184 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



the sea into Beliring Straits, why yon ])erceive, if that view of it is 

 correct, that it does not militate a,y'ainst our proposition that the pos- 

 session and occu])ation of Itussia has been absolutely unbroken; and 

 to make it bear upon that you must endeavor to put a construction 

 u])on ambijjuous language which will make it read as the parties did 

 I'ot understand or intend that it should read (because they were not 

 disputing upon that point), in such a way as to say: "You may come 

 in here and- take the fur-seal in Behring Sea". If it does not say that, 

 it says nothing that is pertinent to this case — it does not touch this 

 case. If the Treaties of 1824 and 1825 do not say in their legal effect: 

 "It shall be lawlul for the citizens of the United States and Great 

 Britain to come into Behring Sea and destroy the fur-bearing ani- 

 mals," — if it does not say that, it does not touch this case at all, and it 

 is no matter then what it doi^s say, for our purpose. 



It is therefore the question: Can you put into the language of that 

 Treaty those words, — that is to say by linding general terms in the 

 Treaty that mean that — that express that: Can you find an acknowl- 

 edgment in that Treaty that the pursuit of these fur-bearing animals 

 was open to the citizens of these two countries or open to any one 

 without liussian permission? 



If you can, then yon find that our uninterrupted possession of a 

 century, in our grantors, is broken to that extent. If you cannot, then 

 the Ukase of 1§21 and the Treaties of 1824 and 1825 disappear out of 

 this case, and have no relation whatever to this controversy. Well, 

 now, if you can import into this Treaty language that has the legal 

 effect of conceding that right, it is only, at the utmost, by finding tliat 

 Behring Sea for all general purposes that are covered by the first 

 Article of this Treaty, is included within the "Pacific Ocean". 



When you come to look at the language of the Treaty, you find that 

 the language does not justify it. If the parties choose to use language 

 and take their risk as to what that meant, that risk is determined when 

 you find out what it did mean. If you go further than that and say: 

 "The language is ambiguous and therefore we must find out from other 

 evidence, proper to be considered, what the parties meant by it", then 

 you find out in the first place what America and Russia agreed that 

 they meant by it. You find that that construction was conveyed to the 

 British Government six months before their Treaty, so that in adopting, 

 in terms, as they did, the provisions of the American Treaty, they 

 adopted the construction which the parties had put upon it; and the 

 suggestion of his Lordship to me that the rule would not apply if Great 

 Britain and Russia had a different construction, or if Russia made 

 Great Britain understand that the construction was different, does not 

 arise, because it is exactly the other way. — Instead of Great Britain 

 being made to understand, or left to understand, that Russia put a dif- 

 ferent construction from tliat which it had with America, the contrary 

 is conveyed; and they adopt the American Treaty with a knowledge 

 of the construction it contained. 



I respectfully submit that this long discussion and this interminable 

 correspondence, comes down to that, and it is all that it has to do with 

 this case. With other purposes, and for other i)urposes it had its 

 place — its importance — which has long passed away, and is now only 

 historical. The question is whether it touches the case we have now 

 before us? It does touch this case somewhat— not very fatally — if you 

 can say that it interrupts the uniform i^ossession of Russia of this seal 

 industrj^ from the discovery down to the cession. 



