On the contrary it would make the theatre more
effectually subject to them than it is at present; for once
a play now runs the gauntlet of the censorship, it is
practically placed above the law. It is almost humiliating
to have to demonstrate the essential difference between a censor
and a magistrate or a sanitary inspector; but it is impossible to
ignore the carelessness with which even distinguished critics of
the theatre assume that all the arguments proper to the support
of a magistracy and body of jurisprudence apply equally to a
censorship.
A magistrate has laws to administer: a censor has nothing but his
own opinion. A judge leaves the question of guilt to the jury:
the Censor is jury and judge as well as lawgiver. A magistrate
may be strongly prejudiced against an atheist or an anti-
vaccinator, just as a sanitary inspector may have formed a
careful opinion that drains are less healthy than cesspools; but
the magistrate must allow the atheist to affirm instead of to
swear, and must grant the anti-vaccinator an exemption
certificate, when their demands are lawfully made; and in cities
the inspector must compel the builder to make drains and must
prosecute him if he makes cesspools. The law may be only the
intolerance of the community; but it is a defined and limited
intolerance. The limitation is sometimes carried so far that a
judge cannot inflict the penalty for housebreaking on a burglar
who can prove that he found the door open and therefore made only
an unlawful entry.
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