7 །. articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege. "A considerable portion of the cargo of the Peterhoff was of the third class and need not be further referred to. A large portion, perhaps, was of the second class, but is not proved, as we think, to have been actually destined to belligerent use, and can not therefore be treated as contraband. Another portion was, in our judgment, of the first class, or, if of the second, destined directly to the rebel military service. This portion of the cargo consisted of the cases of artillery harness and of articles described in the invoices as men's army bluchers,' artillery boots,' and 'Government regulation gray blankets. These goods come fairly under the description of goods primarily and ordinarily used for military purposes in time of war. They make part of the necessary equipment of an army." 6 In my opinion, it is the first class of contraband, namely, "articles manufactured and primarily and ordinarily used for military purposes in time of war," to which the phrase "munitions of war" is limited. This is the sense in which Hall evidently used it throughout his discussion of "contraband" in Chapter V of his Treatise on International Law, and to the same effect is Wheaton as quoted in Moore's Digest, vol. 7, p. 662. The act of July 6, 1812, construed in United States v. Sheldon, 2 Wheat. 119, made unlawful the transportation to Canada of "naval or military stores, arms or munitions of war, or any article of provisions," showing that Congress did not at that time consider provisions as included in "munitions of war." In Mrs. Alexander's Cotton, 2 Wall. 404, 420, the Supreme Court, while intimating that cotton was contraband under the conditions of the Civil War, distinguishes it from "munitions," saying: (6* * * It is well known that cotton has constituted the chief reliance of the rebels for means to purchase the munitions of war in Europe. * * For the same reason even money may be contraband (United States v. Diekelman, 92 U. S. 520, 526). All of our treaties which deal with contraband at all have endeavored to limit the scope of the term to those articles which are manufactured and used primarily for warfare. For example, Article XVIII of the treaty with Mexico of 1831 (Malloy, Vol. I, p. 1090) first specifies as contraband certain articles, as guns, powder, armor, military clothes, and concludes" and generally all kinds of arms, and instruments of iron, steel, brass, and copper, or of any other materials, manufactured, prepared, and formed expressly to make war by sea or land." This same language is contained in Article XIV of the treaty with Chile of 1832 (Malloy, Vol. I, p. 175), and of this treaty Mr. Blaine when Secretary of State said that it "restricted contraband to implements and munitions of war" (7 Moore's Dig. p. 663). The phrase "munitions of war" was used in the same sense by Mr. Cass when Secretary of State (7 Moore, 661) and by the British Secretary for Foreign Affairs (7 Moore, 666). These conclusions are strengthened by considerations of humanity, and where the meaning of the joint resolution is ambiguous these should have weight. That portion of the population of Mexico which is noncombatant has also its rights. "Munitions of war," taken in the strict sense herein adopted, are essential to the continuance of armed warfare in Mexico. But it is inconceivable that the nonimportation from this country of food and ordinary clothing will bring the insurrection to an end or seriously hamper it, while such nonimportation might possibly cause suffering to the noncombatant population without any equality of advantage to the Government. The same conclusion, it would seem, was reached by Attorney General Wickersham (29 Op. 375), and to the general views expressed by him I adhere. I have the honor to be, your obedient servant, J. C. McREYNOLDS. To the SECRETARY OF WAR. DIVERSION OF WATER FROM NIAGARA RIVER. Any diversion of water from the Niagara River on the American side in such quantity as substantially to interfere with the navigable capacity of that river or the connected lakes, or which in any substantial degree alters or modifies the course, location, or channel of either of those waterways, is prohibited by section 10 of the river and harbor act of March 3, 1899 (30 Stat. 1151), unless in advance recommended by the Chief of Engineers and authorized by the Secretary of War. Under the treaty proclaimed May 13, 1910 (36 Stat. 2448), between the United States and Great Britain relating to boundary waters between the United States and Canada, the authority of the President is not limited to the prevention of interference with navigation, but extends to the regulation or supervision of diversions for power purposes within a daily maximum, in the aggregate, of 20,000 cubic feet of water per second, and to the prevention of any diversion whatever for such purposes in excess of that maximum. In the absence of legislation by Congress, the President may not only prohibit the importation of electrical power to this country from Canada, but may also grant permission therefor subject to such conditions as to him may seem good. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to your letter of June 19, 1913, desiring my opinion on certain questions concerning the Niagara River. You inquire as to your authority under any existing act of Congress or under Article V of the treaty proclaimed May 13, 1910 (36 Stat. 2448), between Great Britain and the United States to control the amount and manner of diversions of water for power purposes on the American side of the river; and whether under the treaty you may restrict the quantity to be diverted for such purposes to less than the maximum limit authorized therein. Aside from the treaty, the only provision of existing law applicable to the case is section 10 of the river and habor act approved March 3, 1899 (30 Stat. 1121, 1151), which provides that 6. $ * * it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same." I am of opinion that under this law any diversion of water from the Niagara River in such quantity as substantially to interfere with the navigable capacity of that river or the connected lakes, or which in any substantial degree alters or modifies the course, location, or channel of either of those waterways, is prohibited unless in advance recommended by the Chief of Engineers and authorized by the Secretary of War. Whether any particular diversion amounts to a substantial interference with navigation is a question of fact to be determined in the first instance by the officials named and while their conclusion is doubtless not final, yet it would certainly be very persuasive if appealed from. Any such prohibited diversions that may be discovered should be reported to this Department, whose duty it will be to stop and prevent them by injunction or by criminal prosecution under section 12 of the same act. Under the treaty your authority is not limited to the prevention of interference with navigation, but extends to the regulation or supervision of diversions for power purposes within a daily maximum, in the aggregate, of 20,000 cubic feet of water per second, and to the prevention of any diversion whatever for such purposes in excess of that maximum. The treaty provision is as follows: "ARTICLE V. "The High Contracting Parties agree that it is expedient to limit the diversion of waters from the Niagara River so that the level of Lake Erie and the flow of the stream shall not be appreciably affected. It is the desire of both Parties to accomplish this object with the least possible injury to investments which have already been made in the construction of power plants on the United States side of the river under grants of authority from the State of New York, and on the Canadian side of the river under licenses authorized by the Dominion of Canada and the Province of Ontario. "So long as this treaty shall remain in force, no diversion of the waters of the Niagara river above the Falls from the natural course and stream thereof shall be permitted except for the purposes and to the extent hereinafter provided. "The United States may authorize and permit the diversion within the State of New York of the waters of said river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of twenty thousand cubic feet of water per second. “The United Kingdom, by the Dominion of Canada, or the Province of Ontario, may authorize and permit the diversion within the Province of Ontario of the waters of said river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of thirty-six thousand cubic feet of water per second. "The prohibitions of this article shall not apply to the diversion of water for sanitary or domestic purposes, or for the service of canals for the purposes of navigation." That the subject matter of this treaty, namely, the regulation of the boundary waters between this country and Canada, being, by its very nature, beyond, the competency either of Congress or the States, is one peculiarly within the treaty making power as always been understood, can not be doubted (22 Op. 214). Accordingly, the treaty is part of the " supreme law of the land" and has the same force and effect and is to be carried out in the same manner as an act of Congress expressed in like terms. (Ware v. Hylton, 3 Dall. 199, 277, 281.) As said by Mr. Justice Miller in the Head Money Cases, 112 U. S. 580, 598, 599: 66 * ** A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute." It is true that in some cases, owing to the fact that the treaty provides for or contemplates some further action by |