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French name, common law purpose

It has a funny name.

And a deadly serious nature.

Anonymous_GallowsAnd just about everybody pronounces it wrong.

So The Legal Genealogist is on the road today, en route to the Spring Seminar of the Alabama Genealogical Society at Samford University in Birmingham tomorrow (will I see you there?)… but there’s a term that has reader Janet puzzled that we can clear up fairly quickly.

“I found a court record where the guy I think is my ancestor was involved, but I never heard of this court,” she wrote.

Its name: the Court of Oyer and Terminer.

You’ll come across this court in a number of jurisdictions. It was set up in Massachusetts in 1692 (think Salem… think charges of withcraft),1 it existed in New York between 1683 and 1895,2 the name was used for courts in Virginia and Delaware and Pennsylvania and Georgia, and other states as well.3

And it was a court of criminal jurisdiction — usually very serious criminal jurisdiction indeed: “This name is generally used (sometimes, with additions) as the title, or part of the title, of a state court of criminal jurisdiction, or of the criminal branch of a court of general jurisdiction, being commonly applied to such courts as may try felonies, or the higher grades of crime.”4

So, historically, courts of oyer and terminer were superior courts set up to hear criminal cases. Things like treason and serious felonies. Crimes that carried penalties like death or maiming. In many slave-holding states, they were the courts that handled cases against slaves who could face death if convicted.

The name is drawn from legal French — meaning literally to hear and determine.5

But it’s not given the French oh-yay type pronunciatipon. It is, instead, oy-yer and ter-min-er, with the -er pronounced in plain English.

The funny-sounding court with the deadly serious nature.


SOURCES

Image: Open Clip Art

  1. Court of Oyer and Tewrminer, Glossary, Salem Witch Trials, About.com Women’s History (http://womenshistory.about.com : accessed 3 Apr 2014).
  2. Records Relating to Criminal Trials, Appeals, and Pardons ,” New York State Archives information leaflet 9 (http://www.archives.nysed.gov : accessed 3 Apr 2014).
  3. Wikipedia (http://www.wikipedia.com), “term,” rev. 24 Jan 2014.
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 292, “court of oyer and terminer.”
  5. Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 3 Apr 2014), “oyer and terminer.”
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