1 
 
 AMERICAN BAR ASSOCIATION. SPECIAL 
 COIVMITTEE ON THE LAW OF AVIATION. 
 
 REPORT . 
 
 
 
Cornell University Library 
 
 KF 2400.Z9A51 
 Report of the Special Committee on the L 
 
 3 1924 017 173 836 
 
AMERICAN BAR ASSOCIATION 
 
 REPORT OF JPECIAL COMMITTEE ON THE 
 LAW OF AVIATION 
 
 Charles A. Boston, Chairman 
 24 Broad Street, New York, N. Y. 
 
 Orrin N. Carter, Wiixiam P. MacCracken, 
 Court House, Chicago, 111. The Rookery, Chicago, 111. 
 
 William P. Bynum, George G. Bogert, 
 
 Greensboro, N. C. Cornell University, Ithaca, N. Y. 
 
 N. B, — After submission of the enclosed report to the Executive 
 Committee it was referred by the latter to the American Bar 
 Association and its recommendations, as stated on pages 1 and 2 
 of the Report, were adopted, the Committee being continued as a 
 Special Committee of the Association under the name " Spectal 
 Committee on the Law of Aeronautics." 
 
pcfoo 
 
 ^A ^ €^ "^ 
 
This report, having been prepared by a special committee insti- 
 tuted by the Executive Committee, is to be presfnted to the 
 Executive Committee; it has not yet been acted upon by the latter, 
 nor by the American Bar Association. 
 
 REPORT 
 
 OF THE 
 
 SPECIAL COMMITTEE ON THE LAW OF AVIATION.' 
 To the Executive Committee of the American Bar Association : 
 Eecommendation".. 
 
 We recommend, if the Executive Committee approve : 
 
 1. That the members of the American Bar Association be re- 
 quested to give their attention to the fundamental problems of 
 jurisprudence and especially of constitutional law, involved in 
 the proper solution of the demands of aeronautics. 
 
 3. That a copy of this report, as the report of this committee, 
 be placed in the hands of the President and each member of 
 Congress, and each member of the National Advisory Commit- 
 tee for Aeronautics, and in the Library of Congress and of the 
 Smithsonian Institution, and that two copies be given to each of 
 the Commissioners on Uniform State Laws, and that one thou- 
 sand additional copies be made available for distribution to those 
 especially interested in the subject, to the end that its subject 
 matter may be duly considered in the enactment of any 
 legislation. 
 
 3. That the American Bar Association at the annual meeting 
 express its hope that in the enactment of any legislation by Con- 
 gress the most careful preliminary consideration be given to the 
 constitutional features of any proposed legislation, to the end 
 that it may be determined whether the proper development and 
 regulation of aeronautics does not require a constitutional amend- 
 ment conferring complete jurisdiction over aeronautics upon the 
 United States through its appropriate departments, instead of 
 attempting to adopt devices of questionable constitutionality to 
 make existing national powers apply to this new branch of human 
 activity; and that meanwhile all national legislation studiedly 
 observe the existing constitutional limitations, and preserve with- 
 out assault the existing division of powers between the United 
 States and the states of the union; and that all constitutional 
 state legislation involving matters not purely of local interest 
 and application shall be studiously made uniform. 
 
 ' So much that is controversial, or open to future determination by the 
 courts or otherwise is involved in the following report that its conclusions 
 are not to be taken as positive statements but only as expressions of view 
 tentatively advanced by members of the committee, subject to possible 
 modification upon further consideration. 
 
2 
 
 4. That the committee be continued as a special committee 
 of the Association. 
 
 Ijstteoduction. 
 
 This committee, designated as the Special Committee on the 
 Law of Aviation, was appointed, pursuant to the action of the 
 Executive Committee, at its meeting in St. Louis, immediately 
 following the annual meeting of the Association in 1930. 
 
 The Committee's Peeliminaet Report. 
 
 The committee made a preliminary report to the Executive 
 Committee at its meeting in ISTew Orleans in January, 1931. 
 That report was chiefly valuable for the bibliography which was 
 annexed, containing lists of published articles upon the law of 
 aeronautics and the sources from which the information was 
 obtained. Copies of the report have been in demand from many 
 public hbraries, and officials and individuals interested in the 
 subject matter, and the chairman of the committee has had much 
 correspondence. 
 
 As this final report for the current first year of the existence 
 of this committee is likely to have a still wider circulation, we 
 repeat some of the information in the preliminary report. 
 
 Othek Committees. 
 The Conference of Commissioners on Uniform State Laws in 
 August, 1930, adopted the following resolution under which a 
 committee has been appointed : 
 
 The whole worl3i has come to a realization of the fact that aviation 
 is practical and not a mere art or fad for pleasure and profit in exhibi- 
 tion flying, for many states in the union now have scores of aviators 
 constantly flying from state to state carrying commerce between the 
 states, which aviation needs regulation, so your committee recommends 
 the appointment of a special committee to investigate this subject and 
 report as soon as practical a uniform aviation law. 
 
 Since our preliminary report the New York State Bar Asso- 
 ciation and the New York County Lawyers have each appointed 
 a committee to consider and deal with the law of aeronautics. 
 The Aero Club of America, as the direct result of the action of 
 the Executive Committee of the American Bar Association in 
 providing for our committee, appointed a committee of lawyers 
 to cooperate, which is composed of lawyers with especial expe- 
 rience either as actual fliers or as counsel for those who have been 
 commercially interested in the development of the art. 
 
 The Increasing Public Interest and the Important 
 Fundamental Problem oe Jurisdiction. 
 
 Not to mention the numerous commercial interests involved 
 and the various periodicals devoted to the subject, the increasing 
 
interest is illustrated by the following list of aero clubs in' the 
 United States and Cuba, which has been furnished to us through 
 the Aero Club of America : 
 
 Aero Club of Oregon, Portland, Ore. 
 
 Yolo Pliers Club, Woodland, California. 
 
 Aero Club of Lincoln, Lincoln, Nebraska. 
 
 Aero Club of Texas, Houston, Texas. 
 
 Aerial Club of Indiana, Terre Haute, Indiana. 
 
 Washington Aviators' Club, Washington, D. C. 
 
 Aero Club of Omaha, Omaha, Nebraska. 
 
 Aero Club of New England, Boston, Mass. 
 
 Aero Club of Ohio, Canton, Ohio. 
 
 Aero Club of St. Louis, St. Louis, Mo. 
 
 Aero Club of Buffalo, Buffalo, N. Y. 
 
 Aero Club of Pittsfield, Pittsfield, Mass. 
 
 Aero Club of Dayton, Dayton, Ohio. 
 
 Kansas City Aero Club, Kansas City, Mo. 
 
 Harvard Aeronautical Society, Harvard University, Cambridge, Mass. 
 
 Aero Club of Illinois, Chicago, 111. 
 
 Aircraft Club of Peoria, Peoria, 111. 
 
 Aero Club of Michigan, Detroit, Michigan. 
 
 Milwaukee Aero Club, Milwaukee, Wis. 
 
 Western Aero Association, Topeka, Kansas. 
 
 Pacific Aero Club, San Francisco, California. 
 
 Aero Club of Rochester, Rochester, N. Y. 
 
 Aero Club of Pennsylvania, Philadelphia, Pa. 
 
 Aero Club de Cuba, Havana, Cuba. 
 
 Queen City Aero Club, Cincinnati, Ohio. 
 
 WichitA Aero Club, Wichita, Kansas. 
 
 Aero Club of the Northwest, Seattle, Wash. 
 
 Aero Club of Iowa, Grinnell, Iowa. 
 
 Colorado Aero Club, Denver, Colo. 
 
 Aero Club of Hawaii, Honolulu, H. I. 
 
 Aero Club of the Philippines, Manila, P. I. 
 
 Aero Club of Southern California, Los Angeles, Cal. 
 
 Aero Club of Massachusetts, Boston, Mass. 
 
 American Flying Club of Virginia, Richmond, Va. 
 
 American Flying Club of Baltimore, Baltimore, Md. 
 
 Aviation Country Club of Detroit, Detroit, Michigan. 
 
 , No one can examine the list of publications annexed to our 
 former preliminary report (to which we now direct attention 
 without reprinting it) without an appreciation of the vast im- 
 portance of a comprehensive view of the problem in Jurispru- 
 dence which is presented. This is peculiarly true in the United 
 States on account of the division of power between the national 
 government and the states. 
 
 Many persons interested in the practical development of flight 
 through the air have no conception of the existence, at the 
 threshold, of a constitutional problem arising from this division 
 of power; they are impatient of our apparent inaction; and 
 practically with one accord they appear to look to the national 
 government for relief; they see other governments active with 
 international conventions and national laws, and cannot and do 
 
not care to comprehend why anyone hesitates to believe that the 
 powerful government of the United States has not every power 
 which any other government exercises to promote and to regulate 
 air flight. 
 
 These people, anxious for immediate results, are not impressed 
 that there ought to be any embarrassment or any hesitation in 
 determining what government should legislate or that it has 
 complete and unlimited power, howsoever there may be doubt as 
 to the precise terms of any law or as to the place where or the 
 organization under which proper development or proper regula- 
 tion should proceed and be maintained. 
 
 For example, the recent ordinance of the City of New York 
 (approved February 23, 1921, No. 31, "An ordinance in rela- 
 tion to the operation of aircraft over the City of New York"), 
 to secure the safety of its people against improper flying over 
 the city, appears to concede without doubt or question the ple- 
 nary power of Congress to regulate local flight, by providing that 
 it shall be in force until Congress legislates, " at which time the 
 provisions of this ordinance shall automatically cease and become 
 void " ; thus apparently exhibiting impatience that Congress has 
 not already acted, and providing that the life of the ordinance 
 shall expire with Congressional action. This illustrates the 
 mood of those who are impatient for commercial results and for 
 commercial opportunities and who are unconcerned for 'consti- 
 tutional problems, or constitutional limitations, and who are 
 indifferent to the preservation of the reserved rights of the states 
 or their people. They see that the problem of flight is peculiarly 
 a problem of uniform law, and they naturally look to a unitary 
 source for a uniform law. They cannot conceive that one 
 national government and 48 state governments can legis- 
 late efficiently for the one subject matter, flight and its incidents. 
 And when it comes to local ordinances regulating overhead flight, 
 it can readily be perceived that any people who are so organized 
 as to permit or to compel regulation of air flight by local 
 ordinance, are headed for a confusion which will retard the 
 development of the art. They reason that unity of fundamental 
 control is obviously essential and that any nation which is so 
 organized as to preclude this, or to admit of confusing interfer- 
 ence of rule, cannot properly compete in the race of aeronautical 
 development. They urge that the United States is a nation and 
 should have the essential powers for the complete regulation of 
 air flight, since such flight must develop internationally along 
 national lines, and thus far has so developed. But having stated 
 their point and made their argument apparently upon a base of 
 economic truth, they concede and indeed insist as a matter of 
 economic necessity and essential reality that the United States 
 has the power, instead of merely urging that it should have 
 the power. 
 
Constitutional problems and fundamental theories respecting 
 an indestructible union of indestructible states, each operating 
 within its own sphere of sovereignty, with the national goviern- 
 ment a government of delegated powers and all other powers 
 reserved to the states or the people, make no appeal to those 
 who are impatient to see the actual commercial development of 
 air flight and who recognize, or think they recognize, its possi- 
 bilities; and who also recognize that the economic barriers now 
 existing to such development are barriers whose foundation is 
 law, or uncertainty of law, or absence of law. 
 
 Military or postal flight and the military or postal development 
 of flight (at least theoretically) present no substantial problems 
 of constitutional law; though there are wide diflierences of opin- 
 ion respecting the problem of organization, illustrated by the 
 many projects before Congress, concerning methods of organi- 
 zation, whether of a single and separate department, or several 
 bureaus in different departments, or a single bureau under a 
 single department. 
 
 But, though pending bills before Congress, existing and pend- 
 ing state legislation, and existing municipal ordinances, all essay 
 to regulate civil flight, as if each legislative body had control of 
 the Subject with which it deals, there is, of course, in the field 
 of jurisprudence, a fundamental and serious problem, arising out 
 of the inherent nature of our dual organization of government 
 into national and state, with the former a government of dele- 
 gated powers and the latter or the people, not only presump- 
 tively, but explicitly (10th amendment to XT. S. Constitution) 
 still possessed of all of the powers not delegated to the United 
 States " by the Constitution nor prohibited by it to the states." 
 
 The Constitution neither expressly delegates to the United 
 States powers over air flight as such nor prohibits them to the 
 states; presumptively, therefore, they still reside either with 
 the states or the people, but they do not reside with the United 
 States nor with Congress. 
 
 If the United States or its Congress as a legislative body has 
 the power, it mu^t be because in a specific case air fiight falls 
 within the scope of some other power ; such powers are obviously 
 the power to make treaties, to maintain international relations, 
 to control interstate commerce, to raise revenue. In the exercise 
 of any of these powers, or as incidents to their exercise. Congress 
 might legislate more or less effectively, yet not without an exten- 
 sion of the power, or a judicial stretch of the imagination re- 
 specting the legitimate scope of the power, could complete con- 
 trol of air flight be exercised by the national government or any 
 of its functionaries. 
 
 There are those who maintain that air flight is comprehended 
 within the admiralty and maritime jurisdiction of the United 
 
states (Constitution, Art. Ill, sec. 2). Without discussion the 
 Conference of Delegates from State and Local Bar Associations 
 at Boston on September 3, 1919, adopted a resolution to appoint 
 a committee to investigate the subject further, but expressed 
 the sense of the Conference that aeronautics and aerography 
 " should lie within the admiralty jurisdiction of the United 
 States and should be entertained accordingly." But it would 
 seem that the Constitution recognizes admiralty and maritime 
 jurisdiction as something existing, not something to be created, 
 and extends the judicial power to it. We are not unmindful 
 that the judicial concept of what admiralty and maritime juris- 
 diction is has broadened in the United States to include all 
 navigable waters. (The Propeller Genessee Chief vs. Fitz- 
 hugh, 13 How. 443, 13 L. Ed. 1058) ; nor are we unmindful that 
 Congress, besides its enumerated powers, has general power 
 (Constitution, Art. I, sec. 8) to make all laws for carrying 
 into execution "all other powers vested by this Constitution 
 in the government of the United States, or in any department 
 or officer thereof." We have seen a gradually expanding as- 
 sertion or exercise by Congressional legislation of power over 
 matters which are not expressly stated by the Constitution 
 to be within the powers delegated to the United States, the 
 most noteworthy of which, perhaps, is the regulation of the 
 prescription of habit-forming drugs by medical practitioners, 
 under the guise of revenue legislation (Harrison pure food and 
 drug law) ; and we have seen a corresponding willingness in the 
 judicial authorities to recognize this tendency to expand as a 
 constitutional exercise of power. So that no one, though he be 
 sworn to uphold the Constitution (Art. VI) (including, we as- 
 sume, its tenth amendment declaratory of the reservation of 
 powers to the states or to the people), can with assurance pre- 
 dict the fate of an Act of Congress asserting or assuming that 
 air flight is within the admiralty or maritime jurisdiction. Yet 
 there are obvious arguments against it, which we need not repeat. 
 
 Those advocates of this view who base it upon the analogy of 
 air navigation to ocean navigation, and of the atmosphere to the 
 high seas, appear to overlook the current international recogni- 
 tion of sovereignty over the air above the land. The complete 
 analogy of the air to the high seas having failed to receive inter- 
 national recognition, it would seem unlikely that such analogy 
 could be successfully utilized to support a claim of admiralty 
 or maritime jurisdiction over the air. 
 
 There would, too, be embarrassments in the recognition of such 
 jurisdiction with its present limitations. Abundant illustrations 
 of these limitations are collated in the Air Service Information 
 Circular of February 36, 1931, pp. 15-18, and in Professor 
 Bogerts' article on Problems in Aviation Law, pp. 34-35, both 
 
hereinafter mentioned. Hydroaeroplanes have, however, already, 
 while afloat in water, or as capable of snch flotation, been treated 
 as within the maritime jurisdiction. (Libel in S. D. of N. Y. — 
 verbally reported by Mayer, D. J., to chairman of this commit- 
 tee.) But aeroplanes have been judicially determined not to be. 
 (The Crawford Bros., No. 3, 215 Fed. E. 269. See 28 Harv. 
 Law E. 200, 3 Cal. L. E. 143, 49 Am. L. E. 599.) 
 
 It appears to us that it would be undesirable for the develop- 
 ment of the art of civil flight through the air to assume that 
 jurisdiction over it rests within the constitutional extension of 
 the judicial power of the United States to admiralty and mari- 
 time jurisdiction, with the constitutional general grant of power 
 to Congress to make laws for carrying into execution the powers 
 vested by the Constitution in the government of the United 
 States or any of its departments or officers. 
 
 While we also recognize that as incidental to the power to lay 
 taxes, or to regulate interstate or foreign commerce, or to pass 
 laws to carry out the provisions of treaties, or in the exercise of 
 other specific powers. Congress may legislate respecting air flight, 
 we also recognize that without an unprecedented extension of the 
 claims of the exercise of constitutional power, and unprecedented 
 judicial recognition of an unprecedented claim, there can be no 
 complete control of the subject matter by national legislation. 
 
 From the purely theoretical standpoint of the dual division of 
 sovereign powers, there is no reason why the respective spheres 
 should not be left within the present constitutional limitations, 
 with attempted legislation, judicial decision, and actual experi- 
 ence to shape their ultimate configuration. But any such method, 
 in our judgment, overlooks the immediate and practical demands 
 of the situation. 
 
 So far as our investigations or information indicates, while 
 there is a practical demand that Congress shall legislate promptly 
 and comprehensively, there is no similar demand that the Con- 
 stitution shall be so amended as to make such assertion of power 
 unquestionably constitutional. It seems to us that this is because 
 the economic demands are known only to those who are untrained 
 along the lines of jurisprudence and constitutional law, and those 
 who know these aspects of the problem are unaware of the econo- 
 mic demands. 
 
 When representatives of this committee have conferred with 
 those who are practically interested in the commercial develop- 
 ment and have suggested the advisability of a constitutional 
 amendment to put into effect a power which they have universally 
 declared to be an economic necessity, those interested commer- 
 cially have expressed a preference for the immediate exercise of 
 the existing powers of Congress, with the possible result of un- 
 constitutional legislation, over the more certain method of con- 
 
stitutional amendment to extend the powers of Congress. They 
 seem to think that the necessities of the situation, eked out by 
 specious arguments from such powers as Congress has, and by 
 the claim of complete control in consequence, will practically be 
 more efficacious than any efEort to awake the people and their 
 legislatures to that degree of enthusiasm which will carry through 
 a constitutional amendment. We have found no disagreement 
 among them that the exercise of the national power is impera- 
 tive, and that the conflicting exercise of state and local power 
 will be destructive of the progress of the art and its commercial 
 development. 
 
 It appears to us that neither the public nor the legal profes- 
 sion is aHve to the demands of the situation. There is a preva- 
 lent tendency to regard the problem as primarily if not 
 exclusively a military problem; whereas in fact it is primarily 
 a commercial and economic problem, with grave incidental fea- 
 tures which lie in the domain of jurisprudence and law, and de- 
 mand the aid of jurists and lawyers. The necessity is the prob- 
 lem of those interested in the art ; the method is a joint problem 
 of these and the legal profession. And in our judgment the 
 unquestionable method is a constitutional amendment confer- 
 ring the power on Congress to legislate respecting aeronautics 
 and aerography. Any other method will be the method of indi- 
 rection, subterfuge and consequent conflict; and such indirect 
 methods, though they appear to have been the methods of na- 
 tional growth in our body politic, are fraught with the danger, 
 which is constantly manifest, of practical repeal by aggression 
 and in an unconstitutional way of those constitutional limita- 
 tions, which are our fundamental' bill of rights — the main fea- 
 ture of that monument of our institutions, the Constitution. 
 
 We would emphasize, therefore, as the two fundamental 
 juristic problems of aeronautics in this country : 
 
 Whether control should be exerted by the national govern- 
 ment; and 
 
 Whether the power of such control should be conferred by 
 constitutional amendment; or seized under the claim of the exer- 
 cise of existing powers. 
 
 Constitutional Amendment. 
 
 The members of this committee having been severally sworn 
 as a condition to admission to the practice of law, to support the 
 Constitution of the United States, and having an affectionate re- 
 gard for that instrument with its bill of rights, are unanimously 
 of the opinion that if complete control over aeronautics is to be 
 lodged in the national government for exercise to the extent 
 ^hich majf from time to time be deemed expedient, the power 
 
should be conferred by constitutional amendment and should not 
 be seized in the guise of the exercise of existing powers. Every 
 exercise of existing powers which goes beyond the obvious or 
 necessarily_ implicit extent of these powers is fraught not only 
 with the visible danger of attack on the ground of unconstitu- 
 tionality and of invasion of the essential or reserved powers of 
 the states, but with the more insidious danger of a further 
 weakening of constitutional limitations deliberately incorporated 
 in the bill of rights which is the very groundwork of the Con 
 stitution and its earlier amendments. 
 
 Since, so far as we are advised, it appears to be the unani- 
 mous judgment of those practically interested in the development 
 of the art of flying, that the demands of progress require a uni- 
 form law operative throughout the country, and emanating from 
 a single source of power; and that the national government is 
 obviously this single source ; and that no uniform law, uniformly 
 interpreted and uniformly administered, can be expected from 
 the joint or similar action of one national legislature and the 
 federal courts and of 48 state legislatures and the state 
 courts; it necessarily follows that if this Judgment is to be fol- 
 lowed the national government should be vested with the power, 
 to be exercised, as we have already said, from time to time as 
 may be deemed expedient. It may appear expedient in the early 
 stages of the art, and until otherwise demonstrated by experi- 
 ence, that many features of regulation of peculiarly local interest 
 shall be suffered to be locally regulated; a method which finds 
 analogy and illustration in the early history of the cautious 
 exercise of the Congressional power to regulate interstate 
 commerce. 
 
 The Pbacticai Beamng of Law on Aeeonautics. 
 
 To those who are unfamiliar with the problems inherent in 
 the development of the art, it may seem that the problem of 
 jurisdiction (which we have made paramount) and the problem 
 of law are good enough things for lawyers to wrangle about, but 
 that they have no practical bearing upon the success of the art 
 or its commercial progress. 
 
 As the result of such information as has come to us from prac- 
 tical sources, we are impressed that at present the legal problem 
 is the most serious one which exists. And the reason for this lies 
 in the fact that while already the mechanical problems have 
 been fairly well mastered for the early stages of an art which 
 has been developed in these features with marvelous rapidity, 
 the law has, in this country at least, been entirely undeveloped, 
 and behind this fact lies substantially the whole problem of suc- 
 cessful commercial development, as we shall later indicate. 
 
10 
 
 But we shall pause to invite attention as an illustration of the 
 extent of the mechanical development, to the six annual reports 
 of the National Advisory Committee for Aeronautics (Washing- 
 ton, Government Printing Office, 1915-1920), and to the amaz- 
 ingly large bibliography of the subject from July 1, 1909, to 
 December 31, 1916, containing 1493 pages, and lists of approxi- 
 mately 40,000 publications, compiled by Paul Brockett and 
 issued from the Government Printing Office, 1931, pursuant to 
 act of Congress, July 1, 1918. Of course the possibilities of 
 military use received abundant verification during the war; 
 while the current use for postal purposes and the few lines already 
 established for pleasure flight demonstrate larger possibilities. 
 Eegular commercial flight has now been established between 
 London and Paris, and has been much patronized by Americans 
 travelling between the two cities. From time to time the news- 
 papers have contained reports of other lines established over 
 parts of the continent of Europe. So far as we are advised only 
 a very few, if any, regular commercial lines, and these purely for 
 pleasure flight, have been established in this country, and the 
 backwardness of our commercial development has been the sub- 
 ject of unfavorable comment. Wherever we have inquired as to 
 the cause of this we have been met with the same answer : the 
 fault is with the law. 
 
 So that, so far is the law from being merely a matter of 
 speculative amusement for theoretical lawyers, our inquiries have 
 led us to believe that the law respecting aeronautics is the one 
 fundamental vital problem of the actual commercial development 
 of the art at the present time. And the reasons are wholly com- 
 mercial and the result of hard headed though conservative busi- 
 ness sense. The utter uncertainty of the law makes the risk 
 incalculable, and accordingly dissuades the investment of capital. 
 Without capital readily available, the adequate development of 
 commercial flight is practically impossible. Capital may be and 
 has been persuaded to embark in manufacturing, but capital must 
 be induced to embark in purchase and operation. Closely linked 
 with capital is insurance, for capital, except of the most specu- 
 lative kind, cannot be induced without that distribution of risk 
 which insurance permits. Yet insurance is dissuaded very largely 
 because of the uncertainty and conflict of laws, whose application 
 is beyond the power of prediction; actuarial acumen may cal- 
 culate the risks of flight within some sort of limits from available 
 experience, but no actuarial acumen can imagine the incidental 
 risks of altogether uncertain law. 
 
 The insurance interests have been alert. In July, 1920 the 
 National Aircraft Underwriters Association was formed with 
 headquarters in New York, and we have been in communication 
 with their representatives. 
 
11 
 
 The State of the Law. 
 
 So far as we are advised^ the embarrassments arising from tlie 
 state of the law may be conveniently attributed to the following 
 specific difficulties in law : 
 
 The uncertainty as to what the law is governing any particu- 
 lar datum. 
 
 The lack of any uniform law. 
 
 The conflict of laws. 
 
 The insufficiency of law. 
 
 The hazard of unregulated flight. 
 
 The hazard of undefined responsibility. 
 
 The hazard of personnel in unlicensed or unequipped or inade- 
 quately equipped pilots. 
 
 The hazard of deficient air worthiness of aircraft. 
 
 The bugaboo in the legal or supposed legal maxim, " Gujus 
 est solum, ejus est usque ad coelum." 
 
 Together these make up a bunch of uncertainties and a bunch 
 of embarrassments, which make the proper conduct of the busi- 
 ness of air craft insurance extremely difficult if not impossible. 
 New York has by statute authorized the formation of such com- 
 panies and insurance against loss occasioned by and to aero- 
 planes (Laws 1919, ch. 391-393). As for the licensing of pilots, 
 so far as we are advised, this has been done hitherto in this 
 country (save in Massachusetts, Law 1913, ch. 663 ; 1919, 
 ch. 306; Connecticut, Acts 1911, c. 86, Gen. Stats. 1918, 
 c. 176, sees. 3107-3117, and Oregon, 1921, c. 45, where statu- 
 tory provision for licensing is now made) by a private member- 
 ship corporation of New York, the Aero-Club of America, 
 which has thus far granted 6806 licenses : 
 
 4973 aviation 
 764 hydroaeroplanes 
 931 spherical balloons 
 138 dirigibles 
 
 6806 
 
 Its licenses, we understand, have been recognized in inter- 
 national sport by reason of its affiliation with the Federation 
 Aeronautique Internationale, which it represents in the United 
 States. This federation, founded in 1905, issues its " Statuts 
 et Eeglements Generaux." It has held numerous conferences in 
 different cities of Europe and has affiliated clubs in 18 countries. 
 But now the licensing of pilots has, since the international 
 conventions on aeronautics (as a result of the work of the Inter- 
 national Commission dealing with aerial navigation and ap- 
 pointed as a sub-commission of the P'eace Conference), become 
 a matter of serious international import. This fact, illustrated by 
 
13 
 
 the recent attitude (as appears in the newspapers) of the Cana- 
 dian Government, under the terms of the international conven- 
 tion to which it is a party, in intimating a purpose and a duty 
 to exclude fliers from the United States who are unlicensed under 
 a law; a situation which, as we are advised, has been somewhat 
 mitigated by a temporary arrangement, the necessity for which is 
 a sufficient commentary alike upon the inadequacy and the rudi- 
 mentary condition of our laws and our legal concepts concerning 
 aeronautics. 
 
 We are advised also that the Air Board of Canada has signi- 
 fied a willingness, within its powers, to manifest a liberal spirit 
 in the encouragement of international flight between the United 
 States and Canada. But at the time of framing this report we 
 have been unable to get full information of the actual present 
 conditions. 
 
 The British Air Navigation Acts, Eegulations and Directions 
 afford an example of the extent to which complete legal regula- 
 tion has gone elsewhere, and are in striking contrast to our legal 
 inactivity. (Air Navigation Acts 1930, 10 and 11 Geo. V, 
 c. 80; 1919, 9 Geo. V, c. 3; 1913, 2 and 3 Geo. V, c. 22; 1911, 
 1 and 2 Geo. V, c. 4; Air Force (Constitution) Act 1917, 7 and 8 
 Geo. V, c. 51; Air Navigation Eegulations 1919, No. 525; Air 
 Navigation Directions 1, 1919.) In our first preliminary re- 
 port to the Executive Committee (January 3, 1931) we men- 
 tioned that certain (sporadic and incomplete and inexhaustive) 
 laws or ordinances had been enacted in the United States, which 
 we now enumerate more definitely : 
 
 In Connecticut, to regulate operation, June 8, 1911 (now Gen. Stats. 
 1918, ch. 176, chs. 3107-3117). 
 
 In Massachusetts, to regulate operation, July 12, 1919 (Gen. Acts, 
 ch. 306, superseding Act 1913, c. 663). 
 
 In Hawaii, to prohibit unlicensed operation, Laws 1917, Act 107. 
 
 In California, to prohibit use in hunting, 1919, ch. 300. 
 
 In Michigan, to prohibit use in hunting, Pub. Acts 1919, No. 82. 
 
 In Texas, to authorize construction, etc., corporations, 1919, ch. 9. 
 
 In Washington, to provide for maintenance of facilities by' local gov- 
 ernments, 1919, 0. 48. 
 
 In Wisconsin, to provide county stations for aircraft, 1919, c 613 
 
 In New York, 1919, chs. 391-393, to permit insurance. 
 
 In Los Angeles, Cal., Newark, Atlantic City and, Nutley, N J and in 
 Kissimee, Fla., local ordinances. '' 
 
 Since that time our attention has been called to the ordinance 
 of February 23, 1921, regulating flight over New York City, and 
 to tlie comprehensive law of Oregon, 1921, c. 45, for a board 
 of aircraft examiners and the regulation of flying and register- 
 ing of aviators. 
 
 In our said preliminary report we enumerated the bills and 
 resolutions pending before Congress consisting of list of matters 
 
13 
 
 pending before Congress relating to aviation, not including 
 matters relating to specific plants, specific inventions, particular 
 projects and the like : 
 
 Senate: No. 2693, Mr. New, July 31, 1919, to create a Department of 
 Aeronautica, etc. Referred to Committee on Naval Affairs. 
 
 No. 4478, Mr. Keyes, June 1, 1920, to create a Bureau of Aeronautics 
 in the department of the navy. February 2, 1921, reported without 
 amendment. 
 
 Joint resolution 56, October 21, 1919, to enable United States to par- 
 ticipate in the work of the International Aircraft Standards Commis- 
 sion. Passed the Senate. 
 
 House of Representatives: No. 4469, Mr. Kahn, June 2, 1919, author- 
 izing the President to make regulations, etc., covering participation by 
 the United States in the work of the International Aircraft Standards 
 Commission. 
 
 No. 7925, Mr. Curry (California), July 28, 1919, to establish a Depart- 
 ment of Aeronautics, etc. 
 
 No. 9804, Mr. Curry (California), October 8, 1919, to create a Depart- 
 ment of Aeronautics, etc. 
 
 No. 10108, Mr. Kahn, October 22, 1919, to establish an aeronautical 
 experimental, development andi engineering plant for the air service. 
 
 No. 10252, Mr. Kahn, October 29, 1919, to provide for the assistance of 
 service aviators in distress, etc. 
 
 No. 13803, Mr. Kahn, April 27, 1920, to make more effectual provision 
 for the aerial defense of the United States, etc. 
 
 No. 12134, Mr. Hull (Iowa), January 29, 1920, to create a Department 
 of Aeronautics, etc. 
 
 No. 14061, Mr. Kahn, May 13, 1920, to regulate air navigation within 
 the United States and its dependencies, and between the United States or 
 any of its dependencies or any foreign country or its dependencies. 
 
 No. 14137, Mr. Hicks, May 19, 1920, to create a Bureau of Aeronautics 
 in the Department of Commerce, etc. 
 
 H. R. 1428, Mr. Tilson, for the protection of aircraft industry from 
 unfair foreign competition. 
 
 Since that time the following have been introduced and are, 
 so far as we are advised, still pending : 
 
 Senate 656, Mr. Keyes, to create a Bureau of Aeronautics in the 
 Department of the Navy. 
 
 H. R. 16151, Mr. Curry, February 24, 1921, to create a Department of 
 Aeronautics, defining the powers and duties of the secretary thereof, pro- 
 viding for the organization, disposition, and administration of a United 
 States air force, and providing for the development of civil and com- 
 mercial aviation, the regulation of air navigation and for other purposes. 
 
 H. R. 201, Mr. Kahn, April 11, 1921, to regulate air navigation within 
 the United States and its dependencies, and between the United States 
 and any of its dependencies and any foreign country or its dependencies. 
 
 H. R. 202, Mr. Kahn, April 11, 1921, to make more effectual provision 
 for the aerial defense of the United States and to provide for the con- 
 centration of the national air strength. 
 
 H. R. 271, Mr. Hicks, April 11, 1921, to regulate air navigation within 
 the United States and its dependencies, and between the IJnited States 
 or any of its dependencies and any foreign country or its dependencies. 
 
 H. R. 273, Mr. Hicks, April 11, 1921, to create a Bureau of Aeronautics 
 in the department of the navy. 
 
 H. R. 281, Mr. Hicks, April 11, 1921, to create a Bureau of Aeronautics 
 in the Department of Commerce, and providing for the organization 
 and administration thereof. 
 
14 
 
 H. R. 4395, Mr. Curry, April 19, 1921, to create a Department of Aero- 
 nautics, defining the powers and duties of the secretary thereof, providing 
 for the organization, disposition and administration of a United States 
 air force, and providing for the development of civil and commercial 
 aviation, the regulation of air navigation, and for other purposes. 
 
 H. R. 5219, Mr. Hicks, April 26, 1921, to create a Bureau of Aeronau- 
 tics in the Department of the Navy. 
 
 The practical problem of the form and extent of the necessary 
 legislation involves so much technical detail and has received 
 and is receiving so much discussion before Congressional com- 
 mittees and otherwise that we do not feel that it behooves either 
 this committee or the American Bar Association to become the 
 advocates or the framers of any specific bill or form. 
 
 This Committee's Function. 
 It seems to us that this committee's function may properly 
 be limited, for the present at least, to the gathering and report- 
 ing of appropriate information, and indicating in a very general 
 way the fundamental problems of jurisprudence and of law. 
 This we have endeavored to do, without suggesting the character 
 of the legislation. 
 
 Peivate Ownership of the Aie. 
 
 There is one prepossession which we have mentioned: the 
 bugaboo in the legal or supposed legal maxim, " Oujus est 
 solum, ejus est usque ad caelum." Since this maxim and its 
 possible application offer one of the most substantial grounds for 
 the apprehension of embarrassment in the adequate encourage- 
 ment of commercial air flight, we think that it behooves jurists 
 to consider the history and limitations of the maxim, to the end 
 that its correct limitations may be well understood. And with- 
 out undertaking to brief the subject we venture the suggestion 
 that the proper fundamental limitations of the application of 
 the maxim will possibly be found in the development and appli- 
 cation as a just and proper corrective, of a less well-known prin- 
 ciple, which was, however, it appears, applied as a matter of 
 pubHc and common right in the early history of the law of 
 roads, in which the element of passage or going, or the journey 
 was the controlling concept of right to which the private right 
 of ownership adjacent to or even underlying the road was made 
 subordinate in case of necessity. The right to go was (in the 
 terms of this principle) deemed a right dominant over the right 
 of adjacent ownership, and hence, if a highway was blocked, it 
 was a part of the public right of which a traveller by the high- 
 way might avail himself as matter of individual right, to use the 
 adjoining private property even if necessary to the' extent of 
 trampling down the growing crop, in order to persist in the 
 journey ; and so, in a legal sense, the road is the journey, and not 
 
15 
 
 merely a fixed location within definite boundaries. And so, it was 
 recognized as a principle of English law that when the journey 
 required, the private right was subordinate to the common right 
 (see the thought in Norman French, Kolle's Abridgement, p. 
 392, A. D. 1668, quoting from case in Trinity Term 10 Charles 
 I; Year Book 3 Bdw. IV, p. 9; Viner's Abridgement (1791), 
 vol. 4, p. 503; 2 Sheppard's Abridgement (1675), p. 206). We 
 suggest that in this principle, if further investigated, lies perhaps, 
 the existing and recognized, but little utilized ground, upon which 
 the private right may be limited without violence to the existing 
 law of private property. In making the suggestion we are not 
 unaware that if the analogy of the law of roads is followed, there 
 would be the troublesome assumption (Bacon's Abridgement- 
 Highways) that outside of the four ancient " highways " of 
 England {quatuor chemini — Watling Strete, Ikenilde Strete, 
 Fosse, Erming Strete), the other roads {chemini minores — 
 county roads — and viae vicinales — ■ local roads) are supposed to 
 have been made through private persons' grounds on writ of 
 ad quod damnum (Bacon's Abridgement — Title Highways) . 
 But we wish to direct the attention of the profession and of 
 legislators to the possible channels in which will be found mate- 
 rial for combating the contention that in its practical applica- 
 tion the private landowner has it within his legal power, through 
 the operation of the maxim '''' Cujus est solum, ejiLS est usque ad 
 coelum " to embarrass if not to kill the reasonable development of 
 flight for commercial if not for military purposes, though we 
 confess that the maxim itself does not in terms at least admit of 
 the invasion of private right in time of peace for military reasons. 
 We recur below to this same subject in discussing a recent publi- 
 cation. 
 
 Eecent Publications and Que Incidental Comments. 
 
 While our first preliminary report above mentioned shows an 
 extensive bibliography of publications upon the law of the air, 
 two notable reviews of the legal questions involved have since 
 appeared : " Problems in Aviation Law " in the Cornell Law 
 Quarterly (vol. VI, p. 271), by George Gleason Bogert, pro- 
 fessor of law in the Cornell University College of Law and a 
 member of this committee and of the Committee on Aviation of 
 the Conference of Commissioners of Uniform State Laws; and 
 the " Air Service Information Circular " (vol. II, No. 181, 
 February 26, 1921) on aviation, published by the Chief of Air 
 Service, Washington, D. C, containing " LegaL Questions Af- 
 fecting Federal Control of the Air," consisting of : " Discussion 
 of Legal Questions Affecting Federal Control of the Air " and 
 Briefs on " Admiralty and Maritime Jurisdiction," " Limita- 
 tion of Judicial Power of United States," " Force and Effect of 
 
16 
 
 Treaties as the Law of the Land," " Taking Property for Public 
 Use," " The Use of the Interstate Commerce Provision of the 
 Constitution," and "Bibliography of Legal Aeronautics." 
 (Washington, Government Printing OfSce, 1921.) These two 
 discussions are' probably the most exhaustive, as they are the 
 latest treatment of the legal and constitutional problems involved 
 in the effective regulation of aeronautics in the United States. 
 The Travelers Insurance Company and the Travelers In- 
 demnity Company of Hartford, Conn., have Jointly issued a 
 monograph entitled " Airplanes and Safety," which emphasizes 
 the necessity for "uniform and stringent laws governing the 
 licensing of pilots, the construction and use of aircraft, and the 
 conduct of air-navigation generally." 
 
 The Air Seevice Infokmation Cirottlae and its Briefs 
 
 In the "Air Service Information Circular" Major Elza C. 
 Johnson, of the United States Army, legal adviser to the air 
 service, in discussing the legal questions recognizes that no more 
 can be done by the federal government than the Constitution 
 especially delegates (a proposition which, though undoubtedly 
 true from the standpoint of any student of constitutional law, 
 appears to have received scant consideration or scant respect 
 from those who are impatient for results) . Major Johnson closes 
 his discussion with a recommendation, as we have already done 
 above, for a constitutional amendment granting control to the 
 national government. And he bases his recommendation not 
 only upon his recognition of the primary principle of constitu- 
 tional law above mentioned, but upon the proposition of practical 
 expediency that now the people are willing to grant the power, 
 but later the claims of property owners may become so prominent 
 that every power will be invoked to make users of the air pay 
 tribute for the privilege. His closing paragraph and his specific 
 recommendation for a constitutional amendment are as follows : 
 
 " It would appear, therefore, wise to study well the rights of 
 the individual, who, after all, is the sovereign power, and, know- 
 ing these rights, exercise an effort to establish by popular grant, 
 to the state and to the federal government, the right to control 
 the traffic of the air. 
 
 " In my opinion this can be done by bringing to the foreground 
 the issue : the use of the air for transportation of mail, freight, 
 and passengers, and the need of universal understanding as to 
 codes and signals and landing field regulations for the safety 
 of the operators, the passengers, and the owners of the earth. 
 It would, in my opinion, be disastrous to raise the question of the 
 value of private ownership at all, either in the courts or in a cam- 
 
17 
 
 paign for constitutional grants. The grant should, I believe, 
 be by constitutional amendment in something like the following : 
 
 Congress shall have power to provide for regulating the use for air 
 travel of all £.ir space over the earth and within the borders of the 
 United States and its territories, and all countries over which the United 
 States has jurisdiction, including the 3-mile limit on the seas; and to 
 provide for regulations of landing fields, a fixed code of signals, and 
 signs for the navigation of the air and the landing of aircraft. Congress 
 shall have further power to provide for the enforcement of said regu- 
 lations and establish air admiralty courts, or grant to the existing courts 
 the jurisdiction of the admiralty law of the air, which jurisdiction shall 
 include the punishment of all crimes committed on aircraft, whether 
 in the air or in port at landing field, and over all civil cases over which 
 admiralty courts now, or hereafter, generally have jurisdiction, which 
 have their source in air travel.' " 
 
 In our judgment, while we believe that recourse to a consti- 
 tutional amendment is desirable, the greatest care should be 
 taken to make it amply comprehensive. It should be remem- 
 bered that the art is in its infancy and its incidents as we now 
 know them may soon become antiquated; therefore the consti- 
 tutional power should not be so phrased as to prove restrictive 
 instead of adequate in its operation. A conscientous endeavor 
 should be made to adapt any constitutional amendment to the 
 possibilities of the art. 
 
 The briefs annexed to the Air Service Information Circular 
 establish or tend to establish the following propositions, and they 
 are valuable collations of the pertinent authorities (the matter 
 in brackets being the observations of this committee) : 
 
 Admiralty and maritime jurisdiction, though granted in this 
 broad phrase, is subject to many limitations, adjudged by the 
 courts in defining what such jurisdiction includes. 
 
 [We are prompted to suggest that these limitations make it 
 desirable that the power to be exercised over aeronautics by the 
 federal government ought, possibly, not to be similarly limited, 
 and that the analogy of admiralty and maritime jurisdiction 
 should not be too closely followed.] 
 
 The judicial power of the United States under the Constitu- 
 tion is so limited that cases must arise either from a constitu- 
 tional right, or from a law of the United States or a treaty, or 
 from a controversy involving land under certain grants. 
 
 [This suggests the advisability of carefully considering the 
 appropriate judicial power when formulating any amendment 
 to the Constitution.] 
 
 Federal control over the air may be extended in enforcement 
 of treaties relating to air navigation. 
 
 [This suggests the reflection that treaties could scarcely be 
 expected so to cover the entire subject matter that complete con- 
 trol of air regulation would be a necessary incident of their 
 enforcement.] 
 
18 
 
 The doctrine of private ownership of the space above the earth 
 and the mass under the earth gives to the private owner of land 
 an unlimited ceiling for his domain, and the conversion of any 
 of that space for air travel can only be effected by the exercise 
 of eminent domain, with adequate compensation. 
 
 [There is no more serious embarrassment to the development 
 of air navigation than the acceptance of this doctrine as thus 
 stated. We are not satisfied that it correctly states the actual 
 condition of the law. We have already called attention to the 
 modifying principle, which, in early times, the English courts 
 seem to have found no difficulty in applying to the law of the 
 right of travel by highway. We shall later mention Professor 
 Bogert's observations upon the limited extent to which the com- 
 monly accepted maxim has been applied by the courts in litiga- 
 tion. We feel that this crucial proposition deserves the most 
 careful consideration, and that the right of private property in 
 the air so as to effect exclusive ownership, to the extent of making 
 the flier a trespasser in flight, and to require the exercise of 
 eminent domain to establish air routes should not be so readily 
 conceded. It seems to us that it should rather be incumbent upon 
 the private owner to demonstrate the extent of private owner- 
 ship, and that, since the convenient maxim which we have already 
 quoted has never been applied to mere flight at great heights, it 
 should be viewed as an unprecedented question involving rights 
 which have never been asserted or enjoyed as an incident of such 
 ownership; and there is no substantial reason for utilizing the 
 maxim to extend private rights, never heretofore actually enjoyed, 
 to the exclusion of the common right. We submit that it should 
 be the law that it is not an invasion of private right to utilize the 
 air over land for passage by flight, if such flight is accomplished 
 without jeopardizing any right heretofore usually beneficially 
 enjoyed in the ownership of land ; and that the rights of owner- 
 ship are those benefits which have hitherto been commonly recog- 
 nized as incident to such ownership. We feel that this committee 
 can do no more beneficial service to the public and the common 
 interests of all of our people than to challenge the proposition 
 that it is an invasion of the rights of private ownership of prop- 
 erty to utilize air for purposes of flight 
 
 Incidentally, we mention that Mr. Spaight in his book, " Air- 
 craft in Peace and the Law" (p. 54), attributes this maxim, 
 which threatens such dread results to the law and art of air 
 navigation, to a note of Accursius a Glossator at Paris in 1519. 
 
 We feel that the essential interests of air flight demand that 
 jurists and lawyers should not be led into any supine concession 
 that our law already vests in private ownership the private right 
 to exclude fliers from the air. It scarcely behooves us at this time 
 to prepare a brief upon this proposition, citing the limitations 
 
19 
 
 of actual enjoyment hitherto of private ownership as illustrated 
 by various interferences with rights in the air. But we not only 
 direct attention to the ancient principle in the law of roads which 
 we have mentioned above as a limitation of the owners' right, but 
 also to the limitation of the ownership below the surface implied 
 in the ancient doctrine of the ownership of minerals under the 
 surface (27 Cyc. 541), as well as in the modern doctrine of the 
 ownership of a vein under another man's land through owner- 
 ship of its apex (Costigan on Mining Law, p. 138), and the 
 public easement of the use of navigable streams though the 
 landowner owns the soil beneath them.' 
 
 In this connection we also call attention to the fact that the 
 Statute of Winchester, A. D. 1285 (Stubb's Select Charters, 
 p. 469), required the abatement of dykes, trees and bushes within 
 two hundred feet on each side of highways leading from one 
 market town to another, and prescribed that the lord who would 
 not so abate should be answerable for the felony of robbery if it 
 should be done by persons lurking behind the same; and if 
 murder should be caused by them the lord should make a fine at 
 the King's pleasure, thus imposing a duty upon the owner of the 
 adjacent soil in support of the safety of the highway. The 
 recent rent legislation in New York (whose constitutionality has 
 been sustained), in the exercise of the police power in the regu- 
 lation of excessive, rents may also afford an analogy under which 
 the right of the private owner may be subordinated to the public 
 interest. Other illustrations might also be suggested, but we 
 do not multiply them.] 
 
 The modern development of the power of Congress to regulate 
 commerce has been brought into question as encroaching upon 
 the powers of the state and individual rights. 
 
 [We have become familiar with extension of the regulations 
 by Congressional authority into fields commonly governed by 
 state law, under the application of the principle of non- 
 interference with interstate commerce by casting an undue bur- 
 den upon it through forcing it to contribute to the cost of 
 intra-state traffic by means of the state regulation of rates. The 
 controversial possibilities of this contention have received recent 
 illustration, especially in the pending controversy over the con- 
 fiict between the orders of the Interstate Commerce Commission 
 permitting a three-cent per mile fare in interstate traffic and the 
 law of New York requiring a two-cent rate, anplied to intrastate 
 traffic between New York City and Buffalo. 
 
 The extent to which the regulation of intrastate air traffic 
 might be effected by national authority under the guise of pro- 
 tecting interstate flight is matter for argument, but the contro- 
 versies which it would certainly provoke bode no good to the 
 development of the art. They but point the more forcefully 
 
20 
 
 the desirability of avoiding such conflict through extending the 
 national authority by constitutional amendment.] 
 
 The brief which we are considering points out the similarity of 
 air navigation to river navigation, and says : 
 
 The private ownership of the bed of the stream will be similar to 
 the private ownership of the space above the land. The- easement to the 
 public for navigation and commerce on rivers is very much like the 
 easement that must be eventually granted to the government for the 
 navigation of the air. It will be the use of private property for public 
 travel. 
 
 [We do not think that it should be so readily conceded that such 
 an easement must lie in grant, or that the use for public travel 
 is necessarily an invasion of private right. (The laws of Edward 
 the Confessor confirmed by William the Conqueror under the 
 title De Pace Regis in taking the waters of rivers under the 
 protection of " The King's Peace " provided for the destruction 
 of obstructions in such waters — Lombard, Archainomia sive de 
 prisci Anglorum legibus libri, — London, 1568.) We cannot too 
 often urge that the extent of private ownership in the air space 
 so as to embarrass public travel through the air is itself a new 
 question in jurisprudence not to be passed over by concession or 
 properly solved by indifferently yielding to claims of private 
 ownership which are not a necessary consequence of principles 
 already recognized in the law of private property.] 
 
 The publication which we have been discussing contains a 
 valuable bibliography of legal aeronautics, though it does not 
 discuss the views of the writers. With slight exceptions it confines 
 its discussions to Constitution, statutes, and judicial decisions in 
 the United States. 
 
 [We submit that in this new branch of jurisprudence those 
 affected by the subject matter should not be contented to follow 
 in the groove of judicial precedent without that broadness of 
 vision which comes from the study of the fundamental concepts 
 of right as expressed by philosophical writers and thinkers, both 
 of our own and of other nations. 
 
 The specific questions of individual right and of particular 
 circumstances which these publications suggest are too numerous 
 for discussion in a report of this character, but illustrations of 
 their scope are afforded by some of the titles, for instance: 
 " Births, deaths and marriages in aircraft during flight " ; " Ex- 
 territoriality in aerial locomotion " ; " Force Majeure and its 
 effects on civil obligations connected with aexonautics " ; " Owner- 
 ship of the ground and freedom of the atmosphere " ; " La loi des 
 contrees descries et des pointes inaccessibles " ; " L'aviation sur 
 les eaux territoriales " ; " Avions sanitaires et conventions de la 
 croix-rouge " ; " L'air : un nouveau domaine juridique " ; " La 
 responsabilita penale dei reati commessi nello spazio aereo e la 
 
31 . 
 
 giurisdizione istmttorea " ; " L'assurance sur la vie et I'avia- 
 tion " ; " Liability for accidents in aerial navigation " ; " Air 
 Sovereignty " ; " Mortgages and liens upon aircraft " ; " The right 
 of property in the air " ; " Domicile in connection with aircraft 
 damage " ; " Applicability of rules of maritime law to the air 
 space " ; " Delicts and quasi-delicts in the air " ; " Guarantees of 
 capacity of aviators " ; " Guarantees of capacity of constructors " ; 
 " Ownership of the ground and the freedom of the atmosphere ; 
 the right of circulation and of landing " ; " Paper on insurance " ; 
 " Licenses and industrial property " ; " Policing of Aerodromes 
 and aerial meetings " ; " Rendering of assistance to aircraft." 
 
 The enumeration of these selected titles, which are only a few 
 in the bibliography of the subject will serye to illustrate to the 
 average lawyer or judge who has given no consideration to the 
 matter, what a tremendous field of jurisprudence is opened by 
 these air problems, and how imperative it is that they should be 
 solved with a breadth of vision which will not suffer the develop- 
 ment of the art to be hampered within the petty meshes of a 
 misconceived slavery to the analogies of judicial precedents, which 
 were devised without any concept of their application in this 
 new sphere. 
 
 Altogether this Air Service Information Circular upon legal 
 questions affecting federal control of the air is doubtless the 
 most exhaustive contribution to the subject from the standpoint 
 of federal law, though it appears to concede vnithout challenge, 
 discussion, or doubt, the principle of absolute and exclusive pri- 
 vate property in the atmospheric space; a proposition which in 
 our opinion should not be supinely yielded, but in the common 
 interest should be challenged, discussed, debated, and yielded only 
 to the extent that the private owner may demonstrate according 
 to the accepted and tested principles of jurisprudence that the 
 claim is an essential part of his right of private property. We 
 deem this unchallenged concession to be the most dangetous 
 element which can threaten the most useful development of air 
 navigation, and advise that it should be combated upon every 
 reasonable ground of jurisprudence, history, legal principle and 
 common right, without, however, impairing the right of private 
 property as it has developed in actual recognized beneficial 
 enjoyment.] 
 
 " Problems in Aviation Lav^t." 
 
 The other of the two recent reviews of the law of aeronautics 
 which we have mentioned is that of Professor Bogert, a member 
 of this committee, upon " Problems in Aviation Law." He 
 points out that except for legislation in two states it cannot be 
 said with positiveness whether an aviator is a trespasser against 
 the owner of the underlying land, under what circumstances an 
 
23 
 
 aviator is liable for damage from a falling machine, or where the 
 constitutional authority of regulation lies. He says: "Nor is 
 there any general law, except the law of self-preservation, which 
 forbids an inexperienced and incompetent pilot from flying any- 
 where in a defective machine." He notes that "the more im- 
 portant European countries have adopted air codes, but America 
 lags behind." He also expresses the opinion that the expedient 
 of local ordinances, forced by the inactivity of states and nation, 
 is undesirable and is productive of much confusion, and practi- 
 cally impossible of enforQement. In respect to the necessary 
 statute law, he says : 
 
 " If these statutes are to be harmonious, complete, scientific and well- 
 drafted, the several legislatures and the bar generally must be informed 
 of the experience of other countries, must have clearly in mind the fun- 
 damental legal problems involved in aerial navigation, and must study 
 carefully the constitutional limitations of the sta.te and federal 
 legislatures." 
 
 He states that the development of peace time international 
 air law was long retarded by a conflict of views among jurists 
 upon the fundamental question of the relation of a state to the 
 space over its territory, but the view which has definitely pre- 
 vailed is that of territorial sovereignty over the air. The guiding 
 principles of an International Air Navigation Convention were 
 established by the commission to study air questions, instituted 
 in March, 1919, by a decision of the Supreme Council of. the 
 Paris Peace Conference. Upon this commission the United 
 States had two representatives. These principles included the 
 recognition of sovereignty over the air above territories and ter- 
 ritorial waters, with freedom of international navigation, so far 
 as consistent with security of the state, without discrimination 
 on the ground of nationality ; the nationality and registration of 
 aircraft; regulations for safety, including certificates of air 
 worthiness, licenses for personnel, international recognition, rules 
 of the air for signals, lights and the prevention of collision, rules 
 for landing and ground rules. The convention, with reservations, 
 was signed in behalf of the United States on May 31, 1920, but 
 has not been ratified by the Senate, hence it is still not binding 
 on the United States. The convention provides for an Inter- 
 national Commission for Air Navigation and contains specific 
 provisions concerning marking aircraft, certificates of air worthi- 
 ness, log books, rules as to lights, signals and methods of flight, 
 qualifications of pilots, aeronautic maps and ground marking' 
 the collection and dissemination of meteorological information^ 
 and customs. The convention links the commission with the 
 League of Nations. Such treaties of peace as have been effected 
 in European nations have contained clauses relating to the in- 
 
23 
 
 ternational law of aviation, which is thus on the point of assum- 
 ing definite form. The Convention contains no provision 
 granting extraterritorial Jurisdiction, but allows the rights and 
 duties of aviators to be controlled by the law of the state over 
 which they are flying and leaves each such state to determine for 
 itself the question of liability for injuries to person or property 
 by aircraft; it concerns flying by foreign and not by domestic 
 craft. Professor Bogert points out the effect of Article 5 of the 
 Convention in prohibiting flight within a state of craft not pos- 
 sessing the nationality of a contracting state, except by a special 
 and temporary authorization. (It is, we understand, by reason 
 of this clause, that difficulty has recently arisen respecting flight 
 by American aviators in Canada. No more forcible illustration 
 than this is required of the difference between air navigation and 
 navigation of the high seas. Not only does the- Convention recog- 
 nize sovereignty of the air, but it thus provides for the necessary 
 exclusion from flight, save by special and temporary authoriza- 
 tion, of all aircraft not possessing the nationality of a contracting 
 state.) Mr. Bogert shows that the British Air Navigation Act 
 of 1920 ratifles the International Air Navigation Convention 
 of 1919 and provides in detail various measures for carrying it 
 into effect. It denies any right of action for trespass or nuisance 
 on account of reasonable flight, but allows recovery from the 
 owner for ■actual damage, without proof of negligence or intent 
 or other cause of action, except in case of contributory negli- 
 gence; the owner to have a right of action over against another 
 wrongfully causing the damage, with the right to cause him to 
 be brought into the initial action; the owner to be exonerated 
 and the liability borne instead by anyone hiring the craft for 
 over fourteen days. The act imposes severe penalties for unneces- 
 sarily dangerous flight, and applies the law of wreck and salvage 
 to aircraft over or on the sea or tidal waters ; provision is made 
 for giving security for patent infringement. Provisions of 
 other laws are described by Professor Bogert, including the In- 
 dian, Canadian, French, German, Dutch, Swiss, Serbian and 
 Italian laws. He speaks of the early interest in the subject of 
 the Honorable Simeon E. Baldwin, of Connecticut, a former 
 president of this Association, and the resolution introduced by 
 him, which was referred to the Committee on Jurisprudence and 
 Law Eeform in 1911, and unfavorably reported by it because it 
 was not a subject of general interest about which there could be 
 no reasonable doubt as to the necessity for legislation. The re- 
 port of the committee said : 
 
 " The navigation of the air has not become so general as to permit of 
 uniform legislation so as to fix with legal certainty rules for its 
 government." 
 
24 
 
 The committee, however, expressed the forward-looking opin- 
 ion that the aviator should not be held to any greater liability 
 than the modern common carrier, and added : 
 
 " Unless liability springs out of some contract, or arises out of some 
 tort, the carrier should not be mulcted in damages, whether the carrier 
 be by land, sea, or air." 
 
 Governor Baldwin then turned to the legislature of his own 
 state, Connecticut, and on his recommendation the Connecticut 
 Act of 1911 was passed, the first measure regulating aviation 
 adopted in America. This act provided for registration, licensing 
 and marking, and adopted the rule of absolute responsibility for 
 damage by an aeronaut and his employer. Professor Bogert 
 states the leading characteristics of the subsequent acts of Massa- 
 chusetts in 1913 and 1919, Hawaii 1917, California 1919, Michi- 
 gan 1919, New York 1919, Texas 1919, Washington 1919, 
 Wisconsin 1919. These laws are diverse and fragmentary. It is 
 curious to note that in the absence of comprehensive law the 
 unofficial regulation of aviation has for some years past been a 
 function exercised by the Aero Club of America, a membership 
 corporation of Kew York. Professor Bogert shows that hydro- 
 aeroplanes have been classed as vessels by the Department of Com- 
 merce and so subjected to the federal water navigation laws. 
 (Opinion — Solicitor, Department of Commerce, E^ebruary 17, 
 1914; Order, Assistant Secretary of Treasury Peter's, Febru- 
 ary 31, 1916.) We are advised that a libel has been filed in the 
 Southern District of New York against a hydroaeroplane and 
 process issued thereon. The National Advisory Committee for 
 Aeronautics (instituted under the Naval Appropriation Act of 
 1915; Act of Congress March 3, 1915; Public No. 373) has 
 expressed the view that state legislation should follow and be in 
 accordance with national legislation, and that consequently the 
 states should withhold independent action. This, of course, is 
 essentially wise, if any uniformity is to be expected in the ab- 
 sence of a federal constitutional amendment. Professor Bogert 
 ajialyzes the bills pending before Congress, and states their 
 distinctive features ; that introduced by Senator Sherman recog- 
 nizes the ownership of the air space by the private landowner, 
 and would authorize him to forbid flight under penalty of dam- 
 ages with the right to an injunction ; it is characteristic of many, 
 if not all of these bills, that they assume the powex of Congress 
 over flight. One or two of the bills specifically declare the navi- 
 gable air and navigation of the air to be within the admiralty 
 jurisdiction of the federal courts. We submit that Congress can- 
 not create a power by declaring it to exist, and behind any decla- 
 ration of Congress lie the limitations of the Constitution. 
 Mr. Bogert observes : 
 
25 
 
 It will thus be readily seen that there is no uniformity in state legis- 
 lation in the United States and that such federal bills as have been 
 presented proceed upon radically different theories as to the basis for 
 federal legislation and the extent to which it may go. 
 
 We would add that the time has certainly come when it can no 
 longer be said, in the language of the Committee of Jurispru- 
 dence and Law Eeform in 1911, that this is not a subject of 
 general interest, or about which there can be any doubt as to the 
 necessity for legislation. The present uncertainty and confusion 
 can lead to but one result, the discouragement and retardation 
 of the development of the great possibilities in commercial 
 air flight. 
 
 Professor Bogert's article treats in detail of the following as 
 principal problems : Sovereignty over air space ; private property 
 in air space; basis of the aviator's liability for damage; regula- 
 tions to protect the pubHe ; and whether legislation shall be state 
 or federal or both. Upon the question of private property over 
 air space, he shows that in practical adjudication in the courts 
 the application of the accepted maxim of the extent of owner- 
 ship to the space not immediately adjacent to the soil and the 
 structures thereon is wanting. In treating the question of state 
 or federal legislation he considers and rejects admiralty juris- 
 diction as including aviation law, truthfully saying : 
 
 Nor can Congress by calling aviation law " admiralty " make it so. 
 If the federal legislature could by torturing the words of the federal con- 
 stitution into wholly unnatural meanings fix the bounds of federal con- 
 trol, there would be no limit to the powers of our national government. 
 
 He consider's the contention that the war power confers on the 
 federal government exclusive authority over civil aviation, a 
 theory entertained by some members of Congress, but adds : 
 
 The same argument would apply equally well to other industries neces- 
 sary to the support of an army, as, for example, the business of manu- 
 facturing and growing food. There would be no limit to the war power 
 if it were construed to have this effect. 
 
 In considering whether the power to make treaties grants 
 exclusive authority to the federal government to control aviation 
 (another constitutional power which some advocates assert could 
 be made the basis of exclusive federal control), he points out that 
 you must first have your treaty, and then, so far as existing con- 
 ventions go, they concern themselves with foreign aviators and 
 international aviation and are not exhaustive. He says : 
 
 But the conditions upon which interstate and intrastate flight are to 
 be allowed may well be entirely different from those governing inter- 
 national aviation, so long as certain disoriminatiops against foreign 
 aviators are avoided. 
 
 In considering the interstate commerce clause as authority for 
 federal control, he expresses the view that thereunder a federal 
 
26 
 
 act regulating international and interstate aviation only would 
 undoubtedly be constitutional. 
 
 He points to the obvious advantages of a uniform state avia- 
 tion law. He concludes that the regulation of interstate and 
 international aviation by the federal government and the control 
 of intrastate aerial navigation by the states (preferably through 
 a uniform act) are the only constitutional methods of action at 
 present. He says : 
 
 The uniform state bill might well include .... a statement of the 
 landowner's property in the space above his land, subject to an ease- 
 ment of passage .... 
 
 He indicates that the power to regulate intrastate flight as an 
 incident of interstate flight is a principle which should be spar- 
 ingly applied, adding : 
 
 Liberally construed, such a doctrine means the destruction of all state 
 rights. 
 
 He concludes : 
 
 Perhaps an all-powerful national air board and an all-inclusive na- 
 tional air code would be a desideratum if we were starting de novo, 
 but under our peculiar dual form of government, with a national govern- 
 ment of delegated powers, it is difficult to see how such results can be 
 accomplished without ignoring the federal constitution. 
 
 In the conclusions of Professor Bogert as above recited the 
 other members of this committee concur, but they serve to show, 
 in our opinion, the desirability of an adequate, amendment to the 
 federal constitution conferring more delegated power, rather 
 than either to confuse the subject and embarrass the art jjy legis- 
 lation of the character which he deems constitutional, or to 
 stretch the constitutional powers to grasp excessive authority in 
 disregard of the essential limitations in the explicit terms of the 
 Constitution itself. 
 
 President Harding's Message on Aeronautics and Its 
 Accompanying Bill. 
 
 The subject of aeronautics was called to the attention of Con- 
 gress in a special message of President Harding on April 19, 
 1931, transmitting a special report of the National Advisory Com- 
 mittee for Aeronautics prepared at his request and dealing with 
 federal regulation of air navigation, air routes to cover the whole 
 United States, and cooperation among the various departments 
 of the government concerned with aviation. He approved the 
 committee's statement of general considerations on a national 
 aviation policy,, and its recommendations for legislative action. 
 This report seems to conceive no power in the state governments. 
 It states : 
 
 "It is a pressing duty of the federal government to regulate air navi- 
 gation ; otherwise independent and conflicting legislation by the various 
 states will be enacted and hamper the development of aviation " 
 
While we are in entire accord with the view that independent 
 and conflicting state legislation will hamper the development of 
 aviation, we see in this no constitutional excuse for assuming 
 unconstitutional powers or for mating unconstitutional use of 
 ezisting powers. In our judgment it points to the necessity of 
 constitutional amendment. 
 
 _ In harmony with its tenet, the report recommends the adop- 
 tion of a bill which it appends, whose title appears to be indica- 
 tive of no doubt in the minds of its sponsors of the plenary power 
 of the federal government. It is entitled, " A bill to regulate air 
 navigation within the United States and its dependencies, and 
 between the United States and any of its dependencies and any 
 foreign country or its dependencies." We have italicized the 
 word " within " to indicate the unlimited scope of the bill. The 
 biU proposes the formulation of rules and regulations by the 
 commissioner of air navigation, for whom it provides, and their 
 approval by the Secretary of Commerce, and makes them binding 
 and enforceable from the date of promulgation. It apparently 
 contemplates the most complete and exclusive control within 
 the United States of the entire subject of air navigation, includ- 
 ing aircraft, personnel, management, airdromes, landing fields, 
 aerial routes. It prohibits the use or operation of aircraft within 
 the United States without a license from the commissioner of 
 air navigation (subject to certain exemption by treaty or con- 
 vention) ; it restricts the ownership of aircraft, provides for 
 annual licenses, and gives inquisitorial powers to the commis- 
 sioner. It prohibits the operation of airdromes except under 
 similar license and similarly restricts the ownership of airdromes. 
 It authorizes the commissioner to fix the license fees subject to 
 the approval of the Secretary of Commerce (thus, we assume, 
 avoiding the contention that this can be justified as tax legisla- 
 tion) ; it imposes severe penalties for violation and confers 
 jurisdiction upon the federal courts. It declares such portions 
 of the air as are navigable by aircraft and all aircraft navigating 
 the air to be within the admiralty jurisdiction of the federal 
 courts (thus apparently claiming by Congressional action the 
 power to establish a jurisdiction not conferred by the Constitu- 
 tion, by declaring the subject matter to be within a jurisdiction 
 which was constitutionally conferred). It confers jurisdiction 
 upon the district courts, of all cases involving air navigation and 
 aircraft; it saves to suitors a common law remedy where the 
 common law is competent to give it (not, however, otherwise 
 indicating where or in what courts the common law remedy is 
 to be enforced). It extends the maritime law and laws relating 
 to watercraft and water navigation to aircraft and air navigation 
 so far as applicable (thus creating a fruitful field for controversial 
 
28 
 
 litigation and a degree of legal uncertainty until after an event) , 
 and except (among other exceptions) as modified by the rules 
 and regulations (thus apparently conferring or attempting to 
 confer upon an administrative officer the power to modify a law) . 
 It contemplates its own partial invalidity by saving the parts 
 not held to be invalid. 
 
 It recognizes the continued existence of the states by author- 
 izing the Commissioner of Air Navigation to cooperate with 
 the various states, cities and municipalities for the purpose of 
 setting aside and establishing airdromes and landing fields to be 
 used in common by federal, state, municipal, commercial, and 
 private aircraft, but under the rules and regulations to be pro- 
 mulgated by the commissioner. 
 
 While the members of this committee share the common view 
 that the best interests of aeronautics demand that the power of 
 the federal government shall be extended (but by constitutional 
 amendment) to this subject matter, they do not regard the 
 existence of the subject matter as sufficient excuse for ignoring 
 either the Constitution or the states; nor do they consider that 
 a new subject matter is within a constitutional category because 
 it suits somebody to put it there. The bill itself tacitly acknowl- 
 edges that the subject matter is not within the admiralty juris- 
 diction conferred by the Constitution when it naively provides 
 that the maritime law shall be held to govern so far as applicable 
 and except as modiiied (among other methods) by the rules and 
 regulations promulgated by the Secretary of Commerce. 
 
 The Constitution says : " The judicial power shall extend 
 .... to all cases of admiralty and maritime jurisdiction " 
 (Art. Ill, s. 2) . The bill declares that navigable air and aircraft 
 navigating the air are within the admiralty jurisdiction of the 
 federal courts, but that maritime law shall be held to govern 
 aircraft and air navigation only in so far as applicable thereto and 
 as not modified (among other things) by the Secretary of Com- 
 merce. This provokes the inquiry whether it does not attempt to 
 impair the constitutional judicial power by grasping the subject 
 matter as within the category, and then making the law of the 
 category in part inapplicable. 
 
 It does not seem to us that these problems of fundamental 
 constitutional importance should be viewed with indiiferenee 
 either by the members of the American Bar Association or the 
 pubUe. The interests of aeronautics demand adequate legisla- 
 tion, but they do not demand the ignoring of constitutional 
 limitations, nor the impairment, except by proper constitutional 
 amendment, of the powers of the states. 
 
 We have thus analyzed this bill (which also prospectively con- 
 templates that it may be utilized to enforce a treaty or conven- 
 tion, not yet entered into) because it is advocated by the National 
 
39 
 
 Ad-vjsory Committee for Aeronautics, and is approved by the 
 President in a special message of transmission to Congress. 
 Other bills are pending, but this one is selected for this analysis 
 and comment because it forcibly illustrates the constitutional 
 problems involved, and has the distinction mentioned. It seems 
 to us that it cannot without inevitable litigation be deemed 
 of sufficient constitutional validity to promote substantially 
 the art which it is designed to foster, by removing the uncertain- 
 ties of law which cause capital and insurance to hesitate. It 
 cannot be a very substantial advance to remove a controverted 
 subject from the domain of silent uncertainty to the domain of 
 constitutional uncertainty, with the general proviso that all 
 valid parts of a law shall stand, though its invalid parts dis- 
 appear, that maritime laws shall govern where applicable except 
 as modified by the Secretary of Commerce, and that common 
 law remedies shall be saved where the common law is competent 
 to give a remedy. The rules and regulations may tend to safety 
 of navigation when observed, but the law itself suggests uncer- 
 tainty of the most fundamental character. 
 
 It is scarcely to be hoped that states which have already en- 
 acted laws and offenders and litigants will acquiesce in the view 
 that the interests of the art demand that constitutional objections 
 shall be smothered, or that the unconstitutional features of the 
 bill will not be emphasized in litigation, though we are not un- 
 mindful that when, in the throes of the revolutionary war, the 
 Continental Congress chartered the National Bank of North 
 America as a financial aid, and its power was assailed, the legis- 
 lature of New York generously also chartered the same organi- 
 zation and gave it for a time the monopoly of the banking 
 privilege in New York (N. Y. Laws 1782, c. 35); nor that 
 when Congress enacted the Interstate Commerce Act the state 
 of Virginia substantially reenacted its appropriate provisions as 
 appKcable to intrastate traffic (Laws of Va. 1902-3-4, p. 968, 
 c. 3 ; Commonwealth vs. Norfolk & W. E. E. Co., Ill Va. 59, 68 
 S. E. E. 351). 
 
 These examples afford a suggestion that the unconstitutional 
 shreds of the approved bill, if enacted and if an unconstitutional 
 grasp of power and invasion of state rights, might be supple- 
 mented by state legislation making its main purpose of properly 
 regulating aeronautics by law, effectual. 
 
 The administrative questions, whose conflicting aspects are 
 illustrated by the bills and resolutions now before Congress, are 
 matters chiefly of internal governmental organization upon which 
 we do not comment, though it is contended by the advocates of 
 different views that they respectively are of vital importance. 
 
30 
 
 Terminology of Aeeonautics. 
 
 The accepted terminology of the subject is, we think, a matter 
 which we should bring to the attention of the Executive Com- 
 mittee, since we are admonished that even the name of our 
 committee is in the light of this terminology unnecessarily and 
 even unwisely restricted. We are styled the Committee on the 
 Law of Aviation, whereas a more comprehensive title would in- 
 dicate a wider duty. The law is the law of aeronautics, aviation 
 forming but a limited branch, though we assume that the inci- 
 dent of aerography is implicitly embraced within the term 
 aeronautics. 
 
 The terminology of which we are advised is as follows : 
 
 Aeronautics. — General term covering whole science and art of aerial 
 locomotion. 
 I. Aerostation — lighter than air. 
 
 1. Aerostat — ^balloon. 
 
 (A) Free: 
 
 (a) Passenger. 
 
 (b) Pilot, or sounding. 
 
 (c) Propaganda. 
 
 (B) Captive: 
 
 (a) Spherical, or ovoid. 
 
 (b) Kite, "sausage," "drachen," "saucisse," or other 
 
 type observation balloon. 
 
 2. Aeronat — a dirigible balloon; an airship. 
 
 (A) Rigid. 
 
 (B) Semirigid. 
 
 (C) Nonrigid. 
 
 II. Aviation — gasless, heavier than air. All these kinds of apparati are 
 known as aeronefs: 
 
 1. Airplanes, either tractor or pusher, land or water. 
 
 (A) Monoplane. 
 
 (B) Biplane. 
 
 (C) Triplane. 
 
 (D) Quadroplane, etc. 
 
 2. Omithopter— a beating-wing machine. None of this type has 
 
 to date been successful at flight. 
 
 3. Helicopter — a direct-lift machine. Only successful experimen- 
 
 tally as yet. 
 
 4. Kites. 
 
 5. Gliders. 
 
 The Committee's Collection of Peetinent Matekial. 
 
 The committee has collected much printed matter which it 
 will transmit when and if directed by the Executive Committee 
 with a copy of this report for deposit with the custodian of the 
 Association's books (By-Law V). 
 
 The committee deems the preservation of this material by the 
 Association as a part of the historical literature of the subject 
 desirable. This material includes newspaper clippings of current 
 interest. 
 
31 
 
 Additional Items. 
 
 Because of its especial interest to Americans, we invite atten- 
 tion to the form of the Air Board Act of Canada— 9-10 Geo. V, 
 Ch. II— June 6, 1919, the Air Eegulations, 1920, issued there- 
 under and in effect January 17, 1930, together with the explana- 
 tory description of the Air Administration, approved by the 
 Chairman of the Air Board and published in Canadian news- 
 papers in December, 1919. 
 
 The Hydrographic OfBce of the United States under the 
 authority of the Secretary of the Navy has begun a monthly 
 publication entitled " Notice to Aviators," the first number ap- 
 pearing under date November 1, 1920. In the April, 1921, 
 number, it is announced' that certain designated customs air 
 ports have been established in Canada for planes from the United 
 States, and that the Canadian Air Regulations have been modi- 
 fied to prohibit " stunts " in civil flying (except when a pilot 
 is alone), in order to prevent accidents and to induce a realiza- 
 tion that civil flying does not involve or require the taking of 
 risks. 
 
 Since January 1, 1920, the Federation Aero Nautique Inter- 
 nationale (foimded in 1905) has published a quarterly bulletin 
 of interest to aviators. 
 
 In Boyd vs. United States, 116 U. S. 635, the Supreme 
 Court of the United States announced it to be the duty of the 
 courts to avoid encroachments on the Constitution. 
 
 In Scranton vs. Wheeler, 179 U. S. 141, it was said that the 
 right to improve navigation is paramount to the riparian owner's 
 right of access to the stream. 
 
 On June 21, 1920, Venezuela put into effect Laws of Aviation 
 (April, 1921, JoUENAL issued by the American Bar Association, 
 p. 194). 
 
 Congress has already legislated for the establishment of an 
 Air Service in the Army (Act June 4, 1920, C. 227) and (Act 
 June 5, 1920, C. 240) respecting the division, of the control of 
 aerial operations from land bases, and those attached to a fleet, 
 including shore stations, between the Army and Navy, and con- 
 cerning claims for damages not exceeding $250 (committed we 
 assume by aircraft belonging to the national government) and 
 (Act July 11, 1919, C. 8, 51) concerning instruction of enlisted 
 or appointed flying cadets in flying schools, under the authority 
 of the Secretary of AVar. Its earlier legislation on the subject 
 included provision (Barnes Federal Code, Sec. 10147, Act March 
 3 1915 C. 83) for the establishment of an advisory committee 
 for Aeronautics, an Aircraft Board (Barnes Federal Code, sec. 
 10148, Act Oct. 1, 1917, C. 61, ss. 1-5) ; provision for aircraft 
 production corporations, under the authorization of the Director 
 
33 
 
 of Aircraft Production, to be dissolved, however, in proceedings 
 to be begun within one year from the signing of the treaty of 
 peace with the Imperial German Government (Barnes Federal 
 Code, sec. 10149, Act July 19, 1918, C. 143, XVI, ss. 1-5) ; pro- 
 vision by appropriation for the acquisition of patent rights neces- 
 sary to the manufacture and development of aircraft in the 
 United States and its dependencies for governmental and civil 
 purposes under regulations prescribed by the Secretary of War 
 and the Secretary of the Navy (Barnes Federal Code, sec. 10150, 
 Act March 4, 1917, C. 180) ; to authorize the President to 
 establish an executive agency to exercise jurisdiction and control 
 over the production of aeroplanes, aeroplane engines and aircraft 
 equipment; the act to remain in force for six months after the 
 proclamation of peace or earlier designation by the President 
 (Act May 20, 1918, C. 78) ; for an experimental aeroplane mail 
 service (Barnes Federal Code, sec. 6814, Act March 3, 1917, C. 
 163; July 2, 1918, C. 117) ; to authorize the President to sell 
 war materials used in the construction of airplanes (Barnes 
 Federal Code, see. 1647) ; penalizing espionage by means of 
 aircraft (Barnes Federal Code, sec. 9725, Act June 15, 1917, 
 C. 30, title I, S. 1) ; to authorize the Secretary of the Navy to 
 adjust claims for damage from naval aircraft operation (Act 
 July 1, 1918, C. 114, S. 1). In at least one Congressional act 
 aircraft were included in the word " ship " (Barnes Federal 
 Code, sec 10153). Congress has also legislated respecting army 
 aviation ( Barnes Federal Code, Sees. 1531, 1537, 1587) including 
 the organization of an aviation section in the Signal Corps {ibid., 
 s. 1537), gratuities on deaths in the Navy or Marine Corps re- 
 sulting from aviation accidents {ibid., S. 2360) ; the acquisition 
 of land for the United States for aviation purposes {ibid., s. 
 1538), and the devotion of government property or land thereto 
 (Act July 9, 1918, C. 143) ; the establishment of aviation sta- 
 tions for life saving and of an aviation school for membeTS 
 of the coast guard ; the performance of aviation duty by oflBcers 
 and men of the Coast Guard (Barnes Federal Code, ss. 7820, 
 7821) ; the organization of a Naval Eeserve Flying Corps {ibid.] 
 S. 2458); the pay of naval aviators {ibid., S. 2313). 
 Our recommendations are stated at the beginning of this report. 
 Chaeles a. Boston, New York, 
 William P. Btnum, North Carolina, 
 George G. Bogeet, New York. 
 
 While I agree with the general conclusions reached in the fore- 
 going report as to the proper and best methods of procedure, I 
 have not yet reached any positive conclusion as to the authority 
 and power of the federal government to enact aviation laws under 
 
33 
 
 the present provisions of our Constitution; but in view of the 
 present wording of the Constitution as construed by the Courts, 
 I strongly concur in the conclusion reached in the report, that 
 in order to remove all doubt on the question it would be wise 
 to have a Constitutional Amendment to the Federal Constitution 
 that would fully cover the subject and leave no doubt as to the 
 authority of the Government in this regard. 
 
 Oekik N. Caetbk, Illinois. 
 
 'I concur in Judge Carter's views. 
 
 William P. MacCeacken, Jk., Illinois. 
 
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