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Communicating with the Dead: Can the Unknown be Regulated?

The following is a guest post by Clare Feikert-Ahalt, a foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written a number of posts for In Custodia Legis, including two other Halloween-related posts titled “The Case of a Ghost Haunted England for Over Two Hundred Years” and “Revealing the Presence of Ghosts.” Our other posts relevant to this holiday include Francisco’s “Double Trouble Toil and Trouble, Fire Burn and Caldron Bubble…,” Robert’s “Ethical Considerations Related to the Representation of Someone Accused of Witchcraft,” David Mao’s “The Punishment of Rebellious Children and Witches,” and Ann Guha’s post explaining what the Haitian Criminal Code says about making zombies.

Originally, speaking with the dead was considered to be witchcraft in England. Witchcraft was an ecclesiastical offense and any person who thought they could communicate in such a manner would not have publicized their apparent ability for fear of the repercussions, which ranged over time from execution, to imprisonment, time in the pillory (stocks), and fines. Various acts of Parliament were designed to punish individuals accused of engaging in witchcraft, starting in 1517 with “The Bill Against Conjurations and Witchecraftes and Sorcery and Enchantments,” which provided that the punishment for engaging in witchcraft was death. The next few hundred years saw additional legislation passed in an attempt to control and restrain witches from conjuring spirits across the country.

1500s-1700s

The Witch No. 2 (c. 1892) (Library of Congress Prints and Photographs Division).

In 1562, the “Act Agaynst Conjurations Inchantmentes and Witchecraftes” was enacted. This Act provided that the use or practice of a witchcraft, enchantment, charm, or sorcery that caused any person to be either killed or destroyed was a felony punishable by death. The Act further provided for minor offenses connected with witchcraft, such as making the casting of enchantments, charms, or sorcery that rendered the wasting or lameness of a person, or the destruction of goods, punishable with one year imprisonment, and requiring the offender to stand in the pillory every quarter in market towns, on market day. For any second offenses, the punishment was death.

The “Acte Against Conjuration Witchcrafte and Dealinge with Evil and Wicked Spirits,” enacted in 1603, provided that invoking or consulting with evil spirits or taking a dead man, woman or child out of their grave was a felony, punishable by death. It also provided that using witchcraft to locate any treasure, or that involved “unlawful love,” is an offense, punishable with one year imprisonment and a quarterly appearance in the pillory.

By the turn of the eighteenth century, witchcraft trials began to drop and the last execution of a witch on English soil occurred in 1685.

The last Act to specifically prohibit witchcraft was enacted in 1735, and repealed all prior statutes. It provided that individuals who “undertake to tell fortunes or pretend from his or her skill or knowledge in any occult or craft science to discover where or in what manner any goods or chattels, supposed to have been stolen or lost …..” committed an offense, punishable with up to twelve months imprisonment and an appearance every three months in the pillory. Rather beautifully, the Act was described as “little used and floated gently in a serene backwater for over two hundred years, like an ancient naval mine.” (Luke Clements & Rachel Morris, Fraudulent and Incompetent Mediums, 146 NLJ 1574 (Nov. 1, 1996), available in LexisNexis database (by subscription).)

1800s

Do spirits return? Houdini says no – and proves it 3 shows in one : magic, illusions, escapes, fraud mediums exposed (c. 1909) (Library of Congress Prints and Photographs Division). Houdini and Arthur Conan Doyle were friends, but disagreed about the practice of spiritualism.

During the Victorian age, a substantial interest in, and even fascination with, spiritualism developed that brought the Witchcraft Act back into the spotlight. The Witchcraft Act and the Vagrancy Act 1824 were now the acts of choice for use against those who practiced spiritualism, although this time for a different purpose than was originally intended. Rather than attempting to quash the practice of witchcraft, the Witchcraft Act was now used “by the authorities to protect the public from being duped by tricksters and fraudsters.” The loss of so many members of the Royal Armed Forces during World War I left many families seeking comfort and reassurance by speaking with their deceased, and the government felt that these acts provided the best means of protecting these vulnerable families from individuals wishing to take advantage of their grief.

Section 4 of the Vagrancy Act 1824 was the most common provision used to prosecute those who professed that, for a fee, they could communicate with the dead. This section provided that “every person pretending or professing to tell Fortunes, or using any subtle Craft, Means, or Device, by Palmistry or otherwise, to deceive and impose on any of His Majesty’s Subjects” was guilty of an offense punishable by hard labor. Section 8 of the Vagrancy Act enabled the sale of the possessions of convicted vagrants, with the funds applied towards the maintenance of the offenders.

The nineteenth century was marked by numerous cases involving spirit mediums and both the attempted debunking and defense of spiritualists by high profile scientists and naturalists. This included Charles Darwin, who was reported to provide funding for the prosecution in these cases, and Sir Arthur Conan Doyle, who defended individuals prosecuted under the Act. These opposing views, which saw the different factions trying to use the courtroom to either prove or disprove their beliefs, were illustrated in the prosecution of Dr. Slade. Dr. Slade was a famous spirit medium who conducted séances in his home, where he claimed the spirit of his dead wife used his body to write notes on a slate. Two scientists attended a séance in an effort to find evidence to debunk Dr. Slade’s claims. He was subsequently prosecuted under the Vagrancy Act, with the prosecution claiming that the words on the slate were not messages communicated from beyond the grave, but were rather written by Dr. Slade himself. The trial was highly publicized, playing out like a soap opera, with the courtrooms overflowing with spectators and transcripts published daily in The Times newspaper. The judge, while noting that Spiritualism was a new kind of religion, found that Slade had “fraudulently represented their own actions as paranormal phenomena.” The judge found that, as the case had to be determined “according to the well-known course of nature,” Dr. Slade was guilty under the Vagrancy Act and sentenced him to three months hard labor. Dr. Slade appealed his conviction, and it was dismissed on appeal on a point of law, with the appellate judge ruling that the Vagrancy Act did not apply to spirit writing.

1900s-present

Device manufactured by the National Ouija Board Co., Washington, D.C. (c 1920) (Library of Congress Prints and Photographs Division).

At the turn of the century, while there was still the occasional concern raised in Parliament that witches continued to cause mischief and injury, those who practiced spiritualism remained unhappy about being classed as both a rogue and vagabond under the Vagrancy Act, and a witch under the Witchcraft Act. Spiritualists were also reported as feeling that the provisions of both Acts were too broad, catching those who were attempting to establish the area as both a true science and religion, and campaigned to repeal both pieces of legislation. Reports indicate that this campaigning led to proceedings only being brought against mediums under the Vagrancy Act if there was evidence of fraud and a public complaint had been made, although other reports indicate this could have been due to the difficulties over prosecuting mediums. The police noted that prosecuting clairvoyants and fortune tellers were among the most difficult crimes to obtain evidence for, and that it was necessary for the police to go undercover where they believed the crimes were being committed to be able to collect evidence and witness the crime.  

In 1930, a private member’s bill was introduced entitled the “Spiritualism and Psychical Research (Exemption) Bill,” being a bill to “relieve spiritualists and mediums from prosecution under the enactments relating to witchcraft and vagrancy whilst genuinely exercising their psychic powers whether in religious practice or scientific investigation.” Debates on the bill noted the growing numbers of participants practicing spiritualism as a religion and that the provisions of the Vagrancy and Witchcraft Acts failed to distinguish between individuals using spiritualism and mediumship with the intention of defrauding individuals and those who genuinely sought to practice spiritualism as a form of religion. As is the case with many private members’ bills, the bill failed to receive parliamentary approval and was dropped from the legislative agenda.

Repeal of the Witchcraft Act continued to be considered, but not in time for Ms. Helen Duncan. In 1944, Ms. Duncan found herself charged under section 4 of the Witchcraft Act 1735. Ms. Duncan’s séance at the center of the trial had apparently not gone to plan, with messages reportedly going to the wrong people (possibly due to individuals changing seats) and allegations that she had revealed military secrets. Despite Winston Churchill describing the case as “obsolete tomfoolery” her prosecution was successful, and she was convicted under section 4 of the Witchcraft Act for conjuring spirits. This conviction was upheld on appeal, during which it was argued that because Ms. Duncan had conjured friendly spirits, they did not fall under the Witchcraft Act, which, prior to the 1735 Act, had required that any spirits conjured be wicked or evil. Ms. Duncan became known as Britain’s last witch.

In 1951 another private member’s bill was introduced. This time it was successful and the Fraudulent Mediums Act was enacted, “legalising spookery.” This Act repealed the Witchcraft Act, as well as section 4 of the Vagrancy Act, as it applied to mediums, clairvoyants, telepathists, or any person claiming to exercise such powers. During debates, it was raised that “the dates of both these Acts prove that they are being used for purposes that were neither intended nor contemplated.”

The 1951 Act reformed the law as it applied to the practice of spiritualism and those perceived as genuine mediums. In order to deter individuals from taking advantage of vulnerable people and the recently bereaved, the Act increased the penalties to deter the practice of fraudulent mediumship. The government noted that reforming the law would also remove the potential discrimination against the practice of spiritualism as it did not want the criminal law to discriminate against anyone for practicing a “particular belief or class of belief, however unorthodox their mode of worship may be.” The government further noted that the bill’s aim was three-pronged: to protect “the honest practitioner”; condemn “the swindler and fraudulent person”; and to remove spiritualists from the “nauseous class of society” where section 4 of the Vagrants Act placed them.

Section 1(1) of the Fraudulent Mediums Act provided that “any person who (a) with intent to deceive purports to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers, or (b) in purporting to act as a spiritualistic medium or to exercise such powers as aforesaid, uses any fraudulent device, shall be guilty of an offence.”

Prosecutions under the Act required a payment, in the form of money or other valuable consideration, to exchange hands and carried a maximum sentence of two years imprisonment and/or a fine of up to £500 (approximately US$650). The consent of the Director of Public Prosecutions was required in order to prosecute anyone under the provisions of the Act.

There were inherent problems with the Act. Prosecutors had to prove that the medium acted with intent to deceive in order to convict a person under the Act. If a medium truly believed they were talking to the dead, there would be no intent to deceive. The question of what evidence was required, and what could be accepted, to prove that the individual was talking to the dead and not acting in a fraudulent manner, was also at issue. This, unsurprisingly, was difficult to prove and over the years the Act was rarely used. In 1979, the Home Secretary stated that between the years 1971-74 and 1976-77 there were a total of five proceedings brought under the Act, and between 1988-2008 there were fewer than ten convictions under the Act. Clements and Morris stated that

[t]he Fraudulent Mediums Act 1951 is an absurd Act.  Whilst there may be some justification for creating specific offences to prevent people impersonating police officers or even perhaps solicitors, there can be none in relation to psychic mediums; there is no roll of admitted mediums. The Act amounts to professional recognition of such people and pre-supposes an after-life; if there is no after-life there can be no genuine mediums. (Clements & Morris, supra.)

Despite these problems, the Act would continue in force for over half a century until it was repealed, although not without protest, by the Consumer Protection from Unfair Trading Regulations 2008.

While the history of legislation provides an almost glorious overview of the peak of spiritualism and the rise of mediumship, the practice of communicating with the dead continues to raise problems. In its 2005-06 report, the now closed Office of Fair Trading listed psychic and clairvoyant mailings as one of the ten most harmful scams they tackled, estimating that these cost the UK public around £40 million (approximately US$53 million) each year. Clearly communicating with the dead is a booming business.

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