But while the keepers' discretion was unfettered by formal rule, it was not unlimited. They had to share power, or at least reach an accommodation, with various prisoner communities. The informal sharing of power between the guards and powerful prisoners is well documented in the twentieth century sociology of the prison;11 prisoner communities appear to have been even more powerful in the eighteenth century. This was particularly the case in the debtors' prisons because of the unlimited access to the outside world and the customary privileges of debtors. In large measure this power-sharing came about because of the small number of custodial staff in the institutions. Since such staff had to be paid by the keeper, it was in his interest to employ as few people as possible and to permit prisoners to police themselves. Rules were laid down, including the levying of a fee on incoming prisoners, and these rules were enforced by a wardsman, chosen by the keeper or by the prisoners them- selves. Sometimes the wardsman presided at mock trials to settle disputes or infringements of the rules of the prison.12 Boxing matches were also used to settle disputes between prisoners.13 As disturbing as the idea of the cruelty and unregulated discretion of the keepers was to the reformers, more disturbing still was this 'image of an entrenched inmate nether- world, ruling an institution of the state with its own officers, its own customs and its own rituals.'14

The English prison system began to show signs of strain during the crime wave that followed demobilization after the War of the Austrian Succession. The London prisons became overwhelmed with the crush of destitute poor awaiting trial for petty property crimes. In April 1750, in the 'Black Assize,' two diseased prisoners from Newgate were standing trial at the Old Bailey; of the people who were infected by them, at least fifty died, including the judge, the jury, the lawyers, and many spectators.15 The prison crisis of the 1750s reinforced the growing awareness of the need for intermediate penalties between transportation to the penal colonies and hanging. The prosecution of many minor offences was abandoned because the death penalty seemed to be disproportionate to the crime. Henry Fielding, the famous English novelist and a magistrate, wrote of the necessity to find an intermediate penalty combining 'correction of the body' with 'correction of the mind.' He suggested solitary confinement. As he put it, 'there can be no more effective means of bringing a most abandoned profligate to reason and order than those of solitude and fasting.'16

It was in the context of a continuing crisis caused by burgeoning prison populations and a growing scepticism about the efficacy of existing forms of criminal punishment that the seminal work of John Howard, The State of the Prisons in England and Wales, appeared in 1777. 17 Howard first became concerned with the crisis in the prison system after his appointment as a county sheriff. Unlike most sheriffs, however, Howard took seriously his obligation to inspect the prisons, and visited every prison in England and Wales. The State of the Prisons contains both the record of his observations and his blueprint for radical change. Deeply etched into that blueprint was the disciplinary regime of solitary confinement. Howard's work was unique in its exhaustive treatment of English penal institutions, and it drew strength from the comparative perspective with which he imbued his proposals for reform of the system. Howard also visited a number of the more famous European penal institutions, and they provided him with much of the program of discipline that was eventually set out in the Penitentiary Act in 1779.

By the time of Howard's visits to Europe in the 1770s, the concept of solitary confinement had already been introduced in a number of these European institutions. In 1703 Pope Clement XI commissioned the building of a cellular prison for delinquent and criminal youths. The San Michele House of Correction, opened in 1704, has the distinction of being the first penal institution organized along the principles of isolation, work, silence, and prayer. In the work-hall was inscribed in gold Parum est coercera impropos poena nisi probos efficias disctplina ('It is of little use to restrain the bad by punishment unless you render them good by discipline'). These words were to become the motto for Howard's own work. The concept behind the prison at San Michele, which harnessed the Catholic tradition of monastic discipline to the purposes of punishment, was further developed by a Flemish politician and magistrate, Jean Philippe Vilain, in the 'Octagon,' a prison built under his aegis at Ghent. The institutional regime of the 'Octagon' provided Howard with a model for a reformed English system, and the architecture of the prison, designed to maximize surveillance and minimize the potential for escape, became a model for the early penitentiaries in England, the United States, and Canada.18

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