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The whole object of the 8th section was to hear the applicant and another applicant, or a patentee holding an unexpired grant for a same invention, as to priority of invention between themselves, as one of the means of satisfying the Commissioner upon one of the points specified in the previous section. But it was not its purpose to limit his authority as to time, nor to change his duties, as these were regulated by that section. They continue, I think, to govern both, and are not performed so as to put the subject beyond his control until the patent is actually granted.
Nor do I see that the inconvenience or injustice supposed by the course of Wade to result from this construction will ensue. It is thought that, by allowing the course adopted in this instance, the controversy can never be brought to a close. But this is not so. The Commissioner has control of the whole natter. When satisfied of the title, he will issue the patent, and it is his duty to issue it.
The permission to withdraw an application in such case will be granted or not, as the Commissioner may be so satisfied or not. It is no answer to this to say that it leaves the rights of parties to depend upon the discretion of the officer, and not upon the law. His discretion is not a loose and undefined one, which he may use merely as he wills or desires. It is a legal discretion, or rather a judgment, founded upon the law, and only to be exercised when, in his opinion, the law demands it. This demand was made when the Commissioner was called upon to issue a patent to an applicant which he is either satisfied is not entitled to it, or doubts as to the title under the only section of the law which gives him authority to issue it, the 7th. But if the delay and inconvenience sug: gested might be the consequence in some cases, the injustice that might result to the true inventor or to the public from the opposite construction commends this to adoption. Whilst, in a spirit of true policy, the act carries out the constitutional provision for the promotion of the progress of science and useful arts, by securing, for limited periods, to authors and inventors, the exclusive right to their respective writings and discov, eries,” it at the sanje time guards the public against abuse, by requiring the Commissioner, at the very last moment, to be satisfied that he is securing the real author or inventor the exclusive right to his own discovery, and not sanctioning an invalid or fictitious claim, and thereby furnishing the means of annoying and injuring the public.
I have no doubt, therefore, that the Commissioner in the present in. stance, Mr. Burke, had authority to receive the second application of Mathews, and that it was his duty so to do, under the circumstances; and that the opinion he gave upon the former application, no patent hav. ing issued to Wade, is not a bar to such proceeding.
I decline, for the present, answering the second question, so far as it is not covered by this, as it is not called for by the present case. But if you think that an answer is required for the proper execution of the duties of the Commissioner, I will give it, at a moment of more leisure than I now have. I have the honor to be, sir, with high regard, your obedient servant,
REVERDY JOHNSON. Hon. THOMAS EWING,
Secretary of the Interior.
ALLOWANCE OF INTEREST ON CLAIMS.
In the case of the claim for interest of the executor of George Galphin, deceased, who, in his
lifetime, and prior to 1773, was a trader with the Creeks and Cherokees, in the then colony of Georgia ; and at the date of the treaty concluded in that year be' ween said Indians and the government of Great Britain, ceding a large district of country to the latter, in trust, for the payment of their debts to tiaders from the proceeds,&c., a creditor of said Indians to a large amount; and who, after the appointment of coramissioners by Great Britain to liquidate such debts, obtained from them, in 1775, a proper certificate or liquidation of his demand, but who, in consequence of his subsequent disloyalty to that government in the revolution which immediately followed, was never paid according to the stipulations of the said treaty, but retained such certificate unsatisfied until his death ; and which claim was then preferred against Georgia, and subsequently against the United States, to whom a large tract of said land had been ceded, until 184*, when Congress ordered it to be paid ; and, pursuant to its order, the principal was paid by the Secretary of the Treasury-DECIDED ihat the lands ceded by the treaty of 1773 were eharged with this debt ; that the same was subsequently assumed by the United States ; that the claim is analogous to others upon which interest has been allowed ; and that the claimant is entitled to interest from the date of the certificate of said commissioners liquidating the demand.
ATTORNEY GENERAL'S OFFICE,
February 2, 1850. Sir: The question you have submitted to me, upon the claim of the executor of George Galphin, under the act of the 14th of August, 1848, I have examined with all the care due to the circumstances attending itits supposed intrinsic difficulty and the large amount which it involves.
The opinion I have formed I am clear in; and although my official engagements in the Supreme Court will not enable me to give my reasons at length, I do not feel at liberty to refuse the request of the claiinant, that I wonld 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?
I think it should. The material facts are these : George Galphin, the testator of the claimant, antecedent to 1773, 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 was a creditor of the Indians for a large amount. Ju 1773, under instruc. tions from the mother country, the governor of the colony, Sir James Wright: negotiated a treaty with the Indians, by which they ceded a large extent of territory, now constituting, it is believed, two entire counties of the State of Georgia, (Wilkes and Lincoln) and part of two others, (Oglethorpe 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 1775, and a commissioner duly constituted to liquidate the payment of these debts out of the funds so by the treaty provided for that end. Under this authority, Galphin's claim, and others of like character, were ascertained, and the amount due to him found to be 29,791 158. 5d sterling; and for this sum he obtained a proper certificate. The revolutionary war occurring soon afterwards, and ending in the independence of the colonies, the territory ceded became the property of Georgia. All the debts due the traders provided for by the treaty, except Galphin's, were afterwards paid, principal and interest, by the British government, and his excepted only because of his patriotic adherence to this country during the war. The others, who were loyal to England, were fully indemnified by that government, under a just aud
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 as the fault was hers, and the traders were innocent as to that result, and did all they could, as loyal subjects, to avert it, she stood between them and harm, and fully paid their claims. That Galphin's would also have been paid had he, following the fortunes of England, been regardless of the duty which patriotism in such an emergency demanded, it is impossible to doubt.
The loss of his claim is, therefore, to be referred exclusively to a cause which should commend it to the favor of the American government, and induce the government to be, if necessary, even generous to the claimant, instead of causing it to apply to the claim a narrow rule of responsibility, often in its effects placing its justice upon a level far below that which by the law, as between man and man, is daily declared to be the proper
and only level of justice.
These lands were to a cousiderable extent disposed of by Georgia in bounties to the soldiers who achieved our independence, or given by her to settlers to guard her on her frontier from Indian outroges.
From time to time the claim was demanded of Georgia; and although its merits were never denied, bui, on the contrary, in various ways ad. mitted, it was never paid.
In 1802 a large tract of country, now comprising the States of Ala. bama and Mississippi, was ceded by Georgia to the United States, but until the law of August, 1848, no provision was made by the United States for the liquidation of the debt. Since that act, it is now 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 committee who reported the bill; and if not, is now put beyond all doubt, if any ever existed, by the decision of your predecessor, Mr. Walker, in paying the principal of the debt.
As I have already said, I am of opinion that interest should be allowed, and from the date of the certificate, in 1775. My reasons are briefly these:
1. The effect of the treaty of 1773 was to charge the lands themselves with the payment of the debt-principal and interest.
2. This charge in equity remained an incumbrance on the lands, in whosesoever hands they might come, except so far as, by a right of war, the claims were confiscated.
3. As against Galphin, that right never existed. He struggled in com. mon with ihe patriots of the day in arresting the territory from British rule, and in subjecting it to the sovereignty of Georgia.
4. That upon the cession by Georgia to the United States in 1802, the latter became liable for the stipulations of the treaty of 1773, and bound in law and honor to execute them.
6. That the mininının of their jesponsibility being the value of the lands, and this being tar beyond ihe amount of the claim, with interest, their liability for the entire amount is inanifest.
6. That if the British government was liable for the debt, as it clearly, under her law, was not, as between her and Galphin, because of Gal. phin's disloyalty, it was the duty of the United Staies to have prosecuted it upon that government.
7. That Georgia was responsible originally, as between herself and the claimant; but as the lands were used in a great measure for the common benefit of all the States, either as means of giving soldiers hounties, or as furnishing a resource to guard against Indian ravages, the United States, in 1848, when they agreed to pay this particular claim, agreed to assume a liability co extensive with that of Georgia. In this respect I am unable to distinguish between this case and that of the Virginia commutation cases assumed by the United States by the act of July, 1832.
8. That the allowance of interest in such a case in no way conflicts with the prior custom of the government in relation to such allowances. That the act of 1948 gives the power to allow it, cannot be, nor do I understand it to be, denied.
It is by assuming that there is a settled and almost universal rule ad verse to such allowances, that the claim is thought to be invalid.
For want of time, I am unable now to go into an examination of the cases in which interest has been paid where there was no express provision for it in the law embracing the claims. As I have already said, I think the Virginia commutation claims are an answer to the objection; but the claim in question stands upon grounds higher and stronger than these.
Here, besides the obligation resulting from assuming, as was done by the act of 1848, 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 groundthat, by taking the cession from Georgia, in 1802, we bound ourselves to extinguish all outstanding titles to the lands within the limits of Georgia, and therefore compelled in good faith to pay this debt, which, by a sol. emn treaty stipulation, was then, and must remain until paid, a lien on such lands And in the last place, that, looking to the circumstances pre. ceding the act of 1848, as stated in the memorial of the claimant, and in the report of the Judiciary Committee, and looking to the words of the law itself, I have no doubt it was, and should have been, the purpose of Congress to pay the interest as well as the principal of the claim.
This, in my opinion, was due to the services and sacrifices of the an. cestor of the claimant—to the mere legal and equitable responsibility of the United States as trustee of the lands charged with the debt-to the obligation to Georgia to indemnify her against it, because of her applica. tion of the lands, as far as 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 measure of justice de. manded by the treaty stipulation of 1773, which England, uuder much less imperative circuinstances, so promptly rendered to her subjects.
As I am not able to find a reason why the interest should be made to cease short of the passing of the act of 1848, I am, for the reasons already stated, of opinion that it ought to be allowed to that date.
That the amount is a large one, although it calls for, as it has received at my hands, a most careful examination, is, of course, no reason against its allowance.
A government never presents itself in a more commanding and eleva. ted condition than when it answers fully to all just demands. Whilst guarding, as it should, against unjust claims, and resorting to all proper precautions to that end, it should, with the same care, and with a view
alike to its true interests and character, sedulously abstain from doing in each case anything but full and ample justice.
It is under a conviction that this will not be done in the present in. stance by anything short of the entire payment of the demand, and from a full conviction that the law of 1848 authorizes and calls for its payment, that I have come to the conclusion here stated. I have the honor to be, with high regard, your obedient servant,
Hon. WM. M. MEREDITH,
Secretary of the Treasury.
COMPENSATION OF ( FICERS OF THE CUSTOMS.
Officers of the customs are not entitled to additional compensation under the provisions of the
third section of the act of 7th July, 1838, the same having been rendered nugatory by reason of the repeal of the act upon which it was based and the enactment of another law upon the subjeci. The compensation of officers of the customs is fixed by the act of 1840, which contains new
and different provisions.
ATTORNEY GENERAL'S OFFICE,
March 18, 1850. Sir: I have considered the question you have submitted to this office upon the claims of certain officers of the customs for additional compensation under the provisions of the third section of the act of the 7th July, 1838, and am of opinion that they cannot be allowed.
The section of the act referred to was passed, as it purports to have been, because of the antecedent act of the 14th July, 1832.
The section of the act of 1838 was " revived and continued in force for the year 1840, and until otherwise directed by law," by the 7th section of the private act of 21st July, 1840. (5 Statutes at Large-private acts-p. 815.)
The act of the 14th July, 1832, having been since repealed, and of course not now in effect, I think that the provision referred to, in the act of 1838, as revived by that of 1840, ceases to be in force. It was passed because of the existence and operation of the act of 1838. The repeal of that and the enactment of the new duty act, necessarily annuls the provision.
The compensation to the officers in question is fixed by the last act. That, therefore, contains a different provision upon the subject. Their compensation is since that period • otherwise directed by law” within the meaning of these terms in the act referred to of 1840, and by the very terms of such act the former provision falls. I have the honor to be, sir, with high regard, your obedient servant,
Hon. WM. M. MEREDITH,
Secretary of the Treasury.