But these two courts derived this accession of business from the necessity of circumstances merely; their authority was still as feeble as before, and the exercise of it depended upon the like precarious circumstances, for being carried into effect. As the population of St. John’s encreased, and as the light of later times, which spreads every where, had reached that place, it became necessary to have something more than opinion and sufferance to found a judicial authority upon. When _Admiral Milbanke_ was to set out to his government, in the summer of 1789, he was strongly advised by his secretary, Mr. Graham, (who had been secretary to the three preceding governors) to get something of a court established, that might stand on unquestionable authority; and the governor’s commission being searched for this purpose, it was found that he had full power to appoint _judges, and in cases necessary, justices of oyer and terminer, &c._ It was suggested to him, that _judges_, contrasted as the word there seemed to be with _justices of oyer and terminer_, ought to be considered as meaning something different from such justices; and that being in a popular, untechnical sense, usually applied to those who preside in the three courts in Westminster-hall, it had grown in the minds of unprofessional men to signify more especially judges in _civil_ matters; that it therefore seemed, the governor, by these words, had authority to institute a court of _civil_ jurisdiction; and he was accordingly advised to institute a court of _common pleas_ to proceed by a jury in the manner of a court of common law in this kingdom. [Sidenote: Justices appointed.] This opinion upon the wording of the commission, was urged not to be a strained exposition, to obtain _totidem verbis_, an authority which perhaps might not have been intended to be given; but to be a necessary one, and such alone, as could be drawn from the words. But those who have read the foregoing history, of the first granting to the governor the authority of appointing commissioners of oyer and terminer, will be satisfied, when he reads the same words in the first commission granted for that purpose, that they were designed to convey nothing more than that simple authority. One may be a little surprised how a power of appointing commissioners of oyer and terminer should be penned so as to stand _judges, and in cases necessary justices of oyer and terminer_. But it appears that in commissions to West India, and other governors, where it was meant to convey the power of appointing standing _judges_, as well as occasional _justices_, these words are to be found, placed in this manner; and in the way precedents are followed, these words were copied, where it was meant to appoint only justices of oyer and terminer, and those occasionally. [Sidenote: Complaints against it.]