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The early Delaware laws have few references concerning the Court of Oyer and Terminer which seems to indicate that the court continued the practices of the pre-existing English Court of Oyer and Terminer and General Goal Delivery. The earliest reference is a law passed in 1719 which authorized the court to give death sentences.1 Another early law required crimes not triable before the Court of Quarter Sessions to be certified and transferred to Oyer and Terminer.2 The state’s first constitution (1776) does not mention the court, while the 1792 constitution only notes that the Supreme Court judges are justices of the “Courts of Oyer and Terminer and General Goal Delivery” and that two judges were needed for a quorum.3
It was not until 1826 that the court’s jurisdiction was described in the Delaware laws. The laws then described the court’s responsibilities as hearing cases involving crimes punishable with death and the offenses of accomplices or accessories to such crimes.4 Responsibility for second degree murder and manslaughter cases was later added.5 Slaves as well as free men were tried in Oyer and Terminer.6 The court did not have regular terms but was held as needed.
To hold court, the justices were required to issue precepts to the sheriff for summoning jurors, constables, justices of the peace, the coroner, and others required to attend court. Each person was to be summoned at least ten days before the opening of court. Twenty-four grand jurors and thirty-six petit jurors, later increased to forty-six and fifty-four petit jurors, were to be summoned by the sheriff.7 If the court was to be in session at the same time as the Court of Quarter Sessions, the same grand and petit juries could be used for both courts.8 When court was opened, the sheriff was required to present a return of the jurors listing their names and places of residence.9
The court was required to assign counsel to those who were unable to afford attorneys.10 Those persons who could not pay court costs, jail fees, fines, or restitution money could be `sold’ by the sheriff as servants for a term of less than seven years. The money raised by the sale was used to pay the person’s debts.11 In these cases the clerk of the peace, who was also the clerk of the Court of Oyer and Terminer, was required to report to the state treasurer each year the amount of money due from the sheriff for such sales. If not enough money had been raised by the sales to pay all court costs, a statement was sent to the Levy Court; and they were required to pay the balance.12
In cases where the jury returned a verdict of not guilty by reason of insanity, the court could order the defendant to be committed to an asylum, or after 1857, an almshouse. After 1889 the court had the option of committing the prisoner to Farnhurst State Hospital.13 After 1883 if a defendant became insane after conviction but before being sentenced, the court appointed a commission to inquire into his mental condition. If the commission reported that the prisoner was indeed insane, he was then placed in the custody of the sheriff until such time as he was considered to have recovered his reason. At such time he was declared able to serve his sentence.14
Under the 1831 constitution and the 1897 constitution, the Court of Oyer and Terminer could be held by any of the state judges except the chancellor. Three judges were required for a quorum with the chief justice presiding. If he was not present, the senior associate judge presided.15
Under the constitutions of 1792 and 1831, the Court of Oyer and Terminer’s decisions were final. However, the 1897 constitution permitted the Supreme Court to issue writs of error to the court.16 The accused had to apply for the writ of error within two weeks after sentencing.17 Whenever the court considered that a question of law should be heard by the Court en banc,* Oyer and Terminer had the authority to direct that it be heard.18

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In 1951 the Court of Oyer and Terminer was abolished and its responsibilities and functions assumed by the Superior Court.19


“The Court en banc is a meeting of all the judges of a court, usually for the purposes of hearing arguments on demurrers, motions for a new trial, etc., as distinguished from sessions of the same court presided over by a single judge or panel of judges.” (Black’s Law Dictionary, p. 318.)

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1 1 D.L., ch. 22

2 1 D.L., ch. 54

3 1792 Constitution, Art. VI

4 6 D.L., ch. 362

5 7 D.L., ch. 140

6 6 D.L., ch. 362

7 4 D.L., ch. 163; 6 D.L., ch. 362; 17 D.L., ch. 220

8 8 D.L., ch. 106

9 4 D.L., ch. 163

10 6 D.L., ch. 362

11 4 D.L., ch. 65

12 6 D.L., ch. 132; 8 D.L., ch. 106

13 11 D.L., ch. 397; 17 D.L., ch. 75; 1915 Rev. Code, sec. 2606

14 17 D.L., ch. 79; 1915 Rev. Code, sec. 2607

15 1831 Constitution, Art. VI; 1897 Constitution, Art. IV

16 1897 Constitution, Art. VI

17 28 D.L., ch. 232

18 1897 Constitution, Art. VI

19 48 D.L., ch. 109
rlg/March 11, 1988; May 6, 1988; January 4, 1989

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