ORAL ARGUMKMT OF HON. EDWARD .T. PHELPS. 171 



of geograpliy, '' What do you uiulerstand by the words that are here 

 used"? what woukl have been the answer? You will find the answer 

 in the maps that those men had published and did publish, where it 

 became necessary to put down the answer to that question on the face 

 of the map. Is there any doubt that everj^ one of these witnesses would 

 have given to this lanouage the construction that we contend for? 



Now taking leave of the American Treaty, having seen, 1 think very 

 clearly, that whatever the term "Commonly called Pacific Ocean" 

 means, it was understood by Russia and understood by America as 

 excluding Behring Sea and those industries or trades or whatever 

 there was there, how stands the case of the British Treaty? It is of 

 course conceivable that Russia and the United States had understood 

 this one way and Great Britain had understood it in another way, and 

 although, as I shall contend, that could not make any material differ- 

 ence in the discussion of this question, still it is worth attending to as we 

 pass along, to see if there was a different understanding by one nation 

 in respect of the same language from that which was entertained by 

 both the others. 



In the first place this American treaty was adopted by the British 

 Government, not merely by the employing of identical language; it 

 was adopted ui)on an agreement that Great Britain would accept just 

 what had been conceded to America; — not merely the language, but 

 the provisions that had been conceded to America. I must ask your 

 attention on that point to the 2nd volume of the Appendix to the 

 British case page 74. It is a letter from Mr. George Canning of instruc- 

 tions to Mr. Stratford Canning: 



Perhaps tbe simplest course after all will be to substitute, for all that part of the 

 j)rojet aud couuter-projet which relates to maritime rights ami to navigation, the 

 first two Articles of the Convention already concluded by the Court of St. Peters- 

 burg with the United States of America, in the order in which they stand in that 

 Convention. 



Russia cannot mean to give to the United States of America what she withholds 

 from us; nor to withhold from us anything that she has consented to give to the 

 United States. 



The uniformity of stipulations in pari maieria gives clearness and force to both 

 arrangements, and will establish that footing of equality between the several con- 

 tracting parties which it is most desirable should exist between three Powers whose 

 interests come so nearly in contact with each other in a part of the globe in which 

 no other power is concerned. 



This therefore is what I am to instruct you to propose at once to the Russian 

 Minister as cutting short an otherwise inconvenient discussion. 



Subsequent correspondence shows that Mr. Stratford Canning in 

 pursuance of the instructions did exactly what he was instructed to do, 

 that is to say he proposed to the Russian Government to cut short 

 a discussion that I shall refer to in a moment, by adopting between 

 Russia and Great Britain what had been adopted by the United States, 

 and Great Britain. 



Now if that is the case, in adopting these provisions they adopted 

 them as they were understood and intended by the parties. In adopt- 

 ing the language they adopt the construction, and if it is found — I 

 observe that Lord Hannen appears to dissent from that proposition — 



Lord Hannen. — Well, to put it very clearly, I will not assume that 

 it is so, but suppose it were clear that the Russian Government had 

 led the English Government to think that they put the same construc- 

 tion on the language of the first clause of the Treaty as the English 

 now contend for, you would not then be able to say they were bound 

 by the construction that was understood by the United States. 



