Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

82 Legal History in the Making
advised, 'the student may always keep Finch's method in his mind, and
upon a review reduce all to his order'. 105 Wood himself was much influenced
by Finch's scheme, and used parts of it in his own Institutes of the Lawes of
England in 1720, as did Blackstone in his famous Commentaries on the Laws
of England in the 1760s. 106
Finch promised more than he could deliver, however, and other voices
can be heard from the mid seventeenth century onward, complaining that
the common law was still the bottomless pit that Coke depicted in his
Institutes. Whatever popularity Cowell's and Finch's works may have had, a
well-meaning lawyer could still write in the late 1640s that 'no man as yet has
endeavoured to set down' the necessary 'order and method' of the common
law as Bracton had once done, 107 and another could complain in the 1720s
that 'of all the professions in the world, that pretend to book-learning, none
is so destitute of institution as that of the common law'. 108 The common law,
no longer an oral tradition, had indeed emerged into an age of 'book-learning'.
It would continue to thrive as a vast, unwritten text of legal rules, but only if
common lawyers felt they had some broad consensus on what the chapters
were, how they fitted together, and how many it took to fill the complete
celestial volume.
Matthew Hale, the leading common lawyer in the second half of the century,
provided a fitting vignette to round out this development. Hale maintained
a wide circle of acquaintances within the scientific community in London. 109
In the midst of one of their discussions, according to a contemporary report,
some of his friends challenged Hale on his own ground, the common law.
Surely that was 'a study that could not be brought into a scheme, nor
formed into a rational science, by reason of the indigestedness of it, and
the multiplicity of cases in it, which rendered it very hard to be understood,
or reduced into a Method'. 110 Hale said he was 'not of their mind', and at
105
Ibid., 47.
106
See Simpson, 'Rise and Fall of the Legal Treatise', 650.
107
The unknown author recommended 'methodizing' all the titles of Brooke's Abridgment 'into that
method of Bracton' - persons, things and actions - and added that 'the method of the imperial laws
may much conduce to the framing of a method of our law'. 'Directions for the orderly reading of the law
of England', Bodl. MS Rawlinson C 207, fos.245, 266, 269; see Prest, Inns of Court, 148.
108
R. North, 'Discourse on the Study of the Laws' (c. 1720s), Gladsome Light, 15; Holdsworth, History
of English Law, vi, 2nd ed. (1937), 489.
109
Male's circle included John Wilkins, Warden of Wadham College, Oxford, who composed a
classification of all human knowledge to fit his new 'artificial' language. Wilkins included a table
of 'judicial relations' on which Hale may have assisted. Its principal divisions were persons, actions
(or proceedings), crimes and punishments, J. Wilkins, An Essay toward a Real Character, and a
Philosophical Language (1668), 270-74. See Shapiro, 'Law and Science', 748, 762; B.J. Shapiro,
John Wilkins, 1614-1672: An Intellectual Biography (Berkeley, Los Angeles, 1969), 155, 173-76;
B.J. Shapiro, Probability and Certainty in Seventeenth-Century England (Princeton, Guildford, 1983),
172.
110
G. Burnett, The Life and Death of Sir Matthew Hale (1682), 73.