THE COPRODUCTION OF LAW AND SCIENCE IN MEDICAL RESEARCH

A few dominant strands compose “law and science” scholarship. One is predominantly occupied with the application of science in advancing the purposes of the state. This literature explores how states mobilize scientific knowledge to enhance their governing capacities (for example, MacLeod Reference MacLeod1965). It explores how particular sciences—forensic medicine is one example—emerged to facilitate law enforcement.^{Footnote 7} Another strand of literature is interested in how scientists become involved in policy making and judicial processes as experts and advisers in public, as well as civil, law.^{Footnote 8} Others in the social studies of law and science examine how legal institutions and norms shaped and transformed science and medicine.^{Footnote 9}

In contrast, the concept of coproduction highlights the joint action of law and science. Science and technology studies (STS) scholar Sheila Jasanoff (1996, 393) defines coproduction as “the simultaneous production of knowledge and public order.” More than arguing for the reciprocal relations of law and science, the perspective of coproduction seeks to analyze the outcomes of such an interaction as they are manifested in the production of scientific knowledge and public order or “forms of life” (397). Current literature on coproduction is mostly dedicated to questions of science and democratic politics and focuses on issues of risk, representation, and allocation of resources.^{Footnote 10} Even when sociologist of law Alfons Bora (Reference Bora2010, 14) discusses “technoscientific normativity,” he develops a critique of the democratic vacuum in participatory processes in science policy. While law and STS scholarship examines “public order” mainly in the sense of formations of citizenship broadly conceived, this article expands on the normative dimension of law in its interaction with science.

Sociologists Susan Silbey and Patricia Ewick (2003) mark another path for understanding the interaction of law and science in their research about environmental and safety regulation. They show that regulation helped to constitute separated places for science and thus legitimized science’s claim for objectivity. Regulation, Silbey and Ewick contend, reshaped the very idea of science and its social acceptance. Law is “as much part of the edifice of science as the steel and glass, ducts and ventilating shafts so characteristic of modern laboratory buildings” (Silbey and Ewick Reference Silbey, Ewick, Sarat, Douglas and Umphrey2003, 85). This article adopts the framework of coproduction but shifts the focus away from questions of citizenship. I expand upon Silbey and Ewick’s insight into law’s embeddedness in scientific practice to include the constitution of moral order within the laboratory. The Vivisection Act shaped both the practical and normative aspects of animal experimentation—more precisely, how these two aspects were interwoven. The act’s mission to minimize, or at least monitor, the suffering of animals in laboratories made the law a participant in the creation of a new “cruelty-free” physiological knowledge.

Existing literature on the history of anti-cruelty laws in Britain tends to concentrate on the events and campaigns leading to triumphant legislation.^{Footnote 11} However, as Daniel Carpenter (Reference Carpenter2001, 11) observes, “legislation cannot hard-wire administrative outcomes.” This approach has been prevalent in the work of legal scholars and social scientists employing sociological and anthropological methods to account for the regulation of scientific practice.^{Footnote 12} Tracing the work of the inspectors, who were, according to historian Jill Pellew (1982, 199), “in greater contact with the outside world than the higher officials, imprisoned behind their Whitehall desks,” provides a valuable perspective on the law in action and, in particular, in action in medical research laboratories.

Debates over the degree and nature of state intervention in nineteenth-century Britain date back to A. V. Dicey’s (Reference Dicey1905) influential essay entitled Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century. Dicey’s arguments, and his claim for an era of individualism during the mid-century, were challenged by succeeding British specialists (Parris Reference Parris1960, 26).^{Footnote 13} One strand in the debate over the history of British governance evolved around the attempt to understand the forces that initiated legislative changes. Reacting to Dicey’s emphasis on theories and political ideals, Oliver MacDonagh (Reference MacDonagh1958) suggested a model for government growth based on the dynamic between bureaucrats and the public.^{Footnote 14} Succeeding publications focused on the nuts and bolts of the nineteenth-century administrative apparatus, encompassing a wide range of fields and activities, including factories, schools, explosives production, and nature conservation (S. Novak Reference Novak1973; Pellew 1982, 123; MacLeod 1968; Crook Reference Crook2007).

However, the Vivisection Act has been given little attention by scholars examining the growth of governance in nineteenth-century Britain. There are several possible reasons for this omission. The act differed from other legislation by not demonstrating a direct concern with public safety or economic interests. Instead, it focused on the welfare of animals. Individual rights were not a concern in the debates about state intervention in animal experimentation; here, the main objection of the legislation’s opponents concerned the advancement of medicine as a common good (French Reference French1975, 103; Ritvo Reference Ritvo1987, 165). Additionally, the administrative system supporting the Vivisection Act was markedly smaller than some of the other inspectorates;^{Footnote 15} in its first decades, it included only three inspectors responsible for England, Scotland, and Ireland. Nevertheless, the act played a critical role in shaping British medical sciences and hence provides a fruitful case study for nineteenth-century state intervention in scientific practice. The vivisection inspectorate is a story of an unprecedented amalgamation of law and medical research, one in which civil servants reshaped the production of scientific knowledge.

THE VIVISECTION ACT OF 1876

The enactment of the Vivisection Act was a constitutive moment in animal experimentation in Britain. The act was part of a wave of regulations that concerned, in addition to cruelty to animals, conservation, public health (mainly contagious diseases and slaughtering), and nuisance legislation.Footnote ¹⁶ British legislators wrestled with the idea of cruelty to animals for decades, as evidenced by the many attempts to amend and refine the offense during the nineteenth century.Footnote ¹⁷ Middle- and upper-class patrons embraced the protection of animals as a virtuous position to adopt, while humanitarians used the anti-cruelty movement as an “instrument of marginalization” of the lower classes (Ritvo Reference Ritvo1987, 130).Footnote ¹⁸ However, animal experimentation was an oddity among the practices attacked by these animal lovers because vivisection practitioners were typically educated gentlemen (Kean Reference Kean1995, 20).

Public criticism of animal experimentation came to a boiling point in the 1870s as the practice strengthened its hold in British physiology (see Figure 1).Footnote ¹⁹ The Royal Society for the Prevention of Cruelty to Animals (RSPCA), the leading animal protection organization in the United Kingdom, was divided on the issue. Most RSPCA members were convinced that vivisection was necessary for medical progress, but some called for its complete abolition. Those opposed to vivisection, a coalition of middle-class reformers, wealthy aristocrats, and clergymen, talked in terms of compassion, benevolence, and religious ideals.^{Footnote 20} In response to a growing public agitation in which women took the lead, the Home Office summoned the Royal Commission on the Practice of Subjecting Live Animals to Experiments for Scientific Purposes (Royal Commission on Vivisection) in 1875 (French Reference French1975, 236–50; Kean 1998; Ritvo Reference Ritvo1987, 157–66; Hamilton 2004; Bates Reference Bates2017, 45–48). The commission concluded that “the abuse of the practice by inhuman or unskillful persons—in short the infliction upon animals of any unnecessary pain—is justly abhorrent to the moral sense of Your Majesty’s subjects.” The commissioners therefore suggested legislation as a measure “in the interest both of humanity and of science” (Royal Commission on Vivisection 1876, xviii).^{Footnote 21}

FIGURE 1.

Anti-vivisection agitation: Illustrated Police News. 1877. “The Horrors of Vivisection.” July 7. © The British Library Board. All rights reserved. With thanks to The British Newspaper Archive (www.britishnewspaperarchive.co.uk).

The Vivisection Act was drafted following the recommendations of the Royal Commission on Vivisection. Conservative Lord Carnarvon, the colonial secretary, drafted a bill largely based on a proposal by the RSPCA (Royal Commission on Vivisection 1876, vii). ^{Footnote 22} The bill’s enactment was preceded by heated debates between rival interest groups. In the end, the act did not criminalize animal experimentation as the vivisection opponents had hoped, nor did it allow the practice to be independent of oversight, as the vivisection proponents had desired. Instead, the Vivisection Act provided in section 2 that “[a] person shall not perform on a living animal any experiment calculated to give pain, except subject to the restrictions imposed by this Act.” The act required experimenters to obtain licenses from the Home Office and to register places where experiments were to be undertaken. It prohibited practices such as dispensing with the use of anesthesia and allowing an animal to recover from an experiment while in pain or serious injury, unless the experimenter obtained a special certificate signed by leading medical authorities.

Section 10 of the Vivisection Act set the legal foundation for the employment of inspectors: “The Secretary of State shall cause all registered places to be from time to time visited by inspectors for the purpose of securing a compliance with the provisions of this Act.” The act also allowed the home secretary to “appoint any special inspectors, or may from time to time assign the duties of any such inspectors to such officers in the employment of the government, who may be willing to accept the same, as he may think fit, either permanently or temporarily.” The examination of the inspectors’ work reveals that the act was not a dead letter law (compare Ritvo Reference Ritvo1987, 160). Inspectors George Vivian Poore (1843–1904) and James Alexander Russell (1846–1918), who were on duty in the last decade of the nineteenth century, left handwritten and typed notebooks with their impressions from inspection visits. Their notes from the years 1894, 1895, 1897, and 1899 provide a rare glimpse into how the Vivisection Act worked in practice.^{Footnote 23} In what follows, I focus on Poore and Russell to provide an in-depth analysis of a reasonable time frame.

THE VIVISECTION INSPECTORATE

Inspection was developed as a tool of the British central government in the mid-nineteenth century. By the time the Vivisection Act was released, there were ten inspectorates working under the Home Office, monitoring a range of areas from factories and mines to burial grounds and salmon fisheries (Pellew 1982, 12).^{Footnote 24} The concept of inspection was familiar to nineteenth-century men of medicine from the Anatomy Act 1832, and most of the witnesses who testified in front of the Royal Commission on Vivisection expressed no objection to the idea of inspection. The physiologists’ responses reflected their experience with the Anatomy Act’s inspectors, whose main responsibility was to ensure that dissected human corpses were obtained lawfully (Royal Commission on Vivisection 1876, 54). Nonetheless, for the Vivisection Act, the commission rejected the vision of a minimal and formalistic inspection system in the spirit of the Anatomy Act and, in its 1876 report, recommended that greater responsibility be given to the inspectors of vivisection. The commission advised that places where animal experimentation was undertaken should be registered and that the home secretary be given the means to make a “most efficient inspection” of such premises (Royal Commission on Vivisection 1876, 54).

The Vivisection Act did not explicitly prescribe any duty other than visiting registered places, but, in practice, inspectors were involved in much more. At the core of the implementation of the act were the day-to-day activities of the Home Office inspectors and their encounter with animals subjected to research. In addition to laboratory visitations, the inspectors’ responsibilities included advising the home secretary, communicating with experimenters, and gathering and organizing data for annual reports presented to Parliament. The inspectors composed reports with direct implications for laboratories. For example, following an 1888 memorandum by Inspector John Erichsen, the Home Office added a condition to licenses requiring the use of antiseptics in certain procedures, aiming to ease the pain of animals recovering from surgeries (Royal Commission on Vivisection 1912, 7). However, the inspectors were not given any authority to begin legal proceedings for violations of the act perhaps because of the inflammatory potential of prosecuting physiologists.^{Footnote 25} The home secretary, who held the authority to prosecute, relied heavily on the work of the inspectors in gathering and processing information about the state of affairs in laboratories and designing the office’s policies.

The inspectors’ visits to laboratories lasted anywhere between two hours and an entire day. It was left to the discretion of the inspectors to decide whether to inform the licensees about the anticipated inspections: in 1894, for example, the number of scheduled visits equaled unscheduled visits.Footnote ²⁶ During 1895, James Russell made all of his visits without an appointment, with one or two exceptions. He explained to George Poore that he preferred not to be tied to a day and added that it would improve credibility with anti-vivisection protestors to be able to report that most inspections took place without advance notice.^{Footnote 27} The number of visits to each registered place varied. Although Home Secretary Henry Matthews was quoted to have said on one occasion that “the words ‘from time to time’ in the Act have been interpreted in the Home Office to mean once a year,” Matthews claimed on another occasion that “two or more visits a year were expected to be made by the inspector” if experiments were being carried out.^{Footnote 28} Visiting laboratories was a delicate task as inspectors needed to smoothly move between the bureaucratic and the scientific spheres.

“HIGH INFLUENTIAL POSITION … AND IN THE VIGOUR OF LIFE”: ELECTING INSPECTORS AND THE PROBLEM OF ADMINISTRATIVE CAPTURE

Because the attempts to regulate vivisection enraged many experimenters and generated major institutional resistance (French Reference French1975, 118–58; Ritvo Reference Ritvo1987, 57–160), officials emphasized the importance of ensuring that the inspectors be personally agreeable. The Royal Commission on Vivisection (1876, 221) indicated that the inspectors should be “persons of such character and position as to command the confidence of the public no less than that of men of science.” During the preparation of the vivisection bill, members of the medical establishment joined forces to mitigate the potential interference in their work, using their ties with Parliament members and the public platform provided by medical journals (French Reference French1975, 118–42). The General Medical Council wished to amend the vivisection bill to ensure the employment of inspectors who were “scientifically competent to appreciate the nature and intention of such experiment as he may witness.”Footnote ²⁹ This recommendation did not make its way into the act but was unofficially followed by the Home Office administration in practice in order to achieve legitimacy among experimenters. Another consequence of the policy to appoint inspectors with scientific training was that the elected inspectors, inhabiting both worlds of bureaucracy and of science, were effective in fostering the law and science coproduction of ethical scientific facts.

Home secretaries recognized that the character of the inspectors was crucial in legitimizing their reports in the eyes of experimenters. The Home Office sought to establish institutional legitimacy by recruiting inspectors from within the supervised professions, expecting that those with such professional backgrounds could produce credible testimony about the state of animals in laboratories. Home Secretary Henry Matthews maintained in 1890 that the inspectors’ duties “cannot be performed except by a gentleman who has high influential position in his profession and is in the vigour of life.”^{Footnote 30} In the Vivisection Act’s first few decades, the Home Office recruited inspectors with medical training, who were also involved in research and served on educational or public institutions related to their scientific expertise.^{Footnote 31} The scientific background of the inspectors played a role in making them agents of coproduction; being scientists who communicated with other scientists, they facilitated the flow of information about animals’ bodies between the Home Office and physiologists. Being legal actors, this flow also carried with it norms of conduct.

The stated aim was to find gentlemen who would be viewed as credible by both the scientific community and the wider public, which was envisioned to include many critical perspectives on vivisection. However, it is evident that the satisfaction of the scientific community was a top priority. Home Secretary Herbert Asquith defended the importance of scientific training for the inspectors and said that, while the act only required the inspection of a registered place, “the inspector would not be doing his duty properly were he not to make himself personally acquainted with the matter in which the experiments themselves were conducted.” Asquith added that inspectors “ought not however to look on the eminent scientific men who conducted these experiments as if they were criminals caught out at attempted infractions of the law.”Footnote ³² It is hard to overstate how meaningful this last notion was for the scientific community. The original skepticism of physiologists gradually decreased when it became clear that inspectors would have ties to the scientific enterprise. The experimenters’ discontent with the administration of the act was aimed mainly at the home secretary rather than at the inspectors. Pathologist Charles S. Roy from the University of Cambridge remarked that the first three inspectors “have admirably fulfilled their duties as inspectors.” Nevertheless, he argued that their mandate in advising the home secretary should be limited, as “none of them had the laboratory experience required to enable them to act as efficient experts.”^{Footnote 33}

The requirement that inspectors have a scientific background, in addition to generating legitimacy among experimenters, also reflected the emerging centrality of scientific knowledge in defining British attitudes toward animals. Sir William Church, the president of the Royal College of Physicians, voiced the position held by scientific institutions when he wrote in 1899: “I feel certain that if a layman were appointed inspector there would be a general uprising of the profession of scientific teachers and men throughout the kingdom.” Church explained that by layman he meant “a lawyer or other person who had not gone through a complete scientific training including either physiology or medicine.”Footnote ³⁴ Church specified that the inspectors should not only be men of science but also trained in specific fields. In his view, a background in physiology and medicine was necessary to accurately understand the tasks demanded of experimenters in laboratories. A mastery of these disciplines was also required to produce a credible evaluation of the suffering of animals in laboratories. The inspectors’ medical training qualified them as expert witnesses of animal pain.

The first inspector under the Vivisection Act was George Busk, a respected surgeon and a naturalist in his seventies. He was a fellow of the Royal College of Surgeons and held the chair of Hunterian Professor of Anatomy and Physiology before serving various offices at the college. Busk was involved with several scientific societies: he was a fellow, and also served on the council, of the Royal Society and was a member of the Linnaean, the Geological, and the Zoological societies (British Medical Journal 1886). The anti-vivisection journal, the Zoophilist (1886, 4), however, contended that Busk had been “remarkable for nothing but mediocrity,” and his inspection was “a sham.” For tasks that required traveling outside of London, Busk employed an assistant, G. J. Allman.

Surgeon John Eric Erichsen replaced Busk on April 1, 1886. His resume was as distinguished as Busk’s: he was a fellow of the Royal College of Surgeons and occupied high positions at the institution. Erichsen was elected a fellow of the Royal Society in 1876, and, in 1877, he was made surgeon-extraordinary to the queen. Erichsen was a commissioner at the Royal Commission on Vivisection of 1875 and was considered a neutral nominee, although he had previously experimented on animals. He even managed to gain the trust of Commissioner Richard Holt Hutton, a leading anti-vivisection spokesman (French Reference French1975, 96). But Erichsen (Reference Erichsen1879) did not identify himself with the anti-vivisection cause.

George Poore first joined the Vivisection Act’s administration on April 1, 1889 to assist Inspector Erichsen.^{Footnote 35} A member of the medical elite, he had been a fellow of the Royal College of Physicians since 1877. He also had a special interest in public hygiene and was a member of the Executive Council of the International Health Exhibition held in London in 1884. He held the position of physician at University College Hospital, where he was also the chair of medical jurisprudence and clinical medicine (British Medical Journal 1904, 1544; 1905, 1398). On May 12, 1890, upon the resignation of Erichsen, Poore was promoted to the rank of inspector.^{Footnote 36} Poore soon experienced the increasing workload of the inspectors: in 1888, there were seventy-five licensees and twenty-eight institutions, in which one or more laboratories were licensed to conduct experiments. In 1889, there were eighty-seven licensees and thirty institutions, and, in 1890, the year in which Poore became an inspector, the number of licensees had increased to 110 and the number of institutions to thirty-three.^{Footnote 37} The steady growth in requests for licenses and registration led Poore to suggest to Home Secretary Henry Matthews that an assistant inspector be engaged with the responsibility of Scotland and Newcastle, leaving England south of York in his mandate as the principal inspector.^{Footnote 38} Poore’s request was granted, and James Russell was hired as assistant inspector for Scotland and North England. Russell was trained in medicine and sanitation and was engaged in public health management in Edinburgh. In 1881, he had been elected a fellow of the Royal College of Physicians, and, at about the same time, he was appointed government inspector of anatomy for Scotland (British Medical Journal 1894, 1216). Russell began his duties as an assistant inspector to Poore on August 1, 1890.

There were inherent complexities in the inspectors’ role in interacting with the people whose work they supervised and whose careers they could damage. Although the licensees were obliged by law to allow the inspectors to examine the registered places where they operated, a cooperative attitude benefited the inspectors’ work. As in other inspectorates, a substantial part of the inspectors’ role in relation to the experimenters was explanatory and advisory.^{Footnote 39} Historian Gerald Rhodes (Reference Rhodes1981, 64) observes in his study of late nineteenth-century factory and mines inspectors that “[they] relied on persuasion rather than prosecution.” Along the same lines, historian Tom Crook (Reference Crook2007, 372) claims in his study of sanitation inspectors that “public diplomacy was crucial” and relations with the public determined whether the inspectors’ job would be relatively easy or “slow and confrontational.” When Poore, for example, visited the Pathological Department at Cambridge University, James Lorrain Smith asked him if putting a mouse in a jar before a class in order to collect the gases produced through respiration was an experiment. Poore replied negatively, explaining that he did not think it was an experiment calculated to inflict pain.Footnote ⁴⁰

The encounters between the inspectors, the licensees, and other laboratory personnel included discussions of shared interests and provided opportunity to educate the experimenters about the Vivisection Act’s requirements. Shortly after Russell had begun his work, Poore told him that he “was not expected to act as a detective” (Royal Commission on Vivisection 1907, 22). Indeed, Russell promised Thomas Oliver from Newcastle, who was doing electric shock experiments on dogs, that he would help to obtain some information Oliver needed from the Edinburgh Corporation’s electrical engineers.Footnote ⁴¹ Russell visited Oliver in his home as well as the homes of other experimenters.Footnote ⁴²

The strategy of employing familiar and respected figures in the scientific community who were versed in the medical sciences evoked undesired, perhaps even unexpected, opposition. Historian of science Steven Shapin (Reference Shapin2010, 23–46) describes how, for a long period, scientists had enjoyed a privileged position in relation to public affairs that was later transformed into “moral equivalence.” However, historians Anita Guerrini (Reference Guerrini2003, 87–92), Coral Lansbury (Reference Lansbury1985, x), and Harriet Ritvo (Reference Ritvo1987, 163) reveal that many British individuals distrusted medical institutions for their abusive treatment of lower-class women and their use of poor populations. For late nineteenth-century criticizers of vivisection, being a man of science not only was unrelated to having a special moral standing but also was seen as disqualifying a person from expressing views on public issues.

The Vivisection Act’s opponents maintained that the inspectors were too closely attached to their subjects of supervision and too embedded with the values, interests, and goals of the scientific establishment to ensure a disinterested inspection. In a debate at the House of Commons in September 1893, Colonel Amelius Lockwood, a conservative member of parliament (MP) for Epping, claimed that the inspectors “were supposed to stand between the vivisectors and their subjects, the dumb animals, in order to assure … the claims of the lower animals to human consideration.” MP Lockwood argued that the inspectors were insufficient in this regard—first, because they held other occupations in addition to being inspectors and, second, because they were not sufficiently detached from the subject. Lockwood pointed out that Inspector Poore, whom he acknowledged to be “universally respected,” had held a position at the University College Hospital and that “a gentleman who was constantly in association with 16 men engaged in the work of vivisection could hardly be regarded as perfectly impartial.” Lockwood recommended that future inspectors be appointed in consultation with the RSPCA. Home Secretary Herbert Henry Asquith smiled when he heard Lockwood’s proposal: “I am afraid that if I had to arrive at a conclusion with the Anti-Vivisection Societies we should remain without any inspector at all.”^{Footnote 43}

The Vivisection Act’s administration demonstrated the classical problem of regulatory capture, whereby the regulator agents have an interest in protecting the very entity they are charged with regulating. Jill Pellew (1982, 198) notes that, perhaps more than any other inspectorate at that time, the vivisection inspectors were “closer to those they were inspecting than to their official colleagues” in the Home Office. An inspector in such a position, Pellew suggests, might have “overlooked some small infringements of the act in the interests of his own profession” (198).^{Footnote 44} At the same time, what critics of the act’s administration might have interpreted as an unduly intimate relationship between inspectors and experimenters might also have been a way to ease potential tensions as they fulfilled their mission. The inspectors tried to mediate between experimenters and policy makers, examine all registered places, and report deviations from the law while maintaining congenial relationships with the experimenters so as to enjoy relatively free access to animal rooms, demonstration rooms, and even the performance of experiments. The inspectors were legal agents with scientific credentials who moved back and forth between the Home Office and the laboratories, navigating between law’s requirements and scientific demands. In the next sections, I map and analyze where and when inspectors minimized or alternatively reinforced their intervention in the vivisection laboratory.

“THERE CAN BE NO PAIN”: INSPECTORS MEET ANIMALS

Pain was the leading category of reference for the inspectors. Section 3 of the Vivisection Act imposed restrictions “with respect to the performance on any living animal of an experiment calculated to give pain.” These restrictions included, among others, subsection 3(3): “The animal must during the whole of the experiment be under the influence of some anaesthetic of sufficient power to prevent the animal feeling pain,” and subsection 3(4): “The animal must, if the pain is likely to continue after the effect of the anaesthetic has ceased, or if any serious injury has been inflicted on the animal, be killed before it recovers from the influence of the anaesthetic which has been administered.” Additionally, annual reports about licensed experiments carefully distinguished between painless and painful experiments.

In their visits to laboratories, inspectors attempted to evaluate whether the animals they saw—whether undergoing an experiment or recovering one—suffered pain and, if they did, to what degree. Historian Roy MacLeod (2003, 14) observes that inspectorates in Britain “were acting as the ‘eyes and ears’ of government,” but the vivisection inspectors were not only witnesses and record keepers, they also made judgments about animals’ well-being and proper conduct in the research laboratory. Their visitation notebooks bring fresh perspective as they provide an informal record of the inspectors’ practice and, together with memos and correspondences with the civil servants at the Home Office and with physiologists, afford a sense of the everyday life of the law.

Pain is not a self-evident phenomenon, and, in nonhuman animals, which cannot articulate their experiences in words, it is even more so. The Vivisection Act did not define “pain” or “suffering,” nor did nineteenth-century courts, which confronted a similar challenge in cases of cruelty to animals.^{Footnote 45} Scientists could not provide civil servants with a clear-cut definition of pain or suffering either since physiologists debated where to locate and how to recognize pain (Rey Reference Rey1998, 182–260; Bourke Reference Bourke2014, 272–302). The state of knowledge about pain in that period was showcased in the report of the Royal Commission on Vivisection. Scientific consensus gradually attributed pain to the workings of the nervous system. Nevertheless, many scientists who testified in front of the commission contended that the intensity of pain, and, at times, even the existence of the sensation itself, varied across animal breeds and human races (for example, Royal Commission on Vivisection 1876, 25, 136).

Having a certain idea of pain and a way to detect it, measure it, and talk about it were fundamental for anyone engaged with the Vivisection Act and especially for the inspectors who were trusted to supervise its implementation. Nevertheless, the act did not define “pain,” as it did not define an “experiment.” Without concrete guidelines for the detection of pain in laboratory animals, the civil servants used a mixture of intuition, personal knowledge, data received from physiologists, and Home Office precedents to decide whether the animals they saw were suffering pain and to what degree. They decided, for instance, which degree of pain was tolerable for the act and whether, for instance, a mutilated animal was in pain. The meaning of pain in the context of the Vivisection Act was thus constructed through the interplay of law and science.

Inspectors used various strategies to evaluate animal suffering. They examined some animals visually; at other times, they looked for changes in indicators of pain such as appetite or playfulness. On other occasions, an animal’s physiological inability to feel pain, rather than visual indicators, convinced the inspectors that the animal was not suffering. In a visit to the Brown Institution in January 1894, Poore saw some cats whose posterior nerve roots had been divided by the physiologist and future Nobel Prize winner Charles Sherrington. Poore noted in his report that “the operation deprived the animal of feeling in the earlier operation and causes some motor disability. There can be no pain.”Footnote ⁴⁶ Poore’s decisiveness about the lack of sensitivity of the cat was probably related to Sherrington’s established reputation as a neurophysiologist.

Poore encountered monkeys quite often, and he almost always took their energetic behavior as a sign of well-being. In 1894, Poore visited Charing Cross Hospital Medical School. “Saw some monkeys which were said to have been experimented on,” he noted in his book, “saw nothing noticeable about them.”Footnote ⁴⁷ In a later visit, he saw a monkey that had had an operation performed on its cerebellum. Poore carefully scrutinized the body of the monkey and found “a slight deficiency of power in left hind leg.” Four months later, Poore described one of the monkeys that he had seen before as “perfectly happy.”Footnote ⁴⁸ In January 1895, Poore visited Charing Cross Hospital Medical School again. Neither physiologist Frederick Walker Mott nor his assistant, whom he had expected to see, was there to welcome him. The animals’ room, however, was open, and Poore walked in to examine the animals. A suggestion of familiarity appears in his remark that the same monkey he had seen before was “as lively and friendly as usual.”Footnote ⁴⁹

Poore consistently wrote positive reports, but his records reveal a more complex reality of mutilated animals. When Poore visited St. Thomas’ Hospital in 1894, he saw two monkeys whose posterior nerve roots had been divided by Sherrington. They were probably rhesus macaques on which Sherrington was exploring questions of motion and reflex action (Mott and Sherrington Reference Mott and Sherrington1894, 481). The monkeys had lost sensation or useful action in one of their hind limbs, and yet Poore could find no signs of suffering: “The animals were chattering and lively and certainly in no pain.” On another visit to St. Thomas’ Hospital, he saw a monkey that had some of its posterior nerve roots divided. He reported that neither the monkey nor several cats whose thyroid glands were removed seemed to be suffering. A few months later at the same institution he saw a monkey that “had its ‘third nerve’ divided. Its left eyelid drooped a little but as soon as its cage door opened it caught hold of the window rope and ran up it as only a monkey can.”Footnote ⁵⁰

Poore rarely recorded inactive or frail monkeys. One of these encounters took place when he visited the Neuropathological Laboratory in King’s College. Among all registered places, this facility was the hardest to get access to. Poore’s earlier attempts to visit the site in May 1894 had failed since the laboratory was locked.Footnote ⁵¹ Finally, in October 1894, he was able to enter the place. The single licensee associated with the place at that time was David Ferrier,^{Footnote 52} who had been prosecuted a decade earlier by the Victoria Street Society for violating the act; the charges against him were dismissed by the Bow Street Court (British Medical Journal 1881, 841). Poore encountered four monkeys, one of which had been trephined (a drilling of a hole in the skull) three days before. It was sitting in front of a lit fireplace. Poore looked at the monkey and concluded that it “afforded no evidence whatever of pain or discomfort.”Footnote ⁵³ He visited again the following year and saw a monkey that had had portions of its brain removed: “The animal was lively and active,” though he noticed some problem in the hind legs. A few months later in the same place he saw a monkey that had had the motor cortex of the brain removed, “but it was quite nimble and in no suffering.”Footnote ⁵⁴

Unpleasant sights were almost always absent from Poore’s reports. The descriptions of the animals he saw were never harsher than, for example, a comment that a cat whose thyroid gland had been removed ten days earlier was “perhaps slightly sluggish in its movements.” When he visited the Pathological Laboratory at London University College in January 1894, Poore saw a female dog from which half of the cerebellum had been removed some months ago. She was “happy and very proud of a puppy, the last of a litter of healthy pups she had recently brought forth.” This kind of description was typical for Poore. When he saw a rabbit at University College in Liverpool, in which the sciatic nerve had been divided, he commented that it was “able to go about quite naturally and was in no discomfort.”Footnote ⁵⁵

Similarly, Assistant Inspector Russell’s visitation notes were composed from short descriptions of the animals he had seen followed by his almost-always positive impressions of their well-being. Russell was most enthusiastic about the laboratory in Newcastle. He was impressed by the handling of the animals, which, besides monkeys, included dogs, rabbits, guinea pigs, and white rats, all, according to Russell, “in vigorous health, comfortably housed, well-fed and tame.”Footnote ⁵⁶ During a visit in November 1895, Russell met with Thomas Oliver (Reference Oliver1891), who was at that time primarily engaged with lead poisoning experiments, concerning his certificates. A day after the meeting, he sent Poore “a special report” on the condition of the animals experimented upon by Oliver; Poore then forwarded it to the Home Secretary.^{Footnote 57}

The inspectors did not leave behind detailed criterions for judging the condition of animals, and they probably did not have any. Yet Russell explained that a loss of appetite was “the first and most valuable index that we have for the condition of feeling” (Royal Commission on Vivisection 1907, 25). Reflecting back on his sixteen years of duty, Russell described his guidelines for identifying pain:

The inspectors’ reports conveyed their voices, and the archives contain only the descriptions of the experimental animals as the inspectors saw them. For the most part, to elicit perspectives other than the ones they provided, we can only try to read the inspectors’ notes “against the grain” in order to deduce what information may have been omitted from their observations. However, the following case offers a rare opportunity to compare Russell’s point of view with another revealing source.

In reports of visits during 1894, Russell mentioned two rabbits belonging to physiologist George Murray, which he had seen before. Their thyroids had been removed long ago, but they were “well and lively.”Footnote ⁵⁸ In a later visit, Russell noted that “a rabbit which had the thyroid removed by Dr Murray two years ago was very fat.”Footnote ⁵⁹ But the physiologist’s portrayal of the experiments reported by Russell evoked a very different image of the animals he used. In an 1896 British Medical Journal publication, Murray (Reference Murray1896, 205) described the February 1893 removal of the thyroid gland from a black and white doe rabbit: “A month after the operation the rabbit had become rather dull and inactive, but it could be easily roused to active movements. A week later the appetite diminished considerably. … Then during February 1894, a good deal of the hair on the ears, and nose was shed. … The rabbit began to suffer from uterine haemorrhage and so it was killed.”

The dates of this experiment and Russell’s visits coincide, and chances are high that Russell saw the same rabbit that Murray had written about. Did Inspector Russell not see the cracks on the animal’s skin? Did he not notice that it was “generally found sitting still with the eye half closed?” (Murray Reference Murray1896, 205). In the same publication, Murray also remarked that monkeys after thyroidectomy suffer from similar symptoms of lethargy, swelling, reduced appetite, loss of hair, dryness of skin, and low temperatures. Did Russell see all this and yet decide to omit it from his report? Or did he think that these symptoms did not constitute suffering under the Vivisection Act? It is evident that Poore and Russell were reluctant to record indications of animal pain. As Murray’s (Reference Murray1896) essay on rabbits showed, the inspectors might neglect to report troubling situations or, worse, turn a blind eye to cases of possible suffering. To a large extent, their avoidance reflected the inspectors’ inclination to favor the experimenters and to protect their colleagues’ reputations. In other words, they demonstrated administrative capture. But their caution with reporting about animals in pain also indicated their caution about asserting their views relating to issues in a field of knowledge that was increasingly ascribed to the realm of science (Dror Reference Dror1999).

Animal suffering, if the inspectors acknowledged it at all, was seldom included in their reports, but they translated it to a set of procedural requirements. As the next section will show, the inspectors used their power to the fullest when confronted with mundane bureaucratic breaches of the Vivisection Act, such as the lack of a proper license or an expired certificate. The inspectors constructed pain as an object of regulation not by a direct identification and handling of the suffering body but, rather, through the creation of various other means—such as a meticulous enforcement of procedural requirements, the education of physiologists about the act, and intervention in the design of the experimental space—in the name of animals’ well-being. Through this bureaucratic oversight, the inspectors facilitated the incorporation of the standards of behavior prescribed by the Vivisection Act.

INFRINGEMENTS

Visits to laboratories were a central method for revealing infringements relating to experiments without the required authorization. Inspectors would ask experimenters to produce certificates relating to the animals he had seen in the laboratory. In cases where the experiments did not require certificates, the inspectors would examine the physiologists’ licenses to make sure that they were up to date. Poore included two infringements of the Vivisection Act during 1894 in his annual report to Parliament. The licensees, he explained “carelessly exceeded the powers given to them by their certificates.”^{Footnote 60} One of these infringements was discovered when Poore visited the Charing Cross Hospital Medical School, where he saw a dog on which neuropathologist Frederick Walker Mott had made a central incision in the spinal cord. Mott did not have the proper certificate for this experiment, “but this was reported at the time and settled.”Footnote ⁶¹

In mid-November 1895, Poore visited the Pathological Laboratory at the Army Medical School in Netley, where he met the bacteriologist and immunologist Almroth E. Wright. He had observed a rabbit dying “perfectly tranquilly” as a result of subdural inoculation of hydrophobia (rabies) ten days earlier. However, allowing an animal to recover from the influence of anesthetic after an experiment required a special certificate; Poore ascertained that Wright did not hold the appropriate certificate to cover the procedure and informed the Home Office.Footnote ⁶² Wright argued that he had obtained the correct certification but failed to include the specific operation on the rabbit. Home Secretary Matthew Ridley accepted Wright’s explanation, and, following an arrangement made between Poore and Wright, he requested that Wright submit a corrected certificate.^{Footnote 63}

Not all experimenters were as lucky as Mott and Wright. On January 11, 1895, Poore visited the examination rooms of the Royal Colleges of Physicians and Surgeons in London. In the animal room, among various guinea pigs and rabbits, one cat caught his attention. Experimenter Fenwick had created a gastric fistula in the cat a few days previously, but the cat seemed to Poore to be “unconscious of its condition.”Footnote ⁶⁴ Poore had the cat taken out of its cage and noted that it was “quiet and purring and rubbed its head against my closed hand as often the manner of cats when we think they are pleased.” However, four days later, Poore returned and informed the director of the institution, German S. Woodhead, that Fenwick had performed the experiments without the certificates that were required: first, to experiment without anesthesia and, second, to keep an animal alive after the experiment. Poore and the director went together into the animal room to watch the cat, where once again the animal seemed to Poore to be “unconscious of its condition.”Footnote ⁶⁵ When it was taken out of its cage, the cat wandered around the room purring and rubbing up against Poore, “affording no evidence whatever of discomfort.”Footnote ⁶⁶ Although Poore emphasized in his notes that the cat was in good condition, he reported the infringement of the act relating to the certificates to the Home Secretary.

Two weeks later, a letter from Home Secretary Herbert Asquith was sent to the president of the Royal College of Physicians stating that “[t]he Secretary of State having carefully considered all the circumstances of the case had decided that Dr. Fenwick’s license … must be revoked and the Certificate A3 held by him disallowed.”^{Footnote 67} Letters were also sent to Fenwick and to the secretary of the Association for the Advancement of Medicine by Research.^{Footnote 68} Poore was informed about the situation that resulted from the information that he provided and for which he was to a large extent responsible.^{Footnote 69} Poore revealed an additional infringement of the Vivisection Act later in the same month. Visiting the Brown Institution, he noted that Sherrington did not have the certification required for the experiments he performed on cats and reported the matter to the Home Secretary.Footnote ⁷⁰ In April 1895, the Home Office sent a long letter to Sherrington. While Home Secretary Asquith acknowledged that Sherrington had performed several experiments without holding the requisite certificates, he was ready to accept that the infringements were done “through forgetfulness.” However, he stressed the “necessity of an invariable compliance with the provisions of the Act” and concluded, with regret, “that he feels bound to mark his sense of [Sherrington’s] neglect to observe the law” by postponing for a month the further consideration of certificates submitted by Sherrington.^{Footnote 71} On May 11, 1895, Kenelm Digby, permanent undersecretary, informed Sherrington that his license was renewed and his certificates allowed.^{Footnote 72}

This example shows that, contrary to the claim made by historian Richard French (Reference French1975), the Vivisection Act’s enforcement was not directed solely toward the weaker and less influential members of the experimental world, as Sherrington had been penalized despite his position as the general secretary of the International Physiological Society.^{Footnote 73} Other examples of civil servants confronting senior scientists exist. For instance, the Home Office denied a certificate to established physiologist Gerald Yeo.^{Footnote 74} The latter complained to his colleagues that his work had been obstructed by the Home Office (Sharpey-Schafer Reference Sharpey-Schafer1927, 75).

In spite of the infringements made by Wright, Fenwick, and Sherrington during 1895, Poore mentioned only two irregularities when submitted his annual report to Parliament. (He probably omitted from his count Wright’s case, which did not entail punitive measures.) Poore maintained that “the licensees have, as usual, manifested strict loyalty to the letter and spirit of the Act.”^{Footnote 75} In the same protective tone, when Poore reported seven cases of licensees “inadvertently overstepping their powers under the Act” during 1897, he noted that “the facts were recorded in good faith by the licensees themselves, and in each case they expressed their great regret at the inadvertence.”^{Footnote 76} Inspector Russell expressed the same confidence in the experimenters when he wrote to the undersecretary of state that he found that “many licensees had difficulty in understanding the Act,” but he also “saw nothing to indicate that any of them had failed to comply with it or desired to evade its provisions.”^{Footnote 77}

The annual reports composed by the inspectors and presented to the House of Commons by the home secretary routinely portrayed the experimenters in a positive, cooperative light and downplayed their misdeeds. Nonetheless, the official reports did not give details about important aspects of the communications between inspectors and experimenters behind the scenes. The inspectors’ visitation reports were confidential and so was the frequent correspondence between the home secretary and the inspectors. The general public, including members of anti-vivisection societies, could only learn about the administration of the Vivisection Act from the published annual reports and the sporadic references to the subject made by the home secretary during parliamentary debates that found their way to the newspapers.

The way in which inspection was carried out was so obscure that it led anti- vivisection protestors to doubt that any inspection was taking place. A contributor to the Zoophilist (1887, 74) complained that, while inspectors of schools were so meticulous as to record the beginning and ending times of each of their school visits, “there is not even the pretense of registering the so-called inspectors’ visits.” None of the inspectors, he contended, “has condescended to afford the nation which had paid their salary the slightest information as to when or where—if ever—they have inspected a physiological laboratory at all” (74). A reviewer of the 1893 annual report frustratingly commented that “it would have been much more to the purpose if Dr. Poore had said something more of the nature of the ‘experimental work’ itself, something of the fate of the animal on which it is carried out; but this is just what he avoids” (Zoophilist 1894, 24). The Zoophilist (1897, 47) made the accusation that the annual report was nothing but “anaesthesic to public opinion” and that “the inspector flounders deeper and deeper into the morass of insincerity as he strives his hardest to screen his clients, the vivisectors, from the public odium and condemnation they so richly deserve.” MP John MacNeill claimed that “the inspections of the vivisection laboratories were absolutely worthless” and complained that the home secretary “had refused to give a return showing the number of times the inspectors visited the laboratories and describing what they saw.”^{Footnote 78} But his call was never answered; inspectors did not describe what they saw and published only their final judgments on pain.

Since the Home Office did not disclose to the general public much of the routine administration of the act, critics of the act concluded that experimenters dictated what the inspectors wrote in their reports. When the Derby Daily Telegraph and Reporter (1880, 3) summarized one of the annual reports to its readers, it added that “the reporting officer, however, depends upon the assurance of the experimenters that in none of the other experiments under the certificates was any appreciable suffering inflicted.” The Zoophilist (1897, 47) pronounced the claim that the inspector “only knows what the vivisectors tell him.” And the chaplain of Lucas’s Hospital in Wokingham, Joseph Stratton (Reference Stratton1894, 91), claimed that it was “highly probable that he [the inspector] knows very little as to what really goes on in the torture-chambers up and down the country.”

While anti-vivisection advocates complained that the inspectorate was inactive, physiologists felt it was overactive. In 1881, the Physiological Society delivered a report about the Vivisection Act, which testified to the impact the act had on vivisection practitioners. The report was drafted by a committee composed of Lauder Brunton, Philip Henry Pye-Smith, and Gerald Yeo. The committee advised urging the Home Office to change the administration of the act, “so as to make it practically a registration act, with the double safe-guard against possible abuse of the ‘recommendations,’ and of the ‘inspection’ which it provides.” The report contained findings from a survey based on thirty respondents (out of seventy questionnaires sent) showing that there has been

The committee reported about seven cases of refusal to allow certificates, six cases of “injurious delay, often amounting to practical refusal,” and five cases in which experimenters were deterred from applying.Footnote ⁷⁹ This account reveals something important about the workings of the act: even though there were no “absolute refusals” of license applications, the Home Office’s administration of the Vivisection Act, characterized by requests for application revisions and only seldom a refusal, had impacted the way physiologists approached their research. What the Physiological Society described in its report are scientists who feel discouraged by the threat of administrative action, and their realization that they must find ways to cope with the new legal-moral order at the same time as trying to adjust their needs to it.

The Home Office’s published records purposely omitted the disciplinary actions taken against experimenters, such as the suspension of a license or the disallowance of a certificate, from the public eye. But other records show that, even though the inspectors’ reports to the home secretary did not lead to any prosecution in the period under study, they were effective in making the experimenters adhere to the act’s requirements. The inspectors’ impact on the experimental setting is demonstrated also in their involvement in its design.

INGENIOUS CAGES

The inspectors did not openly advocate administrative discretion but exercised it to the fullest in the registration of places for experiments.^{Footnote 80} Section 7 of the Vivisection Act authorized the home secretary to require the registration of places for the performance of experiments, as a condition for granting an experimentation license. The Home Office made registration mandatory, and the inspectors were in charge of processing the registration forms. The inspectors saw the experimental environment as an indication of the degree of attention being given to the well-being of animals, and, with this justification, they gained an increasing influence over the design of laboratories and animal rooms. They examined applications for the registration of such buildings, visited the laboratories nominated for such registration, and submitted their recommendations to the home secretary. Without the inspectors’ approval, an experimental project could not have been accomplished.

Most notably, the Vivisection Act contributed to the declining number of private experimental laboratories.^{Footnote 81} The General Medical Council was opposed to the registration provision when it first appeared in the bill. The council maintained that only spaces used for instructional purposes should be required to register. It argued that limiting experiments to registered places “would not only tend seriously to obstruct genuine scientific inquiry, but would also prove impossible in practice.” The Council further claimed that the licenses and certificates required from the individual physiologists were enough to ensure the proper conduct of experimenters, and, therefore, “private researches, which in competent hands might prove of the highest value to mankind … ought by no means to be prohibited.”Footnote ⁸² The Parliamentary Bills Committee of the British Medical Association also recommended changing the bill so that “a licensed person may register any convenient place for the purpose of experiment, and that such register shall be confidential document,” accessible only to the secretary of state and appointed assistants.Footnote ⁸³ The secrecy of the registration was requested in order to avoid anti-vivisection protest.

A similar dissatisfaction with the registration requirement was voiced in a memorandum signed by the Teachers of Physiology in England, Scotland and Ireland, among whom were William Sharpey, William B. Carpenter, Michael Foster, Gerald Yeo, and Arthur Gamgee. These leading physiologists were willing to accept the restriction of teaching demonstrations, and in principle also of routine research, to registered laboratories. However, they claimed that experimenters needed flexibility to do experiments on short notice or at a distance from their laboratories, in their own houses, or elsewhere.Footnote ⁸⁴ Despite this opposition, the act allowed the home secretary to mandate the registration of places used for animal experimentation.

What criteria did the inspectors use to determine whether places were suitable for registration? Twice in 1899, James Russell declined to recommend places for registration “owing to defects of light and ventilation,” though these animal houses “had been specially designed by architects of repute.”^{Footnote 85} At the University of Glasgow, he found the heating system satisfactory but traced problems in the lighting as well as in the low ceiling that could hurt the ventilation. His host, Dr. Muir, was unwilling to accept Russell’s decision, stressing that an eminent architect had designed the building. But Russell “could not give way.” He explained to Muir that his experiments would require more than a hundred animals at a time “and that it was not desirable to sanction inferior animal houses in a new building to be registered for the first time.” Russell and Muir finally agreed that, until an appropriate outside space could be provided, “one of the good rooms on the main flat should be used as an animal house.”Footnote ⁸⁶

That year, Russell also declined the registration application of the Medical School at the University of St. Andrews in Scotland. A few days after his visit to Glasgow, Russell met with a physiologist named Harris and an anatomist named Musgrove in order to inspect the premises at the medical school. In contrast to many other establishments in which animals were housed in improvised facilities, the animal house at St. Andrews had been expressly built for this purpose. Yet Russell was dissatisfied with the space’s ventilation and thought it would not be sufficient for a large number of animals. He provided Harris with a letter for the architect and the building committee, outlining his recommendations to remedy the defects he had identified.Footnote ⁸⁷ They made the required alterations in the plans, and Russell approved the application.^{Footnote 88}

The inspectors’ scrutiny of the experimental space extended beyond the registration process and included evaluating and mandating appropriate adjustments where necessary in the living environments of animals in physiological laboratories. George Poore described the living conditions of animals in general terms: he thought that the laboratory at University College in Cardiff “was in every way fitted for the performance of experiments,” and he found the Physiological Department at Cambridge “beautifully clean and the animals most comfortable.”Footnote ⁸⁹ Russell, perhaps due to his experience in public health administration, was more detailed in his explanations. In a visit to the Pathological Department at the University of Aberdeen, Russell was impressed by an “ingenious cage with a false floor for the sake of dryness,” which accommodated four guinea pigs.Footnote ⁹⁰ Other senses were also sometimes involved: Russell reported that the animals in the Materia Medica Department at the University of Edinburgh were very well cared for and noted that there was “no odour in the rooms.”Footnote ⁹¹

Rather then being “a mere formality once officially requested” (French Reference French1975, 283), each registration application was carefully considered by the inspectors, and their views had an important impact on the experimental space as experimenters gradually incorporated the inspectors’ guidelines in the design and operation of their research facilities. Experimenters consulted Russell about appropriate arrangements for holding experimental subjects, and Russell testified that he was frequently asked for advice “regarding improved methods of construction and warming of houses for animals.”^{Footnote 92} By the turn of the twentieth century, registration was becoming a marker of rigorous research endeavor. For the pharmaceutical manufacturer Burroughs Wellcome and Company, registering laboratories for vivisection had become a matter of principle. It was essential in order to both accomplish its commercial plans of drug production and to assert its legitimacy as a research institution among the established physiological laboratories that were mainly associated with medical schools and hospitals.

Historian E. M. Tansey’s (Reference Tansey1989, 23) study of Wellcome’s registration process shows how the registration requirement became a tool in the hands of medical research gatekeepers who wished to prevent commercial companies from enjoying professional status. Early in the registration procedures and again during the examination of its 1901 application, the Home Office suggested that Henry Wellcome keep the production of the company’s drugs in his facilities but conduct the related experimentation in laboratories that were already registered with established research institutions. Wellcome rejected this advice, complaining that it entailed an unnecessary burden on his staff. He also referred to the symbolic element in the registration process: “I desire to come openly under the existing law, and to have my Physiological Research Laboratories registered under the act controlling animal experiments” to be “regularly inspected like other laboratories of the same kind.”^{Footnote 93}

The regulation of experimental spaces and their separation from scientists’ private lives is part of the law’s expanding oversight over spaces and behaviors. But, as Silbey and Ewick (Reference Silbey, Ewick, Sarat, Douglas and Umphrey2003, 79) note, the subjection of the experimental space to law had strengthened science’s objective appeal and reasserted the authority of the knowledge it produced. However, the regulation of animal experimentation shows that the law not only contributed to the image of science but also eased public critique of its practices. The Vivisection Act also shaped core methods of medical research such as witnessing and made bureaucrats into actors in the coproduction of cruelty-free facts.

MODEST WITNESSES FOR CRUELTY-FREE FACTS

The inspectors were responsible for shaping the experimental space as an ethical environment, and their image was designed to bear witness to the lawful formation of its products. Vivisection inspectors acted as “modest witnesses,” a term used by Steven Shapin and Simon Schaffer (1985, 22–79), who argue that modern experimental method necessitated a collective act of witnessing and a reporter who was accepted as a reliable provider of testimony to create an experimental fact.^{Footnote 94} I borrow this term and contend that, in the case of animal experimentation, civil servants acted as reliable reporters; through the Vivisection Act’s implementation, inspectors were figures of modest witnesses who enabled the creation of an ethical scientific fact.^{Footnote 95} The participation of inspectors as witnesses and reporters for the production of science was pushed to the extreme when they were asked to watch live experiments.

Some critics of vivisection demanded that inspectors be regularly present at the experiments. For them, examining the unused animals, or those that had already recovered from vivisection, was not enough. Moreover, as mentioned above, a constant complaint was that the annual returns published by the inspectors were based more on the scientists’ own accounts of their laboratory conduct than on the inspectors’ field reports. As one MP put it, “under no other system of inspection would it be allowed that the very individuals whom it was desired to keep under inspection should make their Reports unchecked to the House. An Inspector of Mines did not report on the Reports furnished to him by the owners or the workers in the mines, nor would an Inspector of Factories report on the ipse dixit of the owners or representatives of factories.”^{Footnote 96}

Public pressure forced the Home Office to consider sending inspectors to watch live experiments. In 1890, Inspector John Erichsen doubted that the Home Office could appoint inspectors whose duties would be to attend and supervise the performance of experiments. Erichsen believed that “few if any gentlemen of independent position” would undertake a mission with such an “inquisitorial character.” And, on a more practical note, Erichsen predicated a problem arising from the simultaneous scheduling of experiments. Home Secretary Henry Matthews clarified at the same time that the act did not require the personal supervision of inspectors over experimentation.Footnote ⁹⁷ Thinking that “one of the most unsatisfactory symptoms of the present day is the craving for incessant inspection in every function of life,” Matthews rejected complaints over the limited extent of inspection made by MPs. Inspectors’ presence at experiments, he claimed, was neither necessary nor possible.^{Footnote 98} Matthews’ successor, Home Secretary Herbert Asquith, reacted similarly when MP Lockwood argued that the legislature intended to insist upon personal inspection over experiments.^{Footnote 99}

Others proposed allowing representatives of the public to watch the experiments. Alpheus Morton, MP for Peterborough, expressed this idea during a debate in the House of Commons in 1895. Morton clarified that he did not wish to complain about the inspectors yet asserted that allowing interested people to witness experiments would reassure the public regarding whether there was any unnecessary cruelty involved. Home Secretary Asquith replied that he had no power to order public access. The inspectors, who could visit the places under parliamentary authority, were not authorized to allow entrance to anyone else. Asquith further argued that such an arrangement might interrupt the experiments, which were often of a “very delicate nature.”^{Footnote 100} Another unsuccessful proposal was presented by MP Lockwood later in 1898: “The laboratories should be open to a limited number of university graduates and medical men, who represent the public, when experiments are to be performed, in order that they may see that they are carried out in a humane manner, and under proper anæsthetics.”^{Footnote 101}

Poore and Russell witnessed some operations even though the Vivisection Act did not explicitly require them to do so. It had happened unintentionally during routine visits or occasionally following a command of the administration to watch an experiment. The inspectors were often intrigued by the scientific significance of the experiments, and, following the act’s requirements, they paid close attention to the workings of anesthesia. In a visit to the Physiological Department at University College in London, Poore observed Edward Schäfer engaged in a blood pressure experiment on a dog: “The animal was as unconscious as a dead animal.”Footnote ¹⁰² In October 1895, Poore saw Vaughan Harley perform an enterostomy (creating an opening in the abdominal wall) on a dog and noted that “the animal was necessarily deeply anesthetized.”Footnote ¹⁰³ Poore also saw J. S. R. Russell operating upon a dog at the Pathological Department at University College in London: “The dog was deeply anaesthetized and felt nothing and would be killed before recovery.”Footnote ¹⁰⁴

Inspector Russell was instructed—by the home secretary or by Poore—to witness an experiment done by Gustav Mann at the Physiological Department of the University of Edinburgh. He watched for an hour and a half and concluded: “I do not think that the animal suffered appreciable pain and it seemed to me that on several occasions it nearly died from excessive doses of ether.”Footnote ¹⁰⁵ Russell’s criticism of the uses of anesthetics came up again when visiting the Royal College of Physicians in Edinburgh in June 1894. In one room, he saw physician Ralph Stockman (Reference Stockman1895, 1475) bleeding a dog from a vein in the leg and then injecting the blood under the skin, probably as part of the investigation of iron-deficiency anemia. Superintendent Diarmid Noel Paton, Dr. Miles, and two servants were also present: “The dog was much frightened and moaned and howled while under the influence of ether. … The ether was required by the act and was the cause of all the trouble by frightening the dog.”Footnote ¹⁰⁶ In this case, it was the experimenter’s adherence to the Vivisection Act that made the animal suffer, and yet, for the home secretary, experiments without anesthesia were more troubling. This is one of the very few occasions in which an inspector pointed to mental distress: the dog was frightened. Later that year, the Home Office ordered Stockman to inform Russell in advance of the dates he planned to experiment without anesthesia.^{Footnote 107}

The scientific knowledge produced by late nineteenth-century physiology not only had to be accurate but also ethical. The presence of inspectors in experiments as well as their inspection visits and oversight over laboratory records were needed in order to produce ostensibly cruelty-free experimental facts. After overcoming their initial resistance to inspection, physiologists learned to use it as an ethical authorization. The presence of inspectors in laboratories, especially during experiments, aimed to reassure the British public that scientific knowledge was produced by ethically approved methods.