cy, each of the parties to the conspiracy shall be fined not more than $5,000, or imprisoned not more than three years, or both. Any indictment or information under this section shall describe the specific property which it was the object of the conspiracy to injure or destroy. (June 15, 1917, c. 30, Title VIII, § 5, 40 Stat. 226.) Historical Note See historical note to section 231, ante, of this title. $ 235. "Foreign government" defined. The words "foreign government," as used in the four preceding sections, shall be deemed to include any government, faction, or body of insurgents within a country with which the United States is at peace, which government, faction, or body of insurgents may or may not have been recognized by the United States as a government. (June 15, 1917, c. 30, Title VIII, § 4, 40 Stat. 226.) Historical Note As enacted, this section made the definition herein contained applicable to various sections of the Criminal Code and to other sections of the act cited to the text; therefore this same provision is set out in sections 98, 288, and 349 of Title 18, Criminal Code and Criminal Procedure, and in section 41 of Title 50, War. See, also, historical note to section 231, ante, of this title. Whenever the § 236. Exportations of munitions of war restricted. President finds that in any American country, or in any country in which the United States exercises extraterritorial jurisdiction, conditions of domestic violence exist, which are or may be promoted by the use of arms or munitions of war procured from the United States, and makes proclamation thereof, it shall be unlawful to export, except under such limitations and exceptions as the President prescribes, any arms or munitions of war from any place in the United States to such country until otherwise ordered by the President or by Congress. (Jan. 31, 1922, c. 44, § 1, 42 Stat. 361.) Historical Note This section, and section 237 of this title, are sections 1 and 2 of a resolution entitled a "Joint resolution to prohibit the exportation of arms or munitions of war from the United States to certain countries, and for other purposes," cited to the text. Section 3 of said resolution repealed Res. April 22, 1898, No. 25, 30 Stat. 739, as amended by Res. March 14, 1912, No. 10, 37 Stat. 630. aforesaid, section 1 of Res. April 22, 1898, No. 25, was practically identical with this section, except that it did not contain the words herein, reading, "or in any country in which the United States exercises extraterritorial jurisdiction." Section 2 of Res. April 22, 1898, No. 25, as amended by Res. March 14, 1912, read as follows: "Any shipment of material hereby declared unlawful after such a As amended by Res. March 14, 1912, proclamation shall be punishable by fine not exceeding ten thousand dollars, or imprisonment not exceeding two years, or both." 22, 1898, No. 25, authorized the President to prohibit the export of coal or other material used in war from any seaport of Prior to the 1912 amendment, Res. April the United States. Notes of Decisions 1. Validity.-Joint Resolution No. 10, March 14, 1912 (see historical note), prohibiting the exportation of arms or munitions of war to an American country in which the President has proclaimed the existence of domestic violence promoted by the use of arms or munitions of war imported from the United States held valid. Talbott v. U. S. (Tex. 1913) 208 F. 144, 125 C. C. A. 360, certiorari denied (1914) 34 S. Ct. 331, 232 U. S. 722, 58 L. Ed. 815. 2. Attempt as offense.-This section and section 237 of this title, prohibiting exportation of arms or munitions to "any country in which the United States exercises extraterritorial jurisdiction" after proclamation by the President, and the President's proclamation thereunder of March 4, 1922 (42 Stat. 2264), applying the prohibition to China and declaring that "whoever exports any arms or munitions of war in violation of section 1 [this section] shall on conviction be punished," constitute a valid and effective law, but do not make an "attempt" to make such exportation an offense. U. S. v. Lucas (D. C. Wash. 1925) 6 F.(2d) 327. 3. Exportation.-The act of sending from the United States to a foreign and prohibited country, without reference to the completion of such act by the landing or delivery of the merchandise at its destination, is condemned by Joint Resolution No. 10, March 14, 1912 (see historical note). U. S. v. Chavez (Tex. 1913) 33 S. Ct. 595, 228 U. S. 525, 57 L. Ed. 950, reversing (D. C. 1912) 199 F. 518. Resort to personal carriage to move prohibited articles from the United States to a foreign and prohibited country will not render inapplicable the prohibitions of the Joint Resolution aforesaid. Id. 4. Articles prohibited.-The words "arms or munitions of war" embrace 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 Foodstuffs, ordinary clothing, and ordinary articles of peaceful commerce are not included in the prohibition. Id. Whether certain air rifles are "arms or munitions of war" is purely a question of fact, which the Attorney General does not feel qualified to decide. (1913) 30 Op. Atty. Gen. 9. Air rifles, if wholly innocuous, and incapable of use for destruction of life, are not "arms." Id. Clothes and provisions are not munitions of war. (1913) 30 Op. Atty. Gen. 213. Ordinary, as distinguished from military, riding saddles, stirrups, girths, hay, and other foodstuffs, and horses are not munitions of war. (1913) 30 Op. Atty. Gen. 227. The exportation of saddles, bridles, canteens, and carbine scabbards by merchants in the United States to other merchants in Mexico falls within the purview of the President's proclamation of March 14, 1912, prohibiting the export of arms or munitions of war to that country.. (1912) 29 Op. Atty. Gen. 394. Gun grease is within the prohibition of the President's proclamation of March 14, 1912, issued pursuant to the joint resolution of the same date (see historical note), forbidding the exportation of arms or munitions of war to Mexico. (1912) 29 Op. Atty. Gen. 414. Paper caps for toy cap pistols could hardly be considered within the prohibition of the President's proclamation of March 4, 1912, forbidding the exportation of arms and munitions of war to Mexico, whereas air rifles might well be regarded within the prohibition. The question, however, is one of fact, dependent upon the character of the articles sought to be imported. (1912) 29 Op. Atty. Gen. 570. Under Act July 6, 1812, § 2, prohibiting any citizen of the United States from transporting overland or otherwise any arms or munitions of war, or any article of provision from the United States to Canada, living oxen were included. U. s. v. Sheldon (Vt. 1817) 2 Wheat. 119, 120, 4 L. Ed. 199. Under that act fat cattle were provisions or munitions of war. U. S. v. Barber (Vt. 1815) 9 Cranch, 243, 244, 3 L. Ed. 719. But the driving of live oxen on foot was not a transportation within the act. U. S. v. Sheldon (Vt. 1817) 2 Wheat. 119, 120, 4 L. Ed. 199. 5. Proclamation.-The President's proclamation of October 14, 1905 (34 Stat. 3183), prohibiting the export of arms, ammunition, and munitions of war to the Domini can Republic, pursuant to a joint resolution of April 22, 1898, is still operative under the joint resolution of March 14, 1912. (1912) 29 Op. Atty. Gen. 387. 6. Exportation to China.-Prior to the extension of this section to apply to countries in which the United States exercises extraterritorial jurisdiction, it was the opinion of the Attorney General that the Department of Justice could do nothing to restrict the exportation of arms and warlike material to China during the then existing insurrectionary movements in that country. (1902) 24 Op. Atty. Gen. 26. Whoever ex § 237. Penalty for exportation of munitions of war. ports any arms or munitions of war in violation of the preceding section shall, on conviction, be punished by fine not exceeding $10,000, or by imprisonment not exceeding two years, or both. (Jan. 31, 1922, c. 44, § 2, 42 Stat. 361.) Historical Note See historical note to section 236, ante, of this title. Notes of Decisions 1. Articles prohibited.-See notes of decisions under section 236 of this title. 2. Indictment.-An indictment alleging a shipment of munitions of war from New Haven, Conn., to Tucson, Ariz., to be there transshipped to the state of Sonora, Mexico, merely charged an intent to violate the law and was therefore fatally defective. U. S. v. Albert Steinfeld & Co. (D. C. Ariz. 1913) 209 F. 904. 3. Venue. An indictment charging that defendants made and caused to be made a shipment of munitions of war from New Haven, Conn., to Tucson, Ariz., to be shipped from there to Mexico, held to show the commission of the offense, if any, in Connecticut and not in Arizona. U. S. v. Albert Steinfeld & Co. (D. C. Ariz. 1913) 209 F. 904. failure to charge a place in Mexico to U. which the shipment was to be made. S. v. Albert Steinfeld & Co. (D. C. Ariz. 1913) 209 F. 904. An indictment merely alleging a shipment of munitions of war to Sonora, Mexico, as the ultimate destination, held fatally defective for failure to specify a definite point of destination or to charge that the destination in the state of Sonora was to the grand jury unknown. U. S. v. PhelpsDodge Mercantile Co. (D. C. Ariz. 1913) 209 F. 910. 5. Evidence to sustain conviction.—Evidence held to sustain a conviction for conspiracy to export arms to Mexico without license. Holmes v. U. S. (C. C. A. Tex. 1920) 267 F. 529, certiorari denied (1920) 41 S. Ct. 13, 254 U. S. 640, 65 L. Ed. 452. Evidence that accused was taking some 2,000 rounds of ammunition on a mule toward a river crossing on the Mexican boundary, from which he was some 300 yards distant, etc., held to sustain conviction. Sotello v. U. S. (C. C. A. Tex. 1919) 256 F. 721. § 238. Seizure of munitions of war, etc., intended for export generally; forfeiture. Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war, or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are intended to be exported, or shipped from, or taken out of the United States, in violation of law, the several collectors, naval officers,* surveyors, inspectors of customs, and marshals, and deputy marshals of the United States, and every other person duly authorized for the purpose by the President, may seize and detain any articles or munitions of war about to be exported or shipped from, or taken out of the United States, in violation of law, and the vessels or vehicles containing the same, and retain possession thereof until released or disposed of as hereinafter in this chapter directed. If upon due inquiry as hereinafter in this chapter provided the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States, the same shall be forfeited to the United States. (June 15, 1917, c. 30, Title VI, § 1, 40 Stat. 223.) *The words "naval officers" (line 8) should read "comptrollers"; see section 38 of Title 19, Customs Duties. Historical Note This section and sections 239 to 245 of this title, were part of "An act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes," cited to the text. Said sections constituted title VI of said act, and were preceded in the act as enacted by the subtitle "Seizure of Arms and Other Articles Intended for Export." The President was authorized to sell, through the Secretary of War, the arms and ammunition then in the hands of the War Department, which had been seized under the provisions of this section and sections 239-245, post, of this title, by Act Sept. 22, 1922, c. 399, 42 Stat. 1012. That act has been omitted as temporary. Notes of Decisions 1. What constitutes embargo violations. -See The Mary (R. I. 1815) 9 Cranch, 126, 3 L. Ed. 678; The Aeolus (Mass. 1818) 3 Wheat. 392, 4 L. Ed. 418; U. S. v. Hall (Pa. 1810) 6 Cranch, 171, 3 L. Ed. 189. It was no offense against the embargo laws of the United States to take goods out of one vessel and put them into another, in the port of Baltimore, unless it were with an intent to export them. The Juliana (Md. 1810) 10 U. S. (6 Cranch) 327, 3 L. Ed. 238. The evidence must be clear and positive of that necessity which will excuse a violation of the embargo laws. The James Wells v. U. S. (Conn. 1812) 11 U. S. (7 Cranch) 22, 3 L. Ed. 256. by force to a foreign port is not liable to forfeiture under Act Jan. 9, 1808. The William King (N. Y. 1817) 15 U. S. (2 Wheat.) 148, 4 L. Ed. 206. Under a statute allowing a drawback "on the exportation" of certain articles, goods placed on board a vessel bound for a foreign port, to be used on board its vessel during its voyage, are not exported. Swan & Finch Co. v. U. S. (Ct. Cl. 1903) 190 U. S. 143, 23 S. Ct. 702, 47 L. Ed. 984. The necessity which will excuse the master of a vessel for a breach of the embargo laws must be instant and imminent, and it must be such as cannot allow a different course without the greatest jeopardy to life and property. The Argo (C. c. A vessel actually and bona fide carried Mass. 1812) Fed. Cas. No. 516. On a libel against a vessel for having proceeded to a foreign port in violation of Act Jan. 9, 1809 (2 Stat. 453), supplementary to the general embargo act, necessity arising from stress of weather and the condition of the vessel is no defense. U. S. v. The James Wells (C. C. Conn. 1808) Fed. Cas. No. 15,467, affirmed The James Wells v. U. S. (1812) 11 U. S. (7 Cranch) 202, 3 L. Ed. 256. A vessel, obliged from irresistible necessity to put into a foreign port and sell her cargo, is not guilty of a violation of the embargo laws. The William Gray (C. C. N. Y. 1810) Fed. Cas. No. 17,694. § 239. Warrant for detention of property seized. It shall be the duty of the person making any seizure under sections 238 to 245, inclusive, of this chapter to apply, with due diligence, to the judge of the district court of the United States, or to the judge of the United States district court of the Canal Zone, or to the judge of a court of first instance in the Philippine Islands, having jurisdiction over the place within which the seizure is made, for a warrant to justify the further detention of the property so seized, which warrant shall be granted only on oath or affirmation showing that there is known or probable cause to believe that the property seized is being or is intended to be exported or shipped from or taken out of the United States in violation of law; and if the judge refuses to issue the warrant, or application therefor is not made by the person making the seizure within a reasonable time, not exceeding ten days after the seizure, the property shall forthwith be restored to the owner or person from whom seized. If the judge is satisfied that the seizure was justified under the provisions of sections 238 to 245, inclusive, of this chapter, and issues his warrant accordingly, then the property shall be detained by the person seizing it until the President, who is hereby expressly authorized so to do, orders it to be restored to the owner or claimant, or until it is discharged in due course of law on petition of the claimant, or on trial of condemnation proceedings, as provided in the following sections. (June 15, 1917, c. 30, Title VI, 2, 40 Stat. 224.) Historical Note See historical note to section 238, ante, of this title. Notes of Decisions be restored to the owner," is mandatory, and, if such application is not made within the time limited, the owner is entitled to return of the property. U. S. v. Two Hundred and Sixty-Seven Twenty-Dollar Gold Pieces (D. C. Wash. 1919) 255 F. 1. Necessity of warrant.-The provision of this section, that the officer seizing property as about to be unlawfully taken out of the United States shall apply within ten days to the District Judge for a warrant to justify its further detention, otherwise "the property shall forthwith 217. § 240. Petition for restoration of property seized. The owner or claimant of any property seized under sections 238 to 245, inclusive, |