It had been provided by stat. 10 and 11 Will. 3. that such capital felonies might be tried in any county in England; and in the commission of the peace lately given, this policy was so closely adhered to, that the justices were therein restrained from proceeding _in cases of doubt and difficulty, such as robberies, murders, and felonies, and all other capital offences_. It appeared to the board of trade that this scruple might now be got over; and they proposed inserting in the commission that was to be given to _Captain Vanbrugh_, a clause, authorising him to appoint _commissioners of Oyer and Terminer_; but the board wishing to be assured that the king’s prerogative was not restrained in this particular, by the above provision in stat. 10 and 11 Will. 3. they consulted the attorney and solicitor general, who thought the king’s power was not abridged by that act. The board, in their representation to his majesty, state the example of a commission being granted to the commodores with other persons, for trials of piracy, as a precedent for trusting them with this authority to issue commissions for trying felons; and that it was no more than was given to other governors of plantations. But they inform his majesty, that as this power might be too much to be entrusted in the hands of judges and juries very little skilled in such proceedings, they had added an article, which restrained the governor from allowing more than one court of Oyer and Terminer in a year, and that only when he was resident; and he was further instructed, not to suffer any sentence to be executed, till report thereof be made to his majesty[59]. But when the commission went before the privy council for approbation, all that part which gave this authority was directed to be left out; so fearful were they of trusting such authority to those in whom they had lodged the civil government of the island[60]. [Sidenote: Such Commission issued.] So this point rested till the year 1750; when _Captain Rodney_, who was then governor, pressed the secretary of state for such a power to be granted. It was referred to the board of trade, where they recurred to what was projected in the year 1738 for _Captain Vanbrugh’s_ commission. A doubt arose with the board, whether this power might be given by _instruction_, or whether it must be inserted in the commission; and _Sir D. Ryder_, then attorney-general, being consulted, he was of opinion, that such power could not be granted by instruction, nor any otherwise than under the great seal; but that the manner of exercising such power might be prescribed by instruction; he thought the clause drawn for the commission of 1738 was sufficient, only that neither the power of trying, nor that of pardoning _treason_, should be entrusted with the governor, or any court erected by him. The commission issued accordingly, with this new power, to _Captain Francis William Drake_[61].