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ART. IV.-LEGAL FICTIONS.
[From the Monthly Law Magazine, for December, 1840.]
THERE is no accounting for the perversity of the human mind; there is no calculating on the absurdities and contradictions into which it may be betrayed, when actuated by a love of paradox or a desire for singularity. To a man so influenced nothing is sacred: the beautiful, or the true— all that has received the worship of ages—is prostrated and broken up by his iconoclastic phrenzy. Instances might be mentioned without end. The learned editor of the Foedera saw nothing to admire, and every thing to blame, in the works of Shakspeare; the awful tragedy of Othello was to his taste—(if we do not mis-remember his words)—“a bloody farce without salt or savor:” the almost divine discoveries of Newton are mere puerilities in the eyes of sir Richard Phillips (the author of “A Million of Facts,”— not to be confounded with the mayor of Newport): there are men who prefer the pretty ginglings of Donizetti to the meaning harmonies of Mozart—and there are not wanting those who stigmatize the study of our profession as dry and uninteresting. Where hallucinations of this nature proceed from ignorance, or want of taste (which after all is ignorance), they are to be pitied rather than blamed; but he who defends his ignorance, and contends that it is knowledge, renders himself ridiculous and contemptible. “The man who has not music in his soul” becomes foolish when he decries the taste for it in others: as a person suffering under an obliquity of vision would be laughed at were he to condemn the eyes of all the rest of mankind, and declare that his alone were placed in a proper and natural position. To him, therefore, who may express such profane opinions of the law from sheer want of the faculty of appreciating its manifold and exquisite beauties, we have nothing to say. We have no respect for such a man's judgment—we utterly despair of his taste : A primrose by a river's brim, A yellow primrose is to him— But it is nothing more ;
he is as veritable a “Potter’’ as Wordsworth's, with a reduplicate syllable. Flowers and poetry are dead letters to him. But with the man who is more highly gifted— “the gentleman and the scholar”—who professes a relish for polite literature, and yet ventures (in a spirit of absurd antagonism to his better taste—for it must be so) to propound such doctrines as we have alluded to, with him we declare war d l'outrance, as against the bitterest enemy of our profession—one who would deprive it of all those amenities and graces which at present constitute its chief characteristics.
To us, “much reflecting on these things,” and it must be confessed occasionally longing once more to behold the fields of lighter literature, and there to pass
The sweet forgetfulness of toilsome life,
it is always a matter of extreme delight and refreshment to turn to those exquisite Fictions, which both adorn and simplify our law—mingling utility with sweetness, and tending to the noblest end to which poetry can devote itself— namely, to benefit mankind, and render them happy. Nor let it be supposed that this is the fond praise of a visionary enthusiast: the grave and learned lord Coke has declared that in fictione juris semper equitas existit;' and sir William Blackstone, following in his steps, has observed— “These fictions of law, though at first they may startle the student, he will find, upon further consideration, to be highly
'll Rep. 51 a ; Co. Lit. 150 a.
beneficial and useful; especially as their maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law.”
And he gives in a note the following extract from the civil law —“contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, ubi fictio adversus veritatem finget 2 Nam fictio nihil aliud est, quam legis adversus veritatem in re possibili er justá causá dispositio :” which latter sentence may be thought to compensate by its strength for what it wants in perspicuity.” No wonder that with such sentiments, the learned commentator should fall foul upon sir Thomas Ridley, who, in his view of the civil and ecclesiastical law," hath severely handled the common lawyers for “avocating away of causes” from the court of admiralty to the common law courts, by the fiction that a contract really made at sea was made at the Royal Exchange, or other inland place.” Sir Thomas, in the ardor of his indignation, is not very careful to be accurate in the cause of his complaint, for he says—
“The common lawyers (to defeat the civile law of the trial thereof) have devised sundry actions, and among the rest an action of TRover, whereby they faign that a ship arrived in Cheapside, or some other like place within the citie, and there the plaintiff and defendant meeting together, bargained upon some merchandize or other like seafaring matter, by which fiction, they pretend the bargain now is to be tryed in the common law, and not by the civile law, as being done in the body of a countie, and not upon the maine sea, or any other place subject to the admirall jurisdiction.” We need hardly point out to the professional reader how egregiously the civilian is mistaken both as to the form of the action and the nature of the fiction adopted by our lawyers; but, making allowance for these errors, we must do sir Thomas the justice to say that he exhibits considerable taste and judgment in his strictures upon the art of legal poetry, and lays down some rules respecting the adoption of fictions, worthy of Horace himself, whom he quotes with great unction upon the subject:
"3 Bl. Com. 43.
* Gothofred, in Pand. 22.3.
*This definition of a fiction appears to have been originally given by the celebrated Bartolus, (called by the civilians “the Star of Lawyers, the Master of Truth, and the Lanthorn of Equity”); in this form. “a fiction is an assumption of the law upon an untruth, for a truth, in a certain thing, possible to be done, and yet not done.”—T. Ridley, View of Civ. and Eccl. L. part 3, c. 1, s. 3.
* Ut supra. * 3 Bl. Com. 107.
“And as the law cannot proceed to a fiction without equity, so neither can it feign any thing that is impossible, for art evermore followeth nature; and therefore if a man would feign disproportionable things, such as the painter did in Horace, who made boars wallow in the waves of the sea, and dolphins wander in the woods; these fictions in no sense can be admitted, for that they are such as neither nature nor reason can brook.”
And then, after arguing that his suppositious action of trover is grossly inequitable, he proceeds to say—
“And surely as there is no equity in it, so there is no possibility such a fiction should be maintained by law; for it hath no ground of reason to rest his feet on. For if this be granted that such a fiction of law may be made, then one of these absurdies must needs follow, either that a ship may arrive in a place where no water is to carry it, or if that it arrive according to the fiction, either the people, their houses, and their wealth, shall be all overwhelmed in the water, as the world was in Noah's flood and Deucalion's deluge, and so nobody there shall be keep alive to make any bargain or contract with the mariners and shipmen that arrive there, or that the people that dwell there shall walk upon the water, as people do on land, which Peter himself was not able to doe, but had sunck, if Christ had not reacht his hand to him, and therefore far less possible for any other man to do.”
The ingenious civilian has, however, forgotten the possible, though certainly remote, contingency, of the people of Cheapside being provided with boats or even ships of their own; so that we venture to assert that the fiction is really not so absurd and unnatural as sir Thomas supposes it.
But we have no patience with such a person as the author of the work entitled, “Eramen Legum Angliae, or the Laws of England examined by scripture, antiquity, and reason;”—a dull, sour, crabbed, puritanical commonwealth's man, who wished to restore the Mosaical law, and would hear of nothing in ours that was opposed to it— a man without a particle of taste for the fine arts, and who stupidly asserts that—
“All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehood and lies; and of necessity must be so, whilst the law continues as it now is.”
Such a person would, of course, equally condemn the use of all fiction, and consign to oblivion every thing that bore the stamp of poetry, rooting up from the way-side of the path of life the wild flowers which spring up to cheer the traveller, thereby rendering his road plain indeed, and with nothing to enliven its dulness and dust. But if we retain the fictions of poetry, we see no reason to reject the fictions of law. If it was in Homer, according to his great critic, a merit to have taught succeeding poets how to tell lies with propriety,” why should the lawyer be debarred from the exercise of his inventive faculties.
* London, 1656. The title page bears this inscription, “Cujus author anagrammatosest, “A vöuo; Bog Go Bagw.” In Reed's Law Catalogue this work is attributed to A. Boon, upon what authority we are not aware. It is not mentioned in Beughem’s Bibliographia juridica et politica, which professes to be a catalogue of all books upon jurisprudence or politics published since 1651 to 1680.
*Ch. 12, § 15, p. 95. *wsvöm asysey & ds.