1911 Encyclopædia Britannica/Assize

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ASSIZE, or Assise (Lat. assidere, to sit beside; O. Fr. assire, to sit, assis, seated), a legal term, meaning literally a “session,” but in fact, as Littleton has styled it, a nomen aequivocum, meaning sometimes a jury, sometimes the sittings of a court, and sometimes the ordinances of a court or assembly.

It originally signified the form of trial by a jury of sixteen persons, which eventually superseded the barbarous judicial combat; this jury was named the grand assize and was sworn to determine the right of seisin of land (see Evidence). The grand assize was abolished in 1833; but the term assize is still applicable to the jury in criminal causes in Scotland.

In the only sense in which the word is not now almost obsolete, assize means the periodical session of the judges of the High Court of Justice, held in the various counties of England, chiefly for the purposes of gaol delivery and trying causes at nisi prius. Previous to Magna Carta (1215) writs of assize had all to be tried at Westminster, or to await trial in the locality in which they had originated at the septennial circuit of the justices in eyre; but, by way of remedy for the great consequent delay and inconvenience, it was provided by this celebrated act that the assizes of mort d’ancestor and novel disseisin should be tried annually by the judges in every county. By successive enactments, the civil jurisdiction of the justices of assize was extended, and the number of their sittings increased, till at last the necessity of repairing to Westminster for judgment in civil actions was almost obviated to country litigants by an act, passed in the reign of Edward I., which provided that the writ summoning the jury to Westminster should also appoint a time and place for hearing such causes within the county of their origin. The date of the alternative summons to Westminster was always subsequent to the former date, and so timed as to fall in the vacation preceding the Westminster term, and thus “Unless before,” or nisi prius, issues came to be dealt with by the judges of assize before the summons to Westminster could take effect. The nisi prius clause, however, was not then introduced for the first time. It occurs occasionally in writs of the reign of Henry III. The royal commissions to hold the assizes are—(1) general, (2) special. The general commission is issued twice a year to the judges of the High Court of Justice, and two judges are generally sent on each circuit. It covers commissions—(1) of oyer and terminer, by which they are empowered to deal with treasons, murders, felonies, &c. This is their largest commission; (2) of nisi prius (q.v.) (3) of gaol delivery, which requires them to try every prisoner in gaol, for whatsoever offence committed; (4) of the peace, by which all justices must be present at their county assizes, or else suffer a fine. Special commissions are granted for inquest in certain causes and crimes. See also the articles Circuit; Jury.

Assizes, in the sense of ordinances or enactments of a court or council of state, as the “assize of bread and ale,” the “assize of Clarendon,” the “assize of arms,” are important in early economic history. As early as the reign of John the observance of the assisae venalium was enforced, and for a period of 500 years thereafter it was considered no unimportant part of the duties of the legislature to regulate by fixed prices, for the protection of the lieges, the sale of bread, ale, fuel, &c. (see Adulteration). Sometimes in city charters the right to assize such articles is specially conceded. Regulations of this description were beneficial in the repression of fraud and adulteration. Assizes are sometimes used in a wider legislative connexion by early chroniclers and historians—the “assisae of the realme,” e.g. occasionally meaning the organic laws of the country. For the “assizes of Jerusalem” see Crusades.

The term assize, originally applying to an assembly or court, became transferred to actions before the court or the writs by which they were instituted. The following are the more important.

Assize of darrien presentment, or last presentation, was a writ directed to the sheriff to summon an assize or jury to enquire who was the last patron that presented to a church then vacant, of which the plaintiff complained that he was deforced or unlawfully deprived by the defendant. It was abolished in 1833 and the action of quare impedit (q.v.) substituted. But by the Common Law Procedure Act 1860, no quare impedit can be brought, so that an action in the king’s bench of the High Court was substituted for it.

Assize of mort d’ancestor was a writ which lay where a plaintiff complained of an “abatement” or entry upon his freehold, effected by a stranger on the death of the plaintiff’s father, mother, brother, sister, uncle, aunt, &c. It was abolished in 1833.

Assize of novel disseisin was an action to recover lands of which the plaintiff had been “disseised” or dispossessed. It was abolished in 1833. See Pollock and Maitland, Hist. Eng. Law.

Assize, clerk of, an officer “who writes all things judicially done by the justices of assizes in their circuits.” He has charge of the commission, and takes recognizances, records, judgments and sentences, grants certificates of conviction, draws up orders, &c. By the Clerks of Assize Act 1869 he must either have been for three years a barrister or solicitor in actual practice, or have acted for three years in the capacity of subordinate officer of a clerk of assize on circuit.

United States.—There are no assize courts in the United States; it is not the custom for supreme court judges of the states to go on circuit, but the judges of the United States Supreme Court do sit as members of the United States circuit courts in the several states periodically throughout the year. These courts are not assize courts, but are federal as distinguished from state courts, and have a special and limited jurisdiction. In the several states the highest court is divided into departments, in each of which there are courts presided over by supreme court judges residing in that department, thus avoiding the assize court or circuit-going system.