154 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 



ambiguous term. I suppose it is quite fundamental in the construction 

 of all contracts, Treaties and everything else — the first resort is to the 

 language of the Treaty — of the contract. Both parties are bound by 

 that. They are not to be heard against their own words in the absence 

 of a consideration that cannot apply to a Treaty between nations — 

 namely fraud. If therefore these words do include Behring Sea in the 

 "Pacific Ocean", then the United States are bound by it and Eussia is 

 bound by it. 



If on the other hand the term "commonly called", excludes that, 

 then they are not bound by it. Then in the third contingency: If the 

 Tribunal finds itself in the situation of being obliged to say: "These 

 words are so far ambiguous that we cannot say that they do necessarily 

 include Behring Sea in " the Pacific Ocean ", and we cannot say that 

 they necessarily exclude it, then you have to find out what the parties 

 meant by the use of language which is susceptible of two very different 

 meanings. Which way did they understand if? Both sides set forth 

 very large lists of maps. The moment you go to the meaning of the 

 phrase "commonly called the Pacific Ocean", you have recourse to the 

 maps. There are 105 in Mr. Blaine's list; there are more than that in 

 the British Case or Counter Case. My friend Sir Richard Webster was 

 mistaken in saying that most of these in Mr. Blaine's list were included 

 in theirs — there are only about ten. He will find, when he compares 

 the lists that there are only about 10 of Mr. Blaine's maps that are to 

 be found in the British Collection. 



Sir Charles Russell. — Before my friend goes to the maps might I 

 ask him to read M. de Poletica's description of what he understood by 

 the "Pacific Ocean". It is in the despatch my friend has passed over. 



Mr. Phelps. — I have passed over them all. 



Sir Charles Russell. — The date of it is the 28th February 1822. 



Mr. Phelps. — If you will kindly give it me, I will refer to it. 



Sir Charles Russell. — It is only this passage. 



I ought, in the last place, to request you to consider, Sir, that the Russian posses- 

 sions in the Pacific Ocean extend, on the north-west coast of America, from Behring 

 Strait to the 51st degree of north latitude, and on the opposite side of Asia and the 

 islands adjacent, from the same strait to the 45th degree. 



Mr. Justice Harlan. — Mr. Adams' reply to that shews that he under- 

 stood that the part of the Pacific Ocean there referred to, was south of 

 the Aleutian Islands, because he speaks of the distance being 4,000 

 miles. 



Sir Charles Russell. — With great deference not so. Mr. Adams 

 in reply points out that the description would cover an extent of ocean 

 which, at one part, south of the Aleutians, would measure 4,000 miles. 



Mr. Phelps. — That has been read before, and does not touch the 

 point of my argument in the least degree. If you are going to examine 

 the witnesses, and find out whether, every time that a man when talking 

 about another point uses the phrase "Pacific Ocean" as including this 

 sea or uses it as excluding it, you never would come to an end. Nothing 

 is more indeterminate on such an inquiry, than the language which is 

 used when the particular point of where the boundary line is, is not in 

 mind and is not in controversy. If I were to ransack history, litera- 

 ture, and travels for the purpose of accumulating instances in which 

 the "Pacific Ocean" is spoken of as not including Behring Sea, why 

 what a mass of material I should bring together. And what does it 

 prove? Nothing at all. Because when the parties were using that 

 general expression their minds were not on the particular point we are 

 now discussing. 



