States of America against Drummond, as recommended by counsel, in their opinion transmitted with my letter No. 4, of the 22d of November. The case was fully opened, on behalf of the United States, by Mr. Pemberton.

The Attorney General was not personally present in court; but Mr. Wray, a member of the bar, and King's counsel, acted as his representative on the occasion. I am glad to state that he abandoned, in effect, all opposition on the part of the Crown. No question, therefore, will be raised as to whether a bequest can be sustained after a limitation to illegitimate children; or any other obstacle interposed under the doctrine of escheats, or any other, by the legal representatives of the Crown. These officers, I am given to understand, have had the whole case under consideration, and will do nothing more than exercise that general superintendence which the Crown, through its law officers, is bound to exercise where questions may arise connected with public charities; the rules respecting which are considered applicable to this case.

The court, after the hearing, decreed that the case be referred to one of the masters in chancery, the proper officer for the duty, to make the requisite inquiries as to the facts on the happening of which the United States become entitled to the fund bequeathed by Mr. Smithson. The claim of Madame la Batut having been brought before the court by counsel representing it, his lordship also decreed that the validity of that claim be inquired into, with a view to ascertain if it be a proper charge upon the fund.

The inquiries will be proceeded with in the usual and regular manner, and with all the expedition that my superintendence can impart to them. When brought to a close, the cause will come on for the further order and decree of the court.

Having heretofore mentioned, and in my last letter explained more particularly, the claim of Madame la Batut, I need say no more about it at present. It extends only to an annuity of about one hundred pounds, payable during her life; so that, even if sustained, it will form, in the end, no material deduction from the fund. But I have of course directed that it be properly scrutinized, in order that nothing be taken from the United States to which they are rightfully entitled.

Counsel also appeared for Messrs. Drummond, and made a little show of opposition; but as their clients are, in fact,

nothing more than stakeholders, they will offer, in the further progress of the case, as I have reason to believe, no serious opposition. They said on this occasion that the bill, in giving title to the suit, ought to have named General Jackson as President; on which Mr. Pemberton remarked, that in that case it must have been amended on the 4th of March, by substituting the name of Mr. Van Buren. On the other hand, the King's representative, Mr. Wray, expressed his concurrence with Mr. Pemberton, that the title of the suit was good as it stood.

Our professional advisers thought that the President ought to be named, as in the title, with a view to a technical responsibility on the record for costs, although no such question of fact would arise in this case; and because he was otherwise the organ of intercourse and business between the United States and foreign nations. I told them that his name was not thus introduced in suits in the United States; but they had before them the act of Congress of July the 1st, 1836, directing that this suit might be brought in the name of the United States, "or otherwise, as may be advisable," and formed their opinion accordingly.

The master of the rolls, not having then seen the act of Congress, intimated his impression to be that the suit should follow in this respect the forms in the United States; adding, that he considered this part of the case as nothing but matter of form, and would give leave to amend forthwith, if necessary; so that the point is of no consequence.

I think I am justified in saying, from all that is known at present, that the case is in a safe train in all respects, with every promise of a successful issue. Reports of what took place in court have appeared in the newspapers here, but are not to be relied upon, as I am enabled to say, my duty having made it proper that I should myself be present in court all the while.

In my letter of the 22d of November, it is intimated that I might, perhaps, at a subsequent stage of the case, have deemed some appeal to this Government advisable in relation to it. The contingency I had in view, was that of the Attorney General interposing a claim for the Crown, under the law of escheats. In that event I had contemplated drawing up a counter representation on behalf of the United States, founded on the public objects of Mr. Smithson's will, to be brought to the notice of this Government, through the channel of our minister. All necessity for

acting upon this intention is now at an end, by the course which the law officers of the Crown have pursued; and I can discern no other ground for an application to this Government. Nor, I am happy to add, does any such application appear at present to be needed, either for the purpose of justice or expedition.

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

Hon. JOHN FORSYTH, Secretary of State.

RICHARD RUSH.

Richard Rush to John Forsyth.

LONDON, February 10, 1837.

SIR: After what I communicated in my last letter, it is proper for me to state that the court finally determined, before the minutes of its proceedings on the 1st instant were made up, that the title of the suit, as originally advised by our counsel, was the proper title, viz: "The President of the United States of America versus Drummond." It therefore stands so without alteration.

It will have been observed from my last, that the court had not seen the act of Congress in the proceedings of record up to the 1st instant. The reason it did not then appear on the face of the bill will be found in the nature of the counsel's opinion. I put a copy of the act into their hands, as a necessary accompaniment to my statement of the case drawn up for their consideration. On referring to their opinion, transmitted with my No. 4, it will be seen that they recommend that a bill be first filed, praying that the United States might "be declared entitled to the fund, upon trust, for the purposes expressed in the will;" and, next, that when a decree to that effect was obtained, a petition should be presented, in the name of the President and the agent, praying that the fund be transferred to the latter, as authorized by the President under the act of Congress to receive it. The counsel thought that the proper time for setting forth the act would have arrived when the petition was presented, and not before; but the court, under its first impression, inclining to think it ought to be added to the bill, gave leave to make the addition forthwith, and it was done accordingly. The case therefore now stands, on all points, as could be desired, without any delay having inter

vened through matters of form. Our professional advisers are disposed to regard this with satisfaction, considering the case as one of the first impression here, the United States having never before appeared as suitor in an English court. Having selected counsel of distinguished character and abilities in the court of chancery to conduct the proceedings on the part of the United States, I feel that it is not my province to guide but follow their opinions in matters of English law and practice. Yet I feel it a duty to understand theirs, and offer mine to their consideration whenever there may seem any likelihood of its being serviceable to the claim of the United States, and will frankly own that I saw no objection to their withholding the act of Congress from the record, until actual payment of the fund was asked of the court who have the present custody of it. The United States, it is true, had never before sued in an English court. But there were precedents of other nations having done so by their executive head; as, for example, the King of France, the King of Denmark, and I believe other sovereign and independent States. It was not understood that any legislative act of those countries had been considered necessary, and was therefore inferred that the United States might in like manner enter the courts here, as of common usage, to establish the validity of a testamentary bequest made to them by a subject of Britain. The act of Congress may have been necessary, quoad the United States themselves. The bequest, it may be, could not have been accepted otherwise, or a suit been brought on their behalf; but no act of Congress was required for such ends before an English court. The will itself, showing a prima facie right in the United States, was enough to open an English court to their suit, and perhaps their dignity would best be consulted by not exhibiting the special act until indispensably necessary. The validity of the bequest being established on general grounds by a decree of the court, then, before payment could have been made to any one demanding possession of the fund for the United States, adequate authority from the proper source there must be shown; and at this epoch the act must have been filed, as well as the agent's power. This was the reasoning of our counsel, as I understood it. It appeared to me good, as did their reasons for bringing the suit by its present title. How far the master of the rolls might have dispensed with the filing of the act of Congress until the time indicated by

our counsel as that alone when it was necessary, had the latter pressed the point to an argument, is not for me to say. They yielded to his lordship's first impression, and filed it at once, as it caused no delay, and must have been done under their own intentions at a future day, if a favorable decree be obtained on the main question, now so reasonably to be anticipated.

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, March 25, 1837.

SIR: In my No. 7 I had the honor to inform you that the court, after the hearing on the 1st of February, decreed that the case be referred to a master in chancery, to make the requisite inquiries as to the facts, on the happening of which the United States become entitled to the fund bequeathed by Mr. Smithson.

The facts specially directed to be inquired into, and which must be judicially and technically settled, are, first, whether Henry James IIungerford, named in the pleadings, be living or dead; second, if dead, when he died; third, whether he was married or unmarried at the time of his death; fourth, if married, whether he left any and what children and child, and the age or ages of them, if any. It is further to be ascertained whether John Fitall, mentioned in the pleadings, be living or dead, and, if dead, when he died; and the said master is finally to inquire whether Madame de la Batut has any claim on the testator's estate, and to make report on all the several matters so referred to him.

These inquiries are now all duly and regularly in progress. Advertisements, of which I annex copies, designed as one means of obtaining information under the four heads first specified, and the last, have been inserted in three of the London newspapers of the present month, viz: the Times, Morning Herald, and Standard. Copies of them, translated into French and Italian, have also been inserted in newspapers at Paris and Port Louis, in France; the latter being the place where Madame de la Batut resides; and