Another hare was started by Professor Gilbert Murray and Mr. Laurence Housman, who, in pure kindness to the managers, asked whether it would not be possible to establish for their assistance a sort of King’s Proctor to whom plays might be referred for an official legal opinion as to their compliance with the law before production. There are several objections to this proposal; and they may as well be stated in case the proposal should be revived. In the first place, no lawyer with the most elementary knowledge of the law of libel in its various applications to sedition, obscenity, and blasphemy, could answer for the consequences of producing any play whatsoever as to which the smallest question could arise in the mind of any sane person. I have been a critic and an author in active service for thirty years; and though nothing I have written has ever been prosecuted in England or made the subject of legal proceedings, yet I have never published in my life an article, a play, or a book, as to which, if I had taken legal advice, an expert could have assured me that I was proof against prosecution or against an action for damages by the persons criticized. No doubt a sensible solicitor might have advised me that the risk was no greater than all men have to take in dangerous trades; but such an opinion, though it may encourage a client, does not protect him. For example, if a publisher asks his solicitor whether he may venture on an edition of Sterne’s Sentimental Journey, or a manager whether he may produce King Lear without risk of prosecution, the solicitor will advise him to go ahead. But if the solicitor or counsel consulted by him were asked for a guarantee that neither of these works was a libel, he would have to reply that he could give no such guarantee; that, on the contrary, it was his duty to warn his client that both of them are obscene libels; that King Lear, containing as it does perhaps the most appalling blasphemy that despair ever uttered, is a blasphemous libel, and that it is doubtful whether it could not be construed as a seditious libel as well. As to Ibsen’s Brand (the play which made him popular with the most earnestly religious people) no sane solicitor would advise his client even to chance it except in a broadly cultivated and tolerant (or indifferent) modern city. The lighter plays would be no better off. What lawyer could accept any responsibility for the production of Sardou’s Divorcons or Clyde Fitch’s The Woman in the Case? Put the proposed King’s Proctor in operation to-morrow; and what will be the result? The managers will find that instead of insuring them as the Lord Chamberlain does, he will warn them that every play they submit to him is vulnerable to the law, and that they must produce it not only on the ordinary risk of acting on their own responsibility, but at the very grave additional risk of doing so in the teeth of an official warning. Under such circumstances, what manager would resort a second time to the Proctor; and how would the Proctor live without fees, unless indeed the Government gave him a salary for doing nothing? The institution would not last a year, except as a job for somebody.
COUNSEL’S OPINION
The proposal is still less plausible when it is considered that at present, without any new legislation at all, any manager who is doubtful about a play can obtain the advice of his solicitor, or Counsel’s opinion, if he thinks it will be of any service to him. The verdict of the proposed King’s Proctor would be nothing but Counsel’s opinion without the liberty of choice of counsel, possibly cheapened, but sure to be adverse; for an official cannot give practical advice as a friend and a man of the world: he must stick to the letter of the law and take no chances. And as far as the law is concerned, journalism, literature, and the drama exist only by custom or sufferance.
WANTED: A NEW MAGNA CHARTA
This leads us to a very vital question. Is it not possible to amend the law so as to make it possible for a lawyer to advise his client that he may publish the works of Blake, Zola, and Swinburne, or produce the plays of Ibsen and Mr. Granville Barker, or print an ordinary criticism in his newspaper, without the possibility of finding himself in prison, or mulcted in damages and costs in consequence? No doubt it is; but only by a declaration of constitutional right to blaspheme, rebel, and deal with tabooed subjects. Such a declaration is not just now within the scope of practical politics, although we are compelled to act to a great extent as if it was actually part of the constitution. All that can be done is to take my advice and limit the necessary public control of the theatres in such a manner as to prevent its being abused as a censorship. We have ready to our hand the machinery of licensing as applied to public-houses. A licensed victualler can now be assured confidently by his lawyer that a magistrate cannot refuse to renew his licence on the ground that he (the magistrate) is a teetotaller and has seen too much of the evil of drink to sanction its sale. The magistrate must give a judicial reason for his refusal, meaning really a constitutional reason; and his teetotalism is not such a reason. In the same way you can protect a theatrical manager by ruling out certain reasons as unconstitutional, as suggested in my statement. Combine this with the abolition of the common informer’s power to initiate proceedings, and you will have gone as far as seems possible at present. You will have local control of the theatres for police purposes and sanitary purposes without censorship; and I do not see what more is possible until we get a formal Magna Charta declaring all the Categories of libel and the blasphemy laws contrary to public liberty, and repealing and defining accordingly.
PROPOSED: A NEW STAR CHAMBER
Yet we cannot mention Magna Charta without recalling how useless such documents are to a nation which has no more political comprehension nor political virtue than King John. When Henry VII. calmly proceeded to tear up Magna Charta by establishing the Star Chamber (a criminal court consisting of a committee of the Privy Council without a jury) nobody objected until, about a century and a half later, the Star Chamber began cutting off the ears of eminent XVII. century Nonconformists and standing them in the pillory; and then the Nonconformists, and nobody else, abolished the Star Chamber. And if anyone doubts that we are quite ready to establish the Star Chamber again, let him read the Report of the Joint Select Committee, on which I now venture to offer a few criticisms.
The report of the Committee, which will be found in the bluebook, should be read with attention and respect as far as page x., up to which point it is an able and well-written statement of the case. From page x. onward, when it goes on from diagnosing the disease to prescribing the treatment, it should be read with even greater attention but with no respect whatever, as the main object of the treatment is to conciliate the How Not To Do It majority. It contains, however, one very notable proposal, the same being nothing more or less than to revive the Star Chamber for the purpose of dealing with heretical or seditious plays and their authors, and indeed with all charges against theatrical entertainments except common police cases of indecency. The reason given is that for which the Star Chamber was created by Henry VII: that is, the inadequacy of the ordinary law. “We consider,” says the report, “that the law which prevents or punishes indecency, blasphemy and libel in printed publications [it does not, by the way, except in the crudest police cases] would not be adequate for the control of the drama.” Therefore a committee of the Privy Council is to be empowered to suppress plays and punish managers and authors at its pleasure, on the motion of the Attorney-General, without a jury. The members of the Committee will, of course, be men of high standing and character: otherwise they would not be on the Privy Council. That is to say, they will have all the qualifications of Archbishop Laud.
Now I have no guarantee that any member of the majority of the Joint Select Committee ever heard of the Star Chamber or of Archbishop Laud. One of them did not know that politics meant anything more than party electioneering. Nothing is more alarming than the ignorance of our public men of the commonplaces of our history, and their consequent readiness to repeat experiments which have in the past produced national catastrophes. At all events, whether they knew what they were doing or not, there can be no question as to what they did. They proposed virtually that the Act of the Long Parliament in 1641 shall be repealed, and the Star Chamber re-established, in order that playwrights and managers may be punished for unspecified offences unknown to the law. When I say unspecified, I should say specified as follows (see page xi. of the report) in the case of a play.
(a) To be indecent.