Legislation, the enactments of a legislature which, whetherit take the form of an autocratic prince or of a parliamentaryassembly, is the assumed organ of the entire society, is the lastof the ameliorating instrumentalities. It differs from LegalFictions just as Equity differs from them, and it is alsodistinguished from Equity, as deriving its authority from anexternal body or person. Its obligatory force is independent ofits principles. The legislature, whatever be the actualrestraints imposed on it by public opinion, is in theoryempowered to impose what obligations it pleases on the members ofthe community. There is nothing to prevent its legislating in thewantonness of caprice. Legislation may be dictated by equity, ifthat last word be used to indicate some standard of right andwrong to which its enactments happen to be adjusted; but thenthese enactments are indebted for their binding force to theauthority of the legislature and not to that of the principles onwhich the legislature acted; and thus they differ from rules ofEquity, in the technical sense of the word, which pretend to aparamount sacredness entitling them at once to the recognition ofthe courts even without the concurrence of prince orparliamentary assembly. It is the more necessary to note thesedifferences, because a student of Bentham would be apt toconfound Fictions, Equity, and Statute law under the single headof legislation. They all, he would say, involve law-making; theydiffer only in respect of the machinery by which the new law isproduced. That is perfectly true, and we must never forget it;but it furnishes no reason why we should deprive ourselves of soconvenient a term as Legislation in the special sense.
Legislation and Equity are disjoined in the popular mind and inthe minds of most lawyers; and it will never do to neglect thedistinction between them, however conventional, when importantpractical consequences follow from it.
It would be easy to select from almost any regularlydeveloped body of rules examples of legal fictions, which at oncebetray their true character to the modern observer. In the twoinstances which I proceed to consider, the nature of theexpedient employed is not so readily detected. The first authorsof these fictions did not perhaps intend to innovate, certainlydid not wish to be suspected of innovating. There are, moreover,and always have been, persons who refuse to see any fiction inthe process, and conventional language bear out their refusal. Noexamples, therefore, can be better calculated to illustrate thewide diffusion of legal fictions, and the efficiency with whichthey perform their two-fold office of transforming a system oflaws and of concealing the transformation.
We in England are well accustomed to the extension,modification, and improvement of law by a machinery which, intheory, is incapable of altering one jot or one line of existingjurisprudence. The process by which this virtual legislation iseffected is not so much insensible as unacknowledged. Withrespect to that great portion of our legal system which isenshrined in cases and recorded in law reports, we habituallyemploy a double language and entertain, as it would appear, adouble and inconsistent set of ideas. When a group of facts comebefore an English Court for adjudication, the whole course of thediscussion between the judge and the advocate assumes that noquestion is, or can be, raised which will call for theapplication of any principles but old ones, or any distinctionsbut such as have long since been allowed. It is taken absolutelyfor granted that there is somewhere a rule of known law whichwill cover the facts of the dispute now litigated, and that, ifsuch a rule be not discovered, it is only that the necessarypatience, knowledge, or acumen is not forthcoming to detect it.
