— 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).
