“A Rhinoceros in a Sugar Plantation”

Had we more on its author, the 1803 Act might have been easier to interpret. But, as it stands, Edward Law, Lord Ellenborough, has not generated much historical scholarship beyond the occasional biography in a volume of England’s eminent justices.Footnote ⁸ By all measures overshadowed by his son’s political career (and scandalous divorce), Ellenborough himself was not well regarded.Footnote ⁹ When Lord Campbell likened Ellenborough’s habit of “swelling out his cheeks by blowing and compressing his lips” to the snort of a “war horse,” he was making one of the more charitable horse comparisons Ellenborough would receive in his life. Lord Glenbervie, by contrast, once described Ellenborough as an “active but clumsy cart-horse galloping down a miry lane and scattering mud and dirt as he moved along” (kinder still than the “rhinoceros [rushing] through a sugar plantation” comparison offered by Sir Thomas Talfourd).Footnote ¹⁰ Over the course of his career, Ellenborough would inspire a menagerie of unflattering likenesses in political cartoons—a rat, a cormorant’s rear-end, a piglet, and a hog—identifiable in each by his scowling expression and pendulous judge’s wig.Footnote ¹¹ The notoriously bad temper, “arrogance of nature,” and overbearing “love of sarcasm” that left him “not much liked by the Lawyers in his Judicial capacity” equally left him a less than ideal candidate for a biography all to himself.Footnote ¹²

Yet, these personal shortcomings did not seem to hinder Ellenborough’s career, which was successful and significant. He prevailed as lead defense counsel in Warren Hastings’s legendary impeachment trial, besting Edmund Burke’s prosecution in outcome, if not eloquence.Footnote ¹³ He was briefly attorney general under Addington’s government, and served as lord chief justice for sixteen years, from 1802–18. He was infamous in his day for juridical stances at once conservative and controversial: he had no qualms overruling juries’ pleas for clemency in capital cases, or arguing for the suspension of habeas corpus.Footnote ¹⁴ He drew very public criticism for his hostility toward defendants in blasphemous libel cases, one of which—that of Daniel Isaac Eaton in 1812—provoked an outraged Percy Shelley to warn Ellenborough that, while he may be safe from professional censure, “there are no laws which screen you from the reproof of a nation’s disgust, none which ward off the just judgement of posterity, if that posterity will deign to recollect you.”Footnote ¹⁵ Posterity, for the most part, did not so deign, letting Lord Ellenborough himself slip into obscurity, even as his most important legacy, the Ellenborough Act, took on a life of its own—untethered and destructive (like a rhino in a sugar plantation)—in courtrooms across oceans and centuries.

What would become the Malicious Shooting or Stabbing Act of 1803 first appeared before the House of Lords as an Irish Chalker’s Bill. It had come up for renewal in Westminster in 1802 due to the Act of Union the previous year, which had abolished the Irish Parliament.Footnote ¹⁶ The statute was limited, exclusively referencing “chalking”: “the practice of cutting and stabbing with intent to murder, rob or maim.” This was a practice “almost entirely unknown” to England, Lord Carleton announced on 17 March 1803, to his equally bewildered fellow Lords.Footnote ¹⁷ If all parties agreed there should be “as little discord as possible between the criminal laws of Ireland and this country,” no one quite knew how to accommodate a statute so patently necessary in Ireland yet so utterly unintelligible to the English peerage.Footnote ¹⁸

The freshly ennobled Ellenborough saw in the Chalker’s Bill as much an opportunity to redress perceived shortcomings in England’s own criminal law as to reconcile its discrepancies with Ireland’s (the latter being his “second object”).Footnote ¹⁹ In fact, when Ellenborough reappeared before the House of Lords a few weeks later, on 28 March, the “bill in his hand” was so overhauled it would “tend, in a great degree,” he explained, to render discussion of the original measure “unnecessary” by its expansive “improvement” to “existing criminal laws.”Footnote ²⁰ Ellenborough’s reformulated bill, writes Phil Handler, “contained a range of highly specific offences”: stabbing; shooting; setting fire to “any House, Barn, Stable, Coach-house, Outhouse, Mill, Warehouse, or Shop”; and insurance fraud involving that fire-setting. The proposed draft also repealed the 1624 Infanticide Act, which had presumed the mother of a dead baby to be guilty of murder unless proven otherwise, and replaced it with language directing infanticide cases to be tried like any other murder case whose defendants were presumed innocent. The most unexpected target in Ellenborough’s “improvement” spree, though, was the administering of noxious substances with intent to procure the miscarriage of a woman quick with child (or, a woman past the point in pregnancy of the first fetal movement, called “quickening”).Footnote ²¹ All Ellenborough gave by way of explanation was that his bill “took into its purview, other parts of the criminal code, where amendment was held to be highly necessary,” one of which was rendering the administration of “any medicine, drug, &c. to procure the abortion of a child a capital offence.”Footnote ²² Yet more bizarre, Ellenborough took into his “purview” only a particular kind of abortion. Although the final version of the bill enacted into law a few weeks later made both instrumental and pre-quickening abortions illegal, Ellenborough’s own draft limited itself to post-quickening abortions brought on by the ingestion of noxious substances.Footnote ²³

Whatever the method, at whatever stage of pregnancy, abortion’s inclusion in this statute has been difficult for historians to explain. “The main thrust of the Act,” Shelley Gavigan writes, “was directed against assaults and attempts to wound; the prohibition against abortion seems almost incidental to the general prohibition against attempting to poison with intent to murder.”Footnote ²⁴ Indeed, the prohibition was not only “incidental” to the Act, but, as nineteenth-century assize records indicate, incidental to the entire justice system, before and after 1803.

“A [Not Very] Criminal Offense”

In fact, the story preceding the Ellenborough Act verges on boring. The legal history of abortion in England can be traced to the early twelfth century with Henry I’s Leges Henrici Primi. There were minor excitements in the form of the sixteenth- and seventeenth-century writings of Edward Coke and Matthew Hale, but otherwise this remained a comparatively uneventful corner of English common law, from the Anglo-Saxons up until 1803. Although Keown is correct that the common law history of abortion “has been, and remains, a controversial question,” as Gavigan notes it was a rare one: “the reported case law in the area prior to 1803 seems to be very close to non-existent,” partially because “for most of our legal history, the early abortion has not been a criminal offence.”Footnote ²⁵

As Carla Spivack’s convincing analysis of the cultural context of early modern abortion law illustrates, abortion trials for most of English history traditionally resembled less a crime punished by state authority and more a modern tort, brought “most often through the actions of the victims or their relatives, not by the actions of the state.”Footnote ²⁶ This was, Spivack argues, partly the consequence of the nature of the common law system, functioning as it did through individual writs as opposed to theoretical rules. The “substantive aim of common law,” in the words of Michael Lobban, was “not to apply eternal rules, nor to regulate society from above, but to provide useful, just, and flexible solutions to individual cases,” and therefore had “to reflect society and its needs.”Footnote ²⁷ When needed, then, Spivack concurs, “a legal remedy came into being as a response to an injury done to someone, not from the violation of an abstract moral principle.”Footnote ²⁸ And the “injury done” was not to the fetus: from the ninth-century reign of Alfred the Great, “fetal destruction” was legally interpreted as “an injury to the woman, not as a murder of the fetus.”Footnote ²⁹ In fact, Spivack illustrates how much the crime of abortion has always been about property—namely, “a loss of material possessions of the husband,” which might include, for example, a “female underling’s services, procreative or otherwise” or the “possibility of an heir.”Footnote ³⁰

The tort-like nature of English abortion cases was also, however, the result of “early modern views of humanity and personhood.”Footnote ³¹ The limitations of medical knowledge, the difficulty of determining pregnancy in the early months, and the anatomical reality that menstruation could stop for unrelated reasons meant that the first fetal movement was the earliest possible moment at which a fetus might be considered a person in “any legal, cultural, or even biological sense.”Footnote ³² Well into the twentieth century, as historians like Angus McLaren and Kate Fisher have demonstrated, women still differentiated between ending a pregnancy and maintaining regular menstruation.Footnote ³³ Bringing on a late period (even a very late period) was not synonymous with terminating a pregnancy. Finally, by definition, “crime was something that happened in the public sphere: it injured one of the king’s subjects and it disrupted the king’s peace. Intra-marital, self-induced abortion did not fit this paradigm.”Footnote ³⁴ In early modern England, there were plenty of threats to the social order more pressing than a privately terminated pregnancy.

My own survey of assize records held in The National Archives for the century following Ellenborough’s 1803 law confirms that the practice of self-induced abortion continued to evade the scrutiny of a legal system wholly uninterested in prosecuting it. Containing the bare bones of criminal trials in nineteenth-century England and Wales, these 193 Crown Minute books are organized by circuit and county, not by crime, and required a page-by-page audit to locate abortion and infanticide cases. Within these 193 Crown Minute books, I found 319 “abortion” cases, inclusive of both explicit abortion trials, and murder and manslaughter cases involving abortion.Footnote ³⁵ In addition to those are 78 abortion cases (similarly broadly construed) held in London during the same century and, marvelously, digitized by the Old Bailey. Of the 530 defendants in these 397 abortion trials, 326 (or 61.5 percent) were men. In the first half of the century, these men were, almost without exception, the sexual partner of the pregnant, or once-pregnant, “prosecutrix.”Footnote ³⁶ These cases were litigated on a terrain of improper paternity, extra-marital pregnancy, and illicit or coerced sex, all in keeping with Spivack’s findings that most early modern abortion law bespeaks anxiety around “the stability of families and their control of sexuality.”Footnote ³⁷ In fact, the criminality of abortion had so little to do with the technical termination of a pregnancy that one could be convicted of attempting to procure a miscarriage even when pregnancy had never occurred: at his 1838 Lincolnshire trial, twenty-two-year-old George Robinson was sentenced to twelve months’ hard labor, despite the jury being of the “opinion [Ann Hewitt] was not with child at the time” the crime was committed.Footnote ³⁸

That the behavior adjudicated by the Court concerned the circumstances that resulted in pregnancy, not the termination of the pregnancy itself, is clear in the rarity of self-induced abortion prosecutions. For over a century, in all extant English and Welsh Crown Minute books, only twenty women were charged with procuring their own abortions.Footnote ³⁹ Those twenty women amounted to just 0.7 percent of the number of women charged during the same century with pickpocketing in London alone.Footnote ⁴⁰ Most significantly, however, only eight women, of those twenty charged, were convicted. Collectively, they were sentenced to a total of seven years in prison. To put this in perspective, these numbers apply to a century that witnessed substantial population growth, and the implementation of new forms of reimbursement for attorneys and witnesses, resulting in a nearly 300 percent increase in felony prosecutions between 1805 and 1830 alone.Footnote ⁴¹

This is not to say that the 1803 Ellenborough Act made no mark on nineteenth-century courtrooms. As Lionel Rose notes, in reversing “the presumption of the 1624 Act,” it decreed “that infanticide was to be proceeded with like any other form of murder: the mother was innocent until proven guilty,” and, if acquitted, could instead be found guilty of concealment of birth, no separate indictment necessary.Footnote ⁴² Over the same assize survey that uncovered only eight convictions for self-induced abortions, I found 4,652 discrete cases of birth-related crime (infanticide, concealment, abandonment, etc.).Footnote ⁴³ With his bill, Ellenborough created new avenues for conviction in birth-related criminal cases that might otherwise have seen acquittals due to insufficient evidence, and in so doing revolutionized the prosecution of infanticide. The non-abortion clauses of the 1803 Act had a profound effect on criminal legislation in the nineteenth century. But, for all English and Welsh juries cared, Ellenborough’s Act may as well have omitted the criminalization of abortion altogether. For nearly a thousand years, the criminal justice system did not meaningfully concern itself with prosecuting or punishing the practice of abortion. Nor did it use its newly explicit powers in the direct aftermath of 1803, especially when a woman chose to terminate the pregnancy herself. Evidently, the impetus for this clause of the 1803 Act did not come from concerned judges and juries. Outrage over abortion can be found, though, if we turn our attention to Parliament.

“A Most Valuable and Important Commerce”

A search for the term “miscarriage” in digitized Parliamentary Papers for the century between 1700 and 1803 produces thirty-one results. Three relate to Ellenborough’s bill. The remaining twenty-eight are either metaphorical or use “miscarriage” in non-reproductive contexts (i.e., of Writs, of troops, of designs, etc.). “Abortion” yields only twelve results—four of which reveal little beyond the drama and creativity of parliamentary discourse (“this bill,” William Eden insisted in 1780, was “an unhappy miscarriage, a wretched embrio, a monstrouse abortion”).Footnote ⁴⁴ One result, from a 1773 East India Company report, is the brief mention of an abortion trial held before the criminal Court of Bhittoreah three years earlier.Footnote ⁴⁵ One is the Ellenborough Act itself, another the record of its introduction to the House of Lords.Footnote ⁴⁶ The remaining five, however, are from reports, witness testimony, and minutes of evidence, presented in both the House of Commons and House of Lords, in every year between 1789 and 1793, on the abolition of the slave trade.Footnote ⁴⁷

The story of Parliament’s interest in abortion, then, could begin in any number of unexpected places—in the 1620s, for instance, when English colonizers first appeared in the Caribbean, with enslaved African men already aboard their ships.Footnote ⁴⁸ It could begin in the 1760s, the “hey-day,” in the words of Eric Williams, of the West Indian sugar interest, whose alliance with landed aristocrats and seaport merchants exerted a parliamentary “influence sufficient to make every statesman pause.”Footnote ⁴⁹ Or, with the North American colonists’ campaign for independence, which had transformed the institution of slavery into “a moral issue and, as a consequence, a political liability.”Footnote ⁵⁰ But for our purposes, I will pick up the story in 1784, with the publication of James Ramsay’s Essay on the Treatment and Conversion of African Slaves. “More than a decade had passed since spokesmen for the West Indian interest last felt obliged to justify Caribbean slavery,” writes Christopher Leslie Brown, but this particular antislavery tract had changed things: “It left the West Indian interest apoplectic.”Footnote ⁵¹

The abolitionist fervor of the next two decades was not inevitable. In fact, those decades were also the height of the slave trade itself. Philip Morgan estimates that between 1780 and 1810 alone, eighty thousand Africans annually were forcibly transported across the Atlantic.Footnote ⁵² From 1751–1800, Britain was the largest purveyor of human life by a comfortable margin, taking from Africa 1,581,000 people (well over three hundred thousand more than Portugal, its closest competitor).Footnote ⁵³ But the West Indian planter interest and its mercantilist policies were nevertheless enfeebled, the American Revolution had “offered up identifiable villains” in a system that increasingly appeared reformable, and Evangelicals found in abolition both a just cause and a powerful avenue for proselytizing.Footnote ⁵⁴ The convergence of these (and other) factors saw the introduction of twelve abolitionist bills to Parliament between 1789 and 1807.Footnote ⁵⁵

Primary opposition to these twelve bills came from the moneyed and powerful Society of West India Planters and Merchants—the “institutional heart of the West India interest,” composed of plantation owners and the London, Liverpool, and Bristol merchants whose trade depended on a slavery-based economy—who “working through their representatives at Westminster, fought like tigers to prevent abolition.”Footnote ⁵⁶ The Society, in the mid-1780s, developed a subcommittee empowered to “take all necessary action” to advocate for the West Indian interest in parliamentary inquiries, commissions, and debates on the abolition of the slave trade. On 5 May 1792—the year that marked “the West Indian interest’s ‘greatest effort to influence public opinion’”Footnote ⁵⁷ on the matter—the Society resolved to hire a solicitor, and within two days approved the appointments of “Mr [Robert] Dallas” and “Mr. [Richard] Shaw” (or “Shawe”) as counsel, both members of the Hastings defense team who worked closely with Edward Law, the future Lord Ellenborough (hereafter referred to as “Ellenborough”).Footnote ⁵⁸ Within the week, the Society had scheduled a meeting at “Mr. Law’s Chambers, No. 7 Lincolns Inn, New Square,” the parties on the cusp of a decade of close collaboration in their fight against abolition.Footnote ⁵⁹

What does this have to do with abortion? More than you would think, if you were to ask Ellenborough, whose clients were panicking at the prospect of even the smallest reduction in the trade in enslaved human beings, a “most valuable and important commerce.”Footnote ⁶⁰ These are Ellenborough’s own words, spoken before the House of Lords in 1799 in opposition to the anti-slavery bill under consideration that year. The Slave Trade Limitation Bill of 1799 proposed to drastically curtail the number of African ports open to British slaving ships—a bill that, according to Ellenborough, “under the pretext of merely narrowing and contracting the limits of a trade suggested to be too extensive, is directly aimed at its destruction.”Footnote ⁶¹ He forewarned such legislation would, by restricting slaving ships from coming within five leagues of land in certain stretches of African coastline, cause shipwrecks, and would dismantle “the best and largest nursery for seamen of any branch of national commerce” (this latter assertion being one interpretation of slaving ships’ effects on the quality of English seamen).Footnote ⁶² He further insisted the bill would deprive the African continent of the only (doux) commerce “sufficiently interesting” to “produce that ruder state of preparatory civilization” requisite for any “higher lessons of social and moral duty.” It would even inconvenience the enslaved by elongating the trans-Atlantic journey with its port restrictions: “surely the interest of humanity would be best consulted,” he reasoned, “by allotting to the slave the shortest and most convenient transit to the place of his destination.”Footnote ⁶³

This was, at very best, disingenuous. But none could deny that the abolition of the slave trade would have massive repercussions for Caribbean planters, whose business lived or died by the continued importation of enslaved men and women. In part, horrifically, this was just good business. As one witness testified before Parliament in 1791, it was more profitable for plantation owners to import enslaved adults “fit for immediate labour—Slaves that are reared from childhood are liable to many accidents, and cannot make any return of labour for many years.”Footnote ⁶⁴ The “financial costs, risk of premature death, and incessantly pressing labor needs of the sugar plantations,” writes Sasha Turner, “did not make it cost-effective for reform-minded planters to buy slaves who were younger than ten to twelve years old,” let alone raise newborns from birth.Footnote ⁶⁵ Biological reproduction was a “gamble,” Turner continues, when “[l]ess than half of Jamaica’s enslaved children survived into adulthood.”Footnote ⁶⁶ However, as Jennifer Morgan has observed, “[n]otwithstanding a general sense that children and their care were risky investments, slave owners were responsive to shifts in the economic landscape that put women’s reproductive potential back into the realm of speculative finance.”Footnote ⁶⁷ The end of the slave trade threatened so seismic a shift in the economic landscape of the Atlantic world that it fundamentally changed the valuation of children in a system that had for centuries understood the deficit in slave births as, David Beck Ryden writes, “the direct consequence of a business, profit-loss decision.”Footnote ⁶⁸

Calculated mortality determined the profits of Caribbean plantations, which were, bluntly put, death traps. Surviving the Middle Passage—which, Herbert Klein estimates, had mortality rates of between 11.1 percent and 15.4 percent aboard English ships in the eighteenth century—was only the beginning.Footnote ⁶⁹ Of “some 2.7 million captive Africans” brought to the British Caribbean over a century and a half, the total enslaved population was “barely a third that number—about 775,000” by 1808.Footnote ⁷⁰ Sugar was an especially lethal commodity, whose production, Randy Browne estimates, was the fate of at least 60 percent of the nearly thirteen million people subjected to enslavement.Footnote ⁷¹ Compounding the grueling physical labor was the pronounced racial dimension of British slavery, and what Robin Blackburn has called a characteristic “English sense of private property” working “to eclipse the notion that the slave was a human being.”Footnote ⁷² The “rare men and women who lived into their forties or fifties, old age by the standards of plantation slavery,” Browne writes, “had watched hundreds if not thousands of shipmates, friends, and kin perish.”Footnote ⁷³ The slave trade was imperative for the straightforward reason that owners and overseers were murdering enslaved people through violence and overwork on an industrial scale. In the face of an abolitionist movement more than willing to display the suffering—especially the physical suffering—of enslaved people, honesty before Parliament on this particular point would have been a strategic mistake.Footnote ⁷⁴

Enter: abortion. As early as 1789—the year of William Wilberforce’s first impassioned abolitionist speech before Parliament—the reproductive practices of enslaved women were front and center for legislators. The year before, William Pitt’s government had commissioned an inquiry into the trade in response to abolitionist campaigns earlier in the decade—a move that, Diana Paton notes, “put pro-slavery forces on the defensive,” and spurred the creation of that aforementioned Society subcommittee fighting abolition in Parliament.Footnote ⁷⁵ Among the many witnesses called throughout this inquiry, by both pro- and anti-abolition factions, was Dr John Quier, a surgeon with nine years of experience attending enslaved people on Saint Christopher and Nevis. “Negro Women, whether Slaves or Free,” he explained, “do not in his Opinion breed so frequently” as poor British women.Footnote ⁷⁶ This he ascribed, rather counterintuitively, “to the promiscuous Intercourse which the greater Number of Negro Women indulge themselves in with the other Sex,” and to “Abortions, which he thinks to be rather frequent amongst them.” Quier, among many others, also blamed “the long time which Negro women keep their children at the breast,” as “few women ever breed as long as they continue to give suck.”Footnote ⁷⁷ The appendix to the final, four hundred-page report resulting from the inquiry included testimony from three additional witnesses (doctor, governor, agent), from three additional islands (Grenada, Antigua, Barbados), citing abortion as one of the most prominent “causes which impede the Increase of Plantation Slaves.”Footnote ⁷⁸

Gilbert Francklyn had lived on a number of British Caribbean islands from 1766 until 1790, when he testified before a select committee appointed to examine witnesses produced by petitioners against abolition.Footnote ⁷⁹ As the owner of as many as 2,000 acres on the recently ceded island of Tobago, Francklyn was heavily (£40,000) invested in these proceedings—an investment he certainly would not have made had he known the “importation of Negroes from the coast of Africa” was teetering on the cusp of prohibition. When asked whether it was consistent with his experience to conclude “that a supply of Negroes to Cultivate the islands could be procured without the importation of Africans,” he responded, “Surely not.”Footnote ⁸⁰ Counsel then asked Francklyn to explain why these plantations were incapable of maintaining their “stock of Negroes.” While acknowledging that “some situations are unhealthy,” and that there were more men than women, he understood the “supply” problem to be the result of “the length of time the well-disposed Negro women suckle their children” and the custom “Negro women have of procuring abortion, which is very common among those who are dissolute, and consider themselves handsome.”Footnote ⁸¹

Before the same 1790 select committee, James Tobin, proprietor of a Nevis estate for over twenty years, testified to the incompatibility of white workers with Caribbean labor, making clear—as Francklyn had in his testimony—that sugar production was suited to enslaved black workers alone. Tobin similarly confirmed it would be impossible for the “number of Negroes sufficient for the cultivation of Sugar Estates [to be] kept up by the common course of propagation, without a regular importation of Slaves from Africa.”Footnote ⁸² He also cited the disproportionality of men to women, venereal disease among African populations, and “the custom among the young female Negroes of procuring abortions, for the purpose of preserving their persons as long as they are able.”Footnote ⁸³ When Surgeon Robert Thomas was asked in the same proceedings to what he attributed “the decrease of adult Negroes on the sugar Plantation,” his answers were “the free and early intercourse of females with the other sex” and “the frequent abortions which Negro women designedly bring on themselves, either because the state of pregnancy in some measure puts a stop to their amorous pursuits for some time, or because they do not choose to be incumbered with the trouble of giving suck and rearing children.”Footnote ⁸⁴

Dr Jackson, in 1791, would, like Francklyn, Tobin, and Thomas, diagnose enslaved women’s recourse to abortion as a symptom of vanity, offering one “reason why Negro women of good form are unwilling to have children; that it diminishes their charms for the White men.”Footnote ⁸⁵ Lewis Cuthbert, attorney for absentee plantation owners in Jamaica, would do the same, producing before the House of Commons in 1792 a “Calculation to ascertain the Decrease of Negroes in Jamaica” between 1774 and 1787.Footnote ⁸⁶ The loss was seventy thousand (fourteen people a day, every day, for thirteen years). “To what causes do you impute the decrease?” asked Counsel.Footnote ⁸⁷ “First,” he replied, “to the inequality of the sexes. Next, to the dissolute manners and lives of Negroes, particularly to the promiscuous intercourse, especially of the females, at a very early period in life; and their disliking, while they have any attractions left, to make any lasting attachments with the Negro men, and often procuring abortions.” Five years of heated debate, and the story had not changed at all: enslaved women’s abortions in the Caribbean “proved” a lack of maternal instinct, an inability to mother, a proclivity for vanity.

In depicting African women and women of African descent in this way, these witnesses drew from centuries of “ideas and information about brown and black women” strategically fabricated, as Jennifer Morgan writes, “as evidence of a cultural inferiority that ultimately became encoded as racial difference.”Footnote ⁸⁸ African women’s childbearing, perceived as “mechanical and meaningless,” was one such imagined “difference.”Footnote ⁸⁹ “From the sixteenth through the mid-eighteenth centuries,” writes Katherine Paugh, “women in the African diaspora were frequently presented by European authors as giving birth with animalistic ease,” capable of “both productive and reproductive labor” simultaneously.Footnote ⁹⁰

In contrast, the prosecution of infant-related crimes in England and Wales reveals just how stark the “racial difference” in perceptions of childbearing was. The aforementioned 4,652 infanticide and concealment cases reveal a sustained domestic tradition of lenience, a disinclination to punish British women for birth-related crime. Of the 5,048 defendants in these cases, 3,054 were convicted, of whom 1,725 pled guilty, meaning only 26.3 percent of all defendants charged were convicted by a jury. Of those convicted, 556 (18.2 percent) were immediately discharged.Footnote ⁹¹ The 724 convicts sentenced to imprisonment without hard labor were ordered to serve, on average, only 60 days; the 2,028 convicts sentenced to hard labor were ordered to serve, on average, 182 days. Only 55 convicts, or 1.1 percent of defendants, were sentenced to penal servitude, transportation, or death (resulting in only thirteen executions). These trials represent both misdemeanors like concealment of birth and improper disposal of bodies, and manslaughter and murder cases, all during an age when fourteen-year-olds were sentenced to transportation for stealing shawls.Footnote ⁹²

Juries, to an astonishing degree and often against all reason, trusted British women who swore that their full-term babies were born dead; that the string double knotted around the neck was a delivery aid; that the slit throat was an accident, a slip of a knife, a moment of insensibility. Even allowing for all the powerful irrationality of racism and the prejudice of unfamiliarity, it seems an egregious moral contradiction that enslaved black women were vilified for terminating pregnancies, based on nothing more than the profit-driven suspicions of the men who owned them, while white British women were pitied for drowning their living newborns in privies. The contradiction, however, falls away if infanticide in Britain and abortion in the Caribbean are instead interpreted together through the lens of property crime. The British infants whose deaths came before the court were, almost without exception, the bastard children of young, unmarried women—in other words, definitionally, no one’s property. Precisely the opposite was true of the unborn children of enslaved women in the British Caribbean.

That the value of those children had been profoundly altered by the prospect of abolition is apparent in the shift “from tales of Afro-Caribbean fecundity to concerns about Afro-Caribbean infertility.”Footnote ⁹³ If risky, children had quickly become an indispensable investment for slaveowners whose once-steady supply of captive Africans was about to collapse. Uncooperative women—women whose sexuality was not conducive to population increase, women who mothered too long or not long enough, women who had abortions—frustrated this system. And, crucially, it was not the anti-abolition factions alone that viewed enslaved women’s reproductive capacity as the heart of the matter. As Turner has illustrated, the “reproductive bodies of female slaves were the vessels through which abolitionists articulated pathways to freedom” both before and after the abolition of the trade in 1807.Footnote ⁹⁴ While the pro-slavery interest argued inherent (and therefore immutable) inferiority, abolitionists invested in depicting the “undesirable qualities” of people of African descent as circumstantial.Footnote ⁹⁵ With “improved treatment,” enslaved women would birth children who “would then be trained from their infancy to become moral and industrious people. Children were far more crucial to the project of creating free societies than adults.”Footnote ⁹⁶ With the slave trade threatened, children had become similarly crucial to the project of maintaining unfree societies. Whether these children would be worked to death as property, or raised in a particular vision of future subject-citizenship, or destined for some purgatorial state between the two, all sides agreed they needed to exist.

Asserting the requisite control over enslaved women’s reproductive capacity, however, was no straightforward matter. It is evident, across decades of parliamentary debate, that the West Indian “experts” called to testify for both sides suspected a great deal, but knew very little. In 1791, when Drew Ottley was asked if “young women Slaves ever study to procure abortions,” he answered, “I have heard that they do, but no instances of it ever came to my knowledge.”Footnote ⁹⁷ In 1826, Reverend H. Beame of Jamaica reported that “the procuration of abortion is very prevalent,” but that the “white medical man and overseers know little except from surmise.”Footnote ⁹⁸ In 1832, Sir Michael Clare swore that abortion was “very generally practiced,” but admitted the “Medical Man is kept in Ignorance of this.”Footnote ⁹⁹ “We can easily imagine,” Mary Fissell discerns, “that enslaved women were not forthcoming to overseers about such reproductive matters.”Footnote ¹⁰⁰ The “fantasies of managerial control of Afro-Caribbean sexuality and childbearing” that so preoccupied slaveholders were exactly that: fantasies.Footnote ¹⁰¹

Whether and how enslaved women in the Caribbean were procuring abortions is a crucial subject, though not the subject of this article. As Londa Schiebinger has argued, even though abortion “was more widely discussed in the colonies than in Europe,” it is difficult to discern “the particulars of abortive practices.” “Nowhere is information available,” she explains, “on the number of abortions actually carried out on plantations.”Footnote ¹⁰² The real prevalence of abortion and other contraceptive practices was thus unknowable to the West Indian planter interest, whose claims before Parliament required no meaningful evidence, anyway. Still, it is worth remembering that “to survive at all under slavery was a mode of resistance.”Footnote ¹⁰³ To control one’s own fertility in a world in which “black women’s reproductive abilities” were, in Turner’s words, the “lifeblood” of the British colonial economy, was another.Footnote ¹⁰⁴ The abortions happening in the Caribbean were many things: a claim to identity, a source of community, an intellectual genealogy, a devastating (or empowering) personal choice.Footnote ¹⁰⁵ But, as years of parliamentary records attest, enslaved women’s abortions—real or imagined—were also an assertion of sovereignty so powerful they threatened an empire.

“A Subject Very Often Before Me”

Edward Law knew this. For years, he had been paid by the Society of West India Planters and Merchants to make this argument. He was compelled to acknowledge as much when, in 1806, he came out against the slave trade before his fellow peers in Parliament. Now Lord Ellenborough, he had been a baron for four years and by all accounts had transitioned into the peerage with about as much grace as might be expected: a parliamentary reporter likened Ellenborough, in his early days in the House of Lords, to an aggressive bulldog, sneering at the tendency “lawyers so rapidly raised to high station” had of forgetting their lower court manners. Ill-mannered or otherwise, Ellenborough was not dispelling his well-earned reputation for verbosity when he endorsed the anti-slave trade bill under consideration in 1806.Footnote ¹⁰⁶

“The question before us,” he declared, is “plain”: “Whether the African Slave Trade is unjust, inhuman, and impolitick?”Footnote ¹⁰⁷ And unjust it was, in no uncertain terms. “On the general principle of moral justice,” it was “quite impossible to defend this Traffick”—though, crucially, he objected to the trade alone, finding slavery itself defensible.Footnote ¹⁰⁸ It was a “subject which has been very often before me,” Ellenborough announced, his awareness “frequently drawn to an attentive view of it under circumstances which afford me correct information.”Footnote ¹⁰⁹ Before imparting any of that correct information, he sheepishly asked the House to allow him to deliver his sentiments “without reference to any thing I may have been called upon to do in the discharge of professional duty,” reminding his audience he now spoke as Lord Ellenborough, “a Peer of Parliament.”Footnote ¹¹⁰ And there would have been plenty for his opponents to reference: Ellenborough had represented the Society not only in his forceful opposition to the Slave Trade Limitation Bill of 1799, but throughout 1798, 1794, 1793, and 1792, when he spearheaded the petitioners’ case before Parliament.Footnote ¹¹¹ In at least 1792 and 1793, the testimony offered before Parliament on abortion was almost certainly elicited from Ellenborough himself, or if not him, his co-counsel Robert Dallas. Although the Minutes of Evidence do not continually specify “counsel” throughout, there were only two options for the petitioners: “Mr. Law and Mr. Dallas.”Footnote ¹¹²

It is hard to imagine this decade of fervent advocating for the safeguarding of West Indian planter property made no impression on Ellenborough, whether or not that advocating was done out of professional duty alone. In fact, the influence of those years spent positioning abortion as a Caribbean property crime might even be visible in the peculiar parameters of Ellenborough’s draft of the 1803 statute. For example, as Keown has noted, the original bill “appeared to narrow the scope of the offence” insofar as it referenced only the ingestion of noxious substances, omitting other methods of abortion (use of instruments, assault, etc.) familiar in English courts.Footnote ¹¹³ Might this focus on abortifacients be an unintended legacy of the preoccupation with poisoning so prevalent in sugar colonies in the later eighteenth century? Although, as Diana Paton argues, the white minorities of the French Caribbean were more explicitly concerned with poison than their British counterparts, poison was explicitly mentioned in legislative clauses passed in the British Caribbean between 1788 and 1806.Footnote ¹¹⁴ And, as Londa Schiebinger notes, “[f]ear of poisonings led planters to outlaw slave medicine in English colonies” as early as the 1730s.Footnote ¹¹⁵ It is possible an imperial subtext is also reflected in the Ellenborough Act’s clauses on arson, another crime, as Miles Ogborn has shown, whose meaning in the Caribbean extended far beyond, but was bound up in anxieties about, the destruction of property.Footnote ¹¹⁶

But even if Ellenborough, like any barrister, was at times obligated to voice, as counsel, opinions he may have disavowed as a person, nothing said about abortion was incompatible with the paternalist principles that guided him throughout his life—the foremost of which was a rabid dedication to the protection of private property.Footnote ¹¹⁷ The law, Ellenborough postulated in his 1808 response to Romilly’s capital punishment bill, was prophylactic, its “greatest object” crime prevention (preferably through inspiring “terror” in would-be criminals).Footnote ¹¹⁸ For this reason he was staunchly pro-capital punishment for even the pettiest of property crime.Footnote ¹¹⁹ The “fear of a greater punishment,” and occasional infliction of a “severe” penalty, were the only effective checks on a criminal class incapable of respecting the sanctity of private property.Footnote ¹²⁰

Whether private property was human was apparently irrelevant to Ellenborough, who, on the issue of slavery, was more ideologically aligned with the “nearly one hundred MPs [who] defended Britain’s long-standing involvement in the slave trade” between 1783 and 1807.Footnote ¹²¹ As late as 1802, Ellenborough was against abolition, “frightened” as he was “at the consequences of any innovation upon a long-established practice,” however “abhorrent” the practice may be.Footnote ¹²² His eventual disavowal of the slave trade was accompanied by the crucial caveat that slavery itself remain intact. He even offered private edits to the language of the 1807 Act, which then-Prime Minister Grenville unilaterally rejected: there was, Grenville replied, no need of “embarrassing ourselves with the distinction between purchased & born slaves, the difference between whom it would be extremely difficult to come out in any way of proof—nor in truth could it be desirable.”Footnote ¹²³

A pro-slavery/anti-slave trade stance, however, posed a logistical (to say nothing of an ethical) quandary whose only solution lay in a self-sustaining population of enslaved workers. Addressing the horrifically high mortality rates was difficult without dredging up larger, unsavory questions with implications extending beyond the slave trade to the institution of slavery itself. Confronting population decline without diagnosing its cause, invoking a Protestant ethic without extending it so far as to accidentally arrive at full emancipation, was a sensitive business. But Ellenborough, luckily, had a model—a man he deemed (in characteristically rotund phrasing) the “most powerful instructor in the art of thinking & of digesting & turning to solid & useful instrument the subject of our thoughts”: William Paley, “the most celebrated (and optimistic) theologian of the age.”Footnote ¹²⁴

“As the most forceful and complete expression of the ‘paternalist’ view of social relations,” writes Niall O’Flaherty, Paley’s influential The Principles of Moral and Political Philosophy diagnosed a world “hierarchical by nature and the better for being so.”Footnote ¹²⁵ The model of social relations Paley espoused was founded on “a right to private property, sanctioned by natural law and scripture”—indeed “was the very basis of civilised society.”Footnote ¹²⁶ Although not a man given to direct activism, Paley had his rare moments of “out-of-doors politics,” one of which, O’Flaherty writes, was an address made “in February 1792 to petition parliament for the abolition of slavery.”Footnote ¹²⁷ The petition, importantly, was not for the abolition of slavery, but the abolition of the slave trade—a crucial distinction. In fact, one of Paley’s explicit arguments against anti-abolitionists, who feared something like “the late insurrection at St. Domingo,” was that—whatever unkept promises of freedom the French National Assembly may have made—“we do not aim at the emancipation of the slaves, in the British West Indies, but only wish that the future importation of them from Africa, may be prohibited.”Footnote ¹²⁸ Not only did Paley not aim for the emancipation of enslaved workers in the British West Indies, he hoped—paternalist that he was—that they would, like all able beings, “increase and multiply.”Footnote ¹²⁹

In order, though, to “enable the slaves not only to keep up their numbers, but to increase them,” Paley orated, “the future importation of slaves from Africa into the British West Indies, must be prohibited.”Footnote ¹³⁰ So long as “the waste of slaves can be supplied from Africa,” so long as slaveowners thought they could “procure them at a cheaper rate than they can rear them,” the population of enslaved workers would continue to wither both in numbers and in morals:

These ideas were not unique to Paley: arguments in favor of the “amelioration” of slavery circulated widely in discussions of abolition, and empire more broadly, at the turn of the nineteenth century.Footnote ¹³² Ellenborough would have been thoroughly exposed to this reasoning. Yet Paley’s intimate friendship and years-long correspondence with Ellenborough help to explain why the future of slavery envisioned by Ellenborough in 1806 was so compatible with (nearly identical to) the one offered in Paley’s Carlisle speech fourteen years earlier. Ellenborough had “no doubt” that, with the slave trade abolished, “planters in the West Indies will gladly introduce a change of system among the negroes, such as may best conduce to the increase of the population of their negroes”—changes that included “encouragement to marriage” and the “rearing of infants under parental affection.”Footnote ¹³³

The prevention of abortion, the control over enslaved women’s reproduction, was the linchpin in this vision of a future safe for the institution of private property, if not the property themselves. This vision guided Ellenborough as an attorney, as a justice, and as a member of Parliament. There is no reason to believe it did not also inform his landmark piece of legislation passed in the small window between his years on the Society’s payroll and his conditional support for the abolition of the slave trade: the Ellenborough Act of 1803, or the first statutory prohibition of abortion in the entire Anglo-American common law system.

Years later, in a letter chastising the new Lord Kenyon for his choice in biographer for the late Lord Kenyon, Ellenborough insisted “the lives of the most distinguished persons in the law contain little of interest for the world at large.”Footnote ¹³⁴ This is yet another point on which Ellenborough and I disagree. The archival scraps of his life, both private and public, in London, and Liverpool, and Birmingham—even Boston—include no smoking gun, no explicit articulation of his personal motivations for criminalizing abortion. It might have been faith, or fear, or a vocational impulse to clarify one ill-defined area of law (though, I think, we may safely dismiss a gallant concern for women and their health).Footnote ¹³⁵ We cannot be certain of Ellenborough’s motivations for the choice—“unexpected, unlikely, and historically specific”—to include abortion in his bill.Footnote ¹³⁶ But in our pursuit of those motivations, we can be certain: that, first, abortion was not of general concern to British society when it was criminalized by a random piece of kitchen-sink legislation in 1803; second, judges and juries declined to interest themselves in prosecuting abortion even after the law’s enactment; and third, abortion’s most outspoken eighteenth-century opponents—the slaveholders who viewed it as criminal destruction of their human property—had a powerful advocate in Ellenborough.