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Aviation History
1913
1913 - 1255.PDF
NOVEMBER 22, 1913. non-contracting Powers, they would be freed from their obligations. Practically then this regulation is a dead letter and could not be enforced, so that in a European war nations would be free to use aircraft in any manner they please, except against undefended places, which by another article are protected from any bombardment what soever. The complete change in the position of the Powers was due to the increased facilities for dealing with aerial navigation, the former pious opinions having been expressed when the matter was really one of indifference or of very little practical account. Article 25 of the regulations of the Law of War on Land was in 1907 extended by the addition of the words " by any means what ever," so as to include the dropping of explosives by airships or aeroplanes. Now as it is proposed that guns and projectiles should be used to attack aeroplanes, and as no doubt there will be magazines and arrangements for this purpose in large open towns, it will most likely be held that they are places fortified against aeronauts. It would be better then to leave unfoitified towns undefended as regards aircraft, as it appears to me that in that event they would suffer much less injury. I have already alluded to the use of balloons at the siege of Paris and the irritation which was caused by the threatened treatment of aeronauts as spies by Bismarck, and it is pleasing to say that this question was settled at the Hague Conference of 1907, following the decisions at Brussels in 1874 and at the Hague in 1899. Of course, balloonists have otherwise so to conduct themselves as not to act clandestinely or on false pretences. In order that there should be no doubt about the matter it was stated that to this class belongs the case of individuals sent in balloons to deliver despatches to main tain communication with the various parts of an army or of a terri tory. The danger would then be that they might be treated as prisoners of war. One of the most important arguments that the advocates of the principle—freedom in aerial circulation—can advance is that already in tegard to wireless telegraphy the principle that the air is free to the use or passage of Herzian waves has been adopted. Mr. Haseltine evidently feels in his advocacy of the principle of " national sovereignty in the air " that this advocacy in the direction of freedom requires to be rebutted, and his only argument is that there is an important distinction between Herzian waves and aircraft. As regards their relation to the land and air space, he says that the passage of Herzian waves results in no danger to the land and no interference with anything in the air space, whereas the passage through air space (of great and substantial bodies) results in danger to property and persons below. I do not think that his argument is very strong, because the size of the aeroplane is not of such a large and substantial nature as Mr. Haseltine seems to believe. The popular idea is that from every one of these airships continual jettisons of objectionable matter will be poured on the surface of the earth and that inhabitants will be in constant dread of the vessel itself descending and injuring persons on the land. Now when the matter is looked into the persons on land who have been killed by the fall of aeroplanes have been so few as to be practically negligible, and there is practically no complaint of jettison from an aeroplane, in fact it is well known that even when from a dirigible or free balloon you empty a bag of ballast practically none of its contents ever reaches the earth except in such finely divided state as to be undiscernible. I do not say that the passage of Herzian waves through the atmosphere does any harm, but certainly the passage of an aeroplane through the atmosphere equally does no harm. If big vessels such as the Zeppelin are to be used they will only be used if they are successful and do not bring about these dire results which Mr. Haseltine anticipates. All rights proposed to be governed are subject to the power of the owner of property and the territorial state to prevent the passage of air waves if such passage does harm to the landowners' or State's legitimate interest, and it seems to me that no more harm could result to the individual or the State by the use of airships than is likely to result in the disturbance of wire telephones and telegraphs by the passage of Herzian waves. By the Berlin Convention an international office was established for wireless, similar to that already existing for post and telegraphs at Berne. The duty of this office is to prepare for any alterations of the Convention which might be necessitated because of the advance of the art, and also to collect all information and do administrative work as may be required in the joint interest of wireless telegraphy. It is impossible in this paper to go into the various work that has been done and the decisions that have been arrived at so far, on the positions of neutrals in time of war in regard to wireless telegraphy, jettisons and other matters ; but I do think that the time is ripe for the establishment of such an international office, and this could easily be done by adoption of the organisation of the Federation Aeronautique Internationale, which is in touch with every certified pilot throughout the world. Of course alterations would have to be [/yGHTJ made in the regulations and constitution of the Federation, but this would be a very easy matter to thoroughly accomplish without delay. National and Private Law. Personally, I am not in favour of legislation at the present time. I think a great deal more study of the question and further experimenting with a view to safety of aiicraft is required before the time is ripe for legislation. What is really required is for the State to give proper grants to make these tests. Although the Govern ment have done good work in aiding the National Physical Laboratory, the State has practically done nothing to really assist airmen in their work. The apparatus for testing materials at the laboratory at Bushey is becoming efficient, and is at times of great help, and the officials are always kind and do the best that can be done with the limited funds at their disposal. To gather together a number of personages with great names to meet once or twice a year to make a lengthy report, although very interesting and valuable in the future, does little to give practical help to the present craftsmen in the art or to arrive at any new types in aero nautical machines. Considering many men are so interested in the subject as not only to devote their time but their lives to the achieve ment of the conquest of the air, a Government grant of a few hundred thousand pounds would be a mere trifle, and properly distributed would be far more productive in the directions of advancement in the skill of flying and improvements in the machines. The only laws that have been passed up to the present have been of a restrictive kind, and I am afraid if an immediate legislation were brought about at once the law-makers would not be sufficiently accustomed to the sight of aeroplanes and would look at the subject on which they had to legislate very much in the same way that hordes looked on motor cars in the early days. Of course, the present attitude of the equine race is quite different. Not so long ago you remember it was thought necessary to have further legislation in connection with the motor car traffic. The eailier legislation had stopped the development for nearly 100 years. To my mind it would have been quite sufficient to have abolished the old Act and have relied on the Highway Act, 1835 (5 and 6 William IV c. 50). The principal thing that the new legislation did was to encourage the idea that as long as you were going 20 miles an hour you could do no harm, and that the moment you went over it you became a general danger to the public, even when you were going along the roads with nobody in sight or, in fact, nobody near with the exception of the gentleman placed in covert for the purpose of making observations. There would have been, I believe, less accidents if the speed limit had never been adopted. The fact is the House of Lords recog nised this and passed the Act without the speed lin.it, and it was only when it came down to the House of Commons that this limit was inserted. Fortunately at present there is no law which forbids you to fly in general, and the only good that the law can do would be to say that the airman has a right to be in the air with his machine provided he does no appreciable harm to anyone else—in other words, that the State should acquire by Statute the right to govern air traffic so that the aviator could fly not on sufferance but of right. The belief has been handed down from the times of the Romans that the exclusive right of property in the air is vested in the owner of the surface of the land below—cuius est solium eiu r est usque ad caelum—and the greatest English writers, such as Coke and Blackstone, have given their adherence to this doctrine in the widest sense, namely, that the landowner owns the column of air above his land to the sky. Of course nobody can doubt that he should have the use of so much of the aerial space above his land as may be necessary for the construction of buildings or for works, but I imagine that this definition resulted from imperfect knowledge and from want of prophetic vision. Had lawyers but foreseen the use to which the air would be put as a means of communication they could not have been likely to appear to accord an absolute property to the landowners in the whole column of air above the surface of the land—they would merely have given an easement to use so much of the space and abstract so much of the fluid as might be essential to the uninterrupted enjoyment of their property in the freehold of the land. Because there have been a series of legal maxims arrived at without clue appreciation of facts, materially substantial ; these not being present to the minds of the creators of these maxims, and even though these maxims have been followed by the greatest lawyers who were also ignorant of the circumstances ; I fail to see why we should not adopt the view that the freeholder of the land has merely an easement. If so, no new law would be necessary. Of course the matter would have to be fought out, and I do not anticipate that any decision below the House of Lords would be accepted, and then only because there is no higher court to go to. The German Civil Code establishes the right of the owner to the entire air space above the surface of the land and to all below j but rather inconsistently it goes on to enact immediately afterwards that I
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