Richard Rush to John Forsyth. LONDON, September 24, 1836. SIR: I had the honor to inform you, on the 31st of August, of my arrival at Liverpool, having embarked in the first ship that sailed from New York after my letter of the 1st of August, informing you that I was ready. I reached this city the early part of the present month, and, as soon as circumstances would permit, entered upon the duty which the President's power of attorney devolves upon me. Towards asserting and prosecuting with effect, before the legal tribunals of England, the claim of the United States to the legacy bequeathed to them by James Smithson, of London, to found, at Washington, an institution "for the increase and diffusion of knowledge among men," the first consideration which seemed to present itself was, the selection of fit legal characters here, through whose aid and instrumentality the incipient steps could alone be judiciously marked out or adopted. In a country where the profession of the law is known to be so subdivided as in this, I regarded it important that not only the counsel whose services it may ultimately become necessary to engage, but the solicitors to be approached in the first instance, should have a standing suited to the nature of the case, and the dignity of the constituent I represent. The letter addressed you in July, 1835, by the late chargé d'affaires of the United States at this Court, left little doubt, indeed, that Messrs. Clarke, Fynmore, & Flagdate, were proper solicitors; yet, as the President's power to me, and your instructions, appeared to place the whole subject anew in my hands, some previous inquiry into their standing seemed necessary on my part. This I set on foot, and am glad to say that it ended to my satisfaction; the more, as their connexion with the case in its origin naturally pointed to their selection, other grounds continuing to justify it. Accordingly, on the 14th instant, I addressed a note to these solicitors, informing them that I had arrived in this country with full power from the President, founded upon an act of Congress, to assert the right of the United States to the Smithsonian bequest, and receive the money; and requesting that they would call upon me on the 16th. A copy of my note is enclosed. This is a season of the year when professional and official business of every kind is much at a pause in London, and those who conduct it dispersed. It was not until the 20th that I was enabled to command an interview with these gentlemen, when two of them, Mr. Clarke and Mr. Fladgate, waited upon me; the latter having previously called, after receiving my note, to mention the absence of his associates from town. With these two I had the preliminary conversation suited to a first interview. They chiefly went over the grounds stated in their note of the 21st of July, to our chargé d'affaires, Mr. Vail; in some points enlarging them and giving new particulars. They said that James Smithson, the testator, died in June, 1829; that his will was proved in the prerogative court of Canterbury by Mr. Charles Drummond, one of the executors, and one of the banking-house of that name in London; that Henry James Hungerford, the testator's nephew, to whom was bequeathed the whole of his property for life, subject to a small annuity to another person, brought an amicable suit in chancery against Messrs. Drummond, the executors, for the purpose of having the testator's assets administered under the direction of the Lord Chancellor; in the course of which suit the usual orders and decrees were made, and by its issue assets ascertained and realized to the value of about one hundred thousand pounds sterling; that Mr. Hungerford, who resided out of England, received, up to the time of his death, the dividends arising from the property, which consisted of stock in the public funds; and that he died at Pisa, on the 5th of June, 1835, of full age, though still young, without having been married, and, as far as is yet known, without illegitimate child or children; that the assets of the estate are now invested in the name of the accountant general of the court of chancery, subject to the further disposition of the court; that the will of Mr. Smithson having made the United States the final legatee on Mr. Hungerford's death without child or children, legitimate or illegitimate, the facts seem to have happened under which their right will attach; but the solicitors continue to think that a suit, or legal proceedings of some nature, to which the United States must be a party, will have to be instituted in the court of chancery, in order to make valid their right, and enable them to get possession of the fund, now in the hands of the court, and subject to its judgment. The foregoing formed the main purport of their communication. They added, that the mother of Henry James Hungerford, who is still living and married to a Frenchman of the name of De la Batut, has put in a claim to a part of the property; but as the claim is small, and not likely to come to much, the mother of Mr. Hungerford not having been married to his father, it is scarcely necessary at this time to detail the circumstances. I asked at what time from the present the earliest, sitting of the court of chancery would be held. They replied in November. It will be my object to get the fund for the United States without a lawsuit in chancery of any kind, if this be practicable; and towards an end so desirable my further reflections and measures will for a while be directed, taking care that I do not lose the advantage of all proper applications at the first term of the court, for whatever form of suit or other legal proceedings may be found indispensable. I have nothing further of any importance to communicate at this juncture. I delivered to the minister of the United States, Mr. Stevenson, the letter from the acting Secretary of State of July 27th, requesting his good offices in behalf of the public object with which I am charged, should they be needed; and I cannot close this letter without adding that I have already received co-operation from him that has been useful, and which gives earnest of the zealous interposition of his further aid, should it be required. I have the honor to remain, with great respect, your obedient servant, Hon. JOHN FORSYTH, Secretary of State. RICHARD RUSH. The Case Stated by Mr. Rush. The testator died at Genoa on the 27th day of June, 1829, and on the 4th of November, in that year, the will was proved in the prerogative court of Canterbury, by Mr. Charles Drummond, one of the banking-house of that firm, mentioned in the will. Soon after his death, an amicable suit was instituted in the court of chancery, by Henry James Hungerford, his nephew, against Mr. Charles Drummond, as executor, for the purpose of having his assets administered under the direction of that court. The usual orders and decrees were made in the suit, and assets realized to the amount of about one hundred thousand pounds sterling in value, which are now invested in the public funds, and are standing in the name of the accountant general of the Court of Chancery, to the credit of the cause of Hungerford vs. Drummond, and applicable to the trusts of the will. Mr. Hungerford, who resided out of England, received the income arising from the testator's property up to the time of his death. This took place on the 5th of June, 1835, at Pisa. He was never married, and died without leaving any illegitimate children or child. The events have therefore happened, by which the right of the United States of America is considered to have attached, as the residuary or final legatee under this will. In July, 1835, their chargé d'affaires at this court, imparted official information to the Secretary of State, at Washington, of the preceding facts, who laid them before the President, with a copy of the will and other papers that were transmitted. The President not having authority under his general executive powers to take any steps for accepting the trust or obtaining the fund, communicated the papers to Congress on the 17th of December of that year, with a view to such measures as that body might deem necessary. Congress, acting on the ground that the bequest to the United States was valid, and that it would not be incompatible with their dignity to accept the fund as trustees, for an institution to be founded at Washington, for a purpose so broad and benevolent, passed, on the 1st of July last, an act authorizing the President to appoint an agent to assert and prosecute their right to the bequest, in such form, and before such tribunal or tribunals in England, as might be proper; and to receive and grant full acquittances for all such moneys or other funds as might be adjudged to them on account of it. In pursuance of the authority given by this act, the President has appointed a citizen of the United States, in the person of the undersigned, to perform on their behalf the duty which it enjoins; and he is here, their representative and attorney in the matter set forth. His full power from the President, and a copy, under seal of the Department of State, of the law on which it is founded, are ready to be filed in the Court of Chancery, or otherwise made known to the Lord Chancellor, at whatever time and in whatever manner may be thought proper. The United States having acceded to the bequest, the first duty of the undersigned is to obtain, for his high constituent, possession of the fund without any delay that can be avoided. His questions for the opinion of counsel in England are: 1st. Can possession of it be obtained without a suit? 2d. If not, what is the form of suit or other legal proceeding which, by the laws of England, will give promise of putting the United States in possession of the fund in the most effectual and prompt manner? LONDON, October 1, 1836. Opinion of Counsel. RICHARD RUSH. 1st. We are of opinion that the possession of the fund cannot be obtained without a suit. 2d. We think that the best course will be, that a bill, in the nature of a supplemental bill, should be filed in the name of the President of the United States of America, against the executors of Mr. Smithson, praying that the United States may be entitled to the fund upon trust, for the purposes expressed in the will; and that, upon obtaining a decree to that effect, a petition should be presented, in the name of the President and Mr. Rush, praying that the fund may be transferred to the latter, as the agent of the United States, appointed under the act of Congress. As we understand that the testator, Smithson, was illegitimate, we think that it will be advisable to make the Attorney General a party to the suit, in order that he may represent before the court any claim which the Crown may have, either by reason of the question of the validity of the limitation to the United States, after a limitation to illegitimate children, or by reason of any part of the property consisting of interests in land. LINCOLN'S INN, November 2, 1836. THOMAS PEMBERTON. |