By Ken Mondschein
If there seems to be something almost medieval about President Biden pardoning his wayward son Hunter, or Donald Trump promising to pardon the January 6 rioters, well… that’s because that particular prerogative originates with medieval kings.
The power to pardon is set forth in Article II, Section 2 of the Constitution: “The President… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This was remarkably uncontroversial amongst the Framers; most debate centered on details such as if the legislature should be involved, whether it should be applied to treason, and whether it could be granted preemptively. In Federalist Papers 74, Alexander Hamilton argued that it was best that the power of pardon be wielded by one person. It was, and is, by its very nature something extraordinary, countermanding both the passions of the moment and the overzealousness of the law.
The idea of executive clemency can be traced back to medieval kingship. Most legal histories cite the nineteenth-century jurist Benjamin Thorpe, who recounts a statute of King Ine of Wessex (688–725 CE) in his Ancient Laws and Institutes of England (1840): “If any one fight in the king’s house, let him be liable in all his property, and be it in the king’s doom whether he shall or shall not have life.” They then skip ahead to an act of Parliament from Henry VII’s reign, found in Blackstone’s 1765 Commentary, that states the power to pardon belongs exclusively to the king. For all that he was widely influential on American jurisprudence, Blackstone goes on to say that the power of the king to temper laws with mercy is “one of the great advantages of monarchy in general.”
What such histories ignore is the emotional significance of the pardon, as well as the longstanding sacred and symbolic role of the king–for instance, how the “royal touch” was thought to cure certain illnesses. Though the power to mete out justice was diffused throughout the nobility, much as Blackstone pointed out, the power to grant mercy was the domain of the king, who was seen as above the petty corruption of the state. For instance, in early Robin Hood stories such as Robin Hood and the Monk and the Gest of Robin Hood, the Merry Men’s acts of violence against corrupt clergy and officials are forgiven by the king (often identified as Edward I or Edward III).
Nor was the pardon limited to England; it was also a prerogative of the King of France, as well, and was widely practiced on special occasions and royal progresses. Joinville, for instance, recounts an incident in which a clergyman slays three royal soldiers who had robbed him and then gives himself up. Louis IX pardons the man and commands him to come on crusade with him. This decision, Joinville tells us, was greatly cheered. While justice systems are impersonal, institutional, and coldly rational, the pardon is personal, individual, and emotional.
But the granting of pardons came to serve social needs beyond the mere recognition of extenuating circumstances or the arbitrariness of the justice system. For instance, it could be part of the process of reconciliation after civil disturbance. Much as modern big-money donors and those in a president’s social circle are likely to receive presidential pardons, medieval pardons could reinforce patronage networks, since many looking for pardons sought out someone to intercede with them for the king. Purchasing a pardon for civil infractions such as purchasing land without royal permission could act as a sort of fine, as well as fill the king’s coffers. A pardon could even be granted to ecclesiastics, such as Edward IV’s pardon to the Canons of St. George after the Wars of the Roses. (For more on the history of pardons in medieval England, I recommend Helen Lacey’s The Royal Pardon: Access to Mercy in Fourteenth-Century England.)
The practice of granting pardons never died out in Great Britain, though it did grow less corrupt. While the last monarch who attempted to personally initiate a royal pardon was George III, who backed down after Home Secretary Sir Robert Peel threatened to resign, pardons are still issued by the British judicial system. What links medieval and modern pardons is that they are seen as a triumph of “natural law” and mercy over strict legalism. In other words, pardons come in when the mechanisms of the state–always somewhat arbitrary in the Middle Ages–have failed, and only a higher power can bring justice. In this, today’s expanded use of executive clemency (or the hope for it) mirrors the breakdown of trust in institutions.
In my next article, I will discuss Daniel Penny and Luigi Mangione, two recent examples of men who committed homicides, but whose extralegal actions, much like those of Robin Hood in medieval ballads, are drawing some level of public approbation. The reason why, I would argue, is because of a similar level of mistrust of institutions.
Ken Mondschein is a scholar, writer, college professor, fencing master, and occasional jouster. Ken’s latest book is On Time: A History of Western Timekeeping. Click here to visit his website.
By Ken Mondschein
If there seems to be something almost medieval about President Biden pardoning his wayward son Hunter, or Donald Trump promising to pardon the January 6 rioters, well… that’s because that particular prerogative originates with medieval kings.
The power to pardon is set forth in Article II, Section 2 of the Constitution: “The President… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This was remarkably uncontroversial amongst the Framers; most debate centered on details such as if the legislature should be involved, whether it should be applied to treason, and whether it could be granted preemptively. In Federalist Papers 74, Alexander Hamilton argued that it was best that the power of pardon be wielded by one person. It was, and is, by its very nature something extraordinary, countermanding both the passions of the moment and the overzealousness of the law.
The idea of executive clemency can be traced back to medieval kingship. Most legal histories cite the nineteenth-century jurist Benjamin Thorpe, who recounts a statute of King Ine of Wessex (688–725 CE) in his Ancient Laws and Institutes of England (1840): “If any one fight in the king’s house, let him be liable in all his property, and be it in the king’s doom whether he shall or shall not have life.” They then skip ahead to an act of Parliament from Henry VII’s reign, found in Blackstone’s 1765 Commentary, that states the power to pardon belongs exclusively to the king. For all that he was widely influential on American jurisprudence, Blackstone goes on to say that the power of the king to temper laws with mercy is “one of the great advantages of monarchy in general.”
What such histories ignore is the emotional significance of the pardon, as well as the longstanding sacred and symbolic role of the king–for instance, how the “royal touch” was thought to cure certain illnesses. Though the power to mete out justice was diffused throughout the nobility, much as Blackstone pointed out, the power to grant mercy was the domain of the king, who was seen as above the petty corruption of the state. For instance, in early Robin Hood stories such as Robin Hood and the Monk and the Gest of Robin Hood, the Merry Men’s acts of violence against corrupt clergy and officials are forgiven by the king (often identified as Edward I or Edward III).
Nor was the pardon limited to England; it was also a prerogative of the King of France, as well, and was widely practiced on special occasions and royal progresses. Joinville, for instance, recounts an incident in which a clergyman slays three royal soldiers who had robbed him and then gives himself up. Louis IX pardons the man and commands him to come on crusade with him. This decision, Joinville tells us, was greatly cheered. While justice systems are impersonal, institutional, and coldly rational, the pardon is personal, individual, and emotional.
But the granting of pardons came to serve social needs beyond the mere recognition of extenuating circumstances or the arbitrariness of the justice system. For instance, it could be part of the process of reconciliation after civil disturbance. Much as modern big-money donors and those in a president’s social circle are likely to receive presidential pardons, medieval pardons could reinforce patronage networks, since many looking for pardons sought out someone to intercede with them for the king. Purchasing a pardon for civil infractions such as purchasing land without royal permission could act as a sort of fine, as well as fill the king’s coffers. A pardon could even be granted to ecclesiastics, such as Edward IV’s pardon to the Canons of St. George after the Wars of the Roses. (For more on the history of pardons in medieval England, I recommend Helen Lacey’s The Royal Pardon: Access to Mercy in Fourteenth-Century England.)
The practice of granting pardons never died out in Great Britain, though it did grow less corrupt. While the last monarch who attempted to personally initiate a royal pardon was George III, who backed down after Home Secretary Sir Robert Peel threatened to resign, pardons are still issued by the British judicial system. What links medieval and modern pardons is that they are seen as a triumph of “natural law” and mercy over strict legalism. In other words, pardons come in when the mechanisms of the state–always somewhat arbitrary in the Middle Ages–have failed, and only a higher power can bring justice. In this, today’s expanded use of executive clemency (or the hope for it) mirrors the breakdown of trust in institutions.
In my next article, I will discuss Daniel Penny and Luigi Mangione, two recent examples of men who committed homicides, but whose extralegal actions, much like those of Robin Hood in medieval ballads, are drawing some level of public approbation. The reason why, I would argue, is because of a similar level of mistrust of institutions.
Ken Mondschein is a scholar, writer, college professor, fencing master, and occasional jouster. Ken’s latest book is On Time: A History of Western Timekeeping. Click here to visit his website.
Click here to read more from Ken Mondschein
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