Laws that criminalize abortion are of relatively recent origin in British history and this is the story of the first one, the Malicious Stabbings or Shooting Act, 1803 (‘Lord Ellenborough’s Act’)
Before 1803 there were no laws criminalising a deliberate termination before the ‘quickening’ of the child in the womb, and procuring an abortion afterwards was a relatively minor civil misdemeanour. The case below came before Lord Justice Kenyon in 1801. It was an allegation that somebody had procured an abortion. The Judge pointed out that this was a civil matter, and asked why he was being asked to comment on it in a criminal tribunal;
What did it mean to be ‘quick with child’ in the eighteenth century? Part of the definition was practical there was a quickening if the baby could be physically felt by the mother. There is a wide range of ages for this, but in the Regency period, doctors put the period at around 16 to 20 weeks. Blackstone’s Law Commentaries made the point ‘life begins in condition of law as soon as the infant stirs in the mother’s womb’.
This most common Georgian view was that ensoulment, and the creation of the human, happened at quickening and not conception. This was an ancient belief that predated Christianity, and the church tended not to contradict it .It had the unintended consequence of allowing women to control their fertility in the first months after a suspected pregnancy. Although details can never be explicit, it seems that women had always controlled their fertility in the period before quickening, both at home and in the commercial market using herbs and the wisdom of other women to reinstate their period. It was not a crime at all before 1803. This was a practical application of the law- if there was no proof of a foetus in the womb, and then there could be no victim of a crime.
When the human was created, they had rights- for example they could not be executed in the womb if the mother had committed a crime. This was ‘pleading the belly’, and it was a regular but not common aspect of judicial proceedings in the late Georgian period, and of course this continued after the severe tightening up of the law in 1803.
The 1803 Law itself was a rambling piece of legislation in two large paragraphs which was mainly designed to protect people from being attacked and assaulted with weapons, even if death did not result, or even if there was no intention to kill. The unborn child was added to the list of those protected. So, although not specifically an act against abortion, it had a major consequences. It moved the point of “human” status from quickening to conception , and a new felony was created from something that was not formally illegal
Anybody who…(the bold parts are mine)
wilfully and maliciously administer to, or cause to be administered to, or taken by any woman, any medicines, drug, or other substance or thing whatsoever, or shall use or employ or cause or procure to be used or employed any instrument or other means whatsoever, with intent thereby to cause the miscarriage of any woman not being, or not being proved to be, quick with child at the time of administering such things…shall be and are hereby declared to be guilty of felony, and shall be liable to be fined, imprisoned, set in and upon the pillory, publicly or privately whipped, or to suffer one or more of the said punishments, or to be transported beyond the seas for any term not exceeding fourteen years…
The Roman Catholic Church did not formally declare that life began at conception until 1869- but English statute law did this more than sixty years earlier.
In the inexorable logic of the bloody code, the new penalty for organising or abetting an abortion post ‘quickening’ had to be death. It had previously been a common law misdemeanour, and the application and meaning of the earlier 1624 statue was unclear. This explains Justice Kendall’s reluctance to have anything to do with the abortion allegation in 1801. A more severe tariff was needed to differentiate it from the newly created crime.
An examination of the law after 1803 shows that it was not often used on women trying to control their fertility, which were by definition private event. It was mostly used when men fell out and wounded each other with knives and cutlasses, or when drunken individuals waved their guns in the streets. Those who wished to intimidate people with violence before robbing them would have to think twice, although in reality the death sentence was hardly ever applied. In a society where murder, attempted murder and writing an anonymous letter threatening murder all carried the same death penalty, there had to be a degree of leniency.
In January 1804 a Mr Corneille and Mr Draper were capitally convicted of wounding police constable J Boardman with a cutlass as he raided as disorderly house in Hatton Garden. In the same year Hugh Evans was found guilty under Ellenborough’s Act of maiming Elizabeth Palmer and slashing her face until she was unrecognisable. He was one of a gang of three who had intimidated Palmer and her boyfriend with a “What are you nosing at?. John Robinson of the 7 Regiment of Dragoon Guards did similar damage in the same year to a fellow soldier. Only nineteen year old Hugh Evans was executed in 1804 for a his motiveless and vicious crime. On average one person per year (out of about 100 executions a year) was executed per year for cutting and maiming in the late Georgian period.
Some women were convicted under this law. The 1803 Act raised the bar of proof against a women who was thought to have killed her child at birth. The prosecution now had to prove that it was born alive rather than the women prove it was born dead. Any slight doubt would acquit the defendant of infanticide, so a new crime of concealment of birth was introduced with a tariff of two years imprisonment. The case below is from 1808;
Ellenborough’s Law almost was particularly difficult for powerless females, such as domestic servants, who did not have the support network to do something about their pregnancy at an earlier time. I have written about another example, that of Mary Fordham, here.
There were other cases. In 1809 Thomas Newton was found guilty of poisoning Elizabeth Turner in order to prompt a miscarriage and was given three years in prison and a fine of £100. The judge made it plain that it would have been the death penalty if she had been quick with child. Oddly, he was spared transportation because Elizabeth had cooperated with him and survived the attack.
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