INTRODUCTION xlix 



The special agreement required careful consideration and much 

 negotiation, for Great Britain was really appearing more on behalf of 

 its colonies than in its own behalf, because the colonies were primarily 

 interested in the arbitration. It was therefore advisable, if not neces- 

 sary, that each question proposed for arbitration should be submitted 

 to the colonies interested — namely, Newfoundland and the Dominion of 

 Canada — in order to receive in advance the stamp of their approval. 

 Certain questions (2, 6, and 7) were submitted at the express request 

 and instance of Newfoundland. The diflSculties in the way of the 

 agreement were, however, overcome, and on January 27, 1909, Secretary 

 Root and Ambassador Bryce had the great satisfaction, on behalf of 

 their respective governments, to sign the special agreement submitting 

 the fisheries dispute to arbitration. 



In framing a case for submission to arbitration two problems 

 invariably confront the negotiators; namely, what shall be included in 

 the submission, and what shall be excluded from the submission. Either 

 question is difBcult. In the present instance it was agreed that "no 

 question as to the Bay of Fundy, considered as a whole apart from its 

 bays or creeks, or as to innocent passage through the Gut of Canso, is 

 included in this question as one to be raised in the present arbitration, 

 it being the intention of the parties that their respective views or 

 contentions shall be in no wise prejudiced by anything in the present 

 arbitration." ^ 



The admission of American fishermen within the Bay of Fundy had 

 been granted by Great Britain as a concession, not as a matter of 

 right, and as the concession is undisputed it was unnecessary to arbi- 

 trate the point. Should the American view prevail in the matter of 

 the measurement of bays, the situation as regards the Bay of Fundy 

 would be unchanged, whereas if the American contention should be 

 rejected, American fishermen might lose the rights they had previously 

 enjoyed. It was, therefore, decided by the negotiators, no doubt wisely, 

 to omit the question altogether from arbitration, and the agreement to 

 omit the Bay of Fundy and the Gut of Canso is evidenced by notes 

 dated January 29, 1909, between Secretary Bacon (Mr. Root's suc- 

 cessor) and Mr. Bryce; by the action of the Senate, which, in ratifying 

 the agreement of Jan. 27, 1909, expressly excluded the Bay of Fundy 

 and the Gut of Canso, and by the notes of Messrs. Bacon and Bryce, 

 dated Ma,rch 4, 1909. 



The first article of the agreement enumerates the questions 

 which Great Britain and the United States agreed to arbitrate. Briefly 



' Mr. Bryce's note to Mr. Bacon, dated March 4, 1909; Appendix, U. S. Case, Vol. I, p. 10. 



