Wednesday, 3 October 2012

Assize Utrum

Extract from
'Introduction: Original writs', Final Concords of the County of Lincoln: 1244-1272(1920), pp. XXXI-XXXVI. URL: 

The writ iuris utrum.

In the twelfth century the church had established the principle that disputes about land which had been given in frank almoign, that is land held by services of a purely religious nature, should be decided in the courts christian, that is the ecclesiastical courts. Sometimes, however, a preliminary question would arise, 'Is this land alms, or is it lay fee ?' The writ iuris utrum directed the sheriff to summon twelve free and lawful men to recognize (recognoscere) or decide whether (utrum) it was alms or lay fee. The assize utrum at first settled nothing about the greater right of either party; but later it became an action by which a parson could recover his right to land, and thus it came to be known as 'the parson's writ of right.'

Extract from
 R. C. Caenegem (24 November 1988). The Birth of the English Common Law. Cambridge University Press. pp. 48–. ISBN 978-0-521-35682-4

The third in these series, the assize utrum, is less important. It really started as a preliminary suit to decide 'whether' (utrum) a certain fee was lay or ecclesiatical; according to the answer, teh case belonged to the lay or the Church courts (a touchy and often difficult point in the twelfth century(. But more was involved than the legal nature of a tenure and the competence of a court, for the spiritual services due for an ecclestical tenure (frankalmoin, franca elemosina) was very different from the more material ones that weighed on a knight's fee. Since those services were often the very cause of the dispute, the decision on the nature of the tenement decided the real issue. Consequently, in the course of time, utrum became an action in its own right aksed and paid for by private parties, protecting the interests of parsons, i.e. the free alms of their churches 

 Equity Also the Forms of Action at Common Law: Two Courses of Lectures. CUP Archive. pp. 326–. GGKEY:QYSKB6K50AZ.

John W. Baldwin (19 June 1991). The Government of Philip Augustus: Foundations of French Royal Power in the Middle Ages. University of California Press. pp. 319–. ISBN 978-0-520-07391-3.

Carl Stephenson; Frederick George Marcham (1937). Sources of English constitutional history: a selection of documents from A.D. 600 to the present. Harper & brothers. pp. 83–.

Arnold-Baker (27 March 2001). Companion to British History. Taylor & Francis. pp. 63–. ISBN 978-0-415-18583-7

Ranulf de Glanville (1812). A Translation of Glanville. W. Reed. pp. 328–.

Samuel E. Thorne (1 July 1984). "5. The Assize Utrum and the Canon Law in England"Essays in English Legal History. Continuum. pp. 51–. ISBN 978-0-8264-4305-2.

 Charles Homer Haskins . Norman Institutions. The Lawbook Exchange, Ltd. pp. 173–. ISBN 978-1-58477-710-6.


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