in others, expressly including coasting vessels. We find but eleven distinct ports or rivers in the United States which have been the subject of these acts. In respect to three of them, as above stated, the duty is confined to foreign vessels. In some of the others, the improvements are entirely local, and of a character which does not come within the facilities for "commerce among the states," as defined by the Chicago convention.-Of the acts referred to, three of them assenting to the laws of Alabama, do not impose tonnage duties upon vessels, but tolls upon specific articles for passing artificial structures of most questionable validity.-Another, consenting to an act of North Carolina, to provide funds for a hospital, levies a tax upon seamen not upon vessels. Another sanctions an act of Georgia by which the harbor master and health officer of Savannah and St. Mary, are authorized to collect tonnage duties in full of their demands for official duties. A rigid examination of others of these acts would show that they are entitled to very little weight, as constructive of the constitution. States are employed as agencies in establishing marine hospitals, and officers of the United States are made subservient to local authorities, and other provisions are sanctioned, which at this day would find no support from any quarter.

But whatever may be the weight of these precedents, in the estimation of those who regard the continuous acts of congress, acquiesced in by the people, as just expositions of constitutional power-yet, if they are urged as being in conflict with the authority of congress which we claim, we submit that the number, variety and extent of the acts which have asserted the power of the federal government to make appropriations for internal improvements, within the limits and for the purposes indicated by our constituents, greatly outweigh in point of authority the laws assenting to state duties on tonnage. But we confess our inability to appreciate the consistency of those who quote these acts as establishing the sense of the founders of our republic, and at the same time deny to other and more numerous acts of the same persons, the least respect as constitutional expositions.

But, in truth, these acts are not in conflict-they do not assert any antagonist principles. With the exceptions hereafter mentioned, a state may be authorized by congress to levy duties of tonnage for local improvements, and for creating facilities for foreign commerce, and for commerce among the states, and yet congress may make appropriations for the same objects. And such in fact has been the practice of the government. In aid of the state duties to improve the navigation of the Delaware bay, congress has appropriated more than two millions of dollars. For improving the harbor of Baltimore, for which state tonnage duties have been levied, there have been appropriations by congress to the amount of more than fifty thousand dollars. And in like manner, more than one hundred thousand dollars have been appropriated for improving the navigation of the Savannah river, notwithstanding the duties on tonnage levied by the state of Georgia, with the assent of congress for that purpose. Conceding for the purpose of further consideration, that both powers are possessed by congress, is it not evidently one of those cases of sound judgment and discretion, which our constitution intended to leave to the decision of those more immediately and practically acquainted with all the circumstances-the representatives of the people, to adopt the mode which should be most effectual?

And here we would remark what significant proof do these appropriations by the federal government furnish of the utter and total inadequacy, under the most favourable circumstances, as in the cases of Baltimore and Savannah, of these state tonnage duties, to accomplish the objects intended.

But it seems to have been strangely forgotten, that an insuperable objection exists to the exercise of this power by the states, of levying tonnage duties upon vessels navigating the navigable waters leading into the Mississippi and the St. Lawrence rivers. It arises from the terms of the fourth article

of "the articles of compact between the original states and the people and states" in the territory which, in 1787, constituted the territory of the United States northwest of the river Ohio. Those articles are, perhaps, the most sacred among the "engagements" entered into before the adoption of the constitution, whose validity and perpetual obligation are asserted and secured by the sixth article of that instrument. The fourth article of that compact provides thus: "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost or duty therefor." This last word in the passage quoted "therefor," is exceedingly emphatic and comprehensive. These waters are declared "common highways."-the characteristic quality of which is, that they may be used without any charge; but as if this were not sufficient to preclude all cavil, it is further declared that there shall be no tax, impost, or duty therefor"-for using them as common highways. By the comprehensive term "navigable waters," is included not only the lakes leading into the St. Lawrence, but the rivers flowing into them, as well as the great rivers like the Ohio, leading into the Mississippi and the navigable waters flowing into those rivers. These are "for ever free" from any tax or duty, for using them. It is, therefore, manifestly impossible for any state, with or without the consent of congress, to levy any "duty of tonnage" upon vessels navigating those waters and streams, for using them as common highways. Thus, it will be seen, that some of the most essential facilities to navigation, such as clearing the shoals or flats in Lake St. Clair, and removing obstructions in rivers leading into the St. Lawrence or Mississippi, can never be accomplished by the levying of tonnage duties upon vessels navigating them.

In the view of the undersigned, the clause in the compact of 1787 which has been quoted, strikingly exhibits the common feeling and understanding of our forefathers in relation to commercial intercourse between the states.

A still more important inference may be drawn from this provision in the compact. The ordinance in which it is contained, provides for the erection of many states out of the territory to which it relates.-The framers of that ordinance had witnessed the annoyances and collisions to which trade and navigation in the confederated states had been subjected by the local impositions of the different states; they saw in prospect what our eyes behold-a chain of states bounded or intersected by the great lakes, the Mississippi and the rivers flowing into them and the St. Lawrence, having those common water courses to conduct them to a market. And they were admonished by the examples of the old world, that interest, ambition and rivalry would stimulate those states to efforts to enrich themselves, if not to depress their neighbours, by endless exactions upon the vessels that should pass through their respective territories. And the wonderful forecast which distinguishes the whole instrument, in nothing exhibited itself so pre-eminently, as by this single provision which closed for ever this fountain of bitterness and strife.

Insuperable obstacles of a similar character, to any imposition of tonnage duties upon vessels navigating the Mississippi, are presented by the compacts made by the federal government with several states bordering on that river, upon their admission into the union. Thus by the act for the admission of the state of Louisiana, April 8, 1812, it is provided as a condition of its admission that "the river Mississippi and the navigable rivers and waters leading into the same, and into the gulf of Mexico, shall be common highways, and for ever free as well to the inhabitants of the said state as to inhabitants of other states without any tax, duty, impost or toll therefor, imposed by the said state;" a similar provision in all respects is inserted in the act for the formation of the state of Mississippi, March 1, 1817; a condition of the same

kind is incorporated in the act authorizing a state government for Missouri, March 6, 1820. The act for the admission of Arkansas, (June 15, 1836,) imposes the same conditions and restrictions in relation to the Mississippi and its tributaries. The act of March 3, 1845, for the admission of Iowa, has the same provision declaring the Mississippi and the navigable waters leading into the same, for ever free to all citizens of the United States without any tax, duty, impost or toll therefor imposed by the said state. The act autho rizing the people of Wisconsin to form a state government, August 6, 1846, provides that the river Mississippi and all other rivers and waters bordering on the Wisconsin, "and the navigable waters leading into the same, shall be common highways and for ever free, as well to the inhabitants of the said state, as to all other citizens of the United States, without any tax, duty, impost or toll therefor." And thus we see the noble Mississippi, from its mouth to its extremest source, by compact after compact, and at every step and stage of the organization of the vast communities on its borders, guarded and protected from the burdens now sought to be fastened upon it.

What then becomes of the proposed expedient of state tonnage duties, as a mode of furnishing means for improving the rivers and harbors of our widespreading country? Is it not utterly inadequate, baseless and fallacious? We see that all our navigable waters in the vast valley of the Mississippi and in the great basin of the lakes, by the most solemn compacts, are for ever exonerated from the imposition of any such burden, and this grand division of our national improvements, embracing the largest geographical portion of our territory, a portion already all but predominant in political and commercial importance, can be accomplished only by the authority and at the expense of the general government. But would it be either just or expedient, that the navigation of these great interior waters, thus shielded from the power of the states, should be improved and maintained at the common expense, while the residue of our rivers and harbors on the Atlantic coast and the gulf of Mexico, similarly situated in all respects as to the prohibition against duties, should receive no aid from the same source? Equal and exact justice requires that the common funds should be equally and fairly distributed for the common purposes in all parts of the union. The undersigned would utterly misrepresent the feelings and sentiments of those who appointed them, were they to claim for the inhabitants of any of the eighteen states represented in the Chicago convention, any peculiar or local protection or benefit not conceded to all their fellow citizens.

And here we might close our objections to the proposed expedient of state tonnage duties, having shown that in respect to the greatest portion of our navigable waters, its adoption is legally impossible, and that with regard to the others, it would be partial, inequitable and unjust; but there are other points of view in which the project may be examined, of such practical importance, and of such disastrous consequences to the whole country, that we deem it a duty to present them, in the hope that it may never again meet the favour of any statesman.

The principle itself of local duties for any such purpose, is unsound and delusive. Higher duties, of any kind, at one port than at others, must necessarily drive from it every ship that is not compelled by circumstances, or induced by some preponderating benefit to enter it. And consequently, if a harbor is avoided on account of the natural obstructions to its entrance, it will be still more avoided if artificial difficulties and impositions are superadded, so that the resources of such a port would be diminished instead of being increased, and the policy would defeat itself. It is believed that some ports of the United States have already furnished instances of such results. The system is utterly inapplicable for the removal of obstructions in navigable waters which are common to several states and are navigated by vessels which do not enter any harbor adjacent to such obstructions. Take as an

instance, the shoals or flats in lake St. Clair, which impede the navigation of all vessels passing from Lake Michigan into Lake Erie, or from the latter into the former. These vessels are under no necessity to enter any port within hundreds of miles of these obstructions. Where shall the tonnage duty be collected? In this case how many states will be the collectors of the duty? And under whose direction is the amount to be concentrated and expended? And what are the responsibilities for its application by the collecting states? But supposing a collector's office established on the shore near the obstructions, re-enforced by a battery sufficient to compel the vessels to come to and pay their duties, are these to be collected by the agents of the state of Michigan, and to be expended by them or other agents under the regulations of the state? How long is it probable such a system of exactions would be submitted to by the states of Illinois, Wisconsin, Ohio, Pennsylvania and New York, whose citizens and vessels would be the subjects of this operation?

The same question may be put in relation to the duties levied by any state bordering on the Mississippi, to remove the snags and other obstructions in that river opposite their respective territories. The several states of Wisconsin, Iowa, Illinois, Missouri, Kentucky, Tennessee, Arkansas, Mississippi and Louisiana, have jurisdiction over portions of that river, and it is presumed that in each of those portions there are obstructions of some kind requiring removal. Are tonnage duties for these purposes to be levied by each of those states? As their jurisdiction extends to the thread of the river, would there not be some difficulty in adjusting the work to be performed, among the states opposite to the obstructions to be removed? For fear of overcharging the picture, we will say nothing of the interminable discussions likely to arise respecting the faithful and judicious application, by the agents of the individual states, of the duties collected, to the destined purpose. If the wit of man were taxed to devise a scheme utterly destructive of all trade, commerce and navigation upon these waters, a better one for the purpose than this, of artificially obstructing them by hosts of collectors of tonnage duties imposed by local legislation, could not be framed.

Allow us to refresh the memories of those who have forgotten the consequences of such a system, which prevailed under the articles of confederation and before the adoption of the constitution, by a few quotations from Mr. Madison's introduction to the debates of the convention. "The same want of a general power over commerce, (he observes) led to an exercise of the power separately by the states, which not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, * the states having ports for foreign

commerce taxed and irritated the adjoining states trading through them." "In sundry instances, the navigation laws treated the citizens of other states as aliens." "New Jersey, placed between Philadelphia and New York, was likened to a cask tapped at both ends; and North Carolina, between Virginia and South Carolina, to a patient bleeding at both arms."

What could be more disastrous or more lamentable than a return to these interfering, unneighbourly, and intolerable exactions of the states? The Union itself was formed, and the constitution was adopted, for the express purpose of closing up for ever these sources of animosity and discord, and these injurious impediments to intercourse between different parts of our country, as the contemporaneous history abundantly shows.

Nor are we without the experience of other countries upon this same subject of local duties. In the 22d number of the "Federalist," an account was given of a similar system then existing in a portion of Europe, for the purpose of exciting the American people to its danger and its evils, and thus disposing them to adopt the new constitution, then under discussion. It is as follows: "The commerce of the German empire is in continual trammels, from the

multiplicity of the duties which the several princes and states exact upon the merchandize passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless." The absurdity of the system has induced several. German states to attempt a remedy; and they have established a Zoll Verein, or commercial union, now consisting of eighteen states, who, by a delegated council, impose one set of duties upon the intercourse and trade of the combined states, by land, with other countries, which are collected on the frontiers and distributed among these states, in a prescribed proportion. Still suffering, however, under the numerous and vexatious duties which impede the commerce carried on upon their rivers, they have been striving for years to apply the American system of confederation to their navigable waters also, and nationalize them by one tariff of duties, for the benefit of the whole. And the opportunity which has recently been presented of accomplishing an object of such deep interest and warm desire among the intelligent men of the country, will unquestionably be improved to the utmost. What a singular, and may we not say, humiliating spectacle would our republic present to the world, if we were now to retrograde to a system of local duties similar to those established in barbarous ages, by petty despots, and maintained by feudal violence and oppression!

It is no answer to say that these evils are obviated by the control given to congress, by which injustice would be prevented. The system itself contemplates multitudinous duties of tonnage, by all the states having navigable waters requiring improvement; a positive and intolerable burden by whatever authority imposed or sanctioned. Besides, the efforts to obtain the sanction of congress to the various projects of the states, would at once introduce a new progeny of incalculable evils. The halls of legislation would become the theatres of conflict, by states contending for their peculiar interests; and the system of combinations, so much dreaded in reference to appropriations by congress, would be the only system by which the tonnage duty of states would be established. In order to prevent the inequalities which would induce preferences between the ports of the large states holding the keys of communication to the interior, the duties of such ports must be regulated by those states with a view to equality, and this would be the first step to an inevitable organized combination between them, by which they would tax for their own benefit the products and the industry of their neighbours, under the pretext of improving navigation, by expenditures over which those neighbours, from the very nature of the case, could have no control. In this conflict, what are the probabilities of the success of any efforts that might be made by the small and interior states, to resist oppression? It is unnecessary to follow out the consequences of such a system. The worst predictions of Patrick Henry and his associate opponents of the adoption of the constitution would be more than realized. In the view of these disastrous results, it is difficult to give too broad a construction to that provision of the constitution already quoted, which declares that vessels bound from or to one state shall never be compelled to pay duties in another.

An idea seems to be entertained that these tonnage duties would be paid only by the owners of the shipping on which they were levied. Nothing can be more fallacious; every cent of duty or toll levied upon the means of transportation, enhances the price of the produce transported, and is paid by its owners or consumers. If the competition in the particular article is such that its price cannot exceed a certain maximum, then every new imposition is a tax upon the producer, who cannot be repaid for the additional charge; but if the state of the market allows the producer to fix his own price, then the consumer pays every item of the cost of bringing the article to his hands. So that in the present state of our trade, by the system of local tonnage duties,