(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 Drummond and His Majesty's Attorney-General are defendants, it is amongst other things referred to Nassau William Senior, 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 kingdom of Naples, 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 1st 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 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.

LONDON, April, 28, 1837.

SIR: In inclosing 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 newspapers 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 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 counsel, senior and junior, solicitors, clerks, and everybody connected with the courts, and officers attached to them, under the extremely artificial and complicated judiciary systems 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, RICHARD RUSH.

Hon. JOHN FORSYTH,

Secretary of State.

Daniel Brent to Richard Rush.

UNITED STATES CONSULATE,

Paris, May 3, 1837.

SIR: On the 7th of August last I 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 supposed 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.

Do. avocat, M. Delagrange for his services.. My own receipt for postages..

Total....

Francs.

226. 25

40.00

6.00

372.25

I would feel obliged to you if you would have the goodness to provide, at as early a day as may suit your convenience, for my reimbursement, by furnishing me with a bill on Paris for their amount; and, in the meantime, I have the honor to be, sir, your obedient, humble servant,

RICHARD RUSH, etc., London.

DANIEL BRENT.

Richard Rush to Daniel Brent.

LONDON, PORTLAND HOTEL, 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 272.25 francs 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 examine it and if I deemed it just and the amount reasonable 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 expenses incidental to the prosecution of the claim of the United States to the bequest of Mr. Smithson.

In reply, I had the honor to inform the Secretary, by letter dated the 9th of January, that it was still a point unsettled 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 Secretary, which you have received, were written after the receipt of mine of the 9th of January, and contains an express 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 appropriation for the full prosecution 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, RICHARD RUSH.

DANIEL BRENT, Esq.,

Consul of the United States, Paris.

Richard Rush to John Forsyth.

LONDON, May 18, 1837.

SIR: I 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 payment, your instructions appearing to have left me a discretion over the subject. I transmit 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 await 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 1st 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 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 adjudged 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 established, 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 troublesome person, and seems to have unreasonable expectations, which, however, will be carefully scrutinized and properly controlled. I have the honor to remain, with great respect, your obedient servant,

Hon. JOHN FORSYTH,

Secretary of State.

RICHARD RUSH.

Clarke, Fynmore & Fladgate, to Richard Rush.

No. 43 CRAVEN STREET, June 9, 1837. 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. 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 America, that his and Madame de la Batut's children in France should have an allowance until the age of 22 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 particularly to the following point, which may have some claim to consideration: M. de la Batut urges that young Hungerford, 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 can not 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 subject 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 considered 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 evidence which was completely within his knowledge; and we offered, if he would furnish us with and depose to the particulars 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 depositions 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. Drummond we might have promised him, but the pledge required from you we knew to be out of the question; and as in the meantime 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 declining to make terms with an individual whose style of conduct 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, etc.,

RICHARD RUSH, Esq.

CLARKE, FYNMORE & FLADGATE.