One act, and the verdict on it is set by the seat. In the agent's position it is called strategy, kept when it is found out, and protected in the hands it passes to. In the patient's position it is called her nature, and a ranking that allows her no direct action reads every effect she has as guile.
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Deception is moving another creature by means of what she does not know. Nothing in that description says who is doing it, and nothing in the verdicts passed on it is about anything else.
Ask of any account of a deception which seat the deceiver occupies, and the account can be predicted before it is read. The same act is a qualification in one position and a disqualification in the other, and nothing in the act decides which.
[See BEGUILING]
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ALL FOUR CASES RUN ONE WAY
There are four ways the record can place a man and a woman in relation to deception, and the tradition has filled every one of them.
He deceives. Jacob, at his mother's direction, goes in to his blind father Isaac wearing his brother's clothes, with goatskins on his hands, and takes the blessing that was Esau's. When Isaac finds him out the blessing is not withdrawn: I have blessed him? yea, and he shall be blessed. And to Esau: Thy brother came with subtilty, and hath taken away thy blessing. The deception is named and the gain is kept, and it is kept by the one who went in, not by the one who planned it.
He is not deceived. Adam was not deceived, says the first letter to Timothy, and the clause is read as credit to him, though what it records is that he ate with his eyes open.
She is deceived. Of Eve the same letter says the woman being deceived was in the transgression, and from that clause the tradition drew that women are easily deceived and need a man's reading of what is real.
She deceives. Tertullian, writing to women about their dress: Tu es quae eum suasisti, quem diabolus aggredi non valuit. You are the one who persuaded him whom the devil was not strong enough to attack. Eve, who was approached and questioned, is recast as the one who got through.
Every case credits him and convicts her, and a criterion that returns the same direction in all four is not assessing deception. It is reading the seat and entering the reading as a finding about the act.
[See EVE · FALSE WITNESS · THE ORIGINAL COVER-UP · DID GOD REALLY SAY · TERTULLIAN]
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THE RANKING MANUFACTURES THE CHARGE
The ranking is older than any of the four cases and was set down as doctrine. In the ninety-second question of the first part of the Summa Theologiae, the active power of generation belongs to the male sex and the passive power to the female, and the second objection of the same article supplies the valuation from Augustine: the agent is always more honorable than the patient. Active over passive, agent over patient, and the sexes assigned to the two positions.
Now follow what the assignment does to anything she brings about. A creature placed in a position allowed no direct action does not stop having effects, because she goes on living. But an effect produced from a position with no licensed channel for acting cannot be read as action. It can only be read as acting indirectly, and acting indirectly is what guile and wiles mean.
Read in order, the ranking comes first and the charge second. The ranking manufactures the charge it later finds. Forbid her the open door and every arrival is entered as through the window, and the window is then cited as proof of what she is.
[See AQUINAS · NOW IT'S JUST YOUR NATURE]
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FOR HIM IT IS AGENCY AT ITS MOST EFFICIENT
Measured by what agency values, deception is not a corruption of agency. It is its most complete form.
Agency asks what can I do?, and the most that can be done is to move another creature with no visible push and leave no record of having moved her. A beguiling does exactly that: it supplies a true attraction and lets her walk, so that afterwards there is nothing for her to point at except what she did. An act that produces its effect and leaves the effect entered as somebody else's choice is the furthest the agent's position can reach.
The same effectiveness in her is taken as proof of her nature, and the act is identical in both cases. In his hands it is a skill with his name on it. In hers it is a property of the kind of creature she is.
[See AGENCY · MERETRIX · MERIT]
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WHAT RECEPTION DOES NOT DO
The ranking needs one move before it can be stated, and the move is a renaming. Agent and patient are the two ends of one axis, active and passive, and the receiving creature has to be filed at the passive end before she can be ranked below the active one.
Reception is not on that axis. Before any creature can act she has received a body, a language, a world, and the capacity she acts with, so reception comes before agency as an order and not as a preference. Passivity is something else: a position inside the wheel, the position of not acting. Filing reception as passivity is the precondition of the ranking, and it is the error the ranking cannot be stated without.
And reception refuses both of the motions the axis allows. It does not push, which is the agent's motion. And it does not draw by pretense, which is the motion the axis leaves to the creature it has filed as passive: presenting as something other than what she is so that something will arrive. Attend and pretend are one verb with two prefixes, ad-tendere and prae-tendere, stretching towards and stretching out in front, and the faculty that holds a screen out in front is the faculty that would otherwise be reaching towards what is there. A creature receiving is attending, and the two compete for one capacity.
So the axis offers her the push she is forbidden and the pretense she is then convicted of. What she actually does, which is neither, has no place on the axis to be entered.
[See PRETENDING · CESSATION · DRAW-OFF]
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WHEN THE DECEPTION IS PAID
The law does not reward a hidden holding. Adverse possession requires the possession to be open and notorious, and a concealed occupation never ripens. So the reward is not paid for concealment, and the place it is paid is more exact than that.
It is paid against the owner who did not object. Possession held openly, against her title and without her leave, ripens into ownership at the end of the statutory period if she tolerated it without asserting that her permission was required. The deception's work is upstream of the clock: a holding that arrived as something welcome never prompted the assertion, and the clock runs on the silence it produced. The doctrine never has to find a deception, because what the deception produces, an owner who did not insist, is the thing the doctrine rewards.
The law of goods says the same thing about passing it on. Under the Uniform Commercial Code a person with voidable title has power to transfer a good title to a good faith purchaser for value, and the purchaser holds it even where the delivery was procured through fraud punishable as larcenous under the criminal law. UCC § 2-403(1). The defrauded owner's claim ends at the first innocent hand. A deception that is passed on is laundered by the passing, and the gain it made is kept by whoever holds it next.
[See ADVERSE POSSESSION · ACQUIESCENCE · CHAIN OF TITLE]
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BEGUILING THE NATIVE IS THE DOCTRINE OF DISCOVERY
Johnson v. M'Intosh, 21 U.S. 543 (1823), gave the discovering sovereign the exclusive right to extinguish the occupants' title, by purchase or by conquest. Conquest is the route that leaves evidence. Purchase is the route that leaves a signature, and a signature is the occupant's own act, available afterwards as the account of what happened, which is all a beguiling ever needs to produce. The doctrine did not need the native to be deceived. It needed the taking entered as a sale, and a sale is the form in which a taking is recorded as the seller's choice.
Pennsylvania supplies the case with the books open. In 1737 the proprietors produced an unsigned copy of a deed said to date from 1686, granting land as far as a man could walk in a day and a half. The path had been cleared in advance, and one walker covered more than sixty miles. Encyclopedia of Greater Philadelphia. The Delaware at the Forks refused to leave.
The answer they were given is in the province's minute of a council held at the proprietors' house on 12 July 1742. Canassatego, an Onondaga speaking for the Six Nations, whom the government had asked to remove them, turned to the Delaware, and the minute records his words as interpreted into English by Conrad Weiser: But how came you to take upon you to Sell Land at all? We conquered You, we made Women of you, you know you are Women, and can no more sell Land than Women. And a few lines later: But what makes you sell Land in the Dark? Minutes of the Provincial Council of Pennsylvania, vol. 4 (1851), 579-80.
What the designation meant between the nations is disputed, and nothing here turns on it. In the province's minute it does one thing: it places a people in the woman's position, and the woman's position is the one that cannot convey. The deception was done in the walk, and the charge of dealing in the dark was laid on the people walked off the land, in the same speech that ruled them incapable of selling it.
[See JOHNSON v. M'INTOSH · THE DOCTRINE OF DISCOVERY · FOUNDERS THEOLOGY · THE RIGHT OF OCCUPANCY]
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THE OBJECTION THAT HAS TO BE MET
Deception by men is condemned too. Fraud is a tort and in its worst forms a crime, and Jacob's own life is read as a long repayment: deceived by Laban over Leah, and deceived by his sons over Joseph's coat. He even names the first in Eve's verb, as the King James renders both: wherefore then hast thou beguiled me?
Look at what each condemnation attaches to. Fraud attaches to an act: a false statement of material fact, relied on, causing damage, with a defendant and a date. Jacob's complaint against Laban is heard as an injury with a culprit, and his repayments are episodes in a life in which his name is given to a people: Thy name shall be called no more Jacob, but Israel. Hers attaches to a nature, and a nature has no defendant, no date and no term, so there is nothing to answer and no point at which it has been answered.
His deception is a thing he did, and hers is a thing she is. The condemnation of men does not reach that difference, because it is filed under acts.
[See THE WITCH · DISQUALIFIED TESTIMONY]
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The act is the same in both hands.
In his it is entered as an accomplishment with his name on it, and when it is found out the gain is kept, and when it is passed on it is protected in the hands it passes to. In hers it is entered as what she is, and no record of an act is needed, because a nature does not need one.
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
