178 ' ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Tlie President. — That was later. 

 Mr. Phelps: 



I ain happy to have it in my power to assure you, on the joint authority of the 

 Russian Plenipotentiaries, that the Emperor of Russia has no intention whatever of 

 niaiiitaiuiuji; any exclusive claim to the navigation of those straits, or of the seas to 

 tlie north of them. 



]\rr. Justice Harlan. — That is not tlie declaration referred to in Mr. 

 Addin^toii's letter. 



Mr. Phelps. — ISTo; I was saying that this transpires all the way- 

 through. I have not the reference at tlie moment to the particular one ; 

 but you will not have failed to observe from perusing this correspon- 

 dence from the very beginning, Eussia disclaimed, both to the fluited 

 States and Great Britain, the right to shut up this Sea and make it a 

 mare daumim; — that was disclaimed from the very beginning and all 

 the way Hirongh on all occasions, and never asserted; and, therefore, 

 you find both on the Ameri(;an side and the British side in these nego- 

 tiations, they were content to rest on tlie construction that had thus 

 formally and explicitly been given to tlie Ukase of 1821 by the Plen- 

 ipotentiaries; and then they make the Treaty. 



The President. — I would not lilce to throw any disrepute upon 

 Diplomacy; that would not behove me at all, speaking to you, Mr. 

 Phelps, in particular, but as you made an obituary of diplomacy yes- 

 terday, perhaps we may sjieak of ancient diplomatists, if not of those 

 of to-day. Do not you think it sometimes happened that two nations 

 living on very friendly terms as Russia and Great Britain undoubtedly 

 did at that time, if you remember the historic state of the features of 

 Europe between 1820 and 1830, — there was great friendship you will 

 remember in 1822, 1823 and 1824 between Russia and England,— do not 

 you believe it may be that when a difficulty arises, or a point which is 

 difficult to interpret, or give an interpretation to, between diplomatists, 

 that they are often satisfied, each maintaining his own point of view, 

 to adopt an ambiguous phraseology leaving to the future to solve the 

 difficulty; and, indeed, very often the future solves many difficulties 

 which diplomatists at the then present time cannot solve? Might not 

 this be one of those cases where Russia and England each had their 

 view and did not wish to concede a point of principle consistent with 

 their policy, and yet did not care to put their respective principles in 

 opposition to one another? 



Mr. Phelps. — I shall be quite willing to adopt that view. Sir. 



The President. — I should not call it bad faith; but it is perhaps 

 procrastination. 



Mr. Phelps. — It is a suggestion. Sir, that I am quite willing to adopt; 

 and it is one that I was going to make presently, when we had reached 

 the point. I was not going to omit to discuss it, because it is not for me 

 to anticipate what the conclusion of the Tribunal will be. — When we 

 have reached the point that language is employed here which can be 

 understood oneway by one party and the other way by the other party, 

 then we have reached a conclusion which is inevitable; that it is for 

 neither party to assert that his construction was the one adopted. 



Lord Hannen. —And then there would be no contract. 



Mr. Phelps. — And then there would be no contract. 



Lord Hannen. — Then we should have to consider it on general prin- 

 ciples. 



The President. — Yes. We might say, as Mr. Adams did to Baron 

 deTuyll, the Treaty would stand for itself. 



Mr. Phelps. — Yes; it stands for itself, but subject to the legal rules 

 of construction. A party cannot fortify himself on the one side any 



