favor of his sentence of twenty years’ imprisonment.

Legal recourse (council of revision).—The recourse afforded by law to John Waller was first an appeal to a council of revision (article 171 of the code of maritime justice). For this recourse a period of only twenty-four hours after the reading of the judgment is allowed (article 173 of the code of maritime justice).

The official copy of the judgment, in its closing lines (p. 15), mentions that recourse was had for a revision of the sentence, and that that appeal was rejected on March 23, 1895. No official copy of this second judgment, which, nevertheless, must be pronounced publicly, has been produced, so that it is impossible to ascertain whether the rules laid down by articles 183 to 196 of the same code as to the procedure before the said councils have been observed.

Court of cassation.—John Waller being neither a military man nor one of those persons assimilated thereto, and not falling within any of the cases provided by articles 84 and 120 of the code of maritime justice (which, moreover, is not relied upon by the judgment of March 18, 1895), might have appealed against the judgment of the court of revision to the court of cassation, sitting at Paris, but only by reason of lack of jurisdiction (article 111 of the code of maritime justice).

It does not appear from the official copy of the judgment examined that John Waller received a notification of the rejection of his appeal for revision, or that he entered an appeal to the court of cassation.

Revision of criminal actions.—A quite recent law, of June 8, 1895, has modified article 443 of the code of criminal procedure, and decided that revision may be demanded in criminal or correctional matters, whatever be the jurisdiction which has pronounced thereupon and the penalty which has been applied. But these cases of revision are very restricted—a sentence for homicide, if the alleged victim is still alive; a sentence of a witness for perjury; bringing to light of facts or documents unknown upon trial, and of a nature to establish the innocence of the accused—procedure in this kind of revision has been rendered complex with deliberate purpose; the management thereof does not belong to the prisoner, but to the court of cassation.

Conclusion.—The irregularities alleged against the judgment of the first permanent court-martial of Tamatave, by reason of the periods expired and of the limitative restriction of the law, no longer appear to be subject to legal recourse before legal military tribunals or the metropolitan tribunals.

There remains a recourse for pardon to the French Government, which, by virtue of the high prerogatives of sovereignty, may grant the immediate pardon of John Waller.

Delivered at Paris On the 4th of December, 1895.

Ed. Clunet,
Advocate at the Court of Paris

.

Postscript.—In criminal law, the question of the “excusability” of the prisoner asked in question 4 of the judgment of the court-martial, and the declaration of the existence of “extenuating circumstances” are absolutely distinct.

The first can not take the place of the second. “Excuses” are determined by law and modify the “legal guilt.” “Extenuating circumstances” are left to the determination of the judge, and only bear upon “individual guilt.”

The same prisoner in the same matter may benefit by both these means of reduction of the penalty.

Ed. Clunet

.

1. See in the postscript hereto note on the legal nature of “excuses” and “extenuating circumstances.”
2. “Although it results from many decisions of the court of cassation that there is no nullity involved in deciding by a special count upon extenuating circumstances, or in admitting them implicitly and attenuating or modifying the penalty, it is proper before courts-martial, and in conformity with the prescription of article 134 of the military code, to put the question to the judges. Of course, if extenuating circumstances are rejected the judgment must not make mention of the fact.” (Circular of the minister of war, October 5, 1858; Champoudry, formulæ of questions to be submitted to the judges court-martial. Paris, 1891, p. 403.)