Edmund Randolph’s Opinion on Sureties for Mint Officers
The attorney-general of the U. S. to the secretary of state
The fifth section of the act, establishing a mint, directs, that the assayer, chief coiner, and treasurer, previously to entering upon the execution of their respective offices, shall each become bound to the U. S. with one or more sureties, in the sum of 10,000 dollars, with condition for the faithful and diligent performance of the duties of his office. With this requisition the persons, who are commissioned, as assayer and chief coiner, have not, it seems, as yet complied. Can they then execute their offices? is your question. I answer that they cannot; because the bond is a preliminary to the execution. I recollect a subtle doubt, which was once raised upon a law, inflicting a penalty of five hundred pounds upon a justice, who should presume to execute the office of justice, before he took an oath. It was contended, that if he chose to submit to the penalty, he might proceed in the functions, and his acts would notwithstanding be valid. If this were law, (which, however, I disbelieve) it was certainly the ultimate point, to which the law can in such cases be extended. But between that instance, and the situation of the assayer and chief coiner, the interval, is so great, as to Afford no protection to the latter from the former. In the former, there is a far greater appearance of recognizing a right to execute, than in the latter, to which that right is impliedly denied.
Decr. 6. 1793.
RC (DNA: RG 59, Letters from and Opinions of the Attorney General); addressed: “The Secretary of State”; endorsed by TJ.
Randolph quoted nearly verbatim the fifth section of the act of 2 Apr. 1792 establishing a mint, omitting only the requirement that the sureties be approved by the Secretary of the Treasury (Annals, description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials, Washington, D.C., Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The first two volumes of the set cited here have “Compiled … by Joseph Gales, Senior” on the title page and bear the caption “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. The remaining volumes bear the caption “History of Congress” on both recto and verso pages. Those using the first two volumes with the latter caption will need to employ the date of the debate or the indexes of debates and speakers. description ends iii, 1351).