But it was alleged on the part of the United States, that the mouth of the Columbia river had been first discovered and entered by Captain Gray, a citizen of the United States, in a vessel sailing under the flag of the United States: and when it was urged by the British commissioners that the discovery was not made by a national ship, or under national authority, it was stated by Mr. Rush, that "the United States could admit no such distinction, could never surrender under it, or upon any ground, their claim to this discovery. 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."
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.