hereby authorised to make such disposal as they shall deem best suited for the promotion of the purpose of the testator, anything herein contained to the contrary notwithstanding."

Section 10, requires those taking copyrights to deliver a copy of the publication to the Librarian of the Institution, and another to the Librarian of the Congress library.

Section 11, and last, reserves the right of altering, amending, adding to or repealing the provisions of the act.

The Smithsonian Institution, thus founded, is required by the fifth section to have a building suitable for its purposes, lecturerooms, and, by necessary implication, a museum of natural history, including a geological and mineralogical cabinet, a chemical laboratory, a library, and a gallery of art. But what is the Institution to do? Does the mere custody of these instrumentalities accomplish the object of the trust? Or is it through their use that the object in view, viz, "the increase and diffusion of knowledge among men" is to be, furthered. And if the latter, then by whom furthered? Will the mere access of the public to the books and cabinets (implied, we may well suppose, but nowhere even indirectly alluded to or provided for) increase and diffuse knowledge among men to the greatest degree, or even largely. Who is to use the lecture-rooms or the chemical labo-. ratory and other means of research, by the mere inspection of which small increase of knowledge can be expected? Manifestly the law contemplates the fulfillment of the objects of the trust in the use of these collections, laboratories, and books, not alone by all comers promiscuously (under needful regulation), according to their various ability, but also, (and that not subordinately,) by the Institution itself, through action of its own, and agencies which it may set in operation;-modes of action nowhere prescribed in the law, indeed, being wisely left to the foresight and discretion. of the Board, supervised by the Establishment, but for which an ample charter is conferred by the ninth section. The implication seems to be as direct in these respects, as that the ordering of lecture-rooms implies the delivery of lectures.

And how are the operations and the income of the Institution to be distributed among the several specified objects, and others deemed "best suited for the promotion of the purpose of the testator," which the managers are authorised to make appropriations for? All this, it appears to us, is plainly left to the wise discretion of the managers of the Institution, subject only to the limitation contained in the eighth section, fixing a certain but very high maximum limit to the sum which may be expended on the library.

The interpretation of this clause, however, is the turning point of the controversy. The Board of Regents have all along assumed this clause, directing an appropriation not exceeding an

average of $25,000 annually, for the gradual formation of a library, to limit their otherwise full discretion in one direction only,— to limit it upwards, not downwards. Their course of action from the first shows this. However diverse the views that have been entertained in the Board as to the propriety of large or small appropriations for the library, we are not aware that this full power and responsibility has been denied until recently. The report of a committee on the library (consisting of Messrs. Choate, Hawley, and Rush) appointed at the first session of the Board of Regents, declares, "that they see in the language of the act which the Regents are created to administer, and in the history of the passage of that act, a clear intimation that such a library was regarded by Congress as prominent among the more important means of increasing and diffusing knowledge among men. This intimation they think should control in a great degree the acts of the Regents." "And, without pausing to inquire what precise average amount should be expended, the committee will say that they have become satisfied that there would be no difficulty in judiciously expending, for a limited period, if it is otherwise desirable to do so, the entire sum indicated as the maximum in the act." And the resolution they reported for the appropriation of $20,000 for a library was at that time adopted. Thus, in advocating the largest views in respect to the library that have ever been presented by a committee or sanctioned by the Board, at the time and place when those, if such there were, who believed the law to require the Institution to be made "almost entirely a library" would surely put forth the whole strength of their cause, no claim is made for it as the "paramount object," no right whatever is asserted to the maximum sum mentioned in the act; but the large appropriation they sought to devote to the library" for a limited period," is recommended solely on grounds. of expediency; although motives found in an intimation gathered from the history of the act are introduced as sanctioning the propriety of their recommendation. We seek in vain for any intimation that they were bound to propose so large a sum as they did, or that they would have done so had they believed a smaller appropriation more expedient at the time.

The next action of the Board of Regents, a month later, when the committee raised "to digest a plan to carry out the provisions of the act to establish the Smithsonian Institution," had made its report, brings us to the passage of the now famous "compromise resolutions," as they are called. In these it was agreed that, af ter the completion of the building, one half of the annual income, or $15,000, should be appropriated to the library, the museum, collections, &c.; and the other half to the preparation and publication of transactions, reports, and other publications of the Institution, to aiding and stimulating original researches in all

departments of knowledge, to the payment for lectures delivered at Washington, &c.; the Institution thus entering upon the career of active operations for the increase and diffusion of knowledge for which it is so distinguished. We know not by what majority these resolutions were adopted. Their legality, however, appears not to have been questioned. No member entered any protest upon the record, as he surely would have done if he held them to be an infringement of the law. That the minority raised no question of the illegality of this action may be clearly inferred from the terms of the resolution which they supported as a substitute. This resolution, for which we are indebted to Mr. Meacham's Dissenting Report (Doc. 20, 5), is as follows:

"Resolved, That it is the intention of the act of Congress establish. ing the Institution, and in accordance with the design of Mr. Smithson, as expressed in his will, that one of the principal modes of executing the act and the trust, is the accumulation of collections of specimens and objects of natural history and of elegant art, and the gradual forma. tion of a library of valuable works pertaining to all departments of hu man knowledge, to the end that a copious storehouse of materials of science, literature and art, may be provided, which shall excite and diffuse the love of learning among men, and shall assist the original investigations and efforts of those who may devote themselves to the pursuit of any branch of knowledge."

It merely affirms that the library, the museum, and a gallery of elegant art constitute "one of the principal modes of executing the act and trust." It does not deny that the "active operations" may be a legal, or even a proper mode. That denial is more

recent.

The experience of six years having rendered it doubtful whether this absolute division of the income into two equal parts, irrespective of circumstances as they occur, was practically the best mode that could be devised, in March, 1853, a special committee of seven was raised to consider this subject. This committee made its report on the 20th of May, 1854, by its chairmau, Mr. Pearce, all the members concurring except Mr. Meacham, who had replaced Mr. Choate on the committee a few months previous. The report, (Doc. No. 4,) after a general view of the character, condition, and operations of the Institution, actual and prospective, submitted two resolves; the first, repealing the resolutions passed in January, 1847, and then about to come into effect, which required an equal division of the income between the active operations on the one hand and the museum and library on the other; the second requiring "That hereafter the annual appropriations shall be apportioned 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 in compliance in

good faith with the law." A restriction which the Regents had imposed on themselves, antecedently to experience, is here proposed to be removed. As, in the exercise of their discretion, they had adopted a fixed and unvarying apportionment, they now proposed, instead, to exercise the same powers and the same discretion (neither more nor less) from year to year, according to their best judgment at the time, and in compliance in good faith with the law.

The consideration of these resolutions was postponed until the next annual session of the Board, in January of the present year; and it was ordered "that said report, and such report of a minority of the committee as may be made in the recess of the Board, be printed." The committee's report was so printed, for the use of the Board; and, belonging to the proceedings of the Board, it properly made a part of the Eighth Annual Report of the Regents to Congress, which was closed on the 22d of July, presented on the 1st of August; and ordered to be printed both by the Senate and the House of Representatives. Up to this time, an interval of two months having elapsed, no minority report had been sent in, so far as we can learn, and none could therefore properly be embodied in the Annual Report, "showing the proceedings of the Board up to July 8, 1854." A minority report of the Hon. J. Meacham, (Doc. No. 5,) without date, and consisting of an elaborate review and criticism of the report of the Special Committee, is however appended to the House edition of the Smithsonian Report,-whether properly or not we need not inquire. In this document it is for the first time officially maintained (though it had been anonymously argued in the newspapers some time before, and apparently broached in the sessions of the Board as early as the spring of that year): 1, That the "compromise resolutions" of Jan. 16, 1847, were unauthorized by the law; and yet ought to be continued in force: and 2, That their repeal by the passage of the resolves of the Special Commit

*Not that any one could wisely object that such an official document as this is, or would become when laid before the Board, should have the widest publicity. But, as it happens to be printed in the House edition of the Smithsonian Report, and not in that of the Senate, which was somewhat earlier published, it formed the occasion of a charge made by certain newspapers, that the Secretary of the Smithsonian Institution suppressed in the Senate edition Mr. Meacham's report adverse to his views. Whereas, we find, 1, That no minority Report had been made, and therefore none could form part of the annual communication to Congress: 2, That the manuscript was not sent in to the Secretary at any time during the recess, so that the Secretary could cause it to be printed for the use of the Board, as was ordered: 3, It does not appear to have been furnished to the Senate unofficially (officially it plainly could not have been), and so could not possibly have been suppressed there: 4, Having been unauthorizedly annexed to the Mss. Smithsonian Report for the past year communicated to the House of Representatives, while in the custody of its Committee on Printing, and the question being raised in this Committee, the Secretary, on being consulted, urged no objection to its being printed, with the simple statement of fact prefixed "that it does not form a part of the proceedings of the Board of Regents reported to Congress."

SECOND SERIES, Vol. XX, No. 58.--July, 1855.

tee would be a further illegality, unless accompanied by a resolve, that a compliance in good faith with the letter and the spirit of the charter requires that a large proportion of the income should be appropriated to the library.

Let it be noted, in passing, that the argument of Mr. Meacham's report, and this resolve appended to it, do not present the very same issue, unless we interpret the latter by the former, which, so far as respects the writer's meaning and intention, we may properly do. The proposition, "that a compliance in good faith with the letter and spirit of the charter of the Smithsonian Institute requires that a large proportion of the income of the Institution should be appropriated for a gradual formation of a library," is one thing; but is not identical with the proposition, so elaborately argued in the body of the report, that the enactment in the 8th section of the law, directing "an appropriation, not exceed ing an average of $25,000 annually, for the gradual formation of a library, composed of valuable works pertaining to all departments of human knowledge," legally and morally enjoins the Board to expend this maximum sum, or something like it, on the library, requires them to expend sums which in a term of years shall amount to an average of $25,000 per annum, whether convinced that this is the best use of the income, or not.

That an influential portion of the Board, especially during its earlier years, felt that the library was the safest, and ought to be the most prominent, object of their fostering care, there is no kind of doubt. Some of these, on further experience, have changed their minds. One of them is Mr. Pearce, the author of the Special Committee's report, who now so ably advocates the "plan of active operations;" although, as Mr. Meacham is careful to inform us, he strenuously supported "the library plan" in the discussion upon the bill before the Senate ;-which clearly shows that he did not understand the law to prescribe the library plan,' but only to permit it. Another portion (of which Mr. Douglas may be taken as a representative), looking to the history as well as to the words of the act, hold that Congress "did sanction the policy of a library as a principal but not an exclusive feature in the Institution,""that the law contemplates the library as a prominent object in the Institution, and that at least a majority of the funds should be expended in the building up of the library ;"-the intention of the legislators, even when not prescribed in restricting terms, being held to limit, or at least to influence to a great degree, the discretion of the administrators. Such persons would properly adopt the resolves appended to Mr. Meacham's report, while they would repudiate his argument.

The doctrine of that argument appears to be novel. Perhaps it pre-existed in a latent state, awaiting the heat of popular controversy to germinate it at a favorable moment: but we have al