ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 187 



Senator Morgan. — You Lave taken it for granted that the " Frozen 

 Ocean" means the Arctic Ocean, and forgotten that Beliring Sea is 

 frozen for more than half the year? 



Mr, Phelps. — I have assumed that to be a definition ; I do not vouch 

 for its accuracy of coarse. 



The President. — It has not been contended as yet thafcBehring Sea 

 was part of the Frozen Ocean — I have never seen that. 



Sir Charles Russell. — No. 



Senator Morgan. — I do not know anything about contentions. I was 

 trying to get some information about it. The term is used tliere; I do 

 not know who has the right to define it. 



Mr. Phelps. — I had rather assumed that meaning, but without any 

 authority of course to ascribe it. 



The President. — You would not include Behring Sea in the Frozen 

 Ocean ? 



Mr. Phelps. — That had not been my construction of it, but of course 

 it was not a point to which I had given special consideration. 



Senator Morgan. — There are only two oceans there — one is the 

 Frozen Ocean, and tfie other is the Pacific Ocean, and the line of demar- 

 cation between those two Oceans might jnst as naturally run through 

 Behring Sea as it would south of the Aleutian range. 



Mr. Phelps. — It might be so undoubtedly; but you are asked to read 

 this Treaty as if the words had been in that were proposed to be put in, 

 and were left out, and there is not any escape from that, and there is 

 no ingenious reading of the other provisions of the Treaty that will 

 escape it. You may add a new ambiguity and you may argue with 

 ever so much ingenuity that the ambiguity is to have a i)articnlar con- 

 struction, but you cannot escape the conclusive fact that the few words 

 that would have settled the question were proposed on one side and 

 rejected on the other. May I ask, Lord Hanuen, to what provisions in 

 the subsequent draft or treaty he refers to as determining this. 



Lord Hannen. — In the Sixth Article of the Kussian Counter projet 

 (at page 70 of the 2nd British Api)endix) the Emperor of Russia con- 

 sents that the liberty of navigation mentioned in the preceding Arti- 

 cle — that is the navigation throughout the whole extent of the Pacific 

 Ocean which j^ou refer to. Ue consents that the liberty of navigation 

 extends under the same conditions to Behring Straits and to the seas 

 situated to the north of that strait. And then it goes on — " all Russian 

 and British vessels navigating the Pacific Ocean and the sea above 

 mentioned", which is the Sea beyond Behring Strait — if they are forced 

 by tempest shall have the right of refuge. Now if the Pacific 0(;ean 

 does not include Behring Sea, then the provision is that they shall have 

 the right of refuge down below the Aleutians, and in what 1 have called 

 the Frozen Ocean; but that there is no provision for their having any 

 right of refuge in Behring Sea. 



Mr. Justice Harlan. — Before you answer Lord Hannen, let me ask 

 you a question in that connection so as not to interrupt you. I have 

 not the English translation of this Treaty here and that is the reason 

 I ask you. 1 notice in Article VI, there is the word "navigation". 

 Can you tell me whether, in the previous Article of this Russian i)r<)jet 

 there is any allusion (in addition to navigation) to tisliingand trading? 



Lord Hannen. — Yes, there is a good deal about trading. 



Mr. Justice Harlan. — What I want to get at is: Do you lay any 

 stress, and how much, on the fact that whereas some previous Articles 

 refer to fishing and trading, besides navigation, Article VI that Lord 

 Hannen just read seems to refer to navigation only? 



