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National Intelligencer
May 2, 1836


On motion of Mr. PRESTON, the Senate took up for consideration the following joint resolution:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the President be, and he is hereby, authorized to constitute and appoint an agent or agents, to assert and prosecute, for and in behalf of the United States, and in their name or otherwise, as they shall be advised, in the court of chancery or other proper tribunal of England, the claim of the United States in the legacy bequeathed to them by the last will and testament of Mr. JAMES SMITHSON, late of London, deceased, for the purpose of founding at Washington, under the name of the Smithsonian Institution, an establishment for the increase and diffusion of knowledge among men; and to empower such agent or agents so appointed to receive and grant acquittances for all such sum or sums of money, or other funds, as may or shall be decreed or adjudged to the United States, for or on account of the said legacy. And to the end that the said claim may be prosecuted with effect, and necessary expenses in prosecuting the same defrayed, the President be, and he is hereby, authorized to apply to that purpose any sum, not exceeding five thousand dollars, out of any money in the Treasury not otherwise appropriated. And the faith of the Government of the United States is hereby pledged, that any and all sums of money which shall be received for or on account of the said legacy shall be applied to the purpose of founding and endowing at Washington, under the name of the Smithsonian Institution, an establishment for the increase and diffusion of knowledge among men.

A discussion took place on the resolution, which was participated in by Mr. PRESTON, Mr. LEIGH, Mr. CLAYTON, Mr. CALHOUN, Mr. SOUTHARD, Mr. BUCHANAN, Mr. DAVIS, and Mr. WALKER.

The debate to which this resolution gave rise occupied nearly the whole day’s sitting. It was contended, on the one hand, that it was not competent to this Government, neither was it expedient and proper, that it should appear as a suitor in an English Court of Chancery to assert its title to the legacy in question; and that to become the object of private charity was not compatible with national honor nor the fitness of things. Such a bequest as this was a bounty, and the acceptance of it would be a degradation; and, if we had any regard to our own dignity, we should not descend to the humilation of receiving it. Whatever it was desirable to have done for the increase of the happiness, prosperity, and intelligence of the People, (supposing it not in violation of the Constitution,) we had the power and abundant means of doing. If, however, it was not desirable, not constitutional, not within the sphere of our competence, no individual could, by any act of his, make it so.

Whether Congress has the power of appropriating money from the public treasury for the purpose of establishing a national seminary of learning; had long been a vexed question: discussions of the question, however, had usually resulted in the negation of such power. How could the legacy of Mr. Smithson confer it?

If we had a right to receive and appropriate a legacy for the purposes mentioned in this will, then Congress could receive and apply money from private individuals for any purposes whatever-the abolition of slavery in the District of Columbia, for instance.

It was also a question of doubt and difficulty whether it would be within the competency of the Government of the United States to appropriate any portion of the general revenue in order to enable us to obtain the legacy.

The report of the Committee on the Judiciary advocates the right of Congress to assert its claim to this property as "parens patriae" of this District. In so doing it avoids the real question, and misconceives the facts. This District was divided into corporations, and if the legacy had been willed to either of these corporate bodies, Congress undoubtedly could execute its office of trustee, and direct and control the application of the charity. But this was a bequest to the Congress of the United States. We were appointed trustees not for Washington, Georgetown, or Alexandria, but for all mankind. The world was the cestui que trust.

In reply, it was contended that the United States could enforce a claim for a bequest for charitable uses in the English Court of Chancery. The principle has been repeatedly so determined. As to its not comporting with our dignity to appear there as a suitor, little punctilios on the score of our national importance should not prevent us from doing what the comity of nations authorized us to do. It was a right which was granted by the express terms of our Constitution to all foreign Governments.

As so the next objection, the power and policy of erecting a national college, by appropriations from the public Treasury, no such question was involved in the consideration of the present subject. The $500,000 left to the United States by this gentlemen’s will was not, and never could become any portion of its revenue. The United States could claim and take it as trustees for a specific purpose, but not for their own benefit.

It was further contended that, as "parens patriae" of the District, Congress might appropriate such sums as would be necessary to prosecute the claim with effect. In exercising its powers and performing its duties as the local legislature of these ten miles square, Congress had no pecuniary means to defray its expenses, but such as were afforded by the general revenue. Congress made such appropriations every day for paying the salaries of the Judges of the District. Congress had established an orphans’ court; appointed a commissioner; provided for the administration of justice; passed an act this very session for the maintenance of a penitentiary in this District; for expenses for all which the exchequer of the country supplies the money.

The last chapter of the 3d volume of Blackstone was cited to show what the King, as "parens patriae," had exclusive power over the estates of ideots and lunatics, and in relation to all bequests made for charitable uses. Some such power belonged to every Government. Every State in the Union exercised it; and so could Congress in this District, as its local legislature, or "parens patriae." It had precisely the same authority that Maryland and Virginia had before the cession. If those States had control over the estates of ideots and lunatics, and could pass a law for carrying into effect the provisions of a will like this; that power has been transferred to Congress by act of cession by those States.

By the terms of the bequest, this college is to be erected "for the increase and diffusion of knowledge among men"; that is, for the benefit of all mankind. The technical exception which had been taken to this phrase ought not to be admitted. Every literary institution which sent abroad useful, learned, and virtuous men, was a benefit, as well as an honor and blessing to the whole world.

It was hoped, therefore, that the welfare, happiness, and intelligence of this District, and of the country at large, would be increased by having the benevolent intentions of Mr. Smithson carried out through the instrumentally of Congress.

The resolution was then reported without amendment.

The yeas and nays being demanded by Mr. WALKER, on the question of engrossment, the question was taken and decided as follows:

YEAS-Messrs. Benton, Black, Buchanan, Clay, Clayton, Crittenden, Cuthbert, Davis, Ewing, of Ohio, Goldsborough, Grundy, Hendricks, Hubbard, Kent, King, of Alabama, Knight, Leigh, Line, Mangum, Moore, Naudain, Nicholas, Porter, Prentiss, Rives, Robbins, Southard, Swift, Tallmadge, Tomlinson, Walker-31.

NAYS-Messrs. Calhoun, Ewing, of Illinois, Hill, King, of Georgia, Preston, Robinson, White-7.

On motion of Mr. BENTON, the Senate proceeded to the consideration of executive business; and after a short time, the Senate adjourned.

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