Punishment

THE CHANGING SHAPE OF CORPORAL PUNISHMENT

The punishments at Kingston raise questions about how early reformers in both Canada and the United States viewed corporal punishment. Did they not condemn such practices as a matter of principle and see them as antithetical to the reform vision? It is clear that early reformers in fact held conflicted views on violence and the necessity of corporal punishment. The ambiguity of these views often helped to perpetuate violent practices in the often uncertain and experimental first years of the penitentiary. What is also clear is that milder reform voices, such as those of Charles Duncombe in Upper Canada and Charles Eddy in New York, were drowned out by political calls for harsher penitentiary regimes, which were implemented in both locations. The 1849 Brown Commission, however, did change the use of punishment in Canadian penitentiaries: while prisons in other (primarily American) jurisdictions continued to resort to widespread and brutal corporal punishment, the violence at Kingston was dramatically curtailed because of the attention generated by the commission.

The second Brown Commission report provided a blueprint for reforming the disciplinary regime at Kingston. The commissioners argued, “It is conceded now, as an admitted principle in prison discipline, that there is no occasion to govern solely by terror, and in the best regulated institutions the lash is seldom, if ever, resorted to.”⁴ In fact, prisons that dispensed with corporal punishment entirely were rare. In the years before 1850, only very experimental regimes such as Maconochie’s on Norfolk Island abolished corporal punishment, and these experiments were routinely dismissed as failures. Thus, one of the central contradictions in the reform movement was that while corporal punishment and violence were abhorred, there was no sustained movement to eliminate such practices.

The reforms that followed the Brown Commission aimed at making corporal punishment more rational, not to eliminate it. The statute that followed the commission’s reports made punishment subject to far greater bureaucratic control and medical and inspectorial oversight. The 1851 Penitentiary Act limited the number of lashes any one prisoner could receive to seventy-five. No punishments could be awarded until the day after a disciplinary report: this was intended to remove the impulses of anger and emotion. Confinement in a punishment “box” was abolished altogether, as was the corporal punishment of women and children. Even on these issues, though, there was no universal agreement, particularly outside of reform circles. The Tories split on the question while debating the new act. John A. Macdonald argued that corporal punishment must be retained for both sexes in the service of “combating insubordination.”⁵ There was general agreement on the idea that the deterrent value of corporal punishment was too important to abolish it completely. The Brown Commission report stated that with “proper management,” the punishments in the penitentiary would be “few and mild.” Corporal punishment would be used only rarely and in special circumstances. The commission detailed the circumstances under which this might happen: “There are, however, a few characters in most prisons whom too much lenity only tends to make refractory, and who are only to be ruled by bodily fear. On such persons and for such offences as seriously involve the discipline of the prison, such as assaults on the officers, it will undoubtedly be a matter of necessity, sometimes, to inflict the severe punishment of the dark cell, or failing that, of the cat.”⁶ Thus, corporal punishment was retained due to the prevailing construction of the incorrigible offender who made “severe punishment” an absolute necessity.

The 1850s and 1860s saw greatly reduced corporal punishment at Kingston Penitentiary. For example, before the meeting of the Brown Commission imposed a moratorium on corporal punishment in 1847, Kingston recorded 2,133 corporal punishments in that year. Ten years later under Warden D. A. Macdonell, there were just fifty-three.⁷ In the post-Confederation era, incidents of corporal punishment continued to fall. The yearly punishment returns demonstrate that the frequency of corporal punishment fell steadily between 1870 and 1900. Prisoners were also whipped less brutally than in the previous era. For example, at Kingston in 1875, eight inmates were punished with the cat-o’-nine-tails, with each one receiving between twenty-four and thirty-six lashes. By the late 1870s, it was more common to inflict punishments of only eight to twelve lashes. At the new penitentiaries in British Columbia and Manitoba, the wardens used corporal punishment even more sparingly. Manitoba adopted the practice of “awarding lashes” but inflicted far fewer when the actual punishment occurred. For example, in 1882 a total of 104 lashes were “awarded” to six different prisoners but only thirty-one were inflicted.

Flogging was used sparingly in the last decades of the nineteenth century. At British Columbia, no prisoners were flogged in 1882 or 1883. When three men were whipped the following year, it was after a daring escape attempt. Kingston flogged no prisoners in 1885 and 1886. St. Vincent de Paul broke the trend in this decade, being the site of the heaviest punishments under the disciplinary regime of the corrupt deputy warden Télesphore Ouimet. For example, in 1884 seven men were flogged at St. Vincent de Paul with a total of 230 lashes, more than five times the combined total of the other institutions.Apart from Ouimet’s punitive approach, corporal punishment was becoming an increasingly rare event in Canadian penitentiaries.⁸ But the fact that corporal punishment was not eliminated also hints at how entrenched it had become in penitentiary practice.

RATIONALIZING VIOLENCE

In Men of Blood, Martin Weiner argues that the nineteenth century exhibited a “civilizing offensive” in which the infliction of physical suffering was increasingly stigmatized throughout the Western world.⁹ By the 1860s, a cultural shift had brought about a legal curtailing of the rights of chastisement previously extended to masters, teachers, and even parents. Two areas of European society were most influenced by this shift. First, by the 1860s, corporal punishment in the British Navy had become subject to increased legal regulation. This was supported by a growing public sentiment against the most brutal aspects of military discipline.¹⁰ From military settings, the movement extended to factories, workhouses, and, finally, the domestic realm. The debate also raged within the world of primary education after several high-profile cases where the “correction” of pupils by their schoolmasters resulted in the deaths of punished children. Weiner cites the significance of a manslaughter charge brought against schoolmaster Thomas Hopley in England after beating a pupil to death in 1860. Hopley was not absolved by the fact that he had obtained written permission from the boy’s father to administer a “severe beating.”¹¹ Thus, while cultural attitudes about violence were changing in multiple realms, penitentiary reformers argued for the abolition of similar violence in penal institutions. Beginning with the Brown Commission, the cultural shift is evident in Canadian penal administration, but corporal punishment and the infliction of pain also proved curiously resilient to the growing chorus of calls for its abolition.

It was not that penitentiary administrators resisted the calls to end the use of violence. Not infrequently, wardens and keepers spoke in the same voice as reformers in condemning the use of violence in their institutions. However, in many settings, reform discourses simply had the effect of prompting prison authorities to develop new explanations of disciplinary practices that were more sensitive to the growing abhorrence of violence. As penitentiary reformers succeeded in positioning prisons as institutions with a moral mission, prison administrators adjusted their arguments regarding corporal punishment to accord with this shift in cultural attitudes. Whereas early penitentiary administrators presumed the administration of corporal punishment to be their right in the service of order and discipline, by the late 1860s such punishments were rationalized as painful necessities that keepers inflicted with regret. In an 1872 annual report, Kingston Warden John Creighton put forward his views on punishment:

When men are to be corrected or rebuked, and the proper effect is desired, they must be made to feel that they deserve the punishment, and that it is inflicted more in pity than in anger. Few even of the worst criminals have lost all faith, and hope, and aspiration, and a yearning at times for things more pure and true; and these attributes can be stimulated to increased action…. To stir up men’s evil feelings, and to excite the lower part of their nature, only makes them reckless, hardened demons; whilst these same men under different treatment may at least be human.¹²

Reference to the “low nature” of penitentiary inmates hints at the older and pessimistic constructions of criminality built on the savagery of the criminal type. Progressives recoiled from these constructions, arguing that the moral institution must not resort to inciting such passions through violence. In 1880 reformer E. C. Wines argued, “It is possible to subdue a man, to break his spirit, by flogging; it is not possible to improve him morally by such a punishment. In many convicts, punishment by scourging excites undying hate. An indignity has been offered to their manhood, which they can never overlook nor forget.”¹³ Both arguments suggested that if keepers treated their prisoners like savages, only savagery would result.

As argued earlier, popular constructions of criminality routinely suggested that incorrigibility could not be addressed by moral means. Although the warden warned against the “hardened demons” that violence created, other administrators paradoxically suggested that these individuals already existed and could only be controlled by the use of violence. Thus, many Canadian officials emphasized that corporal punishment must be retained for its deterrent value. A long-standing advocate of corporal punishment, Prime Minister John A. Macdonald argued in the House of Commons in 1869 that only corporal punishment struck fear in the hearts of the criminal class: “Mere imprisonment has little or no terror for a very large body of criminals. They viewed imprisonment as a matter of course as a place of retreat to rest and recruit themselves when weary and worn down with ranging to and fro in search of wicked-ness.”¹⁴ In 1875 Warden Creighton wrote, “I only resort to [flogging] in extreme cases, where the convict is violently insubordinate…. This punishment cannot safely, be wholly dispensed with. I have found it most efficacious in checking assaults where solitary confinement and low diet had failed.”¹⁵ The same year, the penitentiary directors characterized prisoners deserving of corporal punishment as only the “exceptionally evil disposed men” who necessitated “the severe mode of treatment.”¹⁶

The construction of criminality played a role in these justifications. In 1888 Moylan argued that “the deterrent factor should not be overlooked. Its infliction, however, should be restricted to cases where convicts are so degraded and brutalized that the lash alone would compel them to good behaviour. There is a class of men who thought nothing of disgrace, but cared only for the stripes they received.”¹⁷ By resorting to the worst constructions of criminality, penitentiary officials absolved themselves of the inhumanity of violent punishments. These rationalizations were common and ranged from alarmist to absurd. For example, in 1877 Moylan wrote, “It can be stated as a fact, that flogging is never inflicted until a verdict of the convicts, generally, if asked, would pronounce the penalty well-merited.”¹⁸ Such statements merely emphasize that the debate within the penitentiary system was largely one-sided, carried out between officials who had already achieved consensus on the meaning and importance of corporal punishment to the larger penitentiary project.

The discourse surrounding corporal punishment was characterized by a dichotomy that contrasted penitentiary officials with the brutality of the punished. This humanity/brutality discourse said as much about how officials viewed their role as their understandings of criminality that necessitated violence. It was paramount to the reform view of the penitentiary that responses to brutality and savagery not be perceived as being equally brutal. Because penitentiary officials succeeded in casting corporal punishment as a response to particular criminality, it followed that they needed to portray themselves as paragons of detached rationalism and civility. These were the qualities prized in notions of an idealized Victorian masculinity. The privileging of masculine civility, at least in theory, was advanced repeatedly as one method of justifying the more brutal elements of penitentiary administration. In 1877 Moylan paid tribute to these qualities in his penitentiary wardens. Describing each one as a gentleman, he wrote, “One and all, are guided by the strictest regard to the dictates of justice and humanity, in awarding penalties, especially those of a severe character.”¹⁹ Moylan referred to masculinity again in 1882:

If the officers treat the convicts like men, with humanity, kindness and forbearance, thus seeking to give them back their manhood, they will do more towards their reformation, than could be wrought by all the tortures and terrors in vogue a century ago. Brute force alone will not answer, and muscular power is only one of the essentials in a guard or keeper. A good officer must have a clear intellect and a sound judgement to enable him to act quickly, firmly and justly. It is rare such men offer for the Penitentiary service. They usually command more pay at other pursuits.²⁰

The qualities that Moylan prized in prison officers, even if highly idealized, hinted at one important dimension that rationalized corporal punishment. It was a duty performed by dispassionate practitioners, void of emotion and informed by the soundest judgement. This was a particular construction of masculinity that created impossibly high standards for the penitentiary staff. Officials within the service subscribed to such notions but often found the men in their employ to be wanting. Warden Bedson at Manitoba Penitentiary made connections between “manliness” and qualities of honour when addressing his staff in 1881. He was disgusted to report that his staff was known to act dishonourably toward each other, informing on the transgressions of other staff members in a “cowardly” manner. He wrote in his order book, “The warden very much fears that some officers of this prison are not as manly and straight forward to each other as he would like.”²¹ Still, such rationalization provided an answer to the demands of the reform sentiments of the Victorian era. It absolved officials of the uncomfortable realities inherent to corporal punishment and suggested that emotion, anger, and passion played no role.

EMOTION

In spite of reform discourse that suggested otherwise, corporal punishment was an inherently emotional practice that was tied to the power relations at the heart of the penitentiary. It cannot be understood without some consideration of how historical actors responded to its emotional elements. David Garland defines the very essence of punishment as “irrational, unthinking emotion.”²² Friedrich Nietzsche rejected the idea that violence could ever be dispassionate, arguing that punishing another “gratifies the impulse of sadism and cruelty which a will to power over others produces in the human psyche.”²³ Nineteenth-century reform discourses and the importance of order and discipline obscured these elements. David Rothman claims, “In the name of authority, wardens had an excuse to mete out the most severe punishments, while still believing that they were doing more than satisfying their own instincts.”²⁴ Was this in fact the case?

Reformers often addressed the emotional nature of corporal punishment, but how can we understand the actual effect of emotion in the practice of punishment? There are hints throughout penitentiary records of the overwhelming emotion attached to the act of whipping a prisoner. For example, a correspondent for The Globe witnessed a whipping at a local gaol on Prince Edward Island in 1876. A sheriff and his deputy, described as “kind hearted,” were required to deliver a court-sentenced flogging. The deputy was extremely distraught at the duty that lay before him as the prisoner was affixed to the triangle. He made several false starts toward the prisoner with the cats but nearly fainted with each attempt. The reporter decried the sad spectacle of it, remarking with disgust that the prisoner encouraged the deputy to pull himself together and find the nerve to commence with the punishment.²⁵ Examples like this were cited by reformers as evidence of the generally debasing effect of corporal punishment. As Weiner argues, it was not only the suffering of the prisoner that raised the objection of reformers, but also the “effects on those inflicting and watching the punishment.”²⁶ Z. R. Brockway, superintendent of the Elmira Reformatory in New York, made this point at the Toronto Prison Congress in 1887. On the question of whether the most brutal criminals should be whipped, Brockway responded:

Not that the man does not deserve to be whipped, but the trouble is to get the man to whip him. You brutalize two men, whenever you inflict that kind of punishment, in prison or out of it. Its tendency is to make a man hard. It takes a pretty hard-hearted man to lay the lash on so as to be worth anything; and if he is a hard-hearted man, the further you remove him from the treatment of the criminal the better. I have seen prison officers who delight in whipping, and I wish the gates could be closed against them.²⁷

E. C. Wines made a similar point at the Toronto Congress. He told the delegates about a meeting several years earlier with a penitentiary warden in the United States. After dinner with the penitentiary staff, Wines inquired whether prisoners were ever flogged at the penitentiary, and the warden replied that they were. When pressed, the warden admitted that he relied upon his deputy to inflict the floggings. When Wines asked, “Suppose the deputy should be absent, what would you do in that case?” the warden replied that he would probably wait for the deputy to return before inflicting the punishment. Turning his attention to the deputy, Wines asked, “What do you think is the effect of flogging?” The deputy answered, “I think it is bad on the man that is flogged.” Dropping his eyes, he added, “I think it is bad on the man that does the flogging.” Then, straightening himself, he looked the warden in the eye and declared, “I think it is bad on the man that stands by and sees it done.”²⁸

Canadian prison officials often took a harder view of the disciplinary duties of keepers than did reformers like Brockway and Wines. They expressed disgust with any hint of hesitation or uncertainty over corporal punishment. At Manitoba Penitentiary in 1880, Warden Bedson blustered over a flogging that did not meet his standards. He entered in his order book, “The warden was very much displeased with the manner in which the details for inflicting corporal punishment on convict no 48 were carried out today. There being a want of organization and a knowledge of what was expected. A lack of preparation was also very visible. The conduct of guards McDonald and Garden especially the former officer was such as not to deserve credit.”²⁹ Such failings caused disgust because in the eyes of authorities, they hampered the legitimacy of corporal punishment. If the terror of the punishment was diminished, it would also invalidate arguments about its deterrent effect.

Penitentiary reformers were well aware that the volatile elements of corporal punishment could not necessarily be controlled, and this threatened to make the punishment less legitimate. E. C. Wines cited one such example that happened at Kingston Penitentiary in the era when whippings took place in the dining hall before the entire prison population. A “very bad” convict was punished for an offence of unusual gravity with one of the severest flagellations ever given in the prison. Wines described how the event assumed unexpected significance for the prisoners witnessing the punishment:

As the terrific instrument came down in successive blows, at each stroke tearing and mangling his flesh, he uttered no groan, moved no muscle, gave no token of suffering, but stood calm, erect, and proudly defiant. The prisoners watched the process with breathless interest, and when the last stroke had fallen, an involuntary and audible “bravo!” burst from the vast congregation of felons, in irrepressible admiration of what they looked upon as an instance of heroic fortitude.³⁰

Wines relayed the anecdote to warn penitentiary reformers of the potential damage corporal punishment could inflict upon discipline and authority in the penitentiary. Furthermore, it destroyed the work of moral reformation by the bad feelings it created in punished individuals.

The changing attitude toward corporal punishment is what several historians have identified as an evolving “cultural sensibility” about the use of such violence.³¹ This sensibility was evident in various public responses to instances of corporal punishment in late nineteenth-century Canada. In 1888 The Globe incited a firestorm of criticism and debate after printing this account of a court-ordered whipping inflicted at the Toronto Central Prison on Michael Fenton for an assault on a young girl:

The flogging took place in the corridor in the presence of Warden Massie, prison surgeon Aikins, several pressmen and prison officials. Fenton looked thoroughly vigorous and there was no hesitation in Dr. Aikins’ voice when he said, after looking at the semi-nude form strapped firmly to the triangle, that the prisoner was quite able to bear the lashes demanded by law. The Warden read the sentence by virtue of which he acted, and the guard in attendance drew forth from a bag the “cat” with its knotted tails of cordage.

“One,” said the Deputy Warden, and with a sharp swish the weapon descended.

“Oh, Lord! Oh Jesus, have mercy!” wailed the prisoner, and some such ejaculation was repeated after each stroke. The effect at the close was very marked, the cat having been laid very largely upon the space between the two shoulders. On only one small space, however, was the skin broken, and that was by the sixth stroke which brought blood to the wound. When Fenton was unstrapped his face showed but little trace of the agony he must have felt, and he entered into conversation with the doctor before being taken back to his cell.³²

While many letter writers supported the flogging of violent criminals, a greater outcry was raised over the graphic detail in the story. In August 1888 one reader complained, “I think it would be much better for all concerned if such matters were kept out of our public newspapers…. I shudder to think that the account of such revolting scenes should be thrust into the hands of my own children and others.”³³ Another questioned, “How is it that Canada is the only country in the world with such a law? Are our people worse than other people? … We are told that [the lash] is calculated to put an end to crime, then why not use it for all crimes? You say it is not torture. I say it is, and the worst kind of torture, and more, something diabolical.”³⁴

The Globe defended itself against charges of sensationalism by suggesting that it was printing the story to aid in the deterrent element of the punishment. An editorial argued, “It is a newspaper’s duty to see that the flogging be reported simply, truthfully, and in such ways that it will cause shuddering. The shuddering will harm nobody, and may be the salvation of the shudderers.”³⁵ Thinking about the emotion that accompanied these practices helps us to understand corporal punishment when we look more closely at the evidence of how and when it was used. If we looked only at the discourse about criminality, it would suggest that corporal punishment was primarily a response to particular instances of brutality or violent transgression. But the evidence outlined below about when and how corporal punishment was used suggests that this was not always the case.

KEEPING ORDER, MAINTAINING DISCIPLINE

Were prison officials truly responding to “extreme cases,” as they claimed, when resorting to corporal punishment? Inspector Moylan reported one such example where corporal punishment was necessary. By the mid-1870s, St. Vincent de Paul had become overcrowded, housing nearly fifty prisoners more than its capacity. According to Warden L. A. Duchesneau, this caused discipline to break down. He met the challenge with what he called “a display of a determined severity and an active and persistent watchfulness.”³⁶ This “display” also involved a dramatic increase in corporal punishments. In 1876, for example, Duchesneau flogged fifteen men with a total of 414 lashes.³⁷ In spite of the increase, the warden insisted that the corporal punishments had been judicious and only in response to incorrigible behaviour. He reported, “In the inflictions of punishments I have always taken into consideration the character of the delinquent, and I have had recourse to vigorous repressive measures only after having exhausted all indulgent methods. I conceived that in the punishments to be inflicted, one was necessarily obliged to take into consideration the degree of incorrigibility of the convict.”³⁸

The warden’s dilemma was solved in late 1876 when the Department of Justice authorized the transfer of sixty prisoners from St. Vincent de Paul to Kingston Penitentiary. Included in this number were the most refractory and incorrigible inmates, many who had already been flogged for insubordination and had threatened mutiny. Inspector Moylan reported that disciplinary problems followed the transferred prisoners to Kingston. In 1876 he wrote, “They carried with them the like bad disposition to set regulations and discipline at defiance. It consequently became the painful duty of the Warden, Mr. Creighton, to have recourse to the same unpleasant means of persuading the newcomers to conform to the rules which Dr. Duchesneau had employed, and with the same result.” Moylan added with apparent satisfaction, “They became convinced that the Warden was master of the situation and they succumbed.”³⁹

Punishment records from Kingston Penitentiary provide further details about what happened to the transferred “incorrigibles.” In late 1876, eight of the prisoners were reported in the south wing for “singing and shouting in a most disgraceful manner.” Warden Creighton wrote in the punishment book: “I personally advised these men for their own sakes to keep quiet when they were going into the punishment cells, but latterly they have been setting all authority at defiance and to bring them to a proper sense of their duty as convicts I find it necessary to sentence them to 3 dozen lashes with the cats. To lose all remission they have earned and have their lights for one month.”⁴⁰ In his annual report, Inspector Moylan later commended Creighton for the measures taken to consolidate his authority, adding, “It is fatal to the privilege and authority of the chief executive officer of a Penitentiary, and therefore to the success of his administration, to manifest any weakness or indecision of character, or to allow convicts to think they have gained the upper hand.”⁴¹

Penitentiary officials described the above events to demonstrate why prison administrators needed the lash. It helped to maintain order and authority. When discipline was threatened by the mutinous and incorrigible, the lash alone could compel a return to obedience. It is unsurprising that such narratives were frequently repeated in annual reports. These justifications, though, often obscured more mundane examples of corporal punishment as a means of maintaining order. In fact, outright mutiny was quite rare at most penitentiaries; petty disobedience was far more common. When corporal punishment was used to respond to these minor infractions, it presented a difficult contradiction to reform discourse and to administrative explanations that the lash was used only in the most extreme circumstances.

Although the frequency and severity of corporal punishment was greatly reduced after 1850, it is significant that no statute or regulation ever stipulated the circumstances under which such punishment could appropriately be applied. As a result, the use of corporal punishment remained a subjective decision exercised by penitentiary wardens. In the majority of instances, corporal punishment was administered in response to relatively minor offences that disturbed the peace and discipline of the institution. The experience of Ah Sing, a prisoner at British Columbia Penitentiary, is one example of how authorities responded to repeated infractions. Sing’s disobedience began in July 1886 when he struck another prisoner while on outdoor work detail. Warden McBride admonished him for this. A week later, Sing was admonished again for singing in his cell and disturbing the peace on the cell block. Four weeks later, Sing was reported for disobedience and punished with three days of bread and water with hard bed. Over the next nine months, he was punished multiple times for similar infractions, but none of the minor punishments had any effect on his behaviour. Finally, in June 1887 Sing was reported for using profane language. The warden decided he had been lenient enough and Sing was punished with twenty-four lashes with the cats. To McBride’s dismay, the flogging did not improve Sing’s behaviour. After subsequent reports of disobedience, Sing was reduced to a permanent low diet and shackled with irons until his sentence expired.⁴²

At the end of his eleven-year sentence for larceny and shop breaking, British Columbia prisoner Thomas O’Connor told prison officials he had been punished more than any other man in the penitentiary.⁴³ Like Ah Sing, O’Connor found it impossible to avoid trouble with the keepers and other inmates. Over the first half of 1888, he was cited in the punishment register twelve times, mostly for minor infractions like talking, idling at his work, and smoking a pipe in his cell. In August 1888 a guard caught O’Connor passing a slip of paper to another prisoner during Sunday religious services, and Warden McBride sentenced him to receive sixty lashes with the cats (the maximum allowable by law after 1875).⁴⁴ The whipping had no effect on O’Connor’s bad behaviour, but he was not punished a second time. Comparisons with other prisoners in the same penitentiary suggest the subjective nature of punishments for “incorrigibles” like Sing and O’Connor. Prisoner Charles Johnson was cited for multiple disciplinary infractions throughout 1887 at British Columbia Penitentiary, yet he was never whipped. McBride only ordered him shaved and confined to isolation. The same year, John Kelly was cited less than six times, all for minor offences. When he was reported for talking to another convict on their way to the chapel, the warden had him flogged with the cats sixty times and he was thereafter confined in shackles.⁴⁵

The subjective nature of corporal punishment sometimes revealed authorities’ discomfort with its role in the penitentiary. However, when faced with individual instances where such punishments were ineffective, wardens seemed to have no ready answer. In the three cases above, corporal punishment was a last resort, but it was seldom regarded as an actual solution. In April 1887 Kingston prisoner James Harris was sent to the isolation wing for refusing to work. Once in isolation, he shouted and pounded on the door of his cell. Warden Creighton wrote in the punishment register, “Previous entries in this book will shew that my patience with this man has been tried to the utmost. He is sentenced to three dozen lashes.”⁴⁶ The flogging did not improve Harris’s behaviour. He continued to work slowly and idle his time. When he was next reported for failing to break the required quantity of stone, Creighton’s feelings about Harris had seemingly changed. The warden noted in the punishment register that Harris was “mentally weak” and ordered that he should not be punished. When he was cited again in October, Creighton’s only written response was “another idiotic character.” In fact, Creighton was alluding to Harris’s declining mental health: he was transferred to the Rockwood Asylum when his sentence expired.⁴⁷

As seemed to be the case in multiple instances of corporal punishment in this era, Harris was whipped for actions that could not be considered violent, incorrigible, or malicious. What determined the use of violence in such cases? There are hints in the above cases suggesting that a lack of patience or frustration played a role. These were the exact elements that reformers had tried to eliminate from the practices of punishment. Furthermore, reform discourses repeatedly congratulated prison officials for conquering impulse and emotion. Evidence suggests that these impulses continued to play a role, however, and not only in support of violence. In March 1877 Kingston convict John Kenney struck an inmate orderly and severely cut his face. As he was already serving time in the punishment wing, Warden Creighton sentenced Kenney to two-dozen lashes with the cats. The whipping was to occur on the same day that the inspector visited the penitentiary. With the inspector watching, the guards brought Kenney to the triangle and began to tie his arms and legs. Just before the first blow, Moylan was overcome with emotion and ordered the guards to remove Kenney from the triangle. His punishment was pardoned and the prisoner returned to his cell.⁴⁸

The penitentiary was not the only area of Canadian society where corporal punishment resisted reform impulses for change. Reformatories and schools both struggled with similar issues in their attempts to rationalize disciplinary demands with changing attitudes toward corporal punishment. At the Penetanguishene Reformatory, corporal punishment was a regular occurrence. The Globe reported that it was “rarely” resorted to, and only in cases where “it is found absolutely necessary, other methods having failed.”⁴⁹ In fact, public schools in both Canada and the United States debated the utility of corporal punishment and, in the vast number of cases prior to 1900, concluded that its merits outweighed the costs. In just one example, the Windsor School Board debated the issue of corporal punishment in December 1894. After a lengthy and lively exchange, it was decided that corporal punishment was essential to the maintenance of discipline in Windsor schools.⁵⁰

In some ways, the disciplining of children and youths was similar to that of prisoners. The widespread belief in the efficacy of corporal punishment persisted throughout the nineteenth century in spite of reform discourses that condemned such practices. Indeed, Canadian penitentiaries even continued to use corporal punishment on young prisoners. After the Brown Commission, penitentiary regulations prohibited the flogging of children and youths with the cats, so penitentiary officials simply devised less severe methods of corporal punishment. At Manitoba Penitentiary, prisoners younger than sixteen were lashed on the hands with a leather strap, and at Halifax and Kingston in the early 1870s, keepers used a birch rod or switch. The Kingston punishment return for 1870 noted that the rod was given to two boys.⁵¹ A birch rod was also used against five young inmates at Dorchester in 1885, each receiving ten “cuts.”⁵² Though the severity was dampened, the intent of these corporal punishments was no different from that of more severe versions.

While attitudes toward flogging changed during the second era of penitentiary reform after 1850, other prison practices based on the infliction of pain were not transformed. In fact, most punishments in the penitentiary involved some degree of pain. Disciplinary practices involving confinement or isolation, particularly in Kingston’s earliest years, could still be extremely painful forms of punishment. Only the most shocking examples of these practices, such as the box, were condemned by the Brown Commission. Although reformers were horrified by the box because it was so painful, they did not condemn altogether the infliction of pain through isolation or confinement. In the post-Confederation period, each penitentiary still used various forms of confinement and restraint as punishments, the most common involving shackling or chaining prisoners to an iron ball or cell wall. In 1871 a total of six men were chained at Kingston. Most confinement in chains lasted for days or a few weeks, but prisoners Peter Almond and Philander Allen remained in chains from September to late December.⁵³ The practice could be dangerous or fatal when taken to extremes. In 1891 at St. Vincent de Paul, convict Ned Haggart died while chained to a wall for two consecutive weeks.⁵⁴

While traditional methods of corporal punishment, including flogging and whipping, held the attention of reformers throughout the nineteenth century, less painful practices like confinement never elicited the same response in spite of the potential abuse of such punishments. Other forms of punishment could also be physically painful, yet these too often eluded the attention of reformers and inspectors. At Manitoba in the 1870s, Warden Bedson instituted the use of the Oregon boot, an iron shackle that locked around a prisoner’s ankle and attached to the heel of a boot. It weighed as much as twenty-eight pounds and was worn on only one leg to keep the inmate off-balance. Wearing the boot was said to cause extreme physical pain.⁵⁵ Other corporal punishments drew on military traditions to inflict pain. In 1870 Kingston instituted “shot drill practice,” a punishment devised by the British army. Philip Priestley’s Victorian Prison Lives contains a description of the exercise that invokes the imagery of bygone punishments such as the crank and the treadmill: “It consists … of stooping down (without bending the knees) and picking up a thirty-two pounder round shot, bringing it slowly up until it is on a level with the chest, then taking two steps to the right and replacing it on the ground again.”⁵⁶ This exercise would go on for four hours with five minutes rest every hour. Shot drill was used sparingly at Kingston Penitentiary and Manitoba Penitentiary.

In the late 1890s, William Irvine, warden of Manitoba Penitentiary, instituted a new punishment that harkened back to earlier methods of confinement. Irvine reported to Inspector Stewart that he had learned about the success of the punishment at Stillwater Penitentiary and recommended it for Canadian prisons. Used for prisoners who refused to work or were confined to their cell for other disciplinary reasons, it involved handcuffing the prisoner’s hands to a cell door so that he would be forced to stand. Irvine wrote, “While undergoing this punishment he is kept in this position during the working hours of the other convicts and is released for the ordinary meals, being again returned to his position until the allotted time has expired. It is not cruel … and it prevents a man from lying down and taking it easy, which many convicts would rather do than work.”⁵⁷ The inspector evidently approved of the punishment as it was still in use at Manitoba a decade later. In 1905 a prisoner was sentenced to seven days on bread and water with his hands cuffed to the cell door as a punishment for “step-dancing in his cell.”⁵⁸

More common alternatives to whippings were punishments that isolated offenders from the general prison population. With the decline of flogging as a serious penalty, isolation in the dark cell (not to be confused with regular cells being deprived of electric or gas light) was the next most serious punishment available to officials. There are virtually no descriptions of the dungeons or punishment cells used in Canadian penitentiaries. Officials referred to them only sparingly in their annual reports, and because they did not fall into the realm of violent punishment, reformers were largely unconcerned with isolation as a form of punishment in the late nineteenth century. Not surprisingly, this lack of attention to the use of the dark cells created vast potential for abuse. Isolation was certainly less brutal than corporal punishment, but it was also far from painless.

The experience of Garry Hill, a prisoner at Manitoba Penitentiary, provides some insight into the brutal nature of prolonged isolation. At Manitoba, the penal cells were in a separate structure from the main penitentiary building. Hills spent extended periods of time in an isolation cell in late 1890. In mid-November, hospital overseer David Bourke reported on Hill’s condition. When he asked Hill if he had any complaints, the inmate replied that he was suffering from pains in his shoulders and hips because he had been sleeping on the stone floor of the cell. Bourke wrote, “His complaint about the cell being cold is, in my opinion, well founded. There is a large stove in the penal cell building, but on careful examination of the cell with thick stone wall and heavy close-fitting wooden door inside … which is constantly kept closed, I was unable to see how he could get any benefit from the stove.”⁵⁹ Warden Bedson received the report and ordered extra blankets to be sent to Hill’s cell. When Bourke visited Hill again two days later, the prisoner complained about a terrible smell in the cell and showed the overseer his badly chafed shoulders and hips. Two days later, Hill complained about pains in the pit of his stomach, which arose after his attempt to get some exercise in the tiny cell. Bourke clearly felt some sympathy with Hill’s plight, going to unusual lengths to communicate the prisoner’s discomfort to the warden. His final report to Bedson stated only, “Visited No. 39 in penal cell yesterday. He has no accommodation for washing or bathing.”⁶⁰ The overseer’s record is truncated and it is not clear when Hills was freed from the isolation cell, but the final notation indicates that he was still undergoing punishment on December 4; he served at least sixteen days on a low diet in total darkness.⁶¹ In spite of the notion that punishments involving isolation were more humane, they still tended to brutalize the body. Significantly, punishments involving isolation became the main response to incorrigibility as corporal punishment waned in the decades after Confederation.

THE PRISON OF ISOLATION

In the early 1870s, the penitentiary board of directors raised the possibility of a penal wing, or a Prison of Isolation, at Kingston Penitentiary. This idea was inspired by the Crofton system, which involved a progressive classification of prisoners. Reformers viewed such a classification as the best method of preventing the intercourse of hardened criminals with first-time offenders, a prison reality that was widely regarded as the most damaging prospect to individual reformation. Various schemes were promoted in Canada to approximate some version of the Crofton system. In 1873 the penitentiary directors suggested that each newly received prisoner should be isolated for a short period while internalizing the rules of the penitentiary and the advice of his chaplain.⁶² Ten years later, Inspector Moylan continued to promote this idea, suggesting that the period of isolation should last six to eight months for newly received convicts. Furthermore, he suggested that the penitentiaries use some system of classification to segregate the incorrigibles from the rest of the prison population so their influence would not deter the reformation of others.⁶³

In 1877 Moylan wrote, “The recommitted convicts are the bane of our Penitentiaries.”⁶⁴ This idea about hardened or career criminals was an old one. Moylan attacked this issue with surprising enthusiasm and joined it to the emerging liberal reform concern about individualism and classification. “It is of paramount importance,” he continued, “in order to prevent the penitentiaries from any longer being nurseries of crime … to separate the hardened offenders and habitual wrongdoers from the orderly and well-disposed prisoners.”⁶⁵ Moylan suggested a very simple solution to what he viewed as the penitentiary’s central failure: he argued that the “hard cases” needed to be separate from the rest of the population. This practice, he explained, “not only affords a certain protection to the less depraved against further contamination, and debars the more guilty from spreading their evil taint, but it also offers opportunities to the latter of self-examination and of receiving uninterruptedly moral and religious education.”⁶⁶

In his second decade as penitentiary inspector, Moylan focused on better classification of prison populations. He actively promoted the Crofton system, arguing that it would raise the classification of inmates to the level of a criminological science. In this system, reform would be accomplished through detailed and scientific knowledge of each individual prisoner. Thus, the individuality of each inmate would be uncovered, analyzed, and subjected to the discretionary expertise of penitentiary officials. In 1888 Moylan wrote, “In a better system, which raises the Penitentiary question to the rank of a science, each prisoner should be studied individually and treated according to his character and according to the degree of moral idiocy with which he is affected. To treat all criminals in the same manner is as absurd as would be the proposition to cure all the diseases of the body, diversified as they are, by the same medical agents.”⁶⁷ Although classification seemed like a bold new idea in an emerging modern penology, it was actually a concept dating back to the first penitentiaries. Old ideas about isolation were recast as new reform ideologies about the benefits of individual classification. The principle of pure isolation had been discredited decades before Moylan’s tenure, largely due to the overwhelming mental illness that accompanied long-term solitary confinement practices at the penitentiaries in Philadelphia and Pentonville.⁶⁸ While more complex methods of classification, such as the Crofton system, invested greater energy into the segregation and evaluation of each inmate, in the Canadian context the most complex elements of these practices were stripped away until all that was left was the impulse to isolate prisoners who could not be managed—the incorrigible offenders. But to what effect? Stripped of its positivist criminological elements, the reforms that came to the Canadian system at the end of the nineteenth century only served the purposes of domination and oppression of the most dangerous (whether real or perceived) members of the prison population.

The move to isolate hard offenders was one part of an expanding movement to judge the criminality of individual offenders. Inspector Moylan increasingly suggested that when the work of the penitentiary was unsuccessful in reforming the offender, such individuals should not be released. In 1889 Moylan began to advocate for a system of indeterminate sentencing that would allow penitentiary officials to judge when a prisoner was sufficiently reformed. He argued, “By sentencing the prisoner without specifying the length of time he is to serve, leaving this to be determined by his keepers, who are the most competent judges, it is fair to assume that the sentence in any given case would be more equitable than if left to be fixed arbitrarily in advance, without knowledge of the prisoner’s character and qualities.”⁶⁹ This was an argument aimed squarely at the same class of prisoners who necessitated the Prison of Isolation. Although the language was steeped in “hope” and “reformation,” it was the failure of these objectives that motivated the desire to keep certain prisoners incarcerated indefinitely. Moylan further suggested that the criminal should be regarded as an insane person and should be restrained so long as his liberty would pose a danger to society. The inspector was no doubt buoyed when the National Prison Congress advocated similar ideas, arguing in 1890 that punishment in fixed terms should be abolished. Moylan also pointed to the passage of a habitual criminals act in Ohio that legislated the incarceration of offenders for life after their third conviction. Britain introduced its own habitual criminals act in 1899.

Although he had few compatriots in the Canadian prison reform movement, Moylan’s ideas about penology certainly reflected the direction of international reform and even provided early glimpses of twentieth-century criminology. A parallel development in international prison reform complemented this new direction: while habitual criminals legislation gave penitentiaries more power to control hardened and incorrigible offenders, “ticket of leave” legislation created a converse movement to expedite the release of prisoners who showed a better potential for reformation. By the end of the century, prison reformers had embraced the idea that successful rehabilitation required release from prison and integration with the community. By the early 1900s, the Canadian Justice Department had partnered with the Salvation Army to administer an early version of the Canadian Parole Service. Salvation Army workers, along with local police forces, assumed responsibility for the monitoring and assistance of prisoners who were released before the end of their court-ordered sentences.

It is significant that the construction of the Prison of Isolation at Kingston Penitentiary, a response to incorrigibility, was the only large-scale reform in prison practice accomplished during Moylan’s long reign as penitentiary inspector. This “reform” succeeded where others failed because it appealed to both reformers and justice officials. To reformers, it was an enlightened step toward a more individualized response to criminality. For penitentiary and justice officials, it offered a practical response to a perceived problem of security and the threat of the incorrigible offender. While other projects, such as a criminal insane asylum at Kingston or improved quarters for women, dragged on for decades, the Prison of Isolation was completed relatively quickly.

While previous generations of reformers identified inhumane treatment or lack of religion and education as the failures of the penitentiary project, Moylan’s conclusions suggested a somewhat more cynical application of reform ideology: some men could not be reclaimed and posed a grave threat to the salvation of those who could. This idea obviously appealed to penitentiary wardens, who regarded increased segregation of hardened offenders a practical reform that would serve the security of the institution. The appeal of this idea is evidenced by the fact that it was one of the few large-scale reforms proposed by Moylan to ever gain government assent. Construction on the “penal prison” at Kingston began in 1890. Completed by late 1892, the Prison of Isolation was a separate wing containing 108 cells reserved for the most dangerous, incorrigible, and irredeemable inmates from across the country. Although Moylan had planned for the isolation wing to incarcerate the worst incorrigibles from all five penitentiaries in the dominion, soon after 1895 it became clear that the cost and logistics of transferring prisoners from the Maritimes and western Canada was far too expensive.⁷⁰ A year after the isolation wing opened, it was only filled to a third of its capacity.

The opening of the Prison of Isolation left Inspector Moylan feeling cynical. Having pushed for this reform for nearly twenty years, he was dismayed to discover that justice officials were disinterested in advancing the criminological science behind the new isolation wing. Though the structure was completed, Moylan warned, “its usefulness and advantage will altogether depend upon the system of management that followed.”⁷¹ The inspector wanted the opportunity to travel to Europe, where he might inspect the best penology methods, particularly as they related to the new segregation techniques. He considered isolation wings in Belgium the best example for the Canadian system to follow. But Moylan’s requests for such a tour went unacknowledged by the Department of Justice. The inspector stated in his annual report that the decision was not a surprise to him, given that “nothing has been done in this direction, notwithstanding the fact that no opportunity has ever been granted to the board of directors or the inspector to enlarge their views or increase their knowledge of penology, since the opening of Kingston Penitentiary in 1834.” Finally, Moylan reported bitterly that without the benefit of learning how other prisons managed isolation quarters, he had simply drawn up his own code of rules, which was “necessarily defective.”⁷²

Thus, Moylan succeeded in creating a rudimentary method of classifying prisoners, but in the end, it was aimed entirely at the incorrigibles in the prison and was stripped of all potential reformatory effects. Still, other officials saw only the positives. By 1897 Moylan’s replacement, Inspector Douglas Stewart, was praising the “wholesome restraint” the Prison of Isolation exerted over the incorrigibles in the prison population.⁷³ Ironically, Stewart praised the isolation wing as evidence of the superiority of the Belgian system of classification even though the Canadian version scarcely resembled the progressive classification such a system would entail. Although the Prison of Isolation was steeped in reform ideas, its true purpose was to give keepers and officials at Kingston greater control over what they considered to be the worst elements in the prison population. Thus, it gained both political and administrative support where countless other reform initiatives had failed.

THE DEATH OF GEORGE HEWELL

While the Prison of Isolation was a feather in Moylan’s cap, at least one incident left an ugly stain on the isolation wing. George Hewell was regarded as a primary candidate for the Prison of Isolation: by all accounts, he was among the most incorrigible and dangerous offenders at Kingston Penitentiary. Hewell was convicted of rape in October 1887 and sentenced to life imprisonment. His behaviour at Kingston quickly earned him a reputation as an incorrigible. In the first ten years of his sentence, Hewell received nearly two dozen disciplinary reports. Some of these were for minor offences. For example, in August 1895 he told a guard “to go and fuck [him]self” while refusing to work.⁷⁴ Hewell cemented his reputation for violence, however, when he hit a prisoner in the head with a hammer in 1888. In 1895 he was punished for attempting to throw another inmate over the balcony of a gallery. These transgressions earned him long stretches in the penitentiary dungeon. In February 1896 Hewell attacked a prisoner and then a guard in the dining hall and was sentenced to six months in the Prison of Isolation. As guards dragged Hewell from the dining hall after this final altercation, the assembled prisoners stood to jeer and hiss at him.⁷⁵

Hewell’s experience at Kingston was similar to that of John Foy at British Columbia Penitentiary. Like Foy, Hewell was one of the few black prisoners in a predominantly white institution, and race undoubtedly played a role in both his violent experience at Kingston and the construction of him as an incorrigible. He had an exotic and mysterious background that contributed to his strange reputation. He was said to be a circus performer, possibly an acrobat. Warden John Metcalf described him as “very athletic and tiger like in his movements,” noting darkly that Hewell was “supple. Very supple.”⁷⁶ His physical prowess seemed to hint at the dangerous potential that was confirmed by the multiple violent incidents during Hewell’s first years of imprisonment.

After the altercation in the dining hall in early 1896, Hewell served seven months in the Prison of Isolation without incident. He spent his days sewing shirt sleeves, receiving no visitor but the keeper of the Prison of Isolation, the prison doctor, and various guards. The standard term of imprisonment in the isolation wing was six months. If prisoners served this time without disciplinary report, they were usually returned to the general population. By October 1896, Hewell was feeling despondent about the extra month he had been kept in the isolation wing. Some prisoners in the Prison of Isolation reported that the isolation keeper, A.D.O. McDonell, was a domineering and manipulative tyrant. Release from the Prison of Isolation was supposed to be under the authority of the warden, but a negative disciplinary report from the keeper could extend the sentence and even keep prisoners isolated indefinitely. One prisoner remarked that McDonell “wishes to have them think that he has full control.”⁷⁷ Another former prisoner from the isolation wing revealed more, reporting that McDonell would frequently incite the men to anger and “excite words from us until we get so hot that we could not control ourselves.”⁷⁸ Apparently, McDonell would goad the isolated prisoners into delaying their chances of returning to the regular prison population.

Hewell’s agitation about his delayed release from isolation was made worse by the belief that his medical complaints were being ignored by the keepers, the warden, and the doctor. On the morning of October 8, he rose feeling unwell. He did not dress or take his breakfast, and he complained to the keeper about a terrible pain in his chest. The doctor arrived at 10:00 a.m. and examined Hewell, only to conclude that there was nothing wrong with him. By lunch, Hewell was still undressed and in bed. Guard John Donnelly scolded him, telling him, “Come, come get up and be a man. There is nothing wrong with you.”⁷⁹ Hewell rose and angrily demanded to see the warden. When he would not calm down, Donnelly wrote this disciplinary report, reading it to Hewell before delivering it to the warden:

Causing a disturbance in the corridor by loudly demanding to see the keeper at noon, and insolently telling me that he was tired of me; that I was always imposing on him, and that he would not put up with it any longer. He refused to rise from his bed at noon hour and take his rations as usual, feigning sickness, and because I refused to pass his meal into his cell he rose from his bed and became abusive.⁸⁰

Donnelly returned from the warden’s office to read Hewell his punishment: “This starts Hewell on a new month and for one week to lose light, and to go one week on low diet.”⁸¹ The prospect of another month in the isolation wing completely overwhelmed the prisoner. Several members of the penitentiary staff in the isolation wing tried to calm him, but he was inconsolable and his despair soon turned to anger. William Hughes, the chief keeper, told him, “Hewell you are only making it worse for yourself carrying on this way, the quieter you behave the lighter your sentence will be.”⁸² As Hewell sobbed uncontrollably, Donnelly decided to write a second disciplinary report and again read it aloud to Hewell.⁸³ As Donnelly left to deliver the second report to the warden, the other members of the staff tried to calm the prisoner again with no success. He cried out, “You are all trying to kill me…. Oh God, send me to hell before you allow me to get out of here alive!”⁸⁴

Upon hearing the report of the burgeoning crisis in the isolation wing, Warden Metcalf ordered Hewell to be removed to the dungeon. Hughes set out for the isolation wing, collecting guards George Sullivan and Alexander Spence along the way. The officers arrived to find that the situation had deteriorated. George Hewell was still in his cell, clutching the massive tailor’s shears used for his work. Hughes and Spence entered the cell, ordering Hewell to drop the shears and surrender. When he did not submit, Hughes drew his revolver and fired on Hewell, hitting him between the cheek and the ear. “You have me now,” Hewell gasped as he fell forward. “You done this,” he said to Hughes before collapsing into the keeper’s arms and losing consciousness.⁸⁵ He was rushed to the penitentiary hospital, where he died later that evening with the bullet lodged in his brain.

A penitentiary commission under James Noxon and former penitentiary board member E. A. Meredith was called in early 1897 to investigate Hewell’s death. Questioning each individual involved in the incident, the commissioners uncovered several unsettling inconsistencies. The first involved Warden Metcalf’s order to remove Hewell from his cell. William Hughes testified to the investigating coroner that he had reminded the warden that in his agitated state, Hewell might be expected to defend himself with his tailor’s shears. According to Hughes, the warden had replied, “If he attempts to use the scissors, shoot him.”⁸⁶ Warden Metcalf vigorously denied ever having given the order. Under cross examination, Hughes later changed his story, stating, “I do not think he said that. There was something said in conversation, that I would shoot him if he used the shears.”⁸⁷ The only other witness to the conversation was the warden’s chief clerk, who refused to testify as to what he had heard.⁸⁸ Either way, it was clear that Hughes had left the warden’s office determined to take Hewell out of his cell. After collecting guards Sullivan and Spence to assist him, Hughes had reportedly said to them, “We are going to have a little fun.”⁸⁹

The most troubling discrepancy in testimony before the commissioners revolved around Hewell’s behaviour when the officers returned to take him from the cell. Chief keeper Hughes and guard Spence both testified that Hewell had acted aggressively, threatening their lives with the shears. Spence told the commissioners that Hewell “jumped around and was as active as a bird in a cage…. He made a spring all at once as though he was going to strike with the shears.”⁹⁰ Spence stressed in his testimony that the chief keeper had fired only as a last resort to save their lives: “He was going like a streak of lightening. The Chief covered him and then shot him, after Hewell made two or three attempts to strike him…. If we had turned our backs and had not shot him he would have run those scissors into me, or some of us. When the Chief went up he made at the Chief. I considered my life in danger. That revolver saved mine and his life.”⁹¹ Hughes’s version was similar. He testified that he had drawn his revolver on Hewell and warned him to drop the shears and that the prisoner had then lunged at him and tried to grab the revolver. “He had come at me from a crouched position,” testified Hughes; “he struck sideways at me and jumped forward and struck at me with the shears.”⁹²

The version of Spence and Hughes that was entered into the record was contradicted by the keeper of the Prison of Isolation, A. D. O. McDonell, and by deputy warden William Sullivan, both of whom witnessed the shooting. McDonell swore that Hewell had not acted aggressively toward the officers as they entered his cell. He testified, “From where I was the convict seemed to be standing perfectly quiet with the shears lifted.”⁹³ Sullivan testified to the same thing but added that Hewell had flinched when the gun was drawn on him and retreated into the cell with his hands in the air in a defensive position. The commissioners pressed Sullivan on this point:

Q. How far did he back up?

A. He backed up quite a ways.

Q. Did he keep backing up before the Chief as the Chief advanced?

A. Yes, pretty much.

Q. His movements were gradually to retreat into the cell?

A. He showed that he was really afraid.

Q. Did he make any thrusts at either the Chief Keeper or Mr. Spence?

A. No, he still held them up.

Q. Did he actually try to strike them?

A. No, no blow.

Q. You could see the shears were constantly above his head and at no time you saw any movement to strike?

A. No.⁹⁴

The commissioners were clearly troubled by the contradictory testimony and tried to work out why the situation had ended violently. Meredith questioned Alexander Spence on this point, suggesting that it had been unnecessary to enter the cell at all when the situation might have been diffused by waiting for Hewell to calm down. Meredith asked Spence, “You and the Chief were determined to take him out dead or alive?” Spence replied,

A. My determination was to take that man out.

Q. Dead or alive?

A. If I had my gun I would have shot him.

Q. You might have escaped?

A. But I did not go in with that intention.⁹⁵

The Penitentiary Commission seemed aware that violence was not the only possible outcome to the scenario that unfolded in the Prison of Isolation. When Hugh Hayvern stabbed Thomas Salter at Kingston in 1881, he was thrown into an isolation cell before the guards could take away the murder weapon. Hayvern was in state of extreme agitation, slashing at his own throat and at the guards through the bars of his cell. Rather than draw their revolvers, however, the guards summoned the Protestant chaplain, who quickly donned his Sunday garments before arriving at the cell. According to The Globe, “the sight of the clergyman in his robes was too much for the desperate man, and without another word he yielded his knife to the reverend gentleman.”⁹⁶ The contrast with how Hewell died is striking. While the commission concluded that the shooting of George Hewell was a tragic mistake, it assigned no blame to any member of the penitentiary staff. The report concluded paradoxically, saying that Hewell had “stood on the defence, not attacking” while chief keeper Hughes could not have removed the prisoner “without in self defence using his revolver.”⁹⁷

Although the Prison of Isolation might have been regarded as a victory for Moylan’s reform movement, the Hewell incident showed that the move to greater isolation of incorrigible offenders both strengthened and diminished the project he had fought toward for twenty years. The original idea suggested by early reformers like Maconochie and Crofton proposed a better classification of all offenders in the institution so they could be treated humanely and reformed by trained experts. In practice, the Prison of Isolation at Kingston was an abdication of this ideal. While it was justified in the language of reform, it actually represented the opposite impulse as it came to be used for incorrigible offenders. Years before the isolation wing opened, Moylan wrote, “Who is wise enough to say what punishment is enough for a criminal? The prison should be a place for his reformation and for the protection of society from the evil he would do it. If he will not reform, then let him stay there where he cannot injure society.”⁹⁸ In practice, however, the Prison of Isolation expressed only the oppressive portion of his statement.

In fact, by the late 1890s, the Prison of Isolation was merely a crude instrument among other techniques that addressed individual criminality, including measures that made criminal sentencing and release from prison far more flexible and discretionary. Moylan began advocating for indeterminate sentencing in the late 1880s. He argued repeatedly that only prison authorities could reliably judge the reformation of the criminal and should therefore be counted on to know when it might be safe to release offenders back into society. As he had done so often in the past, Moylan looked to other penal regimes for inspiration and support. He cited an argument in a report by the California Penological Commission from 1887:

As it is now, a judge passes sentence upon a prisoner, aided by the knowledge he can secure. But it is difficult for him to know much of the prisoner’s antecedents, and almost impossible for him to predict with any degree of certainty within what time the evil traits of the prisoner may be removed, or whether he is capable of reformation at all. By sentencing a prisoner without specifying the length of time he is to serve, leaving this to be determined by his keepers, who are the most competent judges, it is fair to assume that the sentence in any given case would be more equitable than if left to be fixed arbitrarily in advance, without knowledge of the prisoner’s character and qualities.

By this system it is proposed to draw a line between those in whom reformation may be effected and those in whom reformation cannot be expected.⁹⁹

Moylan cited multiple other reform authorities who advocated for indeterminate sentencing, but the Department of Justice showed little interest in extending this much authority to prison officials.

Indeed, by the 1890s, Canada still lagged behind reform advances in England and America on ideas that would come to define the “penal welfare” state of the early twentieth century. These new ideas revolved around finding more effective ways to reform first-time criminals and eventually secure their release from the penitentiary under conditions that would reduce recidivism. The fundamental departure on these questions was that a new reform movement outside of penitentiary administration was increasingly vocal. In the 1890s, evangelical charities like the Salvation Army began ministries aimed at recently released prisoners. “Prison gate ministries” run by the Salvation Army sought to uplift released convicts in order to prevent a return to a life of crime. Salvation Army officers literally met released prisoners “at the prison’s gate” to offer guidance on the correct moral path in the aftermath of a penitentiary sentence. While penitentiary authorities had long argued that the lot of a released convict was difficult, the efforts of the Salvation Army spoke to a larger shift in ideas about reformation and rehabilitation. Seeking the ongoing moral salvation of released prisoners, the prison gate ministries seemed to reject the idea of reformation at the heart of the penitentiary project, suggesting that reformation came after a prisoner’s release and that a moral lifestyle guided by the Salvation Army could produce results the prison could not.

By the late 1890s, this new reform movement had assumed a greater position of power in Canadian justice policy. The new Ticket of Leave Act in 1899 provided penitentiaries with the legal mechanism to release individuals without the formal ascent of the Governor General’s Office. While this reform might have given penitentiary authorities the power that Moylan had agitated for, responsibility for prisoners released under the new act was given to the Salvation Army, not penitentiary authorities. In 1905 Brigadier W. P. Archibald resigned his commission with the Salvation Army to become Canada’s first parole officer. In this new position, Archibald personally oversaw the conditional release of convicts from federal penitentiaries across Canada. He travelled thousands of kilometres between institutions each year to interview prisoners eligible for parole and to meet with recent parolees in the community. This was a new era and it ushered forth a new welfarist model of criminality. Where nineteenth-century reformers had positioned the penitentiary as a moral realm in which criminals were transformed, the new ideology looked beyond penitentiary walls. In his first annual report, Archibald wrote, “We must accept the criminal as he is…. He cannot be dismissed as an anthropological monster, he is one of us: he belongs to us; he must be met and treated as part of the social fabric of life. He must be helped over the chasm which he has digged [sic] with his own hands. The voice of God may fall into a faint whisper in the human soul, but it never dies away into utter silence.”¹⁰⁰