Definition
A certification of assize was a procedural writ in English common law by which a matter previously determined before justices by assize — a form of jury-based inquest or trial — was brought up for re-examination or retrial before a higher tribunal. The writ functioned as a mechanism for correcting errors or revisiting findings made in the original assize proceeding.
The device is closely related to, and in some descriptions nearly synonymous with, the writ of certiorari in its earliest operational sense: extracting a record from a lower tribunal for supervisory review. Wharton's account, as reflected in Rapalje & Lawrence, draws this parallel explicitly, noting that the certification of assize resembles a mandamus in certain of its procedural effects. Bouvier is cited as suggesting that such a writ may still have been technically available in his era, though Wharton regarded it as by then entirely superseded by the remedy of a new trial.
The term has two distinct components worth disaggregating for research purposes:
1. CERTIFICATION: The act of formally attesting and transmitting the record of a proceeding to another court, typically for review.
2. ASSIZE: In its procedural sense, a sitting of royal justices empowered to take jury verdicts on defined questions — particularly questions of land right and possession — under the Assizes of the twelfth and thirteenth centuries. By extension, the term applied to the jury verdict or finding itself, and to the form of trial associated with those proceedings.
Together, the phrase denotes the formal transmission of a finding made by assize for re-examination before a superior court.
---
Common Confusion
Certification of assize should not be conflated with certiorari as that writ is understood in modern practice. While both involve the upward transmission of a record for review, certiorari survived and evolved into a broad supervisory writ (and, in the U.S. Supreme Court context, a discretionary grant of review). The certification of assize was a narrower, historically bounded device tied specifically to the assize form of proceeding, which itself became obsolete. A researcher encountering "certification" in an old pleading or writ register should determine which procedural vehicle is actually described before mapping it onto modern equivalents.
Similarly, the writ should not be confused with a writ of error, which addressed legal error apparent on the face of the record, or with attaint, which was the ancient method of challenging a jury verdict for alleged perjury.
---
Why It Matters in Research
This term is a historical artifact. No modern procedural equivalent exists under this name, and it will not appear in contemporary practice materials. Researchers will encounter it in:
- Pre-modern English writ registers and plea rolls, particularly those involving land disputes resolved under the grand assize or petty assize;
- Nineteenth-century American and English legal dictionaries attempting to catalog obsolete writs for completeness;
- Historical treatments of the development of appellate and supervisory review, where certification of assize appears as an ancestor of certiorari and related supervisory mechanisms.
The Rapalje & Lawrence entry is compressed and partially obscured — the source text as transmitted appears to contain a transcription gap ("A or record: in this use it resembles a man-") suggesting that the original entry read something like "A writ of record: in this use it resembles a mandamus." Researchers relying on that entry should treat it as an abbreviated summary and consult Wharton's Law Lexicon directly for the fuller treatment, and Bouvier's Law Dictionary for the alternative view that the writ retained residual availability.
The critical research trap is anachronism: applying modern appellate review concepts to this writ without accounting for the fact that the assize form of proceeding it addressed had no fixed appellate structure in the modern sense. The "re-examination" authorized by certification of assize was not appellate review in the sense of examining legal error; it was closer to a retrial or re-inquest.
For American legal history researchers: the assize form of proceeding was never fully transplanted into colonial or early American courts in its English form. References to "assize" in American sources typically refer either to courts of general jurisdiction styled as courts of assize and nisi prius, or — in commercial contexts — to the assize of bread, weights, and measures. The certification of assize as a writ is not a live issue in American legal history research.
---
Historical Dictionary Support
Rapalje & Lawrence is the sole dictionary source available for this entry. Their treatment, though fragmentary in transmission, identifies the key features: this is a writ of record; it is used for re-examination or retrial of a matter passed by assize before justices; and it is distinguished from — but compared to — the mandamus. The note that Wharton regards it as entirely superseded by new trial practice is significant: it places the terminal obsolescence of the writ no later than the mid-nineteenth century.
The reference to Bouvier's possible contrary view (that some functional equivalent may have survived) reflects a recurring pattern in nineteenth-century legal dictionary practice, where American authors were reluctant to declare English common law writs wholly extinct without qualification. This should be read as a hedging posture rather than evidence of active use.
No major modern legal dictionary — Black's, Ballentine's, or their successors — carries this entry, which is itself evidence of complete obsolescence. The absence is informative.
---
Jurisdictional Note
This writ was English in origin and did not take root as a distinct procedural form in American courts. English law abolished the assize form of proceeding through the Judicature Acts of the 1870s and associated reforms. Researchers working in Scottish, Irish, or colonial legal records should verify independently whether cognate forms appeared in those systems under the same or different names.
---