LEGAL FICTIONS
When primitive law has once been embodied in a Code, there is an end
to what may be called its spontaneous development. Henceforward the
changes effected in it, if effected at all, are effected deliberately
and from without. It is impossible to suppose that the customs of any
race or tribe remained unaltered during the whole of the long--in some
instances the immense--interval between their declaration by a
patriarchal monarch and their publication in writing. It would be
unsafe too to affirm that no part of the alteration was effected
deliberately. But from the little we know of the progress of law
during this period, we are justified in assuming that set purpose had
the very smallest share in producing change. Such innovations on the
earliest usages as disclose themselves appear to have been dictated by
feelings and modes of thought which, under our present mental
conditions, we are unable to comprehend. A new era begins, however,
with the Codes. Wherever, after this epoch, we trace the course of
legal modification we are able to attribute it to the conscious desire
of improvement, or at all events of compassing objects other than
those which were aimed at in the primitive times.
It may seem at first sight that no general propositions worth trusting
can be elicited from the history of legal systems subsequent to the
codes. The field is too vast. We cannot be sure that we have included
a sufficient number of phenomena in our observations, or that we
accurately understand those which we have observed. But the
undertaking will be seen to be more feasible, if we consider that
after the epoch of codes the distinction between stationary and
progressive societies begins to make itself felt. It is only with the
progressive that we are concerned, and nothing is more remarkable than
their extreme fewness. In spite of overwhelming evidence, it is most
difficult for a citizen of western Europe to bring thoroughly home to
himself the truth that the civilisation which surrounds him is a rare
exception in the history of the world. The tone of thought common
among us, all our hopes, fears, and speculations, would be materially
affected, if we had vividly before us the relation of the progressive
races to the totality of human life. It is indisputable that much the
greatest part of mankind has never shown a particle of desire that its
civil institutions should be improved since the moment when external
completeness was first given to them by their embodiment in some
permanent record. One set of usages has occasionally been violently
overthrown and superseded by another; here and there a primitive code,
pretending to a supernatural origin, has been greatly extended, and
distorted into the most surprising forms, by the perversity of
sacerdotal commentators; but, except in a small section of the world,
there has been nothing like the gradual amelioration of a legal
system. There has been material civilisation, but, instead of the
civilisation expanding the law, the law has limited the civilisation.
The study of races in their primitive condition affords us some clue
to the point at which the development of certain societies has
stopped. We can see that Brahminical India has not passed beyond a
stage which occurs in the history of all the families of mankind, the
stage at which a rule of law is not yet discriminated from a rule of
religion. The members of such a society consider that the
transgression of a religious ordinance should be punished by civil
penalties, and that the violation of a civil duty exposes the
delinquent to divine correction. In China this point has been passed,
but progress seems to have been there arrested, because the civil laws
are coextensive with all the ideas of which the race is capable. The
difference between the stationary and progressive societies is,
however, one of the great secrets which inquiry has yet to penetrate.
Among partial explanations of it I venture to place the considerations
urged at the end of the last chapter. It may further be remarked that
no one is likely to succeed in the investigation who does not clearly
realise that the stationary condition of the human race is the rule,
the progressive the exception. And another indispensable condition of
success is an accurate knowledge of Roman law in all its principal
stages. The Roman jurisprudence has the longest known history of any
set of human institutions. The character of all the 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 "fictiones" 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 legal 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 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. With respect to that great portion of our legal
system which is enshrined in cases and recorded in law reports, we
habitually employ a double language and entertain, as it would
appear, a double and inconsistent set of ideas. When a group of facts
come before an English Court for adjudication, the whole course of the
discussion between the judge and the advocate assumes that no question
is, or can be, raised which will call for the application of any
principles but old ones, or any distinctions but such as have long
since been allowed. It is taken absolutely for granted that there is
somewhere a rule of known law which will cover the facts of the
dispute now litigated, and that, if such a rule be not discovered, it
is only that the necessary patience, knowledge, or acumen is not
forthcoming to detect it. Yet the moment the judgment has been
rendered and reported, we slide unconsciously or unavowedly into a new
language and a new train of thought. We now admit that the new
decision _has_ modified the law. The rules applicable have, to use the
very inaccurate expression sometimes employed, become more elastic. In
fact they have been changed. A clear addition has been made to the
precedents, and the canon of law elicited by comparing the precedents
is not the same with that which would have been obtained if the series
of cases had been curtailed by a single example. The fact that the old
rule has been repealed, and that a new one has replaced it, eludes us,
because we are not in the habit of throwing into precise language the
legal formulas which we derive from the precedents, so that a change
in their tenor is not easily detected unless it is violent and
glaring. I shall not now pause to consider at length the causes which
have led English lawyers to acquiesce in these curious anomalies.
Probably it will be found that originally it was the received doctrine
that somewhere, _in nubibus_ or _in gremio magistratuum_, there
existed a complete, coherent, symmetrical body of English law, of an
amplitude sufficient to furnish principles which would apply to any
conceivable combination of circumstances. The theory was at first much
more thoroughly believed in than it is now, and indeed it may have had
a better foundation. The judges of the thirteenth century may have
really had at their command a mine of law unrevealed to the bar and to
the lay-public, for there is some reason for suspecting that in secret
they borrowed freely, though not always wisely, from current compendia
of the Roman and Canon laws. But that storehouse was closed so soon as
the points decided at Westminster Hall became numerous enough to
supply a basis for a substantive system of jurisprudence; and now for
centuries English practitioners have so expressed themselves as to
convey the paradoxical proposition that, except by Equity and Statute
law, nothing has been added to the basis since it was first
constituted. We do not admit that our tribunals legislate; we imply
that they have never legislated; and yet we maintain that the rules of
the English common law, with some assistance from the Court of
Chancery and from Parliament, are coextensive with the complicated
interests of modern society.
A body of law bearing a very close and very instructive resemblance to
our case-law in those particulars which I have noticed, was known to
the Romans under the name of the Responsa Prudentum, the "answers of
the learned in the law." The form of these Responses varied a good
deal at different periods of the Roman jurisprudence, but throughout
its whole course they consisted of explanatory glosses on
authoritative written documents, and at first they were exclusively
collections of opinions interpretative of the Twelve Tables. As with
us, all legal language adjusted itself to the assumption that the text
of the old Code remained unchanged. There was the express rule. It
overrode all glosses and comments, and no one openly admitted that any
interpretation of it, however eminent the interpreter, was safe from
revision on appeal to the venerable texts. Yet in point of fact, Books
of Responses bearing the names of leading jurisconsults obtained an
authority at least equal to that of our reported cases, and constantly
modified, extended, limited or practically overruled the provisions of
the Decemviral law. The authors of the new jurisprudence during the
whole progress of its formation professed the most sedulous respect
for the letter of the Code. They were merely explaining it,
deciphering it, bringing out its full meaning; but then, in the
result, by piecing texts together, by adjusting the law to states of
fact which actually presented themselves and by speculating on its
possible application to others which might occur, by introducing
principles of interpretation derived from the exegesis of other
written documents which fell under their observation, they educed a
vast variety of canons which had never been dreamed of by the
compilers of the Twelve Tables and which were in truth rarely or never
to be found there. All these treatises of the jurisconsults claimed
respect on the ground of their assumed conformity with the Code, but
their comparative authority depended on the reputation of the
particular jurisconsults who gave them to the world. Any name of
universally acknowledged greatness clothed a Book of Responses with a
binding force hardly less than that which belonged to enactments of
the legislature; and such a book in its turn constituted a new
foundation on which a further body of jurisprudence might rest. The
Responses of the early lawyers were not however published, in the
modern sense, by their author. They were recorded and edited by his
pupils, and were not therefore in all probability arranged according
to any scheme of classification. The part of the students in these
publications must be carefully noted, because the service they
rendered to their teacher seems to have been generally repaid by his
sedulous attention to the pupils' education. The educational treatises
called Institutes or Commentaries, which are a later fruit of the duty
then recognised, are among the most remarkable features of the Roman
system. It was apparently in these Institutional works, and not in the
books intended for trained lawyers, that the jurisconsults gave to the
public their classifications and their proposals for modifying and
improving the technical phraseology.
In comparing the Roman Responsa Prudentum with their nearest English
counterpart, it must be carefully borne in mind that the authority by
which this part of the Roman jurisprudence was expounded was not the
_bench_, but the _bar_. The decision of a Roman tribunal, though
conclusive in the particular case, had no ulterior authority except
such as was given by the professional repute of the magistrate who
happened to be in office for the time. Properly speaking, there was no
institution at Rome during the republic analogous to the English
Bench, the Chambers of Imperial Germany, or the Parliaments of
Monarchical France. There were magistrates indeed, invested with
momentous judicial functions in their several departments, but the
tenure of the magistracies was but for a single year, so that they are
much less aptly compared to a permanent judicature than to a cycle of
offices briskly circulating among the leaders of the bar. Much might
be said on the origin of a condition of things which looks to us like
a startling anomaly, but which was in fact much more congenial than
our own system to the spirit of ancient societies, tending, as they
always did, to split into distinct orders which, however exclusive
themselves, tolerated no professional hierarchy above them.
It is remarkable that this system did not produce certain effects
which might on the whole have been expected from it. It did not, for
example, _popularise_ the Roman law--it did not, as in some of the
Greek republics, lessen the effort of intellect required for the
mastery of the science, although its diffusion and authoritative
exposition were opposed by no artificial barriers. On the contrary, if
it had not been for the operation of a separate set of causes, there
were strong probabilities that the Roman jurisprudence would have
become as minute, technical, and difficult as any system which has
since prevailed. Again, a consequence which might still more naturally
have been looked for, does not appear at any time to have exhibited
itself. The jurisconsults, until the liberties of Rome were
overthrown, formed a class which was quite undefined and must have
fluctuated greatly in numbers; nevertheless, there does not seem to
have existed a doubt as to the particular individuals whose opinion,
in their generation, was conclusive on the cases submitted to them.
The vivid pictures of a leading jurisconsult's daily practice which
abound in Latin literature--the clients from the country flocking to
his antechamber in the early morning, and the students standing round
with their note-books to record the great lawyer's replies--are seldom
or never identified at any given period with more than one or two
conspicuous names. Owing too to the direct contact of the client and
the advocate, the Roman people itself seems to have been always alive
to the rise and fall of professional reputation, and there is
abundance of proof, more particularly in the well-known oration of
Cicero, _Pro Muraena_, that the reverence of the commons for forensic
success was apt to be excessive rather than deficient.
We cannot doubt that the peculiarities which have been noted in the
instrumentality by which the development of the Roman law was first
effected, were the source of its characteristic excellence, its early
wealth in principles. The growth and exuberance of principle was
fostered, in part, by the competition among the expositors of the law,
an influence wholly unknown where there exists a Bench, the
depositaries intrusted by king or commonwealth with the prerogative
of justice. But the chief agency, no doubt, was the uncontrolled
multiplication of cases for legal decision. The state of facts which
caused genuine perplexity to a country client was not a whit more
entitled to form the basis of the jurisconsult's Response, or legal
decision, than a set of hypothetical circumstances propounded by an
ingenious pupil. All combinations of fact were on precisely the same
footing, whether they were real or imaginary. It was nothing to the
jurisconsult that his opinion was overruled for the moment by the
magistrate who adjudicated on his client's case, unless that
magistrate happened to rank above him in legal knowledge or the esteem
of his profession. I do not, indeed, mean it to be inferred that he
would wholly omit to consider his client's advantage, for the client
was in earlier times the great lawyer's constituent and at a later
period his paymaster, but the main road to the rewards of ambition lay
through the good opinion of his order, and it is obvious that under
such a system as I have been describing this was much more likely to
be secured by viewing each case as an illustration of a great
principle, or an exemplification of a broad rule, than by merely
shaping it for an insulated forensic triumph. A still more powerful
influence must have been exercised by the want of any distinct check
on the suggestion or invention of possible questions. Where the data
can be multiplied at pleasure, the facilities for evolving a general
rule are immensely increased. As the law is administered among
ourselves, the judge cannot travel out of the sets of facts exhibited
before him or before his predecessors. Accordingly each group of
circumstances which is adjudicated upon receives, to employ a
Gallicism, a sort of consecration. It acquires certain qualities which
distinguish it from every other case genuine or hypothetical. But at
Rome, as I have attempted to explain, there was nothing resembling a
Bench or Chamber of judges; and therefore no combination of facts
possessed any particular value more than another. When a difficulty
came for opinion before the jurisconsult, there was nothing to prevent
a person endowed with a nice perception of analogy from at once
proceeding to adduce and consider an entire class of supposed
questions with which a particular feature connected it. Whatever were
the practical advice given to the client, the _responsum_ treasured up
in the note-books of listening pupils would doubtless contemplate the
circumstances as governed by a great principle, or included in a
sweeping rule. Nothing like this has ever been possible among
ourselves, and it should be acknowledged that in many criticisms
passed on the English law the manner in which it has been enunciated
seems to have been lost sight of. The hesitation of our courts in
declaring principles may be much more reasonably attributed to the
comparative scantiness of our precedents, voluminous as they appear to
him who is acquainted with no other system, than to the temper of our
judges. It is true that in the wealth of legal principle we are
considerably poorer than several modern European nations, But they, it
must be remembered, took the Roman jurisprudence for the foundation of
their civil institutions. They built the _debris_ of the Roman law
into their walls; but in the materials, and workmanship of the residue
there is not much which distinguishes it favourably from the structure
erected by the English judicature.
The period of Roman freedom was the period during which the stamp of a
distinctive character was impressed on the Roman jurisprudence; and
through all the earlier part of it, it was by the Responses of the
jurisconsults that the development of the law was mainly carried on.
But as we approach the fall of the republic there are signs that the
Responses are assuming a form which must have been fatal to their
farther expansion. They are becoming systematised and reduced into
compendia. Q. Mucius Scaevola, the Pontifex, is said to have published
a manual of the entire Civil Law, and there are traces in the writings
of Cicero of growing disrelish for the old methods, as compared with
the more active instruments of legal innovation. Other agencies had in
fact by this time been brought to bear on the law. The Edict, or
annual proclamation of the Praetor, had risen into credit as the
principal engine of law reform, and L. Cornelius Sylla, by causing to
be enacted the great group of statutes called the _Leges Corneliae_,
had shown what rapid and speedy improvements can be effected by direct
legislation. The final blow to the Responses was dealt by Augustus,
who limited to a few leading jurisconsults the right of giving binding
opinions on cases submitted to them, a change which, though it brings
us nearer the ideas of the modern world, must obviously have altered
fundamentally the characteristics of the legal profession and the
nature of its influence on Roman law. At a later period another
school of jurisconsults arose, the great lights of jurisprudence for
all time. But Ulpian and Paulus, Gaius and Papinian, were not authors
of Responses. Their works were regular treatises on particular
departments of the law, more especially on the Praetor's Edict.
The _Equity_ of the Romans and the Praetorian Edict by which it was
worked into their system, will be considered in the next chapter. Of
the Statute Law it is only necessary to say that it was scanty during
the republic, but became very voluminous under the empire. In the
youth and infancy of a nation it is a rare thing for the legislature
to be called into action for the general reform of private law. The
cry of the people is not for change in the laws, which are usually
valued above their real worth, but solely for their pure, complete,
and easy administration; and recourse to the legislative body is
generally directed to the removal of some great abuse, or the decision
of some incurable quarrel between classes and dynasties. There seems
in the minds of the Romans to have been some association between the
enactment of a large body of statutes and the settlement of society
after a great civil commotion. Sylla signalised his reconstitution of
the republic by the Leges Corneliae; Julius Caesar contemplated vast
additions to the Statute Law; Augustus caused to be passed the
all-important group of Leges Juliae; and among later emperors the most
active promulgators of constitutions are princes who, like
Constantine, have the concerns of the world to readjust. The true
period of Roman Statute Law does not begin till the establishment of
the empire. The enactments of the emperors, clothed at first in the
pretence of popular sanction, but afterwards emanating undisguisedly
from the imperial prerogative, extend in increasing massiveness from
the consolidation of Augustus's power to the publication of the Code
of Justinian. It will be seen that even in the reign of the second
emperor a considerable approximation is made to that condition of the
law and that mode of administering it with which we are all familiar.
A statute law and a limited board of expositors have risen into being;
a permanent court of appeal and a collection of approved commentaries
will very shortly be added; and thus we are brought close on the ideas
of our own day.