Definition
A term used in legal contexts with two principal meanings:
1. As a condition between persons: A state of conflict, hostility, or confrontation between parties that results or threatens to result in a breach of the peace or a flagrant violation of law. In this sense, "difficulty" describes an altercation, quarrel, or hostile encounter — a social and interpersonal disturbance with potential legal consequences.
2. As a condition in performance: An obstacle, impediment, or hardship that arises in the course of performing a legal duty, contract, or obligation. In this sense, difficulty refers to the quality or degree of burden placed on a party, and may bear on questions of impossibility, excuse, or the standard of care required.
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Common Language
Modern common usage (Wiktionary): The state of being hard to do; an obstacle hindering achievement of a goal; an awkward situation or quarrel.
Historical common usage (Webster's 1913): "The state of being difficult, or hard to do; hardness; arduousness; — opposed to easiness or facility." Also: "Something difficult; a thing hard to do or to understand; that which occasions labor or perplexity."
The gap between common and legal meaning is real but subtle. In everyday English, "difficulty" most naturally signals hardship or challenge in an abstract sense. In legal usage — particularly in criminal law, evidence, and case reporting — the word has a specialized secondary sense as a near-synonym for "altercation" or "affray." A reader encountering "difficulty between the parties" in a 19th-century case report should not read it as merely a disagreement; it signals a physical or legally significant confrontation. This specialized usage is entirely absent from modern common definitions.
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Common Confusion
"Difficulty" in legal sources is frequently encountered where a modern reader might expect "altercation," "affray," "dispute," or "quarrel." These are not always interchangeable. An affray has a technical definition involving public fighting. A quarrel may remain purely verbal. "Difficulty," as used in older American case reports and legal proceedings, typically implies an escalation beyond mere argument toward conduct that either breached the peace or came close to doing so. Researchers who treat it as a vague synonym for "disagreement" will misread the severity of what is being described.
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Why It Matters in Research
The dual meaning of "difficulty" creates a navigation problem in the Law Mind corpus that is easy to overlook. When reading 19th- and early 20th-century American case reporters, legal proceedings, and trial transcripts, researchers will routinely encounter phrases like "a difficulty arose between the parties," "they had a difficulty," or "growing out of a prior difficulty." In this context the term is a term of art describing a violent or near-violent encounter — effectively a charged altercation — not merely a contractual dispute or abstract problem.
This usage was "in general use, and well understood" in its era, as Anderson notes, precisely because it expressed a cluster of ideas (physical confrontation, legal provocation, potential breach of peace) that no single more technical term captured with the same economy. Courts used it freely in homicide, assault, and self-defense cases to describe prior encounters between a defendant and victim. Researchers working on questions of provocation, self-defense history, or the development of American criminal law should treat "difficulty" in those contexts as a signal to look for factual background involving physical or threatening conduct.
In the performance-of-duty sense, "difficulty" appears in contract, admiralty, and employment contexts. Here it functions more like modern uses of "hardship" or "impracticability" in doctrine, though without the technical weight those terms later acquired. It is generally not a threshold term triggering specific legal consequences in historical sources — it describes a condition, not a legal test.
Researchers should also be aware that the term's legal salience has diminished significantly. Modern legal writing rarely uses "difficulty" as a term of art for an altercation; contemporary sources use "altercation," "incident," or specific doctrinal terms. Cross-searching historical and modern materials on the same fact patterns therefore requires sensitivity to this vocabulary shift.
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Historical Dictionary Support
Anderson's Dictionary of Law is the sole historical dictionary source for this entry, and it is instructive in two respects. First, Anderson's candid acknowledgment that the term "cannot, perhaps, be imparted so well by any other term" is itself significant: it confirms that "difficulty" occupied a recognized slot in the legal vocabulary of its era that more technical synonyms did not fill. This is not the language of a weak or contested term — Anderson treats it as well-established and practically indispensable.
Second, Anderson's entry is notably incomplete as preserved here; the second definition (relating to performance) breaks off mid-sentence. This truncation means that the full doctrinal scope of the term as Anderson understood it cannot be reconstructed from this source alone. Researchers relying on Anderson for this term should treat the entry as partial and supplement it with period case law and treatise sources.
No other historical legal dictionaries in the current Law Mind shelf (Bouvier, Black's, Burrill, etc.) appear to have dedicated entries for "difficulty" as a term of art, which itself reflects the word's nature: it was a widely used practical term rather than a formally defined legal concept requiring systematic treatment.
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