Of these five hundred very few, we may be sure, had paid more than a gulden for their seats. The better places were taken by the subscribers and by those who had bought half-price tickets, while a good part of the audience occupied seats that cost half a gulden and less. By multiplying by 60 we obtain the sum of 21, gulden or about dollars. This seems an incredibly small sum, yet it is difficult to believe that the total of the annual receipts was much more than that.
The increased receipts enjoyed by Het Nederlandsch Tooneel resulted partly from the higher prices charged and partly from the revived interest in the theatre among the population,which had grown tired of seeing the same players year after year. The company probably made as much i. Yet it is clear that the life of the players there were usually from twenty to thirty would hardly have been affluent even if the total receipts had been divided among them, but a good part of the money had to be used for stage settings, costumes, transportation, paying the musicians and stage hands, and other major and minor expenses.
The various directors of the "Royal Players" spent many a painful hour over figures that yielded them ridiculously small profits or disclosed deficits that made their life uneasy for months and even years to come, and this in spite of the fact that the company enjoyed greater privileges than any other theatre in Holland with the exception of theAmsterdamsche Schouwburg. These privileges will be discussed later. The Algemeen Nieuws- en Advertentieblad was a Rotterdam newspaper, and the performances of the Dutch company reviewed in several of its issues by "Proficiat" had taken place in that city.
The cost of the pamphlet was twenty cents, "for the benefit of the poor". The reply of the directors would be of greater interest if "Proficiat" had been a devoted student of the drama and the theatre, but it is obvious that he was a self-appointed critic who was hardly qualified to pass judgment on any company, no matter how poor it might be. It was therefore an easy matter for the directors to defend themselves against his denigrations.
They pounce gleefully upon his reference to the "tragedies" of Rossini and to his description of Vondel's Gijsbrecht as a drama of ill repute! They have been devoting especial care lately to this province of their duties, they declare, and the applause with which the Rotterdamsche Schouwburg resounds whenever a vaudeville is presented and they try to present one at every performance , assures them that their efforts have not been in vain. Yet he had this to say of the players: Mejuffrouw Hoedt was an excellent and perfect Emilia; Hoedt was quite good as the Prince, but lacked temperament; Stoopendaal, although no Galotti, was also good; Bingley was praiseworthy as Appia for Appiani, of course ; Mejuffrouw Stoopendaal was splendid as the mother; Mejuffrouw Wicart was better as Orsina than in other parts, but not as good as the great Wattier.
Nicholas' Eve, when playssuitableforchildren were usually given. He accused the company of having cast aspersions on the Rotterdam clergy from the stage; however, the directors assure the reader that this is downright calumny and that they have nothing but the profoundest respect for this, the most venerable of all the professions. They suggest that "Proficiat", instead of continuing his destructive criticism, help them in devising means to keep the throngs that crowd into the theatre under better control. Up to the Dutch as well as the French company had to pay rent for the use of the theatre on the Korte Voorhout.
On July 29, , the municipal government acquired the hotel Weilburg, as the building was still called officially, and from then until the theatre was city property. No, it was the French opera company they were interested in, and they bestowed lavish favors on it. During these years the French company received thirty thousand gulden from the community each year, and from the King an annual subsidy of from twenty to twenty-four thousand gulden. Willem I also placed his recently organized court orchestra at its disposal.
The Dutch company had to be content with an annual subsidy of ten thousand guilders from the King and exemption from the rental fee. It had to pay for its own orchestra. By a decree of April 13, , the property became part of the King's possessions. Willem I, who attended the performances of the French opera company more or less regularly, named Baron Sirtema van Grovestins intendant of the royal theatres.
TheHaagsche Schouwburg thus became a court theatre. During the period from to the French opera company at The Hague ranked third among the opera houses of Europe, after Paris and St.
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From to the management of the Dutch company enjoyed an annual subsidy of sixteen thousand gulden from the King, but this was a small sum compared with the money spent on the French company, which cost him from , to , gulden each year. During the season of no grand operas were presented at The Hague, yet the production of French comic operas, vaudevilles and plays cost , gulden, with the orchestra expenses , gulden.
To meet this sum the King contributed , gulden J. Closings in mid-season because of the death of a member of the royal family usually entailed a severe loss for the management, astheattendance was fairly good during this time. Willem Bingley and Jan Hendrik Hoedt were the co-directors of the Dutch company until February, , when the intendant obliged the former to resign. The reasons for this measure are nowhere fully explained, but it is apparent from some reviews in the Spectator that he was guilty of unmannerly conduct on the stage and of serious neglect of his managerial duties.
He died in the same year at the age of fifty. Hoedt died in September, By far the most important theatre in the history of the Dutch stage is the Amsterdamsche Schouwburg. Its period of greatest glory extended from , when the commissioners of the theatre engaged the company of Andries Snoek, till about Johanna Wattier was active there from to , when she retired. Majofski, J. But after the death of Andries in , the Amsterdamsche Schouwburg suffered a decline, and during the rest of the period bef ore the conditions there were almost as unfavorable to the development of a national theatre as at The Hague.
In the early 'Forties the theatre was managed by a group of six actors and a scenic artist, J. When Reinier Engelman, the leader of the group, died in , sharp differences arose among the others, chiefly between Peters and de Vries. An open break occurred in the spring of , when Peters severed his connections with the Amsterdamsche Schouwburg and went to The Hague. It was said of him that he was determined to ruin the theatre by attracting its most talented players to the court city; perhaps he hoped to force the directors to implore him to come back. After Hoedt's death Peters was the sole head of the Haagsche Schouwburg until the spring of Although he effected some improvements at The Hague, he was too temperamental a person to be a successful director, and he had only himself to blame for some of the serious reverses which he suffered during these years.
At one time he was the loser in a suit for damages brought against him by W. In J. Peters is reported to have lost 40, gulden of his own money in , through mismanagement, it seems. An incredibly large sum! Other misfortunes also befell him. In March, , his best actress, Jacoba Naret Koning died, scarcely eleven months after he had brought her to The Hague. During the early 'Fifties a reconciliation took place between Peters and de Vries, and the former made occasional guest appearances at the Amsterdamsche Schouwburg.
In the season of a number of the playbills of the Dutch company at The Hague were signed by both Peters and de Vries. Perhaps it was again intended in a half-hearted way to join the companies of the two royal theatres, a plan that had been under consideration once before 1. If this was the case, nothing came of it, for on April 30, , Peters created great confusion among his players by withdrawing suddenly from his position, although the contracts for the following season had not yet been drawn up. On June 1, , the Haagsche Schouwburg ceased to be royal property and again passed under the control of the municipal government, which took upon itself the debt of , gulden which still remained from the loan made in The King continued to give an annual subsidy to the Dutch company, but it amounted only to ten thousand instead of sixteen thousand gulden from now on.
No doubt Peters had been aware that a change was imminent. Perhaps he was tired of The Hague and considered it advisable to retire from his position during this period of transition. Or perhaps he was not unwilling to continue as director of the company, but hoped that his sudden resignation would shock the municipal government into offering him the management under more favorable conditions. This is not unlikely, for he continued to make The Hague his home for the next years, although he was again playing at the Amsterdamsche Schouwburg.
Whatever his intentions were, Peters maintained that the thirty players of the company, with the exception of P. Morin, Suze Sablairolles, the van Ollefens, and B. The actors, on the other hand, charged that he had foully betrayed them by suddenly withdrawing before any of them had been engaged for the foliowing season. The players now united under the leadership of one of their number, J. Hammecher, and continued to give performances at the theatre during the following months, calling themselves "de vereenigd gebleven Leden van den voormaligen Koninklijken Hollandschen Schouwburg" the united members of the former Royal DutchTheatre.
The municipal government of The Hague consists of two bodies, the "Raad" or Council, and the "Burgemeester en Wethouders" or the Burgomaster and Aldermen. The former body represents the legislative, the latter the executive branch of the government. The Mayor is an appointee of the Crown, the Aldermen are chosen from the Council and are responsible to it for their official utterances and decisions.
Article of the municipal law of The Hague states that the privilege of using any community property, by lease or in any other way, can be granted only by the Council. It was therefore the Council's task to decide on the request of the Dutch players. After the resignation of Peters, quarrels had broken out among the members of the company, and during the hearings of the Council on the petition accusations and counter-accusations filled the air until some of the councillors were inclined to wash their hands of the whole matter and turn it over to "B.
Finally the Council granted the request of the Dutch players, although, strangely enough, the concession of the French company for the same season was granted by "B. Two of these were seriously considered by "B. They were made by two pairs of 1 The Burgomaster and Aldermen are briefly called "B. Hammecher, and B. Valois, all of whom except Valois were appearing at the Haagsche Schouwburg. The former two assured "B. The mayor and aldermen were inclined to give them preference even after they had learned that the actor had made no promises to any of the applicants.
When the preliminary report was laid before the Council, a heated debate arose. One of the members, Mr. The impression had thus been created that the more valuable and important sic! This untenable situation could be corrected only by having the same body of the municipal government make both appointments, and he therefore made the motion that the Council be entrusted with this task from then on. This motion was rejected by eighteen to sixteen votes, so that thenceforth the concessions for both the Dutch and the French companies were granted by "B.
According to Article of the municipal law the Council had the right to demand that "B. The Council never made use of this article, and "B. They did not bother to send any more preliminary reports to the Council, but simply confronted it with the fait accompli of the concessions. No discussions on the matter took place in the Council meetings, and the public was therefore kept in the dark about the way in which the city's theatrical affairs were being conducted. On March 28, , "B. In the annual reports issued by "B. Considerable satisfaction with the directors is expressed in the reports for and In view of the circumstances and the means at their disposal they are said to have shown themselves worthy of the trust placed in them 1.
In the satisfaction of "B. In the report for "B. From the report for one learns that the Dutch theatre under the direction of Valois is prospering and that it is winning the public's favor more and more. It is apparent from these reports that they were not blind to the sad state of the Dutch theatre, but they were not prepared to contribute in any way toward its betterment. The report for informs us that Valois is untiring in his efforts to maintain the undertaking and to raise it to a higher level. But the great dearth of good players and of good plays is a serious obstacle to his endeavors and gives a direction to them with which they, "B.
Yet there is nothing that can be done about the matter5. It was possible, however, for the municipal government to improve the status of the French company. The city annually paid for the music and the settings of two new opera productions, but the Dutch management was not permitted to benefit by these settings until they had been used twenty times by the French company, that is, af ter three or four years. For the ten years from to the French management was granted , gulden by the ' Algemeen verslag van den toestand, der gemeente 's-Gravenhage.
During the same period the Dutch company received , gulden from the King, but it was favored with no contribution from the municipal governmentx. The Haagsche Schouwburg, however, enjoyed more advantages than any other Dutch theatre with the exception of the Amsterdamsche Schouwburg 2. The management did not pay any rent. Heating and light were free. The majority of the workers who set the stage and took care of the building were recompensed by the city government.
All these privileges and others, including the payment of the patent and the taxes on the building, amounted to an annual value of approximately 12, gulden. It is obvious that a good ensemble could have been gathered at The Hague if the granting of the concession had been made dependent on the strict fulfilment of certain stipulations regarding the organization of thepersonnel, thenumber of rehearsals, the choice of plays, and so on.
In spite of these privileges the Dutch company had to struggle to carry on. Commissarissen der Rotterdamsche Schouwburg-Vereeniging contra de Directie van den Koninklijken Hollandschen Schouwburg The arbitrary treatment of the management of the Royal Dutch Theatre by the directors of the Rotterdam Theatre Society , vehemently deploring the arbitrariness with which the administrators of the Rotterdam theatre demanded that the company give frequent performances with Anton Peters and other guests, who asked fees which the directors were not prepared to pay.
In the administrators gave the concession to J. Valois was obliged to evacuate the building, and although he continued to give performances in Rotterdam, his receipts were small, a net profit of guilders an evening being the most he could expect3. Schnarfnita, Het Nationaal Tooneel in Nederland, p. It, too, did not have to pay rent. Worp, Geschiedenis van het drama en van het tooneel in Nederland, II, p. Schnarfnita, op. According to Schnarfnita the Delftsche Schouwburg was also closed to the company of Valois with the year During the season of he encountered a deficit of guilders, which he had to pay out of his own pocket.
No wonder, then, that he gazed with envy at the blessings bestowed on the French company and considered himself treated in a niggardly fashion. In he sent the Council a request for a subsidy, but this was not granted. The Dutch management did, however, receive certain additional, although minor, privileges, for henceforth the municipality furnished the pay of the extra stage-hands which were needed from time to time, of the fire-watch, and of those hired to keep the building clean, expenses which amounted to about six hundred gulden a year x.
On October 17, , the Dutch company celebrated the fiftieth anniversary of the Haagsche Schouwburg, but the occasion does not seem to have been the cause of exceptionally great jubilation. Charlotte Birch-Pfeiffer's drama Dorp en stad, of de vrouw van een' professor Dorf und Stadt was played for the first time, and a poem by L. It consisted of solo passages for some of the company's leading players and of choruses spoken by the whole personnel. Vorst en Vaderland! The same banal operas by Donizetti, Meyerbeer, and others had been given so often that even the most ardent patrons tired of them and stayed away.
Since the company ended each season with a large deficit, the Council appointed a commission to investigate the situation and to suggest possible remedies. The commission's report was made public on February 12, It proposed that 65, gulden be appropriated by the Council for the enlargement of the theatre. The city needed a larger auditorium, for the population had increased from 40, in to 80, in The increase in l A. Jacobson, op. The Dutch company would also benefit by the change, for the building was of ten filled to capacity when it performed.
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The report makes it clear that during the late 'Fifties and the early 'Sixties the Dutch presentations were better attended than the French. The commission's suggestion was accepted, but proved to be more expensive than had been expected, for the Council had to appropriate 83, gulden. Two hundred and sixty seats were added, so that the seating capacity was now The distribution of seats was as follows: Stalls 68 Parquet Baignoires First balcony Second balcony Third balcony 90 Amphitheatre of the third balcony The changes that were made did not prove to be entirely satisfactory.
The demand for greater safety from fire caused new doors and aisles to be built into the theatre. Additional cloakrooms were also introduced. The result was that the seats and rows were crowded together, and many found the theatre so uncomfortable that they preferred to stay away. Certain bad features of the building were not corrected. A door with a common lantern above it had been built into the semi-rotunda which connects the two wings, thus destroying the architectural harmony of the building.
One of the tympanums above the fagades of the wings had been covered with cement, the other with boards. The main entrance, or rather the only public entrance, led directly from the outside into the vestibule which contained the ticket office, and it was difficult to keep it clean of the street's dirt. A urinoir was very near the entrance ot the royal loge on a small side streetJ. The present appearance of the theatre dates from a complete restoration of the building in Banck, op. During the last five seasons of the period J. Valois had the permission of the authorities to give popular performances on every second Sunday evening.
The entrance fees ranged from ten stuiver to one gulden. In spite of the cheapness of the seats these evenings proved a financial blessing for Valois, for the theatre was always filled to capacity. The literary congresses meeting annually in some city of Holland or Belgium since had occupied themselves repeatedly with the state of the national theatre.
Discussions took place and recommendations were made, but nothing really constructive was done until , when Het Nederlandsch Tooneelverbond was founded on a plan developed by J. The statutes of the new organization were drawn up in Amsterdam on December 19, The first directing committee consisted of the noted writer H. Schimmel chairman , J. Hacke van Mijnden treasurer , B. Stokvis, W. Hofdijk, Max Rooses, and Julius Vuylsteke. A periodical, Het Nederlandsch Tooneel, later simply Het Tooneel, was started in , and a dramatic school was opened in Amsterdam in After a vain attempt in , A.
Jacobson succeeded in establishing a branch of the organization at The Hague two years later. The branch tried to influence the management and the players of the Dutch company directly, but when this availed little, it turned to themunicipal authorities. Repeated conferences took place between members of the branch and the executive body of the city government, with the result that J. Valois was finally informed that the concession would not be granted him after the season of It was not the intention of "B.
Those who desired to succeed J. Valois in the management of the Dutch theatre at The Hague were to make application before December 1, A number of the members of the Tooneelverbond established a new society, Het Nederlandsch Tooneel, with a managing committee consisting of Schimmel, A. Wertheim, J. Banck, L. Hartogh, and J. A guarantee-fund of one hundred thousand gulden was fully subscribed within four days. The whole theatrical world of Holland was enthusiastic about the new organization and its plans — with the exception of Valois, who naturally did not want to lose the management of a theatre that brought with it so many privileges.
No doubt many people went too far in their expectations, since they hoped that a sort of Dutch equivalent of the Theatre Frangais would be developed. Af ter somedelay in Amsterdam the Nederlandsch Tooneel was granted control of the management of the two theatres from the first of September, , to the thirty-first of May, The members of the new ensemble, which played in both cities during a season lasting nine months, came for the most part from the companies of Albregt and van Ollefen Rotterdam and of Veltman and Stumpff Amsterdam.
Only four of its members had been with Valois when his company was disbanded. That Valois gave up his post under compulsion is apparent from the advertisement in the Haagsche Dagblad for the final performance of his company on May 30, The translation that follows is as literal as possible. Hunningher gives a detailed account of the origin and development of Het Nederlandsch Tooneel in his dissertation, Het dramatische werk van Schimmel, pp. Thereby The Hague loses its company, which has existed for sixty years, with a management enjoying a royal subsidy, and which leaves behind only the beautiful memory that the greatest Dutch actors have from time to time trod its stage.
For this reason the undersigned takes the liberty of inviting the art loving public and all those who are kindly disposed toward the national theatre to honor with their presence this last performance given by us, so that the undersigned may be enabled to express his sincere thanks to all those who have given him so many proofs of encouragement and active support. The evening concluded with a farewell poem recited by Mevrouw W. Valois-Sablairolles, followed by an address of the director, her husband. The choice of a French, a German and a Dutch plaj' for this occasion was a fitting one, since France, Germany, and Holland were the three countries which had contributed almost the entire repertory of the company throughout the whole period.
The unsigned report of the performance in the Haagsche Dagblad of June 1 was obviously written by a person in sympathy with the airns of the new organization which was to replace the management of J. The author states that it is not necessary to review the performance, not because it doesn't merit reviewing, but because the chief purpose of the evening was to give an ovation to Mevrouw Valois, her daughter Mina, Rosier Faassen, and J.
That the director's wife did not receive more tokens of esteem would indicate that the leading lady of the company was no longer greatly admired, although thirty years before she had been considered by many the one hope of the national theatre. The writer possibly A. Het dierbaar plekjen aan blijf staren, Waar ik, voor twee-en-veertig jaren, Mijne eerste schreden zette als kind; Dat tranen aan mijn wimpers kleven En dat mijn wankle voetstap beeft, Nu 'k mij op eenmaal zie begeven, Van alles waar mijn ziele in leeft, Daar 't is, of ik mijn hart voel breken.
Nu 'k U mijn groet, mijn afscheidsgroet, Met een zoo diep geschokt gemoed, In weinig woorden toe ga spreken. Maar, om er 't,Macht gaat boven recht' Aan heel het vooglenheir te leeren, En allen, zelfs ook hen te weren Door jaren aan die stee gehecht. Valois the critic considers merely a poe tic phrase. To compare the new organization to a predatory bird is utterly preposterous.
The writer ends his article with a lukewarm appreciation of Valois, expressing the hope that he may always remain convinced of having done his task in the best possible way and that he may never forget that there are many who regret his departure. Introduction 1. General remarks on the types of entertainment offered at the Haagsche Schouwburg The Royal Dutch Theatre at The Hague had no qualities to give it a distinctive character.
Consequently the theatre was obliged to cater to the general, more or less uneducated public, which goes to the play merely to be distracted for a few hours. But the Haagsche Schouwburg cannot even be called a popular theatre. The popular theatre of the first half of the Nineteenth Century might present plays of no value whatever, plays that were dropped and forgotten as soon as the fickle public clamored for something new, but it had its definite appeal and its definite clientele. In the larger centres the theatres of the people very often concentrated on the presentation of separate types of entertainment.
One was famous for its vaudevilles, another for its melodramas, a third for its ballet productions. In comparison with these theatres the Haagsche Schouwburg was a nondescript affair. It tried to please all levels of society and probably succeeded in pleasing none in the long run. The bourgeoisie set the Standard, and the vast majority of the plays presented at The Hague reflected the outlook on life and the aspirations of this element.
The three types of plays most in demandwere the domestic drama, the melodrama, and the vaudeville x. In almost all of the pieces belonging to these groups, including the many written for the entertainment of the uncritical masses, social standing, financial security, and domestic bliss were the goals striven for and usually attained.
In surveying the repertory of the years from to , one is struck by its sameness throughout the whole period. The various types of plays underwent changes, to be sure, but these rarely affected their basic character. The melodrama and the vaudeville were popular in the first decade of the Nineteenth Century, they were still popular in the 'Seventies. The domestic dramas and comedies of Kotzebue and Iffland were not frequently played after , but they were replaced by similar plays of Benedix and Birch-Pfeiffer.
Not a few mediocre pieces, even one-act vaudevilles and farces, remained on the active repertory during almost the entire seventy-two years, others were given from time to time over periods of thirty, forty, and fifty years. Problem plays were taboo. At a time when Hebbel had long been dead, when Augier and Dumas jils had already written most of their pieces a these, the Haagsche Schouwburg was still content to present plays in which the lovers never failed to win each other after incredible hardships and incredible coincidences, and wherein the author rarely neglected to let the audience know just what annual income the couple would enjoy upon the fall of the final curtain.
Cited by Fred O. The melodrama may be roughly defined as a type of play which depends for its interest on sensational incidents and extravagant situations rather than on a truthful representation of life, and the vaudeville as a musical drama of a light, humorous or comic description interspersed with songs and dances. The word vaudeville probably derives from vau-de-vire, the name of French convivial songs in the Fifteenth Century. First a satirical note was added to these popular ballads, then came dialogue and the forms of a rudimentary play. It could not believe that there was a "too late" in the life of any man or that persons must sometimes expiate with their life wrongs and crimes for which they are not directly responsible.
Real tragedies were rarely presented at the Haagsche Schouwburg, but many plays were thus designated for which the simple term "drama" would seem more appropriate. Nomsz, and Kotzebue's The Spaniards in Peru, although all of them end happily for the central characters. If these characters belonged to the nobility or were high functionaries of the army or state, if the language moved on stilts, and if somebody close to the hero or heroine died during the course of the action, the play was considered worthy of the name of tragedy J.
Although the repertory of the Haagsche Schouwburg seldom rose above the commonplace throughout the seventy-two years, there were two periods, one of considerable length, when it was on a slightly higher level. The first period extended from to about During the directorship of Ward Bingley not a few classical and pseudo-classical plays were performed, and the 'Twenties saw a goodly quota of German domestic dramas. The latter were no literary masterpieces, to be sure, but they were better entertainment than the tawdry, sensational melodramas that supplanted them.
During the 'Thirties and the early' Forties little of interest was staged. The repertory consisted mainly of French melodramas and vaudevilles, and a lot of inferior stuff by insignificant Dutch writers, many of whom were actors as well. The second period coincided with the directorship of Anton Peters from to The early, romantic works of H.
But this improvement was like a 1 The author does not maintain that a tragedy must end in death and destruction. It can hardly be said of plays like Aballino and Monzongo, that they inspire in the reader or spectator a feeling of "majestic sadness". During the long incumbency of J. Valois the repertory again became thoroughly commonplace.
While Victor Driessens was the leading actor of the company, the melodrama predominated once more. During the last two seasons there were some slight changes for the better, perhaps because Valois, fearing that the management of the company would be taken from him, wanted to convince the municipal government of his fitness for the post. But it was too late. Only an entirely new regime could effect any radical improvement. Numerical information Approximately twelve hundred plays were presented by the Dutch company between and An average of sixteen new works was offered the public during the seven months of each theatrical year, but usually there were wide differences between the totals of first presentations in successive seasons.
Sometimes the total was only seven or eight, in other years it was as high as twenty-four or twenty-five. Because of the subscription system the company rarely gave the same play more than twice during the season. No doubt new plays had to be staged constantly to attract the public, yet one cannot help feeling that an amazing amount of time and effort was wasted in rehearsing pieces whose failure could have been foreseen.
Hundreds of plays were dropped after only one or two performances. If a more careful selection of new plays had been made, the management would have had a larger stock of reliable pieces at its disposal and would have found itself less often in the sorry predicament arising when a new play, which had been rejected by the public, could not be presented a second time and recourse had to be taken to some hackneyed work devoid of drawing power.
A play which received about ten performances at the Haagsche Schouwburg over a period of as many years may be said to have enjoyed a moderate success. If a play achieved from fifteen to twenty performances, it was very popular indeed. Only about forty-five works were staged over twenty times, and of these scarcely fifteen attained thirty or more presentations. The vast majority of the twelve hundred plays given were not seen on more than five evenings. During the entire period about French, German, Dutch, and 15 English plays were presented. Only a few Spanish and Italian works were included in the repertory.
The only Spanish piece to obtain more than one performance was De bekeerde mannenhaatster, a comedy in five acts, translated by the Amsterdam actor C. Roobol from a German adaptation of a play by Calderon. Popular was the Italian drama Marie-Antoinette by Paolo Giacometti, which was performed fifteen times from on. The translations Since the great majority of the plays produced at the Haagsche Schouwburg were of little value, it need not surprise us that the translators mentioned by the playbills were rarely men of letters or literary artists.
La filledeDominique, a vaudeville by Villeneuve and de Livry. But usually Dutch men of letters preferred to produce meticulous translations of French classical plays. Seldom did they devote themselves to the poetical dramas of England and Germany. Some of the names of distinction occurring on the playbills are P. Barbaz Sylla, Oedipe , J. Lindo She stoops to conquer.
The translations of most of the French and German plays given at the Haagsche Schouwburg were made by hacks, many of them actors who did this work to earn an extra penny. It was abominably paid. The translator rarely got more than two and a half gulden for each act, and to receive this pittance he had to write out each part separately 1. Jacobson, De vergunning tot het bespelen van den Koninklijken Hollandschen Schouwburg te 's-Gravenhage, p. As many of them had enjoyed only a meagre education, the results of this bread and butter work were sometimes very crude and slipshod.
The translations were often literal and abounded with un-Dutch expressions that again and again brought forth horrified outcries from the critics. They also made more difficult the task of the players, who had to learn parts written in a Dutch that was the opposite of natural and colloquial. Some of the names mentioned by the bills belonged to men who translated and adapted hundreds of plays. Among the indefatigable workers were J. Bangert, W. Greeven, B. Lamot, C. Fallee, M. Engelman, and C. The following translators were also active as players at the Haagsche Schouwburg at one time or another; J.
Greb, M. Ruffa, G. Beems, Rosier Faassen, C. Bigot, C. Spoor, H. Kiehl, and A. As a rule these men confined their efforts to the popular drama, but occasionally one of them would try his skill at translating a play of more than average worth. Spoor translated Hugo's Marion Delorme, and G. The latter's work evoked repeated pro tests from the critics of Het Nederlandsch Tooneel. Sometimes a hack translating a verse drama would simplify his task by rendering it into prose. The critics The more serious critics of the Dutch stage and drama of the first half of the Nineteenth Century aimed at the development of a national theatre which would draw its repertory chiefly from the Dutch drama of the past and would encourage the living writers of the country to compose idealistic dramas on national Magdalena by C.
Spoor, a member of the Valois company, well illustrates the slipshod manner in which much of this work was done. Some of the impossible expressions it contains are, Mijnheer de Professor, Heer Professor instead of Professor , doctor in de letterkunde instead of doctor in de letteren , die daadzaak doet geen eer aan Uw karakter, etc. While they occasionally gave tepid praise to a new French or German play which they had seen, they usually expressed their abhorrence of foreign dramatic products in no uncertain terms.
One of their favorite expressions in describing French and German plays was wangedrochten monsters, abortions. Their goal was a sort of dramatic autarchy. They wanted to make of Holland another Hellas, and they envisaged the time when on certain holidays everybody, young and old, rich and poor, would flock to the theatre in a high festive mood, there to attend the performance of a drama in rhetorical alexandrines celebrating the exploits and the character of a national hero.
The only foreign works which they were willing to admit to the repertory of the ideal theatre were the masterpieces of ancient Greece and the dramas of French classicism. These critics were firmly convinced that with the development of a national theatre the cultivated elements of the population would become increasingly interested in it. But it may be doubted whether the Dutch drama of the past is sufficiently rich and varied to attract a modern public over a long period, even if that public be highly cultivated and deeply inspired by feelings of national pride and religious fervor.
The Baroque dramas of Vondel are of great interest to the student of literature, but no theatre could afford to include more than one or two of them in its active repertory. Vondel is effective only when staged in the manner of a spectacle, and a costly spectacle at that. The Dutch poetical dramas of the Eighteenth and early Nineteenth Centuries are usually of an incredible monotony, there is probably nothing quite like them in the literature of any country.
They are frequently merely a succession of long-winded speeches whose exact purpose it is often difficult to determine. This remark may be applied with equal fitness to manv products of the Dutch dramatic muse. Many, no doubt, were too coarse to be revived, but others would have proved a valuable addition to the repertory of the companies at The Hague and at Amsterdam if they had been skilfully adapted.
However praiseworthy it was of these critics to strive for the development of a new national drama that would supplement the Dutch drama of the past, their extremely conservative convictions foredoomed their endeavors to failure. They consistently refused to recognize the validity of any dramatic forms besides those of French classicism. The three unities and the use of the alexandrine they still held to be essentials, long after these had been discarded in other countries. The models to which they constantly pointed were Corneille, Racine, and Voltaire.
Wiselius, whose dramas appeared in the second decade of the last century. One may sympathize with his anger at the inroads made by this mongrel type of entertainment, yet one cannot but find his remarks on Rossini preposterous. He feared that if the composer still had some years to live or if he succeeded in founding a school, he would cause as much harm in the world of morals as the caliph Omar, who supposedly ordered the library of Alexandria to be destroyed, in the world of science. He called Rossini the Vandal of the Nineteenth Century and considered him a tooi employed by those destructive forces which wanted to ' De Spectator, I, , pp.
It is distressing to note the lack of interest in the foreign drama exhibited by the majority of these critics. They were inclined to condemn it in toto on the basis of those plays which happened to be produced in Holland, and they scarcely made investigations of their own to find out whether the contemporaneous European drama had any works to offer that might prove valuable additions to the repertory of the Dutch theatres.
Their writings contain scant references to even the outstanding names of English and German dramatic literature — Shakespeare, Goethe, Schiller. The opinion which Wiselius had of the English dramatist was the one most commonly held in the Holland of his day.
He admitted that Shakespeare's plays contain "beautiful rooms", but there are also "kitchens and barrel sheds", and even "pigsties, garbage heaps and cesspools" 2. Schnarfnita once mentioned some of the more significant German dramatists of the first half of the Nineteenth Century, but in such a way and in such company that his direct acquaintance with their works may be questioned. After praising the work of Hugo and Scribe he continued, "But we need not take recourse solely to these geniuses of the first order Schnarfnita obviously was not even a superficial student of German literature or he would never have mentioned Grabbe, Kleist, and Grillparzer in the same breath with Kotzebue, Raupach, and Benedix, or have described their plays as recreational.
As recently as the first decade of this century the literary historian G. Kalff wrote that to l S. Wiselius, De Tooneelspeelkunst, pp. Schnarfnita, Het Nationaal Tooneel in Nederland, pp. Not only were the majority of the Dutch dramatic critics of the first half of the Nineteenth Century very conservative, they could also be disagreeably smug and self-righteous at times. They were rarely free from a chauvinistic attitude. Klijn, whose first drama appeared in , attributed the low estate to which the contemporaneous tragedy had fallen, to "the bad taste of the Germans, the savage wildness of the English, and an immorality which could originate only in the frivolous atmosphere of F rance.
It is a great pity that we cannot know what these pious critics would have written if they had been confronted with the presentation of a Restoration comedy, of Grabbe's diabolical Scherz, Satire, Ironie und tiefere Bedeutung, Niebergall's drunken Datterich, or most horrible! Surely the dramatic critics of the time would have served the cause of the national theatre better, had they encouraged the development of a repertory consisting of the best in European drama.
Kalff, op. There were, it is true, sporadic attempts to interest the public in one or another French play of the Seventeenth Century, but the total number of performances given the whole group did not reach twenty. Tetar van Elven. Between and the end of the period Tartuffe received about seven performances, and in the season of De vrek L'Avare was presented on three evenings in the translation of T. The play is designated a tragedy, but it is really a very sentimental drama attacking the institution of monasticism, with a villainous abbess and an archbishop who acts and talks like a philosopher of the Age of Reason.
The sentiment of the play is well expressed by one of the characters: "God created mortals for mutual love, for union; cloisters and prisons are not his work; God made liberty, man has made slavery".
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Ducis was ignorant of English and owed his acquaintance with the Elizabethan drama to the translations of Laplace and Letourneur. His Hamlet was given at least twenty times between and Hamlet is changed into a model of filial piety, and like a second Cid, avenges his father's death upon Claudius, here the father of Ophelia, the woman he loves. At the end of the fifth act Hamlet has lost his mother but he promises to become a strong and yet benign ruler when the curtain falls.
The translation used was that of Zubli, made in It lacks the famous monologue "To be or not to be," but this was taken over from an earlier version of the Ducis play by Mevrouw De Cambon-van der Werken, who had translated the passage from the original English into Dutch alexandrines and inserted it at the beginning of the third act. The first two verses of this flat rendering are, Te zijn, of niet te zijn, dat is 't. Zou 't ed'ler weezen Te lijden, te ondergaan all' wat natuur moet vreezen?
Pennink, Nederland en Shakespeare, pp. With the exception of Epicharis en Nero and Maria Stuart, none of these tragedies was performed more than two or three times. To the modern reader the majority of these plays are insufferably monotonous. They are almost entirely devoid of action, and the rhetorical verses have the effect of a soporific. Yet some of them were played at The Hague as late as the 'Forties, although classicism was long since dead. But they had once been the unworthy vehicles of such outstanding actors as Ward Bingley, Johanna Wattier, and Andries Snoek, and the theatre-going public still associated them with the greatness of these interpreters.
When the romantic type of actor appeared on the scene, of which Anton Peters was a notable example, some of these plays, particularly the Hamlet of Ducis, received a new life because they offered parts which permitted the performer to rant and strike dramatic poses to his heart's content.
The French comedy of the late Seventeenth and the Eighteenth Centuries, rich though it was, was almost completely absent from the repertory of the Dutch company. French comedies of the Empire were less scarce at The Hague. These were chiefly comedies of situation, of intrigue. Five plays by Picard were given three or four times each in the 'Twenties and 'Thirties, including De mops en het meisje Les Ricochets , a good exampleof the techniqueof quid pro quos.
Patrat, whose De twee grenadiers, of het misverstand was performed at least twenty-seven times between and Almost entirely absent were comedies of character and comedies of manners. Subtle humor was not appreciated by its audiences. What they wanted was plays with broad farcical situations such as Kotzebue was able to construct in great abundance. In comparison with the vast number of vaudevilles produced at the Haagsche Schouwburg, the comedies formed an insignificant part of the repertory indeed.
Jocrisse is a clumsy clerk whose overzealous pursuit of his duties results in a series of preposterous accidents. It was given six times between and The content of one of the most popular clearly indicates the anecdotal character of these vaudeville-farces. Meester Vink, of de vermiste diamant [Pierrot, ou le diamant perdu by Desaugiers and Gentil de Chavagnac was offered twenty-three times between and A diamond ring has been stolen. A man namedVink declaresthat he is a magician and promises to recover the ring if he be invited to a sumptuous meal by the owner. The two servants who wait on Vink at table are called Champagne and Bergerac.
It happens that wines with the same names are served during the meal, and the naming of these by Vink leads the two, who are guilty of the theft, to believe that they have been discovered. Kneeling down before Vink, they return the ring. Later in the play one tests his abilities by placing a bird in a vase while he is absent and asking him to name its kind upon his return.
It seems that the more insipid a play, the greater its success at The Hague. With the arrival of Scribe the vaudeville underwent several changes. At first it developed from a play with loosely connected scenes, that were often anecdotal in character, to a vaudeville d'intrigue, a clever succession of quid pro quos with little attention to probability and delineation of character. At the same time Scribe increased the length of the vaudeville from one to two and even three acts. Because of its topical qualities and its close contact with the life of the common people the pre-Scribean vaudeville often had more color and vitality than the later "comedies with song", as the Dutch playbills described pieces of this type.
The majority of Scribe's works were more or less international in character. They could be produced almost anywhere with only a few minor changes, and hence they seem flat and inane today. It wanted singing and dancing and a succession of amusing and rapidly changing situations. The visit of Rinville is momently expected. Emmeline implores her father to write her 1 Neil Cole Arvin gives an excellent history of the evolution of the vaudeville in his Eugene Scribe and the French Theatre, He does not let the servant know his identity but tells him that he will take the letter to the person to whom it is addressed.
As soon as he finds himself alone, he opens and reads it. Although he has seen Emmeline only from afar, he is intent on winning her, and he therefore decides to pose as Charles. A creditor of Charles, a "German capitalist named Zacharie", appears with a note. In the French original Emmeline exclaims, "Qu'est-ce que j'apprends la? She never wants to see him again. At this point the penniless and therefore unsympathetic Charles appears on the scene. Rinville induces him to pretend that he is the wealthy neighbor.
New complications arise until Charles is finally unmasked. Emmeline and Rinville embrace. This preposterous play excellently illustrates the snobbery of Scribe, whose gods were social standing and wealth, or at least financial security. But this snobbery was one of the main reasons why his plays appealed to the audiences of his time. Although vaudevilles were popular at The Hague from the very beginning of the period, the heyday of this genre extended from about to Hardly a program was given without a vaudeville as a curtain-raiser or an afterpiece, and on many an evening two and even three vaudevilles were performed.
It was difficult to satisfy the demand for entertainment of this type. Almost four hundred vaudevilles were presented throughout the period, and at least four-fifths of this number were of French origin.
The majority of these wrote plays with the help of others, who in turn manufactured dramatic products in association with still others. Scribe alone had fifty-two collaborators. Many vaudevilles were given a Dutch setting by their translators, with the result that in the process of adaptation not a few lost whatever atmosphere and wit they possessed. An example is Le Voyage a Dieppe, a merry vaudeville in three acts by Wafflard and Fulgence, which was played sixteen times between and Prud'homme has yearned to see the ocean for thirty years.
His previous attempts to travel to Dieppe have failed, chiefly because business detained him, but now that he has retired he is about to realize his dream at last. Yet again his plan is frustrated. The losses sustained in Saldanha Bay were emblematic of the direct losses it suffered during the Fourth Anglo-Dutch War and from which it never recovered. At first there was some incredulity back home. The Lords Seventeen, in a letter to the Cape, refused to believe the rumours that had reached them via England and had been reported locally, the more so as these had it that the Indiamen had been captured without putting up any defence.
Once it had transpired what had happened, the Cape authorities were requested to explain, or were criticised for taking, certain decisions: why they had decided to allow the Held Woltemade to depart; why only the cargo in the cabins and on the in-between decks had been discharged rather than all the most valuable cargo so that the Indiamen could be sent to Saldanha Bay with ballast; why the initial instructions on the defence of the Bay and where the Indiamen had to anchor had been given, and later altered, without apparently consulting experts; why the hookers in which the sails and ropes had been stored, were not ordered to return to the Cape to prevent the enemy, after taking the merchantmen, from simply sailing them out of the Bay; and why, with Suffren having arrived at the Cape with his squadron, the Indiamen were not ordered back from Saldanha Bay to False Bay where they would have been much safer.
The conduct of the commanders, too, came in for severe criticism and with allegations of a criminal failure in their duties, further action against them was in the offing. As for the Dutch seamen, the authorities in Batavia instructed their immediate repatriation on foreign ships bound for Batavia or the Netherlands so that they could be redeployed for the Company's benefit. There is record of many requests directed by these sailors to the local authorities. A few requested and were granted permission to stay at the Cape. Many who found themselves stranded and unemployed at the Cape also requested the severance of their employment with the DEIC so that they could, either locally or elsewhere, obtain employment on foreign ships.
Then there was the cargo on the Indiamen that had been off-loaded at the Cape before the vessels were sent to Saldanha Bay. The DEIC made elaborate plans to charter and send ships under neutral flags to the Cape and Batavia in an attempt to continue its trade during the Anglo-Dutch War, plans which made provision for forwarding the goods stranded at the Cape.
That included not only the cargoes on board the Indiamen still stuck there - those that had been sheltered in Hout Bay - but also the goods discharged from the ships later captured or destroyed in Saldanha Bay. In the meantime, the Cape authorities sent some smaller chests and parcels from the captured Indiamen "eenig kleine Cassen en Pacquetten met papieren" as well as from the other returning ship detained locally with a Danish ship to Copenhagen.
They also managed to ship the Company's own home-bound cargo that had been discharged "de At a later stage, after some deliberation in the Political Council, further goods, both from the captured vessels and from the other, smaller Indiamen detained at the Cape, were sent to Europe with other chartered, neutral vessels as the opportunity arose. Perishable cargo or cargo in broken chests that could not be forwarded, were sold locally by public auction.
Some of those seamen who had private-trade goods, mainly tea in chests "afgepakte thee" , that had been off-loaded and left behind in Cape Town, requested its release and permission to sell it by auction locally. As far as the prizes were concerned that the British had taken during the battle of Saldanha Bay, Johnstone had them fitted out and placed prize crews on board the Honkoop, the Dankbaarheid, the Paarl and the Hoogkarspel and on 25 July sent them ahead to St Helena in the company of a few frigates and under the command of Captain James Alms Junior in the fireship Infernal.
From there they were sent home on 2 November under escort of Johnstone's former flagship, the Romney. En route, the convoy ran into a gale at the mouth of the Channel in January and two of them, the Honkoop and the Dankbaarheid were lost as a result. Fortunately the two lost prizes were insured at Lloyd's so the captors still benefitted from the insurance payout.
Although the premiums were high, prizes taken by either naval ships or privateers were regularly insured for their voyages to the nearest prize court if the value of the prize justified it and if such insurance had been or could be arranged in time.
1 Conversion, Persecution, and War
The Held Woltemade, too, arrived in Portsmouth on 3 February , presumably with her valuable cargo of bullion. On 4 September , the Dutch prizes, referred to in contemporary publications as the Saldanha Bay prizes, were decreed by the High Court of Admiralty in London sitting as a Prize Court - that is, exercising its prize jurisdiction - to be lawful prizes and were accordingly condemned.
However, Sir James Marriot then specifically reserved the question as to who were the captors and as such entitled to share in the prize money derived from the sale of the vessels and their cargoes. Although the suit had been brought in June of that year by the Navy, claiming the sole interest in the prizes, there was an argument that the Army too may be entitled to a share. The decision of the High Court of Admiralty in May , that it was a case of joint capture entitling the Army to share, saw the commencement of prolonged litigation on the sharing of the prize money to which I will return in due course.
The reason for the fierce legal battles that ensued must be seen against the background of the value of the prizes. Soon after the initial decision of the High Court of Admiralty, the prize agents who had been appointed to oversee the Navy's interests, caused the ships and their cargoes to be sold and started paying out the sums derived from the proceeds of those sales, as well as the insurance money received for the lost prizes, to the various naval officers and seamen involved. Large sums were involved.
One final and unexpected but culturally invaluable consequence of the battle of Saldanha Bay and the condemnation of three of the Dutch Indiaman captured there was the fact that a large collection of official, commercial and private correspondence on board them at the time survived. Also still extant are some papers taken off the other two prizes before their loss. This confiscated correspondence, known as "intercepted sailing letters", together with the ships' papers inventories of their crews, equipment and provisions, maps, receipts and other official instructions and documentation, were delivered over to the High Court of Admiralty together with the other prize goods.
And they came to be kept, together with similar items from other captures in the Fourth and earlier Anglo-Dutch wars, first in the Court's archives and later in the British National Archives. Altogether there are some 38 letters alone from the second half of the seventeenth to the early nineteenth century, some 15 of them private correspondence. Both correspondence originating in the Netherlands in the case of the outgoing Held Woltemade and in the East in the case of the homecoming Hoogkarspel and Paarl are contained in the prize letters taken at the Cape.
When this collection of letters, many of them still unopened, were "rediscovered" by a Dutch researcher in , interest was rekindled and their historical and linguistic value was immediately appreciated. They have since been catalogued, digitalised, studied and have, as part of the Letters as Loot Project "Brieven als buit project" , resulted in a number ofwebsites and a flood of publications, including some as part of an ongoing sociolinguistic and lexicographic project. There are some fascinating letters and much further information on the ships and those on board them.
They also constitute valuable evidence of the state of the Dutch language as used at the time by ordinary, often uneducated, lower and middle class people, including women. There are not only letters still en route, that is, carried on board as post, but also a few letters written by or addressed to the inhabitants of Cape Town, letters sent and received earlier and still in possession of members of the crews at the time of the capture, as well as, poignantly, an undated and uncompleted letter by Captain Gerrit Harmeier to his mother, brother and family. Some of them pose mysteries yet to be solved and provide the opportunity for further historical investigation.
The legal consequences arising from Commodore Johnstone's expedition to the Cape and the action in Saldanha Bay may conveniently be considered under three topics: litigation in England on matters pertaining to naval law and, more specifically, intra-naval immunity; litigation there on matters pertaining to prize law and, more specifically, the question of joint captures; and finally litigation at the Cape and in Batavia involving the Dutch naval officers present in Saldanha Bay on that fateful day in July One legal consequence of Johnstone's expedition was the litigation concerning issues of naval discipline.
The commodore was inexperienced in naval matters, leading to several tactical miscalculations on his "inglorious but lucrative expedition" to the Cape. Although no official action was ever taken against him, Johnstone was generally and widely blamed for the failure of his expedition, one that was in any event rendered more difficult by imprecise orders, the involvement of a military element, and an overriding obsession with financial gain through the capturing of enemy prizes. He further did not always enjoy the best of relationships with all those serving under him and was certainly more than ready to place the blame on them when things did not go according to plan.
Although she was shortly after her capture abandoned by the French and then rejoined Johnstone's squadron only slightly damaged, Darby was taken prisoner by the French and only managed to return to England much later. Johnstone then promptly had him court-martialled at Portsmouth.
Darby was accordingly honourably acquitted. He went on to serve with distinction under Nelson and to knighthood. Darby also subsequently gave evidence at another and, for present purposes, more prominent court martial instigated by Johnstone, that against Captain Sutton. Another incident at Porto Praya, involving Captain Evelyn Sutton of HMS Isis, had more serious implications for and resulted in litigation involving Commodore Johnstone that occupied him right until the end of his life. It will be remembered that British reaction to and pursuit of the retreating French attackers was delayed by some hours as a result of which the French managed to escape further British attention and counter-attack.
In Johnstone's view, most of the blame for the delay belonged squarely on the shoulders of Sutton. The latter had failed to respond quickly enough to bring his vessel out of the port and put her to sea when Johnstone had verbally ordered and by signals instructed the warships in the squadron to do so. And after eventually joining, Sutton had further failed to obey repeated signals to join the others in pursuit of the French. However, as Sutton had signalled in response and also later explained to Johnstone, the Isis had been seriously damaged in the French attack and that had prevented him from obeying with the required alacrity.
He might also have pointed out that the commodore could as well have pursued the enemy without waiting for the Isis to get ready. So enraged was Johnstone at what he perceived to be Sutton's cowardice or at least his insubordination without a proper excuse, and no doubt at having lost the opportunity of going after the withdrawing French and, possibly, capturing some valuable prizes, that he accused him of numerous offences.
He then suspended and deprived him of command of the Isis and, on 22 April , had him arrested and imprisoned on his own ship until he could be court-martialled. He appointed another of his officers, the Hon Thomas Lumley of the Porto, to take command of the Isis. Rather than calling together a court martial without further delay, as Sutton kept demanding and as he may have been entitled and able to do, Johnstone kept Sutton under arrest on the Isis, throughout the subsequent voyage to the Cape and during the battle of Saldanha Bay. Although Johnstone himself returned home, Sutton then accompanied his old ship to India as a prisoner when she was detached shortly after the battle and sent there with other warships in the squadron.
In India, too, Sutton was not brought to a court martial. That happened only when he returned to England in December On 11 December , the Court Martial acquitted Sutton on the charge of delaying or discouraging the public service on which he was ordered on 16 April As to the particular order of Johnstone which he was also charged with disobeying, the sentence proceeded to say that from the circumstances proved and the condition the Isis was in, the Court merely found that not immediately cutting or slipping the cable of the Isis "was justifiable" and that afterwards Sutton had done "his utmost to gain his station in the line of battle".
However, it "honourably acquitted him of the whole of the charge". Thus failed, for a second time, an attempt by Johnstone to discipline one of his officers for the disastrous outcome of the battle of Porto Praya. Certainly, what the Navy thought of his conduct there "was clearly shown at the courts martial of Captain Darby of the Infernal and of Captain Sutton when at last he returned to England". Not surprisingly, as the affair was already prominently in the public eye, Sutton felt himself aggrieved and sought redress.
Not only did he suffer hardship during the unnecessarily long period it took to bring him to trial, but, he felt, the damage that this did to his reputation was not properly restored by the ultimate verdict while he also lost out on sharing in the prizes captured at Saldanha Bay. Sutton therefore brought a civil suit against his former commander, Johnstone. The result was a remarkable series of decisions on what may be referred to as the vexed question of intra-military immunity.
The fact that these decisions, and those that came after them, were, by and large, different interpretations of the ever changing public-policy principles underlying the issue, may explain why, even today, the matter cannot be regarded as having been finally settled. At common law, no action for damages lay in a civilian court against an officer in his personal capacity for bringing a subordinate to court martial, nor for arresting or suspending him in anticipation. Such acts were clearly within the limits of the superior's authority to maintain discipline. The same applied, in principle, to all other civil wrongs committed by one officer or seaman in the exercise of his naval duties against another fellow officer or seaman.
If the power or duty was exercised oppressively or improperly, the superior's conduct could, in appropriate circumstances, merely constitute a distinct offence cognizable by a court martial. In short, there was intra-naval immunity - in civil courts - against tortuous claims resulting in personal or financial loss.
The underlying rationale, or at least some of its tenets, was founded in the recognition of the separateness of a naval community governed by its own exhaustive system of law, in the national importance of naval discipline, and in the perceived inappropriateness of allowing civilian courts to intervene in this arena.
An analogous, but by no means identical, immunity was enjoyed by other officials of the Crown acting within the scope of their authority, as also by the Crown itself. But what if the wrong was committed when the superior exceeded or abused his authority; if he exercised his authority maliciously and without reasonable or probable cause?
A naval officer, it was clear, was certainly liable to damages by proceedings in the Admiralty Court for improperly capturing merchant ships and goods on an unfounded suspicion of their being lawful prize. That was the dilemma faced by Captain Sutton in bringing a civil claim against Commodore Johnstone. Sutton's claim for damages against Johnstone, instituted in the Court of King's Bench in January , was therefore not based merely on his arrest, or his suspension, or on his being brought before a court martial: Johnstone certainly had the authority and power to do so.
Rather it was for Johnstone having maliciously and without probable cause charged him with offences of which he was not guilty, and for aggravating that measure by having maliciously and without probable cause kept him under arrest until his trial and for longer than was necessary and as a result of which he suffered damage. Johnstone pleaded the general issue. His defence was that of immunity: no civil cause of action for redress could ever be established where claims involving court-martial proceedings were based on actions taken by superior officers in the course and enforcement of military discipline.
In any event, even if there were no absolute but merely a qualified immunity, Johnstone argued he did have probable cause to suspend and court-martial Sutton, given the latter's admitted refusal to obey his orders. Johnstone submitted to the last verdict and made no application for a third trial, but early in he applied for a reversal or "an arrest of judgment" before the Exchequer Court at the Guildhall in London.
After elaborate discussion, Eyre CB refused to arrest the judgment and dismissed Johnstone's application in Johnstone v Sutton , thus confirming the earlier verdict in Sutton's favour. Johnstone's first and for present purposes his main objection in arrest of the earlier judgment was that no action for malicious prosecution lay for a subordinate officer against his commanding superior officer for an act done in the course of discipline and under powers incident to his situation; in any event, the issue was not cognizable by a court of common law but only by a naval court.
In response, Eyer CB observed that Johnstone could refer to no adjudged case or other authority in English law, save for analogous decisions that granted immunity to judges and jurors. He could merely refer to "general principles of public policy and convenience" in support of his objection. In fact, there were several decisions that went the other way, and that provided support for actions against military men in command by a subordinate officer or another person subject to their authority.
These decisions undermined arguments based on public policy and inconvenience. Further, the immunity of judges and jurors were distinguishable as the law presumed that they would do nothing maliciously. A naval commander, as superior officer, by contrast, "is in the condition of every other subject of this country, who, being put in authority, has responsibility annexed to his situation" and arguments to distinguish him along the lines of judges and jurors, the Court thought, "are dangerously loose and indefinite".
Likewise, the Court rejected the argument that the issue was not cognizable in a court of law as it concerned naval matters peculiarly within the specialisation of naval courts: "considerations of this nature cannot exclude the established jurisdiction of the country" and in fact "those jurisdictions must be presumed to be equal to their functions" and that courts of law will do their duty honestly and competently. The Court accordingly dismissed Johnstone's main objection "upon the mere abstract state of it" and unsupported as it was by any reported decisions.
In short, the Court thought that there was no absolute immunity against civil actions for superior officers, nor any reason to extend such immunity to them by analogy to the immunity enjoyed by judges and jurors. Further, naval conduct could be examined or reviewed by a civil court and there was no reason to suppose naval discipline would suffer if superior officers were faced by the prospect of civil litigation.
The Court likewise rejected Johnstone's other objections and ruled against him by discharging the rule for arresting judgment. In November , Johnstone brought a writ of error in the Exchequer Chamber, the next superior court. In Johnstone v Sutton their Lordships declared that the judgment of the Court of Exchequer ought to be reversed and each reported his reasons to the Lord High Chancellor.
Johnstone again argued that exposing superior officers to civil claims for the consequences of their conduct in enforcing naval discipline would undermine that very discipline. They should enjoy absolute immunity against such claims. Also, the specialised nature of naval matters made it impossible for a civilian court of law, judge or juror to assess a naval dispute and offences properly and those matters should therefore be determined by naval proceedings only.
A court martial was the proper institution to punish a superior's excess towards a subordinate. He again also contended that, supposing an action did lie, he did have reasonable and probable cause to arrest, suspend and bring Sutton to trial and, alternatively, that Sutton had not established any loss for which damages could be awarded. Sutton was against such absolute immunity and relied on the general rule that if an individual suffers damage from the unlawful act of another, the law gives him a civil remedy, as well as on earlier decisions in which the recovery of civil damages was in fact allowed in naval or quasi-naval situations.
Their Lordships found in Johnstone's favour. Their main reasoning was that he could not be held liable because his prosecution of Sutton by court martial had not been without probable cause. For liability to ensue, it was essential that the prosecution was carried on maliciously and without a probable cause, and that had to be substantially and expressly proved and could not be implied.
Suttons's acquittal by the court martial alone was not sufficient to establish want of probable cause on the part of Johnstone. The question of probable cause, it was clear, is a mixed proposition of law and fact and here there had not been any proof of a lack of probable cause. This particular part of the opinion assumed, of course, that intra-naval claims were not absolutely barred, irrespective of the presence or absence of probable cause, but that there was the possibility of an action.
But, as their Lordships recognised, "the great and important question now brought into judgment for the first time, is, whether such an action can lie? They noted that frequently in the past men before a court martial have thought the charge without probable cause and have felt the injury of such act of malice; yet, "till this experiment", it has never arisen that an action such as this can be brought; "consequently there is no usage, precedent, or authority, in support of it"; "[t]his case stands upon its own special ground".
On this - perceived to be novel - issue of intra-naval immunity, though, their Lordships were less firm and ultimately stressed that they expressed no final opinion on it. Lord Mansfield seems to have supported the notion of absolute immunity as naval discipline would be threatened if every acquittal before a court martial could give rise to a civil suit against the superior officer who had acted, often in difficult circumstances and on "delicate suspicions", to enforce and maintain discipline by arresting and suspending subordinates and then later bringing them to trial.
He also pointed out that a person unjustly accused is not without remedy but has "the properest remedy" as reparation is done to him by an acquittal, and the unjust accuser "is blasted forever, loses his reputation and may be dismissed from the service". Further, Lord Mansfield reasoned that naval law, not the civil system, was appropriately equipped to address all grievances by servicemen, even where superior officers used discretionary powers maliciously to abuse or oppress subordinates.
Naval men were governed by their own "sea military code" which prescribed and regulated the duties of every man in the fleet by rules and ordinances adapted to sea military discipline. This "code" also provided that every man in the fleet had to be tried by a court martial for any offence against his duty. If a man is charged with an offence against the articles or if silent against naval usage, his guilt or innocence "can only be tried by a court-martial".
But then, although clearly and outspokenly in favour of absolute intra-naval immunity for the sake of naval discipline, Lord Mansfield significantly observed that he had found no authority of any kind either way. While the question certainly seemed to require a resolution "by the highest authority", it was not necessary to do so for purposes of the matter before him, given that even supposing an action to lie, judgment had to be given for Johnstone.
In short, their Lordships' opinion considered and touched on two distinct aspects. First, as to whether an intra-naval action did lie in a civil court of law, although they thought it was doubtful that such an action was available and rather favoured absolute intra-naval immunity for the sake of maintaining naval discipline, they stressed that their view on this aspect was merely obiter. Secondly, supposing that such an action did lie and that there was therefore no absolute but only limited intra-naval immunity, it was clear that no action will lie and that there will be immunity for merely bringing a person to a court martial, or for an earlier arrest or suspension for that purpose, as such acts are clearly within limits of naval authority.
Only if those limits had been exceeded, such as where the conduct had been performed maliciously and without probable cause, was the immunity lifted and could a civil action lie. Here Johnstone did in law have probable cause for arresting and suspending Sutton and the requirements for intra-naval litigation in a civil court, supposing such to be possible, had therefore not been established.
As Holdsworth explains, the decision proceeded not on the broad ground that no such action would ever lie - even though, without deciding the issue, their Lordships did express themselves very strongly in favour of that ground - but on the narrow ground that an action did not lie in the present case because there was reasonable and probable cause for Sutton's prosecution. Put differently, the view expressed by the Exchequer Chamber in Sutton v Johnstone on the issue of actionability was obiter and the only point it decided was that, assuming an action could lie, there was probable cause for the superior's conduct so that an action did not lie.
The judgment of the Exchequer Court was accordingly reversed by the Lord Chancellor on this opinion of the Exchequer Chamber. Having lost, Sutton then took the matter further to the House of Lords. After hearing arguments on his writ of error, the following question was put to the judges: "What judgment or other award ought to be made on the record as it now lies before the House? On 22 May Gould J delivered the unanimous opinion of the judges present, namely that the judgment given in the Exchequer Chamber should be affirmed. Sutton had lost and Johnstone had won their long-running and costly battle of litigation.
This provided no more than some small consolation for the commodore, who died two days later. Although Sutton was unsuccessful, his legal battles were not yet over as he was still in the process of attempting to recover his share of the prize money the Isis received from the captures in Saldanha Bay. As for naval law, the litigation in Sutton v Johnstone did no more than express an obiter opinion on the scope of intra-naval immunity and the possible success of a future action such as that of Sutton.
The matter was still open for final argument and decision. However, as will appear, subsequent cases read the judgments rather differently. In the century after the litigation in Sutton v Johnstone, a long line of decisions covered the same, or at least analogous, ground. They sought to interpret, in particular, the decision in the Exchequer Chamber and, because none of them ever reached the House of Lords again, the matter ultimately remained undecided. For present purposes some of the decisions that came in the wake of Sutton v Johnstone may be considered very briefly.
In Warden v Bailey it was decided that an action for false imprisonment lay for an inferior military officer against his superior military officer who imprisoned and later court-martialled him for disobedience to an order that was invalid for not being within the scope of the superior's military authority. In the course of argument Lawrence J remarked that he had "heard from good private information that the reasons assigned by Lord Mansfield for reversing the judgment of the Court of Exchequer, were not adopted by the House of Lords, though the judgment of the Chief Justices was affirmed".
As the House did not provide reasons for its affirmation of the Exchequer Chamber's decision, this observation sowed the first seed of doubt as to the scope and weight of the views taken in Sutton v Johnstone. But, the Court stressed, the Exchequer Chamber had not decided on the validity of, nor established, the alleged doctrine that an inferior cannot ever maintain an action against a superior officer. The decision went on appeal to the King's Bench, which did not refer to Sutton v Johnstone but held that there was insufficient proof of the alleged improper conduct disobedience on the part of the subordinate to have justified his imprisonment.
The Court, per Lord Ellenborough, clearly did not decide nor assumed that no action lay, for then it would not have found it necessary to determine the sufficiency of the evidence presented by the plaintiff; it appears that the Court in fact thought that an action could and would lie in appropriate circumstances. In Hannaford v Hunn where there was no reference to Sutton v Johnstone, the jury in an action for false imprisonment by the master of a warship against her captain gave verdict for the plaintiff and awarded him damages.
Likewise there was no such reference in Dickson v Earl of Wilton but apparently there was no issue that an intra-military action for libel could lie in a civil court, the only question being if the defendant commanding officer's claim to privilege on the basis of an absence of malice could be upheld. On it being decided that there had been malice on the part of the superior, the jury found for the plaintiff and awarded damages.
Keighly v Bell held that a military person cannot maintain an action against an officer for acts imprisonment and prosecution done by or under orders from superiors and which they have the right to give and he the duty to obey, unless the officer acted maliciously and also without any reasonable or probable ground. The question, therefore, was whether the acts done by the superior were done in discharge of his military duty, or done without any reasonable or probable cause and merely for the malicious purpose of injuring the subordinate, in which case they could not be acts done in discharge of any military duty.
Thus, the Court recognised, or at least assumed, actionability in appropriate circumstances and hence merely a limited intra-military immunity. Then came a series of decisions, all involving the rather litigious Colonel Dawkins. In Dawkins v Lord Rokeby Dawkins sued his commanding officer, Lord Rokeby, for false imprisonment, malicious prosecution and false testimony before a Court of Enquiry, and conspiracy to cause his removal or early retirement from the Army. Now, though, the Court of Common Pleas held that there was no cause of action on any of the counts as those matters were purely military.
The Court, per Willes J, referred to the absolute necessity of maintaining the constitutional liberties of subjects, but thought that they had to be confined within proper limits. As regards the liberties of the military, "military men must determine them" as persons entering the military, although they do not cease to be citizens, "yet they do, by a compact which is intelligible become subject to military rule and military discipline".
As authority for this he referred to Sutton v Johnstone. Thus, the Court continued, even if it had been established - which it had not - that the superior officer here had acted maliciously and without reasonable and probable cause, Dawkins could not have obtained redress in a civil court. He was accordingly non-suited. And, it appears, Willes J had no doubts on the matter: "I cannot entertain a doubt that this is the law" and "I have no doubt that this is the law, and I have no doubt that it is that which is most beneficial to the community". However, his Lordship's view that - what was clearly no more than obiter dicta in - Sutton v Johnstone had established the "doctrine" of absolute intra-naval immunity is further rather inexplicable, given that he had apparently thought otherwise in the recent decision in Keighly v Bell.
While his litigation against Lord Rokeby had not yet been completed, Dawkins took on another of his superiors, Lord Paulet. The decision in Dawkins v Lord Faulet shows, if nothing else, what difference of opinion there was on the precise scope of intra-military immunity against civil actions and, also, on the weight to be attached to Sutton v Johnstone.
Dawkins sued Lord Paulet for libel in letters the latter had sent and reports he had made concerning his Dawkins's military conduct, duties and qualifications. Lord Paulet's defence was that he had compiled those documents in the ordinary course of and as an act of military duty. Dawkins, though, contended that the libel was made maliciously and without reasonable, probable or justifiable cause. The majority of the Court, per Mellor and Lush JJ, held against Dawkins on the basis that no action lay against a military officer for an act done in the ordinary course of his duty as such an officer, even if it had been done maliciously and without reasonable or probable cause.
According to Mellor J, the immunity for officers in such circumstances rested on grounds of policy and convenience. The reasons advanced in Sutton v Johnstone, an analogous case of an action for malicious prosecution of a naval officer by his superior, applied equally here and, even though obiter and thus not binding, were of "greatest weight" and given "after the fullest consideration". And, he continued, the exposition of the law in that case "has been generally accepted". The judgment in Sutton v Johnstone, Mellor J continued, "proceeds upon the principle that 'the law will rather suffer a private mischief than a public inconvenience'".
The reasons of public policy and convenience applicable in cases of immunity for judges, jurymen and witnesses, as also of members of Parliament, applied equally to the conduct of superior officers in the execution of their duty. Furthermore, given that both parties were military men and that the issues here related purely to military duties and discipline, Dawkins was bound to make his complaint to the tribunal specially provided for that purpose and best equipped to adjudge military matters.
In a much shorter judgment, Lush J agreed with these sentiments. Further, despite the many years that had passed, no change had been made to the military law so that the Legislature "must have concurred" in it, and despite the many occasions for questioning it, the judgment stands "unassailed". In a minority judgment of considerable eloquence and weight, Cockburn CJ extensively surveyed what he termed the "great question of absolute privilege in military matters".
His conclusion was that an action would lie against a military officer if reports, though made under the circumstances alleged, were made with actual malice and without reasonable or probable cause. He agreed that "acts done in the honest exercise of military authority are entirely privileged", but could not concur with the "startling and apparently unjust" view that that applied also to acts intentionally done in the exercise of military authority for the purpose of injury and wrong.
Such absolute immunity for the superior would leave the inferior officer entirely at the mercy of his superior acting under the disguise of duty and leave him without protection as far as "civil redress" or "redress in court of law" was concerned. To entitle an otherwise libellous matter to the protection attached to communications made in the course of duty, honesty of purpose was necessary, that is, it must have been made not only in the course of duty but also from a sense of duty and thus not maliciously and also with belief in its truth and thus with reasonable cause.
In coming to this conclusion, Cockburn CJ considered three angles. First, the legal authority. When the issue was first raised in in Sutton v Johnstone, Cockburn CJ explained, there were two questions: first, whether an action lies by an inferior against a superior officer, and second, whether on the facts in that case there was reasonable and probable cause for the superior's conduct.
On the first question, the Court of Exchequer had no doubt: an action does lie. Lord Mansfield "in a masterly argument" gave reasons for thinking the action ought not to be allowed, but he stopped short of deciding the point. This decision was subsequently affirmed in the House of Lords, but apparently on the same grounds, namely the existence of a reasonable and probable cause.
After referring to the judgments in the subsequent decisions, his Lordship observed "that so much of the decision of the Court of Exchequer [in Sutton v Johnstone ] as is immediately in point in the present case, stands unreversed". Turning in the second place to the underlying general principles, Cockburn CJ considered the argument that as a matter of public policy, actions of this nature ought not to be allowed and that affording anything less than absolute immunity to superior officers acting in the course of military authority would impact negatively on the maintenance of military discipline.
He thought the reasoning unconvincing. The possibility of harassment by vexatious actions was no more than an idle apprehension that would have no effect on superior officers' exercise of their duty to enforce discipline. They would have no reason to fear ill treatment in civil courts. In short, his Lordship thought that it would be far more beneficial to the forces that its subordinate members know that redress may be found in the civil tribunals of the country against intentional oppression and manifest wrong resulting in consequences disastrous to their professional aspirations.
Further, his Lordship was not convinced that a person who joins the forces consents to being subject to military law and being entitled only to - limited, noncompensatory - military redress in a case where he suffers injury by the dishonest exercise of superior authority. And in any case, there was no express prohibition in the military code on a resort to civil tribunals in cases of wrong inflicted under the colour of military authority, which would have settled the matter authoritatively. Thirdly, Cockburn CJ dismissed the notion that an analogy could be drawn between judges, jurors and witnesses to whom absolute immunity is afforded in the interest of the administration of justice, and members of the forces.
It did not follow that because the principle of absolute immunity is required for the proper administration of justice, it is to be applied, without positive enactment or precedent, to a wrong inflicted by one member of the forces on another and in so doing to refuse redress in a case of an admitted wrong "simply because on grounds of public convenience the action between the particular parties ought not to be allowed".
Finally, Cockburn CJ thought that what was involved here was a question of policy, and that if the law had to be settled so that no action lies in a court of law against a superior officer, that should be done by legislative enactment, or at least by a superior court. Until then, a court of first instance, confronted by the question, should allow Dawkins his action. Despite the setback of a majority decision going against him, Dawkins would not lie down and pursued his earlier claim against his commanding officer Lord Rokeby in a higher court, alleging libel and slander for comments made by the latter during the hearing before the Court of Enquiry.
He did so on the basis that he could recover upon showing those defamatory statements were made maliciously and lacked any probable cause. Lord Rokeby again claimed absolute immunity. And again Dawkins failed in his claim. In Dawkins v Lord Rokeby the Exchequer Chamber held, on the narrower ground, that statements before a Court of Enquiry, even though it was not a court of record nor a court of law nor a court of justice in the ordinary sense of the word, were absolutely privileged, even though they had been made in bad faith, with actual malice and without reasonable and probable cause.
But Kelly CB then also decided that there was "a higher ground" upon which the action could be dismissed. All the issues here were "purely questions of a military nature", to be determined by military tribunal and not by a court of law. His Lordship approved of the reasoning of Lord Mansfield in Sutton v Johnstone and that in Keighley v Bell and in the Court below and held that these decisions "are all authorities to shew that a case involving questions of military discipline and military duty alone are cognisable only by a military tribunal, and not by a court of law".
By contrast, he noted, Dawkins's case was "really destitute of all authority to support the action". After referring to the contrary minority judgment of Cockburn CJ in Dawkins v Faulet, the Court remained satisfied that questions of privilege, "though governed, and, as we think, for the present decided, by the decisions referred to in the Exchequer Chamber, [are] yet open to final consideration before a court of last resort". It therefore agreed with the majority in Dawkins v Faulet that the motives as well as the duty of a military officer, acting in a military capacity, were questions for a military tribunal alone, and not for a court of law to determine.
The inexhaustible Colonel Dawkins then had a last stab at recovering damages when he appealed to the House of Lords, sadly for him, again without any success. The decision was merely on the narrow ground determined below, that of military witness immunity in civil litigation; nothing was said about the conduct of military officials in other capacities. His statements were absolutely privileged and evidence of falsehood and malice was immaterial and irrelevant. Kelly LCB referred to the long series of decisions, numerous and uniform, that had settled the principle of public policy that no action will lie against a witness for what he says or writes in giving relevant evidence before a court of justice.
Finally Lord Penzance dismissed the supposed hardship of law in this case on the injured and remediless subordinate and thought it was outweighed by the policy consideration that to allow an action may impinge on the freedom of a witness to give evidence in the administration of justice. The upshot of the series of decisions in the Dawkins cases was an apparent acceptance, on suspect grounds, including the elevation of - admittedly strong - obiter dicta in Sutton v Johnstone to a principle, by the majority in Dawkins v Lord Paulet of the rule of absolute intra-military immunity.
That was contrasted by a less than ringing support, on pertinently narrow grounds, of the rule by the House of Lords in Dawkins v Lord Rokeby and by a powerful minority judgment in Dawkins v Paulet opposing so broad a principle and allowing intra-military litigation in appropriate circumstances. By the end of the nineteenth century, therefore, it could not yet be said that the question of the scope of intra-military immunity had been settled finally and conclusively. Although it could no longer be raised in a court of first instance, the broad issue remained open for argument in the Court of Appeal or before the House of Lords.
Although a few decisions did once more touch on the question of intra-military immunity and whether an action will lie, in appropriate circumstances, for a subordinate against a superior officer, the main development in the twentieth century was legislative. In Fraser v Hamilton the Court of Appeal decided that an action will not lie in a civil court against a superior official - here Admiral Hamilton, formerly the Second Sea Lord of the Admiralty - of the Navy or Army for wrongly and maliciously causing a subordinate to be retired from the service.
It was pointed out that since the decision of the House of Lords in Dawkins v Lord Rokeby, it was doubtful whether the House itself had jurisdiction to entertain an appeal of this kind, in a purely military matter, but in any event the Court of Appeal certainly had not.
Shortly after, in Fraser v Balfour , the same subordinate brought another action against the naval authorities - in the person of Admiral Balfour, the First Lord of the Admiralty - claiming damages for false imprisonment and for maliciously causing his wrongful retirement from the Navy. At issue was whether the conduct of the naval authorities in retiring him could be reviewed in a civil court.
Earlier the Court of Appeal had held that the matter had been settled against Fraser by its previous decision in Fraser v Hamilton. The House of Lords, though, observed that although in Dawkins v Lord Rokeby it the House of Lords had affirmed the decision of the Exchequer Chamber below, a close reading of its decision showed that it proceeded solely on the privilege of witnesses and did not affirm the other and wider proposition laid down in Exchequer Chamber that questions of intra-military liability were not cognisable in a court of law.
Thus, it thought, the question remained open, at least in the House of Lords. And as the question involved "constitutional questions of the utmost gravity", a decision upon it should be given only when the full facts were before the House in a complete and satisfactory form. Therefore, their Lordships felt, on the materials before them they could not affirm the decision of the Court of Appeal, dismissing an action, without deciding the most important question which the House in Dawkins v Lord Rokeby had left unresolved. It therefore remanded the action for further evidence. Lastly, in Heddon v Evans there was if not a refinement of the principle of absolute immunity, then at least a focus on another requirement for such immunity that may have been lost sight of in the debate on whether malicious and groundless actions were also immune.
The King's Bench accepted - and was bound to accept - that a military officer will not be liable in damages if he commits an act which amounted to false imprisonment or another common-law wrong within his jurisdiction or authority and actually done in the course of military discipline solely on the ground only that he had done it maliciously and without reasonable and probable cause. However, as was "reasonably clear" from authorities and on principle, he may be liable if the act done was in excess of or without his jurisdiction even though he may have purported to act in the course of actual military discipline.
And, of course, it was open to a civil court to determine whether or not the act complained of was done within or outside jurisdiction. If it was outside and the superior had exceeded his powers, the court may award damages; if it was within his powers, the court cannot award damages even if it was a malicious and groundless abuse of that authority. Thus was the - still unsettled - state of English law at the beginning of the last century. The uncertainty should not come as a surprise.
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After all, the issue, that of the scope of intra-military immunity, is solidly based on considerations of public policy. And not only are such considerations not fixed, but the weight attached or to be attached to each of them differs according to the perceptions of the valuer. Temporal and societal factors that may have played a role and have to be borne in mind in evaluating the approach of the English courts up to the end of the nineteenth century include the fact that in the age of empire, the Navy and, later, the Army constituted, or were at least considered to constitute, a distinct society separate from the civilian world to a greater extent than either before or afterwards; there was then a greater reliance on force and harsh discipline to secure military performance; and the protection of superior officers against possibly vexatious civil litigation by inferiors may have weighed heavier than the protection and compensation of subordinates against malicious and baseless acts that were nevertheless within the scope of the superior's authority.
The difficulty of even just formulating, let alone weighing up against one another, all the considerations on either side of the argument, for and against absolute immunity for actions, within the scope of military authority, already explains the state of uncertainty. It was not surprising, then, that rather than await another opportunity for the House of Lords to pronounce on the issue, the Legislature intervened. The Crown Proceedings Act, , which removed governmental common-law immunity from suits in tort, contained provisions relating to the armed forces in section Subsection 1 absolved members of the armed forces and also the Crown from liability in tort for acts done by such members while on duty as such and causing the death of or personal injury to another person, in so far as that death or personal injury was due to anything suffered by that other person while he is a member of the armed forces and on duty as such.
This measure therefore finally and clearly established intra-military immunity, as the common-law right of action in tort by one member of the armed forces against another member was abolished. A proviso made it clear, though, that there would be no exemption from liability in tort for a member in any case where the court was satisfied that the act although committed while on duty was not connected with the execution of his duties as member. Also, the exemption only applied to tortuous liability for injury or death and not to other heads of damage.
As ifto confirm the pendulum-like motion of the fluctuating policy considerations underlying the notion of intra-military immunity, section 1 of the Crown Proceedings Armed Forces Act, , suspended section 10 of the Act. Observe, section 10, and the immunity it granted, was not repealed, merely suspended. It therefore merely ceased to have effect, until such time as it is revived.