The King’s Courts and the King’s Soul: Pardoning as Almsgiving in Medieval England
By Thomas McSweeney
Reading Medieval Studies, Vol.40 (2014)
Abstract: This paper examines the workings of the English royal courts in the thirteenth century through one of their practices—pardoning—and argues that the king and his officials could see courts not just as venues for justice, but also as institutions through which the king could see to the health of his own soul. The royal courts and royal administration of the thirteenth century used the power to pardon to relieve people of many legal penalties, from amercements (what we would today call fines) to the death penalty in felony cases. Scholars who have studied these pardons have tended to use the medieval sources to try to find the rules of pardoning. They have assumed that pardoning followed some kind of legal logic, and that pardons were given to the worthy. Amercement pardons were given to those who could not afford to pay and felony pardons were given to those who were not culpable. This paper looks at pardons that cannot be explained according to this legal logic. It looks at the many pardons “for the sake of the king’s soul,” many of which have nothing to do with the killer’s culpability or the amerced party’s ability to pay and argues that they operated according to a different logic: the logic of alms. Pardons were granted or denied based on their ability to salve the king’s soul, leading to results that appear to be anomalous to us today—such as a blanket pardon for most felons that excludes Jews—but which would have appeared to be logical to people who were accustomed to view the courts not solely as agents of justice, but as extensions of the king’s person.
Introduction: The early history of the common law is usually written as a story of increasing rationalization. The royal courts of the late twelfth and early thirteenth centuries were creating an ever more sophisticated system of rules around the new procedures Henry II introduced between the 1150s and the 1170s. That system of rules had an internal logic to it. It was a legal logic, designed to eliminate irrelevant facts and narrow the question in the case. A court no longer needed to know a defendant’s social status or whether he was a habitual sinner, for instance. It only needed to know whether he had, in fact, disseised the plaintiff of the land. The logic of the law simplified things, decreased the number of questions a court was forced to ask, and thus created a sense that justice was, and should be, blind to qualities like social status, which were legally irrelevant.
Pardons occupy an ambiguous space in this story of ever more rational law. On the one hand, pardons can act as a safety valve. When the law fails to do justice, some official is empowered to pardon the person whom the law, in its rigidity, would convict unjustly. Pardons can thus promote justice by fixing those anomalous situations where the legal system fails. On the other hand, pardons have the potential to reintroduce the irrelevancies that the law seeks to purge from decision-making. Pardons require no justification. In the thirteenth century, the king could pardon a killer for any reason or no reason. He could pardon a killer because that killer had powerful supporters or because he had agreed to serve in one of the king’s wars, reasons that had no bearing on his culpability and thus had no legal significance. When misused, pardons can represent the failure of a rational system of law.