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Following the passage of the new Penitentiary Act, the Justice Department
requested plans and estimates for a penal prison. In November 1869, the
federal cabinet approved an inquiry into the workings of the solitary
system at Philadelphia and elsewhere in the United States, and in 1870
official government approval was given for the construction near Kingston
Penitentiary of the new penal prison designed for the purposes of solitary
confinement.47 Work was begun on the prison
in 1870, but was discontinued the following year when prisoner labour
was required for more pressing projects elsewhere.48
The 1868 Penitentiary Act transferred control of the penitentiary from
the five-member board of inspectors to a three-member board of directors.49
In 1875 the superintendency was again transferred to a single inspector
of penitentiaries.50 For the next twenty
years the office of inspector was held by one individual, J.G. Moylan.
In his annual reports, Inspector Moylan set forth those principles of
prison discipline, first enunciated by John Howard, directed to the need
to control abuse of power and ensure fairness and justice within the prison
walls. They merit reciting:
It is of paramount necessity that prisoners should
realize the fact that the rules are carried out fairly and justly. in
order that strict and stern discipline be maintained without exciting
constant resistance. They must feel, too, that the officers are simply
administering the law, and that in any case of abuse of power on the part
of an officer, he will be held to a strict accountability.51
Experience shows that there is no greater mistake
in the whole compass of prison discipline than the studied imposition
of personal degradation as part and parcel of the punishment.52
No one will deny that society has the right to protect
itself, yet not by the exercise of undue severity. The offender is sentenced
by due course of law to imprisonment, either for a limited number of years
or for life; imprison him, then, but do not put him to death, do not drive
him mad or destroy his health ...the law does not sanction this severity;
reason, humanity, common justice cry out against it. The vilest criminal,
who is sentenced only to confinement and hard labour, has as good a right
to require that society should not expose his health, sanity or life to
danger, as the most virtuous member of the community. His safety in these
respects. indeed. is to be watched over with even greater care than if
he were a free man unspotted by crime. The reason is obvious; those who
are at liberty are bound to take care of themselves; if they fall into
peril it is their own fault or misfortune; society is not accountable
for what it seeks not to control. But with the convict it is far different;
the iron grasp of the law is upon him, and he is as helpless for himself
as an infant. Thick walls and iron grates surround him; his fO<xl is
selected and weighed out to him; his allowance of light, air and water
is determined, his hours for sleep, labour and relaxation are fixed; his
dress. his exercise. his habits in every respect are under the constant
and irresistible control of his keepers. He is like clay in the hands
of the potter ...Convicts are capital subjects for experiment. for they
are not allowed to have any will of their own. Everything is done for
them upon a system; they are fed. lodged, dressed. taught. punished and
rewarded upon theory. The interior of a prison is a grand theatre for
the trial of all new plans in hygiene. education. physical and moral reform;
the convict is surrendered body and soul to be experimented upon.53
We will have cause to reflect further on Inspector Moylan's graphic description
of the prison as a 'grand theatre' and on the prisoners' place behind
its enveloping curtain when we consider the modern sequel to solitary
confinement.
To Inspector Moylan the experimentation in prison discipline that had
gone on in the nineteenth century in Europe and North America had narrowed
the field of controversy. 'Here is absolutely the whole question: social
or solitary labour by day, which is better? Facts and experience prove
the congregated system the more preferable, provided the means exist for
isolating the bad and incorrigible from well-disposed convicts.'54
Inspector Moylan proved to be a consistent advocate of the introduction
of a scheme of solitary or separate confinement for the 'incorrigible'
prisoners and as part of the initial incarceration of all prisoners along
the lines of the Crofton model. On the issue of the 'incorrigibles' he
wrote in 1878 that 'the pernicious influence of such characters cannot
be exaggerated. Habituated themselves to a life of infamy, callous to
every sentiment of morality and rectitude, they delight in relating their
evil deeds and experience to others who may be mere tyros in the ways
of wickedness and sin. It is not difficult to forecast the effect of such
intercourse.'55
He explained the rationale behind the separate confinement of the newly
received prisoners in terms resonant with the sentiments of Howard and
Paul. 'This solitude will afford these persons time and opportunities
to enter into themselves, to examine their past lives, their weaknesses,
the causes of their fall and misfortunes, in view of amendment and of
making firm resolutions against relapse. They will, moreover, become well
acquainted with and habituated to the rules and regulations which they
are to follow and allow them to share in associated labour or trades.'56
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