According to the British rule, British merchant vessels can not be converted into men-of-war in any foreign port, for the reason that Great Britain does not admit the right of any power to do this on the high seas. The duty of a neutral to intern or order the immediate departure of belligerent vessels is limited to actual and potential men-of-war, and, in the opinion of His Majesty's Government, there can therefore be no right on the part of neutral Governments to intern British armed merchant vessels, which can not be converted into men-of-war on the high seas, nor to require them to land their guns before proceeding to sea.

On the other hand, the German Government have consistently claimed the right of conversion on the high seas, and His Majesty's Government therefore maintain their claim that vessels which are adapted for conversion and under German rules may be converted into men-of-war on the high seas should be interned in the absence of binding assurances, the responsibility for which must be assumed by the neutral Government concerned, that they shall not be so converted.

I have, etc.,

File No. 763.72111/543.

COLVILLE BARCLAY.

No. 264.]

THE BRITISH CHARGÉ TO THE SECRETARY OF STATE.

BRITISH EMBASSY, Washington, August 12, 1914. SIR: With reference to my notes Nos. 252 and 259 of August 4 and August 9, respectively, stating and explaining the position taken up by His Majesty's Government in regard to the question of armed merchantmen, I have the honor to state that I have now been informed by Sir Edward Grey that exactly similar instructions were at the same time issued by him to His Majesty's representatives in practically all neutral countries to address the same communications to the respective Governments to which they were accredited.

I have, etc.,

File No. 763.72111/85.

COLVILLE BARCLAY.

THE SECRETARY OF STATE TO THE BRITISH CHARGÉ D'AFFAIRES.

DEPARTMENT OF STATE, Washington, August 19, 1914.

SIR: I have the honor to acknowledge the receipt of your communication No. 252 of the 4th inst., which was made to this Government in pursuance of instructions from His Majesty's principal secretary of state for foreign affairs, with respect to the arming of merchant vessels in neutral waters.

The communication states the principles of neutrality, as contained in the treaty signed at Washington on May 8, 1871, by representatives of the United States and Great Britain, and reproduced, as you say, almost textually in Article VIII of The Hague conven

tion, signed October 18, 1907, concerning the rights and duties of neutral powers in case of maritime warfare, the principles of which have been, as you state, agreed to by practically every maritime

power.

The communication next considers the question of conversion of enemy merchantmen on the high seas, a policy which your Government opposes. It is then stated that Germany favors the policy of conversion; that it will probably attempt to use the ports of the United States to equip and dispatch merchantmen for conversion from such ports; and that most of the preliminary arrangements leading to conversion will have to be made within neutral ports before the vessels proceed to the high seas to complete their transformation into vessels of war.

The purpose of the communication is apparently to lay down the principles of law which your Government believe should be applied by the United States in fulfilling its neutral obligations, especially in the matter of conversion of merchant vessels into war vessels, and, assuming these principles to be correct, to tax this Government with damages to British trade or shipping, or injury to British interests generally, if these principles, the correctness of which you assume, are not applied to German merchant vessels " equipped at, or departing from, United States ports."

In acknowledging this communication it does not seem appropriate to enter into any discussion as to what may or what may not be the policy of Germany in the matter of converting its merchant ships which may be within the jurisdiction of the United States into ships of war after they have left American ports and have reached the high seas. The assertion of the right so to convert merchant ships upon the high seas, made by Germany at the second Hague conference and maintained at the London naval conference, does not of itself indicate an intention on the part of the German Government to exercise this right, and this department does not feel justified in its correspondence with foreign Governments to assume, in the absence of specific information, an intention on the part of Germany so to do. The department will, however, carefully examine the facts and circumstances of any particular case when it is called to its attention.

The question of the place where the belligerent right of conversion may be exercised, difficult in itself, is complicated by the fact that there has been a difference of opinion among the maritime States parties to the present war, and that at the conferences to which reference has been made the British delegation stated that there was no rule of international law on the question. Germany and AustriaHungary insisted at the conferences upon the right to convert merchant vessels upon the high seas. France and Russia, allies of Great Britain in the present war, likewise insisted upon the right so to convert. Great Britain and Belgium, intimately associated with France and Russia in the prosecution of hostilities against Germany and Austria-Hungary, opposed the right of conversion on the high seas at the second Hague conference, where both these nations were represented; and at the London naval conference, to which Belgium was not invited, and in which it did not participate, Great Britain maintained its previous attitude. It is thus seen that the right to convert merchant vessels upon the high seas was asserted in interna

tional conferences by four of the maritime countries now at war and that two of the maritime nations now at war opposed this contention. It is further seen that the maritime nations at war with Germany and Austria-Hungary are evenly divided on this question.

At the second Hague conference the British delegation, opposing conversion on the high seas, stated that there was no rule of international law on the question; that in its carefully prepared memorandum presented to the powers invited to the London naval con ference the British Government held that "no general practice of nations has prevailed in the past on this point from which any principles can be deduced and formulated as the established rules of international law. So far as can be ascertained, there are no precedents on the subject."

In the official report of the conference drafted by Mr. Renault it is stated that agreement on conversion upon the high seas was impossible, and in the report of the British delegates to their Government it is said:

66

We were met with a refusal to make any concessions or to abate one jot from the claim to the absolutely unfettered exercise of the right, which its advocates vindicate as a rule forming part of the existing law of nations. In these circumstances we felt that we had no option but to decline to admit the right, and the result is that the question remains an open one."

It is obvious that the subject of conversion must be carefully examined and considered, and in view of these circumstances it is deemed by the Department of State inexpedient to declare a policy as to what measures it will take in a contingency which has not yet arisen, and that it may well content itself, in so far as this matter is concerned, with an acknowledgement of your note.

In the course of your communication it is stated as recognized "that a neutral Government is found to use due diligence to prohibit its subjects or citizens from the building or fitting out to the order of belligerents vessels intended for warlike purposes, and also to prevent the departure of such vessels from its jurisdiction." It is asserted in this connection that "the starting point for the universal recognition of this principle was the three rules formulated in Article VI of the treaty between Great Britain and the United States of America for the amicable settlement of all causes of difference between the two countries, signed at Washington on May 8, 1871." After quoting the Three Rules of Washington, the note thus continues:

"The above rules may be said to have acquired the force of generally recognized rules of international law, and the first of them is reproduced almost textually in Article VIII of The Hague Convention No. 13 of 1907 concerning the rights and duties of neutral powers in case of maritime warfare, the principles of which have been agreed to by practically every maritime State."

As the communication apparently lays great stress on the expression "due diligence," contained in the Treaty of Washington, it is believed material to the present occasion to quote the following definition of it contained in the Geneva award of 1872:

"The due diligence' referred to in the first and third of the said rules ought to be exercised by neutral Governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part."

The expression "due diligence" was contained in the draft submitted by the British delegation to The Second Hague Conference, upon which Article VIII was based. Article VIII as finally adopted is as follows:

"A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations against a power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended. to cruise or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war."

As the expression "due diligence" was considered obscure, it was rejected, as the learned reporter of the convention, Mr. Louis Renault, says in the elaborate report which accompanies the convention, and which is, in accordance with the practice of international conferences, to be considered as the official and authoritative interpretation of the convention which it explains, justifies, and interprets. "The expression of due diligence," he says, "which has become celebrated by its obscurity since its solemn interpretation, was rejected. The convention merely requires in the first instance (On se contente de dire d'abord) that the neutral is bound to employ the means at its disposal then, to display the same vigilance."

* * *

It is to be presumed that Article VIII which "reproduced almost textually" the first rule of the Treaty of Washington, is to be interpreted in the sense in which Mr. Renault's report shows it to have been adopted, especially as Great Britain and the United States have ratified the convention without any objection or reservation as to Article VIII thereof.

It seems obvious therefore that by neither the terms nor the interpretation of the provisions of the treaties on this point is the United States bound to assume the attitude of an insurer. Consequently the United States disclaims as a correct statement of its responsibility the assertion in your note that "His Majesty's Government will accordingly hold the United States Government responsible for any damages to British trade or shipping, or injury to British interests generally, which may be caused by such vessels having been equipped at, or departing from, United States ports."

The United States has always looked upon the Three Rules of Washington as declaratory of international law, and as the necessary and natural consequences of the doctrine of neutrality, proclaimed and enforced by the United States since the wars of the French Revolution, to which Great Britain was a party. The Three Rules can, in the opinion of this Government, only be considered as the starting point of the doctrine of that degree of diligence which a neutral should observe in the sense that its recognition by Great Britain in an important international controversy called marked attention to an existing doctrine, and furnished an incentive to its incorporation and definition in The Hague Convention concerning the rights and duties of neutral powers in case of maritime warfare.

The United States, since the earliest days of its existence, has been as solicitous of its neutral duties as of its neutral rights, and without further consideration of your communication at this time I request you to state to your Government that there is no reason to anticipate that the United States will be less mindful of its duties or of its rights as a neutral in the present case than it has been in the past. I have, etc.,

W. J. BRYAN.

File No. 763.72111/87.

THE SECRETARY OF STATE TO THE BRITISH CHARGÉ.

DEPARTMENT OF STATE, Washington, August 20, 1914.

SIR: I have the honor to acknowledge the receipt of your communication No. 259 of the 9th instant, made to the Department of State under instructions from Sir Edward Grey, in regard to the question of armed merchantmen, informing this Government that a certain number of the British merchant vessels are armed as a precautionary measure for the purpose of defense, and maintaining that such merchant vessels can not be considered as vessels of war or subjected to the treatment properly accorded to vessels of the latter category in neutral ports.

In the last paragraph of this communication you call attention to the right claimed by the German Government, in accordance with its rules, to convert its merchant vessels upon the high seas into vessels of war, and the communication states the contention of the British Government that the neutral Government concerned is taxed. with responsibility if it does not intern such vessels, in the absence of binding assurances that they will not be converted into men-ofwar on the high seas.

The Department of State acknowledges without comment the statement of British policy in such matters and also the British understanding of Germany's intentions and policy, but as to the responsibility of the United States in the premises, you are referred to department's note of the 19th instant replying to your note No. 252 of the 4th instant.

BRITISH EMBASSY, Washington, August 25, 1914.

SIR: With reference to Mr. Barclay's notes Nos. 252 and 259 of the 4th and 9th of August, respectively, fully explaining the posi

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