To Begin the World Over Again

by Matthew Lockwood

  The effort to create a penal system based on incarceration, religious indoctrination, and labor discipline were given the boast they sorely needed with the outbreak of war and the disruption of criminal transportation to the colonies. Unfortunately for the reformers, however, the existing prisons were in no shape either to house more prisoners, or to offer the type of rehabilitation that men like Hanway and Howard advocated. The overcrowded, outdated prisons exemplified by London’s notorious Newgate were rife with disease. Regular outbreaks of “gaol fever,” later identified as typhus, decimated the ranks of prisoners and threatened the health of those living or working near prisons. John Howard estimated that as many as a quarter of all prisoners died from illness, most before even reaching trial. It was proverbial that more suspected criminals would succumb to the doleful conditions of the prisons than would meet their end through court-mandated executions. Imprisonment was tantamount to a death sentence, hardly an amenable circumstance for those who wished to enforce discipline and instill a work ethic.33

  Measures were made to address these shortcomings—the Goal Act was passed in 1774 and prisons like New Prison in Clerkenwell were renovated in an attempt to stave off disease—but the available prisons still lacked necessary space and some of the features required to make criminals into workers. When William Smith visited London’s prisons in 1776, he noticed an interesting aspect of prison culture that may seem cheering to modern eyes, but was deemed counterproductive for eighteenth-century penal reformers. Most prisons of the day were open plan, with prisoners moving with relative freedom throughout the space and freely mixing with fellow prisoners and visiting friends and family. Smith noticed that this ease of movement allowed for the fostering of relationships of mutual support and camaraderie among the population, which he considered a dangerous block to rehabilitation. According to Smith, prisoners shared food, socialized, “and by such means they form into companies, and become more formidable to society.”34

  For men such as William Smith and John Howard, this artificial community defeated the purpose of the new reformative justice. In their view, prisoners needed to be separated in solitary confinement so that they could reflect on their sinful ways and so as to prevent their corruption by other prisoners. If the idle and criminal poor were to be made to work, their communities of solidarity needed to be removed and destroyed, replaced by a Christian ethic of discipline and productivity. Smith argued that “under no pretence whatever should any two or more felons be suffered to associate, even for one minute.” In the words of a committee reporting on the state of one London prison, the mixing of prisoners led to the “contamination of manners and morals,” something that needed to be avoided at all costs if discipline was to be instilled and rehabilitation made possible.35

  The existing prisons were ill equipped for such a task, and new, purpose-built structures were needed if the penal reform forced by the American crisis was to become a reality. But the “Panopticons” of the reformers’ imaginations would take time and money to build and, as the war dragged on, stop-gap solutions were needed. The same year that William Smith visited the prisons of London, in the face of growing fear of the war-induced wave of crime and disorder, Parliament passed the so-called “Convict” or “Hulks” Act of 1776. As a temporary expedient, the act allowed convicted felons to be given alternative forms of punishment. Male prisoners were to put to work dredging the Thames and widening its banks to make it better suited to the increased volume of shipping and larger ships of the late eighteenth century. The infrastructure needed to run such a program was non-existent, so the authorities turned to a tried and true policy. A contract for the work was given to Duncan Campbell, himself a veteran of the transportation industry having previously been hired by the government to ship felons to America before the war. Campbell was not provided with housing for his convict laborers, so he converted two disused ships, the Censor and the Justicia, into floating prisons usefully docked in the Thames. In just two years, the hulks were housing 370 men between them, with numbers rising to more than 500 by 1779.

  That the “Hulks” Act was passed in the same year as the American colonies’ Declaration of Independence was no mere coincidence. The influential London Magazine recognized as much in its discussion of the act, informing its readers that “the unhappy rupture with America, forced the legislature to attend to this amendment” to England’s Penal Laws. The war was forcing people to look for new solutions to the problem of criminals, with deterrence and utility always at the forefront of the debates. The “Hulks” Act used imprisonment and Spartan conditions as a means of deterrence, and hard labor for the national good as a method of rehabilitation. The convicts were to be fed on simple fare, drinking only water, and sent daily to work constructing embankments and dredging ballast to improve the Thames’ capacity to receive the thousands of ships, which, like so many sinews, linked the capital with the colonies and trading centers of America and Asia. This project certainly provided a useful return for the country, but there were other suggestions for how convicts could be made to work for British interests. One proposal suggested that in a time of war, convicts “might be so much better employed on board Men of War.”36

  The conditions on the hulks were no improvement on the prisons. A female correspondent to the Westminster Magazine reported her impressions of “the unhappy wretches, whose liberty is forfeit of their violations and outrages of the Laws of Society,” after an exploratory trip to the hulks docked at Woolwich. After hiring a barge to row out to the three hulks—one a former man-of-war and two decommissioned East Indiamen—she relayed a vivid scene of grinding work and suffering that contrasted sharply with a day that was “lovely beyond description.” “The Deck was crowded with felons, the clanking of chains struck horrible on the ear,” the correspondent wrote.

  Several were well dressed, but the greater part bore marks of their poverty on their backs; and the cloaths suspended by cords in the air to dry, communicated every possible idea of wretchedness. Their meal over (during which they had fed on hard meats) they slowly descended in pairs from the Hulks, and had all the appearance of what their crimes had rendered them—the out-casts of Society—the living testimonials of Guilt—the reproach and dread of the Community.

  When they later returned from their work improving the Thames the change in their demeanor was palpable.

  Labor had deprived their features of risibility, and, as it were, unstrung their nerves: they drooped—they hung their heads—they re-ascended the Hulks in apparent disconsolateness; and it is presumable moistened their coarse and mortifying fare with their tears—the tears of despair, if not contrition—of regret for past enjoyments, if not piercing sense of their present sufferings—of unavailing anguish; for the broken Law will have its atonement, and gripes with iron paw all the unwary and the wicked that are thrown within its power. This is the fact. Working on the Thames is not a sport: the Convicts know little of indulgence—they are hard ruled, hard fed, hard lodged, and drag on an existence from which the gallows would be a deliverance.37

  The unnamed correspondent’s impressions of the horrors of the hulks were not misplaced. In the first two years of the hulks’ existence, well over 200 of the convicts perished, most from illness and disease brought on by the cramped conditions, poor ventilation and sub-standard nutrition. The prisoners were not idle in the face of such dire conditions, and there were mass escape attempts in 1777 and a mutiny in 1778. By 1780 perhaps forty convicts had escaped the hulks, although most were eventually recaptured. Their violent protests over the conditions on the ships did lead to some improvements—including a better diet and medical care. However, despite complaints from the convicts themselves and widespread outcry from the public at large, the hulks were there to stay, becoming a familiar feature of British life in the late eighteenth and nineteenth centuries, long after the American crisis had passed.38

  But there were other problems with the hulks beyond their squalid conditions. For many, one of the cr
ucial aspects of a new penal regime of incarceration and hard labor was the concomitant removal of convicts from the dangerous effects of their social environment—criminal behavior could only be prevented by breaking bad habits and instilling good ones. One could not simply “compel people to be virtuous”; they had to be brought to virtue by removing negative influences and allowing for reflection on sin. One of the foremost proponents of solitary confinement, the reformer Jonas Hanway, argued that “solitude is the most humane and effectual means of bringing malefactors . . . to a right sense of their condition.” Jeremy Bentham agreed, although he was dismissive of the religious undergirding of Hanway’s argument. In his design for the Panopticon, a prison built along rational, utilitarian principles, Bentham contended that the prisoners should be housed in solitary cells and put to work alone rather than in groups. Others felt that solitary confinement at night and group labor during the day would be just as effective, but the general principle remained: work and isolation would reform minds, disciplining the marginal population for the ends of state and society.39

  Less rational observers also agreed that the lack of isolation aboard the hulks was undermining any potential success. In 1782, a London grand jury received numerous complaints about the hulks, arguing that newly released convicts quickly returned to crime, sowing fear and disorder among the good citizens of the capital. The grand jury concluded that the dangers were so great that it had become necessary to “make application to his Majesty’s Ministers, the Secretaries of State, to procure fresh alteration in the mode of punishment for convicts . . . to provide some effectual remedy against the dangers to be apprehended from the immediate dismission of such, whose time of servitude is completed, by press or entitlement, or any other manner which may be deemed efficient.” The hulks, the jurors continued, could not serve the needs of community or country while “the place intended for purgatory to cleanse from past offences [i.e. the hulks], proves virtually a seminary, whose every species of villainy and corruption is systematically taught and imbibed by too successful proficients, shortly to be let loose on the public, ripe for execution of those diabolical designs they have formed in these horrid schools of infamy and destruction.” The hulks made convicts work for king and country, but did little to reform them. If the new penal regime was to work, both bodies and minds would need disciplining, something that could only be achieved by separating criminals from society and each other.40

  In the context of the war with America and the end of Atlantic penal transportation, the only option to achieve these twin ends was to create a new system of penitentiaries. In 1779, an act was passed by Parliament that mandated the construction of a series of “Penitentiary Houses” designed to house convicts with the goal of “not only deterring others from the Commission of the like Crimes, but also of reforming the Individuals, and inuring them to Habits of Industry.” Drafted by the prison reformers William Eden and John Howard in conjunction with the eminent jurist Sir William Blackstone, the Penitentiary Act of 1779 proposed a regime of hard labor by day and solitary confinement at night that would become the standard of penal philosophy for the next hundred years and more.41 The construction of the penitentiaries themselves took time, especially given the costs involved and the other demands on Britain’s coffers, but incarceration, hard labor, and isolation would quickly become the new normal in British judicial practice.

  Although many decried the foul and fetid conditions of the hulks, the initial experiment was repeatedly renewed and extended, ultimately lasting for upwards of eighty years, housing convicts and prisoners of war during of the wars with revolutionary and Napoleonic France and beyond. The prison hulk would become a regular feature of British ports throughout the empire in the nineteenth century. From London and Portsmouth to Cork, Bermuda, Hobart and Sydney, the hulk blighted the empire for decades to come. Its roots lay squarely in the years of the American Revolution. When the more imposing walls of Milbank Prison, the first modern penitentiary, rose a short distance up the Thames, ushering in a new era of criminal justice, it too could trace its roots back to the American Revolution. By cutting off traditional outlets for British convicts while also creating a crisis of criminality and fear, the American War fundamentally reshaped the British justice system, with enduring consequences for penal systems around the globe.

  The impact of the shift to incarceration as the primary method of criminal punishment is hard to overestimate. Over the centuries following the war, what began as a liberal, progressive movement for penal reform morphed into a system every bit as repressive, violent, and inhumane as the judicial regimes that preceded it. Indeed, many of the primary problems with our current penal systems can be traced directly to the reforms initiated in the eighteenth century. Currently nearly 90,000 people in the UK and more than 2,000,000 in the United States are incarcerated. This mass incarceration is a direct reflection of the Beccarian judicial philosophy that contended that certainty of punishment was a more effective deterrent than harsh punishment applied irregularly. One of the overlooked consequences of the judicial reform forced by the American Revolution is that by replacing execution with prison and transportation, juries felt more comfortable imposing the full rigor of the law. As a result, whereas most convicts, even those found guilty of capital crimes, had previously escaped with a fine or flogging, a far greater proportion were now being sentenced to significant periods of exile, imprisonment, and hard labor. Thus, for most people, the legal reforms of the eighteenth century meant harsher punishment rather than more lenient ones. Jurors who had been reluctant to impose the death penalty now willingly sentenced a greater and greater proportion of the population to the new modes of punishment. Our current levels of incarceration began with these reforms.

  The rise of the prison had other long-term consequences as well. First, the introduction of imprisonment as a criminal sanction rather than merely a method of ensuring appearance at court fundamentally altered the nature of pre-trial procedure. Then, as now, incarceration was expensive and space, if anything, more limited. When the potential costs of incarceration were all pre-trial, judicial systems were more likely to press for speedy trials and allow for bail as often as possible. When the potential costs of incarceration are likely to continue post-trial, there is less financial incentive to avoid delays or to allow bail. The results have been catastrophic for modern defendants, who now face long spells in prison before trial, while bail is used as a cudgel to force plea deals.

  Only recently have people begun to become aware of the final drastic effect of the eighteenth-century penal reform movement. The evangelicals and Utilitarians who advocated for solitary confinement hoped that separating criminals from their corrupting environment and allowing them time and space to reflect on sin, punishment, and the consequences of a life gone wrong would help discipline their minds for productive work. Their modern descendants have similarly used solitary confinement as a tool of control: a means of breaking down supposedly hardened criminals and thereby creating well-ordered penitentiaries. Whatever its success as a method of control within the prison, the ubiquitous use of solitary confinement on modern inmates has had an alarming impact on their mental and physical health. Far from reforming them for society, solitary confinement has ensured that many prisoners will never be able to function properly again.

  The great ills of modern criminal justice—solitary confinement, delayed dockets, unequal bail, and mass incarceration—were all present at the birth of the penal reforms of the eighteenth century. These reforms had long been firing the minds of philosophers and philanthropists, and the American Revolution granted them the state backing they had long been denied. In Britain and America, governments in search of novel solutions to the problems of marginal populations, imperial competition, and rampant fear of disorder, embraced incarceration as a means of controlling their people and maintaining order while still utilizing their precious resources for the ends of state. We are still living in the penal world the American Revolution bi
rthed.

  2

  TREASON, TERROR,

  AND REACTION

  Although the riots that rocked London in June 1780 coalesced into an attack on the hated new system of justice, they had not started that way. It had all begun rather peacefully on June 2 when as many as 50,000 men and women gathered in the open ground at St. George’s Field, a mile south of Westminster. As the scene of the massacre of protesters back in 1768, it was a site pregnant with meaning for London radicals, but this time the crowd had come not to support the radical firebrand John Wilkes but instead in support of Lord George Gordon and his Protestant Association. Once assembled, the plan was for an orderly march to Parliament, where Gordon and his supporters would present a petition for the repeal of the Catholic Relief Act. Passed two years earlier in 1778, the Catholic Relief Act was designed to aid British military recruitment at a time of great need by removing the stipulation that soldiers take oaths to the crown, including a condemnation of the Catholic Church. With this requirement suspended, it was hoped that British Catholics would enlist, helping buoy the numbers of a British army critically overstretched by the ever-expanding American War.

  Since Pope Pius V had threatened Queen Elizabeth with the prospect of assassination in 1570, and Catholic plotters conspired to blow up Parliament in 1605, anti-Catholic paranoia had played a prominent role in the British imagination, bringing with it periodic fears of Catholic conspiracies, and real legal restrictions on the economic and political lives of British Catholics. By 1780, this long tradition of anti-Catholic feeling had combined with a series of worrisome international developments to create a potent brew of anti-Catholicism. In February 1778, four months after the British disaster at Saratoga convinced the world that the rebellious American colonies might well win the war, France officially joined the fray on the American side. In June 1779 Spain, like France still smarting from the loss of territory in earlier imperial wars, and sensing a prime opportunity in Britain’s moment of weakness, threw its hat into the ring and declared war on Britain.