ORAL AKGUME2^T OP HON. EDWARD J. PHELPS. 179 



more than on the other by adopting- language that is confessedly am- 

 biguous. It leaves the Treaty just where it would Iiavo been lett if tliey 

 had said in terms in it, " We refrain from settling this point," or " We 

 leave this point open." 



Senator Morgan. — Might I ask you a question, Mr. Phelps ? I under- 

 stand that the fringe of sea round the border of a country to the extent 

 of the 3-mile limit is mare clausmn at the option of that country; but 

 has it ever been held that withiu that limit the right of innocent or free 

 navigation wonld be or could be under international law denied to any 

 ship or vessel of any foreign country unless the country to whom that 

 border of sea belonged should prohibit it. 



Mr. Phelps. — No, Sir; neither do I understand that the country to 

 which that territory or littoral sea belongs can prohibit merely innocent 

 navigation. 



The President. — No, you said so yesterday. 



Senator Morgan. — And the right of free navigation stands above 

 every other right in international law; and that is the view that these 

 nations had of free navigation when they were making these Treaties. 



Mr. Phelps. — That is true. There is no power in any nation that I 

 know of to prevent harmless and innocent navigation in a littoral sea, 

 or within the three miles or cannon-shot distance. The only restrictions 

 are those necessary to the accomplishment of some interest or some good 

 purpose, of which the nation is larg-ely its own judge; but Lord Chief 

 Justice Cockburn, asyou will remember, uses very strong language about 

 that, and he says the proposition to exclude innocent navigation even 

 in the three-mile limit is not to bethought of, and I think all authorities 

 concur on that point. 



Now, the questions of the President and of Lord Hannen have drawn 

 me somewhat into hypothetical instances. I do not, for a moment, 

 concede that Great Britain stood in a position where it could have any 

 reservation on the construction of this Ti-eaty, because the understand- 

 ing that took place between Russia and America as to the effect of the 

 American Treaty was comnumicated to the British Government more 

 than a year, or almost a year, before. That is found in the Addington 

 letter that I have referred to, and I go back to it to call attention to its 

 date, August the 2nd 1824. It is on page 6(3 of the same book that I 

 have been reading from. That Treaty was signed the 28th of February 

 the next year. In that document the British Kepresentative communi- 

 cates to his Government from the highest authority, that is the American 

 Secretary of State, what the understanding of tlie construction of that 

 Treaty was, so that six months after, they adopted it v/ ith the knowledge 

 that the construction i)ut upon it by those parties was such as is here 

 exjjressed. How can any party to a contract, whether it is a nation 6v 

 an individual, reserve the riglit in accepting a contract with tiie knowl- 

 edge of the understanding that the other party has of it, to repudiate 

 that understanding where the language is ambiguous. 



Lord Hannen. — I do not see where you get from Mr. Addington's 

 letter a knowledge of the construction put ui>on the words by the United 

 States? 



Mr. Phelps. — Only generally, when he says in the language I have 

 read. 



The question of the mare clausnnt, the sovereignty over which was asserted by the 

 Emperor of Russia in his celebrated Ukase of 1821, but virtually, if not expressly, 

 renounced by a subsequent declaration of that Sovereij^n, has, Mr. Adams assures 

 me, not been touched upon in tlie above-mentioned Treaty. 



And that is in reply to the enquiry of the learned President to me; 

 but, under what language, and iu what way did Great Britain obtain the 



