Mr. Eustis to Mr. Olney.
Here is a synopsis of Clunet. Opinion furnished this morning. Permanent council of war like the one which tried Waller have jurisdiction over civilians only when martial law has been proclaimed in accordance with certain forms and conditions prescribed by law. If those forms were not complied with, the permanent council of war of Tamatave had no jurisdiction over Waller. The military order proclaiming martial law being not given in the sentence of Waller, as it should be, because it is the foundation of the authority of the court, there are no means of determining the question of jurisdiction. Assuming that the law was complied with, and that the permanent council of war had, therefore, jurisdiction over Waller, the reading of the sentence clearly shows that many irregularities were committed. First, the court should have been composed of seven judges instead of five, and it should have been presided by a captain of vessel or of frigate, French navy. The composition of the court is fixed by law and can be changed only by law. There is a law amending the military code of justice with reference to the composition of council of war in the field, but it has no reference to the naval code of justice and to the permanent council of war. Second, the name of the council for the defense and his qualifications are not stated, as they should have been. Third, to be valid, the sentence of the court must be given by a majority of five against two. As all legal delays have expired, there is no other mode of redress but an appeal to the clemency of the executive.