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, November 15, 1895. (Received November 25.)

No. 404.]

Sir: The newly appointed minister for foreign affairs, Mr. Berthelot, received, day before yesterday, the diplomatic corps for the first time, and I was one of the first to call on him. I found him unprepared to discuss the Waller case, but friendly in all appearance. He said he had not had the time to give his personal attention to the matter, but that it was in the hands of competent officials of his department who had represented to him that my last communication—the one of November 7, renewing, under your instructions, our application for the Waller record—was in some respects of an objectionable character, and that was going to be asked, informally, to modify it. He did not know exactly upon what ground, but thought it was simply a matter of form, and advised me to see Mr. Benoit, director of the protectorate department, and to come to an understanding with him. Whatever course that official would suggest he would approve; the only thing he could say was that he was as desirous as his predecessor to settle the matter.

I tried to impress upon him the necessity of coming to such a settlement with as little delay as possible, and I proceeded to the office of Mr. Benoit, with whom I had already been in relation touching the very case under consideration.

Mr. Benoit confirmed and explained the statement of the minister. He said that my dispatch, although very polite in its language, was unacceptable, because it was based on the assumption that we, a foreign Government, had the right to question the judgment of a regular constituted French court of justice. The French Government could not admit such a contention and would not consent to discussion. Such a dispatch, if maintained in its present shape, would place the French foreign office in the painful necessity of replying to it in a manner which would change the tone of our correspondence and might render impossible or delay considerably the result we had in view, viz, the release of Waller. It had, therefore, occurred to him and to his colleague of the political department that if I consented to substitute for my dispatch another one containing nothing to which they could take exception the matter could be easily and promptly arranged.

Being asked which were the objectionable passages of the note, he mentioned particularly: First, the paragraph referring to the court-martial as composed of military officers not ordinarily trained in law, and stating that there existed prejudices against Mr. Waller; and second, the argument showing that the refusal of the papers, after they had been examined, on grounds of general principles not mentioned before, would lead to the inference that they did not justify the charge and trial.

It is unnecessary for me to say that I did not admit for a moment that these passages or any others in my note were in any degree objectionable. The contention that we had a right to the evidence upon which an American citizen was, in a foreign country, tried and sentenced by a military court to a penalty of an extreme severity, had been ours from the beginning of the controversy. I had advanced and maintained it over and over again in my intercourse and correspondence with Mr. Hanotaux, and it laid at the very foundation of our original application.

The mere fact that we requested a copy of the record necessarily implied every suggestion and consideration stated in my note, and, as its language was admitted to be courteous, the change asked for did not alter the fact that our request was made because we considered that the sentence might be disputed by us.

I tried to show Mr. Benoit the inconsistency of the positions taken now, after having delayed for months a reply to our request on the ground that the papers were to be examined before said reply could be made; but finding that my efforts were useless, and it being apparent that the new minister would have no policy of his own in the matter, I dismissed the point at once and said that as my main object now was to secure the release of an American citizen whose life was endangered by his long, close confinement, I would change or withdraw any paragraph, sentence, or word of my dispatch to which he would object if such concession could bring about the immediate discharge of Waller.

Upon this statement the arrangement explained in my telegram of yesterday was made. I withdrew my note of the 7th, substituting therefor another of same date from which all passages obnoxious to the French foreign office were eliminated, and returned it yesterday accompanied by a French translation, made with the view of gaining time.

Although I am conscious that there is not a line or a word objectionable to any impartial mind in the note, I so consented to modify. I trust that in view of the result aimed at the Department will approve of the concession made to the susceptibilities of the French foreign office, which, I must confess, were most surprising, as my note contained only statements or arguments which I had verbally presented to Mr. Hanotaux and which he had discussed in a most courteous and friendly spirit. Under any other circumstances I would not have consented to the change. In this case, with the life of an American citizen perhaps at stake, I felt that my action was justified, particularly when it is noted that the modifications made do not in the least change our position.

I expect to receive the reply of the foreign office by Monday or Tuesday next. If it is what I am told it will be, it will contain an offer to pardon Waller on the conditions already stated, but to the acceptance of which I am not committed, that this pardon is to end the matter; that is to say, that the legality and justice of the trial is no longer to be questioned, and that no indemnity is to be asked for on account of the arrest and treatment of Mr. Waller.

Awaiting your instructions in the premises, I have, etc.,

J. B. Eustis

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[Inclosure in No. 404.]

Mr. Eustis to Mr. Berthelot.

Embassy of the United States,
Paris, November 7, 1895.

Sir: Your excellency has assuredly been informed of the circumstances of the case of Mr. John Waller, an American citizen, formerly consul of the United States in Madagascar, sentenced by a military court at Tamatave to twenty years’ imprisonment under the charge of having corresponded with the enemy.

Although the trial was public, the evidence produced is unknown or imperfectly known through vague and unreliable reports which gave the impression in the United States that this American citizen had not been tried with all impartiality.

Under such circumstances, my Government felt that it was its duty to call on a friendly Government for information on the subject, and to ask for a copy of such record of the case as would enable it to satisfy itself and public opinion that there had been no miscarriage of justice in the trial and punishment of Waller.

This request, I am glad, was received by your honorable predecessor in the friendly spirit in which it was made and, at first, I had reason to believe that it would be granted. M. Hanotaux said that the papers applied for were still in possession of the military authorities at Madagascar; that he did not know their contents; and that as soon as they would have reached him he would examine them and let me know his answer. During the long period of time which elapsed before the papers could be obtained from Madagascar the question remained on that ground. They arrived at last, and I was then told that the general principles of the French criminal law did not allow the communication of a legal procedure which had ended in a definitive judgment.

I must say that in informing me of this decision Mr. Hanotaux endeavored to present it in the most friendly manner. He said that although he had to oppose a refusal to my request he was nevertheless extremely desirous of settling this matter, and suggested that perhaps a compromise could be effected on the ground of Mr. Waller’s pardon, a proposition I was not in a position to entertain, and to which he earnestly returned on other occasions.

Although I felt that Mr. Hanotaux’s language was dictated by a sincere desire of reaching an honorable understanding, I could not help thinking that the definitive refusal of the papers applied for would not be understood in the United States. My Government has taken the same view, and I am now directed by telegraphic instructions to submit again this case to your excellency’s Government. Appealing once more to the sense of justice of the French Republic, I therefore renew my application for a copy of the record of the Waller trial.

In bringing up this matter for the second time I desire to say that I appreciate the spirit in which it was treated by your honorable predecessor. While we entirely disagreed upon the question in controversy, I am satisfied that he acted from a conscientious sense of duty in defending what he considered the interests of his Government.

I realize that his decision was the decision of the at the time existing cabinet, and if a reconsideration of the case is now asked, it is because new men, governed by other ideas, may take a different view of the case. The question being a very serious one, I sincerely hope that after a renewed and careful examination of the matter the French Republic will find that it can properly comply with the reasonable request of my Government.

I venture to ask your excellency’s immediate attention to this matter, and trust that it will be found possible to give me an answer within a few days, so as to enable me to inform my Government by telegraph of the result.

I avail, etc.,

J. B. Eustis

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