gal fictions are the
greatest of obstacles to symmetrical classification. The rule of law
remains sticking in the system, but it is a mere shell. It has been
long ago undermined, and a new rule hides itself under its cover.
Hence there is at once a difficulty in knowing whether the rule which
is actually operative should be classed in its true or in its apparent
place, and minds of different casts will differ as to the branch of
the alternative which ought to be selected. If the English law is ever
to assume an orderly distribution, it will be necessary to prune away
the legal fictions which, in spite of some recent legislative
improvements, are still abundant in it.

The next instrumentality by which the adaptation of law to social
wants is carried on I call Equity, meaning by that word any body of
rules existing by the side of the original civil law, founded on
distinct principles and claiming incidentally to supersede the civil
law in virtue of a superior sanctity inherent in those principles. The
Equity whether of the Roman Praetors or of the English Chancellors,
differs from the Fictions which in each case preceded it, in that the
interference with law is open and avowed. On the other hand, it
differs from Legislation, the agent of legal improvement which comes
after it, in that its claim to authority is grounded, not on the
prerogative of any external person or body, not even on that of the
magistrate who enunciates it, but on the special nature of its
principles, to which it is alleged that all law ought to conform. The
very conception of a set of principles, invested with a higher
sacredness than those of the original law and demanding application
independently of the consent of any external body, belongs to a much
more advanced stage of thought than that to which legal fictions
originally suggested themselves.

Legislation, the enactments of a legislature which, whether it take
the form of an autocratic prince or of a parliamentary assembly, is
the assumed organ of the entire society, is the last of the
ameliorating instrumentalities. It differs from Legal Fictions just as
Equity differs from them, and it is also distinguished from Equity, as
deriving its authority from an external body or person. Its obligatory
force is independent of its principles. The legislature, whatever be
the actual restraints imposed on it by public opinion, is in theory
empowered to impose what obligations it pleases on the members