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clusive, just as it is today in respect of offences committed on foreign vessels in territorial waters. We approve, however, of the further provision (Art. 15, 2) which makes the tribunals of a state against the security or fise of which an offence has been committed competent under all circumstances. The prevailing rule of international law renders them competent, provided the offender is arrested within the injured state.61 The new feature of the project consists in that it contemplates a surrender to the injured state.

It has been suggested 62 that the problems presented by the introduction of aërial navigation may give impetus to a movement between the nations, the desirability of which has often been discussed, for a general conventional regulation of the conflicts of jurisdiction in respect of crimes.

Time and experience will doubtless establish imperative rules for observation in the use of aircraft of such supreme importance as to require sanction by criminal penalty. As these laws will be corollaries to laws of administration, it is not conceived within the limits of this paper to discuss them. It may be remarked, however, that with this penal liability on the part of the navigator, there should also be a concomitant protection for the navigator and his passengers similar to that afforded by modern legislation to other means of travel involved in delicate and peculiar risks, such as the railroad.63

CONCLUSION

Within the limits of the present paper, we have attempted to outline and discuss only legal problems of initial importance. It is one of the notable differences between the Anglo-Saxon and the Continental method of jurisprudence that by the former, the law is regarded as predominantly an evolutionary growth resting upon custom and actual experience, while by the latter, it is more often

61 Wharton, Criminal Law, 10th ed., §§ 274, 275.

62 Meili, Das Luftschiff im internen Recht und Völkerrecht, p. 43, n. 8.

63 See e. g. New York Penal Code. § 1991. This section enumerates a large number of offenses specifically directed against security of travel upon railroads; "if thereby the safety of any person is endangered, the offense is punishable by imprisonment for not more than twenty years.”

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an object of conscious development. Continental jurists have dealt with the present topic in a manner characteristic of their legal philosophy. They have given consideration to questions of such detail as, for example, the nationality to be ascribed to persons born on board of voyaging aircraft, rights in respect of salvage, the doctrine of average and the like, drawn from problems of the law maritime. Though not inappreciative of the thoroughness displayed in such treatment, we believe that it is inadvisable to anticipate actual conditions, which must ever constitute the basis for legal deductions of a permanent character.

As we have indicated, many of the questions are administrative rather than fundamental and in respect of these, the jurist and legislator must coöperate with the technician. In European countries, a tendency is noticeable toward subjecting air navigation, in at least some of its forms, to the monopolistic control of the state. In countries like our own, more favorable to private enterprise, concessionary control will suffice, coupled nevertheless with a strict governmental supervision by registration, license and inspection. The Federal Government may properly take action in so far as the regulation of interstate intercourse is concerned. We would express the voeu (if it be not too visionary) that the States proceed in their legislation with some degree of uniformity and coöperation. Likewise the administrative problems of international intercourse will be worked out in due time with the technical assistance of experts. A general conventional regulation would appropriately deal with such matters as emblems, rules of the road (lateral and vertical), signals and ceremony. The draft code to which reference has been made refers to these and also provides regulation for the carrying of official documents such as the registry, brevet, charter-party, manifest and log.

We have seen that agreement is more difficult in respect of the use of aircraft in war. It is regrettable that, failing to agree upon a limitation of the old forms of armament, the nations are not in unison in prohibiting the use of the new. However, we would not

64 See e. g. Alex. Meyer, Die Erschliessung des Luftraumes in ihren rechtlichen Folgen, pp. 30-32.

wish to conclude with a pessimistic note. Many features will tend to make for peace. The individuals most responsible for the declaration or pursuit of a war may now, as never before, be subjected to immediate and personal danger. Just as modern methods of warfare have largely caused the disappearance of cavalry, so the advent of the aërial battleship now promises a further drastic change. Some say it "means simply the abolition of infantry and cavalry, and the end of land war as we now know it." 65 The confinement of war within narrower limits of time, space and the number of persons involved, is assuredly a desirable end in itself. Furthermore, the

advent of the aërial warcraft presents a possibility for high armament without the exhausting economic drain coincident with the maintenance of armies and navies as now constituted, while the annihilative qualities of the newest forces, by a familiar process of reasoning, tend indirectly toward the preservation of peace.

ARTHUR K. KuнN.

65 Dienstbach and McMechen, op. cit., p. 350.

PRESCRIPTION 1

Of the two kinds of prescription, acquisitive (acquisition by usucaption) or extinctive, the latter has more frequently received the consideration of claims commissions and to it we desire first to particularly address ourselves.

In the Pious Fund case before a tribunal of the Hague Permanent Court of Arbitration, it was held that the rules of prescription related exclusively to the domain of civil law and could not be applied to the international conflict between the United States and Mexico.2 Nevertheless, in the Gentini case,3 the umpire pointed out the distinction between rules of prescription, which were such as would be established by a government, and the principle of prescription which he said was "well recognized in international law," and could be applied as well in a conflict to which a state was a party as to a conflict between private individuals.

One of the earlier cases in which the matter was discussed was that of Black and Stratton before the Mexican-American Claims Commission of 1868, Thornton, umpire, not feeling justified in condemning the Mexican government upon weak evidence as to the illegality of the acts of its authorities and after more than fifteen years had elapsed without the claimants having made any complaint whatever of the conduct of those authorities.

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In the Mossman case the same umpire said:

It seems unfair that the latter (the Mexican government) should be first informed of the alleged misconduct of its inferior authorities more

1 Chapter from a forthcoming work on the subject of "Arbitral International Law and Procedure." being a résumé of law and practice as laid down by arbitral tribunals; prepared by Jackson H. Ralston, late Umpire of the Italian-Venezuelan Mixed Commission, and editor of "Venezuelan Arbitrations of 1903," etc. 2 U. S. Agent's Report, Pious Fund Case, pages 17 and 876.

3 Ven. Arb. of 1903, p. 720.

4 Moore: Arbitrations, 3139.

5 Moore: op. cit., p. 4181.

than fifteen years after the date of the acts complained of. The umpire can not under this circumstance consider that the Mexican Government can be called upon to give compensation for a very doubtful injury, and he therefore awards that the claim be disallowed.

The preceding umpire of this commission, Colonel Lieber, evidently felt the influence of the ideas above expressed, for in the Selkirk case he refers disapprovingly to the fact that the claimant had allowed nearly twenty full years to elapse before the presentation to Mexico of his claim.

The same question as to the right to invoke prescription in favor of a nation before a mixed claims commission arose in the United States and Venezuelan Claims Commission of 1889, in the Williams case, wherein the commission argued at great length and with marked ability in favor of the application of the principle of prescription. Among other things, they say:

It thus appears then that the claim was not brought to the attention of the Venezuelan government until twenty-six years after its inception. Its ownership, nature and amount were such as would have made a delay in presentation to the debtor for a single three-months a matter of surprise. By lapse of time the means of defence have been impaired and there is total want of excuse for the long delay by claimant. Under such circumstances, what does the law require at our hands?

It is a well settled principle in common law jurisdictions, and a recognized one in civil law countries, that obligations are to be enforced. according to the lex loci fori which here is the treaty and the public law. Beyond the requirement that its decisions must be according to justice, the treaty furnishes no guide to the Commission respecting the operation of the lapse of time in extinguishing obligations. It is left to the direction of international law on the subject. Does that recognize the doctrine. of such extinguishment as between states, in controversies life these?

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It may be well preliminarily to note that, while individual interests are involved, these controversies, as elsewhere seen, are between States in some sense, and stand much as if so originating; and, further, that while the texts will be seen largely to relate to territorial acquisitions, the prin ciples announced comprehend the acquisition and loss of personal property and pertain to other rights as well.

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Prescription is a "rule" of inference; not necessarily perhaps that debts have been paid or titles granted, or other particular thing done, but

6 Moore: op. cit., p. 3130.

7 Report, p. 51; Moore: op. cit., p. 4181.

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