James Castagnera: In 2005 the Law Still Wrestles with Witchcraft

With Halloween less than a week away, the 21 st century is nearly five years old. Yet in our age of the Internet and laser surgery and space travel and extreme makeovers, witches and witchcraft continue to fascinate. For instance, when I googled “witchcraft” on my PC, Google came back with 26,001 web sites. The one I like best is www.academyofsorcery.com, where you’re asked, “Are you looking for Easy-to-Do, Easy-to-Read REAL Secrets of Magic, Sorcery, Witchcraft and Casting Devastatingly Effective Spells?” Well, honestly? No, I don’t think I am.

However, I was sufficiently intrigued to look into the law’s perspectives on this ancient idea that remains so spell-binding today. My handy dictionary defines “witch” as, “A woman popularly believed to have supernatural powers and practice sorcery and often believed to be aided by spirits or a familiar.” Professor Daniel Robinson, author of “The Great Ideas of Philosophy,” (1997) actually included a chapter entitled “Let Us Burn the Witches to Save Them.” The prof points out that even ancient Roman law recognized witches. The good ones --- Lamia --- usually were widowed ladies who sold healing herbs and potions to make ends meet. Latin law, Robinson tells us, left them alone.

Even the bad witches faired reasonably well in those toga times. Penalties were imposed according to the damage done. Motive apparently wasn’t a big deal. Whether your barn burned due to a magic spell or garden-variety arson, the punishment was just the same. Christianity, argues the good doctor, introduced the notion of blame into Western criminal law. Along with guilt came new punishments… big-time punishments, such a burning at the stake.

Ah, but before anybody could be barbequed, proof of guilt had to be established. This necessity burped forth what may be Western law’s first rules of evidence. Leave it to the Dominicans --- the “Dogs of Christ”--- to come up with the “Malleus Malefactorum.” This handy guide to detecting real witches proffered three main tests.

First, witches can’t cry. The book provided a vivid description of the death of Jesus and its impact on his Mother Mary. (Think Mel Gibson’s “The Passion of the Christ.”) If that didn’t bring tears to the defendant’s eyes… Well, then, the Medieval D.A. moved on to the floating test. This test required the suspect to be dropped into a pool of water. If she sank, though in danger of drowning she passed the test. If she floated… Well, onward to test number three, the Middle Age version of today’s body-cavity search. Since a witch is possessed by the devil, old Satan must have slipped in somewhere. Experts meticulously shaved every hair off the defendant’s body, then carefully combed over her bare carcass, pricking it with needles and prying at it with calipers to identify especially-sensitive spots. Since many post-menopausal women suffer from “dry eye” and many old folks endure osteoporosis, which leaves their bones much lightened, tests one and two were frequently fatal. Test three sounds like a fate worse than death.

No exact count of witches burned or otherwise executed exists. One web site says, “ During the 150 year period of the Inquisition, in Germany where the most fierce witch hunts occurred, the minimum estimates range from 30,000 to 100,000.” That’s a lot of roasted witches… and that’s just Germany. One 19 th century writer, Matilda Gage by name, put the grand total at nine million. Another web site, www.holocaust-history.org, calls this figure “exaggerated,” and I’m inclined to agree.

All the same, no love was lost on witches, even in colonial Pennsylvania. That kindly old Quaker, Billy Penn, enacted his “Humane Laws” in 1682-83, banning the death penalty in favor of lighter punishments for all crimes except premeditated murder. But immediately after Penn passed away in 1718, the Provincial Assembly replaced his criminal code with new statutes that prescribed execution for the crimes of sodomy, buggery, rape, highway robbery… and, yes, witchcraft and enchantment.

Whatever force these laws had prior to the American Revolution, by 1825 the Pennsylvania Supreme Court was comfortable in holding that they had been “repealed in fact,” the fact being their non-enforcement. The case, James v. The Commonwealth, concerned a woman convicted of being a “common scold” and sentenced to “ducking” in a public pond. The “common scold” law, concluded the court, “like unscoured armor… is hung up by the wall; like the law of witchcraft, it has remained unused….”

All the same, plenty of modern Pennsylvania cases, mainly child-custody cases, implicate witchcraft. In Troop v. Troop (1996), for instance, Grandma was accused by her son’s ex-wife of teaching the child in question “witchcraft and Satan worship.” In Luminelli v. Marcocci (2002), mom accused dad of practicing “Neo-paganism”, i.e., being a warlock. A number of recent criminal cases commingled covens and child-abuse.

Yes, indeed, no matter witch way I looked, I found warlocks and wicca worshippers lurking in the published opinion’s of our Commonwealth’s common law. No doubt Monday night’s mischief will give rise to more wickedly-witchy cases.