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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 2 , Summer 1994 , pp. 227 - 252
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

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

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.

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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 Lilburne 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.

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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.

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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 Instauration,” 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.

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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,” Ists 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 ScholarPubMed.

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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.

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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): 373–404Google 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.”

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

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.” Ward, Seth, 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 modem 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.

106 Ibid., Bk. 2, ch. 1, s. 10. See Osier, Margaret “John Locke and the Changing Idea of Scientific Knowledge,” Journal of the History of Ideas 31 (1970): 3–16Google Scholar; Laudan, Laurens, “The Nature and Sources of Locke's Views on Hypothesis,” in Locke on Human Understanding: Selected Essays, ed. Tipton, I. C. (Oxford, 1977), pp. 149–61Google Scholar. Locke criticized both those who refused to use matters of fact to “build” knowledge and those who “draw general conclusions and raise axioms from every particular they meet with” (Locke, , Conduct of the Understanding, in Locke on Politics, Religion and Education, ed. Cranston, M. (New York, 1963), p. 50Google Scholar.

107 Locke, , Conduct, in Locke on Politics, Religion and Education, p. 249Google Scholar.

108 Ibid., pp. 254, 255. (Conduct, sect. 13).