Fictions

Fictions in English law have abounded, and they have been somewhat cynically defined as "those things that have no real essence in themselves, but are acknowledged and accepted in law for some especial purpose." These especial purposes are various. The law (by which must be understood those who, for the time being, are the expounders and interpreters of it), it is said, shall never make any fiction but for necessity and in avoidance of a mischief (Coke's Reps. vols, iii.-xxx.). This is equivalent to saying that those who interpret the law will, in order, to avoid a special hardship, or remove some unexpected difficulty not provided for by the law, resort to a fiction - that is, they will assume something to be which is not. It has been remarked that these fictions have always a good result in view, a result, that is, considered good by those who make or maintain the fictions. Fictions of law must not be of a state of tilings impossible, but the reason for this is somewhat curious, "for the law unites nature." Under this head there is a canon of law, "that a man shall never be subject to the penalty of a statute by a fiction." The following are a few of many instances. The old action of Ejectment was founded upon a fiction, the names of the nominal Plaintiff and Defendant being purely fictitious [Ejectment]; the levying of a fine as a mode of conveyance of real estate, now abolished [Fine]; the action in which a father recovers damages for the seduction of his daughter is to the present day founded upon the "loss of her services." Many fictions, so far from being injurious, have often been beneficial, but their existence indicates a defect which it is the business of legislation to remedy, and many of them have been remedied during the present and preceding reigns.