ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 165 



"commonly called", the only question is wlietber you shall go with the 

 evidence or against it. Wliether you should assume that which is com- 

 monly called the Pacific Ocean in nine-tenths of the maps, including 

 all the authoritative ones, is the common acceptation, or whether you 

 shall say tlie common accejitation is that which is rejected by those 

 maps and by all the evidence which bears upon the subject. 



We shall tind out presently, as we pass along, why that language was 

 not used. Ifis no imputation on the very eminent men engaged in these 

 negotiations; they were not children in the business of diplomacy, or in 

 the management of Affairs of State. There were probably no better 

 men on earth at that date to conduct an affair of that kind than Mr. 

 John Quincy Adams, Mr. Stratford Canning and Mr. George Canning. 



Senator Morgan. — Or since that day. 



Mr. Phelps. — I accept it. Sir. The day of great diplomatists has 

 well nigh gone; the telegraph and the newspaper have nearly put an 

 end to that science. The names of the great Diplomatists are written, 

 and written for the most part on the tomb. 



These were not men struggling with a subject they were incapable of 

 dealing with; and you find not only in the American negotiations, but 

 in subsequent British negotiations that three words would have settled 

 this question forever, on what is now said to be the important part of 

 it, which were omitted to be used. 



Then let us suppose for the sake of the argument, that I am wrong in 

 my conclusion as to the balance of the evidence on the point of what 

 nmy be said to be " commonly called" Pacific Ocean ; then, what follows? 

 It is perfectly plain that the evidence does not establish the converse, 

 that Behring Sea was commonly called the Pacific Ocean. If it does 

 not establish that it was not, then what happens? Why, the parties 

 have employed language which is so ambiguous that upon the face of 

 the instrument you cannot assign a meaning to it at all. They have 

 employed language from which you cannot find out, looking at the 

 language alone, whether this body of water was included or was not. 

 Then, what is the result, under the fundamental principles in the con- 

 struction of a contract. When the ambiguity is on the face of the 

 instrument, or when it is raised by extrinsic evidence and language 

 becomes ambiguous that appeared to be plain, — and let me say in pass- 

 ing none of these astute gentlemen could have possibly supposed they 

 had used plain language when they said ''commonly called the Pacific 

 Ocean"; if theymeantto extend it beyond that undoubted bo.dyof water 

 that everybody always called the Pacific Ocean; — but sux^poseit results 

 in an ambiguity, then you have to ascertain the intention of the parties 

 in the language they used. If it is found that the language they used 

 is consistent with either meaning, that it may include Behring Sea in 

 the Pacific or it may not, then you have to get at the conclusion how 

 the parties understood it. The familiar rules of construction applicable 

 to such a question need not be repeated. You look at the subject mat- 

 ter of the contract, at the object in view in making it, at the situation 

 of the parties, and, where time enough has ela])sed, to the subsequent 

 practical construction Avhich the parties themselves have given to their 

 own language. Those are the sources from which, as all lawyers under- 

 stand, you are to derive the meaning and intention of the parties as te 

 the meaning of ambiguous phraseology in a contract. 



The fur seal business was not the matter in disi)ute. It was, as I 

 have pointed out, first boundary, and secondly the attempt to interfere 

 with that occupation of the North West coast which the United States 

 people were beginning profitably to have, and Mr. Adams complains as 



