Mercy and Authority in the Tudor State (review)

Kesselring has undertaken research on a significant topic—the exercise of royal mercy under the Tudors. In Henry VII's reign alone, it is estimated that 10,000 persons accepted royal pardons (72). The book employs interdisciplinary methods, fruitfully combining legal history, literary criticism, and anthropology. The results reveal a central paradox of the Tudor state—that as the state stepped up executions for felony, so did its granting of mercy. The upshot was to strengthen the power of what could, at times, be a brutal legal system. Kesselring's findings also engage with debates between Marxist and liberal interpreters of the subject, who have argued whether mercy in early modern England mainly benefited the elites or whether it represented "communal participation" in the legal process (203).

It was common for medieval rulers to issue pardons at the outset of their reigns. But the Tudors gave fewer and fewer blanket ones, and Henry VIII significantly narrowed the terms. Pardons were a critical component of a legal system that lacked appeal courts, abolished sanctuary and abjuration of the realm, and restricted benefit of clergy. Yet a growing number of statutes prescribed death penalties in what the author describes as "a general broadening and harshening of the law" (41). The system of pardons worked because it offered "something to all parties" (189). Citing Mauss, Kesselring likens it to the gift relationship in early societies that permitted both parties to profit, albeit differently.¹ The Crown and its servants gained legitimacy, protected the honor and authority of royal government, and appeared as benevolent rulers. The recipients kept their lives. Drawing upon literary criticism, the author notes how the Tudors contrived dramatic, last-minute, public pardons in which the symbolism of their power and the misery of the guilty took center stage. Based upon an impressive knowledge of Tudor history, Kesselring shows that the most intractable area for granting mercy involved religious dissenters, especially the Catholics of the later Elizabethan era.

Although both sides to pardons had something to gain, Kesselring leaves no doubt that the relationship was not one of parity. The system worked "in unequal ways" and "helped create subjects" (189). The dichotomy of Marxist control versus liberal consent is a false one, because pardoned felons played a role in the drama and actually benefited from it. Nevertheless, the system aided the extension of the law's severity and scope. It "encouraged widespread complicity in the increasingly bloody system of justice" and worked significantly to reinforce the authority of the monarchy and ruling elites (91).

The sole important gap in Kesselring's book concerns those concerned in the drama of pardoning, about whom we learn too little. However merciful those who enforced the law may have been on occasion, nonetheless they sustained a bloody judicial system. The book shows that conviction rates rose from one-third to two-thirds between the late medieval and later Elizabethan periods; that Tudor Parliaments passed roughly sixty new statutes prescribing death penalties; that 80 percent of those executed between 1660 and 1800 had committed offenses made ineligible for benefit of clergy by the same Parliaments; and that 600 to 1,200 persons were put to death each year (11, 36-40, 53, 200).

Many of those who were judged unworthy of mercy were traitors sentenced to death by hanging, drawing, and quartering. Women were not spared; once convicted of a felony, they were actually more likely to be hanged than their male counterparts (77-78). The northern rebels of 1569, 500 to 600 of whom may have been executed by martial law, may represent an outlier in the Tudor period, but their treatment prefigures ferocious English attacks against Irish and Scottish Catholic rebels during the next two centuries (185).