Legal culpability
There was no basis in Roman law, canon law, or English common law for the legal prosecution of a demoniac. As the Scottish jurist Lord Fountainhall wrote in 1712 regarding Janet Douglas’s accusation against the witches of Pollock in 1677, ‘if it be an unvoluntary possession . . . it can never be made criminal’ (Historical Notices of Scotish Affairs Selected from the Manuscripts of Sir John Lauder of Fountainhall, ed. J. Laing [Edinburgh, 1848], vol. 1:144). As long as possession was involuntary, demoniacs could not be held responsible for the Devil’s occupation of their bodies. In this respect demonic possession held a similar legal status to that of insanity, a medical condition with which possession was often identified. The main reason that demoniacs were not legally culpable was that they had not intended to perform the illegal deed; in other words, they had not given their wilful consent to the actions they had performed. The only circumstance in which a demoniac could not be prosecuted was when that person deliberately faked the symptoms of possession to seek revenge on a personal enemy, faked the symptoms of possession to seek revenge on a personal enemy, engage in illegal, immoral, or otherwise unacceptable activity with impunity, or solicit charitable contributions. As discussed in Chapter 1, Anne Gunter and Katheren Malpas were both prosecuted in the Court of Star Chamber for their malicious efforts to indict others for causing their possession by means of witchcraft. In the Spanish and Roman inquisitions counterfeit demoniacs could be prosecuted either for the dissimulation itself or for the activities they engaged in during the pretended possession, although such prosecutions were not common. For the most part, however, demoniacs were given a legal pass.
Legally knowledgeable individuals could use the non-culpability of demoniacs to their advantage. In July 1591 the English religious fanatic Henry Arthington denounced the Lord Chancellor and the archbishop of Canterbury as ‘traitors to God and the realm’ and pronounced his associate, the ‘mad fool’ William Hacket, to be Jesus Christ. Hacket was executed as a traitor, despite claiming that he had been insane at the time of the incident, but Arthington avoided the same ate by claiming that Hacket, as Satan’s minion, had seduced and demonically possessed him. This possession, so Arthington claimed, had been temporary; once Hacket had been executed, the possession ended. While in prison, Arthington wrote an account of this possession, The Seduction of Arthington (1592) in which he admitted that Hacket’s brutal execution had freed him not only from Satan’s control but from his own ‘gross and palpable errors’, which he now realized were so offensive. His contrition and the publication of his apology persuaded the members of the Privy Council, especially those with Puritan sympathies, to spare his life and modify the terms of his imprisonment (Williams. ‘Exorcising Madness’, 30-52. Henry Arthington, The Seduction of Arthington by Hackett especiallie, with some tokens of his unfained repentance and his Submission [London, 1592]).
In eighteenth-century Spain, Benito Feijoo argued that the legal immunity of demoniacs to prosecution created a serious social problem, in that the falsely possessed enjoyed the freedom to commit as many crimes as they wished, including murder, theft, and arson because they knew that their deeds were ‘cloaked with the imagination that the Devil did it all’ (Tausiet, ‘From Illusion to disenchantment’, 52-3). Although Feijoo appears to have been genuinely concerned about this problem, he gave no evidence that counterfeit demoniacs had actually ngaged in criminal activity under such false pretences. There may very well have been significant numbers of demoniac impostors in early modern Spain, even if they were not as numerous as those who pretended to be mystics, but it is unlikely that they were responsible for the crimes that Feijoo eared they were committing. (Brian P. Levack, The Devil Within: Possession and Exorcism in the Christian West [New Haven: Yale University Press, 2013], 196-97)