164 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



not repeat that we all, wLo arc not the sources of jieoorapliieal knowl- 

 edjfe, get our ideas on that subject from the maps Avith which we are 

 familiar. 



Now I repeat, was or was not that sea "commonly called" part of 

 the Pacific Ocean? And the answer to that is almost unanimous — all 

 the authorities of the maps are that way. 



The President. — Do you think it would be easy to solve the ques- 

 tion if it was put for to-day and not in 1824 or 182.5, whether two 

 diplomatists using the word Pacific Ocean, and making an analogous 

 Treaty to that you are speaking of, intended to include Behring Sea 

 in the term Pacific Ocean? 



Mr. Phelps. — I by no means assert that it would. 



The President. — I do not know whether to-day we consider Behring 

 Sea as being part or not part of the Pacific Ocean, and I believe most 

 of my fellow diplomatists would say the same. 



Senator Morgan. — If you say "a right vested in the ocean com- 

 monly called the Pacific Ocean", it would take a very astute mind to 

 figure out the proposition that you did mean Behring Sea. 



The President. — Or that you did not mean it, 



Mr. Phelps. — I have not particularly examined the later author- 

 ities. I have confined myself to the period of time wheu this language 

 was used, but I readily conceive, if the question were to be taken now 

 it might be oi)en to the same uncertainty. But, Sir, what is the result 

 of that? If when accomplished and experienced diplomatists, in bring- 

 ing a long negotiation to an end, were attaching importance to the 

 inclusion of Behring Sea as a part of the Pacific Ocean is it conceiv- 

 able that they would not have said so? 



It is because, as I shall be able to point out upon something better 

 than my suggestion, it was totally inconsequential to those countries, 

 that Behring Sea should be included, that they omitted to use the 

 language which was necessary to include it; and it is not for my 

 learned friends, now, after the dust of 70 years has fallen on the trans- 

 action, to say, "Though we did not say so, we understood Behring Sea 

 to be included; though it was important that it should be included, we 

 did not include it in terms; but now we argue that it can be strained 

 inside of the words 'Commonly called the Pacific Ocean', though at 

 that time it was not commonly so called." 



It is for the party that seeks to include within a grant a particular 

 territory to make it out. He has the affirmative of the proposition. 

 When 1 have bought whiteacre by description and claim that it in- 

 cludes blackacre, which the grantor denies, it is for me to make out 

 that in saying one thing he meant another — that in saying whiteacre 

 he intended to give the description "including blackacre" or "black- 

 acre also"; that under the circumstances it was in some way included. 

 What does the language of the Treaty say? What does the descrip- 

 tion in its fair construction, dealing fairly with language mean? AVhat 

 was the common definition of the Pacific Ocean and did it include 

 Behring Sea. I say that on the threshold of the subject it is utterly 

 imi)ossible to bring the description within the language. You may say 

 if you please that it is ambiguous — that I admit; but you cannot say 

 that the language included Behring Sea, 1 respectfully submit, because 

 the vast majority of the evidence is the other way. And the only 

 escape from the conclusion that Behring Sea was excluded from what 

 is commonly called Pacific Ocean is to say there were maps and state- 

 ments the other way, and therefore pei'haps it is not quite conclusive 

 that it was excluded. But if you have to give a meaning to the ^vords 



