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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 following resolution adopted in July last :
“ Be it resolved, That while power is reserved in the said (7th) section to the Board of Regents to remove both the secretary and his assistants, 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. Berrien, who was absent when the resolution was passsed, afterwards expressed 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 librarian. 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 principle, that when the power to appoint is conferred, the power of removal 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 incidental 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 express words or by necessary implication. It is true that the clause gives io the Board superior power, inasmuch as they may remove an assistant 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 secretary 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 of Congress does not confer upon the Board of Regents the power to appoint 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
reasons why the power of original appointment was not given to the Board.”
“ In other words, the reasons which excluded the Board from appointing, 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 conduct there would be no prompt and adequate remedy unless the secretary possessed the power of removal." One case of this kind has already occurred. A person in the employment of the institution has refused to deliver up certain papers, the 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 Congress 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 the examination before your committee.
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 representative 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 secretary, 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 harmonious co-operation impossible. In a paper which he submitted to the special committee of the regents he assailed the motives and honor of
the secretary and criticised harshly and unnecessarily the reports of that officer.
So the special committee of seven regents, with one exception, reported to the board, declaring that this paper disclosed feelings of excessive 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, approving of Mr. Jewett's removal.
Mr. Meacham also charged the secretary with claiming and exercising 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. In the absence of the subordinates he did consider himself at liberty to open letters addressed to them which were evidently of an official character; but it does not appear that he actually exercised this authority, 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 committee 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 testimony was taken in relation to them, the committee feel bound to say, that they have not been sustained; and that they 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 "increasing and diffusing knowledge among men.”
HOUSE OF REPRESENTATIVES,
Washington city, January 26, 1855. DEAR SIR: I am instructed by the Select Committee of the House of Representatives, raised in conformity with the accompanying resolution, to request you to inform the Board of Regents of the Smithsonian Institution that the committee is ready to proceed to the discharge of its duty, and that any communication the Board may think proper to make will be most respectfully entertained. The committee
will meet on Thursday, February 1st, at half past 7 o'clock, p. m., in the rooms of the Hon. Mr. Witte, at the National Hotel.
The presence of an authorized representation of the Board, during the investigation of the matters referred to the committee, would aid us in the performance of the duty imposed by the order of the House of Representatives. Very respectfully, yours,
CHARLES W. UPHAM,
Chairman. Professor JOSEPH HENRY,
Secretary of the Smithsonian Institution.
JANUARY 27, 1855. SIR: I have the honor to inform you that your communication in behalf of the Special Committee of the House of Representatives, stating that the presence of an authorized representation of the Board during the investigation of the matters referred to the committee would aid" you " in the performance of the duty imposed by the order of the House of Representatives,” was duly received and laid before the Board of Regents of the Smithsonian Institution at their meeting today.
Whereupon on motion, it was resolved that a committee of five members of the Board should be appointed to confer with the Special Committee of the House of Representatives.
Messrs. James A. Pearce, James M. Mason, Richard Rush, A. D. Bache, and Joseph Henry, were appointed that committee. I have the honor to remain, very respectfully, your obedient servant,
Secretary Smithsonian Institution. Hon. C. W. UPHAM, Chairman Committee of the House of Representatives
on the Smithsonian Institution, fc.
House of REPRESENTATIVES,
Washington City, January 29, 1855. Sir: The Select Committee of the House of Representatives, instructed to inquire into the administration of the Smithsonian Institution, respectfully request your presence at a meeting of the committee, to be held on Thursday evening, February 1, at half past seven o'clock, at the rooms of the Hon. Mr. Witte, in the National Hotel, of this city, and at all subsequent meetings for the investigation of said subject.
Yours, very respectfully,
CHARLES W. UPHAM, Chairman. Hon. STEPHEN A. DOUGLAS,
United States Senatc. Copies of the above letter were also addressed to Hon. James Meacham, Hon. Wm. H. English, Hon. David Stuart, and John T. Towers, esq., mayor of Washington city.
HOUSE OF REPRESENTATIVES,
Washington City, January 30, 1855. SIR: I herewith transmit to you “Mis. Doc., No. 18, House of Representatives, 33d Congress, 2d session.”
The committee have commenced the discharge of their duty, under the order of the House. Any communication you may think proper to make, touching the subject of inquiry committed to us, in your letter of the 13th, addressed to the President of the Senate and the Speaker of the House of Representatives, and in the resolution of the House of the 17th of January, will be respectfully considered by the committee.
Your obedient servant,
CHARLES W. UPHAM, Chairman. Hon. Rufus CHOATE, Boston, Massachusetts.
HOUSE OF REPRESENTATIVES,
Washington City, February 2, 1855. Sir: At a meeting of the Select Committee of the House of Representatives on the Smithsonian Institution, held last evening, it was voted, on motion of the Hon. Mr. Witte, “that the Hon. Mr. Meacham, the offerer of the resolution on which the committee was appointed, be requested to furnish the committee with specifications of the particulars in which he thinks the Smithsonian Institution has been managed, and its funds expended not in accordance with the law establishing said Institution.”
The committee appearing, in behalf of the majority in the Board of Regents, requested that such specifications should be presented.
Please to enclose the specifications you may prepare to my address, at as early a moment as may be compatible with your convenience. Yours respectfully,
CHARLES W. UPHAM. Hon. JAMES MEACHAM.
HOUSE OF REPRESENTATIVES,
Washington City, February 15, 1855. Dear Sir: I have just received a letter, of which the following is a copy:
“ HOUSE OF REPRESENTATIVES, February 15, 1855. “Sir: I ask that Professor J. Henry present to your committee, at their next meeting, the paper of Professor C. C. Jewett, which was presented to the Committee of the Regents, at their request; and I ask also, that the secretary be required to indicate to your committee the offensive parts of said paper that were the cause of removing Professor Jewett from the Institution. " Your obedient servant,
J. MEACHAM. 6. Hon. C. W. UPHAM,
“Chairman of Select Committee on Smithsonian Institution.” I communicate it that you may be prepared to bring with you tomorrow evening the document called for, for the purpose mentioned by Mr. Meacham. Your obedient servant,
CHARLES W. UPHAM. Professor HENRY.