As published in Criminal Law and Criminal Justice Book Reviews, from Rutgers University School of Law: https://clcjbooks.rutgers.edu/books/theaters-of-pardoning/
Theaters Of Pardoning
Bernadette Meyler has written an academic book on the power of the pardon in seventeenth century England which, because of Donald Trump, has become of more than academic interest in twenty-first century America. The book displays deep scholarship as it explores the pardon informatively in Meyler’s specialties of law, political theory, and English literature. Her thesis is that in seventeenth century London, theatrical productions not only reflected but also contributed to political discourse of the day. (Spoiler alert, CNN had not yet been invented.) For example, Meyler contends that the pardon’s appearing in 47 different plays from 1600 to 1661 illustrates how salient the power was at the time. She examines several of the period’s plays in detail, reflects on how they related to then-current political events, as well as legal and political thought of the day, including the writings of the great jurist, Sir Edward Coke, and a full chapter on the philosopher, Thomas Hobbes. In this review, we concentrate on the public policy implications of Meyler’s investigation. We first describe the basic dilemmas of the pardon as we see them, then recount some of Meyler’s findings and analysis, and finally comment briefly on conclusions for our current American context.
The pardon would seem to be a relic from when government was by rule of men (and a few women) rather than by rule of law. It has been retained over the centuries, however, for two worthy purposes: (1) to extend mercy for the sake of the recipient and family, perhaps to rectify either a faulty conviction or a too-severe sentence, and (2) to extend mercy for state purposes, as a means to quell dissent and bring dissidents back into the fold. Meyler also reveals more a subtle aspect: extending a pardon demonstrates and strengthens the perception of sovereignty – the one who extends mercy is clearly in charge. She observes that just as on the theatrical stage, in real life, the pardon is often granted in dramatic fashion; it can be a flagrant display of power and sovereignty, the real life equivalent of deus ex machina. Meyler notes that strengthening legitimate exercise of power, always a bedrock requirement of government, was of particular concern in the shadow of the Stuart kings, the English Civil War, and the Restoration.
Even when used legitimately, however, the power to pardon contains hazards. Government needs to be seen as fair. Respect for law is vital to a healthy state, but by its very nature, the pardon represents an exception to the legal process. This fact led sixteenth-century French political theorist Jean Bodin to oppose pardons completely. In addition, the pardon invites resentment in those with similar offenses who go unpardoned, and if the pardoned offender tangibly injured someone, the victim (and family) can harbor resentment. Meyler also observes that the pardon power can upset the balance of power in government — lodge it with the Parliament and the king suffers, and vice-versa.
Moreover, the pardon can be abused and be used for illegitimate purposes, with even more nefarious results. President Trump has made us all too aware of how using the pardon for the personal and political benefit of the pardoner can appear corrupt. An unscrupulous pardoner can also attack a law directly by pardoning someone who has broken a law with which the pardoner simply disagrees. This can constitute an unwarranted veto of a law, a means to assert an illegitimate power right in a battle between branches of government. In other words, in the wrong hands, the power to pardon can be weaponized.
Meyler reviews how seventeenth-century writers were concerned with how, when, by whom, and with what motives the pardon should best be utilized. Her major attention is focused on three plays from the reign of King James I of England (1603-1625) – William Shakespeare’s Measure for Measure (1604), John Ford’s The Laws of Candy (1619-23), and Philip Massinger’s The Bondsman (first performed in 1624, but played for decades). She then touches on Cosmo Manuche’s The Just General (1652) and his The Banish’d Shepherdess (1659-60). Finally, departing drama and opting for political theory, Meyler considers deeply the works of Thomas Hobbes during the Restoration, especially concerning The Act of Oblivion (1660), which ordered that all events concerning the Civil War from 1637 to 1660 officially be forgotten.
The plot of Measure for Measure is well known to modern readers. The ruling Duke of Vienna entrusts his ruling position to a subordinate, Angelo, and secretly goes underground in disguise. His replacement uses the letter of a heretofore unenforced law against a young man in order to extort sexual favors from his sister, who is a nun. Angelo’s misrule for personal gain is revealed by the Duke-monk who reassumes his control, and turns tragedy to comedy (tragicomedy was the genre for most pardon plays) by pardoning everyone and compelling all the play’s lovers to marry. Perhaps we are to conclude that an evil ruler can use the law to do evil, but a good ruler can keep the state together harmoniously by using the pardon power wisely. We are tempted to think that just as the Duke’s pardons transmute a tragedy into a comedy, that should be possible in real life as well. It probably also refers back implicitly to the Oresteia, where law and the pardon were seen as the alternative to endless cycles of revenge and retribution. Does Measure for Measure refer to the then-current difficulties of the state in establishing legitimacy and the difficulties of the king in withstanding the incursions on his sovereignty by Parliament? Does it even foresee the possibilities of revolution in the Great Rebellion? Meyler thinks so. She also thinks Shakespeare’s lesson was lost upon James, who was known to have seen the play in London in 1604. James encountered the Gunpowder Plot less than a year later, but rather than using the royal pardon to quell dissent (a la the wise Duke of Vienna), he tossed the political problem to Parliament. By doing so, he inadvertently diminished his sovereignty in favor of Parliament’s power, which decided to draw and quarter the perpetrators.
Meyler contends that James didn’t absorb Shakespeare’s message, but who is to judge when to use the velvet glove and when to employ the mace? There is a difference between an opponent and an enemy; there is a difference between mainstream and fringe; there is a difference between belief and action. There is a time to reconcile and a time to extirpate. There is a time to act personally, and a time to defer to others. Who knows definitively which is which?
Over a decade later, more conscious of the fragility of the state than Measure for Measure, Meyler says that “The Laws of Candy and The Bondsman … vividly present the possibility of disaster and crystallize how variants on pardoning could contribute to reformulating the state.” (p. 169.) The Laws of Candy takes place on the island of Crete, the same locale as the play’s inspiration, Plato’s The Laws. A basic law in this fantasy is that ingratitude is punishable by death, but as would seem inevitable, a string of ingratitudes threatens the death of so many Candy principals that the state itself would fall. Pardons are the only answer, but the leadership is compromised, so instead of coming from a domestic ruler, an outsider from Venice influences the locals to democratically and personally pardon one another. The pardons allow lovers to find each other and tragedy again transmutes into tragicomedy. Candy presents, then, an alternative imagined way of effecting pardons.
The Bondsman, inspired by the Stoic tradition of Seneca from ancient Rome, tells the story of a slave insurrection occasioned by a cruel and poorly self-regulated ruling class in ancient Syracuse on the island of Sicily, which threatens to bring down the state. With a plethora of blame to go around, some Bondsman characters would seek to put the revolt down with vengeance, others to pardon widely out of pity. It again is left to an outsider, the leader of the army summoned to defend Syracuse when the dissolute leadership was incapable and unwilling to do so, to mete out punishment and pardons so that the state does not dissolve. He proves to be the incarnate Stoic philosopher who possesses clemency, the cool reasoning state of mind that stands between the emotional extremes of cruelty and pity, who can punish and pardon wisely, sometimes committing acts he personally deplores, but all to the higher purpose of preserving the integrity or the state. Sometimes priorities are at odds with one another, and one must take steps for the state that one personally regrets. The solution focuses less on the arrangement of a polity and more on the necessary qualities of leadership, as in The Laws of Candy, coming from outside the state. As a tragicomedy, in the end, there are marriages and happiness by virtue of strategic pardons.
As the English Civil War progressed and the monarchy was threatened, James’ grandson, King Charles II, proposed the Act of Oblivion, which Parliament passed in 1660. This is perhaps the ultimate pardon, but at the same time unlike it. The pardon is to an individual, not to a class of persons, more like an individual judgment than generally-applicable legislation. A pardon forgives, but it doesn’t forget. In contrast, the Act of Oblivion was the ultimate act of bestowing reintegration on the unsuccessful rebels, not mere forgiveness of a few individuals. Like Seneca, Hobbes saw the state’s preservation as the achievement of a state of peace, and even if the Act of Oblivion solidified the increasing power of the Parliament vis-a-vis the king, he was for it.
After Meyler’s detailed analysis, what we are left with are eternal dilemmas with the pardon power. If it is the choice of a single sovereign (as our eighteenth-century Founders designated for us in the U.S. Constitution), we are wholly dependent on the good character and perspicacity of that sovereign. Wise sovereigns, such as those who emerge in the plays Meyler addresses, can do good for people and country, and enhance personal legitimacy, by pardoning wisely. The plays, however, tend not to consider when the “opposition” is truly “the enemy,” and must be crushed. The Act of Oblivion seemed to work well after the English Civil War; Truth and Reconciliation worked well in South Africa; but the Nuremberg trials worked well, too. The situation tells the tale.
Meyler is very effective in situations real and imagined, and in citing theory that offers options in where the power to pardon might be lodged – it need not be a King, a President, or a Governor. She speculates at the end that in the U.S. today, perhaps the pardon should be “democratized.” As it happens, her idea is very reminiscent of what we have called for, given the history of pardon misuse since Watergate. We have proposed that a constitutional amendment requiring pardons must be ratified with the co-signature of the Speaker of the House to become effective. Perhaps this is the germ of the idea that Meyler has in mind.
Meyler has written a complex book, extensive in scope and with many strands. It is not for the faint-hearted or casual reader. But her deep scholarship and inventive imagination have done a significant service for those who must now reckon with a vexing issue in the post-Trump era: Should the power of the pardon, what Alexander Hamilton called “the benign prerogative,” continue to rest solely in the hands of just one person, our President? Meyler’s Theaters of Pardoning gives us some important considerations to weigh as we address possible reform options.
Budd N. Shenkin & David I. Levine, Should the Power of Presidential Pardons be Revised?, 47 Hastings Constitutional Law Quarterly 3 (2019)
The Federalist No. 74 (Alexander Hamilton) (Terence Ball ed., 2003)
Budd N. Shenkin, M.D., M.A.P.A. is a Member of the Board of Advisors of the Goldman School of Public Policy at the University of California, Berkeley.
David I. Levine, J.D., is Raymond L. Sullivan Professor of Law, University of California, Hastings College of the Law, San Francisco. Contact: 510-517-4013