No. 82.
Mr. Partridge to Mr. Fish.
Rio de Janeiro, August 20, 1875. (Received Sept. 20.)
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.
[Page 124]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.
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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.,
- I. e., The damage of.↩
- I. e., To the foreign country where offenses were committed.↩
- I, e., Indicate what court.↩
- I. e., Proces verbal of the fact done.↩
- I. e., Admiralty.↩
- 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.↩