Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1841-10-14
OPINION OF MADISON,
UPON TIE CONSTITUTIONAL
or A u. =. BANK.

UPON TIE CONSTITUTIONAL
or A u. :. BANK.
The opinion Of the yenorated and H.
lustrious Madison, upon the Cons.itu-
tional power of Congress to establish Il
Bank, we now re-publish as an unan-
swerable commentary upon the strange
and extraordinary notions Of Mr.. Tyler
on that subject.
From the American Sentinel.
M0NTPELInR. June %, 1891.
Dear Sir:-I have received your friendly let
ter of the 18th inst. The few lines which all
swercd your former one of the 2 st OF Januar,
last, were written in haste and IN b0d health
but they expressed, though without the al
tcntion in some respects Gue to the occasion
dissent from the views Of the President. a
10 Bank Of the United States, and n subSl
tu,e for il; to which cannot but adhere. -
The objections TO the latter have appeared tC
inc 10 prepondcrate greatly over the advaD
iagcs expected from it, and the constitution.
uity Of the former still regard as sustained
by the considerations To which ] yielded, IL
giving my assent to the existing Bank.
The charge Of Inconsistency between my
objection 10 the coDstitutiona.ity Of such a
bank in 1891 and my assent in 1917, turns on
the question. how far legislative preccdenls
cxpoundng the constitution. ought TO guide
succeeding legislatures, aud to oycr.rule in
divldual opinions.
Some obscuriiy has been thrown over the
QUESTION, by coDlounding il with the respect
due from ono Legislature to laws passed by
preceding legislatures. But the two cases
nre essentially different. constitution be-
ing derived from superior authority, IS 10 be
cxpoundcd and obeyed, not controlled or va.
ried by the subordinate authority Of legis-
la,urc. A law on the other hand, resting on
no higher authority than that possessed by
every successive Iegi, laiure, its expediency
as well as its meaning is within the scope oi
the latter.
The case in question has its true analogy
in the obligation arising from Judicial cxpos.
fions of the law on succeeding Judges; the
constitution being law to the legislator, as
the law Is a rule of decision To tho Judge.
Aud why are judicial prcccdens, when
formed on due discussion aud consideration
and deliberately sanctioned by reviews and
rcpctitions, regarded as OF binding influence
or rather Of authoritative force, in settling
Cd, lst, because IL is a reasonable and estab
ll-heJ axiom, that the good Of society requires
that the rules Of conduct Of lis members
should be- certain aud known, which would
not be the case if any Judge, disresarding
the DECISIONS of his predecessors, should vary
the rule of law according To his individual in.
terprctation Of it. Mlsera est scrvitus ubi
jls est nut vagum aut incogn,nm. That
servi'udc is miserable, when the law 10 either
uncertain or unknown.1 Cd, because an ex-
position Of the law publicly made, and repeat
edly confrn"d by the constituted authority
carries with it, BY fair inference, the sanction
of those who, having made the law throue'
their legislative organ, appear under sucl
circumstances to have determined lis mean
ing through their judiciary organ.
Can il be of less consequence that th,
meaning of constitution should be 6xe,
and known, than that the meaning of q Law
should be so: Can indeed n law be fixed II
its meaning and operation, unless the cOnsti
tuition be so? On the contrary, # particu
lar legislature, differing in the construction
of the constitution. from a series OF preceding
constructions, proceed To act on that differ
encc they not only introduce uncertainty ono
instability in the constitution, nut IN the laws
themselves inasmuch ns oil laws preceding
the new instruction aud Inconsistent will
il, arc uoi only annulled for the future, bu
virtually pronounced utilities from the be
ginning.
Dot il is said that the legislator hovin!
sworn to support The Constitution, must sup
mort il in his own construction oi II, howeve
different from that put on II by his prcdeces
sors, or whatever be the consequences Of III
construction. And is not the Judge unde
the same oath TO support the law yet has
ever been supposed that he was required, q
ut liberty to disregard rll prcccdcnts, how
ever solemuly repeated aud regularly observ
sd and by giving effect TO his own abstrac
aud individual opinions. to disturb the estab
llshcd course OF practice in the business G
the community? Has the wisest aud mos
conscientious Judge ever scrupled TO ocqul
escr IL, decisions IN which he has been over
ruled by ihc mnturcd opinions Of the ajofit
OF his colleagues aud subsequently to con
form hmsclf thereto, as TO authoritative ex
posiiions of ,hc law I? Aud Is It not reasona
bl.. fllal the same vIaw Of the official cat
.t.r,id be- taken by legislator, acting unde
tho CONSTITUTIONS. which is taken by Judy,
nciiuv npdsr the law, which II his
Thrrr - go fac. aud ~ common understand
ins. acecsri,y or regarding n course {
pr1ciicc. as above rhafacieiIZeu, w we ligi
ofs togsi rai0 u i,ise'prctlng law; and theT
is q like necessity ~ considering " const
tn,ional rule of lDiorprciDg constitution.
Jhgi there may he extraordinary anu P'
culiw circunstnnccs controlling The rule
both cases, may be slriurd: bui with cue
receptions, the rule will lorcc itself oo u
praciisal judemeut oi the Doi ardcht Ib''
r,.,. IT, Will ind il impossible TO adhere
and set rlliGally upon. his military OPP MOT
n,to the ,a"anint oi tho law "r c"nsutn'lo
-, nnpoalion o. s"n-itni'"n rcdncrd
,,,,,,,,r. ,n,iaq - pason,be period oi iiin'
,ao,c rsprcialiy whcro ~ prospect tN's,t
,,r. ehinre ~ construction 10y Tho public
u..,..is. AID u ro9sDDibl" pef'"d
,rnr, ,sasked With 'h" usual s1ncii'n'' ~""
n.,s s,r ,hn iudividupi prcf"ga'y". 'hrfo c",
be 10 hmisii0D " TO okofcI'si '''oOsh F"