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Imprisonment in the common gaols of the province is
inexpedient and pernicious in the extreme, as there is not a sufficient
classification or separation of the prisoners, so that a lad who is confined
for a simple assault (or crime in which, as there is but little moral
turpitude, argues no depravity in the offender) or even on suspicion of
crimes of that description and degree, may be kept for twelve months in
company with murderers, thieves, robbers and burglars, and the most depraved
characters in the province, and a man must know but little of human nature
indeed who can for a moment suppose that such evil communications will
not corrupt good manners ...Gaols managed as most of ours are, as Lord
Brougham well remarks, are seminaries kept at the public expense for the
purpose of instructing His Majesty's subjects in vice and immorality,
and for the propagation and increase of crime.5
The select committee recommended that a penitentiary be built and that
it be located in Kingston. The committee's report led to the appointment
of commissioners who were to collect information on penitentiaries outside
Canada and make recommendations to the House of Assembly as to the system
best suited to the needs of Canada. These commissioners visited penitentiaries
at Auburn, Sing Sing, and Philadelphia. They reviewed the comparative
advantages of the silent and separate systems and recommended that the
Canadian penitentiary follow the Auburn model. Their favouring of the
Auburn system - work during the day in association with other prisoners
under the strict rule of silence, solitary confinement at night - was
based on a number of considerations, principally its demonstrated success
in several states. The commissioners viewed the Philadelphia system of
solitary confinement as experimental and untested.6
The commissioners' report resulted in the passage of Canada's first Penitentiary
Act, passed in 1834,7 and the opening of
its first penitentiary at Kingston in 1835. The act, borrowing from the
preamble of the first English Penitentiary Act of 1779, set out the intentions
behind Kingston: 'If many offenders convicted of crimes were ordered to
solitary imprisonment, accompanied by well regulated labour and religious
instruction, it might be the means under providence, not only of deterring
others from the commission of like crimes, but also of reforming the individuals,
and inuring them to habits of industry.8
The draftsmen of the act also sought to invest the new penitentiary discipline
with legitimacy by adopting John Howard's authority of rules. The rules
and regulations established for the penitentiary marked out in precise
detail the nature of prison discipline. Section VIII of the regulations
dealt with the duty of convicts:
Convicts are to yield perfect obedience and submission
to their keepers. They are to labour diligently and preserve unbroken
silence. They must not exchange a word with one another under any pretext
whatever, nor communicate with one another, nor with anyone else, by writing.
They must not exchange looks, wink, laugh, nod or
gesticulate to each other, nor shall they make use of any signs, except
such as are necessary to explain their wants to the waiters. They must
approach their keepers in a most respectful manner, and be brief in their
communications. They are not to speak to, or address, their keepers on
any subject but as relates to their work, duty or wants ...
They are not to stop work nor suffer their attention
to be torn from it. They are not to gaze at visitors when passing through
the prison, nor sing, dance, whistle, run, jump, nor do anything which
may have the slightest tendency to disturb the harmony or to contravene
the rules and regulations of the prison.9
As Beattie has aptly stated, 'the point clearly was to impose regularity
of labour and good work habits on men who were assumed to have been lazy
and idle, while at the same time isolating each man, breaking his spirit,
taming his passions and preventing the kind of corruption that indiscriminate
intercourse among the prisoners was thought to encourage. So passionately
was it held that separation and isolation would work its miracles that
the prisoners were not even allowed to look at each other as they marched
to and from their cells and at mealtimes.10
It was hoped that the opening of the Kingston Penitentiary would usher
in a new era in the treatment of prisoners, with reformation and moral
reeducation replacing the spectacle of terror. Actual experience during
the prison's first decade of operation, however, told a different story.
The attempts of Kingston's first warden, Henry Smith, to enforce the silent
system were characterized by the royal commission that investigated the
penitentiary in 1848 (the Brown Commission) as 'barbarous and inhumane.'
This commission had been appointed in response to the litany of charges
that had been made against the conduct of the warden. At the centre of
these charges was the allegation that he had pursued a cruel, indiscriminate,
and ineffective system of punishment in the management of prison discipline.
The commissioners, after hearing extensive evidence from prisoners and
guards, documented in their report ample proof of this charge against
the warden.11
For the first seven years of the penitentiary's operation the warden had
relied exclusively upon flogging as the sole punishment for offences of
all types. The commissioners reported that many of these floggings were
inflicted on children: during his first committal in Kingston, an eleven-
year-old whose offences were talking, laughing, and idling was flogged,
over a three-year period, thirty-eight times with the rawhide and six
times with the cats;12 another boy whose
'offences were of the most trifling description -such as were to be expected
from a child of 10 or 11... was stripped to the shirt, and publicly lashed
thirty-seven times in eight and a half months.'13
The commission referred to these and similar cases as examples of 'barbarity,
disgraceful to humanity.'14 The commission
further documented cases of men and women who had been flogged into a
state of insanity. One prisoner was subjected to 'seven floggings with
the cats in a fortnight, and fourteen floggings in four weeks with the
cats or rawhides. It is very clear that if the man was deranged when he
arrived, had any tendency towards it, that the treatment he received was
calculated to drive him into hopeless insanity.'15
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