air fleets are common. Indeed, according to the newspapers, at Luneville last April, France collected the sum of $2,000 customs charges from a German military air-ship which descended in its territory. This is of course one way of conveying a delicate intimation that visitors are not expected. If a sea-going vessel by stress of weather or losing its way in a fog should come into a French harbor or upon the French coast, the skipper would certainly not expect to pay tariff charges for having imported the vessel. It seems rather a case of imposing a fine.

If we accept the theory of the absolute sovereignty of the state over the air, grave consequences are likely to follow to neutral states in case of war, for it will probably then be their duty to prevent the passage of air-ships of war belonging to bellig. erent nations and to prevent the use of the overlying atmosphere for the aid or benefit of either of the warring states. One can readily see that this would be a matter of the greatest difficulty. An unpleasant consequence in times of peace would be that states would be able to grant monopolies of aerial navigation, which might revive unpleasant memories of the commercial claims of certain maritime Powers over the seas three centuries ago.

The conference of the Powers upon the subject of aerial navigation in April, 1910, at Paris, which adjourned without result after several months' deliberation, is said by Sir Erle Richards to have shown such a radical and irreconcilable difference of opinion upon the question of the sovereignty of the state over the air as to make progress impossible.

While such reasoning as his might be very acceptable to island states like Great Britain, it must be obvious that to a country like, for example, Bolivia, surrounded entirely by other states and which could by the application of this doctrine be cut off from any through lines of aerial traffic altogether, it would be far from acceptable. If, as seems not unlikely, air-ships should ever cross the ocean, such a doctrine might prevent an air-ship from passing over the British Isles at all and make an air line as devious as a route by sea. The great objection to extending the right of private ownership into the air is that as a practical matter the landowner has no dominion over the higher levels and never can have. The essential idea of property

is dominion and human rights should not even in theory extend beyond human power. In the same way, the dominion of the state can never actually be exercised over the entire air lying above it, and it seems a vain project for a state of any size to interdict altogether the passage of air-ships. After the full right of a state to protect itself and its subjects has been conceded, there remains something to be said for the principle of discarding all unnecessary limitations of human freedom and allowing the common enjoyment and use of the air. The great interests of mankind lie in the direction of peace, not war. After the necessary safeguards have been taken for the protection of states, we should look rather to the enlargement of human freedom and human intercourse, and these matters are too precious to be left to the absolute discretion of each particular state. It can hardly be imagined that a state could seriously undertake to police its entire aerial frontier so as to prevent the passage of air vessels. Not the frontiers alone, but the entire atmosphere of the country, would have to be patrolled. It would be just as easy to maintain a blockade of an entire nation in three dimensions, and it seems of little use to concede to a nation in theory a dominion which can never be possible in fact. The difficulty of the situation may perhaps be illustrated by trying with a rifle to shoot a bird upon the fly at night.

We can not help believing that the military point of view is the prevailing one with the German as well as the English jurists who have accepted the doctrine of absolute sovereignty, and the result reached is certainly one which however desirable in times of war, must bid us pause in times of peace. Both the doctrine of the absolute sovereignty of the air and the doctrine of the absolute freedom of the air lead to undesirable, not to say impossible conclusions, and if a middle ground can be found which will enable states to take all measures necessary for their own security and yet subject to this restriction permit the full advantage of the new discovery in the way of extending human intercourse, and increasing the opportunities of travel and trade, it is very desirable. On one side we have the intense nationality and martial spirit of the single state, and on the other the spirit which would break down all artificial and unnecessary boundaries between nations and extend the citizenship of the world,

the spirit which cherishing no vast dreams of exclusive empire, looks forward rather

Till the war drum throbs no longer and the

battle flags are furled

In the Parliament of man, the Federation
of the world.

The theory of sovereignty over the air must, it seems to me, rest upon the facts first that by means of suitable cannon the underlying state is able by physical force to control to a great extent the use of the air, just as in case of territorial waters, and secondly that the danger of injury from foreign vessels moving, or for example, engaging in combat, in the air, is fully as great as that in the case of territorial waters. So long as the right of innocent passage is preserved to private air-ships of other nations under reasonable regulations for the protection of the underlying state, they have no real grievance, but if a nation should lie across an international air route and absolutely forbid the right of innocent passage, the grievance might become in future just as great as if such a state should undertake to close that portion of its territorial waters which constitutes a marine highway.

It is difficult to justify the right of the underlying state to police the air except upon the theory that it has jurisdiction over it. This is not inconsistent with the view of a servitude of innocent passage in the air of the same kind as in territorial waters. This servitude is to be supported upon the theory that by common usage and for reasons of public policy innocent passage is permitted. From the time of the invention of the balloon, such vessels have passed over the territory of various states without objection and it would be surprising to find that the matter gave rise to any serious questions before balloons became dirigible and popular fears were excited by possible dangers arising from their use for purposes of espionage or in war. It is true that for the purpose of observation of fortifications and photographing them the air-ship offers extraordinary opportunities and it may also be used for the discovery of submarine mines laid for coast defense and not visible from the surface of

the water.

On the other hand, it is almost impossible that it should not be discovered in the work of espionage.

The failure of the international conference of 1910 at Paris was said to have been on account of the attitude of certain Powers, including Great Britain, which desired to preserve the right to close their frontiers absolutely to air-ships of any nationality or all nationalities whenever it pleased them without the necessity of having to justify their conduct in so doing. The English Aerial Navigation Act of 1911 (L. R. Gen. St. 1911, c. 4, p. 14) confers upon a Secretary for the purpose of public protection the right from time to time to issue orders prohibiting the navigation of air-ships above territory named in the order and during the time therein stated, and the order may be for air-ships in general or for the kind of air-ships described therein and any person violating the Act is made subject to imprisonment for six months or a fine of 200 pounds, or both. The prohibition may be temporary or permanent.

In the Associated Press dispatches of March 4, 1913, it is stated:

"Under authority conferred by the aerial navigation act the home secretary has issued orders prohibiting foreign military or naval air crafts from passing over any portion of the United Kingdom or territorial waters except on invitation and by permission of the government.

"All other foreign air craft coming to the United Kingdom are required first to obtain clearance papers from the British consuls. Landings will be restricted to certain areas of the coast, where the air pilots must report to the authorities and obtain a permit for the continuance of the voyage. They are prohibited from passing over certain districts in which are included the military and naval stations.

"Anyone infringing the regulations, it is announced, is liable to be fired on, and the offense is punishable by six months' imprisonment or a fine of $1,000. Aeronauts guilty of espionage are liable to seven years' penal servitude."

If these orders are correctly stated they might be sustained not only upon the theory of the absolute sovereignty of the

air but also upon the theory that the regulations are restrictions for the proper policing of innocent passage, while the right to exclude military or naval air craft would be everywhere conceded. The action of the British authorities would of course not necessarily express the rule which will ultimately be established in International Law.

A memorandum of the rules promulgated under the English Aerial Navigation Act, 1911, will also be found in the New York Nation, Vol. 96, No. 2491, p. 302, issue of March 27, 1913. The concluding comment of the editor is "No foreigner yet heard of would be brave enough to run the gauntlet of these regulations." At least they produce the impression that England is not at home to callers by air. The most reasonable prospect for the amelioration of severe rules lies in the discovery of a way to make international aerial navigation commercially profitable. I have more hope in the activities of an enterprising Airship Company than in a declaration of the rights of man.

The progress of legislation over the air goes on in various countries. As early as March 12, 1909, the French Minister of the Interior issued a circular to local officials prescribing the action to be taken in case of the landing for foreign balloons within their respective territorial divisions.

According to press dispatches of May 10, 1913, important new legislation has been approved by the French Cabinet, and is to be brought before the Chamber of Deputies.

In foreign countries the practice is coming into vogue of forbidding the passage of air craft over a city at a time when crowds will be gathered there, as in case of a royal visit or a public procession.

The earliest American "Act concerning the registration, numbering and use of air-ships and the licensing of operators thereof" was the Connecticut statute drafted by Governor Baldwin and approved June 8, 1911 (Conn. Pub. Acts 1911, p. 1348). It forbids under penalty of fine or imprisonment, or both, aviation from one point within the state to another except by licensed operators, requires registration of each air-ship, the carriage of the registration certificate, and a display of its number in figures not less than three feet in height, provides for examination for license, but for the recognition of licenses