their prejudice-by limiting their right to brevet pay to the particular cases enumerated in the proviso. That this was the purpose of the proviso, is manifest from the cast of its language, as well as the substance of its enactments: "Provided, that nothing herein contained shall be so construed as to entitle officers so brevetted to any additional pay or emoluments, except," &c.; and the argument is, that this proviso, the obvious purpose and effect of which is merely to narrow the contract of pay, which their brevet would have otherwise implied, constitutes in itself a new, distinct, and substantive contract, far more durable than brevet or commission, capable of surviving the principal contract of which it is merely a qualification, of outliving the substratum on which it is founded, and of defying even the omnipotence of Congress in the modification of the armies of the United States. The commission (the higher and more solemn contract of pay) may perish, and the pay may perish with it. The brevet may also perish, and with it the general contract which it implies; but this proviso, whose only use and function is to narrow the latter contract, and which, in the ordinary course of things, is functus officio when the principal object to which it was a mere appendage is gone, shall still live and "flourish in immortal youth. This is an argument, my inability to answer which is frankly confessed-unless, indeed, to have stated it be a sufficient answer. I have the honor to remain, sir, most respectfully, your obedient servant, WM. WIRT. To the SECRETARY OF THE NAVY. OFFICE OF ATTORNEY GENERAL. The acts creating the office and defining the duties of the Attorney General, limit his official opinions to questions of law propounded by the President and heads of departments. In our government, neither the Attorney General nor any other officer should be permitted to stretch his authority and carry the influence of his office beyond the circle which the law of the land has drawn around him. ATTORNEY GENERAL'S OFFICE, SIR: I should have much pleasure in answering the question put by your letter of the 5th, if I could do so without violating my own sense of propriety, founded on the act of Congress which prescribes my duties. This act limits me to questions of law propounded by the President and heads of departments, and to these limits I have made it a rule to confine myself, on the ground that in a government purely of laws, no officer should be permitted to stretch his authority and carry the influence of his office beyond the circle which the positive law of the land has drawn around him. This I hope you will admit is republican orthodoxy; and, consequently, that I shall stand excused for declining to answer your inquiry. I will merely add, that if you will reflect a moment on the popu. lation of this country, you must, I think, be convinced that even if there were no legal impediment in the way, there is at least a physical one, since the Attorney General who should undertake to answer all the questions of law growing out of the constitution and legislative acts of the United States, which the good people of all our States and Territories may and must continually have occasion to be propounding to the gentlemen of the profession would himself have occasion for more heads, hands, and eyes, than ordinarily fall to the share of any one individual, at least in modern times; and it is not impossible that this consideration might have had some small weight in settling the limits of this officer's duties as they now stand. However, they are settled, as I have stated; and though it is always painful to me to refuse an answer to a question so respectfully put, yet I must trust to your just construction to excuse the refusal in this I instance; and I beg you to believe me, nevertheless, Very respectfully, your obedient servant, SAMUEL INGHAM, Esq., Saybrook, Connecticut. WM. WIRT. SECRETARY OF WAR. Where a Secretary of War, in time of war, goes froin the seat of government to perform a service, the propriety of which had been previously discussed by the President and adopted by him as a measure that would be useful to the public, his claim for payment of the expenses of the journey is well founded. Opinion of 25th January, 1821, explained. OFFICE OF THE ATTORNEY GENeral, October 16, 1821. SIR: After the opinion I had the honor to express to you in the case of General Armstrong on the 25th January last, there can remain no question of law in the case; the only question which can remain is one of fact, to wit: "Was the General's excursion to Canada by the direction or order of the President?" I do not mean to state it as necessary to the claim that the President should have been the first to propose it: this would have been futile. It is immaterial who proposed it; if the President adopted the measure, and it was done by his desire, I should consider the expression of such desire as equivalent to a written order, and the claim as well founded. I understand General Armstrong to state that, before he undertook this journey, the measure was discussed between himself, Mr. Gallatin, and the President, and adopted by the President as a measure useful to the public. The President, therefore, as I understand it, did not merely acquiesce in the measure as one gratifying to General Armstrong, excusing his absence from the department, and accepting the offer of his voluntary services, but adopted it, and required it, as a measure, "if not necessary, at least useful" to the public service. Taking this construction of the statement as correct, and the statement itself as founded on accurate recollection, (as I presume you intend I shall,) the claim is, in my opinion, well founded. I have the honor, &c., &c., To the SECRETARY OF WAR. 21 WM. WIRT. CLAIM OF CHARLOTTE THORNTON. Mrs. Charlotte Thornton, of London, formerly of Northumberland, widow of Colonel Presley Thornton, and devisee under his will of an annuity charged upon his estate in Northumber land and Culpeper, which estate, subject thereto, was devised to the testator's two sons in moieties, is entitled to certain arrears of such annuity, although she left this country in 1775, from political hostility to the principles of the American Revolution, the estate have been parti tioned among the heirs and one moiety conveyed to another person or persons, and by him or them to the United States, and even though it may have been for the time suspended or extinguished by the confiscating and sequestrating laws of Virginia. Although the annuity is charged on the profits of the estate, it was clearly the testator's intent that it should be paid in any event, and be charged on the land; and as the deed of the moiety of one of the two sons to the person from whom the United States derived their title refers to the will creating such annuity, the latter must be considered as taking title with notice that they were charged therewith. As to interest on arrears, it not appearing that the claimant had any known agent in this country to demand or receive payment prior to the time of the filing of her bill, there is nothing requiring its payment for time antecedent; yet, upon the filing of her bill, she became entitled to demand as well interest as the annuity withheld, until the period of her death. [See 1 Pr. Williams, 415; 2 do, 13; 3 do, 1; 1 Atk., 550; Moore, 753; 5 Brown's P. C., 66; Newman vs. Johnston, 1 Vern., 45; Sadd vs. Carter, Pre. in Ch. 27; Lumley vs. May, ib. 37; Trott vs. Vernon, ib. 436; Harris vs. Ingledew, 3 P. Williams, 91, Cox's ed., and cases cited, note (1) Kidney vs. Coussmaker, 1 Ves, jr., 440; Williams vs. Chitty, 3 Ves. jr., 551; Quintine vs. Yard, 1 Eq. Ca. Ab. 74, pl. 19; Litton vs. Litton, 1 P. Wms., 541; Batten vs. Earnley, 2 P. Wms., 163; Ferrers vs. Ferrers, Ca. Temp. Tal. 2; Robinson vs. Cumming, 2 Atk., 411; Newman vs. Auling, 3 Atk., 579; Anon., 2 Ves., 661; Drapers' Co. vs. Davies, 2 Atk. 211; Tarr vs. Winterton, 1 Ves. jr., 451; Anderson vs. Dwyer, 1 Sch. and Lef. 301; Cruze vs. Hunter, 2 Ves. jr., 157; and 4 Bro. Ch. Ca. 316, and in the cases there cited.] OFFICE OF THE ATTORNEY GENERAL, SIR: In compliance with your note of last evening, I proceed to give you my opinion at this time, on the separate claim of Mrs. Charlotte Thornton, of London, on the Northumberland estate, which is the subject of the agreement between yourself and Messrs. Stith and Lomax of Virginia. In Colonel Presley Thornton, the husband of this lady, by his last will and testament, dated 29th March, 1763, and recorded in Northumberland county court on the 14th May, 1770, devises as follows: "I give and be queath all my estate, both real and personal, except the several legacies and bequests that I shall hereafter make in this my will, to be equally divided between my two sons, Peter Presley and Presley Thornton.' a subsequent part of the will he has this bequest: "I leave to my dearly beloved wife, Charlotte Thornton, during her widowhood, the use of my dwelling-house and furniture, and all the offices and their furniture, with the garden thereunto adjoining; my chariot and four horses, and her choice of eight of my slaves. And my will is, that she, my said wife, shall have full liberty to make use of what provisions she chooses from my estate for her own table, and for the support of the said eight slaves and four horses; and that she shall be further allowed one hundred and fifty pounds current money, for her support, out of the profits of my estate; which said sum of one hundred and fifty pounds is to be paid to her annu ally, during her widowhood, and the whole to be taken in lieu of her dower." On the 16th November, 1771, a written agreement was entered into be tween Peter Presley, then of age, and John Tayloe and Francis Thorn ton, guardians of Presley, whereby it was agreed to make a division of the whole estate, real and personal, between the two sons; and, among various other stipulations, it was agreed in relation to the annuity of Mrs. Thornton, that the part of the estate which was allotted to Presley should pay it until he became of age; after which it was to be paid in equal moieties by the two sons. Annexed to this agreement was a division of the slaves made under it; and the whole was recorded in Northumberland County court, 12th March, 1773. The division of the land does not appear, except that by the agreement of the 16th November, 1771, it was stipulated that the part of the land whereon the dwelling-house and offices stood should be allotted to Presley. This, I presume, is the Northumberland-house tract; besides which, Presley received in his share a tract of land in Culpeper county, containing, by estimation, four thousand acres. To Peter Presley was allotted a tract called Bay Quarter, adjoining the Northumberlaud-house tract, and another tract in Culpepper county, containing, by estimation, three thousand seven hundred and two acres; and other lands both in Northumberland and Culpeper. The division of the land was, I presume, in writing, and has been recorded. I have nothing before me to show, with certainty, what either son received. On the death of Peter Presley Thornton, his estate passed wholly to Winifred, his sister of the whole blood, who intermarried with John C. Cocke; and on 20th January, 1791, Presley exchanged with Cocke and wife his Culpeper lands for their Bay Quarter tract before mentioned. On the 9th July, 1792, Cocke and wife convey all their real estate to Presley Thornton, in trust, among other things, to secure the payment of their moiety of the annuity to Mrs. Thornton; this deed, with the privy examination of Mrs. Cocke, are duly recorded in the Northumberland county court on the day of its date. It seems never to have been doubted by the guardians of the two sons, during their minority, or by the sons themselves, or their representatives, that the annuity of Mrs. Thornton constituted a charge on the whole estate left by the testator. In regard to the estate derived by Cocke and wife from Peter Presley in 1801, when they were portioning their daughters out of the real estate, they expressly encumbered each part of the land conveyed for this purpose with its proportion of the annuity; and to these deeds not only Cocke and wife, but also Presley Thornton, their trustee, are parties; and, hesides this, they took separate bonds from the sons-in-law as further security for the payment of their proportions of the annuity. In the bill filed by Mrs. Thornton, in the court of chancery of Virginia, to recover the arrears of this annuity, she is understood to admit that it was duly paid, on the part of both the sons, to the year 1784. In the record of her suit, there is evidence of the payment of Peter Presley's part to her attorney in fact, (Presley,) in the year 1787; and the representatives of Peter Presley, in their answers in that case, assert that they will be able to prove the punctual payment of his moiety of it, either to Presley Thornton, her agent, or to deputies appointed by him, 80 late down as 1804, when, being informed that she was dead, they declined paying any more. Whether any payments were made of Presley's moiety since the year 1784, does not appear. Original letters from Mrs. Thornton to Presley, in the years 1797 and 1798, have been shown me, in which she complains of the non-payment, states her necessities, and presses for remit tances. On 22d March, 1797, Presley Thornton and wife, for the consideration of sixteen thousand pounds, sell and conyey to Sharp Delany, of Philadelphia, the Northumberland-house tract, with the adjoining Bay Quarter tract. On the death of Sharp Delany, indebted to the United States, his heirs, on the 10th November, 1800, convey this land to his sureties on his collector's bond, in trust, and with a power; nnder which, on the 22d June, 1809, these sureties convey to the United States. In 1808 Mrs. Thornton filed her bill to recover the arrears of her annuity; and there being no part of the estate of her husband remaining and forthcoming to meet her claim, except the lands, she seeks to charge it on them. The question is, Whether they are liable to the claim? 1. The charge is on the profits of the estate-that is, of the whole estate; and, by the direction that the annuity should be paid to her annually, it is manifest that the testator's calculation was that the annuity would be paid out of the yearly profits of the estate. Courts of equity, however, have given to this word "profits" a larger sense, where it is necessary to give effect to the main intention of the testator; thus, portions given to daughters, and directed to be raised out of the rents and profits of an estate, as soon as conveniently could be, the devise was decreed to authorize a sale, because portions means marriage portions; and the daughters being marriageable at the death of the testator, the main purpose of the testator could not be satisfied but by a sale. I am aware that subsequent decisions have narrowed this ground very much; yet, taking them all together, I consider the word profits by no means of so imperious a character as to forbid a sale, if it be called for by the general scope and character of the will; and the main object of the testator cannot be otherwise answered. 2. With respect to the general scope and character of the will: in the first clause, the devise is to the sons, of all the estate, real and personal, except the legacies and bequests thereafter made. The exception operates on the whole estate; and I consider it as equivalent to saying, “My debts and legacies being first deducted, I devise all my real and personal estate to J. S.;" and to the whole class of kindred cases in which a condition of paying debts and legacies has been annexed to such a devise; in all which the lands have been held charged, and liable to sale for the debts and legacies. 3. This annuity is given to testator's widow for her support, in lieu of dower, which is a charge on land. It was clearly testator's intent that it should be paid at all events. Suppose the sons, by their improvidence, or by the dissipation of the stock and negroes, had made no profits: was the widow to lose her means of subsistence? This case has in effect occurred, since there is now nothing on which the annuity can fall, save the lands. 4. As the deed from Thornton and wife to Del ny refers to the will of Presley Thornton, and to the deed of partition between the brothers; and as both these instruments, as well as the deed from Cocke and wife, for Bay Quarter, were of record, Delany must be considered as a purchaser, with notice that these lands were charged with one-half of the annuity of Mrs. Thornton. But these instruments gave him no notice of the existence of any arrears of this annuity; and as they were suffered to accumulate, through the negligence or indulgence of Mrs. Thornton, she ought not to be permitted to charge them on Delany, who (as to them |