Richard Rush to John Forsyth.

LONDON, November 5, 1836.

I am following up the Smithsonian business, as you will take for granted. This week I had an interview with the counsel; but nothing has transpired calling for an official letter to you since the one I wrote on the 24th of September.

RICHARD RUSH.

John Forsyth to Richard Rush.

DEPARTMENT OF STATE,

WASHINGTON, November 17, 1836.

SIR: You will receive enclosed the copy of an account presented to Daniel Brent, Esq., consul of the United States at Paris, by M. Castaignet, a French attorney, of certain fees charged by him for services rendered in relation to the effects of Mr. James Henry Dickinson, deceased, alias de la Batut, alias Hungerford, nephew of the late James Smithson, of London. Copies of Mr. Brent's letters of 23d October, 1835, and 14th August, 1836, explanatory of the subject, are also sent. As the whole amount of the fund appropriated by the act of Congress of 1st July, 1836, for defraying the expenses incident to the prosecution of the claim of the United States to the Smithsonian bequest, are in your hands, and as the bill, if correct, is properly chargeable to that fund, I have the honor to request that you will examine this account; and if you shall deem it just, and the amount reasonable, transmit to Mr. Brent the sum necessary to discharge the claim.

It may be proper also to allow to Mr. Delagrange, the attorney consulted in this case by Mr. Brent, a fee for his advice. You will perceive, however, that, before such an allowance can be made, it will be requisite to obtain from the latter precise information as to the amount of the charge.

I am, sir, your obedient servant,

TO RICHARD RUSH, Esq., London.

JOHN FORSYTH.

Richard Rush to John Forsyth.

LONDON, November 22, 1836.

SIR: After my letter to you of the 24th of September, desirous as I felt of falling upon some mode by which the United States might get possession of the Smithsonian bequest, without the delays and difficulties apt to attend upon suits in chancery, prosecuted in the ordinary form, I found myself unable to do so. At one time it occurred to me, considering the peculiar nature and national aspect of the case, that perhaps an indirect appeal to the British Government, through the channel of our minister, might be justified; not, indeed, that an influence was to be brought to bear upon the judicial tribunals in any objectionable sense, but simply with a view to obtain some expression or intimation of its favorable dispositions towards the trust I bear from the President, as far as the laws of England might be in unison with it. But obstacles presented themselves to the actual pursuit of such a course, although I knew how ready Mr. Stevenson would have been to second it as far as in his power, that led me to turn from it, at least as an incipient step; without, however, losing sight of it, if it may seem practicable and advisable at any subsequent stage of the proceedings.

That course no longer looked to, it appeared to me that the first step, on my part, had better be to draw up a statement of the case for the opinion of counsel, submitting to them, as one of the questions, whether possession of the fund might not be obtained without a suit. The solicitors, I was aware, had said that it could not; but, on a preliminary point so important, I did not think that it would be proper to rest on them alone, but take the opinion of eminent counsel. On the 1st of October, I accordingly drew up a statement of the case, setting out a copy of the whole will, as obtained for my use from the registry of the prerogative court of Canterbury, adding the facts necessary to show what was believed to be the present right of the United States to the legacy, and my authority to receive it on their behalf. A copy of the statement is enclosed marked A.

The next step was to select the counsel. Here little deliberation was requisite, it being only necessary to ascertain the most eminent. I thought it would be advisable to

consult two. I found it pretty generally agreed that Mr. Pemberton was at the head of the chancery bar, and therefore designated him as one. Mr. Jacob being in the first class of eminence, next to Mr. Pemberton, and of high reputation for learning in the profession, I took him as the other. Although using all the means I could to get their opinion, after drawing up the case, it was not until the 8th of this month that I succeeded; which was owing to the absence of Mr. Pemberton from town nearly the whole of October. I had an interview with them before their opinion was given, and set before them all the lights I was able to afford on the nature of the case, and wishes of the President for its early decision. Their opinion is subjoined to the statement enclosed.

It will be seen that they regard a suit as indispensable.

Next, as to the mode of proceeding. It appears that they think a bill should be filed, in the name of the President, against the testator's executors, praying that the United States may be declared entitled to the fund, and that, on obtaining a decree to that effect, a petition should be presented for the actual payment of the money. They add, that it would be advisable to make the Attorney General a party to the proceedings, in case the Crown should have any claim under the will, by reason of "the limitation to the United States, after a limitation to illegitimate children," or in case any part of the property should consist of interest in land. The opinion is dated on the 2d instant, but I did not receive it until the 8th, as mentioned.

Although I drew up the case, the usages of the profession here required that it should pass to the counsel, through the hands of the solicitors, to which I made no objections; the less, as the latter claim, under all common circumstances, to state the case themselves, as well as hold interviews with the counsel, instead of the party holding them. The same usages and subdivisions require that a junior counsel of the chancery bar should * * * * * draw the bill suggested by the senior counsel, to which I have, in like manner, consented; and Mr. Shadwell, a son of the vice chancellor, has been designated for that duty, under assurances, I have had, that he will perform it satisfactorily, and with an understanding, moreover, that the bill is to have the revision and sanction of the senior counsel before it is filed. The whole course of proceeding may now therefore be considered as in regular train, and

shall be followed up with all the despatch and care which my superintendence can impart to it.

Should the intervals between my letters be longer than might at first seem compatible with my desire and duty to keep you informed of what is going on, I hope it will not be inferred that there are relaxations in either; since it is very likely to happen, as has been the case since the date of my last letter, that whilst I am doing all in my power to expedite arrangements and results, nothing may transpire to lay a basis for written communications in any degree definite or satisfactory. Legal proceedings, in general, imply these intervals of apparent inaction, and a suit in chancery in England is not likely to form the exception. When occasions of writing to you may arise, the duty shall never be omitted.

This letter would have been written immediately after I received the opinion, but that I wished some explanations, as it was not argumentative; a form which counsel here do not give to opinions. It being recommended that the bill should be in the name of the President, I deemed it right to mention that there was a possibility in law of a temporary vacuum occurring in the executive power under our constitution, in order that they might judge how far that consideration would affect the name or style to be used in bringing the suit. As they further advise that the Attorney General be made a party, I wished to ascertain, as far as I might, what weight they attached to the point that seemed the main inducement to that course, as well as the reason for suggesting it in advance. I doubted not their good reason for such a course, but thought it desirable to learn it from themselves, that I might impart it from that source for the President's information.

They have informed me that the legal possibility to which I drew their attention under our constitution does not alter their opinion as to the name proper to be used in bringing the suit, and they do not think it would answer to bring it in the name of the United States alone, whatever the provisions of our constitution under this head. I of course put before them the act of Congress of the 1st of July, 1836, which authorizes the suit. As to the point of law, whether a bequest can be sustained after a limitation to illegitimate children, they replied, that they do not at present attach any decisive, perhaps any great weight to it, but think it one that may be made; and as to its suggestion in advance,

they suppose that the United States would not desire to take the bequest through any oversight in the court or Attorney General, admitting either to be possible in a case of this publicity; but only if the laws of England would warrant in all respects an adjudication in their favor-a sentiment in which I naturally and fully concurred.

I was not able to command an interview with the counsel for the sake of these explanations until yesterday, owing to their constant engagements, although I sought it repeatedly since the 8th of the month, by personal calls as well as notes desiring to have a time fixed.

If there have been these delays that I have been unable to prevent, I am glad to add that no time has been lost in reference to the November term of the court, the first that has been held since I came here.

I have the honor to remain, with great respect, your obedient servant,

RICHARD RUSH.

The Hon. JOHN FORSYTH, Secretary of State.

Richard Rush to John Forsyth.

LONDON, December 20, 1836.

SIR: I was yesterday honored with your letter of the 17th of November, enclosing the account forwarded to the Department by the consul of the United States at Paris, of M. Castaignet, a French attorney, for certain fees charged by him for services rendered in relation to the effects of Mr. James Henry Dickinson, deceased, alias de la Batut, alias Hungerford, nephew of the late James Smithson, of London, and requesting that I will examine it with a view to its payment out of the Smithsonian fund in my hands, if deemed just, and the amount reasonable; and mentioning also that it may be proper to allow Mr. Delagrange, the attorney consulted by Mr. Brent, a fee, after obtaining from the latter precise information as to the amount of the charge. Copies of Mr. Brent's explanatory letters of the 23d of October, 1835, and 14th of August, 1836, also came enclosed in your letter, and I beg leave to say that the whole subject shall have from me full attention.

The Smithsonian case continues in proper train here, with every advantage I have found myself yet able to give it,