Oyer and terminer
Encyclopedia
In English law
, Oyer and terminer (a partial translation of the Anglo-French oyer et terminer which literally means "to hear and determine") was the Law French
name, meaning "to hear and determine", for one of the commissions by which a judge of assize sat. The commission was also known as audiendo et terminando.
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.
, 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 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.
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. Governor William Phips
created a court of Oyer and Terminer for the Salem witch trials
which was dissolved in 1693 when the trials were reflected upon and disapproved. One of the courtmen, Increase Mather
, wrote in his "Cases of Conscience" that "It were better that ten suspected Witches should escape, than that one innocent Person should be condemned."
(audiendo et terminando)
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, Oyer and terminer (a partial translation of the Anglo-French oyer et terminer which literally means "to hear and determine") was the Law French
Law French
Law French 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, beginning with the Norman Conquest by William the Conqueror...
name, meaning "to hear and determine", for one of the commissions by which a judge of assize sat. The commission was also known as audiendo et terminando.
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
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
; 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.
Use in Scotland
By the Treason Act 1708Treason Act 1708
The Treason Act 1708 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. It came into effect on 1 July 1709. Some of it is still in force today...
, the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
had power to issue commissions of oyer and terminer in Scotland for the trial of treason
High treason in the United Kingdom
Under the law of the United Kingdom, high treason is the crime of disloyalty to the Crown. Offences constituting high treason include plotting the murder of the sovereign; having sexual intercourse with the sovereign's consort, with his eldest unmarried daughter, or with the wife of the heir to the...
and misprision of treason
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 proper authority...
. Three Lords of Justiciary had to be in any such commission. An indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
for either of the offences mentioned could be removed by certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
from the court of oyer and terminer into the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
.
Commissions of oyer and terminer in Scotland have been exercised at various points in history, for example the trial of Radicals
Radicalism (historical)
The term Radical was used during the late 18th century for proponents of the Radical Movement. It later became a general pejorative term for those favoring or seeking political reforms which include dramatic changes to the social order...
during the "Radical War
Radical War
The Radical War, also known as the Scottish Insurrection of 1820, was a week of strikes and unrest, a culmination of Radical demands for reform in the United Kingdom of Great Britain and Ireland which had become prominent in the early years of the French Revolution, but had then been repressed...
" of 1820.
Use in the United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
oyer and terminer is the name either currently or formerly given to courts of criminal jurisdiction in some states, e.g. Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
and Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
. 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. Governor William Phips
William Phips
Sir William Phips was a shipwright, ship's captain, treasure hunter, military leader, and the first royally-appointed governor of the Province of Massachusetts Bay....
created a court of Oyer and Terminer for the Salem witch trials
Salem witch trials
The Salem witch trials were a series of hearings before county court trials to prosecute people accused of witchcraft in the counties of Essex, Suffolk, and Middlesex in colonial Massachusetts, between February 1692 and May 1693...
which was dissolved in 1693 when the trials were reflected upon and disapproved. One of the courtmen, Increase Mather
Increase Mather
Increase Mather was a major figure in the early history of the Massachusetts Bay Colony and Province of Massachusetts Bay . He was a Puritan minister who was involved with the government of the colony, the administration of Harvard College, and most notoriously, the Salem witch trials...
, wrote in his "Cases of Conscience" that "It were better that ten suspected Witches should escape, than that one innocent Person should be condemned."
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 the Latin Audire.
- Terminer is the Law French for determining (decide, settle). From the Latin Terminare.