De Re Militari | Book Reviews

Helen Lacey

The Royal Pardon, Access to Mercy in Fourteenth-Century England

Woodbridge: York Medieval Press and Boydell and Brewer, 2009. 258 pp. ISBN: 9781903153284. $95.

The power to pardon either individuals or whole groups for activities defined as criminal by the laws of a society has been an inherent feature of most governments throughout history. During the Middle Ages, the power to pardon was a generally recognized prerogative of kingship, though in some cases, it was also wielded by high-ranking nobles or churchmen who exercised virtual sovereignty over the territories they held.

Throughout most of medieval Europe, royal pardons played a significant role in law, politics, and military affairs. Despite this, relatively few book-length studies have been written that are devoted primarily to these manifestations of the king’s mercy. Most authors who touch on the subject treat it as a side issue to their main study, usually one that involves legal or military affairs. Until recently, two book-length studies in English focusing on royal pardons in the late medieval and early modern periods led the field: Naomi D. Hurnard’s The King’s Pardon for Homicide Before A.D. 1307 (Oxford, 1969) and Natalie Zemon Davis’s Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth Century France (Stanford, 1987).

Recently, however, there has been a major addition to the literature that treats royal pardons as its central focus: The Royal Pardon: Access to Mercy in Fourteenth Century England, by Dr. Helen Lacey published in 2009 by York Medieval Press in association with Boydell and Brewer. In order to write her book, Professor Lacey, a lecturer in late medieval history at Mansfield College, Oxford, has drawn from a wide range of sources, both historical and literary. These include not only the pardons and the petitions of those seeking them, but also parliamentary statutes and records, major legal works of the period, and even such icons of popular literature as Piers Plowman, the writings of John Gower, the tale of Gamelyn, and contemporaneous entries in the Robin Hood saga.

The book’s introduction carefully sets the stage for the ensuing discussion of royal pardons and their impact on English society by situating these concessions of royal mercy within the larger legal structure of late medieval England. In order to accomplish this, Professor Lacey provides a very useful summary of the existing literature, much of which (as we have already noted) is tucked away within wider studies of English law and military affairs. In doing so, she frames what is certainly the central historical debate over these grants: did they significantly impede the development of common law and social order in England?

Historians and legal theorists have often struggled with the notion that this kind of personal discretionary judgment could have any legitimate place in a properly functioning legal system. The concept that something defined as a crime might be forgiven without punishment by the power vested in the person of the king carries notions of personal interpretation and modification of the law to its extreme. (2)

According to Lacey, scholars of the nineteenth and early twentieth centuries in large part tended to echo complaints originally raised by contemporary parliaments about the deleterious effect of royal pardons on law and order. Royal pardoning was condemned as the manipulation of prerogative by the crown for selfish ends and financial gain. In the words of Bishop Stubbs, whom Lacey quotes, “this evil was not merely an abuse of the royal attribute of mercy, or a defeat of the ordinary processes of justice, but a regularly systematised perversion of prerogative.” (3)

Lacey acknowledges that her predecessor in the study of English pardons, Naomi Hurnard, strongly seconded these earlier critics.

[Hurnard’s] work sought to drive home the point that royal pardons were responsible for holding back the development of the common law, by substituting “administrative discretion, uncertainty for the predictability of punishment.” In medieval England, she asserted, the king’s prerogative of mercy was certainly used to excess, and yet was scarcely ever available to those condemned to death in error.

By contrast to the largely negative opinions of the past, the author goes on to summarize more recent trends in the historiography that are less critical of this usage of royal prerogative and in some cases, even portray it as praise-worthy:

Historians have, to an extent, moved away from Hurnard’s negative stance towards pardons, emphasizing the degree to which concepts of pardon and mercy permeated medieval society and were, at various times, both criticised and extolled by supplicants and by those in positions of judicial authority.

After nicely framing the debate in her introduction, Lacey embraces this more positive reevaluation of royal pardons. She argues that it is more productive and more balanced to view them in a wider, less condemnatory perspective. Rather than simply concentrating on the negatives alleged by Hurnard et al., one must take into account the fact that such grants could also mitigate a number of inequities arising out of medieval English law and serve as a means of strengthening the bonds between the king and his subjects. By the end of the century, their usage on ceremonial occasions had come to be a regular part of royal pageantry, similar to the distribution of alms and the use of the “king’s touch” for healing, to both of which the author makes a comparison. According to the author, in the reign of Richard II, it became customary for the crown to issue pardons on Good Friday, a day that had become associated with forgiveness and mercy due to Christ’s forgiveness of the thief on the cross.

Lacey is able to demonstrate convincingly that even those sectors of society that were on some occasions loudest in their complaints concerning the use of royal pardons on other occasions did a complete about face and strongly supported their issuance. The great example was the English Parliament, whose members repeatedly complained about the crown pardoning criminals in return for military service, a practice that they argued circumvented the judicial system and increased the not insignificant violence to which society was already subjected. By contrast, this same august body overwhelmingly supported and even helped draw up general pardons conferred upon the entire population on such occasions as Edward III’s 1377 jubilee and in the wake of the 1381 Peasants’ Revolt.

Unfortunately, all too many of the instances that the author adduces to exemplify the king’s extension of mercy, including those that derive from literature, mark the pardons granted by the crown as considerably more arbitrary than equitable, a product of special influence with the crown rather than any concern for achieving justice. So while she may be correct in advocating a wider perspective when viewing the role of royal pardons in medieval England, her examples of their use do not do much to negate those earlier criticisms that they had a corrosive effect on law and order in the island kingdom.

At one point, Lacey characterizes the attitude of one of the century’s leading poets to the crown’s power to pardon:

John Gower warned that the excessive use of mercy posed a real danger to the proper execution of justice throughout the realm... The king must not go against the law either for love or for hate.... Mercy was valued and desirable, but not when it was used for selfish ends, or resulted in the failure to punish the wrongdoer. The king’s use of his powers of mercy must be guided by more than a desire to demonstrate his majesty and power.

Gower’s sentiments echo resoundingly through the centuries and should serve as a useful corrective to any who might overzealously rehabilitate the reputation of royal pardons when considering just how arbitrarily they were used by the monarchs of fourteenth century England.

The Royal Pardon is divided into two parts: the first part (ch. 2-5) deals with what Lacey calls individual pardons. While these are not precisely defined, their treatment in the text leaves the impression that they were pardons that the crown conferred upon a single person, usually for a particular offense, but possibly for more widespread criminal activity. The second part (ch. 6-10), concerns pardons that the crown extended to whole groups of people, such as amnesty to rebels, pardons issued in return for military service, and forgiveness for debts to the crown. Lacey argues that by the end of the fourteenth century, these group pardons had evolved into something much larger, the general pardon occasionally made available to the population as a whole “at key moments of political instability... in the wake of crises on the scale of the Good Parliament of 1376, the 1381 Peasants’ Revolt and Richard II’s Revenge Parliament of 1397.” (9)

Part one begins by briefly surveying the several ways in which an Englishman (or woman) might obtain a royal pardon. On the one hand, he (or she) might appeal to the monarch or to the royal chancellor, either directly or (and this seems to have been more common) through the good offices of an intercessor, in many if not most cases a powerful person to whose voice the crown would listen. Alternatively, the justices, the juries, or even the coroners involved in the case might recommend mercy for the accused, a recommendation usually acted upon favorably by the crown.

Chapters three, four, and five each consider royal pardons from the perspective of each of the three principal parties involved—(1) the would-be recipient, (2) an “intercessor” helping the recipient obtain the pardon and, in not-a-few cases, also acting as guarantor of that recipient’s future good behavior, and (3) the monarch. Taken together the chapters of part one supply a thorough treatment of how and why the crown undertook to pardon malefactors.

In chapter two, Professor Lacey raises one of the most perplexing issues surrounding royal pardons—whether or not such grants were absolute. In other words, did the pardon protect its recipient against any further legal proceedings? Here, she echoes the position set forth in Naomi Hurnard’s earlier work: while the king’s pardon did free an individual from prosecutions initiated by the crown, it did not rob aggrieved parties of their right to seek redress. According to Lacey, for the pardon to take effect, it had to be “proved in court.” In other words, at a time made public in advance, its recipient had to bring his charter of pardon into one of a number of judicial forums, in particular the county court serving the region where the offense had taken place. Here, those individuals who had been injured by the crime or their families would have their say. Just how effective this redress really was when confronted with the fait accompli of a royal pardon is not explored in any detail.

In respect to part one, this reviewer would have liked a bit more clarification on several issues. First, there is the question of just what constituted an “individual pardon.” As indicated above, there is no precise definition in the text. Was it a pardon that went to a single person as the text implies? Or was it a single document; in other words, an individual charter of pardon which might have not one, but several recipients? To put it another way, how would one categorize a single pardon conferred jointly upon several closely related individuals (for example, a husband and wife or a father and son acting together in the commission of a crime) or one that covered a number of people involved in an illegal property transfer? The mention of such charters pardoning more than one person is not uncommon in the Calendar of Patent Rolls. Professor Lacey does not make it clear just where these should appear in her schema. I suspect that she would place them within the category of individual pardons, but here as in several other instances, a term utilized in this book requires a more precise definition.

Secondly, although the author briefly alludes to the fact that many felonies (and even some non-felonies) required royal pardons, she fails to consider or even to list most of these “pardon-worthy” offences, devoting her attention instead to homicide in its several forms, which she then explores in detail. Some further treatment of other infractions that included assault, arson, highway robbery, rape, burglary, animal rustling, failure to take knighthood, and illegal property transfer would have given the reader a better idea of the scope of the king’s pardoning power.

In her discussion of homicide, Lacey harkens back to Hurnard (in my opinion, correctly so) by questioning the fairness of a judicial system that placed all forms of killing on pretty much the same footing by requiring a royal pardon to excuse not only murder, but also death by self-defense, misadventure, or even in the performance of one’s duty.

Part two, centering on the development of the general pardon available to all comers, claims the majority of the author’s attention and it is here that the author makes her most original contribution. She begins by examining what are called “group pardons,” a category that achieved importance in the first half of the fourteenth century by extending amnesty to political offenders, forgiving civil crimes in return for military service, and cancelling debts and feudal dues owed to the crown. She argues that during the second half of the century these group pardons metamorphosed into a far more extensive phenomenon, a general pardon made available to anyone who approached the crown with a request for one.

According to Lacey, the first general pardon came in 1377, on the fiftieth anniversary of Edward III’s accession to the throne and was designed not only to commemorate that event, but to reconcile the monarchy and England’s “political community” after the crises of the preceding year, including the death of the Black Prince, heir to the throne, and the meeting of the Good Parliament that voiced strong opposition to current royal policies. In the book’s longest chapter, “Pardoning and Revolt,” the author explores the general pardon issued in December 1381, in the wake of the Peasant uprising throughout southern England. Finally, in a chapter entitled “Pardoning and Revenge,” she shows how in 1397, Richard II actually managed to turn a general pardon against several of its recipients, the Lords Appellant, who had mounted serious opposition to his government a decade earlier.

Participation in general pardons usually bore a price tag. For example, to receive this manifestation of royal grace in 1377 cost an individual 18s 4d. On the other hand, in some instances, the pardon might actually be free. As the author points out, while the original recipients of the 1381 pardon paid different amounts for it, “a later proclamation made it free to all those who wanted one.” (141)

From the perspective of military history, the most interesting aspect of royal pardons involves their use to recruit and reward men for military service or, alternatively, to raise money that the crown could devote to its military endeavors. Unfortunately, the author’s treatment of this topic leaves much to be desired. A military historian reading The Royal Pardon will almost certainly find this to be the book’s least satisfying feature. Although Lacey does deal with military pardons, they do not rank among her principal interests and consequently, her examination of them is relatively sketchy. Most of what she has to say comes in two places: first, in the introduction where she frames the overall debate over the use of pardons; secondly, in a very brief section (approximately six pages of text) in chapter seven that deals with group pardons. Between the two, there is a good deal of overlap.

On the topic of military pardons, Lacey is undoubtedly at her best when summarizing the historical literature surrounding their use. In both the introduction and again (somewhat repetitively) in chapter seven, she makes it clear that scholars who have condemned the impact of royal pardons on English society have been particularly critical of military pardons which they considered to be highly pernicious, given their numbers, the impunity they afforded malefactors, and the chilling affect they had on both victims and witnesses whose willingness to denounce crime was crucial to the functioning of the medieval English system of justice. Lacey notes that her predecessor, Hurnard, “blamed Edward I in particular for taking this corruption to new heights by using pardons as an incentive to enlist military recruits. This ‘disastrous expedient’ removed all pretence of any equitable motives for pardoning.” (3-4)

Despite her own downplaying of the criticism leveled at military pardons, in several instances, the author is compelled to concede their numerical significance; for example, when discussing the role of intercessors seeking to obtain them for suppliants, she states that,

in terms of sheer numbers of pardons secured... Edward III’s military commanders stand out from the other patrons.... They secured high numbers of pardons for lists of retainers in preparation for a forthcoming military campaign or to reward them for recent service. (47)

Two facets of the work valuable to military historians appear as appendices. Appendix 2 consists of a bar graph showing peaks and valleys in the issuance of military pardons in two-year intervals. Appendix 4 contains a reign-by-reign listing of intercessors seeking pardons for other people, many of whom were their military retainers. The list supplies not only the total number of pardons issued at the request of each such individual, but also a year by year breakdown of these requests. And while the list does not identify which of the intercessors were major military figures, it might well yield valuable military insights if used in conjunction with the richest source on medieval soldiers available for any country: The Soldier in Later Medieval England Project sponsored by Reading and Southhampton Universities and overseen by Adrian Bell and Anne Curry. (See: http://www.icmacentre.ac.uk/soldier/database/)

As already indicated, the two major problems with the book from a military historian’s perspective are (1) the general downplaying of the importance of military pardons and (2) the rather scanty treatment afforded the subject. In addition, this reviewer has several more specific criticisms to raise:

• Too much of the already brief treatment is devoted to military pardons from the reign of Edward I in the late thirteenth century rather than to the huge number issued in later decades as part of the greatest conflict of the later Middle Ages, the Hundred Years War.
• To the extent the author does look at the fourteenth century (which is, after all, the subject of her book), it is largely to document the periodic complaints of parliament, rather than to examine the pardons themselves or who was receiving them for what reasons.
• The author states, “in 1360 Edward III offered military pardons only for homicide indictments.” This statement is patently inaccurate, a fact made clear by the very pages from the Calendar of Patent Rolls that the author cites to support it.
• The author states “Details of the crimes these new recruits were alleged to have committed are sparse, although in a few instances their pardons were written up on the main patent rolls as well as the supplementary series, in which case the outlines of the case against them can be gleaned.” While this statement is partially accurate, it is highly misleading if applied to the run of military pardons for the entire fourteenth century. Most such pardons issued in the 1440s simply forgave all felonies committed by the recipient without listing them specifically. As a result, these are useless in determining the nature of their crimes. On the other hand, around mid-century, perhaps in response to parliamentary complaints, this began to change. Pardons increasingly listed the specific crimes that were being forgiven. As a result, they become a significant source of information concerning the nature of crime in late fourteenth century England. The above-mentioned section of the Calendar of Patent Rolls for 1360 serves as a good example.
• Finally, the author states

Over the period 1337-1353 seven petitions were presented to Parliament, complaining that felons were unjustly receiving pardons because they agreed to military service. While the main aim was to curtail the use of military pardons, however, the petitions continued to be framed in a standard fashion, stipulating, as they had done in the past that henceforward pardons would only be issued in accordance with the king’s coronation oath.

While this is largely accurate, there is one significant exception, potentially revolutionary in its implications, that at least deserved to be mentioned. In January, 1348, Parliament met at Westminster, just months after the capture of Calais, where the crown had distributed several thousand military pardons to men involved in the siege, forgiving any and all felonies they may have committed. Representatives of the realm used the meeting to present the crown with several similarly-worded petitions, the second, and most detailed of which, read as follows:

To our lord the king and his council; his commons pray: that whereas many murders, kidnappings of people, robberies, homicides and ravishments of women and other felonies and crimes are committed and maintained in the realm without number, and so many are favoured by charters of pardon and procure deliverance that neither the criminals nor the maintainers pay attention to or fear the law, to the great destruction of the people; may it please our lord the king to ordain such remedy by statute so that no such criminals and maintainers might be comforted or emboldened by any of the aforesaid reasons. And charters of pardon should not be granted to such men without the assent of parliament.

Almost as an afterthought, they suggested a solution to the problem of military pardons that is framed in anything but “a standard fashion”: that such charters of pardon should not be granted “without the assent of parliament.” In effect, this petition called for the crown to accept a parliamentary limitation on the royal prerogative.

Whatever the shortcomings may be in Professor Lacey’s treatment of military pardons or the degree to which one is ultimately willing to endorse her overall views on royal pardons in general, the fact remains that she has produced a book that all scholars working on law, violence, and military affairs in late medieval England (including this reviewer) will find it necessary to read and to integrate into their own research.