changes which it
underwent is tolerably well ascertained. From its commencement to its
close, it was progressively modified for the better, or for what
the authors of the modification conceived to be the better, and the
course of improvement was continued through periods at which all the
rest of human thought and action materially slackened its pace, and
repeatedly threatened to settle down into stagnation.

I confine myself in what follows to the progressive societies. With
respect to them it may be laid down that social necessities and social
opinion are always more or less in advance of Law. We may come
indefinitely near to the closing of the gap between them, but it has a
perpetual tendency to reopen. Law is stable; the societies we are
speaking of are progressive. The greater or less happiness of a people
depends on the degree of promptitude with which the gulf is narrowed.

A general proposition of some value may be advanced with respect to
the agencies by which Law is brought into harmony with society. These
instrumentalities seem to me to be three in number, Legal Fictions,
Equity, and Legislation. Their historical order is that in which I
have placed them. Sometimes two of them will be seen operating
together, and there are legal systems which have escaped the influence
of one or other of them. But I know of no instance in which the order
of their appearance has been changed or inverted. The early history of
one of them, Equity, is universally obscure, and hence it may be
thought by some that certain isolated statutes, reformatory of the
civil law, are older than any equitable jurisdiction. My own belief is
that remedial Equity is everywhere older than remedial Legislation;
but, should this be not strictly true, it would only be necessary to
limit the proposition respecting their order of sequence to the
periods at which they exercise a sustained and substantial influence
in transforming the original law.

I employ the word "fiction" in a sense considerably wider than that in
which English lawyers are accustomed to use it, and with a meaning
much more extensive than that which belonged to the Roman "fictiones."
Fictio, in old Roman law, is properly a term of pleading, and
signifies a false averment on the part of the plaintiff which the
defendant was not allowed to traverse; such, for example, as an
averment that the plaintiff was a Roman citizen, when in truth he was
a foreigner. The object of these "ficti