Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 2, 1913

File No. 211.32/6.

The American Ambassador to the Secretary of Slate.

No. 224.]

American Embassy,
Rio de Janeiro, July 29th, 1913.

Sir: In amplification of my telegram of July 27th, which related to the recent publication in the Official Gazette of an executive decree denouncing our treaty of extradition with Brazil, signed on the 14th of May, 1897, together with the protocols and annexes of May 28th, 1898, and May 29th, 1901, I have the honor to report as follows:

The Embassy had received no information either from the Department or from the Brazilian Foreign Office that Brazil had in mind the denunciation of this treaty. It was, therefore, with surprise that I received a Foreign Office note, a translation of which forms the first enclosure of this despatch, in which I was informed that the Government of Brazil had determined to sanction and promulgate the law which the Brazilian Congress voted on the 28th of June, 1911, (a copy of which was enclosed with Mr. Dudley’s despatch No. 758, of August 28th, 1911) which regulated the manner in which Brazilians and foreigners should be extradited as well as the mode of their trial when they should have committed crimes abroad enumerated in the body of the said law. The note also stated that the 12th clause of the law provided not only that its text should be transmitted to those countries which maintained relations with Brazil but also, that all existing extradition treaties should be cancelled in order that those which hereafter should be negotiated might be uniform and might be framed in accordance with the provisions of the law.

I was also informed that these two provisions had already been carried into effect.

Moreover, the note went on to state:

The provisions of the law are sufficient in themselves to guarantee that in cases where the Government of Brazil shall address petitions for extradition to other countries, reciprocity in treatment of such petitions shall be afforded. Nevertheless, for the satisfactory settlement of details, it has been found convenient that new treaties shall be concluded.

In order to attain this end, I have drawn up the enclosed project, based upon the articles and principles established by the above-mentioned law. I ask Your Excellency to submit this project to your Government so that, after careful examination, it may express its opinion upon it, informing me whether it is acceptable in its present form or whether slight modifications should be inserted which would not be antagonistic to the said articles and principles of the law of June 28th, 1911.

Enclosed with this note was a printed draft of a treaty of extradition, a copy of which, together with the translation, I have the honor to enclose.

On the same day on which the above note reached the Embassy, the Diario Official printed an executive decree of the 23rd of July stating that the President of Brazil made public the fact that from that day he had denounced the treaty of extradition between Brazil and the United States, together with its protocols and annexes. A translation of the text of this decree is also herewith enclosed.

Beyond formally acknowledging the receipt of the above mentioned note, I have not communicated on the subject of the extradition treaty with the Foreign Office, preferring to await any instructions which you may see fit to give me.

I have [etc.]

Edwin V. Morgan.

[Inclosure 1—Translation.]

The Minister for Foreign Affairs to the American Ambassador.

Section 2a. No. 1.]

Ministry of Foreign Relations,
Rio de Janeiro, July 22nd, 1913.

Mr. Ambassador: The Brazilian Government, with the intention of granting extradition petitions relating to criminals taking refuge in Brazil and coming from those countries with which Brazil has not yet negotiated treaties of extradition, has determined to sanction and promulgate, under No. 2416 and under date of June 28th, 1911, the law-voted by the National Congress which regulated the manner in which Brazilians and foreigners shall be extradited as well as the mode of their trial when they shall have committed such crimes abroad as are enumerated in the body of the said law.

The 12th clause of this law provides not only that the text of the law shall be sent to all countries which maintain relations with Brazil but also that all existing extradition treaties shall be cancelled in order that any treaties which hereafter shall be negotiated may be uniform following the provisions of the above law. This has already been done.

The provisions of the law are sufficient in themselves to guarantee that in cases where the Government of Brazil shall address petitions for extradition to other countries, reciprocity in treatment of such petitions shall be afforded. Nevertheless, for the satisfactory settlement of details, it has been found convenient that new treaties shall be concluded.

In order to attain this end, I have drawn up the enclosed project, based upon the articles and principles established by the above mentioned law. I ask Your Excellency to submit this project to your Government so that, after careful examination, it may express its opinion upon it, informing us whether it is acceptable in its present form or whether slight modifications should be inserted which would not be antagonistic to the said articles and principles of the law of June 28th, 1911.

I have [etc.]

Regis de Oliveira.

[Subinclosure—Translation.]

Draft of an extradition treaty.

The President of the Republic of the United States of Brazil and______animated by a desire to prevent fugitive criminals from freely moving or finding an asylum within the territory of each of the High Contracting Parties, have agreed to celebrate the present Extradition Treaty, and for that purpose have nominated the following Plenipotentiaries:

The President of the Republic of the United States of Brazil______and Mr. ______who, after having made known their respective full powers, which have been found in good and due form, agree upon the following articles:

Article 1.

The two High Contracting Parties mutually agree to deliver up to each other the criminals passing through their respective territories, or who have sought there an asylum, provided that the following conditions exist:

1.° That the party making the demand has the authority to prosecute and judge the crime or offense occasioning the demand;

2.° That the fault or crime perpetrated before or after the celebration of this Treaty be of an ordinary character;

3.° That the criminal shall have already been convicted or condemned as the principal culprit, a fellow culprit or accomplice;

4.° That the penalty to be inflicted or already inflicted by the laws of the country demanding the extradition be one year’s imprisonment at least, both for the convicted persons and the condemned persons;

5.° That the party making the demand shall exhibit documents which, according to the laws of said party and to those of the party to whom application is made shall prove the criminality of the person making the demand or justify his prosecution;

The foregoing articles apply also to any attempt at the commitment of the crimes or offenses subject to extradition.

Article 2.

The High Contracting Parties shall in no case be obliged to surrender their own citizens, but should any of them be given up it will only be on the basis of complete reciprocity.

Article 3.

Extradition shall be refused:

1.° When the crime or sentence shall have been extinguished by prescription according to the law of the country requesting the extradition or when the culprit shall have been already tried therein for the very crime to which the request refers;

2.° When it refers to purely military crimes, to crimes against religion, to crimes against the press, or political crimes and those of similar nature.

The allegation of a political purpose or motive shall not hinder the extradition when the offense is merely an ordinary infraction of criminal law;

The following are not considered political offenses:

a) Acts of anarchical character constituting crimes provided against by the laws of the Contracting States.

b) The murder or an attempt at murder against the Chief of the State demanding the extradition, against his legal substitutes and against his ministers of State or against any of the heads of the separate States forming part of a Confederation or against any of the Governors of the States which constitute a Federal State.

Article 4.

When, in order to prevent the escape of a criminal, one of the High Contracting Parties shall deem his provisional arrest urgent, as a preliminary measure to extradition, the party shall apply for extradition by telegraph or by post or through a diplomatic agent stating at least, that a warrant for the apprehension of the demanded person has been issued or a writ of arrest in flagrante. This arrest shall hold for sixty days within which period the demanding Government shall present the formal demand for extradition duly-evidenced.

Article 6.

Demands for provisional arrest and those for extradition shall be made by one Government to the other Government either directly or through their respective diplomatic agents and shall be accompanied by the following documents:

1.° In relation to the accused whose provisional arrest is requested, a certified copy, at least, of the warrant of arrest or of the writ of imprisonment in flagrante.

2.° In relation to those criminals already convicted: a certified copy of the sentence or of the criminal prosecution from a competent judge and containing a precise statement of the acts charged, of the place where and the date when it was committed and a copy of the text of the penal law applicable to the special act.

3.° Whenever it be possible, the above stated documents shall be accompanied by a photograph, finger prints or the characteristic indications of the person whose surrender is asked.

In no case shall the request of the accused person be granted that he be delivered up to the State demanding him previous to the presentation of the required documents.

Article 6.

If the penalty incurred by the fugitive criminal be that of death or corporal punishment, the extradition shall be granted by Brazil only on the condition that it be commuted by the competent authorities to that of imprisonment.

Article 7.

Except in the case of death of the person whose surrender is requested, and of desistance on the part of the requesting Government the provisional arrest and the extradition already granted shall be ineffective in the following cases:

1.° If within sixty days from the date of the provisional arrest of the criminal, the documents supporting the request for extradition in due form and duly certified to being not presented by the demanding Government.

2.° If the criminal, when placed at the disposal of the demanding State, Legation or Consulate, be not removed within twenty days of the date of the advice thereof.

3.° If within sixty days of the date of the provisional arrest, the prisoner shall apply for and obtain a writ of habeas-corpus

In any of the aforesaid cases the person discharged from custody shall not be arrested again for the crime which caused the request for extradition.

Article 8.

The delivery of a person whose surrender is requested shall be postponed without any injury to its effectiveness:

a) While the procedure in regard to habeas-corpus is going on;

b) When serious disease does not permit the criminal without danger to his life to be removed to the demanding country;

c) When the person whose extradition is requested be under penal prosecution in the demanded State.

Article 9.

When an application for extradition, made by one of the High Contracting Parties be considered by the other Party as unacceptable because it is not in clue form or on account of the insufficiency of the documents presented, these, documents shall be returned to the former, the reasons being stated which have prevented the progress of the procedure.

In this case, a new application may be made in due form.

Article 10.

Relative to the procedure for application for extradition, and to the legitimacy of such procedure, the admission and consideration of the objections by which it may be impugned by the fugitive criminal demanded, shall proceed, in conformity with the legal proceedings and practices in force in the said country.

To the fugitive criminal, however, there remains the right of restoring to habeas-corpus or bail, according to the course established by the laws of the country from which the extradition is demanded.

Article 11.

Persons delivered through extradition shall not be tried or punished for political crimes previous to the extradition or for any acts in connection therewith. They may, however, with their free and declared consent, be tried and judged for common offenses liable to extradition in accordance with the present Treaty, and; which have not been the reason for extradition previously granted, but they shall not be delivered to the third Power demanding them without the consent of the State from which the extradition is asked.

This, consent shall not be necessary, if after having been pardoned or having completed the term of sentence the person remains for more than one month in the territory of the State requesting extradition.

Article 12.

When several powers request the delivery of the same person for the same crime, the country in the territory of which the crime was committed shall have precedence; if several crimes have been committed, the request dealing with the gravest crime shall be first conceded, at the discretion of the Government from whom extradition is requested; if the crime be of equal gravity and committed at different dates, the request first presented shall have the preference, but if all requests have the same date, the Government applied to shall decide to which of the demanding States the criminal shall be delivered.

Article 13.

A criminal who, after having been surrendered to the demanding State, shall succeed in escaping the course of justice and shall seek asylum again in the territory of the State from which extradition was demanded or pass across it, shall be detained through direct requisition or by diplomatic intervention and delivered up again, without further formalities.

Article 14.

The Power from which extradition was demanded shall convey the criminal to the harbour or locality most convenient for his embarkation or delivery to the agents who are to receive him.

The demanded Government may however, at the request of the demanding Government send one or more agents either of the military or police force, to guard the criminal, until he reaches his destination. In this case, the demanding Government shall defray the travelling expenses of its agents.

Article 15.

The expenses incurred in the arrest, maintenance and extradition of the criminal up to the date of his delivery or disembarkation shall be borne by the State from which the extradition be demanded; after that, they shall be borne by the demanding State.

Article 16.

All articles, valuables or documents Having any connection with the crime which causes the extradition and found in the possession of the criminal at the time of his arrest or in his luggage, shall be seized and delivered together with the criminal to the demanding State.

The articles or valuables in possession of third persons shall also be seized but shall only be delivered to the demanding State after the claims raised by their owners have been decided.

Article 17.

One of the High Contracting Parties shall permit a criminal delivered up by a third Power to the other Party to be conveyed in custody across its territory or over its territorial waters, except if the criminal be a native of the country to be crossed or in case the criminal in question be one covered by this Treaty.

For the same purpose a simple notification containing the request for permission of transit and the designation of the offense occasioning the extradition shall be sufficient.

Article 18.

When, in a non-political criminal case, the testimony or summoning of witnesses resident or in transit through the territory of one of the High Contracting Parties be necessary for the evidence of a procedure, the other shall make demand through diplomatic or consular channels. That testimony shall be furnished in a rogatory letter coming from competent authority and accompanied by a translation in the language of the country where it shall be carried out.

The expenses connected with those criminal documents shall be borne by the State receiving them.

Article 19.

The present Treaty shall be in force for an undetermined period, and shall continue in force one year after one of the High Contracting Parties shall have notified the other of any intention to denounce it.

It shall be ratified and the ratifications exchanged at Rio de Janeiro or at ______ after the legal formalities be fulfilled in each of the two countries.

In witness whereof, the above mentioned Plenipotentiaries sign the present Treaty in duplicate, written in the Portuguese and ______ language and thereunto affixing their seals in the city of Rio de Janeiro, this ______ day of ______.

[Inclosure 2—Translation.]

Decree denouncing the treaty.

Official Gazette, July 25th, 1913.

Decree No. 10,355, of the 23rd of July, 1913, published the denunciation of the treaty of extradition of criminals signed in Rio de Janeiro between Brazil and the United States of America on the 14th of May, 1897, and the protocols and annexes of the 28th of May, 1898, and the 29th of May, 1911.¹

The President of the Republic of the United States of Brazil makes public that from today the Treaty of Extradition of Criminals, signed in Rio de Janeiro between Brazil and the United States of America on the 14th of May, 1897, and the protocols and annexes of the 28th of May, 1898, and the 29th of May, 1911,¹ has ceased to be in effect.

Rio de Janeiro, July 23, 1913, 92nd of Independence and 25th of the Republic.

1. Should be 1901.
1. Should be 1901.