Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1912

File No. 812.113/291.

The Attorney General to the President.¹

Office of the Attorney General,
Washington, March 25, 1912.

Dear Mr. President: You have referred to me some correspondence with the Acting Secretary of State regarding the practical interpretation to be given to the prohibition contained in the joint resolution of Congress passed March 14, 1912, and the proclamation issued by you in pursuance thereof making it unlawful to export, except under such limitations and exceptions as the President shall prescribe, any arms or munitions of war from any place in the United States to any American country in which conditions of domestic violence are found by the President to exist, etc.

You ask my opinion as to the proper interpretation to be given to the words “arms or munitions of war.” There is no dispute as to the meaning of the word “arms,” but a question arises as to the precise import of the phrase “munitions of war.” The word “munition” is defined in Skeat’s Etymological Dictionary as “materials used in war.” It is derived from the verb munire, to fortify, and perhaps its nearest antecedent is munitionem—the accusative of munitio: a blockading, defending, or securing; hence its analogy to ammunition, store for defense. Accordingly the Standard Dictionary defines it as “ammunition and all necessary raw material, including stores of every kind; all requisites for warfare exclusive of money and men.” The Century Dictionary and Cyclopedia defines it as “materials used in war for defense or for attack; war material, military stores of all kinds; ammunition, provision.” Webster’s International Dictionary, as “whatever materials are used in war for defense or for annoying an enemy; ammunition; also stores and provisions; military stores of all kinds; hence necessary equipment or provision in general.”

Although many of these definitions embrace in the definition of the word munition not only materials for attack or defense, but stores or provisions, a distinction is drawn by the writers on international law between munitions of war proper and those articles which from their particular use may become munitions of war. The phrase is used in connection with definitions of the term “contraband of war.” Articles which are contraband of war have been classed under two heads:

Those that are primarily and ordinarily used for military purposes in time of war—e. g., arms and munitions of war, military material, etc.—articles of this kind being usually described as absolutely contraband. (7 Moore’s Digest, 666.)

In the instructions given by Mr. Cass, Secretary of State, to Mr. Mason, Minister to France, in June, 1859, speaking of the term “contraband of war,” Mr. Cass wrote:

“Some of the later and approved writers upon the law of nations, such as Hautefeuille and Ortolan * * * and the former particularly, confine the list”—of contraband of war—“to objects of first necessity for war, and which are exclusively useful in its prosecution, and which can be directly employed for that purpose without undergoing any change—that is to say, to arms and munitions of war.” (7 Moore’s Digest, 661.)

Among articles absolutely contraband, according to the orders of the Navy Department, given June 20, 1898, are “ordnance, machine guns, and other articles of military or naval warfare.” Among those conditionally contraband are coal, “when destined for a naval station, a port of call, or ship or ships of the enemy,” and provisions “when destined for the enemy’s ship or ships or for a place that is besieged.” (7 Moore’s Digest, 687.)

Articles which, like arms and ammunition, are, by their nature, of self-evident warlike use, are contraband of war if destined to enemy territory. (Mr. Hay to Minister McCormick, August 17, 1904, 7 Moore’s Digest, 692.)

Ortolan considers “que les armes et instruments de guerre quelconques, et les munitions de toute sorte servant directement à l’usage de ces armes, sont les seuls objets qui soient généralement et nécessairement contrebancle de guerre * * *.” (3 Hall Int. Law, 649.)

“L’idee de la contrebande,” says Heffter (le Droit, 160), “est une idee complexe, variable selon les temps et les circonstances, et qu’il est difficile de déterminer d’une manière absolue et constante * * *, D’après les usages internationaux universels, la contrebande est exclusivement limitée aux armes, utensiles et munitions de guerre, en d’autres termes aux objets façonnés ct fabriqués exclusivement pour servir dans la guerre, non pas aux matières premieres proprés a la fabrication de objets prohibés * * *.” (3 Hall, 649.)

Lord Lansdowne, in writing to Lord Hardinge in August, 1904, refers to the first class of articles contraband of war as—

Those that are primarily and ordinarily used for military purposes in time of war—e. g., arms and munitions of war, military material, etc.—articles of this kind being usually described as absolutely contraband. (7 Moore’s Digest, 666.)

At the international conference held in London during the winter of 1908–9 a list of articles which without notice may be treated as absolutely contraband was prepared, as follows:

1. Arms of all kinds, including arms for sporting purposes, and their distinctive component parts.

2. Projectiles, charges, and cartridges of all kinds and their distinctive component parts.

3. Powder and explosives specially prepared for use in war.

4. Gun mountings, limber boxes, limbers, military wagons, field forges, and their distinctive component parts.

5. Clothing and equipment of a distinctively military character.

6. All kinds of harness of a distinctively military character.

7. Saddle, draft, and pack animals suitable for use in war.

8. Articles of camp equipment and their distinctive component parts.

9. Armor plates.

10. Warships, including boats, and their distinctive component parts of such a nature that they can only be used on a vessel of war.

11. Implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war material for use on land or sea.

This list includes substantially all of the articles which may be considered as absolutely within the definition of “arms and munitions of war.”

Food and clothing may become contraband of war when destined to a port of naval equipment or an enemy, or for the supply of his army (7 Moore’s Digest, 679); but they are classed as conditionally contraband and not as absolutely contraband, and do not fall within the usual definition of arms and munitions of war. The case of United States v. Sheldon (2 Wheaton, 119), which is sometimes cited in support of the inclusion of provisions with other articles under the definition of munitions of war, turned upon a statute which prohibited the transportation of “naval or military stores, arms or munitions of war, or any articles of provision from the United States to Canada,” etc.

The substance of the joint resolution of Congress itself emphasizes the construction which is here suggested of the phrase in question. It provides that whenever the President shall find that in any American country conditions of domestic violence exist which are promoted by the use of arms or munitions of war procured from the United States, he may, by proclamation, make it unlawful to export arms or munitions of war. Therefore, it is such arms or munitions of war as are used in promoting conditions of domestic violence the export of which is forbidden; that is to say, weapons used for the destruction of life, together with ammunition and equipment useful in connection with them, and explosives and other equipment of a military character, or articles used for the construction of such equipment. These are the things the use of which promotes conditions of domestic violence and the export of which the President’s proclamation is intended to prohibit.

As a practical working definition for the use of the officials on the border, without embracing all of the items enumerated in the first list adopted at the conference of London, I suggest the following as embracing all that is within the practical purpose which the joint resolution and the proclamation are intended to accomplish, namely:

Articles primarily and ordinarily used for military purposes in time of war, such as weapons of every species used for the destruction of life, and projectiles, cartridges, ammunition of all sorts, and other supplies used or useful in connection therewith, including parts used for the repair, or manufacture of such arms, and raw material employed in the manufacture of such ammunition; also dynamite, nitroglycerin, or other explosive substances; also gun mountings, limber boxes, limbers, military wagons; field forges and their component parts, comprising equipment of a distinctively military character; articles of camp equipment and their distinctive component parts; and implements manufactured exclusively for the manufacture of implements of war, or for the manufacture or repair of arms or war materials.

Foodstuffs, ordinary clothing, and ordinary articles of peaceful commerce are not included in the prohibition.

I am transmitting this definition to the Departments of State, War, and the Treasury.

Respectfully,

Geo. W. Wickersham.

1. This opinion of the Attorney General was adopted by the Department of State, and the last two paragraphs were quoted textually by the Department in answering inquiries for a definition of “munitions of war” under the President’s proclamation of Mar. 14, 1912.