A general proposition of some value may be advanced withrespect to the agencies by which Law is brought into harmony withsociety These instrumentalities seem to me to be three in number,Legal Fictions, Equity, and Legislation. Their historical orderis that in which I have placed them. Sometimes two of them willbe seen operating together, and there are legal systems whichhave escaped the influence of one or other of them. But I know ofno instance in which the order of their appearance has beenchanged or inverted. The early history of one of them, Equity, isuniversally obscure, and hence it may be thought by some thatcertain isolated statutes, reformatory of the civil law, areolder than any equitable jurisdiction. My own belief is thatremedial Equity is everywhere older than remedial Legislation;but, should this be not strictly true, it would only be necessaryto limit the proposition respecting their order of sequence tothe periods at which they exercise a sustained and substantialinfluence in trans forming the original law.
I employ the word "fiction" in a sense considerably widerthan that in which English lawyer are accustomed to use it, andwith a meaning much more extensive than that which belonged tothe Roman "fictiones." Fictio, in old Roman law, is properly aterm of pleading, and signifies a false averment on the part ofthe plaintiff which the defendant was not allowed to traverse;such, for example, as an averment that the plaintiff was a Romancitizen, when in truth he was a foreigner. The object of these"fictiones" was, of course, to give jurisdiction, and theytherefore strongly resembled the allegations in the writs of theEnglish Queen's Bench, and Exchequer, by which those Courtscontrived to usurp the jurisdiction of the Common Pleas: -- theallegation that the defendant was in custody of the king'smarshal, or that the plaintiff was the king's debtor, and couldnot pay his debt by reason of the defendant's default. But I nowemploy the expression "Legal Fiction" to signify any assumptionwhich conceals, or affects to conceal, the fact that a rule oflaw has undergone alteration, its letter remaining unchanged, itsoperation being modified. The words, therefore, include theinstances of fictions which I have cited from the English andRoman law, but they embrace much more, for I should speak both ofthe English Case-law and of the Roman Responsa Prudentum asresting on fictions. Both these examples will be examinedpresently. The fact is in both cases that the law has been whollychanged; the fiction is that it remains what it always was. It isnot difficult to understand why fictions in all their forms areparticularly congenial to the infancy of society. They satisfythe desire for improvement, which is not quite wanting, at thesame time that they do not offend the superstitious disrelish forchange which is always present. At a particular stage of socialprogress they are invaluable expedients for overcoming therigidity of law, and, indeed, without one of them, the Fiction ofAdoption which permits the family tie to be artificially created,it is difficult to understand how society would ever have escapedfrom its swaddling clothes, and taken its first steps towardscivilisation. We must, therefore, not suffer ourselves to beaffected by the ridicule which Bentham pours on legal fictionswherever he meets them. To revile them as merely fraudulent is tobetray ignorance of their peculiar office in the historicaldevelopment of law. But at the same time it would be equallyfoolish to agree with those theorists, who, discerning thatfictions have had their uses, argue that they ought to bestereotyped in our system. They have had their day, but it haslong since gone by. It is unworthy of us to effect an admittedlybeneficial object by so rude a device as a legal fiction. Icannot admit any anomaly to be innocent, which makes the laweither more difficult to understand or harder to arrange inharmonious order. Now legal fictions are the greatest ofobstacles to symmetrical classification. The rule of law remainssticking in the system, but it is a mere shell. It has been longago undermined, and a new rule hides itself under its cover.
Hence there is at once a difficulty in knowing whether the rulewhich is actually operative should be classed in its true or inits apparent place, and minds of different casts will differ asto the branch of the alternative which ought to be selected. Ifthe English law is ever to assume an orderly distribution, itwill be necessary to prune away the legal fictions which, inspite of some recent legislative improvements, are still abundantin it.
The next instrumentality by which the adaptation of law tosocial wants is carried on I call Equity, meaning by that wordany body of rules existing by the side of the original civil law,founded on distinct principles and claiming incidentally tosupersede the civil law in virtue of a superior sanctity inherentin those principles. The Equity whether of the Roman Praetors orof the English Chancellors, differs from the Fictions which ineach case preceded it, in that the interference with law is openand avowed. On the other hand, it differs from Legislation, theagent of legal improvement which comes after it, in that itsclaim to authority is grounded, not on the prerogative of anyexternal person or body, not even on that of the magistrate whoenunciates it, but on the special nature of its principles, towhich it is alleged that all law ought to conform. The veryconception of a set of principles, invested with a highersacredness than those of the original law and demandingapplication independently of the consent of any external bodybelongs to a much more advanced stage of thought than that towhich legal fictions originally suggested themselves.
