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injured, and that the civil injury was merged in the greater injury to the state.1

As to the action being personal to the party injured, it is easily seen why such actions should not survive. In such cases the party may not elect to proceed, and so the avoidance of litigation is accomplished. But, even as to the injured party, this power of election does not exist when death ensues. And the reason ignores the fact that the party killed is not the only one injured. There are many cases where suit is brought, not for a right of action derived from the party injured, but for damages caused directly to the suitor. As a result, the common law finds itself in the absurd position of giving a right of action to the parent for the loss of the services of his son if some one beats him so severely as to disable him, but not if the beating is carried so far as to kill him. A parent may sue at common law for loss of the services of his daughter if some libertine seduces her, but not if some brute outrages and murders her. It seems to be one case where the part is greater than the whole.

When aged and indigent parents are deprived by death of the son who is supporting them, or a wife with a family of helpless children is left to feed and rear them unaided by the strong arm which has theretofore done all the labor, it is a mockery to say that only the dead was the party affected. The empty larder teaches the contrary, and the case is not analagous to those wrongs like slander or libel, which are, in nature, strictly personal.

On natural principles of equity, such wrongs should have a remedy.

The Civil-Law Doctrine

The doctrine of the civil law on the subject is not entirely clear. In Hubgh v. New Orleans & C. R. Co.,2 the Supreme

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Court of Louisiana decided that by the civil law there was no right of action for damages resulting in the death of a freeman, as the value of a freeman's body could not be estimated in damages; but that there was such a right of action in case of a slave. In the course of the opinion it is also said that the well-known passage of Grotius was intended to enunciate merely a duty of imperfect obligation arising from natural law, and not any requirement of municipal law. On the other hand, Judge Deady, in Holmes v. Oregon & C. R. Co., states that the Roman law did give such a remedy, though he cites no authority for the statement. It is probable, however, and certainly the opinion of the leading commentators, that the provisions in the ancient civil law in relation to the killing of freemen were penal, rather than civil.

The Continental Doctrine

However this may be, the leading Continental nations, which have drawn from the civil law their principles of right and remedy, have adopted in their system of laws, a remedy for such cases.

The above-cited decision from Louisiana states that the law of France allows such a remedy, though it did not feel bound to adopt the French law on the subject for Louisiana.

In Holland (long the maritime rival of England) the right of action is firmly established, and has been for centuries. It is an equitable development of the penal provisions of the civil law relating to the death of freemen.

Grotius, in his Introduction to the Jurisprudence of Holland, says:

"Homicida injustus tenetur solvere impensas, si quæ factæ sunt in medicos, et iis quos occisus alere ex officio solebat, puta parentibus, uxoribus, liberis dare tantum quantum illa spes alimentorum, ratione habita ætatis occisi, valebat." 2 Grot. de J. B. c. 17.

4 (D. C.) 5 Fed. 75.

Book 3, c. 33 (Herbert Ed. London, 1845).

"Sec. 2. But the slayer is properly bound to make compensation to the widow, children, and others, if any there be, who were usually supported by the labor of the deceased, for losses and loss of profits calculated upon the principal of annuity."

"Sec. 5. And it is to be observed that in the punishment, as well as the reconciliation, a great distinction is made between cases where homicide has been effected by assassination—that is, secretly and treacherously, or where the criminal was aware of what he was doing-and cases where the party was slain unawares; or where the homicide took place in a personal conflict with unlawful or forbidden, or with equal or unequal, weapons, and which has given occasion to the combat; or where, in short, the homicide did not occur from passion, but from neglect. But, as far as regards compensation, these circumstances are not taken into consideration, as it is sufficient for that purpose that it has been occasioned by the fault of some one, in which is included the neglect or unskillfulness of a physician or midwife, and the neglect or ignorance of a waggoner or skipper, or the incapacity of either in managing a ship or horses."

Vinnius, in his Commentaries on the Institutes (3d Ed., Amsterdam, 1659), in discussing the title of the Aquilian law, says that there was no right of action under that law for the death of a freeman; but that there was under the Cornelian law if the killing was intentional (dolo), but, if negligent (culpa), a fine was imposed; but that, if there is a question of civil remedy, the unjust slayer is required to pay the funeral and medical expenses, and such a sum to those whom the deceased was bound to support-as, for instance, children, wife, and parents as their expectation of support was worth, considering his age.

J. Voet, in his Commentary on the Pandects, after referring to various texts of the Roman law on the subject of rights of action for personal injuries, states that in modern times this right has been extended to the case of injuries HUGHES, ADM. (2D ED.)-15

resulting in death, and gives a right of action to the children or other relations, in which each should sue for the loss personally caused to him, not for any loss inherited from the deceased."

In Germany, also, the right exists. In a decision of the German Reichsgericht, rendered in 1882, it was held that this right of action existed in favor of parents for the negligent killing of a son. The opinion cites many commentators, and traces the doctrine back for two centuries.

The law of Scotland also allows actions to the wife or family of the deceased as a development of the unwritten law of that country.

As these countries administer the law substantially the same in all their courts, and do not have common-law courts with one system and other courts with another system, the doctrine with them applies on land and sea alike.

This prevalence of the doctrine among the leading Continental nations would seem to settle that it is at least sufficiently recognized to entitle it, in so far as it may be maritime in nature, to be considered a part of the general body of maritime law as administered by maritime nations. In other words, any other nation that may choose to adopt it into its jurisprudence is not making something maritime

"Nec dubium, quin ex usu hodierno, latius illa agendi potestas extensa sit; in quantum ob hominem liberum culpa occisum uxori et liberis actio datur in id, quod religioni judicantis æquum videbitur, habita ratione victus, quem occisus uxori liberisque suis aut aliis propinquis ex operis potuisset ac solitus esset subministrare. Qua in re si concurrat forte uxor, parentes, liberi, alter alteri præferendus non est; sed magis unicuique in id, quanti sua interesse docet, actio danda; tum quia singuli non de pœna, sed damno sibi illato reparando contendunt; tum quia hæc actio uxori, liberis, similibusque, non qua occisi heredibus adeoque jure hereditario, sed qua læsis ex facto occidentis datur; sic ut et illis accommodanda veniat, qui defuncto heredes esse ab intestato non potuerunt, vel. occisi hereditatem, utpote suspectam noluerent adire." Volume 1 (Ed. 1723) p. 542. 7 Entscheidungen des R. G. in Civilsachen, vol. 7, p. 139. 8 Bell, Comm. § 2029; Clarke v. Coal Co., [1891] A. C. 412.

that was not maritime before, is not extending the limits of the general maritime law, but is merely drawing from that fountain something that was there already.

THE ENGLISH DOCTRINE AS TO SURVIVAL IN

ADMIRALTY

111. In England there is no right of action in rem in admiralty for injuries resulting in death.

The English courts recognized no such right in the admiralty equally as at law. Lord Campbell's Act' did away with this doctrine of the common law, and gave a right of action to the personal representative for the benefit of the wife, husband, parent, or child for the injury done to them, not for any injury to the deceased inherited by them. The act expressly excepted Scotland, for the reason, above explained, that the right already existed there.

It was long a question in England whether this statute was intended to apply to the admiralty courts. After much. fluctuation, it was finally settled by the House of Lords in the VERA CRUZ,10 decided in 1884, that the language of the English act contemplated only suits in the common-law courts, as was evident from the provisions in relation to juries, and that neither that act, nor the other acts giving the admiralty courts jurisdiction in case of "claims for damage done by a ship," gave the latter courts cognizance in rem over death claims. This is still the law of England.

§ 111. 99 & 10 Vict. c. 93.

10 10 App. Cas. 59. In the Bernina, L. R. 12 P. D. 58, 13 A. C. 1, an action in personam in the Probate, Divorce, and Admiralty Division was sustained, but it was on the ground that such court was a division of the High Court of Justice under the English Judicature Act, and not by virtue of the jurisdiction possessed by it as an admiralty court. See, also, Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751.

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