File No. 812.113/3777.

The Attorney General to the Secretary of State.

Sir: I acknowledge receipt of yours of the 4th requesting an opinion with reference to the interpretation to be put on the term “munitions of war” as used in the President’s proclamation of October 19, 1915, prohibiting the exportation of such munitions into Mexico. The request involves a reconsideration of several former expressions of opinion by the Attorney General.

Your first question is—

Can empty cars belonging to the National Railway of Mexico, or to other Mexican railways, brought over from Juarez, be detained at El Paso as munitions of war? These cars, if allowed to return, would afford convenient transportation to the parties in rebellion against the recognized de facto government of Mexico.

From the above I understand that these cars are ordinary railroad cars, owned by private corporations, and are not being claimed or used by armed forces operating against the de facto government of Mexico, but that they might be so used for transportation purposes in case they were allowed to return. They do not appear to be of a type adapted only to military use; or to have been collected in such [Page 784]a way as to indicate that they were intended for military purposes alone, or for military purposes at all; or to be destined to a military depot or organization of the parties in rebellion against the recognized de facto government of Mexico.

I am of the opinion that these cars do not constitute munitions of war, and I therefore answer your first question in the negative. The cases of United States v. Barber, 9 Cranch, 243, and United States v. Sheldon, 2 Wheat., 119, should not be treated as expanding the meaning of the phrase “munitions of war.” In both of these cases the statute under consideration forbade the transportation to Canada of “naval or military stores, arms or munitions of war, or any article of provision” In the first case referred to, the Court certified its opinion that fat cattle were provisions or munitions of war within the true intent and meaning of the Act. In the second case the Court expressed the opinion that the cattle were “articles of provision and munitions of war.” In either case it was sufficient to find that the cattle were articles of provision. Neither decision discusses the general scope of the phrase “munitions of war” and neither can be fairly treated as fixing an interpretation of that phrase.

Your second question is—

Can coal and coke destined for use by any faction in rebellion against the de facto government of Mexico, or for use in the territory of the rebellious faction and which could therefore be easily requisitioned by it, be classed as munitions of war? Such coal would be used to operate trains in the military movements of those in revolt against the de facto government, and the coke would be used to operate American-owned smelters which would probably be damaged beyond repair because of the inexperience of the revolutionary operatives.

The original Joint Resolution of April 22, 1898 (30 Stat. 739), of which the Joint Resolution of March 14, 1912, was an amendment, prohibited the export “of coal or other material used in war from any seaport of the United States”; and in the debates (see 55th Cong., 2d Sess., Vol. 31, pp. 41–46 et seq.) in the Senate, the phrase “other materials used in war” was apparently deemed to by synonymous with “munitions of war.” See the following colloquy in the Senate:

  • Mr. Caffery. I inquire of the Senator from Connecticut whether it could not specify the articles the exportation of which shall be prohibited?
  • Mr. Hawley. It would be very difficult. There might have been something more of description, but it is impossible to go into the minute description of fulminates and percussion caps and primers and ramrods.
  • Mr. Caffery. Suppose we say, “Coal and munitions of war.”
  • Mr. Jones of Arkansas. It does practically now.
  • Mr. Caffery. Then I should be satisfied with it.
  • Mr. Chandler. I suppose it is well known what war material is. It seems to me that discretion may be safely left to the President.
  • Mr. Caffery. Does the joint resolution say “war material”?
  • Mr. Chandler. Materials used for war.
  • Mr. Hawley. For war.
  • Mr. Caffery. Then I have nothing more to say.

When the Joint Resolution of 1912 was under consideration in the Senate (see Cong. Rec. 62d Cong., 2d Sess., Vol. 48, pp. 3257–3258), Mr. Root stated: [Page 785]

  • Mr. Root. This joint resolution eliminates coal. It does not apply to anything except arms and munitions of war.
  • Mr. Shively. It really narrows the joint resolution that is the existing law.
  • Mr. Lodge. The existing law is broader than the joint resolution under consideration. The existing law covers coal specifically.
  • Mr. Chilton. That is why I asked the question.
  • Mr. Root. The existing law is narrowed in every respect but one; and that is, it is applied not only to exportations from seaports, but from inland places.

From the above, it is evident that coal was not intended to be included, and I therefore answer your second question in the negative.

Your third question is whether—

“* * * there is any authority of law that could be invoked to prohibit” the importation of cattle and other live stock from “territory occupied by the revolutionists, the proceeds of which would be used to continue revolutionary activities.”

You state that this ruling is desired to cover confiscated or stolen live stock or stock that is shipped by, or in the interest of, those involved in the continuance of revolutionary conditions in the Republic of Mexico. I know of no present authority of law (other than the quarantine act) under which the importation of this live stock could be forbidden. The real owners could, of course, assert their rights to it in the courts which acquired jurisdiction over the property.

Respectfully,

T. W. Gregory.