1. See, e.g., Federal Rule of Evidence 702, which allows experts with special “knowledge, skill, experience, training, or education [to] testify thereto in the form of an opinion or otherwise.”

2. See Faigman, David, Porter, Elise, and Saks, Michael, “Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying about the Future of Scientific Evidence,” Cardozo Law Review 15 (1994): 1802 and n. 6Google Scholar (questioning whether there has been substantial growth in the use of expert testimony).

3. See Giannelli, Paul, “The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later,” Columbia Law Review 80 (1980): 1198–99CrossRefGoogle Scholar. For a useful empirical snapshot of the use of experts in a sample of California civil cases in 1985-86, see Samuel Gross, “Expert Evidence,” Wisconsin Law Review (1991): 1113-1232.

4. See, e.g., Huber, Peter W., Galileo's Revenge: Junk Science in the Courtroom (New York: Basic Books, 1991)Google Scholar. Concern about partisanship is not new. Wigmore, many years ago, argued that expert partisanship conflicts with “that ideal of impartiality and trustworthiness which is naturally associated with abstract scientific truth.” Wigmore, John, Evidence in Trials at Common Law (Chadbourn, John, rev. ed. [1979]), 2:160Google Scholar.

5. See Daubert v. Merrill Dow Pharmaceuticals Inc., 113 S.Ct. 2786 (1993), and Federal Rule of Civil Procedure 26 (a) (2), which requires detailed written reports and other materials to facilitate scrutiny of expert opinions. On further regulation, see “Symposium, Scientific Evidence After the Death of Frye,” Cardozo Law Review 15 (1994): 1745Google Scholar.

6. See Oldham, James, “The Origins of the Special Jury,” University of Chicago Law Review 50 (1983): 137CrossRefGoogle Scholar.

7. For evidence of the scope of arbitration in the eighteenth century, see Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 2: appendix EGoogle Scholar.

8. See Oldham, The Mansfield Manuscripts, 99.

9. On the transformation of the adjudicatory system, see Landsman, Stephan, “The Rise of the Contentious Sprit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 15 (1990): 497Google Scholar.

10. 6 St. Tr. 687 (1665).

11. Ibid., 697.

12. For an excellent description of Dr. Brown's background and of the Bury St. Edmund trial, see Geis, Gilbert and Bunn, Ivan, “Sir Thomas Browne and Witchcraft,” International Journal of Law and Psychiatry 4 (1981): 1Google Scholar. (The spelling of Brown's name varies from source to source.) Brown held an undergraduate degree from Oxford and had trained on the Continent as a physician. He was the author of a series of influential volumes including Religio Medici in which he declared: “I have ever believed, and do now know, that there are witches; they that doubt of these, do not only deny them, but spirits; and are obliquely upon the consequence a sort, not of infidel, but atheists” (quoted in Geis and Bunn, “Sir Thomas Browne and Witchcraft,” 3-5). On the more general topic of witchcraft trials, see, e.g., Macfarlane, A. D. J., Witchcraft in Tudor and Stuart England: A Regional and Comparative Study (New York: Harper & Row, 1970)Google Scholar. Geis and Bunn hypothesize that Brown had been requested to observe the proceedings and perhaps participate therein by several friends who, the record notes, were present, including Erasmus Earle, an attorney, and Charles Cornwallis, a gentleman magistrate. Geis and Bunn, “Sir Thomas Browne,” 6.

13. 6 St. Tr. 697

14. Ibid., 700.

15. Geis and Bunn sharply criticize Dr. Brown for his testimony, emphasizing the physician's lack of expertise regarding the Danish events. They, however, reserve their sharpest criticism for Hale, whose charge invited conviction in a weak case. Geis and Bunn, “Sir Thomas Browne,” 6-9.

16. For a detailed examination of the issues, see Landsman, “The Rise of the Contentious Spirit.”

17. See Langbein, John, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 1–136CrossRefGoogle Scholar.

18. The early editions of the OBSP are, as Langbein has noted, “quite selective, reporting only a few cases of greatest general interest.” See Langbein, John, “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 268Google Scholar. Around 1715, however, they begin to contain more extensive coverage, making a systematic assessment practical. It is for this reason that the sample selected here begins in 1717, when a complete year of expanded reports first became available. The representativeness of the present data (utilizing every fifth year of the OBSP) is suggested by a comparison between them and those reported in Forbes, Thomas, Surgeons at the Bailey: English Forensic Medicine to 1878 (New Haven: Yale University Press, 1985)Google Scholar. Forbes examined all Old Bailey cases involving medical testimony from 1729 to 1878 in ten-year increments and reported, among other things, the number of murders and infanticides where medical experts testified. When his decennial totals are compared with the number of murders and infanticides (which constitute 86 percent of all the cases in the current data set) found in the present study for the years 1732-1817, they display a fairly consistent relationship. The present data are generally about 35 percent as large as Forbes's totals regarding murder and infanticide. There are only two decades in which a variation of more than 10 percentage points exists (1739-48 and 1809-18) and in one of these (1739-48) the data for the present study overrepresent the total number of cases in the decade.

19. Clark, Michael and Crawford, Catherine, “Introduction,” Legal Medicine in History, ed. Clark, Michael and Crawford, Catherine (Cambridge: Cambridge University Press, 1994), 17.CrossRefGoogle ScholarPubMed

20. See Parry, Noel and Parry, José, The Rise of the Medical Profession: A Study of Collective Social Mobility (London: Croom Helm, 1976), 104–5Google Scholar (noting as well that there were two grades of physicians: fellows and licentiates); Digby, Anne, Making a Medical Living: Doctors and Patients in the English Market for Medicine, 1720-1911 (Cambridge: Cambridge University Press, 1994), 28–31Google Scholar. Dorothy Porter and Roy Porter have made the point that this description of the structure of the profession is not entirely accurate, especially outside the London metropolitan area. Professional advancement was individual rather than corporate and many of those providing medical care crossed categorical lines in providing treatment. Porter, Dorothy and Porter, Roy, Patient's Progress: Doctors and Doctoring in Eighteenth-Century England (Stanford: Stanford University Press, 1989), 17–19Google Scholar.

21. See generally Shapiro, Barbara, Beyond “Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University of California Press, 1991).Google Scholar

22. Medical witnesses appeared in the following number of cases in each of the sample years: 1717—5, 1722—22, 1727—12, 1732—11, 1737—15, 1742—12, 1747—5, 1752—5, 1757—5, 1762—5, 1767—10, 1772—3, 1777—10, 1782—5, 1787—12, 1792—4, 1797—6, 1802—2, 1807—10, 1812—6, 1817—9.

23. See Landsman, “The Rise of the Contentious Spirit,” 606, table 1.

24. Forbes's data on murder and infanticide are similar in that they reflect no trend toward higher levels of medical witness participation, at least until the second or third decade of the nineteenth century. See Forbes, Surgeons at the Bailey, 21, table 1, and 127, table 7.

25. See Landsman, “The Rise of the Contentious Spirit,” 608-9, tables 3 and 4.

26. I follow John Langbein's suggested citation form for the OBSP reports. For each I note the case name (using the surname of the first listed defendant), the fact that the case came from the OBSP, the month and year of the proceeding in question, and the page(s) on which the cited material is to be found. See Langbein, “The Criminal Trial Before the Lawyers,” 263, 268 n. 18. In the case of Benjamin Russen, the appropriate citation is: Russen, OBSP (Oct. 1777), at 360.

27. Russen, OBSP (Oct. 1777), at 366. For two similar cases, see Murray, OBSP (Sept. 1757), at 325 (surgeon employed by defendant to examine body of deceased called in prosecution's case); Thomas, OBSP (May 1787), at 692 (surgeon employed by defendant's master called in prosecution's case).

28. Fuller, OBSP (Sept. 1737), at 179.

29. Ibid., 182.

30. The actual number of cases in which medical witnesses appeared, in each category of offense, was as follows: total number of cases—174, murder cases—131, rape cases—16, infanticide cases—18, miscellaneous cases—9.

31. The number of cases in which the prosecution/defense offered expert testimony, in each category of offense, was as follows: total number of cases 164/26, murder cases—124/16, rape cases—15/5, infanticide cases—18/2, miscellaneous cases—7/3. (The combination of prosecution and defense offerings may exceed the totals provided in note 30 because witnesses were offered by both sides in some cases.)

32. The prosecution/defense data in cases in which one side or both offered multiple medical witnesses were as follows: total number of cases—40/9, murder cases—28/7, rape cases—3/1, infanticide cases—8/0, miscellaneous cases—1/2.

33. See generally Wilson, Adrian, “William Hunter and the Varieties of Man-Midwifery,” in William Hunter and the Eighteenth-Century Medical World, ed. Bynum, W. F. and Porter, Roy (Cambridge: Cambridge University Press, 1985), 343Google Scholar.

34. This finding is somewhat at odds with the impression of other scholars that multiple medical witness appearances were unusual. See Crawford, Catherine, “The Emergence of English Forensic Medicine: Medical Evidence in Common Law Courts, 1730-1830” (Ph.D. diss., Oxford University, 1987).Google Scholar

35. Medical witnesses at the Old Bailey were sometimes described as having more than one sort of expertise. A surgeon, for example, might describe himself as a “man-midwife” or apothecary as well as provider of surgical care. In such circumstances the witness has been classified as a member of the most prestigious medical group to which he claimed to belong, beginning with physician and descending through surgeon, apothecary, and midwife. For an assessment of the social prestige of each group of medical practitioners, see Noel Parry and Jose Perry, The Rise of the Medical Profession, passim.

36. Figures regarding the time sequence (first, middle, last) of expert witness presentation were as follows: first—prosecution 6/defense 13, middle—prosecution 37/defense 6, last—prosecution 118/defense 6. (The total number of prosecution cases in the sample was 164 and the total number of defense cases was 26. These figures include three prosecution cases and one defense case in which a combination of presentation patterns was used.)

37. See, e.g., Mudd, OBSP (April 1737), at 86-87 (“g. Was he well when he came down Stairs? [Eliz.] Aggleton. Yes; very well; so I suppose he dy'd of the wound.”); Mahony, OBSP (Sept. 1807), at 382 (“Q. What occasioned his death. A. I do not know, he was hearty and well when he went to the fields, and he died afterwards.”).

38. Vezey, OBSP (Jan. 1732), at 41.

39. Ibid., 42.

40. Ibid., 43.

41. P—W—, OBSP (Dec. 1741), at 14; Pestell, OBSP (May 1752), at 179; Sibson, OBSP (May 1762), at 117.

42. Sibson, OBSP (May 1762), 120.

43. Godfry, OBSP (Feb. 1807), at 147.

44. Ibid. This testimony also presented a hearsay problem that may have led to its curtailment. Old Bailey judges, however, often showed some flexibility with hearsay when its source was, as in this case, available and about to testify. See generally Landsman, “The Rise of the Contentious Spirit,” 562-72.

45. Bembridge, OBSP (Dec. 1721), at 3.

46. Ibid., 4. It should be noted that because of the way the report is written there is some ambiguity about whether Lampton joined in all the remarks made. For a comparable report, see Ingram, OBSP (Feb. 1722), at 2.

47. Tapper, OBSP (Feb. 1732), at 82.

48. Pestell, OBSP (May 1752), at 179.

49. Annesley, OBSP (July 1742), at 3.

50. Ibid., 27.

51. Ibid.

52. From the earliest moment in the case “attornies,” including a man named John Patterson, were at work on the defendant's behalf shaping the legal proceedings. Patterson appeared at Annesley's trial and testified as follows about his appearance at an earlier inquest: “I had not time to enquire into the Fact, and prepare for Mr. Annesley's Defense, I could do him but little Service more, than by Cross-examining the Witnesses for the Crown and making Observation on their Evidence.” Ibid., 25 (emphasis in the original). It seems highly likely that between the inquest and the trial Patterson or others did “enquire into the Fact” and contact the medical witnesses the defense would rely upon at trial.

53. Ibid., 28. (Expert reliance on tests or experimental data will be considered in some detail below.)

54. Ibid., 42.

55. Hallgeel, OBSP (July 1767), at 233.

56. The young man would say no more than that the wounds inflicted by the defendant “very possibly… might occasion his death.” Ibid., 239.

57. Ibid.

58. There was a colorable claim of sexual betrayal.

59. Eddes, OBSP (Jan. 1777), at 71. The surgeon declared: “I don't believe it did [cause the victim's death].” Ibid., 73.

60. Ibid.

61. Ibid., 74.

62. M'Carthy, OBSP (Sept. 1802), at 460.

63. Ibid., 461.

64. The harshness of the infanticide law under which M'Carthy was tried (including a presumption of guilt if the birth of an illegitimate child were concealed) may have heightened the desire for certainty. On the operation of the infanticide statute, see Peter C. Hoffer and Hull, N. E. H., Murdering Mothers: Infanticide in England and New England, 1558-1803 (New York: New York University Press, 1984), 19–23Google Scholar.

65. Ibid., 217. (“The traditional preference for direct testimonial over circumstantial evidence seems to have been reversed during the course of the eighteenth century.”)

66. From the 1690s on substantial bounties were offered for the capture and conviction of certain felons. See Beattie, John M., Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 50–54Google Scholar. Eventually, a number of “thief catchers,” like the notorious Jonathan Wild, sought to pad their incomes by making false accusations. See Landsman, “The Rise of the Contentious Spirit,” 572-80. Defendants might be persuaded to testify against others as a means of securing their freedom. “Both the authorities and private prosecutors actively sought the cooperation of accomplices as the most likely means of apprehending and convicting offenders. What was offered was usually described as a pardon.” Beattie, Crime and the Courts, 67. The so-called Popish Plot trials of the 1670s provide a stark example of the manipulation of criminal trial testimony to secure political objectives. See, e.g., Wilson, John, The Ordeal of Mr. Pepys's Clerk (Columbus: Ohio State University Press, 1972)Google Scholar.

67. For Oates, see Wilson, The Ordeal of Mr. Pepys's Clerk. For Wild, see Howson, Gerald, It Takes a Thief: The Life and Times of Jonathan Wild (London: Cresset Library, 1987)Google Scholar. Wild was the infamous inspiration for Gay's The Beggar's Opera, Defoe's Moll Flanders, and Fielding's Jonathan Wild. For Macdaniel, see Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 110-14.

68. Eighteenth-century courts treated penetration as the key question in rape cases. See Hale, Matthew, History of the Pleas of the Crown, vol. 1 (1736)*628Google Scholar. They seldom appeared willing to accept anything less than the clearest proof on these matters. Hale's famous comment about rape illustrates contemporary views. He declared: “[rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Ibid., *635. See Forbes's discussion of forensic assessment of rape in Surgeons at the Bailey, 86-91. Unfortunately, he does not pursue either the question of conflicting objectives or the judicial emphasis on penetration.

69. Smith, OBSP (Apr. 1762), at 90. Brown, OBSP (June 1767), at 215.

70. In the Smith case the surgeon, Benedict Duddle, was asked: “If there were only the venereal disorder about his private parts, and he was only to attempt it, would not there be the same symptoms?” Smith, OBSP (Apr. 1762), at 90. Similarly in the Brown case the surgeon was asked: “Can you say whether the child was actually penetrated?” Brown, OBSP (June 1767), at 216.

71. Payne, OBSP (Sept. 1767), at 315.

72. Ibid., 318.

73. Carter, OBSP (July 1787), at 869.

74. Lowe, OBSP (July 1792), at 334. Cunningham, OBSP (Jan. 1797), at 97. Houghton, OBSP (Oct. 1807), at 477. Rigby, OBSP (Oct. 1807), at 497.

75. An important question regarding these witnesses, and requiring further research, is whether they were being specially compensated for their expert assessments. The OBSP provides no information on this point. If they were not being specially paid for their opinions they would have had one more reason to take a detached and dispassionate view of the proceedings. James Mohr in his excellent study tracing the evolution of American medical jurisprudence in the nineteenth century notes the absence of special compensation to medical witnesses throughout much of the 1800s. See Mohr, James, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York: Oxford University Press, 1993)Google Scholar.

76. See above at notes 38-40 and accompanying text.

77. Vezey, OBSP (Jan. 1732), 51.

78. Mullen, OBSP (May 1757), at 221.

79. Farrer stated in response to a defense question on the matter: “I can't say I ever met with it in this kind.” Ibid., 224.

80. Farrer declared: “I can't say any thing to that; I never met with any instance of that sort.” Ibid.

81. Ibid., 225.

82. Ibid.

83. Blandy, OBSP (March 1752) (Oxford Assizes); Swan, OBSP (March 1752) (Chelmsford Assizes). The Blandy case was something of a cautionary tale for medical witnesses. Two of the experts called in that trial, Doctors Frewin and Lewis, became publicly “notorious,” in part because of their participation in the matter. See Harley, David, “Honour and Property: The Structure of Professional Disputes in Eighteenth-Century English Medicine,” in The Medical Enlightenment of the Eighteenth Century, eds. Cunningham, Andrew and French, Roger (Cambridge: Cambridge University Press, 1990), 138–60Google Scholar. It should be noted that Forbes, in his chapter on poisioning, did not count at least one of the two OBSP poisoning cases reported in 1752. Unfortunately, Forbes's data do not provide any explanation of this discrepancy. See Forbes, Surgeons at the Bailey, 123-65.

84. Pestell, OBSP (May 1752), at 179.

85. Carpenter, OBSP (June 1752), at 193.

86. Ibid., 196.

87. Ibid.

88. Ibid.

89. Sibson, OBSP (May 1762), at 117.

90. The Sibson case occupied more than twelve double-columned pages in the OBSP. Ibid., 117-30.

91. In medical disputes during this era, it was quite common for disputants to focus on the educational limitations of those who had been or still were apothecaries. See Harley, “Honour and Property,” 145-50. Those with “an expensive learned education” often stressed it in disputes with “those who had a cheaper technical training.” Ibid., 145.

92. Tyrrell, OBSP (Sept. 1762), at 171.

93. Elliott, OBSP (July 1787), at 809.

94. For information on Garrow, see Landsman, “The Rise of the Contentious Spirit,” 561-64; Beattie, John, “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221CrossRefGoogle Scholar.

95. Elliott, OBSP (July 1787), 823.

96. The court directed an acquittal on the strength of a finding by the jury that there was no ball in the pistol that the defendant shot at his beloved. It is reasonably clear that neither judge nor jury was persuaded by the insanity plea.

97. Bellingham, OBSP (May 1812), at 263. Percival was an exceedingly popular leader. The judge in the case literally wept as he made his closing remarks to the jury. Ibid., 272. Forbes notes that the case was prosecuted in the utmost haste (Bellingham was tried, sentenced, and hung within eight days). The court denied the defendant an adjournment to allow for the arrival of certain witnesses who lived outside London, and the accused offered no proof on the question of insanity. See Forbes, Surgeons at the Bailey, 179.

98. Bowler, OBSP (July 1812), at 322.

99. The two preeminent experts were Dr. Ainsley and Thomas Warburton. Each claimed to have treated hundreds of deranged people and each was regarded as particularly knowledgeable about insanity. Ibid., 333 and 339. Ainsley lived from 1760 to 1834. He held an M.D. from Cambridge (1793) and served on the staff of St. Thomas's Hospital from 1795 to 1800. Warburton had held positions on the staff of St. Luke's and Hoxton Hospital. See Eigen, Joel, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995), 195, 205.Google Scholar

100. Bowler, OBSP (July 1812), 332.

101. Ibid. (emphasis added).

102. Counsel began his examination: “I need not ask you whether you are a physician.” Ibid., 333.

103. Ibid.

104. Halle, OBSP (July 1717), at 4.

105. The court in this case had the relevant statute read to the jury. It provided “that the concealing the Birth and Death of Bastard-Children should make the Mothers deem'd the Murtherers of them.” The defendant escaped the mandatory operation of the statute by providing some evidence of her marriage, thereby making the birth that of a legitimate child. Ibid. The cruel operation of this statute is explored in detail in Hoffer and Hull, Murdering Mothers, 19-23.

106. As in the case of Dr. Brown, discussed in note 12 above, there may be reason to wonder if the surgeon in Halle was truly a bystander or had been invited to attend the proceedings.

107. Halle, OBSP (July 1717), 4. In the Trial of Witches, too, the evidence solicited by the judge was confirmatory of the court's view. Hale instructed the jury in no uncertain terms that there were such creatures as witches. On the strength of this instruction, among other things, Geis and Bunn place primary blame for the conviction on Hale. See above, note 15.

108. See above, notes 38-40 and accompanying text.

109. Vezey, OBSP (Jan. 1732), 51.

110. Bird, OBSP (Sept. 1742), at 42.

111. Ibid., 51.

112. Ibid.

113. Sweatman, OBSP (Feb. 1782), at 193.

114. Ibid., 197.

115. Ibid., 198.

116. See Rex v. Ferrers, 19 St. Tr. 942 (1760).

117. Russell, OBSP (July 1782), at 483.

118. Ibid.

119. Briant, OBSP (Sept. 1797), at 484.

120. Ibid., 487.

121. See Adrian Wilson, “The Politics of Medical Improvement in Early Hanoverian London,” in The Medical Enlightenment, 27-28.

122. Wilson's penetrating analysis of the political implications of this experiment is worth quoting at length:

But what should also command our attention is the political precondition of the experiment. In order for the experiment to be performed, Sloane and his allies had to be given the power of life and death over the six prisoners. The State handed over to the Royal Society its control over six human lives. Without this fundamental resource, the experiment could not have been carried out; and the availability of that resource was an extraordinary political fact, a quite remarkable donation from the State to a select group of its citizens. This can only mean that inoculation had prior support from the Crown and the ministry. And this was indeed the case. Inoculation was specifically a project of the Court Whigs; opposition to the practice came exclusively from Tories. This fundamental cleavage of attitudes to inoculation was to persist until at least the 1740s. (Ibid., 29 [emphasis in the original])

123. Annesley, OBSP (July 1742), at 3. See above, notes 49-54 and accompanying text.

124. Ibid., 28.

125. Sibson, OBSP (May 1762), at 117. See above, notes 89-92 and accompanying text.

126. Wilson, OBSP (April 1737), at 89. For a discussion of the medical history of the lung flotation test, see Forbes, Surgeons at the Bailey, 102-6.

127. Wilson, OBSP (April 1737), 90. Though coroners were charged with the duty to hold inquests into the causes of violent deaths, “[b]y the 1700s the office had reached a nadir of prestige and experience.” Forbes, Surgeons at the Bailey, 11. Coroners during that time faced a series of fiscal and administrative hurdles that only began to be removed in the 1830s. Ibid., 12-13.

128. Wilson, OBSP (April 1737), 91.

129. Not all medical witnesses were as cautious about the lung flotation test. See, e.g., Allen, OBSP (Oct. 1737), at 203: “I try'd the Experiment of the Lungs in the water, (which I take to be very certain) and they floated.”

130. Mullen, OBSP (May 1757), at 221.

131. Church, OBSP (April 1762), at 99. Quote at 100.

132. Field, OBSP (Dec. 1766), at 45 (prosecution of a father for drowning a newborn). Quote at 46.

133. See above, notes 117-18 and accompanying text.

134. M'Carthy, OBSP (Sept. 1802), at 461. See above, notes 62-63 and accompanying text.

135. In the 1790s and beyond, there was a reaction against the experimental approach in medicine. This was, in part, caused by the association between an experimental methodology and French medical practice (then under suspicion because of the French Revolution and the subsequent rise of Napoleon). It was also associated with antivivisectionist feeling and suspicions about hospitals as outposts for unauthorized medical testing. See Porter, Roy, Doctor of Society: Thomas Beddoes and the Sick Trade in Late-Enlightenment England (London: Routledge, 1992), 49–50Google Scholar. This reaction cautions against the perception that eighteenth-century Whiggish developments inevitably led ever “upwards” toward modern “enlightened” practice.

136. Increasing the momentum in this direction was medical conceptualization, throughout the eighteenth century, of the workings of the body in mechanistic and material terms. Doctors were “committed to the conviction that understanding the organic economy was a matter of the systematic investigation of corporeal fibers, tissues, vessels, and membranes.” Ibid., 26. This orientation directed them toward sensitivity to symptoms evidence and post-mortem dissection.

137. See Cooper, OBSP (Dec. 1736), at 9; Shrewsbury, OBSP (Feb. 1737), at 67.

138. The Oxford English Dictionary defines “extravasated” as “Of a fluid, esp. blood: Let or forced out of its proper vessel: effused.”

139. Fuller, OBSP (Sept. 1737), at 179.

140. The surgeon, Mr. Westbrook, said: “I had some conference with the rest of my Brethren; most of them were of Opinion, that we ought to let the Body alone that it was not safe for us to meddle with it, on Account of our Healths.” Ibid., 182.

141. Bird, OBSP (Sept. 1742), at 52. See above, notes 110-12 and accompanying text.

142. Mullen, OBSP (May 1757), at 221.

143. For a detailed analysis of the rise of the trial lawyer, see Landsman, “The Rise of the Contentious Spirit,” especially table 2, at 607.

144. Noakes, OBSP (Jan. 1732), at 64.

145. Mullen, OBSP (May 1757), at 221.

146. Ibid., 224 (emphasis added).

147. Ibid.

148. Ibid., 225.

149. Clark, OBSP (Dec. 1786), at 131.

150. The Oxford English Dictionary defines “fomentation” as “[t]he application to the surface of the body either of flannels, etc. soaked in hot water, whether simple or medicated, or of any other warm, soft, medicinal substance.”

151. Clark, OBSP (Dec. 1786), 136.

152. Many laymen of the upper strata of English society became well versed in medical jargon and technology during the eighteenth century. Roy Porter has reported that both doctors and laymen were frequent correspondents on fairly esoteric medical questions in the Gentleman's Magazine during this era (the magazine began publication in 1731). See “Laymen, Doctors and Medical Knowledge in the Eighteenth Century: The Evidence of the Gentleman's Magazine,” in Patients and Practitioners: Lay Perceptions of Medicine in Preindustrial Society, ed. Porter, Roy (Cambridge: Cambridge University Press, 1985): 283.Google Scholar Lawyers and judges, including Dudley Ryder and Roger North, were among those who manifested a keen awareness (and, often, suspicion) of medical doings. See Dorothy Porter and Roy Porter, Patient's Progress, 37.

153. Radbourne, OBSP (July 1787), at 750.

154. Ibid., 762.

155. Graff, OBSP (Dec. 1721), at 8. Quote at 9.

156. Ibid.

157. For a strikingly similar later case, see Briant, OBSP (Sept. 1797), at 484. The case ended in conviction despite a nonobserver defense expert assertion that rape was impossible without “a discharge of blood, and appearances of [penetration] by force.” Ibid., 489.

158. See above, notes 89-92 and accompanying text.

159. Sibson, OBSP (May 1762), 124.

160. Tyrrell, OBSP (Sept. 1762), at 171.

161. See above, notes 98-103 and accompanying text.

162. Thomas, OBSP (May 1787), at 692.

163. Ibid., 695.

164. See above, notes 145-48 and accompanying text.

165. For Halle, see above, notes 104-7 and accompanying text. For Russen, see above, note 26 and accompanying text.

166. See above, notes 155-56 and accompanying text.

167. See above, notes 98-103 and accompanying text.

168. It is only recently that scholars have begun to explore the development of medicine during the eighteenth century. Roy Porter describes traditional studies as having classified medical practice during the 1700s “as a wasteland of speculative theorizing and arid rationalism.” Porter, Doctor of Society, 23.

169. See Dorothy Porter and Roy Porter, Patient's Progress, 18, 28; Noel Parry and José Parry, The Rise of the Medical Profession, 104-30.

170. See Dorothy Porter and Roy Porter, Patient's Progress, 208: “The medical market-place was eclectic and open, being determined chiefly by ability to pay. Doctors would sink or swim as individuals; the professional life-raft lay in the future.”

171. Ibid., 96-114.

172. See Porter “Laymen, Doctors and Medical Knowledge,” 287: “For authority and status, reward and advancement, doctors looked not to collective professional paths of glory, but to the personal favour of grandees.”

173. Ibid.

174. See Wilson, “The Politics of Medical Improvement,” 10-24. The first hospital was established in 1719. By 1750, there were seventeen. Ibid., 11.

175. See Dorothy Porter and Roy Porter, Patient's Progress, 12; Porter, Doctor of Society, 31.

176. See Porter, Doctor of Society, 71-72.

177. Ibid. A prominent physician of the time, Thomas Beddoes, described the common attitude: “Every man of sense at forty [fallaciously thinks he] knows what is good for his constitution.” Quoted in Ibid., 68.

178. See Dorothy Porter and Roy Porter, Patient's Progress, 94.

179. See Porter, “Laymen, Doctors and Medical Knowledge,” 310.

180. Patient distrust often dictated multiple opinions. See Dorothy Porter and Roy Porter, Patient's Progress, 79-80.

181. Ibid., 23 (one way forward in a medical career was through authorship) and 141 (words themselves were often viewed as treatment).

182. Ibid., 66: “Late eighteenth-century discussions of the duties and role of the doctor pay notably more attention to medical ‘etiquette’ than to ‘ethics,’ and set a premium upon mutual gentlemanly intercourse between doctor and patient.”

183. See Harley, “Honour and Property,” 144.

184. Ibid., 157.

185. Ibid., passim.

186. See above, notes 89-92 and accompanying text.

187. Shapin, Steven, A Social History of Truth: Civility and Science in Seventeenth-Century England (Chicago: University of Chicago Press, 1994)Google Scholar.

188. Ibid., 74.

189. Ibid., 69.

190. Ibid., 42-43.

191. Ibid., 66.

192. Lord Chesterfield provided a striking example of this approach when he advised his son that if he (Chesterfield) witnessed anything “so very extraordinary as to be almost incredible, I would keep it to myself, rather than by telling it, give anybody to doubt for one minute of my veracity.” Quoted in Ibid., 81.

193. Ibid., 351.

194. Ibid., 122.

195. Ibid., 223.

196. Ibid., 124.

197. Ibid., 187.

198. Ibid., 373 (discussing the medical careers of two of Boyle's assistants, Frederic Slare and John Mayow). Thomas Beddoes was another prominent physician profoundly influenced by Boyle. See Porter, Doctor of Society, 50.

199. Boerhaave taught at Leyden in the Netherlands and established what became the most prominent medical training program in Europe. His methods inspired his pupils to create the United Kingdom's finest medical training program at Edinburgh. See Andrew Cunningham, “Medicine to Calm the Mind: Boerhaave's Medical System, and Why It Was Adopted in Edinburgh,” in The Medical Enlightenment, 40-66, especially 49-56.

200. See Dorothy Porter and Roy Porter, Patient's Progress, 142; Porter, “Laymen, Doctors and Medical Knowledge,” 309.

201. A striking example of this was William Garrow's examination of the surgeon James Ware in the prosecution of Robert Clark for killing John Delew by kicking him in the stomach and groin. See above, notes 149-51 and accompanying text.

202. These factors also help explain the negative reactions of judges, lawyers, and jurors to expert advocacy.

203. Droyre, OBSP (Feb. 1787), at 398.

204. Ibid., 400-401.

205. 3 Doug. 157 (1782).

206. Ibid., 159.

207. See Crawford, “The Emergence of English Forensic Medicine,” 230 and n. 135 citing Parkes, S., “Observations on the Chemical Part of the Evidence… Against the Imperial Insurance Company,” Quarterly Journal of Science, Literature and Art 10 (1821): 317Google Scholar.

208. Ibid.

209. Gilbert, Geoffrey, The Law of Evidence (facsimile of the 1754 ed., New York: Garland, 1979)Google Scholar. For a brief discussion of the place of Gilbert's work in the evidence treatise tradition, see Landsman, Stephan, “From Gilbert to Bentham: The Reconceptionalization of Evidence Theory,” Wayne Law Review 36 (1990): 1149Google Scholar; Mcnair, M. R. T., “Sir Geoffrey Gilbert and His Treatise,” Journal of Legal History 15 (1994): 252Google Scholar.

210. Peake, Thomas, A Compendium of the Law of Evidence (facsimile of the 1801 ed., New York: Garland, 1979).Google Scholar

211. Ibid., 137

212. MacNally, Leonard, The Rules of Evidence on Pleas of the Crown (London: J. Butterworth, 1802)Google Scholar.

213. Ibid., 329.

214. MacNally emphasized the French origins of the word, and perhaps the idea, of “experts.” Ibid.

215. “In proportion as experience and science advance, the uncertainty and danger from this kind of proof diminishes.” Ibid. On the lung-flotation test, see Ibid. On the Donellan case, see Ibid., 330, and Landsman, Stephan, “Of Witches, Madmen, and Products Liability: An Historical Survey of the Use of Expert Testimony,” Behavioral Sciences and the Law 13 (1995): 141–42CrossRefGoogle Scholar.

216. Best, William Mawdesley, A Treatise on the Principles of Evidence (facsimile of the 1849 ed., New York: Garland, 1978).Google Scholar

217. Ibid., 388-89.