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, b ...

, 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 Law French ( nrf, Louai Français, enm, Lawe Frensch) is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, be ...

name, the commission was also known by the

Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, many of the words and much of the vocabulary stem from English. ...

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 settlers in the mid-5th ...

-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 A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...

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 admi ...

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 p ...

; 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 retir ...

. 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 Crown had the power to issue commissions of oyer and terminer in

Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...

for the trial of

treason 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 ...

and

misprision of treason Misprision of treason is an offence found in many common law jurisdictions around the world, having been inherited from English law. It is committed by someone who knows a treason is being or is about to be committed but does not report it to a p ...

. Three Lords of Justiciary had to be in any such commission. An

indictment An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that ...

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 The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...

. 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 Delaware ( ) is a state in the Mid-Atlantic region of the United States, bordering Maryland to its south and west; Pennsylvania to its north; and New Jersey and the Atlantic Ocean to its east. The state takes its name from the adjacent ...

Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to the ...

New Jersey New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delawa ...

and

Pennsylvania Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...

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 Antebellum, Latin for "before war", may refer to: United States history * Antebellum South, the pre-American Civil War period in the Southern United States ** Antebellum Georgia ** Antebellum South Carolina ** Antebellum Virginia * Antebellum ar ...

period, oyer and terminer courts heard criminal cases against slaves, Native Americans and other disenfranchised defendants.

Massachusetts Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...

Governor

William Phips Sir William Phips (or Phipps; February 2, 1651 – February 18, 1695) was born in Maine in the Massachusetts Bay Colony and was of humble origin, uneducated, and fatherless from a young age but rapidly advanced from shepherd boy, to shipwright, s ...

created a court of Oyer and Terminer for the

Salem witch trials The Salem witch trials were a series of hearings and prosecutions of people accused of witchcraft in colonial Massachusetts between February 1692 and May 1693. More than 200 people were accused. Thirty people were found guilty, 19 of whom w ...

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