Labour

THE ORIGINS OF LABOUR UNDER CONFINEMENT

In the ancient world, the connections between labour and practices of confinement were minimal. However, a brief look at punishment in ancient times illustrates the significance of the departures that occurred in the medieval and early modern periods. Early Roman society had no formal systems for imprisonment. Public prisons were little more than pits into which were lowered the condemned, who were subject to prolonged torture and had no real hope of reprieve. Although some Roman prisoners were forced to work on large public projects, these were in essence capital sentences in which prisoners were worked to death as slaves.¹ The first “prison reform” occurred under Constantine in the early fourth century, when the emperor decreed that prisoners held in custody must be kept in good health with access to food and daylight. Constantine’s Theodosian Code also stipulated that judges should inspect the prisons to prevent corruption and excessive brutality to prisoners awaiting trial.² After the fall of the Roman Empire, legal regulation under Germanic rule became much less complex. Capital and corporal punishment were both preferred over any type of imprisonment.³

Imprisonment under early Christian canon law assumed the first elements of “correction.” Christian notions of penitence and salvation were wedded to the physical segregation of offenders. Canon law, as it was applied to monks, secular clergy, and laypeople, was the earliest Christian articulation of an institutionalized disciplinary system. Monastic discipline connected labour to confinement as a complete system of correction. The idea of isolation as a spiritual punishment stretched back to the rule of St. Benedict of Nursia in the sixth century, when serious offenders were isolated and made to labour in cells called ergastula. In the twelfth century, this idea became more institutionalized in monasteries that contained rudimentary prisons. Monastic imprisonment was used in combination with restricted diet and often included elements of ritualized corporal punishment. This practice was significant because it combined isolation, labour, and imprisonment for a specific period of time as a means of finding spiritual salvation: in effect, these were the first prison “sentences.” Under Pope Innocent III (1198–1216), the increasing use of inquisitorial justice exposed lay-people to these methods of punishment by confinement.⁴

In jurisdictions such as England that were not subject to canon or Roman law, the common law still provided for some forms of imprisonment. Following the Norman Conquest in 1066, William I constructed the Tower of London to hold royal prisoners and the king’s enemies. In 1166 Henry II ordered that all sheriffs build gaols in each county to hold criminals awaiting trial, but like the early Roman prisons, these gaols did not serve the purpose of pure punishment. It was not until widespread changes occurred in European attitudes toward poverty and pauperism that institutional confinement was expanded to include labour. As a result of this ideological shift, institutional confinement, responding to poverty and increasing urbanization, began to incorporate labour.

THE WORKHOUSE

In early modern Europe, imprisonment emerged as a noncriminal sanction against poverty and idleness. After 1500, European authorities increasingly questioned the “worthiness” of society’s poor and began to consider poverty a social threat. Prior to this shift, European society was prone to see “the poor of Christ” in all kinds of marginal populations, including the impoverished, the sick, the lepers, and abandoned children. In the sixteenth century, reformers began to view some segments of the poor as “undeserving.” Among these were beggars and vagrants, who would subsequently be pressed into “earning” their redemption from poverty. Members of this group were subjected to one of two forms of bondage. The first was as “volunteers” on galley ships; the second, which became increasingly common, was as inmates of workhouses.⁵

In the sixteenth century, societal condemnation of idleness and poverty in England found widespread expression in institutional form. In 1553 Bishop Nicolas Ridley persuaded the king to donate Bridewell Palace in London as the first house of correction. Inmates of Bridewell were subject to a strict regime aimed at correcting idleness. The early version of the institution included workshops for spinning and carpentry as well as a flour mill and a bakery. Inmates were paid wages for their work, from which room and board were deducted. In 1576 Elizabeth I ordered that houses of correction (which were often simply called Bridewells) should be constructed in every county in England. Vagrants were collected and put to work in these institutions.⁶ Bridewells provided the moral model on which penitentiaries would eventually be based. As important as their practical function was their symbolic deterrence: Bridewells made incarceration the least desirable option for the poor.

At the end of the seventeenth century, the system of Bridewells lost much of its desired effect. Not only was it underfunded and poorly administered, but, more importantly, the Bridewell system, according to Max Grünhut, was a poor fit with seventeenth-century English law, which demanded more serious degradations upon criminals, often in the form of executions, mutilations, or corporal punishments.⁷ Thus, for forms of idleness and vagrancy that bordered on criminal offences, judges were prone to consider harsher sentences than the Bridewell. Still, the idea of an institutional response to social disorder that centred on labour became deeply entrenched through the first century of English Bridewells. In the following century, a growing condemnation of capital punishment and torture led reformers to embrace the idea more completely as a form of legal punishment. The idea of a house of correction as a replacement for simple charity also gained widespread appeal with the English ruling class. In 1753 magistrate and novelist Henry Fielding proposed creating enormous workhouses for up to five thousand inmates, where the poorest and most hopeless cases—those who had little hope of ever buying their freedom—would face a life of hard labour.⁸ In proposing a new type of institution, Fielding was one of the few to suggest that crime control and poor relief had not kept pace with urban growth in London.⁹ His proposal contained the kernel of an idea that would explode into popular consciousness with the efforts of John Howard a generation later.

THE RISE OF THE PENITENTIARY

In the 1770s, a growing crisis of legitimacy surrounding legal punishment met with an emerging prison reform movement led by John Howard. This convergence gradually encompassed institutional forms of labour that had previously been reserved as a response to poverty. The legal crisis stemmed from growing uncertainty about the efficiency and legitimacy of the death penalty. Capital statutes throughout Europe had expanded steadily and rapidly through the eighteenth century. In England, the number of offences carrying the death penalty hovered around two hundred by the end of the 1700s. Paradoxically, and much to the frustration of legal authorities, ritual corporal punishment and public execution gradually lost much of their legitimacy and capacity to terrorize.¹⁰ Judges and juries increasingly resorted to imprisonment or transportation, which involved deporting convicted criminals to a penal colony. After the American Revolution, transportation was removed as an option, spurring a crisis of imprisonment in England as the prison population rose dramatically.¹¹ These developments coincided with the early years of the Industrial Revolution, when large-scale social and demographic changes accompanied the rise of industrial capitalism. During this period, dispossessed peasants flooded urban centres, London in particular, and the number of poor people claiming assistance grew accordingly. Reports of fever and epidemic in overcrowded local gaols alarmed English authorities and provided the impetus for new thinking about state punishment.

John Howard stepped into this void to propose a solution. A wealthy country squire who had purchased his way out of indenture due to his father’s entrepreneurial success, Howard was an atypical landlord, avoiding the trappings of wealth and ruling his small Bedfordshire estate through a combination of philanthropy and rigorous moral surveillance of his tenants. Michael Ignatieff argues that it was Howard’s Calvinist nonconformist beliefs that provided his sense of moral authority.¹² This ascetic bent led Howard on an intense search for a meaningful vocation, which he found in the cause of prison reform. After his selection as a county sheriff, Howard discovered widespread irregularity and abuse in local prisons. His disgust at the chaos he witnessed motivated him to tour every prison in England and Wales, an investigation that he chronicled meticulously in The State of the Prisons, published in 1777. He condemned the failure to post rules, the indiscriminate mixing of prisoners, and the unregulated exchange between the prison and the community.

More significant than his revelations about the chaos of English prisons were the solutions Howard proposed. His reform program was based not on existing models of legal punishment but on European responses to poverty. In his European travels, Howard had toured workhouses in Amsterdam and Rotterdam, and he considered the Rasp House to be the perfect institution. The Rasp House, essentially a highly regulated and disciplined workhouse moulded around the industry of wood rasping, originated in the sixteenth century and resembled modern penitentiaries in several respects. The routine was highly regimented, inmates slept in cells and performed labour together, the diet was superior to that of English Bridewell residents, and hygiene was rigorously enforced by a staff physician. Howard was attracted to the intensely Protestant character of the institution and modelled his proposals for reform on what he had witnessed in Holland. The Rasp House suggested the possibility of an institution that would accommodate criminals, and its regime aligned with Howard’s ascetic condemnation of idleness and disorder.¹³

Howard’s proposals galvanized a broad reform constituency that included Whig reformers, Jacobin radicals, and evangelical Quakers. This group joined with parliamentary reformers and city magistrates to echo Howard’s condemnation of the English prison system. The new reform movement was enshrined in the English Penitentiary Act of 1779, a piece of legislation that was a triumph for Howard’s reform ideas and that set English prisons on a more modern and rational course. It provided for the construction of two new penitentiaries in London built to Howard’s specifications. Providing accommodations for six hundred men and three hundred women, the prison’s organization closely resembled that of the Dutch Rasp House. Prisoners were to be confined in separate cells during the night and would labour in association during the day. The labour would be “of the hardest and most servile kind in which drudgery is chiefly required and where the work is little liable to be spoiled by Ignorance, Neglect or Obstinacy.”¹⁴ The prison was originally called the Hard Labour House, but Howard settled on penitentiary as a more fitting name for the institution he had designed. After initial enthusiasm, however, the movement to build this new prison lost much of its force in the 1780s, and by 1785 the project was abandoned. Still, as Randal McGowen argues, because other forms of legal punishment fell out of favour at the same time, Howard’s reform program entrenched the prison as the natural centre of legal punishment in England.¹⁵ Additionally, England’s Penitentiary Act served as a blueprint for the reform of existing institutions throughout the country. Dozens of prisons were reformed to more closely reflect Howard’s program. Thus, the idea of a new system of discipline spread quickly, and over time, the reform movement initiated by Howard colonized the consciousness of local legal authorities throughout England, causing them to bend the shape of legal punishment to the principles he championed.

Prison reform in post-Revolution America mirrored what was happening in England with some key differences. American prison reform was linked to a broader movement of legal reform, which was greatly influenced by post-Revolution cultural transformations. In the aftermath of independence, Americans readily adopted the Beccarian notion that bad laws cause social disorder.¹⁶ Eager to cast off the most oppressive English legal traditions, Republicans targeted the death penalty as the initial focus of reform. In the years after 1776, legal codes were amended to eliminate capital punishment for all but the most serious crimes. However, much like the end of transportation in England, the amendment of legal codes required a transformation in the infrastructure of American punishment. Thus, the next twenty years witnessed a flurry of prison construction throughout the American Northeast, beginning in Pennsylvania, where the Philadelphia gaol at Walnut Street was turned into a state penitentiary. Other states followed suit, and by 1833 the Auburn system, described below, was in operation in at least twelve states, including New York, New Hampshire, Missouri, Ohio, and Louisiana.¹⁷

The American preoccupation with reforming legal codes produced a certain confusion about what the new penitentiaries were intended to accomplish. David Rothman suggests that these early years were characterized by a widespread lack of consensus about the goals of the American prison system, particularly with regard to correction versus reformation. As he points out, “the confinement of a prisoner to a cell was convenient. Wardens did not intend for it to reform or elevate the criminal, or to have general applicability among all convicts.”¹⁸ Furthermore, much like English prisons prior to Howard’s reforms, the American penitentiaries were chaotic. Disorder was rampant, and, much to the disillusionment of legal authorities, the prisons appeared to foster criminal subcultures and conspiracies that merely propagated crime—whereas, following Beccaria, the assmption had been that legal reform would reduce crime. In almost every respect, the American prisons lagged behind the English penitentiaries by the span of a generation. This pattern was finally disrupted in the first decades of the nineteenth century by the advent of new ideas about penitentiary design and the importance of the relationship between imprisonment and labour.

Reforms in New York State ushered in a new mode of legal punishment: contractual penal servitude.¹⁹ Searching for new solutions to the ineffective early penitentiary system, New York experimented simultaneously with two new types of prison management in the newly constructed Auburn state prison. The so-called separate system involved the absolute isolation of prisoners in individual cells, where they slept, ate, and worked. The congregate system, later known as the Auburn system, was based on prisoners working together during the day and sleeping in individual cells. The solitary scheme was an abject failure: the isolated inmates quickly became sick, died, or became hopelessly mentally ill. In contrast, the congregate system was judged a success and thereafter formed the bedrock of the organization of prisoners in New York State.²⁰ The irony of this experiment carried out at Auburn is that the disagreement between isolation and congregate prisons became the dominant issue in prison reform debates for the next twenty years. Separate system institutions were constructed in multiple states. For two decades, prison reformers sniped at each other and charged the opposing system with failures, abuses, and distortions of the “pure” ideal of the penitentiary. Ultimately, however, the Auburn system became dominant throughout the American Northeast in the nineteenth century. The basis of its success was largely economic.

The Auburn system was based on practices that elevated discipline and production above all else. The radical program at Auburn was made possible by three legal reforms that permitted a more punitive and productive penitential system than the old one. First, new statutes introduced in 1819 repealed Republican laws banning the use of stocks, flogging, and irons in state prisons. This gave penal authorities the ability to punish prisoners in ways that would presumably improve productivity. Second, the law included provisions for making the penitentiary self-sufficient through the sale of inmate labour on the open market. To accomplish this, prison inspectors were instructed to locate the new institution near a marble quarry. Third, the law explicitly stated that the labour of New York prisoners could be sold to private contractors. This was perhaps the most revolutionary departure of all as lawmakers moved to integrate the penitentiary with capital markets in New York.²¹

In both disciplinary and economic terms, Auburn was an initial success. The discipline was of a magnitude never before practiced in American penitentiaries. The “silent system” demanded the absolute suppression of all communication. This regime was made possible by the 1819 repeal of restrictions on corporal punishment, and the law was eventually altered to such an extent that all prison officers could inflict summary punishment on any prisoners who broke the rules. This new disciplinary regime was essentially military in character and was carried out by prison authorities who had honed their severe approach as American officers in the War of 1812. Under this regime, the contract labour system quickly took root. A handful of private manufacturers brought machinery and tools into the institution and paid a fixed daily rate for the labour of the prisoners, providing a new revenue stream for Auburn and placing the institution in much better economic standing than had been the case before contracts with private enterprise. Although the state did not make a profit from these arrangements, the contracts provided valuable revenue to offset operating costs.²²

While it reflected older forms of confinement such as the workhouse or the Bridewell, the model created at Auburn was uniquely suited to the early period of industrialization in the American Northeast. Through the maturing of the Auburn system in New York and its expansion to other states, the penitentiary was increasingly drawn into the economic and social needs of capitalist development. As Rosalind Petchesky argues, the productivity of contractual penal servitude was inseparable from its ideological function of enforcing industrial discipline and the industrial work ethic.²³ Contractual penal servitude more fully integrated the prison with the capitalist system of production, even as this integration produced wide rifts of opposition and dissent. The new institutions were perfectly aligned with the emergence of industrial capitalism requiring a disciplined industrial workforce. This development could only have happened at this particular point of capitalist development: as Petchesky notes, it was a period of rapid accumulation, extreme competition, and very weak labour organization.²⁴ Thus, the use of prison labour was merely one manifestation of attempts to reduce wages as much as possible, a project that was aided and legitimated within the penitentiary by the stigma of criminality and imprisonment.

THE PENITENTIARY AT KINGSTON

Could contractual penal servitude be adopted in Upper Canada? In 1831 H. C. Thomson reported to the Upper Canadian House of Assembly on the question of whether to erect a penitentiary. His select committee report began by stating its primary question as a matter of truth: “The necessity of a penitentiary in this country must be obvious to anyone who has ever attended a court of justice in this province.”²⁵ Given the trajectory of legal reform in both England and America, Thomson was merely confirming the inevitable conclusion that Canada too must embrace imprisonment in the reform of its legal codes. Introduced into Québec after 1763 and into Upper Canada thirty years later, the English Criminal Code was under strenuous attack by the turn of the nineteenth century. As in England, the death penalty in Upper Canada had lost much of its deterrent value as judges and juries had recoiled from the idea of enforcing brutal sentences for minor offences. Corporal punishment had lost its effect in a similar manner, and by the nineteenth century, the threat of banishment had also ceased to function as an effective deterrent. All of this spurred a crisis of legitimacy that mobilized the push for legal reform and, more specifically, new approaches to punishment.

Imprisonment existed in limited forms in Upper Canada prior to the push for a penitentiary. As indicated by a 1792 statute ordering each district to erect a gaol and a courthouse, provincial authorities considered the gaol an important part of the new provincial criminal justice system,²⁶ although making these institutions a local responsibility produced a striking inconsistency from one district to the next. Gaols were used primarily to hold offenders awaiting trial, and the early structures were suited to little else.²⁷ However, as the provincial population grew and social instability became more apparent, authorities looked to the gaol to address a growing sense of social crisis. In 1810 the legislature passed an act declaring that, until “houses of correction” could be built in the province, the existing “common gaols” could serve this purpose. As Peter Oliver notes, this act was the first vagrancy statute, as is clear from its direction that “all and every idle and disorderly person, or rogues and vagabonds, and incorrigible rogues, or any other person or persons who may by law be subject to be committed to a House of Correction, shall be committed to the said common gaols.”²⁸ The impulse to incarcerate the poor and the idle was clear. Less certain was how the institutional response to such individuals would unfold. The local gaols proved ill-prepared for this project. There was no provision in most facilities for an industrial labour program; in some instances, the prisons were crude log structures. This incongruity between the institution and the statute was one more factor in the search for a new form of social response. The American example of an institution based upon industrial production proved extremely alluring to provincial legal authorities and reformers alike.

The reform movement combined two distinct constituencies with a particular stake in maintaining social order in Upper Canada: the Family Compact, represented by Chief Justice John Beverly Robertson, and an emerging bourgeoisie embodied by H. C. Thomson, sitting member for Frontenac and publisher of the Upper Canada Herald in Kingston. These distinct class interests converged over anxiety about the threat of crime and an increasing sense of demographic instability in Upper Canada.²⁹ While homegrown anxieties played a key role, it would be difficult to overestimate the American influence over the emerging Upper Canadian views about the penitentiary. Although English reform ideas under John Howard and Elizabeth Fry (the latter discussed in chapter 2) came first, it was the innovations of contractual penal servitude under the Auburn system that ignited the interest of the Canadian authorities. Thomson’s report hints at early Tory attitudes about the penitentiary as a new form of punishment. He intended that it should be as harsh as possible in order to serve as a deterrent. He wrote that the penitentiary should be a “place which by every means not cruel and not affecting the health of the offender shall be rendered so irksome and so terrible that during his afterlife he may dread nothing so much as a repetition of the punishment, and if possible, that he should prefer death to such a contingency. This can all be done by hard labor and privations and not only without expense to the province, but possibly bringing it a revenue.”³⁰

A year after the first select committee report, H. C. Thomson and Thomas Macaulay were appointed commissioners by the House of Assembly to investigate different styles of penitentiary and to propose a plan. Unsurprisingly, their tour took them straight to Auburn in New York, where they inspected the penitentiary in great detail. In their pilgrimage to Auburn, the commissioners could count themselves among the ranks of other prominent foreign visitors who were drawn to tour the revolutionary institution. France dispatched Alexis de Tocqueville and Gustave de Beaumont to tour American institutions, England sent William Crawford, and Prussia’s Nicholas Julius also visited.³¹ After seeing Auburn, Thomson and Macaulay visited several other Auburn-style institutions, including Sing Sing and Blackwell Island near Hartford. The tour was intended to take the commissioners to isolation-style penitentiaries in Philadelphia and Boston, but they were turned back due to a cholera outbreak in the region. Thus, their report described the Philadelphia system based on annual reports, but their description of Auburn, drawn from their firsthand inspection, was far more vivid and persuasive. They regarded the separate system as an experiment that had not proved its value. Auburn was therefore put forward as the best choice for a Canadian penitentiary. Above all else, the commissioners were impressed by the discipline of the system and the image of the inmates labouring together in silence. Not only did the quiet represent safety; it also suggested possibilities of industrial productivity that proved an irresistible lure to Canadian officials.

While at Auburn, the commissioners met deputy keeper William Powers. After returning to Upper Canada, they carried out a correspondence with Powers to finalize plans for the construction of a Canadian penitentiary. Canadian authorities moved swiftly on the recommendations of the select committee. In early February 1833, the Bill for the Erection of a Provincial Penitentiary received royal assent. Thomson and Macauley selected a site for the penitentiary on a hundred-acre lot two kilometres west of Kingston. Mirroring Auburn’s early development, the site was chosen for its proximity to vast limestone quarries in the area. The property sat between the highway and Hatter’s Bay, a village on Lake Ontario. The first commissioners’ report boasted, “Nothing indeed can surpass the convenience and beauty of this site.”³² Certainly, Thomson was also attuned to the potential advantages for his constituents that the new public institution would provide.³³ With the site of the new penitentiary chosen, the commissioners returned to New York State, where they convinced William Powers to leave Auburn and serve as building superintendent for the construction of the new institution. Since it was Powers who had provided the detailed plans for the governance of the Auburn system, the commissioners considered him indispensible in constructing the penitentiary to the correct specifications. The commissioners opted to have the penitentiary constructed by day labourers under Powers’s direction rather than securing a contract. They judged that this would be less expensive and that once the penitentiary had reached a level of construction that would allow the arrival of inmates, the remainder of the institution could be completed by inexpensive convict labour. This decision would dramatically affect the profitability and governance of the institution. Construction delays dragged the completion of Kingston Penitentiary into the 1850s.

Although H. C. Thomson was the clear choice for the first warden, his death in 1834 prompted a search. Kingston physician James Sampson (who would later be appointed the penitentiary surgeon) put forward Henry Smith as a possibility. Smith was a Kingston magistrate and businessman, and was already connected to the penitentiary through his role as the district building commissioner. He was appointed warden at the first meeting of the new board of inspectors in 1835. Powers stayed at Kingston as deputy warden and continued to superintend the ongoing construction of the institution. By April 1835, the penitentiary was ready to accept its first prisoners, and in September of that year, fifty-five men and two women arrived at Kingston from the Home District to be admitted as the first Canadian penitentiary inmates.

NINETEENTH-CENTURY LABOUR IDEOLOGY

Although labour under confinement had long been regarded as an effective response to poverty and idleness, only in the late eighteenth century was it applied more regularly as a means of legal punishment. Why did the architects of the new methods of imprisonment settle on labour as the basis of the new system? The labour ideology that underpinned modern penitentiaries was rooted in two separate conceptions of the importance and utility of labour in the nineteenth century. The first was a deep-seated moral condemnation of idleness and a belief in the reformative value of work. This view, rooted in Christian theology, gradually gave way to ideas about labour that stressed punishment and deterrence. The second ideology had a more direct economic meaning: it positioned the penitentiary as a means of social and class control, and, increasingly, as a method of industrial discipline. The transition from the first meaning to the second shaped the evolution of the modern penitentiary in the early nineteenth century.

A wide spectrum of Americans were interested in prison reform issues at the end of the eighteenth century, but it was Quaker humanitarians who led the charge for new approaches to criminal justice, with New York and Pennsylvania at the centre of their efforts. In New York, the Quaker influence was best represented by merchant Thomas Eddy. Active in anti-poverty philanthropy, Eddy was also a leading legal reformer who helped draft legislation to abolish capital statutes in favour of lengthy prison sentences. He was made the first warden of Newgate Prison in New York City, an institution that he built on the foundations of his Quaker beliefs, which dictated a disciplined and ordered life based on self-denial, reflection through isolation, and, above all else, the unceasing routine of daily labour. Thoroughly familiar with the English reforms inspired by John Howard, Eddy pushed the new focus on cleanliness and routine in a direction that stressed individual reformation as the end result.

For some reformers, including Eddy, the idea of reformation was at the core of the new focus on labour. Adhering to an emerging Protestant ethic, Eddy believed that idleness was at the root of deviance. He promoted the idea that even the most depraved criminal could access moral salvation through disciplined labour. The newly constructed Newgate Prison was essentially a modification of early prison regimes that Eddy had witnessed in Pennsylvania. At the Walnut Street Prison in Philadelphia, for example, Quaker reformers had constructed early versions of the isolation system. In almost every way, Walnut Street was an institution devoted purely to the idea of reformation, its organization of criminals related directly to Calvinist notions of depravation and denial. The contribution of the New York reformers like Eddy was to marry these theological ideas about individual reformation to a mercantilist system of accumulation. At their root, however, both ideas positioned labour as a central agency of individual reform.³⁴

Quaker religious doctrines were uniquely suited to the new forms of imprisonment.³⁵ Among the most important was a belief in the piety of capital accumulation as a complement to a life of personal self-denial. This new blend of Calvinism and capitalism saved entrepreneurs like Thomas Eddy from the guilt that arose from the pursuit of material self-interest by recasting it as a spiritual quest. In this light, accumulation was positioned as the opposite of poverty, idleness, and moral degradation.³⁶ It is significant that this was ultimately adopted more widely as a bourgeois ideology. It was appropriated by emerging humanitarian interests and imposed as a project of moral governance upon the poor. Under Eddy’s stewardship, Newgate operated as a reformatory institution turned to capitalist pursuits.

American reformers in this period were in constant contact with their European counterparts and incorporated John Howard’s practical reforms along with the heritage of the European workhouse. Eddy’s humanitarianism pervaded this early prison experiment, and Newgate featured purely moral compulsions and a notable absence of corporal punishment. The regime did not last. After a series of riots, escape attempts, and uprisings, Eddy was ousted as warden and a stricter disciplinary regime was implemented at Newgate.³⁷ Although one lasting effect of the experiment under Thomas Eddy was the entrenchment of the connection between labour and reformation in the minds of penal reformers, in New York and, later, Upper Canada, the idea of reformation largely receded and became dormant as labour ideology swung toward industrial discipline under the system of contractual penal servitude. What remained was the expectation of profit and productivity, laying waste to old notions about hard labour or the treadmill that promoted work for the sake of work. The Quaker influence essentially transformed penitentiary labour into an institution geared toward the needs of capitalist accumulation.

The second strain of labour ideology emerged as humanitarian and philanthropic interests lost control of the early penitentiary agenda. After Thomas Eddy’s failure to impose a primarily moral regime at Newgate, New York State moved in a newly punitive direction, abandoning the notion that prison labour rehabilitates criminals and instead focusing on the goal of disciplining and punishing crime through hard labour. Rather than moral governance, the penitentiary remained as a method of pure compulsion, deterrence, and punishment. According to New York Governor Dewitt Clinton, the penitentiary would serve to “crush” the spirit of “dangerous offenders.”³⁸ Thus, in the minds of those governing the institutions born of Quaker evangelical impulses, the new direction replaced reformation with oppression. Elam Lynds, one of Auburn’s earliest wardens, exhibited positive scorn for any hint of philosophical reflection in penitentiary administration. Lynds ruled with the whip and found that he was generally supported by his political masters.³⁹ Labour was still at the heart of this approach, though it now served primarily as a tool of discipline and a means to profit.

In Canada, the Tory appetite for new methods of social control over an unstable demographic was perfectly aligned with the conception of the penitentiary emerging in New York State. Viewing the penitentiary as a potentially powerful method of industrial discipline, the Tory ruling class recognized the compatibility between the new institution and its views of a stratified society. In this sense, new ideas about penitentiary labour still served bourgeois interests, but by the time Kingston Penitentiary was built, this was an ideology stripped of its evangelical origins. In the decades after Kingston opened, however, it would become obvious (as it had in New York) that the labour ideology behind the institution was built on unstable foundations. Opposition to penitentiary labour in the 1830s would also reveal the first cracks in a long-standing Tory hegemony.

PENITENTIARY LABOUR AND ITS OPPONENTS

In both New York and Upper Canada, the penitentiary drew the ire of nascent workingmen’s movements opposed to competition with convict labour. Opposition from the American movement directly followed Auburn and Sing Sing’s entry onto the open markets with the products of contractual penal servitude. There were numerous dimensions to the growing opposition to convict labour. McLennan argues that while the labour question was spurred by the threat of unfair competition, the issue acted as a conductor for larger anxieties about economic transformation in the industrializing economy of New York State. As a number of crafts and trades industrialized, journeymen and apprentices faced a troubling transition to a system of waged labour. When the traditional protections of their crafts were threatened and then gradually fell away, mechanics opposed competition with the prison workforce not only on economic grounds but also because they regarded it as an affront to their dignity and respectability.⁴⁰

The New York mechanics took action. In the early 1830s, the state legislature was besieged by letters and petitions demanding an end to the prison industrial system. Workingmen represented over 100,000 constituents, and New York legislators responded quickly. Public hearings in 1835 resulted in rules that contracts in the prisons could only supply goods that were not produced within the state. Furthermore, to avoid producing new workers within prison walls who might one day compete with free labour, legislators determined that only convicts with prior industrial training could be put to work in prison trades.⁴¹ Throughout the 1830s, however, prison contract holders devised innumerable ways to circumvent these regulations. It was not until the 1840s that new legislation actually restricted the scope of prison industry in the state. Numerous prison contracts were voided due to past violations, and prison industry was transformed to focus on unskilled labour in the production of railroad materials and the fur-cutting industry. Even more significant, in the 1840s New York embarked on the construction of a new prison near Dannemora that would be entirely devoted to iron-smelting, an industry with no prior foothold in the state.⁴²

Upper Canadian mechanics were less effective in opposing the rise of penitentiary labour. While Kingston Penitentiary was in the earliest stages of construction, Kingston mechanics marshalled their numbers to condemn the prospect of competition with convict labour. This opposition, spurred by concerns similar to those of the New York mechanics, was shaped and directed by Reform Party interests expressing some of the first substantial opposition to the Tory hegemony in Kingston. In 1833 a group of tradesmen and workingmen drafted a series of resolutions condemning convict labour in Upper Canada. A petition was presented to the House of Assembly informing legislators of the threat that the institution posed to honest workingmen in the province.⁴³ The mechanics’ opposition tended to rise and fall with the prospect of electoral victory for the Reform Party. When Reform candidate William O’Grady was soundly defeated in the election of 1834, for example, the opposition movement retreated. Unable to mount a significant political challenge, the mechanics were easily placated by Tory authorities.

Kingston newspapers reiterated the government position on prison labour. Both the Chronicle and the Gazette assured the public that the products of prison labour would not be sold below market prices and that the goods would be dispersed throughout the province.⁴⁴ Representing the riding of Kingston in the House of Assembly, Christopher Hagerman personified the duplicity of the Tory position on the labour question. When the opposition movement rose again in 1835 after the opening of the penitentiary, Hagerman assured Kingston mechanics that they would not be in competition with prison labour and that the convicts would be engaged in breaking stone for road construction. This position directly contradicted the grounds on which Tory authorities were proceeding in the pursuit of a penitentiary. When Macaulay and Thomson visited Auburn in the early 1830s, they accepted the Auburn system on Powers’s assurances that the penitentiary could support itself (and indeed, turn a profit) through the strength of its prison industries and their advantageous competitive position with free labour. Within a year of opening, the Kingston mechanics were vexed to realize that Hagerman had lied and that the penitentiary was indeed engaged in contract labour on the open market.⁴⁵

The opposition of free labour to contractual penal servitude exposed one of the central, yet unacknowledged, fallacies of nineteenth-century penal ideology: that industrial training provided the opportunity for convicts to re-enter the productive working class once they were released from the penitentiary. However, although penitentiary discipline could compel convicts to behave as workers while incarcerated, this provided no guarantee of continued productivity after release. Chief among the barriers to such a transformation was the working class itself, which viewed the penitentiary project with a combination of suspicion and disgust. This position illustrated early class struggle in the Kingston area. Members of the producing classes opposed what they saw as the degradation of their honour through the competition (and implied association) with penitentiary labour. This opposition also spoke to the effect the penitentiary had over class differentiation. The argument of the Kingston mechanics was largely based in protection of their specific skills, which were threatened by a new mode of production represented by the penitentiary, limited as its reach may have been. Furthermore, to the producing classes, a penitentiary constructed on industrial principles represented not only an economic threat but also a psychological one.

The labour ideology advanced in the penitentiary was rooted in industrial discipline of a class of workers who were well suited to the emerging industrial order, which demanded disciplined, often unskilled wage labourers to fulfill the demand of industrial production. In the opposition of the Kingston mechanics, this ideology came up against a producer ideology that associated the wealth of the nation with the skilled labour of master craftsmen and mechanics, and their alliance with manufacturers.⁴⁶ Wage labour seriously threatened this producer ideology, and penitentiary labour appeared as a particularly sinister manifestation of this threat. It is this ideological weight attributed to labour in the penitentiary that explains the scope of the opposition to contractual penal servitude. Though its economic reach in Canada was limited, the threat was taken seriously, all the more because of what it symbolized. The challenge mounted by mechanics of New York and Upper Canada was advanced on economic, political, and ideological grounds. By 1840 New York mechanics had successfully opposed the widespread adoption of contractual penal servitude. In Canada, it was the financial mismanagement of Kingston Penitentiary that produced the soundest defeat of the Auburn system, in the institution’s first decade.

THE LIMITS OF PENITENTIARY LABOUR

The high hopes expressed at the initial adoption of the Auburn system in Canada were almost immediately dashed. By 1835 only the most basic elements of the plans provided by Powers were completed. The prison opened in a state that barely resembled the institutions in New York that had inspired it. Kingston contained no separate accommodation for women, no hospital facilities, and, most distressingly, no permanent workshops. The shops that were in operation by 1838 included a stone shed, a carpentry shop, and blacksmithing and shoemaker shops, but these were constructed in a “slight, temporary manner” and the inspectors reported that they would soon go to decay. Even the inner boundary wall was a flimsy wooden construction, presenting a pressing security concern.⁴⁷ In 1838 the inspectors reported that the penitentiary was still far from complete and made pessimistic projections for the completion date of various ongoing projects. Much of the available convict labour was consumed by the lagging construction of the north wing, which still had no permanent roof. The east wing of the building would take at least two years to finish, and the inspectors projected a similar delay for the boundary wall. There was even less hope for the workshops. An annual report stated that it would take the labour of two hundred convicts to build the shops as they were originally designed.⁴⁸ Christopher Adamson suggests that much of this delay was due to the scarcity of skilled labour in the Kingston region between 1833 and 1836.⁴⁹ However, even if skilled workers could have been found to assist with the construction, it was unlikely that the administration possessed the financial resources to hire such a workforce. Within two years of opening, penitentiary administrators were requesting more money from the provincial government than legislators were prepared to grant, but their pleas fell on deaf ears. Still expecting the penitentiary to draw funds from the products of private industrial contracts, the province slashed penitentiary budgets between 1838 and 1840 by 20 to 30 percent. By 1840 the administration was in debt by two thousand pounds and was forced to dramatically reduce spending, which included laying off newly hired guards and attempting to move forward on what the warden called “a reduced scale.”⁵⁰

Throughout these early years, the penitentiary held contracts for shoemaking, blacksmithing, some limited carpentry, and stonecutting connected to the limestone quarries. Still, the amount of labour performed on a contract basis was extremely limited. For example, in 1838 the blacksmiths, stonecutters, carpenters, and shoemakers performed 1,767 days of contractual labour, resulting in revenue of £214 17s. In comparison, construction and maintenance of the institution in 1838 consumed 41,053 days of labour. The bulk of the profitable production came from a small gang of twelve shoemakers producing Coburg boots for sale on the open market. In an irony that will be explored more fully in chapter 5, the shoemaker gang was composed of convicts who were elderly, infirm, or physically disabled and unfit for any other form of labour.⁵¹

The only glimmer of success occurred in 1840 with the construction of a rope factory. The ropewalk was constructed at great expense, and the penitentiary signed a contract with a private manufacturer to manage the operation. In the first year, the ropewalk contributed £769 8s to the penitentiary, an advantage gained on the basis of a daily rate of labour that was nearly twice that paid to the shoemakers. With an eye to the workingman’s opposition movement, which had been dormant for five years, the inspectors noted that the ropewalk was an attractive industry as it would not interfere with the pursuits of the “honest mechanic.”⁵² But the financial advantage was short lived. In its second year, the price of rope depreciated by 25 percent and initial plans to expand the ropewalk to produce different gauges were abandoned. By 1844 the contract had lapsed and the ropewalk subsequently fell into disrepair. Finally, the warden determined that the machinery and equipment occupied ground required for the penitentiary garden, and the ropewalk was disassembled.⁵³

The productivity of the penitentiary as a capital enterprise declined rapidly from the earliest years as the convict population increased. Labour performed on contract peaked in 1840 when 7,705 days were charged to private industry out of a total of 44,885 days for the entire institution. After that, productivity fell every year until the post-Confederation era. In 1847 only 1,387 days of labour were charged to private industry while the total labour performed had expanded to 130,206 days. The latter number reflects the rapidly increasing convict population, resulting in part from the transfer of Lower Canadian prisoners after the Act of Union in 1840.⁵⁴ As the penitentiary accepted more and more prisoners, they were simply folded into the seemingly never-ending construction project. In 1847 the inspectors reported that the workshops, outer walls, and roofs of the various buildings were nearing completion and that convict labour would soon turn to construction of the penitentiary hospital and women’s prison. However, it was not until 1857 that the penitentiary was finally completed to the specifications provided by Powers in the early 1830s.

When Macaulay and Thomson visited the Auburn penitentiary in 1831, they were astonished by its resemblance to the most advanced industrial factories in the American North. However, much of the promise that sold the Auburn system all over North America was merely an illusion. The institution was far from the orderly and penitent haven that visitors witnessed. Untenable even in its original form in New York, the ideology and practice of contractual penal servitude imported to Upper Canada was unsustainable under the crushing inefficiency and ineptitude of the administration at Kingston Penitentiary. Along with the abandonment and failure of labour as a profitable venture, the promised order and “correction” that was intended to accompany the Auburn system was also revealed to be illusory.

ENFORCING PENAL SERVITUDE

Bryan Palmer notes that in the mid-1830s, the Kingston mechanics were perhaps the first to suggest that the penitentiary regime at Kingston was characterized by pervasive brutality and ongoing abuse.⁵⁵ The truth of these claims came to light a decade later under the investigation of the Brown Commission. Along with the Auburn approach to contractual penal servitude, Kingston imported Auburn’s legacy of violence. Visitors and dignitaries who toured the Auburn penitentiary (and to a lesser degree, Sing Sing) saw the order and silence of the institution but not the methods of compulsion that enforced the discipline. The resort to violence was not in the design of the earliest reformers. Rather, the disciplinary regime was improvised by personnel who were given charge of the institutions. It was Captain Elam Lynds, taking command of Auburn in 1825, who instigated much of the harshest physical punishment in the disciplinary regime. Lynds prohibited all conversation, grimacing, signalling, smiling, and eye contact between prisoners and with guards. He also set the institution to a military rhythm, instituting the lockstep march and militaristic uniforms.

Much of the new disciplinary regime, particularly the absolute curtailment of communication, was an effort to break down the old inmate subcultures of traditional penitentiaries. With these privileges fell the last lingering ideas of prisoners as bearers of “customary rights,” ideas that had characterized prisons in the eighteenth century.⁵⁶ W. David Lewis notes that these rights died hard under a new legal spirit determined to crush the criminal offender under the might of the state. For example, convicts and their supporters mounted a legal challenge against the new practice of summary whippings instituted under Lynds in 1825. They were defeated when a local judge ruled that summary whipping, despite the existence of a statute to the contrary, was “the common law right” of the master.⁵⁷ With the blessing of legal authorities, penitentiary officials everywhere gradually implemented more punitive disciplinary regimes.

Soon after the 1825 legal challenge in New York, reports of unrestrained brutality at Auburn came to light. In 1826 a pregnant inmate died as the result of a whipping. The situation at Sing Sing was worse. There the discipline became completely arbitrary and subject to no administrative control. The keepers were instructed to strike the convicts with whatever weapon came to hand for the slightest infractions of the rule of silence. By 1828 there were rampant reports of the increasing violence practiced on Sing Sing inmates, with some accounts charging that the prisoners were being whipped on particularly sensitive parts of the body including the genitals. Mark Colvin notes that the severity of discipline at Sing Sing was due in part to the impression that urban convicts from New York City were inherently more dangerous and depraved than their upstate counterparts.⁵⁸ As Rothman argues, this deviation can be explained by remembering that in the 1820s, the penitentiary was still regarded as a social experiment, and this granted administrators a large degree of leeway. The notion that prisoners might yet overpower their keepers was still a palpable concern in the penitentiary’s first decade, and this created the conditions for grievous abuses. When questions were raised, penitentiary authorities vigorously defended their use of violence. An official at Auburn argued to the state legislature in 1834 that convicts “must be made to know that here, they must submit to every regulation, and obey every command of their keepers.” The same year, the chaplain at Auburn opined, “It would be most unfortunate … if the public were to settle down into repugnance to the use of such coercive means.”⁵⁹

Wherever the Auburn system was implemented, harsh disciplinary regimes followed. Penitentiaries throughout the Northeast gradually came to rely almost exclusively on corporal punishment (but not exclusively on the whip in every institution). McLennan argues that it was, in part, the necessities of the contract labour system that motivated much of the demand for this order enforced by violence. When discipline was at its strictest, profit for the contract system was maximized. Thus, the discipline of the Auburn penitentiary was calculated to create docile subjects in order to wring out of them the maximum productivity.⁶⁰

Given the American experience with the Auburn system, it is unsurprising that the same violent regime was replicated at Kingston Penitentiary. The potential for abuse was heightened by Warden Henry Smith’s ongoing quest to consolidate his power and authority over the penitentiary administration. In the first years after opening, Smith feuded with Deputy Warden William Powers, who had accepted a reduced salary from his previous position as building superintendent. The relationship between Smith and Powers deteriorated rapidly in the first years after Kingston opened. On two separate occasions, Smith brought a series of superficial charges against Powers, which the penitentiary board eventually dismissed. Smith had deep Tory roots in the Kingston area that Powers lacked, and this explains the support Smith enjoyed from the first penitentiary board.⁶¹ The tension reached a breaking point in 1840, and Powers departed, a decision that split the penitentiary board on whether Powers or Smith was to blame for the administrative strife. The board came down on the side of Smith, partly because Powers was an American and they regarded it as unusual that he should hold a public posting in Upper Canada.⁶²

Powers’s departure did not end the climate of conflict at Kingston. The deputy warden position was changed to the rank of assistant warden to clarify that Smith possessed the highest authority in the institution. The new position was filled by Edward Utting, who became the chief disciplinary officer at Kingston. Utting was not the submissive figure Smith had hoped for. A former warden of Westminster Bridewell, Utting assumed the role of strict disciplinarian over both convicts and keepers in his new position at Kingston. Not only did he implement a new spirit of discipline over the prisoners; he laid charge after charge against the penitentiary staff, reporting each instance of incompetence and laxity that he discovered. Warden Smith worked to undermine and ultimately disgrace Utting.⁶³

In 1846 Smith and his son, sitting Tory member Henry Smith Jr. drafted new penitentiary legislation, which was tabled in the House of Assembly without being reviewed by the penitentiary board. Using his son to directly influence the new legislation, Warden Smith manoeuvered past the board to increase further his power and authority. The 1846 act gave him the authority to hire and fire penitentiary officials without the board’s approval. It also increased the salary of the warden and decreased the salaries of other senior penitentiary officials. As the act was written, it gave Smith a voting seat on the board of inspectors and the power to determine sentencing for Kingston prisoners. Although these measures were eliminated from the final version, Smith still assumed sweeping new powers. With his newfound authority, he removed Assistant Warden Utting from his post and appointed a new deputy. He also appointed his second son, Francis (Frank) Smith, as the new kitchen keeper. Disgusted at Smith’s bald pursuit of power and their own marginalization, the penitentiary board members resigned in 1846. Although Warden Smith’s power at Kingston was at its zenith in that year, he would soon be overtaken by the growing public awareness that the penitentiary was rife with corruption and abuse.

The attack on Smith’s regime came from two directions. First, after largely ignoring the penitentiary for a decade, Canada West newspapers focused their attention squarely on the affairs of the institution. Articles appeared in the Hamilton Spectator and the Toronto-based Globe proclaiming an all-out crusade to rescue the inmates of Kingston Penitentiary. This mission was spearheaded by the Globe’s editor, George Brown, who charged that the penitentiary had become a “den of brutality” and informed his readers of the rampant and unrestrained corporal punishment practised at the penitentiary. In an 1846 editorial, Brown thundered:

A hundred and fifty lashes must be given in this den of brutality every day the sun rises. Who can calculate the amount of pain and of agony that must be imposed in this pandemonium? Who can tell the amount of evil passions, of revenge, and of malice, that must be engendered by such treatment? A penitentiary is a place where the prisoner should reflect on the past, and be placed under such a system of moral training as may fit him for becoming a better member of society. Will the lash do that?⁶⁴

The second attack came from within the administration. Penitentiary surgeon James Sampson laid formal charges against Frank Smith, the warden’s son. The charges of misconduct against Smith included shooting arrows at convicts, improper conduct with female prisoners, abusing the convicts for his own pleasure, and a host of financial corruptions in his position as kitchen keeper. Frank Smith was acquitted of all charges before the penitentiary board, but this did little to calm the furor brewing in the press. Although the warden, Henry Smith, enjoyed the support of the penitentiary board even in the face of these challenges, changes in the political landscape of Canada West in 1848 ended his good fortune. When Reform swept the Tories from power in early 1848, the first act of the Baldwin-Lafontaine government was to create a commission for the investigation of the management of Kingston Penitentiary. The commission was intensely partisan, containing five Reform supporters and falling under the leadership of George Brown, who served as secretary.⁶⁵ The commission would soon expose the litany of abuse and irregularities that had developed under contractual penal servitude at Kingston Penitentiary.

INVESTIGATING KINGSTON PENITENTIARY

The Brown Commission investigated eleven main charges against the Smith regime. These fell under three broad categories—peculation, cruelty, and mismanagement. The investigation of corporal punishment elicited the most disgust. The official charge against the Smith administration was “pursuing a system of punishment, in the management of the discipline—cruel, indiscriminate, and ineffective” (Brown Commission, 182). In the course of their investigation of this charge, the commission uncovered evidence of a horrific disciplinary regime. The sheer volume of punishment at Kingston, hinted at in the press but revealed in full by the investigation, made a damning case against the warden and his staff. Proper records had not been kept between 1835 and 1842, but the penitentiary registers for 1843 showed 770 corporal punishments. By 1845 this had risen to 2,102, and by 1846, to 6,063 punishments for 262 prisoners (189). The Brown Commission report estimated that by 1846 the penitentiary was inflicting seven corporal punishments per day, and that the total represented four to five punishments per year for every man, woman, and child in the institution (189). The severity of these punishments was found grossly disproportionate to the nature of offences, and punishment was wildly inconsistent, in part because five different officials in the penitentiary were authorized to order punishment. Thus, for minor transgressions, prisoners sometimes suffered only bread and water or the dark cell, but for the same infractions, perhaps talking at dinner, the most severe punishments, including flogging, could be inflicted.

Between 1835 and 1842, the only punishments at Kingston were corporal. These included the cat-o’-nine tails and a rawhide whip. The cat-o’-nine tails—or “the cats,” as it was commonly known—was traditionally an instrument of military discipline. It was made of lengths of rope with three knots on each thong. Before being flogged, prisoners were stripped to the waist and bound to the “triangle,” which spread the arms and legs outwards, leaving the bare back exposed.⁶⁶ After 1842 the penitentiary added punishments of isolation and restraint, including shackling or ironing of the arms and legs, solitary confinement, and, after 1847, “the box.” The box was a restraining punishment: prisoners were locked in a coffin-like enclosure designed to keep the body in an immobilized standing position, sometimes for as many as eight or nine hours at a time. The Brown Commission heard testimony from Maurice Phelan on his experience with the box. Punished for quarrelling, Phelan was confined this way for nine hours. He described how he fainted repeatedly and when he got out was “completely benumbed” (Brown Commission, 45).

The commission also uncovered evidence of the indiscriminate and brutal use of corporal punishment. Flogging with the cats was administered for the slightest infractions, including talking, laughing, and making eye contact with keepers and guards. Furthermore, prisoners were frequently flogged on successive days, which did not allow for proper healing of the wounds from previous whippings. The commission cited evidence about prisoner Donovan, who suffered floggings on seven successive days in May 1845 and was flogged four times within a week the following month (185). Witnesses testified that prisoners with severely lacerated backs, “positively black, from previous punishment,” were flogged with the cats. A former assistant warden, Edward Utting, testified that prisoners had begged him not to whip them “when their backs were much bruised from former punishment” (184). This testimony was underlined by evidence of the bodily damage inflicted by corporal punishment, and particularly by the cats. Witness John H. Freeland testified, “The cat lacerates the back and breasts, the blood flows, and the skin becomes black.” James Kearns added, “The cats were laid on the bare back; it made the whole back raw; brought blood at almost every stroke” (183).

The scandal deepened when investigators uncovered evidence of the unrestrained punishment of women, children, and the mentally ill. The commissioners discovered that at least five prisoners exhibiting signs of mental illness had been brutally flogged. In December 1847, penitentiary surgeon James Sampson reported that prisoner James Brown was insane. Punishment registers examined by the Brown Commission showed that the prisoner was flogged with the cats at least thirty-six times, receiving a total of 1,002 lashes (198). The surgeon would not testify that Brown was insane at the time of these punishments, but other penitentiary officials and keepers did: Chaplain R. V. Rogers testified that he had always considered Brown to be insane and that Brown was often punished for acts committed under the influence of insanity. At least ten other witnesses, all penitentiary staff members, declared that they considered Brown to be mentally ill (197). In his own defence, an unrepentant Warden Smith stated that Brown “was not mad, but a violent, bad character, who deserved all the punishment he got, and was the better for it” (196).

The Brown Commission report had less to say about the flogging of women at Kingston except to condemn the practice. The evidence stated that female prisoners as young as twelve had received corporal punishment. The report noted that twelve-year-old Elizabeth Breen had been whipped on six separate occasions with the rawhide. The commission concluded, “We are of the opinion that the practice of flogging women is utterly indefensible” (190). When the penitentiary statute was rewritten in 1851, the government passed an amendment banning corporal punishment for women.

Although the corporal punishment of women elicited disgust, it aroused nowhere near the controversy of floggings inflicted on young children throughout Smith’s regime. The Brown Commission’s condemnation of the flogging of child prisoners was absolute. The report stated, “It is horrifying to think of a child of 11 to 14 years of age, being lacerated with the lash before 500 grown men; to say nothing of the cruelty, the effect of such a scene, so often repeated, must have been to the last degree brutalizing” (192). The evidence presented before the commission was difficult to dispute. Eleven-year-old Alexis Lafleur was flogged thirty-eight times with the rawhide and six times with the cats. Peter Charboneau, age ten, was flogged sixty-two times with the rawhide and was also subjected to the box at least thirteen times. Eight-year-old Antoine Beauché (brother of Narcisse) received forty-seven corporal punishments in the eight months after his committal to the penitentiary. All four children mentioned in the report were punished for trifling and childish behaviour such as talking, staring, making faces, or winking, and all were French Canadians (190–95).

In each of the four cases, Warden Smith and other penitentiary staff argued that the punishment was necessary due to the troublesome, difficult, or incorrigible character of the children in question. The warden insisted that Lafleur was a “wild character” and that his punishments were all necessary (191). When cross-examined by the warden, Thomas Costen stated that “Peter Charboneau is a very bad, troublesome little boy; idle and talkative … he was never punished without a cause” (193). Edward Utting, however, testified in Charboneau’s defence: “He was a mere child. He should have had a kind word, rather than punishment” (198). Yet among the penitentiary officers who were involved in the punishment of children, they often offered the same defence in each case. In one reply, keeper Thomas Hooper protested that Beauché was “continually breaking the rules while here…. It was absolutely necessary to punish him to keep him in proper order” (194). These obtuse references to necessity and order received the commission’s highest condemnation. The report concluded that such punishments represented “another case of revolting inhumanity” (194). Interestingly, the Brown Commission made no specific comment on the appropriateness or inhumanity of imprisonment itself as a punishment for children. In this early era, it was accepted that children (like women) should be subject to the same punishments as male adults. In many respects, this was a class issue. Several historians of childhood point out that working-class children worked alongside adults as a matter of basic familial economic survival.⁶⁷ Moreover, in the early part of the nineteenth century, there was little notion of “separate” institutions designed to foster children from youth to adulthood, particularly in working-class life.⁶⁸

While the corporal punishment regime demonstrated barbaric practices, much of the inhumanity of the Smith regime seemed to be embodied in the actions of Henry Smith’s son, Frank Smith, the kitchen keeper. The third of the eleven charges against the warden accused him of culpability in reference to his son, by “permitting the said F. W. Smith for nearly two years, to set every feeling of humanity and rule of good order at defiance” (Brown Commission, ii). It was a broad charge, but the commission was in possession of overwhelming evidence that much of the chaos of the penitentiary could be directly attributed to Frank Smith. This evidence was supported by testimony given two years earlier in the penitentiary board investigation of Dr. Sampson’s charges against the kitchen keeper. It painted a picture of Frank Smith as a terror to convicts and keepers alike. The warden’s son had been regarded with much suspicion when he was given the position of kitchen keeper in 1846. At thirty years of age, he had been the deputy sheriff of the Midland District and regarded as a “damned rascal” (126). He was relieved of his position as sheriff due to financial irregularities. When Warden Smith proposed his son to replace Edward Utting as his deputy warden, the board balked at this suggestion and gave Frank Smith the position of kitchen keeper instead. Although subordinate to the deputy warden, the kitchen keeper had a high degree of financial responsibility since he was in charge of thousands of pounds worth of property throughout the penitentiary. It had not taken Frank Smith long to turn this to his financial advantage. Witness after witness testified to Smith’s ongoing exploitation of his position and the vigorous trafficking of penitentiary goods to the guards and outside interests. He had received groceries and produce on penitentiary accounts for his own use, and there was no piece of penitentiary equipment Smith would not dispose of for financial gain.

More troubling than the financial corruption was Frank Smith’s treatment of the prisoners. He would knock convicts’ heads together when seated at dinner, strike them in the elbows and knees with his key ring as they passed, or stand at the door of the cellblock and throw potatoes and stones at the convicts in their cells. Frank Smith found all of this hilarious. On repeated occasions, he had used the penitentiary fire engine (a rudimentary pump on wheels) to drench the prisoners as they worked outdoors (303). He would compel prisoners to open their mouths on the pretense of searching for chewing tobacco and then throw salt or snow into them, or spit tobacco juice into them (305). Other keepers in the penitentiary also suffered. On one occasion, Smith surprised keeper Little by throwing flour into his eyes. When former guard Thomas Fitzgerald was asked by investigators why the convicts and guards had not complained about this abuse, he simply stated that all of them were afraid of Frank Smith: the guards because of his connection to the warden, and the prisoners because of the threat of future retribution (302). His authority unquestioned, Smith had used the penitentiary and its inmates as his personal source of entertainment. Sometimes prisoners who were favoured were enlisted in his pursuits. Fitzgerald testified that Frank Smith would stand by in the washhouse laughing as a group of convicts held a fellow inmate’s head underwater in a basin (302).

The hospital keeper testified that on several occasions he had witnessed convicts with “blackened faces” who would perform routines for Smith’s amusement. In blackface, the performers would wrestle each other or dance and gesticulate wildly (301). There was also veiled suggestion in the testimony that Frank Smith took sexual liberties with the female convicts. A former matron, Julia Cox, testified that Smith had been seen “putting women in the blackhole,” and that he very rarely visited this part of the prison in the regular course of his duties (303). All of this created a portrait of an institution that was ruled under a veil of silence and discipline, yet was punctuated by incidents of utter bedlam. Through it all, Warden Henry Smith presided and failed to intervene.

Frank Smith’s most troubling transgressions involved incidents of cruel and sadistic torture of the prisoners under his care. He seemed unable to resist the opportunity to inflict suffering and misery on prisoners in a vulnerable state. This impulse was frequently satisfied upon prisoners trapped in the box, immobilized and utterly helpless. Discharged convict Henry Wilson testified that Smith had stuck pins into his arms and legs. Another former prisoner testified that Smith had thrown water on him while he was confined in the box. A former hospital keeper told the commission that Frank Smith once shook and rolled the box onto the ground with prisoner Richard McCanna inside. When the trapped man cried out and asked for a drink of water, Smith taunted him and said, “No, let him die.” McCanna had been badly injured and blistered from rolling in the box and spent two days in the hospital as a result (301–2). Finally, Frank Smith was investigated for shooting arrows at the convicts for sport. Several prisoners told the commission that they had almost been wounded by Smith in this way. An Aboriginal man named Abraham had been struck in the eye by an arrow and eventually lost his sight (303–6). Some claimed that Abraham had been wounded by a flying splinter in the shed where he worked, but Dr. Sampson testified that the damage was inflicted by Smith’s arrow.

It is worth noting that for most of these charges, convicts and keepers invariably came forward to deny Frank Smith’s culpability, claiming that none of it had happened. Such was the polarizing effect of the kitchen keeper as a divisive and destructive force in the penitentiary. Smith had cultivated favourites among the penitentiary guards and within the convict population, a chosen few who participated in his antics or benefited from his corruption. In other cases, prisoners were clearly intimidated by the prospect of retribution that might stem from testifying against the warden’s son. Prisoners knew better than to speak out against abuses. Thus, when charges came to light, a second prisoner or guard was always willing to contradict damning testimony. But contradictory testimony did not dissuade the Brown Commission from recognizing the kernel of truth in the troubles caused by Frank Smith. On the charges against him, the commission concluded, “All the evils which could possibly arise from such an appointment have arisen out of this one: peculation, cruelty, favouritism, and every species of irregularity, all clouded from observation, if not openly encouraged, because the chief agent was the warden’s son” (126).

The eighth charge against Warden Smith investigated the starvation of prisoners by the penitentiary staff. This charge arose in part from questions about why construction projects at Kingston had proceeded so slowly. In the preliminary investigation, ex-keeper William Coverdale reported that he had frequently seen convicts sitting during work hours. When he had questioned the attending keepers, he had been told that these prisoners were too weak to work from a lack of food. Ex-keeper Gleeson testified to similar conditions, noting that on many occasions he had excused the convicts under his direction from their work and allowed them to sit beneath a shed because they were so exhausted. Ex-keeper McCarthy reported that he hadn’t the conscience to keep the men at hard work due to their depleted condition and that their appearance convinced him that their complaints about the food were valid (169). Ex-keeper William Smith (no relation to the warden) added that the starvation of the convicts not only was inhumane but greatly affected the productivity of the institution. He believed that there was a great waste of labour and couldn’t say how the buildings had ever been completed given the health of the convicts. Much of the starvation may have been due to the disciplinary regime, particularly after the arrival of Frank Smith. William Smith noted that the keepers put the greatest part of the blame on Frank Smith due to his tendency to patrol the shops, report the men for disciplinary infractions, and reduce them frequently to bread-and-water diets (170). Even when prisoners were not on short rations, the quality of the food provided was often abysmal.

Table 1 details the legislated diet for penitentiary inmates in a typical year during this period. As meagre as the rations appear compared to contemporary appetites, the Brown Commission revealed that corners were cut everywhere. Much of the meat was provided on contract, but even the contractors testified that the quality was poor. Contractor Samuel Breden noted that the meat was delivered in the afternoon or evening, only after the day’s business at the markets was finished. He testified, “They usually sent what remained over the day’s sales” (174). What remained was of the worst quality. “Poor, skinny meat” is how several witnesses described the cuts delivered to the penitentiary. Guard Kearns described meat so rotten that he could not stand over it, and William Smith described the meat as “black and disagreeable, and smelling strongly” (174).

Again, the investigation centred on Frank Smith. Gatekeeper Cooper testified that on one occasion guard Watt had inspected the meat upon arrival and ordered it sent back to the butcher as unfit. Frank Smith had intercepted the cart on its way from the penitentiary and ordered the meat to be returned to the kitchen for the evening meal (177). Similar evidence was heard regarding sour and mouldy bread infested with worms or rat feces (180).

a As a cost-cutting measure, dried peas were ground and mixed into coffee.
LABOURSOURCE: "Report of the Board of Inspectors of the Provincial Penitentiary for 1838," Appendix to the Journal of the House of Assembly of Upper Canada, 1839, 209.

Prisoners at Kingston had little recourse against the deficient diet. As a matter of defence, several penitentiary officers testified to the commission that the prisoners had not complained about the quality of the food. Given the potential for swift retribution, the lack of vocal complaint is unsurprising. However, other evidence pointed to the degree of suffering caused by the diet and the measures taken by prisoners to survive. Gleeson testified that he had known convicts to take salt from the dinner table in their handkerchiefs. During the day, the convicts ate salt to stimulate their thirst so they could drink enough water “to fill up their guts” (169) Other convicts found unconventional sources of food throughout the penitentiary. Keely reported that he had seen convicts with cold mush in their hands that they had stolen from the hog pens. Ex-keeper McCarthy confirmed Keely’s testimony: a convict named Bernard would go “twenty times to the hog-pen, and bring in offal, such as potatoes, from the hogs, and divide it among the Convicts” (169). Other prisoners had been seen eating out of slop buckets as they delivered them to the hogs.

The weight of the Brown Commission came down upon Warden Smith and ended his tenure at Kingston Penitentiary. The commissioners concluded simply, “We consider it a good and valid reason for the removal of the Warden or any other Officer of a Penitentiary, that he has not come up to the full standard of efficiency. Sins of omission as well as sins of commission, we hold, should be summarily visited with dismissal” (290). The litany of abuses, mismanagement, and corruption all pointed to the penitentiary’s fundamental failure to effect the reformation of criminals. The penitentiary chaplain, R. V. Rogers, distilled the argument that prevailed with the commission: “The objects of such a prison have been totally misunderstood by the authorities; the Warden and Inspectors appeared to view the prison merely as a place of security…. The fact is, that nothing can be worse than the present condition of the Penitentiary as a moral school” (120). Other witnesses advanced similar accusations. William Smith disparaged the warden for his failure to provide religious instruction, library books, or time with the chaplains. This charge, however, represented no small measure of short-term revisionism by the Brown Commission. At no time in the first fifteen years of the penitentiary were the designers, administrators, or inspectors at Kingston explicitly interested in or charged with convict reformation. Still, the commission emphasized this failure, foreshadowing the direction of penitentiary reform in the aftermath of the Smith regime. Kingston Penitentiary had been constructed on the Auburn plan with the expectation of absolute disciplinary control and industrial profitability. On these foundations, reformers would attempt to add considerations of individual moral reformation.

LABOUR IN THE CONFEDERATION ERA

The first contracts with outside manufacturers were secured in 1849, providing prisoner labour for shoemaking and cabinetmaking. A tailoring shop was added the following year. Tradesmen in the first two industries again protested on the grounds of both unfair competition and the disrespect that teaching their trades to convicts brought upon their craft.⁶⁹ Contract labour, however, continually failed to fulfill its economic potential. By the mid-1850s, out of five contract operations at Kingston, only two were employing their full complement of workers: because contractors could not make profits under the contract terms, they reduced the rate of work. In 1857 they requested a reduction in the price of daily labour as well as a 50 percent reduction in the number of convicts employed. While contractors struggled to make profits under the terms of agreements signed with the penitentiary, wardens and inspectors made constant concessions to the contractors. But by the 1850s, the contract labour system, even at the reduced rates, was defraying a significant portion of the penitentiary’s maintenance costs.⁷⁰ Still, while the board of inspectors heartily supported the contract system, officials at Kingston Penitentiary often lamented the negative effect that outside contractors had on discipline. Not only did they bring prisoners into contact with outside influences through private managers and foremen, but the continued concession to the needs of contract labour undermined the authority of penitentiary officials.⁷¹

After Confederation, contract holders operating from Kingston Penitentiary struggled to find profitable outlets for the products of prison labour. By 1875 an economic crisis in Ontario and Québec had dealt a serious blow to industries at Kingston as the contracts for locksmithing, shoemaking, cabinetmaking, and carpentry all lapsed or were cancelled.⁷² The 1870s and 1880s also saw more vigorous opposition to penal contractual labour, first from the Canadian Labour Union and then from the Canadian Trades and Labour Congress, which protested teaching trades to convicts.⁷³ H. Clare Pentland argues that Canadian organized labour in the 1870s was relatively ineffective in its opposition to penitentiary labour and, at the same time, was not unduly harmed since the economic reach of penitentiary industries was very limited.⁷⁴ The penitentiary labour project was dramatically hobbled by the low skill level of the prisoner workforce. Even when productive labour was available, some wardens claimed that it was impossible to find skilled prisoners to undertake such industries. Warden John Foster at Dorchester noted in 1888 that the number of skilled mechanics was extremely small and the majority of prisoners were “a class difficult to train in the use of tools.”⁷⁵

In 1897 Douglas Stewart, the penitentiary inspector, reported the same troubling phenomenon throughout the entire penitentiary system: “A striking feature of the returns … is the undue proportion of those who have not had the advantage of a training in any trade or profession, and who consequently have been seriously handicapped in the race for existence.”⁷⁶ In the absence of skilled labour, officials turned to non-productive tasks such as stone breaking and oakum picking.⁷⁷ These forms of labour contributed little economically and, more problematically, carried the negative associations of “hard labour,” which was considered a form of punishment and granted little in the way of the expected moral reformation.

In spite of the fact that prison labour was not economically viable, reformers in the post-Confederation era continued to promote its importance to the larger penitentiary project. The discourse surrounding labour was distinctly moral, positioning labour as the primary agent in the reformation of criminal individuals. According to Inspector Moylan, the personal qualities bestowed by participation in penitentiary labour included the “formation of habits of industry, self-control, and the feeling of self-respect created by a sense of independence.”⁷⁸ The potential for developing such qualities was frequently cited as the primary reason for keeping the prisoners working, although proponents of prison labour saw other benefits as well. In 1876 Moylan stated, “The object to be obtained by the employment of prisoners at labour is threefold: Firstly, to create a deterrent effect on the convict himself, and on the criminal class; secondly, to produce a reformatory effect on the prisoner; and thirdly to recoup as far as possible, the cost of his maintenance.”⁷⁹

Although Moylan constructed penitentiary labour as one of the primary agencies of moral reformation, specific discussion about how such reform actually took place seldom occurred. Moylan distinguished labour from other reformatory influences offered by the penitentiary. “While education and religion are quickly forgotten,” he wrote, “the lessons of industrial labour stay with the prisoner long after his sentence ends.”⁸⁰ He also suggested that it was not imprisonment itself but the act of working that transformed the criminal. Such discourse demonstrates the ideological weight given to labour, but it also points to the prevailing construction of all penitentiary inmates as workers. In 1880 Moylan wrote, “We should not lose sight of the fact that, the prisoner must have been, or at any rate, ought to have been a worker before he was committed to prison. The crime or offence for which he is now undergoing punishment by enforced labour and detention, has not cancelled his existence; it has only made his retirement to a certain extent from the labour market compulsory.”⁸¹

The penitentiary provided the compulsion for convicts to return to the productive world in the practical as well as the moral sense. In reformers’ eyes, labour would make men whole again. In 1886 Moylan wrote, “The convict should be taught to respect labour and to follow it as one of the best means of attaining self-respect, of manhood, and the way to supporting himself, upon his liberation, through the fruits of his own energy and industry.”⁸² Moylan’s faith in the reformatory potential of labour was curiously disconnected from the reality of prison populations in the nineteenth century. For a number of reasons, he could not see the differentiation between the producing classes “outside” and the criminal classes “inside.” In addition to the threat of competition, organized labour opposed the penitentiary on the grounds that criminals could never attain their respectability or their skill. This distinction, as we will see below, would be increasingly marked by a variety of medical classifications of who could and could not be considered a worker in the penitentiary.