LEGISLATIVE DEVELOPMENTS

The extent of the success claimed for the Aberdeen system in largely removing the problem of juvenile vagrancy from the streets of the city seems to have hinged on the supportive/coercive nature of the Child’s Asylum Committee system in dealing with recalcitrant backsliders. Watson appears to have recognised a higher degree of compulsion beginning to take root in his scheme when he spoke about the forceful measures adopted on 19^th May 1845 to gather up all the vagrant children on the streets as being like a ‘pressing invitation to dinner and to spend the day’.¹³⁶

By the early 1850s strenuous efforts were being made to make the invitation one that could not be refused. Pressure was mounting for the introduction of legislation to put the industrial schools on a statutory footing and to empower magistrates to have the legal authority to compel children to attend industrial schools under court order. As the statements made by Guthrie in his evidence to the 1852-53 Select Committee reveal, the managers of the schools were active in promoting a push for legislative action. Those prominent in the campaign like Guthrie and Thomson argued that state support was required to secure the future of the schools which until then had been funded purely by voluntary subscriptions, by no means a guaranteed source of income and certainly not sufficient to meet the demand for expansion.¹³⁷ Guthrie’s evidence revealed the strong feeling of resentment that those involved in the schools felt towards those parents regarded as profligate and dissolute who persisted in squandering their earnings on drink rather than support their families, forcing their children to beg on the streets. There was considered to be a real need to be able to compel such children to attend industrial schools where they would be fed and educated and

136 Watson (1851), 15.

137 Thomson (1852) has an appendix with a draft of the Bill.

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also to have the legal power to recover the costs of child support from the parents.¹³⁸ The sentiment which often recurred in the discussions on this topic was that the state should act

‘in loco parentis’: the state should effectively take the place of the parent to meet the child’s need where the parent refused to accept his responsibilities and then force the parent to pay for child support.¹³⁹

2.4.1 Interaction with English campaigners

The pressure for legislative intervention was part of a wider initiative taking place across the UK. On 10^th December 1851, a Conference met at Birmingham to discuss proposals to campaign for legislation on ‘preventive and reformatory schools’. Appearing on the list of those connected with the Conference were the names of a number of Scots including William Watson, Alexander Thomson and Thomas Guthrie.¹⁴⁰ Also involved were the seasoned English reformatory campaigners Mary Carpenter and Matthew Davenport Hill.

The final resolution of the Conference bore all the hallmarks of Mary Carpenter’s vision.¹⁴¹ It called for legislation to introduce a state system composed of three types of schools:

ragged, industrial and reformatory. The ragged schools were to be free day schools for the most deprived children; the industrial schools were to be based completely on Watson’s model of day feeding schools, where vagrant and begging children would be sent under court order to be educated and do industrial work;¹⁴² the third class of schools were the reformatories to which children who had been convicted would be sent in order to be reformed. A committee formed by the Conference presented a draft of the proposed legislation to the Home Secretary, Viscount Palmerston, who promised a Parliamentary

138 Guthrie’s evidence to 1852-53 Report from the Select Committee on Criminal and Destitute Children, p.34.

He also spoke of cases where arrangements were made between the schools and the employers of parents who could but would not pay for their children to recover some of the wages directly, effectively arresting a portion of the parent’s earnings. He said this happened in Dundee too.

139 Thomson (1852); also Guthrie’s evidence p50.

140Thomson was present in his capacity as chairman of Aberdeen county prisons board. Other Scots included John More professor of Scots Law from Edinburgh University as well as a director of prisons, the governor of Edinburgh Gaol and the honorary secretary of Glasgow industrial schools. Watson did not attend in person but his name was on the list of those supporting the event. Ragged School Union Magazine, 4:37 (1852:Jan.) p.15.

The Conference on Juvenile Delinquency became an annual event. Manton (1976).

141 In her biography of Mary Carpenter, Jo Manton states that the terms of the resolution were clearly drawn up by Mary. It set out the scheme she had expounded on in her widely disseminated book on reformatory schools.

142 The Scottish model was much admired by Mary Carpenter and she based much of her scheme set out in Reformatory Schools: For the Children of the Perishing and Dangerous Classes and for Juvenile Offenders (1851) on Watson’s model.

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Committee of Inquiry which took evidence from the reformers, including, as has been discussed, the Scottish reformers Thomson and Guthrie.¹⁴³

Carpenter’s design was not to be implemented in full. The first element to which her scheme referred, the English ragged schools, were not typical in Scotland which of course had a well established network of industrial schools (confusingly also sometimes called ragged schools) to cater for the most destitute. These English ragged schools were considered unfit to receive government aid as they did not meet required minimum educational standards.

For this reason there was to be no legislation or state funding for the English variety of ragged schools.¹⁴⁴ However the other two aspects of her plan fared better and in the course of the 1850s Mary Carpenter had the satisfaction of seeing legislation brought into force on the subject of industrial and reformatory schools. By 1857 both Scotland and England had a statutory framework in place governing these schools.

Carpenter’s system of classification appeared to present a rational well thought out design.

She laid particular emphasis on distinguishing between the categories of children who would be eligible for admission to industrial schools and reformatory schools. She stipulated that the industrial schools were to be reserved for the ‘perishing’ classes, children who were in danger by virtue of their circumstances of becoming criminal; reformatory schools, on the other hand, were to reform the ‘dangerous’ classes, children who had already been convicted of crime. However, as she was probably well aware, there were certain illogicalities in her approach. For example when questioned before the 1852 Select Committee about the non criminal (‘perishing’, as she put it, or pre- criminal) status of the category of children to be admitted to industrial schools she had to concede that vagrancy was indeed a criminal

143 1852 Select Committee on Criminal and Destitute Juveniles; 1852-53 Report from the Select Committee on Criminal and Destitute Children.

144 It is clear from Carpenter’s evidence to the 1852 Select Committee on Criminal and Destitute Juveniles that she considered it very unfair that the English ragged schools did not qualify for adequate government aid. They did receive small grants but were excluded from the more generous capitation grants (allowances per head) given to other voluntary schools in 1856, and in 1862 a Revised Code on education only allowed ‘payment by results’ linking the payment of an annual grant to schools to satisfactory assessments of children’s attainments.

This made the situation even worse for ragged schools as it threatened to remove even the minimal support given to the schools: Mary Carpenter argued the educational standards the schools were required to achieve under the Code were impossible for children from this background. She stressed that success with these children should be measured on a different scale. In her view it was an achievement simply to teach them to sit quietly, let alone instil the 3Rs. In due course, with the advent of the universal compulsory education in the 1870s, all children were eligible to receive a state funded education, including the most ragged. See Manton (1976), 162.

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offence under the Police Acts: therefore the children destined for industrial schools were in the category of children who were subject to conviction too.¹⁴⁵ In effect the children eligible to be admitted to industrial schools and also reformatory schools could all be seen as having already fallen into crime. Though this clearly undermined what she saw as the preventive pretensions of the industrial school she was reluctant to admit it and dodged the question.

This classificatory confusion in her scheme also led to considerable disquiet when the proposed legislation for industrial schools in England was being considered in Parliament in 1857, with many MPs not being able to see why the Bill was said by its proponents to be non-penal.¹⁴⁶ The Scottish approach exemplified by Watson was much more pragmatic, less concerned with classification and the separation of children into the different categories which so preoccupied Mary Carpenter.¹⁴⁷ This was to become apparent in the approach adopted by the first Act dealing with industrial schools in Scotland.

2.4.2 The Scottish legislation- (Dunlop’s Act)

The Scottish campaigners saw their efforts bear fruit with the The Reformatory Schools (Scotland) Act 1854 (17 &18 Vict.,c.72-74) (Dunlop’s Act) which applied only to Scotland and was later to become known as the Scottish Industrial Schools Act.¹⁴⁸ This was an Act relating to destitute children who had not been charged with any offence. Section one empowered a sheriff or magistrate to send vagrant children who appeared to be under fourteen to ‘any reformatory school, industrial school or other similar institution within Scotland’ (unless security was found for their good behaviour) whether established by Parochial Board or association of individuals sanctioned by the Secretary of State for the purposes of the Act. The children were not be detained beyond fifteen without consent and due regard was to be given to the religious belief of the child or parents. The reason for this provision was that there had been considerable controversy in the parliamentary debates on the legislation about the lack of special educational provision for Roman Catholic children in the existing pre-statutory Scottish industrial schools. The influx of impoverished Irish immigrants referred to by Guthrie had resulted in many destitute Irish Catholic children being admitted to industrial schools which adhered to Protestant doctrine. Guthrie’s school

145 1852 Report from the Select Committee on Criminal and Destitute Juveniles.

146 Parliamentary debates on 8^th July 1857 (p.1148) relating to the English measure, the Industrial Schools Act 1857 20 & 21 Vict. c.48.

147Himmelfarb (1984) discusses Mary Carpenter’s classifications. She describes Carpenter as being a very familiar type of nineteenth century philanthropist, both religious and utilitarian. She adds that while Bentham would have hated her allusions to God and love, he would have completely approved of her idea of separate schools for separate classes.

148 It was named Dunlop’s Act after its author the Liberal MP for Greenock Alexander Murray Dunlop.

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came in for particular criticism for proselytising i.e. attempting to convert Catholic children to Protestantism. There were strong objections to this on behalf of the Catholic community and this provision ensured that separate provision would be made for Catholic children.¹⁴⁹ The definition of a vagrant given in the statute was where a child was found begging and

‘wandering’ with no home or ‘settled place of abode or proper guardianship’, and ‘no lawful or visible means of subsistence.’ In these circumstances the Act stated that ‘though not charged with any actual offence,’ the child ‘shall be brought by any constable or police officer before any sheriff or magistrate.’ There were ancillary offences within the statute:

section two provided that where a child had wilfully left the school a procedure under summary complaint initiated by an officer of the school could result in the young person being punished by whipping or imprisonment for up to twenty days before being returned to the school; section three provided for imposition of a penalty of up to five pounds for wilfully withdrawing a child from the school, failing payment of which imprisonment of up to sixty days; section four dealt with the question of expenses of supporting the child while in the school.¹⁵⁰ According to this section the school was entitled to recover the cost of upkeep from parents or anyone else responsible for his support. Failure by the parent to pay the required amount could result in prosecution.

Essentially this Act related to the group of children whom Mary Carpenter would have described as the ‘perishing’ classes, vulnerable, destitute children found in a ‘vagrant’

condition who were thought by virtue of their circumstances to be in danger of becoming criminal. The reference to children not being charged with ‘any actual offence’ meant that the children covered by this piece of legislation were non criminal.¹⁵¹ Even though vagrancy was an offence under the Police Acts, children coming under this Act were not charged with vagrancy: in effect this was a measure decriminalising juvenile vagrancy. The main

149 The parliamentary debates on the parallel English measure on industrial schools in 1857 were also marked by heated exchanges but not on religious grounds. The English MPs objected to the criminalising capacity of the Bill. Many MPs were concerned about the lack of procedural protections and were not convinced by the argument that welfare considerations were the paramount issue when the question of a child’s liberty was at stake: their view was that, although a child detained under the proposed measure was neither charged nor convicted of an offence, he would still be undergoing a form of imprisonment. There were also objections about the new ancillary offences created relating to financial obligations imposed on parents. One MP criticised ‘the multiplication of offences.’( Mr. Stapelton MP. Parliamentary debate on 8^th July 1857 (p.1148))

150 Under section five where no payment was forthcoming from the parents the cost was to be met by the Parochial Board of the Parish on which the child would have been chargeable if a pauper.

151 The criticisms of English MPs (referred to supra) resulted in the English Industrial Schools Act 1857 requiring a conviction for vagrancy before a child could be admitted to an industrial school under court order (s.6) which was not the case under the Scottish legislation. But by amending legislation in 1861, the condition of conviction was dispensed with, putting the legislation in this respect on the same footing as that in Scotland (Industrial Schools Act 1861( 24 & 25 Vict., c.113)).

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objectives of the Scottish campaigners, to empower magistrates to have the legal authority to compel children in need to attend an industrial school under court order, and to force parents who had the means to do so to pay for their child’s support in the schools were now enshrined in this piece of legislation. The Act was a specifically Scottish measure designed to cater for the Scottish situation where there was an existing network of pre-statutory schools which sought extra powers to compel attendance. Under the pre-statutory system the schools had adhered to the principle of day attendance except in cases of extreme need, but under the new statutory system children being sent to industrial schools under court order had to reside at the schools. As the Lord Advocate, Lord Moncrieff put it, ‘attendance as mere day scholars would not carry out the objects of the Act.’¹⁵² However, in the initial years of the statutory system many children still continued to attend the schools on a voluntary basis and these children were day pupils.¹⁵³

2.4.3 The UK legislation - The Youthful Offenders Act 1854 (17 & 18 Vict., c.86)

This Act applied throughout the UK. For England this Act heralded the setting up of a network of certified reformatory schools with state funding. In Scotland Dunlop’s Act remained in force operating alongside this new Act. While Dunlop’s Act dealt with vagrant and destitute children who had not been charged with an offence, The Youthful Offenders Act was aimed at children who had been convicted. It empowered courts to send ‘any person under the age of sixteen years’ convicted of an offence to a reformatory school. The detention in the reformatory was to be preceded by a minimum period of imprisonment of fourteen days. Children were to remain in the reformatory school for a ‘period not less than two years and not exceeding five years’.¹⁵⁴ The cost of maintaining the children was to be partly recovered from parents where possible up to the value of five shillings per week with the Treasury making up the remainder of the cost.¹⁵⁵ Like Dunlop’s Act this statute created a number of offences: for example parents were subject to penalties if they failed to pay maintenance and could be fined or imprisoned; and under section four children who absconded or were regarded as guilty of ‘refractory conduct’ could be imprisoned ‘with or without hard labour’ for up to three months.

152 Edinburgh Evening Courant,16 January 1856. Quoted in Ralston (1988), 48.

153 This was to change in later stages of the system as in the 1860s the schools began to accept only those sent under court order and the schools became residential in character. See chapter three.

154 Under s2.

155 s3 and s5.

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The emergence of this statute was by no means simple and straightforward. The debate surrounding the legislation revealed widely differing approaches, even among those campaigning for reform. Mary Carpenter argued against the ‘vindictive principle of punishment’ in dealing with children but she had an uphill struggle trying to convince others of this, even those who would have identified as her supporters and co-reformers. She was totally opposed to children being imprisoned, and according to Jo Manton, Mary Carpenter’s biographer, she was distraught that this initial legislation on reformatory schools imposed the condition that children had to serve at least fourteen days in prison before admission to a reformatory. As Manton observed, ‘Mary Carpenter’s tragedy was that her whole life was devoted to the creation of a system, which in eventual practice by others ran counter to her true beliefs’.¹⁵⁶ Scottish reformers were also disillusioned by the period of prior imprisonment before admission to a reformatory. Speaking about the practice some years into the statutory system when the period of imprisonment had been reduced from fourteen to ten days, Watson commented:

‘It can hardly be supposed that the imprisonment of boys and girls for the short period of ten days before being sent to a reformatory school can have any beneficial effect and it may have an injurious one. Can there be any good reason, therefore, for continuing a practice which, to say the best of it, is altogether useless?’¹⁵⁷