Nisi prius
Nisi prius is a historical term in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

. In the nineteenth century, it came to be used to denote generally all legal actions tried before judges of the King's Bench Division and in the early twentieth century for actions tried at assize by a judge given a commission
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...

. Used in that way, the term has had no currency since the abolition of assizes in 1971. Nisi prius is a common legal term in the United States, however. As the term's Latin meaning ("unless first") indicates, the term "[court of] nisi prius" denotes the court or tribunal that originally decided a case or an interlocutory matter rather than a higher court being appealed to. In that sense, at least, it serves as a synonym for "court of original jurisdiction."

Trial at nisi prius

Before the reforms of the Judicature Act 1873, civil cases at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 were begun in one of the three courts that sat in Westminster Hall: the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...

, Court of Exchequer
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...

 and King's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...

. Because of their historical origins, these courts were to some extent in competition, especially as their respective judges and officers lived off the fees deriving from them. Given that travel to London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...

 was an onerous burden during the medieval period, however, the Statute of Westminster II provided in 1285 for trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...

 of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...

 in civil cases at the local assizes. Nisi prius translates as "if not sooner" or "if not before" in addition to "unless first": when the action was started in London, the sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....

 was ordered to have the jurors there for trial on a certain day "unless before" (nisi prius) that day the case was heard at assize in the claimant's county. After trial at the assizes, the case could be referred back to the original court, from where there was a possibility of further appeal to the Court of Exchequer Chamber
Court of Exchequer Chamber
The Court of Exchequer Chamber was an English appellate court for common law civil actions, prior to the reforms of the Judicature Acts of 1873-1875....


After the reform of the common law courts in 1873, actions were only said to be tried at nisi prius, and a judge said to sit at nisi prius, when he sat, usually in the King's Bench Division, for the trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...

 of actions. By a resolution passed by the judges of the King's Bench Division in 1894 it was declared of the utmost importance that there should be at least three courts of nisi prius sitting continuously throughout the legal year
Legal year
In English law, the legal year is the calendar during which the judges sit in court. The year is divided into four terms:* Michaelmas term - from October to December* Hilary term - from January to April* Easter term - from April to May, and...

: one for special jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 causes, one for common jury causes, and one for causes without juries.

Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

 and the Assize of Clarendon
Assize of Clarendon
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case as trial by ordeal or trial by battle to an evidentiary model, in which evidence and inspection was made by laymen...

 provided for the trial of serious criminal cases on circuit.

Nisi prius record

The nisi prius record was, before the Judicature Acts, the name of the formal copy of proceedings showing the history of the case up to the time of trial. After the trial it was endorsed with the postea, showing the result of the trial, and delivered by the officer of the court to the successful party, whose possession of the postea was his title to judgment. Since the Judicature Acts there is no nisi prius record in civil actions, the nearest approach to it being the deposit of copies of the statements of case for the use of the judge, and there is no postea, the certificate of the associate or Master
Master (judiciary)
A Master is judicial officer found in the courts of England and in numerous other jurisdictions based on the common law tradition. A master's jurisdiction is generally confined to civil proceedings and is a subset of that of a judge. Masters are typically involved in hearing motions, case...

 as to the result of the trial superseding it.

Cultural references

Nisi prius is mentioned in the Gilbert & Sullivan operetta
Operetta is a genre of light opera, light in terms both of music and subject matter. It is also closely related, in English-language works, to forms of musical theatre.-Origins:...

 The Mikado
The Mikado
The Mikado; or, The Town of Titipu is a comic opera in two acts, with music by Arthur Sullivan and libretto by W. S. Gilbert, their ninth of fourteen operatic collaborations...

, in the Song "As some day it May Happen": "And that Nisi Prius nuisance, who just now is rather rife, The Judicial humorist—I've got him on the list!"
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