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“ 5. Clothing and equipment of distinctively military character.

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

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


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“ 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 ex

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port 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 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 material.

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,




The Postmaster General has no authority to arrange a special

parcel-post service or to conclude arrangements for money-order exchanges with the Philippine Islands under the power conferred

upon him by sections 398 and 4028 of the Revised Statutes. The power to negotiate and conclude money-order and parcel-post

conventions or agreements with foreign governments, which shall cover the mail and money-order service between the Philippine Islands and such foreign governments, resides, not in the Postmaster General, but in the government of the Philippine Islands.


March 29, 1912. Sir: I have the honor to acknowledge the receipt of your letter of November 22 last, submitting to me for an opinion two questions involving the relation of your department to the postal administration of the Philippine Islands.

Your first question is as to your right, under section 398 of the Revised Statutes, to arrange a special parcel-post service with the Philippine Islands providing, for example, for an 11-pound maximum weight limit, instead of the 4-pound maximum specified by law as to the domestic service.

Section 398 of the Revised Statutes is as follows:

“ SEC. 398. For the purpose of making better postal arrangements with foreign countries, or to counteract their adverse measures affecting our postal intercourse with them, the Postmaster General, by and with the advice and consent of the President, may negotiate and conclude postal treaties or conventions, and may reduce or increase the rates of postage on mail-matter conveyed between the United States and foreign countries.”

You also call my attention to section 4028, Revised Statutes, which authorizes the Postmaster General to conclude arrangements for money-order exchanges “ with the post departments of foreign Governments, with which postal conventions have been, or may be, concluded.”

It is settled by the decision in De Lima v. Bidwell, 182 U. S. 1, that the Philippine Islands are not a “ foreign country” nor is its government a “foreign Government

within the ordinary meaning of those words in statutes of the United States. It is therefore clear that Revised Statute 398 and Revised Statute 4028, supra, do not have reference to postal arrangements between the Postmaster General and the postal authorities of the Philippine Islands. Presumably such postal intercourse must be regulated as is the domestic postal service, at any rate to the extent of conforming therein to any specific provisions of law regulating such domestic service.

Your second question concerns your right to make postal or money-order conventions with foreign Governments which shall cover the mail and money-order service between the Philippine Islands and such foreign Governments.

It appears that the Secretary of War has ruled that the Philippine government has the jurisdiction to conclude conventions with foreign Governments as to postal matters, as well as to money orders, when they relate to the Philippine Islands solely, this power being incidental to its control, by virtue of the organic act of July 1, 1902, of its own domestic postal service.

The determination of this question is not free from difficulty. The power of the Postmaster General to enter irto conventions relating to postal service or money orders with foreign countries, whether involving the Philippine Islands or not, must be derived from sections 398 and 4028 Revised Statutes, supra. In 19 Op. 513, Solicitor General Taft, with the approval of Attorney General Miller, held that these sections did not involve the treatymaking power, but, by long usage, had been placed outside it. He said (p. 520):

“ From the foundation of the Government to the present day, then, the Constitution has been interpreted to mean that the power vested in the President to make treaties, with the concurrence of two-thirds of the Senate, does not exclude the right of Congress to vest in the Postmaster General power to conclude conventions with foreign Governments for the cheaper, safer, and more convenient carriage of foreign mails. The existence of such

a power in Congress may, perhaps, be worked out from the authority given to that body in the seventh clause of section 8, of Article I, of the Constitution, to establish post offices and post roads. This has always been construed to mean power to organize and carry on the Post Office Department. Foreign mail is so closely connected with a proper system of inland mail as that the power to organize and carry on a general post-office system would seem to imply a power to organize, in connection therewith, a system of foreign mails, and, in the maintenance of such a system, a power to conclude contracts with the post-office departments of other countries.”

I believe this view, that the right to conclude conventions with foreign countries as to mails and money-order exchanges is incidental to the power to establish post offices and post roads, to be sound. No doubt the same ends could be constitutionally accomplished by the exercise of the treaty-making power, but, as that power has only once been employed for that purpose (19 Op. 517, 518), and as the general usage, illustrated by sections 398 and 4028, Revised Statutes, supra, has been to proceed under enactments of Congress founded on its authority to establish post offices and post roads, your second question resolves itself to the inquiry, Where has Congress, if that body has acted at all on the subject, deposited the power to conclude conventions affecting the postal intercourse of the Philippine Islands with foreign countries? In my opinion, if sections 398 and 4028, Revised Statutes, supra, stood alone, they would be sufficient to place the negotiations of such conventions or arrangements within the jurisdiction of the Postmaster General. The subject matter of section 398 is the conveyance of mails “ between the United States and foreign countries.” Since the allusion here is evidently to the United States as a physical body to and from which mails may be conveyed, the term “ United States " in the section must refer, not to the United States as a body politic or to the various States composing that body politic, but to all the country of any kind under the jurisdiction of the United States, whether

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