Definition
A Latin phrase meaning "done by force and duress." In English legal procedure, per vim et duritiem facta designated a specific writ directed to the justices of the Common Bench, commanding them to send up the record of a recognizance that the recognizor claimed was acknowledged under compulsion. If the court found the allegation of force and duress to be true, the recognizance would be annulled.
The writ thus served as the procedural mechanism by which a party bound by a recognizance could challenge the validity of that obligation on the ground that consent had been coerced rather than freely given.
Common Confusion
The phrase should not be confused with the general common law defense of duress as applied to contracts or criminal acts. Per vim et duritiem facta was not a general duress plea but a specific, named writ with a defined target — the recognizance — and a specific destination court, the Common Bench. A researcher encountering the phrase in historical sources should treat it as procedural terminology rather than as a substantive duress doctrine.
It is also occasionally confused with related writ forms addressing other grounds for annulling recognizances. The distinguishing feature here is the exclusive reliance on vis (force) and duritia (hardship or harshness amounting to coercion) as the grounds for relief.
Why It Matters in Research
This is a term of purely historical and procedural significance. Researchers are unlikely to encounter it outside of English common law records, plea rolls, or treatises predating the abolition of the forms of action. Its practical relevance in modern legal research is narrow, but it surfaces in three contexts worth noting.
First, historians of coercion doctrine will find it relevant to the development of duress as a legal concept. The writ is one of the early formal mechanisms acknowledging that an agreement extracted by force lacked binding legal effect — a doctrinal ancestor of modern contract duress analysis.
Second, researchers working with recognizances in criminal law history will encounter the writ when examining how sureties and bail-like instruments were challenged. Rapalje & Lawrence's entry explicitly connects recognizances to bail bonds and notes their continued use as such in American states, making this writ potentially relevant to early American practice records even if the writ form itself was never adopted.
Third, the citation shared by both Black's and Rapalje & Lawrence — Reg. Orig. 183 — refers to the Registrum Omnium Brevium, the Register of Writs, which was the authoritative English compilation of original writ forms. Any Law Mind researcher tracing this writ to its primary source should look there. The Register is a historical document, not a modern authority, and its pagination may vary across editions.
The procedural world this writ inhabited — original writs, the Common Bench, recognizances as formal records — was dismantled in England by the Common Law Procedure Acts of the mid-nineteenth century and was never fully transplanted into American federal procedure. Researchers should not expect to find the writ operative in post-1850 sources in either jurisdiction.
Historical Dictionary Support
Black's Law Dictionary and Rapalje & Lawrence are in complete agreement on the definition, and their language is nearly identical, both drawing from the same underlying source in the Registrum Omnium Brevium. Neither dictionary adds substantial interpretive commentary beyond the functional description of the writ.
Rapalje & Lawrence's entry is slightly more contextually useful because it gestures toward the broader doctrinal neighborhood — noting the use of recognizances as bail bonds and their survival in American state practice — which situates the writ within a living procedural tradition at the time of writing rather than treating it as pure antiquarianism.
Neither source addresses the substantive standard a recognizor would need to meet to succeed on the writ, the procedural steps following the return of the record, or the relationship between this writ and chancery remedies for coerced instruments. Those gaps reflect the dictionary format rather than any deficiency in the law; researchers needing that level of detail should consult Fitzherbert's Natura Brevium or contemporaneous English procedural treatises.
Jurisdictional Note
Per vim et duritiem facta was an English common law writ and had no formal counterpart in American federal practice. Some American states adopted recognizance forms and, by extension, mechanisms for challenging coerced recognizances, but these took statutory rather than writ form. The phrase itself is unlikely to appear in American case law outside of historical quotation or scholarly commentary.