The assumption that a certain thing is true, and which gives to a person or thing a quality which is not natural to it, and consequently establishes, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribes or authorizes. It differs from presumption because it establishes as true, something which is false; whereas presumption supplies the proof of something true.
The law never feigns what is impossible. Fiction is like art; it
imitates nature, but never disfigures it. It aids truth, but it ought
never to destroy it. It may well suppose that what was possible, but
which does not exist; but it will never feign that what was impossible
Fictions were invented by the Roman praetors who, not possessing the
power to abrogate the law, were nevertheless willing to derogate from it
under the pretence of doing equity. Fiction is the resource of weakness
which, in order to obtain its object, assumes as a fact what is known
to be contrary to truth: when the legislator desires to accomplish his
object, he need not feign, he commands. Fictions of law owe their origin
to the legislative usurpations of the bench.
It is said that every fiction must be framed according to the rules of
law, and that every legal fiction must have equity for its object. To
prevent their evil effects, they are not allowed to be carried further
than the reasons which introduced them necessarily require.
The law abounds in fictions. That an estate is in abeyance; the doctrine
of remitter, by which a party who has been disseised of his freehold
and afterwards acquires a defective title, is remitted to his former
good title; that one thing done today, is considered as done at a
preceding time by the doctrine of relation; that because one thing is
proved, another shall be presumed to be true, which is the case in all
presumptions; that the heir, executor, and administrator stand by
representation in the place of the deceased are all fictions of law.
"Our various introduction of John Doe and Richard Roe; our solemn
process upon disseisin by Hugh Hunt; our casually losing and finding a
ship (which never was in Europe) in the parish of St. Mary Le Bow, in
the ward of Cheap; our trying the validity of a will by an imaginary
wager of five pounds; our imagining and compassing the king's death, by
giving information which may defeat an attack upon an enemy's settlement
in the antipodes; our charge of picking a pocket or forging a bill with
force and arms; of neglecting to repair a bridge, against the peace of
the king, his crown and dignity are circumstances, which, looked at by
themselves, would convey an impression of no very favorable nature, with
respect to the wisdom of our jurisprudence."