yield to its force. To this class of cases, therefore, I am of the opinion that our act to regulate the collection of duties extends.

Without attempting to anticipate further the minute and varied circumstances which may diversify these questions, I beg leave to repeat the suggestion of the propriety of deciding each case, as it may arise, on its own peculiar circumstances.

I remain, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

BREVETS IN THE MARINE CORPS.

The act of 3d March, 1817, fixing the peace establishment of the marine corps, not having retained any majors in service, the brevets theretofore conferred were thereby made to cease with the termination of the lineal rank of majors by commission.

OFFICE OF THE ATTORNEY General.

SIR: I have, in compliance with your request of the 15th instant, reconsidered the question which you submitted to me on the 17th Febru ary, 1819, and on which I then gave an opinion adverse to the claims of the officers of the marine corps for brevet pay. With the most perfect willingness to retract that opinion if I should find it wrong, I have been the more confirmed in it, and can see nothing like legal plausibility even for the claim.

The act of the 16th April, 1814, "authorizing an augmentation of the marine corps and for other purposes," authorized the President, in the 3d section, to confer brevet rank on such officers as should distinguish themselves, &c., with this proviso: "that nothing herein contained shall be so construed as to entitle officers so brevetted to any additional pay or emoluments, except when commanding separate stations or detachments, when they shall be entitled to and receive the same pay and emoluments which officers of the same grade are now, or hereafter may be, allowed by law." The President, under the authority of this law, appointed several brevet majors. On the 3d March, 1817, the act to fix the peace establishment of the marine corps was passed, by which no majors were retained in service; the only officers that were retained being one lieutenant colonel commandant, nine captains, and subaltern officers. The brevet majors consider themselves as being retained in service still-at least to the purpose of receiving the pay of brevet major, under the proviso of the act of 1814 before quoted. But, if they are in service as brevet majors for one purpose, they are so for all purposes. If the act of 1814 be in force for one purpose, it is for all; and the President may still go on to appoint brevet majors to the marine corps, although the peace-establishment of that corps recognises no such grade. It seems to me a palpable solecism in military language to talk of the existence of brevet rank, after the lineal rank by commission (of which the brevet is merely the shadow) has been destroyed; and not less so to talk of pay graduated by a rank which no longer exists, having been abolished by positive law.

On what ground of reason can the brevet major claim to stand on a better footing than the commissioned major, or on a better footing than he would himself have stood, if, instead of holding a brevet, he had held

a commission? Is the brevet more stable or of higher grade than the commission? or is there more of contract in the one case than in the other? I cannot perceive even the shadow of a foundation for the claim. The act of 1814 was predicated on a state of things which no longer ex. ists. We were then at war, and the commissioned rank of major then existed; the design of that act was to augment that corps, and to stimulate it to deeds of arms. We are now at peace; the corps has been reduced and adapted to the state of peace; the grade of major exists no longer, even though it had been conferred by commission, much less when conferred by brevet; and with the grade falls the claim to pay. There is no breach of contract in this. The contract is a contract for war. Congress might have disbanded the whole corps without any violation of the constitution of the United States, and without any breach of contract with the officers of the corps. If they might do the greater act, they might certainly do the less. If they might disband wholly, they may surely disband partially, without any imputation of their having transcended either their power or their duty. They have disbanded the majors. They retain the captains; and some of these captains still claim the pay of their disbanded and annihilated rank. To render the injustice of this claim still more manifest, let me put the case-that the President, under the act of 1814, had been desirous of promoting two of these captains to majori ties. There was one vacant majority only in the line. He promotes the most worthy of them to this vacancy; he is commissioned, and his commission is confirmed by the Senate. The other, because there was no vacancy for him in the line, is, as the least worthy of the two, promoted merely to brevet. Shall we say that the act of 1817, to fix the peace. establishment, which abolishes majorities in the corps, abolishes the commission, but not the brevet-falls with all its weight on the most worthy, and leaves the least worthy untouched? Could such have been the intention of Congress? It must be very manifest it could not; and the language which is to produce so irrational, so unequal, and so unjust an effect, must be insurmountable before it can be permitted to take such a construction. What is the language which is relied on as making this distinction in favor of brevet majors-as keeping them still in existence after the name of their office is extinguished-after the commission (the substance of which their brevet is merely the reflection) has departed; aud of preserving this shadow of rank, without the substance, in being merely for the purpose of pay after it has been utterly abolished for every other purpose? The language relied on is that of the proviso of the act of 1814 before quoted. The argument seems to me to be worse, if possible, than the claim which it is adduced to support. This proviso, which is relied on as making a distinction in favor of brevet officers, is, upon its face, an enactment to abridge, not to enlarge their rights; it is to their prejudice, not to their advantage. But for this proviso, their bre vets would have placed them on the same footing, as to pay, with com missioned officers of the same grade; they would have been entitled to the pay of their brevet rank (as the commissioned officers of that rank were entitled to it) at all times and in all situations. It was expressly with the view of narrowing this general right, which their brevets would have conferred, that this proviso was made; to distinguish them, indeed, from commissioned officers of the same rank-not to their benefit, but to

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 brevet, ted 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,

September 14, 1821.

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 confiue 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 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 from 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 Northumberland 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 partitioned 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 rs. 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,
October 31, 1821.

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.

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." In 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 Thornton, 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