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Originally appearing in Volume V26, Page 737 of the 1911 Encyclopedia Britannica.
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LAW RELATING TO THEATRES. It was not until comparatively late in Roman history that acting became a distinct calling. The troops of public actors (ministeria publica) were generally slaves, and their earnings enriched their masters more than themselves. The regulation of the theatre by legislation (except as to structure) belongs chiefly to the time of the lower empire, in which it depended almost wholly upon constitutions of Theodosius and Valentinian, incorporated in the Theodosian Code (Tit. xv. 5, 6, 7), and a century later to a large extent adopted by Justinian. In the whole of this law there is an evident attempt at a compromise between the doctrines of Christianity and the old Roman love of public spectacles of all kinds. It deals less with theatrical representations proper than with gladiatorial contests and chariot races.' The Theodosian Code provided that the sacraments were not to be administered to actors save where death was imminent, and only on condition that the calling should be renounced in case of recovery. Daughters of actors were not to be forced to go on the stage, provided that they lived an honest life. An actress was to be allowed to quit the stage- in order to become a nun. There were also numerous sumptuary regulations as to the dress of actors. None of the law which has been mentioned so far was adopted by Justinian, but what follows was incorporated in Cod. xi. 40 (De Spectaculis et Scenicis), which consists entirely of extracts from the Theodosian Code of a very miscellaneous nature. Provision was made for the exhibition of public games and theatrical spectacles ' The word ludi seems sometimes to include, sometimes to exclude, dramatic performances. Its meaning in a particular instance depends on the magistrates, practically confining them to exhibiting in their own cities. Statues of actors were not to be placed in the public streets, but only in the proscenium of a theatre. A governor of a province was entitled to take the money raised for public games for the purpose of repairing the city walls, provided that he gave security for afterwards celebrating the games as usual. Municipalities were encouraged to build theatres (Dig. 1, 10, 3). By Novel cxvii., it was ground for divorce if a wife went to the theatre without her husband's knowledge. In Cod. iii. 12, 11 (De Feriis) is a constitution of Leo and Anthemius forbidding dramatic representations on Sunday. The Digest (iii. 2) classed all who acted for hire (omnes propter pecuniam in scenam prodeuntes) as infamous persons, and as such debarred them from filling public offices. A mere contract to perform not fulfilled did not, however, carry infamy with it. By Novel li. actresses could retire from the stage without incurring a penalty even if they had given sureties or taken an oath. There was probably a censorship at certain periods,' as well as provisions for safety of the building and the audience (Tacitus, Ann., iv. 63; Leonine Constitutions, cxiii.). The seats were allocated by the state, and the care of the building committed to certain magistrates (Novel cxlix. 2). England.β€”In England, as in other countries of western Europe, theatrical legislation was of comparatively recent introduction. Such legislation was unnecessary as long as the theatre was under the control of the Church and actors under its protection, the Church having turned to its own uses what it was powerless to prevent. The earliest regulations were therefore, as might be expected, made by the Church rather than by the state. The ecclesiastical ordinances were directed chiefly against the desecration of churches, though they sometimes extended to forbidding attendance of the faithful as spectators at plays even of a harmless kind .3 Sacraments and Christian burial were denied by the canon law to actors, whose gains, said St Thomas, were acquired ex turpi causa,4 and who, if they exceeded what was proper, might be in mortal sin. It was a doubtful point as to whether spectators might not be in similar case. The same law forbade plays to be. acted by the clergy, even under the plea of custom, as in Christmas week, and followed the code of Justinian in enjoining the clergy not to consort with actors or be present at plays (see Decrelals, iii. 1, 12 and 15, De Vita et Honestate Clericorum). As late as 1603, canon lxxxviii. of the canons of the Church of England enacted that churchwardens were not to suffer plays in churches, chapels or churchyards. The latest occurrence of such a play seems to have been at Oxford in 1592. The Reformation marks the period of transition from the ecclesiastical to the non-ecclesiastical authority over the drama. Precautions began to be taken by the crown and the legislature against the acting of unauthorized plays, by unauthorized persons, and in unauthorized places, and the acting of plays objectionable to the government on political or other grounds. The protection of the Church being withdrawn, persons not enrolled in a fixed company or in possession of a licence from the crown or justices were liable to severe penalties as vagrants. The history of the legislation on this subject is very curious. An act of the year 1572 enacted that " all fencers, bearwards, common players of interludes, and minstrels (not belonging to any baron of this realm, or to any other honourable person of greater degree)," wandering abroad without the licence of two justices at the least, were subject " to be grievously whipped and burned through the gristle of the right ear with a hot iron of the compass of an inch about." This statute was superseded by 39 Eliz. c. 4, under which the punishment of the strolling player is less severe, and there is no mention of justices. The jurisdiction of justices over the theatre disappears from legislation 2 If one may judge from Horace's line (Sat., i. 10, 38) : Quae neque in aede sonent certantia judice Tar pa. 3 A large number of such ordinances will be found cited in Prynne, Histriomastix; Bossuet, Maximes et reflexions sur la comedie; Mariana, De Spectaculis. They followed the almost unanimous condemnation by the Christian fathers. See, for example, Chrysostom, Contra Ludos et Theatra; Tertullian, De Spectaculis; Augustine, De Civ. Dei, i. 31, Confessions, iii. 2; Dill, Roman Society, pp. 47, 117. 4 For this reason it appears to have been the custom in France for actors to be married under the name of musicians. See His:. parlementaire de la Revolution francaise, vi. 381. The difficulties attending the funeral of Moliere are well known. from that time until 1788. In 39 Eliz. c. 4 there is a remark-able exception in favour of persons licensed by Dutton of Dutton in Cheshire, in accordance with his claim to liberty and jurisdiction in Cheshire and Chester, established in favour of his ancestor by proceedings in quo warranto in 1499.1 The stricter wording of this act as to the licence seems to show that the licence had been abused, perhaps that in some cases privileges had been assumed without authority. In 14 Eliz. c. 5 the privileges of a player attached by service of a noble or licence from justices, in the later act only by service of a noble, and this was to be attested under his hand and arms. The spirit of the acts of Elizabeth frequently appears in later legislation, and the unauthorized player was a vagabond as late as the Vagrancy Act of 1744, which was law till 1824. He is not named in the Vagrancy Act of 1824. The Theatre Act of 1737 narrowed the definition of a player of interludes, for the purposes of punishment as a vagabond, to mean a person acting interludes,2 &c., in a place where he had no legal settlement. Before the Restoration there were privileged places as well as privileged persons, e.g. the court, the universities, and the inns of court. With the Restoration privilege became practically confined to the theatres in the possession of those companies (or their representatives) established by the letters patent of Charles II. in 1662. In spite of the patents other and unprivileged theatres gradually arose.3 In 1735 Sir John Barnard introduced a bill " to restrain the number of playhouses for playing of interludes, and for the better regulation of common players." On \Valpole's wishing to add a clause giving parliamentary sanction to the jurisdiction of the lord chamberlain, the mover withdrew the bill. In 1737 Walpole introduced a bill of his own for the same purpose, there being then six theatres in London. The immediate cause of the bill is said to have been the production of a political extravaganza of Fielding's, Tice Golden Rump. The bill passed, and the act of to Geo. II. c. 28 regulated the theatre for more than a century. Its effect was to make it impossible to establish any theatre except in the city of Westminster and in places where the king should in person reside, and during such residence only. The act did not confine the prerogative within the city of Westminster, but as a matter of policy it was not exercised in favour of the non-privileged theatres, except those where the " legitimate drama " was not performed. The legitimate drama was thus confined to Covent Garden, Drury Lane and the Haymarket from 1737 to 1843. In the provinces patent theatres were established at Bath by 8 Geo. III. c. 1o, at Liverpool by 11 Geo. III. c. 16, and at Bristol by 18 Geo. III. c. 8, the act of 1737 being in each case repealed pro lotto. The acting of plays at the universities was forbidden by to Geo. II. c. 19. It is not a little remarkable that the universities, once possessing unusual dramatic privileges, should not only have lost those privileges, but have in addition become subject to special disabilities. The restrictions upon the drama were found very inconvenient in the large towns, especially in those which did not possess patent theatres. In one direction the difficulty was met by the lord chamberlain granting annual licences for performances of operas, pantomimes and other spectacles not regarded as legitimate drama. In another direction relief was given by the act of 1788 (28 Geo. III. c. 30), under which licences for occasional performances might be granted in general or quarter sessions for a period of not more than sixty days. The rights of patent theatres were preserved by the prohibition to grant such a licence to any theatre within eight miles of a patent theatre. During this period (1737β€”1843) there were several decisions of the courts which confirmed the 1 The " advowry," as it was called, over the Cheshire minstrels lasted until 1756, when the latest minstrel court was held at Chester. 2 Interludes were acted in the open air at Berriew in Montgomeryshire as lately as 1819, when the players were indicted before the Great Sessions of Wales. They had been prohibited in the Declaration of Sports (1633) and in the Propositions of Uxbridge (1644). 3 See W. Nicholson, The Struggle for a free Stage in London (1907).
JOHN LAW (1671β€”1729)

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