viço estrangeiro ou o armamento e equipamento nos dominios de [373] S. M. n'uma intenção de guerra sem permissão de S. M.

*

A razão fundamental em que se firmam Vattel e Wolfio para condemnar os recrutamentos sem auctorisação do governo, é que estes são uma prerogativa exclusiva da soberania que ninguem, sem permissão expressa, pode legitimamente exercer em territorio de outro estado. Mas todas as prerogativas da soberania têem os seus justos limites e termos, não vão a mais nem a menos do que é preciso para se consequir o fim social. Se o recrutamento não prejudica o serviço militar nem substrahe os recrutados ao tributo, dito de sangue, para com o seu paiz, em que se offende a prerogativa?

No acto constitucional federativo da Allemanha, assignado em Vienna em 8 de Junho de 1815, e concedido no. art. 18° aos subditos dos estados confederados "entrar no serviço civil ou militar de qualquer d'esses estados, comtanto porem, que o exercicio d'esse direito não prejudique a obrigação do serviço militar que lhes impõe a sua patria."

Os Americanos acrescentavam, invocando em favor da sua neutralidade absoluta, os principios de direito natural, que assim como um homem se devia julgar em paz com outro homem, em quanto este o não aggredia, o mesmo se devia dizer de nação a nação.

[374] *Mas esta argumentação tambem não colhe, porque se colhesse para o caso, ficava sendo falso o direito natural que não só não incrimina tanto a defeza pessoal, como a de outra pessoa; principio adoptado n'este nosso Cod. art. 14, No. 3 e outros art. concordantes; mas muito pelo contrario condemna como immoral o facto d'aquelle qué presencia de braços cruzados a luta de um com outro homem e a morte ou ferimentos graves de um d'elles sem lhe acudir podendo.

Nada d'isto porem póde ter applicação ao serviço maritimo mercante em tempo de paz, em que não é de presumir a simulação o fraude em favor da guerra. Em conclusão pois esta incriminação comprehende factos de diversa gravidade e natureza que converia discriminar e punir diversamente segundo a qualidade do delicto, como era de justiça, a que resiste a disposição penal do art. em razão do maximo em que para todos é fixada. Quanto a modificação que se encontra no § un. consideramos adequada està solução do legislador. Quando o recrutante é um estrangeiro, e sem vistas algumas hostis contra nós, a expulsão do reino é o procedimento que mais convem.

E não tem aqui esta penalidade o defeito das antecedentes, porque sendo imposta a temporaria, sem algum outra declaraçao, devem os estrangeiros ser expulsos por tempo que não excedendo o maximo de doze annos, póde segundo as circumstancias, reduzir-se até tres annos, conforme o art. 36o.

[375]

[Translation.]

CODE AND COMMENTARIES.

Theory of international right, applied to the Portuguese penal statute, compared with the Brazilian statute, the national laws, the statutes and criminal laws of ancient and modern nations, presented to His Imperial Majesty Dom Pedro II, Emperor of Brazil, by F. A. F. Da Silva Ferrão. Vol. IV, (Lisbon, 1857,) pp. 181, 231.

ARTICLE 148. If any Portuguese subject shall, by any acts whatsoever not authorized by the government, expose the state to a declaration of war, or expose Portuguese subjects to reprisals from foreign power, said offender shall be condemned to temporary ban

any

ishment, if such war or such reprisals be carried into effect; and if such war or such reprisals be not carried into effect, he shall be condemned to correctional imprisonment for a term not to be less than one year and not to exceed three years, without excepting any further punishment which said offender may incur, if the acts he has committed be a crime punished more severely by law. (Art. 29, No. 4, &c.; Art. 30, No. 4, &c.; Constitutional Charter, Art. 9, § 2.)

The letter and provisions of this article concur with articles 84 [376] and 85 of the French statute; with article 148 *of the Spanish

statute; with article 73 of the Brazilian statute; with articles 117 and 118 of the statute of the Two Sicilies; with articles 179 and 180 of the Sardinian statute; and with article 113 of our statute of 1837. But they differ in one point from the French statute, and from those of the Two Sicilies and of Sardinia which have been copied thereon. Said statutes make a difference in the indictment when peace has been actually endangered, and when there has only been a provocation to reprisals.

The Brazilian statute, ours of 1837, and the Spanish statute, have considered both cases as being one single offense. The provisions of the above-mentioned article are to the same effect. But we do not think that there be sufficient reasons for such provisions, and we consider that the French statute, and those which have been copied thereon, have taken a more proper view of the question. If, under the provisions of said article, a material fact cannot assume a criminal character unless it be eventually followed by evil results, the severity of punishment is to be measured on the gravity of the consequences of said facts.

Now, if such consequences are of a more serious character in the event of war than in that of reprisals, when not general nor continued, [377] it was necessary that there should be a difference in the *indictment, in order that there be also a difference in the punishment, which is not to be so severe in the latter case.

There is another considerable difference in the French statute, article 84, as regards the material fact. It is not sufficient that such fact be not authorized by the government; it is necessary, moreover, that it be in itself of an hostile character, (par des actions hostiles.)

The statutes of Sardinia and of the Two Sicilies have employed the same words, and the latter requires, further, that the fact be such as to be qualified a crime by law, (par quelque crime ou par des actes hostiles.)

When the question was to explain whether an act was hostile or not, the law did not determine those which were to assume that character and those which were not, but left them to the discretion of the judges to decide upon that question, acquitting the defendants whenever the case was that of acts being illicit only for that negative reason that the act was not authorized by the government, a reason which cannot be admitted as being contrary to the constitution; in fact, the authorization of government is only necessary when claimed for certain and determined acts, and not in an undetermined manner, and the law tolerates and permits whatever it does not prohibit.

The Spanish statute did not keep the term of the French stat[378] ute, (hostile,) but instead of the words "non-approuvés *par le gouvernement," it says "no autorizados competentemente," (not permitted by competent authority,) and thus it does not require the authorization of the government when the fact is authorized by law, which dispenses with any other authorization; and in the present case it was not necessary for said statute to use the word "hostile," and it in

volves also the two ideas (crimes ou hostiles) of the statute of the Two Sicilies.

The Brazilian statute is still more explicit than all the above-mentioned ones, as will be seen by the following words, which we think it incumbent on us to quote all at length: "Commit without the order or authorization of government hostile acts against the subjects of another nation, such as to endanger peace or provoke reprisals."

Thus it remains understood that, if the fact in itself were not such as to give just reason for war according to international right, it could never be reputed a crime, even were it not authorized by the government, and were it eventually followed by war. Such a fact is not then a reason, but a mere pretext for war.

It is within the limits of moral possibility to avoid all acts from which might arise just reasons for war, generally acknowledged as such; but it is not within the reach of human prudence to provide against pretexts.

[379] The crimination under said article did not assume the *same form. Not only did it not make any difference between facts of different gravity, falling thereby into the same error as the Spanish statute, the Brazilian statute, and our own statute of 1837, but in involving "any cases whatsoever" it has still been the grounds for lawsuits, the criminality of which has not and cannot have any moral truth. Thus, and considered under these two points of view, the article is more defective than those of Brazil, Spain, and our own of 1837, and it has not adopted what was proper in them, neither has it imitated, nor clearly pointed out, nor amplified the prescriptions of the French aud Italian statutes above mentioned.

As regards the penalty, in addition to the great danger of a lawful act being possibly incriminated, the confusion of the two eventual consequences, different in gravity, is the cause of the same punishment not being proportionate to the facts which have provoked the reprisals.

This crimination, in its widest acceptation, involves any offense whatsoever against a foreign subject or foreign nation, even were it but a mere insult. Thus the punishment might be very severe though the provocation were unimportant, and though the reprisals arising therefrom were of little consequence.

Nevertheless, in order to reduce as much as possible the ap [380] plication of our said article to *right proportions, as regards the criminality of the fact, according to its consequences, the judges will be able to avail themselves of the provisions of the statute, article 20, Nos. 3 and 11, combined with article 82; and when such consequences do not follow, or shall be of no importance, of the provisions. of article 20, No. 11, combined with article 83, No. 4.

But the statute here is partly provident, because, if it has not decided on the cases when a slight punishment corresponds to a material act, it has decided on those when the punishment is to be severe. It has thus corrected the omission of the French and Spanish statutes, it has adopted the provisions of the above-mentioned Italian statutes, and avoided the defect of a similar declaration in the Brazilian statute restrained to offenses committed against Brazilian subjects.

The Bavarian statute, article 300, incriminates the act of the party who has given not only a just reason, but even an occasion, a facility, or only a pretext for a foreign nation placing itself in a state of war, but it requires essentially that the proceedings of such party be actually to that purpose, (dans une intention hostile,) waiving thus the obnoxious character of the word "pretext," excepting with regard to penalty, because

the party who,, with a hostile intention, commits such acts as to provoke rightly a war, must not be placed on the same line of criminality as the party who, with the same intention, has only given a pretext for

war.

If the war be not justified by the gravity of the provocation, its consequences are to be morally imputed to the adverse nation.

[381]

*As we have already remarked, it is necessary, in order to punish rightly a crime, to consider not only its remote moral cause, but also its immediate moral cause, taking into account its effects and the influence of both causes.

Before concluding our observations on the present article, we shall observe that our criticism bears more on the words than on the doctrine of said article; because, though it involves in punishment the provocation from which arises a declaration of war, as well as that which is the cause of reprisals, it seems to leave unpunished the provocation to hostile acts, which do not assume the character of a declared war, nor that of an attack or individual offense against Portuguese subjects. This omission has appeared to be a very serious one in a penal statute, especially in presence of article 18 of the general provisions which forbid to amplify its construction beyond its terms, though the reason for punishment be identical or even greater.

However, as the reprisals involve all possible means for a nation to obtain satisfaction of the offense it may have suffered, as they may be negative or positive, and these may be general or special, against the property of the nation, or that of its individual subjects, the word "re

prisals" involves the idea of hostile acts. Moreover, the words [382] "declaration of war" in the article are to be *considered as equiv

alent to the declaration of hostilities, which may be preceded by the seizure or arrest, which may be withdrawn when satisfaction is obtained, but are essentially involved in the expression "reprisals."

But the real fault we find in the wording of said article is that it leads to suppose that a war cannot possibly break out without being previously declared. Such is indeed the principle acknowledged by ancient and modern nations; but in practice it has been seen and it can happen that war does begin in fact without any reprisals or any previous solemn declaration, whether the offended nation be aggressor or attacked.

Thus, the words of the article "to a declaration of war" ought to be corrected by the words "to a war." ("Ancune déclaration ni autre avis à l'ennemi de l'existence de la guerre n'est nécessaire pour légaliser les hostilités.") (Wheaton, Droit international, tome i, p. 279.) When, then, the war is not preceded by a declaration, it is the fact of war itself that dispenses with, and prejudges or rather expresses the declaration; and it is in such way that the present article is to be understood. There are more grounds to observe that in the words used by the legislator, "any Portuguese subject," which are an imitation of [383] the words "tout Français" *in the French statute, there seems to

be a conclusive argument for involving therein the ministers of the state; but that this argument loses a great deal of its power in consequence of articles 146, 147 and 148, in which the same words, "any Portuguese subjects," are employed as an entity different from the entity government," and therefore different from the persons who are part

thereof.

It appears to result from the especial wording of this article, that the ministers of the state can only be indicted for the crimes under articles 746 and 748, when they have authorized the facts for which "any Portuguese subject" is generally liable to punishment, as direct and principal

author thereof, if said authorization, considered as an order, an advice, or a provocation, has been the principal cause or one of the principal causes of said fact, the ministers of the state being then considered as parties, co-authors, or accomplices to such fact, on account of their great influence and in conformity with the general rules of articles 25 and 26. But this shows the deficiency and incoherency of the statute as regards the ministers of the state. If they be considered as parties to the offense in a similar degree, they ought to be punished more severely for the same fact than their co-defendants, because the abuse of [384] their power and the want *of loyalty on their part is as well an

aggravating element as in the case of section 1 of article 143. It would be unjustifiable that any Portuguese subject could escape punishment in covering himself with the authority of the minister of state, who is the remote cause of hostilities and reprisals, and that said minister should be allowed to remain unresponsible for having given such authority in direct opposition with article 298.

Moreover, under this article 298, with regard to the direct offender, the authorization of the government, in order to be considered as a justificative cause of the crimes from which have arisen such results as will endanger the safety of the state, must be of an obligatory character-that is, such as will involve correlative obedience or an order.

If the authorization be contrary to the fundamental law of the state, or to any other law, it is optional, and as such it is not an excuse for the person who has made use thereof, and who might have not done so without a crime, especially if there be no hierarchical connection between the principal offender and the minister of the state, such as the latter be considered as a superior, as is demonstrated by the argument of No. 26 of article 20, and of No. 5 of article 14.1

+

Therefore, the absolute element admitted without exception by the present article cannot be admitted with moral truth. The ill-will or imprudence of a minister of the state who authorizes an act does not destroy the mischievous moral element in the person so authorized nor the direct responsibility which arises from the abuse of his liberty and activity.

[385] * It would have been convenient that the statute had excepted those acts of defense or provocation which the general delegates of the government may, in case of necessity, be obliged to commit, though not competent to do so, nor being previously authorized for that special purpose.

The governor of our dominions abroad, even of our provinces and naval stations distant from the coast, the commanders of military bodies, of men-of-war, &c., can, without any express order from the government, repel by force of arms any attack, or even, in order to maintain the national dignity and interests, take the initiative of hostilities or reprisals.—(Ortolan, Règles internationales, liv. 3. cap. 3. Prin. gen.)

Thus, in accordance with what we have said, the words of the article, "Any Portuguese subject who shall, by any act whatsoever, not authorized by the government, expose the state to a declaration of war," might be conveniently corrected as follows: "Any Portuguese subject not authorized by the government, who shall, by any hostile or criminal acts whatsoever, expose the state to a war."

A war itself is nothing more than a state of general and continued reprisals, [386] in so much as what is allowed to one of the belligerent par*ties is considered as licit to the other.—(Schalmz, Droit des gens europ., liv. 6, cap. 1, p. 214.) Nevertheless, there is a limit to the principle as regards those nations which keep up, in time of peace, a warlike apparatus on land and on sea; and whose armies and fleets, confounding by their attitude the preventive state with that of permanent threat and aggression, endanger the existence or independence of other nations, in a more or less precise manner, on account of their being able, at any time, by sudden orders and secretly forwarded, to carry into effect a naval attack or an invasion.

The words, "declaration of war," have no more the same sense they used to have in former times, when such declaration was an intimation made to a nation on its own territory, through a herald-at-arms, or a messenger, as if it were a challenge. The solemn form ceased to be practiced about the middle of the seventeenth century,