FICTIONS, or legal fictions, in law, the term used for false averments, the truth of which is not permitted to be called in question. English law as well as Roman law abounds in fictions. Sometimes they are merely the condensed expression of a rule of law—e.g., the fiction of English law that husband and wife were one person, and the fiction of Roman law that the wife was the daughter of the husband. Sometimes they must be regarded as reasons invented in order to justify a rule of law according to an implied ethical standard. Of this sort seems to be the fiction or presumption that everyone knows the law, which reconciles the rule that ignorance is no excuse for crime with the moral com monplace that it is unfair to punish a man for violating a law of whose existence he was unaware. Again, some fictions are deliberate falsehoods, adopted as true for the purpose of es tablishing a remedy not otherwise attainable. Of this sort are the numerous fictions of English law by which the different courts obtained jurisdiction in private business, removed inconvenient restrictions in the law relating to land, etc. (See BARGAIN AND SALE.) What to the scientific jurist is a stumbling-block is to the older writers on English law a beautiful device for reconciling the strict letter of the law with common sense and justice. Blackstone, in noticing the well-known fiction by which the court of king's bench established its jurisdiction in common pleas (viz. that the de fendant was in custody of the marshal of the court), says, "These fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this 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. So true it is that in fictione juris semper subsistit aequitas." Fictions form one of the agencies by which, in progressive soci eties, positive law is brought into harmony with public opinion. The others are equity and statutes. Fictions in this sense include, not merely the obvious falsities of the English and Roman systems, but any assumption which conceals a change of law by retaining the old formula after the change has been made. It thus includes both the case law of the English and the Responsa Prudentum of the Romans. "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 per mits the family tie to be artificially created, it is difficult to under stand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilization." (Sir H. Maine, Ancient Law.) The bolder remedial fictions of English law have been to a large extent removed by legislation. Thus in ejectment cases the mysterious sham litigants have disappeared. The bond of en tail can be broken without having recourse to the collusive pro ceedings of fine and recovery. Many fictions must have begun their career as metaphors concealing principles. The conception that a man-of-war is a floating island, or that an ambassador's house is beyond the territorial limits of the country in which he resides, was originally a figure of speech designed to set a rule of law in a striking light. It is then gravely accepted as true in fact, and other rules of law are deduced from it. On the other hand, obsolete principles may be classed as fictions when they are quoted as having a present existence. Thus the legal attributes of the king, and even of the House of Lords, are fictions. Again, many would hold that the assertion that any elective government really represents the people is hardly more than a fiction.
Bentham notices the comparative rarity of fictions in Scots law. As to fiction in particular, compared with the work done by it in English law, the use made of it by the Scottish lawyers is next to nothing. No need have they had of any such clumsy instrument. They have two others "of their own making, by which things of the same sort have been done with much less trouble. Nobile officium gives them the creative power of legislation ; this and the word desuetude together the annihilative." And he notices aptly enough that, while the English lawyers declared that James II. had abdicated the throne (which everybody knew to be false), the Scottish lawyers boldly said he had forfeited it. (Historical Pref ace to the second edition of the Fragment on Government.)