The doctrine adduced in the above passage is not in accordance either with the practice of nations, or the principles of natural law. The occasion here contemplated was the discovery of a country with a view of taking possession of it. The practice of nations, according to Vattel, has usually respected such a discovery, when made by navigators furnished with a commission from their sovereign, but not otherwise; and according to Kluber, in order that an act of occupation should be legitimate,—and the same observation applies to all the acts which are accessorial to occupation,—the state ought to have the intention of taking possession. It may be perfectly true that a merchant vessel, sailing under the flag of a nation, is under the protection of the nation, and is to be identified with the rights of the nation, within the limits of its own proper character, that is, for all the purposes of commerce, but not beyond those limits: the flag, indeed, entitles it to all the privileges which the nation has secured to her citizens by treaties of commerce, but the ship is the property of individuals, and the captain is only the agent of the owners: he possesses no authority from the nation, unlike the captain of a vessel of the state, who is the agent of the state, and for whose acts the state is responsible towards other states. The Government of the United States, however, did not consider, about the time of these transactions at Astoria, that a trading vessel, sailing under the command of a private citizen, could claim the protection of the flag in the same sense in which a ship of the state possesses it, under the command of a commissioned officer. Mr. Washington Irving has annexed, in the Appendix to his “Astoria,” a letter from Mr. Gallatin himself, addressed to Mr. Astor, in August 6, 1835:—“During that period I visited Washington twice—in October or November 1815, and in March 1816. On one of these two occasions, and I believe on the last, you mentioned to me that you were disposed once more to renew the attempt and to re-establish Astoria, provided you had the protection of the American flag: for which purpose a lieutenant’s command would be sufficient to you. You requested me to mention this to the President, which I did. Mr. Madison said he would consider the subject; and, although he did not commit himself, I thought that he received the proposal favourably.” This distinction, which the highest authorities in the United States seem at that time to have fully appreciated, between the protection of the national flag in respect of acquiring territory, and the protection of it in respect of carrying on commerce, namely, that a commission from the state is required to convey the former, whilst the latter is enjoyed at his own will by every citizen, is seemingly at variance with Mr. Rush’s remarks.
The principle, however, upon which Captain Gray’s discovery, on the hypothesis that it was a national discovery, was alleged to lead to such important consequences, was thus stated:—“I asserted,” writes Mr. Rush, “that a nation discovering a country by entering the mouth of its principal river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of such principal river and its tributary streams.” This is a very sweeping declaration, more particularly when applied to the rivers of the New World; and, in order that it should command the acquiescence of other states, it must be agreeable either to the principles of natural law, or to the practice of nations.
The principles involved in this position seem to be, that the discoverer of the mouth of a river is entitled to the exclusive use of the river; and the exclusive use of the river entitles him to the property of its banks. This is an inversion of the ordinary principles of natural law, which regards rivers and lakes as appendages to a territory, the use of which is necessary for the perfect enjoyment of the territory, and rights of property in them only as acquired through rights of property in the banks. Thus, Vattel (i., § 266:) “When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also: for the utility of a river is too great to admit of a supposition that the nation did not intend to reserve it for itself. Consequently, the nation that first established her dominion on one of the banks of the river is considered as being the first possessor of all that part of the river which bounds her territory. Where it is a question of a very broad river, this presumption admits not of a doubt, so far at least as relates to a part of the river’s breadth: and the strength of the presumption increases or diminishes in an inverse ratio with the breadth of a river; for the narrower the river is, the more do the safety and convenience of its use require that it should be subject to the empire and property of a nation.”
According to the Civil Law, rivers (flumina perennia,) as distinguished from streams (rivi,) were deemed public, which, like the sea shore, all might use. In an analogous manner, in reference to great rivers flowing into the ocean, a common use is presumed, unless an exclusive title can be made out, either from prescription or the acknowledgment of other states. Thus, Mr. Wheaton, in his Elements of International Law, (part ii., ch. iv., § 18,) in referring to the Treaty of San Lorenzo el Real, in 1795, by the 4th article of which his Catholic Majesty agreed that the navigation of the Mississippi, from its sources to the ocean, should be free to the citizens of the United States, (Martens, Traités, vi., p. 142,) Spain having become at this time possessed of both banks of the Mississippi at its mouth, observes:—“The right of the United States to participate with Spain in the navigation of the Mississippi was rested by the American Government on the sentiment, written in deep characters on the heart of man, that the ocean is free to all men, and its rivers to all their inhabitants.” Thus, indeed, the use of a river is considered by Mr. Wheaton to be accessory to inhabitancy; in other words, to follow the property in the banks.
The principle, however, upon which the commissioner of the United States defended his claim to attach such an extent of country to the discovery of Captain Gray, was, that it was at once reasonable and moderate; reasonable, because there must be some rule for determining the local extent of a discovery, and none was more proper than taking the water-courses which nature had laid down, both as the fair limits of the country, and as indispensable to its use and value; moderate, because the natives of Europe had often, under their rights of discovery, carried their claims much further. As to the reasonableness of the rule, if Mr. Rush meant that rivers were the natural and most convenient boundaries of territories, this proposition would command a ready assent: but the result of the principle which he set up as to the extent of the discovery, would be to make the high-lands, and not the water-courses, the territorial limits. In respect, however, to the moderation of the principle, when the magnitude of the great rivers of America, the Amazons for example, or the Mississippi, is taken into consideration, the absolute moderation of the rule would be questionable. But its moderation was insisted upon in comparison with the extensive grants of the European sovereigns. The comparative moderation, however, of a principle will not be sufficient to give it validity as a principle of international law, if it should be not in accordance with the practice of nations.
But Mr. Monroe, under whose administration as President of the United States this principle was advanced by Mr. Rush, had, in the negotiations which he, in conjunction with Mr. Pinckney, carried on in 1805 with Spain, propounded a very different principle, viz.: “that whenever any European nation takes possession of any extent of sea coast, that possession is understood as extending into the interior country, to the sources of the rivers emptying within that coast, to all their branches, and the country they cover, and to give it a right in exclusion of all other nations to the same.”
Now Vattel (i., § 266) observes,—“When a nation takes possession of a country, with a view to settle there, it takes possession of everything included in it, as lands, lakes, rivers, &c.”
Here then the title to the river is made subordinate to the title to the coast, and such is the case in the charters of the Crown of England, which Mr. Rush alludes to as confirmatory of his view. The Georgia Charter of 1732, for instance, of which he cites a portion, granted “all the lands and territories from the most northern stream of the Savannah river, all along the sea coast to the southward unto the most southern stream of the Alatamaha river, and westward from the heads of the said rivers respectively in direct lines to the South Seas, and all that space, circuit, and precinct of land lying within the said boundaries.” (Oldmixon’s History of the British Colonies in America, i., p. 525.)
The same principle is sanctioned in the grant of Pennsylvania and of Carolina, and it is perfectly reasonable: for, as the discovery has taken place from the sea, the approach to the territory is presumed to be from the sea, so that the occupant of the sea-coast will necessarily bar the way to any second comer: and as he is supposed, in all these grants, to have settled in vacant territory, he will naturally be entitled to extend his settlement over the vacant district, as there will be no other civilised power in his way.
Mr. Rush, in order to show that Britain was not the only European nation, who, in her territorial claims on this continent, had had an eye to the rule of assuming water-courses to be the fittest boundaries, cited the charter of Louis XIV. to Crozat. But this very charter bears testimony against the principle advanced by Mr. Rush; for it is undeniable that the Spaniards discovered the mouth of the Mississippi about 1540; yet, in the face of this fact, the French king granted to Crozat all the territory between New Mexico on the west and Carolina on the east, as far as the sources of the St. Louis, or Mississippi, under the name of the Government of Louisiana, as a part of his possessions, though Spain had never ceded her title to France; on the authority, according to Messrs. Pinckney and Monroe, of the discovery made by the French of the upper part of the river, as low down as the Arkansas in 1673, and to its mouth in 1680, and of a settlement upon the sea coast in the bay of St. Bernard, by La Salle, in 1685. (British and Foreign State Papers, 1817-18, p. 327.) It was in reference to this settlement that the principle of the possession of the coast entitling to the possession of the interior country, had been propounded to Spain on the part of the United States.