English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

, oyer and terminer (; a partial translation of the Anglo-French , 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 () is an archaic language originally based on Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England from the 13th century. Its use continued for several centur ...

name, the commission was also known by the

Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively referred to as Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, much of it stems from English. Law Latin may also be see ...

name , and the

Old English Old English ( or , or ), 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 developed from the languages brought to Great Britain by Anglo-S ...

-derived term

sac and soc __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 lack a single, precise definition. Anglo-Saxo ...

. 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 ...

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 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 person to testify. A grand ju ...

; 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; pronounced or , depending on the jurisdiction) hears the evidence in a trial as presented by both the plaintiff (petitioner) and the defendant (respondent). After hearing the evidence and often jury ins ...

. 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 partl ...

the Crown The Crown is a political concept used in Commonwealth realms. Depending on the context used, it generally refers to the entirety of the State (polity), state (or in federal realms, the relevant level of government in that state), the executive ...

had the power to issue commissions of Oyer and Terminer in

Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...

for the trial of

treason Treason is the crime of attacking a state (polity), state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to Coup d'état, overthrow its government, spy ...

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 offense is a felony; jurisdictions that do not use that concept often use that of an ind ...

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 a prerogative writ in England, issued by a superior court to direct that the recor ...

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 C ...

. Commissions of Oyer and Terminer in Scotland have been exercised at various points in history, for example, the trial of

Radicals Radical (from Latin: ', root) may refer to: Politics and ideology Politics *Classical radicalism, the Radical Movement that began in late 18th century Britain and spread to continental Europe and Latin America in the 19th century *Radical politics ...

during the "

Radical War The Radical War, also known as the Scottish Insurrection of 1820, was a week of strikes and unrest in Scotland, a culmination of Radical demands for reform in the United Kingdom of Great Britain and Ireland which had become prominent in the ea ...

" 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 U.S. state, state in the Mid-Atlantic (United States), Mid-Atlantic and South Atlantic states, South Atlantic regions of the United States. It borders Maryland to its south and west, Pennsylvania to its north, New Jersey ...

Georgia Georgia most commonly refers to: * Georgia (country), a country in the South Caucasus * Georgia (U.S. state), a state in the southeastern United States Georgia may also refer to: People and fictional characters * Georgia (name), a list of pe ...

New Jersey New Jersey is a U.S. state, state located in both the Mid-Atlantic States, Mid-Atlantic and Northeastern United States, Northeastern regions of the United States. Located at the geographic hub of the urban area, heavily urbanized Northeas ...

and

Pennsylvania Pennsylvania, officially the Commonwealth of Pennsylvania, is a U.S. state, state spanning the Mid-Atlantic (United States), Mid-Atlantic, Northeastern United States, Northeastern, Appalachian, and Great Lakes region, Great Lakes regions o ...

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

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.

Massachusetts Massachusetts ( ; ), officially the Commonwealth of Massachusetts, is a U.S. state, state in the New England region of the Northeastern United States. It borders the Atlantic Ocean and the Gulf of Maine to its east, Connecticut and Rhode ...

Governor

William Phips Sir William Phips (or Phipps; February 2, 1651 – February 18, 1695) was the first royally appointed governor of the Province of Massachusetts Bay, and the first native-born person from New England to be knighted. Phips was famous in his lifeti ...

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 Province of Massachusetts Bay, colonial Massachusetts between February 1692 and May 1693. More than 200 people were accused. Not everyone wh ...

on May 27, 1692, consisting of Mr. Stoughton, Maj. Richards, Maj. Gidny, Mr. Wait Winthrop,

Samuel Sewall Samuel Sewall (; March 28, 1652 – January 1, 1730) was a judge, businessman, and printer in the Province of Massachusetts Bay, best known for his involvement in the Salem witch trials, for which he later apologized, and his essay ''The Selling ...

, Mr. Sargeant, as well as Maj.

Nathaniel Saltonstall Col. Nathaniel Saltonstall – May 21, 1707 was a judge for the Court of Oyer and Terminer, a special court established in 1692 for the trial and sentence of people, mostly women, for the crime of witchcraft in the Province of Massachusetts Ba ...

, who soon withdrew in dissatisfaction and was replaced by

Jonathan Corwin Jonathan Corwin (also Curwin, Curwen or Corwen, November 14, 1640 – June 9, 1718) was a New England merchant, politician, and magistrate. He is best known as one of the judges involved in the Salem witch trials of 1692, although his late ...

. (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