Oyer and terminer is a Law French phrase meaning “to hear and determine,” and it named a type of criminal court commission used in England and colonial America that gave appointed judges authority to investigate serious crimes in a defined area, try the accused, and impose sentence. The phrase turns up constantly in colonial charters, early state constitutions, and old court records, and knowing what it meant explains how American criminal justice was organized before modern court systems took shape.
Where the Words Come From
“Oyer” traces to an Old French verb meaning “to hear.” “Terminer” means “to determine” or “to conclude.” Put together, they described the full arc of a criminal case: listening to the evidence and reaching a binding decision. A court of oyer and terminer could both try the facts and deliver final judgment, which set it apart from bodies that could gather evidence but lacked power to sentence.
The phrase belongs to Law French, the specialized legal language that dominated English courts for centuries after the Norman Conquest of 1066. Long after ordinary people in England had stopped speaking French, lawyers and judges kept using it in courtrooms and official documents. “Oyer and terminer” survived because it so efficiently captured a specific grant of judicial power. When the phrase appears in a colonial-era document, it signals that the named court had been empowered to handle serious criminal matters from start to finish.
How the Commission Worked
These courts did not come from a standing judicial office. Their authority flowed from a written document called a Commission of Oyer and Terminer, issued by the sovereign in England or by a colonial governor in America. The commission named specific individuals, directed them to investigate all treasons, felonies, and misdemeanors committed in the counties or territories specified, and authorized them to hear and determine those cases according to law.
In practice, judges of assize sat on these commissions, though the document typically named other prominent officials alongside them. The commission set geographic and temporal boundaries. It told the appointed judges exactly where to go and what crimes fell within their reach. That made the system flexible. A governor or king could dispatch a court to a region hit by a surge of violent crime or political unrest without permanently restructuring the judiciary. Once the commission’s business was finished, the special authority expired.
The commission’s language was deliberate in its sequence: “to inquire, hear, and determine.” Commissioners could not skip to trial. The inquiry phase required a grand jury, which examined the accusations first, and only after it returned an indictment could the commissioners move to the “hear and determine” phase, where a petit jury decided guilt or innocence.1Historical Society of the New York Courts. Court of Oyer and Terminer
What Kinds of Cases It Heard
Courts of oyer and terminer handled the most serious criminal matters. Their commissions covered treason, felonies, and misdemeanors, but in practice they focused on the graver offenses that lower magistrates were ill-equipped to try. Treason occupied a special place on the docket because challenges to sovereign authority demanded a court with unquestionable legitimacy and full sentencing power.
The court’s jurisdiction extended to all felony cases, including those punishable by life imprisonment or death.1Historical Society of the New York Courts. Court of Oyer and Terminer Murder, manslaughter, robbery, and other violent crimes regularly appeared. Because these were courts of record, every proceeding was formally documented, and the decisions carried the full weight of law. The result was a practical division of labor: local magistrates kept daily order and dealt with minor offenses, while an oyer and terminer commission arrived to address the cases that carried the heaviest consequences.
The Salem Witch Trials
The most notorious commission in American history was established on May 27, 1692, when Massachusetts Governor William Phips created a special court to address the witchcraft accusations sweeping Salem Village. Lieutenant Governor William Stoughton presided. The proceedings became a cautionary tale about what happens when a powerful judicial commission operates with weak procedural safeguards.
Stoughton’s court allowed “spectral evidence,” meaning testimony about acts supposedly carried out by demons that only the accuser could see. The court also encouraged confessions through coercion, sparing those who confessed and condemning those who maintained their innocence. In four months the court executed twenty people, with more than a hundred prisoners still awaiting trial when Governor Phips dissolved the commission in September 1692.
Salem illustrates both the power and the danger built into the oyer and terminer structure. A governor could stand up a court quickly to meet an urgent crisis, but the commission’s broad authority, combined with minimal appellate oversight, created conditions ripe for abuse. The aftermath contributed to growing skepticism about special judicial commissions and fed later demands for permanent courts with established procedural protections.
Why You Won’t Find One Today
As American states matured their judicial systems, the temporary commission-based model gave way to permanent courts with broad jurisdiction. States made the change at different times across more than a century. New York abolished its Court of Oyer and Terminer in 1895 under the Constitution of 1894, transferring the work to the state Supreme Court.2Historical Society of the New York Courts. Courts of New York State New Jersey folded the jurisdiction into its Superior Court in 1948.3Court of Oyer and Terminer – New Jersey State Archives. Court of Oyer and Terminer Delaware did the same in 1951.4Delaware Public Archives. Court of Oyer and Terminer Pennsylvania’s constitution abolished the courts of oyer and terminer, quarter sessions of the peace, and general jail delivery, transferring all of their jurisdiction to the courts of common pleas.5Pennsylvania General Assembly. Constitution of Pennsylvania
The pattern was consistent. States replaced the commission-based model with permanent trial courts holding general jurisdiction over all criminal matters. Judges no longer needed a special written warrant to try a felony. Consolidation simplified administration, eliminated overlapping jurisdictions, and gave defendants a more predictable forum.
No American court operates today under a commission of oyer and terminer. The phrase survives in historical records, archived case files, and the occasional legal history course. The core idea behind it carries forward in the structure of modern criminal courts: a tribunal empowered to investigate through a grand jury, hear evidence at trial, and deliver a final binding judgment. The language changed. The function stayed.