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3d. Although in the 5th sertion 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 pot, 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 assigoment doly made of that subscription. Here lies the essence of the difficulty. Can an assigninent 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 acınally paid. Bar it is a creamsre of the bank law, and its mode of transfer depends opon 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 justiluled 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 io 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 lau's and ordinances shall be instituted, and the seller will be compelleil, 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 bow accepted (merely in right of his parchase) 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 pot 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 sufirage 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 pre. sent assignees be shut out, either a sufficient mumber of stockholders may not be found to elect, or the original subscribers, who do not retain a shil. ling 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 subsciiption to the Bank of the United States; that it does not resemble a corporeal challel, to which delivery constilules a complete right, but rather a chose in action, concerning which the prirchaser cannot, without the aid of a statute, ise his owii 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 bad it nos 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 wi uld 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 success 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 Con. gress never contemplated it. But in many of the States we meet with a similar instance with the present. In certain elections none but free. holders can vote. In this none but stockholders or proprietors of capital stoek 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 origiual 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. lt 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, froin separate subscriptions.
5th. The fifth question being answered in the foregoing observations, . I forbear to repeat the answer. But I will now recapitulate the general result.
Ist. That the commissioners cannot, as such, superintend or intermed. dle 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.
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.
EDM. RANDOLPH. To the SECRETARY OF THE TREASURY.
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 reference to the 17th section.
I have the honor, sir, to be, with great respect and esteem, your most obedient servant,
EDM. RANDOLPH. To the SECRETARY OF THE TREASURY.
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 condemna. tion; 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,
EDM. RANDOLPH. To the SECRETARY OF STATE.
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. i 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,
however, the law of nations is considered by the act affixing penalties to certain crimes as being in force, and some of its subjects are thrown under particular provisions We are, then, to determine whether the facts upon which Mr. Van Berckel remonstrates fall within these provisions; what would be the consequence of finding this to be the case; and what ought to be done to avenge an infraction of the law of nations, which may not be punishable under any merely municipal law? The arrest of the domestic servant of a public minister is declared illegal by the act con. cerning crimes; all process for the purpose is annulled; and the persons concerned in the process are liable to imprisonment not exceeding three years, and to a fine at the discretion of the court. If, however, the domestic be a citizen or inhabitant of the United States, and shall have contracted, prior to his entering into the service of the minister, debts still unpaid, he shall not take the benefit of the act; nor shall any person be proceeded against under the act 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 going into Mr. Van Berckel's mansion, and serving an execution, is not animadverted upon by the federal law. These two examples of offence must, I think, be examined by different rules. In that of arresting a domestic, Congress appear to have excluded every resort to the law of nations. This must be the effect of their regulations, or else the of. fender would be punishable both under that and the law of nations; or at least under either, at the will of the prosecutor. But this cannot be 'conceived as the sense of the legislature. It is presumable that they meant to settle this subject in all points appertaining to it. Mr. Van Berckel, then, can appeal, upon the arrest, to the federal act alone; accord. ing to which, the officer arresting may protect himself, if he can with truth use the proviso contained in the 26th section.
The other branch of the officer's conduct, to wit: the entering into the house to serve an execution, will either be absorbed in the arrest, as being necessarily associated with it, if that should be found criminal; or, if the arrest be admissible, must be punished, if at all, under the law of nations, as being left untouched by the municipal act. It then becomes a ques. tion whether it be an offence, and in what degree, against the law of nations, to go into the house of a minister, peaceably to arrest a man who might be elsewhere lawfully arrested ? I shall not ask what might be done if a minister were to afford an asylum to a man not entitled to protection against the civil process of the country, becanise here it cannot possibly be insinuated. Nor will I say that such a regard is not due to his residence as to forbid an intrusion for the purpose of arresting, by or. dinary prucess, even an unprotected man. But even if it should be proved that the domestic could not claim the benefit of the act of Congress, the mere going into the house and executing a precept will probably sustain a prosecution; but, at best it would be esteemed summum jus. On the other hand, if the officer could be mulcted for the arrest, on the principle of the arrest, the federal courts are open to all cases cognizable under the authority of the United States.
I ought not to omit for your consideration a remark arising from a comparison of the 25th and 26th sections of the act of Congress. The former renders the process void, to all intents; the latter denounces a penalty against the persons concerned in it, and furnishes the excuse in