THIRTY-THIRD CONGRESS, 1853-1855. 589 



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- 

 lowdng resolution, adopted in July last: 



Be it resolved, That while power is reserved in the said (seventh) 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. Ber- 

 ricn. who were absent when the resolution was passed, afterwards 

 expressed their full concurrence. 



The committee can not 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 libra- 

 rian. The law puts all the property of the Institution into his charge, 

 and authorizes him alone to appoint assistants to aid him in the dis- 

 charge 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 inci- 

 dent to it, unless restrained by some other provision. There is an- 

 other clause in the same section (seventh) 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 judg- 

 ment 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 Secre- 

 tary by express words or by necessary implication. It is true that the 

 clause gives to the Board superior power, inasmuch as they may 

 remove an assistant without the concurrence 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. Dal- 

 las, 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 



