ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 181 



of their riglit of iiavi.a'atino:, perliai)S including; fishing and whaling, 

 l)erha])s not, at any rate did not include sealing? 



Mr. Phelps. — Yes. 



The President. — And that they fully understood that at the time? 



Mr. Phelps. — Yes; that is our position. 



Senator Morgan. — That is shown by the Ukase of 1799. It takes a 

 l)lain distinction between hunting and fishing. 



Mv. Phelps. — And you will observe, Sir, that they require no recall 

 of this provision in the Ukase of 100 miles of demarcation from the 

 sliore — nothing. This subject is not touched upon — it is not alluded 

 to. The only figure that P>ehring Sea cuts in this whole matter, is on 

 the question of free navigation so as to pass through the straits, with 

 the addition, perhaps, to the word "navigation," of the words, "navi- 

 gation and deep sea fishing," which go together unquestionably. The 

 right of navigation carries the right of fishing, because fishing belongs 

 to navigation in the open sea. 



Mr. Justice Harlan. — The treaty mentions clearly both navigation 

 and fishing. 



Mr. Phelps. — Yes they are mentioned together. What Eussia with- 

 drew from the Ukase of ISlil, as you will see, was nothing but a con- 

 struction which that language justified, and at which these two Powers 

 had taken alarm and its explanation was : "We meant this only as a {)ro- 

 tective measure — we did not mean to shut the sea^ — we did not mean to 

 exclude you from navigation; we shall assert no such right — we are 

 willing to say so in the most formal manner — we intended it as a pro- 



tective regulation " 



The President.— Do you mean to say that the 100 miles exclusion 

 was maintained alter the treaty? 



^Ir. Phelps. — It was left unt<niched in this treaty, and it was not 

 only maintained but these industries were never interfered with in the 

 whole of the sea either within 100 miles or without it, until after 1867. 



Senator Morgan. — But it was negatived as I understand by the 

 right of free navigation to that extent? 



Mr. Phelps. — Xot negatived, Sir, if you will permit me — only an 

 explanation that it was never intended. 



Lord Hannen, — Is it your theory that the 100 mile limit did not 

 come into existence in Behring Sea? 



Mr. Phelps. — So far as the protective measure, jt did my Lord, and 

 of course, consistently with the right of navigation. When you look 

 on the map and lay out 100 miles, it ])asses through the Aleutian chain, 

 and passes through Behring Straits. If you maintain the 100 mile 

 limit you do shut up the sea, and therefore I do not mean to say that 

 it was literally maintained, but that the protective character — the pro- 

 tective force of the Ukase of 18lil, was retained; and as I said yester- 

 day the whole discussion turned out to be, as very frequently is the 

 case, nothing but a misunderstanding. Say Great Britain and America: 

 "You are closing the sea to navigation which is the right of mankind." 

 Says Kussia: "Certainly not; we are protecting our industry." Say 

 Great Britain and America: "We have no wish to interfere with your 

 industries." As I said before if the TTkase had been confined to that 

 in terms, there never would have been any discussion. Then wlien 

 with that construction — that explanation — that renunciation, if you 

 choose to call it so, of the right to interfere with the navigation and to 

 pass through Behring Straits, is coru;eded, the protective force of the 

 ukase of 1821 to protect these industries was allowed to be maintained. 

 The best evidence of that is that as before they had never been inter- 



