Kevin Dekoster
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Introduction
[1] From the later Middle Ages onwards, legal authorities throughout continental Europe became increasingly interested in the use of expert witnesses in criminal cases. Influenced by Roman and canon law, both of which recognised the relevance of expert witnesses in the administration of justice, the inquisitorial procedure that developed and spread throughout the continent dismissed irrational modes of proof such as judicial ordeals and emphasised the rational investigation of the material evidence by the criminal judge. This implied an adherence to strict standards of proof that eventually required judges to consult experts in a growing number of cases (Crawford 2001: 1626-27; Porret 2010: 44-49; Watson 2011: 9-20). Given the broad applicability of medical knowledge to different types of legal cases and questions, ranging from physical injuries to sexual violence, witchcraft, and insanity, medical practitioners immediately became the most frequently consulted category of expert witnesses (De Renzi 2007: 316).
[2] As indicated by the hyphen, the history of medico-legal expertise can indeed be described in terms of expanding cooperation between legal authorities and the medical profession for the benefit of justice (Ruggiero 1978: 156-66). However, recent research has increasingly started to highlight the tensions between the demands of the law and the expertise that medical practitioners were either prepared or able to offer to the authorities (e.g. Landsman 1998: 460-61 & 486-87; De Renzi 2002: 224-25; Chandelier & Nicoud 2015: 293). Focussing on the medico-legal investigation of violent deaths in the early modern County of Flanders (a principality that essentially comprised the present-day Belgian provinces of West and East Flanders, together with parts of Northern France and the Dutch province of Zeeland), this contribution seeks to answer how both the preoccupations of medical practitioners and the requirements of the judicial authorities shaped the representation of violence within a forensic context.
[3] In order to explore the interactions and tensions between medical representations of violence and the demands of the law in early modern Flanders, this article will examine three aspects of the medico-legal system that was put in place throughout the county from the sixteenth century onwards: developments in the content of post-mortem reports, the use of medical evidence in criminal sentences, and the tensions between judges and experts that were prompted by the cautious empiricist epistemology behind medical representations of violence. But before we can delve deeper into these questions, it is necessary to discuss the emergence of the Flemish medico-legal system and the nature of the consulted source materials.
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Medico-legal expertise in early modern Flanders: origins and practices
[4] While the consultation of medical experts in cases of violent death had been a routine feature of the administration of criminal justice in Northern Italy and parts of France since the thirteenth and fourteenth centuries, medico-legal expertise took longer to develop in Northern Europe, where it was only systematically adopted from the sixteenth century onwards (Porret 2010: 44-51; Watson 2011: 34-38). One of the regions that witnessed a particular ‘medico-legal turn’ in criminal proceedings during this period was the County of Flanders, where a steady stream of princely ordinances and edicts, writings of legal scholars, and compilations of customary law gradually enshrined the relevance of medical expertise in the investigation of suspicious deaths (Dekoster 2019: 128-61).
[5] For much of the sixteenth century, however, Flemish criminal judges conducted summary inspections of the bodies of homicide victims without relying on the expertise of medical practitioners.[1] On 9 July 1543, for instance, the bailiff and local judges of the parish of Eine (near the town of Oudenaarde) examined the corpse of a certain Inghel Vander Straeten, discovering three wounds on the body: a blow to the head, a wound in the left shoulder near the jugular vein, and a wound near the right eye, all inflicted by sharp instruments.[2] In the 1550s, the Flemish legal scholar Joos de Damhouder (1507-1581) exhorted judicial officials to consult medical practitioners when inquiring into violent deaths, drawing to a large extent on his own experiences as criminal clerk to the aldermen of Bruges. Furthermore, Damhouder was probably inspired by legal precedents within the Holy Roman Empire, where the Constitutio Criminalis Carolina — a code of criminal law proclaimed by Emperor Charles V in 1532 — required expert testimony by surgeons in homicides cases and that of midwives in cases of presumed infanticide. For this reason, the Carolina is considered a milestone in the history of legal medicine, the influence of which quickly transcended the borders of the Empire (Crawford 2001: 1623; Watson 2011: 20-22; Pastore 2017: 22). The first domestic normative texts on forensic post-mortems only started to appear from the final decades of the sixteenth century onwards. Two princely ordinances, proclaimed respectively by Philip II of Spain (1589) and his successors, the Archdukes Albert and Isabella (1616), made post-mortem examinations mandatory in all homicide investigations, while a 1626 ordinance by the Council of Flanders (Raad van Vlaanderen), the provincial judicial council of the county, required the presence of at least one properly trained and admitted surgeon at every post-mortem (Dekoster 2019: 134-38).
[6] Furthermore, the ordinances of 1589 and 1616 both required that whenever a homicide had taken place within their jurisdiction, the local judicial officers had to send — within a term of fourteen days — a copy of both the post-mortem report and the accompanying depositions of eyewitnesses to the provincial judicial council, in our case the Council of Flanders. A large number of these reports can still be found in the Council’s archives.[3] On the basis of samples taken from these archives, I have compiled a corpus of 128 post-mortem examinations of homicide victims — spanning the period between the 1540s and the year 1790 — that will constitute the backbone of the following analysis.[4] This material will be supplemented by court records (primarily post-mortem reports and criminal sentences) preserved in the municipal archives of the county’s three major cities: Ghent, Bruges, and Ypres.
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Post-mortems and the representation of violence
[7] On 15 April 1561, the aldermen of the small rural parish of Moerbeke-Waas — situated to the north-east of Ghent — ordered a surgeon named Anthuenis De Brune to examine the body of Jan De Vogelere, who had been stabbed to death by Pieter De Brune the preceding day. In his report, the surgeon explained that he had discovered two wounds on the body: one above the right nipple, which he considered lethal, and a second one in the left leg, which was not considered lethal or dangerous.[5] This case is, in many ways, highly illustrative of sixteenth-century Flemish forensic procedures. While the aldermen in question no longer deemed themselves competent to examine the corpse without the assistance of a medical practitioner, the investigation remained of a very cursory nature. First, the term ‘autopsy’, as we understand it today, does not really apply to the examination in case, as no incision was made in order to examine the inner parts of the body. This almost exclusive focus on external marks of violence seems to have been a common feature of most sixteenth-century Flemish post-mortems, as the first opening of a body in the present sample of reports only took place in 1614.[6]
[8] Secondly, the inspection of Jan De Vogelere’s corpse is very illustrative of the way in which sixteenth-century medical practitioners represented the effects of violent crime. In his Practycke ende handbouck in criminele zaeken (Practice and Handbook in Criminal Cases, 1555), the jurist Joos de Damhouder advised legal officials and their medical ancillaries to ‘diligently consider all the victim’s wounds, blows, and injuries, and to faithfully record and write, which were lethal, which were not, and whether he died from his injuries or from another cause’ (Damhouder 1981: 104-05).[7] When comparing the observations of surgeon De Brune with Damhouder’s instructions, one can immediately notice the similarity in approach: De Brune only provided a short description of the location of the wounds, stating that the first was lethal and the second not. No attempts were made to offer a causal explanation of the link between the inference of the wound and the subsequent death of the victim, and even the criterion for distinguishing lethal from non-lethal wounds remains obscure.
[9] Damhouder’s instructions make clear that summary reports of this kind readily met the requirements of the law. As Marilyn Nicoud and Joël Chandelier have uncovered in their research on late medieval Bologna, judges were generally satisfied with a concise overview and classification (as either lethal or non-lethal) of the injuries observed on the corpse, which allowed them to initiate criminal proceedings and to characterise the severity of the violent act in question (Chandelier and Nicoud 2012: 155). Evidence from Flemish reports suggests that assessments of this kind were generally based on the extent to which the wounds in question penetrated certain vital parts of the body, such as the heart, lungs, or liver.[8] In order to answer such questions, surgeons made use of tintijzers or probes, long and thin surgical instruments that were inserted into a wound in order to follow its trajectory, allowing them to make pronouncements on the depth of wounds and the possible penetration of vital organs without having to open one or more body cavities. In 1543, for instance, the surgeon Anthuenis Pygoesse inserted a probe into the head injury of Lievin De Brudegom, who had been stabbed by Jason Van Eede. When he withdrew the probe from the body, Pygoesse discovered that pieces of brain tissue had stuck to the instrument, leading him to the conclusion that the injury was lethal because it had penetrated the brain.[9]
[10] From the early seventeenth century onwards, a new approach to the representation of lethal violence can gradually be discerned. In 1633, the bailiff and local judges of the parish of Huise required a physician and a surgeon to examine the corpse of Adriaen Der Weduwen, who had been stabbed in the abdomen by Adriaen De Groote. The report is worth reproducing in full:
On the request of the honourable Adriaen Wandele, bailiff of Huise, we the undersigned sworn physician and surgeon have examined the dead body of Adriaen Der Weduwen, son of Joos, in whose corpse around the navel we have found a wound penetrating the cavity of the abdomen, with wounding of the omentum and cutting of many and diverse veins of the omentum and mesentery, which has caused a great effusion of blood in the abdomen, therefore we declare and attest that the aforementioned wound, which has been inflicted by a sharp cutting instrument, has caused the death of the said Adriaen Der Weduwen. In the presence of vassals and aldermen of Huise and court of Oplozer, 20 May 1633, below was written Joos Rekenaere, and somewhat further was written with a signature Adriaen Mas.[10]
While the experts in question did not explicitly state that they had opened the corpse in order to examine the damage to the abdominal cavity, it is nevertheless clear that they devoted more attention to the inside of the body than their predecessor in the 1561 case. Furthermore, the experts provided the authorities with a clear account of the trajectory of the murder weapon, which entered near the umbilicus, penetrated the abdomen, and damaged a number of important veins, resulting in a haemorrhage that caused the victim’s death. This focus on the trajectory of the murder weapon enabled them to create a ‘narrative’ of violence, in which a chain of causality was established between the infliction of a wound and the subsequent death of a victim.
[11] In this respect, dissection became the experts’ most important aide. While the corpses were only opened in 26% of the seventeenth-century cases encountered in the archives of the Council of Flanders, this almost doubled to 51.5% for the eighteenth-century cases.[11] However, as these numbers demonstrate, purely external examinations of the corpses of homicide victims continued to be undertaken until the very end of the eighteenth century.[12] When incisions were made, these tended to focus exclusively on those parts of the body where external evidence hinted at the presence of the cause of death. Complete autopsies in which the three major body cavities (skull, thorax, and abdomen) were opened remained extremely rare, even in the late eighteenth century.[13]
[12] Moreover, the traditional binary distinction between lethal and non-lethal wounds was gradually replaced by more elaborate analytical schemes, as early modern medico-legal theorists increasingly started to subdivide mortal wounds into those that were absolutely lethal and those that were only ‘accidentally’ lethal as a result of complications or neglect (e.g. Ludwig 1774: 105-17). The surgeon Joannes Carolus Huart (1715-1785) of Tienen, author of a comprehensive treatise on medico-legal reports, even used a tripartite scheme, dividing lethal wounds into categories such as ‘absolutely lethal’, ‘lethal by themselves’ (but curable), and ‘accidentally lethal’ (Huart 1794: 6-8), qualifications that were also used in actual forensic practice.[14] This obsession with degrees of lethality is clearly evidenced in eighteenth-century medico-legal handbooks, every one of which contained a comprehensive chapter in which all possible injuries to the human body were classified according to similar two- or tripartite schemes, usually following the a capite ad calcem (from head to toe) structure of contemporary anatomy textbooks (e.g. Devaux 1746: 30-199; Ludwig 1774: 150-94).
[13] How can we make sense of these changes in the ways in which medical experts represented the effects of violence? Two important developments in medical theory and practice should be taken into account, both of which took off in the second half of the sixteenth century. First, the publication in 1543 of Andreas Vesalius’s Fabrica led to a gradual improvement of anatomical knowledge amongst Flemish physicians and surgeons, which undoubtedly influenced their forensic activities.[15] Armed with a more profound knowledge of normal human anatomy, the experts might have felt more confident to open bodies in order to examine their pathologies. Secondly, these developments in anatomical knowledge were accompanied by the publication of the first vernacular treatises devoted to the art of writing medico-legal reports. In 1575, the French surgeon Ambroise Paré (ca. 1510-1590) published a treatise on medico-legal reports that is genuinely recognised as the first vernacular work on legal medicine (Lecuir 1979: 231; Forbes 1985: 37). In 1592, Paré’s collected works were translated into Dutch by Carel Baten (ca. 1540-1617), the town physician of Dordrecht, and this made his forensic insights available to medical practitioners operating within the Dutch-speaking provinces of the Habsburg Netherlands (Paré 1592: 1082-92).[16] During the seventeenth century, Baten’s translation of Paré’s works was the most frequently consulted and most influential textbook on surgery within the Habsburg Netherlands (Van Hee 1990: 102). The eighteenth century witnessed the emergence of an extensive body of vernacular medico-legal literature, consisting of a combination of original writings by practitioners operating within the Dutch Republic and the Habsburg Netherlands and translations of works by French and German authors.[17]
[14] Finally, changes in legal requirements should also be taken into account. In this sense, a comparison of Joos de Damhouder’s discussion of post-mortems with an eighteenth-century treatise on medico-legal autopsies, written by the Dutch jurist Johan Jacob van Hasselt (1717-1783), is quite revealing. While Damhouder was generally satisfied with a summary external examination by one or more surgeons (Damhouder 1981: 104-06), Van Hasselt required medical experts to open corpses and to properly explain to judges why a particular wound should be considered lethal or not. He therefore considered it necessary for judicial authorities not only to rely on the expertise of surgeons, but also to consult university-trained physicians as medical examiners (Van Hasselt 1772: 11-15).[18]
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Medical evidence and judicial decision-making
[15] Joos de Damhouder provided a clear explanation for judges’ and experts’ obsession with the lethality of injuries. If the experts could demonstrate that the wounds inflicted on a homicide victim were not definitively lethal in themselves, but only became lethal because of negligence on the part of the victim or because of the incompetence of the medical practitioners who had treated him or her, the aggressor in question could only be prosecuted for assault, and not for manslaughter, which automatically excluded capital punishment (Damhouder 1981: 105-06). In 1589, for instance, the onderbaljuw of the city of Ghent demanded that Franchoys Van Lokeren be beheaded for having killed a certain Philips Van Heghelsem. Van Lokeren, however, maintained that the injury he had inflicted in the victim’s abdomen with a pike was superficial, and that Van Heghelsem had actually succumbed to an infectious disease. To prove this, he provided the aldermen of Ghent with a number of attestations that unfortunately are not preserved, but some of which were undoubtedly written by medical practitioners. The report of the autopsy conducted by a physician and three surgeons largely confirmed Van Lokeren’s allegations, and so the aldermen only sentenced him to perform a public penance and to pay a fine of ten guilders.[19] In 1640, the Council of Flanders made a similar ruling in the case of Jan de Loraine, who had used a candle to assault a fellow inmate in the prison of Kortrijk. As the head injuries in question were not judged to be lethal, de Loraine was sentenced to perform a public penance rather than receiving the death penalty.[20] The fact that medical practitioners considered the injuries not absolutely lethal could also be grounds for a defendant to obtain a princely pardon. Therefore, petitioners frequently referred to medical evidence in their pardon requests, and some even added attestations by surgeons and physicians to their petitions in order to strengthen their case (Vrolijk 2004: 220-25).[21]
[16] Because of the profound implications of the experts’ verdicts, criminal sentences in homicide cases extensively drew on medico-legal representations of violence when describing victims’ injuries. Consequently, many sentences either cite medical examinations or quote from them.[22] In the case of Francois Vander Meulen, who had stabbed Gheeraert Debbaut in the abdomen with a knife, the aldermen of Ghent even copied the entire medical content of the post-mortem report into the criminal sentence in order to demonstrate that the injury in question had caused the victim’s death.[23]
[17] A particularly interesting example of the inclusion of medical evidence in criminal sentences is the judgment pronounced by the aldermen of Ghent against Adriaen De Joode, who was suspected of having committed six particularly atrocious murders over the course of a decade. The aldermen readily cited from the medico-legal reports produced in the 1664 case against De Joode for the murder of the wool merchant Martinus Vander Brugghen and three members of his household. The sentence related how the killer attacked the twenty-five-year-old maidservant Christina De Scheppere with a hammer. The strike passed ‘through the substance of the brain, a blow so heavy that she fell to the earth, whose throat you furthermore cut with your knife, slicing her from the throat to the stomach, whereupon she immediately died’. With regard to the murder of her mistress, Joanne Livine Beernaert, the sentence mentions that ‘having hit her equally with your hammer […] on the head, and having cut her throat in a very inhumane fashion by inflicting ten murderous wounds with your knife, you let her wallow in her blood like an animal’.[24]
[18] What is particularly interesting about the sentence in question, is that the entire narrative of the murders of Adriaen De Joode was not only neatly written down on sheets of paper, but also a relatively large number of copies were printed, which suggests that the text was probably handed out, sold, or distributed during or after De Joode’s execution.[25] In this sense, the inclusion of medical details in the sentence had a clear function. Through a detailed description of the atrocities committed by De Joode, the judges aimed to legitimise the particularly cruel and severe punishment they had devised. First, Adriaen De Joode would be pinched six times with glowing irons, once for each victim. Afterwards, his body would be broken on a cross, and finally he would be burned alive. While the aldermen’s intention in publishing this sentence and including the medical details was probably to edify their subjects and to deter them from committing similar crimes, published sentences of this kind might also have satisfied the popular demand for sensational details on horrific and atrocious crimes, in this way closely imitating the notorious English murder pamphlets, which Carol Loar appropriately described as ‘the mechanism capable of generating the widest audience for medico-legal knowledge’ (Loar 2010: 486).
[19] In this respect, and to fully appreciate the early modern post-mortem report as a specific discourse on violence, one equally has to understand that a large number of medico-legal investigations were conducted in a (semi-)public context. Most post-mortems were conducted at the location where the body was found, or at least in a nearby house or tavern. Furthermore, the reports often explicitly acknowledge that the discovery of a dead body and its subsequent examination attracted a large number of bystanders, even when the actual post-mortem took place in a private home.[26] The (semi-)public nature of most post-mortems was due in part to the functional nature of the bystander’s presence. First of all, observers could often help the authorities identify the corpse in question.[27] Secondly, a crowd of local inhabitants constituted an interesting pool of potential witnesses to question about the circumstances surrounding a suspicious death. On a more symbolic level, conducting a post-mortem in a public location could also function as a ritual demonstrating the activity and (purported) effectiveness of the judicial system, allowing judges to make clear that they would thoroughly investigate every suspicious death.[28] In this sense, conducting a post-mortem — although situated at the start of a criminal procedure — might serve an aim very similar to the public execution of a criminal or the public pronouncement of a criminal sentence at the end of the same procedure.
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Medico-legal empiricism and legal dissatisfaction
[20] Notwithstanding the clear advances in forensic practices and procedures throughout the early modern period, and despite the importance attached to medical evidence by Flemish criminal judges, contemporary judicial officials occasionally felt that medico-legal representations of violence still had their deficiencies. In 1723, the attorney-general (procureur-generaal) of the Council of Flanders requested permission from the Council to inquire into an assault on a lesser judicial officer from the parish of Baaigem, stating that the medical report sent to him by the local authorities did not clearly state the cause of the wounds in question.[29] When sending over an autopsy report to the attorney-general in 1783, the stadtholder of the Land and Castle of Beveren apologised for the fact that ‘the report does not fully seem to decide the cause of death’.[30]
[21] Looking more closely at early modern Flemish post-mortems, one does indeed notice that many autopsy reports seem to lack essential information. In many cases, in fact, it is not even possible to ascertain whether a person died a violent death or not by relying solely on the medical report. In 1653, for instance, two surgeons examined the body of a certain Tanneken Causmaeckers on behalf of the aldermen of Ghent. During an external examination, they found a number of contusions on her head. After removing the skull, the experts discovered a large quantity of blood on the dura mater, which they considered the cause of death. However, the surgeons did not give any opinion as to the probable origin of these wounds. As no depositions of witnesses survive for this case, it is impossible to ascertain whether Tanneken died following an accident (e.g. falling on stairs) or an act of violence (e.g. someone threw a stone at her or hit her with a stick).[31]
[22] While some judicial officials might have lamented the omission of crucial information from the reports, the experts believed they had clear reasons to do so. Their reticence touches on an essential aspect of early modern medico-legal epistemology, namely its strong empiricist nature. This implied that medical experts almost exclusively focused on what could be observed and experienced through the senses (with primacy accorded to the sense of sight), while trying to avoid speculative statements as much as possible (McClive 2012: 493-94). This epistemological outlook was certainly not limited to the medico-legal sphere. Focussing on eighteenth-century France, Toby Gelfand has convincingly emphasised the outspoken empiricist and experience-based approach of early modern surgery. From the second half of the eighteenth century onwards, this empiricist attitude was increasingly shared by university-trained physicians, who traditionally had fewer objections against hypothetical reasoning (Gelfand 1980: 11, 138-39).
[23] This cautious empiricist epistemology found its most potent expression in the medico-legal handbooks of early modern France, which considered prudence (together with professional skill) to be the expert’s principal quality (Lecuir 1979: 242-243). The Parisian surgeon Jean Devaux (1649-1729), author of an influential handbook on the art of writing medico-legal reports, clearly echoed this empiricist outlook, stating that ‘a judicious surgeon is obliged not to say anything affirmative in his report concerning absent causes, pains, and generally anything that does not fall under the senses’ (Devaux 1746: 12).[32] Devaux’s colleague Nicolas de Blégny (1652-1722) suggested that surgeons should only testify on matters that are apparent to the senses and ought to avoid speculation on symptoms or phenomena that were only reported by the victims themselves (Blégny 1684: 33). Experts who deviated from the empiricist mantra of ‘voir et visiter’ by indulging in speculation could expect severe criticism from colleagues and the broader public opinion (McClive 2012: 489-503).
[24] The caution advised by the French authors found a clear counterpart in Joos de Damhouder’s enumeration of the principal qualities required of medical experts. According to Damhouder, a good expert ‘should not be too bold in uncertain cases’ (Damhouder 1981: 117).[33] The Dutch translation of Ambroise Paré’s treatise on medico-legal reports advised surgeons ‘to be very cautious and attentive […], as judges always base themselves on and act upon the observations of the physician or the surgeon’ (Paré 1592: 1082).[34] Furthermore, the empiricist nature of Flemish medico-legal expertise is mirrored in the most frequently used contemporary term for a post-mortem, aenschauw, which was derived from the verb aenschauwen, literally meaning ‘to see, to observe’.
[25] These statements by medico-legal theorists can also be corroborated with archival evidence demonstrating the reticence of Flemish medical practitioners when being asked to represent the effects of violent crime. First, the advanced state of decomposition of some corpses made experts extremely cautious to identify a possible cause of death. In 1738, two surgeons from the town of Warneton examined the body of fifteen-year-old Agnes Therese Cousin, whose corpse was found ‘covered with a very large number of worms because of the corruption of the said cadaver or corpse, which spread a great stench’. They then concluded that ‘as the said corpse is in such a state of corruption that none of its parts can be considered in their natural state, we declare that we cannot establish the cause of death’.[35] Likewise, when a physician and a surgeon were asked to examine the body of a female infant found in a bush, they explained that ‘as the principal external and internal parts were already eaten by birds or vermin, and partially rotten, they cannot judge whether the child was born alive or not’.[36] Secondly, medical uncertainty sometimes forced judges to grant suspects the benefit of the doubt. In 1645, the aldermen of Ghent sentenced Adriaenne Le Riche to a public whipping and a banishment of ten years instead of the death penalty because the experts who conducted the post-mortem of Niclaeys Moutton could not establish whether the stab wound inflicted upon him by Adriaenne had necessarily been fatal.[37] One of the reasons why Anthoine Papegay was pardoned for the homicide of Matheus Rondeel was the fact that the four surgeons involved in the case disagreed as to whether the injury in question had been lethal.[38]
[26] Cases such as these reveal the epistemological conflicts that could arise between judges and experts within the medico-legal arena. As Joël Chandelier and Marilyn Nicoud have argued, the law required precise and unequivocal responses that often clashed with the uncertain, prudent, and increasingly empiricist epistemology of medicine (Chandelier & Nicoud 2015: 293). According to Ian Maclean, conflicts between jurists and medical practitioners can be traced back to the fact that ‘medicine is shown to have a much laxer operative logic than law, reflecting its commitment to the theory of idiosyncrasy as opposed to the demands made upon the law by the need for a uniform application of justice’ (Maclean 2000: 256). In this sense, ‘the judge expects from the expert a clear-cut response that the medical expert is not always able to offer’ (Chandelier & Nicoud 2015: 293).[39]
[27] Early modern judges devised a host of strategies to circumvent the epistemological concerns of the medical profession. The Italian judge Antonio Maria Cospi (ca. 1560-1635) suspected that overly cautious medical experts were quite willing to exonerate killers by ascribing death to natural causes rather than violence and advised his colleagues to acquire a basic grasp of anatomy and pathology.[40] Armed with this knowledge, they could then question the experts on their observations and critically evaluate their conclusions (De Renzi 2002: 225; Pastore 2017: 23-26). Generally, Flemish judges did not exhibit a profound knowledge of medical and surgical teachings — in fact most of them did not even possess law degrees. Nevertheless, some legal officials demonstrated a clear desire to establish the cause of death by all means necessary, even if this meant putting pressure on experts or circumventing medical expertise altogether. When, in 1717, the physician and the surgeon who examined the corpse of Guillaume Pollé noted that it was no longer possible to discover any substantial marks of violence on the severely decomposed body, exhumed a week after the victim’s death when rumours of murder began to spread in the parish of Kemmel, the judges of the castellany court of Ypres circumvented this problem by questioning the neighbours and relatives who had seen and examined Pollé’s corpse prior to burial. Most witnesses testified that they had observed injuries around the victim’s throat and had seen blood around his nose and mouth, and thus the judges’ suspicions that Pollé had been killed by his wife’s lover were largely confirmed.[41]
[28] Other judges applied increasing pressure on experts until they delivered the desired answers. On 24 March 1675, the city physician and the city surgeon of Bruges examined the corpse of Jan Verstraete, lying in Saint John’s Hospital. Although they discovered a head injury that penetrated the cranium, the experts did not remark upon any alteration to his brain matter and concluded that death resulted from ‘a continual fever’. This response did not satisfy the local aldermen. Five days after the autopsy, the experts were separately summoned before the aldermen and asked whether Verstraete had died as a consequence of the wound. Both of them declared that the injury in question could not be regarded as the cause of death.[42] That early modern judges could be extremely tenacious in their attempts to establish causes of death is demonstrated by the case of Guillaume Sijs. More than seven years after Sijs’s death, the aldermen of Staden questioned the attending surgeon, Jacques Forret, to discover whether the head injury inflicted by Guillaume Reins had been the actual cause of the victim’s demise.[43] As demonstrated by the systematic references to medical evidence in criminal sentences, too much depended upon the verdicts of medical experts to allow any lingering doubts over the lethality of injuries.
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Conclusions
[29] Drawing on a sample of post-mortem reports and other court records, this article has demonstrated how the emergence of medical expertise in Flemish criminal proceedings afforded new avenues for the pursuit of justice, while simultaneously leading to conflicts and misunderstandings between judges and experts. First of all, a remarkable evolution in the representation and explanation of corporal violence took place throughout the early modern period. While sixteenth-century post-mortem reports essentially offered summary descriptions of wounds and assessments of their lethality, largely based on the interpretation of external bodily signs, the seventeenth and eighteenth centuries witnessed a more elaborative approach to violent death. Experts attempted to explain how particular acts of violence could result in the victim’s death by opening the corpse in question, in this way uncovering the trajectories of wounds and creating a causal narrative of violent death. Both contemporary developments in anatomical knowledge and the appearance of the first vernacular treatises on the art of writing medico-legal reports, as well as changing legal requirements, had an important role in shaping the content of early modern medico-legal discourse.
[30] Secondly, medical representations of violence could have a profound impact on the punishments meted out to the accused. If at least one mortal wound could be discovered upon the victim’s corpse, there was little doubt that the suspect was indeed responsible for the death in question and therefore deserved a harsh punishment. When none of the wounds was considered definitively lethal, or if the experts disagreed on the lethality of the injuries, suspects were generally punished for assault rather than homicide and stood a fair chance of successfully petitioning for a pardon. Furthermore, the judicial authorities made avid use of medical evidence when communicating with their subjects about the prosecution of violent crime via the publication of criminal sentences in notorious murder cases. Therefore, the ways in which medico-legal information appeared in printed sentences and popular crime reports certainly merit a more profound examination, which might result in a renewed understanding of the interplay between medicine, law, and popular mentalities.
[31] Nonetheless, this marriage of medicine and the law was not always a harmonious one. Although the cautious empiricism of the experts might have been consonant with the epistemological concerns of early modern surgery, and to a growing extent also of theoretical medicine, it did not always match the requirements of the law, which demanded a clear-cut and definitive answer to specific medical questions. While early modern Flemish judges developed several strategies to deal with the reticent attitude inherent to medico-legal representations of lethal violence, the high number of deaths ascribed to ‘fevers’ and ‘internal diseases’ testifies to a deep-seated anxiety among medical practitioners concerning the far-reaching consequences of their expertise upon the lives of alleged suspects. This anxiety must have severely frustrated judicial officials whose primary intent was to catch killers and to bring them to justice.
Ghent University
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NOTES
[1] The same practice is documented for Amsterdam throughout large parts of the same century (Hallema 1963: 1922-30). [back to text]
[2] Rijksarchief Gent (RAG), Raad van Vlaanderen (RVV), no. 31105, inspection of the body of Inghel Vander Straeten, Eine, 9 July 1543. The same file also contains reports of similar examinations in the parish of Moorslede (1542) and the city of Bruges (1541). A bailiff or baljuw was an official, appointed by the prince or local lord, who was responsible for maintaining public order within a certain territorial jurisdiction. His judicial tasks included, among other things, tracking down and arresting criminals, collecting evidence, formulating criminal charges, and the execution of the criminal sentences rendered by local judges. Depending on the jurisdiction, the administration of criminal justice was entrusted to the local bench of aldermen, the main governing body of Flemish villages and towns, or a court consisting of vassals of the local lord. The bailiff and a deputation of members of the local criminal court were expected to be present at every post-mortem, even as medical practitioners gradually took over the actual examinations. [back to text]
[3] They can be found in RAG, RVV, no. 6828-7086 (inquests by subaltern courts) and no. 31105-31166 (post-mortem reports). Both series also contain medical reports concerning suicides, drownings, accidents, and cases of rape. The reports in question represent only a tiny fraction of all inquests into suspicious deaths undertaken by Flemish criminal judges during the early modern period. As both series were artificially created by twentieth-century archivists, it is not entirely clear why these specific reports have survived and where the others are, presuming that they are still extant. Most reports hail from a rural context, which is a welcome addition to the well-preserved registers of post-mortem reports of cities such as Bruges and Ghent. [back to text]
[4] The cases are spread over the three centuries as follows: twelve fom the sixteenth, fifty-four from the seventeenth, and sixty-two from the eighteenth century. As the amount of conserved material dramatically increases from the 1730s onwards, I have chosen to work with samples for the period 1730-1790, studying the reports for two years per decade. [back to text]
[5] RAG, RVV, no. 6855, inspection of the body of Jan De Vogelere, Moerbeke-Waas, 15 April 1561. [back to text]
[6] RAG, RVV, no. 6894, inspection of the body of Tanneken Van Damme, Nieuwpoort, 6 September 1614. However, Vrolijk (2004: 305-09) mentions a 1545 case in which three surgeons from the town of Harelbeke opened the head of a woman who had allegedly been killed by her husband. Internal examinations sporadically took place in Ghent, Bruges, and the castellany or rural district of Ypres during the second half of the sixteenth century, usually in particularly complex cases. Nonetheless, the large majority of forensic post-mortems conducted in these jurisdictions only involved an external examination. [back to text]
[7] ‘Ende neerstelick considereren alle zijn wonden, slaeghen ende quetsueren, ende die ghetrauwelick teekenen ende scriven, welcke doodelick waeren, welcke niet, ende of hy ghestorven es uuter quetseuren oft andersins’. [back to text]
[8] When inspecting the body of Jan Herwijn in 1617, the two surgeons involved discovered a wound in the middle finger of his left hand, which was curable, and a second one above the diaphragm. They considered the second wound lethal and incurable because it penetrated the victim’s stomach and liver: RAG, RVV, no. 31106, inspection of the body of Jan Herwijn, Bambeke, 19 August 1617. [back to text]
[9] RAG, RVV, no. 31105, deposition of the surgeon Anthuenis Pygoesse, Assenede, 25-26 June 1543. [back to text]
[10] RAG, RVV, no. 6914, inspection of the body of Adriaen Der Weduwen, Huise, 20 May 1633. The original Dutch text runs as follows: ‘Ten versoucke vanden eersamen Adriaen Wandele, baulliu van Huusse, es bij ons onderschreven gheswoeren medecin ende chieregin anschaut gheweest het doode lichame van Adriaen Der Weduwen, filius Joos, in wiens lichame ontrent den affel hebben ghevonden een wonde penetrerende tot inde hollenheijt vanden ondersten buijck met quetsijnghe vant omentum ende afsnijdijnghen van veele ende diversche aderen soo vant omentum alst mesenterium, waer door ghecauseert es gheweest groote huijtstortijnghe van bloet inden ondersten buijck, dienvolghende verclaren ende attesteeren dat de voornoemde wonde, d’welck gheschiet es met een serp snijdende instrument, ghecauseert heeft de doot vanden voorseijden Adriaen Der Weduwen. Actum ter kennisse van leenmannen ende schepenen van Huusse ende Hove van Uplosere den XXen meye 1633, onder stont gheschreven Joos Rekenaere, wat voorder stont gheschreven met een hanteecken ghemaeckt Adriaen Mas’. [back to text]
[11] These numbers might be underestimates, as I have only counted those cases in which the experts explicitly stated that they removed the skull or opened the thoracic or abdominal cavitiy. [back to text]
[12] For instance, when Judocus De Jaeghere was found dead in his bedroom, a physician and a surgeon concluded that he had been strangled by the burglars who had entered the house the night before. They reached their conclusion by relying exclusively on external bodily signs such as a dislocated larynx and wounds in the neck: RAG, RVV, no. 31164, inspection of the body of Judocus De Jaeghere, Lovendegem, 12 August 1784. [back to text]
[13] In 1783, a physician and a surgeon opened the skull, thorax, and abdomen of a certain Joannes Fobé, who had been hit on the head with a stone. The unusual thoroughness of this examination can probably be explained by the fact that the head injury was not considered absolutely lethal: RAG, RVV, no. 31163, inspection of the body of Joannes Fobé, Beveren, 28 May 1783. [back to text]
[14] In 1669, the surgeon Adriaen Monet declared that both the wound that Michiel Wostyn had received in his chest, penetrating the thoracic cavity, and the one on his back — which penetrated the stomach — were lethal, although only the latter was considered incurable: RAG, RVV, no. 31111, deposition of the surgeon Adriaen Monet, Keiem, 28 June 1669. [back to text]
[15] Surprisingly, the first vernacular treatise on Vesalian anatomy available in Flanders was not a translation of the Fabrica, but a Dutch version of the Historia de la composición del cuerpo humano of the Spanish anatomist Juan Valverde de Amusco (ca. 1525-1588), which was printed in Antwerp in 1568. While he ‘borrowed’ most of the anatomical plates in his work from Vesalius, the text itself was an original contribution from Valverde, whose prose is generally easier to understand than the ornate rhetorical style of Vesalius. Furthermore, Valverde corrected some of Vesalius’s mistakes (Okholm Skaarup 2015: 25 & 233; Van Hee 2000: 45). [back to text]
[16] Baten was actually born in Ghent, but fled the Habsburg Netherlands in 1586, shortly after the Fall of Antwerp. An English translation of Paré’s works appeared in 1634 (Loar 2010: 482). [back to text]
[17] A good overview of eighteenth-century medico-legal books and treatises that were written in, or translated into, Dutch is given in Siebold (1847: xiii-xiv). [back to text]
[18] Van Hasselt was probably inspired by the judicial practice of the provincial court in his native province of Guelders, which made similar recommendations in its correspondence with local judicial officers (Overdijk 1999: 78-80). [back to text]
[19] Stadsarchief Gent (SAG), Oud Archief (OA), series 214, no. 12, fol. 30v-31r, sentence of 31 July 1589, and series 218, no. 1, inspection of the body of Philips ‘Negenerschen’ [sic], 8 June 1589. [back to text]
[20] RAG, RVV, no. 8594, fol. 389v-390v, sentence of 7 July 1640. A public penance or amende honorable usually took the form of the condemned person appearing — bare-headed and on his knees — before the local judges, where he had to beg God and the judicial authorities for forgiveness for his crime(s). [back to text]
[21] Examples of such attestations can be found in SAG, OA, series 213, no. 8, documents regarding the petition for a pardon for Pauwels Luytens, 1643-1645, and no. 9, attestation of the surgeon Loys Vander Swalmen in the case of Loys Verschaffelt, 27 April 1644. [back to text]
[22] For instance RAG, RVV, no. 8594, fol. 48r-49r, sentence of 6 June 1598, fol. 211r-212r, sentence of 7 April 1629; SAG, OA, series 215, no. 1, sentence of 26 June 1643, and no. 7, sentence of 11 October 1735. [back to text]
[23] SAG, OA, series 214, no. 109, fol. 99v-101r, sentence of 27 May 1704, and series 218, no. 4, fol. 60r-v, inspection of the body of Geeraert Debbaut, 24 May 1704. Vander Meulen was beheaded and his goods were confiscated. [back to text]
[24] SAG, OA, series 215, no. 3, sentence of 2 May 1664. ‘Hebt de voorschreven dienstmaerte met uwen hamer ghegheven op haer hooft eenen soo swaeren slach, door de substantie vande herssenen, dat sy oock ter aerden viel, die ghy voorts met u mes hebt ghekeelt, emmers ghegheven eene steke inden hals, tot inde maeghe, daer van dat zy dadelick is commen te overlijden […], ende haer oock met uwen moort-hamer […] op haer hooft hebt ghebolt, ende met u mes met thien moordadighe wonden inden hals seer on-menschelijck ghekeelt, die ghy oock al oft sy hadde geweest eene beeste liet wentelen in haer bloedt’. The relevant post-mortem reports can be found in series 218, no. 2, fol. 84r-v, and series 219, no. 2. [back to text]
[25] The publication of criminal sentences and the rhetorical strategies and manipulations this involved are discussed in more detail in Franck (2009: 14-16). Concerning a similar case (a fivefold murder committed by two burglars) that took place about a hundred years later, a local newspaper announced that copies of the criminal sentence could not only be bought in Ghent, but also in print shops in Bruges, Ypres, Kortrijk, Oudenaarde, Sint-Niklaas, and Aalst: Gazette van Gendt, 5 December 1763. [back to text]
[26] For instance RAG, RVV, no. 6914, inspection of the body of Jan De Pau, Waarschoot, 28 November 1634 (which speaks of ‘the presence of many and various bystanders’), and no. 31151, inspection of the body of Pieterken De Mey, Sint-Lievens-Houtem, 24 March 1774 (post-mortem in a private home). [back to text]
[27] RAG, RVV, no. 31130, inspection of the body of Eugenius Arckens, Zwevegem, 20 May 1754; SAG, OA, series 218, no. 5, fol. 102r-v, inspection of the body of Lucas Everaert, Zelzate, 25 April 1724. [back to text]
[28] An interesting remark concerning the ‘spectacular’ nature of early modern post-mortems appeared in an eighteenth-century report produced on behalf of the aldermen of Ghent. When asked if he wanted to attend the post-mortem of a woman who had fallen from a watermill, situated on the border of the jurisdictions of Ghent and Drongen, the clerk of the parish of Drongen declined, stating that ‘it was not a nice spectacle to see’: SAG, OA, series 218, no. 7, inspection of the body of Anne Marie De Vos, 25 April 1764. The ‘spectacular’ nature of English coroners’ inquests, whose public character was even much more pronounced than that of continental post-mortems, is acknowledged in Butler (2015: 182). [back to text]
[29] RAG, RVV, no. 7024, attorney-general to the Council of Flanders, 16 November 1723. [back to text]
[30] RAG, RVV, no. 31163, Jacobus Rochus Joannes De Belie to the attorney-general, 6 August 1783. ‘Mits d’acte van aenschouw d’oorzaek van de dood niet ten vollen en schijnt te decideren.’ [back to text]
[31] SAG, OA, series 218, no. 2, fol. 86v, inspection of the body of Tanneken Causmaeckers, 29 May 1653. [back to text]
[32] ‘Un Chirurgien judicieux est obligé à ne rien dire d’affirmatif dans son Rapport sur les causes absentes, sur les douleurs, & généralement sur tout ce qui ne tombe pas sous les sens’. [back to text]
[33] ‘Dat zij in twijffelicke zaeken niet te stout en zijn’. [back to text]
[34] ‘Hier in moet hy seer voorsichtich ende wel toesiende wesen […] mits dat de Rechters haer altijt fonderen ende reguleren op het aengeven des Medicijns oft des Chirurgijns’. [back to text]
[35] RAG, RVV, no. 7037, inspection of the body of Agnes Therese Cousin, Warneton, 28 May 1738. ‘Couvert d’un très grand nombre de vers par la corruption dudit cadavre ou corps mort, qui répandoit une grande puanteur […], et comme ledit corps mort étoit tellement en corruption qu’aucune partie de son corps ne pouvoit être consideré dans leur essence, ainsi nous déclarons que nous ne pouvons aucunement juger de la cause de sa mort’. The victim’s corpse was found in a forest after she had been missing for a couple of days. The judges of the feudal court of Warneton suspected foul play and issued a public notice promising a financial reward to the person who could identify the purported killer. [back to text]
[36] RAG, RVV, no. 31129, inspection of the body of a female infant, Bornem, 25 February 1751. ‘Door dien sij bevonden hebben dat de principaelste partijen soo interne als externe, alreede door de vogelen ofte gedierten waeren op ge’eten, ende ten deele verrot, sulcx sij niet en connen ordeelen oft het soude geleeft hebben oft niet’. [back to text]
[37] SAG, OA, series 215, no. 1, sentence of 9 December 1645. [back to text]
[38] RAG, RVV, no. 31112, advice of the bailiff and aldermen of Steenbeke regarding the granting of a pardon to Anthoine Papegay, 12 March 1670. [back to text]
[39] ‘Là, le juge attend de l’expert une réponse tranchée, que le médecin expert n’est pas toujours en mesure de lui apporter’. The problems that the ‘divergence between medical and legal assessments of what constituted satisfactory proof of causation’ could pose in early modern rape cases are discussed in Stephan Landsman’s article on medical witnesses at the eighteenth-century Old Bailey (Landsman 1998: 460). [back to text]
[40] The same remark has been made by many historians working on early modern forensic practices (e.g. Vanhemelryck 1972: 369-370; Denys 2000: 99; Chaulet 2008: 318). [back to text]
[41] Stadsarchief Ieper, Kasselrij Ieper, series 8, no. C3, inspection of the body of Guillaume Pollé, Kemmel, 1 October 1717, and depositions of witnesses, 1-2 October 1717. The victim’s wife and her lover were sentenced to death in absentia. [back to text]
[42] Stadsarchief Brugge, Oud Archief, series 191, no. 5, fol. 135v-136r, inspection of the body of Jan Verstraete, 24 March 1675, and questioning of the experts, 29 March 1675. Ten years earlier, the same experts examined the corpse of a person who had purportedly broken a leg. However, they did not discover any fracture and were not prepared to give an opinion on the cause of death. The aldermen of Bruges then questioned the victim’s attending physician, who ascribed death to a fever: series 191, no. 5, fol. 68v-69r, inspection of the body of Pieter De Wispelare, 8 November 1665, and questioning of the physician, 10 November 1665. [back to text]
[43] RAG, RVV, no. 6935, deposition of the surgeon Jacques Forret, 27 October 1653. The surgeon was probably questioned in response to a petition for a pardon by the offender. He considered the injury not to have been lethal. A similar course of action was undertaken in a 1566 case, in which a number of surgeons were questioned regarding a homicide that had occurred seven years before, again in response to a request for a pardon (Vrolijk 2004: 334-335). [back to text]
.
WORKS CITED
Archival sources
Bruges, Stadsarchief, Oud Archief, series 191, no. 5, register of post-mortem reports, 1655-1690
Ghent, Rijksarchief (RAG), Raad van Vlaanderen (RVV), no. 6828-7086, inquests by subaltern courts
Ghent, Rijksarchief, Raad van Vlaanderen, no. 8594, register of criminal sentences, 1585-1641
Ghent, Rijksarchief, Raad van Vlaanderen, no. 31105-31166, post-mortem reports
Ghent, Stadsarchief (SAG), Oud Archief (OA), series 213, criminal trial records
Ghent, Stadsarchief, Oud Archief, series 214, ‘books of crime’ (boeken van den crime)
Ghent, Stadsarchief, Oud Archief, series 215, criminal sentences
Ghent, Stadsarchief, Oud Archief, series 218, registers of post-mortem reports
Ghent, Stadsarchief, Oud Archief, series 219, post-mortem reports
Ypres, Stadsarchief, Kasselrij Ieper, series 8, no. C3, trial against Joris Calmein and Marie De Jonghe for the murder of Guillaume Pollé, 1717
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