David Tollen

David Tollen


History Tells Us the President Cannot “Self-Pardon”

The Framers of the Constitution based the presidential pardon on the English monarch’s power to grant pardons. And the monarch could not pardon himself — could not use executive power to escape the judgement of the courts. Parliament established that principle during the century before the Constitutional Convention, when it tried and executed King Charles I. To the Framers, then, “pardon” meant legal forgiveness granted to another. The authority they gave the President does not include a “self-pardon.”

Charles I, triple portrait by Anthony van Dyck

The Constitution does not address a “self-pardon,” and caselaw offers little guidance on whether the President has such a power. But the history of the Seventeenth Century does.

Execution of Britain’s King

In the midst of the English Civil War, Parliament charged King Charles I with treason, murder, and other crimes of tyranny. The king claimed the High Court of Justice had no authority over the monarch, but the judges disagreed. They tried Charles and found him guilty, and he was executed on January 30, 1649.

The execution of King Charles I

No English king had ever issued a “self-pardon” — the idea would have been laughable — and Charles did not try. But his trial and execution still defined the pardon power. They established that no executive power can protect the king against judgment in court for his own crimes.

Assumptions about the Pardon

In 1660, Parliament restored the monarchy, placing Charles’ son on the throne as King Charles II. But belief in the law’s and Parliament’s supremacy over the king remained. And Parliament confirmed that supremacy once and for all a few decades later, when it overthrew and replaced another monarch, James II, in the Glorious Revolution of 1688.

None of these assaults on royal power disrupted the monarch’s authority to grant pardons. Charles II granted many pardons, and so did nearly all his successors — including George III, who ruled during the American Revolution and the Constitutional Convention. Even today, Queen Elizabeth II retains the power to pardon.

Starting in the 1600s, then, English law included the following principles:

  1. The monarch has authority to grant pardons.
  2. The monarch cannot use any executive authority to escape the judgment of the courts for his or her own crimes. (In other words, not even the monarch is above the law.)

These two principles would contradict each other if the monarch could “self-pardon.” But the Anglo-American world of the 1600s and 1700s saw no such contradiction. That tells us people of the time assumed “pardon” meant legal forgiveness granted to another, not to oneself — not to the officer granting the pardon. After all, the pardon had always been used that way. With that understanding of “pardon,” the courts’ power to try and even execute the monarch existed side by side with the monarch’s power to grant pardons, with no contradiction.

The Long Parliament’s Heirs

The Framers of the U.S. Constitution followed in the footsteps of the civil war Parliament — known as “the Long Parliament” for its twenty-year term. They embraced its claims of limited executive power and the supremacy of law. But they also gave the President the power to pardon. If they’d thought “pardon” included “self-pardon,” they would have faced the conflict described above. Yet the Framers neither imagined nor discussed a conflict between the pardon power and the law’s supremacy over the executive — at least, not in the Federalist Papers or any other record we have.

That silence speaks volumes. It tells us the Framers shared the Anglo-American world’s assumption that “pardon” means legal forgiveness granted to another.

The Framers of the U.S. Constitution

Core Values and the Limits of Impeachment

The Framers adopted the English system of impeachment too. They gave the legislature authority to remove judges and government officials, including the President. But they deprived impeachment of the key weapon wielded by criminal prosecution: the power to take life and liberty. That they left to the courts. If the President could “self-pardon,” however, he could avoid those criminal consequences altogether. He could order murders on federal lands — the capital and the territories — and commit any number of other federal crimes, without fear of criminal prosecution. He could block impeachment by arresting members of Congress. He could even foment insurrection in the capital to hold office past his term.

That would have violated the Framer’s core values. Like the Long Parliament, the Framers meant to end tyranny, not empower it.

The Framers authorized the President to pardon others. They did not add a “self-pardon” to the Constitution.


History Tells Us the President Cannot “Self-Pardon”

The Framers of the Constitution based the presidential pardon on the English monarch’s power to grant pardons. And the monarch could not pardon himself — could not use executive power to escape the judgement of the courts. Parliament established that principle during the century before the Constitutional Convention, when it tried and executed King Charles I. To the Framers, then, “pardon” meant legal forgiveness granted to another. The authority they gave the President does not include a “self-pardon.”

Charles I, triple portrait by Anthony van Dyck

The Constitution does not address a “self-pardon,” and caselaw offers little guidance on whether the President has such a power. But the history of the Seventeenth Century does.
Continue reading “History Tells Us the President Cannot “Self-Pardon”” &rarr


About

This blog makes history and prehistory entertaining and relevant to today. It offers the stories behind today’s concerns — behind our news and entertainment. It also explores the past for its own sake. And it reveals history’s surprises, its misunderstood truths, and its fascinating and puzzling twists and turns.

You can read these posts at random. But you can also search for topics that interest you at the top of the right-hand sidebar. And you can search by category, at the bottom of the right-hand sidebar, under “Archive by Period/Category.” Finally, you can peruse “Top Posts” in the middle of the side-bar, to see what interests everyone else lately.

Author, David W. Tollen

David W. Tollen is the author of two multiple-award-winning educational fantasy novels. Secrets of Hominea uses fantasy to teach history and science — for middle readers. David is also a member of the Board of Advisors for World History Encyclopedia, which publishes the world’s most-read history encyclopedia.

David is a lawyer and instructor at U.C. Berkeley Law School. He has law degrees from Harvard Law School, Cambridge University in England, and U.C. Berkeley. He is also the author of a bestselling legal manual published by the American Bar Association, The Tech Contracts Handbook (ABA 2015).

In his undergraduate work at U.C. Berkeley, David studied history, focusing on India during the British raj and also on questions of ethnic identity. His recent studies and interests range far wider, and he is particularly interested in Big History, prehistory, and any tale of the past that guides and shapes current events.

Please follow David on Twitter, @DavidTollen, or subscribe to Pints of History. (See the links in the sidebar to the right.) And please don’t hesitate to comment on the articles here.

  • Général Alexandre Dumas, by Olivier Pichat (1825-1912). See, The Black General in 18th Century Europe
  • David Tollen teaching
  • Homo erectus reconstruction by John Gurche, photographed by Tim Evanson, licensed under Creative Commons Attribution-Share Alike 2.0 Generic license. See, The Lost World of Neanderthals, Hobbits, and Other Hominins

David Tollen started this blog under a pen name, ‘”David Carthage.” You’ll see that on some older posts.


Secrets of Hominea

Hominea’s location remains a mystery, and many doubt its very existence. Yet we have the account of Alison Pulido, the middle school girl who repeatedly visited this other world and returned to tell the tale. Or rather tales plural, for Alison befriended two dwarf scholars in Hominea, and they told her stories of life there, past and present. These tales and Alison’s own adventure reveal an amazing world, like ours yet different in startling ways. Evolution breeds mythic animals and nearly human people in Hominea, while forces of history give life to satyr dukes and giant priestesses, troll explorers and gnome rebels, tree-house towns and cavern cities — as well as cataclysmic floods, imperial plots, and stone age battles. But Hominea is no safe place for a young Homo sapiens. Soon, Alison finds herself entangled in the other world’s struggle: in the battle between truth and ignorance.

Secrets of Hominea educates and entertains middle grade readers. And their teachers will love the educational resources, including questions for discussion and reading guides.

Follow Alison through the portal and into this magical other world. Available now on Amazon!


40 thoughts on &ldquo Pre-Columbian Cotton Armor: Better than Steel &rdquo

Thanks for such a fascinating jumping off point – had no idea about the widespread applicability of tensile strength (I think of that only in relation to bridges)

Question Is that a maori warrior in the image at the top of your blog? Interested in the inspiration that caused you to choose him.

David, good eye! That is a Maori warrior. As for the inspiration, a lot of it was legal, frankly. I wanted to give the developers paintings of historic figures in the public domain, and that Maori comes from the 1800’s, so the copyright has expired. I had gotten attached to the European queen on the right side of the header (Maria Theresa, the Holy Roman Empress of the mid-1700’s), and I wanted the other pint-holder to come from a culture far from Europe in terms of both geography and style. I originally looked for Mesoamerican candidates, but that Maori just leapt out at me.

Clearly you do not know how to read, but somehow you can write obnoxious comments

It probably wasn’t a revelation to the Europeans quilted/layered linen doublets were common currency from the high middle ages, with or without metal armour. Modern testing suggests they would have offered meaningful protection, a bladed blow of >80j required to make a full penetration (sword impacts range from 60-130j.)

What’s probably also worth noting is that for a fair number of the conquistadors it wasn’t a matter of setting aside metal armour in favour of cotton rather cotton was simple what was available in the New World for those who’d turned up without…

What evidence do you have that cotton armour was as effective as metal?

Quilted fabric armor was pretty common in most parts of the world, but quickly replaced with bone, leather, wood, metal and other materials where possible.

I get your softness vs hardness angle, but Im not buying it that softness comes close to being as effective as hardness as a way of enabling technological progression.

In addition, you use western ships as an example of “hardness”, when in fact they are designed to flex and twist rather than break, so in fact, a controlled amount of softness is being used.

That is not entirely accurate. I recommend a video on youtube titled “The TRUTH about padded and leather armor (Gambeson / Aketon)” by Shadiversity. Speaking of Mesoamericans (which he doesn’t mention), their armor was often 3 fingers thick, more than enough to stop an arrow. If it could stop obsidian, which is ultra sharp, what makes you think it wont stop a considerably duller steel tip or blade. Note that with cloth armor, especially of that thickness, the physics are different. By absorbing the force of the blow, it lessens the hardness advantage of steel over stone/obsidian. The sharpness of the top or edge matters more in that situation (See above). In many cases (not all), especially in the conditions of the western hemisphere, cotton armor truly was superior. You are probably thinking that it resembled a pillow or tshirt. Far from it. Again, watch the video. I shared the title with you.

Steel swords might not be as razor sharp as obsedian, but it is much more durable and more weight. You don’t have to cut through the padding to deal damage, the concussive force of a heavy object can cause as much harm underneath it.

The is why blunt weapons like warhammers and maces were used against armored opponents. The objective wasn’t to penetrate the armor but to transfer concussive force that can cause internal bleeding and even broken bones.

Even against obsedian steel armor is better bec. an Aztec obsedian club would shatter on impact – rendering your opponent without a weapon. Despite its sharpness, obsedian is incredibly brittle.

The conquistadors had spears, swords, arquebuses, and crossbows. Both Mesoamerican and Andean armies had slingers and maces. I sure as hell wouldn’t want to be on the receiving end of a barrage of sling projectiles wearing either cotton or steel armor.. Just to clarify, I’m not sure what argument against pre-hispanic armor you’re making in this instance that I hadn’t already discussed.

ii believe that in the conditions cotton or fabric armor would fare bettter than carrying a heavy breastplate through an amazonian jungle.

The amazonian jungle is RAIN forest. Imagine wearing inch thick quilted cotton armor that is WET. Now tell me which would fare better? A breastplate made from 1/16 inch steel, or one made from inch thick wet cotton?

The tensile strength of cotton increases when wet.

it might be that cotton was better armor in the rainforest than metal breastplate.

Because of the moisture and climate. And metal rusts.

Europeans didn’t want “hardness” in their armour and weapons, they wanted effectiveness. An excellent sword has a perfect mix of hardness (sharpness) and flexibility (so it doesn’t break).

Soft armor was not unknown to europeans – they had centuries of using scale, lamelar and padding. Metal armor was simply better.

As for the claimed benefits of padded armor – inch thick quilt will never be cooler or more flexible than well fitted and articulated plate and chainmail. Weight for weight, it might be more effective against the obsidian studded clubs used by the aztecs, but I doubt it.
The author uses western ships as an example of western obsession with “hardness”. In fact, the ships are designed to flex and bend in rough seas, using a controlled mix of hardness and softness. The same is true of modern bridges and skyscrapers.

Western civilization hasn’t rejected softness, but has instead mastered mixing hardness and softness.

For me, the best example of this is the Roman Fasces – a number of small rods bound together creating a stronger whole. https://en.wikipedia.org/wiki/Fasces

Everyone, thanks for the recent comments. In answer to a few of them:

The conquistadors actually didn’t fight the Aztecs or Incas in the Amazon — or in northern South America, except a small sliver of it. The Aztecs were in central Mexico and the Incas were on the west coast of South American, particularly high in the Andes. I don’t mean to say the conquistadors never fought in the jungle. They did. But Latin American offered them a lot of climate zones — and hot weather fighting was already familiar to the Spanish. So I don’t think heat and jungle alone explain their adoption of native cotton armor.

The point isn’t that Europeans preferred hardness to flexibility. The point is that European technology was good at making things hard and not particularly good at making things flexible, and Pre-Columbian technology was the opposite (relatively speaking).

Finally, yes, the Europeans had experience with fabric and leather armor. But their fabric and leather armor wasn’t as good as the Pre-Columbians’, due to lesser technology for making tough, flexible materials.

I’m sorry to doubt you, but do you have any evidence for this sweeping generalization? “But their fabric and leather armor wasn’t as good as the Mesomaricans’, due to lesser technology for making tough, flexible materials.”

Even a cursory review of 15th C literature on arms and armor shows that European military gear was based on highly evolved (quite literally by survival of the fittest) fabric and cordage, with steel only attached on the outside and then only for specific purposes. Lancers, for example, were heavily armored against other lancers footmen were not.

Consider for example this passage from the Ordinances of Louis XI of France (1461-1483), shortly before the Spanish colonial period began:

“And first they must have for the said Jacks, 30, or at least 25 folds of cloth and a stag’s skin those of 30, with the stag’s skin, being the best cloth that has been worn and rendered flexible, is best for this purpose, and these Jacks should be made in four quarters. The sleeves should be as strong as the body, with the exception of the leather, and the arm-hole of the sleeve must be large, which arm-hole should be placed near the collar, not on the bone of the shoulder, that it may be broad under the armpit and full under the arm, sufficiently ample and large on the sides below. The collar should be like the rest of the Jack, but not too high behind, to allow room for the sallet. This Jack should be laced in front, and under the opening must be a hanging piece [porte piece] of the same strength as the Jack itself. Thus the Jack will be secure and easy, provided that there be a doublet [pourpoint] without sleeves or collar, of two folds of cloth, that shall be only four fingers broad on the shoulder to which doublet shall be attached the chausess. Thus shall the wearer float, as it were, within his jack and be at his ease for never have been seen half a dozen men killed by stabs or arrow wounds in such Jacks, particularly if they be troops accustomed to fighting.”

Should there be any doubt about the sophistication of European military fabrics, consider this older passage (14th C):
How a Man Shall be Armed at His Ease when He Shall Fight on Foot (Hastings MS. [f.122b],
Modern English Spelling by Greg Mele)

“He shall have no shirt upon him but a doublet of fustian lined with satin, cut full of holes. The doublet must be strongly built and the points must be set about the bend of the arms. And the breast before and behind and the gussets of mail must be sown unto the doublet in the bend of the arm. And under the arm the arming points must be made of fine twine, such as men make for crossbow strings and they must be trussed small and pointed as points. And they must be waxed with cordweiners coode, and then they will neither stretch nor break. Also a pair hosen of worsted wool and pair of short bulwarks of thin blanket to put about his knees for the chafing of his leg-harness. Also a pair of shoes of thick cordwene and they must be fitted with small whipcords with three knots upon a cord and three cords must be sown fast onto the heel of the shoe and fine cords in the middle of the sole of the same shoe. And that there be between the frets of the heel and the frets of the middle of the shoe the space of three fingers.”

So, European military fabrics included linen, cotton, silk, fustian (linen warp with cotton weft), wool, and sinew–not to mention steel chain mail with each ring individually riveted, which is a very sophisticated fabric indeed. In addition, Europeans had a wider variety of leather hides (horse, cow, sheep, deer, goat, pig) for specific uses. What particular fabrics did the Mexica or other tribes (all different) produce that were measurably superior?

As for Spanish troopers reverting to cloth armor, why discount the obvious explanation that it was cooler in the tropical heat, and easier to maintain in the field far from the forges of home?

As for tension versus compression technology, it bears mentioning that the wooden hulls of the Spanish fleet were not the innovation that conquered half a planet. The intricate web of stays, guys, and sails supported by only the occasional compression mast and spar, were what enabled them to cross the ocean routinely.


David F. Tolin

Born in Washington state, Tolin graduated from the University of Washington in Seattle with a bachelor's degree in psychology in 1990. [3] He earned a Ph.D. in clinical psychology from the University of Arkansas. [3] [4]

In 2000, Dr. Tolin founded the Anxiety Disorders Center at the Institute of Living, where he continues to serve as director. [2] [6] He is also an adjunct professor of psychiatry at Yale School of Medicine. [7]

In 2014, Dr. Tolin served as president of the Society of Clinical Psychology, a division of the American Psychological Association. [8]

Dr. Tolin is an expert on cognitive behavioral therapy. He has published more than 100 scientific journal articles related to anxiety disorders, cognitive behavioral therapy, and related topics. [10] He serves as a principal investigator for the National Institutes of Health, [11] and has been a member of their scientific review committees.

Dr. Tolin has published five books. Buried in Treasures: Help for Compulsive Acquiring, Saving, and Hoarding, cowritten with Randy O. Frost and Gail Steketee, helps people assess their hoarding behaviors. [12]

Treating Trichotillomania: Cognitive-Behavioral Therapy for Hairpulling and Related Problems is a book about trichotillomania, written primarily for medical providers. [13]

Face Your Fears: A Proven Plan to Beat Anxiety, Panic, Phobias, and Obsessions helps the reader begin an exposure program. [14]

Doing CBT: A Comprehensive Guide to Working with Behaviors, Thoughts, and Emotions explains how cognitive-behavioral therapy can be effective help the behavioral, cognitive, and emotional components of some psychological issues. [15]

CBT for Hoarding Disorder: A Group Therapy Program Therapist's Guide describes how to lead a comprehensive cognitive-behavioral therapy program for individuals with hoarding disorder. It was cowritten with Blaise L. Worden, Bethany M. Wootton, and Christina M. Gilliam. [16]

Dr. Tolin was featured on the television series My Shopping Addiction, which was aired on Oxygen in 2013. [17]

Dr. Tolin was the host of the television series The OCD Project, which was aired on VH1 in 2010. [18] Dr. Tolin was the original psychologist on the A&E series Hoarders. [19] [20]

Dr. Tolin has also made multiple appearances on other television programs such as The Oprah Winfrey Show, Anderson Live, Good Morning America, Today, and The Dr. Oz Show. [21]


The English Are Celtic (or Something)

It looks like the Celtic hero, King Arthur, couldn’t keep his people from going English (assuming he even existed).

Traditional histories say that when the English migrated to Britain during the 400’s A.D., they almost completely replaced the native Celtic population. In other words, the Angles, Saxons, and Jutes — the Germanic peoples who became the English — wiped out the Celts or herded them all into Wales and Cornwall. The result: England’s people are almost completely Germanic, and so is the English language.

But a recent linguistic analysis tells a different story. In Our Magnificent Bastard Tongue (Penguin 2008), linguist John McWhorter points out several English grammatical rules found in no other language — except in the Celtic family. For instance, English grammar requires the word “do” in sentences like “How do they slaughter their pigs?” and “He does not know Edgar.” But “do” adds nothing. Those sentences would make as much sense without it: “How slaughter they their pigs?” and “He knows not Edgar.” No known modern language has this meaningless “do” requirement, except Welsh and Cornish: the Celtic tongues descended from Britain’s pre-Anglo language.

England & Wales around 600 C.E.

McWhorter argues that if the Celts added so much grammar to English, they must have lived alongside the Anglo-Saxons for centuries. It’s possible four million Celts lived in Roman Britain, while the invaders numbered only 250,000 or so. So the Celts made up the majority. They must have adopted a Celticized version of their foreign rulers’ language and come to call themselves “English.”

Genetic testing backs up McWhorter’s analysis. It turns out less than 5% of English genetic material can be traced to invasions across the North Sea.


About David W. Tollen

David W. Tollen is an attorney and one of the country's best-known experts on information technology contracts -- and he teaches IT contract drafting and negotiation at the U.C. Berkeley Law School. Separately, David is also the author of award-winning novels that use fantasy to teach history and science, for young people.

David is the author of THE TECH CONTRACTS HANDBOOK: CLOUD COMPUTING AGREEMENTS, SOFTWARE LICENSES, AND OTHER IT CONTRACTS FOR LAWYERS AND BUSINESSPEOPLE -- now in it's 3rd edition, just released in 2021. It's published by the American Bar Association, and the prior editions have consistently ranked as the #1 bestseller for the IP Law Section of the ABA. THE TECH CONTRACTS HANDBOOK is a how-to guide for drafting and negotiating IT agreements, written in simple English.

David is also the founder of Tech Contracts Academy, where he teaches IT contract drafting and negotiation, for lawyers and businesspeople. And he is the founder of Sycamore Legal, P.C. in San Francisco, where he and his staff provide legal services related to software licensing and other IT contracts. He also serves as an expert witness in litigation on these same topics.

Further, David is the author of THE JERICHO RIVER, a young adult novel that uses fantasy to teach world history. THE JERICHO RIVER won first place at both the London Book Festival and the Next Generation Indie Book Awards, as well as a bronze medal in the Readers' Favorite Book Reviews and Awards Contest, among other honors.

David's second novel is SECRETS OF HOMINEA. Another multiple award-winner, it's a middle grade fantasy -- a tale of giants, gnomes, queens, and adventurers -- and it teaches science and history.


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