English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

, oyer and terminer (; a partial translation of the Anglo-French ''oyer et terminer'', which literally means "to hear and to determine") was one of the commissions by which a judge of assize sat. Apart from its Law French name, the commission was also known by the Law Latin name ''audiendo et terminando'', and the

Old English Old English (, ), or Anglo-Saxon, is the earliest recorded form of the English language, spoken in England and southern and eastern Scotland in the early Middle Ages. It was brought to Great Britain by Anglo-Saxon settlement of Britain, Anglo ...

-derived term

soc and sac __NOTOC__ The term ''soke'' (; in Old English: ', connected ultimately with ', "to seek"), at the time of the Norman conquest of England, generally denoted "jurisdiction", but its vague usage makes it probably lack a single, precise definition. An ...

. By the commission of oyer and terminer the commissioners (in practice the judges of assize, though other persons were named with them in the commission) were commanded to make diligent inquiry into all

treasons Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...

, felonies and

misdemeanours A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than admin ...

whatever committed in the counties specified in the commission, and to hear and determine the same according to law. The inquiry was by means of the

grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...

; after the grand jury had found the bills of indictment submitted to it, the commissioners proceeded to hear and determine by means of the

petit jury In common law, a petit jury (or trial jury) hears the evidence in a trial as presented by both the plaintiff (petitioner) and the defendant (respondent). After hearing the evidence and often jury instructions from the judge, the group retires for ...

. The words ''oyer and terminer'' were also used to denote the court that had jurisdiction to try offences within the limits to which the commission of oyer and terminer extended.

Use in Scotland

By the

Treason Act 1708 The Treason Act 1708 (7 Ann c 21) is an Act of the Parliament of Great Britain which harmonised the law of high treason between the former kingdoms of England and Scotland following their union as Great Britain in 1707. This Act is partly st ...

, the Crown had the power to issue commissions of oyer and terminer in Scotland for the trial of treason and misprision of treason. Three

Lords of Justiciary The senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court of Session); ...

had to be in any such commission. An indictment for either of the offences mentioned could be removed by

certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...

from the court of oyer and terminer into the High Court of Justiciary. Commissions of oyer and terminer in Scotland have been exercised at various points in history, for example, the trial of

Radicals Radical may refer to: Politics and ideology Politics *Radical politics, the political intent of fundamental societal change *Radicalism (historical), the Radical Movement that began in late 18th century Britain and spread to continental Europe and ...

during the " Radical War" of 1820.

Use in the United States

In the United States oyer and terminer was the name once given to courts of criminal jurisdiction in some states, including Delaware, Georgia, New Jersey and Pennsylvania.

New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...

had courts of Oyer and Terminer for much of the 19th century, but these courts were abolished by a change in the state constitution, effective in 1896. The New York court's jurisdiction was the same as that of the Court of General Sessions or County Court, except that Oyer and Terminer had jurisdiction over crimes punishable by life imprisonment or death. In the antebellum period, oyer and terminer courts heard criminal cases against slaves, Native Americans and other disenfranchised defendants. Massachusetts Governor William Phips created a court of Oyer and Terminer for the Salem witch trials on May 27, 1692, consisting of Mr. Stoughton, Maj. Richards, Maj. Gidny, Mr. Wait Winthrop, Samuel Sewall, Mr. Sargeant, as well as Maj. Nathaniel Saltonstall, who soon withdrew in dissatisfaction and was replaced by Jonathan Corwin. (Corwin had been one of the two main judges of the early proceedings in Salem, often signing his name under John Hathorne.) The quorum was five of these seven.Burr, Witchcraft Cases, 1914 It was dissolved by Governor Phips on October 29, 1692, when the trials were reflected upon and disapproved of.

References

{{DEFAULTSORT:Oyer And Terminer French words and phrases French legal terminology Judicial legal terminology Common law legal terminology Common law legal systems