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Rational Recreation and The Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2000 Rational Recreation and the Law: The Transformation of Popular Urban Leisure in Victorian England Rachel Vorspan Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Civil Law Commons, Judges Commons, Law and Society Commons, and the Public Law and Legal Theory Commons Recommended Citation Rachel Vorspan, Rational Recreation and the Law: The Transformation of Popular Urban Leisure in Victorian England , 45 McGill L. J. 891 (2000) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/209 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. "RationalRecreation" and the Law: The Transformation of Popular Urban Leisure in Victorian England Rachel Vorspan" Popular urban recreation underwent a radical trans- En Angleterre, les loisirs populaires urbains ont con- formation in nineteenth-century England. Rowdy and bru- nu une transformation radicale au IX' sikcle. Au cours de tal pre-industrial leisure activities in the city streets gave la deuxi~me moitid du XI si~cle, les loisirs et divertisse- way after the 1850s to more "rational", disciplined, morally ments de rue de l'poque pr6industrielle, souvent bmutaux respectable, and physically segregated pastimes. This arti- et peu raffinds, furent remplac~s par des passe-temps plus cle investigates the role of the courts in this complex de- crationnels>>, disciplines, moralement respectables et orga- velopment. nis6s en secteurs d'activit6. Le pr6sent article enquete sur le Through a variety of coercive and facilitative strate- r~le qu'ontjou6 les tribunaux dans ce processus complexe. gies, the judiciary performed a critical function in mould- Par le biais de mesures coercitives et incitatives, la ing the major institutions and practices of urban leisure. magistrature joua un r6le d6cisif en orientant et fagonnant Acutely sensitive to the relative position of various recrea- les principales institutions et pratiques des passe-temps ur- tions on the spectrum of Victorian respectability, judges bais. Les juges, fort conscients de Ia position relative applied the criminal law to eradicate disfavoured street ac- qu'ocupaient certains passe-temps dans ]a gamme tivities such as prize fights and football; used public ad- d'activit.s jug6es respectables A l'6poque victorienne, ap- ministrative and private nuisance law to enhance the "ra- pliqu~rent le droit pdnal de mani~re coercitive pour 6limi- tional" features of quasi-respectable establishments such as ner les jeux de rue en d~faveur tels que le football. Ceux-ci music halls; and creatively adapted customary law to foster employrent 6galement le droit public administratif et le "desirable" leisure pursuits such as amateur athleticism. droit privd de nuisance pour mettre en valeur les qualit6s The article concludes that the judiciary comple- <<rationnelles)> des dtablissements quasi respectables tels mented its assiduous efforts to cleanse the thoroughfares of que les music-halls, et employ~rent le droit coutumier de undesirable activities by establishing specified urban sites faqon cr6ative pour encourager des passe-temps osouhaita- for "morally appropriate" popular sports and exercise. In bles >tels que l'athl6tisme amateur. marked contrast to their treatment of popular rights in the L'article conclut que Ia magistrature, pour soutenir political and economic spheres-such as claims by politi- ses efforts assidus d'6radication des activit6s non-dsires, cal protestors to demonstrate or trade unionists to picket- d6signa des secteurs urbains sp&cifiques pour l'exercice de judges in the recreational context willingly vindicated sports et d'activit s physiques populaires jug6s (<morale- communal "rights to recreation" and allocated private ment appropries>>. En contradiction avec leur prise de posi- property for acceptable popular uses. The courts thus tion sur les droits des opposants politiques et des syndiquds, played an important role in demarcating nineteenth-century les juges, dans le contexte rcr~atif, firent valoir le English cultural life into a series of physically discrete and <'droit aux loisirs,> des communautds et allou~rent des pro- morally ordered spaces. pri&s priv.es pour des usages populaires juges accepta- bles. C'est de cette fagon que les tribunaux ontjou6 un r6le important dans la drlimitation de la vie culturelle du XIX sikcle en Angleterre en une sdrie d'espaces discrets et mo- ralement ordonnds. "Associate Professor of Law, Fordham University. A.B. (U.C. Berkeley, 1967); M.A. (1968); Ph.D. (1975) (both English History, Columbia). The author wishes to acknowledge the assistance and en- couragement of Matthew Diller, Martin Flaherty, Bruce A. Green, Vivienne Hodges, Carl La Fong, Edward A. Purcell, Jr., and William Treanor. She would also like to thank Fordham Law School for summer research support. © McGill Law Journal 2000 Revue de droit de McGill 2000 To be cited as: (2000) 45 McGill L.J. 891 Mode de r6f~ence: (2000) 45 R.D. McGill 891 MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL [Vol. 45 Introduction I. The Transformation of Popular Recreation in Nineteenth-Century England II. Judicial Suppression of Traditional Recreation: Clearing the Streets through the Criminal Law A. Official Perceptions: The Threat of Recreational Street Crowds B. The Legal Suppression of Street Sports C. The Elimination of Street Entertainers and Festivals Ill. Judicial Creation of Alternative Recreational Space A. Urban Physical Fitness and Cultural Change B. Judicial Response: Supervision and Creativity 1. Judicial Constraints on Municipal Uses of Recreational Land 2. Judicial Validation of Local Use Regulations 3. Judicial Ingenuity: Customary Rights in the Service of Modern Recreation IV. Public Regulation of Indoor Commercial Entertainments: Judicial Enforcement along the Spectrum of Respectability A. The Regulation of Traditional Leisure: Public Houses B. Fostering "Rational Entertainments: Music Halls and Theatres C. The Cinema: Defining the Moral Status of a New Recreational Form V. Private Law: Nuisance and Judicial Management A. Basic Legal Principles: Moore and Brewster B. Civil Nuisance Suits: Music Halls, Private Clubs, and Race Tracks C. The Apotheosis of Recreational Nuisance: The Entertainment Queue Conclusion 2000] R. VORSPAN- POPULAR URBAN LEISURE IN VICTORIAN ENGLAND 893 Introduction Since the 1970s the history of English recreation has gained increasing promi- nence and respectability as a subject of academic inquiry.' Most scholarly attention has focused on the nineteenth century, as social historians have explored a variety of popular recreations including fairs,' sports,' public houses,' music halls, theatres,' See e.g. P. Bailey, Leisure and Class in Victorian England: Rational Recreation and the Contest for Control, 1830-1885 (London: Routledge & Kegan Paul, 1978) [hereinafter Rational Recreation]; H. Cunningham, Leisure in the IndustrialRevolution, c. 1780-c. 1880 (London: Croom Helm, 1980) [hereinafter Leisure in the IndustrialRevolution]; J.Lowerson & J.Myerscough, ime to Spare in Vctorian England (Hassocks, U.K.: Harvester Press, 1977); R.W. Malcolmson, PopularRecreations in English Society, 1700-1850 (Cambridge: Cambridge University Press, 1973); H.E. Meller, Leisure and the Changing City, 1870-1914 (London: Routledge & Paul, 1976); J.A.R. Pimlott, Recreations (London: Studio Vista, 1968) [hereinafter Recreations];M.A. Smith, S. Parker, & C.S. Smith, eds., Leisure and Society in Britain (London: Allen Lane, 1973); R.D. Storch, ed., Popular Culture and Custom in Nineteenth-Century England (London: Croom Helm, 1982) [hereinafter PopularCulture and Custom]; J.K. Walton & J.Walvin, eds., Leisure in Britain, 1780-1939 (Manchester. Manchester University Press, 1983); J. Walvin, Leisure and Society, 1830-1950 (London: Longman, 1978) [here- inafter Leisure and Society]; E. Yeo & S. Yeo, eds., PopularCulture and Class Conflict, 1590-1914: Explorations in the History of Labour and Leisure (Hassocks, U.K.: Harvester Press, 1981); B. Harrison, "Religion and Recreation in Nineteenth-Century England" (1967) 38 Past & Present 98; . Myerscough, "The Recent History of the Use of Leisure Time" in I. Appleton, ed., Leisure Research and Policy (Edinburgh: Scottish Academic Press, 1974) 3. 2 See e.g. H. Cunningham, 'The Metropolitan Fairs: a Case Study in the Social Control of Leisure" in A.P. Donajgrodzki, ed., Social Control in Nineteenth-Century Britain (London: Croom Helm, 1977) 163 [hereinafter "Metropolitan Fairs"]; A. Howkins, "The Taming of Whitsun: The Changing Face of a Nineteenth-Century Rural Holiday" in Yeo & Yeo, supra note 1, 187; D.A. Reid, "Inter- preting the Festival Calendar: Wakes and Fairs as Carnivals" in PopularCulture and Custom, supra note 1, 125 [hereinafter "Interpreting the Festival Calendar"]; J.K. Walton & R. Poole, 'Ie Lanca- shire Wakes in the Nineteenth Century" in PopularCulture and Custom, supranote 1, 100. " See e.g. ER Magoun, History of Football From the Beginnings to 1871 (Stuttgart: Bochum- Langendreer, 1938); M. Marples, A History of Football (London: Secker & Warburg, 1954); T. Ma- son, Association Football
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