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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A nice cup of tea in the Regency? Not always!

Tea- the drink of the rich

Tea drinking was universal in Regency Britain. It had reached the poor and could not be dislodged as part of their diet. William Cobbett hated it because of the waste of the working man’s time, the profits it brought to the East India Company, and the replacement of tea for beer. (‘I am for MALT’!) Most of the ruling class had given up weaning the poor away from tea drinking. The Scotsman made this wry comment in 1818; ‘tea is indispensable. Almost every person, notwithstanding the present high prices, is more or less indebted to this Chinese shrub for his daily meals’

The Scotsman was right about the price. The Tory government had abolished Income Tax in 1816 and relied on taxes on consumption, so tea was taxed heavily. It was all China tea, imported by the East India Company and sold as a monopoly from their warehouses with a 96% ad valorem duty which doubled the price as it arrived into Britain. Proper quality tea, with import duties added, would be about seven or eight shillings a pound in Regency Britain and less than half that in France or Belgium. There was extensive smuggling. Smuggled tea from France and Belgium would be half that price and the smuggling industry was so large and popular that it could not be stopped.

Even the smuggled price would be too high for the poor, so a market developed in adulterated tea, which could be hawked from town to town or sold to unscrupulous tea dealers or grocers. It seems that tea that had paid duty was just as likely as smuggled tea to be adulterated, as both were aiming for a lower price that the poor could afford.

How did you adulterate tea? Adulteration was achieved by replacing tea leaves with something cheaper, from the untaxed hedge rows of Britain rather than China. It was an industry almost as big as the drink itself. Tea was sold as crushed leaves and the skill if the adulterator was to replace tea leaves with cheaper ones that looked and smelt like tea. If the resulting brew tasted like tea, then that was a bonus. The poor were not judges of good tea. Most of their consumption was Bohea tea, the lowest grade made from the last crop of the year. So sometimes, adulteration was achieved by mixing leaves with Bohea, but often there was no tea in the mixture at all.

Common leaves were ash, elder, and senna. Senna leaves smelt like tea when boiling water was put on them. None of these were deleterious in themselves, except the most common of the adulterants, sloe (blackthorn) leaves, and these were poisonous. The Norfolk Chronicle gave its readers this advice in 1818, when Regency Britain was in a poison tea panic.

The practice of adulterating Tea by the admixture of the Sloe Leaf, (which being allied to the Laurel, of poisonous quality; is by means new); but as it is to feared that the late detections and punishments will not altogether prevent a repetition of the crime, it may useful describe two leaves, which fortunately have little resemblance to each other. The sides of the tea-leaf have large jags, teeth, or serrations; the leaf itself is long and narrow, and the end or extremity is pointed. The Sloe-leaf is short’ ..and is broad or rounded.— By wetting and spreading out the leaves, any one will easily distinguish the great difference between them.

Producing imitation and adulterated tea was a skilled and labour intensive job, but it was worth it. The high price of the tea that made the complicated and dangerous process worthwhile, as the artificial high price caused by taxation also increased the price they could charge for the forgery. Adulterators were prosecuted (in a haphazard fashion) by the Customs and Excise. Although the protection of health was mentioned in the relevant Act of Parliament (1777), it was largely a revenue protection exercise. The premise- that forged products robbed the Exchequer of money as their sale diminished the consumption of taxed products- seems a bit shaky.Gaol or transportation was not a punishment for those who were caught- the crime was monetary, so the punishment was pecuniary. Some Regency commentators were calling for the use of public whipping or the pillory, but this was never an option.

The prosecution of Whitechapel men Procter and Malins shows the operation in action. First, the production of ‘black tea’. It was essentially a dying process.

Logwood was a South American plant and was normally used a dye for textiles. Perhaps the most shocking aspect of the incident is that Malins ‘did not know’ whether the ingredient was injurious. This was because he did not care.

‘Green tea’ was created in an even more questionable process. Hedge row leaves were boiled and the water removed by pressing. The leaves were them warmed on a copper plate over a fire and often curled by hand to make them look like tea leaves. Then they were mixed with a dye called Dutch Pink, which was cut from a solid block and mixed in. Dutch Pink was an artist’s material used in painting on walls and making wallpaper and was added to the tea mixture with a pallet knife. The next ingredient was the highly toxic verdigris, which in reaction to the copper produced a greenish tinge to the leaves and was a danger to life. The forgers called this ‘adding the bloom’!.The court was shocked when this admission was made; but it was common knowledge. The two men received a fine of £100, the maximum possible.

There was a moral panic in 1818. The East India Company formed a committee to investigate the problem. Long and Company started to sell East India tea direct from the warehouse in sealed metal canisters. The forgers copied the canisters and put their own product in. High class teas dealers swore an affidavit to the Lord Mayor and put the details in the newspapers. The London Genuine Tea company was formed in 1818 and was immediately opposed by some dealers who did not want the size of the problem advertised. The Genuine Tea Company gave this new group the title the ‘ Anti-Genuine Tea Committee’ and had one killer argument. In the last quarter, 300,000 lbs of low grade Bohea tea was bought in London, but nobody seemed to admit to sell it. Where was it? Was it being mixed with other leaves?

The panic spread to Parliament. In 1818, a Parliamentary Committee was reassured by two major London tea dealers that the problem was exaggerated. Good quality tea was very common in London, said one of them, a Mr Twining. However, this was not where the poor bought their ‘tea’.

 

Please consider my social history books on the Georgians and Victorians

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– A history of the reform movement in Victorian Britain, with pen portraits of both famous and obscure reformers. More details here

Voices of the Georgian Age– details here (Amazon link)

All my radical Britain books here

 

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 

Back from Obscurity- Thomas Dawkins, agricultural labourer and convict,1796-1824.

 

Unnamed prison hulk c 1810. Notice the washing

 

The late Georgian period was a time of high bread prices and starvation unless you were a horse. Horses were indispensable; a hungry horse would not work, and more importantly during the war with Napoleon, would not fight. Horses were feed mostly on oats- the kind of food that in the 1810s a large number of the lower classes could not afford. It was proposed after Waterloo that that money could be saved by feeding the King’s horses a lower quality of oats, but this was abandoned when it was realised that this would put the King’s horses in direct competition with the King’s subjects for the same food, raising the price for both.

William Waterhouse of the Swan with Two Necks Coaching Inn owned 400 horses, which he used to pull stagecoaches for their first part of the journey out of London. By 1817 he claimed to be spending £2 per horse on food, accommodation, tax .Waterhouse  had distribution centres all over the Home Counties, including a warehouse in South Mimms in Essex. Essentially, he owned one of the biggest stores of food in the country. IIt needed to be defended from the starving and desperate.

It needed to be defended from Thomas Dawkins, an agricultural labourer and carter who was also from Essex- born in Brentford in 1796. We have no idea of his economic circumstances beyond a good guess, but what is absolutely certain that he would have settled for the £2 a week that was making Mr Waterhouse’s horses very comfortable. If he was working in agriculture he might be earning £6 a year- if he was working as a carter it might be 15 shillings a week.

Like many substantial property owners during the Regency, Waterhouse used the law regularly to protect his assets against the crime wave that engulfed Britain after Waterloo. The law was vicious to those who were caught, but the state provided no resources to catch criminals, so they wealthy had to do it themselves. Waterhouse paid money to guard his food; he had already suffered losses as the crime wave continued, so he employed Thomas Young, a chaff cutter (who cut up straw or hay)to hide in the hay all night.. Young deposed ( via Oldbaileyonline);

I had orders to watch, I laid among the straw by the corn in; between twelve and one o’clock at night, the prisoner, and another, man came up and filled five sacks with oats, and took them away to the road-side, I followed after the other man, leaving the prisoner behind in the granary; I told the foreman, after which I went to look for the corn and found it on the road side ready to be put into the cart which was drawing up, loaded with hay, which was going to town that morning; the prisoner had been Mr. Waterhouse’s servant.

Dawkins claimed to have been sleeping in the hay due to homelessness and poverty, a likely scenario and possibly still true, while not contradicting the evidence of Waterhouse’s employers. Thomas was clearly unemployed and desperate.

Dawkins played a high price for the attempted theft . He was transported to Australia for seven years. Technically, this was a correct sentence- the food was worth £5, and this was therefore grand larceny. However, transportation was usually for repeat offenders, people who the magistrates were sick of seeing, but this does not seem to be the case this time. It was a particularly difficult time for law enforcement and availability of food, so a message was being sent out to others who might want to steal.

He was finally sentenced on 17 September 1817 , but he did not arrive in Van Diemen’s Land- modern day Tasmania- until 17 November 1820. In the meantime he had had three experiences that were arguably just as bad as working in Australia- Newgate Prison, a prison hulk and a long journey to Australia.

Newgate was an anarchic, overcrowded hell hole. The condemned cells were full of people awaiting execution or reprieve, the rest of the prison was full of hardened criminals and petty offenders, some doing their time and some awaiting transportation. They shared a kitchen which had been recently opened to prevent prisoners cooking their own food in any corner of the prison with the subsequent mess and dirt that was produced. Prisoners received no bedding or clothes- rich inmates would buy them; the most powerful would steal them and the weaker ones would soon be naked. There was no supply of soap. If you had no money of your own, there was no supply of anything. Thomas is registered there in 1820; he is 5 foot three, with brown hair and eyes. He probably keep his head down.

From his sentence in September 1817 to July 1820, Thomas was on the prison hulk ship Bellerophon in Sheerness harbour. The ship was as old as Thomas himself, had had a exemplary record during the Napoleonic war and once held Napoleon himself. It 1816, it was unromantically stripped down and became a prison for a different type of enemy of the state. It was not the worse of the prison hulks- the Retribution was the worst. That prison is described in my book ‘Dark Days of Georgian Britain’

It was a largely privatised prison service; we in the UK today know the problem with this. Like all Regency prisons it was overcrowded. Dawkins would have been stripped and washed in cold water, given a coarse suit to wear and, if refractory, put in irons. A record exists from the hulk showing that Thomas was given shoes and stockings, as were the rest of the prisoners, probably as a basic hygiene measure.
Each ankle would have an iron fetter attached by a chain, attached in the middle to a belt around the waist to stop the chain dragging on the ground. Some men were physically deformed for life by this double chaining, not so much when it was worn as when it was taken off.

Most inmates would be expected to work, mostly at government owned military bases on the mainland. Ten hours a day working was common in summer. They would perform various labouring jobs in groups of twenty overseen by prison wardens who were, in the words of another hulk prisoner, James Vaux ‘most commonly of the lowest class of human beings, wretches devoid of all feeling, ignorant in the extreme, brutal by nature and rendered tyrannical and cruel by the consciousness of the power they possess’

The diet was as cruel as the workload. The hulks were run by private enterprise contractors who bought the cheapest provisions they could find to feed the inmates. Breakfast was boiled barley which was so bad that there was often some left to feed pigs; there was meat four days a week but it was from animals that had died of old age; on days when no meat was served (banyan days in navy parlance) there was a vegetable or corn bread stew called burgoo; when there was cheese it was an inferior type made with skimmed milk.

Dawkins left Britain in July 1820 as one of the 150 convicts on the Caledonia. We know little about the journey. Another transportee, the trade unionist Thomas Holden caught jaundice, nearly starved to death and lamented the fact that the solidarity of the poor that he had witnessed and encouraged in England was destroyed by the long sea journey.

How did Thomas fare in Australia? He settled in Hobart Town and continued his job as a carter, presumably without stealing the property of others. He seemed to have been a law abiding man. Luckily we have the conduct books from the Archives Office of Tasmania, which list the type of bad things the convicts were doing –neglect of duty, drunk and disorderly, sheep taking, abusive language and medical history, including those who died. Thomas’s record is empty, and that was very rare. We know that he was a witness in a government enquiry while he was there- it seems to have been as a source of information rather than as a miscreant, as this would have been on his record. It does not even mention the end of his captivity on 7 October 1824, as his seven year stretch was calculated from his conviction in Britain rather than his arrival in Australia, although he might have had his punishment reduced for exemplary behaviour.

 We lose track of Thomas at this point.  There are plenty of Thomas Dawkins, Agricultural Labourers in the UK censuses but they are unlikely to be him. Only about five percent of transportees ever returned to Britain. Let’s hope it went well for him. He paid a high price for five sacks of oats.

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