THE SMITHSONIAN INSTITUTION. 117 



rights, shall, within three months from the pubhcation of said book, 

 map, chart, musical composition, print, cut, or engraving, deliver, or 

 cause to be delivered, one copy of the same to the Librarian of the 

 Smithsonian Institution, and one copy to the Librarian of Congress 

 Library, for the use of the said libraries. 



Sec." 11. And be it further enacted, That there is reserved to Con- 

 gress the right of altering, amending, adding to, or repeahng any of the 

 provisions of this act : Provided, That no contract, or individual right, 

 made or acquired under such provisions, shall be thereby divested or 

 impaired. 



Approved August 10, 1846. 



Construction of the ^' act establishing the Smithsonian Institution," by 

 Hon. J. Mc Pherson Berrien, one of the Rrgents. 



It will be argued at the outset, that the fund ought to be so admin 

 istered as to give the fullest effect to the purposes of the donor ; that 

 the government of the United States, as the depositary of his confidence, 

 has power to determine the mode of administration, and that its deter 

 mination, so far as it extends, must guide and control the action of the 

 Board of Regents. Beyond that limit, I suppose it will also be con- 

 ceded that the Board has discretionary powers, acting as it does, under 

 the constant supervision of Congress, which body has reserved to itself 

 the right of modifying its grant of power, ad libitum, with the ordinary 

 saving of individual rights. 



We are then to look to the act of Congress to ascertain what Congress 

 has directed, and what it has left at large. The act of 1846 creates 

 what it denominates " an establishment" with a corporate name, 

 invested with the powers, and subjected to the limitations and restrictions 

 specified in the act. It directs the selection of a Jot, and the erection of a 

 building, with suitable arrangements for the classification and arrange- 

 ment of the several objects specified in the 6th section. It places that 

 building and those objects under the control of the Board of Regents. 

 It requires them to make, from the interest of the fund, an appropria- 

 tion not exceeding $25,000 annually, for the gradual formation of a 

 library. Out of any other interest, moneys accrued or accruing, not 

 therein appropriated, or not required for the purposes therein provided, 

 the Board is authorized "to make such disposal as they shall deem best 

 suited for the iwomotion of the purpose of the testator, anything therein 

 contained to the contrary notwithstanding." 



In my opinion, this places the wliole income of the fund under the 

 control of the Board of Regents. Thej^ must erect a building, suita- 

 bl}' arranged to fulfil the purposes of Congress, but its cost is not lim- 

 ited. They must appoint a Secretary, but his salary is not specified. 

 They must make an appropriation for the gradual formation of a library, 

 of which the maximum only is provided, and then of all other moneys, 

 accruing as interest, they may make such disposal as they shall deem 

 best suited to promote the purposes of the donor ; any former provision 

 to the contrary notwithstanding. 



