The language of the law. Part Latin, part Greek, part law French, even part Anglo-Saxon. And all confusing.
Sometimes, so the saying goes, a cigar is just a cigar.
But, in the law, sometimes a word doesn’t mean at all what we might think.
Case in point — literally a case here — is a criminal prosecution from 1916 in the State of Minnesota where the charge, according to the decision of the court, was mayhem.
And seeing that word in a legal document could well lead many people — The Legal Genealogist among them — to form a very distinct mental image of the crime.
Mayhem is, after all, “violent or extreme disorder; chaos”1 so we’re dealing with rioting in the streets, right?
Not according to the Minnesota Supreme Court, which described the case this way:
The defendant was indicted with three others, charged with the crime of mayhem. … On the evening of February 18, 1916, defendant assaulted (the victim) and struck him several blows, seriously injuring (him) and destroying his right eye. The assault was made without a weapon, the injury to the eye being the result of a blow from defendant’s naked fist.2
Why is a fistfight getting somebody charged with mayhem?
It’s because the word mayhem doesn’t simply mean what we might think it means today. In the law, it’s a different beastie altogether.
Mayhem, in the criminal law, is the“ act of unlawfully and violently depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary.”3
That doesn’t tell us very much, does it?
So let’s break it down.
Violence against a person that didn’t result in loss of life at common law fell into five basic categories:
• Bare “threats and menaces of bodily hurt, through fear of which a man’s business is interrupted.”4
• Assault, which is “an attempt or offer to beat another, without touching him; as by holding up one’s fist at him in a menacing manner; striking at another with a cane or stick, though the party miss his aim; presenting a gun, when loaded, at a person; drawing a sword or bayonet; throwing a bottle or glass, with intent to wound or strike.”5
• Battery, “the unlawful beating of another. The
least touching of another’s person wilfully, or in anger, is a battery…”6
• Wounding, “which consists in giving another some dangerous hurt; and is only an aggravated species of battery.”7
• Mayhem, “an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making so good a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a fore tooth, and also some others. But the loss of one of the jaw teeth, the ear, or the nose, is no mayhem at common law; as they can be of no use in fighting.”8
The bare threats wouldn’t usually get the police or prosecutors involved; any of the other four categories, though, could results in criminal charges. Mayhem, however, would always get the attention of the law, since maiming somebody — causing a permanent injury to a part of the body that renders someone less capable of fighting9 — is something the common law took seriously.
But charging somebody with one of these crimes didn’t always mean that’s what he’d be convicted of. Instead, a charge for each one could result in a conviction for any of the less serious crimes, called “lesser-included offenses” because you can’t commit the greater offense without also committing the lesser-included offense.
So somebody charged with mayhem could be convicted only of the lesser-included offense of battery, and somebody charged with battery could be convicted of the lesser-included offense of assault.
And that’s what happened in the Minnesota case. The defendant was charged with mayhem, but convicted of assault, and, the Court said: “A defendant in a criminal prosecution may be convicted of a lesser degree of the offense charged in the indictment. So where, as in the instant case, the indictment charges mayhem, there may be a conviction for assault …, for an assault and battery is necessarily included in the commission of the crime of maiming.”10
The language of the law… always confusing to us genealogists, isn’t it?
- Oxford Dictionaries Online (http://oxforddictionaries.com/ : accessed 3 Dec 2017), “mayhem.” ↩
- State v. Damuth, 160 N.W. 196, 197 (Minn. Sup. Ct., 1916); digital images, Google Books (http://books.google.com : accessed 3 Dec 2017). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 762, “mayhem.” ↩
- John Gifford, Esq., The Complete English Lawyer; Or, Every Man his own Lawyer : Containing a Summary of the Constitution of England; Its Laws and Statutes, 4th ed. (London : A. Whellier, 1820), 11; CD-ROM reprint (Columbia, Md. : Archives CD Books USA, 2002). ↩
- Ibid. ↩
- Ibid., 12. ↩
- Ibid. ↩
- Ibid. ↩
- Black, A Dictionary of Law, 741, “maim.” ↩
- State v. Damuth, 160 N.W. at 197. ↩