Shakespeare's Richard II as landlord and wasting tenant.
That the law of real property occupies a prominent place in Shakespeare's Richard H has been frequently remarked.(1) For example, Bolton argues that the play "makes central use of property law as it stood in the late fourteenth century" (55) and Gohn observes that, among other things, Richard "set[s] aside the law of property, perhaps the most sacred form of law to Medieval and Renaissance Englishmen" (959).(2)
One aspect of this preoccupation with property law in the play - the one I shall address in this essay - is the paradoxical depiction of Richard as, on the one hand, "landlord," and, on the other, perpetrator of "waste" - something which, conventionally, only a "tenant" can be. Facets of this paradox have been remarked previously. Donna Hamilton addresses some implications of Gaunt's accusation that Richard is "Landlord of England . . . not king" (II. i. 113),(3) and both Bolton and Gohn take note of the doctrine of "waste," alluded to at various points in the play. Bolton considers the "connection between the reversion of an estate and a tenant's waste on it" that "surfaces" in the play (61), and Gohn, in a lengthy footnote, discusses "legal real estate imagery" in Gaunt's speeches in II. i, including "The waste is no whit lesser than thy land" (II. i. 103).(4)
Some of Bolton's insights are particularly germane to my concerns here. He says that "Richard, though he is in reality lord paramount, has abused the country as though it were land 'holden' and he were its wasteful tenant" (62): this is, essentially, the thesis that I want to develop. I believe, however, that there is considerably more to be said about it than Bolton says. For one thing, it is not his central thesis: he is concerned to demonstrate how several different legal references in the play might be illuminated by looking at cases reported in the Year Books of the historical Richard's reign. Thus, he does not fully explore the ramifications of his insight. Further, he does not really give a coherent picture of the law regarding waste: the cases he relies on offer a rather fragmentary account of the doctrine. Moreover, some of his comments seem rather strange or imprecise, at least from a legal perspective, for example, "Richard is wasting his tenement, so Bolingbroke seizes him"(5) and ". . . now time is 'wasting,' or suing for waste, its injurious tenant [namely, Richard]" (63).(6)
My project, then, is to consider Shakespeare's portrayal of Richard as, at once, "landlord" of England - in more than one sense, as we shall see - and as a tenant who "wastes" what he holds, both the "land" itself and what can be termed the "Dignity royal." In other words, I shall attempt to elaborate upon and give greater precision to Bolton's insight. As I have already noted, such a thesis involves a paradox. In Blackstone's words,
[t]he grand and fundamental maxim of all feodal tenure is this; that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown . . . and the grantee, who had the use and possession, according to the terms of the grant, was stiled the feudatory. or vasal, which was only another name for the tenant or holder of the lands." (Blackstone 2. 53)
Waste - at least actionable waste - can, as we shall see, be committed only by a tenant, and, indeed, only by certain classes of tenant.(7) So, Bolton is correct when he observes that "Richard as lord paramount is the one person in the kingdom who cannot be a tenant, so no literal writ of waste can lie against him" (63).
How to resolve the paradox? One way is that advanced by Bolton: eschew "literalness" and see Shakespeare as simply likening Richard's conduct to that of an actual tenant who commits waste. In other words, understand Shakespeare merely to be invoking a suggestive analogy, which cannot be taken very far without collapsing in internal contradiction.
A more searching account of the paradox is possible if one recalls Ernst Kantorowicz's discussion of the doctrine of "the king's two bodies." In the first chapter of his book, Kantorowicz cites a number of cases from the sixteenth-century law reports of Edmund Plowden as illustrating the understanding of this notion in Shakespeare's time. Thus, in the Case of the Duchy of Lancaster, we learn that "the King has in him two Bodies, viz a Body natural, and a Body politic," the former mortal, the latter "a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for the Direction of the People, and the Management of the public-weal" (4 Eliz. I 1 Plowden 212 at 213, 75 English Reports 325 at 326).
One implication of this, as we are told in the case of Willion v. Berkley, is that "the King has two Capacities, and he comes to some things meerly as King . . . and to some other Things he comes not as King, as if Lands descend to him from any of his Ancestors" (4 Eliz. I 1 Plowden 222a at 242, 75 English Reports 339 at 370). Although the case does go on to intimate that land which comes to the king in his body natural is, because of the unity of the two bodies, appropriated to the King in his body politic, the ambiguity of the monarch remains (Sir Thomas Wroth's Case 14 Eliz. 1 2 Powden 452 at 456, 75 English Reports 678 at 683-84) - an ambiguity which offers potential for internal disjunction.(8)
Another implication of the doctrine of the king's two bodies is that, as to the body politic, "the King never dies, and his natural Death is not called in our law . . . the Death of the King, but the Demise of the King, not signifying by the Word (Demise) that the Body politic of the King is dead, but that there is a separation of the two Bodies, and that the Body politic is transferred and conveyed over from the Body natural now dead, or now removed from the Dignity royal to another Body natural" (Willion 234).(9) One thing worth remarking about the language here is that it treats what happens to the "Body politic" in terms of property law: it is "demised," "transferred," "conveyed."(10) Indeed, Blackstone tells us that the king's "natural dissolution" is called "his demise; demissio regis, vel coronae: an expression which signifies merely a transfer of property" (1:242). Although the cases do not say this in so many words, the "Body politic" or "Dignity royal" is occupied or held first by one "body natural," then by another, each being a kind of "tenant" for a time, or for life.
In his second chapter, Kantorowicz goes on to consider Richard II in terms of the doctrine of the king's two bodies; indeed, he argues that the play is "the tragedy of the King's Two Bodies" (26). Essentially, his thesis is that the play depicts the separation of the body natural from the body politic, finally revealing the "feeble human nature of [the] king" (30). He says nothing, however, about the particular point I am addressing here. If Kantorowicz is correct in identifying the doctrine (which he conjectures must have been part of the "ordinary and conventional" discourse of "English jurists of that period" 20) as central to the play, it is not implausible that it should apply to this point as well. In short, the paradox might be explained by saying that Richard, who in his "Body politic" is lord paramount, is in his body natural a tenant who holds or occupies the "Dignity royal" and its appurtenances; as tenant, he commits waste upon that which he holds, the consequence being that he is deprived prematurely of that holding.
Having thus set the stage, so to speak, I want to consider in more detail how Richard, though "landlord," might nevertheless be as well a wasting tenant. In order to do this, I must first say something more about the doctrine of waste.
Bolton is at pains to distinguish the law as it stood in Richard's time from the law as it stood in Shakespeare's time - hence, his reliance on the Ricardian Year Books. However significant this distinction may be in some areas,(11) one might question its importance in relation to waste, the law of which, though it no doubt developed between the two periods, remained in its fundamentals fairly constant. Thus, Sir Edward Coke, in his authoritative discussions of the law of waste - discussions which are "spacious" "for that [this learning of waste] is most necessary to be knowne of all men" (I.54b) - takes as points of reference the Statute of Marlbridge (1267; 52 Hen. III c. 23) and the Statute of Gloucester (1278; 6 Edw. I c. 5), which long predate Richard's reign.(12) And Blackstone, writing in the late eighteenth century, suggests that, in its basic aspects, the law of waste had remained unchanged "for above five hundred years past" (Blackstone 2:283) - the touchstones being, again, these two statutes.
The crucial effect of the Statute of Marlbridge was to enlarge the categories of persons who were liable for waste. Under the old common law, these categories were limited to tenants by the curtesy, tenants in dower, and guardians in chivalry (Blackstone 282ff).(13) The statute provided: "Also fermors, during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing belonging to the tenements that they have to ferm."(14) Coke explains that the word firmarii ("fermors," or farmers) comprehends "all such, as hold by lease for life, or lives, or for yeares" (II. 145). He observes that the reason for this extension of the application of the doctrine was that "waste and destruction is hurt full to the common-wealth" (II. 145) - a point that has some resonance with regard to Richard II.
The effect of the Statute of Gloucester was to create new remedies in cases of waste:
a Man from henceforth shall have a Writ of Waste(15) in the Chancery against him that holdeth by Law of England, or otherwise for Term of Life, or for Term of Years, or a Woman in Dower; and he which shall be attainted of Waste, shall leese the Thing that he hath wasted, and moreover shall recompense thrice so much as the Waste shall be taxed at.(16)
What is most noteworthy here for our purposes is that the wasting tenant is liable to lose the thing that he has wasted.(17) And, again, in his commentary on this statute, Coke emphasizes that waste is not simply a private wrong, but is "hurtfull to the common-wealth": "this excellent law" was "enacted pro bono publico, for preservation of buildings for the habitation of mankinde, and of woods and timber, sometime one of the beautifull, and profitable ornaments of England" (II. 306).
Coke tells us as well that neither the Statute of Marlbridge nor the Statute of Gloucester created new kinds of waste; rather they provided "new remedies for old wastes." To discern what is waste and what is not, one must resort to the common law (II. 300). In the First Part of the Institutes, he gives a number of instances of what constitutes waste, of which Blackstone's definition is a fairly adequate summary:
waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary or permissive; the one by actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. (3:223)
Particularly noteworthy here are the facts that waste affects the integrity of the thing itself, not simply its product, and that waste can occur as a result of either positive acts or neglect.(18)
Although Blackstone notes that several categories of persons may bring an action for waste, "the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years" (3:224);(19) the effect of waste on the inheritance is that "it tends to mangle and dismember it of it's [sic] most desirable incidents and ornaments" (3:225). In Coke's words, the action is available to "him that hath the immediate estate of inheritance, for waste or destruction in houses, gardens, woods, trees, or in lands, meadows, &c. or in exile of men to the disherison of him in the reversion or remainder" (I. 53a).
With this context in mind, we can now look more closely at how "waste" figures in Richard II. Recall that Richard, in his body natural, is a kind of "tenant"; what he holds is the Kingship, which entails being lord of the land, literally, but also occupying the "Dignity royal." The "waste" he commits can be seen to affect not only the land as a physical inheritance, but also the substance of the Kingship itself.
Bolton suggests that one aspect of the "waste" in the play is Richard's seizure and disposal of Bolingbroke's lands. Indeed, some of the language associated with this process is suggestive of waste; Bolingbroke tells Bushy and Green, "you have fed upon my signories, / Dispark'd my parks and fell'd my forest woods, / From my own windows torn my household coat, / Ras'd out my imprese, leaving me no sign" (III. i. 22-25). As we have seen, waste typically (or, to use Coke's word, "properly") "is in houses, gardens, . . . in timber trees" (Coke I. 53a). Certainly, we have the cutting of trees, or destruction of woods, here.(20) Further, if the editor of the play in The Riverside Shakespeare is right in saying that "Dispark'd" means "put to uses unrelated to forestry and hunting," this too could constitute waste - analogous to a change in the course of husbandry (Coke I. 53b). Thus, in the case of Lord Darcy v. Askwith, we are told that "it is generally true, that the lessee hath no power to change the nature of the thing demised; he cannot turn meadow into arable, nor stub a wood to make it pasture . . . ; nor suffer ground to be surrounded, or decay the pale of a park: for then it ceaseth to be a park" (1618; Hobart 234, 80 English Reports 380).
The "rasing" out of the imprese is more doubtful; the common law, materialistic as it was in at least some of its aspects, did not incorporate within the concept of waste the mere erasure of a sign. However, such an erasure certainly can be taken as a representational dismemberment of Bolingbroke's inheritance.
While this conduct, or some of it, could constitute the substance of waste, satisfying other criteria of the legal doctrine is more problematic. As we have seen, the typical players in an action for waste are a tenant for life (or some other limited period of time) and the person entitled to the reversion or remainder, that is, the residual interest after the "particular" estate comes to an end. Here, Richard is not a tenant for life of Bolingbroke's inheritance; nor is Bolingbroke, strictly speaking, a reversioner or remainderman: he is, more simply, an heir whose inheritance has been "intercepted" by the king.(21) Other relationships that could give rise to an action in waste are suggestive of, if not exactly congruent with, the situation in Richard II. By the statutes 28 Edward I ch. 18 (1300) and 14 Edward III ch. 13 (1340), for example, provision is made against waste of wards' lands by those having care of them. The preamble to the latter reads:
whereas in the Great Charter it is contained, that after the Death of the Ancestors, which hold of the King in chief, and whose Heirs be within Age, that the King shall keep the Lands without Waste and Destruction, and restore them wholly to the Heirs when they come to their full Age. And against God and Right, and the said Establishments, [those] to whom the Lands of Such Heirs have been committed, have done Waste and Destruction, to the great Mischief . . . of the Heirs of Earls, Barons, and other great Men . . ., and nevertheless [such persons] have had no Conscience to do such Destructions.
This sounds roughly analogous to the situation in Richard II: Bolingbroke's lands have come into the possession of persons who have "done Waste and Destruction," and who are portrayed as having "no Conscience to do such Destructions." However, these lands did not come into the hands of the wasters because of Bolingbroke's nonage, but by a rather different process.
Thus, there may be technical obstacles to bringing what happens to Bolingbroke's lands within the strict doctrine of waste. But if we are to believe Coke about the importance of the doctrine and the values that it incorporates, it is likely that the enormity of Richard's seizure of Bolingbroke's inheritance would have been aggravated, in the minds of an Elizabethan audience, by the physical insults committed against it - irrespective of whether that audience thought that Bolingbroke might actually be able to bring an action in waste against anybody. Arguably, waste is waste, regardless of whether it is technically actionable.(22)
Another way of assimilating what happens to Bolingbroke's inheritance to the waste perpetrated by Richard is to see it as part of Richard's maladministration of the kingdom - his wasteful conduct as tenant or occupant of the "Body politic" of King - to which I now turn.
Unlike Bushy and Green, whose conduct appears, at least in some of its aspects, to amount literally, or physically, to waste, Richard is portrayed as having committed waste essentially in a figurative sense. To be sure, we are constantly reminded of the land of England, in a physical sense, in the play, and, as Gohn points out, we are frequently told that it is Richard's land, specifically. Thus, Richard speaks of "our kingdom's earth" (I. iii. 125), "our territories" (I. iii. 139), "our fields" (I. iii. 141), "Dear earth" (III. ii. 6), "my earth" (III. ii. 10), "my gentle earth" (III. ii. 12); Bolingbroke refers to "England's ground," "sweet soil" (I. iii. 36), and "fair King Richard's land" (III. iii. 47); Gaunt calls England "this blessed plot, this earth" (II. i. 50). Indeed, Gaunt likens England to a dwelling ("the silver sea, / Which serves it in the office of a wall, / Or as [a] moat defensive to a house" - II. i. 46-48), an image which is picked up later in the garden scene, where England ("the whole land") is "a sea-walled garden" (III. iv. 43). While we are not allowed to forget this physical aspect of Richard's kingdom and its degradation, the "waste" that he commits is primarily in the form of affronts to the political order.
The word "waste," with reference to the political order, is explicitly associated with Richard at two points in the play. The first of these I have already quoted: Gaunt, upbraiding Richard, says:
A thousand flatterers sit within thy crown, Whose compass is no bigger than thy head, And yet, [incaged] in so small a verge, The waste is no whit lesser than thy land. (II. i. 100-03)
This is an intriguing passage; suffice it to say for our purposes that the effect of Richard's attending to "flatterers" is the wasting of his land - no doubt with a complex of connotations of "waste." What he is doing is "wasting" his land, in the sense I have been discussing; at the same time, "waste" could suggest "loss" - as, indeed, is indicated shortly after: [You, Richard] "Which art possess'd now to depose thyself" (II. i. 108). As we have already noticed, there is a connection between these two senses: according to the Statute of Gloucester, the penalty for waste is the loss of the thing wasted.
It is in this same speech that Gaunt tells Richard, "Landlord of England art thou now, not king" (II. i. 113) - an accusation to which I have already alluded. I have, as well, signalled the ambiguity inherent in this word. From one perspective, the King is the universal "landlord" - as we have seen, all land is held from him, directly or indirectly. Yet, in this line, "landlord" is a pejorative term, contrasted with "king."
The pejorative sense of "landlord" is associated with Richard's having "let this land by lease" (II. i. 110), with his having leased it out "Like to a tenement or a pelting farm" (II. i. 60). Again, it is not immediately obvious what is objectionable about "tenements" or "farms." In a broad sense, a "tenement" is that which is held, and any grant of land (originally from the Crown) creates a tenement; any land which anyone holds is a tenement. Gohn, again relying on the OED, notes that "as early as 1593" the word meant "a rented suite of rooms and apartments" and argues that this must have been the meaning that Shakespeare intended (957n.). Frankly, I do not find this argument entirely satisfying, partly because (whatever the OED says) I doubt that the word tenement would have struck the Elizabethan ear as referring to low-rental urban housing in the way that it tends to strike the contemporary ear. My sense is that Shakespeare's message depends not on his audience's thinking that a tenement was a rented suite of rooms, but on their knowing that what he was referring to was a leasehold tenement in the ordinary broad sense.(23)
Similarly, the word "farm," in itself, is not obviously a term of vilification - although Shakespeare clearly intends it to carry, a negative connotation, reinforced by the adjective "pelting." But, as we have already seen, "farm" was a recognized legal term - used, for example, in the Statute of Marlbridge (where, incidentally, what the farmer has to farm is a "tenement"), apparently without any suggestion of opprobrium. Coke tells us that "farmers" simply "doe comprehend all such as hold by lease for life, or lives, or for yeares" (II. 145). That a "farm" was something specifically leased is made clear in the Elizabethan case of Wrotesley v. Adams (1 Eliz. I 1 Plowden 187, 75 English Reports 287), in which the question "what is a Farm" is explicitly considered. A farm, we are told, at least in one of its significations "is a collective Word, consisting of divers Things collected together, whereof one is a Messuage, and the others are the Lands, Meadows, Pastures, Woods, Commons, and other Things lying or appertaining thereto." However, "all this does not make it to be called a Farm, if it has not another Thing also; and that is, that it has been let or demised to another for Life, for Years, or at Will" (Wrotesley 195). That is, it is not so much the physical components that make a farm, but the fact that they are held temporarily, usually by lease. Citing the Statute of Marlbridge, the case continues: "But a Farm is oftentimes used in other Senses, for as to the Lessee only he may be said to be a Farmer of whatever Thing he has in Lease; and that which he holds may, as to him, be called his Farm" (195). Indeed, the case goes on to suggest that, in the statute, "farm" is virtually synonymous with "lease" (195). This sense of "farm" (in the verb form) is fairly evident in Richard's "We are enforc'd to farm our royal realm" (I. iv. 45); an essentially equivalent expression is Gaunt's "let by lease" (II. i. 110).
But what is so bad about Richard's "farming" the land, and how does this relate to the question of waste?
The connection at one level is suggested by Nathaniel Bacon's comment on the historical (as opposed to the dramatic) Richard that "the King . . . leaves the noble Crown of England in the base condition of a Farme, subject to strip and waste by mean men" (Continuation 12-13). That is, by leasing the kingdom, Richard exposes the realm to the wasting conduct of the lessees, or farmers. But this does not suggest that there is anything inherent in the act of leasing itself that is objectionable: presumably, if the "farmers" were good husbandmen, there would be no waste in this sense.
More radically, however, any change in "the nature of the thing demised" can amount to waste: thus, it would be waste to convert a "royal realm" into a "pelting farm." But we should recall that Richard is not tenant of the land, so much as he is tenant of the Kingship: thus, for example, in the passage quoted above, Bacon complains not that the land has been made into a farm, but that the Crown has. Two aspects of this process are worth remarking.
The fast is that Richard subverts the Kingship by acting as landlord in the sense of "lessor" rather than of "lord paramount." Simpson tells us that early leases were essentially mechanisms of investment, frequently "designed to evade the ecclesiastical prohibition of usury," and that in the early literature the "termor" (farmer, or lessee) is "treated as a thoroughly undesirable person" (72).(24) Be that as it may, Simpson points out that, in the lease situation, "whereby an individual hired land in order to exploit it economically, no feudal relationship of subservience and protection, sealed by homage, was included: the social significance of the transaction was quite different" (73). For the King, then, to become a landlord in this sense would be ostensibly to compromise his Kingship.
The second point is that in "farming" specifically his Crown, Richard further degrades his Kingship. Some of the implications of this are made crudely explicit in the anonymous Thomas of Woodstock,(25) in which, for example, Green tells Richard that when he farms out "the kingdome to us four," he will not have to "trouble" himself "[w]ith any business"; moreover, "wele governe the land moste rarely" (ll. 1876-78). In other words, Richard is not simply leasing land, or granting tenements, but he is giving over what appertains to him as King, abdicating his stewardship and permitting others effectively to occupy his office. That the word "farm" could be used in the sense of leasing an office is evidenced by a statute of 1402 providing that "the searchers in every port of England shall be charged and sworn, that they shall not let to ferm their offices of searching, nor occupy the same by a deputy" (4 Henry IV, ch. 21)(26) - on pain of being put out of office forever.
To recur to the framework suggested by Kantorowicz, Richard, who in his body natural is the occupant or tenant of the King's body politic, by farming out his "royalties," his prerogatives and responsibilities, effectively changes the relationship of King to subject and relinquishes incidents of the "Dignity royal" to base men. By subverting the essential nature of the King's body politic, he debases it or commits waste upon it.
The second point at which the word "waste" occurs in connection with Richard's administration of the realm is in the garden scene, which, as we have already noticed, resonates with some of Gaunt's speeches in II. i. One of the gardener's men has just complained that while they, "in the compass of a pale / Keep law and form and due proportion, / Showing as in a model our firm estate," the "sea-walled garden, the whole land,"
Is full of weeds, her fairest flowers chok'd up, Her fruit-trees all unprun'd, her hedges ruin'd, Her knots disordered, and her wholesome herbs Swarming with caterpillars (Ill. iv. 40-47).
The gardener observes, however, that the expected consequences of this situation have now materialized: Bolingbroke has "seiz'd the wasteful King" (III. iv. 55), "[hie that hath suffered this disordered spring" (III. iv. 48). At the end of the same speech, the gardener says that if Richard had lopped away some of the "superfluous branches" in the kingdom, "himself had borne the crown,/Which waste of idle hours hath quite thrown down" (III. iv. 63-66).
To be sure, the words "waste" and "wasteful" here are capable of bearing connotations other than the one I am foregrounding. However, I believe that the salience of this one is unmistakable, given the context of description of a fairly typical example of waste in the legal sense. We will recall from Coke that "[w]ast properly is in houses, gardens, . . . timber trees" (my emphasis), so that "[i]f the tenant cut downe or destroy any fruit trees growing in the garden or orchard, it is waste" (I. 53a). In this scene, there is no mention of the active cutting down of "fruit trees" - or their human analogues, but, as we will recall as well from Coke, waste may be voluntary or permissive. Coke gives no example of permissive waste specifically in a garden, but he does provide a number of other illustrations: "to suffer the pale to decay, whereby the deere is dispersed, is waste" (I. 53a), "[i]f the tenant suffer the houses to be wasted," and "[i]t is waste to suffer a wall of the sea to be in decay" or not to repair "the bankes or walls against rivers, or other waters, whereby the meadows or marshes be surrounded, and become rushy and unprofitable" (I. 53b). Certainly, Richard seems to have permitted the realm to become "unprofitable" through his neglect.
Arguably, in terms of this extended garden metaphor, Richard has been guilty of more than just permissive waste. For example, the Duke of Gloucester, "One flourishing branch of [Edward III's] most royal root . . . Is hack'd down, and his summer leaves all faded" (I. ii. 18-20) - apparently with Richard's connivance; Gaunt accuses Richard (Edward's "son's son") of "destroying" Edward's sons. It is perhaps worth recalling here Blackstone's images of waste as involving the "mangling" and "dismembering" of the inheritance. Not only has Gloucester been "hack'd down," but Bolingbroke has been "gelded of his patrimony" (II. i. 237). That which was flourishing has been destroyed, that which was fecund has been rendered unfruitful. We know from the law that "If a man cuts trees, and after suffers the germans to be destroyed this is a double waste" (Viner 444).(27) This seems to be what Richard, figuratively, has done. Ironically, of course, he himself is "gelded" of his patrimony: he loses his Crown, and all his Queen is able to give birth to is "woe" (II. ii. 62-66); what she has "in reversion" is only grief or woe (II. ii. 3840). Indeed, it might be argued that the banishment of Bolingbroke is itself a kind of "voluntary" waste, for, as Coke says, "exile or destruction of villaines, or tenants at will, or making them poore, where they were rich when the tenant came in, whereby they depart from their tenures, is wast. And yet the statute of Gloucester speaketh not of exile, but it is comprehended under the general word of wast" (I. 53b). Bolingbroke is obviously not a "villaine" or a "tenant at will," but his exile and impoverishment by Richard may suggest another dimension of the king's "wastefulness."
Richard, thus, can be seen as one who commits "waste" in the legal sense. The word is associated with him at several points in the play, and his conduct corresponds, either literally or figuratively, to the kind of conduct the law identified with waste.
I turn now to the consequences of the commission of waste.
As we have seen, recourse against the wasting tenant typically lies in "him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being," or, in other words, "him to whom the inheritance appertains in expectancy" (Blackstone 3:224-25).(28) We know that Richard himself describes Bolingbroke in these terms, when he complains of the latter's courting of the common people, "As were our England in reversion his/And he our subjects' next degree in hope" (I. iv. 35-36).(29) And we know that, as a result of the Statute of Gloucester, one consequence of the commission of waste is the forfeiture of the thing wasted. In general terms, this is the situation that Shakespeare depicts: Richard, the wasting tenant for life, is forced by "him who hath . . . the reversion" to lose the thing he has wasted.
There are, again, difficulties of congruence with a strict analysis of the legal doctrine of waste - difficulties that can at best be tentatively met. For one thing, although the word "reversion" is suggestively applied to Bolingbroke, it is hardly appropriate to describe the heir to the throne as a "reversioner." Indeed, it is doubtful that Bolingbroke is Richard's heir in the relevant sense, for "no one is the heir of a living person."(30) Further, if Richard is only a tenant for life of the Crown, Bolingbroke can be no more than this himself, in expectancy. Blackstone tells us that "he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury" (3: 225). A possible response to this objection is suggested by what follows immediately in Blackstone: ecclesiastics "who are seised in right of their churches of any remainder or reversion, may have an action of waste" - in which case the writ reads not ad exhaeredationem ipsius, but ad exhaeredationem ecclesiae" (3: 225). By analogy,(31) and recalling Kantorowicz, one might say that the reversion is in the King, that, if Bolingbroke has this reversion, it can only be in right of the King, and if he can act against the king-tenant, it is only in this representative capacity.
Another problem is that the "reversioner" here does not exactly bring a writ of waste against Richard. Coke tells us that "he in the reversion" had authority "either by himself, or by another to enter into the houses or lands so letten for life or years, to see if any waste be done" (II. 306); however, this was only to ascertain whether waste was being committed. Self-help was not permitted: "the place cannot be recovered without a plea" (I. 53b). Again, one might make the (probably tenuous) argument that the circumstances here are unusual: here it is the king himself, in some ways the embodiment of the law, who is the wasting tenant. Moreover, one form of the waste that he has committed is a kind of lawlessness; he has not kept "law and form and due proportion" in the realm. Therefore, the ordinary law is not available to Bolingbroke in this case.
Again, such analyses point to the limits of what might be called "legal literalism." However we stretch the doctrine of waste, we cannot make the situation in the play strictly congruent with it: the doctrine has never applied, literally, to a monarch's abuse of the "Dignity royal." The notion of Richard as wasting tenant is ultimately figurative. Nevertheless, the allusions to his "waste" and to Bolingbroke's "reversion" are laden with implication, and in all likelihood would have resonated with Shakespeare's original audience. They point to a dimension of meaning in the play that has not hitherto been as fully foregrounded as I have endeavored to foreground it.
1 See White 233ff; Clarkson and Warren; Hexter; Bolton; Gohn.
2 Hexler makes a similar point in explaining why Shakespeare has Bolingbroke "justify all his actions . . . on the ignoble grounds that he has suffered wrongful loss of property at the king's hands" (11-12).
3 She does not, however, make the connection with "waste."
4 His concern with this point is incidental to his central theme - as his relegation of it to a footnote suggests.
5 The strangeness here lies in the suggestion that seizing a person might be a remedy for waste.
6 What is strange here is the suggestion that wasting and suing for waste might be equivalent notions. At the same time, Bolton is, I believe, correct to make the connection between Richard's "I wasted time, and now doth time waste me" (V. v. 49) and other instances of "waste" in the play. Indeed, aspects of Richard's waste of time are directly implicated in his "waste" of the Kingship. York tells him: "Take Herford's rights away, and take from Time / His charters and his customary rights; / Let not tomorrow then ensue today" (II. i. 195-97). Richard is portrayed as subverting the incidents of time itself. However, the question of Richard's "waste of time" is beyond the scope of the present essay.
7 Thus, Blackstone tells us that the "absolute tenant in fee simple" "may commit whatever waste his own indiscretion may prompt him to, without being impeachable or accountable for it to any one" (3: 223-24).
8 Thus this case distinguishes service which touches only the natural body of the king (as, for example, medical attendance or instruction in grammar and music) from that which touches "the Majesty of the body politic."
9 Compare Wroth 456, making essentially the same point. Blackstone notes that the death of the king was not the only form that such demises might take - so, when Edward IV was briefly "driven from his throne" by the Lancastrians, "this temporary transfer of his dignity was denominated his demise." (1: 242).
10 In Hill v. Grange, 3 & 4 Philip and Mar), 1 Plowden 164 at 177, 75 English Reports 253 at 273, we are told that the king who dies "thereby demises the Kingdom to another."
11 Bolton refers, for example, to the quite fundamental change in the law wrought by the Statute of Wills (1540).
12 A number of other medieval statutes dealt with the issue of waste: 9 Henry III ch. 4 (1225) (waste by guardian in ward's lands); 13 Edward I ch. 14 (1285) (procedure in an action of waste); 13 Edward I ch. 22 (1285) (action for waste by tenant in common); 20 Edward I stat. 2 (1292) (heir of reversioner bringing action for waste); 28 Edward I ch. 18 (1300) (escheators committing waste in wards' lands); 14 Edward III (1340) (waste in wards' lands); 11 Henry VI ch. 5 (1433) (tenant granting his estate, taking profits, and committing waste).
13 See also Coke 2. 299. For an early discussion of the law regarding waste committed by a woman holding land in dower, see Henry of Bracton 4:595ff.
14 The original read: "Item firmarii tempore firmarum suarum vastum, venditionem, vel exilium non facient de domibus, boscis, vel hominibus, nec de aliquibus ad tenementa quae ad firmam habent spectantibus."
15 Gohn, relying on the OED, says that the word "waste" in the legal sense had been current since at least 1414 (957n.). Clearly the word was appearing in primary legal materials (albeit in "law French") long before that.
16 The original reads: "len eit desoremes bref de Wast en la Chauncelrie, [fet de ceo sur] home qi tient par la lei de Engleterre, ou en autre manere a terme de vie, ou a term de annz, ou femme en doweire, e celui qi serra ateint de Wast perde la chose [qil ad] wastee e estre ceo face gre del trebble de ceo qe le Wast serra taxe."
17 See Coke 2. 303 ("the purview of this act is, that he shall lose the thing that he hath wasted"), and Blackstone 2:283 (wasting tenants "shall lose and forfeit the place wherein the waste is committed").
18 Compare Coke 1.53a.
19 The distinction between a reversion and a remainder is that the former reverts or goes back to the original grantor when the "particular" or temporary estate ends, while the latter goes to a third party, specified in the original grant.
20 See Coke 2.303.
21 More technically, upon the death of a tenant-in-chief (Gaunt), the King was entitled to primer seisin of the tenant's lands, until the tenant's heir "recovered" them, upon payment of a money amount ("relief') or the fulfillment of other requirements ("suing for livery"). See Simpson 16-17. Richard will not permit Bolingbroke to "recover" his inheritance.
22 Recall that Blackstone says that the acts of waste committed by an absolute tenant in fee simple are "undoubtedly damnum, [but] damnum absque injuria" (3: 224).
23 Bolton argues for this broad meaning as well - on the basis that the only meaning of "tenement" in Richard II's time was "a holding" (62). As I have already intimated, I doubt that such precision is necessary: Did Shakespeare, or his audience, really say: "Now, let's remember that what is at issue here is property law as it stood at the end of the fourteenth century'"?
24 Citing des Longrais.
25 Reproduced in Bullough.
26 The original is: "les sercheours en chescun port d'Engleterre soient chargiez & jurrez qils ne lessent a ferme leur office de sercherie ne les occupient par deputee."
27 citing a case from the ninth year of Henry VI's reign.
28 Coke says that "No person shall have an action of wast, unlesse he hath the immediate state of inheritance." (1. 53b.)
29 Earlier, Richard had ironically, in what he regarded as a counterfactual conditional, referred to Bolingbroke as "my kingdom's heir" (I. i. 116).
30 The maxim is nemo est haeres viventis. See Blackstone 3:225.
31 The analogy between the King and ecclesiastics is made explicit by finch: "the king hath two capacities, a bodie naturall . . . and a bodie politique. . . .So a Parson is a corporation by the Common Law, and hath two capacities" (87-88).
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Kantorowicz, Ernst. The King's Two Bodies: A Study in Mediaeval Political Theology Princeton: Princeton UP, 1957.
Simpson, A.W.B. A History of the Land Law. 2nd ed. Oxford: Clarendon, 1986.
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Klinck is a professor of law at McGill University. The author of The Word of the Law (1992), he also holds a doctorate in English literature with specialization in Renaissance drama.
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|Author:||Klinck, Dennis R.|
|Date:||Jan 1, 1998|
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