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Home Uncategorized Hiss! Boo! Take it off!

Hiss! Boo! Take it off!

Adrian Hardiman

The Irish Stage: A Legal History, by WN Osborough, Four Courts Press in association with the Irish Legal History Society, 324 pp, €55, ISBN: 978-1846825286

Professor Nial Osborough is the doyen of Irish legal academics. His most recent book, other than the work currently under review, is his history of the Law School of University College, Dublin (2014). In that remarkable work he traces the history of law teaching back to the universities of twelfth century Italy and emphasises the grounding values of humanitas which informed their teaching of law. Professor Osborough has certainly served his time as a teacher of mainstream law subjects: this reviewer remembers with appreciation his vivid treatment of the law of torts in University College Dublin in the early 1970s. But his distinguishing feature is that his cultural hinterland is much broader than that of the average lawyer or law teacher and to my mind his legal insights are much the sharper and the more realistic for that.

Osborough is now retired, as professor of jurisprudence and legal history, from the teaching of law. His retirement has merely increased his opportunities for intellectual engagement with law in its interaction with other subjects, notably history, literature and topography. It is difficult to think of a better essay in the emerging genre of law and literature than his long essay on Trollope’s Irish lawyers published in 2011 in the Irish Jurist. This is a contribution to law, literature and history which could not have been written by anyone lacking Osborough’s remarkable erudition in all of these subjects. A topic which in less skilled hands would merely have amounted to belles-lettres, in the pejorative sense of the term, is treated by him with remarkable rigour and scholarship. It will be a revelation to those far too numerous groups, the lawyers who know nothing of literature or history and are proud to proclaim as much, and the scholars with a facile and uninformed contempt for the law and its practitioners.

This reviewer’s favourite amongst Osborough’s numerous works, apart perhaps from the Trolope article mentioned above, which is rather specialist in its appeal, is his Law and the Emergence of Modern Dublin (1996), suggestively subtitled “A Litigation Topography for A Capital City”. In that work the author’s remarkable knowledge of the social, economic, recreational and institutional, no less than the legal, history of Dublin is triumphantly displayed. So too is his gift for the illuminating arcana of legal history. There he praises the nineteenth century Irish judiciary and in particular Vice-Chancellor Chatterton, Lord Justice Fitzgibbon, Lord Justice Holmes, Master of the Rolls Sir Andrew Porter and Lord Chief Justice O’Brien, for both their legal and their literary qualities. But can that Lord Justice Fitzgibbon, who features in Ulysses, an eloquent and unregenerate unionist, who was a close associate of Lord Randolph Churchill and who (though both a unionist and a freemason) in a magnificent judgment emancipated bequests for the saying of Masses from condemnation as “superstitious uses”, be the same Gerard Fitzgibbon who, Professor Osborough informs us, was, as a student of Trinity College, found assaulting the police during the Dublin rioting of March 1858 caused by the arrival of the Earl of Eglington as Lord Lieutenant? Indeed it can.

Osborough justifies such arcana, in his preface to the litigation topography book, on grounds both pedagogic, historical and intrinsic. I commend this introduction as a fine example of our author’s provocative – learnedly provocative but provocative nonetheless – style and I commend the book as a whole as an example of what law, history, and a sense of place may do for one another. The most practical reason for this is remarked on by Osborough in the preface to his topography book:

… information precipitated into the public domain by the stimulus of litigation (and helpfully preserved on innumerable occasions in the Law Reports) may be shown to be of considerable topographical interest. And such interest as attaches may be heightened by the reflection that so specialist a source of enlightenment has commonly escaped the attention of the professional historian.

In similar vein, in his preface to the present work, Professor Osborough says:

A trawl of writings, not reckoned to be immediately germane, bequeathed to us by literary figures can also … add a dash of colour to this survey with its all too obvious legal bias.

This is certainly so. Two of the highlights of the present work relate to the disorderly reception accorded to JM Synge’s work The Playboy of the Western World when produced in the Abbey Theatre in January 1907 and the much more direct engagement of the law in relation to Alan Simpson’s production of The Rose Tattoo in 1957.

Before coming to these high points however, the book traces the legal regulation of theatre in Ireland back almost four hundred years, back to the institution of the office of Irish Mastership of the Revels, corresponding to the English office established by Henry VIII. The Irish office was first conferred on a Scot called Ogleby, who operated a theatre in Werburgh Street. The history of this office is traced down to its abolition in 1830. Realistically, Osborough devotes a chapter to regulation in Britain between 1737 and 1843 because only thus can Irish developments in the same direction be understood. An early highlight is the passing of the Dublin Stage Regulation Act, 1786 and the institution of patents for theatres in the same year. This was a form of regulation which continued until its abolition in our own time by the National Cultural Institutions Act, 1997.

Osborough’s account of the vocal complaints by audiences who came to see Synge’s Playboy in January 1907 is the centrepiece of a lively chapter on “Disruption and Riot”. The theatre is a place of public congregation and it is perhaps not surprising that it should, on occasion, be the arena for political and other disturbances. What was unknown to me prior to reading the work under review was that the judges had developed the Common Law so as to protect this right of vocal disapprobation, subject to an important qualification.

Osborough provides a context for the discussion of the Playboy disturbances which is both Irish and international. October 1906, just a few months before the “Playboy riots” saw the premiere of Lady Gregory’s play Gaol Gate. The first night performance was delayed until WB Yeats himself arrived. He was accompanied by a tall woman dressed in black – Maud Gonne – making her first public appearance in Ireland since her separation from her husband, Major John McBride. When she was recognised, an element in the audience began to hiss and shout “up John McBride”. Then there was counter-hissing before order was restored.

This disturbance was one of that subspecies of theatrical disturbances which was directed at a member of the audience rather than a play, its author or the theatre’s management. Osborough provides another example from 1822 at the Theatre Royal in Hawkins Street, Dublin. This featured a dual bill – She Stoops to Conquer and Tom Thumb. During the interval between them the Orange faction rioted against the new viceroy, the Marquis Wellesley, brother of the Duke of Wellington. A bottle was thrown, giving rise to the appellation “The Bottle Riot”. Order was restored and a number of arrests made. The “Bottle Riot” took place on December 14th, 1822 and by Christmas twelve rioters had been arrested. In a move typical of British governments in Ireland before and since, these people were charged not with some form of public order offence but with nothing less than conspiracy to murder the lord lieutenant. In fact the bottle had been thrown not at the lord lieutenant but from the gallery to the stage and the worst that happened to the lord lieutenant was that a small piece of wood hit the cushion of the box beside him.

This piece of almost hysterical overcharging was the work of William Conyngham Plunkett, then attorney general and later lord chief justice. He had, as it happened, been seated beside Wellsley at the theatre. This was the same Plunkett who had opposed the Act of Union and then signalled his conversion to the government side by taking a supernumerary brief against Robert Emmet. He lived on to become the greatest nepotist of nineteenth century Ireland, no mean achievement.

The grand jury, unsurprisingly, refused to return a true bill on a charge of attempted murder. Plunkett then resorted to the controversial stratagem of using his prerogatives as attorney general to prefer an ex officio information for attempted murder. But he withdrew this before the trial and substituted a reduced charge of “conspiracy to riot and to insult and assault the Lord Lieutenant”. The jury acquitted one of the defendants and disagreed as to the rest. The Court of King’s Bench subsequently ordered their discharge.

The chief justice of the King’s Bench was Charles Kendal Bushe. The Bushe and Plunkett families later intermarried and the early twentieth century descendant of this union was Seymour Bushe KC, the silver-tongued advocate of Ulysses. In September 1899 the seventeen-year-old James Joyce heard him address the jury on behalf of the defendant in the Glasnevin murder case, R v Childs and never forgot his eloquence, which is quoted by the men in the newspaper office in the Aeolus episode of Joyce’s novel. But on February 7th, 1823, Bushe’s forebear, Chief Justice Bushe, laid down the law of theatrical disturbances in the case of R v Forbes (1823) 1 Crawford and Dix 157 at 158. The audience, the chief justice declared:

… may cry down a play or other performance, which they dislike, or they may hiss or hoot the actors who depend upon their approbation, or their caprice. Even that privilege, however, is confined within its limits. They must not break the peace, or act in such a manner as has a tendency to excite terror or disturbance. Their censure or approbation, though it may be noisy, must not be riotous. That censure or approbation must be the expression of the feelings of the moment; for if it be premeditated by a number of persons confederated beforehand to cry down even a performance of an actor, it becomes criminal. Such are the limits of the privileges of an audience, even as to actors and author.

So, an audience may “cry down” a play even if it does so noisily but must not descend to a breach of the peace or frightening other attenders. Their reaction “must be the expression of the feelings of the moment” and cannot be planned in advance, or it will be a conspiracy.

Osborough points out that a very similar statement of the law was later made in Great Britain in the case of Gregory v Duke of Brunswick and Vallance (1843) 1 Car and K 24.

These subtleties of the law did not justify the defendants who caused disturbance at a performance of The Dandy Fifth, a play about a British Army regiment. On the 14th April, 1902 a group of young men disturbed the performance in Dublin’s Theatre Royal with a lively rendition of “Who fears to speak of ’98” accompanied by foot stamping yelling and screaming. But they were ejected and brought the next day before Thomas Wall K.C. Chief Magistrate of the Dublin Metropolitan District there to be fined forty shillings with a month’s imprisonment in default of payment. Nine years later a reference in the same work to the Inquisition evoked choruses of “Faith of our Fathers”.

This, then, was the legal background to the Playboy riots of January 1907. In the leading history of the Irish theatre, cited by Osborough, the genesis of the disturbances is stated to be that the play

… had offended against an imaginative geography, which idealised the Western seaboard (the part of the country most remote from English influence) … and of equally sentimentalised notion of Irish femininity.

CP Curran, in his Under the Receding Wave, claimed that the favourable treatment of a parricide, the language of Pegeen Mike and the sadism of the scene involving Christy, provoked the crowd.

Thomas Le Fanu declared that the play “was thought by some to be a caricature of the Irish people which a part of the audience resented”.

The protesters were brought before Mr Wall’s colleague Daniel Mahony. Two of these were fined forty shillings and bound over to keep the peace. When, some days later, other protesters were brought before Mr Wall he quoted Chief Justice Bushe’s dicta cited above and asked why, if the protest were premeditated, a charge of riot had not been preferred. He then attacked the management of the Abbey Theatre, saying that the crowd should consider

… whether those who persisted in bringing forward theatrical procedure of such a character as to excite popular odium and opposition, and which could not be tolerated, at all events, in Ireland, where, practically, there were two worlds, one wishing to be at the throat of the other and one wishing to avoid what the other wished to intrude – whether those who were responsible for that should not themselves be brought forward.

This theme or something like it was taken up by the Irish Independent, which, in an editorial, stated that

The staging of the piece was an act of inexplicable stupidity on the part of the management on whom the heaviest  censure should fall.

It went on to say that the emergence of Synge as a dramatist “is a discovery for which that rather tiresome chatterer and poseur, Mr. William Butler Yeats, takes credit”.

Osborough also quotes Arthur Cleary, later for many years a professor of law at University College Dublin, who asserted that people had “a right to protest if they find their national theatre tending towards immoral, anti-Christian or antihuman propaganda”. He also adds the detail, previously quite unknown to me, that when the Playboy was produced in New York in 1911 it was met with organised disruption far more serious and violent than anything experienced in Dublin.

If the Playboy disturbances were in the nature of a protest against the play, and the intervention of the law was directed at the conduct of the protesters, the Rose Tattoo of 1957 is in a very different category. There, the force of the law was directed against the producer and theatre owner, Alan Simpson, who was charged with a Common Law offence of “showing for gain an indecent and profane performance”. The result showed a certain amount of confusion in the law itself.

Alan Simpson (1920-1980) was the son of a Church of Ireland minister who lived in Baggot Street and had been educated at Campbell College, Belfast before going to Trinity in Dublin. At the time of the events leading to his abortive prosecution he was an engineer officer in the Irish army, but one deeply involved in avant garde theatre, having put on the first Irish performance of Waiting for Godot. He was the proprietor of the very small (fifty-five-seater) Pike Theatre in Herbert Lane, Dublin. There, on May 13th, 14th and 21st, 1957 he produced The Rose Tattoo by Tennessee Williams. Simpson in his autobiographical work (Beckett, Behan and a Theatre in Dublin) said that he was warned about these performances of the play and asked to stop them under pain of being prosecuted. It was also mentioned that, as a serving army officer, he might be dismissed and lose his pension rights in the event of conviction. When Simpson declined to give the undertaking that was asked of him he was arrested and lodged for one night in the Bridewell before being admitted to bail. He recorded that a warder had asked “if it were naked women I was in for” and the same warder subsequently slipped him a small bottle of whiskey.

The criminal proceedings began with the hearing of depositions before District Justice Cathal Flynn (later president of the District Court) in July 1957. The object of this, from the prosecution point of view was that the district justice, being satisfied there was a sufficient case to do so, would send the defendant forward on trial on indictment. But this did not occur: on June 9th, 1958, almost a year after the proceedings started, the district justice “refused informations” and dismissed the case. These proceedings are reported at 93 ILTR 33. The district justice held that there was no evidence of intent on the part of the accused to deprave and corrupt anyone viewing the performance. He doubted, in any event if a jury would convict and said that

A jury does not connote twelve self-righteous bigots, or twelve hypocrites, or twelve humbugs or twelve hysterics, or twelve amorists, or twelve debauched roués or twelve dedicated thespians, or twelve lubricists, or twelve ritualistic liberals who have made up a martyrdom of authors or playwrights who have suffered from the enforcement of the law of obscenity.

But this was not the end of the proceedings. During the District Court hearing of those proceedings a succession of Garda officers gave evidence and said they had been given instructions by senior policemen. Simpson’s lawyers asked what those instructions had been and the guards claimed privilege and declined to answer. The district justice disallowed the claim of privilege. The lawyers for the prosecution challenged his decision and required him to state a case, that is, to refer a point of law for the decision of the higher courts. He reluctantly agreed to do so with the result that the preliminary proceedings before him stopped on July 18th to await the decision of the higher courts.

A remarkable comedy of errors then took place. In October 1957 the High Court heard the case stated and two months later ruled that the guards’ claim to privilege was valid and should have been upheld. Simpson appealed to the Supreme Court. In April 1958 the majority of that court held that a district justice conducting preliminary proceedings did not have any power to state a case, thus reinstating District Justice Flynn’s ruling. Simpson himself described this as “a cunning judgment worthy of King Solomon and the baby”.

In the result, the question of privilege had been considered by a divisional court – three judges – of the High Court, who gave judgments extending to over thirty pages. These favoured the prosecution point of view and said that the claim to privilege should have been upheld. When the case came to the Supreme Court on the defendant’s appeal the court itself raised an objection as to whether a district justice had any jurisdiction to state a case when he was engaged merely in a preliminary investigation of an indictable offence and not in a trial. As so often happens, the judge’s point proved the best point, and the Supreme Court held that the district justice had had no jurisdiction to state the case in the first place. Accordingly, all the erudition wasted on the point in the District Court and the divisional court of the High Court was absolutely in vain since the case should not have been before the High Court in the first place.

The case was then remitted to the District Court where on June 9th, 1958 the district judge delivered what must be one of the most elaborate written judgments ever delivered in the District Court, extending to some twenty-four columns in the Law Report (93 ILTR 33).

This judgment can only be described as extraordinarily liberal for its day. It surveys English and American authority and treats somewhat sceptically the mid-Victorian English decision of R v Hicklin, defining “obscenity”. It turns on the question of an absence of intent, or evidence from which intent might be inferred. At the end of the judgment the judge addresses Simpson directly and tells him that

You are … the first citizen in this country in my experience of many thousands of criminal cases to stand in the dock of this courthouse in a preliminary investigation and find your case brought to the High Court and then … to the Supreme Court.
As a result of your efforts to vindicate your position as an innocent man, we can be assured for the future in the process of holding a preliminary investigation that, to use a phrase of the theatre, ‘the show must go on’ and without any interlude for the litigation of cases stated.
In applying what I consider to be the correct legal test of obscenity to the charges; in carefully reviewing the evidence adduced by the prosecution in support of those charges, and in exercising my discretion judicially, and taking into account the evidence tendered on behalf of the Attorney General, I am of opinion that jury weighing the possibilities of this case might reasonably convic … I am not satisfied that the evidence is sufficient to justify me in committing you for trial … I discharge you.

It is, I think, important that some account of this case, heard in the heyday of Catholic Ireland, should be provided for those who do not have ready access to the Law Reports. This is not the least of the services Professor Osborough has rendered in writing this book.


Adrian Hardiman is a justice of the Supreme Court of Ireland.



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