Oyer and terminer
In English law, Oyer and terminer (/ɔːɪə ənd ˈtɜːrmɪnə/; a partial translation of the Anglo-French oyer et terminer which literally means "to hear and determine"[1]) was the Law French name 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.
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 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.[2] 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 June 2, 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.[3] 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 the Latin "audire."
- Terminer is the Law French for determining (decide, settle). From the Latin "terminare."
References
- ↑ Oyer and terminer, Merriam-Webster.com. Retrieved February 7, 2011.
- ↑ "New York Criminal Courts" (PDF). New York State Archives. Retrieved 2013-06-27.
- ↑ Burr, Witchcraft Cases, 1914
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This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press.