We Swear This Is The Legal History of Halloween

Max Fiest

Halloween is here, and it’s one of our favorite holidays at JLA. So, in order to celebrate we thought we’d take you back to where it all began, and tell the fascinating story of…The Legal History of Halloween.

The Magna Carta Back in 1215, King John of England agreed to the charter of rights known as the Magna Carta, a sacred document drafted to keep the peace and preserve basic freedoms. One oft quoted phrase stands out as the start of our history:

“FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired; and on the Pagan’s Day, they shall have the right to trick or treat at their pleasure.”

The English demonstrated a commitment to religious tolerance unrivaled in all of history. Their charity is so unique, in part, because of the remarkable intolerance the English would show to other religions in nearly every succeeding century.

Scholars agree the Magna Carta shows signs of “hasty bargaining.” Records indicate the Pagans knew they could only secure a single right and negotiated for the placeholder “or” in an early draft until a deal could be reached. But, in their haste, the British forgot to scratch out the “or.” Thus, the famous refrain can be traced back to an Old English scrivener’s error.

At Common Law For many years there was a dispute over the proper meaning of “Pagan’s Day.” This was finally settled in 1301 by the case Pete Pagan v. Johnny Englishman. Pete thought it would be funny to wrap all of Johnny’s cows in colored paper. Unfortunately, he also wrapped their mouths. Johnny sued for damages over his dead cattle. The case went to the High Court, which held:

“It is obvious that, while the rights of trickery are God-given to the Pagans of England, these rights are absolutely not absolute.”

The Court found October 31st was “Pagan’s Day,” which was the day all Anglo-Saxons traditionally vacationed to Scotland and Wales. Presumably, God had given Pagans the right to trick or treat…but only when no one else was around.

The American Revolution Americans value their rights no less than the English, and the Boston Tea Party was initially a late celebration of “Pagan’s Day.” A group of merchants who were at sea during October held their own celebration in mid-December. Once the merchants began treating themselves to some liquor, their revolutionary intent was spurred. Luckily, they were level-headed enough not to throw their candy into the harbor, just their tea.

The American Constitution At the Constitutional Convention, Madison proposed a clause “ensuring the right to trick-or-treat not be infringed.” However, taxing little children’s candy was key to Hamilton’s plan to seize state debt and strengthen the federal government. The amendment was ultimately quashed.

Since then, the Constitution has had surprisingly little to say on the right to trick-or-treat. In the 20th century, litigants sought to exercise their right under substantive due process and the equal protection clause. Although liberal justices like Brennan and Marshall extolled the virtues of this approach, the Court ultimately foreclosed these claims. See San Antonio v. Rodriguez (J. Powell) (“Having denied a fundamental right to education, let’s go ahead and deny a few more.”).

Conflicting Rights Contract law was often in conflict with the right to trick-or-treat. Fed up with a neighbor’s repeated refusals to hand out king-sized bars as advertised, the people of New Port sued for fraud. In Schmuck v. People of New Port, the court upheld the fraudulent as protected under the right to trick.

The tort of intentional infliction of emotional distress was slow to develop, in part because it seemed to infringe on the right to trick. However, the right to treat was a precursor to antitrust. See Farber v. United Sugar Monopoly, Inc. (supracompetitive chocolate prices violated common-law right to treat).

Trick-or-Treat and Natural Law –

The father of legal realism was Supreme Court Justice Oliver Wendell Holmes Jr. Holmes Jr.’s disdain for natural law was on full display in his trick-or-treat jurisprudence. Concurring in Halloween Shop v. Village of the Easily Frightened, Holmes wrote: “The claim of a God given right to a Hershey’s bar is simply preposterous… Anglo-Pagans simply had a large sweet-tooth and possessed the courage and gall to demand rights from their king.”

But Holmes’ perennial pronouncement has been critiqued. Recently natural law has gained traction in academic circles and among sects of religious lawyers. Chris C. Christopherson, head of the Blackstone Legal Fellowship, has this to say: “If natural law means anything, it means the right to engage in secular pagan worship on Halloween.”

And with that our history comes full-circle. From all of us at JLA, trick-or-treat, enjoy your night, and have a blessed holiday!