K. J. Kesselring. Mercy and Authority in the Tudor State. Cambridge: Cambridge University Press, 2003. ix + 238 pp. $60.00 (cloth), ISBN 978-0-521-81948-0.
Reviewed by Ethan H. Shagan (Department of History, Northwestern University)
Published on H-Albion (May, 2004)
The Strained Quality of Mercy
Since the publication of Cynthia Herrup's path-breaking The Common Peace in 1987, historians of early modern English law have stressed the state's reliance on the consent of the governed to make the law functional and the ways that the courts themselves became sites for negotiating that consent. The great irony of this understanding has always been that the more draconian the law became, the more difficult it became to enforce effectively and the more room became available for subjects to make their voices heard; it has thus sometimes seemed as if more capital statutes were exactly what the people needed to breath free. It is fitting with this irony that only now, in this fascinating and erudite book on royal mercy and the mitigation of punishment in early modern England, does the state finally gets its revenge. For Dr. Kesselring's central thesis is precisely that through the strategic use of pardons, the state was able in most cases to win its negotiations with the governed and achieve a remarkable success in creating the sort of obedient, malleable, and (to paraphrase John Brewer and John Styles) "governable" subjects that it wanted.[1]
The first part of the book is a detailed analysis of exactly how pardon worked in Tudor England and its role in the larger legal system. Here Kesselring makes two points extremely effectively. First, she stresses how the Tudor period saw a centralization of the process of pardon in which the royal government--always in theory the sole source of leniency in the criminal law--claimed a remarkable control over the processes of mitigation. The religious sanctuaries of the medieval period were eliminated or vested in effective royal control, while benefit of clergy was increasingly legislated and managed by the crown. In sum, then, "against a background of religious conflict and economic dislocation, both punishment and mitigation became centralized--functions once independent of state authority came under its remit" (p. 54). Second, she demonstrates the extraordinary extent of pardons in the Tudor period; this is truly wonderful material that should quickly find its way into every textbook and undergraduate lecture course. So, for instance, Henry VII issued five general pardons in his reign, and we have evidence of at least 1,612 people who benefitted. In the first year of Henry VIII's reign nearly 3,000 people received clemency through his inaugural pardon, even though at that point the government still charged a fee. Overall, despite clearly deficient sources, the patent rolls from 1485 to 1603 "name nearly 14,000 individuals who obtained direct, personal grants of mercy from their sovereign" (p. 74). In the few cases where the records allow comparisons between the numbers of criminal trials and the number of pardons, we find that something like 10 percent of all convicted criminals received royal pardons!
The next part of the book is devoted to showing, in fascinating detail, how these pardons actually functioned as a mediating institution between government and people. Here Kesselring truly excites the reader, illustrating her arguments with stories from legal records in the best tradition of Sir Geoffrey Elton. So, for instance, when showing how pardons functioned in cases of accidental death, she tells the sad story of an aspiring athlete who accidentally killed an infant while practicing hammer-throwing, but she also tells the far more provocative story of a man pardoned for beating his servant to death, because he had only meant to deliver appropriate rather than fatal correction. For another example, in Kesselring's discussion of pardons granted to people who killed out of rage rather than premeditation, we see Tudor subjects as unexpectedly familiar to us, for instance the man who "too vigorously attacked the person who had abused his dogs" (p. 105). But more importantly, Kesselring also gives archival evidence of how patronage was used to obtain royal pardons, and how supposedly last-minute gallows pardons were really pre-arranged exhibitions of royal mercy. Thus, we begin to see the importance of Kesselring's research: the remarkable gallows speeches in which Tudor subjects praised the government about to execute them, so familiar to us from recent historiography, here seem to represent not the genuine hegemonic influence of "obedience" ideology but rather the state's success in holding out the realistic hope of pardon as a way to maintain order.
This, then, prepares the way for the last sections of the book, in which Kesselring makes her arguments for how the process of pardon and its ostentatious ceremonies allowed a state that lacked effective law enforcement nonetheless to enforce an increasingly draconian legal system. Both in ordinary criminal cases and in the more extraordinary cases of armed rebellion, the state's capacity for mercy convinced Tudor subjects, more often than not, to support its policies rather than risking outlawry. Mercy served as a divide-and-conquer technique in suppressing rebellion, as we well know; the offer of pardon in return for renewed obedience could both restore order and convince the pardoned masses to turn in their leaders for punishment. But the same process also worked in regular criminal trials, Kesselring suggests, convincing juries to convict defendants on the grounds that the state was merciful, and convincing criminals to accept the state's authority in hope of reprieve. This is important and insightful material, and even on the subject of popular rebellions--the one place where mercy and pardon have been extensively studied by previous scholars--Kesselring has exciting things to say. In 1569, for instance, Elizabeth broke with almost universal precedent and refused to pardon even the lower-class rebels who had thrown down their arms; between 500 and 600 of the "meaner sort" were executed on hastily-erected gallows (p. 185). Clearly the 1569 rebellion, usually described as a baronial revolt, is a subject which deserves more extended scholarly attention!
Now, not surprisingly since I have written on many of these subjects myself, there are things about this book with which I disagree. I would pick some nits, for instance, with Kesselring's analysis of pardons in the Pilgrimage of Grace. The Pilgrimage is a subject on which scholars can easily sink into archival oblivion, and Kesselring has wisely chosen to discuss it at a fairly abstract level rather than analyzing it from the documents up. As a result, however, she has failed to notice some interesting coincidences in Henry VIII's use of pardons, for instance the fact that executing eight or ten former rebels in 1537--despite the general pardon and despite their innocence of post-pardon crimes--was an important way for the king to save face, because he had demanded at the height of the rebellion that some ten of the rebels should be excepted from the general pardon.
A more serious criticism I would offer for Dr. Kesselring--and one that I hope will encourage scholarly debate--is that in some places her discussion of the negotiations between "state" and "people" seems to presume that these two entities had inherently antithetical interests. She suggests very cogently that she wants to move "beyond facile descriptions of either contented and quiescent or powerless and wholly subjected masses" in order to "understand how inequalities of power survived and how the power of the state grew" through the strategic use of mercy (p. 162). Yet she very often sounds as if the ability of the state to enforce new and more draconian statutes represented a victory for the state over the masses, for instance in her conclusion that "a focus on consent ... can hide the fact that not all had to consent for the state to operate. The participation of some allowed the coercion of others. Brute power lurked behind all such negotiations" (p. 208). This is certainly true, but it is half the story. The jurors, constables, witnesses, and accusers who lie hidden within Kesselring's word "some" were as much the "masses" as the people they prosecuted, and they apparently approved of state coercion being enacted upon the bodies of murderers and rapists in a great many cases. These women and men never sought "equalities of power," and their support for the growth of the state may indicate that, at least in some cases, the state offered them what they wanted.
But I make these arguments not to deny the importance of Kesselring's contribution, but rather to applaud that contribution. This book has, I think, brought the study of legal history into the mainstream of Tudor historiography and its ongoing debate over the formation of the state. Through archival virtuosity rarely matched, Kesselring has forced us to acknowledge that the state was not without its own extremely effective techniques in the negotiations over power that have recently dominated the field. This book should, I believe, become as crucial a statement of the linkage between social and political history for the next decade as Cynthia Herrup's classic The Common Peace was for the last.
Note
[1]. John Brewer and John Styles, eds., An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries (New Brunswick: Rutgers University Press, 1980).
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Citation:
Ethan H. Shagan. Review of Kesselring, K. J., Mercy and Authority in the Tudor State.
H-Albion, H-Net Reviews.
May, 2004.
URL: http://www.h-net.org/reviews/showrev.php?id=9391
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