Posted by Krista J. Kesselring, 1 January 2021.

New Year’s Day traditionally served as an occasion for giving gifts. Some such gifts consisted of words of warning and advice, as tokens of the authors’ best wishes for a good and prosperous year to come. Revisiting one seventeenth-century ‘new years gift’ lets us echo such well-wishing for health and happiness in the new year, while also touching on a topic of some contemporary significance: pardons.

New Year’s gift-giving reinforced all sorts of political and social bonds. In a practice said to have started with King Henry III, courtiers and servants gave their sovereign ‘gifts’ at the new year, whether they much wanted to or not. Queen Elizabeth I’s New Years’ hauls were legendarily lavish.[1] Others beside the sovereign received gifts from their subordinates at the turn of the year, too, though occasionally with some variations.[2] When Matthew Hale became chief justice of the Court of King’s Bench in 1671, for example, he initially wanted to refuse the annual gift of expensive plate from the marshal of the court’s prison, but when told that doing so would prejudice his successors in his post, he asked instead for the value of the gift in money, which he then disbursed to poor prisoners for their relief and discharge.[3] In addition to traditional acts of homage to superiors, people commonly gave books to family and friends to mark the new year, so much so that authors seeking patronage used the occasion to bestow copies of their works upon hoped-for sponsors.[4] The trope of the ‘new-years-gift’ appeared frequently in the titles of printed texts throughout the sixteenth and seventeenth centuries. Sermons, meditations, and books of advice issued forth from the presses under the guise of gifts to the public for the new year, as did some texts of a more satirical or confrontational bent that professed to offer up a gift for the common good.

Scanning the list of titles of such ‘new-years-gifts’, one seemed even a touch timelier to read than the others: John Brydall’s A New-Years-Gift for the Anti-Prerogative-Men, or, a lawyer’s opinion in defence of His Majesties power-royal, of granting pardons, as he pleases (London, 1682). This was Brydall’s contribution to a heated debate over King Charles II’s ability to pardon one of his chief ministers, the earl of Danby, in the midst of parliamentary impeachment proceedings against him.[5] In the moment, Charles and Danby had emerged at least partially victorious – Danby did resign and spend time in the Tower, but no more. Controversy on the subject continued, however, with renewed discussion at the time of the Glorious Revolution. Eventually the 1701 Act of Settlement imposed an explicit restraint on the sovereign’s ability to use a pardon to pre-empt an impeachment. The Danby affair also lay behind the similar limitation on presidential pardons later enshrined in the U.S. constitution, a clause now sometimes cited in media discussions of current events.[6]

Felled by the turmoil surrounding the revelation of the ‘Popish Plot’, the Lord Treasurer, Thomas Osborne, earl of Danby faced charges in the House of Commons in December 1678 that he had dealt treasonously with foreign powers and sought to establish an arbitrary and tyrannical government. He had aided the king’s deeply unpopular negotiations with his French, Catholic counterpart for funds that would free Charles from parliamentary reins; he had also failed to disband the army, as he ought to have done by law. Before the House of Lords could weigh in on Danby’s impeachment, the king prorogued Parliament, in hopes of preventing evidence even more damaging to himself from coming to light. To the same end, he controversially gave Danby a full pardon before Parliament reconvened. When that Parliament began to move once more against Danby, the earl pleaded his pardon in the House of Lords to stop further proceedings.

The pardon outraged members of the new session, who denounced its ‘irregularity and illegality’ as well as its ‘dangerous consequences’.[7] It had not gone through the usual bureaucratic processes, and seemed to some to violate a long-accepted principle that the king could pardon only offences against himself. Most alarmingly, if a king could pardon a minister impeached by Parliament, then Parliament effectively had no power to hold kings or their agents to account. ‘The king can do no wrong’ was a maxim accepted by most, but with deeply divergent interpretations: for some, it meant that any illegal act attempted by a king simply became null or that ‘a king who does wrong effectively unkings himself’, though for others, it shielded a king by shunting responsibility for his wrongdoing to his officials.[8] Even some people who held the second, more conservative view were worried: if those officials could not be impeached, did that not make kings and their agents wholly and unacceptably unaccountable?

It was in the context of these discussions that Brydall offered his ‘new-years-gift’ in defence of the pardon.[9] He defined a pardon as ‘the remitting, or forgiving, [of] any offence committed against the dignity and crown of the King’, something that ‘frees from the punishment due for a thing unlawfully done’. The power to pardon vested in the ‘sovereign and supreme authority of the nation’, that sovereign power which had the power of life and of death. On this much, most would agree.

Brydall acknowledged that the power to pardon had limits. The king could not pardon the defendant in a private appeal, e.g., a suit launched personally by the victim of a rape or robbery or by the wife or heir of someone murdered. A king could not pardon someone committing a continuing nuisance as long as the fault continued. He could not release someone from a bond to keep the peace that was made ‘for the benefit and safety of his subjects’. While he could pardon individuals from exemplary punishments meant to deter others from similar wrongdoing, he could not release people from penalties that worked to the ‘restitution or satisfaction of the plaintiff’. The king’s power to pardon was not, then, absolute or unlimited.

Brydall then explained who could judge the validity of royal pardons in general, and defended Danby’s in particular, with arguments that would likely not have comforted critics. He assumed that no one would doubt the king’s ability to pardon his minister of all treasons and misdemeanours before an impeachment, and that the issue at hand was whether Charles could do so after the Commons had already sent articles of impeachment to the Lords. Yes, undoubtedly, the Commons were the ‘general inquisitors of the realm’ and the Lords constituted the ‘supreme court of judicature in this nation’ – but these were responsibilities and powers delegated by the king. Parliaments remained subordinate to the king; members of the Commons and Lords sat as subjects, not superiors, to the man made sovereign by God, a king whose power was reduced not ‘one tittle’ by the meetings of men he called together at his pleasure.

But was a parliamentary impeachment not akin to a private appeal? By extension from the accepted prohibition of a king’s ability to pardon defendants in private appeals, could one not bar a royal pardon of someone whose crimes harmed the people considered collectively?  Could a king pardon offences against the state or commonwealth, or just those against himself or ‘the Crown’? Brydall insisted that the distinction between public interests and royal interests was false. Indictments had described crimes as offences against the public or the people of England, rather than against the Crown, but only ‘in the late Usurpation, when this our glorious, ancient, and hereditary Monarchy was turned into a Democratic Slavery under the title of the Commonwealth of England’. With monarchy properly restored, all sovereignty—all power over life and death—now vested in the king once more, with no difference to be drawn between offences against himself or against the people. The king could delegate his powers or limit them if he wished, but had not done so in any way that constrained his ability to pardon Danby, or any others of his ministers who might be impeached by the Commons. The king remained ‘as free and absolute a monarch, in a session of Parliament as out of it’.

In Brydall’s telling, only in a democratic polity in which the people professed to be sovereign could one doubt the ability of an executive to pardon as he wished. Legislators worried by the precedent of the Danby pardon did not think they had to accept that premise, and imposed some limit without embracing the ‘slavery’ of genuine democracy. The giving of pardons, as with gifts more generally, could be deeply political, and pardons especially so when impinging on issues of sovereignty. After the Glorious Revolution, the granting of pardons passed more routinely from the king to the cabinet and in 1701, Parliament made clear that no pardon could impede an impeachment.[10] The obligatory giving of new years’ gifts to the sovereign ended in the first English Revolution; the monarch’s ability to grant his grace as he wished was moderated shortly after the second.

Few if any people doubted that mercy had to season justice. They knew that pardons served a vital role in a system in which death remained the standard punishment for many crimes. Pardons could prop up social relations of gross inequality and a legal system of grotesque brutality, in ways that the men who sat in Parliament rather found to their advantage, but could not appear too often too nakedly mercenary or self-interested. Whatever their varied functions and meanings, to be broadly accepted as legitimate, pardons had to appear to be gifts. At their best, pardons allowed the repentant and the redeemable rebirth, renewal, and fresh starts — something akin to the turn from one year to the next.

And with that, best wishes to us all for a happier and healthier new year!

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Feature image: Detail from Antonio Verrio, The Sea Triumph of Charles II, c. 1674, courtesy of Wikimedia Commons.

References:

[1] Jane A. Lawson has published an edition of the Elizabethan gift rolls: The Elizabethan New Years Gift Exchanges 1559-1603 (Oxford, 2013). Digital images of some of the original rolls can be seen at the British Library site and the Folger Shakespeare Library site.

[2] On New Years’ gifts and gift-giving in early modern England more generally, see especially Felicity Heal, The Power of Gifts: Gift Exchange in Early Modern England (Oxford, 2015). Heal notes too, e.g., that tenants gave landlords gifts on New Year’s Day.

[3] Gilbert Burnet, The Life and Death of Sir Matthew Hale, Knt., Late Lord Chief Justice of England (London, 1700), p. 12.

[4] See Edwin Haviland Miller, ‘New Year’s Day Gift Books in the Sixteenth Century’, Studies in Bibliography 15 (1962), 233-41. Miller identified 37 books presented as new year’s gifts up until the end of Elizabeth’s reign; produced since he wrote, Early English Books Online now allows far more comprehensive and quicker searching, revealing a list of at least 167 titles published between 1475 and 1700 with the phrase in the title.

[5] Thomas Osborn, later duke of Leeds; see Mark Knights, ‘Osborne, Thomas, first duke of Leeds (1632–1712), politician’, Oxford Dictionary of National Biography. 23 Sep. 2004; Accessed 14 Dec. 2020. On Danby, see also A.M. Evans, ‘The Imprisonment of Lord Danby in the Tower, 1679-1684’, Transactions of the Royal Historical Society 12 (1929), 105-35. On the political and ideological disputes arising around the pardon, see especially Janelle Renfrow Greenberg, ‘Tudor and Stuart Theories of Kingship: The Dispensing Power and the Royal Discretionary Authority in Sixteenth and Seventeenth Century England’, University of Michigan PhD, 1970, pp. 377-97.

[6] On the link between the Danby pardon and the U.S. constitutional language, see, e.g., William F. Duker, ‘The President’s Power to Pardon: A Constitutional History’, William and Mary Law Review, 18 (1977), 487-503 and Brian C. Kalt, ‘Pardon Me?: The Constitutional Case Against Presidential Self-Pardons’, The Yale Law Journal, 106 (1996), 782-7.

[7] Journals of the House of Commons, vol. 9, pp. 574-5 (24 March 1679).

[8] See Joyce Lee Malcolm’s perceptive essay on the history of this frequently misunderstood maxim: ‘Doing No Wrong: Law, Liberty and the Constraint of Kings’, Journal of British Studies 38.2 (1999), 161-86, quote at 183-4.

[9] John Brydall, A New-Years-Gift for the Anti-Prerogative-Men, or, a lawyer’s opinion in defence of His Majesties power-royal, of granting pardons, as he pleases (London, 1682). Why was this published so long after the issuing of the pardon in 1679? Perhaps because of Danby’s continued residence in the Tower, perhaps because one related issue of the bishops’ roles in judicial matters in the Lords remained very much alive, or perhaps because of continuing attempts to impeach other officials. On the final point, see, e.g., Lois G. Schwoerer, ‘The Attempted Impeachment of Sir William Scroggs, Lord Chief Justice of the Court of King’s Bench, November 1680-March 1681’, Historical Journal 38. 4 (1995), 843-73.

[10] On pardons after the Glorious Revolution, see J.M. Beattie, ‘The Cabinet and the Management of Death at Tyburn after the Revolution of 1688-1689’, in The Revolution of 1688-1689: Changing Perspectives, ed. L.G. Schwoerer (Cambridge, 1992), pp. 218-33; works by Simon Devereux, e.g., ‘Execution and Pardon at the Old Bailey, 1730-1837’, American Journal of Legal History, 57.4 (2017), 447-94; and the classic essay by Douglas Hay, ‘Property, Authority and the Criminal Law’, in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. D. Hay et al (New York, 1975), 17-64. For the earlier history, see Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England (Woodbridge, 2009); K.J. Kesselring, Mercy and Authority in the Tudor State (Cambridge, 2003), and Cynthia Herrup, ‘Negotiating Grace’, in Politics, Religion and Popularity in Early Stuart Britain, ed. Thomas Cogswell (Cambridge, 2002), 124-40. See, too, on this blog earlier posts by Cynthia Neville on acts of remission in Scottish history and by me, on pardons given to mark Good Friday.