186 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



might admit of either of two constructions. One party honestly nnder- 

 stands it one Avay, the otlier understands it the other way. What is 

 the result? That provision of the contract fails. Whether that would 

 carry with it, in the estimation of a Court of Justice, the setting aside 

 of the whole coutractj doi)en(ls altogether on the place and importance 

 of that feature in it. It might or might not; but to that extent there 

 is not a contract. 



Lord Hannen. — Upon that hypothesis, our answer to the question 

 ought to be, " We do not understand." 



Mr. Phelps. — By no means, my Lord. The answer must be in 

 the negative, because if the language does not include it, it does not 

 include it. 



The President. — The question is, whether the language includes it 

 or excludes it. 



Mr. Phelps. — I quite agree. Kow on another branch of the case, I 

 quite agree, as I have endeavoured to point out, that the language 

 includes Behring Sea. I further insist that, whether the language does 

 or not, the parties to it understood or intended the language. But I 

 am now on the extreme hypothesis that, if neither the terms of the 

 Treaty, nor any understanding or intention of the parties that was con- 

 current, make it operative, then, we are left where you would be left in 

 a private contract. 



Lord Hannen. — I cannot forbear from saying that you have not 

 referred to sbsequent passages in the Counter projet in which in effect 

 it distinctly says that Behring Straits and the Pacific Ocean extends 

 up to the Behring Straits. 



Mr. Phelps. — I have not read those passages. 



Lord Hannen. — I have called your attention to it before, or Mr. Car- 

 ter's. It appears to me — I may be taking a mistaken view of it — that 

 it is conclusive. It distinctly draws a disthiction between the Pacitic 

 Ocean and the Frozen Ocean — I mean as co terminous. 



Mr. Phelps. — But still you do not avoid the difficulty that half a 

 dozen plain English words that would have settled that question were 

 I)roposed on the one side and refused on the other. 



Lord Hannen. — That is begging the question. If there were words 

 that carried that meaning it was not necessary to insist on it, if the 

 Kussians by what they said plainly intimated that they understood 

 that the Pacific Ocean extended up to Behring Straits. 



Mr. Phelps. — Yes, but we still do not get over the point that not- 

 withstanding this subsequent provision which was in the original projet 

 as well — notwithstanding that they thought it material (as it seems to 

 me that anybody who cared about that feature must think it material) 

 to put in the very words that determine this question. And it was 

 thought material on the other side to refuse. Now it would neither 

 liave been demanded or refused if the Treaty, in its other terms, had 

 contained language to the same effect. If it had been declined it would 

 have been said : " We have already said so ; we need not say it again ". 

 You find the one Government insisting on that language; you find the 

 other Government declining to adopt it; and you find my friends now 

 insisting that the Treaty should read as if those words were put in, 

 which were refused to be put in. 



Senator Morgan. — But which is the Frozen Ocean? 



Mr. Phelps. — It is the Arctic Ocean — Behring Straits. 



Senator Morgan. — Have they said so. Who is giving that defini- 

 tion to it? 



Mr. Phelps. — I suppose it is a general definition. 



