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Page:United States Reports, Volume 2.djvu/192

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x86 Cast-as ruled and adjudged in the ` — l 1792. and the orderin the aifairs thereof," this claufe manifeltly veib 4 wr`.! ed the power, oginltituting and fupplying the ollice, in the Cor- . poration at large, at leall in exclulion of the Executive authori·· i ty of the State. But the very grant of a power to hold a Court, carries with it every that is incidental to the exercife of jurifdiétion; and aClerk of the Court mult be regarded in that point of view. A Coun may appoint a Bailii}, or Serjeant, to execute its procefs, a• an incident to the grant of jurifdiftion. 1 Bac. dor. 565. Again ;-whenever one oilioe ia incident to another, fuch incident otiice is regularly grantable by him, who hath the principal cflice: g Bao. Ah-. yao. 721. And Lord- Cole, fays •• that the }uftices of Courts did ever appoint their Clerks." 2 Inf. 42 5. The appointment veils, therefore, as an incident to the grant ; and may alfo be aiiertcd upon prefcrip- tion and ufagc. Dyer 175. 4 Co. 32. Show. P. C. Holt': ca]?. See Bl. Rep. 2 P. W nu. 1 YZ 196. The power of amo- tion is incident to a Corporation; Doug. 152; and, it is to be inferred, that the leli`er power of appointing a Clerk, is alfo in- cident. · In the lirit charter of the City, the Proprietary appoint- ed the Clerk; but all fubfequent appointments were made by the Corporation. The Corporation- being refponlible, it is el`- fential that they (hould appoint their oilioers; and yet the con- ilru&ion contended for, would annihilate all the power given to themfor that purpofe, in the ggthjié. of the Af} of Aiiembly. 'I`heCouncil ofCenfors,in their animadveriion upon the ‘20thp£7. of the old Conititution, while they conlider the appointment to oiiice, as a natural incident of the Executive authority, {till contemplateexceptions from the general rule, by which the public welfare may be promoted. youm. Coun. Cen/Z p. rgg. Second Sgfion. ' The Attorney Gmrrol, in repl . It is unneceliary to enter into an inveiligation of the authorities cited from the Englyb books; fiuce this is iltiétly a Coryfiiutionul quellion. The rea— foning of the Council y` Cen/br: in favor of the Executive, cer- tainl applies to the prefent oiiicc; and, it is conclulive, that . the Supreme Executive power is now veiled in the Govemor. But, it is contended, that the right claimed by the·Cotp¤ration is ellablilhed by the gd #5}. `of the VIL Art. of the Conflitu-· tion; which gives rife to two queftioss: tit. Is the appoint- ment in controverfy within the meaning of the conltitutional refervation? zd. Had the Corporation the right to make the appointment, before the adoption of the exilling Conflitution P In fatisfying the enquiry, where the power retided under the¤ old Conllitution, it mult be remembered, that to exclude the Supreme Executive from the exercife of this natural attribute, l the intention mult he direéily and explicitly expreifed. Now, in the af.} of l789, no fuch power was exprefsly granted to the Corporation ;