Abortion becomes a criminal offence- 24 June 1803

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 

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Abortion becomes a criminal offence- 24 June 1803

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.

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.

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. . A more severe tariff  was needed to differentiate it from the newly created crime.

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.

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 

A Regency Abortion

Procuring an abortion was a serious crime in the Regency period and when illegal abortionists were caught, the newspapers were relatively free with the details.

The papers were full of reports in the regency period and they followed a pattern with some variations; a servant, away from home and  without any family support is seduced and made pregnant by a gentlemen   or cleric; often a relationship is started but the asymmetry of   power between the two parties makes the relationship fail, even if success was ever part of the plan. Sometimes the man would procure and abortion or even attempt it themselves; if the women were expelled from the house when they became pregnant they would try to poison   themselves. Sometimes they would keep the pregnancy a secret, leave their employ at the last moment and then have the child in a dismal lodging house.

Liza Ann Layton was a servant who found herself away from home in Ipswich working for a James Robertson or Roberton . She was seduced   by Robertson   during the course of her employment   and Robertson suggested to her, according to Layton, that he would procure an abortion   “by the application of surgical instruments which, he stated, would not produce as much pain as a day’s illness”. There were two failed attempts one afternoon in 1816 when Layton was about four or five months pregnant, leaving Liza desperately weak and bleeding in bed. A few days later   Liza’s mother saw Robertson in the bedroom with her daughter with his hands under the blankets and later smuggled a bundle out of the room in his greatcoat.

This was not the only time Robertson procured an abortion for Liza, and of course himself. The relationship continued after the first termination but the details are hazy; Robertson moved to London and Layton followed him and there was at least one more abortion when she became pregnant again. There was  another period of estrangement when Layton was addicted to laudanum, but this was a relationship of sorts and Liza was not abandoned by Robertson when she became pregnant.

When the law caught up with Robertson he was charged   under the 1803 “Ellenborough Act” which   had made abortion after about 20 weeks   a felony which carried a maximum life imprisonment. This new law  was first specific English law that made abortion an illegal act; earlier the procedure had been covered by common law and the belief that the soul came into the foetus at about 16- 20 weeks and banned abortion after that date. It seems that women had regularly used methods of abortion in the first months of pregnancy for centuries and this was deemed as merely regularizing the menstrual system, not destroying a life.

Robertson’s alleged attempt had been made at “ four or five months” into the pregnancy     and   was therefore illegal under the new Act and the previous common law. Robertson strongly protested his innocence and so impressed the onlookers that four individuals offered sureties of £1000 to add to Robertson’s own bail of £2000.

He absconded before his trial at the Old Bailey, running away to Holland via Gravesend. The story goes cold at this point; it would be hard for Robertson to continue his trade in Holland after the publicity; the most shocking part of this story was that  he was a medical doctor, a surgeon to the   Middlesex Militia, a member of the Royal College of Physicians and lecturer in Midwifery.

Not all women had the benefit of a medical man to botch an abortion for them. In 1811, Rebecca Holden, in the curious wording of the newspaper report “poisoning herself with a   poisonous drug” to end her pregnancy.   This may have been arsenic or a quack medicine that coyly promised to cure   “female obstructions”. (See above)

 Widow Welch’s Pills were a well known abortion inducer well into the twentieth century and would have contained a natural abortifacient  such as pennyroyal.  The advertisement hides its main aim with a torrent of other ailments, but it is particularly good for “female obstruction” which could be interpreted as inducing the onset of menstruation in a young woman or moderating the menopause, but actually meant abortion

Other methods were available. In February 1812, Eliza   Counter was accused of libelling the Honourable Basil Cochrane by saying that he organised a steam bath for his mistress to procure an abortion.

The Reverend William Jennings was accused in 1812 of administering calomel to his maid  Sarah Weeks  in an attempt to poison her with mercury. Sarah then gave birth to a dead child while suffering from symptoms that sounded exactly like mercury poisoning, including excessive salivation and an immense swollen tongue that were  symptoms of toxic amounts of calomel.

On 12 January 1813, in Bushley Park, Worcestershire, the servant   Judith Beale  ( “Spinster , 17”) took advantage of her mistress’s absence by inviting her boyfriend James Foster over for the night. She subsequently became violently ill in the mornings afterwards, and James, fearing the worst, procured mercury for Judith, assuring her that he knew of several people who had taken it without a problem. Judith believed him, took three- fourths of the mercury and died.

Savin- an extract of the poisonous tips of juniper, called ” cover shame ” in English folklore-was used   by Phoebe Sparrow, 22   of Dudley in 1813 by her cohabitating partner after four months of pregnancy. Phoebe took no more poison after that, perhaps she was pressurized into taking the original dose, but delivered her baby dead after eight months due to the weaknesses caused by this juniper based poison. It was this active ingredient that gave gin the reputation   as an abortion inducer. It was “ mother’s ruin” in more ways than one.

Many thousands of abortions were arranged successfully but anonymously in this period by trusted local women who only ever  appeared in the newspapers when the process was unsuccessful. Occasionally, women away from home with no contacts fell into the hands of what we could call quack doctors. Dolly Rosthorn used the services of a John Buckley of Bolton  in 1814 to abort a child that many papers suggested he was the father of. He botched the abortion so badly and caused so much pain that the jury considered this to the capital crime of murder; he was doing it deliberately, so was hanged at Lancaster gaol on March 19^th, 1814.

 

There is more social history of this kind- all new material- in my book. Please consider buying one ( shop around for price! ) or recommending to your local library.

Publishers details here 

My chapter by chapter introduction here