ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 133 



tliat we eonld relievo Mr. Adams or tlie American Government from 

 the imi.'utatioii of bad faith if they then believed that tlse Treaty bore 

 a different construction than tljat and did not frankly say so to Baron 

 Tuyll. Baron Tnyll took the advice and acted upon it. lie said: "I 

 will not tile this note until the Treaty is ratified, and even then I will 

 not unless my Government tell me to do so." He waited, and his (Jov- 

 ernment directed him to file liis note, and he did — he filed a note which 

 explicitly stated his interpretation. That note icas never nnsirered. 

 Now, if the American Government was ever at any time to dispute the 

 interpretation thus put upon the Treaty, then was the time for them to 

 do it, and if they did not do it then, they would be precluded after- 

 wards from doing so. I cannot help thinking, therefore, that this 

 transaction, subsequent to the actual conclusion of the Treaty, but 

 before its ratification, is conclnsive as to the interpretation of the 

 Treaty suggested by the llussian Government ami now insisted upon 

 by the United States. 



The President. Don't you think the silence of Mr. Adams was 

 rather significant'? Was it not rather unusual not to answer a written 

 comiiiuuication'? 



Mr. Carter. It was sigJiificant in the way I have stated. It said to 

 Baron Tuyll: "It is not the province of the Executive part of the 

 Government of whicli I am a representative to put a construction upon 

 this Treaty. If I should give you a construction, it would not be bind- 

 ing; for at some other time it might become a (question, and tlie 

 Supreme Court of the United States would be alone competent to 

 decide it." But he goes on to encourage him to take no step to settle 

 the point; and that, I must confess, would be astonishing on tlie part 

 of Mr. Adams, if he thought that at any time the American Govern- 

 ment would set up a different interpretation. 



The President. Did not the silence of Mr. Adams leave it upon 

 technical grounds'? 



Mr. Carter. Yes. But it is a question of candor among the repre- 

 sentatives of two great nations approaching each other in that way. 



Mr. Adams did not put liimself upon tliis ground and say: "You 

 inust not interpret my language, or my silence, beyond what it may 

 directly import."' He did not put Baron Tuyll upon his guard at all. 

 That attitude was not consistent with good faith on the part of Mr. 

 Adams, if he did not feel satisfied with the suggested interpretation 

 and thought that a diflerent one would at any time be set up. 



So much for the American Treaty. But that does not interpret the 

 British Treaty, and it is to that that the attention of the Tribunal is 

 more immediately directed. The language of this latter, although not 

 precisely, is substantially, the same; and in the first Article of that 

 Treaty, found on page o9 of the first volume of the American Appendix — 



Mr. Justice Harlan. The word "Grand" should a])i)ear before 

 "Ocean." 



Mr. Carter. I have no other evidence of what the text should be 

 than the American original; it is as it is here, for aught I know. 



Mr. Justice Harlan. There was a Treaty in English'? 



Mr, Carter. Yes. (quoting): 



It is agreed that, in any part of tlie Great Ocean, commonly called the Pacific 

 Ocean, or South Sea, the respective citizens or subjects of the high contrac^tiug 

 Powers shall be neither disturljed nor restrained, either in na\'igatiou or in lishing, 

 or in the power of resorting to the cotists, iipon points which may not already liave 

 been occupied, for the purpose of trading with the natives, saving always the 

 restrictions and conditions determined by the following articles. 



