File No. 211.32/6.

The Acting Secretary of State to the American Ambassador.

No. 78.]

Sir: The Department has received your No. 224, of July 29th last, reporting on the subject of the Brazilian law concerning extradition of criminals between foreign nations and Brazil.

In January last the Brazilian Ambassador wrote to the Department stating that the Brazilian Government had enacted a law (of [Page 36] June 28, 1911), a copy of which he subsequently transmitted to the Department, which he stated carried out the policy of that Government in regard to extradition better than existing treaties do, and which involved the abrogation of all existing extradition treaties with Brazil. He stated that his Government would appreciate it if the United States would waive the stipulations of article 13 of the treaty between the United States and Brazil of May 14, 1897, requiring six months’ notice of intention to terminate the treaty, and consider the treaty as having ceased to” exist for all intents and purposes from the day of the receipt of his note.

The Department replied to the Ambassador, under date of February 28, last, stating that this Government has no power to waive the treaty requirement of six months’ notice of intention to terminate its provisions. The Department in its note called attention to the fact that if the treaty should be abrogated the United States could not surrender a fugitive upon the request of the Government of Brazil. Other serious objections to the proposed Brazilian law were also pointed out. A copy of the Department’s note is transmitted herewith for your information. No reply was received to the Department’s note but it appears from your despatch, and its enclosure, that the Brazilian Government considers its communication of January 23 last as notice by the Government of its intention to terminate the treaty, the Diario Official having printed an executive decree, dated July 23, declaring that the President of Brazil had denounced the treaty.

It is stated in the note of the Brazilian Foreign Office that the “provisions of the law referred to 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,” the note continues, “for the satisfactory settlement of details it has been found convenient that new treaties shall be concluded.”

The Foreign Office transmitted to you a project of an extradition treaty, said to be based upon the articles and principles established by the law referred to, and asked you to submit it to this Government, “so that after careful consideration it may express its opinion upon it, informing me (the Brazilian Foreign Minister) whether it is acceptable in its present form, or whether slight modifications should be inserted which would not be antagonistic to the said articles of the law of June 28, 1911.”

A careful examination has been made of this project, and it is found to contain provisions which render it unacceptable to this Government as the basis of a treaty between the two countries. The most conspicuous of these provisions are the following:

1. Article 6, which provides that, if the penalty incurred by the fugitive criminal be that of death or corporal punishment, extradition shall be granted by Brazil only on the condition that the penalty be commuted by the competent authorities to that of imprisonment.

The objections of this Government to such a provision as this were very fully set forth in the correspondence in 1910, at which time the Brazilian Congress was considering the extradition law. (See instruction No. 183, of January 21, 1910, and the accompanying memorandum.)

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2. The project contains no list of offenses for which extradition is to be granted, but provides generally for extradition for all offenses the penalty for which is one year’s imprisonment or more.

It is probable that this provision might yield to negotiation more readily than that first enumerated.

The Department would be glad to find some common ground upon which an extradition treaty between the two countries may be concluded, but fails to perceive such ground in the rigid provisions of the Brazilian law or project.

I am [etc.]

J. B. Moore.