by Robert Bell.
Originally published in St. James's Magazine (W. Kent) vol.1 #3 (Jun 1861).
A question, directly affecting the interests of the Stage, and no less directly affecting a larger consideration, the amusements of the people, has recently been raised in the Green-rooms of the London theatres, and brought to issue, more or less conclusively, before certain legal and magisterial tribunals. It has hitherto been discussed, if it can be said to have been discussed at all, only from the professional or technical point of view; and it is, therefore, necessary to show that it presents other aspects of more general importance. The question may be stated in half-a-dozen words—The right of acting Stage Plays. This looks simple enough, but a moment's reflection will discover that under its simplicity lie several somewhat knotty problems. Before we can determine any thing, for instance, about the right of acting Stage-plays, we must determine what it that legally constitutes a Stage-play. It is idle to talk about trespasses, we have laid down our boundaries. Rights imply wrongs; and we must understand their exact operation before we can adjust a scale guarantees and penalties. More important than all is it to be quite clear as to the kind of right we are contending over. Is it a right by statute? Is it a right by usage? Is it a moral right? Are we bound from the start to accept the right as being conceded on all hands, so that we must consider the discussion limited to the bare question of infringement? Or are we at liberty to dig up the foundations of the proposition, and discuss the reasonableness, justice, or utility of the right on which we make our stand? It is just possible, that while we are expending all our ingenuity in endeavouring to decide whether such a proceeding is, or is not, an invasion of such a right, we may be overlooking a far more material question—to wit: Whether the right itself should be maintained?
It is not so easy, therefore, as it might seem at a glance, to come to a safe conclusion on the question of acting Stage-plays. We must not only be accurate as to the terms and scope of the argument, in order to form a comprehensive conception of its different bearings, as it touches managers and actors, and the public over and above all; but we must go back upon history and experience for a practical insight into the working of theatrical rights generally. How the question grew into its present form may be briefly traced.
Something like eighteen years have elapsed since the right of acting Five-act Plays, Tragedies, mixed Dramas, and Comedies, was confined to three houses, protected by patents—Drury Lane, Covent Garden, and the Haymarket. So jealously, indeed, was this privilege conserved, that even the monopoly itself was kept within strict limits. The Haymarket was not allowed to be open more than four months in the year. By degrees, however, this restriction was relaxed, until at last the licence was extended to the whole year. The monopoly of the three Patent houses was productive of some advantages to the drama, the profession, and the public, It sustained a taste for the highest order of dramatic literature; collected picked companies; and, having the command of the leading talent in the kingdom, produced plays with a strength and fitness of cast that could not be obtained under a regime of free trade—by which the best actors, instead of being combined in one theatre, are dispersed over twenty. But monopolies are always unpopular in free countries; and very little outcry was sufficient to bring the patents into odium. A strong case was made out without difficulty. Mr. Davidge, who had the merit of being the inventor of the Shilling Order system, wanted Shakespeare at the Coburg—and it was very hard he couldn't get him. There was a brisk demand for the Elizabethan dramatists in Norton Folgate, and a yearning for the noblest forms of art in Whitechapel. Why should the grimy multitudes that nightly assembled under the dripping sconces of the Bowers and Saloons of Hoxton and Shoreditch be debarred the intellectual pleasure of "assisting" at the enchantments of the Tempest, or of breathing the love-sick air through which Antony and Cleopatra floated down the Cydnus? Were they never to be elevated above the Tom-and-Jerry and Raw-head-and-Bloody-bones repertoire? This line of reasoning, which pointed out a brilliant future for the education of the masses, was irresistible, and the monopolies were abolished accordingly. Whether the expected result followed we need not inquire. All the world knows what has become of the "legitimate drama" since. But that is not our concern here.
The Act by which the patents were extinguished placed all licensed play-houses on the same level. The drama was thrown open; and every house licensed by the Lord Chamberlain in London, or by the Magistrates elsewhere, was privileged to act all manner of "Stage-plays," from the "mighty line" to the meanest drivel. Of course, the Act of Parliament that conferred this privilege established penalties for its violation; and, as the right was exclusively limited to licensed houses, any unlicensed house that attempted to prowl upon the preserves of the Stage-play came under the displeasure of the law.
What the law contemplated by the term "Stage-play" is carefully explained in the 23rd section of the Act 6th & 7th Vic. c. 68. The words of the section are—"That, in this Act, the word 'Stage-play' shall be taken to include every Tragedy, Comedy, Farce, Opera, Burletta, Interlude, Melodrama, Pantomime, or other Entertainment of the Stage, or any part thereof." The merit of this description lies entirely in the passage we have printed in italics. It would be the easiest thing in the world to construct a dramatic entertainment that should not come under any one of the classes specially enumerated—a Masque for instance; but it would be clearly impossible by any species of performance, now existing, or hereafter to be created, to evade that comprehensive line in italics, which sweeps up the whole capabilities of the Stage. The description "other entertainments of the Stage, or any part thereof," embraces all the varieties of spectacle, representation, and action, that the human imagination can conceive, or human organs execute. It extends even to the sports of the Hippodrome, and the playful terrors of the Menagerie. Mr. Bunn introduced a den of lions on the boards of Drury Lane; and everybody remembers what a conspicious actor the horse was in the famous Bolingbroke procession at the Princess's. These were assuredly "entertainments of the Stage." Singing and dancing are "entertainments of the Stage;" and the question might fairly be tried whether the licences which one law permits to be granted to taverns for singing and dancing, are not rendered void by this law, which prohibits singing and dancing by implication, except in houses licensed for Stage-plays. We wish somebody would try this question. It would help, better than any argument, to show the absurdity of an enactment which is violated at every corner, not only with impunity, but by the express sanction of the Legislature. The whole clause is constructed on a false principle, ingeniously calculated to encourage litigation and confound common sense. Instead of enumerating a number of various forms of Stage-plays, each in itself requiring a definition, the clause should have contained a plain description of those essential constituents which are common to all forms. We should then have had a single test, applicable alike to every case, instead of being obliged to test each case independently; with this manifest further advantage, that, when such cases come to be tried in courts of law, the business of witnesses would then be, not to express opinions—which may, or may not, be sound or impartial—but to state facts, to which it would be the business of the Judge to apply the law.
We now come to the question, recently raised, first in Margate and subsequently in London, as to the legality of certain performances in places not licensed to act Stage-plays.
The Margate case, divested of extraneous details, was that of two performers, who, one night, appeared in a Bazaar in the High Street in an entertainment bearing the thrilling title of The Tale of a Heart. They personified in succession several characters, and wore several different costumes. At one moment the gentleman was the true lover, tremendously devoted to the lady, utterly indifferent to money, and thinking only of "love and beauty:" at another he was the interested suitor, who persecuted the lady for her fortune, and made himself very odious to the audience, and at the same time very funny, by the baseness of his sentiments, and the eccentricity of his manner. As for the lady, it is needless to say what she did, when the true lover formally proposed for her, or with what depth of emotion she sang a song on the occasion. An information was laid upon this entertainment against the owner of the Bazaar, charging him with having unlawfully kept a certain place for the performance of Stage-plays without authority, such place being a place of public resort, and not being a Booth or Show—that is to say, in ordinary language, not being licensed for the performance of Stage-plays. The whole question here plainly turns on the point—Was this entertainment a Stage-play within the meaning of the Act of Parliament? To that issue the inquiry was finally narrowed. Mr. Nelson Lee, a London manager, was called by the defendant, and stated, that in his opinion the entertainment did not come within the definition of a Stage-play as contemplated by the Act; that it was merely a Duologue, not a dramatic representation; and that it was precisely similar in character to the entertainments given in London, in unlicensed places, by Mr, and Mrs. German Reed, Mr. and Mrs. Howard Paul, and others. Upon this evidence, the magistrates found that the entertainment was not a Stage-play, in the sense of the Act, and refused to commit accordingly. Against this dismissal of the information an Appeal was carried up to the Court of Queen's Bench, where it was decided that the Magistrates were wrong in their interpretation of the law, and that the performance was clearly a dramatic representation, coming under the legal description of a Stage-play.
We cannot collect from any one decision an exhaustive definition of what is legally meant by a Stage-play, each case being decided on its own specialities; but every decision contains an element of infringement which may be reduced to a form of statement as far as it goes. Thus we learn, from this Margate case, that an entertainment consisting of only two persons, and which, therefore, never can ascend to any more complicated dramatic imbroglio than that of a Duologue, becomes a Stage-play, within the intention of the law, if one of the performers assumes different characters and appears in different dresses. Whether a Duologue without changes would be equally amenable to penalties, is a problem which this decision does not touch.
The next case is one wherein the London managers summoned the proprietor of the Canterbury Music Hall before a Police Magistrate, for permitting a Pantomime to be performed at his establishment, the said establishment not being duly licensed, according to the provisions of the Act of Parliament.
A word about Music Halls, before we open the pleadings in this cause. If they cannot trace their origin as far back as the Curtain or the Blackfriars' playhouses, they may boast of an antiquity at least as venerable as the Stage of the Reformation. The Civil War scattered the musicians, as it did the players, and compelled them to seek their livelihood as best they could—more, indeed, as vagrants and dealers in contraband pleasures, than as artists who might venture to be proud and honest in their calling. No longer able to follow their profession in troupes or companies, they dispersed themselves over the country—some visiting the houses of the gentry, and others resorting to taverns, where they invited people to hear them. The first regular performance of that kind, after the Restoration, took place in a lane behind St. Paul's Cathedral, where one Philips advertised himself to play upon an organ. The taverns at which such entertainments, vocal and instrumental, were given, took the name of Music Houses, to distinguish them from other taverns. They were established, under the reign of Charles II., in the most populous parts of the town, and were adapted for the reception of all kinds of guests. Pepys speaks of the Dolphin Tavern, as having "an excellent company of fiddlers"—the favourite instrument of the King—and he tells us also that at the Globe Tavern at Greenwich he heard the music led by a woman, "with a rod in her hand keeping time, which," he naïvely adds, "is simple, methinks." There were famous Music Houses at Wapping and Moorfields, which were kept open day and night, with bands of fiddlers and dancers, for the amusement of visitors. One of the houses at Moorfields is described as having been built in the form of an amphitheatre, the dancing being carried on in the middle of the circle. At Wapping, there was another on a still grander scale, elaborately painted—as was the fashion in the age of Verrio—and laid out with numerous apartments, above ground and under ground, all calculated to give greater zest and variety to the enjoyments of the hour. In these Music Houses we have the rudimental idea of our present costly Music Halls. The invention seems to have languished for want of support through subsequent reigns. It was preserved in a modified form in the Mug Houses that flourished in the days of Queen Anne, when a solitary harper, ensconced in a corner, did duty for the royal fiddlers of the Stuart, and the company themselves supplied vocal contributions, in the fashion of grim moral ditties about time and drink, pastoral elegies, and bacchanalian rounds. But the Mug Houses were not so much the lineal descendants of the Music Houses, as they were the direct progenitors of the little political Clubs which have since grown up into great West-end institutions. In whatever shapes, or with whatever fluctuating fortune, the Music Tavern has subsisted from time to time, it has certainly been one of the unfailing resources of London life for the last two hundred years; and if a long line of ancestry be worth anything in such matters, the Canterbury, Oxford, and Raglan, may claim to have come in, not exactly with the Conqueror, but before the bulk of our nobility. To be sure, that is no reason why they should violate the law; and we allude to it merely on the principle that it is desirable, when we bring a delinquent into Court, to know something about his antecedents.
The points raised in the particular instance of Canterbury Hall were these—Was the contested performance a Pantomime? If not, did it come within the boundless description of "other entertainments of the Stage, or any part thereof?' In order to establish these allegations in the affirmative, the London manager called four witnesses who were intimately acquainted with the nature of Stage-plays, and were professionally qualified to pronounce upon the performance under consideration.
Mr. C.J. James, upwards of twenty-two years Lessee of a theatre in Tottenham Street, was decidedly of opinion that the performance was a Pantomime. He formed that opinion from the fact that there were dances and fairies in it, a transformation scene, and the "usual comic business." But then, there were never more than two people on the stage at a time. The alleged Pantomime was called The Enchanted Hash. Mr. James referred to one scene in particular as an example of pantomimic business. Clown gets possession of a parcel labelled "Mutton Pies," and eats some; upon which Harlequin comes in, and, with a wave of his wand, changes the inscription to "Pussy Pies." At the sight of this terribly suggestive inscription the Clown gets very ill, and calls for a stomach-pump, which is brought by Doctor Pantaloon, who, applying the instrument, immediately produces three live kittens. Mr. James considered that "business" very comical. He also considered "a plot" essential to a Pantomime; but in this case he was of opinion that the plot was scarcely perceptible, if, indeed, there was anything that could be called a plot.
Mr. John Johnston, who described himself as "a dramatic Author of melodrames and such like," declared that it was beyond all doubt a theatrical performance, and that it decidedly had a plot. There was the regular burlesque opening, the lovers' courtship, interrupted by demons and protected by fairies, and the ultimate changes into Clown, Pantaloon, Harlequin, and Columbine. A plot was indispensable, and here was a complete plot!
Mr. William Smith, acting Manager of the Adelphi, and connected for sixteen years with theatres, had no doubt whatever that it was a theatrical performance. It embraced the burlesque opening, the comic business, Harlequin with his wand, and Columbine with her white muslin. He had never seen a Pantomime played by two persons; had never seen a Pantomime played in London without scenery. The Enchanted Hash was played by two persons, and had no scenery!
Mr. Nelson Lee, Lessee of a theatre in the City, and author of 209 Pantomimes, had read The Enchanted Hash, and certainly thought it a theatrical performance. He considered a Stage-play to be a dramatic dialogue between two or more persons; but a dramatic performance cannot be legitimately called a Stage-play without scenery. He knew of no Stage-play performed in any London theatre without scenery!
On the other side, a cloud of witnesses, "darkening counsel," expressed their decided opinion that the piece was neither a Pantomime nor a Stage Play, in any sense; that it was a mere Musical Sketch presented on a platform, and not on a stage; and that it had none of the elements or adjuncts absolutely necessary to constitute a theatrical performance. These witnesses had all been connected with theatres for five-and-twenty or thirty years, in various capacities—as lessees, managers, actors, or authors.
The wide and hopeless conflict between the testimony pour et contre, is not more remarkable than the irreconcilable contradictions in the testimony for the prosecution. Here were four skilled witnesses, who differed, not only from each other, but from themselves. Mr. James could not trace any plot in the piece—Mr. Johnston declared that it had a very complete plot. Mr. James could see no evidence of design anywhere, not even in Harlequin's metamorphosis of the pies—while Mr. Johnston discovered perfect dramatic structure in the vicissitudes of the lovers under a strife of supernatural agencies. Mr. Smith never saw a Pantomime played by two persons, or without scenery; but was of opinion that this representation by two persons, without scenery, was a Pantomime nevertheless. Mr. Nelson Lee, who, at Margate, stated as his opinion that a Duologue was not a Stage-play, even with changes of dresses and characters, story, scenery, curtain, and prompter's bell, reversed his judgment on this occasion, declaring that any dialogue between two persons was a Stage-play, even without scenery, curtain, or bell; observing, in the same breath, that a dramatic performance without scenery was not a Stage-play. The evidence no sooner establishes a definition than it knocks it down again, and sets up another in its place. According to Mr. Nelson Lee, the representation is a Stage-play, because it is a dialogue between two persons; and it is not a Stage-play, because it has no scenery. It is a Pantomime, according to Mr. Smith, although it fails to fulfil two of the conditions which, according to Mr. Smith, are indispensable to a Pantomime. One manager cannot find any plot in it—and another maintains that it has a conspicuous plot. Yet these four gentlemen, who differ at almost every single step, agree upon their conclusion. Truly their unanimity is wonderful. Four men take four opposite routes, and arrive in the end at the same spot.
A law which risks the issue of any question upon evidence such as this must surely be defective somewhere. The inconsistencies of witnesses are the natural accidents of the various degrees of knowledge or judgment, observation or capacity, brought to bear in the testimony. Safe definitions, difficult at all times, are especially difficult under the fire of a cross-examination. Therefore the definition should be determined by the statute, and nothing should be taken upon evidence except the facts to which the definition is to be fitted. In criminal cases, you do not ask the witnesses their opinion as to whether the alleged offence is larceny or felony; you simply collect the facts, and apply the law.
The result of the Canterbury Hall case may be considered conclusive, although what it is conclusive of is by no means so certain. The Magistrate decided that the Pantomime came within the operation of the law, and the defendant, who at first intended to appeal, finally submitted to the decision. An information was subsequently taken out against another Music Hall; but the proprietor, warned by the previous conviction, pleaded guilty, and withdrew his performance. A shot fired suddenly into an aviary could not more effectually scare the birds than these proceedings have scared the givers of such entertainments. Mr. and Mrs. German Reed at once secured themselves for the future, by obtaining a licence from the Lord Chamberlain. The rest, who are not so fortunate, must starve, or find other means of subsistence. This is a grievous calamity to many meritorious persons; but arguments drawn from individual suffering are of no avail against public policy. No person can put forward as a legitimate ground of complaint, that he suffers from the action of the law—unless the law be unjust, or oppressive, or vicious in principle. Is the law open to such objections in the present instance?
As the question stands, it is nearly impossible to determine what is, or is not, a Stage-play. We must presume, however, from the decision which has been accepted by the Music Halls themselves, that a Pantomime, with scraps of dialogue between two persons, without scenery, and with a thread of plot so slender as to be almost invisible, is by Act of Parliament a Stage-play, and is placed by law on the same footing, and protected by the same regulations, as Othello and The School for Scandal. This is a state of things, we imagine, that cannot be satisfactory to anybody. It is worse, as a monopoly, than the monopoly it superseded, which had the negative merit, at all events, of protecting only the highest kinds of dramas; and it is derogatory to the managers of theatres themselves, who are thus compelled to take the most odious measures for the protection of the most contemptible productions. If it be still thought desirable to maintain exclusive rights, let them at least be marked out with a decent respect for the literature of the Stage. Don't place Shakespeare and the poet of the Canterbury platform in the same schedule.
But is it desirable any longer to maintain exclusive rights? That is a question which the public will ask, and is justified in asking, under such circumstances.
The intention of the Act of 1843 was to abolish exclusive privileges; but it only enlarged them. It transferred to the discretion of the Lord Chamberlain the power it took away from the Patents. It enabled the Lord Chamberlain to confer upon twenty or thirty theatres the rights which had previously been limited to three; but it also enabled him to narrow the exercise of these rights within any lesser number he might think fit. It substituted caprice for certainty; and, without doing away with the principle of monopoly, it destroyed the only advantages monopoly could yield. The late prosecutions have made these matters manifest, and shown that there still exist restrictions wholly inconsistent with the theory of free drama. If we are to follow out the logical consequences of the act of liberation, these restrictions must be removed. There is no difference, so far as the question of monopoly is concerned, between a prosecution by a dozen managers, and by three managers, except a difference of area. It is, in fact, the old monopoly on a larger scale, struggling for a less noble end, and upon the lower ground of pecuniary interest. The fight this time is, not to obtain a clear stage for the "legitimate drama," but to prevent all proprietors of public establishments, except the managers of theatres, from acting the legitimate or any other drama. The liberal and judicious public—who, when they bestowed Shakespeare upon all theatres indiscriminately, forgot to insist upon guarantees that they should act him—will see that the theatres they enfranchised are balking the very object contemplated in their enfranchisement. Instead of helping to diffuse the drama, they stand in the way of its cultivation in those places where, above all others, it is most needed for the moral culture and elevation of the people.
If it was desirable to extend large dramatic privileges to the Minor theatres, it is no less desirable to extend them to the Music Halls, which possess much greater facilities for educating the popular taste. By all means, then, abolish this last shred of monopoly, and let us have a real, and not a sham, free-trade in plays.
We do not undertake to answer for the consequences of such a measure. If we were to judge from the results of the existing extension of dramatic rights, we should infer that complete emancipation would drag down the Stage to the lowest abyss of degradation. The probability of such a result furnishes the best of all possible reasons why the drama should be thrown open without the smallest reservation. There is an ancient Arabian proverb, which says, that the last step of adversity is the first step to prosperity; and it might happily prove so in this case. If the public could see the monstrous evil of the present system, there would be no need to put any further pressure upon them. But they do not see it; nor are they likely to see it, till the taverns shall have emptied the theatres, and revolutionized the drama. In the presence of such a catastrophe, they might, possibly, discern the necessity of retracing their steps. The opportunity is now before them. They have arrived at a crisis, when they must either go forwards or backwards. The law, inoperative for good, and powerful for mischief, cannot be suffered to remain as it is. We must either return to the old limitations, modified and improved by the suggestions of experience, or advance into indefinite licence. You cannot stand still. The public-houses must have free right to act Stage-plays, or art must be cultivated and protected in theatres established and maintained for the purpose. Both cannot flourish; and the question for the public to determine is which they will have.