NO. 182I " RICHARD RUSH — ABLER 239 



sary to file a bill, in the name of the President of the United States, 

 against the testator's executors, declaring the United States entitled 

 to the fund. Mr. Rush explains the technical usages of the English 

 bar, which require that his dealings with counsel should be through 

 the solicitors ; but, in spite of all this eminent legal counsel, he seems 

 to have taken a hand in the law affairs himself, for he points out to 

 counsel, on its being recommended that the bill be drawn in the name 

 of the President, that there was a possibility of a temporary vacancy 

 occurring in the Executive power under our Constitution. The coun- 

 sel, however, decided that this did not alter the opinion, and they 

 thought it would not answer to bring a suit in the name of the United 

 States alone, whatever the provisions of our Constitution on this 

 point. 



Under date of December 20, 1836, Rush writes to the Secretary 

 of State that, while the Smithson case continues in the proper train 

 with every advantage that he has been able to give it, it has not yet 

 come to its first hearing before the Court of Chancery. 



On January 9, 1837, he writes cautiously: "We must hope that 

 the bequest of Mr. Smithson will ultimately be adjudged to the 

 United States ;" that there is a complication in the matter, "and we 

 dare not with confidence affirm that the decision will be favorable 

 prior to its taking place." 



On February 2, 1837, he writes that the case had its first hearing 

 in the Court of Chancery on the day before, and the results so far 

 are favorable to the establishment of the claim of the United States ; 

 that the Attorney-General was not present in court personally, but 

 was represented by Mr. Wray, who in effect abandoned all oppo- 

 sition on the part of the Crown ; that the court decreed that the 

 case be referred to one of the masters in chancery. He further states 

 that counsel also appeared for Messrs. Drummond, who were the 

 executors, and made a little show of opposition ; but he adds, "as 

 their clients are, in fact, nothing more than stakeholders," they will 

 offer, he believes, no serious opposition. Mr. Rush closes his long 

 report of the first proceedings in court with the statement that had 

 the Attorney-General interposed a claim for the Crown under the 

 law of escheats, he had contemplated drawing up a counter-repre- 

 sentation on behalf of the United States, founded on the public 

 objects of Mr. Smithson's will, and have it presented to the British 

 Government, through the American Minister ; but that all necessity 

 for such action was now at an end, by the course which the law 

 officers of the Crown had pursued, and that he did not think that 

 any such application appeared at present to be needed, either for the 

 purpose of justice or expedition. 



