082-062]

11 March 1808

Letter V

§.6. Reasons

Ends of Justice

After these explanations, the conduct of the legislator being all along understood to be the object of reference, the causes of injustice may, at whatsoever degree of nearness or remoteness they may be found to stand with relation to that injustice which in their common and ultimate effect, be distinguished in a practical point of view, and is conceived with great practical advantage, into natural and factitious: factitious, considered as made by, that is, in being the work of, the result of the line of conduct pursued by, the legislator: natural, all causes of injustice, which to the purpose in question as having their root in any other grounds: in misconduct on the part of the Judge in misconduct on the part of individuals, in the character of litigants or any other taken without distinction, or as being purely the work of the uncontroulable powers of nature.

Again, in regard to such causes as are considered as factitious, another distinction which, so far as it can be clearly traced out; will be seen to be highly useful in a practical point of view, is that which stands expressed by the adjuncts positive and negative: positive, when an assignable article or rule of law established whether by the proper hands of the legislator in the way of statute law; or under his eye by the Judge in the way of jurisprudential law, may be fixed upon as the cause of the injustice: negative, where it is only to the want of some article of law not as yet established, but of which it is conceived that it might, and without preponderant inconvenience, be established by the legislator, established, that the habit or course supposed to exist in the shape in question may, it is supposed, be traced.

+  Go on with the case in which the distinction is not perceptible.