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events it is a sort of evanescent quantity of which no account is taken; and the practice has been, accordingly, that it is in considerable quantities only that the offense of contraband is contemplated. The case of dispatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character as an act of the most noxious and hostile nature.

This country, which-however much its practice may be misrepresented by foreign writers, and sometimes by our own-has always administered the law of nations with lenity, adopts a more indulgent rule, inflicting on the ship only a forfeiture of freight in ordinary cases of contraband. But the offense of carrying dispatches is, it has been observed, greater. To talk of the confiscation of the noxious article, the dispatches, which constitutes the penalty in contraband, would be ridiculous. There would be no freight dependent on it, and therefore the same precise penalty can not, in the nature of things, be applied. It becomes absolutely necessary, as well as just, to resort to some other measure of confiscation, which can be no other than that of the vehicle. (6 C, Robinson's Admiralty Reports, p. 440.)

The aim of the blockade is to cut off communication with the blockaded place. If one belligerent, as Lord Stowell says—

prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose (maintain communication) under the privilege of ostensible neutral character does, in fact, place himself in the service of the enemy State, and is justly to be considered in that character.

An aircraft that enters a port blockaded by water would in effect lend itself to the maintenance of communication with the area outside and would practically be in the service of the enemy. Such acts have in recent years been regarded as in the nature of unneutral service.

Jurisdiction in air space. This situation involves the consideration of a field of relations which has not yet been completely defined. It is therefore necessary to consider the broad question of aerial jurisdiction somewhat fully, giving due weight to conditions somewhat analogous on land and sea. The air is, however, neither land nor sea, and the attempt to extend the laws of one or the other to the air would be as unfortunate in results

as an attempt to extend the laws of the land to the sea. The air is less stable and less adapted to appropriation than the sea, as the sea is less adapted to appropriation than the land. There has accordingly grown up an idea that land might be subject to ownership in the strict sense, while the sea could not be owned, but might be under the jurisdiction of a State. Rights in air space would likewise be matters which would involve the principles of jurisdiction.

Private aircraft can be more easily used for military purposes than can private marine vessels. The transfer of aircraft from neutral to belligerent control is more easy and less possible to detect. Unneutral service by aircraft would be difficult to prevent.

Undoubtedly the laws of war on land and on sea should be adapted to the aerial space so far as possible, but as the laws for land do not cover all possible contingencies which may arise at sea, so the laws of land and sea would not cover all contingencies that might arise in connection with aerial space.

Referring to the marginal sea, Ortolan says:

L'état a sur cet espace non la propriété, mais un droit d'empire; un pouvoir de législation, de surveillance et de jurisdiction, conformément aux règles de la jurisdiction internationale. (Ortolan, Diplomatie de la mer, vol. 1, Liv. II, Ch. VIII, p. 158.)

The tendency to confuse the idea of territory in the sense of land with jurisdiction has been common. The feudal system bound the State so closely with land that it was natural that land should for a time receive main consideration. The conditions necessary for State existence were gradually distinguished, and the attributes of the State as a political entity were recognized. Among these attributes one of the most important is the right to exercise jurisdiction.

As a legal concept, jurisdiction may be considered the right to exercise State authority. Story says that it may be

laid down as a general proposition that all persons and property within the territorial jurisdiction of a sovereign are amenable

to the jurisdiction of himself or his courts; and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights. (Santissima Trinidad, 7 Wheat., 354.)

It is fully recognized that all land and the marginal sea, to a distance of a marine league at least, is subject to territorial jurisdiction, and that the open sea is not within the jurisdiction of any State, though vessels sailing upon such seas are within the jurisdiction of the State whose flag they rightfully fly. As Story says, exceptions to this rule of exclusive jurisdiction are such—

as by common usage and public policy have been allowed in order to preserve the peace and harmony of nations and to regulate their intercourse in a manner best suited to their dignity and rights.

The extreme theories of the freedom of the air would result in the denial of rights which existing States already consider essential to their existence as sovereign political entities.

The enlarged use of aerial space has necessarily given rise to new problems. The range of possible attack in time of war is increased if free use of the air is permitted. Scouting and similar measures take on a more important character.

The superficial frontier of a State is more easily determined than a frontier extending through aerial space.

Private rights in air space. The question of rights in the space above the land and above the water was considered until recent years a matter of comparatively little importance, and mainly interesting to those who were engaged in weaving abstract theories.

The rights of the owner of land in the atmosphere above the land are stated in the codes of various States and in decisions of courts. Some of these rights were recognized in ancient times when the principle of State authority was not so fully developed. Individuals building out into the sea or up into the air were secured in exclusive enjoyment of the space actually occupied. (Di

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gest 1, 8, 6.) At the present time the old maxim cujus est solum ejus est usque ad coelum is subordinated to the paramount public interests, as is shown in many domestic cases involving trespass, damages, nuisance, public wellbeing, etc.

The Japanese Civil Code provides:

207. The ownership of land, subject to restrictions imposed by law or regulations, extends above and below the surface. (Löwholm, translation.)

Other codes have provisions to somewhat similar effect. (Code Civil Swiss, art. 667; Dutch, art. 626; Spanish, art. 350; Austrian, sec. 297; Hungarian, sec. 569; Italian, art. 440; Portuguese, art. 2288; German, arts. 905, 906.)

While the rights of private persons in the air have received considerable definition, aerial jurisdiction and the right of State as against State have only recently become of such important practical significance as to attract international attention.

Nearly all States have in their legislation assumed exclusive right to enact regulations for the use of aerial space. This has been particularly frequent in case of the use of the air for telegraphic purposes.

Rights to game within the aerial frontiers has been repeatedly affirmed.

It is evident from decisions and laws of many States that jurisdiction over the aerial space above the State is a well-recognized attribute of the State. There are many cases in English and American decisions. The European courts have also been called upon to act. These States have assumed the right to determine the use of the superficial air and to pass upon the claims of the owners of subjacent land. The courts have generally acknowledged that certain rights resided in the owner of the subjacent land. A judgment of the New York Court of Appeals in 1906, referring to the rights of the land owner, said:

Usque ad coelum is the upper boundary, and while this may not be taken too literally, there is no limitation within the bounds of any structure yet erected by man. So far as the case before us is concerned, the plaintiff, as the owner of the soil, owned upward to an indefinite extent. He owned the space occupied by the wire

and had the right to the exclusive possession of that space which was not personal property, but a part of his land. According to fundamental principles, and within the limitation mentioned, space above land is real estate the same as the land itself. The law regards empty space as if it were a solid, inseparable from the soil, and protects it from hostile occupation accordingly. (Butter v. Frontier Telephone Co., 186 N. Y. Rep., 486.)

As States have never hesitated to make laws, to adjudicate conflicting claims, and to enforce decisions in regard to the aerial space above their territory, it would manifestly be a cause for friction to assert that this jurisdiction does not exist.

The actual practice of States has shown that jurisdiction over ships navigating the air is assumed to reside in the subjacent State. France, on March 12, 1909, through an order of the minister of the interior, directed subordinate officials to enforce customs and other regulations in case of balloons landing in French territory. (Bulletin officiel du Ministère de l'intérieur, mars 1909, p. 127.) These regulations were put in operation by customs regulations. (Annales des douanes 1er mai 1909, p. 116; 1er décembre 1909, p. 295; janvier 1910, p. 17.)

Attitude of the United States.-The United States courts have declared that the National Government has jurisdiction over the atmosphere in matters which affect the general well-being and national interests.

In the case of the Pensacola Telegraph Co. v. The Western Union Telegraph Co., 1878, Mr. Chief Justice Waite, in delivering the opinion of the Supreme Court of the United States, said:

Both commerce and the postal service are placed within the power of Congress, because, being national in their operation, they should be under the protecting care of the National Government.

The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stagecoach, from the sailing vessel to the steamboat, from the coach and steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are

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