The Mental Deficiency Act of 1913 which followed the Report of the Royal Commission of Inquiry into the Care and Control of the Feeble-Minded (1904–8) contained a clause describing a type of mental deficiency called ‘moral imbecility’. It stated that ‘moral imbeciles’ or ‘persons who from an early age display some permanent mental defect coupled with strong vicious or criminal propensities on which punishment has had little or no deterrent effect’ were now to be dealt with in special institutions to be created under the Act, rather than in prisons. English prison medical officers (hereafter prison MOs) regarded themselves as experts in diagnosing such cases of moral defect, and claimed that their expertise was based on their experience of observing prisoners in the normal course of their duties. In this chapter, I shall argue that this knowledge of the mentally deficient criminal was a product of routine procedures for observing, classifying and segregating prisoners that had existed from approximately the mid-nineteenth century. To demonstrate this, I shall concentrate on three aspects of the prison MO's expertise: his duty to supervise punishment, his use of techniques of observation, and his use of criminal records in constructing case-histories of mentally deficient or ‘weak-minded’ criminals.

In structuring the essay in this way I am, of course, giving priority to a study of the relationship between techniques of control employed in the prison and the production of psychiatric and criminological knowledge.

By a royal charter of 1632, Lord Baltimore, a Roman Catholic, became proprietor of the colony of Maryland in North America. He was also granted the right to ‘ordain, make and enact laws of whatsoever kind’ for its government, but only ‘with the advice assent and aprobation of the freemen of the said province’. Maryland was first settled in 1633 by some 150 immigrants, twenty of whom were ‘gentlemen of good fortune’, all but one of them Roman Catholics. The rest were, for the most part, Protestant indentured servants committed to about five years' servitude before obtaining their freedom. Lord Baltimore appointed his brother, Leonard Calvert, governor of the colony, to administer its affairs with the help of an advisory council and civil, judicial and military officers appointed from amongst the gentlemen.

Despite these provisions, the new colony had few men capable of administering even the most rudimentary system of criminal justice. Only one of the first settlers, Jerome Hawley, a gentleman and former member of the Inner Temple, had any legal training, and his stay in the colony was very short. Indeed, by 1640 most of the gentleman colonists had either died or returned to England, and were not replaced. In the absence of anyone of comparable education or social standing, Governor Calvert therefore had to recruit new law officers from among the freemen and freed servants, who were for the most part men of little or no education or experience of criminal justice administration.

Between 1892 and 1894, dozens of self-professed anarchists were tried in the French courts following a series of murderous assaults. Although there were just a handful of notorious cases, the outrageousness of crimes such as the bombing of restaurants and the assassination of the President meant the incidents were immediately seized upon to exemplify the perniciousness of all anarchist ideas. The defendants combined violence, political idealism and extreme individualism, and the mixture stimulated a wide-ranging commentary among all strands of the national political community. The press, particularly the illustrated weeklies, feasted on a sumptuous diet of horror, graphically portraying the destruction caused and the expressions of terror on the victims' faces. Although some anarchists used the old-fashioned assassin's dagger, the most feared were those who resorted to explosives, new weapons which lent a lethal unpredictability to the terrorists' acts. A lurid picture was painted of a handful of fanatics gathering to read subversive tracts and share the simple chemical knowledge needed to fabricate bombs. The bombings themselves were seen as indicating a special kind of criminal mentality, a cold and calculated willingness to hurt unknown people against whom the offender had only an abstract political, rather than personal, grudge.

While the technical paraphernalia of anarchism – chemicals, sieves, measuring-spoons, nails, fuses etc. – excited morbid interest when displayed in court, the people who used them to terrorize Paris and other cities fascinated both the lay public and officials. Every detail of their lives and characters was examined – their love letters perused, antecedents investigated, mèmoires recorded.

Introduction

During the half-century following 1870, state- or municipally-sponsored institutes of forensic medicine were established in Paris, Berlin, Vienna, Budapest and many other principal cities of Europe. Usually associated with university medical faculties, they served the dual purpose of teaching and research in forensic medicine and conducting medico-legal investigations, usually on behalf of the authorities. The late nineteenth and early twentieth centuries also saw the creation of a number of laboratories specially devoted to ‘criminalistics’ or ‘police science’, a somewhat illdefined field which may, however, roughly be equated with what was later to become known as ‘forensic science’. These laboratories were sometimes associated with or even formed part of local medico-legal institutes, as in the case of Lyon, but were more often attached to government chemical or toxicological laboratories, as in the Swedish case, or else were exclusively under police control. By 1930, almust every European capital and many other principal cities had its own medico-legal institute (France, for example, had three by 1933, in Paris, Lyon and Lille), while France, Italy, Germany, Switzerland, Sweden and even Finland all had at least one ‘police science’ laboratory. Similar institutions also existed in Egypt, a country under overall British control but with its own, largely French-inspired internal administration and system of justice, while Ceylon had developed a rudimentary but apparently quite effective forensic science service run by the government chemist C. T. Symons.

Among materially advanced European states and jurisdictions, only Great Britain and especially England stood out.

Introduction

It is no accident that infanticide has emerged as a topic of intense debate in recent historical writing. Research on criminality generally has grown out of social historians' broad interest in the less-than-privileged, while cultural historians have looked beyond descriptions of offences and offenders into the social and cultural origins of ‘criminal’ activities. However, much of the current interest in infanticide doubtless responds to the feeling that the last great battle of feminism is being fought over the control of women's bodies. At one political extreme, abortion is seen as the modern version of infanticide; on the other, as the final step in woman's emancipation from biological and legal bondage.

Common as infanticides were in later medieval times, they were not prosecuted with any intensity in the German-speaking lands until after the Protestant Reformation. In the communes of seventeenth-century and eighteenth-century Germany, where the supernatural order penetrated the natural, infanticide was regarded as a sign of Übel, Satan's work made manifest. It was the duty of the magistracy to see that God's wrath be expiated by punishing the guilty person. The act itself set off a perturbing chain of events in community life: suspicion, accusation, investigation. The crime of infanticide was thus highly disruptive both socially and morally, calling into question the nature of the individual, the relative claims of individual and community, and the proper relationship between gender and social role.

This book was conceived at a conference on the history of legal medicine held at the University of Lancaster in 1987, organized by Michael Clark and Roger Smith and funded by the Nuffield Foundation and the Wellcome Trust. The aim of the meeting was to bring together scholars working on various aspects of the history of medico-legal relations in order to develop comparative perspectives and stimulate further research. Four of the papers in this book were first presented at the Lancaster conference; the rest are the fruit of research conducted since then.

The Wellcome Trust has provided both of us with research fellowships in recent years, and without that support this book would probably not exist. We are also indebted to Charles Webster, Carol Jones and John Keown, who made valuable suggestions at an early stage. Our warm thanks go also to Anne Goldgar, who advised and occasionally arbitrated on editorial questions, and to Marie Williams, who helped prepare the text. Most of all, though, we would like to thank the contributors. Their commitment to the project and their constant good humour were a great help to us.

This book presents new research on the history of legal medicine from the early seventeenth century to the 1960s. It ranges widely in subject matter, from abortion and infanticide to medico-legal education and the politics of the coronership, while its geographical scope extends from colonial Maryland and Enlightenment Germany to Belle Epoque Paris and twentieth-century England. However, this book is not just a sampler of current historical work on legal medicine. It is intended to form a coherent historiographical intervention in a field which has long been studied largely in isolation from social, political, and even legal history.

Much existing historical work on legal medicine lacks a sufficiently strong sense of the ways in which particular historical settings have affected the development of medico-legal knowledge and practice. For want of adequate contextualization, scientific and technical advances have usually been understood in self-referential terms. At the same time, historians' view of not only the history of criminal justice but also, for example, the history of women and the family, of local government, and of health and safety at work has been limited by lack of awareness of their medico-legal aspects. Our aim in this book is to show what the history of legal medicine stands to gain from new approaches to the social history of law and medicine, and to explore some of the ways in which medico-legal history can enrich our understanding of history in general.

The coroner's inquest, long regarded as a quiet and curious backwater of the English legal system, has been the subject of considerable controversy in recent years; controversy which has often centred on the investigation of deaths in custody. There is an interesting parallel between the current debates and those that raged during the mid-nineteenth century. Then, as now, the issue of the proper role (if any) of the coroner's inquest was closely linked to the question of political and legal accountability for deaths in custodial institutions. Present-day critics of the coroner are often accused of seeking to politicize what should be a neutral process of scientific and legal inquiry. As Lindsay Prior has argued, however, the de-politicization of death is itself a relatively recent phenomenon. As we aim to show in this chapter, the leading coroners of the Victorian period were fully aware of the political dimension of their work, and exploited it to ensure the survival of their office.

It was in the 1830s that coroners, after several centuries as a rather unimportant appendage of the criminal law, began to find a new role for themselves alongside the growing apparatus of governmental fact-finding and inspection. The creation of the Inspectorates of Anatomy (1832), Factories (1833) and Prisons (1835), together with the Births and Deaths Registration Act (1836), and the various inquiries initiated by the public health reformers, marked a new form of governmental involvement in what Foucault has termed the ‘bio-politics of population’, the investigation and regulation of the conditions affecting human life and death.

As the jury evolved from its original form – community members selected for their firsthand knowledge of the details of an offence – into a body of citizens chosen specifically for their lack of any such knowledge, witnesses played an increasingly important role in trials as suppliers of facts. Witnesses were, however, restricted to facts: the courtroom division of labour mandated that the jury alone drew inferences. A clear description of the separate roles of juryman and witness can already be found in the seventeenth century: ‘a Witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses. But a Juryman swears to what he can inferr and conclude from the Testimony.’

Not all witnesses, however, were restricted to direct observation. There were numerous instances when special or ‘skilled’ witnesses were called to inform the court in areas of expertise supposedly beyond the ken of ordinary folk. Alone among witnesses, these men of skill – be they ship surveyors, insurance brokers, physicians, or grammarians – offered opinions on matters of fact relating to the offence in question. Was this a violation of the fundamental tenet that witnesses were not to offer inferences? To answer this objection, some jurists asserted that such opinion ‘really has the flavor of a fact’, that the testimony of skilled witnesses constituted a ‘class of facts about which expert persons alone could have knowledge’.

The investigation of sudden death in England during the seventeenth and eighteenth centuries was constrained by the equivocal status of the coroner and his inquest, and by the lack of provision for the regular admission of medical evidence in both pre-trial and trial procedures. When the office of coroner was established at the end of the twelfth century, coroners were required to act as keepers of the Crown pleas and to collect the revenue due to the Crown in connection with those pleas. In the fourteenth and fifteenth centuries, changes in the local and central administration of justice, including the rise of the justices of the peace, combined to divest the coroners of much of their authority. By the seventeenth and eighteenth centuries, the coroners' loss of authority was accompanied in many cases by a lack of care and diligence in performing their remaining duties. In the seventeenth century, Sir Matthew Hale noted that most coroners' inquisitions were inadequate, and in 1761 Edward Umfreville, one of the coroners for Middlesex, was prompted by the disrepute into which the office had fallen to publish his own private notes in an attempt to encourage ‘a general uniform Practice’ amongst coroners.

From a medico-legal perspective, one of the most significant features of the decline of the coroner's office is the fact that the coroner's jurisdiction to take inquisitions touching the death of a person subito mortuis, super visum corporis was restricted by the belief that only sudden deaths with manifest evidence of violence warranted inquiry.

The complexity and decentralization of the United States' legal system presents an intriguing intellectual puzzle to the historian of American legal medicine. Not only are there federal, state and local laws, but also city, county, and township jurisdictions, and English, French, and Spanish legal traditions. The varying levels of legal and medical education and practice, both within and between regions, are additional factors demanding study and consideration. Social historians have recently begun to examine the creation of national medico-legal institutions and issues and their change over time, viewing local differences as clues to historical understanding, rather than as obstacles. This essay contributes to this effort by examining the development of forensic pathology in the United States, paying particular attention to its institutional locus, the coroner's office. This office, where the application of forensic pathological knowledge legitimized social policy, was the site of confrontation for the professions of law, medicine, and politics.

The office of coroner is an inheritance from English common law. In the colonial and early federal eras it was a minor political office, whose occupant was usually appointed by the governor. Whereas English coroners were often physicians, attorneys, or local magistrates, American coroners usually had no professional qualifications, and were typically farmers, carters, or undertakers. This was due in part to the less metropolitan and class-conscious nature of American society, but the low population density and the geographical dispersal of the population also played a part. In many places, possession of a wagon suitable for hauling away bodies was a major recommendation for the job of coroner.

Although there were no specialized treatises on legal medicine written in English before the later eighteenth century, midwives and medical men had been called upon to give expert testimony for centuries before that. The work of the late Thomas Forbes suggests that the eighteenth-century explosion of professionally trained practitioners was accompanied by a corresponding increase in their use as experts in criminal trials. His work has been taken to demonstrate that medical testimony did not have much authority until the nineteenth century, when coroners and assize courts increasingly relied upon autopsies to help them distinguish natural or accidental deaths from suicides and homicides. Historians have only recently begun to explore crucial issues such as the impact of expert testimony and the extent to which medical practitioners mediated or modified ideas about the nature of criminal responsibility.

Forbes's concentration on capital crimes gives the impression that such cases constituted the bulk of medical practitioners' expert testimony. This was far from being the case. Most of the occasions when midwives or medical men were required to testify on oath or provide written testimony were far more mundane. This essay is an attempt to sketch the broad range of medico-legal practice in provincial England in the early modern period. Such a study is necessarily limited by gaps in the records but nevertheless a sufficiently wide range of legal medicine can be portrayed to compensate for the impossibility of making statistical comparisons.

It has long been remarked that Britain lagged nearly two centuries behind continental Europe in developing a science of forensic medicine. In his ‘Early history of legal medicine’ (1950–1), Erwin Ackerknecht cited more than a dozen monographs on medico-legal problems published in France and Italy during the late sixteenth and early seventeenth centuries. Thereafter, German publications began to multiply, and ‘there was in Germany during the 18th century an almost uninterrupted production of treatises on legal medicine’. By contrast, wrote Ackerknecht, the English contribution to the science of forensic medicine before 1800 was ‘practically nil’. Subsequent research has identified a few more English writings on the subject, but the paucity of English medico-legal literature in the early modern period in comparison with that of the Continent remains striking.

England did not lack medico-legal activity. Between 1730 and 1760, medical testimony was heard at more than half the homicide trials at the Old Bailey, the main criminal court for London and Middlesex. It was also not uncommon in America and northern England in the seventeenth and eighteenth centuries, as the first three chapters of this book show. The medical questions that arose in legal proceedings were rather different from those encountered in private practice, yet English medical and legal literature provided practitioners and magistrates with very little guidance on the subject. This chapter attempts to account for both the rarity of medico-legal studies in early modern England and the relative abundance of such publications in Italy, France and especially Germany.