Imágenes de páginas
PDF
EPUB

COMMISSIONERS OF THE BANK OF THE UNITED STATES.

The commissioners appointed in pursuance of the act incorporating the Bank of the United States have no power, as such, to superintend the election of directors, or to interfere therein.

PHILADELPHIA, October 18, 1791.

THE Attorney General of the United States does himself the honor of repiving to the questions propounded by the Secretary of the Treasury of the United States, in his letter of the 12th of October, 1791, as follows:

1st. The commissioners appointed in pursuance of the act incorpora ting the Bank of the United States have no power, as such, to superintend the election of directors, or to interfere therein.

By the first section of that act subscriptions towards constituting the stock were to be opened, under the superintendence of such persons, not less than three, as should be appointed for that purpose by the President of the United States. The President was to appoint them accordingly; and the subscriptions were to continue open until the whole of the stock should be subscribed.

The fifth section provides that as soon as the sum of 400,000 dollars, in gold and silver, shall have been actually received on account of the subscriptions to the said stock, notice thereof shall be given by the persons under whose superintendence the same shall have been made, in at least two public gazettes printed in the city of Philadelphia; that the said persons shall, at the same time, in like manner, notify a time and place within the said city, at the distance of ninety days from the time of such notification, for proceeding to the election of directors; that it shall be lawful for such election to be then and there made, and that the persons who shall then and there be chosen shall be the first directors.

These are the only clauses which relate to the commissioners.

By the former clause their authority would have been concluded as soon as the whole of the stock was subscribed.

Nor was it extended by the latter, farther than to enable them to notify the time and place for proceeding to the election of directors; that is, the time and place, when and where, the persons capacitated to elect should proceed to elect.

The commissioners will, I suppose, appear with the books, that it may be known who were the original subscribers. But this duty naturally arises from their possession of those books, which are the best evidence of the original rights. The superintendence of the election has no analogy to such a possession.

2d. But does the smallest necessity exist why the commissioners, as such, should become the judges or superintendents of the election, or in any manner intermeddle in it? Is it not familiar to the experience of every day that persons assemble, with equal privileges of suffrage, and without the pre-eminence of any one of them, in order to constitute a body for the management of business? The first step is to appoint a moderator, or chairman. In the present instance the stockholders may with ease choose one or more persons to receive and count the votes, to report the numbers, minute the proceedings, and notify to the newlyelected directors their nomination. This seems to be a completion of the work.

3d. Although in the 5th section of the act which requires the first election of directors, it is not said by whom it shall be made; yet is the connexion between that and the 4th section so intimate as to render it certain that it must be made by the stockholders or proprietors of the capital stock.

Whether these terms be synonymous or not, it is immaterial here to examine. It is sufficient to say that no man can be one or the other except by virtue of an original subscription, or an assignment duly made of that subscription. Here lies the essence of the difficulty. Can an assignment be made before the first election of directors? The scrip, it is true, may be contracted for; may be delivered into the hands of the purchaser; and the price may be actually paid. But it is a creature of the bank law, and its mode of transfer depends upon that law. Accordingly it is de clared, in the 12th section, that the stock of the said corporation shall be assignable and transferable according to such rules as shall be instituted in that behalf by the laws and ordinances of the same. Now the election of directors precedes the institution of laws and ordinances concerning the assignment and transfer of stock; and therefore no assignment or transfer can, as yet, be legally made. It is true, indeed, that the delivery of scrip amounts to an agreement to transfer the stock when the law's and ordinances shall be instituted, and the seller will be compelled, in a court of law, to perform all acts which shall be hereafter necessary to the transfer. But an agreement to transfer is not an actual transfer. Hence I conclude that no holder of purchased scrip can be now accepted (merely in right of his purchase) as a voter for directors.

It is proper, however, to take notice of three objections which may be urged against these positions. The first is, that the giving of a power to the corporation to ordain rules of transfer does not exclude the usual modes of transferring personal property before those rules shall be formed. The second, that the provision, that after the first election no share shall confer a right of suffrage which shall not have been holden three calendar months previous to the day of election, implies that at the first election shares assigned confer a right of suffrage; and the third, that if the present assignees be shut out, either a sufficient number of stockholders may not be found to elect, or the original subscribers, who do not retain a shilling of interest, will be admitted to a vote without any attachment to the common welfare.

To the first objection I answer, that the nature of scrip must be an acknowledgment of a certain subscription to the Bank of the United States; that it does not resemble a corporeal chattel, to which delivery constitutes a complete right, but rather a chose in action, concerning which the purchaser cannot, without the aid of a statute, use his own name judicially, but must use that of the original proprietor. Besides, the third section had already vested the corporation with ample power to regulate transfers; and the twelfth would have been nugatory had it not been intended to prevent transfers from being full alienations, without an observance of the rules to be established.

The force of the second objection is destroyed, when we recollect that, although it be admitted that at the first election, shares acquired at any 'time before, howsoever short, would give a vote, yet the clause undoubt. edly had in view, what everybody expected, that the subscription would be filled by degrees; and, therefore, that no subscriber, even on the day

preceding the first election, should be deprived of a vote. The objection is also founded on too distant an implication to counteract reasoning otherwise weighty.

The consequence of the foregoing sentiments undoubtedly is, (as a branch of the third objection expresses,) that original subscribers, who may have sold out, and who no longer have a fellow-feeling for the suc cess of the scheme, will be admitted to vote.

Is this the genuine construction of the law? If it be, it is not for any man to discuss the propriety of its consequences. I confess that a conse. quence extravagantly absurd, ought to lead us to be confident that Congress never contemplated it. But in many of the States we meet with a similar instance with the present. In certain elections none but freeholders can vote. In this none but stockholders or proprietors of capital stock can vote. Let it be supposed that the freeholder has agreed in writing to convey to another his freehold, has received the purchase money and delivered the possession; as in the case of scrip, the original subscriber may have agreed to sell-has endorsed upon it an assignment, and delivered it, so endorsed, to the purchaser. This agreement, as to the freehold, would be considered in the States to which I refer as giving an equitable title only to the buyer, and reserving the legal title to the vendor. So in scrip, the purchasers have the equitable, while the original subscribers retain the legal title. Who would vote in the case of the freehold? The holder of the legal title. Who, by a parity of reason, ought to vote for directors? The person who, being the original subscriber, is alone known as the holder of the legal title. I have seen none of those endorsements or writings by which scrip has been attempted to be transferred; and, therefore, will not undertake to say whether they amount to a substitution of the purchaser, as the proxy of the seller. He who claims to be a proxy ought to exhibit, if not a regular letter of attorney, at least some authentic appointment to the office. I have distinguished also between the real interest and the right of voting at the first election. Hence the conveyance of one does not absolutely involve the other. But I can conceive that the words of some of those endorsements may perhaps be broad enough to justify a demand of the right of a proxy.

4th. The proxies, however, of no subscriber can have more votes than himself. For example, four shares subscribed by one nian cannot, by being divided into the hands of four proxies, confer four votes, as would have been the case if each of them had subscribed a share. But what is to be done if a subscriber has appointed several proxies? He may ap point what number he pleases; but if they are divided they cannot be called the proxies of an individual, acting (if I may be permitted so to speak) integrally. To be the real proxies, then, they must concur. may prehaps be presumed, that if the subscriber were, in the division of his shares among his proxies, to make them representatives, respectively, of so many as would give them one or more votes, each might vote by himself. But their power being that of proxies only, they cannot claim separate suffrages because they spring from the separate holding of stock in one person, or, in other words, from separate subscriptions.

It

5th. The fifth question being answered in the foregoing observations, I forbear to repeat the answer. But I will now recapitulate the general

result.

1st. That the commissioners cannot, as such, superintend or intermeddle in the election.

2d. That the stockholders can easily of themselves provide judges of the election.

3d. That the original subscribers, whether holding interest or not, or their proxies, have the only right of voting.

4th. That proxies may be made by any authentic act.

5th. And that all the proxies of the same subscriber must concur.

I pass by the possibility of a schism between the original subscribers, or their proxies, and the assignees, as they are called, and of the election of two sets of directors; for this makes no part of your inquiry, and would be remedied by the commissioners delivering up the books and money to that set whom they think to be duly elected.

To the SECRETARY OF THE TREASURY.

EDM. RANDOLPH.

SUBSCRIPTIONS TO A LOAN.

Although the 13th section of the funding act admits that subscriptions may be made to the loan payable in the principal and interest of certain State certificates or notes, redeemed notes cannot be used for that purpose.

PHILADELPHIA, November 9, 1791. SIR: I do myself the honor of answering your letter of the 2d instant, upon the subject of the North Carolina certificates.

The 13th section of the funding act admits that subscriptions may be made to the loan payable in the principal and interest of the certificates or notes which, prior to a certain day, were issued by the respective States as acknowledgments or evidences of debt by them respectively owing, except certificates issued by the commissioners of army accounts in the State of North Carolina, in the year 1786. These last certificates are, I presume, now out of the question.

But how can redeemed certificates be a subscription of debt? Is a debt once due, but now paid off, still a debt? I cannot comment upon this question with any hope of making it clearer than it is at its first appear

ance.

For its redeemed debt, of the foregoing description, each State will, I suppose, be a creditor of Congress; but the great settlement of accounts between the United States and the individual States must embrace that debt. The subscription excludes it, as may be more fully seen by a ref erence to the 17th section.

I have the honor, sir, to be, with great respect and esteem, your most obedient servant,

To the SECRETARY OF THE TREASURY.

EDM. RANDOLPH.

THE PRESIDENT AND THE JUDICIARY.

Sovereigns do not interfere with the regular course of the administration of justice where a foreigner is a party, until he shall have gone to the court of dernier resort with his case.

PHILADELPHIA, February 22, 1792.

SIR: I suspect from the communication of the British minister, dated February 18, 1792, that the reasons for delaying a definitive answer to

his memorial on the subject of Mr. Pagan are not rightfully understood. The principal allegations of Mr. Pagan are, that the true construction of the preliminary articles justified the seizure; that the pendency of the appeal in England ought to have stopped the proceedings of the courts of Massachusetts; that the reversal of the decree amounted to a condemnation; and that an appeal ought to have been allowed to the Supreme Court of the United States.

If the seizure were really justifiable, Mr. Pagan might probably obtain a writ of error founded on the twenty-fifth section of the judicial law. If it were not justifiable, a great part of his defence would be sapped. Now, when it is recollected that the usage of sovereigns is not to interfere in the administration of justice until the foreign subject who complains has gone with his case to the dernier resort; as the substratum of this complaint, if true, may bear a writ of error; as a writ of error is now as open as when the appeal was prayed to the Supreme Court of the United States; as three of the judges are now in this city, and all of them may be applied to in twenty-four hours; as the interposition of government can be made with equal effect after this application; and as Mr. Pagan cannot be injured by even a fruitless attempt, I am strongly persuaded that upon reconsideration, a motion for a writ of error will be preferred. Should this step miscarry, I have no doubt that it will be proper that an answer should be returned at large, and that any relief of which the law of nations warrants a demand, will be extended to Mr. Pagan.

I have the honor, sir, to be, with true respect and esteem, your most obedient servant,

To the SECRETARY OF STAte.

EDM. RANDOLPH.

WHO PRIVILEGED FROM ARREST.

The arrest of the domestic of a public minister is illegal; all process, therefore, is forbidden, and the persons concerned in any such process are liable to fine and imprisonment.

If, however, the domestic be an inhabitant of the United States, and shall have contracted debts prior to his entering into the service of the minister, which are still unpaid, he is not entitled to the benefit of the act concerning crimes that gives this immunity; nor shall any person be proceeded against for such arrest unless the name of the domestic be registered in the Secretary of State's office, and transmitted to the marshal of the district in which Congress shall reside.

The arrest is regulated by act of Congress; the entering a public minister's house to serve an execution will either be absorbed in the arrest, as being necessarily associated with it, if that be found criminal, or, if the arrest be admissible, must be punished, if at all, under the law of nations.

PHILADELPHIA, June 26, 1792.

SIR: This morning I had the honor of receiving the letter of Mr. Van Berckel, with the enclosures addressed to you, complaining of the arrest of one of his servants. The law of nations, although not specially adopted by the constitution or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modifications on some points of indifference. Indeed a people may regulate it so as to be binding upon the departments of their own government, in any form whatever; but with regard to foreigners, every change is at the peril of the nation which makes it. Impliedly,

« AnteriorContinuar »