Ass and Name
Zola and Zoilus
A few Neos
What's in a Nem?
Pleo III-Two More Pleons
Achron.. and Acroam..
Per IV--Perpotation et al.
Per and Pre--Prevenient
Perpense and Perpend
Epi I--Epiplexis, et al.
The Doric Column
Epi III--Episemon et al.
Stell ...and Other forms of Fraud
Bill Long 10/15/04
We left off with the legal term stellionatus, which we defined as a crime in which fraud was an ingredient, though its more precise signification was in property law, where it signified the crime (or offense..the authorities are not unanimous that it was a crime) of selling or disposing of the same property to successive purchasers. But we can go deeper.
The word stellio is attested in Vergil and Pliny's Natural History to signify a kind of lizard or gecko. More modern dictionaries define stellio as an agamoid lizard of the (what do you expect?) Stellionidae family of lizards, characterized by "acrodont dentition, naked tympanum, no pores, and the scales of the tail disposed in whorls or verticils (can't you just see a few more mini-essays leaping off the page at you??)." But here is the connection between stellio and stella. The stellion is a "lizard marked with star-shaped spots." Great. I like it when things are tied down like this. Now we understand the definition of stellionate given in Bouvier's 1856 law dictionary, the standard one before Black's took over the field in the 20th century. "This word is said to be derived from the Latin stellio, a kind of lizard remarkable for its cunning and the change of its color, because those guilty of frauds used every art and cunning to conceal them." Don't you like the not-so-subtle moralistic tone of the old dictionary?
Stellionatus actually has its origins in Roman law, and is attested in the 3rd century jurist Ulpian. It is called "crimen stellionatus" (the crime of stellionate), which the OLD defines as "deceitful or underhand dealing." When it is first attested in English in 1622 it is used as one of the matters over which the Star Chamber had jurisdiction. In the 1622 quotation, given at the end of the previous mini-essay, "Frauds" appear to be distinguished from "Crimes various of Stellionate," but the author doesn't indicate how. Perhaps already, then, in the 17th century, stellionate had narrowed its focus in the common law relating to multiple conveyances of the same property.
A Digression into Law
But now I have done it; I have opened the door to the vast and alluring terminology of the common law. Let's bring together several relevant terms to enrich our discussion. First a diversionary term. In the 1622 quotation from above, one of the areas over which the Star Chamber had jurisdiction were "Inchoations or Middle Acts towards Crimes Capitall, or hainous, not actually committed." We have picked up the terminology of "inchoate crimes" in the modern Model Penal Code of the early 1960s, and defined those three crimes as "attempt, solicitation and conspiracy." That is, inchoate crimes in the present are those which are not yet completed, but are begun. Thus, the 1622 quotation denominates "Inchoations" as "Middle Acts." Isn't that a pleasant way to put unpleasant conduct? They have begun but haven't yet arrived at full-fledged murder or theft. The acts are "Middle Acts."* The picture I get in my mind, whenever I use the word "inchoate" in
[*It is sort of like the word mesne in common law, signifying "intermediate" or "intervening," and used especially in the obsolete practice called common law pleading (yikes, I see dozens of mini-essays coming!). That is, the writ of Capias ad respondendum ["Seize the person who is to answer,"--this is a command to the sheriff who serves process on the defendant] is a mesne process, because it stands in the middle between actually commencing the suit and completing the suit. Here Black's law dictionary is even misleading. Black's defines capias ad respondendum as a "judicial writ by which actions at law were frequently commenced," but this isn't really the case. In English common law procedure, the original writ, which got everything going, was a writ obtained from Chancery that stated the form of action plaintiff would be pursuing. Service of the original writ began the case. Then, shortly thereafter (or along with the writ) was the capias, which told the sheriff how to get things going. It was the "intermediate" process, then, between the filing of the original writ and the actual prosecution of the suit at trial. Sorry, I just had to do it.]
speech or writing is from Genesis 1, where the earth was "without form and void" (tohu va bohu). The earth, in its "preformed state," was "inchoate." Thus, when a student comes to me and says that the ideas have not yet gelled in her mind for the term paper, her thinking is "inchoate."
But let's return to the conceptual field suggested by the narrower definition of stellionate. It takes us into the depths of property law. Stellionate is a species of fraud. Indeed, fraud is the common law and popular term used to describe all manner of deception practiced on someone. When you argue in state or federal court and want to prove a case of fraud, you have to show that there was a representation made by the defendant which s/he knew to be untrue, that the plaintiff relied on this representation and that plaintiff thereby suffered harm. We are still not sure in our legal system whether fraud is a civil or criminal offense (it can be either), and so the quantum of evidence needed for conviction for a charge of fraud is neither preponderence of the evidence (the standard civil law requirement) or beyond reasonable doubt (the criminal law standard) but "clear and convincing evidence," which is somewhere in between. I have told my students, for example, that if "preponderance" is 51% and BRD is (in my judgment) 95% sure, then "clear and convincing" is about 75-80% convinced.
A Little More on Fraud
Another common law term for fraud is cozenage, defined by the OED as "The practice or habit of cheating, deception, fraud." The word is usually used with some partner terms, such as dissimulation, guile, treason, false play or shifting, to describe the deception practed on someone. It isn't difficult to see the connection of cozenage, attested only to the 16th century, and cousinage, reaching back 200 years earlier, and defined as "the condition of being 'cousins'; kinship, consanguinity." Hm. One wonders whether being ripped off once too often by your relatives was the reason for inventing the term cozenage?
Oops. Another diversion just hit me as I compared cousinage and cozenage, but that will have to wait until the next essay.
Copyright © 2004-2010 William R. Long