A History of English Prison Administration

Sean Mcconville

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317373179
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This title, first published in 1981, draws from an extensive range of national and local material, and examines how innovations in policy and administration, while solving problems or setting new objectives, frequently created or disclosed fresh difficulties, and brought different types of people into the administration and management of prisons, whose interests, values and expectations in turn often had significant effects upon penal ideas and their practical applications. Special attention has been paid to the study of recruitment, the work and influence of gaolers, keepers, governors, and highly administrative officials. This comprehensive book will be of interest to students of criminology and history.

1 Imprisonment prior to the eighteenth century: the gaols

The use of imprisonment

According to Finberg, gaols were part of the systems of criminal justice in England as early as the ninth century.¹ Pugh notes that by the accession of Henry III there were only five counties for which no gaol is known to have existed.² Some of these gaols were purpose-built (such as the Fleet) but more often they were to be found within the protective walls of castles and towns.³ Various social and legal changes increased the number of prisons and their importance as a means of maintaining order.⁴

Pugh argues that in medieval England imprisonment had three main uses: it provided for the safe custody of suspects or those awaiting sentence or execution of sentence; it provided for the coercion of debtors or the contumacious; and it was a punishment in itself. These he calls the custodial, coercive and penal aspects of medieval imprisonment.

Two of these functions are uncontroversial. All students of penal history agree that imprisonment was used custodially and coercively, The latter function was greatly expanded in the mid-fourteenth century when a statute (25 Edw. III, St. V, c. 17) placed all creditors on the same footing as the Crown, by enabling them to use imprisonment to secure payment of debts.⁵

Some commentators, however, have been reluctant to accept that imprisonment was used punitively in medieval times,⁶ but there is now abundant confirming evidence and it is clear that this type of imprisonment increased greatly from the thirteenth century. Pugh shows that even before the Conquest prisons were being used as a form of punishment, and that in later times they were so employed for a wide range of non-felonious offences.⁷ Margery Bassett found instances of punitive imprisonment scattered through the City records 'too numerous to cite', including cases where this penalty had been imposed for stealing, striking a public official and molesting foreigners.⁸ She argued that whilst the primary objectives of medieval prisons were custodial or coercive

the opportunity of using them as places of punishment was not overlooked entirely. Breaches of the peace, disregard for the many ordinances governing life and trade within the city, petty crimes, and disrespect for the governing body were among the misdeeds sometimes punished by imprisonment. The terms ranged from a few days to a year and a day.⁹

Because of the spread of municipal imprisonment,¹⁰ specific statute provision, the greater use of the action of trespass and the extension of 'benefit of clergy' in cases of felony,¹¹ numerous offenders were imprisoned as a punishment — sometimes with a fine or a flogging added for good measure.

But although it is analytically helpful to draw distinctions between the three types of imprisonment it is probable that the practical administrative consequences of the use of prisons for these different purposes were trifling. It is true that in some of the larger prisons, from at least the fifteenth century, efforts were made to separate the felonious - charged and convicted - from other prisoners,¹² but classification was generally non-penal in nature.¹³ Persons punitively imprisoned could expect the same experience as those from similar social backgrounds held for custodial or coercive reasons. As punishment, secular imprisonment was retributive and deterrent - and it is in this sense alone that it should be understood. When imposing this penalty the sentencer knew that he was sending the wrongdoer to an unpleasant, expensive and dangerous place. A theory of reformative punishment requires the formulation of ideas about the causes of crime and other transgressions. This did not occur in medieval thought.¹⁴ Even to the Church, with its total concern with man's spiritual life, crime was not a phenomenon requiring explanation: it was an inevitable feature of man's fallen and sinful state — of his very humanity. The retributive and deterrent approach to imprisonment persisted with respect to gaols through the seventeenth century and beyond. Babington observes of the mid-seventeenth century that 'The only penological principle ... seems to have been that the criminal should be encouraged to feel a proper sense of repentance for his crime and a stoical resignation regarding his punishment'.¹⁵

Viewed simply as instruments of a retributive or deterrent policy, pre-eighteenth-century gaols have far fewer defects than many reformatory and 'progressive' penal historians and commentators would have us believe. Expense, exposure to epidemic disease and other ill-health, and the general social and economic inconvenience of the gaols were hardships of a kind to drive home the lesson and hence, to a certain extent, were desirable.¹⁶

Not only were conditions suited to the several objectives the gaols served, but when consideration is given to the standard of living in pre-industrial society — never far from a state of bare subsistence and incipient personal disaster for the mass of the population — the virtual impossibility of using these prisons in any other way becomes apparent.

The criterion for success in gaol management was not, therefore, the reform of criminal offenders, or even the financial sobering of reckless debtors. It was, quite simply, the ability of the gaol to prevent escapes: to hold suspects and those on remand until the courts required them; to hold debtors and rebels until they paid up or purged their offence, and those under punishment until the sentence of the court expired. One medieval statute ordained that the act of breaking prison was in itself a felony, whilst the keeper of a prison who had neglected or corruptly overlooked this most fundamental duty incurred penalties ranging from fining and dismissal from office to a felon's death.¹⁷ The regulation of prisons consisted, therefore, in one essential: ensuring that the keeper and his staff devoted themselves to the maintenance of custody. From time to time, as will be seen, there were attempts to stiffen control; to prevent, for example, 'excessive' brutality, corruption or extortion. But the sine qua non of success for a gaoler was security of bolts and bars.

Administration

Pre-eighteenth-century gaols were administered by several different types of authority, the two most important (numerically) being the counties and municipalities. There were in addition, however, franchise gaols, national prisons and ecclesiastical and other special prisons. Each of these types had its distinctive form of ownership and control.

County gaols

These were normally in the charge of the sheriff, and at Clarendon in 1166 it was enacted that sheriffs should provide gaols for counties hitherto without them. The subsequent administrative history of these prisons, until relatively recent times, is marked by an erosion of the powers of the sheriffs and their assumption by the justices of the peace.

The forerunner of the justice of the peace was an official first appointed during the Civil War of 1263-5, with the title of conservator or keeper of the peace. Until 1329 the conservators had powers only to record breaches of the peace, but from that date - at first intermittently, and then regularly - they and their successors, the justices of the peace, were empowered to try felonies and trespasses.¹⁸ They were appointed and held office entirely at the pleasure of the Crown; and their duties and authority expanded from the purely legal province at their innovation in the fourteenth century, to an extensive policing and administrative role in local government,¹⁹ as they 'successfully grasped at every shred of power let slip by the sheriff'.²⁰

An Act of Henry VIII extended the duties of the justices to the gaols²¹ and provided that in most counties justices were to levy a rate out of which to construct new gaols; this task completed, gaol administration would be carried on by the sheriffs. This Act was renewed several times, finally lapsing after about fifty years, Pugh thinks that this period of administrative intervention by the justices and subsequent lapsing of the legislation created great uncertainty about the division of administrative responsibilities;²² by the seventeenth century, however, the justices had generally taken the responsibility for gaol maintenance out of the sheriffs' hands, the shift in arrangements being probably due to the instructions of the Privy Council which, under the Tudors and Stuarts, placed the greater part of the burden of local government firmly on the justices.²³

Municipal prisons

By the reign of Henry VIII most municipalities had provided themselves with gaols and lockups to serve their own courts. Prisons were often a part of the town charter, but were also established without this authority.²⁴ Within the towns the exact division of labour in the running of the gaols between the mayor, corporation, town justices and sheriffs varied greatly. In London, for instance, the sheriffs bore the primary responsibility under the supervision of the Court of Aldermen, who were, in turn, accountable to the Common Council — the highest legislative body of the City.²⁵ In early years the London sheriffs had great latitude in the discharge of their custodial duties and were apparently free to decide whether they kept prisoners in their own houses, in their compters or in the common gaol.²⁶

Franchise and other prisons

Franchise prisons were held by ecclesiastical and secular lords and served a group of estates, a hundred, a manor or even a soke or liberty within a town, and varied in capacity from a single room in a manor house to a specially constructed part of a monastery. Whereas in medieval England they were so numerous as to be familiar to everyone, ownership came to be restricted to those who had a royal grant or who allowed their periodical delivery ²⁷ So naturally accepted was this form of gaol-holding that a number of these prisons persisted into the second half of the nineteenth century.

In medieval times there was not wh...