The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER XII.

FICTION.

By fiction, in the sense in which it is used by lawyers, understand a false assertion of the privileged kind, and which, though acknowledged to be false, is at the same time argued from, and acted upon, as if true.

Belonging to it are various characteristic features.

It has never been employed but to a bad purpose. It has never been employed to any purpose but the affording a justification for something which otherwise would be unjustifiable. No man ever thought of employing false assertions where the purpose might equally have been fulfilled by true ones. By false assertions, a risk at least of disrepute is incurred: by true ones, no such risk.

It is capable of being employed to every bad purpose whatsoever.

It has never been employed but with a bad effect.

It affords presumptive and conclusive evidence of the mischievousness of the act of power in support of which it is employed.

It affords presumptive and conclusive evidence of the inaptitude of the form of government in support of which it is employed, or under which it is suffered to be employed.

It affords presumptive and conclusive evidence of moral turpitude in those by whom it was invented and first employed.

It affords presumptive and conclusive evidence of moral turpitude on the part of all those functionaries, and their supporters, by whom it continues to be employed.

It affords presumptive and conclusive evidence of intellectual weakness, stupidity, and servility, in every nation by which the use of it is quietly endured.

In regard to fiction, two sources of service require to be noted: One is the extent of the sinister service rendered; the other is the extent of the class of persons to whom the service is rendered.

In respect of the extent of the service rendered, the use of fiction may be distinguished into general and particular.

By particular use, understand the particular benefit which, on the occasion of such fiction, results to the class or classes of persons served by it: by the general use, the benefit which accrues to all of them in the aggregate, from the general principle of demoralisation which it contributes to establish: viz. that in regard to human actions in general, right and wrong, proper ground for approbation and disapprobation depends, not on the influence of the action on the greatest happiness of the greatest number, but on the practice, consequently on the will, and thence on the interest, real or supposed, of the aggregate of those same particular classes. Of the establishment of this principle of demoralisation, the object and the effect is—the causing men to behold, not merely with indifference, but even with approbation, in the first place, the perpetration of injustice, and in a word, of political evil in all its shapes; and in the next place, the employing as an instrument in the commission of such mischief, wilful, deliberate, and self-conscious falsehood; in a word, mendacity: the practising on this occasion and for this purpose, that vice which, when, by individuals not armed with power, it is employed to purposes much less extensively mischievous, is by these same men habitually and to a vast extent visited with the severest punishment.

Now as to the extent of the class of persons to whom the sinister service is rendered. In this respect, likewise, the service will require to be distinguished into particular and general. Of the wilful and mischievous falsehoods in question, some will be found in a more particular manner serviceable to the functionaries having the direction of that particular department of government, in the business of which they are employed to the giving augmentation to the arbitrary power of those same rulers: thus enabling them, with the greater efficiency, and to the greater extent, to make sacrifice of the universal interest to their several particular and sinister interests.

In every case, and throughout the whole field of government, these instruments of misrule have had, as they could not but have had, for their fabricators, the fraternity of lawyers: more particularly and obviously such of them as have been invested with official power, principally in the situation and under the name of judges: though, in the unofficial and less formidable characters of writers, authors of reports and treatises, men of the same class have not been wanting in contributing their share.

The situations on which, by means of this instrument of misrule, arbitrary power is to be heaped by those same indefatigable hands, are that of the monarch and that of the judge. On that of the monarch, the chief portion; his being the only permanent one of the two situations, and that to which the subject many were at all times engaged by habit to manifest that obsequiousness on the one part, of which power on the other part is composed.