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REPORT
HON.   WILLIAM   H.   WITTE,
FROM THE
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TO  WHICH  WAS   REFERRED
THE LETTER OF THE HON. RUFUS CHOATE,
SMITHSONIAN INSTITUTIOJ
WASHINGTON:
A. 0. P. NICHOLSON, PRINTEE.
1855.
33d Congress, >   HOUSE OF  REPRESENTATIVES.   (Report-
2d Session.     J                                                                     {No. 141.
SMITHSONIAN INSTITUTION AND HON. RUFUS CHOATE.
March 3, 1855.—Laid upon the table and ordered to be printed.
Mr. Witte, from the Select Committee, made the following
REPORT.
The Select Committee to whom was referred the letter of the Hon. Rufus
Choate, resigning the office of regent of the Smithsonian Institution, also
the resolution thereon to inquire whether the Smithsonian Institution has
been managed and its funds expended in accordance, with the law establish-
ing it, and whether any additional legislation be necessary to carry out the
design of its founders, report:
[Mr. Taylor concurring, and Mr. Puryear and Mr. Wells, although
not dissenting from all the views, preferred not to sign either this re-
port or the report made by Mr. Upham alone :]
That they have made a patient examination of the institution, and
have concluded that there is no just cause of complaint against the re-
gents or the secretary, in regard to the construction of the act of Con-
gress establishing the institution, and the plan of organization adopted
by the regents, or the manner in which its affairs have been adminis-
tered. The subjects included in the resolution may be appropriately
arranged under the following heads :
1.  The proper construction of the act of Congress establishing¡the
institution.
2.  The plan of organizing and administering the affairs of the insti-
tution, adopted by the regents in pursuance of the law.
3.  The question whether any new legislation is necessary.
4.  The administration of this plan by the regents and secretary.
Of these the committee will treat in the order in which they are
stated.
1.  The proper construction of the act of Congress.
The question whether the bequest of Mr. Smithson should be applied
chiefly to the formation of a great national library, or to researches for
the increase of Jcnoivledge, and the publication and circulation of their
results, for its diffusion among men, divided the opinion of the members
of the Board of Regents at their first meeting. These differences of
opinion were compromised at the organization of the institution by a
resolution, which the regents have lately repealed.
That resolution provided, prospectively, and, on a contingency,
which maybe said to have just occurred, (the completion of the Smith-
4                                   SMITHSONIAN  INSTITUTION
sonian building,) for an equal division of the fund committed to the care
of the Board of Regents between the two objects above stated—a na-
tional library, museum, and gallery of art on the one hand, and re-
searches, publications and lectures on the other.
This compromise resolution has been repealed by the Board of Re-
gents during their present session, and instead of it they have adopted
the following :
" Resolved, That hereafter the annual appropriations shall be appor-
tioned specifically among the different objects and operations of the
institution in such manner as may, in the judgment of the regents, be
necessary and proper for each, according to its intrinsic importance,
and a compliance in good faith wTith the law."
The adoption of this resolution was followed by the resignation of
Mr. Choate, one of the regents, and in his letter of resignation, ad-
dressed to the Speaker of the House, he assumes that the act of Con-
gress presented a rule of appropriation which is set aside by the reso-
lution. Whether the Board of Regents or Mr. Choate are right in this
respect must be determined by a reference to the act of Congress.
When it had created the inslitution, given it a corporate name,
invested it with certain powers, subjected it to specific restrictions,
provided for the erection of a suitable building, and directed an annual
appropriation not exceeding $25,000, for the gradual formation of a
library, it proceeded to declare that of any other moneys accrued, or to
accrue as interest on the fund, not otherwise appropriated nor required
for the purposes therein provided, the managers were thereby "author-
ized to make such disposal as they shall deem best suited for the pro-
motion of the purposes of the testator, anything therein contained to the
contrary notwithstanding."
Beyond any reasonable controversy, here is a discretionary and con-
trolling power given to the Board of Regents over the whol". income of
the fund, except only such portion of it as had been appropriated, or
should be required for purposes provided by the act. To determine
the extent of this discretionary power, it becomes necessary then to
ascertain what appropriation had been made, and what purposes were
provided by the act.
It directs the selection of a lot and the erection of a suitable building,
but does not limit the amount of expenditure, nor make any appropria-
tion for it. It provides "that in proportion as suitable arrangements
can be made for their reception," the several objects specified in the
6th section shall be delivered to the order of the Board of Regents, and
requires the arrangements and classification of them.
It directs the regents to appropriate "from the interest of said fund a
sum not exceeding an average of $25,000 annually for the gradual forma-
tion of a library, and «then places the whole residue of the increase of
the fund at their disposal. Can this be doubted? For the various pur-
poses provided by the act no appropriations are made. The library
forms the only exception, and the sole limit of the discretionary power
of the regents over appropriations for a library is, that they shall not
exceed^aii^affm^l average of $25,000. Within that limit their discre-
¦e. Suppose any appropriation made in any given
gradual formation of a library, can any one doubt that the
AND   HON.   RUPUS  CHOATE.                                   5
regents have the power to make such an appropriation, or so to limit
it? And is there any reason why they might not limit the appropria-
tion to a still smaller sum? They might, indeed, be liable to the charge
of evading the law, if those appropriations were for mere nominal sums,
so that in the course of a series of years no sensible progress could be
made in the gradual formation of a library. But this is an extreme
case, from which no argument can be drawn against their discretion to
limit the appropriation for a library, while intending in good faith to
provide for its gradual formation.
Then suppose them to apply an amount sufficient to meet all the ex-
penses necessarily resulting from the provisions of the act, still there
would remain a considerable sum not applied to any purpose. If the
Board of Regents believe that its application to scientific researches
and their publication be "best suited for the promotion of the purposes
of the testator," can it be doubted that they would have the right so to
apply it?
The ninth section of the act gives this power in full. When they
have met the current expenses of the institution, from time to time
made the necessary appropriations for the buildings in process of erec-
tion, and, exercising their discretion within the limit prescribed to them,
have made an annual appropriation for a library, what remains is
placed at their "disposal," to promote the purposes of the testator by
the use of such means as "they (the Board of Regents) shall deem
best suited" to accomplish this object. In construing the act of Con-
gress the committee confine themselves to the act itself—to the plain
import of the terms in which it is expressed, and to the necessary re-
sults of the provisions which it contains. They do not resort to what
is called its parliamentary history. The reported speeches of members
upon the bill while pending in Congress, and even votes upon amend-
ments made or rejected, do not answer this purpose. The first only
disclose the individual opinions of the speakers—the second frequently
do not exhibit the object of those who voted for or against the par-
ticular amendment. A speech made by one member is often at vari-
ance with the views of those who unite with him in voting for a par-
ticular provision. They frequently sustain it on other and different
grounds. So too the majority or intermediate vote is frequently com-
posed of the friends and opponents of the bill ; the latter advocating a
particular amendment with the hope and on the belief that it will prove
an incumbrance to the measure in the view of some of its advocates,
and thus contribute to its defeat ; or they may think that a particular
proviso proposed to be stricken out is unnecessary as being compre-
hended in some other part of the act.
A careful scrutiny of the proceedings of the House of Representa-
tives, while this law was pending before them, would show how unsafe
a guide the resort to the parliamentary history of a bill would be in the
ascertainment of its true construction. This may reconcile us to an
adherence to those rules which the wisdom of ages has devised for the
interpretation of statutes. We are endeavoring to ascertain the powers
and duties of the Board of Regents, and to do this we seek to discover
the true interpretation of the act of Congress and the will of Mr. Smith-
son, which, taken together, confer their powers and prescribe their du-
6                                    SMITHSONIAN INSTITUTION
ties. These two sources of power and duty are spoken of as necessa-
rily connected ; for, although the Smithsonian Institution was created
by act of Congress, and will cease to exist whenever Congress shall
think proper to repeal that act, }^et both Congress and the institution,
so long as it continues to exist, are bound to carry the intention of the
testator into effect.
The trust has been accepted by Congress in behalf of the United
States, and the faith of the United States has been pledged for its faithful
execution " according to the will of the enlightened and liberal donor."
While, therefore, Congress, acting as agents of the united States, have
the power to divert the fund to purposes other than those which may
be according to "the will of the liberal and enlightened donor," their
right to do so can never be affirmed; and though the Board of Regents
cannot and do not claim a right to place themselves in an antagonistical
position to the Congress of the United States, whose sub-agents they
are, yet in construing the act of Congress, if it will admit of two con-
structions, one of which seems to be most conformable to the purposes
of the will of Smithson, the regents would not hesitate to accept such
construction in preference to the other, which does not conform to the
will of the testator. This is merely the application of a principle uni-
versally recognized in the interpretation of statutes.
In the present case two constructions are given to the act of Con-
gress. If &ie Board of Regents consider one of them to be more con-
sonant to the purposes of Mr. Smithson's will, which was the source of
the authority of Congress to legislate on the subject for any purpose,
it ought to be adopted, since the act was passed evidently for the pur-
pose of carrying into execution " the will of the donor," and especially
when this interpretation affects two provisions of the act, which other-
wise would be without object or operation.
The committee will now proceed to inquire whether the scientific
researches, and the publication of their results, are, in the language oi
the act of Congress, "best suited to promote the purpose of the testa-
tor." The question is between such researches, made and published
at Washington, or examined under the authority of the institution, and
circulated throughout the civilized world, and a great national library,
to be established in this city. Mr. Smithson was a scholar, a man ot
science, an author of scientific memoirs, a contributor to the transac-
tions of the Royal Society of London, familiar with the language in
which his will is written, and perfectly competent to decide upon the
aptitude of words to convey the ideas they were intended to express.
It might wrell be expected that the language of such a man would
be characterized by simplicity, by the absence of circumlocution and
periphrasis, which is well described as the use of many words to express
the meaning of one. If he had intended to furnish to the people of the
United States, and especially to the citizens of Washington, a great
library, comprehending all that was then known in every department
of human knowledge and culture, he would have said so in terms not
to be misunderstood. The committee cannot doubt that if he had
merely designed to provide for the purchase of books, to become,
through the agency of the United States, the founder of a library,_ he
would have used the simple language appropriate to such an intention.
AND  HON.   RUFUS  CHOATE.                                    7
He would have said: "I bequeath the whole of my property, subject,
&c, to the United States of America, to found, at Washington, a library,
under the name of the Smithsonian'Library."
It is difficult to believe that any man having such an object in view
would have abandoned the plain, simple, intelligible language in which
no difference of construction could, by any possibility, have arisen, and
have substituted for it the sentence which is found in his will, namely :
" To found at Washington, under the name of the Smithsonian Institu-
tion, an establishment for the increase and diffusion of knowledge
among men."
Again, Mr. Smithson was, as the corrfmittee have before said, a man
of science, the author of scientific memoirs, a member of the Royal
Society, and a contributor to its transactions. What is more natural
than that such a man should, when about to pass away from the scene
of action, dedicate his property to the continued prosecution of those
researches to which his life had been principally devoted. The words
of the bequest are strongly corroborative of this view. It is for the
"increase of knowledge," not merely for the acquirement of that which
now exists. A library would subserve the latter purpose, but could
only indirectly aid in the accomplishment of the former by enabling
those who had mastered its contents to do what the Board is now doing,
namely—-to prosecute researches for the increase of knowledge. But the
terms of the bequest require not merely that it should be applied to the
increase of knowledge, but also to its diffusion, and to its diffusion
AMONG MEN.
The benevolent purposes of Mr. Smithson were not limited to the
citizens of Washington, nor yet to the people of the United "States.
They had a far wider scope. A man of science belongs exclusively
to no particular country. He is in one sense a cosmopolite, at home in
all places where the votaries of science dwell, and under every clime
they are the objects of his benevolence. They are men among whom
he desires the increase and diffusion of knowledge.
And he has provided for this in his will. How could a vast library
¦established here accomplish this object? At most it would be accessi-
ble to the people of Washington, to casual visiters, and to those who
came here for the purpose of consulting its volumes. How infinitely
short would this fall of the purpose of the testator, which was first the
increase and then the diffusion of knowledge among men of whatever
country or whatever clime.
If a national library be a national want, who should supply it? Can-
not Congress, which represents a population of twenty-five millions,
with resources almost incalculable, and with a treasury not exhausted
or impoverished, but overflowing with revenue? Can it not spare out
of this abundance whatever may be necessary? Is it not now sup-
plying that want in the great library of Congress, to which in the last
three years they have appropriated more than ninety thousand dollars ?
It is accessible now to every scholar who may be at Washington, and
will in a few years be so increased under the policy of its present ad-
ministration as to supply many of the wants of the student and the
scientific investigator.    Shall a nation such as ours depend for this na-
8                                   SMITHSONIAN  INSTITUTION
tional want upon the bounty of a stranger? The generous impulse of
the American heart will quickly prompt the answer—no.
The resolutions of compromise, as they were called, to which the
committee have before alluded, were repealed by the Board of Regents
before the period when by their terms they were to go into operation.
What has been already said will show that the committee think that
they were properly repealed. Their- effect was to tie up the hands of
the Board of Regents, to deny to the successors of those who passed
them the exercise of that discretion with which the law invested the
Board, and thus to defeat the act of Congress by taking away that
discretion in regard to the disposal of the fund which the law made it
not only the right but the duty of the regents to exercise. Nor can
there be any breach of faith in this repeal. The faith which the regents
owe is to the law and to the purpose of the will of Smithson, and any
arrangement of their own which should restrain them from promoting
this purpose by the means which they deem best suited to it, would
itself, in the opinion of the committee, approach more nearly to a breach
of faith.
The regents, by pledging their faith to one another, cannot escape
from the obligation to apply the funds at their control to the objects
which they deem best suited to promote the purpose of the testator.
The act of Congress, according to the plain import of its terms, au-
thorizes the Board of Regents to employ all monies arising from the
income of the endowment not therein appropriated nor required for the
purpose therein provided, in such manner as they shall deem best
suited for the promotion of the " purpose of the testator," namely,
" the increase and diffusion of knowledge among men," and this au-
thority is rendered incontestable, in the judgment of the committee, by
the concluding clause of the section which empowers the Board of
Regents to exercise their discretion in the disposal of the surplus in-
come, " anything herein (in the act of Congress) contained to the
CONTRARY NOTWITHSTANDING."
This grant of the power imposes the obligation to exercise the dis-
cretion which it confers. Judicial tribunals would never reverse the
construction of a statute, the terms of which were so plain and unmis-
takeable, by what is at all times dangerous, a resort to speeches made
by a few of the lawgivers who framed it, or the votes of members ac-
tuated by motives beyond the scrutiny of the expounder. Looking,
therefore, to the act of Congress itself, which, as was said by a senator
in a recent discussion, is best construed " by the examination and com-
parison of its various provisions and the admitted purpose of its enact-
ment," the committee found no difficulty in coming to these conclusions
on this point. They find in the law directions to the Board of Regents
to erect, on a liberal scale, a building in which can be arranged col-
lections of natural history, a geological and mineralogical cabinet, a
museum, a library, chemical laboratory, gallery of art, a lecture room;,
and, of course, to use these various means of increasing knowledge in the
manner and for the purpose to which they are adapted, and for which
they are required. In effect the law says : " All other portions of the
income dispose of as you may think best calculated to promote the
purpose of the testator."   A larger discretion can hardly be eonceived.
AND   HON.   RÜFUS  CHOATE.                                    9
It is absolutely unlimited in relation to every one of its objects except a
library, and to this the appropriations which the regents are authorized
to make are limited to a maximum amount which they are not at
liberty to exceed. It would seem to be most singular, if this had been
the primary and cherished object of Congress, that it should be the
only one subjected to such a limitation.
It might be thought, if this had been their primary purpose, that the
restrictions would have been imposed upon the appropriations for
other objects, leaving that for the library unfettered. If we turn from
the act of Congress to the will of Smithson to determine the manner
in which the trust should be executed, if we look to his antecedents
and find that he was himself a searcher into the mysteries of nature
which science is laboring to develop—not so much employed in study-
ing the pages of those who have written as striving to read the unwrit-
ten pages of nature's book—if we consider the plain and obvious im-
port of the simple language in which his wishes are expressed, and
contemplate the benefits to result from one or the other scheme of ap-
propriation which have been in controversy, if we consider these
things, we cannot doubt that it is both the right and the duty of the
regents, resulting from the will of Smithson, and enjoined by the act of
Congress, to appropriate such portion of his funds as they can advan-
tageously employ in scientific researches a'fld the publication and cir-
culation of the results " among men" wherever men exist capable of
appreciating them, while, at the same time, they apply another portion
of the fund, according to a sound and honest discretion, to the particu-
lar purposes specified in the act.
Thus they will not depart from any plan devised by Congress and
drescribed in the act, as Mr. Choate seems to have erroneously sup-
posed, but will fill up and develop that very plan, of which only some
of the outlines were sketched in the law.
It would be impracticable, within the limits proper to this report, to
go into the examination of the minute outline of organization of the in-
stitution submitted to the Board of Regents by the secretary, and ap-
oprved by them. It will be found reprinted in detail in the appendix
to the eighth annual report of the Smithsonian Institution, published by
Congress in 1854.
A brief notice of the plan, and of its results, is all that we can here
present.
The object of the plan is, first : To increase knowledge by stimu-
lating original research by the rapid and full publication of results; by
aid in procuring the materials and appliances for investigation ; and, if
necessary, by direct rewards.
Experience has shown that no other means are so effective in stimu-
lating research as the rapid publication of results ; not in a stinted
form of abstract, and without illustrations, (too often the necessary con-
dition of the publication of scientific labors,) but in full, with illustra-
tions drawn, engraved, and printed in the best style of art. How
many investigations are stopped for the want of instruments, of speci-
mens, and general appliances for research? How many are laid aside,
because, first of all, men must live? What more noble or useful object
for the Smithsonian Institution than to remove these difficulties from
10                                 SMITHSONIAN   INSTITUTION
the path of genius? What more consonant to the intention of the foun-
der? An expedition is setting out, and instruments are required to in-
vestigate the magnetism of the earth, the temperature of the ocean, the
climate, soil, and productions of places explored, their latitudes and
longitudes, heights, &c. These instruments are lent or furnished by
the Smithsonian Institution, and the results obtained with them become
public property. Means are furnished te explorers to make collections
of minerals and ores; of plants and animals; of fishes, reptiles, and in-
jects ; and to provide for their transportation from the field. These
collections are submitted to the most successful cultivators of the
branches of science to which they belong : to men who have made
these objects their especial study, and their investigations are made
public. The specimens are returned to the Smithsonian collections to
be taken care of, and, perhaps, to be re-examined at some more ad-
vanced period. By these and similar modes research is stimulated.
The provision of meteorological instruments, and of instructions for
their use ; the collections of the observations made, and their compa-
risons, have already furnished most important information in regard to
the climate and storms of the United States, and the full publication of
the results will enable men of science, of this and other countries, to
draw from these materials most valuable inferences and laws.
2. To diffuse knowledge, by the publication of the contributions, from
researches and explorations, of reports on treatises on different subjects
or branches of science and its application, of reports showing the his-
tory and progress of these subjects or branches, is the second object of
the "active operations." These publications diffuse among men the
knowledge obtained by the agency of the institution, or from without.
The subjects which have been already embraced in the Smithsonian
Contributions, and in the different volumes of reports, &c, have been
numerous and well distributed among the various branches of know-
ledge, the abstract and the practical. The publications are widely
scattered among the institutions of this and of other countries, given to
them or exchanged for their proceedings, transactions, or other publi-
cations, and accessible at moderate rates to individuals. Of the im-
pression made abroad by the Smithsonian Contributions to Knowledge
the learned professor of Greek of Harvard University thus speaks :
" Cambridge, Mass., June 30, 1854.
"I have but recently returned from Europe, and I now desire to
acknowledge the service you did me by your circular letter of intro-
duction to the librarians of the European establishments, which are in
cocrespondence with the Smithsonian Institution. Wherever 1 pre-
sented it I was received with great kindness and attention, and had
the opportunity of seeing whatever was curious, interesting, and valua-
ble, in the libraries and collections.
"It gave me pleasure to notice the high estimation in which the
Smithsonian Institution, under its present management, is held every-
where in Europe. The volumes published under its auspices have
done the highest honor to American science, and are considered most
valuable contributions to the stock of knowledge among men. They
are shown to visitors as among the most creditable publications of the
AND   HON.   RUFUS  CHOATE.                              11
age, and as highly interesting illustrations of the progress of science
and the arts in the united States; and the eagerness to possess them is
very great among the savans of the Old World. They were shown to
me wherever I went, and the commendations bestowed on the civiliza-
tion of America, as evinced by the excellence of these works, both in
matter and form, was deeply gratifying to me. The last time I had
an opportunity of seeing them was in the university library at Athens;
the librarian pointed them out to me, and expressed the greatest
anxiety to complete the set, one or two volumes of which were
wanting."
The publications thus approved bring to the Smithsonian Institution
a return of works published by the learned societies of the world and
by governments such as could not be procured in any other way, sup-
plying the library with rfch productions of both literature and science.
The gradual formation of a valuable library would result from this
system of international exchanges even without direct purchase.
The programme of organization of the institution and its execution
have met with the unqualified support of a very large majority of the
scientific and literary men of our country, expressed individually or in
the associations of which they are members. This is general through-
out the Union, and from no quarter have more decidedly favorable
opinions been expressed than from that to which the regent at whose
instance this investigation has been made (Mr. Choate) belongs. The
committee must necessarily be brief in its selections from the numer-
ous letters and other communications before it. In speaking of the
general considerations proposed by Professor Henry as guides in
adopting a plan of organization, a committee of the American Acad-
emy of Arts and Sciences of Boston say, that "they command the
entire assent of the committee," and proceed to discuss favorably the
various provisions for the increase and diffusion of knowledge furnished
by the programme. This committee consisted of such scholars as
Everett, Sparks, and Longfellow, and such men of science as Peirce
and Gray.
Since the appointment of this committee, Professor Peirce, of Har-
vard university, has renewed his testimony to the wisdom of the plan
of organization, and has spoken further in relation to the efficiency of
its execution. In a letter addressed to the chairman of this committee,
he says :
"Of all men, none can be more sensible of the value of the great
storehouses of the wisdom of past ages than they who are obliged to
resort to them in the development of their own researches. The know-
ledge which has already been given to the world, and which is accu-
mulated in the library, stimulates and invigorates the mind for original
thoughts, and supplies important materials for investigation; it is to the
author what the collection of models in the Patent Office is to the in-
ventor ; but, nevertheless, the increase of knowledge depends chiefly
upon the native vigor of intellect, and its diffusion is performed by the
press. To the strong mind the collections of the Vatican are a golden
opportunity, richer than the mineral harvest of California ; but not
richer than the hills and streams  which abound within every man's
J2                                SMITHSONIAN   INSTITUTION
sight ; not richer than the stone beneath our feet, on which is written
the history of the world ; than the leaf of the forest, on which is in-
scribed the thought of its Creator; or than the cloud in the lightnings,
of which the laws and the glory of God are as distinctly revealed to the
faithful of the present generation as they were upon Mount Sinai.
"The valuable contributions to knowledge which have already been
made by the Smithsonian Institution, are a living proof that vast libra-
ries are not necessary to the development of new thoughts. If you will
compare these memoirs with the scientific productions of the same
period in Europe, you may find them perchance inferior in erudition,
but not in profoundness and originality of thought. Do you believe
that Smithson, who was himself engaged in chemical investigations,
could have intended a library by his words " an institution for the in-
crease and diffusion of knowledge among men?" If you will examine
his nire memoirs to the Royal Society, of which he was an active
member, and his eighteen other contributions to science, you will not
find one of them which required a library for its production. Each
was the natural growth of a. deeply thinking mind. Smithson was em-
phatically a maker, and not a collector of books ; and in the scientific
circle to which he belonged, the ordinary use of language would have
totally precluded the interpretation which some men of quite a different
cast of mind have presumed to impose upon his words. Expand his
largeness of expression to its utmost extent ; include in it all that a
generous mind like his own would desire it to embrace; but let it not
be cramped and twisted out of shape, and so forced from its original
design that it shall wholly fail to accomplish the object of the munifi-
cent testator.
" Most earnestly, then, in the name of science, and especially of Ameri-
can science, do I protest against such a gross perversion of this impor-
tant trust. I assure you, sir, that the great body of scientific men
throughout the country warmly approve Professor Henry's plan of con-
ducting the Smithsonian Institution, and regard it as a faithful expo-
nent of the almost undivided opinion of scientific and learned men as
to the proper execution of Smithson's will and the law of Congress."
Professor Agassiz, also of Harvard University, Cambridge, whose
fame as a naturalist is second to that of no man living, has given, in á
letter to the chairman of the committee, the strongest expression of his
favorable opinion of the working of the institution. The committee
has space here only for an extract from the letter referred to:
" Smithson had already made his will and left his fortune to the Royal
Society of London, when certain scientific papers were offered to that
learned body for publication. Notwithstanding his efforts to have them
published in their transactions, they were refused; upon which he
changed his will and made his bequest to the United States. It would
be easy to collect in London more minute information upon this occur-
rence, and should it appear desirable, I think I could put the committee
in the way of learning all the circumstances. Nothing seems to me to
indicate more plainly what were the testator's views respecting the best
means of promoting science than this fact. I will not deny the great
importance of libraries, and no one has felt more keenly the want of an
extensive scientific library than I have since I have been in the United
A.ND   HON.   RÜFÜS  CHOATE.                                  13
States ; but after all, libraries are only tools of a secondary value to
those who are really endowed by nature with the power of making
original researches, and thus increasing knowledge among men. And
though the absence or deficiency of libraries is nowhere so deeply felt
as in America, the application of the funds of the Smithsonian Institu-
tion to the formation of a library, beyond the requirements of the daily
progress of science, would only be, in my humble opinion, a perversion
of the real object of the trust, inasmuch as it would tend to secure faci-
lities only to the comparatively small number of American students
who may have the time and means to visit Washington when they wish
to consult a library. Such an application of the funds would indeed
lessen the ability of the Smithsonian Institution to accomplish its great
object, which is declared by its founder to be the increase and diffusion
of knowledge among men, to the full extent to which they may be
spent, to increase unduly the library.
"Moreover, American students have a just claim upon their own
country for such local facilities as the accumulation of books affords.
"If I am allowed, in conclusion, to state my personal impression
respecting the management of the institution thus far, I would only
express my concurrence with the plan of active operations adopted by
the regents, which has led to the publication of a series of volumes,
equal in scientific value to any productions of the same kind issued by
learned societies anywhere.
"The distribution of the Smithsonian Contributions to Knowledge,
has already carried the name of the institution to all parts of the civi-
lized world, and conveyed with them such evidence of the intellectual
activity of America as challenges everywhere admiration; a result
which could hardly be obtained by applying the resources of the insti-
tution to other purposes."
3.  Additional legislation.
From what has been already said, it may well be interred that the
committee have been unable to see anything either in the provisions of
the law, or the administration of the institution, which requires reform
by additional legislation. Indeed, they could not have imagined on
what ground additional legislation could be demanded, if they had not
been informed by the Hon. Mr. Meacham, who presented the resolu-
tion under which the committee was appointed. That gentleman was
invited to attend the meetings of the committee, was authorized to pre-
sent charges and specifications upon any branch of the subject referred
to them, as also to direct summons for witnesses, and to conduct the
examination whenever he desired to do so. He pointed out only two
particulars as requiring additional legislation.
The first was, "that additional legislation was needed to secure im-
partiality towards authors who apply for the publication of their re-
searches." No instance of partiality or injustice in this respect has
been brought to the notice of the committee by proof or by allegation.
The idea seems to have been advanced for the first time by one of the
assistants of the secretary (Mr. Jewett) in a communication addressed
to a special committee of the regents in the year 1854.
The argument there made by Mr. Jewett has been abbreviated by
Mr. Meacham, and may be stated as objecting that the power of ac-
14                                SMITHSONIAN   INSTITUTION
cepting or rejecting a memoir presented for publication is virtually in
the hands of one man.
The practice of the Royal Society of London is stated as being far
preferable. On this point the committee would remark that the same
plan cannot be adopted by the institution because, as the committee
has been informed, it has no fellows from whom an examining council
of twenty-one members may be selected. And if the plan could be
adopted the committee do not think it as good as the one which the
regents have chosen. In the present state of knowledge the several
branches can scarcely be represented by twenty-one individuals, and
it may occur in case of a particular paper that not a single member of
the council is fully competent to decide upon its merits. The institu-
tion is not thus restricted, it has at its command the learning of the
whole country, and is not even confined in its choice of examiners to
men of science at home, but can select them from distinguished indi-
viduals abroad.
The rules adopted by the regents are in this respect few and simple,
and in the opinion of the committee sufficient. They have provided
in their programme of organization as follows :
1st. No memoir, on subjects of physical science, to be accepted for
publication which does not furnish a positive addition to human knowl-
edge, resting on original research ; and all unverified speculations to be
rejected.
2d. Each memoir presented to the institution to be submitted for
examination to a commission of persons of reputation for learning in
the branch to which the memoir pertains ; and to be accepted for
publication only in case the report of this commission is favorable.
3d. The commission to be chosen by the officers of the institution,
and the name of the author, as far as practicable, concealed, unless a
favorable decision be made.
It will be perceived that there is nothing like a " star chamber of
science" in this part of the plan of the institution. The opinion of the
commission is formed upon the merits of the work or paper, and can-
not be affected by partiality for or prejudice against the author whose
name is unknown to them.
If any author should feel himself aggrieved by the appointment of an
incompetent or prejudiced commission, he will have no difficulty in
presenting a complaint to the Board of Regents by whom another
commission may be named. In fact, no well founded complaint on
this score has yet been made so far as has been shown to this commit-
tee, and the danger complained of seems to them only speculative and
fanciful. The Board of Regents have full power to remedy whatever
may be wrong in the practical working of this part of the plan, and it
will be time enough to ask the interference of Congress when the evils
which are now only conjectural shall be realized.
2d. Mr. Meacham suggests, " that the institution should be placed in
such a position that legal redress may be gained by those who are im-
properly deprived of their rights."
It is true that the institution is not a corporation capable of suing or
being sued. But no practical evils have as yet resulted from the re-
fusal of Congress to make|the establishment an incorporation.    It is a
AND   HON.   RUFUS  CHOATB.                                 15
peculiar establishment. Its operations are simple and few. Its con-
tracts are such as can seldom form the subject of controversy. If the
institution should find necessity for legal redress, there is nothing to
prevent the President, who is a member of the establishment, from
directing a suit in the name of the United States. If it denies legal
rights to any officer or other person, the same remedy exists as in any
other case of claim against the United States. No instance of a denial
of legal right has been shown to the committee. An attempt to do so
was indeed made on the part of an employee of the institution, who
claimed to be entitled to larger compensation than had been paid to
him. But the attempt was a signal failure. His own receipts contra-
dicted his claims, and satisfied the committee that he had been paid
all he could legally demand ; and the assertion of extraordinary merit*
in his labors, alleged as an equitable ground of claim, failed when a
resort was had to testimony other than his own.
The committee therefore conclude that there is no necessity for ad-
ditional legislation.
4. Maladministration.
The first of Mr. Meacham's complaints under this head is " that the
regents have made the secretary the organ of communication between
them and the other officers of the institution, cutting off other officers
from direct official intercourse with the Board, neglecting or refusing
to procure or make by-laws defining the position and power of persons'
employed in the institution, and expressing: the opinion that all the as-
sistants are removable at the pleasure of the secretary."    *
This complaint seems to be founded on an entire misapprehension
of the act of Congress creating the institution, and the proper relations
of the secretary and his subordinates. By the act of Congress the
secretary is the sole administrative officer of the institution. The other
officers are not only his subordinates, but are nothing more than his
assistants, who are employed to assist him in his duties because it is
physically impossible for him to perform all of these duties himself.
The law charges the secretary alone with the duties enumerated, and
therefore devolves upon him the sole responsibility, unless when it is-
shared with the executive committee of the regents, whose functions
are not precisely defined in the law, but who act as a Board of control
or council to the secretary. We adopt on this subject the reasoning of
the special committee of the Board of Regents, in their report of the
20th of May last, as follows :
" The law is declaratory and positive in charging the secretary with
the enumerated duties, and therefore invests him, and him alone, with
the corresponding powers. But as it must have been manifest that no
secretary could be able of himself to perform personally everything
required for the discharge of his enumerated duties, provision is made
for aid to him in the clause which says that he ' may, with the consent
of the Board, employ assistants,' &c.
" The positions of the persons so employed are determined by the
word which designates them in the clause authorizing their employ-
ment. They are called 'assistants.' To whom? Not to the regents,
but to the secretary. Their position is necessarily subordinate ; and,
as their duties are those of assistants to their principal, they can no
16                                 SMITHSONIAN  INSTITUTION
more be independent of him than they can be superior to him. This
construction is so manifestly proper that it would seem to require no
argument to justify it. Bat if anything further were wanted, it may be
found in the fact that the secretary is to employ them in and about that
very business with which he is charged, and for which he alone is re-
sponsible. The character of this part of the section is permissive. He
is not required to employ any one, but is permitted to employ persons
to assist him, provided he satisfy the Board that their services are ne-
cessary as aids to him.
" In another part of the same section provision is made for the pay-
ment and, if need be, the removal of the secretary and his assistants,
and in this connexion they are spoken of as officers, but by no ingenuity
of construction can that word, in this connexion, be held to assign them
special duties, or confer any separate authority.
" Thus careful has Congress been to provide an efficient system of
operations, which can only come from harmony of purpose and unity
of action.
" This view of the intention of Congress, so clearly expressed in the
law, would be directly contradicted by the plan which has been sug-
gested, of organizing the institution definitely into several departments,
placing at the head of these departments different assistants, establish-
ing their relative positions, prescribing distinct duties for them, assign-
ing certain shares of the income to be disbursed by them, and stating
their authority, privileges, and remedies for infringement of their official
rights, or of the interests intrusted to their care. All this would tend,
not to secure a loyal and harmonious co-operation, to a common end,
of the assistants with the secretary, but to encourage rivalry, to invite
collision, to engender hostility, to destroy subordination, to distract the
operations of the institution, to impair its efficiency, and to destroy its
usefulness."
This view of the question has been made very clear to the commit-
tee in the course of the examination which they have made, and by the
testimony taken for the purpose of supporting Mr. Meacham's charges.
All the difficulties in the institution, which have resulted in the dis-
missal by the secretary of one of his assistants and of a person tempo-
rarily employed upon the meteorological computations, seem to have
arisen from the desire of independent positions, engendering rivalry and
hostility, producing collisions and insubordination utterly incompatible
with the proper authority of the secretary and the harmonious action so
necessary to the welfare of the institution. The facts developed in re-
gard to those difficulties entirely satisfy your committee that it is not
desirable to have such by-laws as Mr. Meacham thinks the regents
should have made or procured.
If any just cause of complaint by the assistants against the secretary
should arise, they can at all times resort for redress to the regents, by
memorial or other proper form of application, and the patience with
which such an application, although entirely without cause, has been
heard by the executive committee, to which it was referred, and con-
sidered by the regents, is quite sufficient to show how needless for the
purpose any by-laws are.
It may be proper to say, that the only section of the law in which
AND   HON.   ßüFUS  CHOATE.                                  17
by-laws are mentioned is the 8th, which seems to confer the power of
enacting them upon the members of the establishment, who are the
President and Vice President of the United States, the members of the
cabinet, except the Secretary of the Interior, (whose department was
not created at the date of the act,) the Chief Justice of the United
States, the Commissioner of Patents, and the mayor of Washington,
with "such other persons as they may elect honorary members."
The regents have expressed the opinion that the secretary has
power to remove the assistants. This opinion is expressed in the fol-
lowing resolution adopted in July last:
"Be it resolved, That while power is reserved in the said (7th) sec-
tion to the Board of Regents to remove both the secretary and his assis-
tants, in the opinion of the Board power nevertheless, remains with the
secretary to remove his said assistants."
In this opinion the Chief Justice of the United States and Mr. Ber-
rien, who was absent when the resolution was passsed, afterwards ex-
pressed their full concurrence.
The committee cannot doubt that it was a sound opinion. The law,
as before stated, makes the secretary the sole administrative officer of
the institution, He, and he alone, is keeper of the museum and li-
brarian. The law puts all the property of the institution into his
charge, and authorizes him alone to appoint assistants to aid him in
the discharge of the duties devolved upon him. Had the act made no
further provision on this head, there could not be a doubt that the
power of removal would be in him ; because it is an established prin-
ciple, that when the power to appoint is conferred, the power of re-
moval is incident to it, unless restrained by some other provision.
There is another clause in the same section (7th) which applies as
well to the secretary as to his assistants, which provides, that "the
said officers shall be removable by the Board of Regents, whenever,
in their judgment, the interests of the institution require any of the said
officers to be changed."
Under this clause, the question arises, whether it restrains the inci-
dental power of the secretary to remove, or whether, in addition to that
incidental power, it gives, as regards the assistants, the authority of the
Board to make such removal. Your committee think the latter the
sound construction. It does not restrain the power of the secretary by ex-
press words or by necessary implication. It is true that the clause gives
to the Board superior power, inasmuch as they may remove an assist-
ant without the concurence of the secretary, and even against his wish.
But this power may well exist without conflict with the incidental
authority of the secretary. The same reasons which cause the secre-
tary to be invested with authority to appoint, justify, and require his
power to remove. The Hon. George M. Dallas, late Vice President
of the United States, and chancellor of the institution, adopts this view,
and, in an opinion upon this subject, says : "It is clear that the act oí
Congress does not confer upon the Board of Regents the power to ap-
point the assistants of the secretary, and for reasons too palpable to
require mention. But if the secretary has not himself under his own
mere motion a right to remove, it would be impossible to imagine
Rep. 141------2
18                                 SMITHSONIAN   INSTITUTION
reasons why the power of original appointment was not given to the
Board."
" In other words, the reasons which excluded the Board from ap-
pointing, are identically the reasons which preserve to the secretary
the power of removing. It may, perhaps, render it more perspicuous
to add that these reasons are the official responsibilities and practical
personal intercourse of the secretary with his assistants."
Besides, it is very evident that the interests of the institution might
often be in peril if the power of removal were denied to the secretary
The Board of Regents are not in session during a great part of the
year. Many of them reside at great distances from Washington, and
could not be assembled without much inconvenience to themselves and
heavy expense to the institution. During this period it might be of the
utmost importance to remove an unfaithful assistant. He might cease
to do that for which alone he was appointed, to assist the secretary in
the affairs of the institution. He might refuse to deliver up to the
secretary the property of the institution which the law puts in his
charge. He might threaten and intend to destroy it, might treat the
secretary with personal indignity, and insult and defame the regents,
and spread insubordination throughout the institution. For such con-
duct there would be no prompt and adequate remedy unless the secre-
tary possessed the power of removal. One case oí this kind has
already occurred. A person in the employment of the institution has
refused to deliver up certain papers, jthe property of the institution,
and threatened to destroy them. He has also written a letter, which
was published over his own signature in a New York paper, vilifying
the secretary and several of the regents, by name, in the most abusive
language. For this and other causes during the last recess of Con-
gress he was removed by the secretary, and, as the committee cannot
doubt, most justly removed. This very individual was the principal
witness against the secretary on thei examination before your com-
mittee.
We think that the resolution of the regents, above quoted, while
maintaining the superior authority of the Board, properly asserted the
power of the secretary.
Your committee regret very much to say that the secretary was also
justified in the removal of Mr. Jewett. His removal was not arbitrary,
unjust, and oppressive. Mr. Jewett is a man of talent and scholastic
attainments, but it is evident, from his own testimony, that he considered
himself as holding an antagonistic position to the secretary, as "having
charge of the library, and being considered by the public as the repre-
sentative of that interest in the institution." He construed the law in
one way ; the secretary construed it differently. He thought and said
that it would be treachery in him to co-operate with the secretary
according to the latter's construction of the law. He told the secre-
tary, in effect, that if he attempted to annul the compromise in the way
he proposed, he would shake the institution to its centre. It is evident
that he was impatient of the restraints of a subordinate position, and
entertained feelings towards the secretary which made their harmoni-
ous co-operation impossible. In a paper which he submitted to the_
special committee of the regents he assailed the motives and honor oí
AND  HON.  RUFUS  CHOATE.                              19
the secretary and criticised harshly and unnecessarily the reports of
that officer.
So the special committee of seven regents, with one exception, re-
ported to the board, declaring that this paper disclosed feelings of ex-
cessive hostility and insubordination. After this, it was manifest that
the common civilities of life could not be exchanged between them,
and the interests of the institution required their separation. The
Board of Regents accordingly passed a resolution, in January last, ap-
proving of Mr. Jewett's removal.
Mr. Meacham also charged the secretary with claiming and exer-
cisino- the right to open and read letters directed to his subordinates.
The evidence satisfied the committee that the secretary neither claimed
nor exercised any improper authority in this respect. He expressly
disclaimed any desire or authority to inspect the private letters of his
subordinates. Their correspondence, in regard to the business of the
institution, he properly claimed to be entitled to examine and control*
Tn the absence of the subordinates he did consider himself at liberty to
open letters addressed to them which were evidently of an officiai
character ; but it does not appear that he actually exercised this au»
thority, the claim of which seems to have been misunderstood by one
of his assistants, and grossly perverted by another person, under the
influence of hostile and unjustly suspicious feelings.
The charge of denying scientific right and refusing to take full
measures for adjusting the claim of Mr. Blodget was entirely refuted,
both by documentary evidence and the testimony of a disinterested
party.
These latter charges of maladministration seemed to your commit-
¦'              tee not to come  precisely within the scope of• the instructions of the
resolution under which the committee was appointed. The Board of
Regents might properly have investigated them, and undoubtedly
would have done so if asked by the parties concerned. But as testi-
mony was taken in relation to them, the committee feel bound to says
that they have not been sustained ; and that the}^ consider the secretary
as entirely relieved from the charge of maladministration in every
particular. They believe that the regents and the secretary have
managed the affairs of the institution wisely, faithfully, and judiciously;
that, there is no necessity for further legislation on the subject; that if
the institution be allowed to continue the plan which has been adopted,
and so far pursued with unquestionable success, it will satisfy all the
requirements of the law, and the purposes of Smithson's will, by "in-
creasing" and diffusing knowledge among men."