No. 82.
Mr. Partridge to Mr. Fish.

No. 277.]

Sir: A law has been published here, passed on the 4th August, providing for the punishment in Brazil (and by the penalties of Brazilian law) of foreigners for certain acts by them committed in foreign countries, (beyond the jurisdiction of Brazil,) when such acts are against the welfare of the empire, i. e., to the damage of Brazilian subjects.

Such punishment is to be inflicted when the foreigner who has committed such acts shall come into Brazil, either of his own accord, or shall have been surrendered on demand. In the former case, (of voluntary coming,) he shall either be punished here or shall be surrendered, if demanded by the country in which the act was committed, (this, of course, on the supposition that it is an offense there,) or he may be expelled from the Brazilian territory.

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I annex hereto a copy of the law, (taken from the Diario Official,) and a translation of the same.

It will be seen by the 5th, in connection with the 8th article, (and the 2d also,) that if any act done by a foreigner in a foreign country, (who may never have been in Brazil,) shall, in the opinion of either the Brazilian government or of any Brazilian subject, be of damage to the nation or to that individual subject, (if forgery, perjury, or swindling,) such foreigner, coming afterward into Brazil, may there be punished, although in his own country, and where committed or done, the act may be perfectly innocent, or, at any rate, not cognizable as a misdemeanor or crime.

The words of the 8th article exempt from prosecution or judgment here any individual who, in any foreign country, may have been acquitted of, or punished or pardoned for, the same act (crime.) And the article further declares that any (criminal) proceedings against any one (for an act committed in a foreign country) shall cease as soon as it shall appear that the act and a punishment therefor is provided, “according to the most favorable law,” whether of Brazil or of the foreign country in which such act is declared worthy of any punishment.

The ambiguity of meaning here is in the original; and the words used probably are intended to mean that if the (offense) act attempted to be punished here shall be cognizable and punishable by the laws of the country where committed, and either a prosecution, acquittal, conviction and punishment, or a pardon therefore, shall have ensued in such country, then the proceeding here shall be precluded, or cease, though the law be less stringent—“more favorable”—there.

But it is evident that the very possible and probable case of an act done by a foreigner in a foreign country, which is no offense there, and where, therefore, neither prosecution nor pardon would ensue, but which might be thought to be (here) an offense against Brazil, or to the damage of a Brazilian subject, that such a case is not exempted from prosecution or civil suit here; and that, therefore, an American who, in the United States, may have done an act, neither a misdemeanor nor a crime there, which yet might here be considered an attempt against the sovereignty of Brazil, or by any Brazilian be considered a cause of damage to him, that such an American coming here afterward, or passing through Brazil, might here be apprehended and tried and punished, with the penalties affixed by Brazilian law to an act harmless where done outside of Brazilian jurisdiction, and by a person not then nor before nor since subject to Brazilian law.

When I noticed the publication of this law, I called the atention of some of my colleagues thereto; and they agreed with what I have here stated. At the foreign office (on the 14th August) I mentioned the matter to Baron de Cabo Frio, the director-general, (first under-secretary,) in the absence of the minister.

* * * * * * *

It may be unnecessary to provide for contingencies which are not likely to arise, but under this law the case I have mentioned can occur; and if such a case does arise, this government must either fail to execute its own law, or meet with strong opposition from other governments against whose citizen such provisions should be attempted to be enforced for acts done beyond its jurisdiction.

I have, &c.,

JAMES R. PARTRIDGE.
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[Inclosure in No. 277.—Translation.]

We, Don Pedro Segundo, &c., make known that the legislative assembly has passed, and we have sanctioned, the following law:

  • Article 1. Those Brazilians may be prosecuted, even while absent from the country, and shall be sentenced when they shall return, having come back either of their own accord or having been given up by extradition, being therefor demanded, who shall have committed in any foreign country any of the offenses provided against in the criminal code, i. e.:
    1.
    Against the independence, unity, or dignity of the nation. (Arts. 68 to 78.)
    2.
    Against the constitution of the empire and form of government. (85 and 86.)
    3.
    Against the chief of the government. (Arts. 87 and 89.)
    4.
    False coining and forgery of certificates of the public debt, or of the notes of banks authorized by law.
  • Article 2. The dispositions of the preceding article shall also be carried out when applicable in (relation to) the cases of those foreigners who shall commit, outside the limits of the empire, any one of the aforesaid offenses, whenever they shall come into the empire of their own accord or shall be brought hither on extradition, being therefor demanded.
  • Article 3. Shall also be proceeded against and sentenced (Julgados) whenever they shall come into the empire, those Brazilians who shall, in any foreign country, commit against (i. e., to the damage of) Brazilians or foreigners, the offenses of forgery, perjury, or swindling, (estellionato,) or any other unbailable offense; provided, however, that a complaint or denouncement thereof shall previously have been made, according to the laws of the empire.
  • Article 4. In the foregoing cases above mentioned the penalties to be applied shall be those of Brazilian criminal law.
  • Article 5. Any foreigner who shall, in any foreign country, commit against* Brazilians any of the offenses set forth in article 3, and shall thereafter come into the empire, shall either be given up on extradition, having been first demanded, or shall be expelled from the Brazilian territory, or shall be punished according to Brazilian law. For this last purpose, however, it is necessary that there shall have been a complaint or accusation, (denuncia,) and that the laws of the country to which the person charged (delinquente) belongs shall establish a punishment in like cases for foreigners.
  • Article 6. The government is empowered to establish, by the mode of procedure (regalamento) which it shall ordain for this law, the competency of the tribunal and the form of proceeding for offenses committed in foreign countries; and it is further empowered to provide, in cases of reciprocity by other governments, for—
    1.
    The obtaining of the act of description§ or proofs existing in foreign countries, and of the mode in which these acts would (there, i. e., in that country) be available in proof and judgment.
    2.
    For the execution here of civil judgments abroad, (of foreign tribunals.)
    3.
    The judgment of offenses committed on board of Brazilian vessels on the high seas, or in the waters and within the territories of those foreign nations who admit this right (direito) or law.||
    4.
    The judgment of offenses committed on board of foreign vessels against persons not belonging to the ship’s crew, or even against those who do so belong, in case the act be an infraction of the police laws of the port, or of (Brazilian) waters belonging to the country, (territories,) either after requisition (on the country to which such party may have fled) or in virtue of an understanding (accordo) with the nation to which such foreigner may belong.
  • Article 7. The provisions of this law shall not prevent the prosecution of any civil action which may be brought for damages, resulting from any act committed in a foreign country by any person, Brazilian or foreigner, resident in the empire.
  • Article 8. Not only shall no penalty be imposed, but there shall not be any prosecution nor judgment in pursuance of this (act) law against any person who shall have been acquitted in any foreign country, or shall have been punished or pardoned for the offense for which prosecution is sought here. And any proceeding under it, although already begun, shall cease as soon as it shall appear that the offense complained of or the penalty therefor is provided for, and according as the law shall be most favor [Page 126] able,* either in Brazil or by the law of the country in which committed and where the offense can be punished.
  • Article 9. All provisions in contravention hereto repealed, &c.

Wherefore, we command and ordain, &c., &c., &c.,

  1. I. e., The damage of.
  2. I. e., To the foreign country where offenses were committed.
  3. I, e., Indicate what court.
  4. I. e., Proces verbal of the fact done.
  5. I. e., Admiralty.
  6. I. e., The law most favorable (whether to criminal or punishment [does not appear,) but supposed to mean that if the act attempted to be punished here shall be cognizable and punishable by the laws of the country where committed, and a prosecution, acquittal, punishment, or pardon shall there have ensued, then the prosecution here shall fail.