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I. You propose, in the first place, to vindicate, on
answer to my letter."* "Believe me, Sir, the caution was unnecessary, my expectations were never immoderate, and I have the consolation to perceive that, on this occasion, I have not been disappointed.
The same motives, however, which induced me to repel your first attempts, now prompt me to resist your persevering efforts, to misrepresent and stigmatize my conduct. And although there are many pas
6 Vindication,” which I may pass unnoticed, it is still my design to answer every part of it that can be supposed to merit that attention, in as nearly your own order as a due regard to perspicuity may allow, the ground of “ Policy,” the grant, made by this State, to Messrs. Livingston and Fulton, (as the pos. sessors of a particular mode of propelling vessels by means of steam or fire,)—of the exclusive right to navigate the waters of this state, with boats so propelled, upon any principle, or in any manner, then known, or thereafter to be discovered.
This extensive privilege I had ventured to speak of as a MONOPOLY, and for this you not only impute to me an invidious design in the use of that term, but deny the propriety of its application. « MonoPOLIES," you say, “are the offspring of despotism, and can have their birth and being only under arbitrary government.”+ Indeed! Sir, do
you seriously assert that a monopoly cannot exist in a republic? A respect to your station, and a recollection of your * five-and-twenty years of unremitted and devoted
application to your profession,
99* forbid me to impute to you gross ignorance of the meaning of a technical term of common use and known import. You must intend, Sir, that the purity of republics is such, that in them a monopoly will not be endured. And pardon me, if I suggest a suspicion that your description is the offspring of a new faith : the first fruits of conversion, laid at the foot of the political altar to which you had recently been led by some sudden inspiration of hope, or lingering disgust of antiquated principles and unrewarded service. If this conjecture be not unfounded, I may fairly presume that your definition was not so much intended for the enunciation of a truth to aid your argument, as for a sacrifice to propitiate and strengthen your dubious connections. I can scarcely persuade myself that in the long course of your professional researches, the following trite description can have escaped your observation : “ Monopolies are sole grants of any trade or occupation, or of exclusive privileges, which ought to be common."
They are, then, from whatsoever source proceeding, grants against common right, and equally at variance with the principles of political economy, and the liberal spirit of the common law; they are regarded with an evil eye by both, as unfriendly to the great rule of Public Utility, and are only to be justified when, by their introduction, some public good is to be procured, or some public evil to be averted. Even a valuable consideration given for them cannot, in every case, indemnify the community for they are excusable upon the sole ground of their subservience to the Public Interest; and it
Colden's Vindication, p. 9.
doubted whether that great end is ever effectually served by laws, which philosophy disavows, and experience condemns. Unless, therefore, Monopolies promote this interest, whether they be the gifts of a monarch or the fruits of a blind bargain with a republic; whether conceded to court favourites, or obtained by the management of intriguing demagogues ; whether their object be the private emolument of an iron crowned tyrant, or the gratification of a brawling tribune of the People : Public UTILITY is equally violated.*
But all discussion upon this point was idle and irrelevant. I had expressly admitted, in my Letter, that the Legislature could not, upon considerations of mere policy, “ avoid or resume their own “grants ; that they alone had authority to judge of
“ If the exclusive grant to Mr. Livingston be a Monopoly, « why then," it is demanded, " are not all Ferries, Banks, Toll
Bridges, and Turnpikes, Monopolies ?" To this I answer, that when altogether exclusive, they are. The right of Ferriage,“ or « that exclusive right of receiving certain rates for the carriage
by water of persons and goods, which is usually granted to the
owners of the adjacent land, in consideration of providing and « supporting, under established regulations, boats necessary for 6 the public accommodation," is undoubtedly a species of Monopoly, and a very useful and beneficial one to the public. The mere incorporation of a Banking Company, is not, I apprehend, the erection of a Monopoly ; for the Legislature, when it grants a Bank Charter, does not preclude itself from incorporating other Banks, even in the same place to which they may have confined the operations of the first. The Banks, for the time being, howa ever, virtually possess a Monopoly of the trade, from the effect of what is usually termed " the Restraining Act.” A law, which prohibits persons “unauthorised by law," from banking within this state, with as much policy and justice, as there would be in proWibiting individuals, unless " authorised by law," from buying and
" the measure, and the public faith was bound by “ their decision."* The material enquiry is, whether, when the claims of the State grantees are brought into direct conflict with rights acquired under the paramount authority of the Union, the Legislature can, with propriety, define the limits of its own jurisdiction, and declare that it never intended to transcend them.
selling on commission, in case the COMMISSION COMPANY should suggest that measure. But the bank restraining law has never been publicly defended, but upon the ground of its utility in preventing the evils apprehended to the community from leaving the trade of Banking free. Toll Bridges are, or are not, Monopolies, according to circumstances. They are generally the private property of Individuals, or of Corporations, who are authorised by law to erect them over public water courses, and to receive certain tolls from all who find it convenient to pass them. Sometimes the acts establishing them, contain a prohibitory clause, preventing the erection of any other Bridge, or of a Ferry, within a certain distance, and in these cases they are so far Monopolies, equally, if not, in general, more useful to the Public than Ferries. Turnpike Roads, are not, strictly speaking, Monopolies. Companies are incorporated for the purpose of opening and constructing Turnpike Roads for the Public convenience; and upon acquiring, by purchase, the right of property in the land over which the road passes, they have an exclusive right to erect gates and receive tolls from passengers. But the Legislature may, afterwards, incorporate other companies, to open other roads in the immediate vicinity ; and the towns through which a turnpike road passes, may, and they sometimes do, establish public highways so near, as to divert the whole travelling from it. The RS attempt, therefore, to enlist against” me “the prejudices connected with” Ferries, Banks, Toll-Bridges, and Turnpikes, "I can
not but think-a want of candour." Vide Colden's Vindication, p. 18.
* Vide Letter to Colden. p. 8, 9.
11. Your attempt to defend the grant to Mr. Livingston, upon the score of its - JUSTICE,” might, for similar reasons, also have been spared.
I had informed you, in my Letter, that the Committee refused to " recommend a legislative decision upon
the objections which had been raised against * it, on account either of the prior subsisting grant to “ John Fitch; the forfeiture of Fitch's right, without
proof of the facts upon which such forfeiture was « declared to have arisen; the unfounded suggestions
upon which it was alleged Mr. Livingston had ob“ tained a transfer of that right to himself; or the non“ performance of the condition upon which his title 6 was to have taken its effect :
-because these were 6 questions which the Courts of Law, in the ordinary « exercise of their powers, would be competent to 6 decide.'* And I should not now have felt myself bound to follow you into this branch of the controversy, had you not rendered that large portion of your pamphlet, which you have devoted to its consideration, a vehicle for the most offensive imputations upon the Committee, and the most unjust recriminations upon me.
However wide apart we are, in sentiment, as to the legitimate source of legislative power on the subject, there is one point, Sir, in which, I think, we are agreed; and that is, in acknowledging “ the efficacy of a positive statute,” (admitting it to emanate from constitutional authority) 66 to secure an ex• clusive property in the fruits of intellectual la“ bour.” By what strange perversity of moral sense,
* Vide Letter to Colden, p. 27, 28.