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 

Advertisement

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 

Regency attitudes to the Irish

The Regency newspapers were overflowing with police reports, and the difference ( to our eyes) between the paltry nature of the crime and the severity of the sentence never loses its power to shock. What is not much in evidence is levity- making a joke of the situation. Not even in the case of serious assault and murder, even when a general level of shock or outrage is expressed, there are no particular comments about the character of the person, and certainly no jokes!

The rules change when dealing with the Irish- the “Hibernian”, the “simple Hibernian”, or, if they have been fighting, the “stout Hibernian”. This is typical, from the Public Ledger of February 2nd, 1814, under the usually solemn “Police Section”

The key to the joke is that a woman is accusing her husband of killing her. All the stereotypes are there -“the flowery eloquence of her country” – a comment which should kill the joke, as she is acknowledged to be exaggerating for effect. She is immodest- offering to show hidden evidence of her injuries. Violence of this type is to be expected from this type of person. Although domestic violence was not treated particularly seriously by the police courts, you had to be a Hibernian to enjoy this amount of levity.

Papers on the mainland seemed to rejoice in Irish  rivalries. One sentence that stands out from the jollity in this report  was “ Whether he was Caravat or Shenavest did not appear”. These were rival groups whose feuding caused considerable violence, particularly in Tipperary, Waterford, Kilkenny, Limerick, and Cork, during 1806–11, and were making news in the papers regularly. The key point here is was *not* mentioned in the court but was inserted by the writer of the article, who is not only reporting the attitude of the court but making up some new ones himself.

When O’Cane was asked “what ship he had came in on”, he denied that he had done so, saying that he had arrived on a sloop, not a ship. These kind of conversations were not usually in the brief court reports for non-Irish defendants; he seems to be being defined not just as an outsider, but a stupid and argumentative one. He was found guilty of smashing a pane of glass with his knife when a grocer would not serve him any more beer; but not before he recounted the story of how he had walked from London to Chester to see his friend who worked in a brewery. The fact that he had walked from Chester was not commented on.
Even the ship/ sloop joke in this report  is doubtful. Four years earlier, in 1810, the Hereford Journal reported this court case “a few days since”

Jokes and police reports-even genuine ones- only go together if the defendant is Irish.

Some gross examples
A TRUE PROPHET
An Hibernian who was tried and convicted during the last Western Circuit for burglary, on being asked his age…replied that he was pretty well as old as he’d ever be and declined to give any other answer. He was executed on the Wednesday following (1810)

An Hibernian, being lately found guilty of a misdemeanour at the quarter sessions, was asked by the court if he had any person to speak to his character
“Please you honour”, says Pat,” I don’t know anybody here, but I can find somebody if you let me go out for an hour” (1810)

The Oxford Journal of October 1812 reported the story of a gentlemen who dropped a Bank of England £50 note in the street in Cork and did not notice the loss until he was in London. In the meantime, the note had been found by two “simple, martial Hibernians”. The two men were eventually caught because they did something that caused everybody in the court to erupt into uncontrollable mirth.
Can you guess what they did? Get back to me?

There is a chapter of my book about the treatment of the Irish.

More details here

https://about1816.wordpress.com/2017/11/17/the-dark-days-of-georgian-britain/

Three minute YouTube Video

Introducing “The Dark Days of Georgian Britain”

Three minute review of the book here
The blog contains different material to the book; if you like the blog you will like the book.

 In 2014 I retired from teaching History at the relatively young age of 55 and wanted to continue my interest in the subject. In the autumn of that year I attended a WEA ( Workers’ Educational Association)  course on great law cases in British History. This was the work of a remarkable tutor called Peter Blood who made it look effortless. One week the subject was Crim. Con.( adultery)  cases from late Georgian England. The era of the Regency attracted me immensely I was hooked. Although always a history enthusiast, the late Georgian period had passed me by- until that point.

I started a blog on WordPress ( hi!)  and regarded it as a  lovely hobby, with a bit of third-party validation as people read my blog.  Two of the blogs-adultery and bodysnatching felt like they were chapters of a social history of Regency England. I did nothing for a year, except read about the Regency and write about it. After that year, my wife suggested  that I send my work to a publisher.

Much to my surprise it was accepted.  I had found one of those elusive gaps in the market that people look for when they are trying to make a success of any venture.  I am just sorry I waited a year. If you are in the same situation as me and you are wavering; I suggest that you do it. What can you lose?

The blog contains different material to the book; if you like the blog you will like the book. If you want a copy of the book, try here.

The book is biased in favour of the poor, and is an attempt to seek out their stories. This is difficult; newspapers are by definition “establishment”. However, there is a radical press at the time of the Regency and there is the skill of “reading between the lines” of the more traditional media.  You cannot talk about the poor without referencing the rich, so their selfish behaviour runs through the book. Here are the main chapters

THE DARK DAYS OF GEORGIAN BRITAIN

Chapter 1- The Darkness Years

This is an overview of the problems of the period 1811-1820. It was a time of austerity, climate change and poverty, with all the major institutions of the government being rotten and in need of reform. Sound familiar?

Chapter 2- The Poor Weavers

This chapter looks at examples of real people – Thomas Holden of Bolton; the Luddites and their refusal to accept that they should starve to death as industrialisation and the new attitudes of employers made their life miserable. Sound familiar ?

Chapter 3- Making Life Worse

The Tory government made life worse for the poor after 1815 because of their political beliefs. This chapter deals with the rich avoiding income tax, high prices for bread and scandalous National Lottery which took money from the poor and gave it to the rich. We meet MP William ” Billy Biscuit” Curtis, who made a fortune for himself but tried to cut benefits for the poor.

Chapter 4-Why People Rioted

This deals with the rioting of 1816. Some of it was old style rioting that had been common for centuries…but there were new developments.

Chapter 5- Bread and Potatoes

Three thousand words on bread and potatoes? Remember that was a large proportion of the diet of the poor…and it is an interesting story. You will be amazed at how much bread people ate, and how many ways you could justify other people not eating much.

Chapter 6-The Poor Law

The British had a quite a generous benefit system before the Poor Law was made harsher in 1834 – that’s the Poor Law people study at school. The system is explained here, with lots of examples of the poor suffering. One family are evicted by having their roof removed and their house flooded with excrement…and yes, the landlord did get away with it!

Chapter 7- Cold Charity

The rich loved to help the poor…but with huge strings attached. I remain unimpressed throughout this chapter.. hence the title ! You will see William Wilberforce in a new light when you read what he thought was acceptable treatment of Britain’s war heroes.

Chapter 8- Old Corruption- The General Election, 1818

The 1818 General Election is covered in some detail the corruption the collusion, the rioting, the bribery and the intimidation.  And it was regarded at the time as a better than average election.

Chapter 9- All About The Money

This chapter shows that in order to achieve anything in the  Regency you needed money. Most things were for sale- parishes, army ranks, seats in parliament, everything. You will met a lot of rich people who took taxpayers money for imaginary jobs.

Chapter 10- The Disgusting Prince Regent?

What were the main personal failings of the Prince Regent? Its all in this chapter, which therefore has to be quite long . He also represented a rotten system. He did not know the meaning of money, as it all came from the poor taxpayer. When he died in 1830, they found £10,000 hidden in pockets and notebooks, money that he had simply forgotten about. That’s the same amount of money Mr Darcy had for a year, and he was a rich man!

Chapter 11- Arthur Thistlewood- The Gentlemen Revolutionary

Arthur was born a minor gentlemen  and ended up being hanged for trying to assassinate the cabinet. This chapter tells the story of him and his revolutionary friends in the Regency. He may have planned to parade the streets of London with the Home Secretary’s ‘s head in a bag, but you may still like him, albeit  as a very flawed human being.

Chapter 12- The New Revolt of the Peasants

In 1817, the poor tried new ways of overthrowing their oppressors, that scared the establishment more because they were “political” riots. So the punishments were more severe.

Chapter 13-Who Killed Joseph Lees?

Joseph Lees died after being beaten up at the mass meeting at St Peter’s Field ( Peterloo). However the government were able to prove “otherwise”. This chapter looks at the victims of Peterloo, how they were treated by the government that was not going to take responsibility for the poor or the actions of their own soldiers.

Chapter 14-The Women of Peterloo

What’s more frightening that a radical? A women radical! Despite the difficulty in finding evidence, here we have the story of Alice Kitchen,  Nancy Prestwick and Mary Fildes and others This is my favourite chapter of the book.

Chapter 15- The Freeborn Englishmen?

Britain was freer than most, but in the Regency that was put under great strain. People were imprisoned without trial. We meet William Ogden , 74, manacled in goal without charge for months with a 30 pound weight. His crime- wanting a reform of Parliament.

Chapter 16-The Punishment Didn’t Fit the Crime

This is a well-known regency topic. In my version, real people suffer at the hands of a floundering system that was at the end of its time. Reform did come- just not then. We meet Horace Cotton, who worked at Newgate with those condemned to die. He was a real charmer.

Chapter 17- Retribution

Fancy a trip to Newgate or a Prison hulk? We meet the poor in prison, including one man in gaol for stealing a cucumber.

Chapter 18- Child Labour

Traditionally, this is mostly about textile factories, but there were other, possibly worse jobs. Chimney Sweeping for example, and coal mining. However, people’s attitudes to child labour may surprise you.

Chapter 19- Currency Crisis

The Regency government did little to help people, but when the money and coinage went into crisis, they were happy to get things done. Never have banknotes and old coins been made so interesting!

Chapter 20- Adultery

If your wife  had sex with another man, you could go to court and claim compensation. The amount of money depended on how posh you were and how many salacious details you could provide. The newspapers loved it, and so will you.

Chapter 21- Regency Body Snatchers

It was not against the law to steal dead bodies from their graves, as long as you left behind their shroud and personal belongings. That’s why its called body snatching, not grave robbery. Lots of people made a living from it, and some of the best examples are in this chapter.

Chapter 22- Being Irish

The Irish were treated as second class citizens both in Britain and in Ireland. There are lots of examples here, and the prejudice has not gone away. The chapter features the famous brewery flood of 1814, when the press lied about the behaviour and hardly any money was raised for the victims, but the government reimbursed the brewery for their loss…

Chapter 23- A Rash and Melancholy Act?

This is about suicide- how traditional harsh attitudes to suicide where changing into something more humane, but it was still more sympathetic to the rich than the poor.

PS If the English Civil War is more to your taste, try here