The Perceptions of Pregnancy blog, like the Researchers’ Network, aims to reach beyond boundaries and borders, and to facilitate an international and interdisciplinary conversation on pregnancy and its associated bodily and emotional experiences from the medieval to the modern. Today’s post is contributed by Jennifer Brosnan, a PhD student at the University of Leicester’s Centre for Medical Humanities.  

Sex, Pregnancy and the Law: Offences against the Person Act, 1828

In 1828 a bill was put forward entitled An Act for consolidating and amending the Statutes in England relative to Offences against the Person. This bill formed the basis of the criminal law system for much of the nineteenth century and was later amended in 1861 to reflect society’s views concerning capital punishment and crime. It was a culmination of previous acts passed by past monarchs and their respective governments such as Henry VIII’s Act for the punishment of the vice of Buggery and Elizabeth I’s Act to take away Clergy from the offenders in Rape and Burglary. The 1828 Offences against the Person bill focuses on these prior legalistic rulings for several pages, presumably to underline the precedent it was following and to provide continuity within the legal system.

While the act initially sets out the punishment for crimes such as murder, manslaughter, treason and the terms under which dissection on a criminal should be carried out; there is considerable provision made for crimes that were of a sexual nature. The miscarriage of pregnancy is the first of these sexual ‘offences’ to be highlighted. The law concerning abortion is unusual as two provisions are made: one in the case when a woman was pregnant and the other if she was not. The first section sets out that any person with the intention to procure an abortion, whether by poison, instrument “or other means whatever with the like intent”[1], along with any person who provided counsel in this matter would be guilty of felony and if convicted suffer death as a felon. It is clear here that the purposeful termination of a pregnancy was deemed akin to murder from both a legal and moral standpoint and punished accordingly. The second section makes provision for a suspected or unproven pregnancy and attempts at abortion by the same methods outlined above. However, whilst being found guilty of felony, due to no loss of life in this instance punishment by death was not meted out. Instead, at the discretion of the court, the convicted could be transported for between seven and fourteen years or imprisoned, with or without hard labour for up to three years. Interestingly, a male felon could also be whipped either publicly or privately up to three times in addition to imprisonment.

There is another provision in this act as regards pregnancy, but in this case, the successful concealment of pregnancy and the subsequent birth. This was not an uncommon practice for many unmarried women during this time, many of whom worked in households as servants and did not want to lose their position or taint their reputation with a bastard child. There are many accounts of these women giving birth alone in their sleeping quarters and many times delivering the coup de grace to their new-born in order to avoid detection. As, if they were discovered, the law would have found to be guilty of a misdemeanour with the punishment of imprisonment, with or without hard labour, in the common gaol or house of correction, for no more than two years.[2]

The Old Bailey: Wikimedia Commons

There is a case from the Old Bailey from 1829 where Harriet Farrell was found to be guilty of concealing the birth but not guilty of murder.[3] The Coroner found that the child died from omission, meaning lack of care upon its arrival into the world and convicted was sentenced to one year confinement. In contrast, there is the case of Catherine Welch in 1828 who was sentenced to death for the wilful murder of her child who was believed to be about six weeks old at time of death.[4] The fact that the infant was older than a new born also meant foul play was likely. In both cases a surgeon was present to give evidence concerning cause of death and whether he believed it to be an intentional death.

Crimes surrounding pregnancy, although provisioned for in law, were a legally grey area. Proof of pregnancy was difficult without blood or pregnancy tests or a visible ‘bump’ as was proving that a child had not died at birth. The former was to be improved upon with the bucket test later in the century but with the right defence it would have been not entirely difficult to buy the testimonies of a few good witnesses and employ the services of a quack in place of a surgeon or doctor.[5] Some were not so fortunate in their circumstance and sentenced to execution by hanging or transported to places as Australia which oftentimes was a death sentence in itself. We see here how the pregnancy as a phantom and biological occurrence muddies the waters of the law. This suggests that ways in which legal control was over women’s bodies (and occasionally their male accomplices) was exercised from a moral standpoint – and thus could be exercised (with lesser severity) in the absence of physical pregnancy.

Jennie is PhD Student at the University of Leicester’s Centre for Medical Humanities. She also has a BA in History and Religion from University College Cork, an MSc in Gender History from the University of Edinburgh and an MSc in Information Management from the University of Glasgow. Her thesis is titled “The Transmission of Sexual Knowledge in Britain, 1811- 1911” which is co-supervised by Prof. Steve King and Dr. Jane Pilcher. The thesis focuses on the notion of sex and the various experiences of sex through the notions of masculinity and femininity as well as class during the nineteenth century. There is a strong focus on oral traditions and a case study on Elizabeth Blackwell who has been largely omitted from the historic record. She is also the current chair for New History Lab; an Institute of Historical Research affiliated society within the University of Leicester that acts as a hub for the Midlands.

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[1] A Bill, entitled An Act for consolidating and amending the Statutes in England relative to Offences against the Person, 1828, p. 9.

[2] Ibid.

[3] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 7.0, 21 August 2014), February 1829, trial of HARRIET FARRELL (t18290219-62).

[4] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 7.0, 21 August 2014), April 1828, trial of CATHERINE WELCH (t18280410-17).

[5] The ‘bucket test’ was commonly used by doctors in the late nineteenth century to discover if an infant had inhaled air at point of birth. If this was the case then the lungs would float and the mother be indicted with infanticide.