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The Scrying Game: the First Amendment, the Rise of Spiritualism, and State Prohibition and Regulation of the Crafty Sciences, 1848-1944

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The Scrying Game: the First Amendment, the Rise of Spiritualism, and State Prohibition and Regulation of the Crafty Sciences, 1848-1944 Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 2017 The Scrying Game: The First Amendment, the Rise of Spiritualism, and State Prohibition and Regulation of the Crafty Sciences, 1848-1944 Christine Corcos Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the First Amendment Commons Repository Citation Corcos, Christine, "The Scrying Game: The First Amendment, the Rise of Spiritualism, and State Prohibition and Regulation of the Crafty Sciences, 1848-1944" (2017). Journal Articles. 401. https://digitalcommons.law.lsu.edu/faculty_scholarship/401 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. +(,121/,1( Citation: Christine A. Corcos, The Scrying Game: The First Amendment, the Rise of Spiritualism, and State Prohibition and Regulation of the Crafty Sciences, 1848-1944, 38 Whittier L. Rev. 59 (2017) Provided by: LSU Law Library Content downloaded/printed from HeinOnline Fri Mar 2 15:01:27 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device THE SCRYING GAME: THE FIRST AMENDMENT, THE RISE OF SPIRITUALISM, AND STATE PROHIBITION AND REGULATION OF THE CRAFTY SCIENCES, 1848-19441 CHRISTINE A. CORCOS* * Richard C. Cadwallader Associate Professor of Law, Louisiana State University Law Center; Associate Professor of Women's and Gender Studies, Louisiana State University A&M, Baton Rouge, Louisiana. This Article is the first of a series investigating the legal, political and social treatment of Spiritualism and the crafty sciences in the United States, the United Kingdom, other Commonwealth countries, and other European countries between 1848 and the present day. Many thanks to my colleagues Grace Barry, John Devlin, and Philip Hackney of Louisiana State University Law Center. Professor Hackney was particularly helpful with regard to arcane areas of the tax law (which is to say, all areas of tax law). I am also indebted to Kevin Baggett, Susan Gualtier, and Melanie Sims of the LSU Law Center Library, Phillip Gragg, now at California Western School of Law, and to Danielle Goren, LSU Law 2012, and Justin C. Ward, LSU Law 2013, and Madeleine Arivett Aldridge, LSU Law '17, for research assistance, and to Cynthia Virgillio for secretarial assistance. 1. "Scrying" is an occult practice, used by many mystical religions as well as what the law calls "crafty sciences." The Oxford English Dictionary defines "to scry" as "[t]o see images in pieces of crystal, water, etc. which reveal the future or secrets of the past or present; to act as a crystal-gazer." 14 OXFORD ENGLISH DICT. 2D ED. 1989 at 757. Scrying consists of using a reflective surface or translucent body that allows the individual to perceive the past, present or future in aid of what she or he believes are psychic abilities (clairvoyance or precognition for example). To that extent it constitutes fortune telling. Wicca is among the religions which use scrying. See Pugh v. Caruso, 2006 U.S. D. C. LEXIS 24709 (W.D. Mich. S.D., 2006) (plaintiff argued that he was "wrongfully denied his right to exercise Wicca" because prison officials refused his request for access to religious objects, including a "scrying bowl and/or crystal ball."). WHITTIER LAW REVIEW Vol. 38:1 1. Introduction .......................................................................... 61 II. Rogue and Vagabond Legislation in the United States ...... 72 III. The Origins and Rise of Spiritualism ................................... 76 A. The Origins of the Spiritualist Movement .................. 76 B. The Influence of Spiritualism on the Public Im agination .................................................................. 78 C. Scientific Investigations into Spiritualism .................. 79 IV. Spiritualism as a Religious Belief ....................................... 86 A. The Resistance to Spiritualism ..................................... 86 1. Resistance from Mainstream Churches and the Legal System ..................................................... 86 2. Common Practices of Spiritualism and the Reaction of Professional Magicians ................... 94 3. Reactions in the Media .......................................... 103 V . Spiritualists in C ourt ............................................................... 106 A. Early Attempts to Protect Spiritualist Rights in Court...106 1. Making Spiritualism a Federal Case: Licensing and the Colchester Tax Challenge of 1865 ............ 106 2. Spiritualism as a Religion: Stating a Claim Under a State Statute: The Feital Case (M assachusetts, 1872) ........................................... 114 B. Another Problem: Fitting Spiritualism into the "R eligion" Classification ............................................... 115 C. Spiritualists Challenge the "Crafty Sciences" S tatu tes ........................................................................... 1 16 1. Early State Cases: The Spiritualists Take on Laws of General Applicability .............................. 116 2. Illinois Considers the Issue .................................... 125 3. Spiritualists in Other State Courts: Rogue and Vagabond Legislation Prevails ....................... 132 4. New York Holds the Line ...................................... 137 5. Spiritualists and Commercial Speech .................... 141 6. Attitudes Soften: Pennsylvania, Ohio, New Y o rk ....................................................................... 14 5 VI. A Turning Point: Mirsbergerv. Miller ................................... 154 VII. Conclusion: Areas of Contention: Some Resolved, Some C ontinu ing .............................................................................. 159 2017 THE SCRYING GAME I. INTRODUCTION United States jurisdictions have attempted to regulate, or ban2 altogether the practice of the so-called "crafty sciences" -palmistry, tarot card reading, 3 astrology, 4 or other types of fortune telling, clairvoyance, 5 and many other magical arts -since before the founding of the Republic. Early statutes, both in the United Kingdom and in the6 United States, banned such practices in the interest of combating fraud . The rise of the Spiritualist movement emphasized communication with the dead through "rappings, and the use of practices that seemed to resemble these banned activities very closely. 8 Because no "ministerial 2. Palmistry, also called chiromancy, "is the practice of telling fortunes from the lines, marks, and patterns on the hands, particularly the palms." Robert T. Carroll, The Skeptic's Dictionary, SKEPTIC'S DICTIONARY, http://skepdic.com/palmist.html (last visited Apr. 10, 2017). 3. In cartomancy or card reading, the practitioner uses decks of cards to predict the future. See Carroll, supra note 2. 4. "Astrology, in its traditional form, is a type of divination based on the theory that the positions and movements of celestial bodies (stars, planets [except the one you are born on or those in other solar systems], Sun, and Moon) at the time of birth profoundly influence a person's life." Carroll, supra note 2. 5. "Clairvoyance is an alleged psychic ability to see things beyond the range of the power of natural vision or vision assisted by technology." Carroll, supra note 2. 6. See, for example, the Vagrancy Act 1824, (5 Geo. 4. c. 83), which applied to England and Wales, and which Parliament extended to Scotland and Northern Ireland through the Prevention of Crimes Act 1871 (1871 c. 112 (34 and 35 Vict.); and Criminal Law Amendment Act 1912 (2 & 3 Geo. 5 c. 20) (repealed for England and Wales by the Sexual Offences Act 1956, s. 51 & Sch. 4; and for Scotland by the Sexual Offences (Scotland) Act 1976, s. 21(2) & Sch. 2). States in the U.S. enacted their own statutes, but such legislation was remarkably similar from jurisdiction to jurisdiction and they modeled their legislation on the UK legislation that preceded it. See, for example, the New Jersey statute passed in 1799 regulating the behavior of the poor, as well as those whom the government believed to be engaged in fraud. Note the reference to it in a case from 1953. "All paupers, who shall unlawfully return to the city or township, from which they were legally removed... and all persons, who shall use, or pretend to use, or have any skill in physiognomy, palmistry, or like crafty science, or who shall pretend to tell destinies or fortunes.. .shall be deemed and adjudged to be disorderly persons." State v. Maier, 99 A. 2d. 21, 33-36 (1953). 7. "Rappings" were simply the sounds that the spirits used to communicate with seance sitters. Almost immediately, skeptics investigating the Fox sisters attributed the rappings in that case to "crackings of their knee joints." See R. LAURENCE MOORE, IN SEARCH OF WHITE CROWS 27 (Oxford University Press, 1977). 8. On contemporary reactions to the rappings, including suggestions from some clergy that Kate and Maggie Fox were "witches,"
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