Definition
Latin: "to do" or "to make." A phrase appearing in writs and procedural formulas of common law courts, directing a party to perform some act or to appear and submit to some judicial proceeding. It does not stand alone as a term of art but functions as a component of larger Latin formulae that specify the nature of the required action.
The most frequently encountered form is the tripartite formula ad faciendum, subjiciendum et recipiendum — "to do, submit to, and receive" — which appeared in writs of habeas corpus and similar process directing a party to appear before the court, undergo whatever proceeding the court required, and accept the judgment rendered. A second recognized form, ad faciendam juratam illam, means "to make up that jury" and appeared in older jury process.
Common Confusion
Ad faciendum should not be conflated with ad factum præstandum, a related but distinct Scots law concept. Though both involve the Latin root for "doing" or "making," ad factum præstandum describes a category of obligation under Scots law characterized by unusual severity: a debtor bound by such an obligation could not claim benefit of acts of grace, the privilege of sanctuary, or cessio bonorum (a form of insolvency relief). The two phrases share linguistic roots but belong to different legal traditions and carry entirely different procedural and substantive consequences. Sources that print them in sequence — as Black's does — can mislead a researcher into treating them as variants of a single concept.
Why It Matters in Research
Researchers will encounter ad faciendum almost exclusively in pre-twentieth-century English and American legal materials — in writ forms, pleading books, and treatise discussions of habeas corpus procedure. Its primary significance today is interpretive: understanding what the phrase meant unlocks the function of the writ in which it appeared.
The critical navigational point is context. Ad faciendum alone says only "to do." Its meaning in any given document depends entirely on the surrounding formula. When reading writs in historical case records or treatise appendices, locate the complete phrase — the full tripartite habeas formula, or the jury-summoning variant — before drawing any interpretive conclusion.
Researchers using Law Mind corpus materials should be alert to several traps. First, OCR errors in digitized sources frequently corrupt the Latin: ad faciendam juratam illam appears in one Black's scan as "ad faciendam juratamillam," run together, and ad faciendum as "Todo" (fused). These corruptions can cause keyword searches to miss relevant passages. Second, the placement of ad faciendum immediately before the discussion of ad factum præstandum in multiple editions of Black's creates a visual grouping that does not reflect a genuine doctrinal relationship. Third, Burrill cross-references the tripartite formula to the habeas corpus entry, which is the correct follow-on source; researchers who stop at the ad faciendum entry in Burrill without following that cross-reference will have only a fragment of the procedural picture.
For any research touching the historical writ of habeas corpus — including its colonial American forms — ad faciendum, subjiciendum et recipiendum is the phrase to track. It marks the operative command of the writ.
Historical Dictionary Support
All three source dictionaries agree on the core translation ("to do" or "to make") and on the two principal formulaic uses: the habeas tripartite and the jury-summoning phrase. Black's first and second editions are nearly identical in content, with the second edition reproducing the first with minor typographic variation. Burrill adds the cross-reference to Crabb's Real Property alongside the Coke citation, situating the phrase in property conveyancing contexts as well as writ practice — a useful expansion that Black's omits.
What the historical dictionaries do not address is the phrase's practical obsolescence. By the time Black's first edition appeared in 1891, Latin writ formulae had been substantially displaced by code pleading in most American jurisdictions following the Field Code reforms of the mid-nineteenth century. The dictionaries define a living term for their historical moment but give no signal to modern readers that its operational context had already narrowed considerably. The Coke citation (Co. Litt. 204a) anchors the phrase in seventeenth-century English practice and remains the authoritative historical source for its meaning in property and writ contexts.
Jurisdictional Note
Ad faciendum as a live procedural term is a feature of historical English and early American common law. In Scots law, the related phrase ad factum præstandum remains a recognized concept in obligation law, though it is a distinct term. Modern researchers working in any common law jurisdiction will encounter ad faciendum only in historical materials.