dromes, as to the minimum qualifications for certificates to pilots and others, as to weather reports and other like matters, and also a prohibition of the carriage in international traffic or explosives or, except with special permission, of wireless apparatus. It follows that these subjects must be legislatively dealt with in each country, and that the legislation must apply, not only to aircraft engaged in international navigation, but to all aircraft. The same rules of the road must apply to both. The same arrangement of aerodromes must be made for both, and indeed it would be impossible to comply with the provisions of the Convention without including in the scope of the local regulations all domestic aircraft. The effect of the enforcement of the Convention will be that, so far as concerns the contracting States, the air will become almost as free as the sea.

Contemporaneously with the discussions in Paris the Canadian Parliament assumed jurisdiction. By the Air Board Act, assented to on the 6th June, 1919,15 the Governor-in-Council was authorized to establish an Air Board of seven members, of whom the Chairman was required to be a Minister of the Crown, and two of the members were to be appointed as representatives of the Department of Militia and Defence and the Department of the Naval Service respectively, all the members to hold office for a term of three years. The Board to be thus constituted was by the Statute given administrative jurisdiction with respect to all matters, civil and military, relating to aircraft, and power was conferred upon it to make regulations relating to the licensing of personnel, aircraft and air harbours, and to the navigation of the air generally, as well as to submit regulations for the governance of a military air force. The Board was constituted shortly after the passing of the Act, and the Air Regulations, 1920, regulating civil aviation, were approved by the Governor-in-Council on the last day of 1919.

These regulations, speaking generally, followed the provisions of the International Convention, which had already been signed on behalf of Canada, though not yet ratified. Under them no aircraft is allowed to fly in Canada, unless it has been registered either here or in one of the other contracting States, and unless it bears the proper nationality and registration marks. The marks on Canadian aircraft consist of a group of five letters of which the first, not only in Canada, but throughout the British Empire, is G. It is followed by a hyphen and four

9-10 Geo. V., c. 11.

more letters of which, in the case of any Canadian aircraft, the first is C. The mark is so painted as to be legible from the ground, without a glass at low altitudes, or at high altitudes with one, and it also appears on the upper surface of the upper plane. The nationality marks also appear on both sides of the tail fin. Apart altogether, therefore, from any knowledge of the shapes of machines, any machine flying in Canada can be thus identified from the ground or from the air. Equally, no pilot is allowed to fly, except for instruction, unless he has received a certificate, to obtain which involves a medical examination, repeated every six or twelve months, and the successful passing of tests. Following the Convention, the regulations lay down detailed rules of the road and detailed instructions for the laying out and marking of aerodromes, the marks being such as to indicate from the air the size of the aerodrome, the direction of the wind, and at night, any projections involving possible danger to navigation.

The United States, although it has signed the Convention, has not ratified it, and has not passed any general legislation on the subject. Certain of the States have made regulatory provisions, but the general situation is still chaotic. In agreeing to the ratification of the Convention, Canada has reserved power to make special arrangements with the United States, and has, pending action by Congress, made a special exception in favour of American machines, by virtue of which they are permitted to fly north of the Canadian boundary provided an American nationality mark assigned by the Canadian Air Board is painted upon them, and they are registered with the Board. The pilot in charge must be a qualified war pilot. This special exception has already been renewed twice, on each occasion for six months, and is shortly due for a third renewal.

It has not been expressly determined whether, in the event of a cause of action arising wholly in an aircraft having a nationality other than that of the State over which it at the time. is, the laws of the country of its nationality apply either at all or to the exclusion of the laws of the country within whose air space the actionable conduct took place. So far as respects breaches of provisions of the Convention, it itself imposes upon the contracting States the duty of punishing infractions occurring as well on one side as the other of its boundary. It is suggested by a recent writer, 16 that contraventions of local fiscal

16 J. M. Spaight: Aircraft in Peace and the Law, McMillan, 1919.

and like laws would be punishable only in the State enacting them, while crimes and torts might be cognisable by either of the States whose nationality the aircraft possesses, or by that over which it was flying at the time. He moreover suggests that where difficulties arise in determining whether a given act has been done on the one or the other side of a frontier, both the adjacent States should be considered as exercising a condominium. Cases are bound to arise in which it is impossible to determine with accuracy on which side of a boundary line a given event occurred, but it is very difficult to see how the nationality of the craft can, in view of the Convention's declaration of national sovereignty over the air space over it, have any such legal effect as the nationality of a ship, except when the aircraft is flying over the high seas. This, however, like many other difficult problems, remains to be worked out by judicial decision, and if, as everyone familiar with the subject expects, the navigation of the air becomes a matter of everyday life, there will be many problems which will require consideration and decision by the Courts.

SOVEREIGN COLONIES.

I.

WHAT IS AN AUSTRALIAN OR CANADIAN.

Until a very short time ago the only answer to this question would in law have been that there is no such person. Popular language spoke of "Australians," but in a way far too loose and undefined to serve as a legal conception. An "Australian" simply meant a person who had an intimate connection with Australia, involving some residence there at not too remote a period.

Birth in Australia was not necessary. None of the earlier colonists were born in Australia. Long residence in Australia was scarcely necessary, and certainly not sufficient. A Manchester man who had spent his early years from two to twelve in New South Wales. would not at fifty be termed "an Australian." Neither did domicile in Australia enter into the popular calculation: the public does not know what domicile is. The possession of estates and property in Australia formed an element in the popular idea, but certainly did not constitute the whole content of it; the carrying on of business in Australia formed another element; well-known sympathies and likings formed another. The whole idea was floating and uncertain. It was merely, to use a descriptive phrase, varying with the mentality of the speaker to say that such and such a person was "an Australian."

In law there was no foundation for the term, any more than there is for the term "a Scotsman," or "an Irishman." There are no Scotsmen; there are no Irishmen. In law there is no differentiation between any of the subjects of the Crown. A denizen of Madras, if he comes to London and acquires the necessary slender justification by residence, can elect and be elected to the House of Commons. A native of British

VOL. XLI. O.L.T.-45

India may be a Secretary of State, a peer, and sit and vote in the House of Lords. The only exception to this generous rule, which decrees that every person who lies at the unlimited power of the Crown shall have all the constitutional rights of modifying the way in which that power shall be exercised, is to be found in the case of the East Indian "protectorates," so styled. It is only by the most transparent of fictions that these are held not to lie at the absolute disposal of the Crown. In fact, the British "Resident" is the only effective ruler of such a "protected" country: the will of the British Government prevails there, as clearly as, and more effectively than, it prevails in Lancashire. Yet the English Judges persist in seeing in the shadowy and powerless Sultans more or less independent rulers because the Foreign Office tells them so (i.e., certifies these territories to be "foreign"), and in consequence the rulers and people alike of these countries do not enjoy in the Courts the rights of British subjects, though they are subject in effect to all their obligations and have lost the moral protection of international law. In the Indian peninsula this peculiar state of things has long existed; probably by this time it has deprived the so-called "native states" of every shred of international status. In the Malay peninsula and in Zanzibar the process has perhaps not quite proceeded so far. It is possible that some spark of independence remains in these districts, though there is nothing to differentiate their daily administration from that of a Crown colony, and all their foreign relations are conducted by Great Britain. Governor Jervois of Singapore, who hesitated at first whether to annex the Malay States or not, decided that it would be better to "protect" them-"as it would be very inconvenient that these people should acquire the rights of British subjects."

1

By this thin fiction, therefore for it is nothing

Cf. the Manipur Case, where the "foreign" potentate was tried, condemned and slain under no law whatever.

2 See "Debt-Slavery in the Malay Peninsula," 26 Law Magazine & Review (London), 312.