Stanford Law Review

Law and Science in Seventeenth-Century England

Author(s): Barbara J. Shapiro
Source: Stanford Law Review, Vol. 21, No. 4 (Apr., 1969), pp. 727-766
Published by: Stanford Law Review
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Law and Sciencein Seventeenth-Century

England
BarbaraJ. Shapiro*
It is a remarkabletrickof the Englishlanguage,and of the historical
developmentof legal thought,that the phrase"lawand science"standsin
suchsharpcontradistinction
to the phrase"legalscience."Nineteenth-and
early20th-century
lawyers,seekingto carveout an intellectuallylegitimate
and autonomousdisciplineof law,usedthe termlegalsciencenot to suggest
thatthelawwaspartof modernscientificculture,butpreciselythe opposite.
They meantthatlaw was a sciencejustas chemistrywas a science,andwas
thusentitledto independentexistence.This reasoningrestedon an obsolete
definitionof a scienceas any systematically
organizedbody of knowledge'
and on a failureto acknowledgethat what made chemistryor physicsa
sciencewas not its autonomouslyorganizedknowledgebut the fact thatit
sharedwith othersciencesa particularmethodof investigationand a particularmode of statingresults.
The attemptto isolatelawfromsciencebycapturingits namehaslargely
ceased,but the more generalconcernthat led to this verbalmanipulation
continues.We stillhearmuchof the"taughttradition"andof "legalreasoning"assomehowdistinctfromotherreasoning,almostalwayswith a strong
undercurrent
of suggestionthatthe law's"commonsense"is andshouldbe
setapartfromscientificreasoning.On themostsophisticated
planethisview
is to be found in the recent writing of H.L.A. Hart.2At its lowest it is seen

in the hostilityand alarmoccasionallyexpressedby the professionat the

incursionof mathematicaland social-science
techniquesinto law. Indeed,
thistensionbetweenscienceandlaw eithersubsumes,or is at leasta central
threadof, the grandstrugglebetweenanalyticaljurisprudence
on the one
handand the sociologicaljuristsandjudicialrealistson the other.That debatevery frequentlycomesdown to the questionof whetherlaw is a separableintellectualenterpriseor a facetof generalsocialthoughtin a society
permeatedby science.
It is surelynot within my competenceas an historianto dealfrontally
with thesegrandissues,but historicaldatado have a certainbearingupon
* B.A. I956, U.C.L.A.; M.A.
1958, Ph.D. 1966, HarvardUniversity.AssistantProfessorof History,
Pitzer College, The ClaremontColleges.
I wish to thank the Researchand Development Committee of Pitzer College for facilitating the
researchon this study. ProfessorMartin Shapiro of the School of Social Sciences, University of California, Irvine, has commentedextensivelyon the draft of this Article.
I. See I R. POUND,
JURISPRUDENCE
7-10 (I959).
2. See H. HART&A. HONORE,
INTHELAW(I959).
CAUSATION

727

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STANFORD LAW REVIEW

[Vol. 21: Page 727

them,and they in turnupon the studyof history.Legal historyis a rather

peculiarfield. It is dominatedby the great Igth- and early 20th-century
schoolof historicaljurists.3Thesemen were lawyers,essentiallyconcerned
with contributingto an autonomousdisciplineof lawby theuseof historical
methods.In spiteof theirfrequentgeneraldisclaimersand theirveryreal
interestin the historicalinterrelations
of law andsociety,the impactof their
workhasbeento createa legal-history
in theabbreviated
ghetto.Particularly
in
which
it
way
legal historyreachesthe law student, is likely to take the
form of tracingthe evolutionof the writsor explainingthe differencebetween commonlaw and equity.This tendencyis strengthenedby the fact
thatmuchof the greatworkof the historicaljuristswas done on medieval
law and is of so little immediaterelevancethatit becomespartof the culturaltrimmingsratherthan the heartof legal instruction.The failureof
historiansto enterthe field seriouslyin any numbershas also contributed
to the transpositionof legal historyinto the historyof law.4By and large,
andparticularly
as it entersthe generalmodeof thoughtof the legalprofession, legal historyis the chronologicalarrangementof the variousdevices,
ideas,and institutionsof the law in relationto one another,ratherthanthe
studyof how the law of a given placeand periodrelatesto the restof the
intellectual,social,and politicallife of thatperiod,and how interrelations
in oneperiodcompareto thosein another.The generalimpressionmustbe
that law, by some inevitabledynamicof its own, marchesteleologically
throughtimefromtrespassthroughcaseto negligence,andfromcontractto
to impliedwarranty.Thuslegalhistoryhastendedto support
quasi-contract
thatsideof the ongoingdebatethatemphasizesthe autonomousqualityof
legal thoughtand institutions.A legal historicalscholarshipthat seeksto
understandtheplaceof lawwithineachperiodof historyaswell asto follow
its triumphantmarchthroughtheeonsmightmakeit possibleto assesswith
greaterprecisionthe extentto which legal thoughtis or ought to be independentof othermodesof inquiryanddecisionmaking.5
The studyof scienceand law in 17th-century
Englandthatfollowswill
I hope illustratethis point.Seventeenth-century
Englandunderwentwhat
has beencalleda scientificrevolution.This revolutionwas not confinedto
a narrowcircleof professionalscientists.The scientificideasassociated
with
the namesCopernicus,Galileo,Newton, and Boyle becamethe common
property,and changedthe basicmodes of thought,of the entireliterate
communityof Englandand certainlyof the communityof gentlemento
3. See W. FRIEDMANN,LEGALTHEORY135-49 (3d ed. 1953); P. VINOGRADOFF,
OUTLINEOF HIS-

TORICALJURISPRUDENCE (1920-1922).

4. For an historian's attempt to put legal thought into historical context see D. BOORSTIN,THE

MYSTERIOUS SCIENCE OF THE LAW: AN ESSAY ON BLACKSTONE'S COMMENTARIES

(I94I).

5. That such a scholarshipis emerging can be seen in the recent work of James Willard Hurst.
See particularlyhis LAWANDECONOMIC
GROWTH:
THELEGAL
HISTORY
OFTHELUMBER
INDUSTRY
IN
WISCONSIN
(1964).

April I969]

LAW AND SCIENCE

729

whichthebarristers
andjudgesbelonged.The changewasnot onlyin beliefs
aboutthe natureof the physicalworld,but morefundamentallyin beliefs
aboutwhatmethodswerebestfor findingthe truth,how certainmen could
be aboutthetruthstheyfound,andhow theymightbestcommunicatethose
truthsto one another.Sciencecameto shapemen'sviewsof what was and
wasnot "commonsense,"of whatwasandwasnot well argued,andof what
was and was not assumedto be true.Thus evenif Englishlaw werebased
exclusivelyon a taughttraditionof commonsensereasoning,muchof that
traditionwould necessarilybe dictatedby the scientificmodesof thought
thatby the end of the centurywerebecomingcommonto all literateEnglishmen.
We neednot,however,contentourselveswith linkingscienceto lawyers
by way of the generalcategoryof gentlemen.Insteadit can be demonstratedthatseveralof the majorlegalscholarsandleadersof the barof that
daywereimmersedin the new science,andthatthesemen not only viewed
the two activitiesas compatiblebut frequentlydrew on the same central
coreof ideasfor boththeirlegal and scientificpursuits.
Perhapsmostimportantit is possibleto demonstratethattwo majorintellectualdevelopmentsof the I7th centuryoccurredalmostsimultaneously
in law and science.The firstwas the drivefor systematicarrangementand
presentationof existingknowledgeinto scientificallyorganizedcategories.
This concernfor systematization
is not only a characteristic
of I7th-century
Englishscience,but is also reflectedin the first comprehensiveand systematic treatiseson Englishlaw, Sir MatthewHale'sAnalysisof Law' and
HistoryandAnalysisof the CommonLaw.7Indeed,the originalinspiration
forthisArticlewasmy reactionto thewayHale'streatisesareusuallytreated
as the firstsystematicworkon Englishlaw andthenblithelylinkedto Bracton on one sideand Blackstoneon the otheras if legal treatisesweresomehow independentlyfated to move from the obscuritiesof Littletonto the
latestelegancefromWestor LittleBrown.Hale'sworkis partandparcelof
the distinctly17th-century
concernfor organizedand simplifiedpresentationin whichhe participated
asbotha lawyeranda scientist.A similarpoint
couldbe madeaboutcasebooksandcourtreports,which areusuallytreated
as purely independentdevelopments.They began to flourishonly after
Bacon,againas both a scientistand a lawyer,emphasizedthe needfor the
carefulandaccuratecollectionandcorrelationof datafromwhichgeneralizationsmightbedrawn.
The secondmajormovementof the centurysharedby law and science
was the concernwith degreesof certainty,or,in moremodernterminology,
6. THE ANALYSIS OF THE LAW: BEING A SCHEME OR ABSTRACT OF THE SEVERAL TITLES AND PORTIONS OF THE LAW OF ENGLAND, DIGESTED INTO METHOD (I713).
See also M. HALE, THE HISTORY OF
THE PLEAS OF THE CROWN (1736).
7. THE HISTORY AND ANALYSIS OF THE COMMON LAW OF ENGLAND (I713).

STANFORD LAW REVIEW

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[Vol. 21: Page 727

Therewas a new emphasison the gradingof evidenceon scales

probability.
of reliabilityandprobabletruth.In science,statementsaboutthe realworld
becameprobabilistic
hypotheses.In law,an examinationof thecredibilityof
witnessesand a concernfor truthbeyonda reasonabledoubtreplacedthe
searchfor absolutetruth.Hereagaintherearestrikingoverlapsbetweenthe
vocabularies
and methodsfoundin law andscienceas well as an overlapin
the actualpersonsemployingthesenotions.
Accordingly,the firstpartof this Articlesketchesthe scientificrevolution and its effectson generalintellectuallife, the secondconcernsthe involvementof lawyersin scientificactivities,the third describesthe movementtowardsystematization
in scienceandlaw andthefourththe development of degreesof certainty.
I.

SCIENCEIN SEVENTEENTH-CENTURY
ENGLAND

A. TheNatureof the Revolution

In the late i6th and I7thcenturies,Europeexperienceda scientificrevolution.Althoughthe ancientandmedievalprecursorsof the developments
of this periodcan be traced,beginningaboutI550 therewas a veryrapid
acceleration
in mathematical
of thescientificmethlearning,theelaboration
od, and the accumulationof empiricalresultsderivedfrom mathematical
and scientificinquiry.8Nor were thesedevelopmentsthe productof a few
isolatedscientists,for duringthis periodan increasingproportionof the
intellectualcommunityenlisteditself in scientificpursuits,eitheras active
or amateursof the new learning.9Ideasnurturedin the scieninvestigators
tificmilieubecamethe commoncoin of intellectualdiscourse,eventhe discourseof thosewho at firstglancemight seemfar removedfrom mathematicsand experimentation.
While in biologyandbotanythe revolutiontook the form of new findings andclassification,
somethinga gooddealmorestartlingoccurredin the
realmof astronomyand mechanics.For in theseareasthe medievalconceptionswere rejectedand new ways of thinking establishedthat dominatedinquiryuntil the 20th century.Not only were fundamentallynew
explanationsof theworkingsof the naturalworldoffered,buta whole new
canonof scientificinvestigationas well. This new scientificmethodwas
adoptedor at leastaspiredto in fieldsof knowledgefar beyondthe boundariesof astronomyand mechanics.
The revolution is most clearly seen in astronomy,where a centuries-old

conceptionof the cosmoswas overthrown.The traditionalPtolemaiccos-

8. See M. BOAS,THE SCIENTIFICRENAISSANCE

THE ORIGINSOF MODERN
(1962); H. BUTTERFIELD,
SCIENCE(1957); A. HALL, FROMGALILEOTO NEWTON (1963); A. HALL, THE SCIENTIFICREVOLUTIONI500--800 (I954).
9. See Houghton, The English Virtuouso in the Seventeenth Century, 3 J. HIST. IDEAS51 (1942).

April I969]

LA WAND SCIENCE

73I

mos, which placed man firmly at the centerof the universe,conformed well

with theocentricand Christiannotionsandneatlyfittedthe medievalurge

towardhierarchy.For all the emotionaland theologicalsatisfactions
it profor
duced,however,the systemcreatedincredibledifficulties astronomers
who soughtto describeit mathematically.
In the mid-i6thcentury,Copernicusofferedhis hypothesisof the centralpositionof the sun as a solution
to many of these mathematicalcomplexities,but not until astronomical
observationsin the I7th centuryseemedto verifythe Copernicanhypothesiswas its impactwidelyfelt. It then becameacceptedas a descriptionof
convenience.Oncethe earthwas
realityratherthansimplya mathematical
removed from its central position, it was no longer as easy to view the cos-

mos in termsof God'spurposefor man.Thus the revolutionin astronomy

was morethansimplya rejectionof the authorityof the Ptolemaicsystem;
it resultedin a majoradjustmentin man'sview of his placeand purposein
the universe.0
in the areaof mechanicsdid not affectthe layAlthoughadvancements
man as dramaticallyas the verificationof the Copernicanhypothesis,Galileo'smathematical
formulationsof the movementof terrestrial
bodieswere
alsoimportant.IsaacNewton,in the latterportionof the I7thcentury,combined the new celestialphysicsand the new terrestrialphysicsof Galileo
into a single system that again provided a coherent view of the cosmos.

This view,however,couldbe understoodonly by mathematicalreasoning

and scientificobservations.The Newtonian systembecamethe unquestionedbasisof Europeanassumptionsaboutthe natureandoperationof the
cosmos.
The importantshift in intellectualoutlookand the enormousaccomplishmentsof the individualsciences"thatmarkedthe scientificrevolution
weremadepossibleat leastpartiallyby changesin attitudes.For scienceto

develop and to gain some kind of popular acceptanceit was necessary to

eliminatetheimputationof superiorandfinalknowledgeto ancientauthorities and to substitutethe notion that the acceptanceor rejectionof statements concerningnatural phenomenamust depend on contemporary
reasonandobservation.
A notionof thepossibilityof an increaseor progress
in knowledgewas thus requisiteto, as well as an outgrowthof, scientific
inquiry.

Concurrentwith the attackon traditionalauthoritywas an attackon

traditionalmethodsof verifyingstatementsor obtainingtruth.The virtuosi
butalsothedeductive
rejectednot onlytheearlieremphasison metaphysics,
o1. See F. JOHNSON, ASTRONOMICAL THOUGHT IN RENAISSANCE ENGLAND (1937);
A. KOYRE, FROM
THE CLOSED WORLD TO THE INFINITE UNIVERSE (1957);
T. KUHN, THE COPERNICAN REVOLUTION
D.
THE
GRADUAL
ACCEPTANCE OF THE COPERNICAN THEORY OF THE UNIVERSE
(1956);
STIMSON,

(1917).
II. There were major advances in physiology, medicine, and chemistry as well as in
astronomy
and physics.

732

STANFORD LAW REVIEW

[Vol.

21:

Page 727

methodby which the scholasticshad approachedall subjectmatters.Althoughthevirtuosireachedno consensuson the properapproachto natural
phenomena,the concernwith methodwas an overridingone in the I7th
century.The questionwas constantlydiscussedandrefineduntil at the end
of the centurysomethinglike the modernscientificmethodhad emerged.12
One of the initiallymostpopularas well as powerfulattackson the traditionalscholasticmethodwas thatof FrancisBacon.Rejectingthe deductive approach,Baconassertedthat once the properscientificmethodwas
adoptedknowledgecouldbeharnessedfor theuseof society.Thisvisionary
side of Baconhad perhapsgreaterimpactthandid the radicallyinductive
approachthathe advocated.Baconarguedthatby collectingnumerousinstancesof the particular,generalizationswould emerge.This radicalempiricismhad its limitationsand was not the method finally adoptedby
science;yetit wasoneof the streamsof thoughtthatcontributedto the new
method.
The othersideof the new I7th-centuryapproachto truthwas provided
Rene
of thecentury,whose
by
Descartes,oneof thegreatestmathematicians
mathematizationof scientificinquirymade an enormousimpacton the
developmentof specificsciencesas well as on the developmentof scientific
method.It is too simpleto saythatthe "scientificmethod"adoptedby the
virtuosiwasa unionof Bacon'sempiricismandDescartes'essentiallylogical
and deductiveapproachto the problemof knowledge,but clearlyboththe
observationand collectionaspectsof the formerand the hypothesizingand
theorizingaspectsof the latterwereessentialto the new methodand were
often practicedin combinationby I7th-centuryinvestigators.
Bythe end of the I7thcenturythen,traditionalviewsof the cosmosand
its functioninghadbeenupsetandnew methodsof determiningtruthand
investigatingthe naturalworldhad replacedthosethathad been accepted
for centuries.Even though there was no unanimousagreementon the
newermethodsandepistemologies,
it was clearthatnew typesof standards
wereaccepted.This scientificrevolutionof the I7thcenturydid morethan
altermen'sview of naturalphenomena:It resultedin a new set of philosophicalpropositionsaboutthe natureof man and his abilityto know the
world.
B. The Diffusionof ScientificKnowledge
Nor werethesenew viewsthe exclusivepossessionof a smallor isolated
scientificcommunity.Sixteenth-and 17th-century
scientistsdid not think
of themselvesas a closedprofessionalcommunity.Mostscientificpublicationswere directedto the generalreadingpublic.Writerslike Baconand
12. See R. BLAKE, C. DUCASSE & E. MADDEN, THEORIES OF SCIENTIFIC METHOD: THE
RENAISSANCE
THROUGH THE NINETEENTH CENTURY (1960).

April I969]

LAW AND SCIENCE

733

Galileodisplayedan almostmissionaryzeal to spreadthe faith of the new

scienceandto conveytheirvisionof thebrighterfutureto begainedthrough
man's new understanding.Over io percentof the works publishedin
Englandbetween1475and I640 were on scientificsubjects,3and the majorityof thesewerewrittenin the vernacularratherthanLatin.Somewere
originalcontributionsto the developmentof scientificknowledgewhile
otherswere designedto convincethe ordinaryman of the validityand
utilityof scientificknowledgeandthe legitimacyof scientificendeavor.
This spateof generalpublicationwas reinforcedby the developmentof
severalwidespreadcorrespondence
networksamong scientists,a number
of which resultedin the creationof scientificjournals.The desireto reach
bothbroaderdomesticandforeignaudiencescreateda linguisticdilemma,
for the vernacularwasobviouslybettersuitedto one andLatinto the other.
As a resulttherewere severaleffortsto createa universallanguagewith
which to communicatescientificinformation.14
Closelyassociatedwith the desirefor a spreadof scientificknowledge
was the movementtowardsystematization
andclassification
of knowledge.
Baconand JohnWilkins,proponentsof a universallanguage,were advocatesof systematicallycollectingscientificinformation,and Wilkins was
largelyresponsiblefor stimulatingthe creationof the greatbiologicaland
botanicalclassifications
of John Ray and FrancisWilloughby.15
In every
learneddiscipline,and we shall find law to be no exception,therewas a
strongmovementtowardarrangingboth conceptsand datainto somerationalorderingthatcouldbe easilycommunicatedand fittedinto the materialsof otherfieldsso that a universalknowledgemight emerge.
In the scientific,as in the literaryworld,men met togetherfirstinformally and then in societiesand academiesto discusstheirfindingsand experiments.The mostimportantof thesewas the RoyalSocietyof London
which receivedits firstcharterin 1662 and numberedamongits members
not only men making importantscientificcontributions,but gentlemen,
andpoliticiansfor whom scientificdiscussionwas
clergymen,businessmen,
largelya diversion.In additionto reportingon researchand undertaking
new experiments,the Societypropagatedthe "new philosophy"to the
widerworld.'6
13. Stearns,The ScientificSpirit in England in EarlyModernTimes, 34 Isis 297 (I943).
14. See Andrade, The Real Character of Bishop John Wilkins, I ANNALSSCI. 4

Cohen,

(I936);
On the Project of Universal Character,63 MIND49 (I954); DeMott, The Sources and
Development
of John Wilkins' Philosophical Language, 7 J. ENG. & GERMANICPHILOLOGY
I, 8-9 (I958); DeMott,
Comenius and the Real Character in England, 70 PROCEEDINGS
MODERNLANGUAGE
ASS'N I068 (I955);

Emery, lohn Wilkins' UniversalLanguage, 38 Isis I74 (1948); Funke, On the Sourcesof John Wilkins'

Philosophical Language, 40 ENG. STUDIES208 (1959).

15. See C. RAVEN,JOHNRAY, DEVOUTNATURALIST(I942);
48 Isis 3 (I957).

DeMott, Science Versus Mnemonics,

i6. See T. BIRCH,THEHISTORY

OFTHEROYAL
SOCIETY
THE ROYAL
SO(1756); H. HARTLEY,
CIETY:ITSORIGINS
ANDFOUNDERS
SOCIETY
(I960); H. LYONS,THE ROYAL
1660--940 (I944); M.
THE

PURVER,

ROYAL SOCIETY: CONCEPT AND CREATION (I967);

M. PURVER & E. BOWEN, THE BEGIN-

734

STANFORD LAW REVIEW

[Vol. 2I: Page 727

The compositionof the scientificcommunityin Englandwas extremely

diverse-socially,economically,and religiously.Sciencein the i6th and
I7thcenturieswas oftenan avocationratherthana profession.Widespread
but frequentlyperipheralscientificinteresthad been madepossibleby an
educationalsystemin which morepeoplewere receivinginstructionthan
at anyearlierperiodor thanwouldagainuntilwell into the 20thcentury.7
New chairsof mathematicsand astronomywere establishedat Oxford.
Mostof thefamedscientistsof the centurywereeducatedin the universities
and severalheldadministrative
or academicpostsat sometimeduringtheir
careers.18
Sciencewas also taughtin nonuniversitysettings,the most importantbeing GreshamCollege in London.19Thus scientificknowledge
was availableto mostgentlemenand indeedto manywho couldnot quite
claimthattitle.The RoyalSocietyboastedan "equalbalanceof all professions . . . ,20 and by the Restoration period, science was widely recog-

nized to be partof that generalculturethat a gentlemanwas expectedto

possess.
Yet scienceinvolvedmorethana pleasanthobby,for its modeof operation, its methodologicalconcerns,and its generalapproachto empirical
problemsaffectedall modesof thought.Eventhemostcursoryexamination
of I7th-century
religion,literature,philosophy,andsocialthoughtindicates
how muchthe intellectualclasseshad absorbedthe scientificideology.Certainlyphilosophywas affectedby the scientificrevolution;in one sensethe
scientificrevolutionmeantthe victoryof the "newphilosophy."The names
Bacon,Descartes,andLockewereas importantfor philosophyas theywere
for science.In fact,the distinctionbetweenphilosophyand sciencewas not
clear-rationalistand empiricisttheorieswere not only the basisof I7thcenturyepistemologybut of the scientificmethodas well.21
Social and politicalthought,too, came under the sway of the "new
philosophy."Hobbes'discussionof politicsin the Leviathanwould have
beenvirtuallyinconceivable
priorto the I7thcentury.His aimwasto create
a scientificallyaccuratedescriptionand analysisof socialand politicalbehavior.Lockeattemptedto definethe realityof politicallife and organization by rejectingdivineand authoritative
principles.Naturallaw, though
hardlya novel conceptionin Europeanthought,moved to the centerof
from a religiousto a
politicalanalysisandwas then graduallytransformed
NING OF THE ROYAL SOCIETY (1960);
T. SPRAT, THE HISTORY OF THE ROYAL SOCIETY OF LONDON
D. STIMSON, SCIENTISTS AND AMATEURS (1948);
C. WELD, A HISTORY OF THE ROYAL SOCIETY
(1667);

(1848).
I7. See Stone, The EducationalRevolutionin England I540-1640, 28 PAST&PRESENT
41 (I964).
I8. See M. CURTIS,
ANDCAMBRIDGE
OXFORD
IN TRANSITION
1558-I642 (I959); C. HILL,INTELLECTUAL
ORIGINS
OFTHEENGLISH
REVOLUTION
301-14 (I965); Allen, ScientificStudies in the English
Universitiesof the SeventeenthCentury,Io J. HIST.IDEAS
219 (1948).
19. See Johnson, Gresham College: Precursorof the Royal Society, I J. HIST.IDEAS
413 (I940);
Kearney,Puritanism,Capitalismand the ScientificRevolution, 28 PAST& PRESENT
8i-86 (I964).
20. T. SPRAT,
supra note I6, at 66.
21. See 5 THENEWCAMBRIDGE
MODERN
HISTORY
47-95 (I96I).

April I969]

LA WAND SCIENCE

735

moresecularand scientificconceptualframeworkthatsoughtto dealwith

the universalregularitiesof men in societiesas othersdealtwith the regularitiesof physicalnature.
A numberof recentstudieshavepersuasivelydemonstrated
the impact
of scienceupon 17th-century
literature.22
The new scienceseemsto have
had a markedeffectin simplifyingEnglishprosestyle and to have contributedto the ultimatevictoryof proseoverpoetryas the generalvehicle
for the presentationof seriousdiscourse.New astronomicaland geographical discoveriesprovidedsubjectmatter for literaryspeculationin such
worksas More'sUtopiaand Shakespeare's
The Tempest,3and such litermen
as
Bacon,Raleigh,Sprat,Pepys,Cowley,Glanvill,Evelyn,and
ary
were
associatedwith scientificcircles.JohnWilkins,who is best
Dryden
known amongliteraryhistoriansfor his contributionto the simplification
of prosestyle,usedthat styleto popularizeCopernicanastronomy.24
scienceis that,while
Perhapsthe most strikingfeatureof 17th-century
a
fundamental
alteration
of
our
world
view and permerepresenting very
ating everyaspectof intellectuallife, it was so rapidlyand generallyacceptedin a nationthatwas subjectto gravereligiousandpoliticalfactionalism. Neither Anglicansnor Puritans-the two major religious-political
A view of
groupings-expressedreal hostilityto the "newphilosophy."25
scienceas the studyof one of God'stwo greatbooks-nature (the other
beingscripture)-wasextremelyimportantin makingscientificpursuitsacceptable to society at large.26The virtuosi believed that God worked in
22. See H. BAKER,THE WARS OF TRUTH (1952);

C. DUNCAN, THE NEW SCIENCEAND ENGLISH

K. HAMILTON, THE TWO HARMONIES: POETRY AND

LITERATURE IN THE CLASSICAL PERIOD (1913);
PROSE IN THE SEVENTEENTH CENTURY (1963);
R. JONES, ANCIENTS AND MODERNS (1961);
R. JONES,
THE SEVENTEENTH CENTURY (195I);
M. NICOLSON, SCIENCE AND THE IMAGINATION (1956);
B. WILLEY, THE SEVENTEENTH CENTURY BACKGROUND (I954).
23. See M. NICOLSON, VOYAGES TO THE MOON (1948).
24. See J. WILKINS, MATHEMATICAL MAGIC (1648);
J. WILKINS, DISCOURSE CONCERNING A NEW
PLANET (1640); J. WILKINS, THE DISCOVERY OF A NEW WORLD (1638); Christensen, John Wilkins
and the Royal Society's Reform of Prose Style, 7 MODERNLANGUAGES
Q. 179-87, 279-90 (I946);

Jones,

Science and English Prose Style in the Third Quarterof the Seventeenth Century, 44 PROCEEDINGS

MODERN LANGUAGE ASS'N 977 (I930).

25. There has been a lively controversyconcerning the influence of Puritanism on the scientific

movement. See M. CURTIS,supra note I8; L. FEUER,THE SCIENTIFICINTELLECTUAL

(1963);
supra note

I8; P. KOCHER, SCIENCE AND RELIGION IN ELIZABETHAN ENGLAND (1953);

C. HILL,

R. JONES, THE

SEVENTEENTH
CENTURY(1951); Carroll, Merton's Thesis on English Science, 13 AM. J. ECON. & SOCIOLOGY 427 (1954); Hall, Merton Revisited, or Science and Society in the Seventeenth
Century, 2
HIST. SCI. I (I963); Hill, Puritanism, Capitalism and the Scientific Revolution, 29 PAST & PRESENT
88 (1964); Kearney, Puritanism and Science Problems of Definition, 31 PAST& PRESENT
104 (I965);
Kearney, supra note I9; Merton, Science, Technology, and Society, 4 OSIRIS360 (I938); Merton,
Puritanism, Pietism, and Science, 28 SOCIOLOGICAL
REV. I (I936); Rabb, Science, Religion and Society
in the Sixteenth and Seventeenth Centuries, 33 PAST & PRESENT 148
(1966); Rabb, Religion and the
Rise of Modern Science, 31 PAST& PRESENTIII (I965); Rabb, Puritanism and the Rise
of Experimental Science in England, 7 CAHIERSD'HISTOIRE
MONDIALE
46 ( 962); Rosen, Left Wing Puritanism and
Science, 1944 BULL. INST. HIST. MEDICINE375; Shapiro, Latitudinarianism and Science in Seventeenth
Century England, 40 PAST & PRESENTi6 (I968); Solt, Puritanism, Capitalism, Democracy and the
New Science, 73 AM. HIST. REV. I8 (1967); Stimson, Puritanism and the New
Philosophy in Seven-

teenth Century England,

1935 BULL. INST. HIST. MEDICINE 321.
26. See P. KOCHER, supra note 25; R. WESTFALL, SCIENCE AND RELIGION IN SEVENTEENTH CENTURY ENGLAND (1958).

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orderlywaysand thatman might to someextentdiscerntheseways.They

were thus able to incorporatethe traditionalconceptsof Providenceand
naturallaw into the scientificinvestigationof nature.As the centuryprogressed,Godwasgraduallyturnedinto littlemorethana firstcause,which
set the originalmechanismin motion.The secondarycausesthat subsequentlymovedthe world couldbe the subjectof strictlyscientificinquiry
without theologicaldisturbance.The scientificapproachto philosophical
and naturalproblemswas not only compatiblewith but also directlyaffected religiousculture.The virtuosihad developeda canonof scientific
disputationthat stressedtentative,nondogmaticstatement,the full exchangeof all relevanttheoriesand data,and the suspensionof judgment
where proofswere insufficient.They sought,with some success,to carry
this canonoverinto the religiousrealm,and the work of the scientistswas
a majorcomponentof the liberalizationof religionthat cameto be called
latitudinarianism.27

II. LAWYERSAND SCIENCE

Law,like religion,philosophy,andliterature,was touchedby the scientific revolution.We have alreadynoted the pivotalrole of Sir FrancisBacon, a centralfigurein the revolutionand also one of the leadinglawyers
andjuristsof his day.Bacon'scontributionto the scientificmovementand
his inspirational
rolein the foundingof the RoyalSocietyarewell known;
however,theconnectionbetweenhis leadershipin scienceandhis contributions to the legal professionand jurisprudential
writingis not frequently
noted.Baconwas,of course,a lawyerby trainingandprofession.He rosein
turn to the postsof SolicitorGeneral,AttorneyGeneral,and finallyLord
Chancellor.His scientificinterests,like thoseof the typicalvirtuosiof the
century,were,initiallyat least,simplyan avocation.
Bacon'scontributionsto legal thoughtwere closelyconnectedwith his
scientificviews.His approachtowardboth law and naturewas inductive,
for he arguedthat one shouldkeep close to the particularsof each. The
sourceof legalgeneralizations
shouldbe statutesandcourtcasesratherthan
deductivereasoning.28
shouldnot be of the highMoreover,generalizations
est order,suchas statementsdescribingthe natureof justice,but thoseof
the middleorder,for thesewere moreproductivein both naturalscience
and the law. This inductiveapproachto legal maxims was novel, and
Baconhimselfthoughtit a new and distinctivepath.He advocatedthe ap27. See Shapiro,supra note 25.
28. In 1623 Bacon wrote that generalizationsshould be "gatheredfrom the harmony of laws and
decided cases . . . and in fact the general dictates of reason which run through the different matters
of law and act as its ballast."Augmentis Scientarum,in 5 WORKS
OFFRANCIS
BACON
105 (J. Spedding,
R. Ellis &D. Heath eds. 1857). The inductive theme is also present in Bacon'sMaxims of the
Law, in
7 id. at 320.

April I969]

LA WAND SCIENCE

737

proachbecausehe believedit would yield practicalresultsin law as well

as science;utilitarianism
was neverfarfromhis mind.Throughsystematic
analysisBaconhopedto makelaw into a useful"rationalscience."He expressedthe commonview that law shouldbe in conformitywith nature
and reason,and to him, naturehad a scientificas well as traditionaland
moralconnotation.For Baconthen,the similaritiesbetweenlaw andnatural sciencewere not coincidental.He insistedthat the propermethodof
gainingknowledgewas the samefor all areasof inquiryand thatlaw was
simplyone branchof knowledge.29
Baconwasnot the onlyprominentlegalpersonageto becomeassociated
with the scientificmovement.Although EdwardCoke and John Selden
weremoreimmersedin andinfluencedby the new interestin history,they
too were not immuneto the scientificdevelopmentsof the day. Coke'slibrarycontaineda greatmany booksby prominentElizabethanscientists,
and Seldenwas an enthusiasticsupporterof the new astronomyand of
SamuelHartlib'sand JohnDury'seffortto instill Comenianideasof scientificand educationalreformin England.30
Therewere manyopportunitiesfor lawyersandwould-belawyersto discoverthe new science.Not only
werea veryconsiderable
proportionof the bookspublishedin the I7thcenturydevotedto scientificsubjects,but the Innsof Courtwere conveniently
locatednearthe RoyalCollegeof Physicians,the Societyof Apothecaries,
and GreshamCollege,the centerof Londonscientificactivity,where scientificlecturescouldbe heardduringthe law termsand wherethe Royal
Societyitselfmet for severalyears.A recentstudyof the Innsof Courthas
pointedout that if the numeroussons of the gentrydid not obtaina very
good legal educationin the courseof their stayat the Inns, they did use
theirampleleisuretime for otherkinds of extracurricular
educationalopportunities.A fairlysubstantialportionof the upperclasseswere exposed
to most of the fashionablepursuitsof the day. These includednot only
sermon and theaterattendance,but the study of anatomy,astronomy,
Thus
geography,history,mathematics,theology,and foreignlanguages.31
thosewho would actuallyenterthe legal profession,as well as thosewho
simply used the Inns as a fashionableclub, were familiarwith the substantialscientificactivitiesand literatureof the day. The point is not that
all thesemenwerenecessarilyengagedin scientificpursuits,but thata certain amountof familiarityand knowledgecould be expectedof a young
man who wantedto cut a fashionablefigurein society.
The legal profession'sparticipationin the scientificmovementis also
29. See Kocher,FrancisBacon on the Scienceof Jurisprudence,I8 J. HIST.IDEAS
3 (I957).
30. C. HILL,supra note I8, at Ioo, 149, I74. The followers of Amos Comeniushoped that through
pansophia-a combination of universal knowledge, universal education, and a universal language-societymight be reformedand universalpeace attained.
31. See id. at 60 n.5, 6I-62; Prest,Legal Educationof the Gentryat the Inns of Court, 1560-1640,
38 PAST&PRESENT
20, 38-39 (I968).

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shownby lawyers'and judges'involvementin the foundingof the Royal

Societyshortlyafter the Restoration.John Aubreyeven noted that "the

first beginning of the Royal Society (where they put discourse in paper
and brought to use) was in the Chamber of William Ball [a contemporary
jurist] in the Middle Temple."32Sir John Hoskyns, a well-known lawyer
and a Masterin Chancery,was one of the original members.Hoskyns was a
close friend of John Aubrey and John Evelyn, who thought him "a most
learnedvirtuosoas well as a lawyer."33In fact, he "becameso far an adept"at
"philosophyand experiments"that the Society "at last advanced"him "to
be their President."34Nor was Hoskyns the only member of the legal profession to serve as Presidentof the Royal Society. Sir Cyril Wyche, another
prominent lawyer, and one of the original members, also held the post.
Henry Powle was still another legal figure in the ranks of the original
members.35Sir RobertAtkyns, one of the most learned lawyers of his time,
joined the group in I664. He later became a Justiceof Common Pleas and
Chief Baron of the Exchequer.SeveralLord Chancellors,among them Edward, Earl of Manchester, Edward Hyde, Earl of Clarendon, Anthony
Ashley Cooper, Earl of Shaftsburyand Lord John Somers were members.
Although Clarendon was not active, Lord Shaftsbury,the patron of John
Locke, took a leading part in the Society'saffairs.Lord Somers,an eminent
lawyer and politician whose careerincluded the posts of Solicitor General,
Attorney General, and Lord Keeper as well as Lord Chancellor,was active
in literaryand scientific as well as legal and political circles and served for
a time as President of the Royal Society.36Sir Geoffrey Gilbert, another
leading figure in the legal profession during the late I7th and early i8th
centuries,like Somers,combined an outstanding legal careerwith scientific
interests. Gilbert was not only Chief Baron of the Exchequer and the author of numerous legal treatises,severalof which were published well into
the Igth century, but was almost as famous for his mathematical accomplishments as his legal studies.37
Membership became even more common for judges in the early years
of the i8th century. Sir Peter King, Chief Justice of Common Pleas and
Lord Chancellor,became a member in 1728. King was a relative of Locke's
and at various times encouraged his work.38Sir Thomas Trevor became a
32. 2 J. AUBREY, BRIEFLIVES322 (1898). Thomas Sprat, the first historianof the Society,
praised
the legal professionand noted that "many Judges and Counsellorsof all Ages" were "ornaments
of the
Sciences, as well as of the Bar, and Courtsof Justice."T. SPRAT,
supra note I6, at 66. See also id. at
144-45.
OFNATIONAL
BIOGRAPHY
33. 27 DICTIONARY
399 (L. Stephen&S. Lee eds. 189I).
34.

R. NORTH, THE LIFE OF FRANCIS NORTH, LORD GUILDFORD

284 (I742).

OFNATIONALBIOGRAPHY
35. 42 DICTIONARY
263 (L. Stephen & S. Lee eds. 1891).
36. Somers gave up the post so that Newton might succeed him. See I C. WELD, supra note 16,

at 340-48.
37. E. Foss, BIOGRAPHIA
JURIDICA
301 (I870).
38. Id. at 385-86.

April I969]

LAW AND SCIENCE

739

member in I707 while serving as Chief Justiceof Common Pleas. He had

earlier been Attorney and Solicitor General. Sir Thomas Parker, later Earl
of Macclesfield,Chief Justiceof King's Bench, and then Lord Chancellor,
became a member in I7I2. He studied mathematics with his son, who became a well-known astronomerand Presidentof the Royal Society.39Other
judicial figures who were members of the Society included Thomas Bury,
Justice of Common Pleas, Baron and Chief Baron of the Exchequer; John
ForescueAland, Justiceof Common Pleas, and King's Bench, and Baron of
the Exchequer; Sir Thomas Burnet, Judge of Common Pleas; Sir Littleton
Powis, Justiceof King's Bench and Baron of the Exchequer; William Lee,
Justiceand Chief Justiceof King's Bench; and Sir Robert Raymond, Justice
and later Chief Justiceof King's Bench. While membership did not ensure
serious participation in the scientific movement, it did suggest at least a
passing knowledge of what the Society was trying to accomplish and probably some acquaintancewith scientific publications. Some of the judicial
members of the Society undoubtedly took little more than a pro forma
interest in scientific matters. On the other hand there were a number of
major legal figures such as Sir Matthew Hale and Francis North, Lord
Guildford, whose scientific accomplishments were considerable but who
did not become members.
Lord Guildford, onetime Solicitor and Attorney General, provides an
excellent example of the lawyer and judge as virtuoso. According to John
Evelyn, with whom he used to meet frequently to discussscientifictopics of
mutual interest, he was "a most knowing and ingenious person, and very
skillful in Music, painting, the new philosophy and Political studies."40His
interest in science went back as far as his university days and continued
throughout his life.
[H]is profession of the law did not prevent his entering into other kinds of
learning, and particularly natural knowledge. His lordship was an early virtuoso;
for after his first loose from the university, where the new philosophy was then
but just entering, by his perpetual inquisitiveness, and such books as he could
procure, he became no ordinary connoisseur in the sciences, so far as the invention
and industry, of then latter criticks, had advanced them. And the same course he
persued, more or less, all the rest of his life; whereby all discoveries at home, and
from abroad, came to his notice, and he would have loth to have let any escape
him.41

He even became involved in a scientific dispute with his judicial colleague,

Sir Matthew Hale, over Hale's views on the gravitation of fluids. Dissatisfaction with Hale's ideas led him to investigate the field of hydrostatics
more thoroughly. The results of North's study were published in the SoOFNATIONAL
BIOGRAPHY
39. 43 DICTIONARY
235, 282 (L. Stephen&S. Lee eds. I89I).
40. J. EVELYN,
DIARY,JAN.23, I682/3 (I955).
supra note 34, at 13, 284.
41. R. NORTH,

STANFORD LAW REVIEW

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[Vol. 2i: Page 727

and gainedthe approvalof RobertBoyle

ciety'sPhilosophicalTransactions
and JohnRaywho laterpursuedthe problem.42
Northwas also"muchaffectedby the discoveries,
whichfell in the consequencesof the torricellianexperiment;wherebya new world of air,
As a resulthe became
compressingeverythingit touches,is revealed."43
interestedin the possibilitiesof usingchangesin the volumeof mercuryto
predictchangesin the weather.North quickly saw the commercialpossibilitiesof the mercurybarometerandbecameinvolvedin its manufacture
andsale."
North cultivatedthe friendshipof scientists,particularlythe astronomer JohnFlamstead.His interestin Flamstead'sobservationsbecameso
great that North eventuallyobtaineda good beneficefor him so that he
might continuehis scientificwork withoutfinancialhardship.45
Severalof North's close professionalassociatesshared his scientific
interests.We havealreadymentionedSirJohnHoskyns.Another,Mr.John
Werden,who lived in the Temple,"wasfar gone in the Mysteryof Algebra and Mathematics."46
Mr. William Ball, "virtuosoacquaintancein the
Temple,"whose roomswere frequentlyused as a meeting place for the
Royal Societyin its earliestperiod,was also a close friend of North's.47
North'sbrother,Roger,himselfa prominentlawyer,also was involvedin
scientificwork and recommendedthe studyof mathematicsand natural
philosophyto membersof his profession.He felt that the studyof the law
shouldnot be undertakenin a vacuumandthoughtit a "vastadvantageto
be not only a commonlawyer,but a generalscholar."48
III. THE CONCERN
FORSYSTEMIZATION:
SIR MATTHEWHALE
AND THE SCIENTIFIC STUDY OF LAW

We have alreadyexaminedthe urge towardpopularizationand the

interestin a universallanguageamongI7th-century
scientists.Statedmore
a
thrust
of
intellectual
life in this periodwas towardthe
broadly, major
systematicorganizationand presentationof the whole of humanknowledgein sucha way as to makeit availableto all literatemen.It still seemed
possibleat thistime to describeeverybranchof knowledgein a way understandableto laymenand then to relateeverypart to everyotherby some
systemof masterconcepts,so thatthe idealof universalknowledgemight
be attained.Symptomsof this movementcan be found in the constant
streamof popularizingtextsby even the greatestscientificminds,such as
42.
43.
4445.
46.

Id.
Id.
Id.
Id.
Id.

48.

R. NORTH, A DISCOURSE ON THE STUDY OF LAWS 9 (1824).

47. Id.

at
at
at
at
at

292.
295.
294-95.
286-87.
285.

April I969]

LAW AND SCIENCE

74I

Galileo, and by the enormousenergy spent on internationalscientific

and in the
communicationand the correlationof such correspondence,
international
effortsof the Comeniansto createan
communityof learned
men who would sharea basicfund of informationorganizedaccordingto
a commonset of conceptsandcategories.It is expressedby actionsas small
as the attemptof the virtuosimaroonedat Oxfordby the CivilWar to constructa subjectindexfor the booksin the BodleianLibraryand as grandas
the universalclassificationof humanknowledgeattemptedby JohnWilkins and his associatesof the RoyalSociety.In law the movementcan be
seenmostclearlyin the worksof Sir MatthewHale, afterBaconthe most
scientificjuristthatEnglandhas seen.49
Hale, the greatestlawyerof his day and the model I7th-centuryjudge,
was, like North, engrossedin the scientificdiscoveriesof the period.Althoughhe neverbecamea memberof the RoyalSociety,Hale was a close
friendof its chieffounder,JohnWilkins,andnumberedmanyof its membersas intimates.While it is unclearwhetherHale took advantageof the
scientificopportunitiesavailableat the university,he may have become
interestedin the new philosophyat MagdaleneHall, Oxford,where he
studiedat aboutthe same time Wilkins pickedup his earlyscientificinterest.Duringthe courseof his residenceat Lincoln'sInn he becamevery
interestedin mathematical
andscientificstudies.Beginningwith arithmetic
he went on to "AlgebrabothSpeciosaand Numerosaand throughall the
otherMathematicalSciences. . . ," becoming"veryconversantin PhilosophicalLearningandin all the curiousExperiments,and rareDiscoveries
of this Age ....
"50 He collectedscientificbooks and instruments
and
to
"recreate
himself"
when
he
tired
of his
performedmany experiments,
Hale alsodevelopedconsiderableinterestand skill in anatlegal studies.51
omy and medicine,the latterto suchan extentthat a physicianindicated
that he had gone as far in the studyof medicineas "Speculation
without
Practicecouldcarryhim."52
Hale contributedseveralvolumesto the growingbodyof scientificand
semiscientificliterature.In I673he publishedan Essaytouchingthe Gravitationof Fluid Bodies,and the followingyearDifficilesNugae: or Observationstouchingthe TorricellianExperiment.When HenryMorerejected
the views presentedin this latterwork, Hale repliedwith Observations
touchingthe Principlesof NaturalMotions,and especiallytouchingRarefactionand Condensation.3Althoughthesevolumesshow an awareness
SOMEMAKERS
OFENGLISH
LAWI36, I44 (1938).
49. See W. HOLDSWORTH,

50. G. BURNET, THE LIFE AND DEATH OF SIR MATTHEW HALE 15 (1682).
5I. Id. at 25; J. WILLIAMS, MEMOIRS OF THE LIFE, CHARACTER AND WRITINGS OF SIR MATTHEW

Among the numerous books and manuscriptsHale bequeathed to Lincoln's Inn

was a collection of mathematical and scientific works. See G. BURNET,supra note 50, at 15-16,

HALE 243 (I835).

117-23.

supra note 50, at 27.

52. G. BURNET,
53- (1677.)

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of the currentscientificliteratureand controversies,

they were somewhat
old-fashionedandfailedto makea seriouscontributionto the development
of scientificthought.They do, however,exhibita sensitivityto somemajor
problemsof scientificphilosophyand method. For example,Hale distinguishedtwo approachesto findingscientifictruth.The firstbeginswith
observationsof the senses,proceedsto experimentation,
and ends by conto
theorems
the
results.
secondwas deThe
structing
explain experimental
ductive.Its foundationlay in speculationand its followersmanipulated
naturalphenomenain accordancewith their hypotheses.Hale himself
favoredthe inductiveapproachbecausehe felt thatpractitioners
of the deductivemethodtendedto distortthe datato fit theirhypotheses.54
He was
a
naive
and
was
critical
of
not, however,
empiricist
particularly
empirics
in the field of medicine.Althoughthe distinctionbetweenthese two approacheswas not highly original,Hale did providethe first detailedattemptto describethe mentalprocessesand proceduresrequiredfor inventionanddiscovery.55
Hale was sensitiveto the scientificcommunity'sdemandfor a clear,
uncomplicated,unadornedstyle.Like the membersof the RoyalSociety,
he insistedthat eloquenceand wit be used sparinglyif at all in the communicationof seriousmatters.He thereforeopposedeloquenceand rhetoricat the baror on the benchandinsistedthatsuchlanguagewould confuse and corruptjuriesby "bribingtheirFancies,and biassingtheirAffections . . ."56 As a judge "heheld thosethat Pleadedbeforehim to . ..
the main Hinge of the Business,and cut them short"when they strayed
from the mainpoint.57He detestedviolentlanguagenot only in the courtroombut everywhere.Soundinglike an echoof the credoof the RoyalSociety,he insistedthat "youmustnot speakthat as upon knowledgewhich
you haveby conjectureor opiniononly,"and thatit was necessaryto think
beforespeakingand to presentone'sviews in "significant,pertinent,and
inoffensive"expression.58
Hale's conducton the bench,then, seemsto be directlyrelatedto his
scientificstudies.Butthe linkageis far moreextensiveand importantthan
contributions
to Englishjurisprudence
that,forhis considerable
aremarked
an
in
by approachdistinctly accordwith the bestcanonsof theorizingand
TOUCHINGTHE PRINCIPLESOF NATURALMOTIONSPreface (I677).
54. M. HALE, OBSERVATIONS
See also M. HALE, DIFFICILESNUGAE6 (1674); J. WILLIAMS,supra note 51, at 179.

55. See Hodgen, Sir Matthew Hale and the "Method" of Invention, 34 Isis 313, 315 (I943).
Hale's religious views too were much like those of the virtuosi. He not only attempted to find
a rational approachto theology but tried to show how the study of nature would lead to a clearer
appreciation of the deity and the principles of religion. See M. HALE,MAGNETIMUS
MAGNUS
(1695); M.
ORIGINATION
OFMANKIND
HALE,THEPRIMITIVE
4 (I677). Like so many scientists Hale was a latitudinarianand worked activelyfor a more liberalchurchestablishment.
56. G. BURNET,
supra note 50, at 74 (quoting Hale).
57. Id. at 75.
58. M. HALE, HISTORYAND ANALYSISOF THE COMMONLAW OF ENGLANDxxviii, xxix (1820).

See G. BURNET,supranote 50, at 74-78.

April I969]

LAW AND SCIENCE

743

datacollectionthen currentin the scientificcommunity.59

As might have
been easily anticipatedfrom his scientificpublications,the basis of his
legal scholarshipis an inductivemethodthat emphasizedthe collectionof
dataand basedthe constructionand reformof legal principleson cautious
and tentativetheorizingfrom past experience.Thus in Hale we find a
combinationof systematicpresentationand the urge to reformand modernizeon the one hand and, on the other,the rejectionof radicalchanges
in law basedon abstractrationalsystemssuch as Hobbes'.60
While legal
scholarshave been accustomedto think of this combinationas peculiarto
the traditionof the commonlaw, Hale'spositionis not only a partof that
tradition,but typical of the approachfollowed in the most advanced
scientificcirclesof his day-circles in which he himselfplayeda conspicuous part.Hale is bestrememberedfor his attemptsto systematizethe law.
Legal scholarship,however,has not usuallyrecognizedthat his interest
in such systematization
was in harmonywith and perhapseven an outgrowthof the virtuosi'seffortto classifynaturalknowledgemethodically.61
Hale's classificatoryeffortswere not restrictedto legal matters.He
classifiedeverything.In all his studies"he used to cast his design in a
Scheme,whichhe did with a greatexactnessof Method .... He brought
all his Knowledgeas much to ScientificalPrinciples,as he possiblycould
...."62 The PrimitiveOriginationof Mankind,a theologicaltract,exhibits"hisExcellentway of Methodizingthings,in which he was so great
a Master,thatwhateverhe undertook,he wouldpresentlycastinto so perfecta Scheme,thathe could never afterwardsCorrectit . . . 63 He turned
the samemethodto the law, with the aim of bringingscientificprinciples
to bearon all knowledge.Someof his friendsquestionedthis;
they looked on the CommonLaw, as a Study that could not be broughtinto a
Scheme nor formed into a RationalScience,by reasonof the Indigestednessof it,
and the Multiplicityof the Casesin it, whichrenderedit veryhardto be understood,
or reducedinto a Method;but he said, he was not of their mind, and so quickly
after, he drew with his own hand, a Scheme of the whole Order and Part of it,
in a large sheet of Paper, to the great Satisfactionof those to whom he sent it.
Upon this hint, some pressed him to Compile a Body of the English law ...

.64

59. See Holdsworth, Sir MatthewHale, 39 LAWQ. REV.402, 410-15 (I923).

60. See W. HOLDSWORTH,
supra note 49, at 138. Hale's manuscriptReflectionsby the Lrd. Chief
JusticeHale on Mr. Hobbes: His Dialogue of the Law is printed in 5 W. HOLDSWORTH,
A HISTORY
OF
ENGLISH
LAW500-I3 (1924).
6I. Bacon, too, was involved in the movement of systematization,although he tended to stress
induction as a means of creating order. Although he favored the compilation and use of legal
digests,
Bacon preferred a chronological system, fearing that otherwise the student might get too far
from "particulars."He thus did not desire a general codificationof law. His hostility to general away
systems
created by rational process and his preferencefor an inductively derived method are seen in both
his
legal and scientificwritings.
62. G. BURNET,
supranote 50, at 72-73.
63. Id.at 52.
64. Id. at 73.

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At the time, however,he was unwillingto undertakethe task thoughhe

considered it "a Great and Noble Design, which would be of vast Advantage to the Nation," because he felt it should be a common effort of the
most eminent lawyers on the command of the sovereign.65Despite his disclaimers, however, Hale did attempt to systematize English law. In the
field of equity, for example, which he considered "part of the CommonLaw, and one of the Grounds of it, and thereforeas near as he could, he did
always reduce to certain Rules and Principles, that men might Study it as
a Science, and not think the Administration of it had anything arbitraryin
it.,,66

An examination of Hale's posthumously published works67in the context of other legal writings of the day clearly indicates his role in the incursion of scientific systematizationinto law. With the decline of the oral
mode of legal education in the Inns68and the increasing availability of
printed legal materials,69the prototypic form of legal education had become "commonplacing."The variousplans of study designed to guide students through the reading of law were almost unanimous in their demand
that every budding lawyer and, indeed, every successful practitionerkeep
a commonplace book in which he provided his own analysis,commentary,
and cross-referencingof the reported cases, statutes, and other legal materials he encountered.In spite of the pious warnings that each man must
do his own commonplacing there naturallyarose a strong demand for prepared commonplace books, a demand that publishers met with pirated or
authorized editions taken from the manuscript books of successful practitioners.70
The dominance of commonplacing as a method necessarily militated
against any rational arrangement of legal materials, for even the best
commonplace would consist of a series of notes on particular cases and
statutes in whatever order the cases and statuteshad come to the writer's
attention, perhaps with some cross-referencesto earlier notes. Even the
65. Id. at 73.
66. Quoted in id. at io6. The quote is attributedto Lord Nottingham by W. HOLDSWORTH,
supra
note 49, at 149, 176.
THE HISTORY AND ANALYSIS OF THE
67. THE HISTORY OF THE PLEAS OF THE CROWN (1736);
COMMON LAW OF ENGLAND (1713);
THE ANALYSIS OF THE LAW: BEING A SCHEME OR ABSTRACT OF THE
SEVERAL TITLES AND PORTIONS OF THE LAW OF ENGLAND, DIGESTED INTO METHOD
PLEAS OF
(I713);

THECROWN
LAWTRACTS
(I678). OtherHale materialswere printed in F. HARGRAVE,
(I787). These include works on rights regarding rivers and foreshore, imports and exports, the royal courts, and the
OFTHELORDS
HOUSE(I796); DE SUCCESSIONIBUS
poor law. See also JURISDICTION
ANGLOS
(1699);
ANON.,A TRIALOF WITCHES(I682). Hale's legal writings were unpublishedat his death. Some were
complete; others remained fragments. A number of manuscriptsin the hands of Lincoln's Inn remain
OFNATIONAL
BIOGRAPHY
unpublished. See 27 DICTIONARY
905-08 (L. Stephen & S. Lee eds. 1891).
68. See 6 W. HOLDSWORTH,
A HISTORY
OFENGLISH
LAW481-86 (I924); Prest, The Learning
Exercise at the Inns of Court I590-1640, 9 J. SOC'YPUB.TEACHERS
OFLAW30I (1967); Prest, supra
note 31, at 20-39.
69. Prest, The Learning Exercise at the Inns of Court 1590-I640, 9 J. SOC'YPUB.TEACHERS
OF
LAW301, 306-07 (1967).
70. See 6 W. HOLDSWORTH,
supra note 68, at 496, 6o1-03; Prest,supranote 3I, at 24.

April I969]

LA WAND

SCIENCE

745

greattextbookof the day, Cokeon Littleton,is in formatonly a commonplacebookwith Coke'snotesarrangedaccordingto the text on which he
was commenting,a text that had no particularstructure.In this instance,
however,at least those who knew Littletoncould quickly find the correspondingpassagein Coke.Wherethe basisof a commonplacebookwas
the readingof a randomassortmentof statutes,reportedcases,and cases
heardin court,it would have been impossiblefor anyoneotherthan the
initialwriterto findhis way to the informationneededat a givenmoment.
To overcomethis problemlegal publicationstended to alphabeticalarrangementor indexing.7Althoughthe alphabeticalorderingof legal topics from "appeal"to "waste"obviouslyyieldedone systematicsubstantive
presentationof law, it reenforcedthe commonplacer's
tendencyto view
as
everylegalproblem separateand equal.
Hale's work stands in the sharpestcontrastto these piecemealapandthehistory
proachesto law.His majorworkson thepleasof thecrown72
of the commonlaw73were obviouslyintendedto providethat synthetic
overviewof law missingfrom the commonplaceliterature.74
Pleas of the
Crownand The Historyof the Pleasof the Crownareworksof pioneering
merit.Theirsystemof classification
constitutesthe firstEnglishattemptto

provide a complete picture of criminal law.75There was necessarilysome

supra note 68, at 377-78; 6 id. at 60I-02.
7I. See 5 W. HOLDSWORTH,
72. Hale's PLEASOF THE CROWN(1678) was a brief systematization of the subject initially composed for his own use. THE HISTORYOF THE PLEASOF THE CROWN(1736), initially slated for publi-

cation in i680, 2 years after Hale's death, but publishedonly in 1736, was a far more ambitiouswork,
which never reached completion. The completed sections exhibit a combination of systematicand historicalanalyses.See note 74 infra.
73.

THE HISTORY AND ANALYSIS OF THE COMMON LAW OF ENGLAND (I713).

74. The scheme of arrangement in the pioneering 1678 work involves a division into offenses
(against both common and statute law) and proceedings against offenses ("Incidents unto these Offenses"). Offenses are either against God (heresy and witchcraft) or against man. The latter, which
comprises the bulk of offenses, is divided into capital and noncapital. A variety of crimes is ranged
under each heading. The basic categorieswithin capitalcrimes are treasonand felony, the former being
subdivided into high and petit treason, the latter into a variety of crimes against persons (oneself and
others), property (larceny, robbery,piracy,arson), and "the Protectionof Justice."Noncapital offenses
are divided into those against common law and those against statutes. Violations of common law are
categorized as either "greater"or "of an inferior nature." Inferior noncapital violations are further
divided into those committed by officersand common persons. Noncapital statutory offenses receive
separatetreatment. The major division on proceedings deals with the jurisdiction of the courts, processes involved in bringing offenders to trial, the trial, judgment, execution, and reprieve.
The design of the much longer The History of the Pleas of the Crown differs
slightly. The

major legal division is between criminal and civil pleas. (This treatiseremained incomplete. Hale never
wrote the civil portion, which was to deal with "franchises"and "liberties,"nor the noncapitalcriminal matters.) Criminal pleas are divided by jurisdictionalcategories-ecclesiastical and
temporal. The
former is not discussed.Temporal crimes (again he includes both common and statute law)
are divided
with respect to the form of punishment-capital and noncapital; "or rather and more
properly into

Felonies and Misdemeanors." THE HISTORYOF THE PLEAS OF THE CROWNProemium. Felonies are

treason and general felony, and each receives considerablesubdivision. Treason involves the conventional high and petit distinction. Felony is more complex; here again we find several breakdowns.
First are the crimes against person (suicide, varieties of homicide), against movable
property, real
property,and those relating to accessoriesto felons and escapedprisoners.The enumerationof felonies
is followed by the "whole method of proceedingsin or upon them." This portion
begins with the court
and its officers,and proceeds to the apprehension,indictment, arraignment,pleas,
etc., of offenders.
This is followed much in the manner of the Pleas of the Crown-with a section on trial,
judgment,
execution, and reprieves.Hale never wrote the misdemeanorportions that were to follow.
75. See 6 W. HOLDSWORTH,
supra note 68, at 591.

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concessionto suchconventionaldistinctionsas thosebetweenecclesiastical

and secularoffensesand betweenfelonies and misdemeanors.Yet Hale
introduceda clearseparationbetweensubstantiveand proceduralmatters
anda subdivisionof substantive
materialson thebasisof the offensesagainst
persons,chattels,andrealproperty;thiswas clearlyan advancebeyondthe
piecemealcommentson individualwrits prevalentat the time. How natural it still was for lawyersto think of one writ at a time ratherthan the
basicsystemof offensesis suggestedby the fact thatthe titleof Hale'swork
remained"pleasof the crown"evenasits contentsmovedtoward"criminal
law."76
The Historyand Analysisof the CommonLaw is the firstattemptat a
truehistoryof Englishlaw,7 and it views that law as a system,that is, a
seriesof interrelatedpartsratherthan a randomassortmentof writs and
statutes.Modernlawyershave,of course,frequentlycometo view historical
expositionsof law as conventionalandindeedin somesensesantiscientific.
It must be remembered,however,that for Hale historicalexpositionwas

a method of attempting a systematic, complete, and coherent cataloging

and explanation of a complex body of data that all other methods left in
continued disorder.Thus Hale's History and Analysis is less an example of
an inherently historical bent to English jurisprudencethan of the thrust
toward scientific systematizationthat characterizedmuch of 17th-century
intellectual life.78
Hale's work on the civil part of law, The Analysis of the Law: Being a
Scheme or Abstract of the Several Titles and Portions of the Law of England, Digested into Method, was one of the first efforts to treat English
law by "Analytical Method."79Despite his admission that the complexity
of the law would not permit him to "reduceit to an exact Logical Method,"8 he thought his Analysis provided a good start. It sought to prove,
first of all, that it was "not altogether impossible, by much Attention and
Labour, to reduce the Laws of England at least into a tolerableMethod or
Distribution."8 Second, it would give the opportunity to himself and

others "to rectify, and to reform what is amiss in this, . . . whereby, in

76. By the Igth century the standard works use the term "criminal law." See, e.g., J. STEPHEN,
A HISTORY
OFTHECRIMINAL
LAWOFENGLAND
(I883).
77. See 6 W. HOLDSWORTH,
supra note 68, at 585-87. Hale's History was never completed and
portionsremain fragmentary.
78. It should be noted that the term "history"for a I7th-century scholar familiar with scientific
literaturemeant something more than simply an account of the past or temporal development of a
given subject.The term was also widely used by the scientificcommunity to designate an accurateand
careful descriptionand analysis. The Royal Society, in addition to its experiments,attempted to compile a seriesof histories.The histories "they gathered are either of Nature, Arts, or Works. These they
have begun to collect by the plainestMethod, and from the plainestInformation."T. SPRAT,
supra note
I6, at 257. When Spratwrote, numeroushistorieshad alreadybeen completed, among them "histories"
of comets, mines, tinneries, ironmaking, colors, fluidity and firmness, clothmaking,
and varnishing.
Id. at 257-59. Hale's histories are histories in both the traditionaland the scientific sense.
79. At A3 (preface) (2d ed. 1716).
80. Id.
81. Id. at A4.

April I969]

LA WAND SCIENCE

747

Time, a moreMethodicalSystemor Reductionof the Titles of the Law,

under Method,may be discovered."82
His last reasonfor attemptingthe
workwas that
although, for the most Part, the most Methodical Distributors of any Science rarely
appear subtle or acute in the Sciences themselves, because while they principally
study the former, they are less studious and advertent of the latter; yet a Method,
even in the Common Law, may be a good Means to help the Memory to find out
Media of Probation, and to assist in the Method of Study.83

It is difficultto showthenonspecialist
theremarkable
leapforwardfrom
the maze of Littleton,the handbooksto assistthe justicesof the peace,84
and the commonplacebooksthat the Analysisrepresented.But some imof the work can be gained
pressionof the precisionand systematization
from the table of contents and section I.85

I do not attempthere a detailedanalysisof Hale'sapproach,but a few

majorpointsshouldbe noted.Contraryto mostearlierpractice,Hale rigorouslybuilthis schemaon the basisof substantive
interests,segregatingproceduralmattersat the end. Thus we get the moderndivisionof adjective
from substantivelaw. Similarlythe rigorousseparationof "rightsof persons"(political,economic,and civilrights) from "rightsin things"(propertylaw), while certainlynot a new idea,providesa far morerigorousand
intellectuallysatisfyingsequenceof topicsthanwas typicalfor the period.
The treatmentof rightsin personalrelationships-husband
andwife, master and servant,andlandlordandtenant-fall neatlytogether.The separation of variouswrongsalsoprovidesa claritythatalternativeorganizations
in termsof trespassor other traditionalcategorieswould have obscured.
Finally,the greatcarein handlingremediesand the proceduralaspectsof
trials as generalcategoriesis a considerableadvanceover treatingeach
individualwrit-remedy-procedure
combinationas a separateentity,as they
were
manuals.This is not to say,however,
necessarily
by practice-oriented
that Hale had freedhimselffrom or rejectedthe writ-orientedpracticeof
his day.The pointis thatHale realizedthat,whateverthe demandsof professionalpractice,some new methodof organizinglegal knowledgewas
necessaryif law was to be treatedas an integralpart of man'sbody of
knowledge.
As so frequentlyhappens,however,the theorizingof one age became
the practiceof another.Hale's analyticaloutline was adoptedby Blackstoneand thuseventuallybecamea basicpartof the practicaleducationof
severalgenerationsof Americanlawyers.We have Blackstone's
testimony
82. Id.
83. Id.
84. E.g., M. DALTON, THE COMPLETEJUSTICE
(I66I); M. DALTON, THE COUNTRYJUSTICE
OR THEJUSTICES
OF THEPEACE(I58I), of which there are
(I655); W. LAMBARDE,EIRENARCHA:
numerouseditions. See also 6 W. HOLDSWORTH,
supranote 68, at 591.
85. See appendixinfra.

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that "[o]f all the schemeshithertomadepublicfor digestingthe Laws of

England,the mostnaturaland scientificalof any,as well as the mostcomprehensive,appearedto be that of Sir MatthewHale, in his posthumous
'Analysis of the Law.' "86

Yet Hale'sclassifications,
that
thoughtheywere the most sophisticated
the I7th centuryproduced,were not unique.John Wilkins, a friend of
Hale'sandoneof the leadingvirtuosiof the day,attemptedto organizeand
classify"judicialrelations"in the courseof his effortto organizeall knowledge into a systematicand philosophicallysound system.Wilkins subdividedhis legal categoryinto persons,actions,crimes,and punishment.
These subcategories
were to be all-inclusive;"persons,"for instance,included lawyers,witnesses,mediators,arbitrators,and judges, as well as
plaintiffsand defendants."Actions"was arrangedin temporalsequence
proceedingfrom pretrialthroughtrialto suchposttrialmattersas appeal,
It is particularlyinterestingthat as earlyas the
execution,and pardon.87
the
I7th century applicationof scienceto law yieldedan approachbearing
certainstartlingsimilaritiesto modernsociologicaland politicaljurisprudence. In particular,theredevelopedan emphasison processratherthan
doctrine.Wilkins' treatmentwas essentially"behavioral";he took the
stanceof a scientistseekingto describeaccuratelyand interrelateall facets
of a complexsocialphenomenonlabeledlaw ratherthanof one seekingto
of writprovidethetraditionalexplanations,
orderings,andrationalizations
tenlegalmaterials.Thushis work,at leastat the outlinestage,movessomewhat beyondthat of Hale, which is morefully embeddedin concernfor
the taught,doctrinaltradition.Wilkinsmay even have had the assistance
of Hale in his effortsat legalclassification,
for he usedthe talentsof many
of his friends to completehis Essay Towardsa Real Characterand a
PhilosophicalLanguage.8Wilkins may also have seen manuscriptcopies
of Hale'slegaltreatisesand classificatory
efforts.89
He almostcertainlyhad
the benefitof his goodfriend'sconversation.
In any event,portionsof Wilkins'treatmentof "judicialrelations"beara strikingresemblance
to Hale's
work. Wilkins, however,was extremelybrief and providedonly note
86. D. LOCKMILLER,
SIR WILLIAMBLACKSTONE
An Analysis
42 (1938), quoting W. BLACKSTONE,

iV-V (1762). John Austin thought Blackstone's "arrangeof the Laws of England, in LAWTRACTS
ment" in his Commentarieswas simply "a slavish and blundering copy of Sir Matthew Hale's ..
."
Quoted in D. LOCKMILLER,
supra at 62. A comparisonof the "texts"preparedby Hale, the committed
scientist, and Coke, whose interest in science appearsto have been cursory,is revealing. Hale produced
the first systematicdescriptionsof English law, and Coke the First Institute, which "is in fact a legal
encyclopaediaarranged on no plan except that suggested by the words and sentences of Littleton."

W. HOLDSWORTH, supra note 49, at 123.

87. J. WILKINS, ESSAY TOWARDS A REAL CHARACTER AND A PHILOSOPHICAL LANGUAGE 270-75

(I668).
88. John Ray and Francis Willoughby were largely responsible for the classificationof plants,
birds, fish, and animals in this work. Others, some with formal acknowledgment by Wilkins and
others not, aided him with other branchesof knowledge.
89. Hale's Primitive Originationof Mankind was sent to Wilkins for a critical evaluation prior
to publication.See G. BURNET,
supranote 50, at 50-51.

April I969]

LAW AND SCIENCE

749

headings,while Hale frequentlyprovidedat least some descriptionof

materialbelongingundereachheading.
Sir GeoffreyGilbert,a respectedjudge, brilliantmathematician,and
memberof the Royal Society,also contributedto the systematizationof
legal conceptsand materials.His numerousposthumouslypublishedwritings werepartof an effortto composea "generalHistoryof the Courtsof
Justice,"a work that "wouldhave been of greatutilityto thosewho may
haveOccasionto studythe Englishlaw on fundamentalPrinciples."90
The
have
been
described
as
and
completedportions
"simple concise,"not "pomA combrief,and sparingin theiruse of authority.9l
pousand elaborate,"
ment of the editorof his Treatiseof the Courtof Exchequerwas equally
appropriateto his otherlegal treatises:
there is such a Consistence betwixt the Parts of the System, as makes it necessary
to expatiate, where they occur in this work, on the Certainty of many Particulars,
on Account of their being natural and unquestionable Deductions from others
sufficiently proved; though taken in a separate Light, they might demand some
Demonstration.92

Gilbertevidentlywishing not only to analyzethe law systematicallybut

alsoto describetheworkof the courts,was responsiblefor separatetreatises
on the courtsof exchequer,commonpleas, and chancery93
as well as a
seriesof topicalworks.94
IV. THE DOCTRINE
OFCERTAINTY

The systematizingwork of Hale, so frequentlyviewed as part of the

progressof an essentiallyautonomouslegal discipline,was thus relatedto
the scientificcultureof his day; a concernfor classification
and systematic
communicationwas a generalfeatureof 17th-century
intellectuallife. The
developmentof otherareasof legal thoughtlikewiseparalleledadvances
in scientificthoughtduringthisperiod.Perhapsone of the mostimportant
areaswas in theoriesof certainty.95
Althoughthe doctrineof relativecertainty-the notionthat we can be
surerof sometruthsthanothers-did not fully developuntil the I7th century,it can be tracedultimatelyto Aristotleandwas usedin an earlyform
90.

G. GILBERT, TREATISE OF THE COURT OF THE EXCHEQUER iv

(I758).

91. Id. at vi-vii.

92. Id.
ANDPRACTICE
93. See note 90 supra; THE HISTORY
OFTHECOURT
OFCOMMON
PLEAS(1737);

THE HISTORY AND PRACTICE OF THE HIGH COURT OF CHANCERY

(1758).

ONRENTS(I838); THE LAWOFUSESAND'IRUSTS(I8ii); THE LAWOF

94. E.g., A TREATISE
LASTWILLSANDREVOCATIONS
DEVICES,
OFEQUITY(3d ed. 1792); THE LAW
(1792); A TREATISE
OFEXECUTIONS
(2d ed. 1763); A TREATISEOFTENURES(3d ed. 1757); THELAW OFEVIDENCE(I756);

THE LAW AND PRACTICE OF DISTRESSES AND REPLEVINS

(1755);
MENTS (2d ed. I741).

THE LAW AND PRACTICES OF EJECT-

THE PROBLEM
OF CERTAINTY
95. See H. VAN LEEUWEN,
IN ENGLISH
THOUGHT
I630-I690

(I963).

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by severalI6th-century,legally trainedFrenchhumanists.Thus among

the earliestproponentsof the theorywere men trainedin law and concernedwith the historyof law. The reasonis not hardto guess:Historians
aswell aslawyersandjudgeshavealwayssharedthe problemof attempting
to determinethe truthof statementsaboutpastoccurrences.
They all reach
decisionsabout"whathappened,"or probablyhappened,when directempiricalevidenceis unavailable.They are forcedto weigh evidencewhich
turnslargelyon the testimonyof thosewho do claim to have directempirical experience.Probabilitiesratherthan certaintiesare thereforethe
concernof bothjuristsandhistorians.96
In the i6th century,MelchiorCano,
FrancoisBaudouin,andJeanBodin,facedby Renaissance
skepticismabout
the validityof historicalknowledge,arguedfor reasonabledoubtand evaluationof the probityof individualhistoriansratherthan the completedismissalof historicalwriting.Indeed,Baudouinand Bodinusedthe analogy
of courtroompractice.97
A. Certaintyandthe ScientificRevolution
In the I7thcentury,the doctrineof relativecertaintycameto the foreas
part of the great religiouscontroversyof the period. It was employed
thattherecould
againstbothatheistsandpersecutingzealotsto demonstrate
be very low levelsof certaintyaboutspecificpoints of religiousdoctrine,
andalmostabsolutecertaintyaboutsuchbasictenetsastheexistenceof God,
his creationof the world,the immortalityof the soul,and the existenceof
futurerewardsandpunishments.A veryconsiderable
portionof thosewho
usedthisapproachin the mid-and later-I7thcenturyweremen associated
with the scientificmovementwho wished not only to uphold the basic
of reliprinciplesof religionagainstdisbelief,but to lowerthe temperature
gious disputeby showing that most disputedpoints were of a very low
orderof certainty.In fact,nearlyall Englishproponentsof thistheorywere
religiouslatitudinarians.98
William Chillingworth,a liberalAnglicantheologian,introducedthe
certaintyargumentsinto Englandaftertheirearlierdevelopmentby Castellio and Grotiusin a religiouscontexton the continent.Chillingworth
describedthreelevelsof certainty.The highestwas availableto God alone.
The secondwasbasedon evidencethatvirtuallyexcludedthe possibilityof
THEPRINCIPLES
OFJUDICIAL
PROOF
96. See J. WIGMORE,
1003-08 (2d ed. 1931).
ANDTHESIXTEENTH
CENTURY
97. See J. FRANKLIN,
JEANBODIN
EVOLUTION
IN THEMETHODOLOGY
OFLAWANDHISTORY
(1963); Kelley, Historia Integra: Franfois Baudouin and His Conception of
History, 25 J. HIST.IDEAS
33, 49, 55-56 (I964).
98. H. Van Leeuwen has suggested that the theory developed out of the ProtestantReformation
and the need for Protestantsto defend themselves from Roman Catholic claims of
infallibility. He
further suggested that the theory was secularized in the late I7th century. H. VAN LEEUWEN,
supra
note 95, at I3-I4. A similar view was expressedby Waldman, Originsof Legal Doctrine of Reasonable
Doubt, 20 J. HIST.IDEAS
299-301 (1959). Neither noticed its historical and legal antecedentsor that
its primary use in the I7th century was by those with both latitudinarianpredilections and scientific
interests. For the connection between the scientific and latitudinarianmovements see Shapiro, supra
note 25.

April I969]

LA W AND SCIENCE

751

error.Moralcertainty,the third,was the level a reasonablepersonmight

achieveafterconsideringall the availableevidence.Religiousmatters,with
the exceptionof those principlesclearlystatedin Scripture,fell into the
thirdcategory."
Henry More, a liberaltheologianof the Neoplatonistschool with a
scientificbent, and Seth Ward,SavilianProfessorof Astronomyand one
of the foundingmembersof the RoyalSociety,used the doctrineto prove
the existenceof God.'?0WalterCharleton,a physicianmemberof the Royal
Society,usedthe theoryto provethe immortalityof the soul,not by "Demwhich were inappropriate,
but by "ProofssufonstrationsGeometrical,"
ficientlyPersuasive,for all such,who come not to examinethem with invinciblePrejudiceandresolutionnot to be convinced."'10
This emphasison
the unprejudicedobserveror the reasonableman was a commonthread
amongwritersusing the doctrine,whetherin the areaof religion,science,
or law.The "reasonable
man"will not, Charletonargued,demanddemonstrationor proofsthat"excludeall Dubiosity,and compelassent,"but will
acceptmoraland physicalproofsthat are the best that may be gainedin
metaphysicalmatters.Thus one can gain a "competentcertitudewhere
Demonstrationis impossible ...

."102

JohnTillotson,a leadinglatitudinarianchurchman,also adoptedthis

approach,firstin his attackon atheismand laterin a repudiationof the
RomanCatholicview of faith.
Mathematical things being of an abstracted nature are only capable of clear Demonstration; but Conclusions in Natural Philosophy are to be proved by a sufficient
Induction of experiments; things of a moral nature, by moral Arguments; and
matters of Fact, by credible Testimony; and though none of these be capable of
strict Demonstrations, yet we have an undoubted assurance of them, when they are
proved by the best Arguments that the nature and quality of the thing will bear.103

He alsoinsistedthat"pureNegatives,"thatis, provingthe nonexistenceof

a thing, are extremelydifficultand often impossibleto demonstrate,104
an
observationnot unknownin legal circles.
Some latitudinarians
went beyondtheir associatesto developthe conof
in
of a theoryof knowledgeappropriate
terms
to the natcertainty
cept
99. See H. VAN LEEUWEN,supra note 95, at 22-23,

27, 28. Jeremy Taylor, an Anglican theologian,

also distinguished three kinds of reason, the third of which included "such things which the under." Quoted in H. BAKER,
standing assents to upon the report, testimony and affirmationof others ..

THE WARS OF TRUTH 234 (1952).

0oo. H. MORE, ANTIDOTE AGAINST ATHEISsI 7 (I655);

S. WARD, A PHILOSOPHICALESSAY TOWARD

AND EVICTIONOF THE BEING AND ATTRIBUTESOF GOD 88, 90 (I655).

SCIENCE IN DEFENSE OF LIBERAL RELIGION (I933).

See generally P. ANDERSON,

I O. W. CHARLETON,
OF THE HUMANE SOUL (1657).
Dedicatory Epistle, in THE IMMORTALITY
See also id. at 53-57, 6x.
102. Id. at i86-88.
THE WISDOMOF BEINGRELIGIOUS
103. J. TILLOTSON,
THE RULE
31 (1664). See also J. TILLOTSON,
OFFAITH(i666).
104.

(I687).

J. TILLOTSON, THE WISDOM OF BEING RELIGIOUS 33-34

(I664);

cf. I I. BARROW, WORKS 27

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uralsciences.JosephGlanvilland JohnWilkinsareperhapsthe two most

importantfigures responsiblefor the transition.Glanvill wrote several
tractspublicizingthe scientificcredoof the Royal Societyas well as the
more moderateand rationalisticapproachof religion.'05Wilkins, with
whom we are alreadyfamiliar,demonstratedhow this approachto certainty of knowledgecould incorporateboth religiousand seculartruth.
For Wilkins therewere two fundamentalcategories.Knowledgeor certaintywasthe firstandwasderivedfromevidencethatdid not admitof any
reasonabledoubt.The secondwas opinionor probability.Knowledgehad
threesubcategories:
physical,mathematical,and moral.The firstwas derivedfrom the sensedata;the secondincludedall matterscapableof the
samecertaintyas mathematics;the thirdwas morecomplexbecauseit was
not dependenton evidencethat "necessitated
everyman'sassent."Neverit
was
so
clear
"that
man
whose
theless,
every
judgmentis free from prejudicewill consentto them.And thoughtherebe no naturalnecessity,that
thingsbe so, and thattheycannotpossiblybe otherwise. . . yet may they
be so certainas not to admitof anyreasonabledoubtconcerningthem."'06
The firsttwo resultedin "infallible"certainty,the third in "indubitable"
certainty.Mostthingswere capableof only the latter,a certaintythat did
not admitof anyreasonabledoubt.When evidencewas unclearor reasonabledoubtexisted,probabilityor opinionratherthanknowledgeresulted.
In such cases impartialobserverswere to "inclineto the greaterprobabilities"or, if necessary,suspendjudgment.07
Henry Van Leeuwenhas demonstratedthat this theoryof certainty
was developedfurtherby such activescientistsas RobertBoyleand Isaac
Newton, whose friendshipand associationwith the latitudinariantheologiansis well known.BoyleandNewtonusedthiscomprehensive
theoryto
deal with problemsof both religiousand scientificbeliefs.A generalized
versionof the theorythat comprehendedall knowledgewas then formulatedby JohnLockein his EssayConcerningthe Human Understanding.
Locke'sespousalmight have been expected,for he was intimatelyconnectedwith the virtuosiof the RoyalSociety,was a closefriendof Tillotson,Boyle,and Newton,and was himselfa latitudinarian.08
B. Certaintyand the Law
These theoristsassumedquite naturallythat legal evidencewas subsumed under their theoryof evidenceand knowledgeand thus did not
o15. See J. COPE, JOSEPH GLANVILL,

95, at 71-89.
I06.

ANGLICAN APOLOGIST (1956);

H. VAN LEEUWEN,

J. WILKINS, OF THE PRINCIPLES AND DUTIES OF NATURAL RELIGION 7-8

supra note

(1675).

I07. Id. at Io-II. See also id. at 27-29, 34.

Io8. See H. VAN LEEUWEN,supra note 95, at 90-142. However, Van Leeuwen does not suggest

that there is any close associationbetween the theory of certaintyand scientifictheory, on the one
hand,
and latitudinarianismand antidogmatism,on the other.

April I969]

LAW AND SCIENCE

753

attempt to deal with it separately. Boyle, for example, in describing the

differing degrees of certainty and probability to be ascribed to mathematical, physical, and moral demonstration,noted that men's actions were
in the realm of probabilityand used "the practice of our courts"as a vivid
example.
For though the testimonyof a single witness shall not sufficeto provethe accused
party guilty of murder;yet the testimonyof two witnesses though but of equal
credit,that is, a secondtestimonyadded to the first though of itself never a whit
more crediblethan the former,shall ordinarilysufficeto prove a man guilty; becauseit is thoughtreasonableto suppose,that though each testimonysingle be but
probable,yet a concurrenceof suchprobabilities(which ought in reasonto be attributedto the truthof what they jointlytend to prove) may well amountto a moral
certainty,i.e., such a certaintyas may warrantthe judge to proceedto the sentence
of deathagainstthe indictedparty.109

Boyle also indicated that this approachcould be applied to witnesses.

You may consider . . . that whereas it is as justly generallygranted, that the
betterqualifieda witness is in the capacityof a witness, the strongerassent his
testimony deserves;. . . for the two grand requisites, of a witness [are] the
knowledgehe has of the things he delivers,and his faithfulnessin trulydelivering
what he knows ....110

Locke, too, in the course of his discussionof variouskinds of evidence and

the certaintythey produce,dealt with the evaluation of testimony and, like
Boyle, easily saw the applicabilityof this approachto the law. For example,
both he and Boyle noted that an attestedcopy of a record is good evidence
that an event occurredbut that a copy of a copy is not as good. The testimony of a witness is good evidence that an event occurredbut "a report of
his report is not and will not be admitted in a court of law. The further
from the source, the weaker the evidence becomes."'11Thus the scientific
community felt that the rules for determining the truth in legal matters
were the same as in other areasof investigation.
Judges and lawyers also found that the theory suited their needs. Lord
Nottingham, for example, when Lord Keeper, used the language of certainty quite naturally when he defended the King's Declaration of Indulgence in 1673: "A Mathematicalsecuritywe cannot have: a moral one we
have from the King.""1 John Selden, the jurist, also suggested the mutual
borrowing of the theory from one field to another. When discussing the
truths of history and methods of historical proof, he turned to the terminology of certaintyand reasonabledoubt."3
Io9. R. BOYLE,Some Considerations About the Reconcilableness of Reason and Religion, in 4

WORKS I82 (1772).

IIo. R. BOYLE, The Christian Virtuouso, in 5 WORKS 529 (1772).
I I . Quoted in H. VAN LEEUWEN, supra note 95, at 135.

112. See 7 DICTIONARY

OFNATIONALBIOGRAPHY
9 (L. Stephen & S. Lee eds. 1891).

113.

F. FUSSNER, THE HISTORICAL REVOLUTION: ENGLISH HISTORICAL WRITING AND

THOUGHT

1580-I 640, at 277, 286 (I962).

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[Vol. 21: Page 727

More significant,however,in demonstratingthe applicationof the

theoryof certaintyto legal thinkingis the full descriptionand acceptance
of the theoryin thewritingsof SirMatthewHale. In The PrimitiveOrigi-

nationof Mankind,
Halecategorized
in muchthesamewayas
knowledge
his friendsTillotsonandWilkins.He wasmostconcerned
with the eviof Fact."Althoughthe evidenceof thesenseswasthe
dencefor "matters
"bestevidence"
in thesematters,it wasobviouslyinapplicable
to "things
transacted
beforeourtime,andoutof theimmediate
reachof ourSense."'14
Here only "moraland not demonstrative
or infallible"evidencewas
Yet a "varietyof circumstances
available.
rendersthe credibility
of such
to thevariousingredients
andcontributions
thingsmoreor less,according
of credibility
thatareconcentered
in suchan evidence.""5
To elicitassent
it wasnecessary
to weigh
the veracityof him that reportsand relatesit. And hence it is, that that which is
reportedby many Eyewitnesseshath greatermotivesof credibilitythan that which
is reportedby few; that which is reportedby credibleand authentic witnesses,
than that which is reportedby light and inconsiderablewitnesses;that which is
reportedby a persondisinterested,than that which is reportedby personswhose
interestit is to have the thing true, or believedto be true; . . . and finally, that
which is reportedby credibleperson of their own view, than that which they
receiveby hear-sayfrom those that reportupon their own view . . .116

Suchevidence
andsuchasno reasonable
man
mightbe"ofhighcredibility,

can without any just reasondeny . . . ."" While Hale developedthese

ideasprincipallyin the contextof historyand generalknowledge,he

themto law. "Thatevidence,"
for example,"atLaw
readilytransferred
whichtakensinglyorapartmakesbutan imperfect
proof,semiplena
prowithothersgrowto a full proof,likeSilurushis
batio,yetin conjunction
orunionwerenot
twigs,thatwereeasilybrokenapart,butin conjunction
tobebroken.""8
The firsttreatisedevotedentirelyto the problemsof legalevidence,
thatof SirGeoffreyGilbert,followedthe sameapproach
as the rational
thescientists,
andHale.HisLawof Evidence,19
whichviewed
theologians,
in the contextof legalscholarship
has oftenbeentreatedas
exclusively
in factrepresents
an advanceonly in explicitlyemquiterevolutionary,
the
doctrineof certaintyas the centralbasisfor a
ploying I7th-century
treatment
of legalevidence."20
itspurposewasnotto
systematic
Moreover,
114. M. HALE, THE PRIMITIVE ORIGINATION OF MANKIND 128 (I677).
COURSEOF THE KNOWLEDGE OF GOD AND OF OURSELVES (I688).
115. M. HALE, THE PRIMITIVE ORIGINATION OF MANKIND 128 (I677).

116. Id. at 129.

117. Id. at I28.
118. Id. at I30.
119.

G. GILBERT, THE LAW OF EVIDENCE (I756).

I20. See Waldman, supranote 98, at 299-316.

See also M. HALE, A DIS-

April i969]

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reformbut to describethe stateof the law at the time the treatisewas written, and it was not actuallypublisheduntil nearlythreedecadesafterGilbert'sdeath.Thus the work,which might casuallybe takenas introducing
the doctrineof certaintyinto law in the middleof the i8th century,actually
revealsthe earlierwidespreadjudicialadoptionof thatdoctrine.
The work begins with a discussionof the "rulesof probability,"by
which evidenceofferedto the jury"oughtto be weighedand considered."
Citing the observationsof that "verylearnedman,"Locke,Gilbertnotes
that
thereare severaldegreesfromperfectCertaintyand Demonstration,quite down to
Improbabilityand Unlikeness,even to the Confinesof Impossibility;and thereare
severalActs of the Mindproportionedto theseDegreesof Evidence,which may be
calledthe Degrees of Assent,from full Assuranceand Confidence,quite down to
Conjecture,Doubt, Distrustand Disbelief.
Now what is to be done in all Trials of Right, is to range all Mattersin the
Scale of Probability,so as to lay most Weight where the Cause ought to preponderate,and therebyto make the most exactDiscernmentthatcan be, in Relation
to the Right.
Now to cometo the trueKnowledgeof the Natureof Probability,it is necessary
to look a little higher,and see what Certaintyis, and whenceit arises.121

He proceedsto discusscertaintyin termsof senseperceptionsandnecessary

inferencesor demonstrations
from fixed data.122
Since most litigationdeon
transient
data
"retrieved
pends
by Memoryand Recollection"rather
than demonstration,"the Rights of Men must be determinedby Probability."'23
Probabilityis then consideredin termsof degreesof credibility
of witnessesand the abilityto accepttheirstatementsof factsbeyond"any
more reason to be doubted than if we ourselveshad heard and seen
it

."24

...

This line of thought was subsequently adopted by Blackstone

and incorporated
into the Igth-and20th-century
textson evidence,where,
of course,it is still to be found.l25
We have seen that Hale'sand Gilbert'streatmentof questionsof evidenceand mattersof fact is verymuch in accordwith the most advanced
thinking of the period and that both were awarethat developmentsin
2 I. G. GILBERT,
supra note I9, at 1-2.

Certaintywas "a clear and distinct perception"dependent on the senses. "[F]or this in the
first Place is certain, and that which we cannot doubt of if we would, that one Perceptionor Idea is
not another, that one Man is not another . . . and when perceptions are thus distinguished on the
first View, it is called Self-Evidence,or Intuitive Knowledge." Id. at 2. Few things are capableof such
certainty.Where "Agreementor Difference is not known on the view, ... we compare them by the
means of some third Matter, by which we come to measure their Agreement, Disagreement or Relation." This "way of Knowledge by necessaryInference"was the clearest "that Mankind is capable of
in his way of Reasoning, and therefore always to be sought when it may be had." Demonstration,as
this type of knowledge is labeled, then, concernedpermanent things, "which being constantly obvious
to our Senses,do affordto them a very clear and distinct Comparison ...."Id.
at 2-3.
123. Id. at 3.
124. Id. at 4.
ACCORDING
TOTHEEVIDENCE
I25. See, e.g., G. ABRAMS,
4, 194 (I958); A. BUCKNULL,THE
NATURE
OFEVIDENCE
55 (I953).
122.

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epistemologyandscientificmethodhadan impacton law. Moreover,other

legal intellectualscouldnot haveimmunizedthemselvesfrom the developments in the theoryof relativecertaintythat occurredin the scientific,
philosophical,and religiousfields duringthe I7th century.Yet legal historianshavesuggestedthata sophisticated
view of evidencedid not develop
in Englanduntil the i8th century.l26Theirfailureto acknowledgethe I7th
centurycontributioncanbe explainedin severalways.Thereis a majorgap
in legalhistorybetweenthe medievalperiodand the mid-i8thcenturyand
a resultingtendencyto assumethatmedievalconceptionscontinuedto rule
until theyweresuddenlyreplacedat the pointwherelegalhistorypicksup
again.In the realmof evidencepartof the difficultyno doubtarisesfrom
excessivescholarlyconcentrationon the rules of procedureand admissibilityof evidenceratherthan the principlesof proof, the ratiocinative
processof continuouspersuasionthat Wigmorethoughtwas of far more
Concernwith this latterprocess
importancethan rulesof admissibility.127
has been very limited,and Wigmorehimself noted that he was the first
scholarsinceBenthamto callattentionto the principlesof proofas distinct
from admissibility.It is this areathat "bring[s]into play thosereasoning
processeswhich arealreadythe possessionof intelligentand educatedpersons."'28Yet it is also preciselythe areaof persuasionand belief that changed

so substantiallyin the courseof the I7th century.Becausesuchmattersof

evaluationlie largelyin the habitualpatternsof thought of judges and
juriesratherthanin the formalityof procedure,they leavefew skeletalremainsin the form of changesin rulesof admissibility.
Yet therecan be no
doubtthatthe majorshiftin intellectualclimatecreatedby the introduction
of notionsof relativecertaintyin theologicalandscientificdiscourseplayed
an importantrole in shapingEnglish legal practicelong beforeGilbert
recordedthemin the middleof the I8th century.
Still anotherreasonthat these 17th-centurydevelopmentshave been
obscuredis the notionthat a sophisticatedand consistenttreatmentof the
law of evidencecouldnot developuntil the juryhad ceasedto be witnesses
as well as judges of matters of fact.129That argument may be analytically

usefuland logicallysatisfying,but it playshob with the real dynamicsof

history.New ideasand processescan developalongsideand graduallysurround an anachronismlong beforeit finallydisappears.And this is parweddedto old formsas
ticularlytruewithin a professionas conservatively
the law.
Indeed,therehas probablybeen too greatan effortto link the law of
I26. See 9 W. HOLDSWORTH,
supra note 68, at I26-27; Waldman, supra note 98, at 308-1o.
127. J. WIGMORE,supra note 96, at 3-5. Wigmore notes that the principles of proofs are "the

naturalprocessesof the mind in dealing with evidential facts after they are admitted to the jury; while
the rules of admissibilityrepresentartificiallegal rules ...."Id.
I28. Id. at 5-6.
129. See 9 W. HOLDSWORTH,
supra note 68 at I26-27,

I78; Waldman, supra note 98, at 308-o0.

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LA WAND SCIENCE

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evidenceto the evolutionof the jury.Rulesof evidenceand techniquesfor

classifyingtypesof evidenceand witnesseson the basisof credibilitymay
havehad theirorigin,andcertainlyenjoyedmuchof theirdevelopment,in
Sir Matthew
courts,which did not use juries.130
chanceryand ecclesiastical
we have alof
evidence
on
views
whose
Hale,
certainty
highly developed
of
on
and
who
the
insisted
readyexamined,
impartiality juries,announced
theseideasat a time when he was still permittingjurymento know and
presentinformationsomewhatin the mannerof witnesses.He sought to
harmonizehis two positionsby arguingthat additionalinformationcontributedby jurymencouldbe usedto improvethe court'sassessmentof the
Thus the new ideas on evidencehad
credibilityof ordinarywitnesses.l31
comein long beforethe old jurypracticeswent out.
It has alsobeensuggestedthat the medievalpracticeof treatingall evidence given under oath as of equal weight continuedinto the i8th cenSome residuesof the older notionsundoubtedlydid survive,but
tury.132
I7th-centuryjudgesclearlymade judgmentsas to credibility.Locke'ssix
criteriafor evaluatingtestimony--"thenumberof witnesses,theirintegrity,
theirskill at presentingthe evidence,theirpurposethe internalconsistency
of the evidenceand its agreementwith the circumstances,
and lastlythe
or
of
absence
Wilkins'
statecontrarytestimony"'13-andJohn
presence
ment-"and as for the evidencefor Testimonywhich dependsupon the
creditand authorityof the Witnesses,thesemaybe so qualifiedas to their
abilityand fidelity .... .'134-are echoedin greateror lesserdegreein the
legalliteratureandin severalimportantcasesof the period.In The History
and Analysisof the CommonLaw,which attemptedto describethe existing legalsystem,Hale madeseveralcommentsthatsuggesthow well establishedthe notionof credibleas opposedto merelylawfullyswornwitnesses
was duringthe Restorationperiod.At one point he noted that the testimony of legal witnessescan be attacked"eitheras to competencyof the
evidence, or the competencyor credit of the witnesses ... ."135 At another
he indicatedthatif thejuryhas
just causeto disbelievewhat a witness swears,they are NOT bound to give their
verdictaccordingto the evidence,or testimonyof THAT witness.And they may
sometimesgive credit to ONE witness, though opposedby more than one. And
indeed it is one of the excellenciesof this trial [the jury trial], above the trial by
witnesses,thatalthoughthe juryought to give a greatregardto witnessesand their
testimony,yet THEY ARE NOT ALWAYS BOUND BY IT; but may either
upon reasonablecircumstances,inducinga blemishupon their credibility,though
130.

See A. HARDING, A SOCIAL HISTORY OF ENGLISH LAW I28 (I966).

131. M. HALE, supra note 58, at 348.

supra note 68, at 196, 204-09;
132. See 9 W. HOLDSWORTH,

Wigmore, Required Numbers of

Witnesses:A Brief History of the Numerical System in England, I5 HARV.L. REV.83, 88-90
133. Quoted in H. VAN LEEUWEN,supra note 95, at 132.
I34. J. WILKINS,supra note io6, at Io.
135. M. HALE, supra note 58, at 344.

(I90I).

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otherwisein themselvesin strictnessof law they are to be heard,pronouncea verdict CONTRARY to such testimonies;the truth whereof they have JUST cause
to suspect,and may and DO OFTEN, pronouncetheir verdictupon one single
testimony; . . . they are to weigh the credibilityof witnesses,and the force and
efficacy of their testimonies

....

136

Hale also noted the advantage"for the true and clear discoveryof the
truth"of observingthe contradictionof witnessessometimesof the same
His The Historyof the Pleasof the Crownsimilarlynotesthe disside."137
tinctionbetweenlegal and crediblewitnesses,indicatingthatthe juryis to
or improbability,credibilityor incredibilityof the
judge the "probability
witnessandhis testimony...."138
This distinctionbetweencredibleandlawfulwitnesseswas alsomadein
a few contemporary
cases.JudgeHale, summingup evidencefor the jury,
noted that a witnesswas "a person,I think, of no greatCredit...."39
In a i68i caseof assaultandbattery,the defensecounselindicatedthat"we
shallprove(by substantialand crediblemen) thatnot one blowwas given
"140 In

. ..

I679 Lord Chief JusticeNorth also distinguished between law-

ful and crediblewitnesses,'41and in a I696 conspiracytrial the judge instructedthe juryto considerthe "Fairnessand Credibility"
of the evidence
thatwas given.142
In caseswhere certaindefensewitnesseswere not permittedto testify
on oath,thenotionof credibilityalsoappeared.The SolicitorGeneral,summing up theevidencein thecaseof LordMohunbeforethe Houseof Lords,
noted that the peerswere to believethe defendant'switnessesthough not
underoath,"sofar,as yourLordshipsshallJudgewas saidCredible,about
Consideration
of all thatyou haveheard."'43
One of the numerousPopish
Plot trialsturnedon the questionof the credibilityof the witnesses.When
the defendant,Langhorn,himself a lawyer, indicatedthat his "Whole
Defensemust run to disablethe witnesses. . ." and that he could "have
no defense unless it be by lessening their Credit . . ."44 Lord Chief Justice North advisedhim: "Do lessenit if you can."145In the processof his
defenseLanghornfurthernotedthat"[i]f I canDisprovea Witnessin any
one materialthingthathe saysthenit will takeoff fromhis Creditin every
In summingup, Northinstructedthe jurythattheymust
thinghe says.'"46
136. Id. at 346-47.
137. Id. at 346.
I38.

2 M. HALE, THE HISTORY OF rTHEPLEAS OF THE CROWN 277 (I736).

I39. The PerjuredPhanatick31 (1669).

140. The Tryal of SlingsbyBethal 5 (i68i).
14I. The Tryal of Nathaniel Reading 53 (I679).
142. The Tryals and Condemnationof RobertCharnock67 (I696).
I43. The Tryal of Charles,Lord Mohun 44 (I693).
144. The Tryal of RichardLanghorn28-29 (I679).
145. Id. at 29.
I46. Id. at 60.

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judgethe creditof the witnesseson bothsides,thosewho had testifiedunderoathaswell asthosewho hadnot beenso permitted.47

In a related development, the employment of multiple witnesses testifying as to the same event lost its oath-helperquality and became instead a
means of improving the scientific certaintyof judicial factfinding.
[I]f to any one quantum of fact there be many but probable evidences, which taken
singly have not perchance any full evidence, yet when many of those evidences
concur and concenter in the evidence of the same thing, their very multiplicity and
consent makes the evidence the stronger; as the concurrent testimonies of many
Witnesses make an evidence more concludent.148

Isaac Barrow and Robert Boyle, like Hale, indicated that the preference
for a larger rather than a smaller number of witnesses was based on considerations of probability.l49Thus although the rhetoric of oaths and the
multiplication of witnessesmay not have been substantiallyalteredbetween
the i3th and I7th centuries, their meaning and significance as modes of
legal proof had changed considerably.
The newer views are particularly evident in several late 17th-century
court decisionsin which judges sought to distinguish levels of proof needed
for various kinds of cases. The recorder in a i68i case insisted that in assassination cases "exact and positive proof" was unattainable so that the
court "must not expect it should be so clearas in a Matter of Right between
Man and Man . . . ."150In the trial of Carr for publication of a libelous
book, this position was even more clearly elaborated.The presiding judge
argued that "you very well know, that Evidencesof Fact, are to be expected
according to the Nature of the thing."'51Forgery could not be proved in
the same way as the sealing of a document because witnesses were not
ordinarily present; "in things of that nature, we are fain to retreatto such
probable and conjecturalEvidence as the matter will bear."'52In cases inI47. Id. at 62. See also the responsesof the grand jurorsin Tryal of Nathaniel Reading,supra note
141, at 33. Much of the case evidence for the I7th centurycomes from state trials for treasonor related
offenses because few other trials are adequately reported. These cases are often discounted because of
the patent unfairnessof many of the outcomes.Even taking the worst possible view-that the proceedings were only charades-the players, nevertheless, would have been expressing the orthodox legal
ideology of the day, an ideology that could be expected to play a more decisive role in run-of-the-mill
cases. It is precisely because they were "show" trials that treason cases are likely to record the era's
ideas of adjective law. For a discussion of the state of the late 17th-centuryjudiciary see Havighurst,
JamesII and the Twelve Men in Scarlet, 69 LAWQ. REV.522 (I953); Havighurst, The Judiciaryand
Politics in the Reign of CharlesI/, 66 LAWQ. REV.62, 229 (I950).
148. M. HALE,supranote I 5, at I30.
WORKS
I49. 2 I. BARROW,
II4, II5, I24 (I687). Boyle noted "the testimonyof severalindividuals
was preferablenot because their testimony was individually more credible but because it is
thought
reasonableto suppose that, though each testimony single be probable,yet a concurrenceof such probabilities (which is reason to be attributedto the truth of what they jointly tend to prove), may well
amount to a moral certainty,i.e., such a certaintyas may warrant the judge to proceed to the sentence
...

4 R. BOYLE,WORKSI82 (I772).

150. The Tryal of JohnGiles 54 (i68I).

15I. The Tryal of Henry Carr22 (I68I).
152. Id.

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volvingmurder,juriesshouldnot expect"adirectProofof the Act or the

actualKilling;butyet,you [have] suchEvidenceby Presumptionas seems
reasonableto conscience."53
The judgethereforeadvisedthe jury:
You must take Evidence in this case, as you do all the Year long; that is, in other
Cases,where you know there is an absolute certainty, that the thing is so: for human
frailty must be allowed: that is, you may be mistaken. For, you do not Swear, nor,
are you bound to Swear here, that he was the Publisher of this Book: but, if you
find him guilty, you only Swear, you believe it so.154

The jurywas thereforeinstructedto reachtheirverdict"accordingto reason and the probableEvidenceof Things."155

Statutes,particularlythose concernedwith treason,also indicatedthe
growing concernwith problemsof credibilityand standardsof proof.
While the I6th-centurystatutesconfinedthemselvesto demandingthe
the revisedtreasonstatuteof I66I retestimonyof "lawfulwitnesses,"'56
quired"twolawfulandcrediblewitnesses.""'The statuteof I696was even
morerigorousin its demandof proofand in the opportunitiesit afforded
the accusedfor his defense;it hasbeencharacterized
as embodying"almost
thedifferencebetweenmedievalandmodern."'58
In I697the BlasphemyAct
providedthatconvictionbe basedon the testimonyof two or morecredible
witnesses.'59

Closelybrigadedwith thismoresophisticated
approachto evidencewas
the increasingconcernfor the impartialityof judgesto be found afterthe
Restoration.Judicialpracticemight still have beenfar from ideal,but the
judicialmodel in the minds of the literatepublicshiftedmore and more
from the prosecutingservantof the governmenttowarda detachedseeker
of truth. By the end of the centuryimpartialitywas expectedof judges
as much as of scientists.One measureof the changein publicattitudeis
the contrastbetweenthe acceptanceof the highhandedjudicialbehavior
of Coke and the indignationat the outrageousbehaviorof Jeffreysand
It shouldthusnot be totallyunexpectedthatSirMatthewHale,
Scroggs.'60
153. Id. at 23.
154. Id. at 25.
I55. Id.

156. The Act of 1547 required "two sufficientand lawful witnesses"; that of I552 "two lawful

accusers." See G. ELTON,THE TUDORCONSTITUTION 67-68, 72, 76 (I960).

I57. Treason Act, I3 Car. 2, c. i (I66I). The act also required "face to face" testimony against
the accused. See also G. NOKES,COCKLESCASESANDSTATUTESON EVIDENCE412-13 (xoth ed. I963).
158. Resnick, Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedure in England,
2 J. MODERNHIST. I3 (I930). See Simon, The Evolution of Treason, 35 TUL. L. REV.
669, 688, 697-98

(1961). The act, Act for RegulatingTrials in Casesof Treason, 7 & 8 Will. 3, c. 3 (I696), requiredtwo
witnesses to overt acts, indictment by a grand jury within 3 years of an overt act, exclusion of any evidence of overt acts not named on the indictment, and presentationto the accusedof a copy of the
jury
panel 2 days before selection of the jury, as well as other safeguards.
159. 9 Will. 3, c. 35 (I697).

See G. NOKES,supra note I57, at 413. See also Hill, The Two Wit-

ness Rule in English Treason Trials: Some Comments on the Emergence of ProceduralLaw, 12 AM.

J. LEGALHIST. 95- II (1968).

I60. Havighurst noted that for most of the reign of CharlesII there was little reason to complain

about the bench. See Havighurst, The Judiciary and Politics in the Reign of Charles II, 66 LAW REV.
Q.
62, 77-78, 229, 250-52 (1950).

April I969]

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one of the most scientificallyinclinedjudgesof the period,was so widely

acclaimedas an ideal judge. It was Hale's impartialitythat made him
famousin his own day.16'
I do not wish to suggestthat Hale'simpartiality,or even the ideal of
judicialimpartiality,was a creationof the I7th centuryor of the scientific
movement,but only to indicatethat thosemost affectedby the new views
concerningthe searchfor truthwere moresensitiveto the ideal of impartiality.IsaacBarrow,a theologianand scientist,who was not himselfconnectedwith the legalprofession,providesa good exampleof what the laymen of the I7th centuryexpectedof judges.
A Judge should never pronounce final Sentence, but . . . upon good grounds,
after certain proof, and upon full conviction. Not any slight conjecture, or thin
surmise; any idle report, or weak pretence is sufficient to ground a Condemnation
upon: the Case should be irrefragably clear and sure before we determine on the
worse side ....
Every Accusation should be deemed null, until both as to matter
of fact, and in point of right, it be firmly proved true; it sufficeth not to presume
it may be so; to say, It seemeth thus, doth not sound like the voice of a judge ....
Moreover, a Judge is obliged to conform all his determinations to the settled
rules of Judgment, so as never to condemn any man for acting that which is enjoyned, or approved, or permitted by them; he must not pronounce according to his
private fancy, or particular affection, but according to the standing Laws; . . . he
that proceedeth otherwise, is an arbitrary and a slippery Judge; . . . a Judge
should be a person of good knowledge and ability; well versed and skilful in the
Laws concerning matters under debate; endowed with good measure of reason,
enabling him as to sift and canvas matters of Fact, so to compare them accurately
with the rules of right ....
Lastly: It is the property of a good Judge to proceed with great moderation,
equity, candour and mildness

...

.162

V. CONCLUSION

Statementsof historicalcausationarenotoriouslydifficultto formulate

-or at leastto prove.I do not seekto argueherethatdevelopmentsin science"caused"developmentsin law. It is enoughto saythatin 17th-century
Englandcertainaspectsof legal thoughtdevelopedas an integralpart of
the intellectuallife of the times,andthatsciencewas sucha peculiarlycentral part of that life that its influencewas felt by all who thought and
wrote.Again statingthe minimumcase,the movementstowardsystematization and evaluationin termsof degreesof certaintyare paralleland so
nearlyidenticalin law andsciencethatleadinglawyersof the day,manyof
whom also engagedin science,certainlyfound no need to resistthe encroachmentsof scienceor to assertthe autonomyof law. I thinkit is possisupra note 49, at 144-45; J. WILLIAMS,
x16. See W. HOLDSWORTH,
supra note 5I, at 85. For an
example of Hale's impartiality see his opinion in Atkyns v. Holford Clare, 86 Eng. Rep. 254, 256
(K.B. 1671).
162.

I I. BARROW, WORKS 277, 280, 282 (I687).

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[Vol. 21: Page 727

ble to go one stepfurtherand assertthat a significantnumberof lawyers

naturallyassumedthat a courtshouldseek truthin the most scientifically
correctway; thustheyborrowedmuchof the doctrineof certaintyalthough
they would not havethoughtof themselvesso much as borrowingscience
as conformingto the best generalintellectualpracticesof the day. Simso strikinglycompatiblewith his
ilarly,Hale'swork on systematization,
scientificfriendWilkins'endeavors,must have appearedto him not as a
unique,exclusivelylegal effortbut insteadas the lawyer'scontributionto
the generalmovementtowardorganizingand simplifyingknowledge,a
movementin which the scientificgroupplayeda centralrole.
It is also notoriouslydifficultto learnfrom history.The moralof my
storyneed not be that 20th-centuryAmericanlaw must clasp scienceto
its bosomjust because17th-century
Englishlaw did. It is possibleto say,
that
traditions
of
however,
legal historyand legal argumentationthat assume the law's autonomousmarchthroughhistoryare seriouslyin need
of correction,and thatin at leastone centurymanyEnglishlawyersmust
havethoughtof "lawand science"as a naturalcombinationratherthanof
"legalscience"as an isolatedprofessionalfortress.Perhapsthe safestmoral
for a historianto draw is that legal historyshould now be more fully
pledgedto the fraternityof intellectualhistorywhereit might at leastbe
gracefullyintroducedto the historyof science.
APPENDIX
THE ANALYSIS OF THE LAW

SIR MATTHEWHALE

THE CONTENTS
Sect. I. Of the Civil Part of the Law (in general) .....
PAGEI
Sect. ii. Of the Relation of Persons,and the Rights therebyarising.
P.4

Sect. iii. Of such Rights as relate to the King's Person.

...

P. 6

Sect. iv. Concerning the Prerogativesof the King .....

Sect. v. Concerning the King's Rights of Dominion, or Power of
Empire

P. 9

.........

P. IO

Sect. vi. Of the Potestas lurisdictionis; or, the King's Right or

Power of Jurisdiction

.........

p. 17

Sect. vii. Concerning the Census Regalis; or, the King's Royal
Revenue.

23

Sect. viii. Of the King's Temporal Revenue....

P. 25
Sect. ix. Of the Relative Prerogativesof the Crown.
P. 27
Sect. x. Of the SubordinateMagistrates:And First, Of Ecclesiastical

..

. 29

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Sect. xi. Concerning Temporal Magistrates .

. P33
Sect. xii. Of Inferior Magistrates,Sine Jurisdictione ..
P. 37
Sect. xiii. Of the Rights of the People or Subject...
P. 39
Sect. xiv. Of the Rights of Persons under Relations Economical:
And First, Of Husband and Wife .
.......
P.41
Sect. xv. Concerning the Relation of Parent and Child ...
P. 45
Sect. xvi. Of the Relation of Master and Servant .....
P.46
Sect. xvii. Concerning Relations Civil .....
ibid.
Sect. xviii. Concerning Ancestor and Heir. ..
. 47
Sect. xix. Concerning Lord and Tenant .
.......
P. 48
Sect. xx. Concerning Guardian and Pupil....
P.49
Sect. xxi. Of Lord and Villein. ......
p. 50
Sect. xxii. Concerning Persons or Bodies Politic, i.e. Corporations P. 51
Sect. xxiii. Concerning the JuraRerum, and the General Division
thereof. .
.
55
Sect. xxiv. Concerning Things Real, and their Distribution. . .
. 59
Sect. xxv. Concerning Things Ecclesiasticalor Spiritual. .
. .65
Sect. xxvi. Of the Nature and Kinds of Properties .....
P. 67
Sect. xxvii. Of Acquisition of Propertyby Act in Law ....
P. 70
Sect. xxviii. Acquisition of Propertyby Act of the Party, and
mixed Acts . . . . . . . . . . . . . . .
p. 7I
Sect.xxix. Concerning the Rights of Things Real .....
p. 72
Sect. xxx. Of Estatesin Fee-Simple and Fee-Tail .....
p. 73
Sect. xxxi. Of Estatesat Common Law, less than Inheritance.
. .77
Sect. xxxii. Of the Distinction of Rights of Estateswith relation to
the Possession ......
..
.......
79
Sect. xxxiii. Touching Acquisition and Translation of Estates in
.
82
Things Real. First, By Act in Law. .
Sect. xxxiv. Concerning Acquests by Means of the Party. And
.........
.
First, by Record. ..
. 85
Sect. xxxv. Concerning Conveyancesby Matterin Pais. And First,
Of Deeds........
P. 88
Sect. xxxvi. Of Conveyancesby Force of Statutes...
P. 93
Sect. xxxvii. Concerning Customary Estates...
P. 94
Sect. xxxviii. Of Translation of Propertyby Forfeiture ..
P. 96
Sect. xxxix. Of Wrongs or Injuries.And First, Of Wrongs to
Persons........
P.97
Sect. xl. Of Wrongs to Personsunder Relation ......
P. 02
Sect. xli. Of Wrongs in Relation to Rights of Things. And First,
Of Things Personal .......
. I05
Sect. xlii. Touching Wrongs to Things Real, without
.. 9
dispossessingthe Party; and their Remedies . . . .

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Sect.xliii. ConcerningWrongswhich carrywith them an

Amotionof Possession.
Sect.xliv. Of Wrongsthathavethe Countenance
of Legal
of
Courts.
Proceedings
Sect.xlv. ConcerningRemedies,andthe Methodof obtaining
them.
Sect.xlvi. Remediesat CommonLaw.And First,Of those
without Suit.
............
Sect.xlvii. ConcerningRemediesat CommonLaw by Suit.
Sect.xlviii. Of ProcessandAppearing.
Sect.xlix. Of Pleading.
Sect.1. Of Issues.
Sect.li. Of Trials.
Sect.lii. Of Judgment.
Sect.liii. Of Execution.
Sect.liv. Of the Redressof Injuriesby Error,&c.

P. II4
P. 120
P. 123
P. 124
P. I27
P. I30
P. 132

P. I38
P. I39
P. 141
P. I43

P. I46

SECT. I.
Of the CivilPartof the Law (in general)
The CivilPartof the Lawconcerns,
I. CivilRightsor Interests.
2. Wrongsor Injuriesrelativeto thoseRights.
3. Reliefor Remediesapplicableto thoseWrongs.
Now all CivilRightsor Interestsareof Two Sorts:
or Rightsof Persons.
I. JuraPersonarum,
2. JuraRerum,or Rightsof Things.
The CivilRightsof Personsaresuchas do either,
I. Immediatelyconcernthe Personsthemselves:Or,
2. Suchas relateto theirGoodsandEstate.
As to the Personsthemselves,theyareeither,
I. PersonsNatural;Or,
2. PersonsCivilor Politic,i.e., BodiesCorporate.
PersonsNatural are consideredTwo Ways:
I. Absolutely and simply in themselves.
2. Under some Degree or Respect of Relation. Vide Sect. 2.
In Persons Natural, simply and absolutely considered, we have these
several Considerations,viz.
I. The Interestwhich every Person has in himself.
2. Their Capacitiesor Abilities (which respecttheir
Actions).

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Ist, The Interestwhich everyPersonhas in himself,principallyconsistsin ThreeThings,viz.

I. The Interesthe has in the Safety of his own Person. And the
Wrongsthatreflectuponthat,are,
I. Assaults. 2. Affrays. 3. Woundings.
2. The Interesthe hasin his Liberty,or the Freedomof his Person.The
Injurywhereto,is Duress,and UnlawfulImprisonment.
3. The Interesthe hasin his Name and Reputation.The Injurywhereto, is ScandalandDefamation.
As to theotherInterestsof GoodsandEstate,thoughin Truththeyhave
a Habitude,andareundersomeRespectto the Person;yet becausetheyare
in their own NatureThings separateand distinctfrom the Person,they
will be moreproperlycomein underthe JuraRerum.VideSect.23, &c.
2dly,The CapacitythateveryPersonhas;whichis a PowerthattheLaw
variouslyassignsto Persons,accordingto the Varietyof certainConditions
whereintheyare,eitherTo Take,or To dispose.
(or Circumstances)
And underthisHead,we have,
First,The Capacitiesthemselves,whichareespeciallyTwo;
i. Capacitieswhicha Manhasin his own Right.
2. Capacities
whichhe hasin auterDroit,or another'sRight.
Now Capacitieswhicha Manhasin his own Right,areeither,
I. To acquireor take.
2. To alienor transfer.
And boththeseareeither,
I. Of ThingsPersonal.
2. Of Things Real.

The SecondKind of Capacitiesare in auterDroit,another'sRight; as,

Cestuique Use,&c.Whereofhereafter.
Executors,Corporations,
of Persons,with
Secondly,The variousConditions(or Circumstances)
Relationto thoseCapacities,consistingof,
I. Ability.
2.

Non-ability.

And all Personsare (presumed)in Law ablein eitherof thoseformer

Capacities(of Taking,Disposing),which by Law are not disabled:And
thosethatareso disabledcomeunderthe Title of Non-ability,thoughthat
Non-abilityis variousin its Extent,viz. To somemore,to someless (as in
the severalInstancesfollowing).
i. Aliens:Herecomesin the Learningof Aliens,as Naturalization,
Denization,&c.

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2. Attainted of Treason or Felony; here of Attainders.

3.
4.
5.
6.
7.
8.
9.

Personsoutlawed in Personal Actions.

Infants; here of the Non-ability of Infants.
Feme Coverts;there of their Disability.
Idiots and Lunatics; here of that Learning.
Personsunder some illegal Restraintof Force, as Duress, Maness.
Villeins; (now antiquated).
Bastards;and here of Legitimation.