jection of bids, and decides on his official responsibility; but we presume that the Court of Claims may supervise his conduct to a certain extent, as, for instance, when the controversy turns upon the fact whether his bid was actually accepted or not.1 Members of Congress are forbidden to enter into public contracts; and contracts in which they are concerned are declared. void, whether their interest be direct or indirect. There are some exceptions to this prohibition, as in bills of exchange; nor does the rule extend to stock companies in which they hold shares ; but it applies to a partnership concern. The policy thus indicated is the prevention of executive influence over members of Congress.2 It is to be feared that these salutary provisions have of late years been frequently disregarded. Contracts procured by bribery, are, at the option of the President, absolutely void. And an agreement to procure a contract from the United States through sinister influence, is contrary to public policy, and of no effect.1 Nor are assignments of Government contracts recognized. It was said by Mr. Crittenden, that by no law, written or unwritten, common law or statute, could the assignment be made. And the Act of July 17, 1862, ch. 200, provides that all such transfers shall render the contract null, so far as the United States is concerned, with a reservation of remedies on its behalf. These are the chief distinguishing features of government contracts. There are others less important, which the limits of this article forbid us to notice. But a few words may be fitly said on the subject of damages as judicially recognized. The rule in estimating damages on government contracts, where the contractor is the injured party, is to allow for the loss actually sustained, and the clear profits which he would have realized had he been allowed to complete the contract. Thus, where work is broken off on a public building, whatever injury is actually sustained may be allowed to the contractor, as well as the gain of which he was deprived by breach of the contract; or he may waive the contract, and recover for the value of the work actually performed. But he cannot, by obstinately persisting in the work, after he has been 1 4 Att. Gen. Opin. 334; 6 ib. 226; Moore v. United States, 1 C. Cl. 90. 2 Act April 21, 1808, ch. 48. See 2 Att. Gen. Opin. 38; 4 ib. 47; 5 ib. 697. 3 Act July 16, 1862, ch. 180. 4 Tool Co. v. Norris, 2 Wall. 45. And see Bartle v. Coleman, 4 Pet. 184. ordered to stop, make Government liable for greater damages. And it is to be constantly borne in mind that the Government is not held liable for a tort; and that unliquidated damages in the nature of a penalty for illegal conduct, can never be assessed upon the United States.1 Much has been said to bring government contractors into odium. Some of the charges are true; some again are, doubtless, false. Public officers lead off in applying harsh epithets. We question the wisdom of denouncing, by the wholesale, any class of men whose services are essential to the public. Let us oust the trespasser if we will; but should we not be at least respectful to our landlord? Government contractors do not constitute a fixed caste in the community; they are, in fact, such of our citizens as choose to enter into business relations with the Government. The usual inducements are two: honor and a certainty of profit. If public sentiment pronounces the pursuit dishonorable, the public wants must be supplied by those for whom the hope of profit suffices. If legitimate gains, considering the risk of securing them, are not such as to tempt them from their ordinary pursuits, then we come to knaves and speculators, who expect by the sale of inferior goods, or improper connivance with officials, to secure unlawfully what their written agreement withholds. Whether with better or worse men, Government must make its bargains. When favoritism rules, or when sound traders refuse to bid, does not the real difficulty appear in the low ebb of public credit and political virtue? So, too, a contract is mutual; and where, as in the case of the Government, stringent provisions and ample indemnity are found on one side, and imperfect remedies on the other, it is unreasonable to suppose that the weaker party can gain unfair advantages without at least remissness on the part of the stronger. We say this, not in order to shift responsibility, nor to cast reproach upon executive officers. But while the grievances of Government, through the wrongful acts of contractors, is a thrice-told tale, that of the grievances of contractors, through the wrongful acts of Government, is an unwritten chapter. For this there is ample material in the books we have cited, among the department records, and on the congressional files. Contractors have been 1 Adams v. United States, 1 C. Cl. 106; McKee v. United States, ib. 336; Johnson v. United States, 2 C. Cl. 391. 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 no 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, 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. 13 C. Cl. See Pratt v. United States, p. 105, &c. 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, |