law and science in seventeenth-century england

8/18/2019 Law and Science in Seventeenth-Century England

1/41

Stanford Law Review

Law and Science in Seventeenth-Century EnglandAuthor(s): Barbara J. ShapiroSource: Stanford Law Review, Vol. 21, No. 4 (Apr., 1969), pp. 727-766Published by: Stanford Law ReviewStable URL: http://www.jstor.org/stable/1227566

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2/41

Law

and

Science

in

Seventeenth-Century

England

Barbara

J. Shapiro*

It is a

remarkablerick

of

the

English language,

and

of

the

historical

development

f

legal

thought,

hat the

phrase

lawand science

tands

n

such

sharp

ontradistinction

o

the

phrase

legal

science.

Nineteenth-

nd

early

20th-century

awyers, eeking

o carveout an

intellectuallyegitimate

andautonomousiscipline f law,used he term egalsciencenot tosuggest

that

he lawwas

part

of

modern cientific

ulture,

ut

precisely

he

opposite.

They

meant

hat

aw

was

a science

ust

as

chemistry

was a

science,

nd

was

thus

entitled o

independent

xistence.

This

reasoning

estedon an

obsolete

definitionof

a scienceas

any

systematically

rganized

body

of

knowledge'

and

on

a failureto

acknowledge

hat

what

made

chemistry

or

physics

a

science

was not its

autonomously

rganized

knowledge

but

the

fact that

t

shared

with other

sciencesa

particular

methodof

investigation

nd

a

par-

ticular

mode

of

stating

results.

The

attempt

oisolateawfromscience

y

capturing

tsnamehas

argely

ceased,

but

the more

general

concern

hat

led

to

this

verbal

manipulation

continues.We still

hear

muchof

the

taught

radition

nd

of

legal

eason-

ing

as

somehow

distinct

romother

reasoning,

lmost

always

with

a

strong

undercurrentf

suggestion

hat

the

law's

common

ense s

and

should

be

set

apart

romscientific

easoning.

On

the

most

sophisticated

lane

hisview

is

to

be found

in

the

recent

writing

of

H.L.A.

Hart.2At

its

lowest

it is

seen

in

the

hostility

and

alarm

occasionally

xpressed

y

the

profession

t

the

incursionof mathematicalndsocial-scienceechniquesnto law.Indeed,

this

tension

between

cience

and law

either

ubsumes,

r

is

at

leasta

central

thread

of,

the

grand

struggle

between

analytical

urisprudence

n

the

one

hand

and

the

sociological

urists

and

judicial

ealists

n

the

other.

That de-

bate

very

frequently

omes

down to

the

question

of

whether

aw

is a

sep-

arable

ntellectual

enterprise

r

a

facet

of

general

ocial

hought

n

a

society

permeated

y

science.

It

is

surely

not

within

my

competence

s

an

historian

o

deal

frontally

with

these

grand ssues,

but

historical

ata

do

have a

certain

bearingupon

*

B.A.

I956,

U.C.L.A.;

M.A.

1958,

Ph.D.

1966,

Harvard

University.

Assistant

Professor

of

History,

Pitzer

College,

The

Claremont

Colleges.

I

wish to

thank the

Research

and

Development

Committee

of

Pitzer

College

for

facilitating

the

researchon

this

study.

Professor

Martin

Shapiro

of

the

School of

Social

Sciences,

University

of

Cali-

fornia,

Irvine,

has

commented

extensively

on the

draft of

this

Article.

I.

See

I R.

POUND,

URISPRUDENCE

-10

(I959).

2. See

H.

HART&

A.

HONORE,

AUSATION

N

THE

LAW

I959).

727


3/41

STANFORD LAW

REVIEW

them,

and

they

in turn

upon

the

study

of

history.

Legal history

s a

rather

peculiar

ield. It

is dominated

by

the

great Igth-

and

early

20th-century

schoolof historicalurists.3 hesemen werelawyers, ssentiallyoncerned

with

contributing

o an autonomous

iscipline

f

law

by

the

use

of

historical

methods.

n

spite

of

their

frequent

general

disclaimers

nd

their

very

real

interest

n the historical

nterrelationsf law

and

society,

he

impact

of

their

workhasbeen o

create

legal-history

hetto.

Particularly

n the

abbreviated

way

in

which

legal

history

reaches he law

student,

t

is

likely

to take

the

form of

tracing

he evolution

of the writs or

explaining

he

difference e-

tween

common aw and

equity.

This

tendency

s

strengthened

y

the

fact

that

much of the

great

work

of the

historical

urists

was

done

on

medieval

law and is of so littleimmediate elevance hat it becomes

part

of thecul-

tural

trimmings

ather han

the

heart

of

legal

instruction.

The failureof

historians

o

enterthe

field

seriously

n

any

numbers

has also contributed

to

the

transposition

f

legal

history

nto

the

history

of

law.4

By

and

large,

and

particularly

s

it

enters he

general

mode

of

thought

of

the

legal

profes-

sion,

legal

history

s

the

chronological

rrangement

f

the

various

devices,

ideas,

and

institutions

f

the

law

in

relation

o

one

another,

ather

han

the

study

of how

the

law

of

a

given

place

and

period

relates

o

the

rest

of

the

intellectual, ocial,andpolitical ife of thatperiod,andhow interrelations

in

one

period

compare

o

those n

another.The

general

mpression

mustbe

that

law,

by

some

inevitable

dynamic

of

its

own,

marches

eleologically

through

ime rom

trespasshrough

ase

o

negligence,

nd

from

contracto

quasi-contract

o

impliedwarranty.

hus

egal

history

has

tended o

support

that

sideof the

ongoing

debate

hat

emphasizes

he

autonomous

uality

of

legal

thought

and

institutions.A

legal

historical

scholarship

hat seeksto

understand

he

place

of law

within

each

period

of

history

s

well as

to follow

its

triumphant

march

hroughheeonsmightmake tpossibleoassesswith

greater

precision

he extent

to

which

legal

thought

s

or

ought

to

be inde-

pendent

of

other

modesof

inquiry

and

decisionmaking.5

The

study

of

scienceand law

in

17th-century

ngland

hat

follows

will

I

hope

illustrate

his

point.

Seventeenth-centuryngland

underwent

what

has

been

calleda

scientific

evolution.

This

revolution

was

not

confined o

a

narrow

ircle

of

professional

cientists. he

scientific

deas

associated

ith

the

names

Copernicus,

Galileo,

Newton,

and

Boyle

became

he

common

property,

nd

changed

the basic

modes of

thought,

of

the

entire

literate

communityof Englandandcertainly f the

community

of

gentlemen

o

3.

See

W.

FRIEDMANN,

EGAL

THEORY

135-49

(3d

ed.

1953);

P.

VINOGRADOFF,

UTLINE

OF

HIS-

TORICAL

JURISPRUDENCE

(1920-1922).

4.

For an

historian's

attempt

to

put

legal

thought

into

historical

context

see

D.

BOORSTIN,

HE

MYSTERIOUS

SCIENCE

OF

THE

LAW:

AN

ESSAY

ON

BLACKSTONE'S

COMMENTARIES

(I94I).

5.

That

such

a

scholarship

s

emerging

can be

seen

in

the

recent

work of

James

Willard

Hurst.

See

particularly

his LAW

AND

ECONOMIC

ROWTH:

HE

LEGAL

ISTORY

FTHE

LUMBER

NDUSTRY

N

WISCONSIN

1964).

[Vol.

21:

Page 727

28


4/41

LAW

AND SCIENCE

which

the

barristersnd

udges

belonged.

The

change

was

not

only

n

beliefs

about

he

natureof

the

physical

world,

but more

fundamentally

n

beliefs

aboutwhatmethodswerebest orfinding hetruth,howcertainmencould

be

about

he truths

hey

ound,

and

how

they

might

bestcommunicate

hose

truths

o

one

another.

Science

ameto

shape

men'sviews

of what was

and

wasnot

common

ense,

f

what

was andwasnot

well

argued,

nd

of

what

was

and

was

not assumed o

be true.

Thus

even if

English

aw

were

based

exclusively

n

a

taught

radition

f

commonsense

easoning,

much of

that

tradition

would

necessarily

e

dictated

by

the

scientificmodesof

thought

that

by

the end of

the

century

were

becoming

ommon o all

literate

Eng-

lishmen.

Weneed

not,

however,

ontentourselveswith

linking

science o

lawyers

by

way

of

the

general

category

of

gentlemen.

nstead t can

be demon-

strated

hat

several f

the

major egal

scholars nd

eaders f the barof

that

day

were

mmersedn

the new

science,

nd

that

these

men not

only

viewed

the

two

activities

as

compatible

ut

frequently

drew

on

the same

central

coreof

ideas or

both

their

egal

and

scientific

ursuits.

Perhaps

most

mportant

t

is

possible

o

demonstratehat two

major

n-

tellectual

developments

f the

I7th century

ccurred

lmost

imultaneously

in lawandscience.The firstwasthedrive orsystematicrrangementnd

presentation

f

existing

knowledge

nto

scientifically rganized

ategories.

This

concern or

systematization

s not

only

a

characteristicf

I7th-century

English

science,

but

is

also

reflected n

the first

comprehensive

nd

syste-

matic

treatises n

English

aw,

Sir

Matthew

Hale's

Analysis

of

Law'

and

History

and

Analysis

f

the

Common

Law.7

ndeed,

he

original

nspiration

for

this

Articlewas

my

reaction

o the

way

Hale's

reatises

re

usually

reated

as

the

first

systematic

ork

on

English

aw andthen

blithely

inked

o

Brac-

ton onone side andBlackstonen the otherasif legaltreatisesweresome-

how

independently

ated

to

move

from

the

obscurities

f

Littleton o

the

latest

legance

romWestor

Little

Brown.

Hale's

work

s

part

and

parcel

of

the

distinctly

17th-century

oncern

or

organized

and

simplified

presenta-

tion

n

which

he

participated

s

both

a

lawyer

and

a

scientist.

A

similar

point

could

be

madeabout

casebooks nd

court

eports,

which

are

usually

reated

as

purely

independent

developments.

They began

to

flourish

only

after

Bacon,

again

as

both

a

scientist

nd a

lawyer,

emphasized

he

need

for

the

careful

and

accurate

ollection

nd

correlation

f

data rom

which

generali-

zations

might

bedrawn.

The second

major

movement

of the

century

hared

by

law

and

science

was

the

concern

with

degrees

f

certainty,

r,

in

more

modern

terminology,

6. THE ANALYSIS OF

THE

LAW: BEING

A

SCHEME

OR

ABSTRACT

OF THE

SEVERAL

TITLES

AND

POR-

TIONS 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).

April

I969]

729


5/41

STANFORD LAW

REVIEW

probability.

here

was a

new

emphasis

n the

grading

of

evidence

n

scales

of

reliability

nd

probable

ruth.

n

science,

tatements

bout he real

world

becameprobabilisticypotheses.nlaw,anexaminationf thecredibilityf

witnessesand a concern or truth

beyond

a

reasonable

oubt

replaced

he

search or

absolute

ruth.Here

again

hereare

striking verlaps

etween

he

vocabulariesnd

methods ound

n

law

and scienceas

well

as an

overlap

n

the

actual

persons mploying

hese

notions.

Accordingly,

he first

part

of

thisArticlesketches

he

scientific

evolu-

tion

and its

effects

on

general

ntellectual

ife,

the secondconcerns he

in-

volvement

of

lawyers

n

scientific

activities,

he third describeshe

move-

ment

toward

ystematization

n

science

nd

aw andthefourth

he

develop-ment of

degrees

of

certainty.

I.

SCIENCEIN

SEVENTEENTH-CENTURY

NGLAND

A. The Nature

of

the

Revolution

In

the late

i6th

and

I7th

centuries,

urope

xperienced

scientific evo-

lution.

Although

the

ancient

and

medieval

precursors

f

the

developments

of

this

period

can

be

traced,

beginning

about

I550

there

was a

veryrapidaccelerationnmathematical

earning,

he elaboration

f

the

scientific

meth-

od,

and

the

accumulation

f

empirical

esults

derived

rom mathematical

and

scientific

nquiry.8

Nor

were

these

developments

he

product

of

a few

isolated

scientists,

or

during

this

period

an

increasing

proportion

f

the

intellectual

community

nlisted

tself

in

scientific

pursuits,

itheras

active

investigators

r

amateurs

f

the

new

learning.9

deas

nurtured

n the

scien-

tific

milieu

became

he

common

coin

of

intellectual

iscourse,

ven the dis-

courseof

those

who

at

first

glance

might

seem far

removed

rom

mathe-

maticsandexperimentation.

While in

biology

and

botany

he

revolution ook

the

form of

new find-

ings

and

classification,

omething good

deal

more

startling

ccurredn

the

realm

of

astronomy

nd

mechanics.

For

in

these

areas

he

medieval

con-

ceptions

were

rejected

and

new

ways

of

thinking

established

hat domi-

nated

inquiry

until

the 20th

century.

Not

only

were

fundamentally

ew

explanations

f

the

workings

of

the

natural

world

offered,

ut

a

whole

new

canon

of

scientific

nvestigation

s

well.

This

new

scientific

method

was

adopted

r at

leastaspiredo in fieldsof knowledge arbeyond hebound-

ariesof

astronomy

nd

mechanics.

The

revolution

is

most

clearly

seen

in

astronomy,

where

a

centuries-old

conception

f

the

cosmos

was

overthrown.

The

traditional

tolemaic

os-

8.

See M.

BOAS,

THE

SCIENTIFIC

RENAISSANCE

(1962);

H.

BUTTERFIELD,

HE

ORIGINS

OF

MODERN

SCIENCE

(1957);

A.

HALL,

FROM

GALILEO

TO

NEWTON

(1963);

A.

HALL,

THE

SCIENTIFIC

REVOLU-

TION

I500--800

(I954).

9.

See

Houghton,

The

English

Virtuouso in

the

Seventeenth

Century, 3

J.

HIST.

IDEAS

1

(1942).

[Vol.

21:

Page

727

30


6/41

LA

WAND SCIENCE

mos,

which

placed

man

firmly

at the

center of

the

universe,

conformed

well

with theocentric nd Christian otions

and

neatly

itted

the medieval

urge

towardhierarchy. oralltheemotional ndtheologicalatisfactionst pro-

duced,

however,

he

system

created

ncredible

difficultiesor

astronomers

who

sought

o

describe

t

mathematically.

n

the mid-i6th

century,Coper-

nicus

offeredhis

hypothesis

f the

central

position

of the

sunas a

solution

to

many

of

these mathematical

omplexities,

ut

not

until

astronomical

observations

n the

I7th century

eemed

o

verify

he

Copernican

ypoth-

esis

was its

impact

widely

felt. It

then

became

accepted

s

a

description

f

reality

ather han

simply

a

mathematical

onvenience.Once

the

earth

was

removed

from its

central

position,

it was no

longer

as

easy

to view the

cos-

mos in termsof God's

purpose

orman. Thustherevolutionn

astronomy

was more

than

simply

a

rejection

f

the

authority

f

the

Ptolemaic

ystem;

it

resulted

n a

majoradjustment

n man'sview of

his

place

and

purpose

n

the

universe.0

Although

advancementsn

the

area

of

mechanics

id

not affect he

lay-

man as

dramatically

s

the

verification

f

the

Copernican

ypothesis,

Gali-

leo's

mathematical

ormulations

f the

movement

f

terrestrial odies

were

also

mportant.

saac

Newton,

n

the

latter

portion

of

the

I7th

century,

om-

binedthe new celestialphysicsand the new terrestrialhysicsof Galileo

into a

single

system

that

again

provided

a

coherent view

of

the

cosmos.

This

view,

however,

ouldbe

understood

nly

by

mathematical

reasoning

and

scientific

observations. he

Newtonian

system

became

the

unques-

tionedbasis

of

European

ssumptions

bout

he

natureand

operation

f

the

cosmos.

The

important

hift in

intellectual

utlook

and

the

enormous

accom-

plishments

f

the

individual

ciences

hat

marked he

scientific

evolution

weremade

possible

at

least

partially y changesn attitudes. orscience o

develop

and

to

gain

some kind of

popular

acceptance

t

was

necessary

to

eliminate

he

mputation

f

superior

nd

final

knowledge

o

ancient

uthor-

ities and

to

substitute

he

notion

that

the

acceptance

r

rejection

of

state-

ments

concerning

natural

phenomena

must

depend

on

contemporary

reason nd

observation.

notion

of

the

possibility

f

an

increase

r

progress

in

knowledge

was

thus

requisite

o,

as

well as

an

outgrowth

of,

scientific

inquiry.

Concurrent

with

the

attack

on

traditional

authority

was an

attack

on

traditionalmethodsof

verifying

tatementsr

obtaining

ruth.The

virtuosi

rejected

ot

only

the

earlier

mphasis

n

metaphysics,

ut

also

he

deductive

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

(1956);

D.

STIMSON,

THE

GRADUAL

ACCEPTANCE

OF THE

COPERNICAN

THEORY

OF THE

UNIVERSE

(1917).

II.

There

were

major

advances

in

physiology,

medicine,

and

chemistry

as

well

as

in

astronomy

and

physics.

April I969]

73I


7/41

STANFORD

LAW REVIEW

method

by

which the

scholastics

ad

approached

ll

subject

matters.

Al-

though

he

virtuosi eached

o

consensus

n

the

proper

pproach

o

natural

phenomena,he concernwith methodwas an overriding ne in the I7th

century.

The

question

was

constantly

iscussed

nd

refined

untilat the

end

of

the

century

omething

ike

the modern

cientificmethodhad

emerged.12

One of

the

initially

most

popular

as

well as

powerful

attacks n

the

tra-

ditional

cholastic

method

was

that

of

Francis

Bacon.

Rejecting

he

deduc-

tive

approach,

Baconasserted

hat

once the

proper

cientificmethod

was

adopted

nowledge

ould

be

harnessedor

theuse of

society.

This

visionary

side

of

Baconhad

perhaps

reater

mpact

han

did the

radically

nductive

approach

hat

he

advocated.

acon

argued

hat

by

collecting

numerous

n-

stancesof the

particular,

eneralizations

ould

emerge.

This radicalem-

piricism

had its

limitations

and was

not

the method

finally

adoptedby

science;

yet

it was

one

of

the

streams

f

thought

hatcontributedo

the new

method.

The

other

side

of the

new

I7th-century

pproach

o

truthwas

provided

by

Rene

Descartes,

ne of

the

greatest

mathematiciansf

the

century,

whose

mathematization f

scientific

inquiry

made an

enormous

mpact

on

the

development

f

specific

ciences

s

well as

on

the

development

f

scientific

method. t is toosimpleto saythat the scientificmethod adoptedby the

virtuosi

was a

unionof

Bacon's

mpiricism

nd

Descartes'

ssentially

ogical

and

deductive

pproach

o

the

problem

f

knowledge,

but

clearly

both

the

observation

nd

collection

spects

f

the

former

and

the

hypothesizing

nd

theorizingaspects

f

the latter

were

essential

o

the new

method

and

were

often

practiced

n

combination

y

I7th-century

nvestigators.

By

the

end

of

the

I7th

century

hen,

traditional

iews

of the

cosmos

and

its

functioning

had

been

upset

and new

methods

of

determining

ruth

and

investigating

he

natural

worldhadreplacedhosethathadbeenaccepted

for

centuries.Even

though

there

was no

unanimous

agreement

on

the

newer

methodsand

epistemologies,

t

was

clear

hat

new

types

of

standards

were

accepted.

This

scientific

evolution

f

the

I7th

century

did

morethan

alter

men's

view

of

natural

phenomena:

t

resulted n

a

new set

of

philo-

sophical

propositions

bout he

nature

of

man

and

his

ability

o

know

the

world.

B.

The

Diffusionof

Scientific

Knowledge

Norwerethesenewviewstheexclusive ossessionf a smallorisolated

scientific

community.

Sixteenth-

nd

17th-century

cientists

did

not

think

of

themselves

s

a

closed

professional

ommunity.

Most

scientific

publica-

tions

were

directed

o the

general

reading

public.

Writers

ike

Bacon

and

12. See

R.

BLAKE,

C. DUCASSE

&

E.

MADDEN,

THEORIES

OF

SCIENTIFIC

METHOD:

THE

RENAISSANCE

THROUGH

THE

NINETEENTH

CENTURY

(1960).

[Vol.

21:

Page

727

32


8/41

LAW

AND

SCIENCE

Galileo

displayed

n

almost

missionary

eal

to

spread

he faith

of the

new

science nd

to

convey

heir

vision

of the

brighter

uture

o be

gained

hrough

man'snew understanding.Over io percentof the works published n

England

between

1475

and

I640

were

on scientific

ubjects,3

ndthe

ma-

jority

of

thesewere

written

n

the vernacularather han

Latin.Some

were

original

contributionso the

development

f

scientific

knowledge

while

others

were

designed

to

convince

he

ordinary

man of the

validity

and

utility

of

scientific

nowledge

and the

legitimacy

f scientific

ndeavor.

This

spate

of

general

publication

was reinforced

y

the

development

f

several

widespread

orrespondence

etworks

among

scientists,

number

of

which

resulted

n

the creation f

scientific

ournals.

The desire

o

reach

both broader omesticand

foreign

audiencesreated

linguistic

dilemma,

for

the

vernacular

as

obviously

etter

uited o

one andLatin

o the other.

As

a

resultthere

were

several

efforts o

createa

universal

anguage

with

which

to

communicate

cientific

nformation.14

Closely

associated

with

the desire

or

a

spread

of

scientific

knowledge

was

the

movement

oward

ystematization

nd

classificationf

knowledge.

Baconand

John

Wilkins,

proponents

f a

universal

anguage,

were

advo-

catesof

systematically

ollecting

scientific

nformation,

nd

Wilkins

was

largelyresponsibleor stimulatinghe creation f thegreatbiologicaland

botanical

lassifications

f

John

Ray

and

Francis

Willoughby.15

n

every

learned

discipline,

and

we

shall

find

law to

be no

exception,

here

was

a

strong

movement

oward

arranging

oth

concepts

and

data nto

some ra-

tional

ordering

hat

couldbe

easily

communicated

nd

fitted

nto

the ma-

terialsof

other

fieldsso

that

a

universal

knowledgemight

emerge.

In

the

scientific,

s in the

literary

world,

men

met

together

irst infor-

mally

and

then in

societies

nd

academieso

discuss

heir

findings

and

ex-

periments.

The most

important

f

these

was

theRoyalSocietyof London

which

received

ts

first

charter

n

1662

and

numbered

among

ts

members

not

only

men

making

important

cientific

contributions,

ut

gentlemen,

clergymen,

usinessmen,

nd

politicians

or

whom

scientific

iscussion

was

largely

a

diversion. n

addition

o

reporting

n

research

nd

undertaking

new

experiments,

he

Society

propagated

he

new

philosophy

o

the

wider

world.'6

13.

Stearns,

The

Scientific

Spirit

in

England

in

Early

Modern

Times,

34

Isis

297

(I943).

14.

See

Andrade,

The

Real

Character

of

Bishop

John

Wilkins,

I

ANNALS

SCI.

4

(I936);

Cohen,

On the Projectof UniversalCharacter,63 MIND49 (I954); DeMott, The Sourcesand

Development

of

John

Wilkins'

Philosophical

Language,

7 J.

ENG.

&

GERMANIC

HILOLOGY

,

8-9

(I958);

DeMott,

Comenius and

the Real

Character

in

England, 70

PROCEEDINGS

ODERN

LANGUAGE SS'N

I068

(I955);

Emery, lohn

Wilkins'

Universal

Language,

38

Isis

I74

(1948); Funke,

On the

Sources

of John

Wilkins'

Philosophical

Language, 40

ENG.

STUDIES

08

(1959).

15.

See

C.

RAVEN,

JOHN

RAY,

DEVOUT

NATURALIST

(I942); DeMott,

Science

Versus

Mnemonics,

48

Isis

3

(I957).

i6.

See

T.

BIRCH,

HE

HISTORYF

THE

ROYAL

OCIETY

1756);

H.

HARTLEY,

HE

ROYAL

O-

CIETY:TS

ORIGINS ND

FOUNDERS

I960);

H.

LYONS,

HE

ROYAL

OCIETY

1660--940

(I944);

M.

PURVER,

THE

ROYAL

SOCIETY:

CONCEPT

AND

CREATION

(I967);

M.

PURVER

&

E.

BOWEN,

THE

BEGIN-

April I969]

733


9/41

STANFORD LAW

REVIEW

The

composition

f

the

scientific

ommunity

n

England

was

extremely

diverse-socially,

economically,

nd

religiously.

Science

n the i6th

and

I7thcenturieswas often an avocation atherhana profession.Widespread

but

frequentlyperipheral

cientific

nteresthad been made

possible

by

an

educational

ystem

n

which more

people

were

receiving

nstruction

han

at

any

earlier

period

or thanwould

again

until

well

into

the

20th

century.7

New

chairsof

mathematics

nd

astronomy

were

established

t

Oxford.

Most

of

the famedscientists f

the

century

wereeducated

n the

universities

and

several eld

administrativer

academic

osts

at some

ime

during

heir

careers.18

ciencewas also

taught

n

nonuniversity ettings,

he most

im-

portantbeing

Gresham

College

in

London.19 hus scientific

knowledge

was

available o

most

gentlemen

and indeed o

many

who

couldnot

quite

claim

that

title.The

Royal

Society

boasted

an

equal

balance

of all

profes-

sions

. .

.

,20

and

by

the Restoration

period,

science

was

widely recog-

nized to

be

part

of

that

general

culture hat a

gentleman

was

expected

o

possess.

Yet

science nvolvedmorethan

a

pleasant

obby,

or

its modeof

opera-

tion,

its

methodological

oncerns,

and

its

general

approach

o

empirical

problems

ffected ll

modesof

thought.

Even he

most

cursory

xamination

of I7th-centuryeligion,iterature,hilosophy, ndsocial hought ndicates

how much

the intellectual

lasses

had

absorbedhe

scientific

deology.

Cer-

tainly

philosophy

was

affected

y

the

scientific

evolution;

n one

sense he

scientific

evolution

meant he

victory

of

the

new

philosophy.

he

names

Bacon,

Descartes,

nd

Locke

wereas

important

or

philosophy

s

they

were

for

science.

n

fact,

the

distinction

etween

philosophy

nd

science

was

not

clear-rationalistand

empiricist

heories

were not

only

the basis

of

I7th-

century

epistemology

ut

of the

scientific

method

as

well.21

Socialand politicalthought,too, cameunder the swayof the new

philosophy.

Hobbes'

discussion f

politics

n

the

Leviathan

would

have

been

virtually

nconceivable

rior

o

the

I7th

century.

His

aim

was

to

create

a

scientifically

ccurate

escription

nd

analysis

f social

and

political

be-

havior.

Locke

attempted

o

define

he

reality

of

political

ife

and

organiza-

tion

by

rejecting

divine and

authoritative

principles.

Natural

aw,

though

hardly

a

novel

conception

n

European hought,

moved

to

the

center

of

political

analysis

nd

was

then

gradually

ransformed

rom

a

religious

o

a

NING OF THE

ROYAL

SOCIETY

(1960);

T.

SPRAT,

THE

HISTORY

OF

THE

ROYAL

SOCIETY OF LONDON

(1667);

D.

STIMSON,

SCIENTISTS AND

AMATEURS

(1948);

C.

WELD,

A

HISTORY

OF THE

ROYAL

SOCIETY

(1848).

I7.

See

Stone,

The

Educational

Revolution

n

England

I540-1640,

28

PAST

&

PRESENT

1

(I964).

I8.

See

M.

CURTIS,

XFORD

ND

CAMBRIDGEN

TRANSITION

558-I642

(I959);

C.

HILL,

NTEL-

LECTUAL

RIGINSF

THE

ENGLISH

EVOLUTION

01-14

(I965); Allen,

Scientific

Studies

in

the

English

Universities

of

the

Seventeenth

Century,

Io

J.

HIST.

DEAS

19

(1948).

19.

See

Johnson,

Gresham

College:

Precursor

of

the

Royal

Society,

I

J.

HIST.

DEAS

13

(I940);

Kearney,

Puritanism,

Capitalism

and

the

Scientific

Revolution,

28 PAST

&

PRESENT

i-86

(I964).

20. T.

SPRAT,

upra

note

I6,

at

66.

21. See

5

THE

NEW

CAMBRIDGE

MODERN

ISTORY

7-95

(I96I).

[Vol.

2I:

Page

727

34


10/41

LA

WAND SCIENCE

more

secular

nd scientific

onceptual

ramework

hat

sought

o deal

with

the

universal

egularities

f

men

in

societies

s othersdealtwith

the

regu-

larities f physicalnature.

A

number

of recent

tudies

have

persuasively

emonstrated

he

impact

of

science

upon

17th-century

iterature.22he

new science

seems

to

have

had

a

markedeffect

n

simplifying

English

prose style

and

to

have

con-

tributed o the ultimate

victory

of

prose

over

poetry

as

the

general

vehicle

for the

presentation

f

seriousdiscourse.New

astronomical nd

geographi-

cal

discoveries

providedsubject

matter

for

literary

speculation

n

such

works

as

More's

Utopia

and

Shakespeare's

he

Tempest,3

and

such

liter-

ary

men

as

Bacon,

Raleigh,Sprat,

Pepys,Cowley,

Glanvill,

Evelyn,

and

Dryden

wereassociatedwith scientific ircles.

John

Wilkins,

who is best

known

among

iterary

historiansor

his

contributiono

the

simplification

of

prose

style,

used that

style

to

popularize

Copernican

stronomy.24

Perhaps

he

most

striking

eature

of

17th-century

cience

s

that,

while

representing

very

fundamental

lteration f

our world

view and

perme-

ating

every

aspect

of

intellectual

ife,

it

was

so

rapidly

and

generally

ac-

cepted

n a

nation hat

was

subject

o

grave

religious

nd

political

actional-

ism.

Neither

Anglicans

nor

Puritans-the

two

major

religious-political

groupings-expressedealhostility o the newphilosophy. 25 view of

scienceas

the

study

of

one of

God's two

great

books-nature

(the

other

being

scripture)-was

extremely

mportant

n

making

cientific

ursuits

c-

ceptable

to

society

at

large.26

The

virtuosi

believed

that

God

worked

in

22.

See

H.

BAKER,

THE

WARS OF TRUTH

(1952);

C.

DUNCAN,

THE NEW

SCIENCE

AND

ENGLISH

LITERATURE

IN

THE

CLASSICAL

PERIOD

(1913);

K.

HAMILTON,

THE

TWO

HARMONIES:

POETRY

AND

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. WIL-

LEY,

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

MODERN

ANGUAGES

.

179-87,

279-90

(I946); Jones,

Science and

English

Prose

Style

in

the

Third

Quarter

of

the

Seventeenth

Century,

44

PROCEEDINGS

MODERN

LANGUAGE

ASS'N

977

(I930).

25.

There

has been

a

lively

controversy

concerning

the

influence

of

Puritanism

on

the

scientific

movement.

See

M.

CURTIS,

upra

note

I8;

L.

FEUER,

THE

SCIENTIFIC

NTELLECTUAL

(1963);

C.

HILL,

supra

note

I8;

P.

KOCHER,

SCIENCE

AND

RELIGION

IN

ELIZABETHAN

ENGLAND

(1953);

R.

JONES,

THE

SEVENTEENTH

ENTURY

1951);

Carroll,

Merton's

Thesis

on

English

Science,

13

AM.

J.

ECON.

&

SO-

CIOLOGY

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

OSIRIS

360

(I938); Merton,

Puritanism, Pietism, and Science, 28 SOCIOLOGICALEV. 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

&

PRESENT

II

(I965); Rabb,

Puritanism

and the

Rise

of

Experimen-

tal

Science

in

England,

7

CAHIERS

'HISTOIREMONDIALE

6

(

962);

Rosen,

Left

Wing

Puritanism

and

Science,

1944

BULL.

INST. HIST.

MEDICINE

75;

Shapiro,

Latitudinarianism

and

Science

in

Seventeenth

Century

England,

40

PAST

&

PRESENT

6

(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

CEN-

TURY

ENGLAND

(1958).

April

I969]

735


11/41

STANFORD

LAW

REVIEW

orderly

ways

and

that man

might

to some

extentdiscern

hese

ways.

They

were

thus able

to

incorporate

he

traditional

oncepts

of

Providence

nd

naturalaw intothe scientificnvestigationf nature.As the centurypro-

gressed,

God

was

gradually

urned

nto little

more han a first

cause,

which

set

the

original

mechanism n

motion. The

secondary

auses

hat

subse-

quently

moved

the world

could be the

subject

f

strictly

cientific

nquiry

without

theological

disturbance. he

scientific

approach

o

philosophical

and

natural

problems

was not

only compatible

with but

also

directly

af-

fected

religious

culture.

The

virtuosihad

developed

a

canon

of

scientific

disputation

hat

stressed

entative,

nondogmatic

tatement,

he full

ex-

change

of all

relevant

heoriesand

data,

and the

suspension

f

judgment

where

proofs

wereinsufficient.

hey

sought,

with some

success,

o

carry

this

canonover nto

the

religious

ealm,

and

the

work of

the

scientists

was

a

major

component

f the

liberalization

f

religion

hat

came

to be

called

latitudinarianism.27

II.

LAWYERSAND

SCIENCE

Law,

ike

religion,

philosophy,

nd

literature,

as

touched

by

the scien-

tific

revolution.We

have

already

noted

the

pivotal

role

of

Sir

Francis

Ba-

con,

a

central

igure

n

the

revolution

nd

also

one

of the

leading

awyers

and

jurists

of his

day.

Bacon's

ontribution

o the

scientific

movement

and

his

inspirational

ole

n

the

founding

of

the

Royal

Society

are

well

known;

however,

he

connection

etweenhis

leadership

n

scienceandhis

contribu-

tions to

the

legal

profession

nd

jurisprudential

riting

is not

frequently

noted.

Bacon

was,

of

course,

lawyer

by training

and

profession.

He

rose

n

turn to

the

posts

of

Solicitor

General,

Attorney

General,

and

finally

Lord

Chancellor.His

scientific

nterests,

ike

thoseof

the

typical

virtuosiof

the

century,were, nitiallyat least,simplyanavocation.

Bacon's

ontributions

o

legal

thought

were

closely

connectedwith

his

scientific

views.

His

approach

oward

both

law

and

naturewas

inductive,

for

he

argued

hat

one

should

keep

close to

the

particulars

f

each.

The

source

f

legal

generalizations

hould

be

statutes

nd

court

cases

ather

han

deductive

easoning.28

oreover,

eneralizations

hould

not

be

of

the

high-

est

order,

uch as

statements

escribing

he

nature

of

justice,

but

those of

the

middle

order,

or

these

were

more

productive

n

both

natural

cience

and the law. This inductiveapproach o legal maximswas novel, and

Bacon

himself

thought

t a

new and

distinctive

ath.

He

advocated

he

ap-

27.

See

Shapiro,supra

note

25.

28.

In

1623

Bacon

wrote

that

generalizations

should

be

gathered

rom

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,

n

5

WORKS

F

FRANCIS

ACON

05

(J.

Spedding,

R. Ellis

&

D.

Heath

eds.

1857).

The

inductive theme

is

also

present

in

Bacon's

Maxims

of

the

Law,

in

7

id. at

320.

736

[Vol.

21:

Page

727


12/41

LA

WAND

SCIENCE

proach

becausehe believed t

would

yield

practical

esults

n law

as

well

as

science;

utilitarianism as

never ar

from

his

mind.

Through ystematic

analysisBaconhopedto make awinto a useful rational cience. He ex-

pressed

he

commonview that

law shouldbe in

conformity

with

nature

and

reason,

and to

him,

naturehad a scientific

as well

as

traditional

nd

moral

connotation. or

Bacon

hen,

the

similarities etween aw and

natu-

ral

science

were

not

coincidental.

He insisted hat

the

proper

method

of

gaining

knowledge

was the

same or

all areas

of

inquiry

and

that

law

was

simply

one

branchof

knowledge.29

Bacon

was

not

the

only

prominent

egal

personage

o

become

associated

with

the

scientific

movement.

Although

Edward

Coke

and

John

Selden

were

more

mmersedn

and

influenced

y

the

new

interest

n

history, hey

too

were

not

immune

to

the

scientific

developments

f the

day.

Coke's

i-

brary

contained

a

great

many

books

by prominent

Elizabethan

cientists,

and

Selden

was an

enthusiastic

upporter

f

the

new

astronomy

nd

of

Samuel

Hartlib's

and

John

Dury's

effort

to

instill Comenian

deasof

sci-

entific

and

educational

eform

n

England.30

here

were

many

opportuni-

ties

for

lawyers

nd

would-be

awyers

o

discover he

new

science.

Not

only

werea

very

considerable

roportion

f

the books

published

n the

I7th

cen-

turydevoted o scientificubjects, uttheInnsof Courtwereconveniently

locatednear

the

Royal

College

of

Physicians,

he

Society

of

Apothecaries,

and

Gresham

College,

he

center

of London

scientific

activity,

where sci-

entific

ectures

ould

be heard

during

the law

terms

and

where the

Royal

Society

tself

met

for

several

ears.

A

recent

tudy

of

the

Inns of Court

has

pointed

out that if

the

numerous ons

of the

gentry

did

not

obtain

a

very

good

legal

education n

the

courseof

their

stay

at the

Inns,

they

did

use

their

ample

eisure

ime

for

other

kinds

of

extracurricular

ducational

p-

portunities.A fairlysubstantialortionof theupperclasseswereexposed

to

most

of

the

fashionable

ursuits

of

the

day.

These

included

not

only

sermon and

theater

attendance,

but

the

study

of

anatomy,

astronomy,

geography,

istory,

mathematics,

heology,

and

foreign

anguages.31

hus

those

who

would

actually

nter

the

legal

profession,

s

well

as those

who

simply

used

the

Inns as

a

fashionable

lub,

were

familiar

with

the

sub-

stantial

cientific

ctivities

nd

literature

f

the

day.

The

point

is

not

that

all

these

men

were

necessarily

ngaged

n

scientific

ursuits,

ut

that

a

cer-

tain

amountof

familiarity

nd

knowledge

could

be

expected

of

a

youngman who wanted to cut a

fashionable

igure

in

society.

The

legal

profession's

articipation

n

the

scientific

movement

s

also

29.

See

Kocher,

Francis

Bacon

on

the

Science

of

Jurisprudence,

8

J.

HIST.

DEAS

(I957).

30.

C.

HILL,

upra

note

I8,

at

Ioo,

149,

I74.

The

followers

of

Amos

Comenius

hoped

that

through

pansophia-a

combination

of

universal

knowledge,

universal

education,

and

a

universal

language--

society might

be

reformed

and

universal

peace

attained.

31.

See

id. at

60

n.5,

6I-62;

Prest,

Legal

Education

of

the

Gentry

at

the Inns

of

Court,

1560-1640,

38

PAST

&PRESENT

0,

38-39 (I968).

April

I969]

737


13/41

STANFORD LAW

REVIEW

shown

by

lawyers'

nd

judges'

nvolvement

n the

founding

of the

Royal

Societyshortly

after

the

Restoration.

ohn

Aubrey

even

noted

that

the

first beginning of the Royal Society (where they put discourse in paper

and

brought

to

use)

was in

the

Chamberof William

Ball

[a

contemporary

jurist]

in

the

Middle

Temple. 32

Sir

John

Hoskyns,

a

well-known

lawyer

and a

Master

n

Chancery,

was

one

of the

original

members.

Hoskyns

was

a

close

friend of

John

Aubrey

and

John

Evelyn,

who

thought

him a

most

learned

virtuosoas well

as a

lawyer. 33

n

fact,

he

became

o far an

adept

at

philosophy

and

experiments

hat the

Society

at

last

advanced

him

to

be their

President. 34 or was

Hoskyns

the

only

member of

the

legal

pro-

fession

to

serveas

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.35 ir

Robert

Atkyns,

one

of

the

most

learned

lawyers

of

his

time,

joined

the

group

in

I664.

He

later

became

a

Justice

of

Common

Pleas

and

Chief Baron of

the

Exchequer.

SeveralLord

Chancellors,

among

them

Ed-

ward,

Earl of

Manchester,

Edward

Hyde,

Earl of

Clarendon,

Anthony

Ashley

Cooper,

Earl

of

Shaftsbury

and

Lord

John

Somers

were

members.

Although

Clarendon

was not

active,

Lord

Shaftsbury,

the

patron

of

John

Locke, took a leadingpartin the Society'saffairs.Lord Somers,an eminent

lawyer

and

politician

whose

career

ncluded

the

posts

of

Solicitor

General,

Attorney

General,

and

Lord

Keeper

as

well

as

Lord

Chancellor,

was

active

in

literary

and

scientific as

well as

legal

and

political

circles

and

served

for

a

time

as

President

of

the

Royal

Society.36

Sir

Geoffrey Gilbert,

another

leading

figure

in

the

legal

profession

during

the

late

I7th

and

early

i8th

centuries,

ike

Somers,

combined

an

outstanding legal

career

with

scientific

interests.

Gilbert

was

not

only

Chief

Baron of

the

Exchequer

and

the au-

thor of numerouslegal treatises,several of which were publishedwell into

the

Igth

century,

but

was

almost

as

famous

for

his

mathematical

accom-

plishments

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.38

Sir

Thomas

Trevor

became

a

32.

2

J.

AUBREY,

BRIEF

LIVES

322

(1898).

Thomas

Sprat,

the

first

historian

of the

Society,praisedthe legal professionand notedthat manyJudgesand Counsellorsof all

Ages

were ornamentsof the

Sciences,

as

well

as of

the

Bar,

and

Courts

of

Justice.

T.

SPRAT,

upra

note

I6,

at

66. See

also id.

at

144-45.

33.

27

DICTIONARY

F

NATIONAL

IOGRAPHY

99

(L.

Stephen

&

S.

Lee

eds.

189I).

34.

R.

NORTH,

THE

LIFE

OF

FRANCIS

NORTH,

LORD

GUILDFORD

284

(I742).

35.

42

DICTIONARY

F

NATIONAL

IOGRAPHY

63

(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

URIDICA

01

(I870).

38.

Id.

at

385-86.

738 [Vol.

21:

Page

727


14/41

April

I969]

LAW

AND

SCIENCE

739

member

in

I707

while

serving

as Chief

Justice

of

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

be-

came a

well-known

astronomer

and

President

of

the

Royal Society.39

Other

judicial

figures

who

were

members of

the

Society

included

Thomas

Bury,

Justice

of Common

Pleas,

Baron and Chief

Baron

of

the

Exchequer;

John

Forescue

Aland,

Justice

of

Common

Pleas,

and

King's

Bench,

and

Baron

of

the

Exchequer;

Sir

Thomas

Burnet,

Judge

of

Common

Pleas;

Sir

Littleton

Powis,

Justice

of

King's

Bench and

Baron of the

Exchequer;

William

Lee,

Justice

and

Chief

Justice

of

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

prob-

ably

some

acquaintance

with

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

discuss

scientific

topics

of

mutual

interest,

he

was a

most

knowing

and

ingenious

person,

and

very

skillful in

Music,

painting,

the

new

philosophy

and

Political

studies. 40

His

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 becameinvolved in a scientificdisputewith his judicialcolleague,

Sir

Matthew

Hale,

over

Hale's

views

on

the

gravitation

of

fluids.

Dissatis-

faction

with

Hale's

ideas

led

him to

investigate

the

field

of

hydrostatics

more

thoroughly.

The

results of

North's

study

were

published

in

the So-

39. 43

DICTIONARYF

NATIONAL

IOGRAPHY

35,

282

(L.

Stephen

&

S.

Lee

eds.

I89I).

40. J.

EVELYN,

IARY,

AN.

3,

I682/3

(I955).

41.

R.

NORTH,

upra

note

34,

at

13,

284.


15/41

STANFORD LAW

REVIEW

ciety's

Philosophical

Transactionsnd

gained

he

approval

f

Robert

Boyle

and

John

Ray

who

later

pursued

he

problem.42

Northwasalso muchaffected ythediscoveries, hichfell in thecon-

sequences

of

the

torricellian

xperiment;whereby

a

new world of

air,

compressing

verything

t

touches,

s

revealed. 43s

a

result he

became

interested

n

the

possibilities

f

using

changes

n the volume

of

mercury

o

predict

changes

n

the

weather.

North

quickly

saw

the

commercial

pos-

sibilities

f

the

mercury

arometer nd

became

nvolved n its

manufacture

and

sale.

North

cultivated

he

friendship

of

scientists,

particularly

he

astron-

omer

John

Flamstead.His

interest n

Flamstead's bservations

ecame o

great

that North

eventually

btained

a

good

benefice or him so

that

he

might

continue

his

scientific

work without

financial

hardship.45

Several

of

North's

close

professional

associates

hared his

scientific

interests.

We

have

already

mentioned

Sir

John

Hoskyns.

Another,

Mr.

John

Werden,

who

lived in

the

Temple,

was ar

gone

in

the

Mystery

f

Alge-

bra and

Mathematics. 46

r. William

Ball,

virtuoso

cquaintance

n

the

Temple,

whose

rooms

were

frequently

used as

a

meeting

place

for

the

Royal

Society

n

its

earliest

period,

was

also

a

close friend

of

North's.47

North'sbrother,Roger,himselfa prominentawyer,alsowasinvolved n

scientific

work and

recommended

he

study

of

mathematics nd

natural

philosophy

o

members f his

profession.

He

felt

that

the

study

of

the law

should

not

be undertaken

n

a

vacuumand

thought

t

a

vast

advantage

o

be not

only

a

common

awyer,

but

a

general

cholar. 48

III.

THE

CONCERN

OR

SYSTEMIZATION:

IR

MATTHEW

ALE

AND

THE

SCIENTIFIC

STUDY OF

LAW

We have alreadyexamined he

urge

toward

popularization

nd the

interest

n a

universal

anguage

among

I7th-century

cientists.

tated

more

broadly,

a

major

thrustof

intellectual

ife in

this

period

was

toward

he

systematic

rganization

nd

presentation

f

the

whole

of

human

knowl-

edge

in

such

a

way

as to

make t

availableo

all

literate

men.

It

still

seemed

possible

t

this

time

to

describe

very

branch

f

knowledge

n a

way

under-

standable

o

laymen

and

then to

relate

every

part

to

every

other

by

some

system

of

master

concepts,

o

that

the

ideal

of

universal

knowledgemight

be attained.Symptomsof this movementcan be found in the constant

stream

of

popularizing

exts

by

even

the

greatest

cientific

minds,

such

as

42.

Id. at

292.

43.

Id.

at

295.

44-

Id.

at

294-95.

45.

Id.

at

286-87.

46.

Id.

at

285.

47.

Id.

48.

R.

NORTH,

A

DISCOURSE ON

THE

STUDY OF

LAWS

9 (1824).

[Vol.

2i:

Page

727

40


16/41

LAW AND SCIENCE

Galileo,

and

by

the enormous

energy

spent

on international

cientific

communication

nd

the

correlation

f such

correspondence,

nd in

the

effortsof the Comenianso createan internationalommunityof learned

men

who would

share

a basic und of

information

rganizedaccording

o

a

common et of

concepts

nd

categories.

t is

expressed

y

actions

as

small

as the

attempt

f

the virtuosimarooned

t Oxford

by

the CivilWar

to

con-

structa

subject

ndex

or

the

books n

the

Bodleian

Library

nd

as

grand

as

the

universal lassification

f

human

knowledgeattempted

y

John

Wil-

kins and his

associates

f the

Royal

Society.

n law

the

movement

can

be

seen

most

clearly

n

the works

of Sir

Matthew

Hale,

after

Bacon

hemost

scientific

urist

hat

England

hasseen.49

Hale,

the

greatest awyer

of his

day

and themodel

I7th-century

udge,

was,

like

North,

engrossed

n the scientificdiscoveries f

the

period.

Al-

though

he never

becamea

memberof

the

Royal

Society,

Hale was

a

close

friendof its

chief

founder,John

Wilkins,

and numbered

many

of its

mem-

bersas

intimates.While it is unclear

whether

Hale

took

advantage

f

the

scientific

opportunities

vailableat the

university,

he

may

have

become

interested n the new

philosophy

at

Magdalene

Hall,

Oxford,

where

he

studied

at

aboutthe

same

time

Wilkins

picked

up

his

early

scientific n-

terest.Duringthe courseof his residence t Lincoln's nnhe becamevery

interestedn

mathematicalnd

scientific tudies.

Beginning

with

arithmetic

he went

on

to

Algebra

oth

Speciosa

nd

Numerosaand

through

all

the

other

Mathematical

ciences . .

,

becoming very

conversant

n Philo-

sophical

Learning

nd in

all

the curious

Experiments,

nd

rare

Discoveries

of

this

Age

....

50

He collectedscientific

books

and

instruments nd

performed

many

experiments,

o

recreate

imself

when

he tired

of

his

legal

studies.51 ale also

developed

onsiderable

nterestand skill

in

anat-

omy

and

medicine,

he latter

o such

an extent

that a

physicianndicated

that he had

gone

as

far

in

the

study

of

medicineas

Speculation

ithout

Practice ould

carry

him. 52

Hale

contributedeveral

olumes o

the

growing

body

of

scientific

nd

semiscientific

iterature.n

I673

he

published

n

Essay

ouching

he

Gravi-

tation

of

Fluid

Bodies,

and the

following

year

Difficiles

Nugae:

or

Obser-

vations

ouching

he

Torricellian

xperiment.

When

Henry

More

rejected

the

views

presented

n

this

latter

work,

Hale

replied

with

Observations

touching

he

Principles f

Natural

Motions,

and

especially

ouching

Rar-

efactionand Condensation.3 lthoughthesevolumes howan awareness

49.

See W.

HOLDSWORTH,

OME

MAKERSF

ENGLISH

AW

36,

I44

(1938).

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

HALE

243 (I835).

Among

the

numerous

books

and

manuscripts

Hale

bequeathed

to

Lincoln's

Inn

was a

collection of

mathematical and

scientific

works.

See

G.

BURNET,

upra

note

50,

at

15-16,

117-23.

52.

G.

BURNET,

upra

note

50,

at

27.

53- (1677.)

April

I969]

74I


17/41

STANFORD LAW REVIEW

of

the

current cientific

iterature

nd

controversies,

hey

were

somewhat

old-fashioned

nd

failed

to

makea

serious ontribution

o the

development

of scientifichought.Theydo, however, xhibita sensitivityo somemajor

problems

of

scientific

philosophy

and

method.

For

example,

Hale

dis-

tinguished

wo

approaches

o

finding

scientific

ruth.The

first

begins

with

observations f

the

senses,

proceeds

o

experimentation,

nd ends

by

con-

structing

heorems

o

explain

he

experimental

esults.

The

secondwas

de-

ductive.Its foundation

ay

in

speculation

nd

its followers

manipulated

natural

phenomena

n

accordancewith

their

hypotheses.

Hale

himself

favored he

inductive

approach

ecause e felt that

practitioners

f

the

de-

ductive

method

ended o

distort

he data

to

fit

their

hypotheses.54

e

was

not,

however,

a naive

empiricist

nd was

particularly

riticalof

empirics

in

the

field

of

medicine.

Although

the

distinction

between hese two

ap-

proaches

was not

highly

original,

Hale did

provide

he first

detailed

at-

tempt

to

describe

he mental

processes

nd

procedures

equired

or inven-

tion

and

discovery.55

Hale was

sensitive o

the

scientific

community's

emandfor

a

clear,

uncomplicated,

nadorned

tyle.

Like the

membersof

the

Royal

Society,

he

insisted

hat

eloquence

and

wit be

used

sparingly

f at

all in the

com-

municationof seriousmatters.He therefore pposed loquenceandrhet-

oric

at the

baror

on

the benchand

insisted hat

such

anguage

would con-

fuse and

corrupt

uries

by

bribing

heir

Fancies,

and

biassing

heir

Affec-

tions

.

.

. 56 As a

judge

he held

those

that

Pleaded

before

him

to

.

..

the main

Hinge

of

the

Business,

nd

cut

them short

when

they

strayed

from

the main

point.57

He

detested

iolent

anguage

not

only

in

the

court-

roombut

everywhere.

ounding

ike an

echo

of

the

credoof

the

Royal

So-

ciety,

he insisted hat

you

must

not

speak

hat

as

upon

knowledge

which

youhavebyconjectureropiniononly, andthat t wasnecessaryo think

before

speaking

and to

present

one's

views in

significant,

ertinent,

and

inoffensive

xpression.58

Hale's

conduct

on

the

bench,

then,

seemsto

be

directly

related

o

his

scientific

tudies.

But the

linkage

s far

more

extensive

nd

important

han

that,

or

his

considerable

ontributions

o

English

urisprudence

re

marked

by

an

approach

istinctly

n

accord

with

the

best

canons

of

theorizing

and

54.

M.

HALE,

OBSERVATIONS

OUCHINGTHE

PRINCIPLES

OF

NATURAL

MOTIONS

reface

(I677).

See

also

M.

HALE,

DIFFICILES

NUGAE

6

(1674);

J. WILLIAMS,

upra

note

51,

at

179.

55. See Hodgen, Sir Matthew Hale and th

law and science in seventeenth-century england

Documents