PRISONS. (Hansard, 6 August 1838)

§ The Lord Chancellor
moved the Order of the Day for the House resolving into a Committee upon this bill. The object of the bill was twofold—first, to make prisons in borough towns having sessions of their own, and to put them upon the same footing with the prisons of the county; and also to give the borough justices within their respective jurisdictions the same powers with respect to the prisons as the county magistrates had. He 1008 did not anticipate any objection to this part of the bill. There was another part, however, to which opposition would probably be given, on account of the additional expense which it would have the effect of throwing upon counties, and also because a new subject matter was introduced. Under the 5th and 6th William 4th., the justices were empowered to make rules and regulations for the classification of prisoners. By the 13th clause of the present bill, they were also empowered to make rules and regulations, but an additional power was given them, which was power under the same authority and control as before, and subject to the same reference to the Under-Secretary of State. If upon being referred to him they were approved of, the same machinery which existed under the old law was made use of; and if the present prisons were not sufficient in point of magnitude or construction to enable them to carry the rules and regulations for the classification of the prisoners into effect, then the justices at quarter sessions were to have the power to make provision by presentment for the erection of new prisons of such form and structure as would admit of the regulations being carried into effect. That this provision would have the effect of throwing upon counties a great additional burden and expense he (the Lord Chancellor) was willing to admit; but, at the same time, he thought, if the regulations were proper and useful ones, considerations of expense ought not to be taken into account.

The Marquess of Salisbury
complained, that a bill of such great extent and importance, involving so many interests, and which had been three years under the consideration of the Under-Secretary of State, should have been brought before their Lordships at so late a period of the Session. The bill was not brought up until the 24th of July, and it was altogether impossible, that their Lordships could be then prepared to enter fully into the consideration of a subject of so much difficulty and importance. The bill also introduced a new power upon a subject which was attended with considerable difficulty, and upon which great difference of opinion prevailed—he meant the separation of prisoners. If a further separation were desirable, as in his opinion it was, the experiment ought in the first instance to be made in a public prison, under the superintendence of the Under 1009 Secretary of State. The present bill was objectionable in many other respects. One of the clauses in particular was most extraordinary, and altogether new. He alluded to that in which power was given to the justices to appoint as chaplain one not a clergyman of the Established Church. He hoped he had stated sufficient to satisfy their Lordships, that the bill ought to be postponed till next Session, and with that view he should move, that it be committed that day three months.

§ Lord Lyndhurst
would support the motion of his noble Friend. The effect of the bill was in substance to enable the Under Secretary of State to establish a system of solitary confinement in every gaol throughout the kingdom. Every one knew, that there was not a single prison in any county of the kingdom adapted to that system. The consequence was, that every one of those prisons must be altered or pulled down, and a new one built in its stead, so that the Under Secretary of State would virtually have under the bill an uncontrolled power of taxation. That such would be the necessary consequence of the bill he hoped he should be able to satisfy their Lordships. As the law at present stood, magistrates had the power to make rules and regulations respecting the management of prisons, and these were then submitted at stated intervals to the consideration of the Under Secretary of State, who had the power each time to alter them and make such other rules and regulations as he should think proper. All the rules and regulations were, therefore, absolutely under the control of the Under Secretary of State. The person who could from time to time alter the regulations had clearly absolute power and control over them. Such was the state of the law as it at present stood. It was considered, however, that an order for separate or solitary confinement would not come within the rules and regulations, the making of which was sanctioned by the act. Fresh powers, therefore, became necessary, and accordingly a clause was introduced into the present bill, enacting, that any rules and regulations which might be made respecting confinement in separate cells should be considered as rules and regulations sanctioned by and within the meaning of the former act. That provision, in effect, came to this—that the Secretary of State might establish a system of solitary con- 1010 finement in every prison throughout the kingdom. To give to one individual, and that individual a Minister of the Crown, power to establish throughout the kingdom a system of solitary confinement was an alteration in the former bill, and an augmentation of power never intrusted to any single individual. He (Lord Lyndhurst) did not mean to say, that the separate system might not be a proper system. It was still in its infancy; it was in controversy in America, and the question of the superiority of the one plan over the other had been discussed in a variety of publications, and was still going on. Were their Lordships prepared to establish the separate system, or in other words solitary confinement with additional labour, and nothing to make up for it but the use of books to such of the prisoners as could read? By the law, at present, it was said that solitary confinement could not be inflicted for a longer period than a month at a time, or three months in a year. The present bill contained no such limitation, so that a prisoner, after being in solitary confinement for one month, might the very next day be committed for another month, and so on from month to month through the whole year. He would not consent to leave in the discretion of any individual absolute power to establish separate gaols in this country—first, because he did not choose to intrust to any individual such immense and monstrous power, and also because, in addition to the objectionable character of the power, he would also have the absolute power of taxation without control. He knew from inquiries respecting the gaols of Middlesex, that the expenses of making the necessary alterations would be enormous. He, therefore, said, that at this late period of the Session, they had not time to make the necessary inquiries, and that a subject of so much importance ought not to pass hastily through their Lordships' House, but ought to receive full, mature, and deep consideration.

§ Lord Wharncliffe
was also opposed to the bill. It would throw a great additional burthen upon counties, and the powers which it conferred upon the Under-Secretary of State were excessive and unconstitutional.

Lord Brougham
agreed with his noble and learned Friend, that such extensive powers of taxation were objectionable. He thought there was some mistake about 1011 the matter, and that it was the intention of the framers of the bill, though that intention could not be collected from the words, to allow such of the present prisons to stand as might be made to answer the purposes of the bill. He did not mean to say, that anything of the kind was said in the bill, but it might possibly be the intention, and therefore the alteration might be made in Committee. If this were not done, he should oppose the bill. He had not heard enough to convince him that they ought to intrust such extensive powers to a Minister of the Crown. He did not think the Secretary of State ought to possess the power to alter and to aggravate the punishment which might be directed by the judges of the land.

§ The Earl of Chichester
intreated of their Lordships to allow the bill to go into Committee. He did not think that it contained those extraordinary powers which the noble and learned Lord asserted that it did. He thought that in Committee they would be able to modify the separation clause, and if they did, he conceived that such an alteration would obviate the principal objections to the measure.

§ The Duke of Richmond
contended, that all the objections to the measure might be got over by means of alterations in Committee. He hoped that some benefit would be effected by the bill, and he, therefore, should regret to see the present opportunity of passing it lost. He professed himself the advocate of the silent system with partial separation to such an extent as might be necessary for preventing contamination, and hoped that if the bill were committed they might be enabled to put back the clauses to the point recommended by a committee of their Lordships' House.

§ The Lord Chancellor
said, that the observations made in opposition to the present measure did not contain a single objection to that portion of it which related to borough prisons; for the arguments which their Lordships had heard turned upon the construction which his noble and learned Friend put upon one of the clauses. The power of which his noble and learned Friend complained would be vested, not, as was said, in the Secretary of State, but in the person authorised by law to make rules and regulations. The bill certainly gave to the Secretary of State larger powers than he had before enjoyed, but yet he was not the person authorised by 1012 law to make regulations. By the 4th of George 4th, certain rules and regulations were to be made by the authority of the magistrates, and draughts of them were to be sent to the Secretary of State for his approval. If the prisons were not large enough, the Secretary of State could order larger gaols to be erected, and to that his power was limited. Unless the magistrates neglected to make the necessary rules, then, and only in such a case, could the Secretary of State himself issue rules and regulations.

§ Lord Lyndhurst
replied, that by the 5th and 6th of William 4th, the magistrates at Quarter Sessions could make rules and regulations, but they were bound to transmit them to the Secretary of State. He possessed power to alter them as he thought proper, and to add to the rules and regulations so submitted to him. Surely it would not be denied, that if a certain person had the power to alter and add to certain rules and regulations, it was quite clear that he had absolute control over them. The magistrates at Quarter Sessions might suggest, but the Secretary of State could do as he pleased with the rules and regulations.

§ The Marquess of Lansdowne
said, it certainly never was the intention of the promoter of the bill to confer upon the Secretary of State those large powers which the noble and learned Lord supposed it to give. The bill would merely give the power to the person who by law was authorised to make the rules and regulations. He should support the proposition for going into Committee with a view to amend the measure so as to remove all doubt respecting the powers which it gave, and this he thought might be effected by only expunging the word "add," for in the power of addition, as he thought, the whole of the objectionable powers lay.