The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-05-22
THE GALPHIN CLAIM.
Opinion of tho Attorney General.
ATTORNEY GEsrHAl's orrlcr.

ATTORNEY GENERALS OrFIcE,
February 2, 1850. (
Sin The question you have submitted to me
upon the claim Of the executor of George Galphin,
under the act of the l4th Of August, 164S, Ihavc
examined with all the care due TO the circum-
stances attending il, it's supposed intrinsic diff
Guilty, and the large amount which il involves.
The opinion have formed am clear in and
although my official engagements in the Supreme
Court will not enable me TO give my reasons at
length do not feel at liberty to refuse the request
OF the claimant that would state TO you the opin
ion itself
The question is, whether interest should be al
lowed on the claim and if it should be, from what
period?
First. Should il be allowed,
think IL should. The material facts are these :
George Galphin, the testator Of the claimant,
tecedent to l773 was an authorized trader among
the Creek and Cherokee Indians In the colony OF
Georgia. In that capacity and as the assignee of
the claims of other legal traders, he creditor
of the Indians for a large amount. In l773, under
instructions from the mother country, the COVER
nor of the colony, Sir James Wright, negotiated a
treaty with the Indians, by which they coded a
large extent of territory, now constituting, it is be-
ieved, two entire counties of the State of Georgia,
(Wilks and Lincoln,) and part oftwo others, (Ogle
thorpe and Green, and, by an express stipulation,
the debts due by the Indians to the traders were
secured to be paid from the proceeds of the lands
The treaty was ratified by England in TITS, and
u commissioner duly constituted TO liquidate the
payment Of these debts out of the funds 30 by the
treaty provided for that end.
Under this authority Galphin's claim, and others
Of like character, ascertained, and the amount
due to him found to be f9,79l los. cd. sterling;
and for this sum he obtained proper certificate.
The revolutionary war occurring after
wards and ending in the independence of the colo
MES, the territory coded became the property OF
Georgia All the debts due the traders, provided
for by the treaty, except Galphin's, were after
government, and his excepted only because of his
patriotic adherenceto this country during the
The others, who were loyal to England, were fully
UNIDENTIFIED by that government, under just and
high sense Of the obligation imposed upon her by
the treaty, although as to her. the consideration as
to the payment Of the debts in fact failed by the
loss of the entire territory ceded But the fault
was hers, and the traders innocent as to that
result, and did all they could loyal subjects to
avert it. she stood between them and harm, and
fully paid their claims. That Gaphins would also
have been paid, had he, following the fankpnes of
England, been regardless of the duty which patri-
otism, in such an emergency, demanded, it is inn
possible to doubt.
The loss of his claim u.s. therefore, to be referred
exclusively to a cause which should commend it to
the favor of the American government, and induce
to the claimant, instead of causing it to apply to
the claim narrow rule of responsibility, often in
its effect placing its justice upon level far below
that which, by the law, between man and man,
is daily declared to be the proper and only level Of
justice.
These lands were, to a considerable extent, dis
posed OF by Georgia, in bounties to the soldiers
who achieved her independence, or given by her to
settlers, to guard her her frontier from Indian
outrages.
From time TO time the claim was demanded Of
Georgia. and although its merits were never denied,
but on the contrary in various ways admitted, il
never paid.
In 1902, large tract Of country, comprising
the States of Alabama and Mississippi, ceded
by Georgia to the United States; but until the law
of August, lS4S, no provision was made by the
United States for the liquidation of the debt Since
that act it is too late to dispute the justice of
the demand. That question was settled by the
law ITSELF looking only to its TERMS the memorial
which prayed the relief and the report of the
mittee who reported the bil and il not, is put
beyond all doubt, If any ever existed, by the deci
sion Of your predecessor, MIR. Walker, in paying
the principal OF the debt.
As have already said, am of opinion that in
terest should be allowed, and from the date of the
certificate in l775 My reasons briefly these:
l. The effect of the treaty of 1878 to charge
the lands themselves with the payment Of the debt,
principal and interest.
2 This charge in equity remained an incum
brancc on the land, in whosesoever hands they might
come, except so far as, by right of war; the claims
confscated.
3. As against Galphin, that right never existed.
He struggled in common with the patriots of the
day, in wrestling the territory from British rule,
and in subjccting IL to the sovereignty Of Georgia
4. That upon the cession by Georgia to the Uni
ted Saes, in 1902, the latter became liable for the
stpulatons Of the treaty of l773, and bound in law
and honor to execute them.
b. That the minimum of their responsibility be-
ing the value of the lands and this being far be-
yond the amount of the claim, with interest, their
liability for the entire amount is manifest.
6. That if the British government was liable for
the debt Gas II clearly, under her law, was not,
between her and Galphin because Of Galphins
disloyaty 1t was the duty Of the United States TO
have prosecuted it upon that government.
a. That Georgia was responsible originally, as
between herself and the claimant; but the lands
were used, in great measure, for the common
benefit OF all the States, either means of giving
soldiers bountics, or as furnishing resource TO
guard against Indian rayages, the United States,
IN l54S, when they agreed to pay this particular
claim agreed to assume liability coextensive with
that OF Georgia. In this respect am unable 10 dis
tinguish between this and that of the Virginia
communication cases assumed by the United States,
by the act Of July, 1892.
:. That the allowance of interest in such a
IN no way conflicts with the prior custom of the
Government in relation 10 such allowances. That
the act OF lS45 gives the power to allow, il cannot
be, nor do understand IL 10 be, denied.
IL is by assuming that there is a settled and al
most universal rule adverse TO such allowances, that
the claim is thought 10 be invalid.
For want of time am unable now 10 go into
examination OF the in which interest has been
paid where there was express provision for il in
the law embracing the claims. As have already
said, think the Virginia Communication claims are
an answer 10 the objection; but the claim in qucs-
ton stands upon grounds higher and stronger
than these.
Here, beside the obligation resulting from
suming, as was done by the act Of lS4S, this debt
Of Georgia, because Of the appropriation by her Of
the lands charged with the debt TO the common
cause, which was all that existed in the Virginia
cases, there exists this additional ground, that by
taking Tho cession from Georgia, IN 1902, bound
owseces 10 erfinguish all outstanding titles 10 the
lands within the limits of Georgia, and therefore
compelled in good faith TO pay this debt which, by
a solemn treaty stipulation, was then, and must
remain until paid, lien on such lands. And, in
the last place, that, looking 10 the circumstances
preceding the act Of lS4s. stated in the memo
rial Of the claimant and in the report Of the Judi
ciary Committee, and looking 10 the words Of the
law tsclf, have no doubt il was and should have
been the purpose OF Congress TO pay the interest
well as the principal Of the claim. This, in my
opinion was due TO the services and sacrifices Of
the ancestor Of the claimant; TO the mere legal and
equitable responsibility of the United States, a
trustee Of the lands charged with the debit 10 the
obligation To Georgia 10 indemnify her against il,
because of her application of the lands, as far
disposed of, TO the promotion Of the common cause
OF the revolution; and, above ALL TO the duty which
Congress must have felt of securing TO her own
citizens that full of ustice demanded bv