Criminality

TOWARD AN INDIVIDUAL CRIMINALITY: THE VICTORIAN ERA

During the Enlightenment, purely religious perspectives on deviance gave way to rationalist arguments about criminality that characterized the classical era of jurisprudence.³ This era positioned the criminal as an individual who had made a rational decision to engage in crime. The reformed legal codes and rationalized methods of punishment (penitentiaries rather than torture and execution) were intended to show the criminal the direct and unwavering consequence of these transgressions. In the early decades of the nineteenth century, a new conception of criminality and deviance rose in tandem with the penitentiary reform movement. The classical formation of deviance as a rational choice to be punished was eclipsed by an increasing concern with moral disorder in the community and the family, a disorder that was manifested in the individual. Society in North America and Britain transformed rapidly in the years after 1800. The increasing pace of industrialization and urbanization weakened the bonds of colonial society and created the impression that moral disorder produced crime and deviance. Legal and penal reformers looked to the weakening moral influence of family and church and identified a new source of crime and deviance.⁴ This gave rise to a neoclassical “positivist” criminology: that is, a view of criminality based on measuring and quantifying criminal behaviour objectively and scientifically. This new perspective was intimately linked with new forms of punishment.⁵

An important distinction must be made between the emergence of criminological science in the nineteenth century and what was manifested in practice in Western penal systems, particularly in the Canadian example. In one sense, the classical school of criminology was extremely influential on prison reform in the earliest decades of the nineteenth century. Becarria was read by late eighteenth-century legislators who moved toward penal confinement as the most rational response to crime and deviance. However, it also became clear very quickly that the classical notions of deviance were deficient in structuring actual penal practice. As Ian Taylor, Paul Walton, and Jock Young argue, “It was impossible in practice to ignore the determinants of human action and to proceed as if punishment and incarceration could easily be measured on some kind of universal calculus: … classicism appeared to contradict widely-held commonsensical notions of human nature and motivation.”⁶ This “commonsensical” approach motivated positivist conclusions of the neoclassical school, which desired to better understand the particular criminality of each offender. Moreover, while it could be said that penal reformers or administrators in England and North America adopted such practicality, their positivist inclinations had more in common with evangelical social investigation than with emerging European criminology in the second half of the nineteenth century. There is little evidence of direct communication or influence between early criminologists and penal reformers. This remained true even as new theories shifted to biological positivist explanations for crime. For example, the work of the Italian positivists Enrico Ferri and Caesare Lombroso was largely unknown or was dismissed by penal reformers and administrators in England and the United States. Paul Rock argues that the science that underlay nineteenth-century British penal systems was rooted in an “abstracted empiricism” that owed nothing to the theories of criminological science.⁷ The constructions of criminality that developed in Canadian penitentiaries in the post-Confederation era were the product of an inherently practical understanding of deviance influenced by the lessons of previous generations of penal reformers.

A two-pronged method of addressing criminality characterized such practical notions of deviance. First, the cause of criminality in each individual would be investigated and discovered. Already convinced that environment and childhood played a determinative role, penal reformers searched for clues to the moral deficiency in the criminal’s past. Second, the penitentiary would provide the moral guidance required to address the causes of criminality in convicted individuals. This involved a campaign of moralization to address the identified deficiencies, with the influences of religion and education providing the moral building blocks toward the reformation of the criminal.

A contradictory impulse was at work in the solutions to the new concepts of criminality. Although the new approaches to criminality were highly individualized, mid-nineteenth-century penal regimes were almost universally designed to treat every offender exactly alike. In the early Victorian era, prisoners were subjected to an unyielding routine, so alhough prisons may have included elements intended to moralize the offender, these were ultimately impersonal and highly regimented.⁸ David Garland characterizes this uniformity as the defining feature of Victorian penal responses to criminality. He argues that the discipline of British prisons made no direct reference to criminal type or individual character: “The differentiations that did exist were mainly administrative and segregational, carrying little importance in terms of treatment or conditions. The main classification system categorized a prisoner as one more individual to be subjected to a uniform and universal regime.”⁹

Garland’s argument draws on Max Grünhut’s descriptions of nineteenth-century methods of isolation. Grünhut writes that the separate system “resulted in a complete extinction of all personal traits which could act as reminders of the prisoner’s individuality, and this made the whole scheme even more commendable to those who wished criminal law and prison discipline to be based on a system of strict retribution.”¹⁰ On the basis of these conclusions, Garland describes a Victorian system that was based purely on the tenets of classical criminology. In the Canadian example, the impulses of both classical and neoclassical approaches to criminology were present but were largely manifested in the simplest attempts to understand criminality on a practical level. In many cases, it was the tension between the classical approach and more positivist interpretations of the cause of crime that played the largest role in how penitentiaries responded to the idea of criminality.

The penitentiary chaplains were often the most vigorous promoters of a positivist view of criminality and the potential for reformation. David Rothman describes how Auburn penitentiary officials collected detailed biographical details of each prisoner, but the search for the cause of crime was not intended to affect how each convict was punished; rather, the collected information would be passed along to philanthropic or Christian societies interested in the amelioration of crime. As Rothman argues, the early penal reformers were quite convinced that a failure of upbringing—specifically, the collapse of the family’s moral control—caused criminality.¹¹ This idea gained strength in both American and Upper Canadian society in the 1820s and 1830s. The same year that Kingston Penitentiary opened, the Kingston Chronicle and Gazette published a list of the “prevalent causes of crime”:

1. Deficient education, early loss of parents, and consequent neglect.
2. Few convicts have ever learned a regular trade; and if they were bound to any apprenticeship, they have abandoned it before their time lawfully expired.
3. School education is, with most convicts, very deficient, or entirely wanting.
4. Intemperance, very often the consequences of loose education, is a most appalling source of crime.
5. By preventing intemperance and by promoting education, we are authorized to believe that we shall prevent crime in a considerable degree.¹²

Although Kingston followed the Auburn model to every possible detail and collected biographies of discharged prisoners, no element of the penitentiary administration subscribed to the above environmental theories of crime. Prior to the Brown Commission in 1849, there was no real reform movement or philanthropic organization in Upper Canada interested in this type of investigation. After 1850 penitentiary chaplains began to display some rudimentary interest in the causes of crime and the background of the convicted men and women at Kingston. Much like the early criminological endeavours at Auburn, this background search concentrated on the childhood and moral upbringing of the criminal offender. Hannibal Mulkins, the Protestant chaplain at Kingston, expressed his sympathy with this approach in 1852:

How often are the inmates of this Prison viewed by Society with feelings of terror and abhorrence only, as the pests of society, deserving only hatred from their species and suffering for their crimes. But when we see … how many were left Orphans in their early childhood; how many were never taught, even the moral law; how many even totally or partially unable to read; what numbers were brought up in irreligion, surrounded with vicious examples; what numbers were led to crime, by intemperance and ignorance; how many had little education, but a training in vice, partly of their parents and partly of themselves; —when we see these facts, should not indignation in the bosom of society, give place to pity? Should not the chief question be, not how shall we punish, but how shall we convert the sinner from the error of his way?¹³

After 1852 Mulkins tracked statistics for “early social condition” and “moral condition” for the convict population. The results, published in annual reports, were intended to provide a portrait of the social origins of crime. The 1852 report of “early social condition” showed that out of a total of 255 newly admitted inmates, “33 were Orphans; 60 were deprived of one of their parents; 122 left home when young; 90 had no means of support; only 77 had a trade; 16 were born in slavery.” The statistics for moral condition are more revealing in terms of the categories created by the penitentiary chaplaincy, which led the reader to obvious conclusions about the causes of crime: “20 were ignorant of the Ten Commandments; 174 used profane language; 34 had immoral parents; 56 had parents who habitually used profane language; 27 had parents who were very unkind and severe; 93 were gamblers; 164 used Tobacco; 180 kept not the Sabbath Day holy; 117 neglected to read the Bible; 104 never attended a Sunday school; and 146 had a rash and violent temper.”¹⁴

In examining an offender’s childhood for clues about criminality, commentators and penitentiary officials often identified intemperance as a primary reason, either directly or indirectly, for children’s corruption. In 1860 the penitentiary inspectors reported on the youth reformatory at Penetanguishene: “A large portion of the parents of these unfortunate lads were drunkards. More than half the boys had themselves been addicted to drinking, and kept bad company.”¹⁵ The stress on temperance also crossed over from childhood influence to the direct moral ruin of convicted criminals. A statistical table published in an 1855 annual report noted that of 179 newly admitted convicts, only one totally abstained from alcohol and not one was a member of a temperance society.¹⁶ In another example, an 1844 edition of the Canadian Temperance Advocate discussed the link between intemperance and criminality: “Where would be the harm of reminding these victims of alcohol of the evil they had done themselves, their families, and the community in consequence of using these liquors and persuading them to their entire disuse after they are again restored to liberty? In reaching the climax of modern drinking, which has qualified them for a prison, who can compute the amount of contamination which their example has shed around them!”¹⁷ This idea proved remarkably resilient through the second half of the nineteenth century due to the growing strength of temperance movements. Penitentiary chaplains resorted to the same explanations from one decade to the next. In 1887 Robert Jamieson, a Protestant chaplain in British Columbia, noted, “Nearly all, if not all the prisoners owe their degradation and imprisonment directly or indirectly, to our country’s greatest curse, namely intoxicating liquors.”¹⁸

Moral concerns about childhood influences and criminality reflected the growing apprehension in the Victorian age with impulse control and moral governance. As Martin Weiner argues of Victorian England, “Crime was a central metaphor of disorder and loss of control in all spheres of life. Criminal and penal policy articulated the effort to counter this perception by fostering disciplined behaviour and a broad ethos of respectability.”¹⁹ In the Canadian context, this ethos was likewise often expressed in terms of “respectability,” especially by penitentiary chaplains. The real effect of the statistics concerning moral character that prison chaplains collected, however, was minimal. For the most part, the dissemination of such information merely helped to justify reformers’ instincts that a more rigorous moral agenda was needed in the penitentiary. If moral deficiencies were understood to be the cause of criminality, it followed naturally that a program stressing religion and education was the solution. Chaplain Hannibal Mulkins stated this moral mission forcefully in 1860:

The criminals in a Christian country, are the few remaining barbarians and savages in its borders, whom its laws have not restrained, nor its civilization reclaimed, nor its religion purified. Every criminal reformed is a victory gained over ignorance and barbarism, and one citizen saved to the State. The law magnifies itself in arresting and bringing these out-laws, these savages, these criminals, under its power, and incarcerating them in a Penitentiary, whose beneficent and holy mission then commences, where, in their mental, moral, and religious renovation, its beneficent and sacred mission is consummated.²⁰

The changing construction of criminality as a social disorder ran parallel to the new conception of the penitentiary as a moral institution. The focus on morality, however, also obscured some important social statistics that penitentiary authorities and administrators were less comfortable exploring.

With the adoption of environmental explanations of criminality, constructions of criminality in the 1850s and 1860s remained largely individualized; discussion of the relationships among class, poverty, and crime was avoided. This spoke to the continuing view of poverty (and by extension, criminality) as an individual moral failure rather than a structural category. Penitentiary populations were overwhelmingly drawn from the working class and the unemployed, but only on rare occasions was this acknowledged by reformers or penitentiary officials. At the end of the century, Douglas Stewart, a penitentiary inspector, noted, “Common labourers constitute about four per cent of the population, but embrace thirty-six per cent of our convict population. Farmers and skilled mechanics constitute a very small percentage.”²¹ In fact, Stewart was grossly underestimating the class homogeneity of penitentiary inmates in the second half of the nineteenth century. In 1858, the first year that trades of committed convicts were reported, out of 305 received prisoners at Kingston, 184 were listed as labourers (60 percent). This too may have been misleading since there was no recorded category for the unemployed.²² If trades with low levels of apprenticed skills are combined with the unemployed and unskilled, 66 per cent of the incoming convicts in 1858 were working class and located in the lower echelons of a proletarian hierarchy.²³ In the first year after Confederation, unemployed, unskilled, and low-skilled workers made up 68 percent of the incoming convicts at Kingston. This number rose to 72 percent in 1878. In part, this peak reflects the economic crisis in Ontario and Québec through the middle of the 1870s, but the proportion of working-class prisoners remained high until 1900: in 1898 65 percent of new convicts were clearly working class, drawn from those of “low status” in this broad labouring contingent.²⁴ Underscoring these statistics is the fact that in each sample year above, the majority of convictions involved property and financial crimes, not serious felony or violent offence, and were punished with short sentences of two to four years. While such statistics pointed to relatively obvious social trends connecting poverty and criminality, the class conclusions reached by reformers focused on very different explanations for working-class criminality. In addition to the moral categories noted above, penitentiary officials and reformers associated working-class criminality with a growing fear and suspicion rooted in social constructions of poverty revolving around the “dangerous classes,” sometimes referred to as the “residuum.”

INCORRIGIBLES

Not all prisoners were regarded equally when officials and reformers considered criminality. In the earliest years of Kingston Penitentiary, officials were greatly dismayed to discover that some individuals were committed to the penitentiary repeatedly for the same crimes. In 1839 Warden Smith noted that, of 148 convicts, fifteen were serving a second sentence in the penitentiary, and two were serving a third.²⁵ Between 1837 and 1857, the recidivism rate at Kingston generally hovered between 8 and 15 percent of the total convict population.²⁶ In these early years, officials explained recidivism by suggesting that prison sentences were too short to allow for the complete reformation of prisoners. Referring to recent American legislation, Smith argued that individuals convicted a second time should be committed to the penitentiary for life.²⁷ As W. David Lewis notes, however, recidivism was notoriously difficult to track. Some prisoners may have used assumed names upon conviction or may simply have been incarcerated in different gaols or jurisdictions.²⁸ Eventually, explanations for recidivism that blamed inadequate measures of reformation fell away, and officials located the reasons in the recidivists themselves. This gave rise to a parallel construction of criminality focused on recidivists and life-term prisoners, a construction that existed outside the realm of discourses promoting individual reformation and was instead broadly pessimistic and fearful.

The “habitual criminal” or “incorrigible offender” thus came to be seen as a class apart from the prisoners perceived to be more normal. Throughout the second half of the nineteenth century, the Victorian impulse to classify prisoners according to the degree of criminality helped to explain this stratum. Inspector Stewart included this description of three main types of convicts in his 1897 annual report:

1. Those who in their normal condition are law-abiding and industrious, but who are suffering the penalty of some overt act committed during a temporary lapse of self-control.
2. Those who are thriftless and devoid of moral principle, and have adopted crime as an easy means of livelihood.
3. Those who delight in crime and who spend their days and nights in planning future exploits in it.²⁹

The third category vexed penitentiary officials to no end. In the 1860s, England enacted legislation to address the problem of the incorrigible and habitual offender. Weiner notes that calls for the control of this class of criminal came from across the political spectrum, uniting radicals and liberals. Sir Walter Crofton appeared before Parliament with other members of the Social Science Association to demand harsher penal regimes for repeat offenders.³⁰ While this position seems inimical to the spirit of Crofton’s reformatory prison discipline, his calls for harsher punishment for this class of criminals illustrates the degree to which reformers disavowed themselves of responsibility for individuals they considered beyond the pale of reform efforts. M. D. Hill stated in 1866 that habitual criminals should be consigned to prisons that were “harsher by many degrees” than standard convict prisons.³¹ Reformers and legislators in England found consensus on this issue, and legislation in 1864 and 1865 made penal regimes much more restrictive and punitive. Not only was early release for repeat offenders repealed, but the new regulations provided a higher minimum sentence of penal servitude for repeat offenders. These measures were extended by passage of the Habitual Criminals Act in 1869. The act made sentences for repeat offenders even heavier and included provisions for the police supervision of all released prisoners to combat repeat offences. The new legislation also gave magistrates sweeping powers to summarily imprison former offenders on suspicion of crime.

Canadian criminal codes were not amended to keep pace with English developments. As a result, the issue of incorrigibles and repeat offenders became the exclusive concern of penitentiary officials after conviction occurred. Inspector Moylan’s disgust for recidivism was obvious in an 1877 annual report, in which he wrote, “The recommitted convicts are the bane of our Penitentiaries. They are, for the most part, hardened and confirmed criminals. They require to be dealt with firmly and severely.”³² In the years after Confederation, the issue of incorrigibility became one of overwhelming concern to penitentiary officials. Chapter 6 explores the penal practices enacted to control, contain, and repress this class of criminal, measures that included both violent punishments and increasing measures of physical segregation from the general penitentiary population. Perhaps the most significant aspect of incorrigibles relative to constructions of criminality was how penitentiary officials identified these individuals and perceived their threat. The incorrigibles occupied a place of particular scorn in the eyes of penitentiary officials even though few could agree on what specific behaviour or qualities defined them.

Who were the incorrigible offenders? Paradoxically, incorrigibles were often identified by both the worst and best behaviour. A clear indicator of incorrigibility was violent disruptive or resistant behaviour, which served as a useful justification for the harshest disciplinary measures. Conversely, penitentiary officials also mistrusted the overly compliant behaviour of experienced prisoners who followed rules for the wrong reasons, as illustrated in Inspector Moylan’s 1890 report:

A large proportion of the convicts are well-behaved from purely self-interested motives. They are unwilling to prolong their stay within prison walls by the forfeiture of remission time, or to lose any privilege through misconduct. None are so careful in avoiding these penalties as the habitual criminal. His experience has taught him that, the easiest and most comfortable way of serving out his sentence is not to run counter to rule or authority…. He puts in his time, without change of heart, without any purpose of amendment, and, as a consequence, upon release, drifts again, at once, into his old habits.³³

The irony of this argument seems to have been lost on Moylan, who had tirelessly argued in favour of the Crofton system, which was based entirely on self-interested compliance with penitentiary regulations leading to a swift release. For Moylan and other reformers, the issue was still avowedly moral. One of the biggest moral concerns with incorrigibles was not the depravity of habitual offenders but their influence upon other impressionable members of the penitentiary population.

The notion that the worst prisoners should be kept separate from the prison population was present throughout the century, but it gained momentum in the years after Confederation and began to influence penal policy. Fears about incorrigibles led to major transformations in penal practice and construction in the 1890s as penitentiaries created isolation-style maximum-security wings. In the decades before this change, officials frequently blamed incorrigibles for the failure of reformation in the rest of the penitentiary population. John Foster, warden of Dorchester, noted that only two or three “bad prisoners had an extraordinary influence, destroying all the reformatory influences.”³⁴ The penitentiary board complained in its 1870 annual report that the incorrigible offenders were turning penitentiaries into “nurseries of crime.”³⁵ This was an often-repeated claim. Inspector Moylan explained in 1879 that the incorrigibles’ “pernicious influence” caused young and impressionable inmates “to have a morbid fascination for their more guilty associates, and to entertain the desire to rival if not excel their vicious exploits.”³⁶ The fear that incorrigibles would transmit criminal dispositions to merely misguided youths was pervasive in the discourse of this era. In 1888 Inspector Moylan described how the incorrigible’s “most congenial occupation” was to corrupt the innocent by the recital of his “wicked deeds.” The inspector concluded,

In this way, young men undergoing imprisonment for a first offence, committed, perhaps, under the influence of liquor or some other excitement, who are not naturally vicious and who could be reclaimed if removed from evil influences, lose their self respect, become corrupted, sink to the level of the incarnate fiend who accomplished their moral ruin, and on their release, are ready to emulate and even excel their tutor in a life of vice and crime. Thus, it is that hundreds are led into a career of wickedness and infamy, through contact with the confirmed and callous evil-doer. This is no fancy sketch.³⁷

The concern with incorrigibles appears remarkable when we consider that penitentiary authorities attributed the failure of the entire reformatory project to this handful of offenders. It is particularly interesting given that incorrigibility remained a fairly flexible and undefined construction. Sometimes attributed to recidivists or life convicts, in many cases it was also applied more broadly to groups that penitentiary officials and staff considered more dangerous, morally irredeemable, or marginalized than “normal” penitentiary inmates. In many cases, such constructions were not individual at all, instead conforming to broader constructions based upon race, gender, and class differentiations.

THE DANGEROUS CLASSES

Perhaps the greatest blow to the individualist aspirations of the reform era was the continuing tendency to view criminality in relationship to negative constructions of poverty and the working class. The liberal individual was an idealized construction that facilitated the reform desire for reformation and rehabilitation. However, penitentiary officials tended to subscribe to widely held ideas about the convict population that were connected to constructions of the social residuum and the “perishing and dangerous classes,” constructions of fear and loathing that associated the poor and working class with an emerging criminal class. This construction was broad and subject to change throughout the nineteenth century, but it had three primary iterations.

The notion of “classes dangereuses” was first popularized in French literature describing the depredations of urban poverty, decay, and crime. Such descriptions in the works of Hugo, Sue, and Balzac contrasted the social conditions of the urban landscape with bourgeois anxieties about the threat to social order from outsiders and the poor, a population on the margins of urban life. Louis Chevalier quotes Hugo’s Les Misérables, which describes the spreading contamination of crime and poverty: “that indigent class which begins with the last small tradesman in difficulties and sinks from wretchedness to wretchedness down into the lowest depths of society, to those two beings to whom all the material things of civilization descend, the scavenger who sweeps the mud and the ragpicker who collects the rags.”³⁸ Hugo describes a demographic menace, the lowest and most marginal members of society who threatened to drag the respectable into their shameful ranks. More than just a condemnation of poverty, this literature forged a powerful connection between poverty and crime in the French imagination. Chevalier argues that, particularly in the works of Balzac and Hugo, crime and poverty become synonymous; through descriptions such as that quoted above, the labouring classes were associated with the dangerous classes. Demographically, crime moved from a social condition on the margins of society to all urban spaces, invading and infecting the entire city.³⁹ This perception that crime was rampant was due in part to the fact that the contemporary bourgeoisie were often unable or unwilling to discern the difference between the labouring and dangerous classes.⁴⁰ Chevalier elaborates on how the perceived connection between these two classes spread to the general population in France:

Most of the characteristics of the bourgeois population’s attitude to the laboring classes were thus borrowed from an older attitude to a population which had been regarded as not belonging to the city, as suspect of all the crimes, of all the evils, all the epidemics and all the violence, not merely because of its own characteristics, but on account of its origins outside the city and of immigration which had incontinently been put down to a proliferation of the beggars of old.⁴¹

In contrast to the French constructions of the dangerous classes, many English reformers staked their moral agenda on the ability to identify the difference between the working class and the dangerous classes. The English had similar anxieties to those of the French about the poor and working classes, associating both with a compromised morality. The 1834 Poor Law helped separate the deserving from the undeserving poor, identifying what Bentham had called the dependent poor’s defective “moral sanity.”⁴² Gertrude Himmelfarb argues that the idea of morality played a critical role in these constructions. Morality helped build consensus about the identification of social problems and the search for policy solutions.⁴³ With clear lines drawn between what was moral and immoral, social reformers in England distinguished the dangerous classes from the labouring classes. Mary Carpenter drew a distinction between the dangerous and labouring classes: “There is, and will long be, a very strongly defined line of separation between them, which must and ought to separate them, and which requires perfectly distinct machinery and modes of operation in dealing with them.”⁴⁴

The machinery Carpenter referenced was the growing list of institutional solutions for attending to the moral shortcomings of the dangerous classes. Through the 1850s, this included not only the penitentiary and other prisons but also new institutional solutions geared to the most vulnerable members of the dangerous classes, particularly women and children. Carpenter’s Reformatory Schools (1851) focused on the children of the dangerous classes and the search for institutional solutions that would save them from slipping into a life of crime and destitution. With the correct moral intervention, children could be prevented from association with the dangerous classes, whom Carpenter defined as “those who have already received the prison brand, or, if the mark has not yet visibly set upon them, are notoriously living by plunder, … whose hand is against every man, for they know not that any man is their brother.”⁴⁵ Henry Mayhew, a reformer and social commentator, had the same tendency to classify and identify the dangerous classes. In London Labour and the London Poor, published in serial form throughout the 1840s, Mayhew classified different strata of London society, identifying most stridently the social outcasts, who, he argued, were a “national disgrace to us all.”⁴⁶ These characterizations by reformers such as Carpenter and Mayhew helped promote social projects that Gareth Stedman Jones characterizes as the “remoralization of the poor.”⁴⁷ By identifying both poverty and criminality with moral failure, reformers positioned themselves as privileged purveyors of solutions to the day’s most pressing social problems. But more importantly, these attitudes aligned mid-nineteenth-century conceptions of crime with the liberalism and individualism of the age: solutions to social problems would be found through the transformation of individual morality. In this sense, the detailed classifications demarcating the poor from the criminal were important because they identified marginal groups who could be saved from moral ruin and separated them from those beyond reclamation.

In North American constructions of the dangerous classes, the categories and distinctions of the English reformers became much less clear. One primary difference was that North American commentators discussing the dangerous classes of Europe tended toward descriptions that invoked a greater revulsion for what the class represented. An 1848 edition of the Canadian Temperance Advocate, for example, exposed the “disgusting” lifestyle of ragpickers in an exposé of Paris’s dangerous classes.⁴⁸ Similarly, an 1865 New York Times editorial described London’s dangerous classes with revulsion: “In London, you find them in street after street and lane upon lane, thousands by thousands, hungry, filthy, ignorant, imbruted and cunning; vagrants, thieves, beggars, ‘tramps,’ burglars, outcasts, and all the nameless crowds of people living daily from hand to mouth. Here they burrow and live and breed.”⁴⁹ These descriptions exploited poverty for its sensationalism, but by the 1860s, the distinction between European and American poverty had become blurred as US cities began to exhibit the same conditions of poverty and dislocation after the pace of industrialization quickened.

By the late 1850s, Americans had “discovered” the dangerous classes in their midst, and, as in England, these classes became the target of progressive social reformers. However, because the American construction was accompanied by greater apprehension and mistrust, reformers in the United States took a more alarmist position than their English counterparts. Among the most vocal commentators on the dangerous classes was Charles Loring Brace, a prominent reformer and the founder of the New York Children’s Aid Society. Brace investigated poverty in New York City, emphasizing the presence of the dangerous classes, who, he argued, were “not so numerous as in London, but more dangerous.”⁵⁰ The solutions he proposed in Dangerous Classes of New York (1872) included changing the material circumstances of New York’s poorest populations, a mission that would “draw them under the influence of the moral and fortunate classes, that they shall grow up as useful producers and members of society, able and included to aid in its process.”⁵¹ This reflected the belief that the poor could be saved, but only if they could be protected from contamination by more dangerous and morally irredeemable elements.

Brace was not subtle about emphasizing the criminality and moral ruin of the dangerous classes. In 1872 he wrote that New York’s dangerous class “might leave the city in ashes and blood.”⁵² Such sentiment reflected a growing turmoil over hardening class distinctions in the American Northeast and the fear of impending class war. Jeffrey Adler argues that cities were regarded as a powder keg of violent possibility and the dangerous classes could be the spark that would ignite widespread violence. Such fears were confirmed by several incidents of social and industrial violence, the most devastating among them the New York City Draft Riots of 1863.⁵³ Three days of rioting and as many as 120 deaths convinced the New York City bourgeoisie of the terrible potential of the dangerous classes.⁵⁴ Thus, concerns about the dangerous classes, particularly in the American context, revolved around a specific apprehension over their threat to the political and industrial order. In the 1860s, this was expressed in the position that those belonging to the residuum could not be given the vote lest they simply sell their allegiance to the highest bidder. At other times, such as during the Draft Riots, the dangerous classes represented the threat of armed resistance. This unknown element was mistrusted by allies of both the ruling and working classes. Marx and Engels warned that the dangerous classes, whom they referred to as the “lumpenproletariat,” were just as likely to become the reactionary tool of the bourgeoisie as allies of the proletariat.⁵⁵

In the late Victorian era, anxiety about the dangerous classes was recast through the renewed investigations of “social explorers” like Charles Booth, who pioneered new methods in social research through a detailed analysis of the material conditions of poverty. All the same, moral associations between poverty and criminality persisted in Booth’s work. He lumped together “occasional labourers, street-sellers, loafers, criminals, and semi-criminals,” adding to them the “homeless outcasts,” whom he described as consisting “mostly of casual labourers of low character,” along with those “who pick up a living without labour of any kind.” Although fundamentally sympathetic, Booth despaired of this most miserable of classes. “Their life is the life of savages,” he wrote, adding that “they degrade whatever they touch and as individuals are incapable of improvement.”⁵⁶ The renewed anxiety with “contamination” was tied to parallel concerns in the growing social hygiene movement, which stressed the moral danger inherent in poor living conditions, disease, and extreme urban poverty. Still, the underlying danger was regarded as the contamination of the poorest members of society by a criminal class. As Booth noted, the lowliest classes “help to foul the record of the unemployed.”⁵⁷ Much as with concerns about incorrigible offenders, the threat was that those of “low character” would drag others down to their degraded level.

Although the classification of the dangerous classes was associated with constructions of criminality, it was also a fairly elastic designation that was applied to multiple marginal groups who elicited apprehension. As the notion of dangerous classes was popularized in the mid-nineteenth century and adopted in North America, the construction often broadened beyond the urban poor to include other threatening elements in society. For example, an inspecting physician of the lazaretto in Tracadie, New Brunswick, stated in his 1885 annual report that “lepers belong to the dangerous classes of the community which require perpetual confinement.”⁵⁸ The intemperate were also a popular target, charged with swelling the ranks of the dangerous classes and producing “debased and degraded offspring.”⁵⁹ The Knights of Labor in Nanaimo invoked the construction to campaign against Chinese immigration to Canada, arguing that “all who have ever come into close contact with them are satisfied that they are not only a most undesirable but a positively dangerous class to any country having free popular institutions.”⁶⁰ In 1882 the North West Mounted Police labelled starving First Nations bands in the North-West as a dangerous class requiring “power, as well as care, in handling.”⁶¹ All of these groups represented some degree of threat, a common element they shared with prisoners, who had already demonstrated their capacity to transgress against social order.

WOMEN

In the Victorian rush to classify, understand, and correct criminality, gender became a key explanatory category, with female offenders occupying a distinct category of criminality in this era. Just as incorrigibles and children engendered unique penal policy, feminine criminality separated the female offender from her male counterpart in the penitentiary. The root of differential responses to women in Canadian prisons can be found in broader gendered constructions that contributed to the notion of a separate and unique feminine criminality. This gendered criminality was intimately linked to two key stereotypes of Victorian femininity: the idealized wife and mother, and the fallen woman. These stereotypes were constructed on notions of middle-class feminine respectability, relegating women to the domestic sphere and holding them to a higher moral standard than men. The idealized woman was innocent, pure, self-sacrificing, patient, sensible, gentle, modest, and altruistic.⁶² This stereotype was aimed at middle- and upper-class women, who were expected to reign over the domestic sphere and see to the care of their families. In her work on feminine criminality, Lucia Zedner illustrates how this powerful idea also ensnared working-class women, subjecting them to the same imposed, often unreachable standards and serving to articulate and enforce social and sexual norms.⁶³

The counterpart to idealized femininity was the “fallen woman,” an equally powerful stereotype in the construction of criminality. Zedner argues that the fallen woman was judged not merely on the basis of the crimes she committed but by her contravention of the norms of femininity. Thus, whereas male convicts were judged to have committed rational (albeit antisocial) acts in aid of their own pleasure or gain, feminine crime hinted at a much more threatening moral turpitude. This was due in part to a list of crimes, primarily attributed to women, that were defined by their very threat to idealized feminine respectability, including sexual crimes, prostitution, drunkenness, and vagrancy. In 1860 the Canadian penitentiary board reported on the “moral leprosy” that was infecting Canada’s urban centres, noting that nearly all of the 3,500 women in Ontario gaols were prostitutes for which the prisons “serve as boarding houses and places of shelter…. When they have reached the lowest depths of degradation, they wander, during the summer months, in the fields in the immediate neighborhood of our larger towns, and in winter find shelter in the gaol.”⁶⁴ Victorian writing about such crimes stoked a moral panic that was tied to the concerns noted above about the dangerous classes, “low” cultures, and urban poor. Mayhew’s bombast on the issue of female crime was typical: “In them one sees the most hideous pictures of all human weakness and depravity—a picture the more striking because exhibiting the coarsest and rudest moral features in connection with a being whom we are apt to regard as the most graceful and gentle form of humanity.”⁶⁵

Due in part to the powerful dichotomy between idealized and fallen woman, female convicts were often subject to particularly harsh condemnation. The fallen woman was irredeemable. Victorian writers denigrated female criminals as the lowest members of society in condemnatory tones that were seldom applied to male convicts. In Our Convicts (1864), Mary Carpenter wrote, “The very susceptibility and tenderness of woman’s nature render her more completely diseased in her whole nature when this is perverted to evil; and when a woman has thrown aside the restraints of society, and is enlisted on the side of evil, she is more dangerous to society than the other sex.”⁶⁶ A few years later, Carpenter expanded on the degradation that differentiated the criminal woman:

The women of this degraded portion of society will be generally found to differ in many respects from those belonging to a higher sphere. Their intellectual powers are low, and from having been left uncultivated, are in a state of torpidity from which it is very difficult to raise them. This peculiarly low intellectual condition in females of the lowest social grade is accompanied by a very strong development of the passions and of the lower nature. Extreme excitability, violent and even frantic outbursts of passion, a duplicity and disregard of truth hardly conceivable in the better classes of society render all attempts to improve them peculiarly difficult.⁶⁷

Such discourses suggested that female criminals could not be saved. This created a problem for penal administrators and reformers, who were nonetheless charged with their care. In the case of Canadian penitentiaries before and after Confederation, gendered differentiation of criminality resulted in widely divergent and marginal experiences for female convicts.

Attitudes about female criminality were often manifested in penal practice. In the early years of Kingston Penitentiary, this was illustrated by the ongoing marginalization and abuse of female prisoners. At first, female convicts were given no specific accommodations, but they were nonetheless isolated as much as possible from the male population. In the earliest years of the penitentiary, the small number of female convicts made this manageable. As the female population increased in the 1840s, isolation became more difficult and efforts to separate women resulted in their physical neglect. In the Brown Commission investigation, commissioners were horrified by reports of the poor hygienic conditions allowed to prevail in the female quarters. For example, in 1846 the women’s cells were overrun with an insect infestation since he wooden cells housing most of the female convicts had been constructed hastily to provide relief from overcrowding. A former matron, Mrs. Coulter, testified that the insects were so numerous that the women constantly swept them from their cells with brooms. When she appealed to the warden for relief and asked him to allow the women to sleep in another part of the prison, Smith refused. Coulter recalled, “The women suffered very much; their bodies were blistered with the bugs; and they often tore themselves with scratching.” On one occasion, she disobeyed her orders and let the women out of the cells. “The torture the poor women endured was horrible,” she said, “and [I] could not resist their entreaties to let them out.” Finally the women convicts struck and refused to work until the warden addressed the insect problem, after which Smith ordered the cells to be scrubbed with lime.⁶⁸

In addition to physical neglect, female convicts sometimes endured the sexual misconduct of guards charged with their care. In 1852 it was discovered that convict Ann Irvine had been impregnated by a guard, who was subsequently dismissed. Although the inspectors determined that the guard had acted “very negligently, if not criminally,” no charges were brought against him.⁶⁹ Several other incidents of pregnancy in this era were attributed to sexual assaults committed in local gaols or by sheriffs en route to the penitentiary with female convicts.⁷⁰ The sexual abuse that penitentiary staff and officials inflicted on women in the penitentiary reflected the prevailing belief that female convicts were already morally disgraced and unworthy of the protection that would be afforded by social norms of the era. Echoing a common discourse, the Catholic chaplain, Angus MacDonell, described the female convicts in his 1852 annual report: “Unfortunately the majority of them are common prostitutes, diseased of body, and debased in mind from a long continuance in a career of crime; lost to all shame, and bent upon nothing but the gratification of their beastly passions.”⁷¹ Cast in such tones, women at Kingston were clearly vulnerable to sexual abuse, for which they were customarily blamed.

The crimes for which female convicts were imprisoned seldom corresponded to common discourses about feminine criminality. Of the 164 women committed to Kingston Penitentiary between 1835 and 1850, all but six were convicted of some form of larceny or theft. Two women were convicted of assault in 1846, and one of arson in 1847. Only three women were imprisoned for serious crimes. Ann Little was convicted of manslaughter in late 1849 and served a seven-year sentence. Mary Douglas, convicted of murder in May 1841, had her death sentence commuted to ten years at Kingston. The third woman was Grace Marks, a sixteen-year-old domestic servant who was convicted of murder in November 1844.⁷²

Marks is perhaps the most well-known prisoner in all of Kingston Penitentiary’s long history. She and James McDermott, a stable hand, were convicted of murdering their employer, Thomas Kinnear, and were suspected in the death of Kinnear’s housekeeper, Nancy Montgomery. Both were sentenced to death. McDermott hanged for the crime, but Marks’s sentence was commuted to life. Some accounts of the case portrayed Marks as an unwitting accessory to murder, while others played on the image of Marks as an evil seductress who corrupted McDermott and incited him to commit murder. The Marks case reflected the prevailing cultural ambivalence about women, notably in its association of unbridled female sexuality with moral depravity and crime. Susanna Moodie’s detailed contemporary account of the murder, Life in the Clearings Versus the Bush, distilled this ambivalence in the author’s evident desire both to condemn and exonerate. Moodie portrayed Marks as a pretty and intelligent girl but with a “silent, sullen temper.”⁷³ She described how Marks pushed a reluctant McDermott to commit the murders, only to be overtaken by waves of regret in the aftermath of the crime. Moodie, who described herself as “very anxious to behold this unhappy victim of remorse,” encountered Marks during a tour of Kingston Penitentiary. Observing Marks in captivity, Moodie emphasized her “air of hopeless melancholy” but added that it was balanced by facial characteristics that gave her a cunning and cruel expression. Noting that, following her visit, Marks became mentally ill and was transferred to the Toronto Asylum, Moodie concluded, “Let us hope that all her previous guilt may be attributed to the incipient workings of this frightful malady.”⁷⁴

Amidst the growing women’s penal reform movement, the most remarkable change in the mid-nineteenth century was the noticeable softening of discourse about female criminality in the penitentiary. Unlike earlier references to female inmates that cast them as the worst in the institution, late nineteenth-century descriptions assumed a more sympathetic tone. When official reports mentioned female prisoners (and they did so infrequently), they were regarded as “frail ones” and “poor creatures.”⁷⁵ As in the earlier era, women continued to be convicted primarily for non-serious crimes. Of the 218 women incarcerated at Kingston Penitentiary between 1870 and 1895, 156 were convicted of larceny, theft, or burglary. Incidents of violent crime, while higher than in the earlier part of the century, remained low. Even more rare were incidents of “moral crime”: three women served time for causing an abortion, two for concealing the birth of a child, one for permitting prostitution of a young girl, and one for child desertion.⁷⁶

Though they were often physically marginalized, the female prisoners were nonetheless deeply integrated with the penitentiary economy due to the domestic labour they provided. Women produced and mended much of the clothing required by penitentiaries and were also relied upon for cleaning all areas of the penitentiary. Considering the small number of women in each penitentiary, the volume of labour they provided was staggering. For example, at Kingston in 1898, twenty-six women produced over 6,000 pieces of clothing and linens, including shirts, towels, handkerchiefs, pillowcases, sheets, socks, and mittens. In addition, the women’s department mended 10,425 pairs of socks for the male prison. The same year at Dorchester, the female prisoners performed the equivalent of 52 days of work specific to the maintenance of the female ward. By comparison, they provided 656 days of labour mending apparel for the men’s prison and performed 730 days of “washing and housework” for the entire institution. This labour was performed by six women, and the matron noted that due to medical conditions, not all were capable of physical labour.⁷⁷ Still, there was little discussion of the moral reform expected of these prisoners, and the positive moral effect attributed to their labour was assumed to be virtually nothing compared to that attributed to the male prisoners’ work. For all penitentiaries in this era, this labour was a simple necessity and female prisoners provided a cheap and ready solution. For the most part, these were services without which the institutions could not survive.

RACE

Race was a carefully defined category in the nineteenth-century penitentiary. Noted on registers, in reports about prisoner conduct, and in all other manner of personal records, race also sometimes played a contributing role in particular constructions of criminality. The most obvious targets of differentiated notions of criminality were black prisoners. Although black prisoners were subjected to the same routines and disciplines as all other inmates, their relationship to the penitentiary and daily penal practice was often refracted through racial categories.

Historically, penitentiaries, gaols, and workhouses have been tools of discipline used to maintain racial hierarchies established by systems of slavery. In Québec at the end of the eighteenth century, a number of recently arrived black and Aboriginal, or panis, slaves deserted their owners under the pretext that there was no legal slavery in the province.⁷⁸ In at least two cases involving black women, slave owners appealed to magistrates for warrants to secure their return. Although it was unclear that such warrants were enforceable, in both cases the women were recaptured and committed to the local gaol. The first, a woman named Jude, obtained a writ of habeas corpus and the Court of King’s Bench discharged her without costs. The chief justice at the time stated that he would discharge “every Negro, indented Apprentice, and Servant, who should be committed to Gaol under the Magistrates warrants in the like cases.”⁷⁹ In the second case, a slave named Charlotte belonging to a Montreal merchant deserted and was subsequently incarcerated in the gaol, only to be released after petitioning with habeas corpus.⁸⁰ The two cases alarmed Montreal merchants, who feared losses to slave owners and their creditors. To clear the legal confusion, a bill was tabled in the House of Assembly of Lower Canada in 1799 that guaranteed slave owners’ rights to their property. Furthermore, the bill stipulated that it would be lawful to commit all deserting slaves, apprentices, and servants to the common gaol of the district where they were apprehended until they could be returned to the services of their owners.⁸¹

After the abolition of slavery in the British Colonies in 1807, Canadian gaols continued to play a role in detaining escaped slaves from US jurisdictions. Habeas corpus challenges were often avoided simply by making theft or rape charges against escaped slaves apprehended in British North America. This was the case with Nelson Hacket, who was pursued by his master from Arkansas and incarcerated in the Sandwich gaol in Chatham after being falsely accused of theft and rape. Hacket faced an insurmountable series of affidavits from legal and government authorities in both Michigan and Arkansas supporting the case of his master, Alfred Wallace. Wallace obtained requisitions from the governors of Arkansas and Michigan supporting his charges against Hacket, who was surrendered to the State of Arkansas to stand trial for grand larceny.⁸²

Between 1836 and 1857, Kingston Penitentiary received 250 black convicts. Throughout this period, the shadow of slavery continued to fall on black prisoners. In Kingston’s first full year of operation, Chaplain W. M. Herchmer noted that of 148 prisoners, 15 were “coloured people” and “8 are runaway slaves, wofully [sic] ignorant and degraded.”⁸³ Robin Winks notes that before 1850 there was a widespread view in Upper Canada that black convicts made up a disproportionate part of the penitentiary population.⁸⁴ Kingston’s Protestant chaplain, R. V. Rogers, argued in 1841 that the premise was deeply flawed: “Let our neighbourhood to nearly three million slaves be considered, that the coloured population of Canada is largely composed of runaway slaves, and a reason is at hand for the large number of coloured Convicts, without seeking for one, which white malignity has ever at hand, in the alleged idleness and viciousness of that race.” Rogers advanced a more nuanced explanation for the perceived criminality and ignorance of black convicts than his colleagues in the penitentiary. “The previous education of slaves should be considered,” he wrote, “or rather the absence of education.—Living as they do on the majority of plantations, in a state of the grossest ignorance and vice, can it be wondered at that some on reaching this land of liberty should commit crimes which render punishment necessary?”⁸⁵ This was one view. Winks notes that some held a counter opinion that fugitive slaves were often not punished for crimes out of sympathy for their condition.⁸⁶

Among penitentiary administrators and officials, there was a consensus that blacks exhibited more criminality than whites. Officials produced statistics that purported to prove this. In 1853 the penitentiary annual report included a table showing “the comparative criminality of different races in Canada.” It did this by producing a ratio of penitentiary convicts to the general population. Of 969,189 Europeans or whites, 233 were committed to the penitentiary, a ratio of roughly 1 to 4,160. Of 8,000 blacks in Canada, 23 were committed to Kingston, a ratio of 1 to 348.⁸⁷ The meaning was regarded as self evident. Slavery continued to influence these numbers in the 1850s. In 1857 Kingston reported 45 black prisoners and 17 mulattoes. The annual report stated that of these, 20 were born in slavery and 26 were born to slave parents.⁸⁸ The direct linkage to slavery affected more than conviction rates: it played a critical role in the perceived criminality of black people in Canada. Christopher Adamson argues that ex-slaves in the American North were seen as a uniquely dangerous class, a construction that was replicated in the South after the passage of the 13th Amendment in 1865.⁸⁹ Under slavery, black people were punished according to slave codes. After the Civil War, southern contractual penal servitude replaced slavery as a way to make this population productive for white landowners.⁹⁰ It also provided an institutional replacement for the control of a population perceived to be a problem. As fugitive arrivals increased in the Niagara peninsula after 1850, similar fear and anxiety was prevalent in Canada.⁹¹

Within penitentiaries both before and after Confederation, black prisoners were frequently regarded as objects of fear, mistrust, and loathing among both staff and convicts. Just as crimes committed by black people received disproportionate play in the local Canadian press, the transgressions of black prisoners often occupied a larger role in the penitentiary record than those of their white counterparts. This created the impression that black prisoners were more incorrigible, more difficult to control, and more criminally inclined than white convicts. Warden D. A. Macdonell described William Jones, an inmate at Kingston, in this way in 1853: “This unfortunate man was formerly a Convict in the Auburn Penitentiary in the State of New York, where I find that he sustained various punishments, but being a very determined character, he succeeded in inducing the authorities to believe that he was deranged, and was sent to a Lunatic Asylum.” Jones eventually escaped from the asylum and entered Canada, where he was convicted and sentenced to life at Kingston Penitentiary. Macdonell reported, “He is a powerful man and very active, but indolent, vicious, and dangerous.”⁹² This was a commonly held view of black convicts, both in public perception and among penitentiary officials. One Kingston guard told a local newspaper in 1896 that he would “rather mind a dozen white convicts than half-a-dozen negroes…. They are treacherous and deceitful, and the guards have to be very shrewd to detect their villainous dispositions.”⁹³

These negative stereotypes of black prisoners persisted throughout the nineteenth century. Often they were self-fulfilling. Because black convicts were targets of mistrust and animosity, they were involved in more trouble than white convicts, thus cementing their reputation as violent and incorrigible. In some cases, black convicts were driven to protect themselves from attack. In other instances, blacks were involved in so much trouble that prison officials relinquished them to insane asylums. One such example was John Foy, an inmate at Manitoba Penitentiary who was convicted in the early 1890s of grievous bodily harm (assault). The Protestant chaplain described the fifty-five year old as “grossly ignorant, obstinate and very bad tempered.”⁹⁴ Much like convicts who were former slaves, officials suggested that Foy’s ignorance and illiteracy contributed to his ruthlessness. Another common characteristic attributed to black convicts was unusual physical strength, a quality that underscored their particular menace. The chaplain’s description of inmate Foy reflects that fear: “Being a powerful fellow, it is dangerous to trust him among other convicts and guards, as he is as treacherous as he is violent. It may be useful to transfer him to Kingston where he could be placed under restraint as a lunatic, if necessary.” When Foy’s sentence was complete, Manitoba Penitentiary detained him for an additional three weeks while attempting to convince the North West Mounted Police to transfer him to Kingston permanently as a lunatic. The police finally took Foy into custody but released him three days later after judging him to be sane.⁹⁵

Finally, black convicts were constructed in ways that conformed to negative notions of criminality because they were at ideological odds with the penitentiary reform project. Adamson argues that in US prisons, the perceived criminality of black people could not be reconciled with American ideologies about reformation because the concept of reformation was tied to the body politic and citizenship. In the antebellum era, this left black people, even in emancipated states, in a precarious position because it was difficult to conceive of a place in society for “reformed” black convicts. While southern slaveholding states considered it “utopian” for Northern prisons to reform black convicts, Adamson suggests that their Yankee counterparts in penal administration struggled with the same ideas, particularly after the influx of emancipated slaves after 1865.⁹⁶ Canadian penitentiary officials exhibited similar uneasiness about the future of black prisoners: they could not conceive of them ever joining Canadian society as productive and “reformed” individuals.

FIRST NATIONS CRIMINALITY

The constructions of criminality surrounding black prisoners was turned on its head in the case of First Nations prisoners. In western Canada in the post-Confederation era, the penitentiary increasingly came to represent the punitive arm of Canadian colonial policy in a network that also included the Department of Indian Affairs and the North West Mounted Police (NWMP). While First Nations people were subject to unique constructions of criminality, their position in Canadian society as colonial subjects had a profound effect on how the penitentiary responded to their incarceration. In these constructions of criminality, we see a dramatic contradiction between portrayals in Western society that emphasized the savagery of First Nations people (particularly after the 1885 Northwest Rebellion) and penitentiary responses that were largely paternalistic and condescending.

In the early 1870s, First Nations people in the Canadian North-West Territories faced increasing economic uncertainty. Depleted by decades of epidemic disease and warfare, and the destruction of traditional buffalo-based economies, by 1877 most First Nations people had entered into treaties with the Canadian government.⁹⁷ As Cree, Assiniboine, Blood, and Blackfoot tribes settled on reserves in the late 1870s, many bands struggled with the end of their economic independence and autonomy of movement throughout the North-West. Although the buffalo hunt had ceased to be the centre of economic activity by the 1870s, many tribes continued to participate in the related practice of horse stealing, either between tribes or from settlers in Canada or across the American border. While the federal government relied upon the Department of Indian Affairs (DIA) to govern life on reserves, it turned to the NWMP to curtail horse stealing. As Brian Hubner argues, the NWMP and DIA focused on horse stealing not only because it was economically disruptive to new European settlement but also because it represented the incompatibility between traditional First Nations lifestyles and the new economic order.⁹⁸ The threat of horse stealing was magnified by the fact that it was carried out by young men, often armed. Indeed, the federal government and the NWMP considered this element of First Nations society a dangerous class and responded to horse stealing with increasing severity. The police were aided in this goal by the opening of Manitoba Penitentiary, which provided the mechanism for much longer sentences than were possible in the early NWMP guard rooms connected to police outposts.

By the early 1870s, First Nations people were already being sentenced to terms in provincial prison. The very first prisoner listed on the Manitoba Penitentiary admittance register was a Dakota man named John Longbones. Longbones was convicted of assault with intention to maim in May 1871 at the General Quarterly Assizes in Red River and sentenced to two years at Lower Fort Garry, which was, at the time, a provincial penitentiary. One of only six prisoners to be incarcerated at Lower Fort Garry before it was designated a federal penitentiary in 1872, Longbones was joined by three Americans, a Métis from Red River, and a Swede convicted of horse stealing. In these early years, it was extremely rare for First Nations people in the North-West to be convicted of serious crimes. Longbones was one of only three First Nations men, all Dakota from the Red River area, who were sentenced to Manitoba Penitentiary before it moved from Lower Fort Garry to the new facility at Stony Mountain, outside of Winnipeg. The others, Pee-ma-ta-kow and Mc-ha-ha, were both convicted of larceny in September of 1873.⁹⁹ While they were at Fort Garry, the Dakota prisoners were visited by John Longbones, who had recently been released. According to Samuel Bedson, the warden at Lower Fort Garry and later at Manitoba Penitentiary, Longbones “exhorted them in a most earnest manner to implicit obedience to the rules, relating his own experience of the advantage so gained, as a case in point.”¹⁰⁰ In the early 1880s, the increasing vigilance against horse stealing was made possible by NWMP patrols throughout the North-West and co-operation from the American military in pursuing horse thieves across the border. Starting in 1881, NWMP magistrates and territorial judges began to deliver more serious sentences for horse stealing, sending convicted thieves to Manitoba Penitentiary. The first two such convictions were Ka-ka-wink and Little Fisher, both sentenced to five years at Manitoba. It was Little Fisher’s second conviction for horse stealing. His first was in October 1880, when he was punished with six months of hard labour in the NWMP guard room at Fort Walsh.¹⁰¹ Little Fisher managed to escape the guard room for a time, but he was later recaptured. Possessing impressive determination, he escaped from Manitoba Penitentiary less than two years after his second conviction for horse stealing. He was never recaptured.¹⁰² There were two more individual convictions for horse stealing in 1882. Jingling Bells received a three-year sentence while Na-ke-ew was sentenced to seven years. As the NWMP and the DIA moved to completely end unauthorized First Nations movement across the border, sentences became more severe.

In 1883 the police moved more decisively against cross-border horse stealing. Three Cree men and one Saulteaux man were convicted of bringing stolen property into Canada in May 1883 and received five years each at Manitoba Penitentiary. The following month, the NWMP arrested eleven Cree men for a raid on a Montana rancher. Each was sentenced to two years at Manitoba Penitentiary. NWMP Commissioner A. E. Irvine reported, “Such punishment has unquestionably been accompanied with most beneficial results, proving as it did, that the Canadian government was determined to use its utmost endeavours towards stamping out pernicious and criminal practices.”¹⁰³ The convictions for horse stealing resulted in a major influx of prisoners to the newly constructed institution, which housed ninety-nine prisoners by 1883.¹⁰⁴ By 1885 a total of twenty-four First Nations men were imprisoned at Manitoba Penitentiary for horse stealing or bringing stolen horses into Canada. Seven other First Nations individuals were held for other crimes.¹⁰⁵ As Heather Rollason and R. C. Macleod argue, other than those for horse stealing, convictions of First Nations people throughout the North-West were extremely low given that they dramatically outnumbered whites in Manitoba and the North-West Territories.¹⁰⁶ Still, in 1883 the Canadian government was deeply apprehensive of the threatening potential represented by growing First Nations political agitation. In the 1880s, rising political activity among the Plains Cree would confirm the government’s worst fears about the criminal threat posed by First Nations autonomy in the North-West.

As early as 1883, the federal government was moving to prevent this possibility by planning to arrest Cree political leaders, including Big Bear, Poundmaker, and Little Pine. Prime Minister John A. Macdonald, also the minister of Indian Affairs, moved to align his department, the NWMP, and local magistrates toward the same goal: the long-term imprisonment of the Cree political leadership.¹⁰⁷ However, in early 1885, the Cree people became embroiled in the spreading violence of the Northwest Rebellion. Big Bear’s people were responsible for the massacre of nine white settlers at Frog Lake, and both Poundmaker and Little Pine were drawn into armed conflict with the Canadian militia, which had initially engaged with Louis Riel’s Métis forces in Saskatchewan.¹⁰⁸ After a summer of being pursued by the militia, the majority of the exhausted fugitive Cree surrendered or were captured. Eighty-one First Nations men were charged with various crimes, ranging from horse stealing, arson, and murder, to treason-felony.¹⁰⁹ Forty-four men were sentenced to imprisonment at Manitoba Penitentiary, including Poundmaker, One Arrow, and Big Bear, all convicted of treason-felony for their role in the Rebellion.¹¹⁰ Thus, the summer of 1885 ended much as Edgar Dewdney, lieutenant-governor of the North-West Territories, and Hayter Reed, then assistant Indian commissioner, had intended: the Cree political movement was decapitated and its leaders incarcerated along with the most “rebellious” and “dangerous” members of the dissident bands.

In the aftermath of the Northwest Rebellion, popular portrayals of First Nations criminality were at their most inflammatory. Anger at the violence committed during the rebellion was immense, and the Canadian press portrayed the rebels in the most inflammatory terms. Editorials stressed the need for vengeance and for subdueing the brutal nature inherent in Native people. Even editorials that criticized the Conservative government’s North-West policy resorted to the same themes. The Toronto-based Globe condemned the harsh treatment of First Nations people but argued that poor policies had incited the “savage and murderous instincts” of the North-West tribes.¹¹¹ In spite of the strength of racialized constructions of criminality involving First Nations people, particularly after 1885, there was also a remarkable dichotomy at work that accented the possibility of change. As Andrea McCalla and Vic Satzewich argue, colonial ideology stressed that the cultural characteristics of First Nations people were never regarded as biologically grounded. In fact, the very basis of the colonial relationship between First Nations people and the Canadian state was premised on their ability to change their fundamental cultural characteristics to become more like Euro-Canadians.¹¹² This belief permeated colonial relationships between state officials and First Nations people even in situations like the aftermath of the Northwest Rebellion, when individuals were criminalized.

In the late 1870s, Samuel Bedson, warden of Manitoba Penitentiary, developed a philosophy and practice that was uniquely applied to the First Nations prisoners at that institution. Bedson was an atypical warden in the penitentiary service. He had come to Canada at the age of nineteen with the 16th Foot. In 1870 he joined the 2nd Battalion of Rifles and served in the expedition to quell the 1870 Red River Uprising. When the battalion disbanded in 1870, Bedson was chosen as warden of the provincial gaol recently established at Lower Fort Garry. He possessed no penal training. Like D. A. Macdonell at Kingston and Creighton after him, Bedson believed that common sense should guide penal policy, a principle he combined with strict military discipline. He served as warden at Manitoba until his death in 1891 at the age of 49.¹¹³

Warden Bedson adopted the view that the penitentiary could be used as an instrument of “civilization,” and he instituted special education, labour, and religious programs for First Nations prisoners. In 1877 he organized classes for the benefit of Pee-ma-ta-kow, Mc-ha-ha, and Joh-qui-gay-poo. “Most of them at the opening of the school understood English very imperfectly,” he reported; “they now can read and write, and their progress is most marked, and much greater than could have been expected. They show great diligence, and seem most anxious to learn.”¹¹⁴ The following year, Bedson declared the program “eminently successful” on the basis of weekly reports submitted to him by the officer in charge of instruction.¹¹⁵ In the warden’s view, the education provided by the penitentiary provided valuable opportunities for the “civilization” of First Nations prisoners. In 1878 he wrote,

The expiration of the terms of punishment in the case of Indian prisoners is not infrequently looked upon themselves with positive regret. They enter ignorant and superstitious, and easily moulded for good or bad. The routine of prison life, and the opportunities constantly thrust upon them for moral and intellectual improvement, is seldom lost, and they leave, what in their case is virtually an adult reformatory, radically changed for the better, in almost every particular.¹¹⁶

As with other prisoners, labour played an important role but assumed colonial overtones in the case of First Nations prisoners. Bedson ensured that they performed labour that would aid them in their new role as agriculturalists. Inspector Moylan commented approvingly in 1887, “The Warden places as many as possible of the Indian prisoners in the workshops, in order that they may learn such trades as will be useful to them on discharge, and especially those for which they show a taste and preference.”¹¹⁷ Father Cloutier, the Catholic chaplain, wrote on the same issues, noting that the Cree prisoners had learned trades and, after being taught the benefits of “manual labour,” would “continue to work, and thus help on the civilization of their own people.”¹¹⁸

Alongside education and labour, religion played an important role in efforts to civilize First Nations prisoners. When the first large groups of horse thieves arrived at Manitoba Penitentiary in 1883, they attracted the special attention of Father Cloutier. After a year of instructing the Cree men, he reported that he was pleased with their progress. “They were eager to learn the principles of a Christian life,” he wrote, “and as far as it was possible, I grounded them thoroughly in the lessons I strove to impress on their minds.” After the Native prisoners were instructed in the “truths of religion,” the archbishop of St. Boniface travelled to the penitentiary to baptize the men. Cloutier reported, “The usual imposing ceremonial made a deep impression on the susceptible minds of the Indians.”¹¹⁹

Perhaps more important than religious lessons were the messages the chaplain conveyed about the changing relationship between First Nations people and settlers in the North-West. In this respect, Cloutier explained to the Cree horse thieves what the government was trying to accomplish through penitentiary sentences: “They understood that the whites were not their enemies; they understood that in every society there are men who rule, and others who are ruled; that if the law is not to remain a dead letter, it must be upheld; that respect for the law is to their own advantage, and its violation a cause of trouble, and that the welfare of all demands that its violators be punished.” The Cree prisoners understood all of this in a general way, noted Cloutier, but he added that their confidence in his lessons about Canadian law was shaken when he tried to make them understand that their imprisonment was “for their own good.” Despite their reaction, he truly believed this to be the case, and he echoed the themes of evangelical colonialism in his praise for the good work accomplished at the penitentiary. “I am convinced,” he wrote, “that their stay in the institution will have been of real benefit to them.” Furthermore, he suggested that upon release, the Cree would carry with them the goodwill instilled in them by their time in the penitentiary: “The Indians are big children, and their sensitive hearts cannot fail to have been touched when they were discharged before the expiration of the full terms of their sentence.”¹²⁰ Cloutier concluded with an optimistic view of the future:

They will tell what has been done for them; they will make known the real purpose held in view by those who administer the laws, and they will point out the duties devolving upon those who are subject to those laws. They will help to remove the mistrust existing amongst the Indians towards the officials of the Government, and inspire them with that confidence which is essential to all amicable relations. This will be a great step towards their moral and intellectual improvement.¹²¹

Though his writing was full of benevolence and sanguine forecasts about the future of the Cree men incarcerated in 1883 and 1884, much of what Cloutier said could be boiled down to a single basic lesson: imprisonment made the horse thieves understand that they had become “the ruled.” Still, this was a form of reformation that was inherently more optimistic than could possibly be imagined regarding other groups of racialized prisoners. Depending on the desired outcome of the subject group, race could be remarkably transmutable in how criminality was constructed in the penitentiary. In other categories, such as medical classification, race played a more distinct role. As I discuss below, the racialization of black and First Nations prisoners played an entirely detrimental role in how penitentiaries responded to the deteriorating health of these prisoners.

JUVENILE DELINQUENTS

Some of the most conflicted nineteenth-century constructions of criminality involved juvenile delinquents. When Kingston Penitentiary opened in 1835, among the first prisoners were children as young as eight years old. This was indicative of the lack of social welfare options for children and adolescents charged with criminal offences. It was unlikely that such young offenders would be whipped or banished, and prison often appeared to be the only alternative. Both boys and girls were mixed indiscriminately with the adult convict population and participated in the daily routines of prison life. This included being subjected to the same types of corporal punishment that were given to adult convicts.

The lack of distinction between children and adults gradually changed under the influence of the second wave of penal reform. The Brown Commission condemned the treatment of children at Kingston Penitentiary and recommended the construction of a House of Refuge for young criminals. As with most of his suggestions, Brown was drawing on a changing conception of childhood criminality that was taking root in British and American reform movements. Martin Weiner notes that, as with the mentally ill and “fallen women,” the early Victorian period saw new attitudes about the possibilities of reforming young offenders. These were based upon a particular construction of criminality that was distinct from how older deviants were conceptualized since the notion of personal responsibility was far more conflicted where children were concerned. One perspective was that children were not wholly responsible for their guilt in the commission of crime. The more dominant view, however, was that regardless of guilt, children were potentially more socially dangerous than fully formed adults because they acted on impulse and had the potential to develop into truly dangerous individuals if this degeneracy were not checked.¹²² As a result of the second perspective, the solutions that reformers proposed for childhood criminality were often no less punitive than those in prison regimes designed for adults. Even in the midst of the rise of the child reformatory movement, the responses to juvenile delinquency remained essentially Lockean. The implication was that these offenders required harsh treatment to stop their slide into absolute criminality.

The solutions proposed by the reform movement mirrored responses to the perceived social crisis surrounding the dangerous classes. In England, this began with voluntary Sunday schools that were designed to teach morality to the children of those classes. The movement became more widespread as the sense of crisis about the poor deepened. Mary Carpenter’s “ragged school” movement involved opening voluntary day schools in the poorest neighbourhoods. But these early endeavours were undertaken without state support because, as Carpenter argued, “it has always been felt that government aid and inspection would be fatal to what must be a heartless labour, if not a labour of love and Christian zeal.” Carpenter eventually admitted, however, that these limited efforts were not up to the task of changing “the whole nature of the child.”¹²³ Her solution was to introduce the young offender to a newly moral environment that would restore “the position of childhood.” In dedicated reformatory schools, the child would be placed in a family environment that would create the moral influences lacking in the early years of development. “He must be brought to a new sense of dependence by re-awakening in him a new and healthy desire which he cannot himself gratify,” wrote Carpenter, “and by finding that there is a power far greater than his own to which he is indebted for the gratification of these desires.”¹²⁴

Carpenter constructed classifications for juvenile delinquents that were similar to those that penal reformers created to explain different degrees of criminality. The reformatory school solutions she engineered as a response to juvenile delinquency tell us much about how she viewed childhood criminality. She separated juvenile delinquents into four classes. The first comprised the “hardened young offenders” who were the outlaws of society; the second was composed of the children of habitual criminals, trained in dishonesty; the third encompassed children with no moral influence who were merely susceptible to future crime and lacked the will to choose a moral path; and the fourth was made up of the utterly destitute who were driven to crime by their poverty. All of these categories hinted that juvenile delinquents were in one stage or another of development as members of the dangerous classes. According to Carpenter, each class required “some peculiar and distinct action for its suppression.”¹²⁵ Thus, Carpenter, who was regarded as one of the “softer” voices on juvenile delinquency, equated youth crime with moral disease that required institutional intervention. In its aims and ideology, her reformatory school network would function as a state moralization project to stop the degeneration of the urban poor. In practice, it created a network of prisons for children.

The drive for separate institutions for children started much earlier in the United States. When Brown suggested that Canada build a House of Refuge for children, he was drawing on American movements under reformers like Charles Eddy. In the 1820s, American reformers constructed Houses of Refuge in New York, Boston, and Philadelphia. While the same reformers inspired Auburn Penitentiary and subsequently Kingston, Canada was slower to adopt reform ideologies that promoted separate institutions for children, largely because the social crisis regarding pauperism and urbanization that characterized New York and Boston in the early nineteenth century was slower to develop in Canadian urban centres. As Anthony Platt argues in The Child Savers, it was the demands of a perceived social crisis, and not purely humanitarian responses, that motivated new institutional solutions for children.¹²⁶

By the late 1850s and 1860s, Upper Canada, Lower Canada, and Nova Scotia had opened prisons specifically designed for children and youths. These early institutions, labelled alternately “reformatories” or “industrial schools,” were mere prisons for children and young men, and did not address issues of reformation or criminality in their regimes, which were based largely on labour and punishment. A second wave of institutions that opened in the 1880s, including the Victoria Industrial School for Boys in Toronto and the Alexandra Industrial School for Girls, attempted to create more caring and family-like atmospheres for their young inmates. The new institutions were part of a growing progressive agenda with regard to children that included compulsory education, foster care, and parole services.¹²⁷ In spite of a growing child-welfare movement that aimed to rescue children from the damaging influences of poverty and criminality, the justice system across the country was inconsistent regarding the treatment of children and youths. Still, by the late 1880s, youth reformatories had reduced the number of children sentenced to penitentiaries in Ontario and Québec: between 1870 and 1900, sixty-three individuals aged sixteen and younger were sentenced to Kingston Penitentiary, but only six of these occurred after 1890.¹²⁸ However, in other jurisdictions, young children and teenagers continued to be sentenced to terms in federal penitentiaries in the 1870s and 1880s. Some penitentiary officials suggested that this was the result of decisions made by “benevolent” judges who sentenced children to penitentiaries in the belief that they were more civilized than what one inspector called “the fouler abyss” of local gaols or provincial prisons.¹²⁹

Penitentiaries were certainly more regulated than local gaols or prisons, but they were not safe places for children. The “very special and tender watchfulness” that penitentiary chaplains offered to child convicts was intended to prevent their “moral ruin” through association with hardened criminals.¹³⁰ As Robert Mitchell, a surgeon at Dorchester, wrote in 1890, “I can conceive of nothing more likely to complete their moral ruin than to send children of such tender years to associate with a prison which includes among its inmates murderers, thieves, and burglars.”¹³¹ In spite of attempts, sometimes only superficial, to separate young convicts from the older prison population, penitentiary officials agreed that the influence of hardened criminals upon youths was impossible to prevent. The notion of moral influence also represented a changing conception of youth criminality, which came to be understood as something distinct from the constructions of criminality commonly associated with adults. Criminality was no longer regarded as an innate characteristic bur rather as a product of circumstances.

By the late nineteenth century, poverty had displaced morality as a dominant theme in the reform discourse about children and crime, with reformers promoting the idea that children could be saved from the clutches of poor parenting and poverty.¹³² In 1900 C. E. Cartwright, a Protestant penitentiary chaplain, offered his explanation of the presence of young convicts: “A moiety I believe, have from one cause or another lost their homes at an early age. Many tell such a story as this: ‘My mother died when I was five, my father when I was thirteen, I could not get on with my step-mother and left home then,’ or ‘I was first arrested for vagrancy when I was ten years old, my step-mother having turned me out.’”¹³³ There was some recognition, probably more so than with adult convicts, that class was the determining factor in the conviction and imprisonment of youths and children. However, in the eyes of some officials, this did not completely absolve children of the taint of criminality that resulted from their conviction. For example, in 1893 Inspector Moylan linked hardened criminals with a pervasive criminality both inherited from birth and nursed in the commission of childhood crimes. Identifying these young convicts as “sneak thieves and pickpockets,” Moylan traced their origins to the British neighbourhoods of Whitechapel, Rotherhithe, and Ratcliff—all notorious East London slums.¹³⁴ They were, he wrote, “street Arabs … youthful imitators of Fagin and Bill Sykes” who had immigrated to Canada, where they returned to old habits and ended up in reformatories, gaols, and penitentiaries.¹³⁵ These constructions played on popular criminal stereotypes that depicted young convicts as ethnic others. In spite of being one of the leading penitentiary reformers in the country, in this instance Moylan resorted to stock descriptions of youth criminality. In these constructions, imprisoned children were relegated permanently to membership in the dangerous classes, the progeny of criminals and the denizens of the proverbial and literal gutter.¹³⁶

Reformers repeatedly expressed conflicted views of youth criminality, particularly when they came face to face with the striking sight of children among the penitentiary population. In 1883 Inspector Moylan wrote on the question of child convicts with considerable disgust:

If seven years ago, I had not had a like revolting picture presented to me of a certain Gulf province where the shrill falsetto of boys from 8 to 12, mingled with the rough and deep tones of hoary headed men grown old in vice and crime, in giving utterance to obscenity and blasphemy, I might not feel so keenly to write so strongly in condemnation of what I cannot help regard as a revolting anomaly—which is a standing disgrace to Provinces where it suffers to exist.¹³⁷

Moylan was getting at some of the key issues behind the phenomenon of child convicts. New Brunswick—and by extension, Dorchester Penitentiary—incarcerated more children than other jurisdictions because there was no youth reformatory in the province until the late 1890s. In 1884 Moylan noted that Dorchester held twelve children between the ages of nine and sixteen, with sentences ranging from three to six years.¹³⁸ In 1890 Dorchester admitted two brothers, aged eight and ten, on a charge of larceny. Upon their arrival, the warden had a suit of clothing made for both and enrolled them in the nearest parish school. “They are fine little boys and doing well,” he reported a year into their incarceration. Still, the brothers lived and slept at the penitentiary for two years while serving their sentence. From a complaint issued by Dorchester officials, it was clear that the tragedy, in their eyes, was that no other institution existed for the incarceration of such children, not that they were imprisoned in the first place.¹³⁹ This provides a powerful example of the effect of the construction of youth criminality, particularly in individual cases like this where children were already convicted.

Throughout the nineteenth century, constructions of criminality were constantly changing and evolving. In one sense, the penitentiary moved during the Victorian era toward a more individualistic understanding of criminality. Inspired by new reform and evangelical ideologies, reformers and penitentiary officials began to consider each offender on the basis of his or her unique prospects of individual moral reformation. The constructions of criminality in this era were a combination of new and old. Even when criminality was considered an individual attribute, this understanding was always layered with older notions about deviance and with constructions based on class, gender, and race. Most importantly, these constructions did not exist only in the realm of discourse; they played a key role in the development and evolution of penal practice. In the next chapter, I explore some of the manifestations of the complex constructions of criminality. While the idea of criminality affected penal practices and strategies, the remainder of this book is dedicated to how penitentiary life itself affected the subjective views of the prison population.