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miralty-navigation that was understood by the human race at the time that those words were put into the instrument.
I submit that to discuss this particular point upon any other basis is simply to embark, ourselves, for the realm of pure fancy, which may relieve the wearisomeness of this weather, but it can lead the Association to no result.
William P. McCracken, of Illinois :
There is no question that Mr. Boston has done the major portion of the work of this committee, and I have the utmost confidence in his ability to defend the report. But I cannot refrain from making one or two remarks before he closes regarding the arguments which have been advanced and the criticisms which have been made of the report.
In the first place, the questions presented by Mr. Rooker in his substitute motion are questions which cannot be fully determined at a meeting of this kind, and I am satisfied that this gathering without a brief pro and con on that question would not attempt to commit itself to recommendations to the Congress. In the second place, the Air Convention, which Major Davis has suggested should be ratified by Congress—and in which opinion I may say I concur—should not be made a matter of action by this Association, because of the fact that it is so connected with the League of Nations and the Treaty of Versailles that to do so would be taking political action. Hence, that was left out of the report.
I agree heartily with Major Davis' desire for action in this matter. I, too, was a part of the air service of this country, a pilot and a flying instructor during the war, and, as I stand here before this meeting, I say that the air service of the United States Army is in need of a guardian ad litem.
And the lawyers of this country owe it to the profession and to our welfare, to the national defense, to see to it that it gets such a guardian. The recommendation of this report that I particularly want to call attention to is the first one. That states, in effect, that there are legal questions involved in connection with aeronautics, and that those questions must be solved before we can hope to have a satisfactory commercial development of aeronautics in this country.
We cannot build up a national air force for defense unless it has the active support of commercial aviation. Therefore, we cannot shirk the double problem. First, the commercial one, and secondly, the patriotic one. We cannot shirk either of them when we give our time and our attention to the proper solution of this new question. I earnestly urge the defeat of the substitute and the adoption of the report presented by the committee.
The Chairman :
Is there any further discussion ? If not, Mr. Boston will close the debate.
This was a new subject. The members of the committee sought information from every available source. They listened to every expression of legal view. They have themselves agreed upon none. It is obvious to me that those who have discussed this report have overlooked two things. In the first place, the footnote at the bottom of the first page, viz.:
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.
The committee has not been given credit for the slightest caution. Now, we have not asked the American Bar Association to express any opinion upon any subject. I think it would be a mistake to adopt this substitute proposed by the gentleman from Indiana. It does the very thing which this committee has carefully sought to avoid. It is scarcely necessary for me to say that when this conference was held in Paris and when the League of Nations was formed, and when the Air Convention was provided for by the commissioners attending the conference, no thought entered the mind of any man then present that it could be asserted that the air was an ocean subject to international jurisdiction.
They conceded the contrary. You will find that so far as air navigation is concerned they not only conceded, but they provided for national regulation. They have gone so far, as I stated in presenting this report, as to provide that the craft from other nations
of the earth cannot fly across their borders except under special and temporary permission unless they sign that convention.
The committee was bound to give you information. It was bound to suggest some solution, or some possible solution, of certain of the most intricate problems. If you will read with care you will find that the committee in the main fails to express any opinion, but merely points out the dangers and the suggestions that should be studied so that our action shall not be hasty and the Association shall not be improvidently committed to a false position.
What is called for by the substitute is something that will commit the Association beyond any possibility of retreat to a theory based upon the explanation that has been made here this afternoon-an explanation which caused laughter, and did not receive the careful consideration with respect to its fallacy that any other situation would have demanded.
We have four propositions here, and they are all tentative. Even to that extent, two of the members of the committee have found it advisable to qualify further the views that are expressed there, for fear that somebody might misunderstand the report, as certain of the speakers here have.
So far as the facts in the report are concerned, they are statements of fact which have been ascertained by the committee, and they are just simply laid before you. As far as the opinions in the report are concerned, they are tentatively advanced by each member of the committee.
You have heard Mr. Davis, and you have heard Mr. Bogert, and, if I interpret their remarks aright, they are diametrically opposed in their opinions as to the extent of the power of the Congress of the United States. We do not think this is the proper tribunal to solve such a difference of opinion. We have no desire to insist upon either the third or the fourth recommendation. I leave that to the good judgment of this Association, but I call attention to the fact that it is the expression of a hope on the part of the American Bar Association that those who are charged with the investigation of these bills which are to be laid before Congress by interests-no interest is represented now before you, but interests have laid things before Congress, and Congress should be safeguarded by having its attention called to the fact that there
are these questions. All that we say, as a body is, that because of these serious questions we hope they will be carefully looked into and considered.
The substitute motion of Mr. Rooker was then put and lost. Homer Albers, of Boston, Mass.:
While I have the greatest respect for my friend, Mr. Boston, I think there are some matters in this report which should be corrected; and, therefore, I offer this substitute:
That the American Bar Association urges upon Congress to enact promptly such laws as to regulate aeronautics and communication through the air as are within its Constitutional powers.
The substitute was seconded.
I see no inconsistency between what Mr. Albers is pleased to call a substitute and the recommendations of our committee. But I suggest to him, that we ought first to consider the original resolution, in its several parts, to determine whether the report shall be used as a document for information or not.
The substitute motion of Mr. Albers was then put and lost.
The question now recurs upon the adoption of the report as originally made together with the resolutions and recommendations. All in favor of their adoption will say aye; opposed, no. The ayes seem to have it, the ayes have it, and they are adopted.
(For Report, see Appendix, page 498.) Mr. Cahill, of Michigan: I desire to offer the following brief resolution: Resolved, That it is the opinion of the members of the American Bar Association, in convention assembled in the City of Cincinnati at its Forty-Fourth Annual Meeting that the Forty-Fifth Annual Meeting and succeeding annual meetings of the Association be held in some city or cities with either a higher altitude or with a latitude and longitude more closely approximating that of the so-called north or magnetic pole, and that the Secretary of the Association be and he is hereby directed to transmit a copy of this resolution to the Executive Committee at its mid-winter meeting.
The Chairman :
Under Article III of our By-Laws that resolution will be referred to the Executive Committee.