By RACHEL E. HOLMES
Review of Theaters of Pardoning, by Bernadette Meyler.
Ithaca, NY: Cornell University Press, 2019
At this political moment, with the end of Donald J. Trump’s volatile presidency, the inauguration of President Joseph Robinette Biden, Jr., and Vice President Kamala Harris, and another impeachment trial in the US Senate, Bernadette Meyler’s incisive Theaters of Pardoning could not be more timely. A valuable contribution to Law and Humanities scholarship and reflection on the future of liberal constitutionalism, Meyler’s book cuts to the quick of pardoning practices from seventeenth-century England to contemporary America. Highlighting both the seemingly irresistible draw of pardoning as a theatrical assertion of sovereign power and the revolutionary opportunities latent in the uncoupling of sovereignty from the figure of the sovereign ruler, Meyler pierces the illusion of absolute authority and sets out an alternative Arendtian vision for the state grounded in forgiveness.
Trump’s intention to dramatically issue a flurry of pardons and commutations during his final hours in power drew the attention of international critics and news outlets which have, during the past four years, broadcast Trump’s very own serialized drama. Following the storming of the United States Capitol while both houses were in session on Wednesday, January 6, onlookers held their collective breath and braced for a tragic conclusion. In the throes of Act V, the global audience—still uncertain of President Trump’s genre and having long given up on the prospect of anagnorisis—awaited, even dreaded, the peripeteia. But how appropriate are these Aristotelian terms to a consideration of contemporary political theatre? While the magnitude of the action and actors seems to fit Aristotle’s stipulation that it be “spoudaios” or elevated (Poetics, VI.1449b5), the drama as a whole arguably lacks the requisite ethical distinction. The primary concern throughout the Trump era has not, on the whole, been the sympathetic identification with a flawed noble tragic hero as much as it has been anxiety about the death knell and potential fall of democracy.
Reading the tenor as tragic if not strictly Aristotelian, then, we might more appropriately invoke literary critic J. W. Lever’s definition of “tragedy of state” as a way to conceptualize the generic anxiety of this moment, a definition that foregrounds the vulnerability of the polity rather than of its central characters (Tragedy of State, 10). In its challenging explorations of state power and sovereign authority, Lever claims, Jacobean tragedy voices latent ideas that in the 1640s would become revolutionary actions. Meyler’s Theaters of Pardoning is implicitly in dialogue with this model through her location of the tragic thrust of much seventeenth-century drama in the threatened and inherently unstable “foundations of the state” (5). However, rather than looking at tragedies per se, Meyler finds a particular kind of tragicomedy taking shape at that particular moment under and in response to Stuart rule, which she terms “theaters of pardoning” (3). By “raising the threat of tragedy but insisting on a comic ending by the imposition of pardoning,” Meyler posits, this genre offers hope through enabling “spectators to safely rethink the foundations of the state” (5). Given the flurry of pardons that ushered out the Trump presidency, then, with Meyler we might instead envisage a shift away from tragedy and embrace this moment as a ”form of tragicomedy” (3).
As Meyler notes, Trump identified the theatrical power of pardoning and executive actions early in his presidency and preferred the performance of Foucauldian “spectacle” to the shackles of bureaucracy (Discipline and Punish). More recently, the legitimacy not only of certain requests for presidential pardon but also of certain potential pardons themselves has been questioned even by members of Trump’s own party. Appearing on Fox News’s Sunday Morning Futures with Maria Bartiromo, Senator Lindsay Graham (R–SC) addressed the matter of pardoning the rioters who stormed the Capitol, insisting that presidential pardon for such behavior would be “wrong” and that, rather than clemency, those individuals deserved to be “prosecuted to the fullest extent of the law.” Here, Graham touches on the central concerns that drive Meyler’s Theaters of Pardoning, namely: the exceptional operation of pardoning powers, the threat of popular rebellion, the manner in which the state ought to respond, and the ethical and sovereign responsibilities attendant thereon. What is not apparent from Graham’s comments, though, are the roots of these concerns in the seventeenth-century imaginary. Meyler’s work is in large part a consideration of the seventeenth-century context, but a compelling distinction of Theaters of Pardoning is its contention that this context laid the foundations of our contemporary conceptions of pardoning and the polity, and that it framed their inherent complexities, which makes this literary-historical context key to understanding and moving beyond our present political moment.
As Meyler points out, in 2018 Trump infamously tweeted, “I have the absolute power to pardon myself” (1). This can hardly have been what John Florio had in mind in First Fruits (1578) when, echoing Jean Bodin, he framed the rhetorical question “What more noble vertue can be in a Prince, then to be clement, ready to forgeve, and slowe to punishe?” While Trump’s tweet recalls the insistence of the Henrician Jurisdiction in Liberties Act (1535/6) that “No personne […] shall have any power […] to pardon […] but that the Kinges Highnesse […] shall have the hole [sic] and sole power and auctoritie therof,” it also takes an unprecedented turn inward through the legitimization of self-pardon (27 Hen. VIII c. 24, §1). Despite having been warned against self-pardon by White House advisors to avoid legal and political ramifications, we nonetheless wondered during his presidency whether we were about to witness the president embrace the spirit of classical tragedy and swoop in as a self-styled deus ex machina to judge in his own case. Meyler locates a precedent — or “president” in early modern spelling — for the debate about both the absolute power of pardoning and the feasibility of judging in one's own case in the reign of King James VI and I (1603–1625).
In Chapter 1 (“Dramatic Judgments”), Meyler reads Shakespeare’s Measure for Measure (c. 1603) as an archetypal “theater of pardoning,” and convincingly situates the play against a backdrop of the institution of English common law. She sees the disguised ruler plot of Measure for Measure as born of a cultural tipping point between King James’s investment in his own absolute authority and early modern English jurist Sir Edward Coke’s insistence on common law as a means to limit sovereign power. From a literary standpoint, Meyler situates pardoning as almost a generic antidote to revenge tragedy. In Measure for Measure, the bloody potential promised in the first scene’s condemnation of Claudio to the gallows for fornication is curtailed by the returned Duke’s dramatic pardons in the final scene and thereby rendered tragicomic, a theatre of pardoning. Setting aside the unseen execution of Ragozine that furnishes the play’s “head trick,” sparing Claudio, Meyler’s reading is largely in keeping with John Fletcher’s Guarinian model of ”tragi-comedie” (The Faithful Shepherdess, c. 1609). In this model, Fletcher insists that the genre’s definitive characteristic is that “it wants deaths, which is inough to make it no tragedie, yet brings some neere it, which is inough to make it no comedie.”
Meyler’s reading also invites us to reconsider the genre that more recent critics term the “problem play” or “problem comedy”. Briefly turning to modern critical perspectives on Shakespeare’s play, then, it is difficult to disagree with Meyler’s speculation that the “problems of this problem play may be, in part, ones shared with the historico-political discourse of early modern English jurists” (63–4), namely the contentious sovereign pardon as it sat uneasily with assertions of the authority of respective legal institutions. The “dim untrodden paths” F.S. Boas contends that we “move along” when we read Shakespeare’s so-called “problem-plays” then become the jurisdictional grey areas of sovereignty (Shakespeare and His Predecessors, 345).
Sovereign pardon is here and elsewhere the mechanism that, borrowing Fletcher’s phrase, “brings some neere” but dramatically pulls them from the brink of death required by law. In this, we recognize with Meyler that, whether in literature or law, “the structure of the sovereign’s pardon itself already entails a certain theatricality” precisely because it is “given between the fact of his presence and the imperative for his withdrawal” from judgment and thereby “the pardon unhinges the sovereign from a law that finds itself defined as positive insofar as it is posited apart from him” (16). In Measure for Measure, this is a tension embodied by the disguised Duke and, in Chapter 2 of Theaters of Pardoning (“Emplotting Politics”), one that is found in the figure of King James’s ultimately unsuccessful efforts to shore up his own sovereignty.
Meyler traces compelling connections between James’s insistence on absolute sovereignty, Sir Edward Coke’s advocacy for common law authority, and the tousle over the equitable office of Chancery, and in doing so demonstrates the import of Bradin Cormack’s understanding of jurisdiction in A Power to Do Justice. Like Meyler, Cormack sees “jurisdiction” as a mechanism that helps to make sovereignty “legible […] as the real effect of a more mundane process of administrative distribution and management” rather than a supranatural force (A Power to Do Justice, 9). Emphasizing both the consequent vulnerability of sovereignty and King James’s over-reliance on divine right, Meyler convincingly demonstrates how, when faced with the Gunpowder Plot, rather than exploiting the potential gains of sovereign pardon for the Powder Men, James instead imaginatively displaced judgment onto Parliament, imposed the Oath of Allegiance (1606), and thereby undermined his own legal fiction. This oath was essentially an effort to pin down linguistic “instability” through the “constancy of an oath” binding subjects’ faith to the sovereign (Theaters of Pardoning, 103). Had James followed the Shakespearean model furnished by Measure for Measure and pardoned the plotters, Meyler contends, he would have disrupted “the cycles of revenge and revolution” and thereby “generated both a discontinuity within the state and a chance to reform and reformulate it” (109).
But James neither heeded Shakespeare’s literary representation of political possibilities nor, as we see in Chapters 3 (“Non-Sovereign Forgiveness”) and 4 (“From Sovereignty to the State”), the alternatives presented toward the end of his reign by John Ford & co’s The Laws of Candy (c. 1623) or Philip Massinger’s The Bondman (1624) that might have averted Caroline tragedy. In these chapters, Meyler opens out the vision for an “ethical basis for political participation” (172) offered by The Bondman and The Laws of Candy and reads these “alternative form[s] of politics” as intimately connected with their “tragicomic vision” (144) or form. Setting up genre in this way as an index of particular legal-theoretical problems situates Theaters of Pardoning alongside other work in the field of Law and Literature or Law and Humanities which has, in Meyler’s words, “inquired in more detail into the specificity of disparate literary genres” and explored their “legal significance” (New Directions in Law and Literature, 20; “Law, Literature, and History: The Love Triangle,” 386).
In doing so, Theaters of Pardoning is most directly in conversation with the work of Christopher N. Warren, who argues that “early modern literary genres helped generate and systematize some of the most important categories and suppositions of modern international law” (Literature and the Law of Nations, 1). Both Meyler and Warren see tragicomedy as concerned with the structures and performances of sovereignty and I wonder whether Warren’s “tragicomic law of nations” (Literature and the Law of Nations, 97)—uneasily embodied by the Union of England and Scotland under King James and found in Shakespeare’s The Winter’s Tale—might, with its closing scene of reconciliation and forgiveness, even be considered a “theater of pardoning.”
Meyler’s emphasis on the redemptive potential of tragicomedy in Theaters of Pardoning also situates it alongside other works of literary criticism such as Valerie Forman’s Tragicomic Redemptions, a study in the interdiscipline of economics and literature which sees tragicomedy as readily lending itself to the reimagining of economic loss and anxieties about burgeoning international trade. Equally, Sarah Beckwith’s Shakespeare and the Grammar of Forgiveness, a study of religion and literature, sees plays such as The Winter’s Tale and Shakespeare’s other late plays or romances as “post-tragic plays”—tragicomedies in all but name, although she refrains from terming them as such—that “chart the paths to forgiveness” (Shakespeare and the Grammar of Forgiveness, 4). Also seeing Measure for Measure as a turning point or, as she puts it, the play that “ends the comic tradition” in Shakespeare (Grammar of Forgiveness, 10), Beckwith’s argument sits parallel to Meyler’s largely owing to her insistence that forgiveness “is carefully distinguished from pardon, exoneration, and absolution” (Grammar of Forgiveness, 10). However, in her reconfiguration of the operations of clemency in Jacobean and Caroline theater that charts a move from the “sovereign pardon” toward “emphasizing forgiveness among subjects or citizens” or a “conception of clemency that resembles an equitable approach to law” (250), Meyler challenges Beckwith’s central contention that “in the grammar of forgiveness a king pardons, a priest absolves, but only humans and God forgive” (Grammar of Forgiveness, 116).
The Caroline era which, according to Meyler, witnessed a revival of “theaters of pardoning” (175) is the setting for Chapters 5 (“Between Royal Pardons and Acts of Oblivion”) and 6 (“Pardoning Revolution”), which take as their focus what we might call transitional justice and the influential Hobbesian reconceptualization of pardon, respectively. Chapter 5 excavates the context of a relatively unknown seventeenth-century figure, Cosmo Manuche, an Italian-born dramatist who became part of the household of James Compton, Earl of Northampton. Meyler’s is an illuminating exploration of both Manuche’s The Just General (1652) and the manuscript The Banish’d Shepherdess (c. 1660) as they embrace their political moment, a moment when “the premise of prior sovereignty itself was never so explicitly in question” (191). She sees both Manuche and Compton as in favor of an act of oblivion, translating a manuscript treatise in Compton’s hand that sues for “an act of indemnities, or of oblivion stille it what you please” (176) in Appendix B (279–80) to smooth things over. From a literary perspective, Meyler revises the dominant critical model of the complexity of Protectorate Tragicomedy (cf. Susan Wiseman, Drama and Politics in the English Civil War) which frames it as negotiating the bounds of (dis)loyalty with one in which subordinates are essential to “the success or failure of a restoration” (195). This consensual model of general pardon or oblivion sets the stage for Hobbes’s recentering of sovereignty that philosophically shores up the restoration of Charles II to the English throne (1660) and is the subject of Chapter 6. For Meyler, in forgiving “the unforgivable, or the revolutionary act” Charles II and Hobbes reinstitute “sovereignty as a law-like rule” and thereby eradicate “the possibility of a pure forgiveness” (246).
While this may seem at first glance as either a return to the Jacobean or a foreshadowing of the Trumpian emphasis on absolute pardoning power, as we learn through her reading of seventeenth-century theaters of pardoning and theoretical exposition in the book’s “Postlude,” Meyler sees it instead as having effected the shift of sovereignty onto parliament. In so doing, Meyler convincingly shows how pardoning powers are at once a relic of absolute monarchical sovereignty and, as we see through attending to “presidents” in the alternatives posited by seventeenth-century drama, an unrealized opportunity for democracy (273).
The bigger questions raised by Theaters of Pardoning for the Trump era and its aftermath are ethical, and drive to the core of the concern that Jack Goldsmith and Matt Gluck have expressed when contrasting with the pardons issued by his predecessors: “Almost all of the beneficiaries of Trump’s pardons and commutations have had a personal or political connection to the president." The president’s allies have allegedly collected “tens of thousands of dollars” in what became during his term a booming “market for pardons” and in doing so become reminiscent of medieval “pardoners,” middlemen peddling the remission of sin for cash in the mediaeval market for papal indulgences as well as the fodder for contemporary parody (e.g. Chaucer, "The Pardoner’s Tale").
While there may be nothing illegal in lobbying for pardon, hollowing out the ethical center of pardoning in this way highlights the fraught intersection of individual and political (im)morality which flies in the face of the lessons and assumptions of Renaissance humanism regarding the proper conduct of those in public office that underpin our legal and political systems. Although the drier tomes of the Renaissance Humanists and legal theorists may not have captivated the contemporary imagination, the works of Shakespeare and his contemporaries certainly have, and offer what Sir Philip Sidney termed “a speaking picture” that, as Meyler demonstrates, has the capacity to “teach and delight” (The Defence of Poesy, 1595). “For,” Sidney cautions, “until [people] find a pleasure in the exercises of the mind; great promises of much knowledge will little persuade them” (Defence).
While Sidney’s disparagement of “mongrel tragicomedy” is often taken as a wholesale dismissal of the genre, what he really objects to is the indecorous “mingling of kings and clowns” that does not fit the topic at hand (The Defence of Poesy, 1595). If it is well constructed, according to Giambattista Guarini, tragicomedy “can delight all dispositions, all ages, and all tastes” (Compendio della poesia tragicomica, trans. Allan Gilbert, 512) and analogizing the “mixed form” to the composition of the state, he asks, “Why cannot poetry make the mixture if politics can do it?’ (Compendio, 512). Meyler’s argument in Theaters of Pardoning turns Guarini’s question on its head and asks why politics cannot enact what poetry long before imagined.
Posted on 11 February 2021
RACHEL E. HOLMES is Associate Lecturer (Teaching) in Shakespeare and Renaissance Literature at University College London
