"'The negative of the senate upon appointments,' he said 'is liable to the following objections.

"'1. It takes away, or at least it lessens the responsibility of the executive - our constitution obliges me to say, that it lessens the responsibility of the president. The blame of an hasy, injudicious, weak, or wicked appointment, is shared so much between him and the senate, that his part of it will be too small. Who can censure him, without censuring the senate, and the legislatures who appoint them? all their friends will be interested to vindicate the president, in order to screen them from censure; besides, if an impeachment is brought before them against an officer, are they not interested to acquit him, lest some part of the odium of his guilt should fall upon them, who advised to his appointment?

"'2. It turns the minds and attention of the people to the senate, a branch of the legislature, in executive matters; it interests another branch of the legislature in the management of the executive; it divides the people between the executive sad the senate: whereas all the people ought to be united to watch the executive, to oppose its encroachments, and resist its ambition. Senators and representatives, and their constituents - in short, the aristocratical and democratical divisions of society, ought to be united, on all occasions, to oppose the executive or the monarchical branch, when it attempts to overleap its limits. But how can this union be effected, when the aristocratical branch has pledged its reputation to the executive by consenting to an appointment?

"'3. It has a natural tendency, to excite ambition in the senate. An active. ardent spirit, in that house, who is rich, and able, has a great reputation and influence, will be solicited by candidates for office; not to introduce the idea of bribery, because, though it certainly would force itself in, in other countries, and will probably here, when we grow populous and rich, yet it is not yet, I hope, to be dreaded. But ambition must come in, already. A senator of great influence will be naturally ambitious, and desirous of increasing his influence. Will he not be under a temptation to use his influence with the president, as well as his brother senators, to appoint persons to office in the several states, who will exert themselves in elections to get out his enemies or opposers, both in senate and house of representatives, and to get in his friends, perhaps his instruments? Suppose a senator, to aim at the treasury office, for himself, his brother, father, or son. Suppose him to aim at the president's chair, or vice president's, at the next election - or at the office of war, foreign or domestic affairs, will he not naturally be tempted to make use of his whole patronage, his whole influence, in advising to appointments, both with president and senators, to get such persons nominated, as will exert themselves in elections of president, vice president, senators, and house of representatives, to increase his interests, and promote his views? In this point of view, I am very apprehensive, that this defect in our constitution will have an unhappy tendency to introduce corruption of the grossest kinds, both of ambition and avarice, into all our elections. And this will be the worst of poisons to our constitution; it will not only destroy the present form of government, but render it almost impossible to substitute in its place any free government, even a better limited monarchy, or any other, than a despotism, or a simple monarchy.

"'4. To avoid the evil under the last head, it will be in danger of dividing the continent into two or three nations, a case that presents no prospect but of perpetual war.

"'5. This negative on appointments is in danger of involving the senate in reproach, obloquy, censure, and suspicion, without doing any good. Will the senate use their negative or not? - if not, why should they have it? - many will censure them for not using it - many will ridicule them, call them servile, etc., if they do use it. The very first instance of it will expose the senators to the resentment, not only of the disappointed candidate and all his friends, but of the president and all his friends; and those will be most of the officers of government, through the nation.

"'6. We shall very soon have parties formed - a court and country party - and these parties will have names given them; one party in the house of representatives will support the president and his measures and ministers - the other will oppose them - a similar party will be in the senate - these parties will struggle with all their art, perhaps with intrigue, perhaps with corruption at every election to increase their own friends, and diminish their opposers. Suppose such parties formed in the senate, and then consider what factions, divisions, we shall have there, upon every nomination.

"'7. The senate have not time. You are of opinion, "that the concurrence of the senate in the appointment to office will strengthen the bands of the executive, and secure the confidence of the people, much better than a select council, and will be less expensive," but in every one of these ideas, I have the misfortune to differ from you. It will weaken the hands of the executive, by lessening the obligation, gratitude, and attachment of the candidate to the president, by dividing his attachment between the executive and legislature, which are natural enemies.

"'Officers of government, instead of having a single eye, and undivided attachment to the executive branch, as they ought to have, consistent with law and the constitution, will be constantly tempted to be factious with their factious patrons in the senate. The president's own officers, in a thousand instances, will oppose his just and constitutional exertions, and screen themselves under the wings of their patrons and party in the legislature. Nor will it secure the confidence of the people; the people will have more confidence in the executive, in executive matters, than in the senate. The people will be constantly jealous of factious schemes in the senators to unduly influence the executive, and of corrupt bargains between the senate and executive, to serve each other's private views. The people will also be jealous, that the influence of the senate will be employed to conceal, connive, and defend guilt in executive officers, instead of being a guard and watch upon them, and a terror to them - a council selected by the president himself, at his pleasure, from among the senators, representatives, and nation at large, would be purely responsible - in that case, the senate, as a body, would not be compromised. The senate would be a terror to privy councillors - its honor would never be pledged to support any measure or instrument of the executive, beyond justice, law, and the constitution. Nor would a privy, council be more expensive. The whole senate must now deliberate on every appointment, and, if they ever find time for it, you will find that a great deal of time will be required and consumed in thin service. Then the president might have a constant executive council; now he has none.

"'I said, under the seventh head, that the senate would not have time. You will find, that the whole business of this. government will be infinitely delayed, by this negative of the senate on treaties and appointments. Indian treaties and consular conventions have been already waiting for months, and the senate have not been able to find a moment of time to attend to them; and this evil must constantly increase, so that the senate must be constantly sitting, and must be paid as long as they sit.

"'But I have tired your patience. Is there any truth or importance in these broken hints and crude surmises, or not? To me they appear well founded, and very important.'

"To these remarks Mr. Sherman replied, that he esteemed 'the provision made for appointments to office to be a matter of very great importance, on which the liberties and safety of the people depended, nearly as much as on legislation. If that was vested in the president alone, he might render himself despotic. It was a saying of one of the kings of England, "that while the king could appoint the bishops and judges, he might have what religion and laws he pleased." To give that observation its full effect, they most hold their offices during his pleasure; by such appointments, without control, a power might be gradually established, that would be more formidable than a standing army.

"'It appears to me, that the senate is the most important branch in the government, for the aid and support of the executive, for securing the rights of the individual states, the government of the United States, and the liberties of the people. The executive is not to execute its own will, but the will of the legislature declared by the laws, and the senate, being a branch of the legislature, will be disposed to accomplish that end, and advise to such appointments, as will be most likely to effect it; from their knowledge of the people in the several states, they can give the best information who are qualified for office. And they will, as you justly observe, in some degree lessen his responsibility; yet, will he not have as much remaining as he can well support? and may not their advice enable him to make such judicious appointments, as to render responsibility less necessary? no person can deserve censure, when he acts honestly according to his best discretion.

"'The senators, being chosen by the legislatures of the states, and depending on them for reelection, will naturally be watchful to prevent any infringement of the rights of the states. And the government of the United States being federal, and instituted by a number of sovereign states for the better security of their rights, and advancement of their interests, they may be considered as so many pillars to support it, and by the exercise of the state governments, peace and good order may be preserved in the places most remote from the seat of the federal government, as well as at the centre.

"'I believe this will be a better balance to secure the government, than three independent negatives would be.

"'I think you admit, in your Defense of the Governments of the United States, that even one branch might serve in .a diplomatic government, like that of the Union; but I think the constitution is much improved by the addition of another branch, and those of the executive and judiciary. This seems to be an improvement on federal government, beyond what has been made by any other states. I can see nothing in the constitution, that will tend to its dissolution, except the article for making amendments.

"'That the evils, that you suggest, may happen in consequence of the power vested in the senate, to aid the executive, appears to me to be but barely possible. The senators, from the provision made for their appointment, will commonly be some of the most respectable citizens in the states, for wisdom and probity, and superior to faction, intrigue, or low artifice to obtain appointments for themselves, or their friends, and any attempts of that kind would destroy their reputation with a free and enlightened people, and so frustrate the end they would have in view. Their being candidates for reelection will probably be one of the most powerful motives (next to that of their virtue) to fidelity in office, and by that means alone would they hope for success. "He that walketh uprightly, walketh surely," is the saying of a divinely inspired writer - they will naturally have the confidence of the people, as they will be chosen by their immediate representatives, as well as from their characters, as men of wisdom and integrity. And I see not why all the branches of government should not harmonize in promoting the great end of their institution. the good and happiness of the people.

"'The senators and representatives being eligible from the citizens at large, and wealth not being a requisite qualification for either, they will be persons nearly equal, as to wealth and other qualifications, so that there seems not to be any principle tending to aristocracy; which, if I understand the term, is a government by nobles, independent of the people, which cannot take place with us, in either respect, without a total subversion of the constitution. I believe the more this provision of the constitution is attended to, and experienced, the more the wisdom and utility of it will appear. As senators cannot hold any other office themselves. they will not be influenced, in their advice to the president, by interested motives. But it is said, they may have friends and kindred to provide for; it is true they may, but when we consider their character and situation, will they not be diffident of nominating a friend, or relative, who may wish for an office, and be well qualified for it, lest it should be suspected to proceed from partiality? And will not their fellow members have a degree of the same reluctance, lest it should be thought they acted from friendship to a member of their body? so that their friends and connections would stand a worse chance, in proportion to their real merit, than strangers. But if the president was left to select a council for himself, though he may be supposed to be actuated by the best motives - yet he would be surrounded by flatterers, who would assume the character of friends and patriots, though they had no attachment to the public good, no regard to the laws of their country, but influenced wholly by self-interest, would wish to extend the power of the executive, in order to increase their own; they would often advise him to dispense with laws, that should thwart their schemes, and in excuse plead, that it was done from necessity to promote the public good - they will use their own influence; induce the president to use his, to get laws repealed, or the constitution altered, to extend his powers and prerogatives, under pretext of advancing the public good, and gradually render the government a despotism. This seems to be according to the course of human affairs, and what may be expected from the nature of things. I think, that members of the legislature would be most likely duly to execute the laws, both in the executive and judiciary departments."^c

"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 and obeyed, not controlled 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, 1st, because it is a reasonable and established axiom, and 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 interpretation of it. Misera est servitus ubi jus aut vagum aut incognitum. 2d, 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, than 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 preceding constructions, 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, 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 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 and 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 overruled by the matured opinions of the majority or 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 token 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 characterized, in the light of a legal rule of interpreting a law: end there is a like necessity of considering it a constitutional rule of interpreting a constitution.

"That there may be extraordinary and peculiar circumstances controlling the rule in both cases, may be admitted; but with such exceptions, the rule will force itself on the practical judgment 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, although 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 opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit or 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 and reiterated precedents, that the bank of the United States, though 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 through the several branches of the government. It had been carried into execution throughout a period of twenty 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 and 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 judgment and intention.

"It has been contended that the authority or 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 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 or 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 or 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"