The Use of Legal Records in Reproducing Theatrical Performances

International Association of Libraries and Museums of the Performing Arts

Société Internationale des Bibliothèques et des Musées des Arts du Spectacle

The Use of Legal Records in Reproducing Theatrical Performances

William Green (New York)

Documentation et Art de l'Acteur
Records and Images of the Art of the Performer

18ème Congrès International, Stockholm 3-7 septembre 1990
18th International Congress, Stockholm 3-7 September 1990
Editor: Barbro Stribolt (Drottningholms Teatermuseum). Stockholm : 1992, p. 11-16

In her introduction to that monumental bibliographical tract Performing Arts Libraries and Museums of the World (2nd ed.), Rosamond Gilder reminds us that until about the beginning of this century "the theatre, perhaps the oldest of the arts, was considered at best frivolous, at worst downright wicked, its records as unimportant and ephemeral as its creations".
She then goes on to point out how this view has become obsolete and how we now have libraries, museums and theater collections throughout the world dedicated to the collection and dissemination of material not only from printed books or through visits to such living theater museums as Drottningholm but also from the collection of "fugitive material" sources defined in her words as "those precious, fragile records of an evanescent art such as playbills, programs, photographs, sketches, prompt books, notes, correspondence - of the new mediums of recording phonograph discs, tape recording, kinescopes, films, film clips, as well as the more familiar collector's items - books, manuscripts, pictorial material and the actual costumes and accessories of performers".

All of us at this conference are aware of the accuracy of Miss Gilder's observations and of the role in theater research of the ancillary organizations that have become so important to our discipline such as the International Theatre Institute - which Miss Gilder helped found - or of the International Federation for Theatre Research. We also know about specialized theater bibliographies such as the International Bibliography of Theatre or about the wonderful series Performing Arts Resources published by the Theatre Library Association in the United States.
We can, for example, dip into Volume 4 of this series, which is dedicated to international theater collections and learn about the Canadian Stratford Festival archives. Or we can get information on theater research collections in Berlin. Even if some of the Volume 4 articles duplicate material in André Veinstein's Performing Arts Collections, they update his entries.
No longer are theater scholars unable to get at the resources we need to carry on our work.
We can, as Mary Henderson has written of American researchers, "take to the skies and eventually land on the steps of performing arts collections all over the world with the purpose of unearthing that still unpublished fact or bringing to light that undiscovered manuscript".

Yet with all these specialized resources open to us and with the stress in their titles on the words "Theatre Museum," "Performing Arts Collection" or "Theater Historical Collection" we tend to lock ourselves in and become insular in our theatrical research. Now, I am well aware that theater scholars and historians realize they must look beyond their own discipline in executing their research, and I am conscious that several of the observations herein may be like "carrying coals to News castle" for a gathering of theater librarians and museum curators.
In biographical research, for instance, we do turn to genealogical libraries and collections. For historical or governmental information we use such sources as that English treasure trove, the Public Record Office or the Greater London Record Office.

Yet, one of the most fascinating and important sources for theatrical information is all too often overlooked by the theater scholar. And that is the legal document. Legal documents are primarily various types of court papers such as wills, inventories of estates, insolvency papers, common orders and trial records.
The latter two are particularly of value to theater scholars, for as Francis T. Murphy, Presiding Justice of the Appellate Division of the New York State Supreme Court, had written a few years ago, these papers "are generally the result of litigation stemming from breach of contract, copyright infringement, royalty payment and breach of promise." In themselves, such documents may make dull and dry reading, for they are written in legal jargon and are very formulaic. But there is drama behind them as we probe the causes of the litigation. And as we, as theater audiences, recall the tension the great courtroom dramas and trial scenes have created within us.
Think for a moment of such an English-language play as Agatha Christie's Witness for the Prosecution or place yourself at the trial of Vittoria Corombona in John Webster's The White Devil as she defends herself against the charge of being a whore. Reputation is being calumnied. Or once again make yourself a spectator at Shylock's trial in The Merchant of Venice. What is the litigation about? A bond with a forfeit penalty of a pound of flesh! In plays such as these we watch the law at work. And we realize that the law and the theater can be fascinating partners.
Now what about the trial documents themselves? They are a type of scripts and litigants, the characters. Behind the specifics of a case lies a drama that may be superficial or may be of great significance to us as theater researchers. A drama that may provide all sorts of theatrical information and especially for years past, details of performances that exist nowhere else.

Consider, as an example, the dramatis personae in a case among the trial records preserved in the Queens College Historical Documents Collection at my own institution. This particular case record contains an affidavit filed in the New York Supreme Court for the County of New York on 23 November 1909 listing George M. Cohan and Samuel H. Harris as the plaintiffs and Eugene Walter and David Belasco as the defendants. Cohan and Belasco, two of the greatest theatrical figures of the American stage; Harris, a leading producer of his day, and Walter, a popular playwright, noted especially for his melodrama The Easiest Way (with which this case deals). What a cast!
A further example from the Collection archives. this one filed with the same court on 2 November 1907, has for its dramatis personae some of the most important individuals in the heyday of Yiddish theater in America, naming David Kessler, Jacob Adler and Jacob Gordin in the affidavit. Kessler and Adler were giants among the Yiddish actors, and Adler was also very much involved with the business side of the profession. Gordin was one of the outstanding Yiddish dramatists of his day. This common order provides insight into New York Yiddish theater hitherto unknown.

So it goes. Other star performers in just this one archive - whether playing plaintiff or defendant - include Victor Herbert, Florenz Ziegfeld, jr., P.T. Barnum, even George Bernard Shaw. And they remind us how valuable a research resource legal documents are.

Another type of documentary material found in trial records is that category of supporting evidence entered into the trial record termed exhibits. Not every trial may need exhibits, but when they are filed as part of the trial record, especially in a trial dealing with the theater, they may indeed provide us with riches. For the litigants often use what Rosamond Gilder termed "fugitive material", e.g. playbills, programs, or newspaper clippings and reviews, to develop their cases. How important such material may be in reproducing theatrical performances we shall soon see.

As an excellent example of this type of material, our Collection has three exhibits included in the trial papers for a case involving the provenance of what became a popular early twentieth century vaudeville sketch entitled Buster's Burglar.
The three exhibits consist of advertising matter issued by the producer Boyd Coleman & Company which give the background of the sketch and which contain a number of photographs of Buster Brown and of the production. These are probably the only surviving documents of their type dealing with this comparatively minor bit of American vaudeville history. But through them we are able to reconstruct the Buster's Burglar sketch.

What is especially important about trial exhibits is that they do not become part of the clerk's copy of the trial testimony. Thus consulting an official transcript of the trial will not reveal the actual contents of an exhibit in respect to such details as the photos or scene breakdown. Admittedly, we at Queens College were fortunate to have received the original court documents thereby allowing us to search for exhibits. To a lawyer, such finds are merely documents in a case. But to a theater historian they take on a life of their own in aiding in accurate reconstruction of a performance, a sketch or other important information about a moment in theater history.

Another and more common form of legal document used by researchers in many fields is the will. Though usually not a prime document in aiding in reproducing theatrical performances, it is mentioned here mainly that it may not be overlooked as a tool in theatrical research. Wills from the nineteenth century and earlier periods are particularly rich sources, for they were much more detailed in many instances than modern wills.
The trick in using wills is in learning where they were filed at the time of death, and this in turn may depend on genealogical research. The hope with a theatrical personality is that the will may give information about a stage career or about stage-related possessions the individual may mention.

An example is the last will and testament of William Hallam, the eighteenth century English actor and theatrical entrepreneur who was responsible for the start of professional theater in America. His last will and testament has survived. From it we learn that Hallam's main concern was his theatrical possessions, his "clothes and scenes belonging or in any way appertaining to the stage". So concerned was he about these that, as he notes, "whereas my wife, Ann Hallam not being capable to manage or carry on the affairs of the stage", he appoints a friend to serve as his executor.
This particular will is especially important for the study of early American theater because it provides us with hitherto unknown details about Hallam's life and the theatrical company usually associated with his brother Lewis's name. It also contains autograph signatures of Hallam and of this nephew Lewis Hallam, the younger, who was one of the witnesses, and who was also one of America's outstanding early actors.

As can be seen from the examples I have cited above, legal documents are indeed an important source for theatrical information. However, above and beyond the individual document dealing with a specific case or concentrating on a few individuals, the legal document has other values for the researcher. In law, each document or court record stands for an individual event. But a trained researcher going through many documents may be able to make creative interpretations that would not otherwise be obvious.
For example, the documents at Queens College classified as court orders when viewed collectively reveal that David Belasco, that eminent Broadway producer, was frequently engaged in litigation - as was the composer Victor Herbert, whose work was so important in the development of the Broadway musical. What does so much litigation reveal about these men or their careers or about theatrical conditions of the time? Or when other producers of roughly the period 1869-1910 turn up frequently in court records, we can learn about the struggle between the monopolistic American producing organization known as the Theatrical Syndicate and the independent New York-based producer.
Again, excessive litigation between performers and producers in the period 1900-1919 can reveal much in regard to why actors in the United States organized themselves into their labor union, Actors Equity.

Having discussed the general use of types of legal documents helpful in theatrical research, I now will demonstrate how such documents specifically can serve in the reconstruction of actual performances. Let us first recall some of the names cited above. David Belasco, George M. Cohan, Sam Harris, Buster Brown and William Hallam. These are more or less well-known in American theatrical history. But what about Theodore Allan and The Mabille Palace or Samuel and Elizabeth Batchelor and Batchelor's Music Hall or Henry Unger and the Dramatic Hall or Edward Barlow and the Casino?
These are but a few names one can seek for in vain in George C.D. Odell's Annals of the New York Stage or in Mary C. Henderson's accounts of the New York theater or in the writings of other historians of the American stage.

The reason for this is that the above individuals and theaters represent a segment of the New York theatrical scene associated with unlicensed performances in the period from approximately the early 1870's through late 1880's. Such production activity came about as a result of the passage of a licensing act (Chap. 836) by the New York State Legislature on 22 May 1872 "to regulate places of public amusement in the City of New York."
As a result of this legislation, a thriving illegitimate theater industry sprang up, which, by its very nature did not get the journalistic coverage that the legitimate theater did. Thus, the usual press reports did not exist, and programs, bills and the like materials did not survive or get collected to make documentation of this late nineteenth century activity possible.

Legal documents - court papers - serve as the preservative for this bustling, quasi-concealed segment of New York theater. These unlicensed theaters existed primarily in what has been described as concert rooms and, in the words of Odell, "retreats of rum and beer" (X, 695). And there was an organization in New York City which had been empowered by the 1872 Licensing Act to ferret them out. This was the Society for the Reformation of Juvenile Delinquents in the City of New York, which had been incorporated in 1824.
Now, the Society, which was concerned mainly with the moral reform of juvenile delinquents, over the years gained such power among New York politicians with this mission (Pickett, passim) that it was named as the policing agent in the 1872 Licensing Act. The fee for the license - which covered every possible category of theatrical activity - was five hundred dollars. And the fine for an unlicensed performance was five hundred dollars with such money going to the Society.
Even the licensing fee, which was paid to the City, was turned over to the Society for the Reformation of Juvenile Delinquents (hereafter called S.R.J.D.) "for the use of said Society" (Licensing Act, sec. 4). In other words, although at an earlier date in its existence, the Society had established links between juvenile delinquency and the theater - links which need not concern us here, by 1872 the Society had come to view the New York theatrical world as an excellent source of revenue.

And its agents swooped down on the relatively unknown producers operation away from the mainstream New York theater locations of the day without being licensed. When discovered by the Society's very efficient investigators, the producers had court action taken against them. Each case required that a formal set of legal papers be drawn up with the Society for the Reformation of Juvenile Delinquents as the plaintiff and the theater operator as defendant.
The complaint papers - a veritable treasure-trove of information for us - give the name of the proprietor; the name and location of the theater; a physical description of the premises; a description of the entertainment and its category, e.g. dancing, dramatic performance, minstrel-type, variety; information about the physical details of the house; information about the audience and how the production was advertised, e.g. hand bills distributed to passers-by; admission fees, sometimes as low as twenty-five cents, sometimes nothing (with the hope that the audience would buy drinks at the adjacent saloon); and frequently a copy of the bill or program.
An occasional side comment was entered into the record by the Society's agents giving additional information such as the premises being a "pretty waiter girl" saloon and theater, a "resort of a low class of people of both sexes" (State of N.Y. v. Batchelor, N.Y. Supreme Court 1882).

To illustrate how court papers can be used to make a detailed recreation of a performance and its environment, let us look at extracts from the records of a few cases of the period. Theodore Allen was brought into court in December 1879 for operating an unlicensed theater known as The Mabille Palace at 59 Bleecker Street.
The complaint against Allen notes that "the interior of a hall on the ground floor of said building was fitted up in a manner adapted to the exhibition of performances, of minstrelsy, and other entertainments of the stage, the rear portion thereof being set apart for and devoted to the exhibitions hereinafter mentioned." The exhibitions, or entertainment, the night of 29 November consisted of:

Song "My pretty red rose" by a female
Song and dance by the same female
Sentimental song by a male minstrel
Comic song by a female minstrel
Chorus by the other minstrels
In response to an encore said female sang another song
While singing and performing said minstrels were accompanied by the piano by a male pianist. He also played musical interludes during the performances.

From the deposition we also learn that the "performances were advertised by posters on bill boards placed on street in front of said concert room" and "that an audience composed of about one hundred persons, including many females, was present as spectators of said performances" (S.R.J.D. v. Allen, N.Y. Supreme Court 1879).

Earlier that month, on 3 November, the court papers indicate that Allen presented an evening's entertainment consisting of:

Numerous musical selection played on the piano by a male pianist -
Comic Song by a professional minstrel named Wilson - piano accompaniment thereto by the said pianist -
In response to an encore said Wilson sang a comic song, during which he used broken English - and German - and imitated a Jew - gesticulating violently at times. Piano playing by the same pianist -
Song by another minstrel - Sung in a decided Irish brogue- Said minstrel also imitated an Irish laborer and hobbled up and down the rear portion of the room.

A final example of these performance details comes from the charges the S.R.J.D. brought against Edward Barlow and Frank Barlow in January 1882 for operating an unlicensed theater known as the Casino at 51 Bowery. This theater, described as a concert room in the court papers, was equipped with "a raised stage, scenery of flies and flats, orchestra; tables and seats arranged for spectators" (S.R.J.D. v. Barlow, N.Y. Supreme Court, 1882).
The detailed account of the S.R.J.D investigator of the performances of 5 January 1882 again, as with the Mabille Palace performances, allows us an opportunity through our mind's eye and ear to reconstruct a variety presentation in this nether world of New York theater. The entertainment this particular evening consisted of:

[a] Comic song by a female who was dressed in fancy costume and wore flesh colored tights and fancy slippers - at the end of each verse she waltzed up and down the stage - accompaniment by the orchestra - Being encored she again appeared upon the stage and sang another song. Orchestra accompaniment to same. Musical selections by the orchestra. Song by another female who was dressed in fancy costume and wore tights of a light color and fancy shoes - orchestra accompaniment to said song - Being encored she again sang - orchestra accompaniment - Music by the orchestra Clog dance by a male performer called "Billy Fields" - said performer was dressed in costume of whites shirt, red knee-breeches, and colored stockings. While performing he was accompanied by the orchestra.

Whether the case involves a variety performance, a minstrel show, even an opera, approximately four hundred sets of documents have survived dealing with this segment of theater. They are all legal records indexed under the Society for the Reformation of Juvenile Delinquents in the City of New York.
No theatrical cross-referencing exists for them. Certainly a serendipity find. Yet one that not only permits us to reconstruct performance and production details of New York's illegitimate theater activity in the late nineteenth century but also demonstrates the value of legal documents as a resource in theater research.

Works cited

An Act to Regulate Places of Public Amusement in the City of New York, Act of the Legislature of the State of New York, Chap. 836, 22 May 1872.

Gilder, Rosamond. Introduction. Performing Arts Libraries and Museums of the World. 2nd ed. revised and enlarged. Paris: Editions du Centre National de la Recherche Scientifique, 1967.

Hallam, William. Last will and Testament, 30 January 1759.

Henderson, Mary C.. ed. Introduction. Performing Arts Resources. Vol. 4. New York: Theatre Library Association, 1978.

Murphy, Francis T. Remarks in pamphlet for exhibition "Las and the Theatre: New York City 1880 - 1912." At the Appellate Division of the New York State Supreme Court, First Judicial Department, from December 1985 to June 1986.

Pickett, Robert S. House of Refuge: Origins of Juvenile Reform in New York State, 1815 - 1857. Syracuse, N.Y.: Syracuse University Press, 1969.

Society for the Reformation of Juvenile Delinquents in the City of New York, The v. Allen, New York Supreme Court, 1879.

....., v. Barlow, New York Supreme Court, 1882.

State of New York. Batchelor, New York Supreme Court, 1882.

URL: http://www.sibmas.org/congresses/sibmas90/sto_3.html

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