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advocate has a more extensive charge : the duty of the patriot citizen then mixes itself with his obligation to his client, and he disgraces himself, dishonours his profession, and betrays his country, if he does not step forth in his personal character and vindicate the rights of all his fellow-citizens, which are attacked through the medium of the man he is defending. Gentlemen, I do not mean to shrink from that responsibility upon this occasion ; I desire to be considered the fellow-criminal of the defendant, if by your verdict he should be found one, by publishing in advised speaking (which is substantially equal in guilt to the publication that he is accused of before you) my hearty approbation of every sentiment contained in this little book ; promising here, in the face of the world, to publish them upon every suitable occasion, amongst that part of the community within the reach of my precept, influence, and example. If there be any more prosecutors of this denomination abroad among us, they know how to take advantage of these declarations."
He then proceeds to justify the Dean's positions, and refers to the greatest of Whig and the greatest of Tory writers, Locke and Lord Bollingbroke, as advocating the same opinions. He afterwards argues the famous point on which the subsequent proceedings of the case turned, and which have given it its interest and importance, viz. the right of the jury to consider not only the evidence of publication, but the character of the writing and the intent of the author. The jury found a verdict of guilty of publishing only, which Mr. Justice Buller refused to receive, as insufficient, whereupon there ensued the remarkable altercation between his lordship and Erskine, who insisted on its being recorded, which in an earlier part of this article we have detailed. He afterwards moved the whole Court of King's Bench for a new trial, in consequence of the misdirection by the judge to the jury; and concluded his speech by the following beautiful appeal to Lord Mansfield, then Lord Chief Justice, on the dangerous consequences that must result from the doctrine on which Mr. Justice Buller had acted:
The people of England are deeply interested in this great question ;' and though they are not insensible to that interest, yet they do not feel it in its real extent. The dangerous consequences of the doctrines established on the subject of libel are obscured from the eyes of many, from their not feeling the immediate effects of them in daily oppression and injustice: but that security is temporary and fallacious ; it depends upon the convenience of Government for the time being, which may not be interested in the sacrifice of individuals, and in the temper of the magistrate who administers the criminal law as the head of this Court. I am one of those who could almost lull myself by these reflections from the apprehension of immediate mischief, even from the law of libel laid down by your lordship, if you were always to continue to administer it yourself. I should feel a protection in the gentleness of your character ; in the love of justice, which its own intrinsic excellence forces upon a mind enlightened by science and enlarged by liberal education, and in that dignity of disposition which grows with the growth of an illustrious reputation, and becomes a sort of pledge to the public for security : but such a security is as a shadow which passeth away ; you cannot, my lord, be immortal, and how can you answer for your successor ? If you maintain the doctrines which I seek to overturn, you render yourself responsible for all the abuses that may follow from them to our latest posterity.
“My lord, whatever may become of the liberties of England, it shall never be said that they perished without resistance when under my protection."
On a subsequent motion to arrest the judgment, on the ground that the publication prosecuted was not a libel, Erskine was successful; and not long afterwards he had the satisfaction of assisting Fox to carry through Parliament the statute which expressly declares the jury to possess the right contended for by Erskine, and under which at this moment they exercise it. The value and importance of the privilege need not his eloquence to demonstrate and cause it to be felt; it is essential to the very existence of freedom in our Government; and now that it has been secured by his exertions, God forbid it ever should be lost by the cowardice, or the indifference of the people !
THE PATENT PRIVILEGES OF THE LARGE THEATRES.
A Brief View of the English Drama, from the earliest Period to the present Time ;
with Suggestions for elevating the present Condition of the Art and its Professors. By F. G. TOMLINS, Author of the “ Past and Present State of Dramatic Art
and Literature, &c." London. C. Mitchell, 1840. Mr. Mayhew, in his clever little essay called “Stage Effect,” which we noticed briefly last month, makes out a clear case against the patents of the large theatres. The main consequences of the monopoly are obvious enough, in limiting the field for the development of dramatic literature, and placing the national drama literally under the control of two individuals : but the injustice in detail which is thus inflicted upon the public, in common with the writers for the stage, requires to be repeatedly and fully exhibited, item by item, in order that the oppressive operation of the patent privileges may be thoroughly understood. Mr. Mayhew lays down a general principle, which cannot be disputed, that encouragement ought to be proportioned to the difficulty of achievement; but in the drama this rule is reversed. There is abundant encouragement for the worst and most demoralising classes of theatrical pieces, while despair crushes the energies of the man of genius who ventures to cultivate the nobler forms of his art. The monstrous tyranny of granting to two favourites, and through them to their successors, a "perpetual copyright in a branch of national literature,” is not less flagrant than that peculiar incident in the theatrical patent which distinguishes it from all other patents, namely, that patents “ in all other arts is a protection afforded the discoverer of some improvement, or the inventor of some benefit, and even then the protection is Jimited by time; but the holders of the theatrical patents have invented nothing, have improved nothing, and their grants are assumed to be eternal !” Mr. Mayhew places the monopoly in a still more novel light, by showing that it is wholly at variance with the law of copyright, in giving to the managers a property in the best plays in the language, and making them masters over all dramatists, past, present, and to come. Upon this point he observes
“ The dramatist was in existence before these patents were thought of; he earned his food by his labour, and his art was as much a calling, as much a means of subsistence, as that practised by the painter, or the lawyer, or physician, at the present day. After providing for the public safety, to regulate the laws which affect labour is the duty and highest authority vested in the collective parliament. It matters not what shape that labour may assume.
To control or take away the natural property every man is born possessed of in his abilities, is a power solely vested in the collective parliament. Was it not an undue exercise of the royal prerogative, which arrogated to one estate a power which the constitution declares to exist only in the three conjoined? What had the dramatist done that he alone was deprived of the common right of legislative protection? Why was he considered, like the Jews of old, the property of the crown? Nay,' worse. Why, when all others are exempted, is bigotry to be upheld as just, when perpetuated to his ruin ?"
A variety of circumstances combine to enforce the necessity of abrogating these pernicious patents. The fact that the drama had attained its greatest height while the stage was yet free, and that it has gradually degenerated into licentiousness and buffoonery under the debasing influence of the monopoly, affords a reasonable expectation that its glories would be revived if it were once more emancipated. Again, when the patents were granted, it was for the express purpose of insuring the performance of the best pieces, the condition being inseparable from the exclusive right of acting
them: but that condition has long been treated as a dead letter; and yet the patents, although thus virtually violated and forfeited, are still held to be valid, in open defiance of all equity and justice. If it be an infringement of the patent to act the legitimate drama at a minor theatre, it is equally a departure from it, and a forfeiture of it, to banish the legitimate drama from the winter houses, and to substitute a menagerie in its place. Why should the minor theatre be subjected to a penalty for presenting the public with a representation, which the patent theatre alone is authorised to present, if the patent theatre be permitted with impunity to evade a representation which forms the especial ground of its privileges ? If the law is to have the force of law, make it equally stringent upon both; and while restrict the small houses within their narrow confines of farce and burlesque, lowering the tone of public morals in one direction, compel the large houses to fulfil their undertaking, by giving us the regular performances prescribed in their patents, for the sake of endeavouring to elevate and strengthen public morality in other channels. But even this strict adherence to the original terms of a vicious contract would afford a poor compensation for its maintenance, seeing the wide difference between the present age and the time when these patents were issued. The vast increase of population, the great advances that have been made in popular knowledge and the arts of civilisation, and the accumulating demands of the people for improved facilities of mental culture, cry aloud for the removal of such barbarous shackles. Two or three theatres might have been sufficient for tragedy and comedy in the days of Charles II., although the immediate extinction of dramatic genius which followed upon the restriction, explicitly proves that they were not: but can any man seriously assert that they are sufficient now, with a population of upwards of a million and a half within the girth of Westminster and London ?
The subject is beginning to occupy that degree of attention its paramount importance deserves, and we confidently trust that the day is approaching, when dramatic literature will be relieved from an incubus which alike paralyses and distorts its manifestations. Mr. Tomlins, the author of an admirable pamphlet on the “ Past and Present State of Dramatic Art,” which we reviewed a few months ago, has just published the volume, the title of which is recited above, in which he prosecutes the inquiry at greater length, furnishing us with an historical account of the English drama from the earliest times, and examining with considerable ability the causes of its contemporary humiliation. Like all other writers who have brought extensive research to the investigation, he traces the degradation of the stage, and the discouragement of original talent to the mischievous effects of the monopoly; and in reference to this part of the question in particular, the publication cannot be too strongly recommended to the consideration of all classes of readers. It is full of information, systematically distributed over the topics into which the subject is naturally divided, is written throughout in an animated and forcible style, and discovers in some incidental passages a spirit of just and profound criticism. After describing the origin and progress of the classical and romantic dramas, Mr. Tomlins proceeds to examine the present state of the stage, describing the characteristics of the several metropolitan theatres, the history of the patents, and of the legal enactments affecting the drama, and the effects of the monopoly both upon actors and dramatists, concluding with a suggestion for the final remedy of the evil. From this glance at the contents of the work, it will be at once seen that it embraces all the points essential to a complete review of the subject.
It would occupy more space than it would repay to enter into the curious birth, parentage, and adventures of the two patents originally granted to Davenant and Killigrew. The reader may be referred to Mr. Tomlins for the particulars of the very remarkable and doubtful tenure upon which Drury Lane and Covent Garden claim the sole right to act five-act plays: in the meanwhile it will sufficiently answer our purpose to observe, that, after a variety of reverses of one kind or another, the two patents came at last into the possession of Rich; that, in consequence of certain disagreements, the lord chamberlain prohibited him from exercising them; that they consequently lay dormant for five years, during which time Drury Lane and the Haymarket were kept open without the least regard to the “vested rights ” of the patentee; that licenses were granted to the theatres from time to time in utter contempt of the said patents; that in 1816 a license for twenty-one years was granted to Drury Lane, because, it is supposed, the dormant patent could not be redeemed, or, as some people have said, because the patent was actually lost in the fire of 1809, and ihe title to it was therefore either very difficult, or impossible, of proof*; that in 1837 the patent, it is said, was actually transferred to Drury Lane; and that this theatre, to quote Mr. Tomlins, "now performs by that document, which, after slumbering, and indeed after being annulled by the deed of 1682, which united the two companies, and revoked by the last license granted by Anne, was resuscitated at an interval of 155 years !” And such is the privilege buffetted by the chamberlain, annulled by a monopoly within a monopoly, revoked, suspended, silenced, despised, and violated - upon which the two great metropolitan theatres ground their right to an exclusive control over the national drama of this great country! It would not become us to make or a little war with this ragged remnant of an ancient abuse : we must labour, uncompromisingly, for its total annihilation.
The consequences ensuing upon the patents as recapitulated in the following passage, exhibit tolerably conclusive evidence of the malignant influence of the right divine in playhouses.
“For the first twenty years the town had two theatres ; for the succeeding twelve one theatre ; for the next forty-three years two theatres ; for the next twenty-one years six theatres, which lasted until the commencement of the present century, when the various minor theatres began to advance from 'dumb show' to burletta and melodrame, some with the license of the chamberlain, and others with that of the magistrates. The intel. lectual drama was all this tine confined to a most narrow field. When there were only two theatres, one was almost exclusively devoted to show and spectacle; and when there was only one, the regular drama was less frequently played than operas and pageants. After 1737, when these gradually increased to five, the Haymarket was devoted to Italian opera : the little theatre there, which then was emerging from being an exhibition-room, was principally devoted to farces and light pieces ; Astley's to horsemanship and feats of agility ; Covent Garden to pantomime and spectacle; and Drury Lane more exclusively to the regular drama. We have seen with what struggles the players maintained themselves at all, and we also see that all this fostering and licensing, and unlicensing, and all the fierce endeavour to maintain the exclusive privileges, only engendered an evasion of the law and deterioration of the art which is almost beyond cure. At present three theatres can alone perform any one of the productions of our fine regular drama, while the whole sixteen may perform "Jack Sheppard.'” The argument for the abolition of the monopoly on behalf of the actors is,
The late Mr. Elliston, when he became manager of the Surrey Theatre, produced several plays of the interdicted class. At that time Mr. Davidge, at the Coburg (now the Victoria), was prosecuted to conviction for a similar trespass, but no notice whatever was taken of Mr. Elliston's infringements of the patents. The reason he assigned for it was, that the patent of Drury Lane was destroyed in the fire, and that, as they knew he must be aware of the fact, having been for so many years manager of that house, they did not think it prudent to proceed against him, since it would lead to an exposure they were very unwilling to provoke. We know not what credit to attach to this statement, but we can vouch for it as having been made by Mr. Elliston.
if possible, more strong and urgent than that on behalf of the interests of dramatists and literature. The monopoly, by narrowing the scene of competition, creates “ stars” and green-room tyrannies that keep down the intelligent and aspiring performer, who in vain struggles for his proper place in his profession, and must either submit to the worst kinds of drudgery, by which he contracts bad habits, and loses all chance of making an impression upon the public, or retire in despair from the hopeless pursuit. Some of the evils to which the actors are subjected by this oppressive system, are set forth in the following passage:
“ The ultimate object of candidates for the highest theatrical honours is to be permanently fixed at one of the national theatres. But to get there requires qualities rarely united in one being, and to maintain themselves when there, a combination of circumstances beyond their control. Owing to the vast size of the theatres, and the enormous rent and expenses, the managers play a desperate game, and make a stupendous outlay to command success. Variety and novelty are the chief objects they keep in view, in order to attract and secure the heterogeneous class that can alone fill their theatres. For this purpose they engage three, if not four, companies of actors : a set for tragedy and comedy – - one for melodrame and pantomime -- a large operatic company and another for spectacle and ballets. To the regular actor and acting, this is fatal. If a prima donna become a favourite, there is a run on the piece, and the other three sets, or two of them at least, are, what is technically termed, 'shelved ;' that is, they are for forty, or fifty, or even a hundred nights, entirely withdrawn from the public notice, and from the practice of their art. In many instances they have been harassed by petty arts until they have thrown up their engagements in disgust
, and if they do not suffer in this way, they rust in an idleness that is equally injurious to them. This would not be the case if there was not a monopoly, because then these four kinds of companies would each find a theatre for itself, and the portion of the public who might still like to witness the species of drama it preferred, would have the advantage of doing so, and not be, as at present, debarred from it during the run of one particular piece.”
The actor suffers also in another way, which, regarding the stage as his profession, is not less grievous and intolerable.
“ The situation of the intellectual actor seems to be worse than ever. He shifts from theatre to theatre, and is associated, at the will of his manager, with horses and wild beasts. He is made to partake of the risk of the loss of the theatre where he is, though he has no share in the gains beyond his stipulated salary. He is the first to suffer ; and it now seems a common proceeding to declare half or almost no salaries at the end of the week, provided the houses have fallen off. The injustice of making him thus participate in the risk is so much the greater, as it is incurred for the most part upon a portion of the speculation in which he is in no way concerned. The manager ventures some thousands in a spectacle, and if it fails of effect, the regular actor immediately feels it in the reduction of his salary, or perhaps its total loss. He thus runs the risk of the three companies incorporated under one management, and the failure of the operatic, melodramatic, or pantomimic company involves him in ruin. Was he playing in a theatre specially devoted to his branch of the art, he would at all events incur only the risk of his own pursuit. It may be said that he participates in their success; but this, were it so, would be equally unjust to the others; and it is not the case, as at the utmost it only enables him to gain his stipulated salary.
“ All this is only one of the hydra heads of the monopoly. The patent theatres involve such a risk of capital, that capitalists avoid them, and their managers have latterly been mere speculators, with little or nothing to lose. Theatrical management has thus become a species of gambling, and the most honourable only pay when their receipts permit them. The patent theatres have thus virtually become share-theatres of the worst kind, for if they are ever so successful the actor only gets his salary; whereas, if they are the reverse, he loses every thing by the bankruptcy, or insolvency, of the lessee.”
Dramatists are equally affected by the monopoly, but the mischief lies deeper and works more extensive and enduring evils. By increasing the difficulties in the way of the higher class of writers, a premium is put upon inferior productions, and talent that is content to brook the indignity, or compelled by necessity to submit to it, is forced to pander to the meanest and most demoralising taste. We cannot deny ourselves the pleasure of extracting a touching, eloquent, and singularly beautiful description of the labour attending the production of a drama of the elevated order -- a de