Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1831-07-21
Montpriier, Jmc %, 1891.

sent Us Tor publication:
.Montpeiier, Jane %, 1891.
DEAR Sir: ! have received your
friendly letter of the 18th inst The
few lines which answered your former
one of the 2lst OF January last, were
written in haste and in bad health; but
they expressed, though without the at
tention in some respects due to the oc-
casinn. dissent from the views of the
/ President, as to Il Bank Of the United
States and a substitute for it, to which
cannot but adhere. The objections to
the latter have appeared to me to pre-
ponderate greatly over the advantages
expected from It, and the constitutionali-
ty of the former ! still regard as sus-
taincd by the considerations to which |
yielded in giving my assent to the ex-
istng Bank.
The charge Of Inconsistency between
my objection to the conStitutionality of
such a bank in 1871, and my assent
in 1917, turns on the question, how far
legislative precedents, cxpoupding the
constitution, ought to guide succeeding
Il IINSiSldtuItS, anu w oNSIiuiS hiuNiu""i
opinions.
Some obscurity has been thrown over
the question, by cOniounding it with the
respect due from one legislature to laws
passed by preceding legislatures. But
the two cases are essentially different
A constitution being derived from a
superior authority, is to be eXpounded
and obeycd, not controlled or varied,
by the subordinate authority of legis-
lature. A law, on the other hand
resting on no higher authority than that
possessed by every successive legisla-
ture, lis eXpediency, as well as its
meaning, is within the scope OF the
/ latter.
| The case in question has its true
analogy in the obligation arising from
! judicial expositions Of the law on sue
cccdiug Judges; the constitution being
a law to the legislator, as the law is a
rule Of decision to the Judge.
And why are judicial preccdents,
when formed on due discussion and con-
sderation, and deliberately sanctioned
10y reviews and repetitions, regarded as
of binding influence, or rather of au-
thoritative force, in settling the mean
ing of a law, 1t must be answered,
lst, because it is reasonable and es-
tabished axiom, that the good of society
requires that the rules of conduct of
its members should be certain and
known, which would not be the case if
any Judge, disregardIng the decisions of
his predecessors, should vary the rule of
law according to his individual in
Iterpretation of it, Niisera est servitus
ubi jus est aut vagum aut incognitum.-
Cd, because an exposition OF the law
publicly made, and repeatedly confirm
ed by the constituted authority, carries
with it, by fair inference, the sanction of
those who, having made the law through
their Legislative organ, appear, under
such circumstances, to have determin-
ed its meaning through their judiciary
organ.
Can it be of less consequence that
the meaning of a constitution should be
fixed and known, than that the meaning
of law should be SO! Can indeed a
law be fixed, in its meaning and opera
ton, unless the constitution be so? On
the contrary, if particular legislature,
differing in the construction of the con-
stitution, from series of preceding con-
structions, proceed to act on that differ
ence, they not only introduce uncertain
ty and instability in the constitution, but
in the laws themselves; inasmuch as
/ all laws preceding the new construction
and inconsistent with it, are not only an
/ nulled for the future, but virtually pro-
nounced nullities from the beginning.
/ But it is said that the legislator hav-
ing sworn to support the Constitution,
must support it in his own construction
Of it, however different from that put
on it by his predecessors, or whatever
be the conseque noes of the construction.
I And is not the Judge under the same
oath to support the law! Yet has it
ever been supposed that he was re-
| qured, or at liberty to disregard all
precedents, however soemny repeated
and regularly observed; and by giving
effect to his own abstract and individual
opinions, to disturb the established
course of practise in the business of the
community? Has the wisest and most
conscientious Judge ever scrupled to
acquiescc in decisions in which he has
been overruled by the matured opinions
of the majority of his colleagues; and
subsequently to conform himself thereto,
as to authoritative expositions of the
law, And is it not reasonable that the
same view of the official oath should
be taken by legislator, acting under
the constitution, which is his guide, as
is taken by Judge, acting under the
law which is his?