FACERE - The Law Mind Legal Dictionary

FACEREAuthored

The Law Mind • 942 words

Definition

Latin. "To do; to make; to perform; to cause a thing to be done." Facere is a Latin infinitive of broad and comprehensive signification that appeared throughout the formal language of writs, contracts, and pleadings in the common law tradition. It carried both active meaning (to do a thing oneself) and causative meaning (to cause a thing to be done by another). Though facere itself rarely appeared as a standalone legal term of art, it functioned as the root or operative word in a cluster of important Latin legal phrases that defined obligations, rights, and procedural commands.

Principal compound phrases built on facere include:

Facere defaltam — to make default; to fail to appear or perform as required.

Facere duellum — to make or do battle; to wage the trial by combat formerly available as a mode of proof.

Facere finem — to make or pay a fine; to conclude a matter by payment.

Facere legem — to make one's law; to purge oneself by oath or compurgation.

Facere sacramentum — to make oath; to swear a formal oath as part of a legal proceeding.

The related form facias — "that you cause" or "that you make" — is the second-person subjunctive used in writ commands, and appears in fieri facias, scire facias, and venire facias. The first-person form facio appears in the maxim facio ut des ("I do so that you give"), a foundational formula in the Roman law classification of contracts.

Common Confusion

Facere and fieri are sometimes conflated because both relate to "doing" or "making," but they carry distinct legal senses. Facere emphasizes active, personal performance of an act — doing or causing a thing to be done by a legal actor. Fieri, the passive infinitive, means "to be done" or "to be made," and appears in procedural writ language where the sheriff is commanded to cause something to happen (as in fieri facias — "cause it to be made," i.e., levy execution). Anderson's Dictionary draws the comparison explicitly. Researchers encountering either term in historical sources should note which voice and form is present before interpreting the operative obligation.

Why It Matters in Research

Facere is primarily encountered in the corpus as a component of compound Latin phrases rather than as a freestanding doctrinal term, and this shapes how researchers should approach it. Several traps arise.

First, source fragmentation: historical dictionaries define facere as a root word and then scatter its compound phrases across separate headings. A researcher looking up facere in Burrill, for example, will find cross-references to Facio, Facias, and individual compound phrases as distinct entries. Coverage of the full family of facere-derived terms requires moving laterally through multiple headings, not stopping at the single root entry.

Second, the shift from Latin to English writ practice: facere and its compounds were essential to the language of the medieval writ system, but as English procedural law modernized through the 19th and 20th centuries, these phrases were either translated into English, absorbed into statutory terminology, or abolished. Researchers working in pre-reform common law sources (pre-1873 in England, pre-code era in American jurisdictions) will encounter them frequently; researchers in modern procedural materials will not. The corpus boundary matters here.

Third, the causative dimension of facere has substantive significance in contract and obligation contexts. The distinction between obligating a party to do something personally versus obligating them to cause something to be done by another was a recognized doctrinal point in both Roman law and its common law reception. Burrill notes that facere carried "a word of very comprehensive signification" precisely because it spanned both senses.

Fourth, fac simile (made like in appearance) — the ancestor of the modern word "facsimile" — derives directly from facere, and Anderson's notes its legal relevance to counterfeits, signatures, and trademarks. Researchers in intellectual property or authentication contexts may encounter fac simile in historical sources where modern materials would use "reproduction" or "copy."

Historical Dictionary Support

The four source dictionaries converge on the core definition — "to do; to make" — without meaningful disagreement. Burrill provides the most expansive treatment, noting facere's origin in the civil law (citing Digest 50.16.218) and its dual active and causative senses, and he separates it into civil law and common law entries, reflecting its reception through two distinct channels. Black's and Rapalje & Lawrence offer nearly identical inventories of compound phrases with no independent elaboration. Anderson's, characteristically, embeds the entry within a broader discussion of related procedural and constitutional matters, making the entry harder to isolate but occasionally richer in contextual connections.

What the historical dictionaries do not fully address is the functional distinction between facere and its passive counterpart fieri, or the precise doctrinal weight of the causative sense in contract classification. Researchers needing that level of precision will need to move beyond dictionary sources into treatise literature on Roman obligation or early common law contract doctrine.

FACEREmain

Black's Law Dictionary • 1891

Lat. To do; to make. Thus, facere defaltam, to make default; facere duellum, to make the duel, or make or do bat- tle; facere finem, to make or pay a fine; facere legem, to make one's law; facere sacramentum, to make oath.

FACEREmain

Rapalje & Lawrence • 1888

To do; to make. Thus, facere defaltam, to make default; facere duellum, to make the duel, or make or do battle; facere finem, to make or pay a fine; facere legem, to make one's law; facere sacramentum, to make oath. FACIAS.-That you cause. This is the emphatic word of the writs fieri facias; scire facias; venire facias, and others, and is also used in other phrases, such as facio, ut des, I do (perform), that you may give; facio, ut facias, I do, that you may do; do, ut facias, I give, that you may do, &c. FACILE.-One who is easily persuaded or imposed upon.-Bell Dict. FACILITIES, (in a promissory note). 14 Mass. 322. (in a statute). 5 Q. B. D. 217. Facinus quos inquinat æquat: Guilt makes equal those whom it stains. FACIT.-See QUI FACIT, &c.

FACEREmain

Anderson's Dictionary of Law • 1890

A State may legislate in aid of the enactments of Congress.1 And, as seen above, the courts of a State may pass upon the legality of an arrest. The provision is a national police regulation. See FUGITIVE; REQUISITION; EXPRESSIO, Unius, etc. L. To make, do, perform. Compare FIERI. Fac simile. Made like in appearance; a copy. Said of counterfeits, designs, signatures, trademarks, qq. υ. Facias. That you make or cause to be made. See EXECUTION, 3, Writs of. Facies. Appearance; view. See PRIMUS, Prima, etc. Factum. A thing done; a fact. See F. F. Fieri facias. See EXECUTION, 3, FACTUM. Writs of. F. J. First judge or justice. Roberts stood indicted for the larceny of railroad bonds. 1 Exp. Ammons, 34 Ohio St. 518 (1878); Wilcox υ. Nolz, ib. 520 (1878), cases. Robb v. Connolly, 111 U. S. 624, 637 (1884). 3 See generally Re Leary, 10 Bened. 208, 205-22 (1879); 18 Blatch. 430; 8 Law. 370; 2 Flip. 183; 16 F. R. 93; 7 Op. Att. Gen. 6; 8 id. 306, 396, 521; 63 Ind. 344; 50 Iowa, 106; 34 Ohio St. 71-79; 4 Tex. Ap. 662; 60 Wis. 594; 18 Alb. Law J. 146-51; 2 West Coast Rep. 599. Rules proposed by Inter-State Conference, 36 Alb. Law J. 220 (Sept. 10, 1887). The new extradition bill, 37 id. 88-93 (1888), A. T. Spear. 4 Whalen v. Sheridan, 10 F. R. 662 (1880); Müller v. Ehlers, 91 U. S. 251 (1875). * Moses v. Sun Mut. Ins. Co., 1 Duer, 170 (1852); The Titania, 19 F. R. 105 (1883). Qui facit per alium, facit per se. He who acts through another acts by himself. The act of the agent is the act of the principal - within the scope of the employment. The authorized act of an agent is imputed to his employer. An act done by one under the command and direction of the owner of a vessel, with his approbation and for his benefit, is as much his own act in contemplation of law as if done by himself. To this extent at least the maxim applies. And it is not material whether the act is done in his absence from, or his presence in, the scene. See AGENT; CONTRACTOR. 1 Aberdare v. Hammett, L. R., 10 Q. B. 165-66 (1875). 21 Wall. 93; 5 id. 734. $ 96 U. S. 267. 4 See Osgood v. Bringolf, 32 Iowa, 270 (1871). United States v. Gooding, 12 Wheat, 472 (1827), Story, J. See also 1 Bl. Com. 474; 91 U. S. 312; 48 Ark.

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