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5 July 1804
Procedure and Evidence
B. Evils causes
Ch.1 Generalia
2. natural and factitious
Division of the factitious causes of injustice into negative and positive or say affirmative: negative consisting in the omission of such obviously necessary arrangements for the furtherance of justice or the prevention of injustice (as seem pointed out by the plainest common sense) as seem incapable of escaping the mind when are suggested by the ------ of things /circumstances/ /incidents/ by which the demand for them is produced: positive, consisting in the opposing of some positive bar, for instance by the actual prohibition, to the /some/ /an/ /making of some/ arrangement which, were it not for such a prohibition, would be taken, by the spontaneous act of the party or individual in question, with or without any thing /act/ done by the legislator to promote it.
Omission to employ the requisite means (compulsory and /or/ in--latory or both) for proving[?] the attendance of a witness liable to be unwilling, may be given for an example of a negative factitious cause of injustice. Refusal to permitt a person of that description to serve at the seat of judicature in the character of a witness may, in the supposition that the grounds of such refusal is not sufficient, be given for an example of a positive factitious cause of injustice.
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Title: [5 July 1804 Procedure & Evidence]Description: 5 July 1804 Procedure & Evidence Evils 2d order 8 or 2. Expence 8th on the list of independent evils - the individual evil of expence. The immediate elements or causes - I. Natural causes 1 to 5. The several attendances brought to view under the head of vexation, in so far as the demand for them arise out of the nature of the case /each individual case/. 6. Journies viz: to and from the places at which the several sorts of services, conducive to the above objects, require to be rendered or applied for. 7. Remuneration for professional advice and other assistance, so far as the demand for such assistance is created by the nature of the case, compared with the faculties, intellectual and corporeal, condition in life, and pecuniary circumstances of the party. 8. Natural causes /length/ of delay. See delay. + 9. Natural degree of intricacy -----. See intricacy. || II. Factitious causes negative. 1. Omission on the part of the legislator to apply to this species of correspondence the convenient means of /arrangements for/ correspondence in use for other purposes: for example, correspondence by the letter-post. 2. Factitious length of delay as caused by negative factitious causes see Delay 3. Factitious --- of intricacy, as caused by negative factitious causes of intricacy - see intricacy III. Factitious causes positive 4. Factitious causes of delay, as caused by positive factitious causes of delay: see Delay 5 Factitious degree of intricacy as caused by factitious causes of complexity or intricacy of procedure: see intricacy. (a) 6. Taxes upon justice. taxes upon the several ---- that come to be taken, or written documents /instruments/ that come to be exhibited or recorded in the course of a cause. + || shew[?] law[?] (a) In the track of English procedure such is the intricacy in which it is involved not only must every man have a guide (the Attorney), but that guide must have other guides (the Advocates) and they a leader. Yet in /amidst/ the darkness visible through which they have to grope, and under that blindness which is the consequence of it, how often are they not seen falling, all together, into one ditch!
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Title: [5 July 1804 Procedure & Evidence]Description: 5 July 1804 Procedure & Evidence Evils 2d order 7 or 1. vexation the immediate causes III II /III/ Factitious causes 1. negative 1. Factitious /negative/ causes of delay: which see 1. Factitious /negative/ causes of the intricacy or any complication of the system of procedure. III. i.e. Factitious causes 2. positive. i. Positive causes of delay which see 4 Labour of mind and loss of time (as above), as in the natural course of things would have been necessary to be taken but have been rendered so by appointment of positive law. The greater the number and variety of these steps, the greater the degree of complication /complexity/ or intricacy in the system of procedure. For the causes of complexity and thence of intricacy see further on - 5. Anxiety of mind, by reflection on the uncertainty of the event of the cause, and in the ---- of the arrangements to be taken for the rendering it favourable - even in so far as that uncertainty, and the complexity of these arrangements, have received encrease from the operation of factitious causes. N.B. In proportion as professional advice and assistance is called in, the vexation in respect of labour of mind will frequently be diminished, but the evil of expence (of which further on) will constantly be encreased.
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Title: [28 Aug 1804 Evidence Note]Description: 28 Aug 1804 Evidence Note Circumstantial Ch.2. Explanations Note (a) There is even a class of offences, and that a most extensive /comprehensive/ one, in the case of which, - no act of a physical nature - no motion - enters into the composition of the offence. These are /I speak of/ negative offences: class so extensive /comprehensive/ as to spread over the whole field of penal law. No /no/ positive species of delinquency - no positive species pernicious agency, that has not its correspondent negative offence. See [...?] where this is shown at large. In many instances, where /Offences are not wanting, in which though/ the mischievous result is in ordinary cases the effect of some physical act of a positive nature (for example witness homicide) yet the same effect is in some circumstances liable to ensue from a mere negative course of action. For example in the case of an infant on the part of the mother or the nurse, the omission to administer food - or the omission of any of the services necessary to the continuance of life. So in the case of a prisoner, like omissions on the part of the Jailor.
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