Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-01
mononoIles.

hey were doubtless aware Of the fact that in free
government all legislative power was vested in the
people, and consequently in the eject
ID by them to legslae except so far as that power
was limited by prohibitor provisions in the federal
state constitutions and that the legislative branch
Of the government they were about to organize
would have the power to authorize monopolies I'M
less they were prohibited from so doing. The Brit
ish Parliament had the power to establish monopo-
les and all the States of this Union it is believed by
the author of this Communication, had the power
till the last few years to authorize monopolies ex-
cept three, Tennessee and two others Kenfs
com.l
The trainers Of the Constitution Of Tennessee had
doubtless the history of the oppression of the peo
pie of England for centuries, by the monopolies
there established in opposition to the Great Charter
and 22d James They therefore declared that monop-
olies were contrary to the genius of free state and
should not be allowed This is a broad and unqual-
fled prohibition and without any exception what
ever. This provision like many others found in the
Constitution copied from the Great Charter and the
bill of rights Of 1898, was addressed to the legisa
latiye department, which in England was addressed
to the executive Fisher vs.. Dobbs Yerger-l
The coincidence between the language of Hawkins
and the terms Of the Constitution is striking. The
Constitution declares that monopolies are contrary
to the genius of free state and shall not be alo'0ed
Hawkins says, A monopoly is an aao'oaRee by the
King to a particular person or persons OF the sole
right of buying, selling, making. working or using
anything whereby the subjects in general are re-
strained from the freedom of manufacturing or trad
| ing which they had before"
And in the language Of the statute of James de-
claring the common law "all commissions, grants,
licenses charters and letters patent any person or
persons. bodies polite or corporate of the sole right
aforesaid ..relating to any known trade void by
common law as being against the freedom of trade
and restraining persons from getting honest live
lihood by lawful employment"
To constitute a monopoly the person must be :" al
lowed" the sole right to manufacture trade in any
known trade or lawful employment and others who
had the right before must be restrained. The statute
of JAMES uses the most broad and unqualified Ian
guage as to the mode of acquiring the right 1t is
| imnnaterial whether this right be allowed by com
mission license grant, or letters patent it is void
The monopoly shall not be allowed
Tyrant after tyrant, by combination with rapa-
cious individuals, had. through succession Of cen
turtles, by force and fraud, evaded the law. Hence
the statute of JAMES exhausts the terms of the En-
glish language to apply comprehensive negative
on the power of the crown to allow monopoly.
It is immaterial whether it be by license or COM
mission for longer or a shorter period, or at the
pleasure of the King the legislature. 1t is imma-
teria whether it be by irrevocabe grant and absO-
lutte contract for a term of years or by letters pa
tent revocable by proclamation of the King, or OF
the Legislature or by act or resolve. 1t is void
shall not be ALLOWED" So long as the citizens in
general are restrained from the profits Of lawful
calling and the sole right to the profits are enjoyed
by person or persons or bodies corporate, long
does the monopoly exist because during the exis-
tenee of such time the other artifcers or traders
are impoverished and the public injured This mis-
chief shall not therefore, be permitted, tolerated
allowed" under any circumstances or by any mode
acquired or held.
1t cannot, therefore, be said that to create mon
opoy, the sole right to manufacture or trade must
rest on consideration or contract or grant irrevO
cable The meaning of the definition of HAWKINS
BACON and COKE requires no such feature to make a
monopoly The actual injuries to the people in gen.
eral by the sole fruition of the profits Of lawful
| trade resting on act, resolve reyocable grant,
would be as great as if it rested on iFreyocabe
grant 1t is not the mode Of acquiring the right or
the capacity defend the tenure Of the right for
any time. 1t is the fact of the existence of the sole
right and the exercise of it, that creates the mischief
and makes the legal monopoly Nor Is it necessary,
according to the definition, that the King the leg
slature should contract not TO give this right to
others during a longer or shorter term of years
for such a construction would enable the legislature
to perpetuate all the oppression and injustice the
statute Of JAMES and the constitutional provision were
intended to prevent. The British Parliament declar-
ed that there should be no bills of credit issued
within sixty-fve miles of London by any but the
Bank of England. Can it be said that this is
more or less Of monopoly whether it rested on
contract not to give TIE right to others on act or
Joint resolution prohibiting all others and granting
it to the Bank of England? 1t is thought not, be-
cause those prohibited are deprived of a lawful en-
poyment and the public of the benefits of COMPETE
| ton in commercial credits.
II the Legislature to pass a law to prohibit
all persons from carrying passengers freight be-
tween Memphis and Nashville either by stage Rail-
road, Wagon. or otherwise. except those who were
chartered by the Legislature to carry passengers
and freight between those two points, and then
were to charter Steamboat or stage, or Railroad
Company to carry passengers and freight between
those points would it be less a monopoly be
cause the Legislature had the power 10 repeal the
act prohibiting others: 1t is contended not. Be
cause if this constructive limitation Of monop-
/ olies were the law. the public could be deprived
of the benefit Of free competition 10 the carrying
trade and the citizens in general, Of the right to
make an honest livelihood by a lawful employment,
and the Legislature have the power to perpetuate
monopolies in every branch Of business,
Now the main question arises, was banking .
'known trade" "a lawful employment" the right to
the profits to which all the citizens of the State were
originally entitled to as of common right? have
they been deprived Of the right this known trade
and has this right been granted franchise to a
small portion Of the citizens of the State? Has the
amount of capital which can be employed been
fixed and limited? Have certain towns been designa=
ted at which this trade could be carried and 9TH
ers excluded and has the number of persons who
have the right and power to engage in it been limit
ed so as TO exclude the great body Of the people of
the State? In a word, has a monopoly been created
permitted, tolerated, allowed in this branch of
business? This will be answered in another article