| Book Review | Law and History Review, 23.3

Book Review

K. J. Kesselring, Mercy and Authority in the Tudor State, Cambridge: Cambridge University Press, 2003. Pp. 252. $60.00 (ISBN 0-521-81948-2).

Where death is the penalty for numerous crimes, the prerogative of mercy will play a significant role in criminal justice. This may be a matter of substance: in the English law of pardons lie the roots of the distinctions between excusable and non-excusable homicide, and between murder and manslaughter; or, as in transportation, a matter of process. It is with the latter that this study of Tudor pardons is largely concerned. From one viewpoint Kesselring's arguments go to questions of governance and state formation, to the role of pardons in easing the territorial expansion of the Tudor state, and the contemporary intensification and centralization of governance. From another they are concerned to carry back into the Tudor period debates as to power and consent in criminal justice stimulated for a later period by the work of Douglas Hay and his critics.

Pardons came in a variety of forms. General pardons might be granted by proclamation (a form associated with, and increasingly limited to, general pardons upon a monarch's accession), or by statute. They applied indiscriminately within their limits, frequent changes in the excluded offenses reflecting contemporary concerns in maintaining order. Special pardons might be granted de cursu, as for excusable homicide, or by grace; in the latter part of the period lie both the origins of the "circuit pardon," the practice of granting special pardons in response to lists of potential recipients submitted by the justices of assize, and the tentative beginnings of conditional pardons. Kesselring focuses successively on general pardons, and on special pardons by grace, arguing that as governance became increasingly intrusive, and as legislation generated an increasingly harsh criminal law, pervaded by a belief in the deterrent effect of exemplary punishment, the restriction or removal of traditional sources of mitigation (sanctuary, abjuration, and benefit of clergy) turned attention increasingly to pardons, centralized and strengthened in this period, as a vehicle for the legitimization of power: as Hay concluded of a later period, so too the Tudor Crown "traded mercy for deference in efforts to legitimize its power" (206).

Central to this thesis is discretion. Unlike general pardons and traditional sources of mitigation, special pardons of grace were not automatic. Discretionary grant of a pardon allowed the monarch to appear merciful; receipt of mercy was conditional upon submission and deference, which, combined with the appearance of clemency, had the capacity to "construct and renew ... power as legitimate authority" (136). Discretion, as Kesselring acknowledges, was not confined to the monarch: bringing offenders to official notice, jury direction, and the verdict might all allow space for discretion. But emphasis upon discretion in special pardons may risk under-emphasising it elsewhere. It is not entirely clear that benefit of clergy, in contrast to special pardons, saved felons indiscriminately. Kesselring suggests a judicial tendency to widen the benefit's scope, but in the Tudor period the hanging because of previous misconduct of one whose reading was doubtful was not unknown.

More prominent in Kesselring's thesis is the argument that pardons were necessary to reconcile the supposed deterrent effect of an increasingly harsh criminal law with the need to keep "executions at levels accepted by most people as not too excessive" (206). There is scope here for further analysis. It is, presumably, not so much a simple question of "levels" (meaning numbers) of executions, but of numbers of executions perceived to be unmerited, whether by virtue of the evidence, the character of the convict, or the offense. And the link between harsh criminal legislation and numbers of unmerited executions cannot be straightforward given the steps intervening between legislation and conviction. There is a further question here, touched upon but undeveloped, as to the effects of the possibility of a special pardon upon behavior in those intervening steps. One possibility is that "the ready availability of special pardons and judicial recommendations [of pardon] may ... have helped to encourage prosecutions and convictions" (82). Were this so, some re-examination of the distinction between special pardons de cursu and of grace would be called for.

There is scope for further analysis also in the role of pardons in legitimizing power. At one level is the argument that mercy, together with justice, was not only a right, but also "a duty of legitimate rule" (17). Given the "conflation of crime and sin that shaped so many ... entreaties" for pardon (117), and that "disobedience to royal authority equalled disobedience to divine dictate" (117), the influence of religion, and sixteenth-century changes in religion, upon both expectations of mercy, and pardoning practice, might bear further examination. As Kesselring shows, the capacity of general pardons to free offenders from penance for sins was debated in the time of Elizabeth; and that alone of the sixteenth-century monarchs Mary offered no statutory general pardons remains unexplained (67).

At another level is the mechanism and meaning of legitimization. The capacity of pardons to act as "safety valve[s]" (186) in the application of power had no necessary legitimizing role: where, as in Ireland, no credible threat of force could be made, "pardons offered little more to the Crown than a thin, face-saving façade for its weaknesses" (199). In contrast, in a negative sense, given that clemency was expected of a legitimate prince, the consequences for claims of legitimacy of a failure to pardon seem clear. More challenging is the positive view that through mere expression of submission and deference when supplicating for pardons, "[i]ndividuals' willingness to work within existing structures and to use language set out for them by the servants of the Crown," served in itself "to enhance the majesty and security of the sovereign," giving "an aura of legitimacy to the power of the state" (207). If the alternative to working within existing structures was execution (and the fortitude of the Jesuits could not be expected of all), the power of pardons to achieve legitimization in this positive sense may seem problematic; the word "aura" (introduced only in the conclusion) may serve both to indicate the limits of this positive legitimization, and to open further lines of enquiry.

This is a thought-provoking book, to the complexities of which a review of this length cannot do full justice, and which must surely stimulate further work by Tudor social and legal historians. But it is to be hoped that it will also be read more widely; there is much of interest here to those concerned with crime and deterrence, power, authority, and governance in all ages, including our own.

N. G. Jones

Magdalene College, Cambridge

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