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’)
The original purpose of the law was to protect people who had already been born from the rising tide of intra-personal violence in the late Georgian period. The 1803 Law 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 major consequences.
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 or knives 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.
On average one person (out of c100 executions a year) was executed for cutting and maiming in the late Georgian period. In 1804, the establishments token victim was Hugh Evans, aged 19, who was found guilty of maiming Elizabeth Parker 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?’.
The new act construed this particular cruel act as attempted murder, and he was hanged outside Horsemonger Road goal on 2nd March. Hanging next to him was David Rose, convicted of bestiality and the like Evans, the only person that year hanged for the capital crime. Examples had to be made.
The unborn were also protected from attempted murder as well, and the spirit of the new Act remained part of British Law until 1967.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.
The new law 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 (ultimate, if rarely used) penalty for organising or abetting an abortion post ‘quickening’ had to be death. A more severe tariff was needed to differentiate it from the newly created offence of procuring an abortion when pregnancy was merely suspected.
The 1803 Act raised the bar of proof against a woman 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;
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.
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.
Please consider my three books on the Georgian and Victorian Era
The Dark Days of Georgian Britain– a political and social history of the Regency. More details here
Passengers – a social history of Britain 1780-1840 told through travel, transport, roads and hospitality. More details here
Radical Victorians– nineteen radical Victorian men and women who dared to think differently. More details here