In reference, then, to the original title of the United States, Mr. Calhoun, in his letter of September 3, 1844, grounded it on the prior discovery of the mouth of the Columbia River by Captain Gray, on the prior exploration of the river from its head-waters by Lewis and Clarke in 1805-6, on the prior settlement on its banks by American citizens in 1809-10, and by the Pacific Fur Company at Astoria in 1811, which latter establishment was formally restored by the British Government in 1818 to the Government of the United States. Mr. Buchanan, in his letter of July 12, 1845, having briefly recapitulated these alleged facts, says:—“If the discovery of the mouth of a river, followed up within a reasonable time by the first exploration of its main channel and its branches, and appropriated by the first settlements on its banks, do not constitute a title to the territory drained by its waters in the nation performing these acts, then the principles consecrated by the practice of civilised nations ever since the discovery of the New World must have lost their force. Those principles were necessary to procure the peace of the world. Had they not been enforced in practice, clashing claims to newly-discovered territory, and perpetual strife among the nations, would have been the inevitable result.”
It may be as well to examine into the real character of these alleged facts, before considering how far they warrant the application of the principle of international law, to which Mr. Buchanan seeks to adapt them.
In regard to the discovery of the mouth of the Columbia River by Capt. Gray, in the merchant ship Columbia, under the flag of the U. S., Mr. Calhoun eluded the objection that the Columbia was not a public but a private ship, by simply observing—“Indeed, so conclusive is the evidence in his (Gray’s) favour, that it has been attempted to evade our claim on the novel and wholly untenable ground that his discovery was made, not in a national but private vessel;” and so passed on to other questions. Mr. Buchanan, on the other hand, devotes a few lines to the subject:—“The British plenipotentiary attempts to depreciate the value to the United States of Gray’s discovery, because his ship was a trading and not a national vessel. As he furnishes no reason for this distinction, the undersigned will confine himself to the remark, that a merchant vessel bears the flag of her country at her masthead, and continues under its jurisdiction and protection, in the same manner as though she had been commissioned for the express purpose of making discoveries; besides, beyond all doubt, this discovery was made by Gray; and to what nation could the benefit of it belong, unless it be to the United States? Certainly not to Great Britain; and if to Spain, the United States are now her representative.”
Mr. Rush had in a similar manner maintained, “That the ship of Captain Gray, whether fitted out by the Government of the United States or not, was a national ship. If she was not so in a technical sense of the word, she was in the full sense of it, applicable to such an occasion. She bore at her stern the flag of the nation, sailed forth under the protection of the nation, and was to be identified with the rights of the nation.”
In both these statements it seems to be admitted, that there is a technical distinction in the nationality of a public ship and of a private ship; but it is maintained that for the purposes of discovery a merchant ship, under the command of a private individual, is, in the full sense of the word, a national ship. This doctrine, however, finds no countenance in the practice of nations, which, on the contrary, makes a broad distinction between public and private vessels, in reference to all territorial questions. Thus the comity of nations attaches to the nationality of public vessels coming into the ports of a foreign sovereign different considerations from those with which it regards the nationality of private vessels. To go no further than the tribunals of the United States, “a public vessel of war, of a foreign sovereign, coming into our ports, and demeaning herself in a friendly manner, is exempt from the jurisdiction of this country,” (The schooner Exchange v. M’Faddon, 7 Cranch, 116: Supreme Court of the United States, 1812;) but a private merchant ship has not that courtesy extended to it, if it ventures intra fauces terræ. For instance, if a British merchant vessel should enter the port of Charleston, with free negro sailors on board, the nationality of the flag will not be sufficient to protect them from the operation of the municipal law, which forbids liberty to the negro within the limits of South Carolina; and thus it repeatedly happens, that negroes or persons of colour arriving in the ports of South Carolina, though free subjects of her Britannic Majesty, and engaged on board of a British merchant vessel in the service of the ship, have been by virtue of the lex loci immediately taken from under the protection of the British flag, and thrown into prison. In an analogous manner, if a merchant ship from Carolina should enter the port of London, with one or more negro slaves on board, the mercantile flag of the United States would not preclude them from the freedom which the soil of Great Britain imparts to all who come within its precincts.
A public vessel, however, is not entitled, as a matter of right, to any exemption from the jurisdiction of the sovereign whose territory she enters. For the jurisdiction of every nation within its own territory is exclusive and absolute, and all limitations to the full and complete exercise of that jurisdiction must be traced up to the consent of the nation itself. But the comity of nations regards a public vessel as representing the sovereignty of the nation whose flag it bears. If it therefore leaves the high seas, the common territory of all nations, and enters into a friendly port, it is admitted to the privileges which would be extended to the sovereign himself. One sovereign, however, can only be supposed to enter a foreign territory, as his sovereign rights entitle him to no extra-territorial privileges, under an express licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. In a similar manner it is under an implied licence that a public ship enters the port of a friendly power, and retains its independent sovereign character, by the courtesy of the nation within the precincts of whose territorial jurisdiction it has placed itself. A private ship, on the contrary, entering the ports of a foreign power, has freedom of access allowed to it upon a tacit condition of a different kind, namely, that it becomes subject to the municipal laws of the country. Hence every nation assigns to its mercantile marine a distinct flag from that which its public ships are authorised to exhibit as the credential of their representing the sovereign power of the state.
This distinction between the signification of the respective flags is not arbitrary, at the will of each nation, but is recognised by the law of nations: whilst the mercantile flag imparts to the vessel which bears it a right to participate in the privileges secured by commercial treaties with foreign powers, the public flag of a nation communicates the full character of sovereignty, and is respected accordingly. The commercial flag thus carries with it nationality, the public flag the national sovereignty.
It is as much out of the power of any particular state to disturb this distinction, and to attach to its mercantile flag, beyond the jurisdiction of its own territory, different considerations from those which the practice of nations has sanctioned, as to increase or diminish the list of offences against the law of nations. No individual nation can say, “That is our mercantile flag: such and such powers shall attach to it, because it is our pleasure that it should be so:” on the contrary, it is the practice of nations which defines those powers, and to that practice we must have recourse, if we would ascertain them.
In illustration of the above views, the following extract from Dr. Channing’s eloquent and able pamphlet on “the Duty of the Free States,” will not seem out of place. It was suggested by the well-known case of the Creole:—“It seems to be supposed by some that there is a peculiar sacredness in a vessel, which exempts it from all control in the ports of other nations. A vessel is sometimes said to be ‘an extension’ of the territory to which it belongs. The nation, we are told, is present in the vessel; and its honour and rights are involved in the treatment which its flag receives abroad. These ideas are, in the main, true in regard to ships on the high seas. The sea is the exclusive property of no nation. It is subject to none. It is the common and equal property of all. No state has jurisdiction over it. No state can write its laws upon that restless surface. A ship at sea carries with her, and represents, the rights of her country, rights equal to those which any other enjoys. The slightest application of the laws of another nation to her is to be resisted. She is subjected to no law but that of her own country, and to the law of nations, which presses equally on all states. She may thus be called, with no violence to language, an extension of the territory to which she belongs. But suppose her to quit the open sea, and enter a port, what a change is produced in her condition! At sea she sustained the same relations to all nations—those of an equal. Now she sustains a new and peculiar relation to the nation which she has entered. She passes at once under its jurisdiction. She is subject to its laws. She is entered by its officers. If a criminal flies to her for shelter, he may be pursued and apprehended. If her own men violate the laws of the land, they may be seized and punished. The nation is not present in her. She has left the open highway of the ocean, where all nations are equals, and entered a port where one nation alone is clothed with authority. What matters it that a vessel in the harbour of Nassau is owned in America? This does not change her locality. She has contracted new duties and obligations by being placed under a new jurisdiction. Her relations differ essentially from those which she sustained at home or on the open sea. These remarks apply, of course, to merchant vessels alone. A ship of war is an ‘extension of the territory’ to which she belongs, not only when she is on the ocean, but in a foreign port. In this respect she resembles an army marching by consent through a neutral country. Neither ship of war nor army falls under the jurisdiction of foreign states. Merchant vessels resemble individuals. Both become subject to the laws of the land which they enter.”
The taking possession of a vacant country for the purpose of settlement is one of the highest acts of sovereign power, for a nation thereby acquires not merely “the domain, by virtue of which it has the exclusive use of the country for the supply of its necessities, and may dispose of it as it thinks proper, but also the empire, or the right of sovereign command, by which it directs and regulates at its pleasure every thing that passes in the country,” (Vattel, i., § 204.) It is hardly necessary to add, that a commission from the sovereign alone will authorize the act of taking possession, so as to secure respect for it, as a public act, from other nations. Thus we find that, in the letter from Mr. Gallatin to Mr. Astor, elsewhere quoted, this principle was fully appreciated by Mr. Astor, when he applied, in 1816, for a commission from the government of the United States. “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.”