of the
community. There is nothing to prevent its legislating in the
wantonness of caprice. Legislation may be dictated by equity, if that
last word be used to indicate some standard of right and wrong to
which its enactments happen to be adjusted; but then these enactments
are indebted for their binding force to the authority of the
legislature and not to that of the principles on which the legislature
acted; and thus they differ from rules of Equity, in the technical
sense of the word, which pretend to a paramount sacredness entitling
them at once to the recognition of the courts even without the
concurrence of prince or parliamentary assembly. It is the more
necessary to note these differences, because a student of Bentham
would be apt to confound Fictions, Equity, and Statute law under the
single head of legislation. They all, he would say, involve
_law-making_; they differ only in respect of the machinery by which
the new law is produced. That is perfectly true, and we must never
forget it; but it furnishes no reason why we should deprive ourselves
of so convenient a term as Legislation in the special sense.
Legislation and Equity are disjoined in the popular mind and in the
minds of most lawyers; and it will never do to neglect the distinction
between them, however conventional, when important practical
consequences follow from it.

It would be easy to select from almost any regularly developed body of
rules examples of _legal fictions_, which at once betray their true
character to the modern observer. In the two instances which I proceed
to consider, the nature of the expedient employed is not so readily
detected. The first authors of these fictions did not perhaps intend
to innovate, certainly did not wish to be suspected of innovating.
There are, moreover, and always have been, persons who refuse to see
any fiction in the process, and conventional language bears out their
refusal. No examples, therefore, can be better calculated to
illustrate the wide diffusion of legal fictions, and the efficiency
with which they perform their two-fold office of transforming a system
of laws and of concealing the transformation.

We in England are well accustomed to the extension, modification, and
improvement of law by a machinery which, in theory, is incapable of
altering one jot or one line of existing jurisprudence. The process by
which this virtual legislation is effected is not so much insensible
as unacknowledged. Wi