No. 31.
Mr. Bayard to Mr. Jarvis.

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.

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.

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.

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.,