ASSIZE UTRUM

assize utrum (yoo-tr<<schwa>>m). [Latin] Hist. A writ to determine whether land claimed by

a church was held by lay or spiritual tenure. • This writ is named after its emphatic word, which

required  the  fact-finder  to  determine  whether  (utrum)  the  land  belonged  to  the  church.  —  Also

termed (erroneously) assize of utrum; assize de utrum.

“In the assize utrum a jury was summoned to decide whether land was held by lay or spiritual

tenure  —  a  pre-liminary  question  to  any  litigation  about  it,  for  the  Church  claimed  jurisdiction

over spiritual land. Later the Church was to lose this jurisdiction, and the assize utrum became the

parson’s substitute for the writ of right. This curious development was brought about in this way. A

parson could not use the writs of right, for, like a life tenant, he could not trace his title back to the

seisin  of  an  ancestor.  The  assize  utrum  could  be  made  to  serve  the  parson,  however,  for  the

question asked in the writ was whether certain land in a parish was ‘the free alms of the Church of

X.’  If  the  answer  was  ‘yes,’  then  it  followed  that  it  was  the  parson  of  the  parish’s  land.”  Brian

Simpson, An Introduction to the History of the Land Law 30–31 (1961).

“[T]he ‘assize utrum’ … is important as being the first instance known to us of the general use

of  the  royal  procedure  by  way  of  inquest  in  a  matter  of  private  litigation.  If  the  answer  of  the

inquest was that this land was held in frankalmoign, then the case went to the ecclesiastical court;

if that it was lay fee, then to the appropriate lay tribunal. In the course of the thirteenth century the

ecclesiastical courts lost their jurisdiction over land held by spiritual tenure, and the ‘assize utrum’

came to be used not as a merely preliminary procedure but as a mode of deciding in royal courts a

question of title to glebe land.” Geoffrey Radcliffe & Geoffrey Cross, The English Legal System

33–34 (G.J. Hand & D.J. Bentley eds., 6th ed. 1977).[Blacks Law 8th]