View of the Admiral Jurisdiction, Chapter 7
CHAP. VII.
Of Fictions; what a Fiction in Law is; how farre and in what caſes Fictions may be uſed according to the Rules of Law.
BY Fiction is here intended no other then ſuch as the Law it ſelf intends, no other then ſuch as being authoriſed by Law, and introduced upon a warrant of Law, hath in operation the due effect of Law. As for other Fictions, the Law underſtands them but as meer Cyphers, tollerating none but ſuch as are grounded upon and regulated according to the juſt Principles of the Law; The Eſſence of Law being more Rational, her Deſigns more Equitable, her Mediums more feaſible, and her ſtyle more ſerious and venerable, then to hazard either under the Conduct of any Notions inconſiſtent either with Equity or Poſſibility; For the Law doth imitate Nature; Such Fictions therefore as cannot endure the Teſt of Law, are Fictions indeed, proper only for a Comment upon Lucians Dialogues. To proceed therefore to the Law.
A Fiction in the eye of the Law, and ſuch whoſe Practice may be warranted by Law, is Legis adverſus veritatem in re Poſſibili ex juſta cauſa diſpoſitio. aSchard. ver. Fictio.So that it is Legis non hominis diſpoſitio; it muſt be a Fiction framed according to the Rules of Law, not whatever is imaginable in the conceptions of Man. This word [Diſpoſitio] is ſometimes taken for a quality of the mind, or imperfect habit, that is, an Inclination or Affection. bCaſ. Tract. Dialect. 2. part. cap. 20, & 21. Vid. Larrea. Deciſ. Granar. Diſp. 8. nu. 58. Semper Fictio, Licet veritati contraria, tamen veritatem imitatur. § Minorem. De Adopr. & l. Si Filius, 14. D. Si Cer. per. & l. Triennio 18. D. de Stat. Liber. Et ſolum extenditur ad id quod per veritatem & rerum Naturam fieri poteſt. Gloſ. in l. 3. D. Pro Socio, & Curr. l. 2. Conject. ad fratrem, cap. 13. & Oſwald. l. 14. ad Donel. cap 19. lit. A.But in this place it ſignifies an Act proceeding from good Authority of Law; for it muſt be Ex juſta Cauſa; which word [Juſt] hath divers acceptations or ſignifications in the Law; As ſometimes it is oppoſed to that which is wicked or contrary to Juſtice and Equity; whence it follows, that the Suggeſtor may not frame or model a Fiction oppoſite thereto; Sometimes the word [Juſt] is in the Law taken for Full or Perfect; And hereby all defects and imperfections for want of any Legal Requiſites in the Suggeſtors Notions to the fabricating of a Fiction, are excluded; Such are the defects or imperfections in reſpect either of Equity or Poſſibility; For as the ſuggeſtions are to ariſe ex juſta cauſa, ſo they are to center in re poſſibili. But to prevent miſtakes, let it not be hence inferred, as if it were here implyed, that all Surmizes and Suggeſtions at Law in order to remove or tranſplea a Cauſe from one Juriſdiction to another, were ſuch Fictions as fall not within the compaſs of the ſaid Definition of a Legal Fiction; If any ſuch inconſequent conſtruction be made of the Premiſes, or ſhall be made of what follows, it is no mans errour but the Readers; For though all Fictions, whether Legal or illegal, may be Surmizes, Suggeſtions, or Suppoſitions, yet all Surmizes or Suggeſtions are not illegal Fictions; And many of the Suggeſtions uſed in the Practick part of the Law for the end aforeſaid, are both true, equitable, and poſſible, and conſequently probable, and ſo of good and neceſſary uſe in practice, according to the Law in the Statute of Prohibitions in that behalf provided. And this not by way of digreſſion, but ad majorem & neceſſariam Cautelam, to prevent all miſ-apprehenſions.
The foreſaid Definition of a Fiction Legal, not finding general entertainment among the DD, it may be free to incline with the more received opinion to Bartols definition thereof; whoſe words are cBart. in l. Si quis pro Emptore. D. de uſucapionib.theſe, viz. Fictio, eſt in re certa, ejus quod eſt poſſibile adverſus veritatem, pro veritate a jure facta aſſumptio. A Fiction is an Aſſumption of Law upon an untruth for a truth, againſt the truth, in ſome thing poſſible to be done, but not done. So that Surmizes and Suggeſtions in Judicial Practice that are true, are not (as was aforeſaid) Fictions. In this definition it is ſaid to be in re certa, to difference it from Preſumption, which ever fixes upon ſomething that is dubious, dL. Sive poſſidetis, Cod. de Probat. & Cyn. ibid. & l. non eſt veriſimile. D. Quod metus cauſa.yet carries ſo much of truth with it, as without better evidence is not counterpoized; But Fictio fit ſuper Certo, eIbid. in gloſ. mag. in l. non eſt veriſim.Super Falſo & Certo fingitur; Super Vero & Incerto praeſumitur. fGothof. ad Rub. D. de Probat.Likewiſe, in in this definition it is ſaid to be Ejus quod eſt poſſibile, becauſe Super eo quod eſt impoſſibile non poteſt fingi. gBart. ibid. nu. 22.Of Impoſſibilities there can be no Fiction according to Law whereon to ground any Suggeſtion. Reaſon it ſelf proves this, for Art (as aforeſaid) ever imitates Nature; And what is impoſſible according to Nature, is impoſſible according to Art; and though Art in ſome ſenſe may be ſaid to perfect Nature, yet it may not contradict Nature in any ſenſe. A Fiction in Law ever imitates a poſſibility in Natur…. hL. Adoptio. ff. de Adopt.Again, it is ſaid to be Adverſus veritatem, becauſe if it were really true, it would ceaſe to be a Fiction, yet withal it is ſaid to be pro veritate, An Aſſumption of Law upon an untruth for a truth, becauſe it hath the effect of Law, being thus qualified, as fully as if it were an Aſſumption upon a Truth. Laſtly, it is ſaid to be à jure facta Aſſumptio, to exclude all illegal untruths, which are not of Law, but of Man, and therefore have not the deſigned effect in operation of Law.
The premiſes conſidered, it is moſt evident, That on every Fiction according to Law, attend two ſuch Eſſential Requiſites, that if either of them be wanting, it ceaſes to be a Legal Fiction; The one is Equity, the other is Poſſibility; Theſe are the Duo Neceſſaria to every Legal Fiction; And ſuch Fictions thus qualified, are introduced by the Civil Law, wherein among many others there are ſpecially two that may be ſaid to be the Capital or more Principal Fictions in the Law; The one whereof is in Lege Cornelia; The other in jure Poſtliminii; A Fiction Legis Corneliae takes place, when a Captive intra praeſidia hoſtium dyes under ſuch Captivity; For if ſo, then ſuch Captive by that Law, if he made a Will before ſuch his being taken Captive, ſhall in favour of ſuch Will, and for the upholding of the ſame, be feigned to be dead in puncto temporis, immediately before ſuch his being taken Captive. iLe. Cornelia. ff. de Teſtam. & l. Cornel. ff. de Vulg. ſubſti….And ſo by that Legal Fiction of Death his Will is firm and valid, as if he had really dyed without ever being taken by the Enemy. That De jure Poſtliminii is, whereby for the preſervation of a mans right of property, the Law doth feign him that is returned out of Captivity to be and to have been as if he had never been Captive, or at all abſent from that place of his freedome and priviledge, whereof he was before ſuch his Capture; kL. retro. & l. in bello. § 1. & l. bona. ff. de Capt. & § 4. D. Quibus mod. jus. patr. ſolvit.whereby he is redintegrated into his priſtine ſtate and condition. As it is thus as to Perſons, ſo alſo is it as to Things, ſuch only excepted as by Law are exempted from the priviledge of Poſtliminium.
There are divers other Fictions in the Law, though of leſs weight, which have not any dependance at all on the former, yet not one of them without Equity and Poſſibility. Thus he that is in contempt for non-appearance in Court upon due Summons, is by Law feigned to be preſent, that ſo neither the Law might be rendred Eluſory by his abſence, nor himſelf get any advantage by his own Laches, nor the adverſe party receive prejudice by the others contempt. lL. Abſent…, ff. de verb. Sign.So on the other ſide, he that is preſent in Court, but doth there lurk and hide himſelf, vel latitare inter columnas, is by the Law feigned to be abſent. mL. ibid. gloſ. mag.Alſo, he that is in utero, and as yet unborn, is by the Law quoad ſuum commodum, feigned to be born, leſt otherwiſe he ſhould be left without remedy as to a childs portion. nL. qui in utero, & l. pen. ff. de ſtat. hom.Likewiſe, ſuch as enter into mutual Contracts of Partnerſhip, though themſelves may not therein create Fictions other then the Law allows, yet in matters of Society and Partnerſhip the Lex Aquiliana doth feign a mutual ſtipulation or hypothecation in ſuch Conſortſhip, which the Law ſtyles ſtipulatio Aquiliana, & in ſuch caſes Socius ſocio tenetur Lege Aquiliana. off. Ad Leg. Aquil. & Rub. ibid. & l. Si ex cauſa. D. Pro Socio.And in ſuch caſes of Partnerſhip for the acquiſition of a Dominium and Property in all the goods in Partnerſhip without any actual delivery, the Law doth tacitly feign ſuch a delivery, albeit it never ſpecially intervened. pL. quia licet ff. Pro Socio.Likewiſe the Law feigns the perſon of one to repreſent the perſon of another, that ſo Nephews and Nieces may ſucceed together with their Unkles and Aunts in their Grand-fathers and Grandmothers goods and chattels, for ſo much thereof as ſhould have come to their parents reſpectively, in caſe they had been alive at the time of their ſaid Grand-parents deceaſe. qL. 1. § Si Filius. ff. de ſuis & legitimis, & l. 2, 3, 4. Cod. cod.In like manner he that is dead, may by Law be feigned to be alive to ſeveral conſtructions and operations of Law, if others his equals in age be then alive, or in caſe his being really alive at ſuch time of feigning him to be alive, doth not exceed the natural age of man. r§ Sed ſi in bello. Inſt. de Excuſat. Tutor.Many more inſtances of Legal Fictions might here be added, but theſe may ſuffice for proof, that though the Law allows of Fictions, yet never but where there is juſta cauſa with equity and poſſibility, diſowning all others as Monſtrous Fictions, that are propagated meerly of the froth of the brain; for the Law (as aforeſaid) ever reſembles and imitates Nature; And therefore if any man will enter the liſts with Lucian, or ſtrain his imagination to forge rarities beyond his Dialogues, and feign a battel of Elephants to be fought on a Cobweb in the Air, or freſh water-ſpring to riſe out of the Whales belly, or a Mine of Gold fifty fathome under ground in the middle Region of the Air, or the like, he may expect no protection from the Law for ſuch irregular Notions.
A Legal Fiction under the foreſaid qualifications, is threefold; either Inductiva, or Privitiva, or Tranſlativa & Extenſiva. A Fiction Inductive, is, when the Law feigns that to be which indeed is not; A Fiction Privitive, is, when the Law feigns that not to be which indeed is; And a Fiction Tranſlative or Extenſive, is, when the Law doth feign a thing to be done in one manner, which in truth is done in another. The firſt of theſe, or the Inductive Fiction▪ is an Aſſumption of Law in a thing certain and poſſible, upon a non-exiſtency for an exiſtency; The ſecond, or the Privitive Fiction, is alike definable, only the words inverted; And the third, or Tranſlative Fiction, is only an Aſſumption of Law more upon the Modus then the thing it ſelf; So called, becauſe it is mainly converſant in one of theſe four varieties; As either when the Law by a Fiction transfers or tranſlates ſome Act or Thing, either from one place to another, or from one perſon to another, or from one thing to another, or from one time to another; But which ſoever of theſ… the Fiction be, it muſt ſtill keep within the due limits and bounds of equity and poſſibility. Whatever the Fiction be, it may be reduced to one of theſe three heads, either Inductiva, Privitiva, or Tranſlativa; and neither of theſe but muſt quadrare with Bartols ſaid definition, or the Law rejects it as ſpurious and illegitimate.
For the yet clearer apprehenſion of the premiſes, it may be no digreſſion to inſert a word by way of caution to the imperfect Notioniſt, that he would not hence infer as if the Law did feign impoſſibilities, becauſe it ſuppoſes the living to be dead, and the dead to be alive; the abſent to be preſent, and the preſent to be abſent; and the like. For although they would indeed be impoſſibilities, if only conſidered ſimply in an identity of fact and time, of perſon and of place, without their right and due diverſifications; yet they are not impoſſibilities, being rightly according to the Law of Fictions diſtinguiſhed in reſpect of fact, time, perſon and place, together with ſuch tranſactions, tranſlocations, tranſtemporations, and tranſperſonalities, as according to Rules of Law are requiſite to every Fiction that enures to any effect in Law; For that which may ſeem Deceptio intellectus, and by miſ-apprehenſion poſſibly be taken for an impoſſibility in the precedent inſtances of a Legal Fiction, is in truth nothing but that defect or abſence of verity in the perſon, act, thing, manner, time or place feigned; Indeed, to look for Truth in a Fiction, is to expect an impoſſibility with as much vanity as ſome men do for Revelations: if it were poſſible that there could be the leaſt verity in the thing ſuppoſed, it would immediately ceaſe to be a Fiction. Legal Fictions may be aptly ſtyled, The juſt Policies of Law, to attain unto the end and effect of Law by remedies extraordinary, only where the ordinary means do fail. This therefore is no warrant to fly to Fictions though Legal, much leſs to others, as remedies extraordinary, when the ordinary means by Law provided may be uſed.
This point of Fictions having now been put to the touchſtone of the Law, and impartially weighed in the ballance thereof, it plainly appears, what kind of Fictions they are, that are legally qualified to take place in the Judicial proceedings of the Civil Law in Forraign Nations, as alſo in this Kingdome; which (before the late unnaturall and inteſtine Wars) was, and now ſeems to be for Religion, Juſtice and Commerce, Regina Inſularum totius Orbis.