172 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Mr. Phelps. — No, Sir, that would state an entirely dilferent case, 

 but I tliiuk I siiall be able to point out presently from the correspond- 

 ence, that, so far from Eussia settiu,c^ up to Great J]ritain a different 

 construction of tliis languajje from what had obtained between llussia 

 and the United States, it was exactly the other way, and that Great 

 Britain did nnderstand distinctly that the construction of that lan- 

 guage did not include Behring Sea. When 1 stated the proposition 

 that in adopting by agreement not merely the language that had been 

 employed by the two other countries they adopted the construction, 

 that is to say they adopted what the agreement meant between the 

 parties, of course, that is in the absence of specilic proof to rebut that 

 by showing the contrary. Any presumption of that sort or any 

 inference of that sort is open to be rebutted, but in the absence of 

 rebutting facts I understand that it would not be possible to contend 

 that where a contract has been made between two parties and a thiid 

 party agrees with one of those contracting parties, " I will take exactly 

 the contract that you have given to the other man;" that he docs not 

 adopt it upon the construction which the law would give it as between 

 those two parties; and if that construction turned out to depend not 

 so much on the language as on the understanding, why then he has 

 a(lo])ted the nnderstanding. But there is a correspondence on this 

 subject that seems to me to make this i)erfectly clear. In the progress 

 of this negotiation between Great Britain and Russia, Mr. Canning the 

 Foreign Minister, sent to Sir Charles Bagot who was then the Ambassa- 

 dor at St. Petersburg, a proposed draft of this Treaty, and it will be 

 found on page 03 of the second Volume of the Appendix to the British 

 Case; and I invite your attention particularly to this language. 



Mr. Justice Harlan. — Sent by whom? 



Mr. Phelps.— By Mr. George Canning, Secretary of State for For- 

 eign Affairs, to His Majesty's Minister at St. Petersburg, Sir Charles 

 Bagot. He enclosed this as Great Britain's proposal, and the first 

 Article reads in this way. 



It is agreed between the high contracting Parties that their respective subjects 

 shall en joy the right of free navigation along the ■whole extent of the Pacific Ocean, 

 comprehending the sea within Behring's Straits. 



There are the words which put this ambiguity out of the question. 

 There are the words that, as I remarked yesterday, it is inconceivable 

 should n(-L have been insertedif it was intended by the parties to include 

 Behring Sea, and not leave the whole Treaty npon language so ambig- 

 uous and doubtful, to say the least, as they employed. That shows 

 that the attention of the Foreign Minister and of the negotiators on the 

 part of Great Britain was drawn to this point, and that it occurred to 

 them that more words were necessary. Then "comprehending the sea 

 within Behring's Straits," was proposed to Eussia as if it was iptended 

 to make this clear. 



From Russia in reply we get what you will find in page G8, a counter- 

 draft. They cannot accept Great Britain's proi)osal er.tirely, and they 

 sent on their own side a projiosal, and you will see that Article 1st in 

 the British proi)osal becomes Article V in the Russian pro])osal, and it 

 will be found at the bottom of page 69 in the original French. It is 

 not translated in this copy: 



The High Contracting Parties stipulate on behalf of their respective subjects that 

 free navigation over all. 



Lord Hannen. — "Throughout the whole extent". 



