Yesterday’s post concerned Justice M. Kathleen Butz’ recent holding in Yee v. Am. Nat’l Ins. Co., 2015 Cal. App. LEXIS 257 (Cal. Ct. App. 2015). The case involved the California Controller’s attempt to examine the records of American National Insurance Company. When the insurer resisted, the Controller convinced the trial court to issue a preliminary injunction. Justice Butz observed that the “trial court’s preliminary injunction ruling cogently decimates American National’s contention . . .”. Most readers would understand her to mean that the ruling destroyed American National’s contention. However, that interpretation would be odds at with the etymology and historical meaning of the verb “decimate”.
“Decimate” is derived from the Latin word decem, which means ten, and the suffix – ate, which is used to form English verbs from Latin words. Historically, decimation was a disciplinary procedure used by the Romans and others pursuant to which every tenth soldier was punished (often by being bastinadoed to death). The Historian Polybius described the practice as follows:
συναθροίσας γὰρ τὸ στρατόπεδον ὁ χιλίαρχος καὶ προαγαγὼν εἰς μέσον τοὺς λελοιπότας, κατηγορεῖ πικρῶς, καὶ τὸ τέλος ποτὲ μὲν πέντε, ποτὲ δ᾽ ὀκτώ, ποτὲ δ᾽ εἴκοσι, τὸ δ᾽ ὅλον πρὸς τὸ πλῆθος αἰεὶ στοχαζόμενος, ὥστε δέκατον μάλιστα γίνεσθαι τῶν ἡμαρτηκότων, τοσούτους ἐκ πάντων κληροῦται τῶν ἀποδεδειλιακότων, καὶ τοὺς μὲν λαχόντας ξυλοκοπεῖ κατὰ τὸν ἄρτι ῥηθέντα λόγον ἀπαραιτήτως, τοῖς δὲ λοιποῖς τὸ μέτρημα κριθὰς δοὺς ἀντὶ πυρῶν ἔξω κελεύει τοῦ χάρακος καὶ τῆς ἀσφαλείας ποιεῖσθαι τὴν παρεμβολήν.
The Tribune assembles the legion, calls the defaulters to the front, and, after administering a sharp rebuke, selects five or eight or twenty out of them by lot, so that those selected should be about a tenth of those who have been guilty of the act of cowardice. These selected are punished with the fustuarium [cudgeling] without mercy; the rest are put on rations of barley instead of wheat, and are ordered to take up their quarters outside the vallum [palisades] and the protection of the camp. As all are equally in danger of having the lot fall on them, and as all alike who escape that, are made a conspicuous example of by having their rations of barley, the best possible means are thus taken to inspire fear for the future, and to correct the mischief which has actually occurred.
Polybius, Histories, Book 6, Chapter 38, Sections 2-3 (Evelyn S. Shuckburgh, translator). Although decimation was brutal, unjust and calculated to instill fear, it did leave 90% of the troops physically unscathed.
