Nisi Feceris Under Henry II

Summary

Henry by the grace of God king of the English and duke of the Normans and Aquitanians and count of the Angevins to the abbot of Thorney, greeting. I order you that without delay you hold full right to Richard fitz Adam concerning one virgate of land in Tywell which he claims to hold of you by free service of five shillings a year, of which Roger Bacherler deprives him, and unless you do it (nisi feceris) the sheriff of Northampton(shire) is to do it, so that I do not hear further complaint for default of right. Witness Rannulf de Glanville at Geddington.

This writ from the later years of Henry II's reign is a good example of the use of nisi feceris, and of a breve de recto – a writ of right – as given in the Treatise on the laws and customs of the realm of England commonly called Glanvill, which also belongs to this period. The nisi feceris clause is a topic familiar to students of twelfth century developments in judicial procedure. In R. C. van Caenegem's words, ‘the clause became a familiar and conspicuous feature of the diplomatic of writs under Henry II and entered the formula of some very important common law writs… . It has been a powerful factor in the transfer of pleas from private courts to the county – and hence to the central courts – since the breve de recto ordered a lord to do right in his court and added that unless he did so, the sheriff would do so.’ The opportunity to look afresh at writs containing nisi feceris is afforded by the greatly increased amount of material assembled through the ongoing collection of the acta of Henry II, a project which is now moving towards completion.

The effect of the inclusion in writs of a clause stating what the king commanded should happen nisi feceris – ‘unless you do it’ – was that any writ which contained such a clause already had within it a follow-up procedure which could be set in train without further recourse to the king if the addressee did not carry out the king's precept, or failed to respond to the satisfaction of the person who had obtained the writ from the king.