In English law, Oyer and terminer
(/ˈɔɪ.ər ... ˈtɜːrmɪnər/; a partial translation of the
Anglo-French oyer et terminer which literally means "to hear and to
determine") was the
Law French name for one of the commissions by
which a judge of assize sat. The commission was also known by the Law
Latin name audiendo et terminando, and the Old English-derived term
soc and sac.
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,
felonies and misdemeanours 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; 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. The words oyer and terminer were also used to denote the court
which had jurisdiction to try offences within the limits to which the
commission of oyer and terminer extended.
1 Use in Scotland
2 Use in the United States
3 Construction of the fixed expressions
5 External links
Use in Scotland
By the Treason Act 1708, the Crown had power to issue commissions of
oyer and terminer in
Scotland for the trial of treason and misprision
of treason. Three
Lords of Justiciary
Lords of Justiciary had to be in any such
commission. An indictment for either of the offences mentioned could
be removed by certiorari 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 during
the "Radical War" of 1820.
Use in the United States
In the United States oyer and terminer is the name either currently or
formerly given to courts of criminal jurisdiction in some states, e.g.
Pennsylvania and Georgia. New York 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.
William Phips created a court of Oyer and
Terminer for the
Salem witch trials
Salem witch trials on May 27, 1692, consisting of Mr.
Stoughton, Maj. Richards, Maj. Gidny, Mr. Wait Winthrop, Capt. Sam
Sewall, Mr. Sargeant, as well as Maj. Nathaniel Saltonstall, who soon
withdrew in dissatisfaction and was replaced by Jona. Corwin. (Corwin
had been one of the two main judges of the early proceedings in Salem,
often signing his name under John Hathorne.) Salem Records A quorum
was five of these seven. It was dissolved October 29, 1692 when the
trials were reflected upon and disapproved.
Construction of the fixed expressions
Oyer and terminer: (audiendo et terminando)
Oyer is the
Law French for a hearing or an inspection, as of a deed,
bond, etc., as when a defendant in court prays oyer of a writing. From
Terminer is the
Law French for determining (decide, settle). From the
^ Oyer and terminer, Merriam-Webster.com. Retrieved February 7, 2011.
^ "New York Criminal Courts" (PDF). New York State Archives. Retrieved
^ Burr, Witchcraft Cases, 1914
This article incorporates text from a publication now in
the public domain: Chisholm, Hugh, ed. (1911). "Oyer and
Terminer". Encyclopædia Britannica (11th ed.). Cambridge University
"Oyer and Terminer". New International Encyclo