Abandon All Hope....*

/2 The decision turns on the fact that the dung was just lying around, and therefore accusing someone of taking it could not be defamatory, because it was not a crime, whereas if the dung had been piled up, taking it could be a crime and the statement could be defamatory.

— CommunistDandelionHat (@Popehat) May 5, 2021

/4 ...and the speaker's incorrect **conclusion** that this makes the target a thief is irrelevant because the factual premise has been stated. This is more or less the Powell/Wood defense.

— CommunistDandelionHat (@Popehat) May 5, 2021

Popehat got me started and now you all have to suffer for it. First, here's the opinion in Carver v. Pierce (1648):

Carver brings an action upon the case against Pierce for speaking these words of him, Thou are a thief, for thou has stolen my dung; and hath a verdict.  The defendant moved in arrest of judgment, that the words were not actionable:  for it is not certain whether the dung be a chattel, or part of the freehold, and if so, it cannot be theft to take it, but a trespass, and then the action will not lie.

Bacon, Justice:  Dung is a chattel and may be stolen.

But Roll, Justice, answered:  Dung may be a chattel, and it may not be a chattel; for a heap of dung is a chattel, but if it be spread upon the land it is not, and said, the word thief here is actionable alone, and there are no subsequent words to mitigate the former words, 

and there are no subsequent words to mitigate the former words

Bacon, Justice, said:  It doth not appear in this case of what value the dung was, and how shall it be known whether it be a felony or petty larceny.

To this Roll answered:  The words are scandalous notwithstanding, and actionable, though the stealing of the dung be not felony.

So before returning to Popehat's analysis, and whether or not to take it seriously in matter of the Powell/Wood defense, let's put this matter in lay terms.

First, understand this opinion turns on the issue of definitions.  When is dung chattel, and when is it not?  That's actually an important question, as I'll come to in a moment.  When it a crime a felony, and when is it petty larceny?  Also an important question.

And remember the base issue of definition: it draws a line between what is the thing defined, and what is not.  You may find such line drawing petty and even "legalistic."  But we all do it all the time, lest we erase all boundaries and invite complete chaos.  Maybe we'll get back to that, too.

Are we having fun yet?

So, Pierce calls Carver a thief for stealing Pierce's dung.  This results in a verdict of slander for Carver.  Pierce appeals, on the grounds that if the dung were chattel, it was theft by Pierce; but if not, it was a trespass on real property, and so the action against Pierce was erroneously brought and the court failed for want of jurisdiction (basically.  Let's not get too far into the weeds here.)

Why does this matter?

Well, theft involves the improper taking of chattel (today, personal property).  You can only take real property by trespass (such as farming it, building on it, etc., without permission.  If the owner allows that long enough, the owner can lose title to the property to the person using it without permission.  So it pays to object to such unpermitted usage.)  You take chattel by...well, taking it.  So was the dung chattel, or real property ("part of the freehold")?  If the latter, then Carver couldn't be a thief, no matter what Pierce said.

I actually faced this question of definition in court once (yeah, I have to flense my memoirs into blog posts; deal with it).  The bank (my client) had a lien on the real property of the defendant.  That meant the land and the building affixed to it.  Now, everything attached to the building and regularly conveyed with it (the light switches, the ceiling lights and fans, etc.) are "fixtures."  Not real property, but not chattel; part of the "freehold," in 17th century English law language.  My case involved a refrigerator.  Normally that's not a fixture.  It's a lamp, a TV set, a radio:  it plugs in to the outlet, you unplug it and remove it.  Like a stove (unless it's built in ) or a microwave (ditto).  But this was a commercial refrigerator.  The storage unit was in the kitchen, the compressor was outside.  It was connected through the walls, much as an A/C unit has a compressor outside and blower and ductwork inside (also fixtures, by the way).  So it was a matter of definition:  if the refrigerator could be removed simply by unplugging, the bank had no claim to it.  But if it was attached to the walls, like a ceiling fan or an A/C unit, it was part of the real property.

See?  These distinctions matter.  (The situation also determined what kind of writ I had to get the court to order to prevent removal of the appliances. An injunction wouldn't do; I had to use a writ of mandamus.  You don't want to go into those weeds.)

So if the dung was spread (as fertilizer), it was part of the freehold, and accusing Carver of taking it would actually make his act a trespass, not a theft (again, you can't steal land, you can steal chattel).  So accusing Carver of theft is "not actionable," i.e., not a complaint the court can rule on (so much of law actually turns on whether the court can take any action; back to the question of jurisdiction), because the statement by Pierce doesn't say whether the dung was chattel or "part of the freehold."  In the ambiguity, is Carver accused of a crime?  Or a trespass?  It's a bit of a Shroedinger's cat problem, except you can never open the box, so the cat is dead and alive simultaneously.  If you can't open the box, it can't be an action the courts can rule on.  The court isn't saying, in other words, that the words aren't slanderous (again, the matter of definition).  The court is saying it can't determine whether or not the words were slanderous, and therefore must reject the case. (Please not that even if the facts of the case proved by evidence the dung was chattel, the ruling would stand; because the statement by Pierce doesn't establish that fact.)

What about that last line of the tweets, that this is the Wood/Powell defense?  In a minute; first, note the ancient rule  drilled into my head by my Torts Professor (say it with me now):  "Change the facts, change the outcome."  It holds as far back as the 17th century. The court in Carver couldn't change the facts, so it had to reject the outcome (the facts were too ambiguous in the statement upon which the action was brought).  But if Pierce had said "Carver stole my dung pile!", the outcome would have been different.  Or if Pierce had said "Carver scooped the dung off my field!," the outcome would have been different.

If you read carefully, you'll not that Justice Roll wants to call it slander ("scandal") because Pierce called Carver a thief "and there are no subsequent words to mitigate the former words."  He sticks to that reasoning, insisting the statement is slander whether or not the stealing of dung is a felony (i.e., whether or not the dung was chattel or part of the freehold in the statement by Pierce).  It's a position that would make a great many more statements said in anger into actionable slander than the courts would really want to deal with.  But it’s the position that became the basis of modern libel law.  Once again, how you define things matters.  The court was defining this action in a way that meant it didn’t have to rule on it (ambiguous facts, basically, which slips through the net of “cause of action”).  We still have “failure to state a cause of action” in the law, but courts tend to interpret that very broadly now, allowing in almost anything that does state a colorable cause of  action.  Like a Wood or Powell election fraud suit.

The argument of Roll is the one that leads to the modern cause of action for slander.  Bacon is following the traditional reasoning, which is to find a reason not to accept the case in the first place.  “Failure to state a cause of action” was commonly invoked, and relied on, as the courts sorted out what they wanted to deal with, and what they wanted to leave alone.

The decision in Carver turns on the question of definition, and on whether the accusation against Carver was actionable or not (not really on whether it was "opinion."  That's modern American 1st Amendment jurisprudence.  We won't distinguish it here, just note the distinction because otherwise we commit the sin of anachronism.).  The court decides on the issue of action, and determines they can't rule on the facts before them because there is too much ambiguity in the statement.  Roll insists it is clearly slanderous ("scandalous" in his language); Bacon insists the legal issue turns on whether or not Carver was accused of theft or a trespass; and in the ambiguity, Carver fails to state a cause of action.  It's not even a question of whether or not it is a defamatory statement (Roll insists it is, Bacon dodges the question).  It's a question of whether or not the court has to get involved.

And the court decides it doesn't.  Popehat is right on that:  this case best captures what it's like to be a lawyer.  It’s also the Wood/Powell defense.  I.e., failure to state a cause of action. 

Well, it’s as much of a defense as W/P has come up with.  I didn’t say it was a good one.

*Don't say you weren't warned....