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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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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
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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
8/18/2019 Law and Science in Seventeenth-Century England
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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
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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.
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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.
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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).
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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-
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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).
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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).
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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
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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
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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.
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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.
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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).
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40
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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.)
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I969]
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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