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The language of the law

It may come as a bit of a surprise that our ancestors couldn’t be convicted of the crime of assault in early Alabama.

Assault, by definition, is an “unlawful attempt or offer, on the part of one man, with force or violence, to inflict a bodily hurt upon another.”1 And in the early laws of Alabama, at least through 1833, there was no provision in the criminal code making a plain garden-variety assault a crime.

Oh, there were provisions that addressed violence, of course, as The Legal Genealogist discovered in poking through old Alabama statutes for this weekend’s seminar of the Tennessee Valley Genealogical Society in Huntsville, Alabama.

Ala.amerceYou still couldn’t commit “wilful murder,” for example,2 and rape was also a capital offense.3

And it was certainly a crime — the crime of mayhem — “if any person or persons, on purpose and of malice aforethought, shall unlawfully cut or bite off the ear or ears; or cut out or disable the tongue; put out an eye, while fighting or otherwise; slit the nose or lip; cut or bite off the nose or lip; or cut off or disable any limb or member of any person whatsoever…”4

But plain ordinary assault, or assault and battery? That didn’t get added to the Alabama penal code until later.5

Now aggravated assault — assault with intent to commit another crime, like murder, rape or robbery — that was a crime even in early Alabama. And anybody committing that crime, on conviction, was to “be amerced in such sum, as shall be assessed against him or her, by the verdict of a jury, and imprisoned a term not exceeding one year…”6

Amerced.

We all know what it’s like to be amerced, don’t we?

Right.

Just because this is the one and only time the word is used in the entire set of laws…

So… what exactly was being done here?

Now one law dictionary will tell us, helpfully,7 that an amercement was a “pecuniary penalty imposed upon a person who is in misericordia; as, for example, when the defendant se retaxit, or recessit in contemptum curioe.”8

Sure.

At least another one is a bit more helpful, defining the verb amerce as “to impose an amercement or fine; to punish by a fine or penalty”9 and defining the noun amercement as “a pecuniary penalty, in the nature of a fine, imposed upon a person for some fault or misconduct, he being ‘in mercy’ for his offense. It was assessed by the peers of the delinquent, … or imposed arbitrarily at the discretion of the court or the lord.”10

And, the explanation continues, “The difference between amercements and fines is as follows: The latter are certain, and are created by some statute; … the former are arbitrarily imposed by courts…”11 And the whole business of being “in mercy”? That meant “to be at the discretion of the king, lord, or judge in respect to the imposition of a fine or other punishment.”12

So to be amerced was to be fined, only not in a set amount but rather in whatever amount the jury in the case determined was appropriate. A kind of criminal damage award to go along with the jail term, without any fixed minimum or maximum.

Takes all the fun out of an assault, now, doesn’t it…


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 94, “assault.”
  2. Chapter 6, Alabama Laws of 1807, §1, in John G. Aikin, A Digest of the Laws of the State of Alabama: … in Force … in January 1833 (Philadelphia: Alexander Towar, 1833), 102; digital images, Google Books (http://books.google.com : accessed 30 Mar 2016).
  3. Ibid., §6.
  4. Ibid., §4.
  5. See §142, Chapter 8, Offenses against the Person, in Geo. W. Stone and J.W. Shepherd, The Penal Code of Alabama (Montgomery: Reid & Screws, State Printers, 1866), 49; digital images, Google Books (http://books.google.com : accessed 30 Mar 2016).
  6. Chapter 6, Alabama Laws of 1807, §5, in Aikin, A Digest of the Laws of the State of Alabama…, 102.
  7. Yes, my tongue is in my cheek here…
  8. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 30 Mar 2016), “amercement.”
  9. Black, A Dictionary of Law, 67, “amerce.”
  10. Ibid., “amercement.”
  11. Ibid.
  12. Ibid., “in mercy,” 604.
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