his name will, I apprehend, be necessary; and as the suit will involve some expense not connected with the contingent fund of the legation, your instructions upon this branch of the subject will likewise be desirable.

I am, sir, with great respect, your obedient servant,

JOHN FORSYTH, Esq.,

Secretary of State of the United States, Washington.

John Forsyth to Aaron Vail.

A. VAIL.

DEPARTMENT OF STATE, Washington, September 26, 1835.

66

SIR: I have the honor to acknowledge the receipt of your dispatch of July 28 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 Washington an institution for the increase. and diffusion of knowledge among men," and to inform you that your letter and the papers which accompanied it have been submitted to the President, who has determined to lay the subject 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 acquaint the solicitors who apprised you of the existence of Mr. Smithson's will.

I am, sir, your obedient servant,

AARON VAIL, Esq.,

JOHN FORSYTH.

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 London, deceased. Your power of attorney or commission is herewith remitted, with an authenticated copy of the act referred to annexed to it. 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 accom

panying act of Congress, to execute to and deposit 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 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 inclosed, limited to $10,000, being the whole amount appropriated by Congress for that object.

I am, sir, your obedient servant,

RICHARD RUSH, Esq., etc.

JOHN FORSYTH.

Richard Rush to Clarke, Fynmore & Fladgate.

PORTLAND HOTEL, GREAT PORTLAND STREET, LONDON, September 14, 1836. GENTLEMEN: Referring to your correspondence with the chargé d'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. I should 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,

Messrs. CLARKE, FYNMORE & FLADGATE,

Solicitors, Craven Street, Strand.

RICHARD RUSH.

Richard Rush to John Forsyth.

LONDON, September 24, 1836.

SIR: I had the honor to inform you on the 31st of August of my arrival at Liverpool, having embarked in the first ship that sailed

from New York after my letter of the 1st of August informing you that I was ready.

I reached this city the early part of the present month, and as soon as circumstances would permit entered upon the duty which the President's power of attorney devolves upon me.

Towards asserting and prosecuting with effect before the legal tribunals of England the claim of the United States to the legacy bequeathed to them by James Smithson, of London, to found at Washington an institution "for the increase and diffusion of knowledge among men," the first consideration which seemed to present itself was the selection of fit legal characters here, through whose aid and instrumentality the incipient steps could alone be judiciously marked out or adopted. In a country where the profession of the law is known to be so subdivided as in this, I regarded it important that not only the counsel whose services it may ultimately become necessary to engage, but the solicitors to be approached in the first instance, should have a standing suited to the nature of the case and the dignity of the constituent I represent. The letter addressed you in July, 1835, by the late chargé d'affaires of the United States at this court, left little doubt, indeed, that Messrs. Clarke, Fynmore & Fladgate 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 connection 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 inclosed. This is a season of the year when professional and official business of every kind is much at a pause in London, and those who conduct it dispersed. It was not until the 20th that I was enabled to command an interview with these gentlemen, when two of them, Mr. Clarke and Mr. Fladgate, waited upon me, the latter having previously called, after receiving my note, to mention the absence of his associates from town. With these two I had the preliminary conversation suited to a first interview. They chiefly went over the grounds stated in their note of the 21st of July to our chargé d'affaires, Mr. Vail, in some points enlarging them and giving new particulars. They said that James Smithson, the testator, died in June, 1829; that his will was proved in the prerogative court of Canterbury by Mr. Charles Drummond, one

of the executors and one of the banking house of that name in London; that Henry James Hungerford, the testator's nephew, to whom was bequeathed the whole of his property for life, subject to a small annuity to another person, brought an amicable suit in chancery against Messrs. Drummond, the executors, for the purpose of having the testator's assets administered under the direction of the lord chancellor, in the course of which suit the usual orders and decrees were made, and by its issue assets ascertained and realized to the value of about one hundred thousand pounds sterling; that Mr. Hungerford, who resided out of England, received, up to the time of his death, the dividends arising from the property, which consisted of stock in the public funds, and that he died at Pisa, on the 5th of June, 1835, of full age, though still young, without having been married, and, as far as is yet known, without illegitimate child or children; that the assets of the estate are now invested in the name of the accountant-general of the court of chancery, subject to the further disposition of the court; that the will of Mr. Smithson having made the United States. the final legatee on Mr. Hungerford's death without child or children, legitimate or illegitimate, the facts seem to have happened under which their right will attach; but the solicitors continue to think that a suit or legal proceedings of some nature, to which the United States must be a party, will have to be instituted in the court of chancery in order to make valid their right and enable them to get possession of the fund, now in the hands of the court and subject to its judgment. The foregoing formed the main purport of their communication. They added that the mother of Henry James Hungerford, who is still living and married to a Frenchman of the name of De la Batut, has put in a claim to a part of the property; but as the claim is small, and not likely to come to much, the mother of Mr. Hungerford not having been married to his father, it is scarcely necessary at this time to detail the circumstances.

I asked at what time from the present the earliest sitting of the court of chancery would be held. They replied in November. It will be my object to get the fund for the United States without a lawsuit in chancery of any kind, if this be practicable; and toward an end so desirable my further reflections and measures will, for a while, be directed, taking care that I do not lose the advantage of all proper applications at the first term of the court for whatever form of suit or other legal proceedings may be found indispensable.

I have nothing further of any importance to communicate at this juncture. I delivered to the minister of the United States, Mr. Stevenson, the letter from the Acting Secretary of State of July 27, requesting his good offices in behalf of the public object with which I am charged, should they be needed; and I can not close this letter without adding that I have already received cooperation from him that has

been useful, and which gives earnest of the zealous interposition of his further aid, should it be required.

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

Hon. JOHN FORSYTH,

RICHARD RUSH.

Secretary of State.

THE CASE STATED BY MR. RUSH.

The testator died at Genoa on the 27th day of June, 1829, and on the 4th of November in that year the will was proved in the prerog ative court of Canterbury by Mr. Charles Drummond, one of the banking house of that firm, mentioned in the will.

Soon after his death, an amicable suit was instituted in the court of chancery by Henry James Hungerford, his nephew, against Mr. Charles Drummond, as executor, for the purpose of having his assets administered under the direction of that court. The usual orders and decrees were made in the suit, and assets realized to the amount of about one hundred thousand pounds sterling in value, which are now invested in the public funds, and are standing in the name of the accountant-general of the court of chancery, to the credit of the cause of Hungerford . Drummond, and applicable to the trusts of the will.

Mr. Hungerford, who resided out of England, received the income arising from the testator's property up to the time of his death. This took place on the 5th of June, 1835, at Pisa.

He was never married, and died without leaving any illegitimate children or child.

The events have therefore happened, by which the right of the United States of America is considered to have attached, as the residuary or final legatee under this will.

In July 1835, their chargé d'affaires at this court imparted official information to the Secretary of State, at Washington, of the preceding facts, who laid them before the President, with a copy of the will and other papers that were transmitted.

The President not having authority under his general executive powers to take any steps for accepting the trust or obtaining the fund, communicated the papers to Congress on the 17th of December of that year, with a view to such measures as that body might deem necessary. Congress, acting on the ground that the bequest to the United States was valid, and that it would not be incompatible with their dignity to accept the fund as trustees, for an institution to be founded at Washington, for a purpose so broad and benevolent, passed, on the