180 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



rijilit to navigate liere through Behriiig Straits? She obtained it 

 because she liad never lost it. Slie refused to aceept it as a boou from 

 Ivussia; she refused to say, "We will aceept as a graut, a giltfrom Russia, 

 a right to navigate this Sea; we insist upon having the pretensions to 

 interfere with that right withdrawn. We do not care that they should 

 be withdrawn formally if that should be humiliating to our friend and 

 ally; but we want to be satisfied that it is out of the way." The Kepre- 

 sentatives irere satisfied that it was yut of the way, and they were 

 apprised that the Treaty of 1824 between Great Britain and Eussia did 

 not touch that question at all. As my associate suggests to me, the 

 United States had accepted these renunciations, when they went forward 

 with the negotiation ; they had acce[)ted these renunciations of any such 

 construction of the Ukase of 1821 as they had taken alarm at. They 

 made the Treaty; and wlien Great Britain adopts the language of that 

 Treaty, she is apprised distinctly tliat the United States had accepted 

 those renunciations, and that the Treaty they had then executed was not 

 understood as containing the reference to this subject which is now 

 here insisted upon. 



The Pei:sident. — Mr. Phelps, I am sorry to interrupt yon so often. 



Mr. Phelps. — I assure you, Sir, it is not the least interruption. I 

 am only too happy to be asked a question. 



Tbe President. — I suppose this subsequent declaration of virtual, 

 if not expressed renoaiicement would be in the allusion to the circular 

 ■of Count I^esselrode of October 21, which is ])rinted at page 3, and 

 which has been sent to all the Governnients; and being a circular, it 

 had the authority of the general declaiation of the liussian Govern- 

 ment. I suppose that in your opinion, the Governments both of the 

 United States and (jreat Britain nuxy have construed this circular as 

 admitting of their right of navigating freely through Behring Straits, 

 and conseijuently through Behring Sea. 



Mr. Phelps. — Yes. 



The President. — And consequently would not imply the right of 

 fishing on the way. 



Mr. Phelps. — Yes, fishing is one thing. 



The President. — Well, sealing on the way. 



Mr. Phelps. — That is another thing. 



The President. — Or whaling on the way. 



Mr. Phelps. — Yes, whaling may be regarded as fishing, I do not go 

 into that. It is not in disi)ute. 



The President. — No, it is an analogy. 



Mr. Phelps. — It is an anah)gy, but we have never insisted upon our 

 having the right to preclude fishing generally at a distance from laud. 

 We saw what the law was regarded to be, in respect to the Newfound- 

 land fisheries, at that time. Whether it Mould be the law at this time 

 is a different question, and dei)ending on different considerations. If 

 it was important to go into the question whether the right of naviga- 

 tion may carry with it the right of what is called fishing-, that is to say, 

 capturing those fish which are the denizens of the open sea, that are 

 attached to no territory, and are in no sense the subject of property 

 that nuxy be well enough conceded ; we have not controverted that here, 

 and if there is no distinction between the case of the seals and the case 

 of the fish in the open sea, then there is very little in the claim to a 

 pro]»erty or a right of protection in the open sea. 



The President. — What I wish to ascertain is this: that your c(ni- 

 struclion is that both Governments, the United States and the Great 

 Britain, fully understood and admitted that the concession by llussia 



