The legal inheritance
Why is it, asked Catherine Crawford 16 years ago, that medico-legal publications were rare in early modern England but comparatively abundant in Italy, France and especially Germany?1 Although there may have been a certain lack of enthusiasm for this type of work, given its association with unsavoury crimes and public trials, recent studies have shown that medical professionals, primarily surgeons and apothecaries,2 were present as witnesses in English law courts during the seventeenth and especially eighteenth centuries, but in a much less systematic manner than in continental Europe.3 The problem seems, in eﬀect, to have been one of failure to record the experience for the beneﬁt of others, rather than an absence of forensic practice. In what has proved to be the deﬁnitive solution to the mystery, Crawford identiﬁed one fundamental factor: diﬀerences between legal systems and speciﬁcally between standards of proof and evidence. This chapter considers the Western legal inheritance, that is, the system of
laws and oﬃcial practices which emerged in medieval Europe, to explain the evolution of and diﬀerences between the two major legal systems that have shaped the development of forensic medicine. These were the Continental system, based on Roman and canon (church) law, and the Anglo-American system, based on English common law. Every nation in the modern Western world can trace the history of its civil and criminal laws to these two traditions, but it was their diﬀering methods of proof that were to be the driving factors in stimulating the need for and reception of medical testimony in legal proceedings. Despite common historical foundations and shared trends in the systems of rational proof that emerged during the twelfth and thirteenth centuries,4 the rules of evidence created on either side of the English Channel worked in opposing ways with regard to witness testimony in criminal trials. In England, juries became the ﬁnders of fact and based their decisions on oral eyewitness testimony; there was no formal mechanism for obtaining evidence from anyone who had not been a direct observer of the events in question. On the Continent, by contrast, judges investigated crime and determined guilt or innocence on the strength of the evidence that they gathered and compiled in written dossiers; their need to establish the facts of a case required them to seek out relevant information from anyone who could provide it. It was this
feature of Continental practice that was to provide medical practitioners with a key point of entry to the legal system.