Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1819-06-15

man grants me piece OF land IN the mid
Tile Of his field, he iaeitly and implicitly
gives me right TO come al it(ggl. We
are again told, that when the laS giveil
any thing to any one. u implicitly giveth
wha'everis necessary for taking or enioy-
ing the same: II giveih what is comcea.
ae"t, VIZ. entry, egress and regress as
much as Is necessayy"(hh). The term
convenient Is here used in sense con-
vertibie with the term :" necessary" and
Is not allowed the latitude of mean,ns Wv
en- 10 II by the supreme court. II ,s SO
restricted I'm tenderness 10 the rights OF
the other party. The right of way, pass
my I'm the case above mentioned, is also
that, merely, ola pirate why, and does
| not give high road, or avenue, through
anothrr's land. though such might b.
most Convenient TO the purposes of the
| grantee. lfIs also principle nf tue com
mon law that the incident is To be taken
according To "a reasonable and easy sense"
| and not strained 10 con.pr.hrni thing,
remote. unlikely or snusuapIn). The
conneSion between the grant aud the Incl
dent must be easy ami clear: the grant
does moi carry with IL as incidents, things
winch are remote or doubtful.
! These quotations from the common law
are conclusive IN favor Oi restricted
| construction of the incidental powers
They show that nothing is granted bu,
what is necessary They exclude every
thing iha, is only remotely necessary, or
which only tends to The f,iltilmeni.
These doctrines of me common law
control the present Hase. But il is I'M
material, as have already said, BY VIVA,
code II Is TO be to be tested. On this
! point, there Is no difference between
them for they all depend upon AN in
flexible and immuiable principle. The
common Law, however, governs this case.
That law Is often resorted TO, OF necessi-
~, IN expounding the constitution.
Many OF The powers given by the consii-
tuii"n, are gwen IN ie'ms only kmown i'm
Tie common law. The authority Of tina,
la" Is universally admitted TO certain
extent III eXpounding the constitution. =
Ii is admitted both BY Tie report of 1879,
and by The Virginia legislature Of the
same year, in relation 10 such paris there
of as have sanction from the conSiitu-
ton by the technical phrases used there
IN. expressing the powers given TO the
| general government, aud also as to such
paris thereof as may be adopted by Con-
gress, as necessary and proper for carry
| ing mo execution the powers expressly
deieSatef(kk). Is not tins admission
iuii up To The very point OF referring 10
that law IN this case, and adopting The
| standard which II has established
That law not onl, affords this stand.
| ara, bul II was wise IN The constitution
to refer 10 a standard which IS equally
familiar to all The states, and is corrobo-
rated by the corresponding principles OF
ever. other code. BY the common law.
the term incident is also well defined. as
| the examples have quoted will shew.-
" Is lie part OF wisdom TO define the
Terms as you go, or at least To refer TO "a
standard which contains their detiniiion.
nave another preference Tor this code,
| ana Tor the term " incident" WHICH II
uses, and that Is that that term is parti
c"tar me term MEANS, started up
| IN ia present occaslon,is not only unde
lined, but is general: and " tfoius Latet IL,
generations ttD. why should The SUI
prone court trump up a term on this oc-
caslon, which is equally novel. undetiu
ed, and general? Why should they Sc
| leci term which is broad enough TO de-
mol,sh the limits prescribed TO the gene
raj government, by the constitution IL
| VIII now proceed TO she~ that the terms
necessary" aud incidental powers ~
were those unl'oTmlyused at the outse,
OF The constitutional the term
means is entirely of modern origin
| III Is al least so, when offered as sinh
stltute tor the terms incident" or
i, cideu,sl powers"
| We are told in the Federalist(mml tl,a,
all powers imdiSpeHsdbiy necessayu. are
| granted by the constitution, though ,bey
be not expressly granied"; and that ali
the particular powers requisite TO carr
the enumerated ones into effect. wnnId
have resulted 10 The government nv ma
voidabIe impllcatlos, withom the words
necessary and proper; aud that when
y wcr Is given, every particular mower
neceS'dry for doing II is included. Apaiu(uul
II Is SAID That a power is nothing but the
ability or faculty of doing a thing and
that thai ability includes the means mo-.
ceSSary for It's execution.
Ii Is laid down in the report before mem
toned, That congress under the terms
necessary and proper" have only all
aheidehtdG powers necessary and pr0Dcr
&c. and that the only enquiry is whether
The power is properly an incident TO an ex
press power and necessary % its execution
and that 1t II is not, congress cannot ex.
/ erci>eI ii anH that this construction pre-
vailed during all the discussions and rati.
ncaliohS OF the constitution, and is abso
tteiy necessary TO consist with the idea of
dehhe' or particular powers Again II is
SAD, mat Donc but the express powers
and those fairly incident 10 them were
| granted by The consiiiuIion(oo)
The terms incident and "incidental
| powers" are not only the terms nsed IN
the early stages, and by the friends of The
constitution, but they are the terms used
by lie court itself, IN more passages than
one, III relation 10 the power in question.
HE same terms are used bv the Chief
Justice IN his Life Of Washington n vol