RECORD GROUP: Clerk of the Court
RECORD SERIES #: 2800
SERIES: Oyer & Terminer
VOLUME: 18 volumes, 26 mansucript boxes and 1 record carton
Long before the American colonies were settled, the court of Oyer & Terminer had been established in England as a criminal court of the King’s Bench. It was not surprising that, when the English colonists arrived in the New World and began forming the legal system, they structured the courts of law along familiar lines.
In New Jersey, the Oyer & Terminer court was established as early as 1665 under Lord Proprietors John Berkeley and George Carteret who had received a grant of a large tract of land referred to as “New Caesarea or New Jersey” from James, Duke of York. The grant, which established Berkeley and Carteret as sole proprietors of the province, also included the right of government and granted the authority to establish courts. Justices and officers of the courts were to be appointed by the proprietors or governor. Sir George Carteret named Philip Carteret as the first governor of the Province in 1665.
The history and activity of the Oyer & Terminer court during the period 1665 to 1702 is vague. The court only met occasionally since most of the criminal cases were directed to, and heard in, the Supreme Court, which held jurisdiction over “all matters.” It was also during this period (1676) that the province was formally divided into West Jersey and East Jersey. Sir George Carteret received the easterly portion, which included Monmouth County. The division brought about two different court systems, which closely followed the English court traditions.
In 1702, the Province was once again united. Lord Cornbury, appointed the first Royal Governor of the Province of New Jersey by Queen Anne, issued his “Ordinances for Establishing Courts of Judicature.” Although the court of Oyer & Terminer was not clearly defined in Cornbury’s ordinances, he did commission judges of the Supreme Court to hold courts of Oyer & Terminer. During the period from 1702 to the 1740s, the court sat regularly to hear criminal cases, specifically, matters of felonies, misdemeanors and treason. Also included on the list of indictable offenses were adultery, assault, fornication, forgery, housebreaking, larceny, and riot.
Another court closely associated with Oyer & Terminer was the Court of General Gaol Delivery. While Oyer & Terminer could hear, try and sentence offenders, General Gaol Delivery could only hear and hand down indictments. The primary jurisdiction of General Gaol Delivery court was to hold any prisoner in the jail and to deliver him or her from the jail when the Supreme Court justice arrived to hold either Oyer & Terminer or Quarter Sessions court.
In 1743, mention is made of Oyer & Terminer in an “Act for Supporting the Government of His Majesty’s Colonies…..” The act stated that the Chief Justice or other Supreme Court justices were to receive 10 pounds for holding the courts of nisi prius on circuit (the trial of civil causes by jury) and of Oyer & Terminer and General Gaol Delivery. The civil and criminal courts were held separately, one following the other, when there were cases in both needing to be heard. The Act stipulated that no more than two circuits could be held within a year and that Oyer & Terminer could not be held in a county when the Supreme Court was meeting in Perth Amboy or Burlington, the capitals of West Jersey and East Jersey. When the Supreme Court sat at Perth Amboy and Burlington, cases could only be heard there.
Oyer & Terminer continued without changes until 1777, when judges of the court began to be appointed and commissioned by the Governor with the advice and consent of the Legislative Council (established under the 1776 Constitution), rather than appointed by Royal Governors.
Through the Act of November 27, 1794, the court of Oyer & Terminer was sanctioned officially and its jurisdiction defined. The Act specified that the courts of Oyer & Terminer and General Gaol Delivery were to be county courts presided over by a Supreme Court justice (the Supreme Court justice travelled on circuit) and judges of the Common Pleas court (an exact number of judges is not specified). Both courts were to continue with the same jurisdictions as originally established. Criminal acts, under the 1794 Act, included adultery, arson, bigamy, burglary, cutting timber, forgery, fornication, gaming (gambling), murder, manslaughter, polygamy, perjury, rape, robbery, sodomy, treason, and all crimes punishable with death. The court was to be held within the county where the crime had been committed. Appeals could be made only to the Supreme Court.
Although Oyer and Terminer could try any case, the court of General Quarter Sessions could also hear most criminal cases, except for the most serious crimes. In the 18th century, grand juries were appointed by both courts to consider indictments for those accused of crimes. Indicted individuals were arraigned for trial and pleaded guilty, not guilty, or non vult contendere in the respective courts. Those who pleaded not guilty were usually released on recognizance (bail) to give them time to prepare their defense. At the trial, the petit jury would consider the verdict. If the verdict was guilty, the court would usually impose either a fine or a jail term. In the 18th century, physical punishments such as whipping and branding were also administered, as was requiring defendants to post a recognizance that would be forfeited if they continued to break the law.
Forty-four years passed before another minor change was made to Oyer & Terminer procedures through the Act of February 11, 1838. Clerks of the courts, within each county, were given the authority to open and adjourn the court if the Supreme Court justice was not available to preside. The clerk did not have the authority to hear or try cases, but only to open the court. If the justice did not appear, the clerk would adjourn the court until the next day and make appropriate notations in the court minutes. In instances where the justice was absent for a long interval, the Act gave the court of Quarter Sessions (also a criminal court) authority to organize a grand jury within the county to hear cases and to hand down indictments. Quarter Sessions could also conduct trials and issue sentences, except on indictments for murder, manslaughter, and treason.
In 1841, “A Supplement to the act entitled ‘An Act constituting courts of oyer and terminer and general gaol delivery, passed November 27, 1794’” combined Oyer & Terminer and General Gaol Delivery into one court, commonly called Oyer & Terminer.
In the 19th century, grand juries usually were appointed only by Oyer and Terminer. After 1846, the Quarter Sessions court could only call a grand jury if the Supreme Court justice required to open Oyer and Terminer was not present.
Before the Civil War, trials of felonies and sentencings of those tried and found guilty were usually conducted by the court of Oyer and Terminer, but prisoners often came before the Quarter Sessions court for arraignment or issuing of recognizances. Occasionally, Oyer and Terminer did not meet and Quarter Sessions carried out its work. After the Civil War, grand juries continued to present indictments in Oyer and Terminer, but increasingly, arraignments, trials, and sentencings for all but the most serious cases were handled by Quarter Sessions. In addition, beginning in 1869, a court of Special Quarter Sessions was held for those who waived their right of trial by jury and, usually, pleaded guilty.
By the late 1870s, with the notable exception of serious crimes, the Oyer and Terminer court passed down most defendants who pleaded not guilty to Quarter Sessions for trial. The Special Sessions court sentenced those who waived indictment by the grand jury and pleaded guilty.
By 1900, Oyer and Terminer was trying only cases of first degree murder and sentencing those found guilty, although it retained the authority to try other cases.
Oyer and Terminer was officially abolished by the 1947 New Jersey Constitution, but continued to operate until 1948. The State Constitution of 1947 brought about major changes to the state’s judicial system, replacing many of the 18th century courts, including Oyer & Terminer. Under the 1947 Constitution, a County Court was established in each county, effective September 15, 1948. This County Court was divided into two divisions, probate and law. Criminal cases, formerly under the jurisdiction of Oyer & Terminer, were assigned to the Law Division of the County Court.
In November 1992, the citizens of the State, through referendum, voted to transfer the responsibility of maintaining the county courts and court records to the State’s Superior Court, effective January 1, 1995. After almost 300 years, County Clerks are no longer Clerks of the Courts within their respective counties.
• Oyer & Terminer, Criminal Indictment books, 1912-1930, 2 books
• Oyer & Terminer, Grand Jury Checklists, 1786-1850, 1 flat box
• Oyer & Terminer, loose papers, 1732-1939, 10 cubic feet, 25 manuscript boxes
• Oyer & Terminer, Minute Books, 1856-1947, 9 volumes
• Oyer & Terminer, Scratch minute books, 1908-1925, 7 books
These loose papers of case costs are contained in one manuscript box. An example is for The State vs. George G. Robinson, on Indictment for Selling Liquor without License, September Term, 1856. In Robinson’s case, the costs were itemized and totaled $41.42. These one-page, tri-folded records have not been microfilmed, scanned, or indexed.
O&T Criminal Indictment books
These two books are arranged alphabetically by the first letter of the surname, then by date. Information includes date, name, indictment or waiver, crime, disposition of case and a remarks column. Indictments Book 1 covers 1912-1923. Indictments Book 2 covers 1924-1930. These books also include lesser crimes. They have not been microfilmed, scanned, or indexed.
O&T Grand Jury Checklists
Names on the Grand Jury lists are indexed and noted as GJL in the document type field of the Access database that indexes these records. The lists show: offender name, residence, and occupation, crime, time and place of crime, witness names and residences, remarks (Bill of Indictment or No Bill). Names where the Grand Jury found insufficient evidence to submit a bill for the offender to stand trial are not indexed.
O&T loose papers
From early colonial days, one of the major responsibilities of the County Clerk was to serve as Clerk of the Courts (originally referred to as Clerk of Pleas and Sessions). As Clerk of the Courts, the County Clerk was required to record and hold all records pertaining to the courts of that county.
The court of General Gaol Delivery, which was eventually combined with Oyer and Terminer, is included in these records.
Eighteenth century loose papers consist almost entirely of “Grand Inquest” (grand jury) bills of indictment (the billa vera). Indictments before 1790 that do not identify the court are presumed to be Oyer and Terminer.
Nineteenth and early twentieth century loose papers for Oyer and Terminer not only include indictments, but many other types of documents, including complaints, notices of trial, warrants, recognizances, and tax bills of costs (the court costs to be paid by the defendant if found guilty). Less frequently, affidavits, statements by witnesses (testimony), and other documents are found.
Oyer and Terminer records are closely related to the criminal records of two other courts: General Quarter Sessions and Justice of the Peace courts. Oyer and Terminer dealt almost exclusively with criminal matters; Quarter Sessions dealt primarily with criminal matters, but occasionally became involved in other legal cases, such as responsibility for support of a pauper or contested elections. The justices of the peace, throughout the county, dealt with minor criminal infractions and initiated actions on felonies continued in Oyer and Terminer and Quarter Sessions.
In the period covered by these records, grand juries usually would present their bills of indictment in a court of Oyer and Terminer, which was held twice a year in colonial times and quarterly thereafter. Grand jury proceedings were recorded on a grand jury check list. If the individual was not already under arrest, a justice of the peace would usually issue the warrant. (Justices of the Peace also recorded complaints, which often initiated legal proceedings.) After arrest, prisoners would be arraigned in either Oyer and Terminer or Quarter Sessions and plead guilty, not guilty, or non vult contendere (essentially, ‘no contest,’ which was equivalent to a guilty plea for all practical purposes). The plea would be recorded in the minute book (Oyer and Terminer or Quarter Sessions, as appropriate). Depending on the plea, the accused would then either be tried or sentenced, although these steps were sometimes postponed until another session of the court; if postponed, the accused would sometimes be released on a recognizance (bail). Trials and sentencings were recorded in the minutes. If found guilty, the defendant would have to pay court costs as presented in a tax bill of costs.
The County Clerk, as Clerk of the Courts, had the responsibility to record and hold records for all courts held at the County courthouse (Common Pleas, Circuit [after 1844], Oyer & Terminer and Quarter Sessions, including Special Quarter Sessions. The Clerk also, in some cases, acquired and retained records of the Justices of the Peace (courts of Small Causes). The overlapping responsibilities of the different courts with responsibility for criminal matters resulted in a confusing historical record of their work. For example, indictments labelled as Oyer and Terminer records often have annotations indicating that the trial took place in Quarter Sessions. No filing system other than loosely grouping indictments for both courts by year was used. Some documents, such as complaints, warrants, recognizances, and tax bills of costs were kept separately for some years, but filed by case for others. Loose papers typically were folded and stored in metal “Woodruff” cans, which were eventually replaced by manuscript boxes.
To facilitate research, the Monmouth County Archives has flattened these loose papers and organized them according to the following principles:
• All loose papers pertaining to a criminal case are filed together by the court in which the accused was sentenced or, if found not guilty, in the court where the trial was held, with the exception of a separate series of some tax bills. If the case did not come to trial, the papers are filed by the last court which acted on the case. If the court is not stated on the papers, records are filed in Oyer and Terminer unless internal evidence suggests otherwise.
• Papers are filed by the year in which the last significant action on the case occurred (date of the tax bill of costs is not considered significant for filing purposes). Within year, cases are filed alphabetically by defendant.
• Where the court cannot be identified, loose papers for criminal cases are filed under Oyer and Terminer. (This rule pertains primarily to 18th century documents.)
In addition to loose papers pertaining to specific cases, some other documents pertaining to Oyer and Terminer are also available for some years, such as grand jury check lists, lists of jury panels (either grand juries or petit juries), lists of indictments, and prosecutor’s or clerk’s notes pertaining to more than one case. Researchers should keep in mind that the loose papers for Oyer and Terminer, while constituting a substantial record, are not complete. Many cases that started in Oyer and Terminer were completed in Quarter Sessions and the loose papers for these cases have been filed in Quarter Sessions.
O&T Minute Books, 1838-1948
O&T Minute Books for 1838-1850 are mixed in with Circuit Court Minutes in two volumes.
O&T Minute Book 1, 1856-1857 (damaged, partially legible)
O&T Minute Book 2, 1857-1859 (damaged, partially legible)
O&T Minute Book 3, 1859-1861 (damaged, partially legible)
O&T Minute Book 4, 1861-1867
O&T Minute Book 5, 1867-1873
O&T Minute Book 6, 1873-1884
O&T Minute Book 7, 1884-1902
O&T Minute Book 8, 1903-1932
O&T Minute Book 9, 1932-1947
O&T Minute Books for 1947-1948 are mixed in with Superior Court and County Court.
A name/page number index was prepared for each of the seven books, 1856-1902. The two books for 1903-1947 have the name/page index on their first pages. The indexes for 1856-1902 Minute books were combined into one Access database containing 3,154 records on July 2, 2018.
Minutes for court sessions include calling the court to order, the names of the justices, and lists of grand jury and petit jury panels, followed by a list of indictments brought in by the grand jury. (Names of individuals considered but not indicted by grand juries are unrecorded in the minutes, although the Archives does have some grand jury checklists that include these names.) Typical entries for cases in the Minute Books include the plea of the defendant and, if the defendant pleaded not guilty, a record of the trial. The trial record includes the names of the jury, the witnesses, and the attorneys, and, of course, the verdict. Testimony of witnesses is not recorded. If the defendant is found guilty, the minutes include a record of the sentence. Records of recognizances issued (bail) are also recorded as are retractions of pleas before trials (almost always from not guilty to guilty).
Researchers should be aware that many individuals are indicted in Oyer and Terminer but the minutes do not include a complete record for the disposition of the case. Usually, this means that the case was continued in Quarter Sessions. However, some individuals were indicted but never arrested. Others were released on a recognizance after arraignment and did not return. The minute books record a number of cases for which no loose papers have been found or only a partial record has been found, suggesting that some records are lost. Finally, for some cases, only some of the records are available and not others.
O&T Scratch Minute books
For the periods 1906-1925 and 1943-1948, Oyer & Terminer scratch minutes are contained in with the volumes for Quarter Sessions minutes. These books are hand-written in pencil and “scratched” off but readable. They were microfilmed in February 1999, but have not been indexed or scanned.
As previously noted, some criminal cases involved more than one court, and researchers may need to consult Quarter Sessions and/or Justice of the Peace records. To the extent possible, Archives staff have consolidated all loose documents pertaining to a case in the court which heard the case last. In most cases, this means the court which delivered the verdict and sentence if the defendant was found guilty.
However, since many cases passed from Oyer and Terminer to Quarter Sessions, researchers may still have to check more than one book of minutes for a given case.
Oyer and Terminer records are available for research, with the exception of sealed grand jury panels, for which permission is needed. An Access database titled OTQS of 33,411 records contains 7,139 O&T records and is combined with Quarter Sessions records. It includes O&T loose records for the years 1734-1932. It is searchable by 40 different fields, including the crime, location and date, the defendant name, residence, race, profession and gender, victim name, residence, race, profession and gender, additional defendants, additional victims, document type, plea, verdict, fine, sentence, witness list, notes, and more. An additional column indicates if the record is available in Monmouth County Archives, or at State Archives (SA), Morristown National Historic Park (MP), or Princeton University (PU). The Archives holds one reel of microfilm of the Monmouth County O&T records in Morristown.
125 Symmes Drive
Manalapan NJ 07726
Neither the books nor the loose papers have been scanned.
See Princeton University Library for O&T Minute Book, 1749-1762.
See Genealogical Magazine of New Jersey for transcript of O&T Minute Book 1749-1762.
See Morristown National Historic Park for O&T loose papers 1778-1784.
See Circuit Court Minutes for O&T Minutes 1838-1850 in Archives.
See Quarter Session Minutes for O&T scratch minutes 1904-1925 and 1943-1948 in Archives.
See Superior Court Minutes and County Court Minutes for O&T Minutes 1947-1948 in Archives.