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The Concept “Fact”: Legal Origins and Cultural Diffusion*

Published online by Cambridge University Press:  11 July 2014

Barbara Shapiro
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Facts are something we take for granted, at least most of the time. As ordinary individuals we assume that there are knowable facts, for instance, that the dog chewed the drapes, that England exists, that it rained yesterday, or that babies cry. If, as scholars, that is as historians, social scientists, and natural scientists, we are more aware of the problematical nature of “facts” we nevertheless tend to establish and use facts rather unselfconsciously in our work. On this occasion I want to look at the evolution of the concept of “fact,” and in particular the way “fact” entered English natural philosophy. I will attempt to show that the concept of “fact” or “matter of fact,” so prominent in the English empirical tradition, is an adaptation or borrowing from another discipline—jurisprudence, and that many of the assumptions and much of the technology of fact-finding in law were carried over into the experimental science of the seventeenth century.

My paper has three parts. The first discusses the nature of legal facts and fact-finding in the early modern period, focusing on the distinction between “matters of fact” and “matters of law,” the emphasis on first hand testimony by credible witnesses, the preference for direct testimony over inference, and legal efforts to create and maintain impartial proceedings. The second portion attempts to show how legal methods and assumptions were adopted by early modern historiographers and other fact-oriented reporters. The third section attempts to show how the legally constructed concept of “fact” or “matter of fact” was transferred to natural history and natural philosophy and generalized in Locke's empirical philosophy.

Type
Research Article
Information
Albion , Volume 26 , Issue 1 , Spring 1994 , pp. 1 - 25
Copyright
Copyright © North American Conference on British Studies 1994

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Footnotes

*

Presidential Address given at the annual meeting of the North American Conference on British Studies, Montreal, Quebec, October 1993.

References

1 For a quite different discussion see Shapiro, Barbara, “Law and Science in Seventeenth Century England,” Stanford Law Review 21 (1969): 727–66CrossRefGoogle Scholar.

2 The rationalization of evidence was perhaps the single most important change in later medieval law. See Caenegem, R. C., “The History of European Civil Procedure,” Encyclopedia of Comparative Law 16 (Tubingen, 1972): 12Google Scholar.

3 See Barbara Shapiro, “Classical Rhetoric and the Anglo-American Criminal Law of Evidence,” conference paper American Society for Legal History, October 29-31, 1992, Yale University.

4 The distinction is summarized in the civil law proverb, “You give me the facts, I give you the law” (Da mihi facto dabo tibi ius) and in the numerous procedural manuals which developed from the twelfth century onward.

5 See Arnold, Morris S., “Law and Fact in the Medieval Jury Trial: Out of Sight, Out of Mind,” American Journal of Legal History 18 (1974): 268–80CrossRefGoogle Scholar. Milsom, F. F. C., “Law and Fact in Legal Development,” University of Toronto Law Review 17 (1969): 1–19Google Scholar; Lee, Jerome, “The Law-Fact Distinction: From Trial by Ordeal to Trial by Jury,” AIPLA Quarterly Journal 12 (1984): 288–94Google Scholar. Plucknett, T., Concise History of the Common Law (3rd ed.; London, 1940), pp. 369–70Google Scholar; Thayer, James Bradley, Preliminary Treatise on Evidence at the Common Law (1898; repr. New York, 1969), pp. 183–261Google Scholar.

6 Thayer, , A Preliminary Treatise on Evidence, pp. 182–85, 195Google Scholar. See also pp. 185–200. See also Guiliani, Alessandro, “The Influence of Rhetoric on the Law of Evidence and Pleading,” Juridical Review 62 (1969): 217Google Scholar. The terms “matter of fact or “choses en fait” do not appear in dictionaries of Law-French or in early English law dictionaries. See F. O., Law French Dictionary, (2nd ed.; London, 1718)Google Scholar; Baker, J. H., Manual of Law French (2nd ed.; Aldershot, 1990)Google Scholar: “Fait” appears as deed in Baker. See also Rastell, John, Expositions of the Terms of the Lawes of England (1567)Google Scholar; Cowell, John, The Interpreter or Book Containing the Signification of Words (1607)Google Scholar. Cowell, like many later writers, distinguishes “matter in deed” from “matter of record.” “Matter in deed seemeth to be nothing else but a truth to be proved,…though not by any record.” Verdicts referred to the “fact in question” (ibid). The phrase “Choses en fait” can be found in Duncombe, Giles, Tryals per Pais (London, 1682), p. 4Google Scholar.

7 Baker, J. H., ed., Reports of Sir John Spelman, 2 vols., Selden Society (London, 1977–1978), 2: 106Google Scholar, citing Debellacyon of Salem and Bizance, pp. 42–43. In special verdicts, where jurors agreed to the facts, judges determined both law and facts. The division of labor between judge and jury occasionally led to public discussion, as when the Leveller John Lilbume insisted juries might judge law as well as fact. During the 1660s judicially imposed fines for “incorrect verdicts” were thought to usurp the to be usurping the fact-finding role of juries. See Green, Thomas, Verdict According to Conscience (Chicago, 1985)CrossRefGoogle Scholar.

8 SirCoke, Edward, The Third Part of the Institutes of the Law of England (London, 1818), pp. 24, 29, 55, 137Google Scholar.

9 See Leigh, Edward, A Philological Commentary (2nd ed.; London, 1658), p. 135Google Scholar; Hobbes, Thomas, Dialogue between a Philosopher and A Student of the Common Laws of England, ed. Cropsey, J. (Chicago, 1971), p. 70Google Scholar.

10 Duncombe, , Tryals per Pais, pp. 1–2Google Scholar. See also pp. 7–8.

11 SirHale, Matthew, The Primitive Origination of Mankind (London, 1672), p. 129Google Scholar.

12 See Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Cockburn, J. S. and Green, Thomas A. (Princeton, 1988)CrossRefGoogle Scholar.

13 Juries could reach verdicts in the absence of any evidence presented in court. Increasingly, how-ever, jurors were expected to testify to their knowledge in court, in the manner of witnesses.

14 Baker, , Reports of Spelman, 2: 112Google Scholar citing a case of 1465. For changing jury instructions see Shapiro, Barbara, “Beyond Reasonable Doubt” and “Probable Cause”: Historical Studies in the Anglo-American Law of Evidence (Berkeley & Los Angeles, 1991): pp. 1–41Google Scholar.

15 See Cockburn, J. S., ed. Crime in England, 1550–1800 (Princeton, 1987)Google Scholar; idem., “‘Trial by the Book?’ Fact and Theory in Criminal Process, 1558–1625,” in Legal Records and the Historian, ed. J. H. Baker (London, 1978), pp. 60–79; Herrup, Cynthia, The Common Peace: Participation and the Criminal Law in Seventeenth Century England (Cambridge, 1987)CrossRefGoogle Scholar; Beattie, John, Crime and the Courts 1660–1800 (Princeton, 1986)Google Scholar.

16 SirHale, Matthew, Historia Placetorum Coronae, 2 vols. (London, 1680), 2: 276, 277Google Scholar.

17 SirHale, Matthew, The History of the Common Law, ed. Gray, Charles (Chicago, 1970), pp. 154, 165Google Scholar.

18 Hale, , Primitive Origination, p. 128Google Scholar.

19 Ibid.

20 Ibid., pp. 128, 130.

21 Daston, Lorraine, “Baconian Facts, Academic Civility and the Prehistory of Objectivity” Annals of Scholarship (1992): 338, 339Google Scholar. See also Shapiro, Barbara, “Early Modern Intellectual Life: Humanism, Religion and Science in Seventeeth Century England,” History of Science 29 (1991): 45–71CrossRefGoogle Scholar.

22 SirCoke, Edward, The Third Part of the Institutes (London, 1819), p. 29Google Scholar. See also Dalton, Michael, The Country Justice (London, 1618), pp. 4–5Google Scholar.

23 See Kelley, Donald, Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance (New York, 1970)Google Scholar; Franklin, Julian, Jean Bodin and the Sixteenth Century Revolution in the Methodology of Law and History (New York, 1963)Google Scholar; Huppert, George, The Idea of Perfect History: Historical Erudition and Historical Philosophy in Renaissance France (Urbana, 1970)Google Scholar.

24 Kelley, , Foundations of Modern Historical Scholarship, pp. 120, 130, 121, 132Google Scholar. Franklin, , Bodin, 128–29Google Scholar.

25 Franklin, , Bodin, pp. 128, 129, 137, 139n, 140–46Google Scholar.

26 Kelley, , Foundations, p. 3Google Scholar. Bodin distinguished civil and natural history, but “history,” for him included climate and geography as well as the human activities for which reliable sources could be found. See Huppert, , Perfect History, pp. 93–96Google Scholar. Baudouin distinguished between the history of man, res humanae, and natural history, res naturales. Kelly, , Foundations, p. 130Google Scholar.

27 Van Nordan, Linda, “The Elizabethan Society of Antiquaries,” Ph.D. diss., UCLA, 1946, pp. 334, 333, 349, 391, 393, 403Google Scholar. Plans for a successor organization, the Musaeum Minervae included a wide range of historical, legal and scientific topics. Ibid., pp. 479–80. See also Schoeck, R. J., “The Elizabethan Society of Antiquaries and Men of the Law,” Notes and Queries 119 (1954): 417–21Google Scholar.

28 Berkowitz, David, John Selden's Formative Years (Washington, D.C., 1988), p. 43Google Scholar. See also Fussner, F. Frank, The Historical Revolution: English Historical Writing and Thought, 1580–1640 (London, 1962), p. 286Google Scholar.

29 See Fussner, Historical Revolution, pp. 272–86; Hazeltine, H. D., “Selden as a Legal Historian,” Harvard Law Review 47 (1932): 12–20Google Scholar.

30 Selden, , Historie of Tithes (London, 1618), pp. xi, xii, xiiiGoogle Scholar. Selden also disavowed bias in history and insisted on “liberty of Inquiry.” See also Poly-Olbion, “To the Reader,” cited in Berkowitz, , Selden, p. 42Google Scholar.

31 Selden, , Historie of Tithes, p. xiiGoogle Scholar. See also Camden, William, History of…Princess Elizabeth, ed. MacCaffrey, Wallace (Chicago, 1970)Google Scholar, “1116 Author to the Reader.”

32 Selden, , Historie of Tithes, pp. xiiGoogle Scholar. For Selden “poetic fiction,” “mystic reports,” and “bardish hymns” were not history. Berkowitz, , Selden, pp. 41–42Google Scholar.

33 Rushworth, John, Historical Collections (London, 1659)Google Scholar, preface.

34 Brady, Robert, A Complete History of England (London, 1685)Google Scholar, Dedicatory Letter.

35 Heylyn, Peter, The History of the Sabbath (London, 1636)Google Scholar, preface. See also Gale, Thomas, The Couri of the Gentiles (1667)Google Scholar, preface to vol. 2; Stillingfleet, Edward, Origines Britannicae (London, 1685), p. xviiGoogle Scholar: Wallis, John, Defense of the Royal Society (London, 1678), p. 7Google Scholar. Heylyn noted that “in matters of fact, we put ourselves upon an ordinarie jurie, not doubting, if the evidence prove fair, the Witnesses of faith unquestioned and the Records without suspicion of imposture, but they will doe their conscience and find for the Plaintiffe or Defendant, as the cause appears.” History of the Sabbath, preface. See also Heylyn, , Ecclesia Restaurata (London, 1660), p.7Google Scholar.

36 Oliver Cromwell complained that the historians of his own time provided only “narration of matters of fact,” and ignored the “strange windings and turnings of Providence” and “the great appearances of God.” Quoted in Firth, C. H., “Sir Walter Raleigh's History of the World,” in Essays Historical and literary (Oxford, 1938), pp. 53–54Google Scholar.

37 Ferguson, Arthur, Clio Unbound: Perception of the Social and Cultural Past in the Renaissance (Durham, N.C., 1979), p. 122Google Scholar; Berkowitz, , Selden, pp. 46–47Google Scholar. See also Woolf, D. R., The Idea of History in Early Stuart England (Toronto, 1990)Google Scholar.

38 Quoted in Woolf, , The Idea of History, p. 258Google Scholar.

39 Gale, , Court of the Gentiles, p. 3Google Scholar.

40 Leviathan, ed. Oakeshott, M. (New York, 1962), p. 69Google Scholar. See also Hobbes, Elements of Law, Pt. I, ch. 6, para. 9.

41 See Shapiro, , “History and Natural History in Sixteenth and Seventeenth Century England: An Essay on the Relationship between Humanism and Science,” in English Scientific Virtuosi in the Sixteenth and Seventeenth Centuries (Los Angeles, 1979), pp. 12–28Google Scholar; Shapiro, , Probability and Certainty in Seventeenth Century England, pp. 119–62Google Scholar; Mendyk, Stan, ‘Speculum Britanniae’: Regional Study, Antiquarianism, and Science in Britain to 1700 (Toronto, 1989)Google Scholar; Strauss, Gerald, “Topographical-Historical Method in Sixteenth Century German Scholarship,” Studies in the Renaissance 5 (1958): 87–101CrossRefGoogle Scholar; Helgerson, Richard, Forms of Nationhood: The Elizabethan Writing of England (Chicago, 1992), pp. 105–48Google Scholar. Authors emphasized their own observations as they recorded the geographical area in questions. Titles often included the words perambulation, itinerary, survey, natural history, or moral history. See Biondo, Flavio, Italia Illustrata (Basel, 1531)Google Scholar; Ortelius, Abraham, Theatrum orbis terrarium (London, 1606)Google Scholar; Norden, John, Speculum Britanniae (London, 1598)Google Scholar; Drayton, Michael, Poly-Olbion (London, 1622)Google Scholar; Speed, John, The Theater of the Empire of Great Britain, 2 vols. (London, 1611)Google Scholar; Lambarde, William, Perambulation of Kent (London, 1576)Google Scholar; Stowe, John, Survey of London (1598)Google Scholar; The Itinerary of John Leland, ed. Smith, L. (London, 1907–1910)Google Scholar; Carew, Richard, The Survey of Cornwall (London, 1953)Google Scholar; Harrison, William, Description of England (Ithaca, 1968)Google Scholar; Dugdale, William, The Antiquities of Warwickshire (London, 1656)Google Scholar; Habington, Thomas, A Survey of Worchester, (Oxford, 1895)Google Scholar; Butcher, Richard, The Survey and Antiquities of...Stamford (London, 1646)Google Scholar; Dallington, R., The View of France (London, 1604)Google Scholar; Burton, William, The Description of Leicestershire (London, 1622)Google Scholar; Sampson Erdeswicke, A Survey of Staffordshire; Ray, John, Observations Topographical, Moral and Physiological Made in a Journey (London, 1673)Google Scholar; Plot, Robert, The Natural History of Oxfordshire (London, 1677)Google Scholar; idem., The Natural History of Staffordshire (London, 1686); Falle, Philip, An Account of the Island of Jersey (London, 1692)Google Scholar; Thornton, Robert, The Antiquities of Nottinghamshire (London, 1677)Google Scholar; Ogilvie, John, Brittania (London, 1675)Google Scholar: Childrey, Joshua, Britannia Baconia (London, 1660)Google Scholar.

42 See Levy, F. J., Tudor Historical Thought (San Marino, 1953)Google Scholar; p. 163. Fussner, , Historical Revolution, pp. 215, 221, 223, 227, 228Google Scholar. On conjecture see Camden, , Britannia (London, 1695)Google Scholar, preface. See also Camden, The History of…Princess Elizabeth, “The Author to the Reader.” Camden suggested that a “description of a kingdom is a less intricate task than its history, because materials are more at hand, and impartiality less vitiated,…” Britannia, preface.

43 Hakluyt, Richard, Principal Navigations, Voyages and Discoveries of the English Nation (1598; London, 1972)Google Scholar. This “history,” as it was called by Hakluyt, was largely a collection of official documents, personal letters and first hand accounts. He noted that he occasionally consulted “some strangers as witnesses of the things done,” but only “such as either faithfully remember or sufficiently confirm the travels of our own people.” Quoted pp. 33–34 from preface to the first edition. Dampier combined physical description and ethnography. See Dampier, , A New Voyage around the World (London, 1697)Google Scholar; Dampier, , Voyages and Descriptions (London, 1699)Google Scholar. See also Ray, John, Observations Topographical, Moral and Physiological: Made in a Journey (London, 1673), p. 43Google Scholar. The descriptive travel genre was not peculiarly English. See de Acosta, Jose, The Natural and Moral History of the Indies (1609)Google Scholar. See also Pagdon, Anthony “Ius et Factum: Text and Experience in the Writings of Bartolome de Las Casas,” New World Encounters, ed. Greenblatt, Stephen (Berkeley, 1991), pp. 91, 94Google Scholar.

44 See Frank, Joseph, The Beginnings of the English Newspaper 1620–1660 (Harvard, 1961)CrossRefGoogle Scholar.

45 Nelson, William, Fact or Fiction: The Dilemma of the Renaissance Storyteller (London, 1973)CrossRefGoogle ScholarPubMed; Davis, Lennard J., Factual Fictions: The Origins of the English Novel (1983)Google Scholar; Watt, Ian, The Rise of the Novel (London, 1957)Google Scholar; McKeon, Michael, The Origins of the English Novel 1600–1740 (1987)Google Scholar; Hunter, J. Paul, Before Novels: The Cultural Contexts of Eighteenth Century Fiction (New York, 1990)Google Scholar. For circumstantial evidence in law and the novel see Welsh, Alexander, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore, 1992)Google Scholar; Shapiro, Barbara, “Circumstantial Evidence: Of Law, Literature, and Culture,” Yale Journal of Law and the Humanities 5 (1993): 219–41Google Scholar.

46 Davies, Factual Fictions, quoted p. 156. Davies notes that hardly any one would doubt its fictionality by the time it was written (pp. 156–57).

47 Roxana (Oxford, 1964), p. 1Google Scholar.

48 Quoted in Davis, , Factual Fictions, pp. 108, 110Google Scholar.

49 Daston, Lotraine, “Marvelous Facts and Miraculous Evidence in Early Modern Europe,” Critical Inquiry 18 (1991): 93–124CrossRefGoogle Scholar; Daston, , “The Factual Sensibility,” Isis (1988): 452–67Google Scholar; Park, Katharine and Daston, Lorraine, “Unnatural Conceptions: the Study of Monsters in Sixteenth and Seventeenth Century England,” Past and Present 92 (1981): 20–54CrossRefGoogle Scholar.

50 Dear, Peter, “Jesuit Mathematical Science and the Reconstruction of Experience in the Early Seventeenth Century,” Studies in the History and Philosophy of Science 18 (1987): 133–75CrossRefGoogle Scholar. See also Dear, Peter, “Totius en verba: Rhetoric and Authority in the Early Royal Society,” Isis 76 (1985): 145–61Google Scholar. Shapin, Steven and Schaffer, Simon, Leviathan and the Air Pump: Hobbes, Boyle and the Experimental Life (Princeton, 1985)Google Scholar.

51 Bacon, as Lord Chancellor, was, of course, familiar with the common law as well as the civil and common law features of Chancery procedure. Several scholars have explored the extent to which Bacon's inductive method is indebted to his legal experience. See Kocher, Paul, “Francis Bacon on the Science of Jurisprudence,” Journal of the History of Ideas 18 (1957): 3–26CrossRefGoogle Scholar. Kocher focused Bacon's adaptation of the legal maxim to the scientific axiom and suggests that the inductive method which proceeds through negative instances and exclusions to reach knowledge was to found in Bacon's legal writings some 20 years before it appeared in the Novum Organum. Harvey Wheeler, argues that the Baconian procedure of negation and exclusion to affirm the positive had its origin in Bacon's “Reading on the Statute of Uses” and that the process of adjudication correspond to the procedures in Bacon's new logic of inquiry. The case method of “ferreting out the dictates of the unwritten law out of existing precedents and the rules of evidence for trying a defendant” is viewed as analogous to Bacon's scientific procedure. Kenneth Carswell suggests the Chancery inquisitorial writ as a model for interrogating nature. He suggests nature is cast in the position of a suspect and the natural philosopher as an examining magistrate in a inquisitorial criminal trial. He points out that the Novum Organum consistently employed the term inquisition which English translators have variously translated as “examination,” “investigation,” or “inquiry.” “The Art of Discovery Grows with Discovery,” in Francis Bacon's Legacy of Texts, ed. Sessions, William A. (New York, 1990)Google Scholar. See also Neustadt, Mark, “The Making of the Instauration: Science, Politics and Law in the Career of Francis Bacon,” Ph.D. diss., Johns Hopkins University, 1987Google Scholar. Julian Martin like Cardwell, emphasizes the legal “schedule of interrogatories,” but focuses on Star Chamber rather than Chancery (Francis Bacon, the State, and the Reform of Natural Philosophy [Cambridge, 1992])Google Scholar. For a recent discussion of Bacon's jurisprudence see Coquillette, Daniel, Francis Bacon (Stanford, 1992)Google Scholar.

52 Bacon, Francis, “De Augmentis,” in The Works of Francis Bacon, ed. Spedding, J., Ellis, R. and Heath, D., 14 vols. (London, 1857–1874), 4: 193, 292Google Scholar. Natural history “treats of the deeds and works of Nature, civil history those of men.”

53 Bacon, New Organon, Book I, Aphorism xcviii, ibid., 4: 94. Rumour and common fame were legal terms discussed in legal texts as early as Bracton.

54 Bacon, “Great Instauration,” ibid., 4: 19.

55 Bacon, “Preparative,” Aphorism ix, ibid., p. 261; “Parasceve,” (Latin), ibid., 1: 402.

56 Bacon, “Great Instaruation,” ibid., 4: 32.

57 See “The Great Instauration,” ibid., 4: 12, 19, 32; “New Organon,” Bk. I, aphorism cxii, ibid., 4: 102; aphorism cxxiv, 4: 110. See also 1: 203, 218; 4: 123. He also employed de facto naturae (ibid., 1: 210, and referred to the “inquisition of the fact itself [inquisitio facti ipsius], ibid., 4: 123; 1: 232. See also “Preparative,” aphorism ix, 4: 261.

58 Bacon, , “Great Instauration,” Works, 4: 26Google Scholar.

59 Bacon, “Parasceve,” Aphorism viii, ibid., 4: 260.

60 “Great Instauration,” ibid., 4: 291.

61 But see Daston, Lorraine, “Baconian Facts, Academic Civility and the Prehistory of Objectivity,” Annals of Scholarship (1992): 337–62Google Scholar; Dear, Peter, “From Truth to Disinterestedness in the Seventeenth Century,” Social Studies of Science 22 (1992): 619–31CrossRefGoogle Scholar; Dear, Peter, “Narratives, Anecdotes and Experiments: Turning Experience into Science in the Seventeenth Century,” in Dear, , ed., The Literary Structure of Scientific Argument (Philadelphia, 1991), pp. 135–63CrossRefGoogle Scholar.

62 Sprat, Thomas, History of the Royal Society, eds. Cope, J. and Jones, H. W. (St. Louis, 1958), pp. 83, 85, 100Google Scholar.

63 Ibid., p. 100. Reports were to emphasize the firsthand observation and experience of the speaker. The use of the first person active voice, noticed recently by Peter Dear is, of course, precisely what was required of a witness describing an event to a jury or judge. Dear notes that circumstantial detail was often provided to enhance the sense of the actuality of the event. And so it was in the courtroom, where judges frequently reminded juries to consider the evidence and the circumstances in reaching their verdict. Dear, Peter, “Totius in verba: Rhetoric and Authority in the Early Royal Society,” Isis 76 (1985): 145–61Google Scholar. For Robert Hooke's use of of the “circumstances” in connection with natural facts see Philosophical Experiments (London, 1677), p. 75Google Scholar.

64 Glanvill, Joseph, A Prefactory Answer to Mr. Henry Stubbe, (London, 1671), pp. 143–44, 146Google Scholar.

65 Glanvill, Joseph, Scepsis Scientifica (London, 1665), p. 118Google Scholar.

66 Glanvill, Joseph, Essays on Several Important Subjects in Philosophy and Religion (London, 1676)Google Scholar, Essay II, pp. 49–50.

67 Ibid, Essay VI, pp. 48–49, 56; Essay I, p. 15.

68 Glanvill, Joseph, Scepsis Scientifica (London, 1665)Google Scholar, Address to the Royal Society.

69 Ray, John, Wisdom of God (London, 1691)Google Scholar, Address to the Royal Society. In presenting engraving of natural objects Evelyn included nothing “but what either the Author has seen himself, or has received of unquestionable testimony for it.” Evelyn, John, Sylva (London, 1664)Google Scholar, preface.; Hooke, Robert, “Cometa,” in Lectiones Cutlerianae (London, 1678), p. 34Google Scholar; An Attempt to Prove the Motion of the Earth from Observation (London, 1674)Google Scholar, preface; Philosophical Transactions (1665–1666), p. 65Google ScholarPubMed; Hooke, , Micrographia (London, 1665)Google Scholar, preface; Hooke, , Philosophical Experiments and Observations, pp. 27–28Google Scholar.

70 Willughby's Ornithology promised to include only those “particulars” as could “warrant upon our knowledge and experience, or where we have assurance by the testimony of good Authors or sufficient Witnesses,” preface. See also Whyche, Peter, History of the River Nile (London, 1669)Google Scholar, preface. The author of The Four Footed Beast (London, 1668)Google Scholar promised to related only that which had been substantiated by two or three witnesses. If he relied on a single testimony “the matter was clear and needeth not farther probation” (Dedicatory Letter). Ralph Bohun's report on winds distinguished the historical part or “matter of fact” from conjecture and hypothesis (A Discourse Concerning the Origine and Properties of Wind [Oxford, 1671]), preface. See also Power, Henry, Experimental Philosophy (London, 1664), p. 58Google Scholar; Tyson, Edward, Orang-Outang (London, 1669)Google Scholar.

71 Philosophical Transactions (1665–1666), p. 65Google ScholarPubMed; see also pp. 130, 150. See also Hall, M. B., “Science in the Early Royal Society,” in Crosland, R., ed., Emergence of Modern Science, pp. 57–77Google Scholar; The Correspondence of Henry Oldenberg, eds. Hall, R. and Hall, M. B., 9 vols. (Madison, Wis., 1965–1973)Google Scholar.

72 Traditional assumptions direct testimony and circumstantial evidence was reversed in the midto late-18th century. See Shapiro, , “BeyondReasonable Doubt” and “Probable Cause”, pp. 240–43Google Scholar; Welsh, Strong Representations.

73 Wilkins, John, The Principles and Duties of Natural Religion (London, 1675), pp. 26–27Google Scholar.

74 Power, Experimental Philosophy, preface; see also p. 72; Hooke, Lectiones Cutlerianae, pp. 38-39; see also, “Cometa,” in ibid., p. 34; John Ray, Philosophical Letters, (London, 1718), p. 62; Willis, Thomas, The Anatomy of the Brain in Dr. Willis' Practice of Physick (London, 1681)Google Scholar, preface, p. 136.

75 Shapin, Steven and Schaffer, Simon, Leviathan and the Air Pump: Hobbes, Boyle and the Experimental Life (Princeton, 1985)Google Scholar; Shapin, Steven, “The House of Experiment in Seventeenth-Century England,” Isis 79 (1988): 373–404CrossRefGoogle Scholar; Shapin, Steven, “Pump and Circumstance: Robert Boyle's Literary Technology,” Social Studies of Science 14 (1984): 481–520CrossRefGoogle Scholar; Frederick O. Toole, “Robert Boyle's Concept of Science and Nature,” unpublished paper.

76 Sargent, Rose-Mary, “Scientific Experiment and Legal Expertise: The Way of Experience in Seventeenth-Century England,” Studies in the History and Philosophy of Science 20 (1989): 19–45CrossRefGoogle Scholar. Sargent argues that there were substantial similarities in legal and scientific concepts of “experience.” The legal emphasis on “moral certainty,” however, was centered on particular facts, rather than the legal principles and most lawyers recognized that the law changed over time with human practice. They also tended to admit that different legal principles, e.g. those of the civil law, might be applied to the same set of legal issues and facts. Most judges would not have recognized their activity as “interpreting fact.” It is difficult to see how Coke's distinction between ordinary reason and the reason of the law, accessible only to judges and lawyers of long experience, can be equated to Boyle's understanding of reason and the reasoning faculties.

77 Boyle, Robert, General Heads for a History of a Country (London, 1692), p. 1Google Scholar.

78 Boyle, Robert, New Experiments Touching the Spring of Air (London, 1662)Google Scholar, preface.

79 Boyle, Robert, The Works of the Honourable Robert Boyle, ed. Birch, Thomas, 6 vols. (London, 1772), 4: 524, 525Google Scholar.

80 Boyle, Robert, The Christian Virtuoso (London, 1690), pp. 56, 57–58Google Scholar.

81 Quoted in Westfall, Richard S., “Unpublished Boyle papers Relating to Scientific Method,” Annals of Science 12 (1956): 71Google Scholar.

82 Boyle, , Christian Virtuoso, p. 72Google Scholar.

83 Quoted in Westfall, “Unpublished Papers of Robert Boyle,” p. 73. See also Some Considerations about the Reconcileableness of Reason and Religion (London, 1675), p. 61Google Scholar.

84 Boyle, , Christian Virtuoso, pp. 72–73Google Scholar. Boyle was in error about English law. Many were were convicted on the basis of a single witness and some without any witnesses. The two witness rule was characteristic of the canon and civil law.

85 The site for experimentation has also been explored by Shapin, . “The House of Experiment in Seventeenth Century England,” Isis 79 (1986): 373–404CrossRefGoogle Scholar. Shapin suggests that if many experiments were performed before the assembled Royal Society, others, required smaller, even private, yet legitimate venues which allowed for the production of reliable knowledge. English legal experience may have provided an analog in this respect as well. Common law cases were argued publicly by counsel at Westminster and then adjourned to the localities for jury deliberation on matters of fact. Juries and judges assembled in a variety of venues as judges toured their circuits. The judicial activities of quarter and especially petty sessions conducted by justices of the peace often took place in private or semiprivate locations, the latter often in the justice's home. One might also speculate on the similarity of language in the legal and experimental “trial” or “tryal.”

86 Quoted in Westfall, “Unpublished Papers of Robert Boyle,” p. 67.

87 Boyle, Robert, Hydrostatical Paradoxes (London, 1666)Google Scholar, preface.

88 Ibid., preface; The Experimental History of Colors (1661), in Works, 1: 662Google ScholarPubMed; The Spring of Air (London, 1662)Google ScholarPubMed, preface; Certain Physiological Essays (1661), in Works, 1: 302Google ScholarPubMed. M. B. Hall has suggested that Boyle may have modified his views of hypothesis, initially feeling that his experiments “illustrated” the corpuscular philosophy and later claiming that they could prove it (“Science in the Early Royal Society,” p. 73). For Boyle's distinction between “good” and “excellent” hypotheses see Westfall, “Unpublished Boyle Papers,” p. 70.

89 See Rorty, Richard, Philosophy and the Mirror of Nature (Princeton, 1979)Google Scholar. For a critique see Barbara Shapiro, “Objectivity, Modernism and the Scientific Revolution—Some Problems,” paper delivered to American Historical Association and the History of Science Society, December 1992.

90 Grotius, Hugo, The Truth of Christian Religion (London, 1680), p. 21Google Scholar. See also pp. 55–56. Proofs for “natural religion,” unlike the proofs for Revelation, relied on inferences from “circumstantial evidence” rather than testimony.

91 It was also necessary to “consider if the party be of known ability, both in himself, and in reference to the things,…the next question will be of his Integrity, whether there be sufficient reason to believe, that he would not voluntary deliver a falsehood, and because it is not reasonable to believe, that men would lie, unless they either be known to be corrupt, or some end be visible of gain.…These are the grounds, and considerations, and inward discourses whereupon men proceed to belief in any relation.” Seth Ward, , Philosophical Essay toward an Eviction…of God (1654; 4th ed., London, 1667), pp. 100–03Google Scholar.

92 For legal uses of the concept of moral certainty see Shapiro, Beyond Reasonable Doubt and Probable Cause; idem, “‘To a Moral Certainty’: Theories of Knowledge and Anglo-Anerican Juries 1600–1850,” Hastings Law Journal 38 (1986): 153–93.

93 Stillingfleet, Edward, Origines Sacrae (London, 1662), pp. 110–12, 229–31, 235, 237–40Google Scholar. See also SirHale, Matthew, The Primitive Origination of Mankind, p. 129Google Scholar; Parker, Samuel, A Demonstration of the Divine Authority of the Law of Nature and of the Christian Religion (London, 1681)Google Scholar; SirWolseley, Charles, Unreasonableness of Atheism Made Manifest (3rd ed.; London, 1675)Google Scholar; Wolseley, , The Reasonableness of Scripture Belief (London, 1672)Google Scholar.

94 According to Evelyn, Reason had been given by God “to judge and determine the truth of things.…Had it not been originally manifest, and evidence bright as the meridian sun, that such things were done as they relate, the world would never have embraced them.…And since all cannot be eye-witnesses on what passed, let it suffice that we have the suffrage of all who are gone before and which common reason makes to be as authentick evidence as our senses.” Evelyn, John, History of Religion, p. 393Google Scholar; see also p. 292. The reference to evidence as bright as the noonday sun was a commonplace in medieval and early modern jurisprudence.

95 Glanvill refers both to the legal distinction between “matters of fact” and “matters of law” and to the jury. Although matters of law required learned expertise, “in matter of fact, we put ourselves upon an ordinarie June, not doubting, if the evidence prove fair, the witnesses of faith unquestioned, and the Records without suspicion of imposture,…” that they might make confident decisions. “No man that is to be returned to the present Jury, but may be able to give up his verdict” unless he is without passion or prejudice. Glanvill, Joseph, Seasonable Defense of Reason in the Affairs of Religion (London, 1670), pp. 8–10Google Scholar.

96 See Boyle, Robert, The Christian Virtuoso, pp. 51, 55–56, 72–74, 81–83Google Scholar. For matter of fact in history and law see ibid., pp. 60–62.

97 Wilkins, John, The Principles and Duties of Natural Religion (London, 1675)Google Scholar; Shapiro, Barbara, John Wilkins: An Intellectual Biography (Berkeley, 1968)Google Scholar; idem, Probability and Certainty, pp. 82–101.

98 Locke, John, The Reasonableness of Christianity (London, 1690)Google Scholar. See also Tillotson, John, The Rule of Faith (London, 1666)Google Scholar; Stillingfleet, Edward, A Rational Account of the Grounds of the-Protestant Religion (London, 1665)Google Scholar; idem, A Discourse on the Nature and Grounds of Certainty of Faith (London, 1688).

99 For a somewhat earlier effort to develop the role of matter of fact based on testimony and experiment into a larger epistemological scheme see Wilkins, Natural Religion; Shapiro, Probability and Certainty; Van Leeuwen, Henry, The Problem of Certainty in English Thought 1630–1690 (The Hague, 1963)CrossRefGoogle Scholar. For Wilkins the Understanding was capable of apprehending both general and particular “objects of knowledge,” present and absent and was to judge of truth or falsehood. One kind of evidence brought to the understanding was from the nature of things, another from testimony in matters of fact. The latter came into play “when we depend upon the credit and relation of others for the truth or Falsehood of any things.” This included “matters of fact” and accounts of persons and places at a distance. “Evidences” were more or less clear according to the authority and credit of the witness. In addition there was a mixed kind of evidence that related to both sense and understanding. This depends on “our own observations and repeated trials of the issues and events of Actions of things, called Experience.” Although matters of fact were incapable of being proved by “scientifical Principles” yet there were many things in moral and natural philosophy as true and as “firmly believed” as mathematical principles. Experiment and observations could, under the best and most careful circumstances, be “firmly believed” (Natural Religion, pp. 4, 25.

100 John Locke, Essay Concerning the Human Understanding, Bk. 4, ch. 15, s. 2.

101 Ibid, Bk. 4, ch. 15, s. 5.

102 Ibid. Bk. 4, ch. 16, s. 6. The highest degree of probability exists when one had the general consent of all men in all ages and “these concur with the constant experience in like cases, to confirm the Truth of any particular matter of fact attested by fair Witnesses.…” These, for Locke, included the constitutions and Properties of Bodies and the “regular proceedings of Causes and Effects in the ordinary course of Nature…” (ibid). The next degree, “confidence,” exists when one finds one's own experience and the agreement of others is so and the “particular instances of it is attested by many and undoubted Witnesses” Thus if all historians wrote that Tiberius did a specific thing “it is extremely probable” (ibid, Bk. 4, ch. 16, s. 6–7. A third level of probability involved “things that happen indifferently,” that is a bird that might fly in one direction or another. Here when the “particular matter of fact is vouched by the concurrent Testimony of unsuspected Witnesses, there Assent is also unavoidable.” If related by credible and uncontradicted historians, “A Man…can as little doubt of it, as he does of the Being and Actions of his own Acquaintance, whereof he himself is a Witness.” All three carry “so much evidence with it, that it naturally determines the Judgement and leaves us as little liberty to believe…as Demonstration…” (ibid., Bk. 4, ch. 16, s. 8–9).

103 Ibid., Bk. 4, ch. 16, s. 9.

104 Ibid., Bk. 4, ch. 16, s. 10.

105 Ibid., Bk. 4, ch. 16, s. 10.