A Marxist History of the Police, Part 4. Building the New Institutions of Class Rule – Crime and Imprisonment

By Stephen James Kerr

Today we are publishing the fourth part in a series “A Marxist History of the Police” which 

Part 1: Repression in the face of revolution, examined how the birth of the industrial working class and the tumult of the bourgeois revolutions drove the need for new forms of repression.

Part 2: Experimenting on the Irish, examined how the experiments towards a police force in Ireland by Sir Robert Peel, up to the infamous Peterloo Massacre in 1819.

Part 3: the crisis of the English Bourgeoisie, examines the relative positions of the aristocracy, bourgeoisie and working class in British society after Peterloo in relation to why the police were necessary.

Introduction

It’s received wisdom today that ‘police exist to fight crime.’ But before police existed, crime was fought. But by the early 19^th century, traditional definitions of crime and the way they were prosecuted had been rendered outdated and inefficient by the growth of new means of production – the factory system. Before the police were created to control the working class, the legal and punitive framework for such control was firmly established. The police came later. Thus the emergence of the legal framework in which police could operate effectively deserves careful study. Surprising relationships are revealed.

Rationalizing the Law – the better to ensnare the working class

Much is made by some historians of Peel’s sweeping legal reforms of the 1820s. Many have taken them as marking an era of ‘liberalization’ – a word which they lift out of context to imply some sort of socially beneficial progress. There is certainly progressive content in ending the death penalty for petty crimes, for example. But that’s not the whole story. We need to critically examine the reasons which the legal reformists themselves gave for their own campaigns. They are not what one would expect.

The early 19^th century legal reformists such as Romilly and Peel speak very plainly about their aims. The English bourgeoisie was with these legal reforms simply acting in its own class interests, creating a legal framework for its rule under a new, industrial system, to which the old ‘bloody code’ constituted just one more fetter on the accumulation of capital. There was absolutely nothing beneficent about it. Rather, the bourgeoisie was further refining its own particular barbarism, just as the factory had refined it, just as the steam engine had magnified it.

Capital crimes during the early phase of bourgeois rule

From the year 1688 to 1800, English law increased the number of capital crimes from 50 odd to more than 200. This period also coincides exactly with the period which we have identified as the ‘primitive’ form of the rule of the bourgeois class. The material basis of this rule was handicraft production under a capitalist system. The political basis of this rule remained under the traditional constitution and the landed gentry. The legal basis of this rule was accumulated ancient precedent. The punitive basis became the death penalty.

The spirit of Puritanism is evident in of some of the crimes for which the death penalty was mandated prior to 1823 – ‘being in the company of gypsies for more than one month’ and ‘strong evidence of malice in a child aged 7-14.’ Surely such moral corruption could not be countenanced to live.

But most capital crimes punished theft of the property of the rich by the poor. In 1723, after the collapse of the South Sea Bubble, Parliament passed “An Act for the more effectual punishing wicked and evil disposed Persons going armed in Disguise and doing Injuries and Violence to the Persons and Properties of His Majesty’s Subject, and for the more speedy bringing the Offenders to Justice.” This became known as the ‘Black Act’, as it was ostensibly drawn up to combat a campaign of game poaching by displaced peasants who blackened their faces with soot to escape identification. The Act added 50 new capital crimes to the statute books.

Most infamous among all of the capital offenses was that of ‘Grand Larceny’ which at that time referred to any theft of an item worth more than 12 pence – a shilling, which was a trifling amount. This was the average price of two loaves of bread during the 1700s. [i]

In 1823 the death penalty was removed for various offenses of theft, after a failed attempt in 1810 motivated by Romilly in the House, but which did not pass The Lords. The 1823 reform gave judges discretion as to how to apply the death penalty. It remained mandatory for the offences of treason, murder, counterfeiting, and setting fire to the property of the British Navy.

Readers new to this material might rightly ask – if in 1823 the British government was reacting to various uprisings, conspiracies to assassinate the Cabinet, and the constant threat of a revolution a la Francaise breaking out, how did have time, and why was it inclined to reduce the number of capital crimes? Should it not have increased them instead?

Traditional Loopholes

The key to understanding lies in the traditional practices by which these extreme laws were actually executed. Between 1780 and 1820 there were approximately 33,000 death penalty convictions, but only 7000 executions. Juries and judges found all kinds of ways to either avoid or else commute a death sentence. For an example of avoidance, in cases of Grand Larceny the Jury might demur as to the actual value of the stolen property. A value of 11 pence as opposed to 12 would secure clemency, and save the judge from having to pronounce the death sentence, which could easily spark a riot if the public were outraged by it.

One legal device to grant clemency was something called ‘benefit of clergy.’ This ancient concept exempted clergymen from the rule of secular courts and the common law, in favour of their judgement in ecclesiastical courts under canon law. It dated from the Middle Ages. But as the ecclesiastical courts declined it evolved into a legal loop hole by which first time offenders under threat of the death penalty could be let off in the secular courts. It was widely applied.

The abolition of the ancient and outdated punishments as well as the traditional loopholes was NOT an attempt to make English laws more lenient, but only to make them more efficient and rational, in the service of a new mode of production, and on its emergent system of class rule, which were dependent upon reason, and not upon tradition. The intent of the reforms was not to ‘spare the rod’ but that the laws which actually remained in the books should in fact be applied uniformly, and with all due severity. The bourgeoisie simply required a new and improved rod, as the old one had been broken upon the backsides of the working class over the centuries, and it no longer stung.

Efficiency in punishment

And so we read in the Hansard of 17 February 1813, in which the early attempt at legal reforms of 1810 were being debated. Sir Samuel Romilly stated: (note that in Hansard convention, the recorder describes the speaker in the third person as ‘he.’)

“It would be in the recollection of the House, that in 1810; he had proposed to bring in three Bills; one of which was to repeal the act of king William, which rendered it a capital offence to steal property to the amount of five shillings privately in a shop; another to repeal the act of queen Anne, which pronounced it a capital offence to steal to the value of 40s. in a dwelling-house; and the third, to repeal the act of George II, rendering it a capital offence to steal property to the same amount, from on board a vessel on a navigable river…. he alluded to that which related to stealing property of the value of 5s. in a dwelling-house: and the principle upon which he should propose to introduce this Bill was precisely the same as that which he had before stated, namely, the inexpediency of penal laws existing, which were not intended to be executed…. During these few years it appeared, that the number of individuals committed for this offence, amounted to 188, of whom 18 only had been convicted, and of these not one had been executed. This he trusted would be admitted as a pretty accurate criterion to shew that it was not intended to carry the law into effect against individuals who were found guilty under this statute. The consequence of the law not being executed, as was already stated, was, that where some punishment was deserved, no punishment was at all inflicted, and the offender escaped altogether with impunity. This was an evil which could not exist if the laws were less severe, and a certain but mild, although effective punishment, was substituted.” [ii]

The debate in the house moved on to the question of the punishment for high treason, which consisted of “that the criminal shall be drawn upon a hurdle to the place of execution, that he shall be hanged by the neck, and being alive shall be cut down, that his entrails shall be taken out of his body, and, he living, the same shall be burnt before his eyes, that his head shall be cut off, his body be divided into four quarters, and head and quarters shall be disposed of at the pleasure of the king.” It was noted that though this was indeed the official punishment, it had only rarely been carried out to the letter in recent times, with the usual practice simply being that the victim was hung up by the neck until dead, and the corpse was decapitated, as were the Cato Street Conspirators. The law dictated one thing – tradition quite another. Such a brutal execution to the letter of the law was last applied in 1782, to a Scottish republican rebel. It led to a mob scene in which the victim’s ‘quarters’ were themselves hacked to bits by an enraged crowd, a shocking act of barbarism.

The Solicitor General, rising to respond to the Honourable Member, stated, quite revealingly,

“…if the obligation of strictly interpreting and literally enforcing the provision of the criminal law were imposed on the judges, no one man would accept an office which would convert the assizes (courts) into shambles.” [iii]

Here we have the bourgeoisie fighting, not for any kind of justice except the justice of their particular class.

The accumulated legal dross of 700 years, and also its ancient barbarism stood in the way of the efficient and effective dispensation of bourgeois justice, which required a rational system which could be universally applied in all cases. Human sensibilities had long shrunk from the application of the grotesque penalties prescribed in the ‘Bloody Code.’ The bourgeoisie longed to rationalize the beheading of their class enemies, even as they feigned horror at the memory of the execution of King Louis of France. This basic schema has informed their political position on most every subject ever since.

In the Parliamentary debate of May 24, 1830 on the subject of the repeal of the death penalty for the crime of forgery, Peel, speaking against the repeal, declared that he “…had endeavoured first to simplify the law, with a view to its mitigation afterwards.” [iv]

Further, he gave an account of the relationship between his legal reforms and the resulting decline in executions which is revealing.

“He found that in the seven years previous to 1822, when he came into office, the number of executions, in England and Wales, was 731, while the number of executions since 1822—that is up to December, 1829—was 433, showing a considerable diminution. The number of executions in London and Middlesex in the former seven years, was 192; in the latter seven years, or during the period that he had been in office, it was 120, showing a diminution of seventy-two. He was afraid that this diminution could not be laid to the account of the diminution of capital offences, as they had been rather on the increase. Perhaps, indeed, the mitigation of the severity of the laws might have encouraged and facilitated prosecutions, and so more capital crimes had been prosecuted, but he did not believe that the diminution of executions could be accounted for by the diminution of capital offences.” [v]

Brougham pointed out the reluctance of the general public to aid English prosecutors, out of revulsion at capital punishment. “One great difficulty was, to induce juries, under the existing law, to convict for Forgery. But the grand difficulty was, to prevail on prosecutors and witnesses to come forward. Even if prosecutors were callous themselves, which was rarely the case, they were surrounded by persons who were not so, and who would dissuade them from prosecuting, lest, in the event of a conviction, the Judge should happen to lean towards severity.” [vi]

The Rate of Capital Accumulation and the Rate of Punishment

The bourgeois class leaned quite heavily ‘towards severity.’ But it was a severity of an altogether novel type.

Fortunately for posterity, and for scientific socialism, the English bourgeoisie became suddenly enamoured with statistics and measurement in the first decades of the 19^th Century. It is in part to this new craze for statistical measurement that we owe the existence of documentary evidence for our thesis – that the foundation of the police was in fact, a novel institution of class rule, whose rise coincides with the ascendency of the English bourgeoisie to full enfranchisement and political power.

In 1815, Parliament passed An Act to procure Returns of Persons committed, tried, and convicted for Criminal Offenses and Misdemeanors. This Act required all prisons to submit annual surveys back to the Home Office. The first of these became available in 1818. It’s revealing that before this date, we don’t even know how many prisons there were in England, and neither did the Ministry, as they hadn’t a system to even count them!

The collective ‘Communicating with Prisoners’ has gathered a fascinating set of statistics documenting the ‘prevalence of punishment’ in 19^th century Britain. The have measured the number of persons ‘absent in punishment’ in terms of number of persons so absent per 100,000 people, including those transported, imprisoned, and executed. They explain their methodology thus:

“Quantitatively analyzing the composition of punishment benefits from having an encompassing measure of persons absent in punishment. Persons in prison provides a direct, available measure of persons absent in that type of punishment. Executions convert to absence of persons by estimating that an execution creates personal absence for the person’s expected remaining life-years. Banishment (transportation) similarly converts to absence via the length of the sentence of banishment. Absence of persons can then be aggregated across imprisonment, execution, and banishment. The number of persons absent in punishment is larger and less volatile than the flow of persons (executed, banished, imprisoned) into positions of absence (dead, in exile, in prison).” [vii]

And so we can see using the collective’s data that the prevalence of punishment escalates dramatically just as the death penalty falls out of favour, and as British laws are rationalized. Transportation and incarceration rise dramatically, out of proportion to what one would expect if there had been simply a one to one exchange of the punishment of execution for transportation or imprisonment. If such were the case, transportation and incarceration would simply track execution proportionally. Instead, they skyrocket. Here we can see the results of the bourgeois policy of the 1820s and 30s to rationalize the law and the penal system to ensure more convictions, not fewer. The dramatic increase in the prevalence of punishment shows the bourgeoisie ‘flexing its new muscles’ against the rising working class below it – without a police force. This is what class warfare looks like.

Police in their modern form would not be widespread until the 1860s in England. And so we see that police are not some sort of a-historical social ‘requirement’ to prosecute crime, which was prosecuted extremely aggressively long before police were widespread in Britain. Quite the opposite in fact. As the police institution grows, the prevalence of punishment falls for 50 years until the outbreak of WWII. Why this is so we will explore in upcoming chapters.

Profits and Repression – mere coincidence, or coincident relation?

This tremendous rise in incarceration antedates the formation of the London Metropolitan Police, but it coincides directly with a dramatic increase in capital accumulation and the growth in inequality over the same period.

The rate of profit of British industry begins a dramatic rise at the beginning of the 19^th century. This is directly attributable to the application of steam power to mechanized industry. But there is another factor at work which most economists do not examine – the enforcement of new relations of production – a political question. First the data:

[viii]

At the same time, labour’s share of GDP begins to fall, even though real wages are rising during the same period.

[ix]

[x]

Despite rising real wages, labour’s share of GDP fell during the same period, and the prevalence of punishment increased. During this period, mechanized production expanded dramatically in England, despite working class resistance.

Could the requirement for a new, more intensified capital accumulation by the capitalist ruling class, arising out of the availability of new techniques of production, also require as a general rule, intensified repression of the working class, by whatever means this could be implemented – to enforce those new techniques – police or no police? Could the requirement for the application of new, labour displacing technological innovations in the economy such as steam power, electrification of production or computerization / automation under capitalism also engender similar effects? Could the police institution constitute a kind of institutional buffer between the ruling class and the ruled, (which had prior to the development of the police been required to face each other directly) to both enforce the extraction of surplus value from the working class as a whole, while at times mitigating the effects of such extraction?

The comparison with US incarceration figures from the later 20^th century into the 21^st century is suggestive in this regard.

US Corporate Profits

To be clear, the coincidence of these two phenomena does NOT imply causation of one by the other. It would be absurd to claim, for example that mass incarceration is the cause of rising corporate profits, or that the steep rise in corporate profits are the cause of mass incarceration.

Rather both coincident tendencies point to something else. They are actually not causes but rather effects, which point to a third factor, which is more difficult to display as a single line on a graph – the class war waged by the ruling class on the working class, across multiple spheres. The class war is not the result of a mechanical process. It is above all a political struggle, and in the 19^th century as today, it was waged by bourgeois politicians and industrial capitalists. The subjective factor – the political action of the bourgeoisie – was decisive. It remains so today.

This class warfare develops historically, acquiring different forms, based upon the development of the productive forces and the balance of class forces, the level of political development of the contending classes, on the specific cultures in which these forces play out, in each period and in each place. Straight line comparisons of conditions in 19^th century England and late 21^st century America require multiple qualifications. But a case can be made that similar phenomena are at work.

What we can say at this point is that in 1820s England, the emergent bourgeois class was able to generate a massive increase in its profits and also repress the working class – without a police force organized on a mass scale for the repression of the working class. But by late 20^th century America, police forces had evolved into one of the primary means by which the working class was disciplined and repressed.

How do we explain the historical development of this phenomenon?

What we can say so far, definitively is this: police as a form of social organization, as a novel institution of class rule, arise historically. The police are not an a-historical phenomenon existing in all societies, above the historical process. Further, the role played by police forces in capitalist society has itself undergone a process of historical development. In 19^th century England, the proliferation of police coincides with a 50 year reduction in the prevalence of punishment. Since police are charged with prosecuting crime, and because crime results in punishment, there must necessarily be some relationship between the spread of police forces, and the decline of punishment prevalence. We must therefore separate the fact of the existence of police from the fact of what they actually do, in a given historical and social context. Police roles have evolved, their effects in different historical periods vary, while the police as an institution remain. For example, the racist content of much of American policing today is less prevalent in other historical periods, and absent in many other locales. And yet today there is no shortage of commentators who are keen to tell us that the police constitute ‘a racist institution’ or are ‘founded upon racism.’ Historical materialist analysis refutes such claims as impressionistic and mostly counterfactual.

We have demonstrated that, in part, the social role played by police today was once played by very different people, and answerable to a different social class. Before the police, their ‘social role’ was assumed by various different groups, the yeoman, the night watch, and the army.

Likewise, we now observe that the effect which the police today have upon the working class, and upon the class struggle, was achieved in early 19^th century England without the police. The question is how the police developed historically as an institution of class rule peculiar to modern capitalism, and now necessary to it, and of course, why they so developed.

We will explore the relationship between the prevalence of punishment, the class war, and the profitability of capitalist production further as we describe the evolution and development of the police institution in subsequent periods. Before that we need to describe additional measures the early English bourgeoisie was taking to deprive the working class of its traditional means of living. What use would police be without new crimes to prevent and detect?

Criminalizing the Poor

In his rationalization of British law, Peel devised new offences which his improved police would be able to prosecute. Such offenses could only be committed by the working class.

The Vagrancy Act of 1824 criminalized the very existence of the poor and unemployed, or rather the material basis of the existence that the working class had enjoyed prior to industrialism. It is worth quoting at length.

“Every person committing any of the offences herein-before mentioned, after having been convicted as an idle and disorderly person; every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty’s subjects; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or wagon, not having any visible means of subsistence and not giving a good account of himself or herself;every person willfully exposing to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition; every person willfully openly, lewdly, and obscenely exposing his person in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female; every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence ; every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any enclosed yard, garden, or area, for any unlawful purpose; every suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, or any highway or any place adjacent to a street or highwy; with intent to commit an arrestable offence; and every person apprehended as an idle and disorderly person, and violently resisting any constable, or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended; shall be deemed a rogue and vagabond…” [xi]

The law was a legal catch-all with which to ensnare and criminalize anyone from whom surplus value could not be extracted. Workers would be dragooned into the factories, or later into the workhouse.

This Act, as quoted above, remains in force of law in England and has been used for 180 years to oppress the poor, gays and lesbians, prostitutes, artists, actors and political protestors. Any person just “milling about” on the street without being able to “give a good account of himself” in the opinion of a police officer risked and still risks arrest as a criminal, or at the very least a body search and interrogation. It’s difficult for moderns, accustomed to being watched, accustomed to obeying authority, to comprehend how oppressive and offensive was this Act to early 19^th century English sentiments. It was considered an outrage.  

In 1827 the Malicious Trespass Act created a new class of criminal in “trespassers.” Under English common law, trespass could not be punishable by imprisonment. The 1827 Act changed that. The Act was used to prosecute for damages caused by peasants who strayed onto enclosed lands and knocked down fences to permit their herds to pass through closes between common lands. [xii]

‘An Object of Real Terror’

Transportation to New South Wales and then to Van Diemen’s Land begins to rise exponentially with the return home of soldiers from the Napoleonic Wars. These were founded as penal colonies, instead of prisons for British convicts. This punishment separated workers from their friends and family forever in most cases. Prisoners were first warehoused in ‘the hulks’ rotting ships in harbors where conditions were horrific and unsanitary. Conditions on the transport ships were little better. Many died en route. Once in Australia, the sentenced became indentured servants, first of the government, and then of private landowners. The character of transportation as punishment changed markedly in 1822, with the Report on the Conditions of the Colony of New South Wales by John Thomas Bigge.

Before 1822, Transportees lived better than did the English working class in many instances. They could own property, land, and were free to work for a wage or else for themselves after their ‘government hours.’ Word of this got back to Great Britain, where Lord Bathurst instructed the civil servant Bigge in his commission.  Bathurst: ‘transportation to New South Wales is intended as a severe punishment, applied to various crimes; and as such must be rendered an object of real terror to all classes of the community’.

Bigge set about designing the architecture of such a terror. His report resulted in the sacking of the pervious Governor, Macquarie, whom the British judged to have ‘gone native.’ He was replaced by Brisbane, who implemented all of Bigge’s recommendations. From 1822 to 1834, when slavery was finally abolished in the British Empire, transportees were let out by the government to private farmers as indentured labour. They were no longer allowed to work for themselves. Harsh physical punishments such as flogging and solitary confinement were introduced. And in addition to this, a system of internal transportation was developed. Convicts who could not be pacified were re-transported to penal colonies even further afield, at Moreton Bay or Norfolk Island.

A ‘Salutary terror’

It was during this time of the repeal of the death penalty that some of the most offensive and degrading punishments were devised in English prisons. The traditional punishments were gruesome enough.

One such was ‘picking oakum’ or ‘picking junk.’ The punishment arose in the British Navy, and it was also the work of the poor in seaside villages. Oakum consists of the broken-up fiber of old hemp ropes mixed with tar. ‘Picking oakum’ involved beating these old ropes with a wooden mallet, and then unravelling the twisted rope fibers, embedded in tar, with the bare fingers, and then with the fingernails. It was tedious, dirty work which resulted in bloody fingers, tendonitis, bursitis and repetitive strain injuries. The toll on mental health was also immense. The oakum was used as waterproofing in wooden ships, and as the world’s first naval and seaborne commercial empire, Britain needed a lot of waterproofing. Prison labour provided much of this material.

By the 1820s, oakum picking in prisons began to be supplanted by mechanized punishments, modelled on factory labour.

Primary among these was the tread-wheel. Prisoners were forced to drive a large fan, or rotate a drum, often to no useful purpose, though sometimes the tread-wheels became tread-mills, and prison labour was rented out to mill grain. The main purpose was to degrade and exhaust the prisoner. Many preferred to be flogged.

Sir Robert Peel was a keen supporter of both the tread-wheel and of corporal punishment. In the debate on the Gaol Laws Amendment Bill on Feb 19^th, 1824, Peel declared that “I consider the treadmill as an admirable contrivance, and think that no system of labour could be devised so little liable to abuse.” On the subject of corporal punishment, Peel felt that it “produces a salutary terror” which deterred crime. [xiii]

Peel was yet done ‘deterring crime.’

[i] http://www.johnhearfield.com/History/Breadt.htm

[ii] UK Parliament. Debates. 17 February, 1813. In Hansard : https://api.parliament.uk/historic-hansard/commons/1813/feb/17/sir-samuel-romillys-criminal-law-bills

[iii] ibid

[iv] UK Parliament. Debates. 24 May, 1830. Forgeries Punishment Bill . In Hansard. https://api.parliament.uk/historic-hansard/commons/1830/may/24/forgeries-punishment-bill#S2V0024P0_18300524_HOC_91

[v] Ibid.

[vi] Op. Cit. Brougham, speaking the same debate.

[vii] https://www.acrosswalls.org/section/gender-imprisonment/punishment-sex-ratio/punishment-trends/

[viii] Allen, Robert C. Capital Accumulation, Technological Change, and the Distribution of Income

during the British Industrial Revolution, Nuffield College New Road, Oxford OX1 1NF

Department of Economics Oxford University, 2005. https://ora.ox.ac.uk/objects/uuid:ee5e13de-74db-44ce-adca-9f760e5fe266

[ix] Allen, Robert C. Capital Accumulation, Technological Change, and the Distribution of Income during the British Industrial Revolution, Nuffield College New Road, Oxford OX1 1NF

Department of Economics Oxford University, 2005. https://ora.ox.ac.uk/objects/uuid:ee5e13de-74db-44ce-adca-9f760e5fe266

[x] Allen, Robert C. Capital Accumulation, Technological Change, and the Distribution of Income during the British Industrial Revolution, Nuffield College New Road, Oxford OX1 1NF

Department of Economics Oxford University, 2005. https://ora.ox.ac.uk/objects/uuid:ee5e13de-74db-44ce-adca-9f760e5fe266

[xi] http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1029462

[xii] Cases in the King’s Bench, Looker vs. Halcomb, 1827.

[xiii]  The Opinions of Sir Robert Peel, Expressed in Parliament and in Public, page 287.