Thursday, July 16, 2009

Mason on Wrongful Death at Common Law

Malcolm S. Mason, an independent scholar, has posted Civil Liability at Common Law for Wrongful Death: A Footnote to the Dictum of Lord Denman in O'Connell v. The Queen. Here is the abstract:
Since the enactment in Britain of Lord Campbell’s Act (The Wrongful Death Act) (1846) it has been widely but erroneously assumed that the Common Law provided no civil remedy for wrongful death. This mistaken view is sometimes thought to rest on the maxim, Actio personalis moritur cum persona, or on the thought that the value of a human life is beyond estimation, or on the doctrine of merger in felony, or on the obsolete right of appeal, or on the need of a contract. None of these justify the belief in lack of civil remedy at common law. The common practice of American courts, including some made up of learned lawyers, shows the contrary. If we now return to a close examination of the English precedents, we find the existence of the remedy confirmed. Why was the mistaken view accepted. Speculatively, it was because of the rise of railroad accidents and of Lord Campbell’s gifts as an orator which exceeded his gifts as a lawyer.
Mr. Mason was a research fellow of the Foundation of Research in Legal History at the Columbia Law School under Julius Goebel. In the 1930s he was an attorney at the Agricultural Adjustment Administration and the National Labor Relations Board. He was General Counsel of the Office of Alien Property during World War II and, later, Chairman of HEW's Departmental Grant Appeals Board.

Image credit: Lord Campbell.

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