I have thus presented a picture of these intolerable pretensions. But they must be examined more minutely. They may be seen, first, in their character as a monopoly, and, secondly, in their character as a Usurpation under the Constitution of the United States. I need not say that in each they are equally indefensible.
If you go back to the earliest days of English history, you find that monopolies have from the beginning been odious, as contrary to the ancient and fundamental laws of the realm. A writer who is often quoted in the courts says: “All grants of this kind relating to any known trade are made void by the Common Law, as being against the freedom of trade, and discouraging labor and industry, and restraining persons from getting an honest livelihood by a lawful employment, and putting it in the power of particular persons to set what prices they please on a commodity.”[87] But, without claiming that the present monopoly is void at Common Law, it is enough to show its inconsistency with the Constitution. Here I borrow Mr. Webster’s language in his famous argument against the monopoly of steam navigation granted by the State of New York:—
“Now I think it very reasonable to say that the Constitution never intended to leave with the States the power of granting monopolies either of trade or of navigation,—and therefore, that, as to this, the commercial power is exclusive in Congress.”[88]
Then again he says:—
“I insist that the nature of the case and of the power did imperiously require that such important authority as that of granting monopolies of trade and navigation should not be considered as still retained by the States.”[89]
And, yet again, he adduces an authority which ought to be conclusive on the present occasion: it is that of New Jersey, on the formation of the Constitution:—
“The New Jersey resolutions complain that the regulation of trade was in the power of the several States, within their separate jurisdiction, to such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion that the sole and exclusive power of regulating trade with foreign states ought to be in Congress.”[90]
But the power of regulating trade “among the States” stands on the same reason, and also on the same text of the Constitution.