No. 31.
Mr. Bayard
to Mr. Jarvis.
Department
of State,
Washington, September 6,
1886.
No. 40.]Sir: I now transmit a copy of a letter from this
Department to Mr. James C. Jewett, of New York City, written to that
individual on the 24th of June last, in response to his communication of
April 10, 1886.
With it I hand you a copy of a printed document, being Senate Executive
Document No. 133 of the Forty-eighth Congress, first session, relating to
the same subject-matter, of a claim by Mr. Jewett on the Government of
Brazil.
It is deemed proper that you should be fully apprised of the position taken
by this Department in respect to the claim thus put forth by Mr. Jewett
against the Government of Brazil, in order to prevent any misconception of
the proposed action of this Department in relation thereto, as well as to
other claims of a like description.
While this Department is at all times ready to lend the good offices of its
representatives abroad for the presentation of all valid claims founded on
justice and equity of its citizens upon foreign Governments in accordance
with its established regulations, and also to assist in the promotion of
American interests in all proper cases and by those methods known and
approved internationally, yet it is not unmindful of the concurrent
obligation imposed by our professions of amity and comity with other
nations, as well as by the injunctions of our own self-respect, upon which
we invite those nations confidently to rely, which should secure such
previous scrutiny and examination of the law and facts upon which such
claims are based by their proponents as shall, prima
facie, assure both parties of their justice.
The claim of Mr. Jewett, as you will see by my letter to him, had been
previously twice adversely reported to the then Secretary of State by the
examiner of claims, and these reports approved by the Secretary, who, on
March 5, 1881, announced to Mr. Jewett that their further official
presentation could not be made by this Government.
The views subsequently expressed by Mr. Blaine, Secretary of State, under a
subsequent administration, under dates of August 8, 1881, and December 17,
1881, in his instructions to Mr. Osborne, your predecessor, would seem to be
a practical reversal of the opinion and action of his predecessor in office,
Mr. Evarts, and are not accepted by me either as to the conclusions of law
or fact which they contain.
I fail to discover in the papers submitted any such formal or unequivocal
concession to Mr. Jewett by the Government of Brazil as is plainly requisite
under the laws of that country to vest in him, as grantee, the right to
excavate and use mineral or other natural deposits of phosphate earths which
may have been discovered within its territories. But, on the contrary, the
prompt and decided refusal of Brazil to make any such concession to Mr.
Jewett appears with entire clearness and unmistakeable force.
The utmost right that can be urged on behalf of Mr. Jewett would be that in
ignorance of the laws of Brazil he had suffered himself to be misled into
the formation of sanguine but groundless speculations, which
[Page 43]
induced the outlay of some money by him in
fitting out two small vessels for the transportation of mineral deposits in
advance of a legal concession by the Government of Brazil, which he was
notified was essential and requisite, but which he never received.
Such a misconception on the part of Mr. Jewett, if aided by misinformation
coming from an official of the Brazilian Government, might have created a
basis for an appeal to the benevolence and generosity of that Government,
but under no code of laws could be held to constitute a valid claim as of
right.
If an application for the favor of Brazil, based upon such a supposed equity,
had been made by Mr. Jewett, and for a sum reasonably proportioned to his
actual pecuniary outlay, a very different case would have existed in which
the personal good offices of the United States minister might have been
employed for his assistance.
But the Exhibit T, on page 54 of the accompanying Executive Document No. 133,
discloses that the entire alleged expenses incurred by Mr. Jewett, including
outfit of his two vessels, in “exploring” for phosphate, counsel fees,
agencies charges, and incidentals, were stated by himself at $27,330.27, and
that upon this narrow basis consequential, remote, and highly speculative
damages were built up to upwards of fifty millions of dollars, and for a
claim so exorbitant the favorable action of this Department was asked as
against one of the neighboring Governments of South America, with whom we
are on terms of professed amity, and with whom we desire to contract closer
and more intimate commercial alliance.
It is my desire that absolute confidence in the honorable friendship of the
United States should exist in the minds of all nations, and I know of no
better proof that can be given than of an intention to protect them from
unjust demands at the hands of our own citizens.
To discriminate against speculative and unjust claims by our citizens upon
foreign Governments and in favor of those founded in justice and equity,
will cause our recommendations to have that weight which we desire, and
create confidence in our international action.
You are instructed to make known the purport of this dispatch to the minister
of foreign affairs of Brazil.
I am, &c.,
[Inclosure 1 in No. 40.]
Mr. Jewett to Mr.
Bayard.
New
York, April 10,
1886.
Sir: I beg to call your attention to the copy
of protest and other papers relating to my rights to certain named
deposits discovered by me to Brazil.
Inclosed with these is a package containing the protest made by my agent
and self under date of 8th instant, against the action of Brazil pi
relation to these deposits, in the advertising same for proposals to
remove the phosphates in violation of my rights to same, and my proposal
made Brazil for use of these.
I would respectfully request that you cause said protest to be forwarded
to the minister plenipotentiary of the United States at Rio Janeiro, to
be delivered to the Government of Brazil.
Should you deem this course improper officially, would you do me the
favor to forward the envelope containing the protest to our minister at
Brazil, to be delivered by him unofficially, or so that he may send it
to the proper official of Brazil, without official action on the part of
our minister resident there.
The time for the protest to reach Brazil in season to reach that
Government before action be taken on the proposals relating to the
removal of the mineral phosphate
[Page 44]
named is so near at hand—June 3 next—that I beg yon will cause the
envelope containing the protest to be forwarded to our minister at Rio
Janeiro, Brazil, via England, &c., and not detain the same for the
next mail from the United States by steamer to Brazil.
My object in making the request is that, if proper, the protest may be
effectually presented in my behalf to Brazil; otherwise, it may more
surely reach our minister, to be unofficially delivered, if forwarded
under the seal of your Department.
I am, &c.,
[Inclosure 2 in No. 40.]
Mr. Jewett to Mr.
Jarvis.
New
York, April 10,
1886.
Sir: With this please find a protest in due
form, made by my agent, Nicholas Brandt, and self, both citizens of the
United States, against the action of Brazil in relation to the phosphate
mineral on the islands of Fernando de Noronha, discovered by me, to
Brazil.
Would you do me the favor to cause same to be sent to the proper official
of the Brazilian Government immediately after receipt by you?
Yours, &c.,
[Inclosure 3 in No. 40.]
Mr. Bayard to Mr.
Jewett.
Department of State,
Washington, June 24,
1886.
Sir: There has been unavoidable delay in
responding to your letter of the 10th of April last, together with a
copy of your written protest to the Government of Brazil, and your
letter of the same date to the United States minister to that country,
which were received and have been duly considered.
The subject to which your protest and the papers accompanying relate is
your alleged discovery of phosphate mineral on the islands of Fernando
de Noronha, which are within the sovereignty and jurisdiction of the
Brazilian Empire.
Your claim of a right and interest in the control of these deposits of
phosphate mineral is not altogether new.
The papers on file and the records of this Department disclose the fact
that in the month of February, 1880, you brought your claim against
Brazil for your alleged discoveries of these mineral deposits and
submitted copies of all the correspondence had by you with the officials
of the Brazilian Government which were averred by you to constitute a
formal and valid concession by that Government to excavate and remove
the mineral deposits in question on terms and conditions therein
stated.
It is proper to remark, as part of the history of this case, that on
December 15, 1879, a formal notification of the non-existence of any
such concession to you and protest against any claim by you against
Brazil, as founded thereon, had been received by this Department from
Mr. Forreno de Barros, at that time the diplomatic representative of
Brazil in the United States, and that being informed of this protest you
proceeded to lay your claim and the papers relied upon to sustain it,
before this Department.
Thereupon the examiner of claims of the Department made a careful
examination of your claim, and on November 3, 1880, submitted a report,
accompanied by a full recital of the facts, and his reason for rejecting
your demand for diplomatic presentation,’ and subsequently, on February
9, 1881, he made a second report equally adverse.
Under date of March 5, 1881, Mr. Evarts, then Secretary of State,
responding to sundry letters from you, wrote you, reciting the fact that
your claim had been made the subject of examination, and repeated
adverse reports by the examiner of claims of this Department, and
stating that he concurred in the conclusion of the two reports that your
claim against Brazil was not of an international character, and could
not be further officially prosecuted by this Government.
[Page 45]
In the same communication you were also informed that your supposed grant
rested upon the action of the Brazilian minister of agriculture for the
time being, and that at once, upon the fact of his letters to you of
February 3, 1880, becoming known in Brazil, excited jealousy in the
popular mind of that country to such an extent that the minister with
whom you had corresponded and upon whose letter of February 3, 1880,
your supposed grant was based, was compelled to resign.
This official, Mr. Cansansas de Sinimbu was succeeded by a gentleman who
was an advocate of a widely different policy, who lost no time in
canceling whatever promises or contingent privileges were alleged to
have emanated from his predecessor, and official intelligence of this
proceeding, by order of the Imperial Government of Brazil, had been
communicated to this Department by Mr. Borges, the Brazilian minister at
this Capital, under date of October 19, 1880, and also on September 30,
1880, by Mr. Hilliard the United States minister at Brazil.
The language employed in this communication of Mr. Borges was most
emphatic, and positively announced the rejection of your claim relative
to the deposits of mineral earth in the vicinity of the island of
Fernando de Noronha, and the prohibition of the removal of that
substance, in regard to which no concession had been granted to you,
“save the temporary permission to remove several tons for the purpose of
experimenting.”
It is true that subsequently the then Secretary of State, Mr. Blaine,
under date of August 8, 1881, issued instructions to Mr. Osborn, then
United States minister to Brazil, in which he stated:
“I am not sufficiently informed as to the law of Brazil to know how far
its formal requirements as to the mere question of right and title would
nullify this action by its Government, but I bio know that injustice and
in equity a responsibility has been incurred which cannot be
escaped.”
This view of the case was contrary to that twice reported to Mr. Evarts,
when Secretary of State, by the examiner of claims, and by that
Secretary of State concurred in, as announced to you in his letter of
March 5, 1881, and although reaffirmed by Mr. Blaine in his dispatch to
Mr. Osborn, of December 7, 1881, written at the request of S. B. Elkins,
esq., your attorney, is not accepted or approved by me.
My immediate predecessor, Mr. Frelinghuysen, does not appear to have
acted in the line of Mr. Blaine’s recommendations or instructions to Mr.
Osborn, and there is no indication of further proceedings on the files
of this Department until your communication to me of April 10, 1886, was
received.
The purport of your letter is to request that your formal protest against
the action of the Government of Brazil in advertising for proposals to
remove phosphates—the property of Brazil—may be presented through the
minister of the United States resident there, and your further request
that your protest may be delivered unofficially, in case I should deem
it improper to order its presentation as by direction of this
Government.
With every desire to protect the interest and promote the just claims of
American citizens in foreign lands, I do not feel justified in lending
the countenance or aid of the United States officials to such demands as
are set forth in your statement of claims against the Government of
Brazil, and which I find described as Exhibit T, accompanying your
memorial, dated June 13, 1881, to this Department, and which was one of
the inclosures of Mr. Blaine’s despatch of December 17, 1881, to Mr.
Osborn.
This claim is asserted for the egregious sum of $50,525,000, and when its
alleged basis is examined in the ex parte
statements, affidavits, and letters presented by you and on your behalf,
the disproportion between any possible loss incurred by you and the
amount claimed by you from Brazil is enormous. Such a claim so stated
shocks the moral sense, and cannot be held to be within the domain of
reason or justice.
It would be an act of international unfriendliness for the United States
to lend themselves in any way or to any degree in urging, much less
enforcing, such a demand upon a country with whom they are or desire to
remain on terms of amity.
Propositions have been made and are pending in the legislative branch to
invite the South American Governments and people to enter into closer
ties of commercial and political intercourse with us, but to connect our
Government, even remotely or unofficially, with the favorable
presentation or demand of such a claim as this of yours would be utterly
inconsistent with professions of amity or the desire to promote closer
commercial relations.
I therefore return the protest as inclosed by you, and decline to
transmit it to the United States minister at Brazil, or to instruct him
to present it officially or otherwise.
I am, &c.,
