
    Case No. 4,634.
    The FAME.
    [3 Mason, 147.] 
    
    Circuit Court, D. Maine.
    Oct. Term, 1822.
    
      Shepley, for the United States,
    Mr. Longfellow, for claimants,
    
      
       [Reported by William P. Mason, Esq.]
    
   The cause was continued for advisement to the next October term, and at that term the following opinion, in substance, was •delivered by the court:

STORY, Circuit Justice.

The general principle in relation to the rights of -a nation to rivers and bays, of which it has an exclusive and prior occupancy, is laid down by Vattel and Martens in the passages cited at the bar, need not be disputed. Whether there has been, in point of fact, such an exclusive occupancy, is often a matter of great difficulty to ascertain. The nature, breadth, and extent -of a river or bay, and the necessity of its constant use, in all parts, for purposes of trade and navigation, by the nations inhabiting the opposite banks must, in many cases, repel the supposition of an exclusive right. Where no such exclusive right exists, the general principle of the law of nations, as deduced from the authorities, is, that each nation has .a right to go to the middle of the stream, calculated from low water mark, as the limit of its territorial boundary. This doctrine has been -affirmed by the supreme court in the case of Handly’s Lessee v. Anthony, 5 Wheat. [18 U. S.] 374. But although the territorial line of a nation, for purposes of absolute jurisdiction, may not extend beyond the middle of the stream; yet, consistently with this doctrine, the right to the use of the whole river or bay for the purpose of navigation, trade, and passage, may be common to both nations. Such a right does not destroy the territorial jurisdiction to the middle of the stream; but it is in. the nature of an easement as it is called at the common law, or a servitude, as it is called in civil law. It is like the right of a highway, or private way, over the land of another. This right of passage and navigation must exist, as a common right in all those cases, where such passage or navigation is ordinarily used by both nations, and is indispensable for their common convenience, and access to their own shores. A river or bay may be so narrow, or irregular, or so liable to difficulties from winds, waves, and currents, that it cannot be navigated by either nation without the necessity of the right of passing oyer the whole waters at all times. If, in such a case no exclusive right is recognized in either nation, the constant use by both is conclusive proof of acommon rightof passage and navigation in both. These are all the principles which I think it necessary to bring into review on this occasion, so far as the case stands upon the general law of nations.

There is no pretence to say, that Great Britain had, as to us, acquired, previously to the revolution, any exclusive right to the waters of Passamaquoddybay. These waters were common to all the subjects of the realm; and just as much a part of our right and inheritance, as of any other of the British dominions. The American colonies used them on all occasions; and the province of Massachusetts, which was contiguous to the bay, and perpetually usea the waters for the purpose of navigation, and trade, and passage, might just as well be deemed the proprietor, as the province of New Brunswick, or as the realm of England. In truth, the law of nations must, under such circumstances, be presumed, silently to prevail, and annex the bay to the middle of the stream, to the territories of the adjacent provinces; — and as there was at all times a common right of passage and navigation exercised over the whole bay, and it was necessary for the convenience of all parties, the whole waters must be deemed common for these purposes. When the separation took place by the American Revolution and the treaty of peace, if nothing was stipulated on either side, the status ante helium prevailed, and there was a continuance of the old rights and privileges.

The treaty of peace of 1783 contains nothing definite on this subject. It fixes generally the eastern boundary line of the United . States' on-the Bay-.of Fundy, -of which Pas--samaquoddy bay is part; but it is silentasto -. the exact line, and the use of the waters. No subsequent treaty has changed or in any shape regulated the general rights growing out of the law of nations on this subject; .and ■ therefore, as I conceive, they remain in full force. In the negotiations which have taken place between the governments of Great Britain and the United. States, as to this boundary, and which ended in conventions, which, though not ratified, are not understood to . have involved any real difference of opinion - on this particular point, the view taken by both governments seems entirely in harmony .with that of this court. The conventions of 1803 and 1S07, take the middle of .the channel between the islands belonging to the respective nations, to be the true and proper .line. This is the same rule which results from the general law of nations.

As to the line agreed upon by the collectors, it cannot for a moment be admitted as of any validity. They were not public agents intrusted with such negotiations; and their • acts are not to be construed as indicating the sense of either government

Upon the whole, my opinion is, that the Fame, being within the jurisdictional waters of the United States, and on this side of the middle of. the channel, when she committed the illicit acts for which condemnation is sought is brought within the forfeiture. Decree of condemnation accordingly. 
      
       See 8 Wait, St. Pap. 387-394; 10 Wait, Confid. St. Pap. p. 470.
     