In March, 1845, Mr. Hesketh, Her Majesty’s consul at Rio de Janeiro, forwarded to Lord Aberdeen a copy of a representation which he, in conjunction with the French and other consuls, had addressed to the Brazilian government, remonstrating against the interpretation given to the sixth article of the constitution of Brazil, namely: that excepting those foreigners who may be in Brazil in the service of their own states, the offspring of all other foreigners born in Brazil must necessarily be Brazilians.1
Lord Aberdeen replied that “inasmuch as by the law of the United Kingdom all persons born within the allegiance of the British Crown are deemed to be British subjects, you would have acted more prudently if you had refrained from signing the representation made to the Brazilian government respecting the nationality of the children of foreigners born in Brazil.”2
In 1849 Her Majesty’s consul at Peru asked whether the children of British subjects born id Portugal were to be considered as British subjects in Brazil, and was informed that children of British subjects born elsewhere than in Brazil, and whether in a British territory or in a foreign country, are to be regarded in the light of British subjects, and to be entitled to protection as such.3
On the 2d of April, 1853, Mr. Jerningham reported that he had been in communication with the Brazilian government respecting the forced conscription of the sons of [Page 1330] British subjects born in Brazil, and that the Brazilian minister had stated to him that it was proposed to bring forward a law in the Brazilian chambers providing that up to the age of 21 years, sons born in Brazil of British residents should remain under the control of their parents, and that on attaining their majority they should be allowed to choose between British and Brazilian nationality.1
Mr. Jerningham remarks in this dispatch that the French claimed complete exemption for the sons, of French subjects thus situated, and that though the Brazilian government did not acknowledge the claim, they did not attempt to force such Frenchmen into their army.
Lord Clarendon instructed Mr. Jerningham to say that Her Majesty’s government agreed to the proposed clause, but that they hoped that “either by legislative enactments, or by the course hitherto adopted by the Brazilian government, no British subject will be called upon to perform military service.”2
It appeared subsequently that there had been some misunderstanding between Mr. Jerningham and the Brazilian minister, and that the proposed clause was intended to apply reciprocally to the subjects of those States, the laws of which acknowledged the children of Brazilians born within their territories to be Brazilians, and would not, therefore, affect British subjects.3
Lord Clarendon then directed Her Majesty’s minister to inquire whether the Brazilian government really intended to carry out the principle of reciprocity, and to place children born of British subjects in Brazil on exactly the same footing with regard to military service as that in which the children of Brazilian subjects were placed in England; as the imposition on them of forced military service would be plainly inconsistent with such a principle, “for, although a power does exist in this country in certain contingencies, very unlikely to occur, of resorting to the ballot for raising militia, (in which case, however, substitutes would be allowed,) yet, in point of fact, both the regular army and the militia are recruited entirely by volunteers, and there is therefore, practically, no forced military service in England.”4
At the close of 1853, there was a change of ministry in Brazil, and in April, 1854, Mr. Howard (who had succeeded Mr. Jerningham) called the attention of the new government to this subject, but without receiving any reply.5
He again pressed it on their attention in August, when the foreign secretary, Senhor Limpo de Abreo, promised to look into the matter, but “gave no hope of an alteration in the laws of nationality, saying that he thought they could not constitutionally be interpreted in the manner in which the late minister for foreign affairs, Senhor Paulino, had in view; that such an alteration would meet with considerable opposition in the chambers, and that he himself doubted its expediency.”6
Being urged to take some steps to bring the question to a conclusion in October, 1854, Senhor de Abreo repeated that it presented great constitutional difficulties, and could not be solved without the concurrence of the legislature.7
This closed the correspondence.
It is to be observed that neither in 1852 nor 1854 do there appear to have been any particular cases reported in which the sons of British subjects were forced into the Brazilian service, and it may, therefore, be presumed that the Brazilian authorities continued to act upon an unofficial arrangement come to with Mr. Jerningham in 1853, by which such persons were practically exempted from the conscription.8
In December, 1865, Mr. Spence, a member of the English bar, who had been born in Brazil, applied for the appointment of law adviser and translator to Her Majesty’s mission at Rio de Janeiro.
Mr. Spence (in reply to an observation respecting the inconvenience which might be occasioned by a person whom the Brazilian government could claim as their subject being employed in such a capacity,) stated “that although there can be no question, according to article 6 of the Brazilian constitution, that from having been born in Brazil, though of British parents, I became a Brazilian subject, I respectfully submit that from having (when called to the bar in 1858) sworn allegiance to Her Majesty, I lost my Brazilian nationality, according to article 7 of the same constitution. It is true that the words of article 7 are ‘naturalization,’ but the taking of the oath of allegiance would, no doubt, be held equivalent to naturalization. But even if that were not so, the acceptance by a Brazilian subject (without the license of the Emperor) of any office from a foreign government would cause the loss of Brazilian nationality, as may be seen on reference to clause 2 of article 7 of the same constitution.”9
Mr. Spence forwarded translations of the articles of the constitution referred to:[Page 1331]
who are brazilian citizens.
“Article 6.—1. Those born in Brazil, either free or freedmen, although the father he a foreigner, if not resident in the service of his nation.
“2. Children of a Brazilian father, and the natural children of a Brazilian mother, born in a foreign country, who may come to have a domicile in this country.
“3. The children of a Brazilian father who may be in a foreign country in the service of the Emperor, although they do not require a domicile in Brazil.
“4. All those who, born in Portugal and her possessions, were resident in Brazil at the time when the independence was proclaimed in the provinces where they lived, and shall have expressly adhered to the said independence, or impliedly by continuing their residence in Brazil.
“5. Foreigners naturalized, whatever may be their religion.
* * * * * * * *
those who are deprived of such rights.
“Article 7—1. Those who have become naturalized in a foreign country.
“2. Those who, without the Emperor’s license, accept any employment, pension, or decoration, from any foreign government.
“3. Those sentenced to banishment.”
- Consul Hesketh, No. 16; March 27, 1845.↩
- To Consul Hesketh, No.; August 30, 1845.↩
- Consul Ryan; January 17, 1849.↩
- Consul Hesketh, No. 16; March 27, 1845.↩
- To Mr. Jerningham, No. 22; July 8, 1853.↩
- To Mr. Jerningham, No. 30; August 8, 1853. Mr. Jerningham, No. 85; September 13, 1853. To Mr. Howard, No. 14; October 31, 1853.↩
- To Mr. Howard, No. 14; October 31, 1853.↩
- Mr. Howard, No. 82; April 25, 1854.↩
- Mr. Howard, No. 162; August 11, 1854.↩
- Mr. Howard, No. 199; October 13, 1854.↩
- Mr. Jerningham, No. 20; April 2, 1853.↩
- To Mr. Spence; December 20, 1865. Mr. Spence; December 26, 1865.↩