oyer and terminer

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In English law, Oyer and terminer (a partial translation of the Anglo-French oyer et terminer which literally means "to hear and determine"^[1]) 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.

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. 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."

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

•  This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press. 

External links

• thefreedictionary.com