Definition
A Scottish criminal law plea in bar asserting that the accused has previously been tried for the offense now charged. The plea functions as a complete bar to further prosecution, grounded in the principle that no person should face trial twice for the same crime. It is the Scottish law equivalent of the common law plea of autrefois acquit or autrefois convict, and corresponds broadly to the constitutional double jeopardy protection recognized in Anglo-American jurisdictions.
The term derives from Scots legal usage: to "thole" meant to endure or undergo, and an "assize" referred to the jury or the trial proceeding itself. To have "tholed an assize" was therefore to have undergone a jury trial — an experience the law would not compel a person to repeat for the same offense.
Common Confusion
THOLED AN ASSIZE is frequently equated with the English pleas of autrefois acquit and autrefois convict, but the correspondence is not exact. In Scottish criminal procedure, tholing an assize historically attached significance to the act of undergoing trial itself, not merely to the outcome. A defendant who had been put in jeopardy before a jury — even without a final verdict of acquittal or conviction in the English sense — could in some circumstances plead that they had tholed an assize. This contrasts with English practice, where autrefois pleas traditionally required a prior judgment on the merits. Researchers should not assume that Scottish decisions construing this plea translate directly into English or American double jeopardy doctrine.
Why It Matters in Research
This term appears almost exclusively in historical sources dealing with Scottish criminal law and in American legal periodicals of the nineteenth century that engaged comparatively with Scottish procedure. The 35 Am. L. Reg. 629 citation in Bouvier signals that American legal scholars of the period took notice of the doctrine, likely in the context of debates over the scope of double jeopardy protection in the United States.
Researchers working in the Law Mind corpus should be alert to several traps. First, the term is archaic even within Scottish legal writing and may not appear in indexes or digests under any modern heading — searches for "double jeopardy," "former jeopardy," "autrefois," or "prior trial" will more reliably surface the relevant material. Second, American sources discussing this plea are comparative rather than doctrinal: they describe Scottish law as a point of contrast or analogy, not as controlling authority. Third, the word "assize" itself is polysemous — it refers elsewhere to a form of real property action, to a court of assize in English practice, and to certain regulatory measures. Corpus searches on "assize" alone will return substantial noise unrelated to this plea.
The plea is a useful anchor for understanding how the prohibition against double jeopardy was conceptualized differently across legal systems before constitutional entrenchment standardized the doctrine in American law. Scottish law's emphasis on the jeopardy of trial itself — rather than on the finality of verdict — represents a meaningful doctrinal divergence worth tracing for comparative legal history projects.
Historical Dictionary Support
Bouvier's Law Dictionary provides the sole historical dictionary entry identified for this term. Bouvier's definition is characteristically spare: "A plea in bar in Scotland in a criminal case to the effect that the accused has once been tried for the offence charged." The single supporting citation — 35 Am. L. Reg. 629 — is not elaborated upon, which is consistent with Bouvier's treatment of borrowed or comparative law terms as peripheral to the core common law corpus the dictionary was designed to serve.
No entry appears in Black's Law Dictionary editions surveyed, nor in Wharton's Law Lexicon, which is notable given that Wharton engaged extensively with Scottish criminal law in other contexts. The absence of the term from English-language dictionaries beyond Bouvier underscores its status as a term of art specific to Scottish legal procedure that entered American legal literature only through comparative scholarship.
Jurisdictional Note
This plea is a term of Scottish criminal law and has no direct doctrinal operation in English, American, or other common law jurisdictions. Its relevance to non-Scottish legal research is historical and comparative. Modern Scottish criminal procedure continues to recognize protection against double jeopardy, now codified under the Double Jeopardy (Scotland) Act 2011.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: DOUBLE JEOPARDY.