People v. Baldwin

The Court refused to hear evidence of the administration and government of other Theatres, in justification this.

The counsel for the defendants, also contended that a Theatre was recognized by law. It was not of itself a nuisance, and only became so by mismanagement; and if they were able to show to the Court and jury, by respectable witnesses, the Theatre was properly governed, it would not be viewed as a nuisance, even if two or three neighbors adjoining, were disturbed; that private convenience must give way to public good.

The Court were of a different opinion, and decided accordingly. They observed that a Theatre per se, was not a nuisance, but might become so by the misconduct of those concerned in it; in all such cases,the nuisance ought to be abated; the law regarded so highly the comfort, convenience, and the peaceable and quiet enjoyments of the citizen, that in the case of extensive manufactories and establishments of trade, when they were found detrimental to health of individuals, or where they destroyed their repose, or where the public generally suffered an inconvenience, it was a nuisance, and ought to be abated. It did not depend so much upon the place—a Church might become a nuisance if the conduct of the worshipers there, and others, which was to destroy the peace of the' neighborhood.

It was proved by the testimony of Mr. Noah, Mr. Hatfield, and others, that they had occasionally stopped into the Theatre, and had seen no impropriety either in the audience or players; that the plays were performed as in other Theatres; that Mrs. Baldwin was a good actress

and a respectable woman. It was proved by other witnesseS) that in many plays it was customary for women to dress themselves in male costume, and that they might verY well be mistaken for each other, through the windows of the dressing room, by the neighbors, and that the dress-room for the different sexes, were entirely distinct and separate.

The case was summed up to the jury, by T. Phamix and D. Graham. They contended that this was a novel prosecution, and not supported by thé evidence offered to the Court and Jury. It fvas satisfactorily proved the defendants were people of good characters, and had expended large sums of money in the erection and preparation of the Theatre ; a conviction would throw them and a number of people out of employment—the object of the defendants was laudable and praiseworthy in offering to the public refined and rational amusement—a Theatre whatever were the opinion of some people, was by the liberal and enlightened looked upon as a place of refined taste, where the mind might be relaxed, and the judgment improved. Formerly, the Theatre was the birth place of genius; the greatest orators were not ashamed .to own their eminence to the Theatre.

They contended, that by the evidence, it was apparent it could not come within the definition of a disorderly house; that even admitting the particular acts of disorder com■plained of, and 'testified ■ to by the witnesses, it could not be considered a nuisance; to constitute a disorderly house, it was necessary the acts should be continued, and that two or three particular acts of disorder could not make it :so; and cited City Hall Hec. vol. 3. p. 134. And that -the defendants could not be answerable for the noise and

tumults about the door of the Theatre ; they were an assemblage of boys and others, over whom the managers had no control; and argued that that, did not make it a disorderly house ; and cited City Hall Rec. vol. 2. p. 53. They contended that it was not sufficient that the establishment was merely disagreeable to a few of the neighbors in the immediate neighborhood ; it must be such a nuisance as to interrupt the public in the reasonable enjoyment of life and property; and cited City Hall Rec. vol. 4. p. 87. “r

Maxwell, for the prosecution, observed that he thought it his dutywto press this case upon the attention of the Court and Jury; this Theatre had become so disorderly and noisy that it was a duty he owed to the community, and to the neighborhood particularly, to ask for an abatement of this nuisance. Other Theatres had been referred to. He meant no invidious comparison by mentioning the Park Theatre. It was obvious there was no comparison between them. The Park Theatre was built of permanent materials—the walls were thick, and prevented the noise being heard in the neighborhood. Here was means adequate to the end. Care had been taken in the erection of it, to prevent the occurrence of disorder complained of in the other Theatre. The situation of the two Theatres were different; one was situated . in a wide and public street, surrounded by public houses, with the Park in front; the other was confined in a retired street, and surrounded with private houses ; it was built partly of brick and partly of wood, the noise and sound escaping and disturbing the neighborhood. It was plain the means; of the company were adequate to the object and end of a Theatre ; it was therefore apparent there was no analogy

between them. But the mismanagement of other Theatres ^a(j not}j}ng t0 ¿y with this. He should be able to show, from the evidence, that the acts complained of, were disorderly, and the Theatre a nuisance. According to the testimony of a number of respectable witnesses who lived jp imme¿iate vicinity, they were annoyed not only by the noise and tumult, and profane cursing and swearing of those about the door of the Theatre, but also by their indecent conduct about the doors and windows of private houses, and this, not only fr,om those that frequented the house, but also from some of the company themselves.— That it had been satisfactorily proved that prostitutes had been admitted gratis into the Theatre ; and obscene and immodest conduct had been witnessed by the neighbors through the windows of the dressing room; and that the noises «in the house spoken of by the witnesses, were not the plaudits given by the audience to the actors, but was the noise and tumult of a mob.

The counsel admitted the law recognized a Theatre, but that when perverted from its true object, it became a nuisance, and ought to be abated.

The Court observed, that it had been objected, that the ward laid in the indictment had not been proved. But it was unnecessary to prove it. The Court were obliged to notice it as being in the ward laid in the indictment by the statute law of the State. And that a house might be a. nuisance on several grounds.

1. Where it disturbs the neighborhood, or those living in the immediate vicinity.

2 Where the public peace generally is disturbed.

3. Where the house is dangerous to the community, as a powder ma gazing &c.

4. Manufactories, é some, and disagreeable smells by emitting noisome, unwhole-

5. A quiet house, or at least one which did not disturb the neighborhood, might become a nuisance, by gambA baxvdy-house, although it might not disturb the . , , , , . , neighborhood, was, nevertheless, a nuisance, or any in which immoral or indecent conduct was admitted. ling.

The Court observed that the good of the community was a paramount object—a Theatre was not of itself a nuisance, but only became so by improper management of those concerned in it ; and when kept under proper regulations, it was well calculated to refine the taste and exalt the sentiments of mankind ; but when the object of it was prostituted—whefi it became a scene of disorder and riot— when the original design of those institutions were so far lost sight of as to allow indecent and immoral conduct, to the disturbance of the neighborhood, it then became a nuisance, and punishable as such..

• The Court further stated, that the audience had a right to applaud—it was a fair exercise of opinion on the merits and demerits of the performers—it gives force to public sentiment, and it is a lawful way of expressing that sentiment, to applaud a noble action, and decry a vicious one. i

After the protection of life and liberty, the law sets the greatest value upon peace and quietness ; it will not permit our rest to be broken and our peace disturbed. The labour, care, and attention of families is so necessary for their support and maintenance, that they cannot have their rest broken, and their repose, so necessary to obtain those objects destroyed,