ones" was, of course, to give
jurisdiction, and they therefore strongly resembled the allegations
in the writs of the English Queen's Bench, and Exchequer, by which
those Courts contrived to usurp the jurisdiction of the Common
Pleas:--the allegation that the defendant was in custody of the king's
marshal, or that the plaintiff was the king's debtor, and could not
pay his debt by reason of the defendant's default. But I now employ
the expression "Legal Fiction" to signify any assumption which
conceals, or affects to conceal, the fact that a rule of law has
undergone alteration, its letter remaining unchanged, its operation
being modified. The words, therefore, include the instances of
fictions which I have cited from the English and Roman law, but they
embrace much more, for I should speak both of the English Case-law and
of the Roman Responsa Prudentum as resting on fictions. Both these
examples will be examined presently. The _fact_ is in both cases that
the law has been wholly changed; the _fiction_ is that it remains what
it always was. It is not difficult to understand why fictions in all
their forms are particularly congenial to the infancy of society. They
satisfy the desire for improvement, which is not quite wanting, at the
same time that they do not offend the superstitious disrelish for
change which is always present. At a particular stage of social
progress they are invaluable expedients for overcoming the rigidity of
law, and, indeed, without one of them, the Fiction of Adoption which
permits the family tie to be artificially created, it is difficult to
understand how society would ever have escaped from its swaddling
clothes, and taken its first steps towards civilisation. We must,
therefore, not suffer ourselves to be affected by the ridicule which
Bentham pours on legal fictions wherever he meets them. To revile them
as merely fraudulent is to betray ignorance of their peculiar office
in the historical development of law. But at the same time it would be
equally foolish to agree with those theorists, who, discerning that
fictions have had their uses, argue that they ought to be stereotyped
in our system. They have had their day, but it has long since gone by.
It is unworthy of us to effect an admittedly beneficial object by so
rude a device as a legal fiction. I cannot admit any anomaly to be
innocent, which makes the law either more difficult to understand or
harder to arrange in harmonious order. Now le