Montpellier June 25 1831.
I have received your friendly letter of the 18th. inst. The few lines which answered your former one of the 21st Jany last, were written in haste & in bad health: but they expressed, though without the attention in some respects due to the occasion, a dissent from the views of the President, as to a Bank of the U. S. and a substitute for it; to which I cannot but adhere. The objections to the latter have appeared to me, to preponderate greatly over the advantages expected from it; and the constitutionality of the former I still regard as sustained by the considerations to which I yeilded in giving my assent to the existing bank.
The charge of inconsistency between my objection to the constitutionality of such a Bank in 1791, and my assent in 1817, turns on the question, how far legislative precedents expounding the constitution, ought to guide succeeding legislatures, and to overule individual opinions.
Some obscurity has been thrown over the question, by confounding 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 & obeyed, not controuled or varied by the subordinate authority of a legislature. A law on the other hand, resting on no higher authority than that possessed by every successive legislature, its 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 succeeding Judges; the Constitution being a law to the Legislator, as the law is a rule of decision to the Judge.
And why are Judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered 1. because it is a reasonable and established axiom, that the good of society requires that the rules of Conduct for its members should be certain and Known; which would not be the case, if every Judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. Misera est servitus ubi jus est aut vagum aut incognitum [Being subject to a law is miserable where the law is either vague or unknown]. 2. because an exposition of the law publicly made, and repeatedly confirmed 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 determined its meaning through their Judiciary organ.
Can it be of less consequence that the meaning of a constitution should be fixed and known that the meaning of a law should be so? Can indeed a law be fixed in its meaning and operation, unless the Constitution be so? On the contrary, if a particular Legislature, differing in the construction of the Constitution from a series of preceeding constructions, proceed to act on that difference, they not only introduce uncertainty & instability in the Constitution, but in the laws themselves; in as much as all laws preceding the new construction, and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning.
But it is said that the Legislator having 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 consequences of the construction. And is not the judge under the same oath to support the law? yet has it ever been supposed that he was required, or at liberty, to disregard all precedents however solemnly repeated & regularly observed; and by giving effect to his own abstract and individual opinions; to disturb the established course of practice in the business of the community. Has the wisest and most conscientious Judge ever scrupled to acquiesce in decisions in which he has been overuled 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 a legislator, acting under the Constitution which is his guide, as is taken by a Judge, acting under the law which is his.
There is in fact and in common understanding, a necessity of regarding a course of practice, as above characterised, in the light of a legal rule of interpreting a law: and there is a like necessity of considering it a constitutional rule of interpreting a Constitution.
That there may be extraordinary & peculiar circumstances controuling the rule in both cases may be admitted: but with such exceptions, the rule will force itself on the practical judgements of the most ardent Theorist. He will find it impossible to adhere to, and act officially upon his solitary opinions as to the meaning of the law or constitution; in opposition to a construction reduced to practice, during a reasonable period of time; more especially where no prospect existed of a change of construction by the public or its agents. And if a reasonable period of time, marked with the usual sanctions, would not bar the individual prerogative, there could be no limitation to its exercise, altho’ the danger of error must increase with the increasing oblivion of explanatory circumstances, and with the continual changes in the import of words and phrases.
Let it then be left to the decision of every intelligent and candid judge which on the whole, is most to be relied on for the true and safe construction of a constitution, that which has the uniform sanction of successive Legislative bodies, through a period of years and under the varied ascendancy of parties; or that which depends upon the opinion of every new legislature, heated as it may be by the spirit of party, eager in the pursuit of some favorite object, or led astray by the eloquence and address of popular Statesmen, themselves, perhaps, under the influence of the same misleading causes.
It was in conformity with the view here taken of the respect due to deliberate & reiterated precedents, that the Bank of the United States, tho’ on the original question held to be unconstitutional, received the Executive Signature in the year 1817. The Act originally establishing a Bank had undergone ample discussions in its passage thro’ the several branches of the Government: It had been carried into execution throughout a period of 20 years with annual legislative recognitions; in one instance indeed, with a positive ramification of it into a new State; and with the entire acquiescence of all the local authorities, as well as of the nation at large to all of which may be added, a decreasing prospect of any change in the public opinion adverse to the Constitutionality of such an Institution. A veto from the Executive under these circumstances, with an admission of the expediency & almost necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgement & intention.
It has been contended that the authority of precedents was in that case invalidated by the consideration, that they proved only a respect for the stipulated duration of the Bank, with a toleration of it until the law should expire; and by the casting vote given in the Senate by the Vice President in the year 1811, against a bill for establishing a national Bank, the vote being expressly given on the ground of unconstitutionality. But if the law itself was unconstitutional, the stipulation was void, and could not be constitutionally fulfilled or tolerated. And as to the negative of the Senate by the casting vote of the presiding Officer; it is a fact well understood at the time that it resulted not from an equality of opinions in that Assembly on the power of Congress to establish a Bank, but from a junction of those who admitted the power but disapproved the plan, with those who denied the power. On a simple question of constitutionality, there was a decided majority in favor of it.
Mrs. Madison joins me in hoping that you will not fail to make the intended visit to Virginia, which promises us the pleasure of welcoming you to our domecil, and in a sincere return of all the good wishes you kindly express for us.
Copy (PHi: C. J. Ingersoll Collection).