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.