Banned in Berlin. Gary D. Stark

loss of a theater's license but also, in Russia at least, in a stiff fine and up to three months imprisonment. Even liberal England and the Third French Republic subjected theaters to prior censorship. The English Licensing Act of 1737 and Theatres Act of 1843 required that all privately owned theaters be licensed and all new plays be submitted to the lord chamberlain for approval before being performed. The lord chamberlain—a minister of the Crown and member of the House of Lords who was neither accountable for his actions to the House of Commons nor need give any reason for his censorship decisions—could prohibit or demand deletions in any drama if he believed “it is fitting for the preservation of good manners, decorum, or public peace to do so.” This system of theater censorship remained in force until 1968. In republican France the prior censorship imposed on all Parisian theaters in March 1871 was extended to the entire nation in 1874. Before a public theater in France could announce or perform a new drama, it first had to be submitted to a special dramatic censorship commission for approval; any work banned from the Parisian stage was also prohibited throughout France. Commission decisions could be appealed to the minister of public instruction, cults, and fine arts, but his decision was final. France's censorship system functioned until 1905 when the senate suspended it because the volume of submitted scripts was more than the censors could keep up with. Beginning in 1906 French theaters were free to perform any work they wished, although local police inspectors who regularly visited the performances could close down any that endangered public order and morality, and the theater manager could be prosecuted under the regular provisions of the criminal code.

      Because of its federal structure the German Empire had no uniform, national system of theater censorship like England, France, Denmark, or Russia. In the free cities of Hamburg, Bremen, and Lübeck, in the medium-sized states of Württemberg, Baden, Braunschweig, and Hesse, and in all the tiny states, privately owned theaters were not subject to any prior censorship, although in Baden theaters had to notify police in advance of works they intended to stage. (Authorities in these areas could of course halt performances that contravened the Criminal Code or whose highly offensive content presented a danger to public peace. On rare occasion, authorities in Württemberg requested a script beforehand and then forbade the theater from performing the piece.) While there were thus several localities where theaters were virtually free of censorship, these liberal regions comprised only a fraction—about 15 percent—of the empire's population, and in the tiny states there were in any case few cities and commercial theaters. Prussia, Bavaria, and Saxony—the three largest states, which between them contained over 80 percent of the nation's population and in 1900 twelve of Germany's fifteen largest cities—each subjected their theaters to some form of formal or de facto prior censorship, as did Alsace-Lorraine. ³⁸

      Prussia's system of theater censorship, which was the most comprehensive in Germany and served as a model for the other major states, dated from the reactionary 1850s. Like Schiller, Berlin police president Carl von Hinckeldey regarded the theater as a “moral institution, a school…[that] the state can use as a lever for furthering general morality and all its other objectives.” In July 1851, responding to complaints from exasperated theater operators about arbitrary and unpredictable police meddling, von Hinckeldey ordained that henceforth “no public theatrical performance may take place within the greater Berlin police district without the express approval of the Police Presidium.”³⁹ All commercial theaters were required to submit to the police, fourteen days in advance, the text of any new theatrical work they wished to perform; permission was granted only if police had no objections “from a commercial or moral standpoint or for reasons of [public] security or order.” Police could immediately halt any unauthorized performance and the operator could have his theater license revoked and be fined or imprisoned for “insubordination.”

      Berlin's system soon became a model for other Prussian cities. Before and during the imperial era, ministers of the interior continually urged local police throughout Prussia to adopt Berlin's theater censorship ordinance, and some cities like Breslau and Cologne complied.⁴⁰ Although police in Frankfurt, Düsseldorf, Hanover, and Aachen never formally promulgated a censorship ordinance, they nevertheless exercised a de facto prior censorship under which theaters “voluntarily” submitted works for approval; police then decided what excisions or alterations had to be made in the text or whether the work had to be dropped from the repertoire altogether.⁴¹ Berlin's method of prior censorship was also adopted in Saxony and Bavaria. After 1871 police in Dresden, Leipzig, and Munich issued ordinances nearly identical to Berlin's and these, in turn, were soon imitated by authorities in many smaller Saxon and Bavarian municipalities.⁴²

      If police would not allow a drama or authorized its performance with certain conditions (for example, that portions of the text be excised or altered), a theater manager could appeal. Two avenues were open: a plaintiff had the right to appeal to a higher level within the administration (Beschwerderecht), or, in most states, could initiate a civil suit in a special external administrative law court (Klagerecht). Appeals up the administrative hierarchy—first to the county prefect (Landrat), then to the district administrative president (Regierungspräsident), the provincial governor (Oberpräsident), and even ultimately to the minister of the interior himself—were relatively fast and inexpensive. Unfortunately, they also had little chance for success since each administrative official generally relied on the judgment of his subordinates and upheld their decisions. Moreover, the administrator who heard and ruled on a complaint did not have to state the reasons for his decision.

      Those with the time and money therefore usually appealed through the administrative law court system. These independent, nonpartisan courts were established in nearly every German state in the 1870s to protect citizens against the administrative abuse of power. Using formal civil court procedures (open sessions, representation by counsel, written briefs, oral testimony, cross examination, etc.) these bodies adjudicated citizens' complaints over administrative actions and ensured that administrative orders, decrees, and decisions conformed to the law. After reaching a decision these courts issued a written verdict citing the precedents and statutory bases for their ruling and billed the losing party for court costs (which could reach as high as five thousand marks).⁴³ Although practices varied, in most states the appeal of first instance was to the local district administrative council (Bezirksausschuß) or its equivalent—a partially appointed, partially elected board of administrators and lay people that handled some aspects of local self-administration and sat as an administrative law court when the need arose.⁴⁴ The council's decision could be appealed to the state supreme administrative law court (Oberverwaltungsgericht), the highest instance. These bodies were composed of judges trained as administrative officials and judges from the regular court system, who were all appointed for life and enjoyed the rights and status of other judges—that is, they were completely independent from the state legislature, the regular administration, and the ordinary civil and criminal court system. Recent studies of the Prussian Supreme Administrative Law Court confirm that it achieved a meaningful (if still somewhat limited) rule of law in Germany, was relatively liberal and citizen-friendly, and ruled surprisingly often against the police and for the individual rights of plaintiffs.⁴⁵

      Because of their independence and strict adherence to legality, administrative law courts effectively safeguarded citizen's rights from arbitrary or discriminatory actions of overzealous state officials. In Prussia, Saxony, and Baden, where their jurisdiction was fairly broad, the district administrative councils and the supreme administrative law courts set important limits on the powers of the police and freed numerous dramas local police tried to ban. In Bavaria, however, the competence of the administrative law court system was more limited, especially before 1900; since judges there had no jurisdiction over what were considered purely administrative censorship decisions, censorship appeals took place entirely within the Bavarian administrative hierarchy, where they were invariably rejected. (For example, none of the censorship decisions of the Munich police director were ever reversed by his superiors.⁴⁶) Given the unlikelihood of success, few Bavarian theaters bothered to appeal the censor's decisions. And since theater licenses in Munich and other Bavarian localities were granted on the express condition that censorship ordinances be observed, any theater that sought publicly to perform a new work without first obtaining police permission could have its license revoked; moreover, under the Bavarian Police Code the theater operator could