McKendrick v Sinclair [1972] UKHL 9

UKHL

McKendrick v Sinclair

[1972] UKHL 9 · 1972-03-15

LORD AVONSIDE'S OPINION.—[His Lordship narrated the material facts and averments, and continued]—I was favoured with an excellent debate and a full citation of authority. In result, I hope to be in a position to express my views reasonably shortly.

It has been said time and again that there are difficulties in ascertaining the origin and scope of an action for assythment. To my mind, a minute examination of writings and arguments which touch on the subject, while fascinating in an academic sense, is not necessary if one can achieve a proper understanding of the position as it affects the present case.

By the end of the eighteenth century it can be said with reasonable certainty that an action of assythment was competent where criminal conduct had caused death and the offender had not suffered capital punishment for his crime. In these circumstances those with a title to sue could claim compensation from the offender for pecuniary loss, if any, and for grief and suffering—solatium—arising from the death. The amount of compensation payable was assessed by reference to the means of the offender. The field of possible pursuers was wider than that permitted in the modern action for reparation for negligence. Certainly where, as here, the dead man was unmarried and had no children and no living ascendants, collaterals had a title to sue.

The argument for the defender was presented in slightly differing ways. It was said that the action of assythment no longer existed in our law, was obsolete, or at least had been superseded by what is popularly, though possibly inaccurately, called the actio injuriarum —the modern action for reparation for damage caused by negligence, which emerged around the end of the eighteenth and beginning of the nineteenth century. Mr Maxwell did not press this point very strongly in his speech, although he maintained his position on it. His major contention was that the action raised by the pursuers in the present case was a complete novelty in our law and should not be entertained. I am not sure if his pleas in law cover this point, since, as has been seen, he describes the action as being one for assythment in his first plea, but this is not a case in which to found on technicalities.

In my opinion an action of assythment remains a competent form of action in the law of Scotland. Its existence in the common law was undoubted, and the common law does not lose its force by reason of non-use. The actio injuriarum did not, in my view, supersede the action of assythment. If it did so, it substituted for that action another which deprived collateral relatives of rights and changed the method of computing compensation. Were that so, one would have expected to find in the nineteenth century, or later, clear statements to that effect in the decisions or books. None were cited to me and, as will be shown, the contrary can be deduced from what was said. The actio injuriarum gave a simpler method of attaining reparation for wrongs done, being based on negligence, and cases which in the past might have prompted an action of assythment would naturally use the easier remedy of the civil action. Further, although this may be speculation, the violence and vendettas which characterised the sixteenth, seventeenth and earlier eighteenth centuries did not occur in the nineteenth, and in that century those who caused death by criminal acts more probably had not the personal means which would make it worth while to resort to assythment.

Reference should be made to the important case of Greenhorn v. Addie , 17 D. 860. At p.864 Lord President M'Neill spoke as follows:

"Undoubtedly we have had for a long time in our law a recognised right on the part of the relatives of a person slain to claim assythment. That is the phrase which is used in the statutes; and in writers on criminal law, the word ‘assythment’ also occurs. That word has long existed in our law, especially in reference to crimes. It is almost always used in its proper sense in reference to crimes.

"

The origin of the claim of assythment, the circumstances out of which it arose, its progress and growth, are involved in some degree of obscurity. They are at least difficult of being clearly traced and accounted for, and are therefore not perhaps likely to obtain much elucidation at the present day more than they did at an earlier period. It would be difficult to discuss that question more ably or elaborately than it seems to have been in the case of Campbell, by some of the ablest men of that time. But it is not necessary for the elucidation of this case that we should go into the history of assythment, or that we should discuss the etymology of the word. We do not find any precise definition of it in Skene, nor in any of our law writers. Our Scottish lexicographer gives a very learned discussion upon it, and makes it equivalent to ‘reparation.’ It seems not to be an English word. I do not think the great English lexicographer has it at all. The nearest word to it is the word ‘assuage;’ and some of the definitions of that word by English lexicographers are almost the same as the Scottish lexicographer gives of ‘assythment.’ But so far as it is a technical word, it has reference to compensation arising out of crime or delict, although it may also have a more general meaning. In our law we have recognised a right to compensation where there is no crime, in the stricter sense of the word—where there is injury to the feelings, arising from what is not strictly either a crime or a delict. The origin of that sort of claim is not very clear, nor is it very ancient either; and I see that in some of the later cases where the question of compensation is discussed the word assythment is used, but used apparently in a more popular sense than this more technical meaning in the criminal law. The word may be, in a larger sense, well enough calculated to mean compensation; but it is not therefore to be confounded with the same word in its stricter and more technical sense, in which it has reference only to crime. While in our law we have recognised this sort of claim of solatium for injured feelings by the death of a relation, it does not appear that the right to sue for that civil claim has been in any case sustained to the same class of relatives or connections whose right has been recognised in the case of assythment in crime. No case has been stated to us of a class not belonging to crime or delict, in which the right to sue has been sustained by parties who were not parents or children, except in a case which I shall mention. Such right has been sustained in cases of assythment; and perhaps we may find that the right to sue for that sort of compensation is almost as wide as the right to sue for punishment, when private instance was greatly resorted to, and rather encouraged."

Lord Ivory said (at p. 866):

"Assythment, in its strict sense, is confined to cases of proper crime. It is intimately connected with that mutual relation of pursuer and defender which arises out of criminal prosecution in vindiotam privatam . Since a public prosecutor has obtained a somewhat more defined position than he formerly had, private instance has fallen out of our practice, and has been considerably modified even in England."

And (at p. 868):

"Upon these grounds it seems to me that this is a claim for civil reparation only. Being so, it is in its whole nature distinguishable from assythment. As such it must be supported as a claim for individual wrong."

Lord Curriehill, speaking of claims for assythment, said (at p. 868):

"In the criminal law of Scotland, although popular actions are not allowed, the relations of a person who has been killed have been allowed to prosecute for the pains of law. The extent to which this privilege has gone is not well defined, but certainly it has gone the length of brothers, fathers, and somewhat further. In the books it is said that ‘it was sustained at the instance of some of the kin, though not of the nearest degree, and though here were not some concurring of the four branches of the slain.’ But I cannot find out what that means. Brothers, however, have been found entitled to prosecute; but when we come to civil claim, and where the pains of law are not part of what is concluded for, I can find no principle for extending that portion of the criminal law into the civil claim. There is one case which brings out the distinction between the two claims—where a man received material injury, but survived for some time, and during the period of his survivance received reparation for the injury sustained, and granted a discharge; but notwithstanding that, his near relatives also got assythment. Not only so, but the very discharge which was taken from the defunct was held to be sufficient evidence that the crime had been committed (Drew, 26th January 1611, Dict. 13,904). Stair founds upon it, as showing that in such a case the very acknowledgement taken by the delinquent from the defunct was sufficient evidence that he was the cause of the fatal injury. I think this brings out the distinction between civil reparation and criminal reparation. They are two totally separate and distinct things, but they may exist together."

Lord Deas had reported the case and his reasoning will be found in his note (at pp. 860–3).

I have referred to these judgments at some length because they appear to me to distinguish the action of assythment, based on a criminal act, from the civil action, based on negligence. If assythment were no longer competent in 1855, one would expect that to have been said. It is not, and, I suggest, the Lord President plainly speaks in a way which shows that he regards that action as one still open in the proper circumstances.

In Eisten , 8 Macph. 980, it will be seen that considerable argument was founded on the action of assythment. Rettie was, it would seem, the senior reporter, and the second head of the rubric reads:

" Opinions , that an action of assythment will not lie unless the act upon which it is founded is punishable as a crime."

Lord President Inglis was brief (at p. 983):

"This is not an action of assythment, and it does not partake in any degree of the nature of such an action, for this, among other reasons, that no crime had been committed by the defenders…"

If in 1870 the action did not exist, it would appear reasonable to suppose that the Lord President would have said so. The passage is somewhat frustrating in the present issue in that no hint is given as to what the "other reasons" were. Lord Deas said this (at p. 985):

"This action is not founded on any allegation of crime on the part of the defenders, or any servant of the defenders. The accident which caused the injury complained of occurred in England, on a different line of railway from that of the defenders, and it is expressly stated on record to have been caused by the fault of that other company in not providing proper machinery, and not taking proper precautions. If the action had been laid against an individual defender in Scotland, through whose fault and negligence it was said to have occurred, so that the defender would, in a criminal suit, have been liable to a charge of culpable homicide, that would have been a very different case, and I do not at present see any reason to doubt that the law of assythment would have been applicable to such a case."

That is a plain statement that the law of assythment, in his Lordship's view, was still in existence. Mr Davidson, in his excellent speech for the pursuers, made the interesting point that Lord Deas passed advocate in 1824 and would no doubt be very familiar with two important cases which arise later in this discussion and which can, it is claimed, be linked with this statement. Lord Ardmillan could be read as favouring the defenders, but, properly read, I think he is referring to the original principle on which the action of assythment rested and does not go the length of saying that it is no longer competent. The relevant passage is at p. 986:

"Coming, therefore, from that ground to the analogy of assythment, on which the pursuers' counsel endeavoured very ingeniously to build up the pursuers' case in enforcement of the obligation to pay damages, I rather think that the proper origin of our law of assythment is to be found in a principle which has passed away from our jurisprudence. It was a species of atonement, in addition to the vindication of public law, for the injury done to the survivors of the deceased, a kind of retributive justice in the way of compensation for the loss and suffering caused, and I rather think there is no instance where such a claim has been sustained except in the case of a crime. Unless the act complained of is one which could be prosecuted as a crime, there is no authority for holding that the person who has committed it is liable in proper assythment. That is the opinion of Baron Hume, and also of Lord Neaves in the case of Greenhorn.

"

Assythment, therefore, does not afford a proper analogy, in considering such a case as this, for here there is no averment of an act which could properly be called a crime." The opening passage of Lord Kinloch's opinion (at p. 987) to my mind suggests clearly that he considered the action to be alive. Were it not so, I cannot see that he would speak as he did:

"I think it clear that the present is not a case of assythment. For the action is not laid on crime, which is essential to support a claim of assythment. It may be doubtful whether such a claim can ever be prosecuted against a company, which cannot as such commit a crime. But at any rate the action is not laid on crime. It is a civil action of reparation, and nothing else."

Horn v. North British Railway Co . was decided in 1878 and is reported in 5 R. 1055. Lord Ormidale, discussing an old decision, said (at p. 1066):

"It is true that it related to the remedy, little in observance now, of assythment…"

Once more, could it be supposed that he would speak thus if the action of assythment was no longer in existence in law?

Hume on Crimes (1844 edition), vol. ii, p. 71, speaks of the jurisdiction of the Court of Session in actions of assythment. So does Mackay's Manual of Practice (1893), at p. 105, and Maclaren, Court of Session Practice (1916), p. 129, refers with approval to Hume, supra . Finally, reference should be made to an article by the late Sheriff M'Kechnie in the Encyclopaedia of the Laws of Scotland, vol. xii, at pp. 520–1, where he says that there is no reason to suppose that an action of assythment is not still competent and points out its advantages. This volume states the law as at 30th June 1931. Articles in the Encyclopaedia are entitled to respect, and this particular one enjoys the commendation of Lord Macmillan—see Stewart v. London, Midland and Scottish Railway Co ., 1943 S.C. (H.L.) 19, at p. 38.

For these reasons, as I have said already, I hold an action of assythment to be competent.

I now turn to the second argument for the defender. I think it can be put fairly in this way:—An action of assythment pertains to the criminal law and must have as its basis a criminal act. The present action is an attempt to introduce a complete novelty into our law, in that it seeks to have proof of a criminal act, culpable homicide, in a civil process; the Court of Session has no such jurisdiction, and the only proper procedure in that court is the quantification of assythment following on a conviction in the Justiciary Court or other criminal court. To permit the present action to proceed would not only be to create an unwarranted precedent but would also defeat the limitations laid down on grounds of public policy in the cases of Greenhorn and Eisten , supra.

There are two old decisions of considerable importance. The first is Machargs v. Campbell , (1767) M. 12,541, decided, according to the Lord President in Greenhorn , "by some of the ablest men of that time." That case concerned a murder, the offender and victim being fellow-officers in a British force stationed in Martinique. The offender was court-martialled and cashiered. The father of the dead man raised an action of assythment in the Court of Session, and succeeded. The case affirms, in my opinion, firstly, that an action of assythment is one for compensation for a criminal wrong, and secondly, that the court would proceed on evidence of a wrong although there had been no conviction in Justiciary or a criminal court.

The second case is Leith-hall v. Earl of Fife , (1768) M. 13,904, Hailes' Decisions, p. 206. In this case it was at first held by four judges that no assythment was due, though one might think that the bench was equally divided. The salient point of the case was that a homicide had been committed, and the offender had fled the country and been fugitated. He therefore had not been tried. A petition was presented against the decision, and as a result the action for assythment was sustained and, later, a sum was assessed—see Hailes' Decisions, at p. 282. The importance of the decision, no doubt a majority one, was that assythment was relevantly pleaded—and later awarded—in a civil court on an allegation of murder which was not tried in a criminal court. Without repeating what was said I draw attention to what was said by Lords Hailes, Coalston, Auchinleck and Kaimes and by Lord President Dundas. It will be noted, of course, that a sentence of fugitation was neither a finding of guilt nor was it a recognition that flight implied guilt. It is a sentence pronounced where an accused, without excuse, fails to obey his citation to attend trial: cf. Monson's case, (1893) 1 Adam, 114.

I have already referred to the passage in the opinion of Lord Deas in Eisten which suggests that he would have sustained the competency of a civil court dealing with facts sufficient to support a criminal charge where these facts formed the basis of an action of assythment.

I now turn to the case of Black v. North British Railway Co ., 1908 S.C. 444. That case was heard by the First Division with three consulted judges, and all concurred in the opinion delivered by Lord President Dunedin. The question under discussion was, in effect, the origin and nature of the claim for solatium, and in the arguments considerable reference was made to the action of assythment. At p. 453 the Lord President said:

"It seems, therefore, tolerably certain that it had its origin in the action of assythment, and probably without very much consideration found its way into the action of damages. As to the modern action I do not think I can add to what is said by Lord President Inglis in the case of Eisten , 8 Macph. 980. Originally I take it the two actions stood side by side—at least, that is what I should gather from the way in which Stair treats the subject in Book 1, Title 9, sections 4, 6, and 7. And probably the change from the old to the modern practice was not very well marked. The civil action could, of course, be in the Session alone, while assythment might be in Justiciary or modified in Exchequer or by action in the Session. But Justiciary and Exchequer came to be abandoned.—(See Lord Deas in Greenhorn v. Addie .) The transition stage is, I think, well marked by comparing Black v. Cadell , M. 13,905, which seems to go on assythment alone (and is accurately reported in Morison under the heading of Assythment), with Brown v. M'Gregor , Feb. 26, 1813, F.C., which although professedly based on Black v. Cadell , is clearly an actio injuriarum and not assythment. For the test I think is not doubtful, being that laid down in Eisten , viz., was the act complained of a crime? In Black's case conceivably the defender might have been indicted for culpable homicide, though I infer that the chances of a conviction would have been remote."

In my view that passage affirms that the whole proof in an action of assythment is competent in the Court of Session.

It is true that the passage cited has been attacked on the ground that the case of Black was not an action of assythment—see Sheriff M'Kechnie's article on delict and quasi-delict, in volume 20 of the Stair Society, p. 276. In the course of his admirable speech Mr Davidson went through the relevant Session Papers and showed quite clearly that assythment was one of the main grounds of claim advanced in the Court of Session. It is true that the pursuers, respondents in the House of Lords, did not rest their case on assythment at that final stage—see the Session Papers in the Signet Library, F. 35, No. 42, p. 3 of the respondents' case. Be that as it may, and esto Lord Dunedin was wrong in timing the transition from Justiciary and Exchequer to the Court of Session, that does not, in my opinion, affect the view of seven judges that proof in an action of assythment is competent in the Court of Session, and this accords with Leith-hall's case.

The defender relied on a passage in Bell's Principles (4th ed., 1839), section 2029, where the author appears to suggest that criminal action must precede assythment and that the peculiarity in Leith-hall's case lay in the fugitation. With respect I do not agree, for reasons which will follow in a moment. He also relied on Hume on Crimes, vol. i, p. 284, as showing that the claim could not be wholly grounded in a civil court.

It is perhaps unfortunate that he did not observe what was said in volume ii of that book, at pp. 70– 2, in passages which appear to me to state in the clearest terms that the Court of Session is competent to try criminal facts so far as they are the grounds of civil or patrimonial conclusions. That does not stand alone. Mackay in his Practice of the Court of Session (1877), vol. i, p. 245, states:

"The jurisdiction, in actions where a crime or criminal act forms the ground of action or defence in a civil action, is not a proper exception to the rule that the Court of Session has no jurisdiction in criminal causes."

And he then goes on to show, as Hume did, that in such actions the facts of the crime may be proved in that court, following Hume. In his Manual of Practice (1893) he speaks to the same effect at p. 105. Maclaren in his Court of Session Practice (1916) at p. 129 states:

"The Court of Session is not, however, barred from investigating, in the course of an action or defence, facts imputing crime or illegal acts, so far as these are the grounds of civil or patrimonial conclusions"

—so following Hume.

In my view the cases and the writers constitute powerful authority which I cannot disregard. It follows, in my opinion, that the defender's second ground of attack fails.

Involved in that attack was an alleged "public policy" issue, as has been remarked above. But since I hold that the action of assythment is competent in the Court of Session and it is agreed that it is based on grounds different from those discussed in Eisten ,there can be no breach of the rules of Eisten . One is well aware that a recent attack on Eisten failed, but the laying down of purely arbitrary rules might not be thought to be satisfactory in the vastly changed climate of today and where Parliament has been able without difficulty to protect dependent collaterals when occasion arose: cf . the Workmen's Compensation Act, 1925 (15 and 16 Geo. V, cap. 84).

Nor can I see anything against public policy in calling upon one who has the means to do so to compensate at least to some extent those whom he has injured by his criminal actings. I can see no reason whatsoever for absolving such a man from civil liability or for making the public bear liability for his acts.

I had at one time thought of reporting this case to the Inner House, but on further examination of existing authorities I consider that the defender should proceed by way of appeal, as he will no doubt wish to do.

On the whole matter I repel the first two pleas in law for the defender and allow a proof before answer.

The defender reclaimed, and on 26th March 1971 the Second Division recalled the Lord Ordinary's interlocutor, sustained the second and third pleas in law for the defender and dismissed the action.

LORD JUSTICE-CLERK (Grant) .—The pursuers are the sister and two brothers of the deceased Arthur Brown Craig and are his next of kin. They claim damages "in name of assythment" on the ground that the deceased was killed "by the defender's criminal conduct." It is conceded that the pursuers' averments as to the defender's acts and omissions are relevant to infer his guilt of culpable homicide. There are also averments to the effect that the defender was guilty of a contravention of section 143 (2) of the Factories Act, 1961, but, by agreement of the parties, we are not concerned with this branch of the case at this stage. The basic question with which we have to deal is whether, in view of the admittedly relevant averments of culpable homicide, the pursuers, who as collaterals would have no title to sue in an ordinary action of reparation, are entitled to claim damages in name of assythment in the present action. I should add here that it is not suggested that the defender has been subject to any criminal charge arising out of the death of the deceased.

In the eighteenth century, and indeed much earlier, before the actio injuriarum had been accepted into our law, there was a recognised right on the part of the relatives of a person slain by a criminal act to claim assythment. It is clear that this right was open to a wider range of relatives than is the case in our modern actio injuriarum , and in particular it was open to those in the position of the pursuers here ( cf. Greenhorn v. Addie , 17 D. 860, and the authorities cited by Lord Deas at p. 861). The precise circumstances in which, and the procedure whereby, assythment could be recovered are, however, not entirely clear and probably varied and developed as time proceeded.

Where the killer was executed, no assythment was due. This was on the basis that "capital punishment of a murderer, with forfeiture of his moveables, is a satisfaction at once of public justice and of private vengeance" (Bell's Principles, section 2029). It was due, however, where the panel was convicted of culpable homicide only, or where he escaped execution by reason of a special pardon (or remission) or a general act of indemnity (Hume, vol. i, p. 284; Erskine, Institute, IV, iv, 105). Indeed, as Hume explains (at p. 285), "by the ordinary style of all remissions, they bore a special clause obliging to assyth the party." Furthermore, the parties seeking assythment had, by subscribing letters of slains (when these were still in use) or otherwise, to concur in soliciting for the pardon (Erskine, loc . cit .); and by founding on a remission an offender was held to have admitted his crime ( Drew v. Horne , M. 13,904). As Erskine puts it in the paragraph already referred to, "Whoever therefore founds on a special remission, takes guilt to himself, and is liable in damages to the private prosecutor, as if he had been actually tried and found guilty." After dealing with the case of the criminal who "by the exertion of public justice" has paid the full penalty (in which case no assythment is due), and that where the criminal has fled and has forfeited his moveable estate upon a sentence of fugitation (in which case he thinks the right to assythment "may be doubted"), he goes on to say this:

"No instances are to be found upon record of recovering an assythment in a judicial way, but in the special case where the offender hath obtained and founded upon a remission to screen himself from trial."

In this paragraph Erskine clearly has in mind, not merely the case where the criminal, having been tried and convicted, is sentenced to less than the due pains of law or obtains a remission (or benefits by an act of indemnity) after conviction, but also, in the sentence last quoted, the case where a remission is granted and used, as it were, in bar of trial. In the former type of case the next of kin had a verdict of a criminal court upon which to found their claim for assythment (and, in the case where there was a remission after sentence, the advantage that the remission was ineffective without payment of, or surety for, the assythment) and could have the amount assessed either by the Court of Justiciary as a regular and legitimate part of the sentence ( cf. Stewart v. Story , 5 Brown's Supp. 646) or, on remit, by the Court of Exchequer or the Court of Session—practice appears to have varied on this. In the latter type of case (and it may be also in the former) the Court of Session seems to have had jurisdiction independently of any remit (Hume, vol. i, pp. 285–6. There were equally advantages for the next of kin in the pre-trial remission, inasmuch as it imposed liability to assythment and, in the days of private prosecution, it could be a simple and practicable compromise which short-circuited the need for a criminal trial and satisfied all parties. While it is impossible to be certain about this in view of the brevity of the reports, it looks as if the first three cases reported in Morison under "Assythment" at pp. 13,903–4 ( Clerkington in 1542, Home in 1605 and Drew in 1611) are examples of that type of compromise. Writing in 1677, Sir George Mackenzie in his Laws and Customes of Scotland in Matters Criminal deals with remissions at pp. 546–51—a reference for which I am obliged to Lord Milligan. He puts the matter thus (at pp. 546– 7):

"Remission then is the pardon of the crime, graciously allowed by the Soveraign, and it may be given, either before, or after the pannel is convict. If it be given before conviction, the pannel, by making use of it, doth per fictionem acknowledge the guilt … This remission is granted by a signatur under his Majesties hand, and is presented in Exchequer …"

So far I have dealt solely with the right to assythment in cases where there had been conviction or remission or both. As I see it, however, the first major question which has to be decided in the present case is whether a claim for assythment was also open where, as here, there had been neither conviction nor remission. This involves going back to the situation as it was at least two centuries ago. Erskine died in 1768, having written, but not published, his Institute. In the paragraph from which I have quoted above (IV, iv, 105) he expresses doubts as to whether assythment can be demanded where the criminal has fled and been fugitated and his moveable estate has been forfeited. And he comments on the absence of instances in the records of assythment being recovered without the offender obtaining and founding upon a remission "to screen himself from trial." As I have indicated, he is clearly dealing here with the type of case where, as here, no trial has taken place. So far as I have been able to ascertain, the pre-1767 recorded cases appear to be at least consistent with his doubts on the first matter and to justify his comment on the second matter.

In 1767 and 1768, however, there were two cases decided in the Court of Session which have a bearing on the passage quoted and which are referred to in foot-notes thereto by Erskine's later editors. They are, I think, the cases on which the pursuers most strongly rely here. The first was Machargs v. Campbell , (1767) M. 12,541 and 13,904, Hailes' Decisions, vol. i, p. 192, and the second Leith-hall v. Earl of Fife , (1768) M. 13,904, Hailes' Decisions, vol. i, p. 206. These are not easy cases to understand. In each of them there was some confusion between assythment in the technical sense and assythment in the loose, wider sense of reparation. In each case six judges dissented, the rationes decidendi of the majority are by no means clear or consistent, and I confess to having had at times to look at the list of dissenters in order to ascertain whether the opinions of particular judges were in favour of the pursuers or not.

However, Leith-hall seems to settle Erskine's doubts about the fugitated murderer, for in that case assythment in circumstances similar to those envisaged by him was held to be due. Leith-hall is, of course, binding upon us, but Hume (vol. i, p. 284) seems to have continued to share Erskine's doubts, for his comment is that "according to one, but a doubtful decision ," assythment is due "where [the pannel] is outlawed for non-appearance." In Machargs the defender had been convicted of murder by a British court-martial in Martinique, but by reason of an insufficient majority was not sentenced to death but merely to be cashiered, the proceedings thereafter being approved by the king. The defender's main argument seems to have been that the verdict and sentence of the court-martial were not sufficient evidence that the defender had committed the crime of murder, and it may be noted that the main report of the case in Morison is under the heading "Proof." According to Lord Kames (M. 12,545), the opinion of all the judges was that the sentence was sufficient evidence. "This sentence, then, may be considered as at least equivalent in authority to a decree of a foreign Court brought here for execution." The further argument that there had been no remission also failed—which is not surprising in view of the nature of the sentence passed and confirmed. Machargs seems to me to be substantially different from the present case. There the defender was competently tried, convicted and sentenced by a court-martial, which, as Lord Kames put it, "is the only resource where there is no other Court." He then goes on to make the statement which I have already quoted and which again points a material difference on the facts. It seems to me that Machargs merely applied (or slightly extended) the normal rule, that there was a claim for assythment following upon a conviction in the Court of Justiciary with remission of the full pains of law, to a case where there was a conviction (with remission) in a competent court-martial which, by reasons of geography and the like, was the only available Court. I might add that there appears to have been no argument on the niceties of whether the verdict of the court-martial would bar a subsequent trial in the Court of Justiciary.

Nor do I think that Leith-hall is comparable with the present case. There the alleged murderer, Abernethy of Mayen, was prosecuted but fled and failed to appear at his trial. It was not apparently disputed that he was guilty (at any rate the debate on relevancy seems to have been directly followed by a proof on quantum of damages). However, the important factor in the case is, in my opinion, this, that Mayen by his own actings prevented the trial from taking place and thereby frustrated the course of justice. It is not surprising that the Court in these circumstances should have decided (on what may well be a somewhat loose view of the nature of assythment and a possibly prophetic view of the actio injuriarum , coupled with a backward look to Stair, I, ix, 4) that his victim's widow and children should not suffer thereby. It seems reasonable that, in a case where a prosecution for murder has been brought and the accused, if convicted, may be liable in assythment, he should be unable to escape that liability merely by failing to turn up for his trial. In the present case no prosecution was brought and no conviction sought. Although in Leith-hall there may have been, for understandable reasons, some modest extension of the grounds on which assythment may be recovered, I am unable to see how these reasons can apply in the very different circumstances of the present case, where no prosecution has ever been brought. It was said by counsel for the pursuer that Machargs and Leith-hall gave a new look to the law of assythment. That may be so, but it does not seem to me that that new look extends to the facts of the present case. I can find no such extension in the two hundred years or more that have elapsed since these cases were decided and I am not prepared to make such an extension now. It is in my opinion clear that, subject to any narrow specialities which may arise out of Leith-hall and Machargs and which do not seem to arise in the present case, remission and assythment have over the centuries been the essential counterparts one of the other.

The last recorded action of assythment seems to have been Stewart v. Story in 1785, 5 Brown's Supp. 646, for despite the dicta of Lord President Dunedin in Black v. North British Railway Co. , 1908 S.C. 444, at p. 453, the case of Black v. Caddell , (1804) M. 13,905, (1812) 5 Pat. 567, was not an action of assythment. On this I understand parties in the present case to be in agreement. Although assythment was one of several grounds originally founded upon in the Court of Session, the facts (in the absence of criminal actings) clearly did not justify such a ground and it was expressly disclaimed by the pursuers in the House of Lords (at pp. 572– 3). No doubt a pursuer who wishes at the present time to raise an action of assythment where there has been no prosecution by the Crown will have grave difficulties, even if it be assumed that such an action is still competent. But that is because, since at least early in the nineteenth century, there has been no private prosecution except with the concurrence of the Lord Advocate or the authority of the Court or where statute confers a private title ( cf. J. & P. Coats Ltd. v. Brown , (1909) 6 Adam, 19, per Lord M'Laren at p. 43), and because over the same (or a longer) period it has become virtually impossible for the family of the victim and the killer, acting in conjunction, to obtain a remission from the Crown, without which, in a case such as the present, there can be no right to assythment. That is the result of changing views of the public good and of the development of our criminal law, procedure and administration.

In my opinion the pursuers' averments are irrelevant and insufficient to support a claim for assythment. On the averments this is no more than an actio injuriarum , which the pursuers have accordingly no title to pursue.

On the view I have taken it is unnecessary to deal with the question whether an action of assythment is still competent. On that question I would reserve my opinion.

I would recall the interlocutor of the Lord Ordinary, uphold the second and third pleas for the defender and dismiss the action.

LORD WHEATLEY .—Your Lordship has dealt comprehensively with the nature of assythment, its constituent elements and its career until it went to sleep at the end of the eighteenth century. In the result your Lordship has come to the conclusion that, on the basis that this particular type of action is alive and available in appropriate circumstances, the facts of the present case do not bring it within the qualifying conditions. If the view be correct that this form of action is still available, I would be content simply to concur in that result, fortified further by the considerations which are about to be expounded by Lord Walker.

For my own part, I would be prepared to dismiss the action on a more radical ground, namely, that this form of action, which at the best has been obsolescent for nigh on two hundred years, is now dead. When one looks at the nature of the action of assythment, and the true cases of it which are recorded, it was manifestly a creature of the times. Into it was woven the right of private prosecution, generally practised, and the basic principle was that it was the price which the culprit had to pay to the appropriate next of kin if, for one or other of the reasons stated by your Lordship, the law did not take its full toll. Remission might be granted as a result of the next of kin subscribing letters of slains, and in return they acquired the right of compensation in the form of assythment.

It is not surprising, therefore, to find that such compensation was described as "blood-money." The political and social conditions of the times and the system of criminal administration then in common use may explain this concept, but I find it difficult, nay impossible, to believe that it can be carried forward, even in a modified form, into our way of life today. I do not think that it is without significance that there is no trace of resort to this form of action during the last two centuries—at least until the present action was raised. It may be that the combination of factors required to be present before such an action can be brought, together with the less stringent requirements of proof and procedure established by the actio injuriarum (as it is commonly called), available albeit to a more limited class of persons, curtailed the number of cases where an action of assythment would be invoked, but it is difficult to believe that there have not been cases where such an action was the only remedy available to collaterals as the next of kin. The fact that there are no recorded cases of a proper action of assythment during the nineteenth and twentieth centuries seems to me to have a particular significance. I cannot believe that the reason for this is that there were no appropriate cases during this period. The more logical reason would seem to be that the form of action had been overtaken by events.

Counsel for the pursuer submitted that a form of action was not lost merely because it was not used, and that their clients should not be penalised because of the lack of initiative on the part of others. That may be so, but a form of action may be lost, in my opinion, because the principle underlying it is no longer appropriate in contemporary society and its ethos. It is true that in 1855 the judges in Greenhorn v. Addie , 17 D. 860, refer to assythment in the present tense. As Lord President M'Neill pointed out (at pp. 864– 5), there had already grown up a certain amount of confusion about the meaning given to "assythment," which was frequently used loosely to describe reparation, but again it is not without significance that no recent cases of assythment proper were referred to by the judges, and despite the use of the present tense there seems to me to be an undercurrent of archaism in the references to that type of action. This is reflected, for instance, in a passage in the judgment of Lord Ivory, where his Lordship said (at p. 866):

"Assythment, in its strict sense, is confined to cases of proper crime. It is intimately connected with that mutual relation of pursuer and defender which arises out of criminal prosecution in vindictam privatam . Since a public prosecutor has obtained a somewhat more defined position than he formerly had, private instance has fallen out of our practice, and has been considerably modified even in England. But one can see that, in an age when sources of public justice were not so pure as now, and iniquity was perpetrated by the sovereign ex gratia , legal courts were more willing to look favourably to the title of a private party to sue both for punishment and assuagement to their wounded feelings, in the shape of assythment."

While in 1870 Lord Kinloch (at p. 987) in Eisten v. North British Railway Co ., 8 Macph. 980, referred to assythment in the present tense, Lord Ardmillan (at p. 986) gave expression to the view that the proper origin of our law of assythment was to be found in a principle which had passed away from our jurisprudence. The Lord Ordinary, in the course of his closely reasoned judgment, quotes the passage in full ( supra , p. 31), and brevitatis causa I adopt his citation. He states that, properly read, Lord Ardmillan was referring to the original principle on which the action of assythment rested and was not saying that it is no longer competent. For my part I find it difficult to see how, if the principle had departed from our law, any extension or modification of the principle could remain. The one passage in the judgments in Eisten which seems directly to refer to the then currency of an action of assythment is where Lord Deas indicated (at p. 985) that in different circumstances an action of assythment might have lain.

It would therefore seem that by 1870 there was at least some doubt about the continuing viability of this form of action, of which there had not been a recorded case for nearly a century. Another century has now passed without a recorded case, and what Lord Ivory said in 1855 seems to me to have even greater force now. Sheriff Glegg, in the second edition of his book on reparation, at p. 82, refers to the title to prosecute an assythment in the past tense. That was in 1904. In 1916 Mr Maclaren in his Court of Session Practice, at p. 234, said that actions of assythment seemed to have fallen into disuse. Sheriff M'Kechnie in his article on delict and quasi-delict in volume 20 of the Stair Society's publications, published in 1958, stated (at p. 265) that this form of action was obsolescent by the late eighteenth century, and that its purpose, with others, was now served by the comprehensive action for damages.

The only justification for keeping this form of action alive would seem to be that it gives to collaterals a right to sue for the death of a near relative, when they are excluded by the law of Eisten from doing so. There are undoubtedly cases, and this may well be one, where the death of, say, a brother may cause just as much loss of support, and possibly just as much grief, as the death of, say, a father. It might seem unfair that the sufferers in such circumstances should be without a legal remedy. If it is thought, as I think, that this can result in injustice, the remedy seems to me to lie in legislation, whereby the limits imposed by Eisten can be broadened in the field of reparation. This would seem to me to be in conformity with the modern trend of legislation. I do not consider, however, that the answer is to be found by resurrecting a form of process which has been at least asleep for almost two hundred years, which is based on concepts and procedures which are outmoded, and which proceeds on a principle which is obnoxious to our way of life in the 1970s. It may well be that, when it fell asleep, it quietly died without anyone paying particular notice, because there was no further justification for its survival. A new concept of reparation had been instituted and developed, and had replaced it. In that new concept the degree of negligence does not affect the measure of damages. Since that has been accepted, it would seem strange if the degree or nature of the negligence ( viz. ,crime) should open the door to a wider group of claimants. I think that the time has now come to end any uncertainty which may exist about its current existence, and to give it a decent burial. In doing so I do not consider that we would be cutting out any basic principle of our common law. We would simply be removing from the legal scene a form of legal process for which there is now no justification.

I would accordingly dispose of this case by sustaining the defender's first plea in law, which is directed to the incompetency of the action. But on any view I think the action falls to be dismissed.

LORD WALKER .—What the pursuers are seeking to do in this action is to recover an assythment from the defender in respect of his criminal conduct in killing the deceased, while leaving the defender open to prosecution for culpable homicide; for there is nothing that the pursuers could do to prevent the Lord Advocate from indicting the defender. It is, of course, true that such an indictment could not prevent a claim of reparation for loss of support and injury to feelings at the instance of the widow and children, had such survived. But it would not be relevant for such a class of person to prove that the negligence had been gross rather than ordinary negligence: Black v. North British Railway Co. , 1908 S.C. 444, per Lord President Dunedin at p. 454 and Lord Ardwall at p. 457. Nevertheless it is maintained that it is relevant for collateral next of kin to prove that the negligence was so gross as to amount to culpable homicide for the purpose of giving them a right to claim which they would not have had if the negligence had been ordinary negligence. I do not think that proposition rests on any intelligible legal principle, but appeal is made to precedent.

In considering precedent the main difficulty I have felt arises from the fact that in our former practice the word "assythment" has been used in different senses. It often meant damages or reparation for loss sustained through the death of a relative. As late as 1850 what was named "an action of assythment and damages" was raised by the widow of a man accidentally killed in a coal-pit and the jury awarded her £200. No question of crime was involved: Wark v. Russell & Wardrop , (1850) 12 D. 1074. That was plainly an action of reparation, though called assythment. I rather think that since then the terms "assythment" and "action of assythment" had passed from current usage until the raising of the present action. It is true that in Eisten , 8 Macph. 980, Lord President Inglis speaks (at p. 983) of "an action of assythment" as if that might still be competent where the death was due to the criminal conduct of the defender. But no trace of such an action being raised since then and until now has been discovered. If and in so far as the pursuers in this action are using the word "assythment" in the sense of reparation, it is clear that their claim as collateral next of kin is excluded by the decision in Eisten.

What the pursuers are really appealing to is the ancient practice of compounding a crime for a money payment. The essential nature of that practice is, I think, shown by the terms of the letter of slains in use in the seventeenth century. A style of the letter is preserved in Appendix I to Kames's Law Tracts (3rd ed., 1776). In it the kinsmen acknowledge payment of a sum of money in name of kinboot and assythment and therefore undertake not to prosecute the slayer, and pray the king to grant him a pardon and remission. I think it may safely be inferred that assythment in that sense was intended to be the price paid for immunity from prosecution. And I think it would follow that the kinsmen who required to be assythed were just those who had a title to prosecute and so included collaterals. Moreover, when all such kinsmen had been assythed, I think the king would grant remission. At all events there appears to be no instance where he refused to do so.

Where the slayer declined to pay an assythment, there was in use a form of proceeding in the criminal court which might conceivably be regarded as being an action of assythment. This form of proceeding was at first simply a private prosecution at the instance of the kinsmen, but by the seventeenth century the prosecution at proceeded at the instance of the kinsmen, and the King's Advocate for his interest. It seems to me clear that the principle of such an action (if it can be termed an action) was that, if convicted, the criminal was put in the position of having either to pay an assythment and so receive a remission from further punishment, or of having to suffer the sentence pronounced, for the king would not grant a remission so as to defeat the claim of assythment. In my opinion that form of proceeding does not form a precedent for the present action, where, if the defender did pay the sum sued for, he could not expect remission from prosecution for culpable homicide.

There seems to have been a form of action in the Court of Session where an assythment was decerned for against a defender who had "used his remission": Guild v. Home , (1605) M. 13,903; Drew v. Horne , (1611) M. 13,904; and Stair, I, ix, 7. These cases can form no precedent for the present action, because the defender here has not used remission.

The Lord Ordinary regarded two old cases as being of considerable importance, namely, Machargs v. Campbell , M. 12,541 and 13,904, Hailes' Decisions, vol. i, p. 192; and Leith-hall v. Earl of Fife , M. 13,904, Hailes' Decisions, vol. i, p. 206. The first of these was an action of assythment at the instance of the father, brother and sister of Captain Macharg, who had been shot on the island of Martinique by the commandant of his regiment, Colin Campbell. Campbell had been tried on a charge of murder by court-martial and had been sentenced to be cashiered. The Court of Session awarded an assythment to the father, brother and sister. But Lord Kames in his report of the case (M. 12,545) points out the two-fold sense in which the term "assaythment" was used. In the first sense, he says, assythment is a punishment inflicted on the delinquent and is awarded to the person injured for gratifying his resentment. And hence, he says, it follows that where the delinquent has suffered the legal punishment by the sentence of a criminal court, which ought to satisfy the resentment of the injured person, that person has no claim for an assythment, which would be punishing a man twice for the same crime. In the other sense, he says, assythment, being a species of reparation, produces a civil action for damages proportioned to the extent of the mischief done. Although the award was made in favour of brother and sister as well as father—before Eisten had been decided—I think that Lord Kames' suggestion was correct and that the award of assythment was made in the sense of reparation. In the second of the two cases founded on by the Lord Ordinary, a claim of assythment was made by the widow and children of Leith-hall who had been murdered by Abernethy of Mayen, who in turn had escaped, had not been pardoned and was liable to prosecution if apprehended. The Court sustained the claim of assythment. But again the reporter points out the two senses of the word "assythment," and again I think the award was made in the sense of reparation.

The misuse of the word "assythment" can be traced as far back as Sir George Mackenzie, where in his work on the Laws and Customes of Scotland in Matters Criminal, Part II, xxviii, 3, of Remissions, he speaks of a satisfaction which is by the civilians called reparatio damnorum and by us an assythment. But assythment in the sense of being a claim open to a wide circle (including collaterals) of the kinsmen of a person killed by criminal conduct is essentially the price paid for immunity from prosecution and punishment in the criminal court. Without such immunity no assythment can, in my opinion, be due. As the pursuers in this action can neither give nor obtain such immunity for the defender, they cannot have assythment.

I would therefore sustain the reclaiming motion and dismiss the action.

LORD MILLIGAN .—Obscure as the history of the doctrine of assythment may in many respects be, it is clear that an assythment in its true sense could be obtained only if there had been a criminal act as a result of which the victim was killed. In the present case the pursuers have averred that the deceased was killed by the criminal act of the defender and their first plea in law is:

"The deceased having been killed by the defender's criminal conduct, as condescended on, the pursuers are entitled to assythment from the defender."

The pursuers are in effect saying that, if they can establish that the deceased was killed by the criminal act of the defender, they are ipso facto entitled to an assythment.

In my opinion this is by no means the case, and discloses an erroneous view of the basis of a claim for a true assythment. I use the term "true assythment" to distinguish it from an ordinary action for reparation, with which, as your Lordships have pointed out, it has sometimes been confused. As the pursuers are only collaterals of the deceased, they have no title to sue unless they can satisfy the requirements of a true action of assythment.

Your Lordships have examined the authorities and have reached the conclusion, with which I respectfully agree, that another essential feature in a true claim for assythment has always been that, as a result of paying an assythment, a defender has received or will receive a remission. It has been put thus in a note to the case of Charteris in volume 14 of the Stair Society's publications (at p. 71):

"Crime being regarded as an injury done to the individual, originally the kinsmen of a murdered man instituted a blood feud against the murderer. In course of time the murderer bought off vengeance by paying assythment."

The particular way in which and the circumstances in which a remission has been obtained varied, but there has always been a remission. I note that the significance of a remission was apparently not argued before the Lord Ordinary and that this aspect of the case was accordingly not dealt with by him.

In the present case the pursuers have, not surprisingly in the light of modern practice in regard to criminal prosecutions, been unable to aver that the defender has received or will receive any remission. If he is found liable to the pursuers, he is none the less still open to prosecution and sentence at the instance of the Lord Advocate, and the essential counterpart in an assythment is accordingly absent.

I accordingly agree with your Lordships that the pursuers' averments are irrelevant.

The defender has also pleaded that the action is incompetent, and in support of this plea has submitted that this particular type of action is obsolete. While I have great difficulty in figuring a case in which such an action could under modern conditions be successfully raised, I do not find it necessary to reach any concluded view on this matter and prefer to rest my decision on the view that the present action is irrelevant.

The pursuers appealed to the House of Lords, and the case was heard on 24th, 25th and 26th January 1972.

At delivering judgment on 15th March 1972,—

LORD REID .—My Lords, the pursuers in this action are a sister and two brothers of the deceased Arthur Craig. They lived with him, and were in part maintained by him. He was a labourer employed by Hamilton Brick-works. On 3rd March 1967 he was killed while at work by an electric shock caused, it is averred, by a defect in the wiring for electricity in the works. It is averred that a few hours before his death the defender, the works manager, had been told that another man had received a shock but had told the men to carry on without taking any proper steps to see to their safety. The pursuers sue the works manager for damages of £7000 for solatium and loss of support.

Normally an action of this kind would be brought against the employers and based on their servant's negligence. But the pursuers could not do that, because a century ago it was held in Eisten v. North British Railway Co . that brothers and sisters of a deceased person have no title to sue for damages in an ordinary action based on negligence having caused the death of the deceased.

So the pursuers now attempt to revive the archaic remedy of assythment. From very early times it was the law of Scotland that, if a person was murdered, his kindred could accept from the murderer an assythment in money. It is not surprising that the early history is obscure, but it would seem probable that this was a means by which the murderer could buy off the vengeance of the kindred of his victim, and that in time assythment also came to be regarded as a compensation to the kindred for the loss which they had sustained.

By the time when Balfour's Practicks were written (about 1580) there had been many decided cases in the Court of Session. Under the title "Of assythment for slauchter" (p. 516ff.) ten cases are cited. I shall quote only three short passages from this work:

"BE the law and consuetude of this realme, the assythment or kinbuit maid or adjudgit to be payit be the committaris of slauchter, to the kin, bairnis and freindis of ony persoun that is slane, is gevin to thame in contentatioun of the hurt, damnage and skaith sustenit be thame throw the wanting of the persoun that is slane, and for skaith incurrit be thame thairthrow, and for pacifying of thair rancor: And gif the committar of the slauchter debursis or disponis ony sowme of money, in almons, vel in alias pios usus , be ressoun of the said slauchter, the samin aucht not to be allowit nor defalkit to him in the assythment, without advise and consent of the partie to quhom the assythment is maid, or adjudgit to be maid."

"ASSYTHMENT, or amendis for slauchter or mutilatioun, aucht to be payit to the narrest of kin to him that is slane or mutilat, and sould be modify it be the Judge, sumtimes mair, sumtimes less, efter the state of the crime, the committar's substance and riches, and alswa conform to the state of him that is slane or mutilat, and the nombre and age of his bairnis; and the air sould have his part thairof with the rest of the bairnis, bot not sa mekil as ony ane of thame; and the dauchter of him that is slane, not being maryit the time of his slauchter, sould ressave twise als mekil as ony of the sones. And likewise the wife sould have hir part with the bairnis."

"Ane letter of slanes sould be subscrivit be the principal persounis of the four branches of him that is slane; and zit nevertheles the samin is sufficient, beand subscrivit be the maist part of the kin and freindis of him that is slane, albeit certane of his four branches consent not thairto…"

Stair deals with the matter more briefly (I, ix, 7). I need only quote the first part:

"Assythment, as it signifies the reparation made, so it insinuates the obligation to repair damage, sustained by slaughter, mutilation, or other injuries to the members or health of the body. But it is chiefly pursued by the wife, children, or nearest of kin of the party slain."

Bankton (I, x, 15) is to much the same effect. I note that he says:

"This satisfaction to the friends is, in our old law, called Cro , and imports the same with the Saxon, Wergild , in use of old among the Anglo-Saxons, viz ., the ransom for the life of a man."

Assythment was commonly dealt with as a part of criminal law. When a crime was committed, two interests were involved—that of the victim or his kindred and that of the king, representing the public interest. If the criminal was convicted and executed, both interests were satisfied. But often, if the kindred were prepared to accept assythment, the king would grant a pardon. This is explained by Erskine (Inst., IV, iv, 105). Having said that crimes are extinguished if the criminal has died or has undergone the punishment inflicted by law, he continued:

"Crimes are extinguished, 3 dly , by pardons or remissions. A pardon may be either special, which is for the most part granted by the sovereign himself, without the interposition of parliament; or general, by an act of indemnity passed in parliament. The king, though he may by a special pardon secure the offender from public justice, the exercise of which is a right of the crown, cannot discharge any private interest arising to the party hurt against the criminal, or cut him off from his claim of damages. For this reason it was not competent to any one charged with a crime to plead a remission till he had given security to indemnify the private party (1457, c.74; 1528, c.7); and in the case of slaughter, it behoved the wife or executors of the deceased, who were in-titled to that indemnification, or, as it is called in the style of our statutes, assythment , to subscribe letters of slains, acknowledging that they had received satisfaction, or otherwise to concur in soliciting for the pardon before it could be obtained; 1592, c.157. And by a posterior act, 1593, c.173, all remissions granted for slaughter, robbery, theft, oppression, etc., are declared void if granted before the party injured be satisfied; which act is so softened by practice that such pardons are not considered as absolutely null, but barely that they cannot be pleaded by the criminal till satisfaction be made to the party wronged. Whoever therefore founds on a special remission, takes guilt to himself, and is liable in damages to the private prosecutor, as if he had been actually tried and found guilty. It may be observed that assythment is not due to the next of kin of a person slain where the offender hath by the exertion of public justice suffered the punishment due to his crime; but whether it can be demanded from the king's donatary where the criminal hath fled from justice and forfeited his moveable estate upon a sentence of fugitation, may be doubted. No instances are to be found upon record of recovering an assythment in a judicial way, but in the, special case where the offender hath obtained and founded upon a remission to screen himself from trial."

Two cases decided shortly after this was written were much relied on in argument as showing that Erskine took rather too narrow a view. But before coming to them I think it well to point out that, although the basic principles of our law were then generally well established, there was still room for much difference of opinion about important matters of detail. Our modern doctrine of precedent was still in its infancy. I think that Erskine was probably still stating the prevailing opinion when he wrote (Inst., I, i, 47):

"…judgments ought not to be pronounced by examples or precedents…Decisions, therefore, though they bind the parties litigating, create no obligation on the judges to follow in the same tract, if it shall appear to them contrary to law. It is, however, certain that they are frequently the occasion of establishing usages, which, after they have gathered force by a sufficient length of time, must, from the tacit consent of the state, make part of our unwritten law. What has been said of decisions of the Court of Session is also applicable to the judgments pronounced upon appeal by the House of Lords … Nevertheless, where a similar judgment is repeated in this court of the last resort, it ought to have the strongest influence on the determinations of inferior courts."

One reason for this was the lack of reports of reasons given either in the Court of Session or in this House. It so happens that in these two cases we have, thanks to the diligence of Lord Hailes, a fairly adequate record of the views of each of the Fifteen, but that is unusual. This record illustrates the fact that much of the law was still fluid. The cases were decided by narrow majorities. No doubt the decisions would have had great influence on future cases, but I would not be inclined to hold that they had definitely settled all the points raised.

The two cases were Machargs v. Campbell and Leith-hall v. Earl of Fife . The case of Machargs arose out of the killing in Martinique of one army officer, Macharg, by another, Campbell. Campbell was tried by court-martial and found guilty, but, as there was not a sufficient majority to authorise a sentence of death, he was only cashiered. Macharg's father, brother and sister brought an action of assythment. A number of points were taken in defence, that there was no proof of murder, that this could not be proved in this action and that there had been no remission by the Crown. The long written arguments are reproduced in Maclaurin's Decisions, pp. 673–718, and the views of each of the judges as noted by Lord Hailes appear in volume 1 of his Decisions, pp. 192– 8.

In Leith-hall Leith had been murdered in Aberdeen in 1763 by Abernethy. He was prosecuted, but he escaped and was declared a fugitive and outlawed. The widow and children sued for assythment. The arguments are set out in Maclaurin, pp. 718–22. The main argument for the defence was that, as there had been no conviction and no remission, there could be no assythment. This argument was sustained by the Lord Ordinary and by the Court at first by "a scrimp majority," but on a reclaiming petition assythment was found due. Again the opinions of the judges are noted by Lord Hailes (pp. 206–9).

I do not think it would be helpful to analyse these opinions in detail. Some things appear as clearly established. First, a crime must have been committed causing death or personal injury. It might be thought from the terms of the Act 1661, cap. 22, that assythment could be awarded for death caused justifiably or accidentally, but there seems to be no suggestion that any such award was ever made. Secondly, if the criminal had been executed, no assythment was due. Some of the judges question the justice of this, but none questions the existence of the rule. But beyond that there seems to have been no invariable rule.

There are suggestions that assythment ought to be payable only if the king has granted a pardon or remission. No doubt that was so in most cases. But there are at least three cases where there was assythment but no pardon. In Leith-hall the fugitive was certainly not pardoned: he could have been tried if he had returned and had been apprehended. In Stewart v. Story the criminal was convicted of culpable homicide and sentenced to eight months' imprisonment and also held liable in an assythment of 1000 merks. And it appears from the report of H.M. Advocate v. Spence that in 1704 a man Somerville had to suffer both imprisonment and assythment. So I cannot agree with the Lord Justice-Clerk that "remission and assythment have over the centuries been the essential counterparts one of the other." There could, I think, be assythment combined with any punishment short of death.

There was virtually no further development of the law of assythment after Leith-hall . The reason was that by the end of the eighteenth century a new remedy began to emerge for the quasi-delict of negligence and that remedy was also available for delict. But the old word assythment was still used when the widow and children claimed reparation for the death of the husband. I take as an example a case which ultimately came before this House, Black v. Caddell . It is reported in 1804 in the Court of Session under the heading Assythment. Black was riding home in the dark and he and his horse fell into an unfenced coal-pit on Caddell's land near to the road and were drowned. Caddell was a singular successor and the pit was on the land when he acquired it, so it is hard to see how he could have been guilty of any crime. That was his defence in the Court of Session, but it failed. No record of any reasons given by the Court survives, but the written argument for the pursuers indicates reliance both on the law of assythment and on the Roman law as to obligatio quasi ex delicto . However, when the case came before this House, the pursuers in their printed case disclaimed reliance on assythment and stated that their action was "for reparation and damages for the injury they have suffered quasi ex delicto of the appellant." This House affirmed the decision of the Court of Session, but there is no record of any speech or reasons given. I think that the decision must be taken simply as an authority that the children of a deceased person are entitled to sue if his death was due to the negligence of the defender.

This confusion between assythment and liability for negligence continued for a long time, and I find no assistance from any of the cases decided during this period. Even as late as 1845 ( Cooley v. Edinburgh and Glasgow Railway Co .) in an action of damages against a railway company, which could not possibly be for assythment, assythment is mentioned in the pleadings and referred to by Lord Justice-Clerk Hope (at. p. 294).

In Greenhorn v. Addie it was held that the brothers of a man killed by the negligence of his employers were not entitled to sue solely for solatium. It is by no means clear whether the result would have been the same if they had suffered financial loss of support. There are long discussions about assythment, which I do not find illuminating. I cannot find there or in Eisten's case any sufficient indication that an action for assythment would have been regarded as obsolete if the facts had justified such an action.

I am not inclined to accept the argument that assythment by reason of disuse and change of conditions is no longer part of the law of Scotland. It is perfectly true that it is almost impossible to imagine a typical case for assythment occurring today. But that was equally unlikely a hundred or a hundred and fifty years ago, and my impression from reading the cases of that era is that, with a few exceptions, the judges of that time would not have held that this remedy had become obsolete and unavailable. Loss of a common law remedy by desuetude would, I think, be a novelty in our law, and I see no advantage in introducing such a principle. No one knows what may happen in the future.

But, where it is sought to resuscitate a remedy after nearly two centuries of disuse, I think we are not only entitled but bound to look at the case rather strictly and to ask whether it comes squarely within the old law. So I would consider whether it can be said with reasonable assurance that, if circumstances like those in the present case had occurred two hundred years ago, the Court which decided Machargs and Leith-hall would have held an assythment due.

We can suppose that the man in charge of James Watt's new steam engine had acted much as the defender is alleged to have acted in this case. If he had been sued for assythment, he would have put forward a variety of defences. In the first place he would have said that he had not committed a crime. The pursuers aver that their brother's death was caused by culpable and reckless acts of the defender, and it is conceded that, if all their averments and none of the exculpatory averments of the defender were proved, there might, as the law now stands, be a conviction of culpable homicide. But culpable homicide covers a very wide variety of cases from something not far short of murder to cases deserving little punishment. In my own experience it was not very uncommon to direct that a charge of culpable homicide should be tried summarily. I am doubtful whether in the eighteenth century this kind of case would have been regarded as the kind of crime which could warrant an assythment.

But, even if that defence were repelled, I think that the next defence would have prevailed. The defender would have pleaded that not only had he not been convicted, but no steps had been taken to prosecute him. Looking to the hesitation with which the Court in Machargs and Leith-hall accepted the verdict of a court-martial or fugitation as the basis of an action for assythment, I cannot believe that they would have held mere averments that a crime had been committed to be a sufficient basis for a civil action. If they had so held, it would have meant that there would have to be a trial in the Court of Session to determine whether the defender was guilty of a crime. But the Court of Session had no criminal jurisdiction. It is quite true that proof of a civil claim may consist of facts which would amount to a crime if accepted in a criminal court. But in such a case there is no conviction of a crime, whereas for assythment it is a condition precedent that guilt of a crime must be established, or at least there must be something, such as pardon, verdict of a court-martial or fugitation, from which guilt can readily be inferred. To have allowed a case of assythment to proceed on mere averments that the defender had committed a crime would have gone a long way further than the Court had ever gone, and I am convinced that in the eighteenth century a case like the present would have been dismissed. That, in my view, is sufficient to decide this case.

I would therefore dismiss this appeal.

I would add that there seems to me to be no good reason for refusing redress to brothers and sisters (and it may be other near relations) of a deceased person in a case where his widow and children could recover damages, provided that they can establish financial loss. Eisten's case seems to me to be a policy decision: a generation earlier it might well have been decided the other way. It has stood far too long to be reversed by the Court, but I think this is a matter which might well be considered by the Law Commission.

LORD DIPLOCK .—My Lords, I agree with the speech of my noble and learned friend Lord Kilbrandon, and for the reasons which he gives would dismiss this appeal.

LORD SIMON OF GLAISDALE .—My Lords, Arthur Craig, deceased, a labourer employed by Hamilton Brickworks, was killed while at work on 3rd March 1967. The appellants (pursuers) are the next of kin of the deceased, being respectively his sister and brothers. They allege that the deceased contributed about £100 a year towards the support of the third appellant, who was ten years old when the deceased died. It is not alleged that the other appellants were in any way dependent on the deceased, though they all lived together in family with him. The appellants allege that the death of the deceased was caused by culpable and reckless acts and omissions and by breach of statutory duty on the part of the respondent (defender), who at the material time was works manager of Hamilton Brickworks, in such circumstances, allegedly, as to make him criminally responsible for the death of the deceased, though no prosecution has been brought against him. The appellants cannot bring the normal action for damages in respect of negligence causing death, because in Eisten v. North British Railway Co . it was held that brothers and sisters of a deceased have no title to sue in such an action. Eisten's case has been consistently followed ever since it was decided, and was approved in Darling v. Gray & Sons . It is common ground that the limitation of entitlement to sue laid down in Eisten's case is by now too firmly established in Scots law to be altered otherwise than by legislation. So, instead, the appellants attempt to revive the ancient Scottish doctrine of assythment, which was available by way of remedy to collateral next of kin. They claim £7000 from the respondent for solatium and loss of support.

It must, I am aware, seem presumptuous for an English lawyer to venture an opinion on a matter primarily of Scottish legal history, and I would be well content to concur in the speeches of my noble and learned friends Lord Reid and Lord Kilbrandon. But assythment has obvious affinities with certain doctrines of ancient English law. Moreover, an alleged rule of the English common law has been invoked by the appellants as governing this case by analogy—namely, that once a rule is established in the common law, it is not subject to desuetude, but can be invoked at any time by any litigant. It is alleged that a similar rule obtains in Scotland.

Contrary to the opinion of Lord President M'Neill in Greenhorn v. Addie (at p. 864), "assythment" was itself at one time an English word (see the Oxford English Dictionary: Lord M'Neill was going on Dr Johnson). In its southern form of "aseeth" it appeared in the 1388 edition of Wyclif's Bible:

"Pilat, willynge to make aseeth to the puple,…"

(Mark, xv, 15)—a passage translated in the Authorised Version as "willing to content the people," in the New English Bible as "in his desire to satisfy the mob," and in the Jerusalem Bible as "anxious to placate the crowd." These various versions give the general senses of the word "aseeth," "asseth" or "assyth" in Middle English. The usual idiom was "to make (or do) asseth," derived from the Old French fere asset , itself from the Latin satis facere , meaning to satisfy (desires), to expiate (sins) or to make atonement (to a person for a wrong). So far as I am capable of judging, the Scottish "assyth" and "assythment" had similar senses before becoming specifically legal terms.

Even without the authority of Lord Kames (Morison's Dictionary, 12,545) I would have surmised from all this that assythment had a close relationship with the old English doctrine of wergeld . Wer was the money value set by the law on a man, varying with his rank; and geld was the money itself. Wergeld was therefore money payable for the life of a man. Most archaic legal systems show signs that the earliest deterrence to antisocial conduct lay in self-help, socialised into a system of family vendetta. The germ of a public system of justice is generally to be found in some form of control over the vendetta. At first it is generally only an imposed limitation on the degree of relationship to the injured person of the persons entitled to seek revenge and on the degree of relationship to the offender of the persons who might be made the subject of the vengeance. Then, in England at any rate, as royal authority became stronger and Christian doctrines more rooted, there was at first encouragement and later insistence that the blood-feud should be replaced by payment of compensation to the injured person or his family. Hence the wergeld . In this way there grew up, too, an associated concept of a King's Peace, which demanded that compensation should be payable rather than revenge taken. Thence further, in addition to the wergeld payable to the family of the slain man, a penal fine called wite became payable to the king (or local lord exercising the effective police authority). A further term, bot , was used to denote both kinds of money payment—the wergeld and the wite . Some at any rate of this terminology seems also to have been common to Scotland: in the Regiam Majestatem , in the index to the part which purports to set out the laws of Malcolm II (1005–1034) appears:

"The Wergelt, or theiftbote, of ane theife is threttie kye."

(Skene's ed., Edinburgh, 1609, f. 103 v.) Nevertheless "assythment" seems in Scotland to have generally replaced all this terminology, being used to embrace both the fine to the king and the compensation to the injured person. Thus in the statute of 1424, cap. 7, it was enacted:

"…gifthey be convict of sik trespasse, that they be punished, and finde borrowes ( i . e . sureties] till assyith the King and the parties complainand."

(The Lawes and Actes of Parliament, Skene's ed., Edinburgh, 1597, p. 2.)

It is in view of its origin in the vendetta that assythment, as many commentators have pointed out, is intimately connected with procedure by way of private prosecution. E. B. Taylor, one of the earliest classical anthropologists, remarked on this phenomenon:

"Yet our criminal law grew out of such private vengeance, as is still plain to those who attend to traces of the past, when they hear such phrases as ‘the vengeance of the law,’ or think what is meant by the legal form by which a private person is bound over to prosecute, as though he must still be suing, as he would have done in long-past ages, for his own revenge or compensation."

( Anthropology , London, 1881, p. 417.) (It would appear from authorities that were cited to your Lordships that, unlike England, private prosecutions had virtually disappeared in Scotland by the end of the eighteenth century; and we were told that they are unknown today.)

In twelfth-century England, as social life became more ordered under the civilising influence of legal and police institutions, the wite became a discretionary money penalty payable to the Crown (at first called "amercement," later developing into the penal "fine"), and the wergeld element in the bot was generally replaced by money compensation to the injured person himself (kinsfolk becoming, until the Fatal Accidents Act, 1846, unable to sue for an act causing death—presumably because, with the development of feudalism, the felon's estate became wholly forfeit to his lord or the Crown); and wergeld , wite and bot have passed irredeemably out of English law (see Lord Diplock in Broome v. Cassell & Co ., at p. 1127). That there was no sustained parallel development in Scotland was presumably due to failure to establish any continuity of strong central power with attendant legal institutions, and consequent liability to periodic lapse into anarchy, in which no doubt assythment still served a useful purpose in mitigating the ferocity of the blood-feud. But it must have been the sporadic influence of such legal institutions as did manage to take root which allowed assythment to serve a secondary purpose, namely, as a civil remedy in cases of physical injury or death caused by crime—indeed, possibly any injury at all caused by any crime at all ( e . g . adultery: see Steedman v. Coupar ).

In rudimentary penological terms assythment was more sophisticated than wergeld , in that in the former the amount recoverable depended, at least partly, on the means of the offender, and not solely on the status of the deceased or injured person (see Stair, I, ix, 7). But this very feature makes it all the more anomalous to modern juristic concepts of civil liability. Nor would this be, consequent on its archaic origin, its only anomalous feature as a civil remedy. It was necessary to found on a crime (see Lord President Inglis in Eisten's case, at p. 983). It appears that any person who could trace relationship with the deceased, however remote, could be a pursuer (Stair, loc . cit. ). It was unnecessary to prove dependency, or even a reciprocal obligation to support ( cf. Clarke v. Carfin Coal Co .; Darling v. Gray & Sons , per Lord Watson at p. 32). No assythment lay where the offender suffered capital execution for his crime, obviously because (whatever the subsequent rationalisation, which is in any case no longer valid) the law regarded the thirst for vengeance, which was historically fundamental to the whole doctrine, as sufficiently assuaged by the death of the wrongdoer—a concept understandable enough in a jurisprudence which could take pride in the replacement of bloodshed by blood-money, but which would hardly be acceptable today.

My Lords,

none of these incidents of the civil remedy is compatible with general Scottish jurisprudence. They would be anomalous. By this I mean that, since the law proceeds by laying down norms in which a given situation results in certain consequences, it is anomalous if the given situation produces an abnormal consequence or if the consequence arises abnormally. Occasionally it is difficult to determine which is the norm and which the anomaly, but no such difficulty arises in the instant case. A legal anomaly is inherently objectionable, because it is liable to result in persons in materially similar circumstances being treated disparately—though we readily accept an anomaly if any practical alternative also seems anomalous, or even if we have learnt to live with it. The anomalous incidents of assythment which I have rehearsed could (I shall hope to satisfy your Lordships) hardly be avoided if the remedy were to be revived—certainly if English analogy were apt. Scotland has learned to live without them for at least two centuries.

Counsel for the appellants argued that the fact that Eisten's case restricted the relationship of persons entitled to sue by the actio injuriarum in respect of death caused by negligence did not render anomalous the alleged right of collaterals to recover damages today in the form of assythment. The restriction imposed by Eisten's case , he said, had been much criticised of late, and to allow collaterals in by way of assythment would do no more than bring the law of Scotland into line with the 1959 extension of the right to sue in England under the Fatal Accidents Act, 1846,to collaterals. But this is not so. The Fatal Accidents Act, 1959, extended entitlement to sue only to limited classes of collaterals, and then only if they were dependants of the deceased. In my view, it is impossible to palliate the anomalies which would obtain were claims to assythment allowed to lie today alongside ordinary claims in negligence. Nor, indeed, could the doctrine be limited to claims in respect of criminal negligence causing death: counsel for the appellants accepted that a husband could lay a claim for damages for adultery by way of assythment if the wealth of his wife's paramour rendered this remedy more attractive. All these anomalies are inevitable because, as Lord Ardmillan said in Eisten's case (at p. 986), "the proper origin of our law of assythment is to be found in a principle which has passed away from our jurisprudence."

But, although counsel for the appellants would have preferred to shed some of the more embarrassing incidents of assythment, he was prepared ultimately to take his stand along with them. His argument was that the Scottish common law is analogous to that of England, which holds, he asserted, that a common law doctrine, once established, can never die and is therefore capable of revival at the call of any litigant who wishes to invoke it. Assythment, on this argument, is a doctrine of the Scottish common law so established.

Whether assythment was firmly established as a Scottish common law doctrine giving entitlement to sue for a civil remedy, and, if so, what was its scope, are matters purely of Scots law, and it would be temerity for me to do more than concur in the opinions expressed by my noble and learned friends Lord Reid and Lord Kilbrandon. It is also for Scots law to determine how far the alleged doctrine of the immortality of a common law rule finds independent expression in Scots law and how far English law is a safe analogy here. I would, however, myself venture two things. First, the validity of analogy in this field does not seem to me to be self-evident, in view of the clearly disparate doctrines of English and Scots law relating to the desuetude of statutes (the same Parliament of 1424 which passed the statute I have cited dealing with assythment also passed an Act, cap. 18, banning football; and although both Acts were repealed by the Statute Law Revision (Scotland) Act, 1906, it is difficult to believe that it was only then that football ceased to be an illegal activity in Scotland), and also in view of the general civil law doctrine of desuetude of rules of law. Secondly, the passage from Stair's Institutions (1st ed., 1681), I, i, 15, did not seem to me to support the appellants' proposition for which it was cited:

"… the Nations are more happy, whose Laws have entered by long custome, wrung out from the Debates upon particular Causes, until it come to the Consistence of a fixed and known Custome, for thereby the conveniencies and inconveniencies through a tract of Time, are experimentally seen; so that which is found in some cases convenient, if in other cases afterward it be found inconvenient, it proves abortive in the womb of Time, before it attain the maturity of a Law. But in Statutes, the Lawgiver must at once ballance the conveniencies and inconveniencies, wherein he may, and often doth fall short, and there do arise, casus Incogitati , wherein the Statute is out, and recourse must be had to Equity. But these are best which are approbatory, or correctory of experienced Customs, and in a customary Law, though the people run some hazard at first of their Judges Arbitriment: Yet when that Law is come to a fulness and consistence, they have by much the advantage in this, that what custom hath changed, is thrown away, and obliterat without memory, or mention of it; but in Statutory Written Law, the Vestige of all the alterations remain, and ordinarily increase to such a Mass, that they cease to be Evidences, and Securities to the people, and become Labyrinths, wherein they are fair to lose their Rights, if not themselves, and must have an implicite Faith, in these who cannot comprehend them without making it the work of their life."

As I read this, Lord Stair is saying, not that a common law rule cannot fall into desuetude, but that its more testing creation makes it more reliable and less liable to fall into desuetude than a statutory rule.

However that may be, in my view counsel for the appellants stated the English common law rule on the matter in too stark a form. He relied on two passages in speeches by Lord Sumner in your Lordships' House. The first, in The Amerika (at p. 56), reads:

"… nor does it follow, in the case of a legal system such as ours, that a principle can be said to be truly a part of the law merely because it would be a more perfect expression of imperfect rules, which, though imperfect, are well established and well defined. Again, an established rule does not become questionable merely because different conjectural justifications of it have been offered, or because none is forthcoming that is not fanciful."

The second, from Bowman v. Secular Society Ltd . (at p. 454), reads:

"If that maxim expresses a positive rule of law, once established, though long ago, time cannot abolish it nor disfavour make it obsolete."

I do not think that the first passage establishes the appellants' proposition. The second passage, which is closer, was obiter , since Lord Sumner thought that the alleged rule of common law (that Christianity is part of the law of England) was not made good (though the passage was, it is true, cited with approval by Lord Goddard in Sykes v. D.P.P ., at p. 568). In my view, the doctrine is most accurately expressed by Parke J., giving the advice of the judges to your Lordships' House in Mirehouse v. Rennell at p. 546 (cited with approval by Lord Tucker—concurred in by Lord Simonds and Lord Morris—and by Lord Hodson in Shaw v. D.P.P . at pp. 289–292–3 respectively); and I italicise the qualification which it was not necessary for Lord Sumner to make in Bowman v. Secular Society Ltd .:

"Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient , to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised."

The true doctrine, then, in my judgment, is that a rule of the English common law, once clearly established, does not become extinct merely by disuse, and remains capable of recrudescence in propitious circumstances, but not when it would be grossly anomalous and anachronistic. Thus, when the ancient crime of affray was required again to deal with modern gang warfare, it could be invoked without anomaly or anachronism: see Button v. D.P.P .,especially at p. 611. So too, when it appeared that a grave offence could be reached only by reliance on the virtually disregarded criminal remedy of misprision of felony, it was susceptible of revival ( Sykes v. D.P.P. ). I myself recently, sitting in first instance, had to deal with the old common law doctrine of the validity of acts of persons holding office (including judicial office) de facto sed non de jure , which had not been applied in England for a century and a half; and, although I held it inapplicable in the case before me then, I could envisage circumstances in which it might still be useful and available (see Adams v. Adams ( Attorney-General intervening ), at p. 212).

But the maxim cessante ratione cessat ipsa lex (Co. Litt. 70b; Broom's Legal Maxims, (10th ed.) pp. 97 ff.) is also part of English law: for a recent example of its application, albeit not expressly, see Gooday v. Gooday . Counsel for the appellants accepted that the maxim also expresses a rule of Scottish law—a concession which, I am bound to say, seemed to me to be fatal to his argument. If a rule of English common law cannot become as dead as the dodo, it can at least go into a cataleptic trance like Brünnhilde or Rip van Winkle or the Sleeping Beauty. In such a state the rule in question cannot, in my view, be revived at the mere call of any passing litigant, but only if its appropriate moment has come again to operate usefully and without gross anomaly. In Parsons v. Burk the applicant attempted to revive the ancient writ generally known as ne exeat regno in order to prevent a New Zealand rugby football team from going to South Africa. Hardie Boys J. did not hold that the remedy was wholly dead for political purposes, so as not even to be available when required by the Crown. But he did hold that it was not today available for such a purpose at the suit of a private person—and this in spite of a statement by Fitzherbert (New Natura Brevium, 1st English ed., 1652, p. 205) (repeated by Comyns, Viner and Chitty):

"and every one , upon a surmise made [ i . e ., cause shown] unto the Chancellor, may sue forth this Writ for the King …"

(my italics). See also the discussion of this case in an article by Mr J. W. Bridge in (1972) 88 L.Q.R. 83.

The case which goes furthest in support of the appellants' submission on English law, and at the same time exposes its weakness, is Ashford v. Thornton . Mary Ashford, recently a virgin, had been found drowned. Thornton had been indicted for her rape and murder, but had been acquitted. William Ashford, the elder brother and heir of the deceased woman, was dissatisfied with these verdicts. He sought to reopen the issues by reviving the ancient appeal of felony, a mode of criminal procedure which had preceded the procedure of trial by jury on indictment, and was itself "perhaps a formalised relic of the feud" (S.F.C. Milsom, Historical Foundations of the Common Law, 1969, p. 356). Thornton, the appellee, claimed the right to trial by battle, which had been a crucial incident of the procedure by appeal of felony. Ashford in turn claimed that in the appeal of felony there was no right to trial by battle where the proof of guilt was clear beyond doubt, as (he averred) it was in that case. Thornton denied the averment; and it was on this issue that the matter came before the civil side of the Court of King's Bench. The Court held that the evidence fell short of proving Thornton's guilt beyond any reasonable doubt, with the consequence that he was entitled to trial by battle. Lord Ellenborough C.J. said (p. 460):

"The general law of the land is in favour of the wager of battel, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices therefore may justly exist against this mode of trial, still as it is the law of the land, the Court must pronounce judgment for it."

The Court adjourned consideration of whether Ashford had by his pleading so refused trial by battle as to entitle Thornton to be discharged: and, in the event, Ashford proceeded no further; the matter was transferred to the Crown side of the Court; and Thornton, pleading autrefois acquit, was discharged. (Trial by battle and appeals of felony were abolished the following year by 59 Geo. III, cap. 46.) The case is in favour of the appellants as an example of the revival of archaic and anachronistic procedure perhaps also based on the blood-feud. It is against them as demonstrating that, if a rule is revived, it must be taken with all its incidents, however outmoded—you cannot pick and choose among them. But it must be remembered that that case was tried at the height of counterrevolution and romantic revival, and at a time when the duel was far from discountenanced (a Foreign Secretary had recently fought one and a Prime Minister was shortly thereafter to do so). Moreover, Lord Ellenborough was probably the most conservative judge ever to sit on the English bench. Even so, as Professor Potter wrote (Historical Introduction to English Law (2nd ed., 1943), p. 283):

"…when the Judges refused to lend any assistance in the procedure the ardour of the claimant cooled and the plea was withdrawn."

I do not believe the case would be similarly decided today: the law has a more serious purpose than the satisfaction of antiquarian curiosity. Appeal of felony and trial by battle would, in my view, fail Parke J.'s condition for revival, being "plainly unreasonable and inconvenient."

So, too, with assythment, if English rules as to survival of common law doctrine are applicable. This Brünnhilde would awake in our uncongenial modern Nibelheim. This Rip van Winkle would find Eisten's case firmly embodied in the law, that private prosecutions are extinct, that capital punishment for homicide has been abolished, and that damages are related to the loss to the pursuer and not to the means of the defender. Even if this Sleeping Beauty were so attractive as to tempt your Lordships to favour her with your kisses, she could not possibly live happily ever after.

In the outcome, therefore, I find myself in practice taking much the same view of the case as was taken by Lord Wheatley in the Inner House. Although I do not feel qualified to hold that a doctrine of the Scottish common law has entirely perished through disuse, I confess that I cannot envisage circumstances in which assythment would be susceptible of useful or appropriate revival; and, in my view, as far as English law provides a valid analogy, it is certainly not susceptible of revival in the instant case.

LORD KILBRANDON .—My Lords, the Second Division of the Court of Session dismissed this action on the ground that the pursuers' averments were irrelevant and insufficient in law to support the conclusions of the summons. The appeal against that decision must therefore be considered upon the basis that the pursuers' averments could be established.

The deceased Arthur Brown Craig was employed by Hamilton Brickworks Ltd., whose works manager the defender was. Owing to a defect in his employers' plant, the deceased was killed on 3rd March 1967 by an electric shock. We were given to understand, though it is not averred, that, arising out of the accident, Hamilton Brickworks Ltd. have been convicted of a contravention of the Factories Act, 1961. The fatal accident was ascribable to the culpable and reckless negligence of the defender, and his conduct amounted to the crime of culpable homicide. I think the fairest way to state this point would be to say that, if a charge of culpable homicide were to be brought against the defender, there would be adduced evidence upon which he could be found guilty. No criminal proceedings of any kind have in fact been taken against the defender.

The first pursuer is sister, and the second and third pursuers are brothers, to the deceased. All have suffered grief and shock at his death, while the first and third pursuers were to some extent dependent on him.

It is agreed by the parties that, under the common law of reparation as it has stood in Scotland for at least one hundred years, the pursuers have no maintainable claim of damages against either the defender or his employers. The persons who are entitled to claim damages arising from a death are confined to members of classes between which and the deceased there had existed in law a mutual obligation of support, whether the claim be one for solatium in respect of wounded feelings or one based on patrimonial loss arising from the withdrawal of support which the deceased had up to his death been actually providing. There is, at common law, no mutual obligation of support between collaterals; it is thus only the ascendants and descendants of a deceased person who have the right to maintain a claim on either ground: Greenhorn v. Addie ; Eisten v. North British Railway Co .; Clarke v. Carfin Coal Co .

This is the reason why the first plea in law for the pursuers does not premise that the defender's negligence has made him liable in reparation to the pursuers, but reads:

"The deceased having been killed by the defender's criminal conduct, as condescended on, the pursuers are entitled to assythment from the defender."

It is conceded (see the respondent's case, pp. 2G to 3B) that, if a case of assythment can relevantly be averred, then collaterals of the deceased would not be barred for want of title from insisting in it and that the pursuers have tabled a relevant case.

I put this feature of the case in the forefront of my observations, because I think it has a real bearing on one of the considerations which appealed to Lord Wheatley and also, as I understand, may have influenced some of your Lordships. It is true that the exceedingly learned and able argument of counsel, to which I for one listened with pleasure as well as profit, led us down some fairly dusty byways of Scottish legal history, and reminded us of times when the administration of the criminal law was on a basis entirely repugnant to us, whose way of life has changed so radically. But the doctrine of assythment has been appealed to in this case, not as a barren exercise in antiquarian ingenuity, but because the law of Scotland does not, in a situation commonplace in this industrial age, seem to have kept up with the realities of family life. People do in fact assume, as the deceased in this case assumed, responsibility for looking after brothers and sisters when the family has lost father and mother, even although their brothers and sisters could not have sued for maintenance. If the support of an elder brother is lost through the negligence of another, it is not clearly an unreasonable burden on that other, or his insurers, that he should be obliged to assume liability for the loss of the breadwinner. This has been recognised in the law of England: see the Fatal Accidents Act, 1959. Perhaps in due time the law of Scotland, which until the passing of the Fatal Accidents Act, 1846, was a step ahead of that of England, may catch up again.

My Lords,

the characteristics of the claim for assythment have been stated in so authoritative a manner by their Lordships of the Second Division that I will rather express concurrence with their opinions on the nature and history of the action than attempt to improve upon them. In the first place, I am satisfied that from comparatively early times, earlier than has perhaps been generally appreciated, the word "assythment" has been used equivocally, to denote not only the satisfaction of a demand for revenge by exacting a monetary penalty from the estate of a pardoned murderer, payable to the victim's next of kin, but also compensation for the loss which the next of kin have suffered from his death. As an early example we see the passage from the works of Sir George Mackenzie quoted by Lord Walker, in which assythment in one sense is equiparated to the civilian idea of reparatio damnorum . This I take to be a reference to the Lex Aquilia . Earlier still, Balfour's Practicks (at p. 516) speaks of assythment as satisfying two demands ( a ) "to be payit … to the kin, bairnis and freindis of ony persoun that is slane … in contentatioun of the hurt, damnage and skaith sustenit be thame throw the wanting of the persoun that is slane, and for skaith incurrit be thame thairthrow"; ( b ) "and for pacifying of thair rancor."

It is the payment in satisfaction of the second of these demands, true assythment in the sense in which it always formed part of our criminal law (although other tribunals than the Justiciary Court might be competent to assess it), to which the Lord Justice-Clerk refers (at p. 35, supra ) in a passage which I will venture to quote:

"Where the killer was executed, no assythment was due. This was on the basis that ‘capital punishment of a murderer, with forfeiture of his moveables, is a satisfaction at once of public justice and of private vengeance’ (Bell's Principles, section 2029). It was due, however, where the panel was convicted of culpable homicide only, or where he escaped execution by reason of a special pardon (or remission) or a general act of indemnity (Hume, vol. i, p. 284; Erskine, Institute, IV, iv, 105). Indeed, as Hume explains (at p. 285) ‘by the ordinary style of all remissions, they bore a special clause obliging to assyth the party.’ Furthermore, the parties seeking assythment had, by subscribing letters of slains (when these were still in use) or otherwise, to concur in soliciting for the pardon (Erskine, loc . cit .); and by founding on a remission an offender was held to have admitted his crime ( Drew v. Horne , M. 13,904). As Erskine puts it in the paragraph already referred to, ‘Whoever therefore founds on a special remission, takes guilt to himself, and is liable in damages to the private prosecutor, as if he had been actually tried and found guilty.’ After dealing with the case of the criminal who ‘by the exertion of public justice’ has paid the full penalty (in which case no assythment is due), and that where the criminal has fled and has forfeited his moveable estate upon a sentence of fugitation (in which case he thinks the right to assythment ‘may be doubted’), he goes on to say this: ‘No instances are to be found upon record of recovering an assythment in a judicial way, but in the special case where the offender hath obtained and founded upon a remission to screen himself from trial.’"

Returning to the evidence for the co-existence of the two concepts of assythment, one criminal and one civil, I will go to Stair, and propose, for a reason which will become apparent, to use More's edition. Title ix of Book I deals with "Reparation, where of Delinquences, and Damages thence arising." It is under this title that both the philosophy of the punishment of crimes and also the basis of the claim of assythment are treated. Of "injury to person" he says (I, ix, 3):

"It shall in general suffice here to consider, that, according to our several rights and enjoyments, damages and delinquences may be esteemed. As, first, our life, members, and health; which though they may be inestimable, and can have no price, yet there are therewith incident damages reparable, and that either lucrum cessans , or damnum emergens . So the life of any person being taken away, the damage of those who were entertained and maintained by his life, as his wife and children, may be repaired. So likewise the loss any man hath in the expense of his cure, or the loss of his labour, and industry in his affairs, is also reparable."

It is observable that the above passage seems to set down most of the elements into which damages in a modern reparation action can be analysed. But what appears to me to be of even greater significance is that Professor More, annotating as early as 1832, cites as relevant to the above passage Black v. Caddell and Innes v. Magistrates of Edinburgh , neither of which, as can easily be demonstrated and is now accepted, were actions of assythment at all, but were the early forerunners of the modern reparation action. They were, I suppose, the cases to which, along with Gardner v. Fergusons , Lord Watson was alluding in Darling v. Gray & Sons —a much criticised decision—when he speaks (at p. 31) of "a series of decisions which trench somewhat closely upon the province of the Legislature." So by 1832, on this line of investigation, the breach between the reparation action, as then understood, and the ancient assythment must already have been regarded as wide open.

Going back more than half a century, the evidence seems to be consistent. Erskine in his Institute deals in Book III with obligations, and among the obediential obligations with which he is there concerned is (III, i, 12) "the obligation under which a delinquent is brought to indemnify the private party." This obligation he firmly fixes on the precept, laid down by Justinian, alterum non laedere :

"In consequence of this rule, every one who has the exercise of reason, and so can distinguish between right and wrong, is naturally (sc. by the law of nature) obliged to make up the damage befalling his neighbour from a wrong committed by himself."

There follow examples far removed from primitive outrages, some of which are clearly and distinctly based on negligence. Again it is observable that, the learned author being under the burden of dealing with the ancient doctrine of assythment, he discharges that duty under another head altogether, namely, "Of Crimes" (IV, iv, 105).

It is not possible, from any authority which I have been able to find, to fix any date at which, or by which, it became accepted that there was in law an obligation, outside the "criminal" doctrine of assythment, on a wrongdoer who had caused a death to indemnify the dependants of the deceased. Nor can the "criminal" doctrine of assythment be given a positive terminal. Professor D. M. Walker, in a valuable article in (1950) 62 J.R. 144, says (at p. 156):

"When criminal assythment died out is not quite clear; Hume speaks of it as competent but quotes no instance later than 1785; Bell's Notes thereto do not mention the subject; Alison (1832) mentions it; Burnett (1811) does not, and Macdonald (1867) does not. Both Hume and Alison appear to tend to the view that assythment in criminal causes was at least obsolescent, and the conclusion would appear to be that it did not survive the eighteenth century: no later cases have been traced. The word [my italics] was certainly used frequently in the nineteenth century in a loose sense meaning no more than damages, civil reparation, or solatium. It is impossible to state definitely at what point in development the civil remedy became distinct from the quasi-criminal and the actio iniuriarum emerged from assythment."

Professor Walker must allow me to say that, today, he might not feel obliged to defer to the authority which, as I shall point out, calls for the acceptance of the phrase actio injuriarum in the sense in which he there uses it.

While there is, as I have said, no evidence of an early acceptation by the Courts of an action of reparation based on the civil law, nevertheless I am convinced that this development had already been foreshadowed by the institutional writers. It seems now to be accepted that the earliest known case in Scotland of damages being found due for non-criminal negligence by an act of omission was Gardner v. Fergusons , "as Mr Hector M'Kechnie points out in the excellent survey of the history of the law of reparation which he contributed to the 12th volume of the Encyclopaedia of the Laws of Scotland. The date is significant. The law of Scotland was then still in a formative stage, and the influence of the Roman law in shaping the development of its doctrines was still potent … It is accordingly not surprising that in developing the action of damages for personal injuries the Scottish Judges were influenced by the analogy of the actio injuriarum of the Roman law": per Lord Macmillan in Stewart v. London, Midland and Scottish Railway Co ., at pp. 38–9. It has been repeatedly pointed out by scholars (see, e . g ., Professor T. B. Smith, Studies Critical and Comparative, p. 78), and Lord Macmillan in a later passage in the same speech seems himself to agree, that the correct analogue is not the actio injuriarum . This was truly based on insult or affront; it survives in our forms of action which are included under the classification of verbal injury—see Professor Walker in 1970 J.R. 157. (On the other hand, see F. H. Lawson, A Common Lawyer looks at Civil Law, p. 155, n. 21.)

The Roman ancestor of our action of reparation is the Lex Aquilia , as was forcibly pointed out by Sheriff M'Kechnie in his chapter in the Introduction to Scottish Legal History, volume 20 of the Stair Society, at pp. 276–7. The learned author seems ruefully to conclude that the great weight of authority inevitably conceded to those who have drawn the false analogy probably makes further protest unprofitable. But, again acknowledging one's indebtedness to Sheriff M'Kechnie, one notices that, in his Principles of Equity (1760), Lord Kames had laid down that "by the common law … every transgression without exception subjects the wrongdoer to make full reparation," and in his fourth edition (1800) he attributes this rule to the Lex Aquilia . As soon as such a doctrine can claim to be commonly accepted, so soon becomes impossible the ascription of damages for the death of a relative simply to the tribal laws and customs of primitive Scotland. That right to damages, with its coterminous obligation, has to be recognised as part of a developed common law of Scotland, which, while it does not repudiate its ancestors, nevertheless stands thenceforth on its own feet.

The second respect in which I wish to express my concurrence with the opinions delivered in the Inner House is that, supposing the action of assythment in the criminal sense, and as understood by our earlier forefathers, still to be competent, the present action would not have fallen within those ancient requirements. It was for this reason that I quoted the above passage from the opinion of the Lord Justice-Clerk. Many of the necessary conditions seem to remain unfulfilled. It is alleged, and we must take it pro veritate , that the defender's conduct amounted to culpable homicide. Be it so: he has never been charged, let alone convicted, so that the necessary conditions for vindictive action by the relatives are altogether wanting. It is hard to see, indeed, the old conditions ever being met in the modern scene. In times past it was a strange but necessary anomaly that there could be no assythment in the gravest of cases, in which the offender suffered the capital penalty, but only in the less grievous cases, where his life had been spared, either by the royal clemency or by a verdict which did not infer the pains of death: see Stewart v. Story . Today no "slauchters" are capital, so that part of the theoretical content of the doctrine has disappeared. Again, in times past the private prosecutor was regularly conjoined, in such cases, with His Majesty's Advocate. Today it is sixty years since a private prosecution (in the class of case we are considering) has been successfully launched. We have, I think, to take it that the defender will never be charged with the crimes which the pursuers allege against him. It might perhaps be an unhelpful technicality to speculate whether the appellants' case would have been the stronger could they have pointed to an unsuccessful application in a bill for criminal letters. However that may be, I do not know of any case in which a claim for assythment in the proper sense has been found relevant where, for whatever reason, no criminal charge of any kind has been brought.

The debates which took place in the eighteenth century on the fringes of this subject are instructive for more than one reason. In the first, Machargs v. Campbell , we may see one of the last of the assythment cases which could be related to the old law. The controversy was whether the confirmation by the king of a sentence, less than death, of a court-martial on a conviction of murder gave rise, as the remission of a death sentence would have done, to a claim for assythment.

In the next case, Leith-hall v. Earl of Fife , Leith of Leith-hall had been slain by Abernethy, and his Lady claimed an assythment. Abernethy had been charged with murder but had absconded; on the calling of the diet of his trial he was fugitated. This does not infer an admission of guilt. After describing the status of an outlaw, Hume says, "These consequences do not in any wise ensue, on a presumption of the pannel being guilty because he is absent, for in that case the penalty would be various, according to the degree of the charge; but as a punishment of his contumacy, and rebellion (so it is construed), in disobeying the will of the King's letters, which order him to appear and underlie the law, on the charge which stands against him. In contemning this injunction, he is held to have cast off his allegeance as a subject, and to have entered into a state of rebellion to the law, and to the Sovereign of the land." (Crimes, 1800 ed., vol. ii, p. 18.)

The question was whether Abernethy's forfeited estate (represented by a donatar) was liable to assyth, there having been (unlike the present case) a criminal charge, but (like the present case) no conviction and therefore no question of remission of the death penalty. How then, looking to the classical presentation of the action of assythment, did Lady Leith-hall succeed? The decision was not very well received by contemporary authorities. Hume calls it a "doubtful decision." Erskine died in the year the case was decided (1768), but the crime had been committed in 1763, and the passage quoted by the Lord Justice-Clerk, in which the author doubts whether assythment is due in those precise circumstances, makes one suppose that he is referring to the Leith-hall problem. No doubt it was being debated in the Parliament House while the Institute was being written, for posthumous publication. Kames in his Select Decisions (quoted by Morison) says the claim "was much controverted in the Court; and the doubtfulness arose from mixing the two senses of the word assythment, which occasioned much reasoning that was not applicable to the real case." This is exceedingly plain from the opinions of the judges, collected in Hailes' Decisions, volume 1, at p. 206 onwards. Lord Coalston says (at p. 207):

"If I were of opinion that assythment is only due when the king stops justice by a pardon, I should think that assythment was neither due in this case nor in Campbell's. But I think assythment is due whenever one person is hurt in his property by another."

Lord Kames said (at p. 209):

" Assythment has two senses: it is the punishment of a crime, or it is a solatium . Mrs Harriet Stewart [the pursuer] asks the last, but not the first. We ought not to be misled by names. Had she asked damages, there would have been no doubt. She asks assythment as damages. Why should there be a doubt?"

The opposite view was taken by Lord Monboddo. After explaining that assythment was due in the Machargs' case, because Campbell was tried, but escaped punishment by means of the form of the sentence, he goes on:

"Here there is no proof [ sc . trial] at all: neither sentence nor pardon. Assythment is the old punishment of murder, not a reparation."

It may be interesting, but probably unprofitable, to speculate whether the instant claim, if it had been presented in the Court of Session in 1768, would have succeeded. If it had been argued, at the bar or on the bench, as an action of assythment in the classical, or criminal, sense, I have no doubt that it would not, for the reasons convincingly stated by the Lord Justice-Clerk, Lord Walker and Lord Milligan. It simply would not have fulfilled the well-established conditions, founded on the pacifying of rancour in the next of kin. The serious question is, would it have anticipated Gardner v. Fergusons . Innes v. Magistrates of Edinburgh and Black v. Caddell , all cases arising out of negligence (and to cause death by negligence was and is the crime of culpable homicide), and have been decided in favour of the pursuers, not upon what was sharply described by Lord Watson in Darling v. Gray & Sons (at p. 32) as the worn-out analogy of assythment, but on the doctrine, based on the Lex Aquilia ,which was gradually to become the common law, adopted and adapted for the purpose of meeting the requirements of a fast-developing society?

For my part I would support the probability, and one cannot put it higher, of an affirmative answer. Unfortunately this does not help the pursuers. It is this very kind of action the benefits of which were found, by nineteenth-century authority, including decisions of your Lordships' House, to be denied to the injured collaterals of a deceased person. The pursuers cannot satisfy the requirements of the old "criminal" action, and they have no title to sue the new "civil" action. For these reasons I would dismiss this appeal, but I would again suggest that the legislature take notice of the acknowledged defects in our law as it stands.

I am a little reluctant to accept the view of those who hold that this case can be decided on the maxim cessante ratione legis cessat lex ipsa . I do not know of any doctrine of irrevocable desuetude in the doctrines of the common law. "The revival of ancient processes which have fallen into desuetude and their application to the phenomena of modern life is no new thing to the common law"—J. W. Bridge in (1972) 88 L.Q.R. at p. 83. In any event the ratio legis here has not, in one sense, expired. The present action has been brought to vindicate rights which were once recognised in Scotland, are now recognised in England, and might be recognised in Scotland again—I mean the right of the collateral to recover damages suffered by him through loss of support of his next of kin. It may be, though I can hardly envisage the circumstances, that a case could occur in which such a right could be vindicated through an action of assythment. Certainly nineteenth century judicial, and twentieth century academic, opinion is in favour of the survival of the ground of action. I would prefer, accordingly, to reserve my opinion, in company with the Lord Justice-Clerk, on the general question of competency.