ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 167 



ISToAv can there be anything: that is more completely conchisive on 

 that point? Imajiine two individuals makino- a contract. I am making 

 a contract with my friend on some important matter. Unhickily there 

 has crept into the contract some lan^iuage that may be ambiguous. 

 My friend comes to me and says, " Of course, you know our under- 

 standing-. You do not mean to^ attribute such and such meaning to 

 this term in the contract". What am I bound to say to that! If I do 

 insist upon it, 1 am bound to say so. I am bound to say, " Sir, 1 do 

 not agree with you. I do not agree to your interpretation of these 

 ambiguous words. I will tell you what I understand." But sai)pose 

 I say, "Why my dear friend, there is no occasion to mention that, I 

 never claimed any such thing. Do not interrupt the execution of this 

 contract by any such cavil. If you want to send me, after the contract 

 is executed, a paper showing exactly what you understand by it, do 

 so." — "Very well," he says, and so in perfect good faith he signs the 

 contract and immediately sends me such a p;vper saying, in effect, 

 "You understand. Sir, of course, in the doubtful language embraced 

 in this contract, that it means so and so", and I accept it and file it 

 away. I should like to know, if after that I were ca])able of going into 

 a Court of justice and claiming against him in opjjosition to that paper 

 and in opposition to the interview, how I should be received. 



I should be re(!eived by being informed that I was engaged in the 

 perpetration of a fraud. I should be received by being reminded if 

 there was an ambiguity in this language, even one that might have 

 admitted of my construction, that when my friend came to me and con- 

 fronted me with the question, I gave him to understand that I shouhl 

 not make any such claim, and did understand the contract as he 

 did, and advised him if he tlumght there was any doubt about it that 

 might be raised after he and I were passed away, that he should send 

 me a paper which I would attach to the contract, and he did so, and I 

 received it without reply, that I was bound by the construction so 

 adopted. I should like to know how I, or those who might succeed me 

 75 years afterwards and after there had been unbroken possession in 

 pursuance of the contract as he understood it, would fare in under- 

 taking to set up a construction that I had tlius formally abandoned 

 and repudiated, and on the strength of which repudiation they had 

 executed the contract and gone on with it all this time. The same 

 rules ap])ly to the execution of a Treaty. You must impute at least 

 ordinary propriety to these Governments, and this leads you inevitably 

 to the conclusion that in the negotiations between the United States 

 and Russia, it was not intended, it was not understood, that ]iussia was 

 throwing open to the United States this vahiable and important indus- 

 try which the United States had not even claimed or asked for; but 

 that the United States was content with obtaining from Russia what it 

 did obtain, everything that it contended for, subject only to the one 

 provision by which the parties seem to have celebrated and marked 

 the friendly conclusion to which they had brought the whole matter 

 after they had settled their mutual rights, by saying, on each side, for 



10 years we open these disputed territories to each other. 

 Now, I come to the British Treaty. 



The President. — Before we leave this Treaty, Mr. Phelps, will you 

 allow me to ask you it being your construction that Article I and Article 



11 are not applicable to Behring Sea? wiiat do you say to Article V? 

 See the Treaty of 1884, page 3(5, of your first Appendix. Do you think 

 this is not applicable to Beliring Sea? 



