Prison reform 1880-1914

By the late 1880s, belief in punishment and deterrence as the main objects of imprisonment and confidence in the separate system as a desirable and effective means of dealing with prisoners came increasingly under question especially from a rabid campaign in the Daily Chronicle.[1] The result was the departmental committee chaired by Herbert Gladstone in 1894 and 1895 reflecting changes in attitudes towards prisoners.[2] ‘We start’, said the Committee, ‘from the principle that prison treatment should have as its primary and concurrent objects, deterrence and reformation’.[3] The Committee recommended that unproductive labour, in particular the crank and tread-wheel should be abolished and that the principle of labour in association, practised for many years in the convict service, should be extended to local prisons. They argued that under proper conditions association for industrial labour relieved isolation was healthier, eased the task of providing industrial work in prison and, if regarded as a privilege that could be withdrawn, would not endanger control.[4] The Committee also recommended that further efforts should be made to classify prisoners, that books should be made more widely available and that educational facilities should be extended. They urged that the rules about visits should be exercised with discretion not rigidly applied, especially in circumstances where they would be beneficial to the prisoner. For convicts, the initial period of solitary confinement should be reduced, since its original reformatory purpose had long since deteriorated into one of pure deterrence. A juvenile reformatory should be established to take offenders up to the age of 23 for a period of between one and three years with the emphasis on individual treatment and special arrangements for after-care. For the ‘habitual criminal’ preventative detention was introduced to enable courts to impose an additional sentence of 5-10 years as a deterrent. More generally, the Committee emphasised the urgent need for aid and after-care to be available to prisoners on release and for the voluntary bodies concerned to have opportunities to establish contact with prisoners before their discharge.

On the publication of the report, Sir Edmund Du Cane, chairman of the Prison Commissioners resigned his post, something welcomed in the press as ‘the inevitable end of a discredited system’.[5] The report is frequently used to mark a shift in penal policy away from a rigidly deterrent approach and a condemnation of ‘useless’ labour to one grounded in a more ‘reformative’ system of imprisonment and this has given it the appearance of a prospectus for radical change.[6] However, its recommendations were implemented slowly and piecemeal.[7] There were significant weaknesses in the report arising largely from its failure to address the issue of prison administration as well as conditions for prisoners and its indecisiveness, a reflection of the weakness and amateurish nature of the committee from the outset.[8] That the publication of the report came less than two months before the resignation of Rosebery’s Liberal government and its defeat in a general election meant that its impact was further limited. The result was that some of its recommendations were watered down while others were simply ignored. The momentum for change in penal policy dissipated and it was not until 1898 that legislation was passed.[9]

Few of the Gladstone recommendations required legislation since powers had already been delegated to the Home Secretary to frame and revise prison rules and this may explain why the Prisons Act 1898 had such a lengthy development. In addition, there was little parliamentary pressure for a legislative review of penal policy and although draft bills were written in 1896 and 1897, they were not seen as a priority The Prison Act 1898 dealt mainly with changes in the nature of prison labour, by providing for association in labour if this was practicable, for the phasing out of the crank and treadwheel and for the use of oakum picking only as a last resort. The Act also made provision for the courts to classify into one of three divisions those sentenced to imprisonment without hard labour. This novel development reflected the contemporary view that it was more appropriate that the sentencing court rather than the executive should decide the conditions under which an offender should serve his sentence. In practice, courts seldom used any but the third classification, the most severe but the provision was not repealed until 1948. The legislation made important structural changes by amalgamating the Prison Commissioners and the Directors of Convict Prisons and in establishing the principle of lay involvement in monitoring prisons through Boards of Visitors.

The Victorian prison

...was a man’s world; made for men, by men. Women in prison were seen as somehow anomalous: not foreseen and not legislated for. They were provided with separate quarters and female staff dealt with all that for reasons of modesty and good order - but not otherwise differently.[10]

The most common offences committed by women were linked to prostitution and were, essentially, ‘victimless’ crimes such as soliciting, drunkenness, drunk and disorderly and vagrancy that tended to be dealt with by the courts either by fines or short periods of imprisonment. Until Holloway became a female-only prison in 1903, women were held in separate sections of mixed prisons. However, the unlawful activities of the predominantly middle-class Suffragettes posed a major problem for the prison authorities especially when they began going on hunger strikes. What distinguished the suffragette hunger strike campaign was the calculated use of the press, especially after the government began to force-feed suffragettes. In reporting stories of determined women prisoners, newspapers presented a challenge, for millions of voters, to more docile images of women.[11]

On 24 June 1909, an artist Marion Wallace Dunlop was arrested and imprisoned after painting an extract of the 1689 Bill of Rights on the wall of the House of Commons. Like other suffragette prisoners, she refused political status in prison and, on 5 July, began a hunger strike in protest. After ninety-one hours of fasting, she was released. Other suffragettes followed her example and were also released. From September 1909, Herbert Gladstone, Home Secretary (1905-1910), introduced forcible feeding[12]. Historians are divided over the importance of force-feeding. Some justify it simply on the grounds that it saved the lives of hunger strikers. On the other hand, suffragette propaganda portrayed it as oral rape and many feminist historians have agreed with this perspective. Over a thousand women endured, what Jane Marcus called ‘the public violation of their bodies’ and a contemporary doctor said that ‘using the term ‘medical treatment’ as a cloak, commits an act which would be assault if done by an ordinary doctor’.[13] There was also a class dimension. Influential women like Lady Constance Lytton[14] were released, while working-class women were treated brutally.[15] As the number of suffragette prisoners’ rose and suffragette propaganda continued to make capital out of forcible feeding, the government changed its strategy. In April 1913, the Prisoners’ Temporary Discharge on Ill-Health Act was passed. This allowed the temporary discharge of prisoners on hunger strike combined with their re-arrest later once they had recovered and was soon described as the ‘Cat and Mouse Act’.

Although there were several attempts before 1914 to define and improve the nature of convict life and changes in the ways that young offenders were treated, much of the structures of imprisonment followed the foundations laid down by Carnarvon and Du Cane and remained largely undisturbed by reformers, administrators and politicians for much of the following century.[16]

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[1] Forsythe, W.J., Penal discipline, reformatory projects and the English Prison Commission, 1895-1939, (Exeter University Press), 1990 and Harding Christopher, ‘'The Inevitable End of a Discredited System'? The Origins of the Gladstone Committee Report on Prisons, 1895’, Historical Journal, Vol. 31, (3), (1988), pp. 591-608 and Hannum, E. Brown, ‘The Debate on Penal Goals: Carnarvon, Gladstone and the harnessing of Nineteenth Century ‘Truth’, 1865-1895’, New England Journal on Prison Law, Vol. 7, (1981), pp. 97-103.

[2] ‘Report from the departmental committee on prisons’, Parliamentary Papers, Vol. lvi, 1895 or the Gladstone Committee.

[3] Gladstone Committee, para 25.

[4] In 1900, as part of the Gladstone reforms, prison were instructed to allow conversation between prisoners at exercise but the reactions of prison governors was almost entirely unfavourable. ‘Conservation, the Prison Commissioners’ Annual Report in 1900 stated, ‘at exercise is not sought after; prisoners prefer to exercise in the usual way.’

[5] Daily Chronicle, 15 April 1895.

[6] See, for example, Loucks, Nancy and Haines, Kevin, ‘Crises in British Prisons: A Critical Review Essay’, International Criminal Justice Review, Vol. 3, (1993), pp. 77-93 that stated at pp. 77-78 ‘The Gladstone Committee (1895) laid the framework for the aims of the modern prison service in England and Wales.’

[7] For contemporary criticism see, Morrison, W.D., ‘The Progress of Prison Reform’, Law Magazine and Review, Vol. 32, (1902-1903), pp. 32-33.

[8] McConville, Sean, English Local Prisons, 1860-1900: Next only to Death, pp. 615-696 discusses the Gladstone report and its aftermath.

[9] Ibid, McConville, Sean, English Local Prisons, 1860-1900, pp. 697-757 examines the tortuous passage of legislation.

[10] Ibid, Priestley, Philip, Victorian Prison Lives, pp. 69-70

[11] Purvis, June, ‘The prison experiences of the Suffragettes’, Women’s History Review, Vol. 4, (1), (1995), pp. 103-133.

[12] This was maintained Reginald McKenna (Home Secretary, 23 October 1911-25 May 1915). Winston Churchill was Home Secretary during the truce in 1910-1911 and it is interesting to speculate what he would have done about force-feeding, as he was a supporter of women’s suffrage. On the attitude of the Home Office from 1906 to 1914 see, Crawford, Elizabeth, ‘Police, Prisons and Prisoners: the view from the Home Office’, Women’s History Review, Vol. 14, (3 & 4), (2005), pp. 487-505.

[13] British Medical Journal, 5 October 1915, p. 908.

[14] Constance Lytton, the daughter of the Earl of Lytton who had once served as Viceroy of India, joined the Suffragettes in 1909 and was arrested on several occasions for militant actions. However, on each occasion, she was released without being force-fed. Believing that she was getting special treatment because of his upper class background, she decided to test her theory. In 1911, she dressed as a working-class woman and was arrested in a protest outside Liverpool’s Walton Gaol under the name ‘Jane Wharton’. She underwent a cursory medical inspection and was passed fit. She was forcibly fed and became so ill she suffered a stroke that partially paralysed her. After her release, her story generated a great deal of publicity for the movement. See, Mulvey-Roberts, Marie, ‘Militancy, masochism or martyrdom? The public and private prisons of Constance Lytton’ in Purvis, June and Holton, Sandra Stanley, (eds.), Votes for Women, (Routledge), 2000, pp. 159-180.

[15] Geddes, J.F., ‘Culpable Complicity: the medical profession and the forcible feeding of suffragettes, 1909-1914’, Women’s History Review, Vol. 17, (1), (2008), pp. 79-94. The forcible feeding of suffragettes in prisons in Edwardian Britain was an abuse that had serious physical and psychological consequences for those fed, and one in which the medical profession was complicit, by failing as a body to condemn the practice as both medically unnecessary and dangerous. Sir Victor Horsley, an eminent but controversial figure, led opposition to forcible feeding, but, with relatively few male colleagues backing him, it continued unchecked. Undeterred, Horsley worked tirelessly to make his profession aware of the realities of the practice and recognise that, as the militant campaign had escalated, the Home Office had used the doctors administering it to punish, rather than treat, the hunger strikers.

[16] Ibid, McConville, Sean, English Local Prisons, 1860-1900, p. 549.

Prison reform 1850-1877

Toward the mid-nineteenth century, some authors became interested in the actual conditions of prisons.[1]

Although such eighteenth-century authors as Daniel Defoe and John Gay had featured the image of the infamous Newgate Prison in their writings, Charles Dickens’s explorations of the criminal world took a somewhat darker tone. Novels including Oliver Twist (1838), Little Dorrit (1857) and Great Expectations (1861) feature extended scenes in prison.[2] Writings from prison also gained greater visibility as more individuals who were literate were incarcerated. Prison biography became a genre in itself, allowing inmates to express the horror of their condition to a wider public.[3] By the time Oscar Wilde began writing about his experiences in prison from 1895-1897, prison writing was much more realistic, gritty and sordid. Wilde’s De Profundis (1905), written during his prison term at Reading Gaol, reveals the witty Wilde completely altered by the utter humiliation and physical suffering of his punishment for ‘indecency’.[4] In other writings, he describes the prison as ‘built with bricks of shame’ where ‘only what is good in Man...wastes and withers there.’[5] The subject of prison reform also took to the stage in 1865 with Charles Reade’s drama It Is Never Too Late To Mend. Its première at the Princess’ Theatre on 4 October 1865 saw one of the most memorable disturbances in the nineteenth century theatre occurred when the drama critics, led by Frederick Guest Tomlins of the Morning Advertiser demanded that the play be halted because of its offensive subject matter and one particularly shocking scene of prison torture. As a result, it did not remain in the play after the first night.[6] Increasingly, writings about prison began to assert the rights of the criminal as a person with human dignity. The Howard Association was formed in 1866 with the intention of independently monitoring the prison system and the handling of convicts.[7]

The creation of the Directors of Convict Prisons and a Prisons Inspectorate in 1850 represented the beginnings of the later centralised service. Also in 1850, a Select Committee on Prison Discipline was established under Sir George Grey and is important because it examined the relative merits of the ‘separate’ and ‘silent’ systems. There had been intense arguments about these systems for thirty years and Grey’s Committee found that some local prisons were still very unsatisfactory and that in them neither separation nor reformation was possible. With the ending of transportation to Tasmania in 1852, a crisis slightly eased by the cooperation of Western Australia that agreed to taking convicts, it was clear that the prison system needed to develop resources to cope with all long-sentence prisoners in England.[8] The result was a shift in thinking away from reformation as a major aim of imprisonment towards a more draconian system.

Administrators believed that the mere denial of freedom was not punishment enough and thought up various ways of intensifying the pains of imprisonment. Their industriousness made the hand crank and the tread-wheel common features in prisons of the second half of the nineteenth century. 1863 can be singled out as a key year for the increasing severity of the penal system, though largely through coincidence. In 1862, London underwent a panic over the increased incidence of garrotting. Joshua Jebb, who had been under attack for being too soft on dangerous men, died. The ‘silent system’ was particularly associated with the new Assistant Director of Prisons, Sir Edmund Du Cane, a firm disciplinarian, appointed in 1863.[9] The result of growing concerns about the institutional breakdown of the penal system and a widespread, if overblown, panic about levels of crime was a Select Committee of the House of Lords chaired by Lord Carnarvon. It presented its Report on Gaol Discipline in July 1863 stressing the importance of punishment over reformation and many of its recommendations were incorporated in the Penal Servitude Act 1864.[10] Lord Chief Justice Cockburn told the Committee that the primary object of the treatment of prisoners should be

...deterrence, through suffering, inflicted punishment for crime, and the fear of the repetition of it.

The Select Committee also pointed out the deficiencies in the local operation of prisons. The Prisons Act 1865 aimed to enforce a strict, uniform regime of punishment in all 193 local prisons depriving county justices and municipal corporations of their independent authority over local gaols. The intention was not to try to reform prisoners through work or religion but to impose strict standards of discipline through ‘hard labour, hard fare and a hard board’. 13 English borough or liberty prisons were closed and either sold or, with the Home Secretary’s permission, used as police stations or lock-ups. Many smaller prison authorities gave up their gaols because of the expense of complying with the new regulations, leaving only 113 prisons under local control. The legislation made it possible for the grant from central government to the local authority to be withdrawn if the provisions of the Act were not implemented. Even this had little effect upon the urgent need to improve conditions of the local prisons and produce economy and efficiency in their management. [11]

The organisation and control of Britain’s penal institutions had by 1865 been subjected to increasing centralisation and rationalisation through the mechanisms of State inspection in the 1835 Prison Act, regulation in Prison Acts in 1823 and 1844 and finance through the 1865 Prison Act. In essence, the 1865 Prisons Act sounded the death knell of the mainly privatised, locally administered prison system in England and Wales and the Prisons Act of 1877 put the finishing touches on the centralisation and unification of the prison system. The 1877 legislation transferred the powers and responsibilities from the local justices to the Home Secretary who also took over from local rate payers the cost of the system. The detailed administration of the system was delegated to the Prison Commission, a new body of up to five members, assisted by inspectors. Sir Edmund Du Cane, Chairman of the Prison Commission, faced a formidable task in organising an efficient and uniform system. Resources and needs required review, staffing had to be rationalised, and the regimes in the various prisons awaited inspection. When the 1877 Act came into operation on 1 April 1878, this work was sufficiently advanced to enable the Commissioners immediately to close 38 out of a total of 113 local prisons. Within ten years, a further 19 had been closed.

The regime which Du Cane imposed in the local prisons was based on the principle of separate confinement that was justified on the grounds that an offender was more likely to see the error of his ways if left to contemplate his crime alone. It also reflected the view that imprisonment was a punishment intended to deter the offender from further crime. For the first month the prisoner was required to sleep on a plank bed and to work alone in his cell. The work would be tedious, unpleasant and unconstructive; at this stage it would usually consist of picking oakum. Later, he might find himself working the crank or tread-wheel. Food was monotonous and unpalatable. No letters or visits were allowed for the first three months, and thereafter were permitted only at three monthly intervals. A convict was sentenced to penal servitude, not to imprisonment spent the first nine months of his sentence in solitary confinement.[12] The convict crop and the prison uniform, its colour depending on the prisoner’s classification) with its broad arrows were intentionally demeaning and unsightly and facilities for personal hygiene were minimal. Under the Penal Servitude Act 1857, a convict serving more than three years was allowed to earn remission amounting to a quarter of his sentence. Marks were awarded for good behaviour and the amount of remission depended on the number of marks earned.

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[1] Alber, Jan and Lauterbach, Frank, (eds.), Stone of Law, Bricks of Shame: Narrating imprisonment in the Victorian Age, (University of Toronto Press), 2009.

[2] See. Paroissien, ‘Victims or Vermin?: Contradictions in Dickens’ Penal Philosophy’ and Grass, Sean C., ‘Great Expectations, Self-Narration and the Power of the Prison’, in ibid, Alber, Jan and Lauterbach, Frank, (eds.), Stone of Law, Bricks of Shame, pp. 25-45, 171-190.

[3] This was especially evident in the literature of Irish nationalism; see, for example, Mitchel, John, Jail Journal, or, Five years in British prisons, (Office of The Citizen), 1854 and Clarke, Thomas James, Glimpses of an Irish Felon’s Prison Life, (Maunsel & Roberts), 1922, pp. 1-41.

[4] Harris, Frank, Oscar Wilde: His Life and Confessions, 2 Vols. (The author), 1916, Vol. 2, pp. 223-250.

[5] Wilde, Oscar, The Ballad of Reading Gaol, (T.B. Mosher), 1907, initially published anonymously in 1897.

[6] Reade, Charles, It is Never Too Late To Mend or The Horrors of a Convict Prison, 1864. See, Barrett, Daniel, ‘It Is Never Too Late To Mend (1865) and Prison Conditions in Nineteenth-Century England’, Theatre Research International, Vol. 18, (1993), pp. 4-15.

[7] In 1921, it merged with the Prison Reform League to become the Howard League for Penal Reform. See, Rose, Gordon, The Struggle for Penal Reform: the Howard League and its Predecessors, (Stevens), 1961.

[8] Kerr, Margaret, ‘The British Parliament and transportation in the eighteen-fifties’, Australian Historical Studies, Vol. 6, (1953), pp. 29-44.

[9] Hasluck, Alexandra, Royal Engineer: a life of Sir Edmund Du Cane, (Angus and Robertson), 1973.

[10] See, Tomlinson, M. Heather, ‘Penal Servitude 1846-1865: a system in evolution’, in Bailey, V., (ed.), Policing and Punishment in Nineteenth Century Britain, (Croom Helm), 1981, pp. 126-149.

[11] Glen, William C., The Prison Act, 1865: with the other statutes and parts of statutes in force relating to goals and prisons, and an extensive index to the whole, (Shaw and Sons), 1865.

[12] All those held in prison were known as prisoners, but those who were sentenced to penal servitude (hard labour) or transportation were known as Convicts.

Prison reform 1835-1850

In 1835, a series of reports was made by a House of Lords’ Committee on the State of Gaols containing appendices setting out much detailed information including gaols controlled by municipal corporations. These reports informed the drafting of the Prisons Act 1835 ‘for effecting greater uniformity of practice in the government of the several prisons in England and Wales’. The Act empowered Lord John Russell, the Home Secretary to establish a prison Inspectorate of five with only limited powers to inspect local prisons. [1] These were required to make an annual report for each of the establishments visited for the Home Secretary to present to parliament. The reports were initially divided between four districts (Home, Northern and Eastern, Southern and Western and Scotland with Northumberland and Durham), but this was reduced in 1853 to three (Northern, Midland and Southern), and to the Northern and Southern in 1863.

Colonial opposition to transportation built up in the 1830s and 1840s and this paralleled the emerging dominance of slightly different concepts of prison discipline from Westminster, the separate and silent systems.[2] Reformers discovered the prison as a place to teach order and discipline to the offenders, who were perceived as a fundamental threat to the stability of society. The basic idea was to hold prisoners in solitude to shield them from the supposed contaminating influence of other convicts. Being left in completely silence with only the company of one’s conscience and the Bible was to bring about the spiritual renewal of the offender. Also, a strict diet of work and military discipline would help to turn them into law-abiding citizens. Prison building aimed at transforming the prison from a physically and morally filthy place of confinement into a clean and rationally functioning reform-machine. Before 1830, attempts to enforce ‘solitude’ by separating prisoners in gaols had been largely unsuccessful. However, from the 1830s, separate confinement became an effective national policy largely because of the combination of new forms of state power through discipline, government and law with the notion of geographical uniformity. The connections between state power and effective centralised uniformity help to explain why the ‘separate system’ rather than alternative regimes was widely supported by prison reformers in the 1830s and 1840s and why it continued to be the lynchpin of penal policy even after its reformative claims had been rejected.[3]

The initial, practical application of the silent and separate systems occurred in the United States in the 1820s.[4] The Auburn system, also known as the New York System, evolved during the 1820s at Auburn Prison. Convicts worked during the day in groups and were kept in solitary confinement at night, with enforced silence at all times. This ‘silent’ system promised to rehabilitate criminals by teaching them personal discipline and respect for work, property and others. The ‘separate’ system, by contrast, was based on the principle of keeping prisoners in solitary confinement.[5] The first prison built according to the separate system was the Eastern State Penitentiary in 1829 in Philadelphia, Pennsylvania and its design was later copied by more than 300 prisons worldwide. Its revolutionary system of incarceration, dubbed the ‘Pennsylvania System’ encouraged separation of inmates from one another as a form of rehabilitation.[6] This was the basic idea behind the separate system favoured in the 1839 Prisons Act.[7] A group of experts, notably William Crawford a leading figure in the Prison Discipline Society and Reverend Whitworth Russell formerly chaplain at Millbank, advocated the separate system.[8] Lord John Russell, somewhat hesitantly, authorised the construction of a new national prison in London and Captain Joshua Jebb, subsequently appointed Surveyor-General of Prisons in 1846 and favourably disposed to the separate system, was entrusted with the design.[9] The result was the opening of Pentonville in 1842.[10]

The objective of such a prison or ‘penitentiary’ was that of penance by the prisoners through silent reflection in separate cells. At exercise time each prisoner held on to a knot on a rope; the knots were 4.5 metres apart so that prisoners were too far apart to talk. They wore a mask, the ‘beak’, when they were moved around the building so that anonymity was preserved. At the required church services each convict was confined to a separate box so that communication with fellow inmates was all but impossible. The plan was for the solitary confinement and anonymity of Pentonville to last for 18 months before a man was transported. It was believed that, thrown in upon themselves, in the quiet, contemplative state of the solitary cell, convicts, assisted by their Bibles and the ministrations of the chaplain would come to a realisation and repentance of their wrong doing.

It cannot be questioned, then, on grounds of reasoning, independent of experience, that the Separate system is better calculated to promote that great object of Prison Discipline — the reformation of the offender.[11]

The problem was that not every convict was quite so malleable; some assaulted warders, other developed serious psychological disorders or attempted suicide. Between 1842 and 1850, 55 prisoners in Pentonville went mad, 26 had nervous breakdowns and three committed suicide.[12] By the end of the 1840s, even the annual reports of the prison’s commissioners were compelled to admit that there were problems with the system.[13]

In the ‘silent system’ prisoners were still confined to their cells for most of the first nine months and twere forbidden from communicating with other prisoners. Prisoners who committed an offence could be put on a diet of bread and water, or chained up or whipped. The main elements of the regime were ‘hard labour, hard fare and a hard board’. Gone was any idea about useful or saleable work. Hard labour was intended to be hard and deliberately pointless. There were various kinds of hard labour. The use of the treadmill on which prisoners did ten minutes on and five minutes off for several hours. Oakum-picking involved separating out the fibres of old ships’ ropes so they could be re-used. The crank was usually in the prisoner’s cell. The warder could see how many revolutions the prisoner had made. Finally shot-drill was where heavy cannon balls were passed from one to another down a long line of prisoners. The food or ‘hard fare’ was deliberately monotonous. Hard beds replaced hammocks.[14]

The initial, optimistic logic of the separate system, together with pressure form the Home Office for national uniformity led some local authorities to establish the system in existing or purpose-built prisons. However, the operation of the silent system did not need large-scale improvement or reconstruction of prison buildings and also allowed prisoners to labour in association. Bedfordshire justices, for example, originally ruled out reform of Bedford gaol on the grounds of cost and when they did decide to rebuild they faced vociferous protests from ratepayers. Crawford and Whitworth Russell both died in 1847 removing the two most ardent advocates of the separate system. It had never been implemented across the country with the uniformity and rigour that they had wished leading to a mixture of both systems. However, within ten years the debate on prisons had shifted significantly and the issue was not whether the system should be silent or separate but whether the whole penal system was sufficiently severe. [15]

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[1] Stockdale, E. ‘Short History of Prison Inspection in England’, British Journal of Criminology, Vol. 23, (3), (1983), pp. 209-223.

[2] Molesworth, William, Report from the Select Committee of the House of Commons on Transportation: together with a letter from the Archbishop of Dublin on the same subject, and notes, (H. Hooper), 1838, Ritchie, John, ‘Towards ending an unclean thing: The Molesworth committee and the abolition of transportation to New South Wales, 1837-40’, Australian Historical Studies, Vol. 17, (1976), pp. 144-164 and Townsend, N., ‘The Molesworth Enquiry: Does the report fit the evidence’, Journal of Australian Studies, Vol. 1, (1977), pp. 33-51.

[3] Ogborn, Miles, ‘Discipline, Government and Law: Separate Confinement in the Prisons of England and Wales, 1830-1877’, Institute of British Geographers, New Series, Vol. 20, (3), (1995), pp. 295-311.

[4] Gray, Francis C., Prison Discipline in America, (Charles C. Little and James Brown), 1847, Adshead, Joseph, Prisons and Prisoners, (Longman, Brown, Green and Longman), 1845 and Dix, Dorothea Lynde, Remarks on Prisons and Prison Discipline in the United States, (Kite), 1845 provide an interesting comparison of the American and British systems.

[5] Forsythe, W.J., ‘The beginnings of the separate system of imprisonment 1835-1840’, Social Policy & Administration, Vol. 13, (2), (1979), pp. 105-110 and ‘The Aims and Methods of the Separate System’, Social Policy & Administration, Vol. 14, (1980), pp. 249-256. See also Field, John, Prison discipline: and the advantages of the separate system of imprisonment, with a detailed account of the discipline now pursued in the new County Gaol, at Reading, 2 Vols. (Longman, Brown, Green, and Longmans), 1848 and Jebb, Joshua, Observations on the Separate System of Discipline submitted to the Congress assembled at Brussels, on the subjects of Prison Reform, on the 20 September 1847, (W. Clowes and Sones), 1847.

[6] Teeters, N.K. and Shearer, J.D., The Prison at Philadelphia: the separate system of penal discipline, 1829-1913, (Temple University Press), 1957 and Sellin, T., ‘The Origin of the ‘Pensylvannia System of Prison Discipline’’, The Prison Journal, Vol. 50, (1970), pp. 13-21. See also, Packard, F.A., A Vindication of the Separate System of Prison Discipline from the Misrepresentations of the North American Review, July, 1839, (J. Dobson), 1839.

[7] This was strongly expressed in Third Report of the [Prison] Inspectors, 4 Vols. (W. Clowes and Sons), 1838, Vol. 1, pp. 13-32 while the ‘futility’ of the silent system was discussed, pp. 33-34.

[8] William Crawford’s influence was felt particularly in his Report of William Crawford on the Penitentiaries of the United States, addressed to His Majesty's Principal Secretary of State for the Home Department, (Ordered, by The House of Commons, to be printed, 11 August 1834), 1834 and Extracts from the second report of [William Crawford and Whitworth Russell] the inspectors of prisons for the Home District, (William Clowes and Sons), 1838.

[9] Stockdale, E., ‘The Rise of Joshua Jebb, 1837-1850’, British Journal of Criminology, Vol. 16, (1976), pp. 164-170. See also, Jebb, Joshua, Report of the Surveyor-General of Prisons on the construction, ventilation and details of Pentonville Prison, (W. Clowes and Sons), 1844, Second Report of the Surveyor-General of Prisons, (W. Clowes and Sons), 1847 and Reports and Observations on the Discipline and Management of Convict Prisons, 1863.

[10] Tomlinson, Heather, ‘Design and reform: the ‘separate system’ in the nineteenth century English prison’, in King, Anthony D., (ed.) Buildings and Society: Essays on the Social Development of the Built Environment, (Routledge), 1984, pp. 94-119.

[11] The Christian Examiner, Vol. 40, (1846), p. 131.

[12] Thomson, J. Bruce, ‘The Effects of the Present System of Prison Disciline on the Body and Mind’, Journal of Mental Science, Vol. 12, (1866), pp. 340-348 argued that ‘the separate system of prison discipline is trying upon the mind and demands the most careful attention on the part of medical officers, inasmuch as mental diseases are most prominent among criminals in prisons...’

[13] See for example, Burt, J.T., Results of the system of separate confinement, as administered at the Pentonville prison, (Longman, Brown, Green and Longmans), 1852.

[14] Brown, Alyson, English Society and the Prison: Time, Culture and Politics in the Development of the Modern Prison, 1850-1920, (Boydell), 2003, pp. 13-31 considers prisoners’ perceptions of doing ‘time’. See also, Priestley, Philip, Victorian Prison Lives: English prison biography, 1830-1914, (Methuen), 1985.

[15] Henriques, U. R. Q., ‘The rise and decline of the separate system of prison discipline’, Past & Present, Vol. 54, (1972), pp. 61-93.

Developing a national prison system 1780-1835

The involvement of the Home Office in the administration of prisons evolved gradually during the nineteenth century until, by 1878, the Home Secretary became completely responsible for the administration of all prisons. The outbreak of the American War of Independence in 1775 ended transportation to the American colonies and created a major logistical problem for central government. The solution was the use of old sailing ships or ‘hulks’ as a ‘temporary expedient’ while government considered what to do with convicted prisoners. In 1779, legislation introduced a new concept of hard labour for prisoners in the hulks commencing with dredging the River Thames and made provision for the building of two penitentiaries. There was considerable delay in building these institutions and because transportation to Australia became possible in 1787 relieving the pressure on the hulks, it was not until 1813 that construction of convict prisons commenced under the direct responsibility of the Home Office with the penitentiary on Millbank.[1]

Millbank was designed according to principles laid down by Jeremy Bentham and he secured a contract to build it but was unable to obtaining funding. In 1813, the Home Office took over the contract and built a modified version of the prison that was completed in 1821. Initially, Millbank contained male and female convicts but legislation in 1823 limited its use to men. In the prison’s early years, sentences of five to ten years were offered as an alternative to transportation to those thought most likely to reform. Millbank was severely criticised by contemporaries especially for its dietary regime and the health of inmates.[2]

Source: Shepherd, Thomas H., and Elmes, James, Metropolitan Improvements, (Jones and Co.), 1828

Reduction in prisoners’ diets in 1822 led to an outbreak of scurvy and cholera was a problem in the early 1850s.[3] In 1843, Millbank ceased to have a penitentiary function and, until it closed fifty years later, became an ordinary prison and holding centre for men and women awaiting transportation or in the case of sick prisoners, removal to one of the ‘hulks’. Every person sentenced to transportation was sent to Millbank first, where they were held for three months before it was decided where to send them.[4] Millbank was generally regarded as a failure as a penitentiary.[5]

Home Office involvement in the building of Millbank marked a shift in penal policy and resulted in a dual system of Home Office prisons and local prisons until the two were finally amalgamated in 1878. From Peel onwards, Home Secretaries were interventionist and every government had to develop some sort of policy on the punishment of criminal offenders.[6] A prison for juveniles opened in 1839 at Parkhurst followed by Pentonville prison in 1842 that was intended as a model on which local authorities could base their own schemes. Between 1842 and 1877, 90 new prisons were built in Britain. The District Courts and Prisons Act of 1842 laid down further regulations for building and running gaols. Plans for building a new gaol, by agreement between two or more authorities, were to be submitted to the Home Secretary. If he approved them an Order in Council would be issued constituting the prison a common gaol. The Act of 1844 authorised the appointment of a Surveyor General of Prisons to advise justices on the building or rebuilding of gaols and introduced controls over the building of new prisons. This was particularly significant for the future: in the six years after the building of Pentonville fifty-four new prisons were built providing 11,000 separate cells. Most of these new prisons were modelled on the Pentonville design. The Convict Prisons Act 1850 gave the Home Secretary authority to appoint a board called the Directors of Convict Prisons that was formed to replace various boards of commssioners that had previously managed the different convict prisons, to be responsible for the Convict Prison Service.

Parallel to the development of new prisons were attempts, largely unsuccessful, to impose some standards and uniformity in the running of local prisons. After 1815, there was an increase of parliamentary interest and activity in prisons. Legislation in 1815 required returns to be made of all persons committed and of their crimes. In 1819, the Report of the Select Committee on the State and Description of Gaols and an Account Respecting Gaols, Penitentiaries etc. as to the Number of Prisoners Confined and the Management of them were published. In 1820, the Commons received Returns from Gaols of Persons Committed and a Select Committee was set up to inquire into the laws relating to prisons and its Report appeared in 1822. Following a Select Committee report, Sir Robert Peel introduced the Gaol Act in 1823 and the Prison Discipline Act the following year that laid down rules for local prisons. Earlier legislation had been mainly permissive, but the 1823 Act made central control firmer. It dealt with only 130 prisons; county gaols and those in London, Westminster and in 17 other towns. It was hoped that the authorities in charge of other gaols would either improve them voluntarily or join with county authorities to build new ones. As a result of the Act, between 30 and 40 small towns either closed their gaols or let them fall into disuse. The legislation was informed by the idea of the penitentiary and spelled out health and religious regulations, required the categorisation of prisoners and directed magistrates to inspect prisons three times a year and demanded that annual reports be sent from each gaol to the Home Office. The reports appeared from 1826 listing gaols by counties, and for each entry contain information about the number and employment of prisoners and state of the buildings. They were declared to be no longer necessary in 1858 but had ceased to appear a decade earlier. Many local gaols ignored at least some of these regulations and Peel, reluctant to antagonise local sensibilities about independence, made no attempt to impose sanctions or a national system of inspection.

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[1] Hulks continued to be used until 1859 and during the French Wars contained 70,000 prisoners, many prisoners of war. They were brought under the control of the Home Office in 1850.

[2] See, for example, the comments in Report on the discipline and management of the convict prisons, and disposal of convicts, 1852, (George R. Eyre and William Spottiswoode), 1853, pp. 58-97, ibid, Henry Mayhew and Binny, John, The criminal prisons of London, and scenes of prison life, pp. 232-273 and Reports of the Directors of Convict Prisons...For the Year 1862, (George R. Eyre and William Spottiswoode), 1863, pp. 43-94.

[3] ‘Cholera in its Relations to Sanitary Measures’, British and Foreign Medico-Chirurgical Review, Vol. 7, (1851), pp. 9-11.

[4] Holford, G.P., An account of the general penitentiary at Millbank ; containing a statement of the circumstances which led to its erection, a description of the building, etc., to which is added an appendix, on the form and construction of prisons, (C. & J. Rivington), 1828, Griffith, Arthur, Memorials of Millbank, and Chapters in Prison History, 2 Vols. (H.S. King), 1875, Vol. 1, pp. 27-70 and Wilson, David, ‘Millbank, The Panopticon and Their Victorian Audiences’, Howard Journal of Criminal Justice, Vol. 41, (2002), pp. 364-381.

[5] Ibid, Griffith, Arthur, Memorials of Millbank, and Chapters in Prison History, Vol. 1, pp. 289-310 puts the case against the penitentiary.

[6] Forsythe, B., ‘Centralisation and Local Autonomy: The Experience of British Prisons 1820-1877’, Journal of Historical Sociology, Vol. 4, (1991), pp. 317-345.

Three prison reformers: Sir George Paul, Elizabeth Fry and Jeremy Bentham

Sir George Onesiphorus Paul was made High Sheriff of Gloucester in 1780 and reacted to the local prisons with much the same disgust as John Howard.[1] Howard’s report on Gloucester prison was damning. Paul realised that he could not alter this and that the only option was to build a new prison. The Gloucestershire Act 1785 gave him the power to do this. He worked with an architect, William Blackburn, to turn his ideas into reality. The new prison had to be secure. The wall was 5.4 metres high with spikes on top. The buildings were arranged so the gaolers could easily see what was going on. It had to be healthy. People believed that disease was caused by bad air, so the gaol was built to suck in fresh air through large gateways, with open portcullises. The large, heated cells were reached by open balconies. Howard had admired the ‘lazarettos’ – isolation wards for health checks at the entrances of many Mediterranean ports. Paul put such a ward at the entrance to the gaol. The gaol had a house of correction for minor offenders, a gaol for prisoners on remand awaiting trial, and a penitentiary for those who had committed serious offences, with male and female sections for each. Paul paid attention to the rules, as well as the building.

There was a paid Governor, a chaplain and a surgeon who visited the sick each day and inspected every prisoner each week. Prisoners were to be reformed through work, education and religion. Of they could not read they were taught and given religious books. Staff had to keep detailed journals on what prisoners said and did. They had to wear a yellow and blue uniform and keep clean; they were not allowed pets or to play games. They were, however well fed and not kept in irons. They spent long periods on their own, thinking about their life of crime. This separation of prisoners from each other was later taken further but at Gloucester it was only for the first nine months of the sentence. Paul’s prison and rules became a model for other prisons.

Ground plan of Shrewsbury Prison 1831

Women’s prisons were probably worse than men’s. There was the same chaotic mixing of those awaiting trial and those convicted. Women prisoners were just as dependent on the gaoler for everything. Women’s prisons usually had male gaolers, who often exploited the women. Women convicts were the outcasts of society. The ideal woman at the time was an angel, a homebuilder, wife and mother, gentle and virtuous. Women in prison had obviously broken this code. Few people pitied them. However, there was no shortage of women prisoners. In general, fewer women than men committed crimes. However, for some offence, like drunkenness, numbers of men and women were roughly equal and they were not far behind for murder.

Elizabeth Fry (1780-1845) was a Quaker philanthropist and one of the major promoters of prison reform in Europe, who also helped to improve the British hospital system and the treatment of the insane.[2] The daughter of a wealthy Quaker banker and merchant, she married Joseph Fry, a London merchant in 1800 and combined her work with the care of a large family. Unstinting in her attendance of the poor, she was acknowledged as a ‘minister’ by the Quakers or Society of Friends (1811) and later travelled in Scotland, northern England, Ireland, and much of Europe. Quakers believe that there is something of God in everyone and that has drawn many into working with prisoners.

Just before Christmas 1813, Elizabeth Fry visited the women’s section of Newgate Prison. She was shocked with what she saw. There were 300 women crammed into three rooms. Some were ill but could not afford treatment. Some were freezing but could not afford to pay for bedding. Some were fighting’. There were many children among them. She never forgot the sight of two women fighting over a dead baby’s clothes. She returned the next day with baby clothes and clean straw bedding. After these had been handed out she began to pray and many of the convicts joined her. She did not return to the prison until 1816. The chaplain and the gaoler both warned against going in. This time she appealed to the women to do something for their children. Her lack of fear and her directness made a huge impression and they started a school for the prison children. Elizabeth Fry formed a group of mainly Quaker women to visit the prison daily and make changes in the way it was run. A matron was appointed to run the women’s section, the women were supplied with materials to work at sewing and knitting to be sold and Bible readings were held. In 1818, Elizabeth Fry gave evidence to a Parliamentary Committee. This reported that her efforts had made the women’s section in Newgate an orderly and sober place.

Her courage in working with women prisoners, her religious motives and her success made her famous. [3] She was often asked to address meetings and was summoned to meet Queen Victorian in 1840. The Gaols Act of 1823 took up some of her many ideas: gaolers had to be paid, prisoners were to be separated into categories and women had to have female gaolers and warders. However, the Act did not go as far as she wished in forcing prisons to try to reform their inmates. Her own reforms cost money and she knew that many prisons would not take them up unless they were forced to.

Even in her lifetime her suggestions were increasingly acted upon throughout most of Europe. Later in her life she travelled widely in Europe. Everywhere, especially in France and Ireland, she was welcomed and listened to with respect but this was not the case in England. [4] Fry spoke out against the Separate System arguing that her reforms gave women a sense of dignity and perhaps an honest skill but did not break people’s spirits. Edwin Chadwick was highly critical of this saying that the reforms of Howard and Fry encouraged people to get into prison

...the prisons have been so reformed…as to attract vagrants and others who preferred their comfort to labour.[5]

Elizabeth Fry died in 1845 and upper-class women could no longer wander casually into prisons and meddle in how they were run. However, three ideas still present in British prisons owe their origins to her: separate women’s prisons with a female staff; volunteer prison visitors and a belief that prison is a place from which people can emerge rehabilitated.[6]

The late-eighteenth century gave rise to a prison that was never actually built, at least not exactly as its creator intended: Jeremy Bentham’s Panopticon, designed by the British philosopher in 1791 to serve as a place of incarceration intended to control prisoners by making them feel that they were under constant surveillance. According to Michel Foucault, whose Discipline and Punish: The Birth of the Prison (1975) used the idea of the Panopticon as a model for less tangible forms of social control, the Panopticon was the basis of all discussions of prison reform during the first half of the nineteenth century. [7]

Jeremy Bentham’s design for a ’panopticon’ style prison

The French Wars between 1793 and 1815 involved government departments in the organisation and administration of large numbers of prisoners on British soil. Even though central government became increasingly involved in penal administration and reform, Benthamism and Quakerism were two of the main pressures for penal reform during the early decades of the nineteenth century. However, there were important differences between Bentham’s and Fry’s ideas and those of their supposed supporters.[8] Both Bentham and Fry supported the classification of prisoners, productive labour in prisons and the maintenance of healthy prison conditions. Their supporters, however, were more pragmatic concerned with solitary confinement and hard labour as the focus of their desire to deter crime. In many respects, this was a generational difference. Bentham and Fry were reformers, like Howard, concerned with the salvation of prisoners while Benthamites and Quakers active in the 1830s were largely concerned with reducing levels of crime and by 1835 they had largely rejected Bentham’s and Fry’s prison reform ideas.[9]

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[1] Whiting, J.R.S., Prison reform in Gloucestershire, 1776-1820: a study of the work of Sir George Onesiphorus Paul, Bart., (Phillimore), 1975 and Cooper, R.A., ‘Ideas and Their Execution: English Prison Reform’, Eighteenth-Century Studies, Vol. 10, (1), (1976), pp. 73-93

[2] Fry, Elizabeth Gurney, Fry, Katharine and Cresswell, Rachel Elizabeth, Memoir of the Life of Elizabeth Fry: With Extracts from Her Journal and Letters, 2 Vols. (J. Hatchard and Son), 1848, Kent, J.H.S., Elizabeth Fry, (Batsford), 1962, Hatton, Jean, Betsy: the dramatic biography of prison reformer Elizabeth Fry, (Monarch), 2005, Skidmore, Gil, (ed.), Elizabeth Fry: a Quaker life: selected letters and writings, (Altamira Press), 2005, Isba, Anne, Excellent Mrs Fry: The Unlikely Heroine, (Continuum), 2010 and Summers, Anne, ‘Elizabeth Fry and mid-nineteenth century reform’, in ibid, Creese, Richard, Bynum, William F., and Bearn, J., (eds.), The health of prisoners : historical essays, pp. 83-101.

[3] See Fry, Elizabeth, Observations on Visiting, Superintendence And Government of Female Prisoners, (J. and A. Arch), 1827.

[4] For example, Elizabeth Fry inspected the state of Irish gaols in 1826; see comments in Fry, Elizabeth and Gurney, Joseph John, Report addressed to the Marquess Wellesley, Lord Lieutenant of Ireland, respecting their late visit to that country, (Cumming), 1827.

[5] Ibid, Finer, S.E., The Life and Times of Sir Edwin Chadwick, p. 165 citing an unpublished manuscript for the Constabulary Commission Report of 1839.

[6] Downing, Kevin and Forsythe, Bill, ‘The Reform of Offenders in England, 1830-1995: A Circular Debate’, Criminal Justice History, Vol. 18, (2003), pp. 145-162 and Forsythe, W.J., The Reform of Prisoners, 1830-1900, (Routledge), 1987.

[7] For Bentham’s vision see, Bentham, Jeremy, Panopticon or the inspection house: Containing The Idea of a New Principle of Construction applicable to any Sort of Establishment, in which Persons of any Description are to be kept under Inspection: And In Particular To Penitentiary-Houses, Prisons, Houses Of Industry, Work-Houses, Poor ..., (T. Payne), 1791 and Panopticon: Postscript: Containing Further Particulars And Alterations Relative To The Plan Of Construction Originally Proposed; Principally adapted to the Purpose of a Panopticon Penitentiary-House, 2 Vols. (T. Payne), 1791. Semple, Janet, Bentham’s prison: a study of the Panopticon penitentiary, (Oxford University Press), 1993 and Schofield, Philip, Utility and democracy: the political thought of Jeremy Bentham, (Oxford University Press), 2006, pp. 80-83, 109-111, 254-260 provide critique.

[8] Cooper, R.A., ‘Jeremy Bentham, Elizabeth Fry and English Prison Reform’, Journal of the History of Ideas, Vol. 42, (4), (1981), pp. 675-690.

[9] Moore, J.M., ‘Penal reform: a history of failure’, Criminal Justice Matters, Vol. 77, (1), (2009), pp. 12-13 has some interesting if brief comments on Howard and Fry

Clash at Longueuil 17 November 1837

At dawn on 17^th November 1837, constable Mâlo and a detachment of 18 volunteers of the Royal Montreal Cavalry arrived at the village of Saint-Jean.[1] Their orders were to arrest the notary Pierre Paul Demaray and doctor Joseph Davignon, both accused of having taken part several weeks earlier in the assembly at Saint-Charles. Caught in bed, the two men were bound hand and foot and carried on the floor of a wagon escorted by the cavalry along the road to Chambly en-route for Montreal. This was not the quickest route to Montreal and lengthened the journey by about fifteen miles.[2] Amédée Papineau commented that

Au lieu de se rendre tranquillement à Montréal par la route directe du chemin à lisse, afin de semer la terreur dans la campagne, ils résolurent de les conduire par Chambly & Longueuil, distance de 36 milles.[3]

Filteau supported this view suggesting that there was a clear intention ‘to sow terror’ by a military deployment in an area that was already disturbed. [4] This interpretation seems reasonable since on 7 November, shortly after the riots in Montreal and ten days before the arrests on 17 November, Colborne had written to Governor Gosford that he should send troops south of Montreal ‘to reassure the loyal subjects of this region and to dissuade the factions from taking part in new acts of violence.’[5] It appears that the detour by the cavalry was part of the strategy Colborne has planned ten days earlier and that the decision to make the arrests may have been a deliberately provocative act.

Despite the hour, the arrests did not pass unnoticed. As soon as Patriotes heard the news, they rushed to Verchères where Papineau was staying. Papineau told them to: ‘fire upon anyone found in the act of forcibly carrying off any of the radical party’, and they lost no time in following his advice. [6] The news spread through the areas close to the village and by around 6 am there were already about twenty men barring the road near Chambly.[7] However, when faced by the superior force of cavalry the men dispersed but had already sent a messenger to the Patriotes in Longueuil on the route of the convoy. A little later militia captain Joseph Vincent de Longueuil also learned of the arrests and decided to alert Bonaventure Viger de Boucherville[8], an influential militia captain who gathered together a force of 40 according to Filteau or 150 according to Greer to intercept the cavalry. [9] The armed Patriotes were not far from Longueuil on the Chambly road. Chambly itself had been reinforced by a detachment of the 32^nd Regiment sent by Colborne and the Attorney-General Richard Ogden who were conscious of the dangers facing the convoy in the Richelieu valley. [10]

Around 9 am, the cavalry was about two miles from Longueuil when it was ambushed by Viger and his men.[11] There is some disagreement about who fired first: Filteau said it was the cavalry while Greer said it was the Patriotes.[12] During the ambush, Viger was wounded in the shoulder and hand.[13] Among the loyalists, Ermatinger was hit by buckshot in his cheek and shoulder and two soldiers, Joshua Woodhouse and John P. Ashton were seriously wounded by shot.[14] John Molson narrowly avoided death when a ball passed close to his head and took off his cap. The cavalry was routed and dispersed across the fields. Viger and his men were then able to free the two prisoners. Mâlo hid in a local farm until he was able to make his escape but Ermatinger quickly returned to Montreal to submit his report of the incident.[15]

The following day, Colborne ordered lieutenant-colonel George Wetherall, accompanied by four companies of the 1^st Royal Scots and a troop of the Royal Montreal Cavalry to find and arrest the Patriotes involved in the action.[16] The Montreal Courier made the Loyalist position very clear: ‘Blood has been shed at last by rebels who now stand unmasked and fairly subject to the worst penalties of the laws they have insulted’. [17] The ambush at Longueuil marked the opening action in the armed confrontation between the Patriotes and the forces of the Crown in the autumn of 1837.

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[1] Ibid, Senior, Elinor Kyte, Les habits rouges et les Patriotes, p. 84.

[2] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 313.

[3] Ibid, Fortin, Réal, La guerre de Patriotes: Le Long du Richelieu, p. 30.

[4] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 313.

[5] Ibid, Senior, Elinor Kyte, Les habits rouges et les Patriotes, p. 78.

[6] Cit, Senior, Elinor Kyte, Les habits rouges et les Patriotes, p. p. 54.

[7] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 313.

[8] ‘Bonaventure Viger’, DCB, Vol. 10, p. 694.

[9] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 314; ibid, Greer, Allan, The patriots and the people, p. 269.

[10] Ibid, Senior, Elinor Kyte, Les habits rouges et les Patriotes, p. 73.

[11] Ibid, Fauteux, Aegidius, Les patriotes de 1837-1838, p. 38.

[12] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 314; ibid, Greer, Allan, The patriots and the people, p. 269.

[13] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 314.

[14] Ibid, Senior, Elinor Kyte, Les habits rouges et les Patriotes, p. 84.

[15] Ibid, Filteau, Gérard, Histoire des Patriotes, p. 315.

[16] Ibid, Senior, Elinor Kyte, Les habits rouges et les Patriotes, p. 93.

[17] The Courier, 18 November 1837.

Prison reformers: John Howard

Individual reformers had criticised the system of criminal punishment based on capital punishment and transportation since the 1770s. They had two motives. Prisons were cruel and unfair. Many of the reformers were Evangelicals who pointed out that convicts were God’s creatures too. People’s lives were being wasted, languishing in gaols when they could change their ways and become decent citizens. Goals were inefficient. Over half of the prisoners were either debtors or had served their sentence but could not afford to pay the gaoler the release fee. At Newgate Prison in 1729, the release fee was 34p. Sir William Eden[1] published the influential Principles of Penal Law in 1771 and John Howard The State of the Prisons in England and Wales in 1777. In spite of the enthusiastic reception given to the work of Howard, much influenced by the writings of Cesare Beccaria[2] and the boost given to reformers, change remained slow and continued to depend on the zeal and initiative of private individuals rather than on any government direction. Howard, Sir George Paul, Elizabeth Fry and Jeremy Bentham were the most influential.

John Howard (1726-1790) was an English philanthropist and reformer in the fields of penology and public health. [3] On his father’s death in 1742, Howard inherited considerable wealth and travelled widely in Europe. He then became High Sheriff in Bedfordshire in 1773. As part of his duties, he inspected Bedford Gaol and was appalled by the unsanitary conditions there. He was also shocked to learn that the jailers were not salaried officers but depended on fees from prisoners. He also found that some prisoners had been acquitted by the courts but were kept in prison because they had not paid their release fees. In 1774, Howard persuaded the House of Commons to pass two acts that stipulated first that discharged persons should be set at liberty in open court and that discharge fees should be abolished and secondly, that justices should be required to see to the health of prisoners. Years afterward, however, Howard complained that the acts had not been ‘strictly obeyed.’ Howard continued to travel widely, touring Scotland, Ireland, France and the Netherlands, Germany, and Switzerland, often-visiting local prisons. He was influential in legislation in 1779 that authorised the building of two penitentiary houses where, by means of solitary confinement, supervised labour and religious instruction, the reform of prisoners might be attempted. The Penitentiary Act was an ambitious piece of legislation, designed to impose a national scheme for the punishment of offenders that could serve as an acceptable substitute for the temporary suspension of transportation occasioned by the American revolutionary war .[4] This act, however, like those of 1774, was never effectively enforced. He spent the last years of his life studying means of preventing plague and limiting the spread of contagious diseases. Travelling in Russia in 1790 and visiting the principal military hospitals that lay en route, he reached Kherson in Ukraine. In attending a case of camp fever that was raging there, he contracted the disease and died.

The power of Howard’s representation of prisons and prison life in The State of the Prisons in England and Wales published in 1777 has led to a one-dimensional view of Hanoverian prisons grounded in their filth, petty corruption and insecurity and as places of contagious moral degeneration.[5] It neglected the attempts by early-eighteenth century legislators and some magistrates to introduce a measure of penal reform. Legislation in 1700 and 1720 allowed magistrates to levy county rates to meet the cost of building new gaols and, before Howard’s intervention there was a sporadic prison rebuilding programme. Howard’s influence consisted less in the novelty of his ideas as in the powerfully made case for reform that contributed to an existing debate on prison conditions. Elizabeth Fry, for example, was critical of his failure to address the issue of rehabilitation. Success was ultimately the result of the work of others especially Dr John Coakley Lettsom and James Neild, both of them Quakers.[6] It also galvanised widespread if embryonic local reform initiatives like those in Gloucestershire.

Howard commented favourably on local prison building in Hertfordshire where local magistrates used their power to raise county rates to build a new prison that was opened in 1779 and on the work of Lancashire magistrates in the 1770s that resulted in the reconstruction of Lancaster gaol.[7] The late-eighteenth century saw a vigorous local movement for reform led by local magistrates that resulted in improvements in both the management and fabric of local gaols funded by ratepayers.[8]

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[1] Draper, Anthony J., ‘William Eden and leniency in punishment’, History of Political Thought, Vol. 22, (2001), pp. 106-130 and Bolton, G.C., ‘William Eden and the convicts, 1771-1787’, Australian Journal of Politics & History, Vol. 26, (1980), pp. 30-44.

[2] On Beccaria see Bellamy, Richard, (ed.), On Crimes and Punishments and Other Writings, (Cambridge University Press), 1995. Bellamy’s introduction provides a brief biographical study as well as examining the significance of Beccaria’s writings.

[3] Brown, James Baldwin, Memoirs of the public and private life of John Howard, the philanthropist, (T. and G. Underwood), 1818, 2^nd ed., 1823 and Field, John, The life of John Howard: with comments on his character and philanthropic labours, (Longman, Brown, Green, and Longmans), 1850 remain useful sources. See also, Howard, D.L., John Howard: prison reformer, (C. Johnson), 1958, Gibson, John, John Howard and Elizabeth Fry, (Methuen), 1971, Ireland, Richard W., ‘Howard and the paparazzi: painting penal reform in the eighteenth century’, Art, Antiquity and Law, Vol. 4, (1999), pp. 55-62, Porter, Roy, ‘Howard’s beginning: prisons, disease, hygiene’, in Creese, Richard, Bynum, William F., and Bearn, J., (eds.), The health of prisoners: historical essays, (Rodopi), 1995, pp. 5-26 and Morgan, Rod, ‘Divine philanthropy: John Howard reconsidered’, History, Vol. 62, (1977), pp. 388-410.

[4] Throness, Laurie, A Protestant Purgatory: Theological Origins of the Penitentiary Act, 1779, (Ashgate), 2008 and Devereaux, Simon, ‘The making of the Penitentiary Act, 1775-1779’, Historical Journal, Vol. 42, (2), (1999), pp. 405-433.

[5] England, R.W., ‘Who Wrote John Howard’s Text: The State of the Prisons as a Dissenting Enterprise’, British Journal of Criminology, Vol. 33, (1993), pp. 203-215 suggests that Howard played little role in writing his book but that the three (or possibly more) men who gave Howard extensive editorial help was not acknowledged since they were active Dissenters against the Church of England.

[6] See Neild, F.G., ‘James Neild (1744-1814) and prison reform’, Journal of the Society of Medicine, Vol. 74, (1981), pp. 834-840.

[7] DeLacey, Margaret, Prison Reform in Lancashire, 1700-1850: a study in local administration, (Stanford University Press), 1986, pp. 70-152

[8] This was not without opposition, see Brown, Susan E., ‘Policing and Privilege: The Resistance to Penal Reform in Eighteenth-Century London’, in Goldgar, Anne and Frost, Robert I., (eds.), Institutional Culture in Early Modern Society, (Brill), 2004, pp. 103-132.

Revising the Bloody Code

The debate between the Whigs and the Tories regarding law reform in the early-nineteenth century centered on the law’s broad application of capital punishment for both violent and property crimes.[1] The Whig reformers argued for graduated sentences tailored to the severity of offenses, so as to project the image of law that is applied fairly, impersonally, and impartially. The opponents of criminal law reform had a more coherent case than contemporaries or subsequent historians have given them credit. Anti-reformers insisted that justice was not a lottery and that judicial discretion was sensible and conscientiously practised. Reformers could point to injustices but anti-reformers could point to many examples that showed the system working with mercy and moderation. The strongest argument of traditionalists concerned whether there could ever be a significant measure of certainty on the way that a punishment was meted out to fit a particular crime. The Criminal Law Commissioners appointed in 1833 ran into major problems when they tried to establish a rational system of sentencing. In their Second Report in 1836, they specified four overall classes of crime each with two alternative penalties; by 1839, there were fifteen overall classes of crime each with a far greater range of penalties and by 1843, the scale of penalties had reached forty-five. The attempts of the Commission to establish precise offences and to codify the criminal law eventually foundered but its eight reports published by 1849 contain the most thorough and principled examination of English criminal law ever made by an official body.

Traditionalists were defending an aristocratic and paternalistic image of justice that focused on the practice of the courts and the use of mercy. Reformers focused on existing severity and proposed an image of Benthamite impersonal justice in which the law was administered equally to all and was above the suspicion of being dependent on the discretion of the judiciary. The problems for the opponents of reform were that moderate and influential Tories like Peel were sympathetic to the reformers’ image of justice. However, what has to be recognised is the logic of the traditionalists’ case and what has to be rejected is the notion that the reformers had a far-sighted vision of nineteenth century progress that would culminate in the modern legal system.

Sir Samuel Romilly, William Owen

Government Art Collection: 16044

Reform of the criminal law began in the first decade of the nineteenth century and was associated with individual MPs such as Romilly.[2] In 1808, Romilly persuaded Parliament that convicted pickpockets should no longer be sentenced to death. Between 1810 and 1818, the House of Commons passed four Bills abolishing the death penalty for stealing 5 shillings from a shop but all were rejected by the House of Lords. In 1818, a House of Commons committee was appointed to report on capital offences and as a result some obselete laws were repealed. In the ten years 1815-1824, an average of 89 people were hanged each year, 16 for murder. The death penalty began to lose its central role in the criminal justice system with Peel‘s rationalisation of the law even though numbers of capital convictions continued to rise roughly in line with the rise in criminal statistics until the early 1830s. Between 1823 and 1830, the death penalty was abolished for over a hundred offences and in the following decade was removed from other offences: in 1832, from house-breaking, horse-stealing, sheep-stealing and coining false money; and in 1837, from all offences except murder, attempted murder and treason. The number of capital offences continued to be reduced in the 1830s and early 1840s and after this it was rare for anyone to be executed for any offence other than murder. In 1845-1854, on average nine people were hanged each year, all for murder.In 1861, the death penalty was finally abolished for attempted murder.

At the same time there were reforms of both the criminal and civil court system. In 1813, Manchester appointed stipendiary magistrates, an example followed by Liverpool in 1836, Birmingham in 1856 and Leeds three years later. Court procedures were simplified in the early 1830s and in 1836, prisoners accused of felonies were allowed to have counsel to represent them in court. The problem of imprisonment for debt was addressed in 1844 when it was abolished for amounts less than £20 and was finally abolished for all debts in 1861. This development was aided by the establishment of a system of county courts in 1846 to allow people to sue cheaply for small debts. The mid-1870s saw a major reform of the court system and in 1879, the Director of Public Prosecutions was appointed to organise the prosecution of serious criminal cases.

The hardening attitude towards prison discipline coincided with further legal limitations on capital punishment and the final shift of physical punishment away from the public eye. In 1861, Parliament abolished the death penalty for all crimes other than murder and high treason. In 1856, a Select Committee recommended the ending of public executions and a Royal Commission made a similar suggestion ten years later. Why end public executions? The deterrent effect of public execution was recognised but contemporaries argued that this would still remain if executions were held in private and was far outweighed by the public order problems posed by the large crowds executions generated.

The mid-Victorians increasingly took the view that public executions were morally wrong. Even if people believed in the deterrent effect of hanging, they did not believe it was right for men and especially women and children to see a person hanging at the end of a rope. The last public execution took place outside Newgate on 26 May 1868.[3] The removal of the convict and of punishment from the public gaze robbed the felon of any moment of glory or martyrdom. It was also in keeping with notions of dignity and decorum so important to Victorian sensibilities.

With the decline in the use of the death penalty, prisons of different varieties had a more central role to place in the punishment of offenders, though until the middle of the century transportation also remained an option for dealing with those deemed serious offenders. The transportation of convicts to English colonies had its origins in the late-sixteenth century. [4] Parliament gave magistrates the power to exile rogues and vagabonds ‘beyond the seas’ in 1597 and James I authorised pardons for condemned felons on condition that they went to the New World. From 1654 onwards, some prisoners who received a reprieve from the death sentence were sent to work on the plantations in North America and the West Indies and in 1678, Parliament approved the idea of sending prisoners to serve their sentences in the American colonies of Virginia and Maryland and in the West Indies where they could be used in developing those lands. However, it was not until the Transportation Act 1718 that Britain systematically adopted foreign exile as a punishment for serious crime. Between 1719 and 1776 some 50,000 people were transported. Transportation to the American colonies effectively ended in 1775 with the American War of Independence. [5] Such was the desparation of the British government over what to do with convicted felons that in the mid-1780s it decided to establish a penal colony in Australia. [6]

From the foundation of New South Wales in January 1788 until 1867, transportation was an important, though increasingly contentious, feature of colonial life. [7] More than 187,000 convicts were sent to Australia, most after 1815.

The Old Chartist, Joseph Swain, 1862

‘The old man, returning home from transportation, leans on a great stone by the brook side and watches a brown water rat.’

There was growing opposition to transportation in Britain and Australia and in 1840, transportation to New South Wales was discontinued but continued to Tasmania until 1853 and Norfolk Island until 1856. In 1849, transportation started to Western Australia.[8]  Long-term transportation was retained in the 1853 Penal Servitude Act but finally abolished the 1857 Penal Servitude Act. Technically, transportation was replaced by penal servitude, a term of imprisonment that usually included hard labour and was served in British gaols. Ranging from 3 years to life, it was for those who would have been transported for less than 14 years and could also be used as an alternative sentence for those liable to transportation of 14 years or more. In practice, convicts were transported to Western Australia as late as 1867. With hangings greatly reduced and transportation slowed and ten ended, prison was now the main punishment for criminals in Britain.[9]

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[1] See, McGowan, R., ‘Images of Justice and Reform of the Criminal Law in Early Nineteenth-Century England’, Buffalo Law Review, Vol. 32, (1), (1983), pp. 89-125.

[2] Hostettler, John, The politics of criminal law reform in the nineteenth century, (Rose), 1992, Ford, T.H., ‘English criminal law reform from Peterloo to Peel’, Durham University Journal, Vol. 76, (1984), pp. 205-216 and Follett, Richard R., Evangelicalism, penal theory and the politics of criminal law reform in England, 1800-30, (Palgrave), 2001.

[3] Cooper, D.D., The Lesson of the Scaffold, (Allen Lane), 1974 examines the debate about public executions. See also, McGowen, Randall, ‘Civilizing punishment: the end of the public execution in England’, Journal of British Studies, Vol. 33, (1994), pp. 257-282.

[4] Innes, Joanna, ‘The role of transportation in seventeenth and eighteenth century English penal practice’, in Bridge, Carl, (ed.), New Perspectives in Australian History, (Sir Robert Menzies Centre for Australian Studies, Institute of Commonwealth Studies, University of London), 1990, pp. 1-24.

[5] Ekirch, A. Roger, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775, (Oxford University Press), 1987 and Morgan, Gwenda and Rushton, Peter, Eighteenth-Century Criminal Transportation: The Formation of the Criminal Atlantic, (Palgrave Macmillan), 2004 provide a detailed account of the operation of the transportation system.

[6] Martin, Ged, (ed.), The Founding of Australia: The Argument about Australia’s Origins, (Hale and Iremonger), 1978, provides a convenient collection of materials on why Australia was chosen.

[7] Rudé, G., Protest & Punishment: The Story of the Social and Political Protesters transported to Australia 1788-1868, (Oxford University Press), 1978 and Criminal and Victim: Crime and Society in Early Nineteenth-Century England, (Oxford University Press), 1985, Shaw, Alan, Convicts and the Colonies: a study of penal transportation from Great Britain and Ireland to Australia and other parts of the British Empire, (Faber), 1966 and Hughes, R., The fatal shore: a history of the transportation of convicts to Australia, 1787-1868, (Collins Harvill), 1987.

[8] Ibid, Shaw, Alan, Convicts and the Colonies and Robson, L.L., The Convict Settlers of Australia, (Melbourne University Press), 1976, and Nicholas, Stephen, (ed.), Convict workers: reinterpreting Australia’s past, (Cambridge University Press), 1988 examine the process and the participants. Smith, Babette, Australia’s birthstain: the startling legacy of the convict era, (Allen & Unwin), 2008 considers why Australians are still misled by myths about their convict heritage. See also Brown, Richard, Three Rebellions: Canada 1837-1838, South Wales 1839 and Victoria, Australia 1854, (Clio Publishing), 2010, Three Rebellions: Famine, Fenians and Freedom 1840-1882, (Clio Publishing), 2012 and Rebellion in the British Empire, (Clio Publishing), 2013.

[9] Smith, D., ‘The demise of transportation: mid-Victorian penal policy’, Criminal Justice History, Vol. 3, (1982), pp. 21-45. See also, Willis, James J., ‘Transportation versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State’, Law & Society Review, Vol. 39, (1), (2005), pp. 171-210.