The representative. [volume] (St. Paul, Minn.) 1893-1901, 1893-08-16

after adopting the constitution, pro-
posed about fifty amendments to it.
OF these, twelve proposed to the
states by Congress under the 5th
article of the original instruments,
were adopted by the concurrence of
the legislatures of three-fourths of
the States. The eleventh of these
amendments scithdreao from the Federal
judiciary the jurisdiction achich had been
granted IN the original instrument, of
acton against State. There is scarce
ly any room for doubt that in en-
acting this amendment the States
intended to withdraw from the Fed
eraL judiciary the achole subject of the
obligations assumded by the States, achether
by acts of their legislatures or otherwise.
But by the judicial amendment to
the constitution aided by Marshall
and his associates, that judiciary as
serted a negative control in cases
where all positive control had been
denied them by the eleventh amend
ment. The contracts of a State
could no longer be enforced by an
action in the courts of the United
States; but if State endeavored by
a repeating act to recall it's gratui-
tous grant, although obtained by
the bribery of the legislature, the
Federal judiciary could block that,
and thus exert by indirection a power
which the eleventh amendment pro-
hibited it from exerting directly.
Marshall himself admitted in the
Dartmouth College case that the in
depreciation which he had put upon
the constitution had not been in the
minds of the authors of the instru-
ment. Mr.. Justice Miller, in his
lectures on Constitutional Law, says
that it surprised the country.
Subsequent judges have adverted to
the fact that such a construction
had not entered the minds of the
authors of the constitution, We
may, in the light of the history Of
those times, conclude with conf
dence that the Federal compact
could not have been formed if such
an Interpretation had been foreseen.
The trainers of that instrument did
not mean what the cOncurring
judges in the Dartmouth College
case held it to mean, and they knew
it. But they were as little troubled
about what the authors of the con-
stitution really meant as they were
about their own jurisdiction to de-
eide anything in the case. They were
judicial doctrinaires, and were not
endeavoring to discover what the
authors of that instrument really
meant, but were endeavoring to in
vent reasons for making it mean
what they wanted to make it mean.
EFFECT OF THE DARTMOUTH COL
LEGE DECISION.
Estimating the consequence of
this celebrated decision, it must be
conceded that some benefits flowed
from it. Corporate investments
were undoubtedly rendered more Sc
cure, at least in the public opinion,
and particularly in the public opin-
ion of Europe, whittier we were look
ing for capital with which to devel-
Op our natural resources. Credit is
matter of opinion, and undoubted-
ly it gave credit to corporate in
vestments. But it produced train
of evils of the most appalling char
acter; or rather it aggravated GER
tain existing evils to an appalling
degree. 1t was followed by an orgy
of political corruption and profliga-
cy probably unparalleled in the his
tory of our race. In those days all
corporations, roughly speaking, in
this country, were created by special
acts Of the legislature. The lobby
lists, manipulators and fixers, who
had hitherto followed the industry
of procuring from the State legisla-
lures corporate franchises, awoke to
the sudden discovery that the fran
chises which they were procuring
were irrepealable. This enormously
enhanced their value. They also
discovered, what they had not
dreamed of before.-that is dicker-
ing with the members of the legis-
lature for the passage of bills Great
ing corporations, they are making
contracts with the State, and what
was happier, contracts which could
not be impeached for fraud. The
procuring of such contracts devel-
oped into vast and corrupting
trade. Franchises were every day
bought from venal legislatures by d.
rect or indirect brides and resold at
a profit. Legitimate and needed leg
islatiOn was neglected. Legislative
bodies in some States literally be-
came the paid agents and tools of
particular corporate institutions.