The governors cease to hold courts.
The governor got well quit of this business, and he proceeded, during the remainder of his time, to hear causes in person, without the least doubt or difficulty, as his predecessors had before done. But the minds of men were changed upon this subject; and his successor Admiral Campbell, 1782, was advised not to take upon him to sit in court, as his predecessors had done, nor to determine any causes whatsoever. He substituted in the room of this, a mode which was certainly without exception; and which, in a country like that, could not fail of having a very useful, and very extensive effect. The petitions which used to be brought to the governor in great numbers, upon all sorts of questions and subjects, were still received as before; but instead of holding a court, and making decisions, which were to be enforced by the sheriff, he directed his secretary to hear the complainant, and if necessary, the party, against whom the complaint was made, and thereupon to write at the bottom of the petition the governor’s opinion, and give such advice, as if followed, would have the effect of complete justice. Advice and direction given from such authority was most usually followed; and the administration of justice was, in a great degree, attained in this mode of application, without any course of process, as in a regular and open court.
However, in many cases, this method was not acceptable; and many more persons began, after this time, to recur to the courts of session, and vice-admiralty; and these two courts, as they were open all the winter, presented a more useful, and certain course of redress, than the above mode of petition. These two courts encreased very much in business from the beginning of Admiral Campbell’s government.
Court of common pleas instituted.
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.
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.