Madison Whig advocate. [volume] (Canton, Miss.) 1839-1841, 1839-06-29
Mr.. aIadison's Letter.



! MoNrPELIER, June %, 1851
DEAR SIR:-I have received YOUR
friendly letter Of the 18th inst. The
few lines which answered Your former
one of the 2Ist Of January last we're
written in haste and in bad health; bu.
they expressed, though without atten-
tion IN some respects due 20 the Occasaon-
a dissent from the views of the Presl-
dent, as to a Bank of the United States
and a substitute for It; to which cannOt
but adhere The objections 10 the TAT
ter have appeared to me to Pred0miaate
greatly over the advantages expected
from it, and the cOnstitutiOnality OF the
former | still regard as sustained by the
considerations 20 which / yielded. IN CIV
ing my assent to the existing Bank
The charge Of inconsistency between
my objections to the cOnstItutiOnaiIty of
such a bank in 1871, aud my assent In
1917, turns on the question: how far le-
gislative presidents, IN expOunding the
constitution, ought TO guide succeeding
| legislatures, and TO override individual
opinions
Some obscurity has been thrown over
the question, by confronting II with the
respect due from one legislature 10 laws
passed by preceding legislatures But
| the two cases are essentially different
A constitution being derived from a su-
perior authority, Is to be expounded aud
obeycd, not controlled or varied by the
| subordinate authority of a legislature
A law, on the other hand, resting on
| higher authority than that possessed by
every succeeding legislature It's expedi-
ency as well as its meaning IS within the
scope of the latter
The case in question has its true ana
/ logy lii the obligation arising from Judi
cial expositions of the law on succeeding
/ Judges; the constitution being a L1l~ 10
| the legislator, as the law Is a rule of
decision to the Judge.
And why are judicial Prece,lenJs, when
| formed on due discussion and cOusidera-
ton, and deliberately sanctioned by re-
views and rePetitions- regarded as of
binding influence, or rather of authora-
| tive force, in settling the meaning OF the
law? 1t must be answered. 1st- because
| it is reasonable and established axiom.
that the good of society requires that
he rules of conduct of its members
should be certain and known. which
would not be the case If any Judge. dis
regarding the decisions of his predeccs-
sor, should vary the rule of law accord
ing to his individual Interpretation of It.
Misera est serUitus ubi Jus est auf rqgur1
aut iHcogHitEm. Cd, because an exposi-
ton of the law publicly made and re-
peatedly confirmed by the constituted
authority, carries with it, by fair infer
ence, the sanction of those who. having
made the law through their legislative
organ, appear under such circumstances
TO have determined It's meaning through
their judiciary organ.
Can il be of less consequence that the
meaning of a constitution should be fixed
and known, than that the meaning OF
law should be SOL Can, indeed, a law b.
fixed in its meaning and operation. un-
less the constitution be SOL On the con-
trary, if particular legislature, differ
ing in the construction of the c0nstifu-
ton, from series OF preceding cOnstruc-
tons, proceed TO act on that difference
they not only introduce uncertainty and
instability IN the constitution, but IN the
laws themselves; Inasmuch as all laws
preceding the new construction are IN
consistent with 1t, are not only annulied
for the future, but virtually pronounced
utilities from the beginning.
But it is said that the legislator having
sworn TO support the constitution, must
support it In his own construction Of i.
however different from that put on il by
his predecessors, or whatever be the
consequences of the construction And
is not the Judge under the same oath to
support the lawl Yet has it ever been
supposed that he was required, or at
liberty to disregard all precedents how
ever solennly repeated and regularly
observed; and by giving effect 10 his
own abstract and individual opinions. TO
disturb the established course of prac-
tice in the business of the community ?
Has the wisest and most conscientious
Judge ever scrupled to acquiesce IN de-f
cislons In which he has been overruled
by the matured opinions OF the majority
OF his colleagues; and subsequently TO
conform himself thereto. as TO aufhori
tative expositions of the laws And is |
II not reasonable that the same view of
the official oath should be taken bv a (
legislator. acting under the constitution. /
which IS his guide. as IS taken by 4 i
Judge, acting under the law, which i /
his?
There is, in fact, and in common un-
derstanding. necessity of regarding a /
course of practice, as above characfer-l
lied, ia the light of legal rule of lnter-I
preting law: and there is ike nc
Mr. Madison here alluses 70 Gen.
u son * froxe rnnaar,t Rant