ture may establish courts, and under this power it may have been, that they undertook to establish judges.

In erecting the county of Franklin, it is provided, "that the justices of the then present county of Cumberland, which will hereafter be within the said county of Franklin, shall be justices of the peace for the said county until the expiration of their several terms for which they were respectively appointed." This goes the whole length of the power of a justice of the peace. 2 State laws, 216.

In erecting the county of Montgomery, power given to justices commissioned in the old to act as judges in the new. 2 State laws, 221.

In erecting the county of Dauphin, justices already commissioned, are authorized to act as judges. Power is not given to act as justices of the peace generally. 2 State laws,

254.

In erecting the county of Luzerne, provision made for the electing and commissioning justices. Nothing said relative to justices already commissioned. 2 State laws, 466.

In erecting the county of Huntingdon, the justices of the peace commissioned at the time of this act and residing within the bounds and limits of the said county, shall be justices of the peace for the said county during the time for which they were so commissioned. 2 State laws, 527.

By the act erecting Allegheny county, provision is made "that justices now commissioned and within the limits of the new county may hold courts." 2 State laws, 595.

By an act erecting Mifflin county, "justices commissioned at the time and residing, &c. shall be justices of the peace for the said (new) county." 2 State laws, 718.

By the act erecting the county of Delaware, "the justices then in commission are authorized to hold courts; and that all public officers, other than justices of the peace, shall continue to exercise the duties of their respective offices, until similar officers shall be appointed. 2 State laws, 732. This clause implies several things. 1st, That a justice of the peace might be comprehended under the term "public officers." 2dly, That he could not act without the aid of the legislature.

It had been doubted and might well be doubted, whether as a justice of the peace deriving his constitutional existence from the commission of the president and council, he could derive any extension of authority, from an act of the legislature. So far as respected their authority as justices of the peace, generally, this legislature excepted it.

The act of assembly enacting the county of Lycoming, is the first act, erecting a county, after the constitution of 24 Sept. 1790. It is provided that the president of the third district, of which district the said county of Lycoming is hereby declared to be a part, shall have like power, &c.; but no notice taken of associate judges that might fall within it, nor justices of the peace. 3 State laws, 716.

In erecting the county of Wayne, it is provided "that, the sheriff, coroner, and other officers of the county of Northampton, other than the justices of the peace, shall continue to exercise the duties of their respective offices, within the county of Wayne, until similar officers shall be appointed agreeably to law within the said county." 4th State laws, 242. This act is under the constitution of 2d Sept. 1750.

In the act erecting Centre county, the jurisdiction of the supreme court, as in all the other acts is extended, and that of the district president; but no notice taken of justices of the peace. 4 State laws, 542.

In erecting the last counties in the state, those of Beaver, Butler, Mercer, Crawford, Erie, Warren, Venango, Armstrong, the authority of the judges of the supreme court, and district president, is extended, but no reservation of the power or authority of associate judge, or a justice of the peace.

Expressio unius exclusio est alterius. The question will then come to this, can the justice of an old county act in the new, without the reservation of their authority, by the legislature, in the incorporating act? How can he be known to the new county? Can the justice of York county, in his commission, begin his precept "Adams county, scilicet?" In this case he might act in both counties. In the old cour

ty by the authority of his commission and in the new by vir tue of his residence.

But is not his commission during good behaviour; and can the legislature, by erecting a new county, in fact, abolish it? It does not affect his commission. It abridges or takes away the sphere of action only. His commission was taken, subject to the eventual sub-division of the county: a power, which the legislature has and must exercise. And, I take it, there is no privation of right in the case. And, that independent of the aid of the legislature, to say the least of it, a justice acting in one county under colour of a commission in another, is a trespassor.

The strongest thing that occurs to me to be said to the contrary, is the term "public officers," in the act for erecting the county of Adams. "The sheriff, coroner, and public officers of the county of York, shall continue to exercise the duties of their respective offices within the county of Adams, until similar officers shall be appointed agreeably to law, within the said county of Adams."

In the acts for erecting the counties of Delaware and Wayne, there is the like provision with an exception " as to justices of the peace," which exception, I take to be explanatory and not implicatory, that under the term, "public officers," justices of the peace could be comprehended. It is as much as to say, by public officers we do not mean justices of the peace. Independent of the explanation, it must have been evident, as in the case before us, that the legis lature could not mean these. The reservation of authority is in favour of "public officers," until similar, shall be appointed. The provision, therefore, must respect officers, supersedable by the appointment of similar. But justices of the peace, hold their commissions, during good behaviour, and are not supersedable by the appointment of similar. Under the term, "public officers," therefore, I take it, justices of the peace are not comprehended. There being no legislative act in conservation of their authority and extension of it to the new county, it can be known only to the old.

The argument comes to this, that the commission of the justice for the old county does not enure for the use of the new, unless there is a saving of his jurisdiction in the erection of the new, that is, the new county erected subject to the jurisdiction, if this could be done. It does not lie upon me to say that it could. But, a fortiori, it cannot be without. And in this case there is no saving, but the new county laid out without respect to the jurisdiction of the justice. He may remain a justice of the old county, therefore, and may withdraw within it, and act, but has no connection with the new. He is not known to it de facto; nor by operation of law, nor by legislative exception or recognition, or new commission from the governor by virtue of his signature to a law, directly, or by implication, authorizing them to act, if the signature could be supposed to have that effect, which it is not necessary for me to say that it has, but certainly without it there cannot be authority for an officer dismembered from an old county to act in a new.

ON THE GRANTING NEW TRIALS.

MY mind had got a set against granting new trials, and this on two grounds.

1. Appeals from the circuit courts on motions for a new trial which had become pretty nearly a matter of course; and trials in the first instance, passed for nothing; at least for very little. I saw that in the nature of things we could not go on, so as to give satisfaction to the country. In the 2d place also I was impressed with what I thought a too great facility with the court, in sustaining of this kind and granting new trials contrary to the sense of juries on matters of fact, on the ground of the verdicts being against evidence. This more particularly in some cases which had occured in the western district on the subject of what are called improvement rights. It was under this impression that I delivered the following in the case of Laughlin v. Maybury, at

the sittings in term, for the western district, Sept. 1807. I will not say that these sentiments delivered here, or expressed to the same effect elsewhere, contributed to have the circuit courts abolished; but this soon afterwards took place.

I have been led to consider a little the origin and nature of granting new trials. It succeeded the writ of attaint: This writ was founded on an allegation of perjury; (a)

(a) St. Westm. 1. 3. Ed. I. c. 38. An attaint shall be granted

in a fee of land.

For as much as certain people of this realm, doubt very little to make a false oath, which they ought not to do, whereby much people are disinherited, and lose their right; it is provided, that the king of his office, shall from henceforth grant attaints, upon inquests in plea of land, or of freehold, or of any thing touching freehold, when it shall seem to him necessary.

This statute is in affirmance of the common law. 2d, Inst. 236. But though an attaint, did lie upon a false verdict before this, yet because in plea real, remedy of a higher nature, the king sometimes refused to grant it.

Brief of conviction, old name for writ of attaint. Stat. of Marl. c. 14.

The witnesses named in the deed, should be joined with the inquest.

But if they, of their own head will say, that it is disseizin, their verdict shall be admitted at their own peril.

13. Ed. I. c. 30. That the justices assigned to take assizes, shall not compel jurors to say precisely, whether it be disseizin or not, so that they do show the truth of the deed, and require aid of the justices.

By Statute, 14 of Ed. II. distress is given in case of default of jury of attaint to bring them.

1 Ed. III. c. 6. It is provided that for the great mischiefs, damage and destruction that hath happened to divers persons, by the false oaths of jurors, in writ of trespass, from henceforth writ of attaint shall be grant d, as well upon the principal as upon the damages, and the chancellor shall grant without speaking to the king.

34 Ed. III. c. 7. Here it is awarded against the falsehood of jurors, to the poor without fine.