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See Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L. Q. Rev. 431 (1916). Under the felony merger doctrine, the common law did not allow civil recovery for an act that constituted both a tort and a felony. The tort was treated as less important than the offense against the Crown, and was merged into, or pre-empted by, the felony. Smith v. Sykes, 1 Freem. 224, 89 Eng. Rep. 160 (K. B. 1677); Higgins v. Butcher, Yel. 89, 80 Eng. Rep. 61 (K. B. 1606). The doctrine found practical justification in the fact that the punishment for the felony was the death of the felon and the forfeiture of his property to the Crown; thus, after the crime had been punished, nothing remained of the felon or his property on which to base a civil action. Since all intentional or negligent homicide was felonious, there could be no civil suit for wrongful death.

The first explicit statement of the common-law rule against recovery for wrongful death came in the opinion of Lord Ellenborough, sitting at nisi prius, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808). That opinion did ...

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