Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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FICTIONS

II.65.1

FICTIONS, in Law and in Political Economy. The part which fictions have played in the history of human society and of political science and thought, is one of the most instructive phenomena that sociology can investigate. They have had a large share in determining not only the political ideas, but the political and legal rights of mankind. It is needless to say we do not refer to fictions in the common meaning of the word as denoting mere fabrications in the sense of falsehoods, nor yet to the fictitious creations of the novelist's imagination. The fictions we have in view may be classed as legal, political and philosophical; some of them, in different aspects, coming under all three heads. Sir Henry Maine, in his work on Ancient Law, has drawn attention to the vast influence which fictions have exercised over the development of society, as affording a means of introducing change and reform into law without breaking with the past and its traditions and solemn forms. But for one of these fictions, one older than positive law in the strict sense of the word, but which fills conspicuous place in the most famous of all legal systems, few early communities could have survived. The disasters and perils surrounding them—war, pillage, famine, fire, disease—were such that families were often left without male heirs, clans without chiefs of the true blood. The sons were slain in battle, or perished early from the hardships to which childhood was exposed, or were taken captive and passed into slavery, or fell victims to the maladies which ravaged the human race in its infancy. Households were thus left without their natural protectors, and, what was deemed a graver evil, without successors to perform the rites of ancestry worship, and to leave male heirs in their turn to perpetuate it. The fiction of adoption whereby a stranger was admitted to the place of a son, with all his rights and obligations, gave the family a defender and head, and preserved its name and honor among the living. As society advanced, the forms of adoption were applied to other ends, as, for instance, to effect the alienation of land by gift and sale. The ancient testament was at first a species of adoption, or of the nomination of a successor to the headship of the family and the administration of its patrimony; and at length was made use of to effect the disinheritance of the natural heir. The civil law of Rome, and the common law of England, were for centuries developed mainly by means of the fiction of a religious adherence to the letter and form of the law, while in substance it was radically changed by novel interpretations. The state of thought which this mode of law reform indicates is especially remarkable. There is the most scrupulous adherence to the outward forms and literal text of the law, while there is no scruple in subverting it in spirit. There can be little doubt that the explanation is to be looked for in the original connection of law with religion, and the consequent sacredness of legal ceremonies and formulas as religious rites and observances. Herbert Spencer says that government and law, were originally, nothing but ceremony. A third term is however necessary to explain their connection. Law was originally religion: religion consisted in forms, obeisances and ceremonies; and law, accordingly, was in the main a mass of ceremonial observances. The idea of the sacred and inviolate character of the form and letter survived after its origin in religion had been forgotten. No change in the ancient order of procedure was permitted, but whatever it could be interpreted to cover was lawful and right. There is no reason to suppose that either the Roman jurisconsults or the English judges were exempt from a reverential regard for the regular procedure and literal terms of the old law, when superseding it in substance, and even when triumphing in the ingenuity by which the change was effected.

II.65.2

—No more curious instance of the length to which legal fictions have been pushed can be cited, than that of the collusive action, called a common recovery, whereby in the reign of Edward IV, the owner for life of an entailed estate was enabled to set aside the statute De Donis, and to alienate the land from the heir. Many reasons concurred to make the barring of entails appear expedient at that epoch. The crown and its lawyers were desirous of making the inheritance and not the life estate only, forfeitable for treason. The ancient principles of the common law, derived by the early judges in a great measure from the Roman jurists, inclined the courts to favor the free disposition of landed property. The courts of law, moreover, were engaged in a fierce struggle with the court of chancery for jurisdiction, and were seeking to extend their powers and remedies, and to attract suitors by fictions, such as the actions of ejectment and common recovery. The expenses attending the war of the roses, and their own extravagant habits, had embarrassed many landed proprietors, and made them anxious to sell; while a middle class in both town and country had become wealthy and were anxious to buy. The judges and great lawyers were themselves great buyers of land and liked to see it brought into the market. But along with all these reasons for sanctioning the fictitious process whereby lands were disentailed, there was a survival in the breasts of the judges of a feeling of the efficiency of the ancient form and letter of the law. For while the transaction would have been held invalid, had a single ceremony or formula been omitted or changed, a close adherence to ancient precedent in outward procedure was allowed to subvert a fundamental enactment respecting inheritance. But a time was sure to come, when a fiction such as that of the common recovery would be intolerable both to public opinion and to that of the legal profession, even for the most expedient and beneficial reform. The intellect of an advanced age revolts against a solemn judicial juggle, as an indecent abuse and usurpation of legislative power.

II.65.3

—Among legal fictions, though of a different kind from the foregoing, may be classed the forged compilations of law of which the middle ages were so fertile. A remarkable instance is that of Andrew Horn's Miroir des Justices, which was lauded by Lord Coke and is still not unfrequently cited by English legal writers, as a valuable and trustworthy repertory of Anglo-Saxon law. Horn was no lawyer, being a fishmonger by occupation, and a chamberlain to the city of London, who lived in the reigns of the three Edwards, and whose compilation is a crude mixture of tradition, fable, and the laws of his own time. Hallam's just sentence on the Mirror for its fictions and forgeries has not deprived it, down to the present day, of authority in the estimation of authors of some reputation even in Germany.

II.65.4

—Among both political and legal fictions we must class the venerable British constitution, which is still in many respects, in outward form, a pure monarchy, while in fact it is a republic, and rapidly becoming a very democratic one. The royal sanction is still given to a statute in terms which sound like the maxim of imperial law, Quod principi placuit legis habet vigorem, though the British sovereign has really a less voice in legislation than the humblest elector.

II.65.5

—Of the mixed philosophical and political fiction, the doctrine of the social compact, as the foundation of the authority of government and law, affords an example, which was made especially memorable when the two houses of the English parliament put it forward as the ground of the deposition of James II. The commons resolved that King James, having endeavored to subvert the constitution by breaking the original compact between king and people, and having withdrawn himself out of the kingdom, had abdicated the government and that the throne was thereby vacant. The house of lords, for their part, also framed a resolution that there was an original contract between the king and the people. It may well seem to modern ideas that no such fiction was necessary to justify the deposition of such a sovereign yet Hallam's comment on the resolution is, that it involved "a proposition necessary at that time as denying the divine origin of monarchy, from which its claim to absolute indefeasible authority had been plausibly derived."

II.65.6

—A still more famous fiction and one that may claim to be termed at once legal, political and philosophical, is that of a law of nature, from which flow a number of both political and legal rights. This fiction, the origin of which has been traced by Sir Henry Maine to a mixed Greek and Roman source, contributed much to bring about the French resolution, and the ideas of natural liberty and equality which then spread through the world. It is curious that it has lent its support to opposite conceptions of rights in different countries. In France children are supposed to have a natural right to equal shares in their parents' property. In England an unrestricted testamentary power, whereby the succession of any or all of the children may be defeated is supposed to be a natural right, and has been so denominated by learned writers on jurisprudence. The whole class of so-called natural rights for example, to life, liberty, property, reputation exist only by the sanction of the state and positive law; and they are set aside by the state without scruple when public policy demands it, as, for instance, when it becomes necessary to make citizens fight for their country. As democracy advances less and less regard is now paid to individual "rights" of this sort. It is to an aristocratic legislature that rights of property and independence seem most sacred and founded in natural justice, instead of in simple expediency. Yet the conception that they have a foundation in a law of nature, fictitious as such a basis is, will probably long continue to give effective aid to the opponents of socialism.

II.65.7

—Political economy undoubtedly owed not only its first successes but much of its form in a great measure to the popularity of the doctrine of a code of natural law. Adam Smith drew from it the doctrines in the Wealth of Nations of the "natural system of liberty" by which the province of the state was bounded; of the beneficent tendency of the "natural effort of every man to better his condition," of "the natural order of opulence," and of "natural wages, profit, prices and rent."

II.65.8

—It would not be too much to say that the domain of fiction in human philosophy once far exceeded that of truth, based on inductive investigation and positive evidence. At the same time it would be rash to assert that fiction has not played in several departments of thought a beneficent part. The doctrine of natural rights has without doubt done much for the prosperity and happiness of mankind.

II.65.9

—But the sphere of fiction must steadily diminish as that of inductive and positive science advances and as man's mind itself becomes stronger, clearer and more discerning. Dr. Whewell, in tracing the slow progress of former ages in the physical sciences to the indistinctness and inappropriateness of human ideas on such subjects, laid himself open to the retort that this imperfection of human thought in matters of science was the very thing to be accounted for. Yet there is a sense in which the disciple of Herbert Spencer may accept Dr. Whewell's proposition. In the infancy of the human race the brain of man is small and soft and feeble. It grows larger and more vigorous by exercise, and its increased powers are transmitted to each successive generation to receive further enlargement. Truth advances, and the clouds of fiction recede, not merely because discoveries are made and errors refuted, but because man's cerebral vigor and activity grow, and the faculties by means of which science and philosophy make progress gain strength, in a manner which will become clear to any one who compares the brain of a savage with that of a civilized and educated man.

T. E. CLIFFE LESLIE.

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