Nila Kartika Wati
In November 1665, the court of Accomack County, located in the British colony of Virginia, convened to hear a case that was unprecedented in the annals of colonial law. Three local men—William Darby, Cornelius Watkinson, and Philip Howard—stood accused not of a traditional felony or a civil dispute, but of the act of "acting a play." The performance in question, titled Ye Bare and Ye Cubbe, had taken place on Sunday, August 27, 1665, at Fowke’s Tavern in the small coastal settlement of Pungoteague. This event is widely cited by historians as the first documented English-language theatrical performance in what would eventually become the United States.
The legal proceedings were initiated by Edward Martin, a local Quaker who alleged that the performance was improper or perhaps seditious. However, the court’s response was as theatrical as the offense itself. The magistrates ordered the defendants to appear in court wearing "those habiliments that they then acted in" and to provide a "draught of such verses or other speeches" as were delivered during the performance. In a remarkable turn of events, the three men performed the play a second time for the court, which was held in the very same tavern where the original show occurred. Upon reviewing the work, the court found the men not guilty of any wrongdoing. Furthermore, the accuser, Martin, was ordered to pay the court costs, effectively ending the first legal challenge to artistic expression in the New World.
A Chronology of Performance and Institutional Scrutiny
The history of American performance is inextricably linked to the history of institutional observation and, frequently, institutional resistance. While the script of Ye Bare and Ye Cubbe has been lost to time, the record of its existence remains because it was viewed as a matter of public concern. This pattern—where the archive preserves the conflict surrounding a performance rather than the art itself—recurs throughout the subsequent centuries of American history.
In 1821, William Henry Brown established the African Grove Theatre in New York City, providing a venue for Black actors and playwrights. Brown authored The Drama of King Shotaway (1823), recognized as the first play written and produced by an African American. Much like the 1665 Virginia performance, the legacy of the African Grove is preserved primarily through records of its disruption. The theater faced persistent harassment from white mobs and frequent police interventions, eventually leading to its closure. The script of King Shotaway, like that of Ye Bare and Ye Cubbe, is lost, leaving only the "reverse image" of the performance found in police reports and hostile newspaper accounts.
The 20th century saw the emergence of state-sponsored performance through the Federal Theatre Project (FTP), established in 1935 as part of President Franklin D. Roosevelt’s Works Progress Administration (WPA). Under the leadership of Hallie Flanagan, the FTP viewed theater as a form of public infrastructure, employing over 12,000 artists and reaching audiences of 30 million people. However, the project’s "Living Newspapers"—plays that tackled contemporary social issues like poverty and labor rights—drew the ire of the House Un-American Activities Committee (HUAC). In 1939, Congress abruptly cancelled the FTP’s funding, citing concerns that the performances had become politically dangerous.
By the 1960s, performance again merged with social movement through El Teatro Campesino, founded by Luis Valdez. Operating as the cultural arm of the United Farm Workers, the troupe performed "actos" on the back of flatbed trucks to organize laborers. These performances were frequently monitored by local law enforcement and the FBI, documenting the troupe’s activities as potential threats to domestic order. This cycle of performance followed by scrutiny continued into the 1990s with the "NEA Four"—artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller—whose grants from the National Endowment for the Arts were vetoed on the grounds of "decency," sparking a Supreme Court case regarding the limits of artistic freedom and government funding.
Data and the Economic Landscape of Public Rehearsal
The evolution of these "rehearsal spaces" eventually shifted into the modern nonprofit sector. Today, the infrastructure that supports public performance is a significant economic and social driver. According to the 2023 Arts and Economic Prosperity 6 (AEP6) report by Americans for the Arts, the nonprofit arts and culture industry generated $151.7 billion in economic activity in 2022. This includes $73.3 billion in spending by nonprofit arts and culture organizations and an additional $78.4 billion in event-related spending by their audiences.
Despite this economic impact, the primary value of these institutions lies in what sociologists call "civil society"—the space between the individual and the state. Data from the National Center for Charitable Statistics (NCCS) indicates that there are over 100,000 registered nonprofit organizations dedicated to the arts, culture, and humanities in the United States. These organizations, ranging from community theaters to historical archives, serve as the modern equivalents of Fowke’s Tavern. They provide the physical and social space for "public rehearsal," a term used to describe the practice of exploring complex ideas, inhabiting different perspectives, and testing social possibilities before they are codified into law or hardened into public consensus.
Performance as Democratic Infrastructure
The enduring lesson of Ye Bare and Ye Cubbe is that theater and performance serve a civic function that extends beyond entertainment. In a functioning democracy, mechanisms such as voting and legislation serve to resolve questions and reach conclusions. However, a healthy society also requires spaces where questions remain open.
Rehearsal, in a theatrical sense, is a period of experimentation where actors and directors test various interpretations of a text. Choices are made, discarded, and refined. When applied to the broader social context, this "rehearsal" allows a community to engage with difficult subjects—such as justice, identity, and history—without the immediate pressure of a final judgment or a legislative vote.
Nonprofit cultural institutions are the primary custodians of this process. Libraries, for instance, have evolved from mere book repositories into hubs for public inquiry and debate. Museums have shifted from static displays of artifacts to sites of historical reinterpretation. When these institutions face funding cuts or censorship, the loss is not merely aesthetic; it is a reduction in the community’s capacity to practice democracy.
Analysis of Contemporary Implications and Pressures
As the United States approaches its 250th anniversary in 2026, the relationship between public performance and political power remains fraught with tension. Cultural institutions today find themselves navigating a polarized landscape where programming decisions are frequently scrutinized by both the public and elected officials.
Recent trends indicate a rise in legislative efforts to regulate the content of public performances and educational curricula. In several states, "decency" laws and restrictions on "divisive concepts" have created a climate of uncertainty for artists and educators. This mirrors the 1665 trial of Darby, Watkinson, and Howard, where the act of gathering to imagine an alternative reality was perceived as a threat to the established order.
The paradox of the archive remains relevant: we often know the most about the art that was most heavily scrutinized. For example, the records of the Federal Theatre Project held in the National Archives are extensive not just because the project was large, but because it was audited and investigated. This suggests that the "health" of a democracy can be measured by the degree to which it allows performances to exist without requiring them to be recorded in a court docket or a police report.
Conclusion: The Ongoing Rehearsal
The significance of the 1665 performance in Pungoteague lies not in the content of the play, which remains a mystery, but in the community’s eventual decision to protect the right to perform it. By finding the actors not guilty, the colonial court of Accomack County inadvertently established a precedent for the "public rehearsal" that would become a hallmark of American civic life.
While the physical scripts of Ye Bare and Ye Cubbe and The Drama of King Shotaway have vanished, the social practice they inaugurated continues. The nonprofit sector—comprising community theaters, galleries, and cultural centers—serves as the contemporary stage for this work. These institutions provide the necessary friction that prevents a society from stagnating. They are the places where uncertainty is practiced, where empathy is exercised, and where the diverse constituents of a democracy can encounter one another before a consensus is reached.
As national attention turns toward the preservation of founding documents and monuments, the history of Ye Bare and Ye Cubbe serves as a reminder that the most vital parts of a democracy are often the most ephemeral. The "first American play" is gone, but the tradition of gathering in public to imagine a different world remains the most essential rehearsal in the American experiment. The archive may fall silent, but the performance—and the debate it sparks—is far from over.
