All commercial theaters were required to submit to the police, fourteen days in advance, the text of any new theatrical work they wished to perform; permission was granted only if police had no objections “from a commercial or moral standpoint or for reasons of [public] security or order.” Police could immediately halt any unauthorized performance and the operator could have his theater license revoked and be fined or imprisoned for “insubordination.”
Berlin's system soon became a model for other Prussian cities. Before and during the imperial era, ministers of the interior continually urged local police throughout Prussia to adopt Berlin's theater censorship ordinance, and some cities like Breslau and Cologne complied.40 Although police in Frankfurt, Düsseldorf, Hanover, and Aachen never formally promulgated a censorship ordinance, they nevertheless exercised a de facto prior censorship under which theaters “voluntarily” submitted works for approval; police then decided what excisions or alterations had to be made in the text or whether the work had to be dropped from the repertoire altogether.41 Berlin's method of prior censorship was also adopted in Saxony and Bavaria. After 1871 police in Dresden, Leipzig, and Munich issued ordinances nearly identical to Berlin's and these, in turn, were soon imitated by authorities in many smaller Saxon and Bavarian municipalities.42
If police would not allow a drama or authorized its performance with certain conditions (for example, that portions of the text be excised or altered), a theater manager could appeal. Two avenues were open: a plaintiff had the right to appeal to a higher level within the administration (Beschwerderecht), or, in most states, could initiate a civil suit in a special external administrative law court (Klagerecht). Appeals up the administrative hierarchy—first to the county prefect (Landrat), then to the district administrative president (Regierungspräsident), the provincial governor (Oberpräsident), and even ultimately to the minister of the interior himself—were relatively fast and inexpensive. Unfortunately, they also had little chance for success since each administrative official generally relied on the judgment of his subordinates and upheld their decisions. Moreover, the administrator who heard and ruled on a complaint did not have to state the reasons for his decision.
Those with the time and money therefore usually appealed through the administrative law court system. These independent, nonpartisan courts were established in nearly every German state in the 1870s to protect citizens against the administrative abuse of power. Using formal civil court procedures (open sessions, representation by counsel, written briefs, oral testimony, cross examination, etc.) these bodies adjudicated citizens' complaints over administrative actions and ensured that administrative orders, decrees, and decisions conformed to the law. After reaching a decision these courts issued a written verdict citing the precedents and statutory bases for their ruling and billed the losing party for court costs (which could reach as high as five thousand marks).43 Although practices varied, in most states the appeal of first instance was to the local district administrative council (Bezirksausschuß) or its equivalent—a partially appointed, partially elected board of administrators and lay people that handled some aspects of local self-administration and sat as an administrative law court when the need arose.44 The council's decision could be appealed to the state supreme administrative law court (Oberverwaltungsgericht), the highest instance. These bodies were composed of judges trained as administrative officials and judges from the regular court system, who were all appointed for life and enjoyed the rights and status of other judges—that is, they were completely independent from the state legislature, the regular administration, and the ordinary civil and criminal court system. Recent studies of the Prussian Supreme Administrative Law Court confirm that it achieved a meaningful (if still somewhat limited) rule of law in Germany, was relatively liberal and citizen-friendly, and ruled surprisingly often against the police and for the individual rights of plaintiffs.45
Because of their independence and strict adherence to legality, administrative law courts effectively safeguarded citizen's rights from arbitrary or discriminatory actions of overzealous state officials. In Prussia, Saxony, and Baden, where their jurisdiction was fairly broad, the district administrative councils and the supreme administrative law courts set important limits on the powers of the police and freed numerous dramas local police tried to ban. In Bavaria, however, the competence of the administrative law court system was more limited, especially before 1900; since judges there had no jurisdiction over what were considered purely administrative censorship decisions, censorship appeals took place entirely within the Bavarian administrative hierarchy, where they were invariably rejected. (For example, none of the censorship decisions of the Munich police director were ever reversed by his superiors.46) Given the unlikelihood of success, few Bavarian theaters bothered to appeal the censor's decisions. And since theater licenses in Munich and other Bavarian localities were granted on the express condition that censorship ordinances be observed, any theater that sought publicly to perform a new work without first obtaining police permission could have its license revoked; moreover, under the Bavarian Police Code the theater operator could also be fined fifteen thaler or imprisoned for eight days, slightly stiffer punishments than in Berlin.
Some theaters were exempt from these punctilious controls. Royal court theaters (of which there approximately two dozen in the empire) were financed by the local king, duke, prince, or count but still normally open to the public. They were not subject to government licensing or censorship, but the royal intendants who operated them carefully avoided controversial modern works, filling their repertoires with safe classics instead. These officials (most of whom were high nobility with military or bureaucratic but little or no theatrical experience) also exercised their own careful prior censorship over scripts: Botho von Hülsen, for example, while serving as intendant of the Royal Theater in Berlin from 1869 to 1886, spent hours at night scrutinizing scripts word-by-word, eliminating anything that might be remotely offensive or carry a double meaning. It was no wonder the acerbic critic Maximilian Harden, surveying theatrical life in the capital, considered the Royal Theater boring and its “shameful repertoire” to be “simple artistic bankruptcy and the complete renunciation of any leading position in German theater life.”47 Not all court theaters were so stuffily conservative, however. In small Saxe-Meiningen, Duke Georg II developed one of Europe's most innovative and influential theaters and laid important groundwork for the modern, realistic theater; in 1886 his Meininger Players held Germany's first public performances of Ibsen's controversial Gespenster (Ghosts). Munich's royal Residenztheater had performed Ibsen's Stützen der Gesellschaft (Pillars of Society) in 1878 and Ein Puppenheim (A Doll's House) in 1880, while the Hoftheater of Stuttgart premiered his Wenn wir Toten erwachen (When We Dead Awaken) in 1900.
The more than one hundred municipal or state theaters owned and operated by a local government were also not subject to police censorship, although since the municipal government oversaw their repertoires and operations, they too exercised a self-censorship that resulted in inoffensive, noncontroversial offerings. Thus in Münster the director of the municipally owned theater had to receive permission from the city council for every work to be performed, while in Mannheim the city's National Theater established a standing subcommittee of board members to “ensure that no uncensored works are performed, and no offense against religion, good morals, and also no politically inflammatory material takes place.”48
“Private” theaters on the other hand, which were also exempt, posed constant headaches for the authorities. The licensing requirements of the Commercial Code and local ordinances requiring prior censorship of theatrical works applied only to commercial (gewerbmäßig) theaters operated for a profit—that is, those charging admission—and to public performances. Clubs or associations whose members staged informal performances solely for their own enjoyment or for educational purposes were not required to obtain an operating license, provided they did not charge admission and used only amateur performers who received no pay. Likewise, any private theatrical performance that was closed to the general public did not need any prior police approval. Thus church and educational organizations, amateur theatrical clubs, literary societies, and various other “closed” (that is, private) associations could freely stage theatrical productions for their own members or for
