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¥Ou XVIL
SMITHSONIAN
MINCELEANEOUS COLCECTIONS.
VOL. XVII.
“EVERY MAN IS A VALUABLE MEMBER OF SOCIETY WHO BY HIS OBSERVATIONS, RESEARCHES, AND EXPERIMENTS PROCURES KNOWLEDGE FOR MEN.”’—SMITHSON,
WAS EEN. GLOW: PUBLISHED BY THE SMITHSONIAN INSTITUTION. 1880.
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CONTENTS.
Page.
Advertisement : : ; : : vii
ArticLE I. The Smithsonian Institution: Documents relative to its origin and history, edited by William J. Rhees, 1879, pp. 1027.
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ADVERTISEMENT.
The present series, entitled “Smithsonian Miscellaneous Collec- tions,” is intended to embrace all the publications issued directly by the Smithsonian Institution in octavo form; those in quarto constituting the “Smithsonian Contributions to Knowledge.” The quarto series includes memoirs embracing the records of extended original investigations and researches resulting in what are believed to be new truths, and constituting positive additions to the sum of human knowledge. The octavo series is designed to contain reports on the present state of our knowledge of particular branches of science; instructions for collecting and digesting facts and materials for research ; lists and synopses of species of the organic and in- organic world; museum catalogues; reports of explorations; aids to bibliographical investigations, etc., generally prepared at the express request of the Institution, and at its expense.
The position of a work in one or the other of the two series will sometimes depend upon whether the required illustrations can be presented more conveniently in the quarto or the octavo form.
In the Smithsonian Contributions to Knowledge, as well as in the present series, each article is separately paged and indexed, and the actual date of its publication is that given on its special title page, and not that of the volume in which it is placed. In many cases, works have been published, and largely distributed, years before their combination into volumes.
While due care is taken on the part of the Smithsonian Institu- tion to insure a proper standard of excellence in its publications, it will be readily understood that it cannot hold itself responsible for the facts and conclusions of the authors, as it is impossible in most
cases to verify their statements. SpENcER F. Barrp,
Secretary Smithsonian Institution.
VII
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SMITHSONIAN MISCELLANEOUS COLLECTIONS, 328
THE
SMITHSONIAN INSTITUTION:
DOCUMENTS
RELATIVE TO ITS ORIGIN AND HISTORY.
EDITED BY
WILLIAM J. RHEES.
WASHINGTON: PUBLISHED BY THE SMITHSONIAN INSTITUTION. 1879.
JUDD & DETWEILER, PRINTERS, WASHINGTON, D. C.
ADVERTISEMENT.
The Board of Regents of the Smithsonian Institution in January, 1878, requested its Secretary to prepare and publish a history of its origin and progress, such as he was pre-eminently qualified to furnish. The materials necessary for this purpose had in part been brought together, when the death of Professor Henry, on the 13th of May, prevented the carrying out of the original plan. As the documents collected are necessary to any future historian of the Institution, Mr. Wm. J. Rhees, who had been entrusted by Pro- fessor Henry with their selection, was requested by the Chancellor, Chief Justice Waite, to continue the work, and the present volume is the result of his labors.
In this will be found the Will of Smithson, all the Congressional debates and legislation relative to the beqalest, and many documents which could probably only have been brought to light by one per- fectly familiar with the operations of the Institution, Mr. Rhees having been associated with Professor Henry, as its Chief Clerk, for more than twenty-five years.
The amount of labor in the preparation of this volume, was very great, as all the data were procured from original sources. Manu- scripts and documents were consulted in the Department of State, Treasury Department, the Capitol, and elsewhere; and every page of the voluminous records of the proceedings of Congress for more than forty years was carefully examined so that an account of everything relating to the Institution could be presented.
SpeNceR F. Barrp, Secretary Smithsonian Institution.
WasuHincton, April, 1879.
PREFACE.
Many individuals have become entitled to gratitude for gifts to a community or services to their country, but few have acquired distinction as the benefactors of mankind. The desire for posthu- mous fame has induced some to erect monuments to themselves by founding libraries, others by endowing schools of learning or chari- table establishments; but very few have succeeded in devising a plan by which their names should not only acquire world-wide renown, but their benefactions be of universal application.
To James Smithson belongs the rare and proud distinction that his bequest is for no particular locality and confined to no limited period. His aim is to benefit all men, and is never-ending in its action.
Smithson selected the United States of America to carry into effect his noble design, believing that to confer a benefit on all mankind he could confide in a nation composed of representatives of all races, where no narrow interpretation would be given to his words, or selfish limitation be placed on his charity. Turning from the unstable monarchies and decaying empires of Europe, he sought for perpetuity of his ideas in the rising power and wonderful pro- gress of the young republic.
Smithson’s life was devoted to original research, as all his writ- ings show, and accustomed to the use of the precise language of scientific investigators, he made the words of his will brief, but as explicit as his intention was clear to his own mind. Nevertheless his idea was in advance of popular intelligence in this country, and a discussion took place which rendered it impossible for eight years for Congress to adopt a plan to carry out his beneficent intention.
Legacies too often prove more fruitful of wasteful litigation or disputation than of immediate or general benefit, and the history
of the Smithson bequest should prevent other philanthropists from Vv
VEE PREFACE.
giving occasion to similar controversies. Notwithstanding the de- lay in establishing the Institution, and the difficulty in deciding on the best plan of organization, after more than thirty years of its active and useful existence, it is gratifying to know that the fund left by James Smithson not only remains unimpaired, but has been very largely increased.
There can be no doubt that Smithson’s world-wide renown is due not only to his own acts, but to the enlightened, pure, and able administration of the trust, and that, with the name of the founder, will always be held in admiration and esteem that of the first Secretary of the Institution, Professor Joseph Henry. Of the many plans proposed for realizing the purposes of Smithson scarcely any would have carried his name beyond local reputation. Much larger bequests or gifts have been made by others to found libraries, and yet the names and foundations of such persons are scarcely known to the world. The Smithsonian library in Wash- ington would have been no more to mankind than the Rush library in Philadelphia, the Lenox in New York, or the Newberry in Chicago, each of which has a foundation of more than a million of dollars.
That the collecting and publication of the materials composing this volume should have been so long delayed has been a matter of regret to all who wished to study the history of the Institution or or to become acquainted with the life and character of its founder. The fire in the Smithsonian building, in 1865, unfortunately destroyed the manuscripts of Smithson which had come into the possession of the Institution; a careful examination of these would have probably thrown additional light on his character and pur- poses. The present volume has been prepared by special direction of the Board of Regents to supply the want long felt by them and others. It is only to be regarded as a mine or store-house of material from which the history of the Institution can be hereafter prepared, and from which illustrations may be drawn of the en- larged or contracted views of our legislators, and the wise or vision- ary theories and schemes of literary and scientific men.
PREFACE. VII
After a copy of the “ Will” of Smithson, the whole of the corres- pondence resulting from it is given; the announcement of the be- quest made to the Department of State by Mr. Vail, our Charge d’ Affaires at London ; the appointment of Hon. Richard Rush as special agent of the United States to obtain the money, and all his letters while engaged in this business, in 1836, 1837, 1838; the opinions of the English solicitors; the decision of the Court of Chancery ; the bill of costs of the suit; a schedule of the per- sonal effects of Smithson, and an account of Mr. Rush’s financial transactions.
The particulars are then given of the residuary legacy, or that part of the bequest left in England by Mr. Rush as the principal of an annuity to the mother of the nephew of Smithson; the steps taken by the Institution to procure this money in 1863, and how it was disposed of by act of Congress in 1867.
Then follows a reprint from the Congressional Globe and Record of all the legislation relative to the bequest or to the Smithsonian Institution from 1835 to 1878, the proceedings in the Senate and in the House of Representatives being given in order from the 24th to the 44th Congress. The parts of this section of the work of most general interest will be the debate on the propriety of the Government accepting the bequest and the discussions and reports on the various plans proposed for organizing the Institution.
The memorials and plans presented to Congress are printed in full so that a better understanding can be had of what our legis- lators had before them in considering the subject.
The history of the investment of the fund by order of Congress in State stocks, and of the financial management required in con- sequence, forms a large part of the volume, and is given in detail for the first time.
The account of the controversy which arose as to the manage- ment of the Institution, the appointment of a committee of investi- gation by the House of Representatives, the two reports of that committee, the debates in Congress and the final disposition of the matter, occupy considerable space.
VIII PREFACE.
For convenient reference the resolutions relative to the election of Regents and the printing of the annual reports are given. It has also been thought proper to insert the debates in regard to appropriations for the preservation of the collections of the Government placed in charge of the Smithsonian Institution.
Copious extracts are made from the diary of Hon. John Quincy Adams, which give the private history of the motives of action by committees, members of Congress, and public men, in regard to the early legislation respecting the bequest.
The proceedings in Congress present a great many plans and schemes proposed for the disposition of the bequest, and seem to embrace almost every possible suggestion, but as complete a col- lection as possible has also been made of the views of literary and scientific men not directly presented to Congress. These papers, while of unequal merit, have a value as illustrations of the thought of the time, and show not only how much attention was paid to securing a wise disposition of the Smithson fund, but to the wider subject of the general promotion of knowledge.
Following the programme of organization proposed by Professor Henry and adopted by the Board of Regents, are the opinions ex- pressed by more than fifty of the most eminent literary and scientific men of the day.
This plan has stood the test of experience of more than thirty years and been found admirably adapted to the purpose intended ; it has triumphed over all opposition, and is now universally re- garded as wise, comprehensive, and satisfactory.
The Smithsonian is not a Government Institution, as is often supposed, but is a private foundation, originating entirely in the bequest of an individual. The management of the establish- ment, however, is entrusted to the Congress of the United States, and hence it is in more or less communication with that body. Even the printing of its annual reports occasions discussion, and a larger or smaller number of copies are ordered according to the varying mood or liberality of the legislators. As the national collections in natural history have been placed in charge of
PREFACE, IX
the Smithsonian Institution, an appropriation must also be asked every year for their preservation and exhibition. The discussions thereby occasioned show how unfavorable they are to a quiet, un- disturbed pursuit of the great ends of the Institution itself. Acknowledgments are due for facilities and co-operation afforded by Mr. Spofford, Librarian of Congress; Mr. Dawson, Librarian of the House of Representatives; Mr. S. A. Brown, Chief Clerk, and Mr. Baker, of the Department of State; Capt. R. A. Bayley, of the Treasury Department; Messrs. W. B. Taylor, C. B. Young, and G. H. Boehmer of the Smithsonian Institution, and especially to the printers, Messrs. Judd & Detweiler, for their valuable services. Wiiiram J. Rares.
SMITHSONIAN INSTITUTION, WasHInaton, April, 1879.
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CONTENTS.
WLLL OR J AMIS) SMITHSON face e enn Ue a Be ee ee sees fe. CoRRESPONDENCE between attorneys in England, Department of State, Richard Rush, &c., &c., relative to the bequest of Smitisonmees 5056 los eee sOagMI Vets ea we The case stated by Mr. Rush
Opinion of English counsel
Decree in chancery, awarding Smithson’s bequest to the United
States eae eee Sawa ieee ee ee eee aS Account in the case of the United States __-_--.-._-_-------------- Bill of costs in the case of the United States__...__-.-------.---- Richard Rush’s account with the Smithson fund -_-.-----.-.----- Schedule of the personal effects of James Smithson..----..------- iesiduary, bequestiof Smithson 22° = 22. sae ee eS
CoNGRESSIONAL PROCEEDINGS IN RELATION TO THE BEQUEST—
Twenty-fourth Congress ---.---- IS86-3 tesa aea eso co Twenty-fifth Congress ----~----- W83(—39 2 eee ae Twenty-sixth Congress --------- 183924 eee see con ene Twenty-seventh Congress ------- 1841=432 = === ee Twenty-eighth Congress __------ SA Sea See wee nese oe Twenty-ninth Congress_-_-- soe 8454 Sees seen e ase Thirtieth, Congress'-—--=2-——-— = oe a ee Thirty-first’ Congress -_.__..-_.- S41 O= eee eee eee Thirty-second Congress_-------- [Gol ==o3¥s— see ase Thirty-third Congress -_.------- 1582 bdeeeet ek eee Thirty-fourth Congress _-------- 1855—biSSse ole Thirty-fifth Congress .__-__.---- 1S5ia502 oe ees. See Thirty-sixth Congress -....---_. 1592 O lessee aaneee oes Thirty-seventh Congress -..----- 186163222552 Soe Thirty-eighth Congress --_------ 1S03-Gose2 ao eee Thirty-ninth Congress._-------- 1865-67224 cones see oe MortiethyConeress)= 22. 22. 2 1361-6923 ee eee Morty Coneress oa eo OOO (are: aoe ee Forty-second Congress -_-_------- 1ST ipeseea see eet Forty-third Congress --_-.------ WSO (Oke tee a Forty-fourth Congress ---------- 18,0 jess ae ea
xI
Page.
XII CONTENTS.
DIGEST OF THE ACT OF CONGRESS ESTABLISHING THE SMITHSONIAN Boi
Institution. By Prof. Henry ---.-------------------- 758 EXTRACTS FROM THE MEMOIRS oF JOHN QUINCY ADAMS, giving accounts of meetings of committees appointed by Congress on the Smithson bequest, proceedings in Congress, views of
public men, &c..------ ---------------- ------------ ---- 763 Account oF THE UNITED STATES TREASURY WITH THE SMITHSON
WUND) Sasa oro a a ae ree 803
Arkansas_ .-22-- 535-255-5222 == eee nee ee = ae eens 804
Michigan 222 S252 0 eee oe ee 810
Mlinoiss222 2-2 5-5—~ sm aias ca tee ee be eee ae eee 814
Ohio ..<-- 2321202022 St ee eee 820
The United ‘States... -- 2 ee eee 824, 834
PROPOSED APPLICATIONS OF SMITHSON’S BEQUEST ---------.----- 837
By Thomas Cooper ---=-=-===+====--+- --22-——=—— === === == 838
Brancis Waylane \. 2552222 oo ee ee eee 839
John Quincy Adams: 222-2222 - 22222 ee eae Ote
Richard Rushicso.)2 02 Se a eee were 849
Stephen Chapin 2222 2. Soa ee ae ee 856
Horatio Hubbell 22s2ce5 2232s See ee ee 860
Southern Literary Messenger, 1838-_--.-.-...----.- 864, 870, 890
Peter 8. Duponceat sa eee 895
Joel. R. Poinsett-.2 2S S252 Sea eee ee eens 899
William Darlington 22s) 222 =. 2 ee ee eee 901
William ‘Barlow s20t2 2 ee eee 910 REPORT OF THE ORGANIZATION CoMMITTEE of the Board of Re- gents of the Smithsonian Institution. (Messrs. Owen, Hil-
liard, Bache, Choate, and Pennybacker) -.-.---.--------- 930 PROGRAMME OF ORGANIZATION OF THE SMITHSONIAN INSTITU-
TION. . By Prof..dioseph Henry 22-22-22 Sasa eee 944 LETTERS RELATIVE TO THE PROGRAMME OF ORGANIZATION PRO-
POSED) BY “PROM. HENRY) 2-222 6 oe o> oo eee ee 961
By T. Romeyn Beck, Albany Academy, N. Y.-------+------ 961
Benjamin Silliman, Yale College, Ct. -.-----_------=---- 962
American Academy of Arts and Sciences, Boston, Mass. -- 964
New Jersey Historical Society, Newark, N. J.----------- 970
CONTENTS. XIII
Page. Lrtrers—Continued.
Nath’l F. Moore, Columbia College, N. Y. -------------- 971 Mark Hopkins, Williams’ College, Mass.__..---.-------- 972 Enoch Pond, Bangor Theological Seminary, Me._--.----- 972 Chas. J. Whipple, Salem Atheneum, Mass. .._-----_.---- 972 Henry J. Ripley, Newton Theological Institute, Mass. --- 972 Simeon North, Hamilton College, N. Y. ~=---- --2+.+---- 973 James P. Wilson, Delaware College, Del. --------------- 978 C. P.: Krauth, Pennsylvania College, Pa.....-.---.------ 973 William Sparrow, Theological Seminary, Va._-----.-----. 974 Matthew F. Maury, National Observatory, D. C.-------- 974 Ane. We. Smith, Wesleyan University, Ct.._---.-..._--. 974 James Curley, Georgetown College, D. C.----------. --- 975 Edward Hitchcock, Amherst College, Mass. ..-._-.----~_- 976 Hector Humphreys, St. John’s College, Md.------------. 976 Georgetown College, Georgetown, D. C._-----.-----.---- 976 KE. Robinson, Union Theological Seminary, N. Y.-------- 977 Henry Brewerton, U.S. Military Academy, N. Y. ------ 977 Erancis: Wayland, Brown University, R. I. -2.....2.--.- 977 Leonard Woods, Bowdoin College, Me. -----------_. ---- 978 W. Perroneau Finley, College of Charleston, S. C. ---..-- 978 E. D. Mac Master, Miami University, Ohio ----_---_--_. 978 Charles Martin, Hampden Sidney College, Va. --------~. 979 AGS. packard, Bowdoin: College. Mieis 2 22.5522 sa 980 John Chamberlain, Oakland College, Miss.._----..------- 980 A. C. Kendrick, Madison University, N. Y. -------.-.--. 981 Philip Lindsley, University of Nashville, Tenn.----.-.-. 982 Benj. S. Ewell, William and Mary College, Va. --..-.---- 982 Andrew Wylie, Indiana University, Ind. ------_..--- oe 982 A. P. Stewart, Cumberland University, Tenn.--.---_-__- 983 C. W. Parsons, Rhode Island Historical Society. R. I.---- 983 David Elliott, West. Theological Seminary, Pa. --------. 984 American Antiquarian Society, Worcester, Mass. _--.---- 985 Henry Smith, Marietta College, Ohio -..._-..---____-... 989 B. Manly, University of Alabama, Ala. -----.-----_---. 989 Joseph Estabrook, East Tennessee University, Tenn.----- 990 F. A. Muhlenberg, Jr., Franklin College, Pa. --...--.---.- 990 Horace Webster, New York Free Academy, N. Y. ------ 991
David L. Swain, University of North Carolina, N. C.---- 991
xXIV CONTENTS.
Page. LETTERS— Continued.
Josiah L. Pickard, Platteville Academy, Wis.-.--------- 992 S. A. Bronson, Kenyon College, Ohio--_---------------- 992 John Williams, Trinity. College; Ct. 2-22-2222 2 992 D. N. Sheldon, Waterville College, Me.-_-~_. .---.--.... 992 B. H. Ragsdale, Jackson College, Tenn.----.-.---..--.-- 993 W. F. Hopkins, Masonic University, Tenn. -------.~---- 993 Benj. P. Johnson, State Agricultural Society, N. Y. ----- 993
Joel S. Bacon, Columbian College, D. C.-----.---------- 993
oie 5 wit jena) ; } Ag ue ay Be bf to ae?
SMITHSONIAN BEQUEST.
WILL OF JAMES SMITHSON.
I, JAMEs Surtuson, son of Hugh, first Duke of Northum- berland, and Elizabeth, heiress of the Hungerfords of Audley, and niece of Charles the Proud, Duke of Som- erset, now residing in Bentinck street, Cavendish Square, do this 23d day of October, 1826, make this my last will and testament :
T bequeath the whole of my property of every nature and kind soever to my bankers, Messrs. Drummonds of Charing Cross, in trust, to be disposed of in the following manner, and desire of my said executors to put my property under the management of the court of chancery.
To John Fitall, formerly my servant, but now employed in the London Docks, and residing at No. 27, Jubilee Place, North Mile End, Old Town, in consideration of his attach- ment and fidelity to me, and the long and great care he has taken of my effects, and my having done but very little for him, I give and bequeath the annuity or annual sum of £100 sterling for his life, to be paid to him quarterly, free from legacy duty and all other deductions, the first payment to be made to him at the expiration of three months after my death. I have at divers times lent sums of money to Henry Honoré Juilly, formerly my servant, but now keeping the Hungerford Hotel, in the Rue Caumartin at Paris, and for which sums of money I have undated bills or bonds signed by him. Now, I will and direct that if he desires it, these sums of money be let remain in his hands at an interest of five per cent. for five years after the date of the present will.
To Henry James Hungerford, my nephew, heretofore called Henry James Dickinson, son of» my late brother Lieut. Col. Henry Louis Dickinson, now residing with Mr..
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2g SMITHSONIAN BEQUEST.
Auboin, at Bourg la Reine, near Paris, I give and bequeath - for his life the whole of the income arising from my prop- erty of every nature and kind whatever, after the payment of the above annuity, and after the death of John Fitall, that annuity likewise, the payments to be at the time the interest or dividends become due on the stocks or other property from which the income arises.
Should the said Henry James Hungerford have a child or children, legitimate or illegitimate, I leave to such child or children, his or their heirs, executors and assigns, after the death of his, her, or their father, the whole of my property of every kind absolutely and forever, to be divided between them, if there is more than one, in the manner their father shall judge proper, and in case of his omitting to decide this, us the Lord Chancellor shall judge proper.
Should my nephew Henry James Hungerford marry, I empower him to make a jointure.
In case of the death of my said nephew without leaving a child or children, or of the death of the child or ehaldecn he may have had under the age of 21 years or intestate, I then bequeath the whole of my property, subject to the annuity of £100 to John F[itall, and for the security and payment of which I mean stock to remain in this country, to the United States of America, to found at Washington, under the name of the Smithsonian Institution, an estab- lishment for the increase and diffusion of knowledge among men.
I think it proper here to state, that all the money which will be standing in the French five per cents. at my death in the names of the father of my above mentioned nephew, Henry James Hungerford, and all that in my name, is the property of my said nephew, being what he inherited from his father, or what I have laid up for him from the savings upon his income.
JAMES SMITHSON. [L. 8.]
CORRESPONDENCE.
Clarke, Fynmore g- Fladgate to A. Vail.
CRAVEN STREET, STRAND, [Lonpon,] July 21, 1835.
Sir: We send you, enclosed, the copy of a will of Mr. Smithson, on the subject of which we yesterday did our- selves the pleasure of waiting upon you, and we avail our- selves of the opportunity to repeat, in writing, what we verbally communicated.
Pursuant to the instructions contained in the will, an amicable suit was, on the death of the testator, instituted in chancery by Mr. Hungerford, against Messrs. Drum- monds, the executors, under which suit the assets were realized. They were very considerable; and there is now standing, in the name of the accountant general of the court of chancery, on the trusts of the will, stock amount- ing in value to about £100,000. During Mr. Hungerford’s life he received the income arising from this property ; ; but news has just reached England “that Mr. Hungerford has died abroad, leaving no child surviving him.
Tt now becomes necessary that measures should be taken for the purpose of getting the decision of the court of chancery, as to the further disposition of the property. On reference to the will, it will appear that it is not very clearly defined to whom, on behalf of the United States, the property should be paid or transferred ; indeed there is so much doubt, that we apprehend that the Attorney General must, on behalf of the crown of England, be joined in the proceedings which it is requisite that the United States should institute.
We act in this matter for Messrs. Drummond, the bankers, who are mere stake-holders, and who are ready to do all in their power to facilitate ectting the decision of the court, and carrying into effect the testator’s intentions.
We shall therefore be happy to communicate with such professional advisers as your Government may think fit to
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4 SMITHSONIAN BEQUEST.
appoint to act for them in this country. In the mean time, we may perhaps be permitted to add, that it is perfectly competent for us to carry on the proceedings, on behalf of the United States, and possibly some expense and delay may be avoided by our so doing. ;
Having thus briefly stated the nature of the business, we ai present abstain from making any suggestions as to the party in whose name proceedings should be adopted, con- sidering the point should be determined by our counsel here, after the opinion of the proper law officers in the States has been taken on the subject.
Any further information you may require, we shall be happy to give you, and are, sir,
Your most obedient servants, CLARKE, FynmMoreE & FLADGATE.
A. Vait, Esauire, 49 York Terrace.
A. Vail to John Forsyth.
LEGATION OF THE UNITED StaTES, Lonpon, July 28, 1835.
Sir: The papers which I have the honor herewith to communicate to you will acquaint you with the particulars ofa bequest of property to a large amount, left to the United States by a Mr. James Smithson, for the purpose, as stated in the will, of founding, at Washington, an institution “ for the increase and ditiusion of knowledge among men.”
* * * * * 7 The letter of Messrs. Clarke, Fynmore & Fladgate, the solicitors, by whom I was apprised of the existence of the will, to- gether with the inquiries I have made, leave no doubt of its having been established, and its dispositions recognized by the court of chancery, the first legatee under it having, for several years, and to the time of his death, received the in- come of the property, which is stated to have amounted to upwards of £4,000 per annum.
According to the view taken of the case by the solicitors, it is now for the United States, in the event of their accept- ing the bequest and the trust coupled with it, to come for- ward, by their representative, and make themselves parties to an amicable suit before the Lord Chancellor, for the pur-
SMITHSONIAN BEQUEST. 5
pose of legally establishing the fact of the demise of the first legatee without children and intestate; prove their claim to the benefit of the will, and obtain a decree in chan- cery, awarding them the proceeds of the estate. Messrs. Clarke, Fynmore & Fladgate are willing to undertake the management of the suit on the part of the United States; and, from what I have learned of their standing, may safely be confided in. Not being acquainted with the exact structure of our institutions, they are not, able to point out the exact manner in which the United States should be represented in the contemplated suit; but they believe that their diplomatic agent here, if constituted, for that purpose, the legal representative of the President, would be recognised by the court of chancery as the proper organ of the United States, for all the purposes of the will.
Should it be thought unnecessary to await the action of Congress to authorize the institution of the requisite legal proceedings, and should the course suggested by the solic- itors meet the views of the President, his power of attorney authorizing the diplomatic agent here to act in his name, will, I apprehend, be necessary; and, as the suit will involve some expense not connected with the contingent fuud of the legation, your instructions upon this branch of the subject will likewise be desirable.
Iam, sir, with great respect, Your obedient servant, A. VaIL. Joun Forsytu, Esq., Secretary of State of the United States, Washington.
John Forsyth to Aaron Vail.
DEPARTMENT OF STATE, Wasuineton, September 26, 1835.
Sir: [have the honor to acknowledge the receipt of your despatch of 28th July last, (No. 197,) relative to a bequest of property to a large amount left to the United States by Mr. James Smithson, for the purpose of founding at Wash- ington an institution ‘for the increase and diffusion of knowledge among men;” and to inform you that your let- ter, and the papers which accompanied it, have been sub-
6 SMITHSONIAN BEQUEST.
mitted to the President, who has determined to lay the sub- ject before Congress at its next session. The result of its deliberations, when obtained, shall be communicated to you, with the necessary instructions.
Of the course intended to be pursued in relation to this matter, as above explained, you will take occasion to ac- quaint the solicitors who apprised you of the existence of Mr. Smithson’s will.
I am, sir, your obedient servant, JOHN Forsytu.
Aaron VatL, Esq.,
Chargé d’ Affaires of the United States, London.
John Forsyth to Richard Rush.
DEPARTMENT OF State, July 11, 1836.
Sir: I have the honor to inform you that the President, in pursuance of an act of Congress passed at their recent session, has been pleased to appoint you the agent of the United States to assert and prosecute their claim to the legacy bequeathed to them by James Smithson, late of Lon- don, deceased. Your power of attorney or commission is herewith remitted, with an authenticated copy of the act referred to annexed toit. It is the wish of the President that you should, in the event of your acceptance of this trust, embark for London without unnecessary loss of time, to enter on the duties of the appointment. Previously to leaving the United States, however, it will be necessary, in compliance with the provisions of the accompanying act of Congress, to execute to, and deposite with, the Secretary of the Treasury, with good and sufficient securities, to his satisfaction, a bond or bonds, in the penal sum of $500,000, for the proper performance of those duties, and for the faithful remittance to the Treasury of the United States of such sum or sums of money, or other funds, as you may receive in virtue of said bequest.
The compensation to be allowed you for your services in this capacity will be at the rate of $3,000 per annum for your personal services, and at the rate of $2,000 for all contingencies except the law expenses. Compensation to begin from the day you report yourself ready to enter on
SMITHSONIAN BEQUEST. Ti
the duties of the office. An account of the law expenses, with vouchers, will be required.
A letter of credit on M. de Rothschild, the banker of the United States at London, authorizing him to pay your drafts for compensation, and for the necessary expenses actually incurred in the prosecution of this claim, is also enclosed, limited to $10,000, being the whole amount appro- priated by Congress for that object.
I am, sir, your obedient servant, JOHN Forsytu.
Ricuarp Rusu, Esq., &e.
Richard Rush to Clarke, Fynmore & Fladgate.
PortLanp Horert, Great PortLAND STREET, Lonpon, September 14, 1836.
’ GENTLEMEN: Referring to your correspondence with the chargé (affaires of the United States, in July, 1835, on the Smithsonian bequest to the United States, I beg leave to inform you that I have arrived here with full power from the President, founded on an act of Congress, to assert the right of the United States to that bequest, and receive the money. Ishould be happy to have an interview with you on this subject; to which end I ask the favor of you to call upon me on Friday morning at 11 o’clock; or, should that be inconvenient to you, at such other time, near at hand, as you will have the goodness to name.
I remain your most obedient servant, Ricuarp Rusu. To Messrs. CLARKE, FyNMoRE & FLAGDATE, Solicitors, Craven street, Strand.
8 SMITHSONIAN BEQUEST.
Richard Rush to John Forsyth.
Lonpon, September 24, 1836.
Sir: I had the honor to inform you, on the 81st of Aug- ust, of my arrival at Liverpool, having embarked in the first ship that sailed from New York after my letter of the Ist 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 selec- tion 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 re- garded 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
SMITHSONIAN BEQUEST. >
much at a pause in London, and those who conduct it dis- persed. It was not until the 20th that I was enabled to com- mand 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 prerog- ative 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 testa- tor’s nephew, to whom was bequeathed the whole of his property for life, subject to a small annuity to another per- son, 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 ascer- tained and realized to the value of about one hundred thousand pounds sterling; that Mr. Hungerford, who resi- ded 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 dth 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 commu- nication. They added, that the mother of Henry James
10 SMITHSONIAN BEQUEST.
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 indispens- able.
I have nothing further of any importance to communi- eate 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 with- out 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 re- quired,
IT have the honor to remain, with great respect, your obe- dient servant,
Ricuarp Rusu.
Hon. Joun Forsytu, Secretary of State.
The Case Stated by Mr. Rush.
The testator died at Genoa on the z7th 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
SMITHSONIAN BEQUEST. 11
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 ille- gitimate 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, im- parted 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 incompat- ible 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 Ist 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 be- fore 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 Pres- ident 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
12 SMITHSONIAN BEQUEST.
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 con- stituent, possession of the fund without any delay that can be avoided.
His questions for the opinion of counsel in England are :
Ist. Can possession of it be obtained without a suit?
2d. If not, what is the form of suit or other legal pro- ceeding 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 ?
RicuarpD Rusu.
Lonpon, October 1, 1836.
Opinion of Counsel.
ist. 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 obtain- ing 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 ille- gitimate, 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 illegiti- mate children, or by reason of any part of the property consisting of interests in land.
THomMas PEMBERTON. Epwarp JACOB, Lincoun’s Inn, November 2, 1836.
SMITHSONIAN BEQUEST. 13 Richard Rush to John Forsyth.
Lonpon, November 5, 1836.
IT 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 Septem- ber.
RicuarpD Rusu.
John Forsyth to Richard Rush.
DEPARTMENT OF STATE, Wasuinaton, 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, JoHN Forsytu. _To Ricuarp Rusu, Ksq., London.
14 SMITHSONIAN BEQUEST.
Richard Rush to John Forsyth.
Lonpon, 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 difliculties 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 objec- tionable sense, but simply with a view to obtain some ex- pression 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 pre- sented 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 state- ment 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 preijimi- nary point so important, [ did not think that it would be proper to rest on them alone, but take the opinion of eminent counsel. On the Ist 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 ascer- tain the most eminent. I thought it would be advisable to
SMITHSONIAN BEQUEST. 15
consult two. I found it pretty generally agreed that Mr. Pemberton was at the head of the chancery bar, and there- fore 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 Presi- dent 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 Presi- dent, 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 Gen- eral 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 con- sist 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 profes- sion 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 satis- factorily, 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
16 SMITHSONIAN BEQUEST.
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 interred 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 tempo- rary 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 Attor- ney 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 provi- sions 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,
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SMITHSONIAN BEQUEST. 17
they suppose that the United States would not desire to take the bequest through any oversight in the court or At- torney General, admitting either to be possible in a case of this publicity ; but only if the laws of England would war- rant in all respects an adjudication in their favor—a senti- ment 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 sinee 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, 1am 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 obe- dient servant,
Ricwarp Rusu.
The Hon. Joun Forsytn, Secretary of State.
Richard Rush to John Lorsyth.
Lonpon, December 20, 1836.
Sir: I was yesterday honored with your letter of the 17th of November, enclosing the account forwarded to the De- partment by the consul of the United States at Paris, of M. Castaignet, a French attorney, for certain fees char wed 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 Lon- don, and requesting that [ 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,
2
18 SMITHSONIAN BEQUEST.
according to the statement and explanations transmitted with my No. 4; but it has not yet come to its first hearing before the court of chancery. I have the honor to remain, with great respect, your obedient servant, Ricwarp Rusu.
The Hon. Joun Forsytu, Sccretary of State.
Richard Rush to John Forsyth.
Lonvon, January 9, 1837.
I have already had the honor to acknowledge the receipt of your letter of the 17th November, enclosing the account of Mr. Castaignet, the French attorney, for certain services in relation to the effects of Henry James Dickinson, de- ceased, alias de Ja Batut, alias Hungerford.
I have given to this subject the proper attention, and, for the better understanding of it, now beg leave to state :
That Henry James Hungerford was the natural son of Henry Louis Dickinson, deceased, brother of Mr. Smithson, by a Mrs. Coates. The latter is still living, and married to a Frenchman named de la Batut. Uungerford lived with her and took her name, whilst bearing which he died, hav- ing also passed under that of Dickinson. It is understood that, as long as he lived, he made her an ample allowance; but his death put an end to it, and, as far as the will of Mr. Smithson is concerned, (the will which creates a right in the United States,) she can claim nothing. This I under- stand to be agreed by counsel on all hands here.
Mer claim, if she has any, is under the will of Henry Louis Dickinson, made at Paris, July, 1819, by which he left all his property to his brother, Smithson, in trust for his (Dickinson’s) son Hungerford, alias Dickinson, alias la Batut. Half the income of it, however, was to go to this Mrs. Coates, alias Madame la Batut, during her life.
But whether the property which Dickinson thus left, and which is supposed to be the fund which Mr. Brent natur- ally desired, through the instrumentality of the French attorneys, to secure for the United States in Paris, now constitutes any part of the Smithsonian fund in the English court of chancery, and awaiting its decision, or whether the former fund has not all been dissipated, and if so, how
SMITHSONIAN BEQUEST. 19
much of it got into the hands of Madame la Batut, and has already, principal as well as income, been applied to her use and benefit, are, I understand, points still unsettled.
I made a first mention of this la Batut claim in my No. 4,in September. Under the facts presented by this further explanation, it does not clearly seem that the account of the French attorney, M. Castaignet, or the fee to M. Delagrange ean, for the present, be a charge upon the Smithsonian fund in my hands. Perhaps it may be a question how far the act of Congress of the Ist of ‘July, 1836, creating and ap- pr opriating that fund, will sustain any charge upon it other than for expenses in prosecuting the right of the United States to the Smithsonian bequest before the tribunals here in England, where alone, by what I now communicate, it may turn out that the entire fund bequeathed by Mr. Smithson exists. In weighing all the circumstances, [ have come to the conclusion, at all “events, not to pay the above account or fee until the issue of the proceedings in chancery on the whole case here is known; unless, after this com- munication, I should receive your instructions to the con- trary. We must hope that the bequest of Mr®Smithson will ultimately be adjudged to the United States ; but there is a complication of illegitimacy in the matter, and we dare not with confidence affirm that the decision will be favorable, prior to its taking place.
I have the honor to remain, with great respect, your obedient servant,
RicuarpD Rusu.
The Hon. Joun Forsytu, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, February 2, 1837.
Str: The Smithsonian case was brought to a first hearing in the court of chancery yesterday, and it is satisfactory to me to be able to say that results, so far, are favorable to the establishment of the claim of the United States.
The hearing was before Lord Langdale, master of the rolls; this court and the court of the vice chancellor being the two branches of the English chancery system, before which suits are brought in the first instance.
The bill was in the name of the President of the United
20 SMITHSONIAN BEQUEST.
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. Iam 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 doc- trine of escheats, or any other, by the legal representatives of the Crown. These officers, 1 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 exer- cise where questions may arise connected with public char- ities; the rules respecting which are considered applicable to this case.
The coyyt, after the hearing, decreed that the case be re- ferred 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 en- titled 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 super- intendence 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 ex- plained 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 noth- ing be taken from the United States to which they are rightfully entitled.
Counsel also appeared for Messrs. Drummond, and made alittle show of opposition ; but as their clients are, in fact,
SMITHSONIAN BEQUEST. Al |
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, ex- pressed 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 techni- cal 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 be- tween 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 Ist, 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 forth- with, if necessary; so that the point is of no consequence.
I think Iam 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 rela- tion 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 upa 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
22 SMITHSONIAN BEQUEST.
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 Gov- ernment. Nor, Iam happy to add, does any such applica- tion appear at present to be needed, either for the purpose of justice or expedition.
I have the honor to remain, with great respect, your obe- dient servant,
Ricwarp Rusu. Hon. Joun Forsyru, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, 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 Ist 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 Ist 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 peti- tion 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-
SMITHSONIAN BEQUEST. 23
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 proceed- ings 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 under- stand 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 Eng- lish 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 under- stood 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 testa- mentary 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 dig- nity would best be consuited by not exhibiting the special act until indispensably necessary. The validity of the be- quest 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
'
24 SMITISONIAN BEQUEST.
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 favor- able decree be obtained on the main question, now so rea- sonably to be anticipated.
I have the honor to remain, with great respect, your obedient servant,
RicuarD Rusu.
The Hon. Joun Forsytu; Secretary of State.
Richard Rush to John Forsyth.
Lonpon, March 25, 1837.
Sir: In my No. 7 I had the honor to inform you that the court, after the hearing on the Ist 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 Hungerford, 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, ifany. It is further to be ascertained whether John Fitall, mentioned in the plead- ings, 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 pro- gress. 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 ’rench and Italian, have also been inserted in newspapers at Paris and Port Louis, in France; the lat- ter being the place where Madame de la Batut resides; and
.
SMITHSONIAN BEQUEST. 25
at Leghorn, in Italy, it being understood that there is no newspaper published at Pisa, where it is believed Hunger- tord died.
It was by my direction that the advertisements have been framed with all the brevity compatible with the essential object of the court’s decree. I have caused to be carefully kept from them any mention of the amount of property be- queathed, and everything else respecting the nature of Mr. Smithson’s will. This course seems best adapted to guard against the risk of raising up spurious claimants, or combinations, in France, Italy, or this country, to battle with the right of the United States, whereby, although their ultimate recovery of the fund might not be prevented, great delays might be interposed.
Whether John Fitall be living or dead, the remaining branch of inquiry, is a fact to be ascertained without difli- eulty here in London.
T have the honor to remain, with great respect, your obe- dient servant,
RIcHARD Rusu.
The Hon. Joun Forsyru, Secretary of State.
Advertisements. (1.)
Whereas, by a decree of the high court of chancery in England, made in a cause wherein the President of the United States of America is plaintiff, and Charles Drum- mond and his Majesty’s Attorney General are defendants, it was (amongst other things) referred to Nassau William, Sen., Esq., one of the masters of the said court, to inquire and state to the court whether Henry James Hungerford, who formerly resided at Paris, in the Kingdom of France, and is alleged to have died in Pisa, in the Kingdom ot Naples, in the month of June, 1835, is living or dead, and, if dead, where he died, and whether he was married or unmarried at the time of his decease, and, if married, whether he left any children or child him surviving, and the ages of such children, if more than one. Therefore, any person who can give any information touching the said Henry James Hungerford, is requested, on or before the
26 SMITHSONIAN BEQUEST.
1st day of June next, to furnish the same to Messrs. Clarke, Fynmore, and Fladgate, 43 Craven street, Strand, London.
(2.)
Whereas, by a decree of the high court of chancery in England, made in a certain cause wherein the President of the United States of America is plaintiff, and Charles Drum- mond and his Majesty’s Attorney General are defendants, it is (amongst other things) referred to Nassau William, Sen., Esq., one of the masters of the said court, to inquire and state to the court whether Madame de la Batut, who lately resided at Port Louis, in the Kingdom of France, has any claim on the estate of James Smithson, who died at Genoa, in the year 1829, the testator in the pleadings of the said cause named. Therefore, the said Madame de la Batut is, on or before the Ist day of May next, to come in before the said master, at his chambers in Southampton buildings, Chancery lane, London, and make out her claim on the said estate of the said testator, James Smithson; or, in default thereof, she will be excluded the benefit of the said decree.
Richard Rush to John Forsyth,
Lonpon, April 28, 1837.
Sir: In enclosing a duplicate of my last letter, (sent with the original of this,) I have to supply an omission in not stating that the advertisements were inserted in the London Gazette, in addition to the other London news- papers mentioned. It is the more necessary I should state this, as when the bills for legal disbursements are all finally rendered, it will be seen that the item for advertising in this country forms no inconsiderable one. It was my wish to avoid these advertisements altogether, not simply on account of expense, which would have been a good reason of itself, but for the more important one hinted in my last, viz: their possible tendency to raise up fictitious claimants ; but my wish could not prevail against the express order of the court of chancery under which they were inserted.
In regard to the legal expenses, generally, of this agency, I will take this occasion of barely remarking, that whilst I have kept a constant watch over them all, endeavoring to
———————————_=_——S
SMITHSONIAN BEQUEST. Oi
confine them within limits as moderate as possible, they are proverbially heavy in English chancery proceedings. It seems that something is to be paid for every step taken, every line written, and almost every word spoken by coun- sel, senior and junior, solicitors, clerks, and everybody connected with the courts, and officers attached to them, under the extremely artificial and complicated judiciary sys- tems that exist here.
Perhaps I ought also to have mentioned in my last that there is no doubt whatever of the fact of John Fitall’s death.. It only remains for the court to know it through regular evidence, easily attainable, as before remarked, in London, where he died.
I have the honor to remain, with great respect, your obedient servant,
RicwarpD Rusu.
The Hon. Jonn Forsyru, Secretary of State.
Daniel Brent to Richard Rush.
UnitED STATES CONSULATE, Paris, May 3, 1837.
Smr: On the 7th of August last [ made known to the Secretary of the State the amount of expenses that had been incurred by me in this city in taking precautionary steps to secure to the United States, as legatee of James Smithson, of London, the possession of property then sup- posed to constitute a portion of his estate, and now have the honor of transmitting to you, in consequence of a letter recently received from the Department, receipts for the amount of these expenses, as follows, viz:
Receipts of the M. Castaignet for his services_..._..______-____- fr. 226 25 Do. avocat, M. Delagrange Costes tise ewe See 40 00 NMymonmmsreckipt or postages le ise eee ea see} 6 00
ET Ot las kee eee eet ap hoke Cpa Se er ane A ie fr. 872 25
Y would feel obliged to you if you would have the good- ness to provide, at as early a day as may suit your con- venience, for my reimbursement, by furnishing me with a
28 SMITHSONIAN BEQUEST.
bill on Paris for their amount; and, in the mean time, f have the honor to be, sir, your obedient humble servant, DantELt Brent. Ricuarp Rusu, &e., London.
Richard Rush to Daniel Brent.
Lonpon, Portianp Horet, Great Portland Street, May 10, 1837.
Sir: I received your letter of the 3d instant, transmitting receipts for sums expended by you in Paris, amounting to fr. 272 25, for precautionary steps taken on your part to secure possession of property then supposed to constitute a portion of the property bequeathed to the United States by Mr. Smithson. You state that you transmit these receipts to me in consequence of a letter recently received from the Department of State, and request I will provide for your reimbursement by a bill on Paris for the amount.
I received from the Secretary of State, in December last, copies of the same account, with a request that I would ex- amine it, and if I deemed it just, and the amount reason- able, transmit to you the sum necessary to discharge it; his letter remarking that the account, if correct, was properly chargeable on the Smithsonian fund in my hands, created by the act of Congress of July 1, 1836, for defraying ex- penses incidental to the prosecution of the claim of the United States to the bequest of Mr. Smithson.
In reply, I had the henor to inform the Secretary, by letter, dated the 9th of January, that it was still a point un- settled whether the property which, with a commendable zeal, you had aimed at securing for the United States, now constituted any part of the Smithsonian fund in the English court of chancery, awaiting its decision; that nothing had yet been adjudged to the United States; that perhaps it might be doubtful, under these and other circumstances I stated, all of which could not have been known when the Secretary’s letter to me was written, how far the act of July the 1st would sustain the charge in question; and that at all events I had come to the conclusion not to pay the account until the issue of the proceedings in chancery on the whole case here was known, unless I should receive the Secretary’s instructions to pay it, after what I thus wrote.
I have received none; and unless the letter from the
SMITHSONIAN BEQUEST. 29
Secretary, which you have received, were written after the receipt of mine of the 9th of January, and contains an ex- press direction to me to pay, I should not feel at liberty to do so; the less, as everything remains undecided here, and a new fact is ‘interposed. Congress at the late session omitted to make any further appropiation for the full prose- eution and recovery of the Smithsonian bequest; and it is certain, in my belief, that the sum allotted by the act of July 1, 1836, will be exhausted by the unavoidable expenses in London before any new appropriation can come from the next Congress.
I have the honor to remain, very faithfully, your obedient servant,
Ricwarp Rusu.
Danie Brent, Esq., Consul of the United States, Paris.
Richard Rush to John Forsyth.
Lonpon, May 18, 1837.
Sir: J have received a letter from Mr. Brent, consul at Paris, transmitting his account and the receipts for moneys expended by him in that city, with a view to obtain for the United States some property, then supposed to be a part of that which was bequeathed by Mr. Smithson. It is the same account that was forwarded to me with your instructions of the 17th of November last. To these I had the honor of replying in my No. 6, in which the nature of the account was explained, and reasons assigned for suspending pay- ment; your instructions appearing to have left me a dis- cretion over the subject. I trausmit a copy of Mr. Brent’s letter dated the 3d instant, with a copy of my answer dated the 10th. My reasons will be seen in the latter for still withholding payment; Mr. Brent’s letter, as I read it, not conveying to me your direction to pay. If I have erred in this particular, I shall wait your further instructions, and obey them. My letter to Mr. Brent, besides bringing into view the former reasons, mentions a new one.
Under one of the advertisements transmitted with my No. 9, viz: the one returnable on the Ist of this month, the husband of Madame la Batut has come over here from France, to make out the claim of his wife upon the estate of Mr. Smithson. He has written me notes, and called
30 SMITHSONIAN BEQUEST. °
upon me, though as yet I have not seen him. I deem it unnecessary to transmit to you his representations, as I do not act upon them in any way, abstaining as well through my own judgment as that of our professional advisers. ‘To the latter I say, if Monsieur la Batut has a just claim on the part of his wife, it ought to be allowed; if not, no authority but that of Congress could award him anything out of the Smithsonian bequest, should it be finally ad- judged to the United States. To this they assent, with the further concurrence between us, that the court must decide upon the claim; for establishing which, if it can be estab- lished, he will now have every opportunity before a master in chancery, the officer regularly appointed by the court for that purpose. The solicitors advise me that he is a trouble- some person, and seems to have unreasonable expectations ; which, however, will be carefully scrutinized and properly trolled.
I have the honor to remain, with great respect, your obedient servant, ,
RicuarpD Rusu. The Hon. Joun Forsyru, Secretary of State.
Clarke, Fynmore & Eladgate to Richard Rush.
No. 43 CRAVEN STREET, June 9, 1887.
Sir: We think it right to inform you that we have lately had several interviews with M. de la Batut, who married the mother of the deceased Henry James Hungerford, and who we thought might be induced to furnish us with every proof we wanted touching the deceased. His object was to press upon our consideration the moral claims which he supposes his wife and her and his children have upon the United States, in consequence of their succeeding to the fortune, to the income of which Hungerford was entitled for his life. We allude to these moral claims, to distinguish them from the rights which Madame de la Batut may have under the will of Colonel Dickinson, Hungerford’s father, which are the subject of inquiry before the master. To. show, in part, the nature of these MorAL claims, we may mention, that as the fund is left to the United States, to found an institution for promoting knowledge, he considers, notwithstanding that the institution is to be founded in
SMITHSONIAN BEQUEST. 31
America, that his and Madame de la Batut’s children in France should have an allowance until the age of twenty- two, for their education; and he considers that the income derived from the fund since the testator’s death should be allowed to Madame de la Batut !
We do not think it necessary to go further into these requisitions, or into a detail of M. de la Batut’s arguments in support of them. We may, however, advert more particu- larly to the following point, which may have some claim to consideration. M. de la Batut urges that young Hunger- ford, who lived up to his income, left behind him nothing to pay debts and funeral expenses; that had Mr. Smithson’s will come into operation now, instead of seven years back, he would, in consequence of a modern alteration in the law, have been entitled to a portion of the accruing half year’s income up to his death; but that, as the modern alteration does not apply to the case, he is deprived even of that, and cannot be said to have enjoyed the income of the property during his whole life; and thus burdens are thrown upon his relations, which their circumstances do not enable them to bear. We may here observe, that the law on this sub- ject is clear; he was not entitled to any portion of the half year’s income. We answered him by stating that neither you nor ourselves could give any opinion on the subject, still less undertake that anything should be done for him by the United States; and we informed him that if he con- sidered he had any moral claims, he must himself apply to the proper authorities, which he stated his intention to do. We further informed him that we were in search of evi- dence which was completely within his knowledge; and we offered, if he would furnish us with and depose to the par- ticulars relating to Hungerford known to him, we would so far support any application he might make to the proper authorities as to certify that in our inquiries and proofs we were under material obligations to him; and he at length consented to make the necessary depositions. These depo- sitions we drew up in proper form, but, upon requesting him to make an appointment to swear to them, he refused to do so, unless he had a pledge from you that you would do all in your power to support his claims, in addition to the recommendation of Mr. Drummond to the consideration of the United States. The recommendation of Mr. Drum- mond, we might have promised him, but the pledge re- quired from you we knew to be out of the question; and as
o2 SMITHSONIAN LEQUEST.
in the mean time we have received from Italy documents which we trust will obviate the necessity of again applying to him for assistance, we felt no hesitation in at once declin- ing to make terms with an individual whose style of con. duct would hardly justify any strong recommendation in his favor. He then positively refused to assist us any further, and has left us in considerable anger; and he has expressed his determination to make an application to the President through another channel. It will, we conceive, be entitled to little favor. We remain, &c., Criarke, Fynmore & FLADGATE. To Ricuarp Rusu, Esq.
Clarke, Fynmore & Fladgate to Richard Rush.
No. 43 CRAVEN STREET, June 22, 1837. Srr: Mr. Drummond has written to us, to inform you that M. de la Batut has submitted to him a memorial, which, on the part of Madame de la Batut, he proposes to address to the President of the United States. Not having been acquainted personally with Mr. Smithson, Mr. Drum- mond cannot vouch for any of the facts stated in the memo- rial; but, as Mr. Smithson’s executor, he feels disposed to recommend to the consideration of the United States any application coming from the mother of the deceased Hun- gerford, who, so far as he has the means of knowing, is left, by her son’s death, in reduced circumstances. Neverthe- less, we must here add, that the attention paid to such ap- plication must of course depend upon the conduct of the parties making it. Weare, &c., CLARKE, FynMorE & FLADGATE. To Ricuarp Rusu, Esq.
Richard Rush to John Forsyth.
Lonpon, June 24, 1837.
Sm: I enclose copies of two letters received from our solicitors, dated the 9th and 22d instant, relating to the
SMITHSONIAN BEQUEST. 33
conduct of Monsieur la Batut, in reference to the supposed claim of his wife upon the Smithsonian fund.
My No.6, of January 9th, will have made known who the wife is. Nothing is more clear than that she has no claim under the will of Mr. Smithson. Her claim, if any, can only be made out, as mentioned in my No. 6, under the will of Henry Louis Dickinson, and for its establish- ment the court of chancery has pointed out the proper means, and Monsieur la Batut has full liberty to adopt them, that justice may be done. I said in my No. 7, that the claim extended only to about one hundred pounds a year; but, on better information, I find that it would amount, if ‘sustained, to two hundred and forty pounds a year, during the life of Madame la Batut.
But Monsieur de la Batut is little satisfied with putting forward this claim, which, it may be, the court will allow if he can bring forward proof to substantiate it. He makes a sweeping moral claim, as he calls it, upon the United States, should the Smithsonian fund be adjudged to them. The letter from the solicitors of the 9th instant gives, in part, the ground of this moral claim. Te thinks that, as the Smithsonian fund is to be applied to found an institu- tion at Washington, for the increase and diffusion of know!l- edge among men, his children in France have a claim to be educated out of it; and he even considers that his wife has a claim to the a income of the fund since Mr. Smithson’s death! This, at a rough estimate, might be perhaps set, down at upwards of twenty thousand pounds.
I cannot wonder that the solicitors deemed it unneces- sary to detail to me the “‘ arguments”’ by which Monsieur de la Batut sought to support these his ‘‘ requisitions.” His attempt at coercion, by withholding evidence within his power, unless on a previous pledge from me to support his requisitions, thereby showing a disposition to prevent the United States recovering anything, will probably gain him little favor in their eyes. Fortunately, there is now other evidence, as the solicitors state in their letter, and have since told me verbally, which, it is believed, will place the United States beyond his reach. The part of their letter that [ read with regret was that in which they intimated to him that, as neither they nor I could engage that anything should be done for him by the United States, he must him- self apply to the proper authorities. I called upon them
3
34 SMITHSONIAN BEQUEST.
immediately, to express my wish that no such encourage- ment be in future held out to him; but it seems that he had already taken his course; their letter of the 22d instant gives me to understand that he proposes to address a me- morial to the President, through the auspices of Mr. Drummond, the defendant in the suit. That he would have done so on his own motion, in the end, without any hint from the solicitors, is probable enough; but I was sorry it had been given to him. For myself, I have invari- ably discountenanced all his pretensions, deeming it my duty to do so most unequivocally. I have refused to see him, unless in presence of the solicitors, lest he should misunderstand, or forget, or pervert, what I might say; and the latter told me they could perceive no advantage in my seeing him. If the United States recover the legacy bequeathed by Mr. Smithson, I should naturally regard the whole of it as a trust fund in their hands, not to be in any- wise diminished or touched but by the same legislative power that accepted it, for the purposes specially set forth in the act of Congress of the 1st of July, 1836. Not only, therefore, do I disclaim all authority for yielding, in the slightest degree, to Monsieur la Batut’s demands, or giving him the least hope that any of them are ultimately to be allowed by the United States, but I should have thought it not justifiable in me to refer him to the President.
Not being sure that I rightly understood what the solici- tors mean in their letter of the 9th, about an alteration in the law, I sought an explanation from them. It appears that, by an act of Parliament passed in 1834, whenever a person entitled to the annual proceeds of any fund or prop- erty for his life, under a will coming into operation after the passing of the act, dies between the points of time as- signed for the periodical payments, his representatives be- come entitled to a proportionate part of the accruing pro- ceeds up to the day of his death. Before this act, there was no such apportionment; and, as Mr. Smithson’s will came into operation before it was passed, Hungerford’s represent- atives have no claim to any of the dividend that accrued after the Jast dividend day that happened previously to his decease. I asked how this would stand with the case I drew up for the opinion of counsel, as transmitted with my No. 4; in which, among other things, I stated, under the sanction of the solicitors, that “Mr. Hungerford received the income arising from the testator’s property up to the time
SMITHSONIAN BEQUEST. 35
of his death.” They replied that this was nevertheless cor- rect; he did receive all that had accrued up to that time; but there was a dividend in progress which, as it had not actu- ally arisen, and could not have been claimed by Hungerford in his lifetime, his representative has no claim to it after his death. Such was their explanation.
It is not for me to say how far this lends any equity to any fraction of Monsieur la Batut’s claims or requisitions. It is a familiar maxim, that those who ask equity should do equity. The United States will succeed to all that the law of England gives them, as the Lord Chancellor may ex- pound and apply that law to their special predicament under the will, having due reference, no doubt, to the rights of all other parties before the court; and whatever may be the amount adjudged in their favor, my uniform declaration is that Congress alone would have the power to reduce it. I add, as explicitly, that to no one can I give the remotest encouragement or hope that it would be reduced, and, least of all, to one so unreasonable, so exacting, and apparently so bent upon thwarting the rights of the United States, as Monsieur de la Batut.
I have the honor to remain, with great respect, your obedient servant,
RicHarD Rusu.
The Hon. Joun Forsytu, Secretary of State.
ftichard Rush to Clarke, Fynmore g Fladgate.
Portitaxrp Hoten, Great Portianp StTREsEr, July 21, 1837. GENTLEMEN: Having at all times made known my wishes for a speedy decision of the case you have in hand for the United States, I need not here repeat them, but as the time approaches when the court of chancery will adjourn over to November, I must ask you to inform me what seem the prospects. Remaining your obedient servant, RicHaRD Rusu. To Messrs. CLARKE, Fynmorn & FLADGATE.
36 SMITHSONIAN BEQUEST.
Clarice, Fynmore § Fladgate to Richard Rush.
43 CRAVEN STREET, STRAND, July 22, 1837.
Dear Srr: In answer to your letter of yesterday, on the subject of Mr. Smithson’s bequest to the United States, we beg leave to inform you that we have used all the means in our power to bring the matter to a close, but we are still unable to state any definite period at which you might ex- pect to receive the funds.
Our inquiries in Italy have, we trust, put us in possession of such evidence as will fully establish the fact of Mr. Hun- gerford’s death, without having been married; but, how- ever important it may be to do this, still there is another point to be settled before the funds will be available to the United States. This point is the claim of Madame de la Batut, under the will of Colonel Dickinson, (whose executor Mr. Smithson was,) under which will she is entitled for her life to half the colonel’s property.
The outline of this claim is, that Mr. Smithson possessed himself of all Colonel Dickinson’s estate, and never ren- dered to Madame de la Batut any account of it; and that, not having done so, she has now a right to call upon Mr. Smithson’s executor to do that which he in his lifetime ought to have done. Mr. Drummond has no means of ren- dering this account; but, until the claim is set at rest, the court could not, of course, order the funds forming part of Smithson’s estate to be paid over to the United States; as for anything that appears to the contrary, the greater por- tion of these funds might have arisen from the property of Coloncl Dickinson. Our object now, therefore, is to induce Madame de la Batut to come in and establish some claim in the present suit, (the amount, however, of which we seek, as much as possible, consistently with justice to reduce,) so as to bind her by the present suit, and make it conclusive upon the subject.
Her advisers have but little evidence to offer in support of her case, and have, in consequence, very much delayed the necessary proceedings. We pressed them as much as possible, and, indeed, threatened to bar them, by getting the master to report against them; but, in reply to this, they intimated that, if we did so, they should give notice to Mr. Drummond to hold the funds, and file a bill against him, as executor of Smithson, for an account. As this
SMITHSONIAN BEQUEST. Se
would be attended with more delay and expense than it is likely there will be in the present proceedings in the master’s office, we are induced to afford every indulgence, urging only all possible despatch, which, as, fortunately, Madame de la Batut’s solicitors are persons of the highest respectability, we are sure they will use. We are your very obedient servants, CLARKE, FYNMORE & FLADGATE. To Ricuarp Rusu, Esq.
Richard Rush to John Forsyth,
Lonpon, July 28, 1837.
Sir: I received on the 26th instant, from our minister, Mr. Stevenson, a petition addressed to the President by M. de la Batut, now it seems in France, on the subject of his claims, which had been sent to Mr. 8. by Mr. Anderson, chargé d’affaires of the United States at Paris. The nature of these claims is sufficiently stated in my letter of the 24th of last month, and I need not therefore repeat that, accord- ing to the view I take of them, they are altogether unrea- sonable. In writing to Mr. Anderson upon the subject, which I did yesterday, I informed him that Monsieur de la Batut had been in London, urging them upon those who are charged with conducting and superintending the case of the United States before the court of chancery in the matter of the Smithsonian bequest, and that our Govern- ment had been apprized of them through my communica- tions to you; that as they were adverse to the interests of the United States, and had been pursued in an adverse man- ner by M. de la Batut when here, it was not for me to aid in transmitting his paper to the President; but that, as he might wish to have it again, to make his own use of it, I was at a loss how to dispose of it, otherwise than by return- ing it to him, (Mr. Anderson,) which I therefore felt myself obliged to do, with the explanation here given. Mr. Ander- son was probably not before acquainted with any of the circumstances I stated.
Ihave deemed it right to inform you of the step thus taken in regard to this petition, and hope it will appear to have been proper. I ought to mention, whilst on the sub-
38 SMITHSONIAN BEQUEST.
ject, that, on the first arrival of M. de la Batut in London, I caused him to be informed that, although in no event was I authorized to promise him anything from the United States, yet if he promptly afforded the facilities to their suit in chancery, which he justly might, by stating facts within his immediate and full knowledge respecting young Hun- gerford, he would naturally stand well with our Govern- ment; and that, as far as the expression of any favorable opinion of mine towards him was concerned, he would necessarily earn it. Far from listening to what was so unob- jectionable, he refused, as made known in one of the letters enclosed with my last, to give any evidence whatever for the United States, except on condition of a previous pledge from me to support all his claims, not perceiving, though so informed that such a pledge, had I even made it, could have availed him nothing.
It may be proper to mention here, also, that it never was my intention, and so I instructed our professional advisers, to raise any captious objections to Monsieur la Batut’s claim in right of his wife, so long as he kept it within the limit of the bequest made to her by the will of Henry Louis Dick- inson, as explained in my No. 6. The bequest may amount, as I now understand the case, to two hundred and forty pounds sterling a year, at the utmost, during the life of the wife. All I demanded was, that this claim should be sub- stantiated by fair proof, and be adjudged by the court, as I had no authority to give an independent assent to anything that might diminish the fund bequeathed to the United States by Mr. Smithson,
But to suggestions like these he was alike insensible, pre- ferring to take the course and put forward the extravagant claims I have described. I have no fears that the court will allow them; but there is ground for apprehending that he may be able to cause future, as he has past, delays. There is no hope of bringing the case to a conclusion during the present term of the court. It ends next month, and the next term does not commence until November. The master in chancery has not yet made his reports on any of the references made to him by the court, as explained in my No. 9, although I have urged them on by all the means I could use, and will not fail to continue my efforts whilst the present term lasts. Had it not been for the obstructions created by Monsieur de la Batut, this part of the case would have been expedited, and a door the sooner opened by
SMITHSONIAN BEQUEST. 39
which the United States might have got possession of the fund. I have the honor to remain, with great respect, your obedient servant, Ricwarp Rusa.
Hon. Joun Forsytu, Secretary of Siate.
Richard Rush to John Forsyth.
Lonvon, August 1, 1837.
Srr: I transmit, herewith, a copy of my account for the year ending yesterday. I also send a list of my drafts upon the bankers of the United States within the same period, as authorized by your letter to the late N. M. de Rothschild of July the 11th, 1836.
The only bill I have yet paid, because the only one I have been able to get in, for legal expenses actually incurred, was one of two hundred pounds four shillings, on the 8th of April, as shown by my draft upon the bankers of that date. For this a voucher is enclosed, with a full statement of the account. More expense, considerably, has been incurred under this head, but no second account has hitherto been rendered to me, although I have asked for and been desir- ous of. obtaining it, the solicitors saying that the items going to make it up are, many of them, still dependent upon services outstanding and incomplete. The heaviest legal expenses will, [ apprehend, come in at the final close of the suit. When this will be I dare not promise, since none of our professional advisers will undertake to inform me precisely, although none, I believe, can exceed them in diligence and fidelity, and although they are urged by my reiterated instructions to use all the expedition practicable. The necessity of a reform in the court of chancery was the subject of a special recommendation from the Throne to Parliament, at the session before the last. Its business is very much in arrears. Mr. Pemberton, the leading counsel of the United States, who is also a member of the House of Commons, stated in his place in that body, in February last, that the arrears amounted to between three and four hun- dred cases two years before, but that they had grown to up- wards of eight hundred at the time he was speaking. The cases, in a large proportion, are also of great magnitude.
40 SMITHSONIAN BEQUEST.
The Attorney General on the same occasion remarked, that whilst throughout a long course of time the population of England had been i increasing six-fold, and her wealth twenty- fold, the judicial establishments had remained nearly the same, so as to amount almost to a denial of justice. There are only eleven masters in chancery, whilst there are those who tiink that double the number would scarcely be sufti- cient for the wants of the court in all the different depart- ments of its business at the present epoch. In the midst of such discouragements, and I am bound to state them as truly
such, I still do not despair of having the case of the United |
States brou ght to a final and successful close in the course of the ensuing winter or spring; it shall be sooner, if pos- sible, as all obstructions that might once have been thought to imply serious difficulty or danger are, I think, overcome. Nevertheless, no assuranee can be given that it will be fin- ished as soon as the latest period mentioned. Should it last even through the winter, and my last letter will have informed you that the next term of the court (the present drawing to a close) will not be held until November, there is reason to believe that the fund created by the act of Con- gress of the Ist of July, 1836, will, through the accruing legal charges and drafts, to w hich the fund is otherwise liable under your instructions, be exhausted.
In regard to the first legal account, now enclosed, I can only say that I believe it to be reasonable, judged by the standard of similar charges in this country. I felt myself to be an incompetent judge of all the minute items, filling fourteen pages, folio, of an account founded upon the mul. tifarious and artificial proceedings in an English court of chancery; but I went over the whole, judging as well as I could of each, and obtained explanations from the solicitors where I found them necessary. I also sought other aid; I resorted to a citizen of the United States now here, intelli- gent and trustworthy, and conversant with such accounts, from having superintended several suits in which American interests were at stake in English courts. is opinion was decidedly favorable to the justiee and even general modera- tion of the items, tried by the precedents of which he had knowledge. These precautions, added to the fair character of the solicitors, and their verification, severally, by my re- quest, of the whole account, in the special manner that will be noticed at the foot of it, afforded the only guarantees I could command for its correctness,
SMITHSONIAN BEQUEST. 41
I have the honor to remain, with great respect, your obedient servant, RicHarD Rusux.
Hon. Joun Forsytu, Secretary of State.
Clarke, Fynmore § Fladgate to Richard Rush.
43 CRAVEN STREET, August 18, 1837.
Dear Str: The court having now risen for the long vacation, we deem it our duty to report to you briefly the state of the cause to which the President of the United States and Mr. Drummond are parties, instituted for the purpose of enabling the President to receive the legacy given by the will of Mr. Smithson.
Pursuant to your constant instructions to bring the matter to a termination with all practicable despatch, we have been actively occupied in satisfying the inquiries di- rected to be made by the decree of the Ist of February last; and, although the master’s report touching these in- quires is not yet made, we have been so far successful as to induce us to hope that we should satisfy him upon all points, and obtain early in the next term, such a report as will ensure the speedy receipt by you, on behalf of the President, of the funds in question.
You will remember that these inquiries were three-fold. 1. As to Fitall, the annuitant under the will of Smithson. 2. As to Hungerford’s death, unmarried and without issue. 3. As to the alleged claim of Madame de la Batut.
On the first point we have no difficulty, having cbtained a certificate of the death of Fitall, whose annuity was paid up to the time of his death, except only the last quarter, which his widow will now receive.
2. As to Hungerford’s death without issue, we have obtained a certificate of the death of one Henri de la Batut, under which name we found that he had died; and we have also obtained a certificate, identifying de la Batut with Henry James Hungerford. We have, as directed by the decree, advertised in the newspapers here, in France, and in Italy, touching any wife and children; and these adver- tisements have produced no claimants. We have obtained from France other confirmatory evidence on these points; amongst the rest, Monsieur de la Batut’s statement, (which
42 SMITHSONIAN BEQUEST.
however, you will remember he refused to confirm on oath;) and we have little doubt, as above observed, that the evidence obtained will be such as to satisfy the master upon the subject.
These inquiries have of course consumed much time, but we should have had the report before this, had it not been for the remaining point, the claim of Madame de la Batut. As stated in our letter addressed to you on the 22d of July, it is most important that the claim should be disposed of in the present suit; and we are happy to say that the claim has now been formally made, and, we trust, in such a shape as will, if it be sustained by the court at all, bar any ulterior proceedings. The evidence in support of it is not strong, and, for the purpose of strengthening it, interroga- tories for the examination of Mr. Drummond have been brought into the master’s office; which, however, will not have the desired effect. These interrogatories were exhib- ited by Madame de la Batut, after much pressing on our parts, and we are now employed in answering them. Hav- ing done that, we shall proceed to get the claim settled, if possible, by the allewance of some small sum, and every difficulty will then be at an end.
You may rely on our utmost exertions in bringing the matter to a close; and we are,
Your very obedient servants, CLARKE, FynmorE & FLADGATE,
To Ricwarp Rusu, Esq.
Richard Rush to John Forsyth.
Lonvon, August 19, 1837.
Sir: Desiring, before the court of chancery rose, some opinion in writing from the solicitors as to the prospects of a decision of the case, I addressed a few lines to them on the 21st of last month, as by enclosure No. 1, and received an answer the day following, a copy of which (No. 2) is also enclosed. I did not send it to you at that time, or with either of my letters written since, because, although I went to them in person several times, in the hope of verbal ex- planations that might render it more definite, I found that there was no probability of obtaining any to that effect until after the court had actually risen, at which time I re-
6 SSeS
SMITHSONIAN BEQUEST. 43
quested they would furnish me with a further communica- tion. The court rose a few days ago, and I yesterday re- ceived from them the report, a copy of which (No. 3) is now z2lso transmitted, as the suitable accompaniment to their letter of the 22d of July.
I am happy to find it more satisfactory than that letter ; the letter left it doubtful when the obstructing claim of Madame de la Batut, an outline of which is given in their letter, would be put into a proper shape for examination and settlement. Nor could I urge any longer the expedi- ency of a report by the master, during the existence of the term, under reiterated assurances from our solicitors of what is stated in their letter, viz: that to do so might have led to a course, on the part of the solicitors of Madame de la Batut, productive of more delay and expense than are likely to flow from the master’s report being withheld until the next term.
The solicitors’ report to me, dated yesterday, besides im- bodying a succinct statement of the steps taken in the cause since the decree in February, shows that the la Batut claim is at length placed upon a footing to be met and de- cided upon by the court, which it has been my constant aim to see effected; and although they write with caution as to any precise time when a final and favorable decision of the cause on all its points may be expected, their report is encouraging. I can only add, that nothing shall be omitted by me when the court recommences, or during the vacation, towards securing as prompt an issue to the whole proceedings as may be found practicable.
I have the honor to remain, with great respect, your obedient servant,
Ricwarp Rusa.
The Hon. Joun Forsytu, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, October 18, 1837.
Sir: Since transmitting the duplicate of my No. 15, nothing material has occurred for your information. The long autumnal vacation has been going on, and is not yet expired. The business of the court of chancery has there-
44 SMITHSONIAN BEQUEST.
fore been at a pause, and no further proceedings have been had in the suit of the United States.
But I have from time to time called upon the solicitors, and am able to report that they have not been idle during this interval. They have been employed in preparing an- swers to certain interrogatories exhibited on the part of Madame la Batut, with a view to establish her claim; and the strict and careful inquires they have instituted, and will continue to pursue, assure me, although no facts are yet ripe for communication, that the interest of the United States will be well guarded in relation to it. The court will sit again next month, when the steps which the solic- itors have been taking, in anticipation of its recommence- ment, will in due time, I trust, be productive of the proper results. The claim in question has been so vexatiously urged, that my directions have been given for the closest scrutiny into its merits at all points.
I have the honor to remain, with great respect, your obedient servant,
Ricuarp Rusu.
The Hon. Joun Forsyru, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, October 27, 1887.
Sir: The court of chancery will resume its sittings next week, and I have this week been in conference with our solicitors, urging them to act expeditiously. Evidence obtained on the la Batut claim, and on other points, now only waits a few forms to go before the master, from whose office a report may be anticipated, as | am confidently told, at a day not distant after the meeting of the court. I trust that this will be the case, and that the report may be satis- factory.
At our conferences, the point of a new powef to me from the President, similar to my former one, has been touched upon. !t is not considered certain that one will be required ; but is deemed to be safest, I find, that I should be armed with one, as the court might possibly ask for it, in the event of a favorable decree, prior to the final order for de- livering the fund to the United States, even should the defendant’s counsel or the Attorney General not raise the
SMITHSONIAN BEQUEST. 45
objection. I will therefore ask the favor of such a power; and as [am at present sanguine in the expectation of a favorable as well as early decision, should nothing unforeseen arise, its transmission as soon as convenient after this re- quest gets to hand might prove desirable.
I have the honor to remain, with great respect, your obedient servant.
RicuarpD Rusu. The Hon. Joun Forsy@n, Secretary of State.
John Forsyth to Richard Rush.
DEPARTMENT OF State, November 13, 1837.
Sir: The account heretofore rendered by Mr. Brent, our consul at Paris, for moneys expended by him in precaution- ary measures to obtain for the United States certain prop- erty supposed to belong to the estate of the late Mr. Smith- son, of London, and which formed the subject of a letter of instructions to you, dated the 17th of November last, has been again presented to this Department for consideration. After a proper examination, the President deems it just that the charge for the professional services of Messrs. Cas- taignet and Delagrange should be allowed and paid. You are accordingly authorized and requested to discharge Mr. Brent’s bill amounting to 272.25 francs, without unnecessary delay. In the final settlement of your account, this item may be debited to the Smithsonian legacy, if recovered, and if not, to the appropriation for prosecuting the claim of the United States to the said legacy.
Tam, sir, your obedient servant, Joun Forsytu. Ricuarp Rusu, Esq., &e.
Richard Rush to John Forsyth.
Lonpon, December 16, 1837.
Sir: The court of chancery met on the 2d of last month, and continues in full session. It was the commencement of the Michaelmas term.
. If I have not written to you since the sittings of the
46° SMITHSONIAN BEQUEST.
court were resumed, it is because I have had, heretofore, no special matter to communicate, although doing all in my power to accelerate the progress of the suit committed to my superintendence, and endeavoring especially to hasten the report of the master on all the matters referred to him by the court’s decree of the Ist of February. I mentioned in one of my letters that there were upwards of eight hun- dred suits in arrear in this court, some of which it might have been added involve in their issue sums exceeding in amount the sum claimed by the United States. Irom this cause, which natarally overburdens with business the offices of the masters, it has in part arisen that the master’s report in the suit of the United States has not hitherto been made.
But at length, this week, it was in readiness to go in, and would have embraced among other things a favorable report on the claim of Madame la Batut, to the amount of about one hundred and fifty pounds a year, to be paid to her out of the Smithsonian fund during her life. It will be seen how large a reduction has thus been effected of the demands put forth on her behalf, as my past letters have made them all known to you. Our solicitors have rather a confident opinion that there is a prospect of disproving this demand by further evidence yet attainable in France, and I have consequently directed them to take the proper steps for pro- curing it with all despatch. It is not believed that more than a month will be required for procuring it, and the master’s report will be withheld in the mean time. When it arrives, it will be my province to look well to its nature and probable effect, that on the one hand nothing may be lost to which the United States may seem justly entitled, and on the other that the great result of the suit be not put in jeopardy, or injurious delays risked, by doubtful contests for fractional sums.
I have the honor to remain, with great respect, your obe- dient servant,
RiIcHARD Rusu. The Hon. Joun Forsytu, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, December 21, 1887.
wir: I had the honor to receive on the 18th inst. your in- structions of the 13th of November, authorizing and re-
ee
SMITHSONIAN BEQUEST. 47
questing me to pay an account amounting to frs. 272,%5,, forwarded to the Department by Mr. Brent, our consul at Paris, the subject-matter of which was formerly made known to me in your letter of the 17th of November, 1836, to which I replied in my No. 6, on the 9th of January fol- lowing; and I beg leave to say, that on the 19th instant I accordingly remitted to Mr. Brent the above sum, to be debited, as your letter indicates, to the Smithsonian legacy, if recovered, * * * and if not, to the appropriation for prosecuting the claim of the United States to the said legacy.
I have the honor to remain, with great respect, your obedient servant, !
RicuarpD Rusu.
The Hon. Joun Forsytu, Secretary of State.
John Forsyth to Richard Rush.
DEPARTMENT OF StaTE, December 27, 1837. Sir: Your despatches to No. 17, inclusive, have been re- ceived. In compliance with the request contained in your letter of the 27th of October last, and subsequently urged in your private letter of the 3ist of the same month, I transmit to you, enclosed, a new power from the President to provide for the contingency, which you think probabie, of such instrument being demanded either by the court, the
Attorney General, or the defendant’s counsel. I am, sir, your obedient servant, JoHN Forsytu.
RicwarpD Rusu, Esq., &e.
Richard Rush to John Forsyth.
Lonpon, January 30, 1838.
Sir: I had yesterday the honor to receive your letter of the 27th December, enclosing the President’s renewal of my power to prosecute the Smithsonian claim, and receive the money for the United States whenever the same may be adjudged. It remains uncertain, as intimated in my com- munication of the 27th of October, whether the exhibition of the new power will be eventually demanded; but even if
45 SMITHSONIAN BEQUEST.
not, I trust the President will think it has been erring on the safe side, after what passed, to have it in my possession.
After my letter of the 16th of December, I had fully hoped that the evidence of which it makes mention would have been obtained from France before this time; but it seems that the French attorneys, who were written to upon the subject by our solicitors, mistook some of their instruc- tions at first, which led to delay. They are now in expec- tation of receiving it daily.
I have the honor to remain, with great respect, your obe- dient servant,
Ricuarp Rusu. The Hon. Joun Forsytnu, Secretary of State.
Richard Rush to Clarke, Fynmore & Fladgate.
February 3, 1838.
GENTLEMEN: I understood, when with you on Wednes- day, that the evidence obtained from France would not, in your opinion, be found sufficient to prevent the master’s report embracing an allowance in Madame de la Batut’s favor of about one hundred and fifty pounds a year during her life, with some arrearages calculated on that basis; and the evidence, as you exhibited and otherwise made it known to me, certainly led my mind to the same conclusion.
You added that, by sending out a commission from the court of chancery to Paris, (a process not yet resorted to,) you thought that evidence might still be obtained to defeat her claim; on which subject 1 should be glad to receive an-- swers to the following inquiries, as far as in your power to give them to me:
1st. What would be the probable expense of that process?
2d. How long before its full execution and return might be expected ?
3d. Assuming that the evidence, when so obtained, struck your minds, our counsel’s, and my own, as suflicient to de- feat the claim; yet as it might not happen that the legal advisers of Madame de la Batut would take the same view of it, and thence contest its validity before the court, what further delays might such a turn in the case be likely, under all the circumstances, to lead to ?
As I have so repeatedly made known to you my desire
SMITHSONIAN BEQUEST. 49
for the speediest decision of the case that may be practica- ble consistently with justice to the United States, I make no apology for asking a reply to these inquiries at as early a day as may be convenient. I remain your obedient servant, Ricnuarp Rusu. To Messrs. CLARKE, FynmMonre & FLADGATE.
Clarke, Fynmore & Fladgate to Richard Rush.
43 CRAVEN-STREET, STRAND, February 8, 1838.
Dear Sir: We have to acknowledge the receipt of your favor of the 3d instant, containing certain queries touching the measures which may be adopted in respect of the claim of Madame de la Batut.
In reply, we beg to state that, so long as proceedings in the English court of chancery are conducted as amicable suits, when both parties unite in a wish to obtain the direc- tion of the court, without unnecessary delay, it is a matter of no great difficulty to calculate their probable duration; but circumstances sometimes arise, even in such suits, that prove the calculations fallacious. When once, however, a suit ceases to be so conducted, and parties come in whose in- ierest it is to throw impediments in the way ofa decision, any calculation as to either delay or expense must be a mat- ter of little better than guess. So many unforeseen points may arise, and the practice of the courts affords such facil- ities for a hostile party to obstruct the course of justice, that the most experienced lawyers hesitate before they attempt to give an opinion upon the subject. If in the present case Madame de la Batut’s claim be further resisted, the suit will become one to which these observations apply ; or Madame de la Batut might perhaps abandon the claim now brought in, and try to impede us by filing an original bill for its establishment. We do not think this likely, but it is not impossible.
IJaving said thus much, we will proceed to answer the queries.
We think that within three months evidence might be obtained of the facts necessary to defeat Madame de la
4
50 SMITHSONIAN BEQUEST.
Batut’s claim, and that such evidence might be procured either by sending over a commission to Paris, for the exam- ination of witnesses, or by bringing interrogatories into the master’s office for the personal examination of Madame de la Batut and her husband. We now know so much of the case that Madame de Ja Batut would hardly venture to deny any of the necessary facts; but this is not quite certain.
We think that the expense of a commission to examine witnesses would not exceed £150. The expense cf inter- rogatories for the examination of Madame de la Batut would be trifling; probably thirty or forty pounds.
Assuming that the requisite evidence were obtained, we are inclined to think that, notwithstanding Madame de la Batut’s resistance, the suit might be wound up before the rising of the court tor the long vacation; but, after the ob- servations we have thought it our duty to make in the early part of this letter, you will be able to judge how far this opinion can be relied on.
You will bear in mind that the decision of the master is not final. Exceptions may be taken to his report, and ar- gued before the court ; and even an appeal may be brought against the decision of the vice-chancellor, or master of the rolls, and the cause might be taken to the House of Lords. The delay under such circumstances would be very great.
We are your very faithful and obedient servants,
CriarkE, Fynmore & FLap@ate.
RicuarD Rusu, Esq.
Richard Rush to Clarke, Fynmore ¢ Fladgate.
February 9, 1888.
GENTLEMEN: Your communication of yesterday’s date was received, and is satisfactory by its fullness and candor.
Under its representations, I determine not to seek further evidence, by a commission to Paris or otherwise, for the purpose of further reducing the claim of Madame de la Batut.
Let the master’s report in this respect be, therefore, made in the state I understood it to have been settled by him; and, now that I take this determination, I trust that it will be made at a very early day.
I need scarcely reiterate to you my most carnest wishes
SMITHSONIAN BEQUEST. 51
for a speedy decision of the case, or my instructions that you will urge it on with all the expedition in your power. In the hope that the decision will be in all things favor- able, as well as speedy, I remain your faithful and obedient servant, Ricuarp Rusu. To Messrs. CLARKE, FynMorE & FLADGATE.
Richard Rush to John Forsyth.
Lonpon, February 12, 1888.
Str: The day after my last number was sent off, L received information from the solicitors that some of the evidence expected from France had arrived, but that it was not of validity to repel the claim of Madame de la Batut. From as much, however, as it disclosed, they pronounced a strong opinion that if a formal commission issued from the court, evidence might finally be had that would defeat it.
On fully weighing what they said, I wrote them a note on the 3d instant, requesting answers to the following inquiries :
1. What would be the probable expense of a commission ?
2. How much time would be required for its execution and return ?
3. Supposing the evidence obtained under it to be suffi- cient in their opinion, our counsel’s, and my own, to deteat the claim; yet, as the legal advisers of Madame de la Batut might not take the same view of it, and thence contest it, what further delays might such a turn in the case become the means of producing? (I enclose a copy of my note.)
T received an answer from them dated the 8th, a copy of which is also enclosed.
Referring specifically to my inquiries, it will be seen—
1. That they estimate the expense of a commission at one hundred and fifty pounds.
2. That they think it might be executed and returned within three months.
3. That, assuming the requisite evidence to be obtained, they incline to think the suit might be wound up before the rising of the court for the long vacation, (which means in August next;) but after the introductory observations of their note, which advert to the uncertainty of all previous
52 SMITHSONIAN BEQUEST.
calculations as to the duration of suits in chancery, they leave me to judge how far this opinion of theirs is to be relied upon; and they conclude with an intimation that the case might, in the end, be taken before the House of Lords on appeal; in which event the delay, they add, would be “very great.”
I have determined, under these circumstances, not to seek further evidence by a commission to France or other- wise for defeating the claim, and accordingly wrote to them, on the 9th instant, to proceed with all expedition in bringing the suit to a close without it. A copy of this note is also enclosed. As to bringing interrogatories into the master’s office for the personal examination of Madame de la Batut ‘and her husband, as adverted to in the answer from the solicitors, | say nothing of the objections to that mode of getting at more evidence, the solicitors themselves forestalling me by an admission that they could not be cer- tain of its success. °
I hope that the determination to which I have come will be approved as judicious. This claim has been already, by full scrutiny and resistance, greatly cut down from its origi- nal injustice and extravagance, as a reference to my No. 12, of the 24th of last June, will show. That it might be wholly defeated by going on to pursue measures within our power, I incline to believe. The solicitors tell me that they think so decidedly, and their letter is to the same effect. But it is now necessary to balance the advantage to be gained by doing so against the time and money it would cost. The report in favor of the claimant, as the master has determined to make it in the state of the evidence as now before him, will not, by the information I have received and heretofore communicated, be likely to exceed one hundred and fifty pounds a year, payable during her life; to which will have to be added a few years of arrears, calculated on the basis of whatever may be the precise amount of the annu- ity allowed. The claimant, as far as I can learn, is about sixty years old. Hence, supposing that measures necessary for the total defeat of her claim occupied only another twelve- month, it seems probable that the very cost of the agency for going on with them, added to all unforeseen legal fees and expenses, might prove more than the annuity is worth. That the suit would be lengthened ott another twelvemonth by going into the measures in question, can scarcely, I think be deemed a strained inference, from all that the solicitors
SMITHSONIAN BEQUEST. 53
say in their letter, not to dwell upon contingencies coming within its scope that might make the time longer. Shoulc the suit reach the House of Lords, for example, by appeal, it would not be easy to assign a limit to its duration.
I trust, therefore, it will be thought that I exercise a proper discretion, as representing the interests of the United States, in determining not to expose myself to any of these hazards, and new ones that might even chance to spring out of them as time was opened for their operation. It seems to me, conclusively, that I should henceforth rather strive to obtain a decision of their suit as speedily as possi- ble, regardless of the small and temporary diminution of the fund, should it be finally adjudged in their favor, which the foregoing payments to Madame de la Batut would occa- sion. Opposition has been effectively made to the claim up to the point, it is believed, that duty enjoined and pru- dence would sanction; to go farther seems not reconcilable with the latter, under the certain and contingent delays and dangers I set forth.
The occasion may be a fit one for remarking, that when this claim first assumed a vexatious aspect last summer, my immediate wish and suggestions were to get a decree in favor of the United States for the general fund, leaving such fractional portion of it sub judice as would have been sufficient to satisfy the claim if established; thus cutting short delay from this source, by which this agency might have had the chance to be closed the sooner, and the bulk of the fund secured to the United States at the earliest possible day. The last I hold an object of pressing im- portance, encompassed, as all law suits more or less are, (to say nothing of the peculiar nature of this,) by hidden risks. But it was part of the vexation of the claim that our legal advisers found the course I desired to pursue impracticable, for the reason mentioned in the letter of the solicitors of the 22d of July, a copy of which was forwarded with my No. 15 on the 19th of August.
Now that this obstruction is removed from my path by the determination I have taken in regard to it, I indulge the hope that no new one will be thrown across it; and can only repeat the assurance, that nothing within my power shall be left undone towards accelerating the suit, anxiously desiring, on all public and personal accounts, (if I may speak in the latter sense,) to see it terminated.
In the continued hope that the decision, when it comes,
54 SMITHSONIAN BEQUEST.
may be favorable, I have the honor to remain, with great respect, your obedient servant, Ricwarp Rusu. The Hon. Joun Forsytu, Secretary of State.
S. Pleasanton to John Forsyth.
TREASURY DEPARTMENT, Firrx Avpitor’s Orricr, March 14, 1838.
Siz: In reply to your letter of this morning, I have the honor to inform you that the amount of the appropriation made by the act of Congress of July 1, 1836, for the ex- penses of prosecuting the claim of the United States to the Smithsonian legacy, was remitted to their bankers in Lon- don, on the 16th of the same month—$10,000.
Of which sum the said bankers have paid to the order of Rich- ard Rush, the agent appointed under that act, from 1st August, 1836,:to:3lst December,-183 7 232 eS 53493
Applied as follows, viz:
Agent’s salary for one year, ending 31st July, 1837-_ $3,000 00
Personal and other expenses (excepting law expenses) same period. - 2-2 ee ee ee Oe ee
Paid Clarke, Fynmore & Fladgate, solicitors, at Lon- don, for various professional services in relation to the legacy sao. 4 22! 0 ee eee 889 77
:
Credited to Mr. Rush on accounts rendered by him__ $5,889 77 At the above rates of salary and expenses, the agent
will be entitled to credit up to 3ist December, 1837,
exclusive of law expenses for one half year, ending
with thatidate.2. 3) 2 ee 500100
Leaving a balance, to be accounted for by him, of.-_--.-.---__ $103 34
The balance remaining unexpended by the bankers, of the appropriation in question, on the 3ist of December last, was, as will be perceived from the above statement, $1,50 Too:
I have the honor to be, very respectfully, sir, your obedi- ent servant,
S. PLEAsontTon.
Hon. Joun Forsyvra, Secretary of State.
SMITHSONIAN BEQUEST. a5
Richard Rush to John Forsyth.
Lonpon, March 28, 1838.
Srr: Since the date of my last letter, the report of the master has been duly made, and yesterday it was confirmed.
This is a step forward in the case which I am at length happy to announce. It is second in importance only to the decree of the court on the whole merits, and has laid the best foundation for speedily obtaining that decree.
The precise sum that the report allows to Madame de la Batut is one hundred and fifty pounds and nine shillings, to be paid to her annually during her life, with a payment of arrears, to be calculated on this basis, from some period in 1834 ; the exact date of which I have not at this moment, put will mention when I next write.
The court takes a recess next week for the Easter holi- days; these will last until the 17th or 20th of April. The case will be set down for another hearing before the court at as early a day as [ can command after it re-assembles. A decree, I am informed, will be pronounced after this hearing on all the facts as settled by the master—a favorable one, as I hope, for the United States.
By the determination I took respecting the claim of Ma- dame de la Batut, as announced in my last, her professional advisers, knowing that she can now get no more than the report allows her, are interested in co-operating with me towards a prompt decision, instead of resorting to adverse proceedings to prolong or ‘thwart it—a course which they have been more or less pursuing hitherto.
On better grounds than ever I think I may, therefore, flatter myself “that the case approaches its conclusion ; and I will only add that its remaining stages shall be watched by me with a care proportioned to the auspicious results that I believe to be near at hand.
I have the honor to remain, with great respect, your obe- dient servant, Ricuarp Rusu.
Hon. Joun Forsytu, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, April 24, 1838. Sir: The court re-assembled last week, since which I have been doing all that is practicable, by personal calls
56 SMITHSONIAN BEQUEST.
upon the solicitors and otherwise, to urge on the case: and shall continue this course.
Judging by all they say to me, and my own knowledge of the present situation of the case, I have a confident and, I trust, well-founded belief that May will not elapse with- out its being brought to a hearing.
Referring to my No. 22, I now beg leave to state that the 22d of September, 1834, is the date from which the annuity allowed by the master’s report to Madame de la Batut was to commence; and that the arrears to be paid to her, in the event of a decision in favor of the United States, were to be computed from that time to the 22d of March last. This makes three years and six months, so that the sum due on an annuity of £150 9s. would be £526 11s. 6d.
I have the honor to be, with great respect, your obedient servant,
RicuarpD Rusu.
Hon. Joun Forsytu, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, May 3, 1888.
Sir: Lam glad to say that the confidence expressed in my last that a hearing of the case was near at hand has been justified, even sooner than I expected, for it was heard on the 1st of this month, and [am now to have the honor of reporting to you the nature of the hearing.
Mr. Pemberton, our leading counsel, rose, and after re- capitulating the general nature of the case, as formerly heard by the court, proceeded to state that the reference to the master as ordered by the decree in February, 1857, had duly taken place, and that all the requisite evidence had been obtained in England and from Italy and France, as to the facts on the happening of which the United States were to become entitled to the fund bequeathed by Mr. Smithson for the purpose mentioned in his will.. These facts I need not here repeat, being already set forth specially in my No. 9, of the 25th of March, 1837.
Overlooking a volume of matter merely technical in the evidence and report, or now become immaterial to the main points, it will be sufficient to say that it was satisfactorily established by the former that Henry James Hungerford,
eS Se ee ee
SMITHSONIAN BEQUEST. 57
named in the pleadings, was dead; that he died at Pisa, in the summer of 1835; that he was not married at the time of his death, nor at any time; and that he died childless. It was not found how old he was at the time of his death ; nor is that material to any of the issues. As to John Fitall, it was found that he died in London, in June, 1834; and as to Madame de la Batut, the mother of Henry James Hun- gerford, the master, on the evidence before him, found her to have a claim on the estate of Mr. Smithson to the amount of one hundred and fifty pounds and nine shillings a year, payable as long as she lives, and for the arrears of this annual allowance from the 22d of September, 1834, to the 23d of last March.
The establishment of all the foregoing facts will be found to meet the essential inquiries to which the master’s atten- tion was directed by the court’s first decree, as reported in my No. 9. Mr. Smithson’s will having provided, among other things, that on the death of his nephew, Henry James Hungerford, “ without leaving child or children,” the whole of his property should go to the United States; and this primary fact being now incontestably established in due and legal form under the authority of the court, and all other proof required by the pleadings obtained, Mr. Pemberton asked for a deeree declaring the United States entitled to the property. The representative of the attorney general, who was present in court, said that he believed everything had been established, as stated, and that the rules relating to public charities, as applicable to this case, calling for no objection on the part of the Crown, none would be inter- posed—a course that falls in with what was said by the same officer on the occasion of the first decree, as reported in my No» 7:
The counsel of the defendants, Messieurs Drummond, agreed also to what was stated, and had nothing to allege in opposition to the claim of the United States.
The counsel of Madame de la Batut were also content ; the course I took, as made known in my No. 21, having put an end to opposition from that quarter.
All essential facts being at length fully and formally es- tablished, and opposition from all quarters quieted by,the measures I have directed, there seemed no reason why a decree in favor of the United States should not at once be pronounced; but Mr. Pemberton having stated that, in the end, a petition would have to be presented for a transfer of
58 SMITHSONIAN BEQUEST.
the fund to me, as representing the United States, the mas- ter of the rolls said that he would pause upon his final decision until that petition was presented. .
It is thus that the case now stands. It will come on again one day next week, and [ have every ground for be- lieving that my next communication will inform you of a decree having passed declaring the United States entitled to the fund.
Should the forms of chancery require any authentication of my power to receive the fund that Mr. Stevenson can give, he will be ready, at any moment, to give it, as he has assured me; and should his important aid be otherwise needed in anyway before the suit is closed, I shall not scru- ple to call upon him, knowing how zealously he would afford it.
I have the honor to remain, with great respect, your obe- dient servant,
Ricwarp Rusu.
The Hon. Joun Forsytu, Secretary of State.
Richard Rush to John Forsyth.
Lonpon, May 12, 1838.
Sir: [ have great satisfaction in announcing to you, for the President’s information, that the case came on to be heard again on the 9th instant, when a decree was solemnly pronounced, adjudging the Smithsonian bequest to the United States.
Both my powers had been previously lodged with the court—not one only, as stated in newspaper reports of the case ; and no question was raised as to my full authority to receive the money on behalf of the United States, without calling for any further authentication of my powers.
The suit is therefore ended without fear of more delays ; nothing but a few forms remaining to put me in actual pos- session of the fund. These, I have the hope, may be com- pleted within the present month.
The fund is invested in the stocks of this country, of which I shall, in due time, have an exact account. The largest portion is in the three per cent. annuities. The entire aggregate amounts to fully one hundred thousand pounds; and this, according to my present information, exclusive of about five thousand pounds to be reserved by
SMITHSONIAN BEQUEST. 59
the court to meet the annual charge in favor of Madame la Batut during her life; the sum producing it to revert to the United States when she dies.
As soon as the decree is formally made up, the account- ant general of the court will transfer all the stock to me, under its sanction, except the small sum to be reserved as above.
Having no special instructions as to what I am to do with it, my present intention is to sell the whole, at the best time and for the best prices to be commanded, and bring it over in gold for delivery to the Treasurer of the United States, in fulfilment of the trust with which I am charged. But I will reflect further upon the mode of bringing it home, and adopt that which, under all circumstances, may seem best.
The result I announce will, I trust, justify, in the Presi- dent’s eyes, the determination I took to let the allowance made to Madame la Batut by the master’s report stand without attempting to overset it, whatever might have been the prospect or assurance of ultimate success. The longer the suit lasted, the greater were the risks to which it was exposed. <A large sum of money, the whole mentioned above, was to go out of the kingdom, unless an heir could be found to a wandering young Englishman, who had died in Italy at eight or nine and twenty,* and whose mother, never lawfully married, still lives in France. Here was basis enough for the artful and dishonest to fabricate stories of heirship, on allegations of this young Englishman hav- ing been married. That fact assumed, the main stumbling- block to their devices would have disappeared. Fabrica- tions to this effect might have been made to wear the semblance of truth by offers in the market of perjury of Italy, France, and HEngland—incidents like these being familiar to history, whether we take public annals, or those of families; and although the combinations, however craft- ily set on foot, might have been defeated in the end, it is easy to perceive that time and expense would have been required to defeat them. The possibility of their being formed (never to be regarded as very remote while the suit remained open) made it my first anxiety, as it was always my first duty, to have it decided as soon as possible, and to
* Believed to be the age of Henry James Hungerford, though not found in the master’s report.
60 SMITHSONIAN BEQUEST.
take care even that it moved on during its pendency with no more of publicity to its peculiar circumstances than could be avoided. J trust that both these feelings have been discernible in the general current of my letters to you, reporting all the steps I have taken in it from my first arrival.
Need I add, as a further incentive to despatch, had further been wanting, that events bearing unfavorably upon the public affairs of this country, above all upon the harmony or stability of its foreign relations, would not have failed to operate inauspiciously upon the suit, if in nothing else, by causing stocks to fall. They did begin to fall on the first news of the rebellion in Canada, not recovering until the accounts of its suppression arrived. The case is now be- yond the reach of accident, whether from political causes, or others inherent in its nature; and that its final decision thus early has been brought about by the course adopted in February, I am no longer permitted to doubt. Karly may at first seem a word little applicable, after one entire year and the best part of a second have been devoted to getting the decision; but when the proverbial delays of chancery are considered, (and they could hardly have be- come a proverb without some foundation,) it may not, perhaps, be thought wholly out of place. Although neither the counsel] nor solicitors gave their previous advice to the course, it being a point of conduct for my decision rather than of law for theirs, it 1s yet satisfactory to be able to state that they approved it afterwards. They regarded it as best consulting the interests of the United States, on every broad view of a case where a great moral object, higher than the pecuniary one, was at stake, enhancing the motives for rescuing it, at the earliest fit moment, from all the un- avoidable risks and uncertainties of the future. A fortnight has not elapsed since it was said in the House of Commons by an able member that “a chancery suit was a thing that might begin with a man’s life and its termination be his epitaph.”
On the whole, I ask leave to congratulate the President and yourself on the result. A suit of higher interest and dignity has rarely, perhaps, been before the tribunals of a nation. If the trust created by the testator’s will be suc- cessfully carried into effect by the enlightened legislation of Congress, benefits may flow to the United States and to the human family not easy to be estimated, because operating
SMITHSONIAN BEQUEST. 61
silently and gradually throughout time, yet operating not the less effectually. Not to speak of the inappreciable value of letters to individual and social man, the monu- ments which they raise to a nation’s glory often last when others perish, and seem especially appropriate to the glory of a republic whose foundations are laid in the presumed intelligence of its citizens, and can only be strengthened and perpetuated as that improves. May [I also claim to share in the pleasure that attends on relieved anxiety now that the suit is ended?
I have made inquiries from time to time, in the hope of finding out something of the man, personally a stranger to our people, who has sought to benefit distant ages by found- ing, in the capital of the American Union, an institution {to describe it in his own simple and comprehensive lan- guage) FOR THE INCREASE AND DIFFUSION OF KNOWLEDGE AMONG MEN. I have not heard a great deal. What [ have heard and may confide in amounts to this: That he was, in fact, the natural son of the Duke of Northumberland; that his mother was a Mrs. Macie, of an ancient family in Wilt- shire of the name of Hungerford; that he was educated at Oxford, where he took an honorary degree in 1786; that he went under the name of James Lewis Macie until a few years after he had left the university, when he took that of Smithson, ever after signing only James Smithson, as in his will; that he does not appear to have had any fixed home, living in lodgings when in London, and occasionally staying a year or two at a time in cities on the continent, as Paris, Berlin, Florence, Genoa, at which last he died; and that the ample provision made for him by the Duke of North- umberland, with retired and simple habits, enabled him to accumulate the fortune which now passes to the United States. I have inquired if his political opinions or bias were supposed to be of a nature that led him to select the United States as the great trustee of his enlarged and phil- anthropie views. The reply has been, that his opinions, as far as known or inferred, were thought to favor monarch- ical rather than popular institutions ; but that he interested himself little in questions of government, being devoted to science, and chiefly chemistry; that this had introduced him tothe society of Cavendish, Wollaston, and others advantageously known to the Royal Society in London, of which body he was a.member, and to the archives of which he made contributions; and that he also became acquainted,
62 SMITHSONIAN BEQUEST.
through his visits to the continent, with eminent chemists in France, Italy,.and Germany. Finally, that he was a gentleman of feeble health, but always of courteous though reserved manners and conversation.
Such I learn to have been some of the characteristics of the man whom generations to come may see cause to bless, and whose will may enrol his name with the benefactors of mankind.
I have the honor to remain, with great respect, your obe- dient servant,
Ricuarp Rusu.
The Hon. Joun Forsytu, Secretary of State.
<OONe
IN CHANCERY, MAY 12, 1838.
Order on further direc-
US. : 170s.
PRESIDENT OF THE UNITED STATES, DRUMMOND.
AT THE ROLLS, —— ——, Master of the Roils—£3 10s.—76.
Between the President of the ) United States of America,
plaintiff, and ° Charles Drummond and na |
Saturday, the 12th day of May, in the jirst year of the reign of her Majesty Queen Victoria, 1838.
Majesty’s Attorney General, defendants.
This cause coming on the Ist day of February, 1837, to be heard and debated before the right honorable the master of the rolls, in the presence of counsel learned on both sides, his lordship did order that the plaintiff’s bill should be amended, by stating the act of Congress passed in the year 1836; and the said bill being amended in court accord- ingly, upon hearing the same act of Congress, and also the power of attorney granted to Richard Rush, Esq., men- tioned in the said bill as amended, read, his lordship did order that it should be referred to the master to whom the cause of Hungerford vs. Drummond stood transferred, to carry on the account directed by the decree of the 15th day
SMITHSONIAN BEQUEST. 63
of December, 1829; and it was ordered that the said master should inquire whether John Fitall, in the pleadings of this cause named, was living or dead; and if the said master should find that the said John Fitall was dead, then it was ordered that he should inquire and state when he died. And it was ordered that the said master should inquire whether Henry James Hungerford, in the pleadings also named, was living or dead; and if the said master should find that the said Henry James Hungerford was dead, then it was ordered that he should inquire and state when he died, and whether he was married or unmarried at the time of his decease; and if married, whether he left any, and what, children or child him surviving; and the said master was to inquire and state the ages of such chil- dren, respectively, if more than one. And it was ordered that the said master should inquire and state to the court whether Madame de la Batut had any claim on the said testator Smithson’s estate; and, for the better discovery of the matters aforesaid, the usual directions were given, and his lordship did reserve the consideration of all further directions, and of the costs of this suit, until after the said master should have made his report. That, in pursuance of the said decree, the said master made his report, dated the 23d day of March, 1838, which stands absolutely confirmed by an order dated the 27th day of March, 1838, and thereby certified he found that the sum of £53 7s. 6d. was justly due and owing to Messrs. Thomas Clarke & Co., the solici- tors for the defendant Charles Drummond, from the estate of the said testator; and he found that the said John Fitall was dead, and that he died at Bush house, Wanstead, in the county of Essex, on the 14th day of June, 1834; and he found that the said Henry James Hungerford assumed the name of De la Batut, and was known as Baron Kunice de la Batut and died at the Royal hotel, called the Donzelle, situate at Pisa, on or about the 5th day of June, 1835, without ever having been married, and without leaving any issue. And the said master certified that he was of opin- ion and did find that the said Mary Ann de la Batut, in her right, was entitled to a claim on the estate of the said tes- tator, James Smithson, for an interest during the life of the said Mary Ann de la Batut, in a moiety of the annual income or sum of 7,673 livres de rentes, in the report men- tioned, amounting in value to the annual sum of £150 9s. sterling money of Great Britain and Ireland, calculated at
64 SMITHSONIAN BEQUEST.
the current rate of exchange in the city of London, on the Sth day of March, 1438; and he found that the income arising from the said French stock or fund, called livres de rentes, was payable and paid half-yearly by the Trench Government, on or about the 22d day of March and the 22d day of September in each year; and he also found that there was due and owing to the said Mary Ann de la Batut, (or the said Theodore de la Batut, in her right,) from the estate of the said testator, James Smithson, the sum of 13,427 frances 75 centimes, for arrears of the said annuity, from the 22d day of September, 1834, to the 22d day of March, 1838, amounting in value to £526 11s. 6d., sterling © money of Great Britain and Ireland, calculated at the cur- rent rate of exchange in the said city of London, as afore- said; and he found that the annual income or annuity to which the said Mary Ann de la Batut (or the said Theodore de la Batut, in her right) was entitled for her life out of the estate of the said testator, James Smithson, amounting to £150 9s. sterling money of Great Britain and Ireland as aforesaid. And whereas the above named plaintiff and Richard Rush did, on the 8d day of May, 1838, prefer their petition unto the right honorable the master of the rolls, setting forth as therein set forth, and praying that the resi- due of the several stocks, funds, and securities, and cash, respectively, standing in the name of the accountant general of this court, in trust in the cause of Hungerford vs. Drum- mond, and in trust in this cause, which should remain after providing for and satisfying the annual and other payments directed by the will of the said testator, and the costs and charges to which the estate of the said testator had been rendered liable by virtue of the several proceedings and measures aforesaid, or any of them, might be respectively transferred, (the amount thereof to be verified by affidavit,) in the books of the governor and company of the Bank of England, and paid to the petitioner, Richard Rush; and that the boxes and packages mentioned in the said master’s report might be delivered into the custody of the petitioner, Richard Rush. Whereupon all parties concerned were ordered to attend his lordship on the matter of the said petition, when this cause should come on to be heard for further directions; and this cause coming on this present day to be heard before the right honorable the master of the rolls for further directions on the said master’s said report, and as to the measure of costs reserved in the said
SMITHSONIAN BEQUEST. 65
decree, in the presence of counsel learned on both sides: upon opening and debate of the measure, and hearing the said decree, the said report, the said order dated the 27th day of March, the said petition, and the accountant gen- eral’s certificates read, and what was alleged by the coun- sel on all sides, his lordship doth declare that the plaintiff is entitled to the residue of the several stocks, and securi- ties, and cash, respectively, standing in the name of the accountant general of this court, in trust in this cause, and also in trust in a certain other cause of Hungerford against Drummond, in the master’s report mentioned, and the other property of James Smithson, the testator, in the pleadings in this cause named, after providing for the payment here- inafter directed; and it is ordered that the sixty-two thousand seven hundred and thirty-nine pounds nineteen shillings aud two pence bank three pounds per cent. annui- ties, twelve thousand pounds reduced annuities, and sixteen thousand one hundred pounds bank stock, respectively, standing in the name of the said accountant general, in trust in the cause of Hungerford vs. Drummond, and the sum of one thousand seven hundred and sixty-five pounds two shillings cash in the bank, remaining on the credit of the said cause, be respectively carried over in trust in and to the credit of this cause; and the said accountant general is to declare the trust of the said several sums of stock, accordingly, subject to the further order of this court; and out of the said sum of one thousand seven hundred and seventy-five pounds two shillings cash, when so carried over, and the sum of two hundred and four pounds six shillings and eight pence cash in the bank, on the credit of this cause, it is ordered that the sum of fifty-three pounds seven shillings and six pence be paid to Mr. Thomas George Fyn- more; and thereout, also, it is ordered that the sum of five hundred and twenty-six pounds eleven shillings and six pence be carried over, with the privity of the said account- ant general, and placed to the credit of this cause, to an account to be entitled “The account of the annuitant Mary Ann de la Batut;” and thereout, also, it is ordered that the sum of twenty-five pounds be paid to Mrs. Elizabeth Fitall, (as executrix of John Fitall, deceased ;) and it is ordered that it be referred to the master to whom this cause stands referred, to tax all parties their costs of this suit, and relating thereto, properly incurred; the costs of the plaintiff, and of the defendant Charles Drummond, to be
0
66 SMITHSONIAN BEQUEST.
taxed as between solicitor and client; and it is ordered that the amount of such costs, when taxed, be paid out of one thousand three hundred and sixty-four pounds nine shill- ings and eight pence cash, which will then be remaining on the credit of this cause, after the several before mentioned payments, in manner following, that is to say: the costs of the said plaintiff to Mr. Thomas Clarke, his solicitor; and the costs of the defendant Charles Drummond to Mr. Thom- as George Fynmore, his solicitor; and the costs of her Maj- esty’s attorney general, to Mr. George Maule, her solicitor. It is ordered that five thousand and fifteen pounds bank three pounds per cent. annuities, part of the six thousand eight hundred and ten pounds nineteen shillings and seven pence, like annuities, standing in the name of the said ac- countant general, in trust in this cause, and any interest which may accrue on the said sum of five thousand and fifteen pounds bank three pounds per cent. annuities, pre- vious to the carrying over hereby directed, be, in like man- ner, carried over in trust, in this cause, to the separate ac- count of Mary Ann de la Batut, entitled “‘The account of the annuitant Mary Ann de la Batut,” and the said account- ant general is to declare the trust thereof accordingly, sub- ject to the further order of this court. And it is ordered that the interest and dividends thereof, which shall accrue during the life of the said Mary Ann de la Batut, be paid to her during her life, or until the further order of this court, for her separate use, and on her sole receipt, by equal half-yearly payments, on the 22d day of September and the 22d day of March in every year; the first payment thereof to be made on the 22d day of September next. And it is ordered that the said sixty-two thousand seven hundred and thirty-nine pounds nineteen shillings and two pence bank three pounds per cent. annuities, twelve thousand pounds reduced annuities, and sixteen thousand one hundred pounds bank stock, when so respectively carried over, and one thousand seven hundred and ninety-five pounds nineteen shillings and seven pence three pounds per cent. annuities, residue of the said six thousand eight hundred and ten pounds nineteen shillings and seven pence, like annuities, atter such carrying over of part thereof as aforesaid, and the residue of the said sum of one thousand three hundred and sixty-four pounds nine shillings and eight pence cash, after the payments thereout hereinbefore directed, (the amount of such residue to be verified by affidavit,) be transferred
SMITHSONIAN BEQUEST. 67
and paid to Mr. Richard Rush, in the plaintiff’s bill named. And it is ordered that the boxes and packages in the mas- ter’s report of the twenty-eighth day of June one thousand eight hundred and thirty-one, in the said cause of Hunger- ford vs. Drummond mentioned, be delivered into the cus- tody of the said Richard Rush, as attorney or otherwise for the plaintiff; and, for the purposes aforesaid, the said ac- countant general is to draw on the bank, according to the form prescribed by the act of Parliament, and the general rules and orders of this court in that case made and pro- vided; and any of the parties are to be at liberty to apply to this court as they may be advised. He Entered : HR:
Richard Rush to Clarke, Fynmore § Fladgate.
May 31, 1838.
GENTLEMEN: I need scarcely again make known to you what I have so frequently urged in person since the decision on the 9th instant, viz: my anxiety to have the necessary document from the proper office of the court, by which the Smithsonian fund adjudged to the United States may be placed at my disposal. But, whatever the past obstacles which you may not have been able to prevent, I must ask the favor of your renewed and best exertions for causing me to be put in possession of it at the earliest possible day; the more so, as we are now at the end of the month, and my being in- vested with the requisite authority is an indispensable pre- liminary to arrangements for selling the stock advanta- geously in June, prior to my embarkation with the fund for the United States. Your past attention to the case is a pledge to me that you will do all in your power to fulfil my wishes; in which assurance I remain,
Your obedient servant, Ricuarp Rusu. To Ciarkn, Fynmore & FLADGATE.
Richard Rush to John Forsyth.
Lonvon, June 5, 1838.
Str: With all my exertions to have the forms necessary for putting me in possession of the Smithsonian fund com-
68 SMITHSONIAN BEQUEST.
pleted in May, it will be seen, from the enclosed copy of a letter to me trom the solicitors, 1n reply to one I wrote them on the last of May, (a copy of which is also enclosed,) that it is only to-day that all the forms have been finally and fully completed.
After getting this information, I went immediately to the proper department of the accountant general of the court of chancery at the Bank of England, and find that there has been transferred to me the following stock, viz:
1, Sixty-four thousand five hundred and thirty-five pounds eighteen shillings and nine pence in the consolidated three per cent. annuities, commonly called consols by abbrevia- tion.
2. Twelve thousand pounds in reduced three per cent. annuities.
3. Sixteen thousand one hundred pounds in bank stock.
The books at the bank show the above stock to have been regularly transferred to me under the authority of the court of chancery, by the accountant general, as the proper officer of the court, in virtue of the decree reported in my last; and I have accepted the same on the books, on behalf of the United States, by signing my name to a form of accept- ance drawn out under each transfer.
The above stock constitutes, with the exception of five thousand and fifteen pounds, the whole property left by Mr. Smithson to the United States, and now recovered for them, with the further exception of some small sum in cash, to which the solicitors refer as still to come from the account- ant general, but of which I have as yet no statement.
The sum of five thousand and fifteen pounds in consols, it has been decreed by the court is to be reserved and set apart to answer the annuity payable to Madame la Batut ; the principal to revert to the United States on the death of the annuitant.
I have taken care to instruct the solicitors to see that there is due proof at all times of the annuitant being in full life as the half-yearly payments are made to her.
Although the aggregate of the stock transferred as above is under one hundred thousand pounds in its nominal amount, there is no doubt whatever but that the sale of it will yield more than that sum.
The transfer by the accountant general was made to me only to-day; and this is so far fortunate as that it could not otherwise have been effected as to the principal part of the
SMITHSONIAN BEQUEST. 69
stock (viz: the three per cent. annuities) until the 17th of July, the books closing after to-day for the transfer of this species of stock until the date I mention.
The important operation of selling the stock now remains to be conducted, and shall claim my careful attention. I design to go into the city to-morrow, with a view to adopt- ing the earliest measures for this purpose; taking advice, in aid of my own judgment, for so managing the sales as best to promote the interests of the United States.
I continue to think that the best mode of bringing home the money will be in gold, in English sovereigns. Ex- change is low, and so will insurance be at this season; and on all accounts it seems to me the preferable mode in which to realize the fund, and deliver it over to the Treasurer of the United States on my arrival, in final discharge of the trust confided to me.
I shall hope to make some report of my steps by the next packet; and in the meantime have the honor to remain, with great respect, your obedient servant, RicHarD Rusu, The Hon. Jonn Forsytu, Secretary of State.
Clarke, Fynmore § Hladgaie to Richard Rush.
43 CRAVEN STREET, StRAND, June 5, 1838.
Dear Sir: We beg to assure you, in answer to your favor of the 31st of May, that our endeavors to get through the forms necessary for winding up the suit, and putting you into. possession of the Smithsonian fund, have not been less urgent and unremitting than have been your applications to ourselves upon the subject. The circumstance of the shutting of the offices of the court of chancery for the holi- days, at a period when they are ordinarily open, and some other petty difficulties not within our control, have, how- ever, prevented our getting through all the forms in the month of May, as we hoped to have been able to do.
We have now, however, the satisfaction to announce to you that everything is complete, and that the accountant general of the court of chancery has transferred into your name the several sums following :
£64,585 18 9 consols.
12,000 0 O reduced annuities, 16,100 0 O bank stock.
70 SMITHSONIAN BEQUEST.
These sums are entirely at your disposal, free from the control of the court of chancery.
There will be, in addition, a small cash balance, which, in the course of a few days, you will be able to receive of the accountant general.
We are, very faithfully, your obedient servants,
CriarkE, Fynmore & Fuapgats.
Ricwarp Rusu, Esq.
Richard Rush to John Forsyth.
Lonpon, June 13, 1838.
Srr: Iam glad to be able to report to you that the sales of the stock are going on well. ,
The whole of the consols have been sold, and part of the bank stock.
A portion of the consols, viz: £4,535 18s. 9d. was sold ou the 6th instant for cash, at 943. This was considered a high price; more could not have been obtained for cash.
My first desire was to sell all the stock for cash, and im- mediately, that [ might the sooner close the whole opera- tion and get away; but such a course I soon found, on the best information and advice, would have been injudicious.
To have attempted a sale of the bank stock, for example, all at once, would probably have depressed the market for this particular species of security, and occasioned a loss of several hundred pounds. The reason is, that the dealings in it, contradistinguished from those in the great national stocks, are limited, and confined to a very few persons on the stock exchange. The course which prudence dictated was, to sell it out in small parcels, under careful instruc- tions to the broker on each day of the sale.
As it thus became necessary, in order to guard against loss, that I should allow myself some little latitude as to time in selling the bank stock, it opened a door the more properly for disposing of the other stock on time, at a short interval; the more especially if by that mode it could be made to produce a larger sum.
Accordingly, on the same day that I disposed of a portion of the consols for cash, which served also as a feeler to ascertain the cash price, I caused the whole of what re- mained of this stock, viz: £60,000, to be sold on time for
SMITHSONIAN BEQUEST. ia
the 6th July, that being the day after dividend day, which falls on the 5th of July.
It gives me great satisfaction to state that this sale was effected at 95%.
Up to the day when it was effected, consols had not brought so high a price, as far as I have yet been able to examine the London Mercantile Price Current, for nearly eight years before.
Two sales have been made of the bank stock, viz: one of £3,000, the other of £5,000; the former at 2042, the latter at 2042; both sales being for the 30th instant, the money payable and stock to be delivered on that day. Should the remainder be sold at these rates, or near them, it will be seen that the bank stock, though in nominal amount only £16,100, as stated in my last, will yield upwards of £30,000.
In the i important operations of selling the stock, I am re- ceiving the most beneficial aid from the constant advice and active daily co-operation in all ways of our consul, Colonel Aspinwall, whose long residence in London and ample op- portunities of knowing the mysteries of its great stock market, and the minute details of doing business in it, have given him the ability to aid me. It is thus that Lam selling to every advantage.
None of the three per cent. reduced annuities have yet been sold. We are watching the market with a view to the most favorable moment for. disposing of this part of the stocks,
The fortunate point of time was hit for selling out the consols. They have now sunk a little, and, with the excep- tion of momentary intervals, would not have brought as much since the 6th instant as I obtained.
From the sales made, it is now I think certain that the whole stock will yield from one hundred and three to one hundred and five thousand pounds, apart from the five thousand and fifteen to be retained here during the life of Madame la Batut..
From the successful manner in which they are proceed- ing, it seems clear.also, at the present time, that the fund, independent of the accumulations of interest, will be richer in the state in which I shall deliver it over to the United States, than it was in the summer of 1835, when their right to " first attached by the death of Henry James Hunger- for¢
72 SMITHSONIAN BEQUEST.
Left to myself to make the most of the fund after recover- ing it from chancery, which depended so much on the sale of the stock, it has not been without full consideration that I did not call on the Messrs. Rothschild to sell it all, for which their experience and situation here, besides being the bankers of the United States, might have seemed to point them out. But, first, they would, I take for granted, have charged a commission of one per cent., to which I could not have objected, as it is allowed here, apart from the broker’s commission, and by the chamber of commerce at New York on effecting sales of stock; whilst Colonel Aspin- wall charges me no such commission, and I much desired to save the amount of it to the fund, if, with his efficient aid, I could conduct the sales confidently and advanta- geously myself. But, secondly, if the former, as the bankers of the United States, would have performed the task with- out charge, I should not have been the less disinclined to place it in their hands, having had no instructions to do so, and, being without these, I could only exercise my best dis- cretion. They are, as I in common with others here sup- pose, very large dealers in stock on their own account, as occasion may serve; and hence may naturally be supposed to desire sometimes a rise, sometimes a fall, in these ever- fluctuating things. With more than a hundred thousand pounds to throw upon the market, I therefore thought it best, acting on a general rule of prudence in all business, to keep the operation of selling entirely clear of every quarter where any insensible bias might, by possibility even, exist to a course other than that which would regard alone the Smithsonian fund.
I design to leave no sale outstanding after the 6th of July. The subsequent steps, however, for obtaining the gold, and those necessary in various ways for shipping it, will render it impracticable for me to embark with it in the packet which sails from Portsmouth on the 10th of July, that packet leaving London always on the 7th. But I will fol- low in the succeeding one of the 20th of July, which leaves this port on the 17th, before which time I trust that every- thing will have beer fully and satisfactorily closed, as far as the trust can be closed here.
I have the honor to remain, with great respect, your obedient servant,
Ricuarp Rusu.
The Hon. Joun Forsytu, Secretary of State.
SMITHSONIAN BEQUEST. To Richard Rush to John Forsyth.
Lonpvon, June 26, 1888.
Str: Since my No. 27, the sales of the stock have been going on from time to time, and at length are finally closed.
They have all been good—perhaps I may say fortunate. The prices have been high, as compared with the state of the stock market for severai years past; and I am con- fidently informed that, from the time the stock came under my control until I sold it all, no higher prices were ob- tained by any private seller than I obtained.
The whole of the reduced three per cent. annuities (£12,000) sold at 94. This description of stock is never ag high as consols, but 94 is reputed nearly, if not quite, as good a price, in proportion to its general value in the English stock market, as the 954 I obtained for the consols.
Of the bank stock unsold at the date of my last, (viz: £8,100,) I obtained 205 for £5,000, and 2053 for the re- maining £3,100. Both these prices, it will be perceived, are higher than the former ones I obtained for this stock.
The entire amount of sales has more than realized the anticipations held out in my No. 27, having yielded an ag- gregate of rather more than one hundred and five thousand pounds, as will be seen when I come to render a more par- ticular statement. The two days on which I am to make all the transfers are the 30thof this month and 6th of July. The money will all be received simultaneously.
Immediately afterwards I shall take measures for convert- ing the whole into English gold coin, having finally deter- mined that this is the proper mode in which to bring the money to the United States, under the trust I have in hand. It appears to me the right course in itself, independent of any question of exchange, considering the peculiar object and terms of the law of Congress of the Ist of July, 1836, under which [ am acting. But by the rate of exchange, as quoted at New York under the last dates, there would be a gain to the United States, by the best calculations I can now make, (though I am aware how exchange is ever liable to fluctuate,) of upwards of a thousand pounds on bringing over the money in gold rather than remitting it in bills. This would help to cover the commissions on shipping the tormer, effecting insurance upon it, and paying the premium of insurance, as well as charges for freight and those that
74 SMITHSONIAN BEQUEST.
have been incurred on MecNias the stock. All these opera- tions demand mercantile agencies and assistance, to which I am inadequate in my own person, beyond superintending them and seeing that they are rendered justly. I will take care that these ¢ expenses are kept within limits as moderate as possible, consistently with having the business regularly done according to mercantile usage in operations “of the same nature, so that the fund, in bearing its own unavoid- able expenses, may be encroached upon as little as pos- sible.
I have not yet been able to get from the solicitors a state- ment of the costs of the suit, but will not fail to obtain it before I embark. The final payments under this head, and those I shall be called upon to make for services enumerated above, can scarcely be completed but at the last moments of my stay; hence I may not be able to transmit an account of them to you until I arrive at New York, where also the freight will have to be paid.
In reporting to you the final decision of the court, L omitted to mention some particulars not at first accurately known to me, but necessary to be now stated, viz: £526 11s. 6d. were decreed to be paid out of the fund to Madame la Batut, as her arrears; £25 as arrears found to be due to John Fitall, the annuitant under the will; and, lastly, £58 7s. 6d. as due for the use of certain warehouse-rooms 1n London. The two first items explain themselves, after all L have written. The third has reference to some personal property left by the testator, contained, as I understand, in thirteen boxes or trunks deposited in the warehouse-rooms specified. [have had no opportunity as yet of examining the contents of these boxes, but am informed that they consist chiefly of books unbound, manuscripts, specimens of min- erals, some philosophical or chemical instruments, and a few articles of table furniture. The contents of the whole are supposed to be of little intrinsic value, though parts may be otherwise curious. As all now belong to the United States, under the decree of the court, I shall think it proper to have them shipped when the gold is shipped, paying all reasonable charges.
Taving more than once spoken of the possibility of ficti- tious claimants starting up for the Smithsonian bequest, perhaps I may here be allowed to mention what the solicitors have informed me of, viz: that since the decision, two claim- ants have presented themselves at their office, neither having
i {
SMITHSONIAN BEQUEST. 75
any connexion with the other. When the decision was pro- nounced, the sum recovered was also proclaimed in the London newspapers, which had probably awakened these claimants into life. The solicitors add that one of them desired, somewhat importunately, to know if the case could not be reheard in court? It is needless to remark that he was told he was a little too late in his application.
I will use this opportunity—the last [ may perhaps have of writing to you before I embark, from the engagements likely to press upon me in getting the fund ready for ship- ment and clearing off all necessary expenses—to say a word of our professional advisers. Of the counsel I selected it is unnecessary for me to speak: their established reputation in the highest department of their profession putting them above any testimonial from me. But of the solicitors, as they move in one of its less conspicuous fields, I will barely take the liberty of saying that more attention, diligence, discretion, and integrity could not, I believe, have been ex- erted by any persons than they have shown throughout the whole suit, from first to last. Could they ever have for- gotten what was due to the United States and to themselves, in the desire to eke out a job, nothing is plainer to me, from what has been passing under my observation of the entan- glements and delays natural to a heavy suit in the English court of chancery, than they might have found opportunities in abundance of making this suit last for years yet to come.
I have the honor to remain, with great respect, your obe- dient servant, Ricwarp Rusu.
The Hon. Joun Forsytu, Secretary of State.
Clarke, Fynmore ¢ Pladgate to Richard Rush.
CRAVEN STREET, July 5, 1838.
Dear Sir: At the time of the decease of the late Henry James Hungerford, Esq., which happened on the 5th June, 1835, there was standing in the name of the accountant general of the court of chancery, to the credit of the cause Hungerford vs. Drummond, the several sums following, Viz:
£62,739 19s. 2d. bank £3 per cent. annuities ;
12,000 0 0 £8 per cent. reduced annuities ; 16,100 0 O bank stock.
And if these several funds had then been sold, they would have realized the sum of £102,991, or thereabouts; but
76 SMITHSONIAN BEQUEST.
owing to the proceedings which were necessary to be insfi- tuted in the court of chancery, the funds were not trans- ferred into your name until the 5th June, 1838. We are happy to inform you that, notwithstanding this delay, no loss has been occasioned to the United States, as, according to the market prices of the funds on the last-mentioned day, the funds were then worth £103,888, being an excess of £897 beyond the value on the Sth June, 1835, the date of Mr. Hungerford’s death.
The whole of the costs of the chancery suit amounted to £723 7s. 11d., so that the increase in the value of the funds was sufficient to pay the whole of these costs, and leave a surplus of £173 12s. 1d.
In making out the above statement, the dividends upon the funds have not been taken into account, but the United States receive them in addition to the original fund.
The United States do not, however, receive the whole amount of such dividends now, as a portion of them was invested in stock, of which £5,015 has been appropriated to answer an annuity of £150 9s. to Madame de la Batut, upon whose decease the same will become the property of the United States.
The sums in court, at the last hearing of the cause, were as follows, viz:
£62,789 19s. 2d. bank three per cent. annuities ; 6,810 19 7 like annuities ; 12,000 0 0 reduced annuities ; 16,100 0 O bank stock ; 1,765 2 0 cash; 204 6 8 cash; These sums have been appropriated as follows, viz: £62,739 19s. 2d. bank £3 per cent. annuities ;
1,795 19 7 part of £6,810 19s. 7d. like annuitfes; | Trans’d into wee the name of
£64,535 18 9 bank 3 per cent. annuities ; R’d. Rush, 12,000 0 O reduced annuities; | Esq. 16,100 0 bank stock ;
0
5,015 0 0 reduced bank annuities, residue of £6,810 19s. 7d. retained in court to answer annuity to Madame de la Batut;
paid to plaintiff's solicitors for their costs ;
paid to defendants’ solicitors for costs ;
paid to plaintiff’s solicitors for warehouse-room, paid by them to Messrs. Deacon ;
406 3 0 5 6 526 11 6 paid to Madame de la Batut for arrears of her an- 0 8 7
162 15
53 (7
nuity ; 25 0 paid to Mrs. Fitall for arrears of annuity ; 70 7 paid to solicitor for defendant the attorney general, for costs ; 725 3 balance of cash paid to R. Rush, Esq.
SMITHSONIAN BEQUEST. Ti
Herewith we send you a complete copy of our bill of costs, amounting altogether to £490 4s. 10d.; and we have re- ceived the following sums on account of costs, viz:
£ 8. ad.
April. 10, 1887, of Richard Rushwiisq2 ss. -e sos 200 4 0 June 11, 1838, of accountant general, for plaintiff’s taxed costs__._ 406 3 0
606 7 0
The latter sum exceeding our bill of costs by £116 2s. 2d., leaves us in debt to the United States to that amount, for which we beg leave to enclose our check.
We may here remind you of the information on the sub- ject of costs, which we had before given you verbally, viz: that the court allows against the fund. certain ordinary costs; and such costs have been received by us from the accountant general, as before stated. In consequence, how- ever, of the. line of conduct adopted by us, under your own directions, to ensure a speedy and successful termina- tion of the suit, some small extra costs have been incurred beyond what are considered ordinary costs.
We have, as you requested, had a lock placed upon the trunk* in our possession, having previously deposited therein the several articles of plate and other matters, which we mentioned to you as being in our possession, and of which articles we enclose you a list.
We are, dear sir, your faithful and obedient servants, CLARKE, FyNMORE & FLADGATE.
P.S. We also return to you the memoranda which you left with us as to the stock.
Clarke, Fynmore & Fladgate to Richard Rush.
CRAVEN Street, July 11, 1838.
Dear Sir: We have made the affidavit which you re- quired to verify the bill of costs, and which we now return to you.
We also send you the original order on further directions, under which the several transfers of the funds have been made into your name. This order has the initials of the registrar, as also of the entering clerk, placed at the foot of
* One of the 14 mentioned in my despatch No. 52,
78 SMITHSONIAN BEQUEST.
it; this being the mode adopted in the court of chancery to show the authenticity of their orders. i
We also send you a transcript from the books of the ac- ecountant general, certified by Mr. Lewis to be a true copy, Mr. Lewis being the clerk whose duty it is to make such transcript. The sum of £70 7s. 8d., appearing still to re- main on the general credit of the cause, is reserved for the costs of the attorney general, and will be paid ofer to his solicitor upon his applying for the amount; and the cash standing to the account of Mrs. de la Batut is for the arrears of her annuity, and will be paid to her.
We have seen Mr. Deacon upon the subject of his charge for warehouse-room beyond the 24th ultimo, and have paid him for:the same £2; and we have also paid 4s. 6d. for swearing to our bill of costs, which is the whole of our demand against you.
Mr. Deacon informed us when we saw him that he had in his possession a painting belonging to the estate, and which he promised should be sent over to your house, and which we presume he has done; but should he not have done so, perhaps you will be good enough to apply to him for it.
We will thank you to send us an acknowledgment for the different boxes we have handed you.
We are, dear sir, your very faithful servants, CLARKE, Fynmore & FLADGATE. Ricuarp Rusu, Esq.
bt
SMITHSONIAN BEQUEST.
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80 SMITHSONIAN BEQUEST.
The President of the United States of America vs. Drummond. The account of the annuitant Mary Ann de la Batut. Dr. Cr.
1838. June 2. By