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202, Acts of 1905, entitled “An Act to provide relief for the dependent and indigent widows of soldiers who served in the Civil War between the States by granting them a pension, and providing for an appropriation for the payment of the same.”
CHAPTER 51. A BILL to be entitled An Act to authorize the Funding Board of the State of Tennessee to borrow money, and execute the State's interest-bearing obligations therefor or to issue and sell temporary stocks, bonds, notes and interest-bearing obligations of the State for the purpose of raising money to meet the maturing obligations of the State.
CHAPTER 52. AN ACT to provide for and regulate the paroling of prisoners now under confinement in the penitentiary.
CHAPTER 53. AN ACT to amend Chapter 32 of the Acts of 1897, so as to fix the minimum amount of the capital stock of corporations hereafter incorporated in this State at one thousand dollars.
CHAPTER 54. A BILL to be entitled An Act to regulate and provide for the deposit of the State's money or the public funds in public depositories, to provide for the collection of interest thereon, and to require the State Treasurer to deposit said funds in said depositories.
CHAPTER 55. AN ACT entitled “An Act to prescribe the method of bringing suit and to limit the time of bringing suit against municipal corporations on account of injuries to persons or property resulting from the negligence of the officers or employes of said municipal corporations.”
CHAPTER 56. AN ACT to appropriate money out of the State Treasury for the purpose of defraying the expenses of the Fifty-eighth General Assembly and miscellaneous and other expenses.
CHAPTER 57. A BILL to be entitled An Act to amend Section 3 of Chapter 540, House Bill 693, Acts of 1907, passed April 15, 1907, and approved April 15, 1907, increasing the salaries of Chief Mine Inspectors and the District Mine Inspectors.
Mr. Biggs:-Members of the Tennessee Bar Association, it affords me now very great pleasure to present to you as the speaker of the morning a Southern gentleman, the son of a distinguished and gallant Confederate soldier, who has made for some years his home in one of the metropolitan cities of the North, but the severity of the climate of that city in winter has not been able to change or in any wise to darken the genial sunshine of this most affable gentleman, nor has it in any way affected the milk of human kindness which dwells so largely in his heart. He has been for a long time one of my closest friends, and it affords me, gentlemen of the Bar Association, ladies and guests, the very greatest pleasure to be able to present to you the Hon. Blewett Lee of Chicago, who will speak to you on the Sovereignty of the Air.
SOVEREIGNTY OF THE AIR.
By BLEWETT LEE, OF CHICAGO, ILL. When Grotius was a young lawyer he served for a time as counsel for the Dutch East India Company. Out of his early labors as a corporation lawyer there grew later two wonderful books—one the De Jure Belli et Pacis, the greatest gift that any lawyer ever gave to the world, and the other, published in 1608, the Mare Liberum. In 1868 came to light the brief which he had written in a celebrated case in which the Company had captured a rich Portuguese galleon in the Straits of Malacca. It was found that one chapter of the Mare Liberum had been taken bodily from this brief. At the time the book was written, Portugal claimed dominion of the eastern and England of the northern seas. John Selden of the Inner Temple, most famous of English legal scholars answered Grotius by a work entitled Mare Clausum; but the stars in their courses fought against Selden and today the world rejoices in the freedom of the seas.
Three hundred years have swept over that great controversy, and now in our own day again the international lawyers of the world are marshaled in controversy. This time they are contesting over the freedom of the air. Fauchille, like a new Grotius, is pleading the cause of aerial liberty, and English scholars once more are the advocates of exclusive dominion. This time, has the Englishman a better case than before? There are not a few jurists on the continent as well as in England who think that he has.
At first thought there is something almost revolting in the idea that this new and universal means of communication through the air, the latest gift of human genius, should no sooner be discovered than states should begin to raise invisible barriers against its exercise. A little reflection should convince us, however, that there can be no unchartered freedom anywhere. Man takes his law with him upon the seas, and the security of states and safety of mankind must make the very air subject to dominion. When men explore its azure depths obedience must fly with them. We live in the age when man has reached the poles and made conquest of the air!
In one of the poems of Erasmus Darwin (1731-1802), the grandfather of Charles Darwin, we find these words:
“Soon shall thy arm, unconquered steam, afar;
Drag the slow barge and drive the rapid car;
The flying chariot through the streams of air;
Shall wave their fluttering kerchiefs as they move;
And armies shrink beneath the shadowy cloud.”
It was expecting too much of any poet to prophesy a better motor than steam, or that man would fly on wings which do not
wave at all. The poet Gray could no longer write of man that
That the Theban Eagle bear,
Through the azure deep of air.”
As even yet we have not realized the vision of Tennyson, when he “Saw the Heavens fill with commerce, argosies
of magic sails,
Entering upon an investigation of the subject of the Sovereignty of the Air with the innocent idea that it offered a new field of inquiry, I found that the literature of the topic is already so rich that to examine it all would be a serious task indeed. While the material in English is not very extensive, in French and German it is quite large, and so many acute minds have attacked the subject from its various points of view that nothing short of genius could accomplish originality in discussing it. The task is rather to select between the numerous views which have been propounded to deal with the new and interesting situation, than to find a solution of a problem never faced before. Having embarked, however, upon the sea, or perhaps I should say the air, of literature upon this subject, there was no help for it except to make my way to land as best I could. It might be well to refer at the outset to some of this literature.
The first treatment of the subject in this country with which I am acquainted is the article upon the law of the air-ship by Governor Simeon E. Baldwin, published in 1910 in the Fourth Volume of the American Journal of International Law at page 95, he being also the draftsman of the first American statute upon the subject, the Connecticut Act of June 8, 1911. Governor Baldwin inclines to the view that a man has no legal right at all over the air above his land so far as its occupation by others could not be of injury to his estate, pointing out that this is the modern and enlightened view as embodied in the German Civil Code of 1900, Sec. 905, and the new Swiss Civil Code, Sec. 667.
Upon the question of liability for a descent upon private property, Judge Baldwin supports the view that the aeronaut should be held absolutely liable for damage to others resulting from his flight, even in the absence of negligence.
In the same volume of the American Journal of International Law at page 109 will be found an article by Mr. Arthur K. Kuhn entitled “The Beginnings of an Aerial Law.” Mr. Kuhn opposes the doctrine adopted by the Institute of International Law at its Ghent session of 1906 (Annuaire, 1906, p. 305) that the air is free and that states have only such rights over it in time of peace and in time of war as are necessary for their conservation, supporting the contrary view of Westlake that the state is soverign over the superincumbent air, but that there is a right of innocent passage similar to that prevailing in territorial waters. Upon the question whether or not the passage of an air-ship over land is a trespass upon the rights of the landowner, he supports the suggestion of Sir Frederick Pollock that the scope of possible trespass is limited by that of effective possession, for example that the passage of projectiles through the air at a great height would not be a trespass. No more should be the passage of an air-ship in regions where effective possession of the air is impossible.
In Vol. 5, page 171, of the American Political Science Review, Professor George Grafton Wilson of Harvard University and the Naval College, has declared himself for the principle that a state has jurisdiction over the aerial space above its territory and that the jurisdiction of the subjacent state is exclusive and any right of navigation of the air space ought to be arranged by international conferences.
Professor Hershey's “Essentials of International Public Law” published last year contains chapters on the law of the aerial space in time of peace, and also on aerial warfare, with excellent bibliographies. Dr. Hershey accepts the analogy of the air to territorial waters.
Let us turn now to some of the English writers.