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subjected to martial law. Their stores have been forcibly closed, their business broken up, and their credit ruined, — all without the shadow of justice. Contracts are annulled for ho assignable cause; penalties inflicted without authority; offences committed against the honor of Government, for which its honor affords slight assurance of indemnity. A new officer, through ignorance or caprice, breaks up the engagements of his predecessor, pretending to save money to the treasury, but in reality involving Government in expensive litigation. In a single volume of Reports,1 we find restitution sought for illegal seizures, and balances claimed where an ex parte commission had extorted receipts in full for less than the fair and stipulated price, or arbitrarily assessed upon one contractor's vouchers what should have been collected from another. A bureau officer, high in authority, hires a private vessel at a fixed rate of compensation ; then while it is in the service, reduces the amount one-half, in violation of the charter-party, refuses to give up the vessel to the owner, keeps it in Southern waters until it rots away from exposure, and finally attempts, by an executive manoeuvre, to keep back final compensation at the reduced rate, until he has compelled the owner to sign a new charter-party, dated back, so as to waive his remedy for breach of contract. If such conduct is common at the executive departments, the wonder is not that Government is sometimes cheated, but that it can drive an honest bargain at all. And now that we have an honest and impartial tribunal, with power to afford relief in Government contracts, sheltered by the authority of the highest court in the land, the public may fairly expect to see old abuses receive a vigorous check. Of course, the judiciary is always weak when reared against Congress and the Executive ; but, in performing its new trust, it ought to receive support from the best men in and out of political life; and it will be a great gain for all when those who propose entering into bonds with Government can feel assured that their rights are neither sustained by the pressure of influence, nor nourished by the uncertain sunshine of official favor.
1 3 C. Cl! See Pratt v. United States, p. 105, &c. vol. Ir. 2
THE SENATORIAL TERM.
When the question of dividing the Legislative Department into two independent chambers was under discussion in the Constitutional Convention of Pennsylvania in 1776, Dr. Franklin, the president of that body, settled the point in a characteristic manner, by saying that the theory of double chambers reminded him of " a practice he had somewhere seen, of certain wagoners, who, when about to descend a steep hill with a heavy load, if they had four cattle, took off one pair from before, and chaining them to the hind part of the wagon drove them up hill; while the pair before and the weight of the load, overbalancing the strength of those behind, drew them slowly and moderately down the hill." The utterance was slightly Delphic in its nature, but the opinion which Franklin was well known to entertain prevailed, and Pennsylvania and a few other States, among them New Hampshire, and, at a later day, Vermont, tried, with what success history has recorded, the experiment of placing unrestrained legislative power in the hands of a single chamber. This was in accordance with the theories of the French doctrinaires, of whom Turgot was the leading exponent. On the other hand, the English system of distinct legislative chambers, constituting a balance of power and acting as checks on each other, was incorporated into the Constitutions of Virginia and Massachusetts, and afterwards adopted into that of the United States. At a later day, 'the existence of dual chambers became a recognized feature' in constitution making in this country, and ceased to be a subject of discussion.
Certain details, however, arising out of this division of the legislative functions, remain unsettled even to this day; and one of these details, as vitally affecting the present legislation of many of the States, it is here proposed to discuss. The idea of independent chambers was, of course, of feudal origin. The distinction arose out of the existence of artificial orders in society. Through it the nobility, the church, and the commonalty sought to preserve their separate privileges, by the exercise of absolute vetoes on each other's enactments. When it was sought to adopt the principle of duality of chambers in America, no such distinct orders existed on which to base a division. As the commonalty alone was to be found on this continent, the separate chambers could apparently only represent the same constituency and protect the same interests; hence the position of Franklin and Turgot. They maintained that a cumbersome machinery was about to be perpetuated after every use to which that machinery was adapted had ceased to exist; — the representation was to be preserved after the constituency had been swept away. Recognizing the force of the argument, the framers of the Virginia and Massachusetts constitutions, seeking to preserve the two chambers as checks upon each other, were therefore obliged to cast about for distinct constituencies which the two chambers should represent; and, in doing so, they arrived at somewhat differing results. John Adams established the distinction for Massachusetts in a heavier property qualification for members of the Senate than for members of the House, and in the election of senators by counties and of representatives by towns; — in other words the Senate was calculated to represent more especially property and territory, while the House represented individuals and localities. George Mason had previously incorporated all of these distinctions as to constituency in the Virginia constitution, and had superadded a distinction in the term of tenure of office ; — the Virgina Senate was to be elected for a term of four years, while the members of the House of Delegates were elected for only one year.
In both cases, however, the separate chambers represented separate interests, and the division was founded on correct principles. As new constitutions were subsequently formed the town and county system of representation became obsolete, and the district system crept into use; the property qualifications also gradually disappeared, and the only remaining distinction, that of duration of term of service, thus became of more essential importance. When the Federal Constitution was framed, a solid ground of distinction between the two bodies was found in the representation of States by the one and of persons by the other; but the difference in term of service was also preserved, and Mr. Hamilton even went so far as to propose, in his original draft of the Constitution, that senators, like the members of the Judiciary, should hold office during good behavior. The period of six years for senators and two for members of the House was, however, ultimately agreed on; and this distribution of the legislative power has, in result, proved itself to be one of the most skilfully devised features of the Constitution.
These two principles — the Massachusetts principle, of annual elections for both branches, and the Virginia principle, of time iu tenure of office as an element of difference between them — went forth thus early to be copied into the constitutions thereafter to be framed. The Virginia system was adopted in the great majority of cases; but that of Massachusetts was adopted, and now exists throughout New England, as well as in Tennessee and Ohio, with the difference of biennial instead of annual elections, and was abandoned in Michigan only as recently as 1867. The result has been, that, in the States last mentioned, property qualification and territorial representation having both been swept away, the two bodies have ceased to represent different constituencies, and have also ceased, in a very great degree, to fulfil their intended function of acting as checks on each other; practically they now represent the same interests, are subject to the same impulses, and are stimulated by the same passions. It may indeed admit of question whether the old distinctions had not become obsolete, and should not have been abolished; but it is very clear that this should not have been done until those who did it were prepared to replace the old with new distinctions, more in accordance with the needs of the time. There are in fact but the three bases of property, territory, and time, all of which were contained in the Virginia constitution, upon which the division of the legislative into two chambers in,this country can be sustained. When property and territory were abolished as grounds of distinction, time only remained. Divided on this basis, the two bodies would represent phases of thought. The House would represent the immediate feelings and impulses of the people,— it would reflect, as it always has and always should, the existing condition of the popular mind and will, and would ever be the impulsive and propelling power in legislation. The first thought, however, is not always the wisest thought, nor the first impulse the most prudent impulse. Here comes in the function of the Senate. Composed of fewer members, elected for longer periods than its co-ordinate branch, — changing more gradually, and less subject to popular passions, it should represent the sober second thought of the people. Although the exampies of the Virginia and the United States constitutions were before the eyes of the innovators this new element of distinction was not introduced, and as a consequence, in many States, all the members of both houses are now elected at the same time and by the same constituencies, the only distinction being that each senatorial district probably includes several representative districts. The two chambers are retained in existence; the diverse interests which the two chambers were skilfully calculated to represent are totally ignored.
Very naturally, serious troubles have ensued wherever this fundamental principle has been thus disregarded. Examples of these derangements could readily be pointed out in the history of any of the States which have evinced such disregard; and it could easily be shown that at all times and in all places the double chambers cease to act as checks upon each other in just that degree in which they cease to represent distinct and different constituencies. As, however, the Massachusetts constitution has always been the chief exponent of the principle of general annual elections, a few examples and illustrations bearing on this question can best be drawn from the recent history of that State. All distinction, between the two houses, through a property qualification of members, was dropped from the Massachusetts constitution by an amendment ratified in 1840. The territorial distinction between the bodies — the one representing counties and the other towns — only remained, but was of practical importance, as causing senators to be men of somewhat more extended reputation. The district system became popular, however; and in 1857 it was finally incorporated by amendment into the Constitution of Massachusetts as applying to both Senate and House. These two bodies now represented the same constituency, and the State was liable to all the grave evils incident to government through a single chamber or two identical chambers. The theoretical evils incident to such a system can be found as set forth by James Madison, in No. 62 of "The Federalist." They are — 1. The probability of sinister combinations, which will be in proportion to the similarity in the genius of the two bodies. 2. "The propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions." 3. A want of due acquaintance with the objects and principles of legislation. 4. "The mutability in the public councils arising from a rapid succession of new members."