152 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Mr. PiiELPS. — I suppose this is tlie reading of the Treaty in plaii) 

 words, as I construe it — of course it will be for the better consideration 

 of this Tribunal. Like many Treaties it is not very plainly expressed, 

 among- which might be included the one that has constituted this Tri- 

 bunal. The parties are so aliaid of giving something away that it 

 results in obscurity; but I understand this to be the meaning of the 

 Treaty, bearing in mind that it was largely an unoccu])ied and partly 

 undiscovered country at that time: Russia shall have the exclusive 

 riglit to make settlements down to 54° 40' — in other words, that shall 

 be considered the territory of Russia, and you shall not come above 

 that: lielow that, as far as Russia and the United States are concerned 

 at any rate, (because the rights of Great Britain do not come in here) 

 it shall be considered the territory of the United States, and Russia 

 will not go below 54° 40'. Now you have a boundary line. This hav- 

 ing been determined, for 10 years the ships of the two countries may 

 enter each other's territorial waters and the islands in the interior seas 

 and gulfs for the purposes of certain trade and subject to certain 

 restrictions. That is the meaning of the Treaty. 



Senator Morgan. — And after that, they may enter Russian waters 

 permanently for the same purpose? 



Mr. Phelps. — Oh no. Articles I and III draw the territorial line. 

 Then Article IV provides that that territorial line may be invaded by 

 both sides by mutual consent for certain purposes. That is the way I 

 read the Treaty; and all that we have to do with it here for the pur- 

 pose of elucidating the question we are charged with, is to find out 

 whether J>ehring Sea was or was not iucluded within the terms of this 

 Treaty; and the difference that makes is this; if Behring Sea was 

 included within the meaning of the term in the 1st Article of this 

 Treaty, then it is open to be argued by implication, and not directly, 

 that Russia did throw open to the United States a right of fishing and 

 so forth, in the Behring Sea which might be argued to affect the exclu- 

 sive right to this fur seal fishery, though it does not say so. On the 

 other hand, if Behring Sea is not included within the terminology of 

 this Article of the Treaty then the Treaty has nothing to do with the 

 case whatever. 



Lord Hannen. — Nothing to do with Behring Sea. It would have to 

 do with the question of fisliing in whatever is the proper meaning of 

 the words "Pacific Ocean". 



Mr. Phelps. — Yes; not with Behring Sea. 



Lord Hannen. — Yes, that is what I say. 



Mr. Phelps. — That is what I mean; it has nothing to do with this 

 case so far as Behring Sea is concerned. That is what I meant to say. 

 I will repeat that, in order tliat we may start in what 1 am imi)erfectly 

 trying to say with a perfectly clear conception of what I am contend- 

 ing for: That Russia had had exclusive occupation and exclusive claim 

 to the fur-seal fishery at least, probably to more than that, down to 1821, 

 is not disputed. It cannot be disputed because there is no evidence to 

 dispute it upon. Now if Russia ever gave away her claim on that sub- 

 ject she gave it away when she signed this Treaty with the United 

 States and afterward with Great Britain. If she gave it away then 

 directly, or by implication to any extent, then the Treaty touches the 

 question of Behring Sea in this case. If she did not, that possession 

 continued unbroken down to 1807 when she conveyed it to the United 

 States. It all turns then — all these questions that are submitted to 

 you except so far as the facts are undisputed because the possession is 

 undisputed, — it all turns upon the question whether in the treaties of 



