BINNEY'S CASE. 127

This compact, of the 28th of March, 1785, is confined exclu-
sively to matters of jurisdiction and navigation; it leaves the ter-
ritorial rights of the parties untouched. In rivers flowing through
conterminous states, a common use is presumed; if there be no
proof of a peculiar property excluding the universal or the com-
mon use. (f) But, in this instance, there is the most satisfactory
evidence of an exclusive right. The boundary, called for in the
charter to the lord proprietary of Maryland, is from 'the first foun-
tain of the river Potomac, thence verging towards the south unto
the further bank of the said river, and following the same on the
west and south unto a certain place called Cinquack, situate near
the mouth of the said river,' &c. (g) To the full extent of this
call for the right bank of the Potomac, (h) Maryland has always
held; and under that holding, all the islands in the river have been
granted by patents issuing from the land office or under legislative
enactments, or titles derived from this state; (i) and the whole of
the bed of the river, above tide, it is believed, has always been
admitted to be rightfully parcel of the territory of Maryland.
Whether the south, or the north branch should be considered as
the true boundary has long been, and still is, a matter of contro-
versy; but, before the revolution, many patents for lands, lying
between the north, and south branches, were issued by the lord
proprietary of Maryland. (j)

Hence I feel perfectly satisfied, that the Potomac, above tide,

(/) Vattel, b. 1. c. 22; The Twee Gebroeders, 3 Rob. Ad. Rep. 339; Wright v.
Howard, 1 Cond. Chan. Rep. 95; Handly's lessee v. Anthony, 5 Wheat. 379, Land-
hold. Ass. 170.—(g) Chart. Maryland, s. 3.—(h) This mode of designating the
sides of our long and winding rivers is much more generally accurate than that used
in the Charter of Maryland, or than that of north or south, east or west, and has for
its sanction the highest classical authority. The river is personified and supposed
to be looking and moving towards its outlet, when its banks are on its right and left
hand; and, in reference to that supposition, they are so designated accordingly.
Thus Horace, speaking of the Tiber says :

'Ilise dum se ninium querenti

Jactat ultorem, vagus et sinistra

Labitur ripa, Jove non probante,

uxorius amnis'—Carm. lib. ]. od. 2.

Gibbon says, 'If we inquire into the present state of those countries, we shall find,
that on the left hand of the Danube,' &c. 1 Gibbon Decl. of Rom. Emp. 26. Phil.
Ed. And again he says, 'He was deprived of the country on the right of the Tiber.'
5 ib. 170.—(t) 1822, ch. 54.—(j) Landhold. Ass. 173. Proce. Conven. Maryland,
30th October, 1776; Resolutions 1785, No. 1; 1795, No. 3; 1796, No. 5; 1801, No.
10; 1806, No. 10; Foster and Elam v. Neilson, 2 Peters, 307; 3 Jefferson's Corres-
pondence, 347; Votes and Proc, H. Del. 24th January, 1824.