Daily Richmond times. [volume] (Richmond, Va.) 1849-1850, 1850-05-25
THE GALPHIN CLAIM.
Opinion Of the Attorney General.


ATTORNEY GENERALS OFFICE
February 2, 1850.
SIR-The question you have submitted to me upon
the claim of the executor OF George Gaphn under the
act OF the 14th of August, l84S, | have examined
with all the due to the circumstances attending it.
its supposed intrinsic difficulty, and the large amount
which it involves.
! The opinion have formed | am clear in; and al
though my official engagements in the Supreme Court
will not enable me to give my reasons at length, do not
eel at liberty to refuse the request OF the claimant that
lwould state to you the opinion itself
The question is, whether interest should be allowed
on the claim; and if it should be, from what period
| First. Should it be allowed
| | think it should. The material facts are these:
George Gal the testatof OF the claimant anteceden
| to l773 was authorized trader among the Greek
and Cherokee Indians in the colony OF Georgia In
that capacity and as the assignee OF the CLAIMS OF other
legal traders, he was a creditor of the Indians for
large amonnt. In l773, under instructions from the
mother country the governor of the colony, Sir James
Wright, negotiated treaty with the Indians, by which
they coded large extent of territory constituting
it's believed two entire counties of the State Of Geor-
gia, Wilks and Lincoln) and part ofwo Others tOge-
thorpe and Green, and by an express stipulation, the
debts due by the Indians 10 the traders were secured
to be paid from the proceeds of the lands.
The treaty ratified by England in IT'S, and a
commissioner duly constituted to iqudate the payment
OF these debts of the funds by the treaty proy-
ded for that end.
Under this authority Gaphin's claim and others of
like character, were ascertaned and the amount due
him found to be go 79 l5s Sd sterling; and for this
sum he obtained proper certificate.
The revolutionary war occurring soon afterwards,
and ending in the independence Of the colonies,
the territory coded became the property OF Georgia.
All the debts due the traders provided tor by the tea-
ty, except Galphns afterwards paid, principal
and interest, by the British government and his except
ed only because of his patriotic adherence to this
try during the war The others, who loyal to
Eng land, fully Unidentified by that government
under just and high of the obligation imposed
upon her by the treaty, although to her. the conside
ration as the payment OF the debts fact failed by
/ 10 n rpdpr
hers, and the traders were innocent to that re-
suit and did all they could loyal subjects to avert it,
she stood between them and harm, and fully paid their
claims That Gal phins would also have been paid,
had he, following the fortunes OF England, been re-
CARELESS Of the duty which patriotism, in such an emer-
gency, demanded lis impossible to doubt.
The loss OF his claim Isl therefore, to be referred ex
cusively to cause which should commend it to the IA
vor of the American government, and induce the 60
vernment to be, if necessary, even generous 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
as between and man, is daily declared to be the
proper and only level of justice.
These lands were, 10 considerable extent, disposed
of by Georgia. in bounties to the soldiers who achieved
her independence or given by her to Settlers 10 guard
her on her frontier from Indian outrages
| From time to time the claim was demanded OF
Georgia, and although its merits were never denied,
but the contrary in various ways admitted it was ne
yer paid
In 1902 large tract of country, now comprising the
States of Alabama and Mississippi was coded by Geor
ga to the United States; but until the law of August,
lS4S, provision made by the United States for
the liquidation of the debt Since that act it is
late to dispute the justice of the demand That ques
ton settled by the law ITSELF looking only to its
TERMS the memorial which prayed the relief and the
port OF the committee who reported the bill and, it
the decision of your predecessor Mr. Walker, in paying
the principal OF the debt.
AS have already said, am of opinion that interest
should be allowed and from the date OF the certificate
in ITS NV reasons Drlef1y these.
l. The effect of the treaty OF l773 was to charge the
lands themselves with the payment of the debt prnci
pal and interest.
3 This charge in equity remained an incumbrance
on the land, in whomsoever hands they might come,
except so far as by right Of war; the CLAIMS
hscated.
g. As against Galphin, that right never existed He
struggled in common with the patriots of the day, in
wrestling the territory from the British rule and in sub
ecting i: to the sovereignty of Georgia.
a. That upon the cession by Georgia to the United
States in 1902 the latter became liable for the stpula
tons of the treaty of l73 and bound in law and honor
to execute them.
value oil the lands, and this being far beyond the
amount OF the claim, with interest," their liability tor the
entire amount is manifest.
g. That the British government liable Tor the
debt, las clearly, under her law, not, between
her and Gaphin, because of Galphn's disloyaltyl it
the duty OF the United States have prosecuted it
upon that government.
T. That Georgia was responsible originally, as be-
tween herself and the claimant but the lands were
used, in great measure Tor the common beneht OF all
the States either of giving soldiers bounties
furnishing TO guard against Indian ra-
wages the United States, l84S when they agreed 10
pay this particular claim, agreed to assume liability
coexenslve with that of Georgia. Ia this respect | am
unable to distinguish between this case and that OF the
Virginia Communication cases assumed by the United
States, by the act of July, 1882.
s. That the allowance ofnterest in such case In no
way conflicts with the prior custom OF the Government
in relation to such allowances That the act OF lS4S
gives the power to allow cannot be, nor do under
stand it to be denied.
1t is by assuming that there settled and almost
universal rule adverse to such allowances, that the
claim is thought to be invalid.