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), grandfather of Charles Darwin, we find these words: "Soon shall thy arm, unconquered steam, afar, Or on wide waving wings expanded bear The flying chariot through the streams of air; Fair crews triumphant leaning from above Shall wave their fluttering kerchiefs as they move; Or warrior bands alarm the gaping crowd 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 he inherits "Nor the pride, nor ample pinion That the Theban Eagle bear, Sailing with supreme dominion 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, Pilots of the purple twilight, dropping down with 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. In a lecture upon the "Sovereignty Over the Air" delivered before the University of Oxford on October 26th, 1912, by Sir H. Erle Richards, Professor of International Law and Diplomacy, after stating that the true reason of the law which gives to states the sovereignty over the belt of the high seas adjoining their coasts and over the bays and other indentations on their shores, is that such rights are necessary for the preservation and protection of their territories, he claims that the same principle requires that states should have full sovereignty over the air above them, for the presence of any vessel overhead is a source of danger to persons and property beneath. He claims that the English Aerial Navigation Act of 1911 is a direct assertion of sovereignty over all air vessels, irrespective of altitudes, and supports himself upon the proposition that the passage of an aeronaut at any height over the land of another constitutes a trespass, citing the views of some of the judges in the cases of Pickering v. Rudd (1815), 4 Camp. 219, 220; Kenyon v. Hart (1865, 6 B. & S. 249, 252; Wandsworth Board of Works v. United Telephone Co. (1884), L. R. 13 Q. B. 904, and Finchley Electric Light Co. v. Finchley Urban Council (1903), 1 Ch. 440. Indeed, he claims that this is also the private law of other countries as well. Since the private citizen has an unlimited ownership, by analogy of the state should possess an unlimited jurisdiction. He contests the idea that there is any right of innocent passage through the air at any height and points out that the range of cannon is now sufficient to cover any height of the air practicable for the purposes of navigation. As a result of this position he maintains that in case of war it would be the duty of neutral states to hinder the operations of belligerents above their territories, including the passage of air-ships of war. In an interesting article by H. B. Leech upon "The Jurisprudence of the Air" in the Fortnightly Review of August, 1912, the author points out the difficulty which the use of airships will create in making a blockade effective. No one is under obligation to regard a blockade unless it is effective and the necessity of having an air fleet to cut off access to beleaguered cities would be a new reason for equipping ships of war with aeroplanes. Mr. Leech favors the view that that portion of the atmosphere which is within the range of artillery situated upon the ground should be regarded as similar to the territorial waters of the state and subject to the servitude of innocent passage of air-ships of all nations, while aerial heights beyond the reach of artillery should be regarded like the high seas and free alike to air-ships of all nations. The difficulty in the application of this view is that when the aviator soars so high as to be beyond the reach of artillery, the air would be too thin for him to breathe, to say nothing of the intense cold of the upper heights. Upon the general subject of the law of the air the most complete work in English is one so entitled by Dr. Hazeltine of the University of Cambridge, published in 1911. In regard to the right of ownership of landowners usque ad coelum, while admitting that various dicta would indicate that this right exists, he concludes that the actual decisions of the courts go no further than to hold that the landowner has a proprietary right in the lower stratum of the air-space, a violation of this proprietary right giving the landowner the action of trespass (69). He attaches considerable importance to the suggestion of Sir Frederick Pollock, already mentioned, that the scope of possible trespass might be limited by that of effective possession, and that as regards the air-space above this stratum effectively possessed, the remedy of the landowner might well be nuisance rather than trespass (73). In regard to the foreign law, he notes that the German civil code and the civil code of Switzerland do not allow the landowner to object to acts which he has no interest in preventing (77). As to the liability of an aeronaut for acts producing damage without negligence on his part, he favors the doctrine of absolute liability just as in case of keeping wild animals (84). This was the doctrine upheld by Dr. Sarfatti at the Verona Congress and adopted by Governor Baldwin (86). Dr. Hazeltine opposes the use of the atmosphere over neutral states for the passage of belligerent aerial craft in order to reach the air-space beyond, applying the same principle as in case of the marching troops (139), a doctrine for which there is certainly a great deal to be said, |