Fiction

Fiction, LEGAL, a supposition of law that a thing is true, which is either certainly not true, or at least is as probably false as true. Fictions have existed in all legal systems. They have served many useful purposes, by enabling individuals who by the strict letter of the law would have been excluded from obtaining redress of evils to procure that remedy by a pious fraud. There are two general maxims which regulate the application of fictions—viz. that no fiction shall be allowed to operate a wrong, and that no fiction shall be admitted which in the nature of things is impossible. The Roman form of judicial procedure abounded with fictions, by which alone, in many cases, a party aggrieved could enforce his right. Thus, an heir, unjustly disinherited, by the querela inofficiosi testamenti feigned that his father had been mad. A stranger in Rome who had been robbed could not in early times obtain restitution without the fictio civitatis, whereby he feigned himself a citizen. Many of the fictions existing in Rome have found a counterpart in modern systems; thus, the fictio longæ manus, whereby lands at a distance were feigned to be delivered, resembles an English feoffment at law. In like manner, the fictio traditionis symbolice of keys of a warehouse to give possession of the articles contained therein, and of a deed in confirmation of the covenants contained therein. The 'fiction of the unity of the persons' was the original of the Scottish fiction that 'the heir is the same as the deceased.' But in no system of laws have fictions been so liberally adopted as in that of England. It was by means of fictions alone that the original limited jurisdiction of the courts of Queen's Bench and Exchequer was extended to ordinary suits. In the latter court every plaintiff assumed that he was a debtor to the crown, and was debarred from discharging his obligation by the failure of the defendant to satisfy his demand; in the former it was assumed that the defendant had been arrested for some supposed trespass which he had never in fact committed. The fictitious characters of John Doe and Richard Roe long continued to make the action of Ejectment (q.v.) famous. And though these fictions have disappeared before the ruthless hand of modern legislation, yet to this day in England, in an action at the instance of a father for the seduction of his daughter, damages can only be awarded on the assumption that she was his servant, and that he has suffered pecuniary loss by deprivation of her services. In the law of Scotland fictions of law are not of frequent occurrence. For the benefit of creditors the principle that the heir is 'the same person as the deceased' is admitted; and in an action of 'Reduction-improbation' of a deed it is assumed that the document was false, whether the fact be so or not. The legitimization of natural children by the subsequent marriage of their parents is an instance of what is called a retroactive fiction. See Maine's Ancient Law, and Colquhoun's Summary of the Civil Law.—For works of fiction, see NOVELS.