英文法律词典 N-12

NECESSARY AND PROPER. The Constitution of the United States, art. 1, s. 8, vests in congress the power " to make all laws, which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, in any department or officer thereof."

2. This power bas ever been viewed with perhaps unfounded jealousy¹ and distrust. is a power expressly given, which, without this clause, would, be im lied. The plain import of the clause is, that congress shall have all incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power, specifically granted, nor is it a grant of any new power to congress. It is merely a declaration for the removal of all uncertainty³, that the means of carrying into execution those already granted, are included in the grant.

3. Some controversy⁴ has taken place as to what is to be considered " necessary; "it has been contended that by this must be understood what is indispensable; but it is obvious the term necessary means no more than useful, needful, requisite⁵, incidental, or conducive⁶ to. It is in this sense the word appears to have been used, when connected with the word " proper." 4 Wheat. 418-420; 3 Story, Cons-t. 1231 to 1253.

NECESSARY INTROMISSION, Scotch⁷ law. When the husband or wife continues, after the decease of his or her companion in possession of the decedent's goods, for their preservation⁸.

NECESSITY. In general, whatever makes the contrary of a thing impossible, whatever may be the cause of such impossibilities,

2. Whatever is done through necessity, is done without any intention, and as the act is done without will, (q. v.) and is compulsory⁹, the agent is not legally responsible. Bac. Max. Reg. 5. Hence the maxim¹⁰, necessity has no law; indeed necessity is itself a law which cannot be avoided nor infringed¹¹. Clef des Lois Rom. h. t.; Dig 10, 3, 10, 1; Com. Dig. Pleader, 3 M 20, 3 M 30.

3. It follows, then, that the acts of a man in violation¹² of law., or to the injury of another, may be justified¹³ by necessity, because the actor has no will to do or not to do the thing, he is a mere² tool; but, it is conceived, this necessity must be absolute and irresistible¹⁴, in fact, or so presumed in point of law.

4. The cases which are justified by necessity, may be classed as follows: I. For the preservation of life; as if two persons are on the same plank¹⁵, and one must perish, the survivor¹⁶ is justified in having thrown off the other, who was thereby¹⁷ drowned. Bac. Max, Reg. 5.

5. - 2. Obedience¹⁸ by a person subject to the power of another; for example, if a wife should commit a larceny¹⁹ with her husband, in this case the law presumes she acted by coercion²⁰ of her husband, and, being compelled, by necessity, she is justifiable²¹. 1 Russ. Cr. 16, 20; Bac. Max. Reg. 5.

6. - 3. Those cases which arise from the act of God, or inevitable²² accident, or from the act of man, as public enemies. Vide dct of God; Inevitable Accident and also 15 Vin. Ab. 534 Dane's Ab h. t.; 2 Stark²³. Ev. 713; Marsh²⁴. Ins. b. 1, c. 6, s. 3 Jacob's Intr. to. Com. Law. Reg. 74.

7. - 4. There is another species of necessity. The actor in these cases is not compelled to do the act whether he will or not, but he has no choice left but to do the act which may be injurious to another, or to lose the total use of his property. For example, when a man's lands are surrounded by those of others, so that he cannot enjoy them without trespassing²⁵ on his neighbors. The way which is thus obtained, is called a way of necessity. Gale²⁶ and Whatley on Easements, 71; 11 Co. 52; Hob. 234; 1 Saund. 323, note. See 3 Rawle, R. 495; 3 M'Cord, R. 131; Id. 170; 14 Mass. R. 56; 2 B. & C. 96; 2 Bing. R. 76; 8 T. R. 50; Cro. Jac. 170; 2 Roll. Ab. 60; 3 Kent, Com. 423; 3 Rawle's R. 492; 1 Taunt²⁷. R. 279; 8 Taunt. R. 24; ST. R. 50; Ham. N. P. 198; Cro. Jac. 170; 2 Bouv. Inst. n. 1637; and Way.