OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 153 



1824 and 1825 Russia did throw open to tliese countries the only right 

 tliat she had previously asserted to be exclusively in herself? If she 

 did, that is one thiug-. 11.' she did not, then those Treaties so far as the 

 Behring- Sea is concerned disappear out of this case. 



Senator Morgan. — I understand your contention to be, that in order 

 to throw open, as you say those rights, there would have to be a distinct 

 and affirnuitive expression in the Treaty? 



Mr. Phelps. — Yes, Sir, or else a toleration of an invasion of it. It 

 may be expressed or implied. It is expressed when the nation puts it 

 into a Treaty or a convention: it is implied when she jiermits the world 

 to come there and interfere with, and participate in, the fisheries. As 

 I pointed out, there is no evidence of actual interruption down to 1867, 

 and therefore if Eussia has done anything to weaken her claim she did 

 it by the j^rovision of a Treaty, which, as we shall see, never was acted 

 upon in that sense by either of the parties to it. These two questions 

 then : What is meant by the " North West Coast", and whether Behring 

 Sea is included in the term "Pacific Ocean" and " Great South Sea" 

 are the same question. You are again stating the same thiug in differ- 

 ent words. If Behring Sea is inclnded, then you may say the North 

 West Coast runs up and attaches the Western Coast of Behring Sea — 

 what is now Alaska. If Behring Sea was not included, then the North 

 West Coast was limited as we say it was limited. The two inquiries 

 are the same. 



The President. — You are of opinion, at any rate, that the Treaty of 

 1824 has nothing to do with the eastern coast, with the Siberian Coast. 



Mr. Phelps. — I think it has nothing to do with the Siberian Coast. 



The President. — Then Article I would not apply to the Coast of 

 Kamschatka? 



Mr. Phelps. — Certainly nobody claims, I suppose, that it would 

 have that effect. That was one consideration that I was intending to 

 advert to on the question of the construction of this — that if you gave 

 the construction that my friends contend for, you include this whole 

 Siberian Coast [indicating on the map] that nobody ever laid any claim 

 to or had any business with, and which Eussia would certainly not 

 have volunteered to surrender. That is one consideration that bears 

 on the meaning. 



Now we come to the meaning of the words in the first Article in the 

 Treaty. 



Auy part of the Great Ocean, commonly called Pacific Ocean, or South Sea. 



What is the question? 



It is whether " Behiing Sea" in the common speech and understand- 

 ing of men at that time was designated as the "Pacific Ocean", or 

 whether it was not? 



Commonly called — not sometimes called — that is a very different 

 expression. Was it then commonly called and designated as part of 

 the Pacific Ocean? If it was, then this Treaty includes it: if it was 

 not, the Treaty does not include it. If that question is too doubtful to 

 be determined, then we should have to resort to other principles of con- 

 struction to find out what the Treaty meant. If Behring Sea is included 

 in the ])hrase "Pacific Ocean", it must be upon one of two grounds — 

 either that the language of the Treaty includes it, that is to say, 

 the descrii)tiou "commonly called Pacific Ocean" includes it. If it 

 does, that is an end of it. If it does not, and the language is found to 

 be ambiguous, then it must be incorporated into the Treaty by the 

 understanding which it is proved the parties had of the definition of an 



