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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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