Campbell, Espinasse and the Sailors

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Campbell, Espinasse and the sailors:text and context in the common law

Peter Luther*Lecturer in Law, University of Essex.

Stilk v Myrick (1809) 2 Camp 317, 6 Esp 129 has long been perceived as a'problemcase' in the law of contract. It provides afamous example of conflicting reports: one reporter appears to base the judgment on the doctrine ofconsideration, the other on public policy. The view that the case turned on the application of the doctrine of consideration had been generally accepted, but was challenged in Williamsv Roffey Bros. & Nicholls [1991J 1 QB 1. This article looks again at the texts of the two reports of Stilk v Myrick, and discusses theseagainst the background of law reporting in the eighteenth and nineteenth centuries. It also looks at the case in its historical context, as one of many cases in the law reports concerning aspects of the employment and remuneration of merchant seamen. The writer suggests that judges and commentators have tended - whether looking at the reports of the case as texts, or considering thefacts of the case in their historical context - to take an over-simplified view of the case.

1 INTRODUCTION

This article scarcely needs any introduction, for it relates to a case which wiII be familiar to every student of the law of contract: Stilk v Myrick. 1 This case raises the question whether a plaintiff who has contracted to perform certain tasks in return for payment can enforce a subsequent promise by the defendant to pay him a higher sum in return for his contractual duties. Stilk was a merchant seaman, who had signed articles to sail to the Baltic and back for £5 a month. Two of his fellow seamen deserted, and the master of the ship (the defendant Myrick or Meyrick), having failed to find replacements at Cronstadt, promised the remaining nine crew-members that he would divide the deserters' wages among them if they would work the ship home. They did so, and on their return Stilk sued to recover his wages under the articles and the bonus he had been promised. Counsel for the defendant referred to the earlier case of Harris v Watson,2in which Lord Kenyon had refused to enforce a promise of extra pay made by the master of a ship during a storm, on the ground that to do so might lead to sailors coercing their masters by making extravagant demands for extra wages. Lord Kenyon's judgment will be examined in more detail below.

* The author would like to thank Prof Geoff Gilbert of the University of Essex, and this journal's anonymous referees, for their helpful comments on an earlier version of this article.

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Issue.

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Note that although he was in port he failed to find replacement.


1. (1809) 2 Camp 317,170 ER 1168; 6 Esp 129, 170 ER 851.2. (1791) Peake 102,170 ER 94.


Campbell, Espinasse and the sailors 527

Counsel for the plaintiff (the Attorney General Sir Vicary Gibbs, with the law reporter Espinasse as his junior) replied that Myrick, unlike the master in Harris v Watson, had made his offer 'in perfect security' ,3 not in the face of danger, emergency or coercion. Lord Ellenborough held that Stilk could only recover at the rate of £5 per month. This is where the problems with the case start: the two published reports of the case, in Campbell's and Espinasse's Reports, differ; it appears that no other accounts of the case have survived against which these reports might be checked.' Despite the familiarity of the material, it is convenient to quote the two versions of the judgment in full, as this article will include a close examination of each. Here is Campbell's version:

'I think Harris v Watson was rightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say, the agreement is void for want of consideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all that they could under all the emergencies of the voyage. They had sold all their services till the voyage should be completed. If they had been at liberty to quit the vessel at Cronstadt, the case would have been quite different; or if the captain had capriciously discharged the two men who were wanting, the others might not have been compellable to take the whole duty upon themselves, and their agreeing to do so might have been a sufficient consideration for the promise of an advance of wages. But the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death; and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safely to her destined port. Therefore, without looking to the policy of this agreement, I think it is void for want of consideration, and that the plaintiff can only recover at the rate of £5 a month."

This is what Espinasse says:

'Lord Ellenborough ruled, That the plaintiff could not recover this part of his demand. His Lordship said, That he recognised the principle of the case of Harris v Watson as founded on just and proper policy. When the defendant [sic: it should be 'plaintiff] entered on board the ship, he stipulated to do all the work his situation called upon him to do. Here the voyage was to the Baltick and back, not to Cronstadt only; if the voyage had then terminated, the sailors might have made what terms they pleased. If any part of the crew had died, would not the remainder have been forced to work the ship home? If that accident would have left them liable to do the whole work without any extraordinary remuneration, why should not desertion or casualty equally demand it?"

The orthodox view here is that Espinasse's report is based on considerations of public policy, and that this policy is, in essence, that articulated by Lord Kenyon in Harris v Watson: the need to prevent sailors from coercing masters into

3. 2 Camp 317 at 318,170 ER 1168 at 1169.

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The report is based on considerations of public policy.

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The judge found the agreement is void for want of consideration. Since there was no consideration for the ulterior pay promised to the mariners couldn’t benefit from the sum that was promise. Remember that the case might have been decided differently in the following circumstances: if the Ps would have been free to quit the vessel at Cronstadt If the captain had discharged the seamen capriciously However, they had sold all their services till the voyage should be completed and the desertion of part of the crew is to be considered an emergency of voyage as much as death.


4. The writer has been unable to locate any record of the case at the Public Record Office.S. 2 Camp 317 at 319-320,170 ER 1168 at 1169.6. 6 Esp 129 at 130,170 ER 851.


528 LegalStudies

promising extra pay. Campbell's report, again on the orthodox view, is simply about the doctrine of consideration (and thus capable of general application outside the specific context of sailors' wages). As every law student knows, it is Campbell's version of the judgment - despite frequent criticism of its

application - that has, at least until recent times, been generally accepted (even to the extent that his spelling of the master's name, Myrick, has been preferred to Espinasse's Meyrick; the writer has swum with the tide here,

though on this point, if no other, one might expect that the opinion of counsel with the papers of the case in front of him would carry more weight than that

of an observer). This article looks at some of the questions raised by the case, including the question of how two different reports of a case might come to be written, and the related questions of how one report of a case

might come to be preferred, and of how much reliance can be placed upon the words that a reporter has used. Much of the comment on Stilk v Myrick has

been inclined to be superficial, tending towards statements that 'X is the more reliable reporter', or that 'X's

report is right' (and, as noted earlier, for the most part X = Campbell). Thisarticle suggests, both in general terms and with specific reference to Stilk vMyrick, that the textual problems of reports of the nineteenth century and earlier are more complicated than such comments suggest. It also looks at the policy considerations involving merchant seamen in the eighteenth and nineteenthcenturies, and suggests that the avoidance of coercion- while it was undoubtedly a factor when courts considered issues of public policy - was only one strand in an elaborate web of policy considerations surrounding sailors and maritime trade. These issues remain important, despite the fact that Stilk v Myrick is almost two centuries old, as can be seen from the reconsideration of the case by the Court of Appeal in Williams v Roffey Bros & Nicholls.' Although this latter case is itself almost ten years old, the approach taken by the Court to Stilk has given rise to difficulties which have yet to be resolved.

2 REPORTERS AND REPUTATIONS

When the existence of two reports of Stilk v Myrick is noted - which does not always happen; the court in Williams v Roffey, for example, refers only to Campbell's version - much of the comment centres on the relative reliability of the two reporters. This can seem a quaintly old-fashioned exercise to twentieth century readers, who take for granted the accuracy of the case reports they read, and who are highly unlikely ever to know, or need to know, the names of the authors of any of those texts. Even in relation to older texts, the heavy emphasis on the reporter's reputation can seem alien to a reader who approaches those texts (as most do) through the medium of the English Reports reprint, in which pre-1865 nominate reports are strangely homogenised. In the reprint, Campbell and Espinasse share the same buckram cover, the same layout, the same typeface. In common with all the other reporters, their work has had most of the individuality removed - their reports are even (in a remarkable editorial misjudgment) topped and tailed to lose their prefaces, tables, subject indexes


7. [1991] 1 QB 1.



and so on," Judicial and academic criticism of reporters is now read largely for its entertainment value (it features strongly in most anthologies oflegal writing"), rather than for information. But such criticism was much more than mere wit (or spite); the fact that judges took the time to comment on reporters, and that other reporters recorded their comments, highlights the crucial role that law reporters have played in the development of the common law.

Historically, a law reporter had two functions. The first was to be a selector: to choose which cases he reported. He needed the skill to recognise which cases deserved to be reported, and which could safely be disregarded as merely reiterating received opinion.!" Even today, when technological advances have ensured that full transcripts of proceedings can easily be made, the role of selector remains important. The fact that a law reporter has chosen not to print a report of a case may well mean that a transcript of it - undoubtedly accurate though it is - cannot under normal circumstances be cited before the House of Lords or the Court of Appeal." The reporter of the nineteenth century and earlier had a similar responsibility (or indeed a greater responsibility, since he had no institutional backing) for selecting his material. But in addition to this he had another role; he routinely acted as editor of his text to an extent that would appear unacceptable today (save in the production of brief summary reports for newspapers, etc). This editing process was not merely permitted, it was expected of the reporter. If done well it would receive appropriate praise: the mid nineteenth-century reports of Ellis and Blackburn were -

, ... distinguished for the ease and success with which extraneous matter is stripped off, and the essence of the case presented. Brevity is achieved without obscurity coming as the result."!

Praise such as this assumes that the editing has been deliberate. This was not always the case; sometimes it was forced on the reporter by the circumstances in which he took his notes and prepared his reports. Sir James Burrow - a reporter, for what it is worth, of the highest reputation- writing the Advertisement to his reports in 1765, apologises for this with such exceptional candour that he is worth quoting at some length:

, ... I beg pardon of the bar, and much more of the bench, for innumerable injuries Imust have done them, as to language and argument. Ido not take my

8. That this editorial intervention has removed interesting and useful material can be seen from nn 13,23,24 and 32 below, and related text.9. See R Megarry A Second Miscellany-at-Law (London: Stevens. 1973) pp 117-133 for an excellent example.10. As an aside, one may sometimes suspect that a case has been reported as much for its entertainment value as for its legal content: another sailor's wages/consideration case,Clutterbuck v Coffin (1841/2). concerning a cook who had received 36 lashes for baking a fish for the captain's table instead of stewing it. appears in no fewer than six series of reports (Assizes (1841): Car & M 273 [174 ER 504]; In bane (1842): 3 Man & G 842 [133 ER 1379],4 Scott NR 509, 11 UCP 65. 1 DNS 479. 6 Jur 131).11. See the comments of Lord Diplock in Roberts Petroleum Ltd v Bernard Kenny Ltd[1983] 2 AC 192 at 202 and Practice Statement (Court of Appeal: Authorities) [1996]1 WLR854.

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Selector Editor


12. J Wallace The Reporters Arranged and Characterized, 4th ed. (Boston: Soule andBugbee, 4th edn, 1882) p 530 n 3, quoting the London Law Magazine and Review.


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notes in short-hand. I do not always take down the restrictions with which the speaker may qualify a proposition, to guard against its being understood universally, or in too large a sense. And therefore I caution the reader, always to imply the exceptions which ought to be made, when I report such propositions as falling from thejudges. I watch the sense, rather than the words; and therefore may often use some of my own. If I chance not fully to understand the subject, I can then only attend to the words; and must in such cases, be liable to mistakes. If I do not happen to know the authorities shortly alluded to, I must be at a loss to comprehend (so as to take down with accuracy and precision) the use made of them. Unavoidable inattention and interruptions must occasion chasms, want of connexion, and confusion in many parts: which must be patched up and connected by memory, guess or invention; or those passages totally struck out, which are so inextricably puzzled, in the original rough note, that no glimpse of their meaning remains to be seen.' 13

Burrow's self-deprecation is an extreme statement - and may, a cynic might add, be tinged with the false modesty of a reporter who strongly suspects that he has done a good job - but the circumstances he describes must surely have affected many another reporter of his own (and the following) century. We do not know whether either Campbell or Espinasse took short-hand notes; whether they did so or not, we cannot be sure that either has given us anythingapproaching a verbatim account of the case.

With no centralised system of law reporting in place until 1865 (when the Incorporated Council of Law Reporting was established), it was necessary for

barristers and judges not merely to analyse the texts before them, but to perform a critical role in respect of the reputation of the writers of those

texts. They were, in effect, assessing the authors' credibility as witnesses. A vast body of lore grew up concerning which reporters could be trusted, and

which should be treated with caution. Much of this is collected in J W Wallace's classic work The Reporters. 14 At times Wallace's book has the

tone of the many scriptural commentaries produced in the same century; on his first page he stresses that

'the CANON OF REPORTS is a subject of capital importance'. A similar tone can be detected in the case law, whether from the seventeenth or the

nineteenth century.. 'Davie's Reports ne sont canonical':" 'The 8th volume of Taunton's reports is an apocryphal authority' .16 Reporters were regularly

criticised by judges - sometimes with savage wit (Espinasse famously comes in for a share of this) - though it is as well to remember that some of this

criticism may have had an ulterior motive. Wallace warns of this: '[p ]ressed by an authority, it is

found safer to discredit a reporter than to depart from a precedent' ,n and hintsthat it may be no coincidence that a judge such as Lord Mansfield, anxious tomove the law in new directions, was so frequent a critic of reporters.

13. 1 Burr vi; as with all introductory material, this is omitted from the English Reportsreprint.14. Above n 12.15. Evans v Ascougb (1624) Latch 233 at 238,82 ER 362 at 364; reported in similar words,under the name Evans and Kiffin v Ascuithe, Palmer 457 at 462, 81 ER 1169 at 1172.


16. Hadley v Baxendale (1854) 23 U(NS)Ex 179 at 180; a comment omitted from the otherwise fuller report in 9 Ex 341, 156 ER 145, though see footnote to 9 Ex 347, 156 ER 148.17. Wallace, above n 12 p 30.



Turning to the two reporters who have given us Stilk v Myrick, one fact is immediately clear. Espinasse's reputation is lost beyond recovery. He is acknowledged to be one of the least reliable reporters. Law students learn at the start of their studies that he was 'the one who got most kicks of all' from the judges." The comments are pithy and damning: Chief Baron Pollock said, according to his great-grandson, that Espinasse 'heard only half of what went on in Court and reported the other half.' 19 Maule J - ajudge noted for his acerbic comments, who had been a respected reporter earlier in his career - is reported to have said that he did not care 'for Espinasse or any other ass' .20

The man on the receiving end of these comments, Isaac Espinasse (1758-1834), was born and educated in Ireland. A barrister of Gray's Inn, he was called to the Bar in 1787, elected a Bencher in 1809 and to the Treasurership of the Inn in 1811. He was a prolific writer, who produced a range of other texts in addition to his reports. By his account, it was his writings that gained him entry to the legal establishment: his Digest of the Law of Actions and Trials at Nisi Prius ran to four editions, and in the Preface to the fourth edition" he says that to it he owes'the situation and rank which I hold in my profession and in society', and that he has 'derived from it no small professional success'. The Digest was firstpublished in 1789; Espinasse began to publish his reports in 1796 - giving, perhaps, a hostage to Fortune when he stated in the Preface to the first volume, covering the period 1793-1796, that 'fidelity in the report can only sanction its

reception, utility onlyjustify its publication' .22 He deserves some credit for being the first published reporter to concentrate solely on Nisi Prius cases, as

opposed to the proceedingsin the central courts at WestminsterHall, though he was clearly not the only person taking notes of such decisions. Soon after

Espinasse' s reports had begun to appear, the young barrister Thomas Peake (1771-1838) published a volume of Nisi Prius cases covering the years 1790-1794.23 In Peake's volume there are already hints that Espinasse may not have been the ideal reporter (and that his weaknesses went beyond such slips of the

pen as writing 'defendant' when he meant 'plaintiff, as he does in Stilk v Myrick). Feeling the need to justify his inclusion of three cases already reported by Espinasse, Peake notes that one of these is necessary to make

sense of another case he reports, but points out that the other two 'as here reported, contain points not noticed in that Gentleman's reports of those

cases' (original emphasis)." Despite this veiled

18. See G Williams Learning the Law (London: Stevens, 11th edn, 1982) pp 35-36.19. E Haynes A Lawyer's Notebook (London: Seeker, 1932)p 43, excerpted in E HaynesThe Lawyer: a Conversation Piece (London: Eyre & Spottiswoode, 1951) p 204.20. Williams, above n 17 p 35, quoting C Biron Without Prejudice: Impressions of Life and Law (London: Faber & Faber, 1936) p 88. The writer has not been able to trace either the comments of Pollock or Maule back before the 1930s, which must cast some doubt on their authenticity. Biron (born in 1863)admits, indeed (p 10), that his 'memories cannot pretend to be more than impressionist' .21. I Espinasse Digest of the Law of Actions and Trials at Nisi Prius (London: Printed by A Strahan ... for J Butterworth, 4th edn, 1812) pp viii-ix.22. 1 Esp iv.23. It is clear from the text of Peake's Preface, which refers (iv) to 'the cases with which Mr. Espinasse has lately favoured the profession', that Espinasse was the first in

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lost beyond recovery.


the field, though the date printed at the foot of that preface, April 1795, might seem to give the contrary impression.24. Peake iv.


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criticism, Peake was anxious not to trespass on the territory to which Espinasse had laid claim: he makes it clear that, in view of Espinasse' s plan to continue reporting, he had 'not any intention of adding a single case to those contained in the present volume'. This promise was kept in a sense, though Peake's son, another Thomas, did publish a further volume from his father's notes, and with his father's permission, in 1829 - by that time Espinasse had long ceased to be a reporter. Interestingly, Thomas Peake junior has a gentle dig at Espinasse in the same way that his father had: see the notes to Parry v Collis: ' ... Of this averment no mention is made in Mr. Espinasse's report' ,25 and to Ward v Ventom."

Others were less scrupulous than Thomas Peake. By 1807 Espinasse hadpublished five volumes of reports. A young and briefless barrister, John Campbell (1779-1861) - whose supreme confidence in his own abilities was to take him to the heights of the legal profession, as Lord Chief Justice and Lord Chancellor - noted the considerable increase in Nisi Prius business (largely because of the effect of the Napoleonic Wars on trade and commerce), and decided that he could do a better job than Espinasse. This, he wrote to his brother in December 1807,27was a means of 'gaining a little notoriety' which might 'introduce me to business, and lay a foundation for my professionalsuccess'. The same letter reveals that he had entered into an agreement with the publisher Joseph Butterworth to produce reports; it records his opinion of Espinasse, and his dealings with him, with the ebullient arrogance that characterises all aspects of Campbell's career:

'I have had this plan in contemplation for some months, but had not brought matters to a settlement till about ten days ago. The most embarrassing circumstance was the field being in some measure preoccupied. A barrister yclept Espinasse has reported the cases hitherto, but, particularly of late, in a very negligent and slovenly style. I was in hopes he would have given up to me; however, he says he shall go on. 1 shall certainly beat him, for not only do I think that I can do the thing better, but Butterworth, formerly his publisher, refuses to have anything more to say to him, and has a complete command of the market, so as to be able to force my Reports into circulation. '28

Campbell published his first volume of reports (covering the years 1807 -1808) in 1809, and the second (covering 1809 - 1811 and including his report of Stilk v Myrick) in 1811. Campbell wished to be taken seriously. He had noted that the reports of Peake and Espinasse 'though sneered at, were bought and quoted';" he wanted his reports to be bought, quoted and respected. He included notes in which he discussed points oflaw, in an attempt to set himself

25. (1795) Peake Add Cas 47 at 48,170 ER 189 at 190 noteta)',26. (1797) Peake Add Cas 126 at 128-9,170 ER 217 at 218fn.27. M Hardcastle (ed) Life of John, Lord Campbell, Lord High Chancellor of Great Britain; consisting of a selection from his Autobiography, Diary and Letters, edited by his daughter, the Hon Mrs Hardcastle (London: John Murray, 1881) vol 1, p 213. The Autobiography referred to in the title of this work was never published separatelyor in full.


28. Ibid.29. Ibid, P 214.30. Ibid, P 233.



apart from the earlier reporters. As he wrote to his father in 1808, 'I wish to appear something more than a mere reporter' .30 His own description of the preparation of his reports is as instructive as Burrow's (though scarcely as modest), and shows the considerable power of the law reporter in his role as selector:

'Before each number was sent to the press I carefully revised all the cases I had collected for it, and rejected such as were inconsistent with former decisions or recognised principles. When I arrived at the end of my fourth & last volume, I had a whole drawer full of 'bad Ellenborough law' .'31

Espinasse's report of Stilk v Meyrick also appeared in 1811, in his sixth and final volume of reports. The volume was, after all, published by Butterworth. That it appeared after Campbell's second volume is apparent from the fact that Butterworth advertised the two volumes of Campbell's reports at the back of the Espinasse volume - a piece of tactlessness aggravated by the relative prices the two reporters could command; the purchaser could have two volumes of Campbell for £2 4s, or five volumes of Espinasse for £2 8s. It seems that Espinasse's volume had been long delayed: its title page states that it covers the years 1806 - 1807, but in fact it includes occasional cases up to 1810. Espinasse gives the reasons for this in his Preface, paying in the process a tribute to Campbell which is, in the circumstances, somewhat surprising:

'After having, for such a length of time, discontinued the office of Reporter, some account may be necessary why I again appear, and send the following number of Nisi Prius Reports into the world, particularly when my successor has so ably performed that task. I am not resuming the office. The following number will be found, with the exception of a few cases, to commence so far back as the beginning of the year 1806, and to fill up the interval between the conclusion of my fifth volume and the period when Mr. Campbell commenced his Reports. In the year 1807, in consequence of a severe nervous illness, I was forced to relinquish the task of reporting; and on my recovery I found myself incapable of taking notes with that correctness which was requisite to give them to the world as accurate Reports of what fell from the learned judges by whom the points were decided. I therefore relinquished every further intention of reporting generally on my former plan. From that period I have, however, with little exception, taken Notes of Cases only in which I was myself of Counsel, and for the accuracy of which I could answer.' 32

We have no further information as to the nature of the 'severe nervous illness' which prevented Espinasse from taking correct notes (though not, clearly, from appearing in court). However, it is tempting to link this to Chief Baron Pollock's comment that Espinasse 'heard only half of what went on in Court', and to conclude that Espinasse's hearing had been affected -like so many jokes, Pollock's jibe may have been funny precisely because it was at least half true.

Although Espinasse's career as a reporter was over, he continued to be an active writer. He produced five more legal texts, and, shortly before his death,

31. Ibid, P 215.32. 6 Esp v-vi.


35. Above n 33 vol 6 p 223.36. Above n 33 vol 6 p 228.

.

37. Ibid.38. Above n 33 vol 7 P 50.39. Above n 33 vol 7 P 555.40. Above n 33 vol 7 P 557.41. (1849) 13 QB 840 at 844, 116 ER 1484 at 1486.

534 Legal Studies

an entertaining series of articles on his contemporaries." Some of these are vitriolic; they prompted the biographer William Townsend to describe Espinasse as 'a rattling Irishman, more studious of repartee than reporting'P' They show that Espinasse the butt of insults was impressive at handing them out: Willes J had 'a face of smirking fatuity' ,35 Sir James Wallace 'a most unprepossessing cast of countenance, and ... manners ... equally ungracious and repulsive' ,36

Lord Kenyon was 'assuming and offensive'," and Serjeant Cockell could be so drunk that 'nonsense rolled in volumes from his lips' .38 The bulk of his spleen, though, is reserved for his leader in Stilk v Myrick, Sir Vicary Gibbs: 'sneer and ill-nature appeared to have taken settled possession of his countenance', which had 'a settled look of sarcastic malignity'; 'his laugh was an hysteric affection' ,39 and - more telling than these random insults - 'as a leader at Nisi Prius his powers were contemptible' .40

The biggest blows to Espinasse's reputation as a reporter came long after his death. In Small v Nairne Lord Denman CJ added a comment, after all the judges had spoken,whichshows not onlyhis attitudeto Espinasse,but also that the reporter was in danger of being rehabilitated by default by a new generation of barristers:

'1 am temptedto remark,for the benefit of the profession,that Espinasse's Reports, in days nearer their own time, when their want of accuracy was better known than it is now, were never quoted without doubt and hesitation; and a special reason was often given as an apology for citing that particular case. Now they are often cited as if counsel thought them of equal authority with Lord Coke's Reports."!

There is a nice irony here (though it does not help Espinasse), in that the reports of Sir Edward Coke are famous for their 'want of accuracy', for the cavalier way in which Coke interposed his own opinions and put his own words into the judges' mouths. The modem law of contract, indeed, starts with a case which is a particularly flagrant example of Coke's lack of scruple as a reporter (and that in a case in which, like Espinasse in Stilk, he appeared as counsel)."

33. I Espinasse 'My Contemporaries; from the Notebook of a Retired Barrister' Fraser's Magazine vol 6 (Aug-Dec 1832), pp 220-230,314-324,417-431; vol 7 (Jan-June 1833) pp 44-53, 178-190,555-564. After the fashion of the time these articles were published anonymously, but from internal-evidence there is no doubt that Espinasse wrote them (and was proud of them); he refers, for example (vol 7 p 48) to the Nisi Prius decisions of Lord Ellenborough 'reported partly by me, but principally by Mr. Campbell'.34. W Townsend,W (1846) Lives of Twelve Eminent Judges of the Last and of the Present Century (2 vols) (London: printed for Longman, Brown, Green and Longmans, 1846) vol 1, p 51. Despite this criticism, Townsend was happy enough to rely heavily on Espinasse when it suited him - see Lives vol 1 p 427-432 for an example.

42. See J H Baker 'New light on Slade's Case' (1971) 51 CD 213, noting (p 53) that


MS reports 'lead the reader to the irresistible conclusion that Coke's report [of Slade's Case, 4 Co Rep 91a, 92b; 76 ER 1072, 1074] is in fact a polished redaction of his own speeches for the plaintiff.



Coke, however, had the reputation and 'authority' to carry this off. Espinasse clearly did not; that Denman's comments were read and noted is shown by the fact that they were quoted verbatim some six years later by Coleridge J in Lady Wenham v Mackeniie." The final nail in the coffin of Espinasse's credibility is an often-quoted comment from Blackburn J in Redhead v Midland Railway Company." Linking Espinasse with the later Nisi Prius reporters Carrington and Payne, he states that 'neither reporter has such a character for intelligence and accuracy as to make it at all certain that the facts are correctly stated, or that the opinion of the judge was rightly understood'. Blackburn may well have recalled the comments of Lord Denman at this point: as Colin Blackburn, the respected law reporter (another, to add to Campbell and Maule, for whom the reporter's notebook became a passport to the Bench), he had reported both Small v Nairne and Lady Wenham v Mackenzie.

It is scarcely surprising that Campbell's reports have fared better thanEspinasse's. A direct attack on them would have been at best tactless while Campbell was making his steady (if slow) progress to the top of the legal profession (he became Lord Chief Justice in 1850 and Lord Chancellor in 1859,dying in office two years later). But if the circumstances of Campbell's career made it unlikely that he would be openly criticised, they may also cast doubt on some of the praise he has received. We have already seen that Blackburn J criticised Espinasse in Redhead v Midland Railway Company: In the same case he says of Campbell, 'We may depend on the accuracy of this reporter' .45

It is certainly possible to take this praise at face value: Blackburn was a formidable scholar, whosejudgments were characterised by a depth of research and analysis which few (if any) of his contemporaries could equal. But it is equally possible to be cynical about it: Blackburn's surprising appointment to the Bench (from being 'a stuff-gownsman with little or no practice, and known to fame only as a Queen's Bench reporter')" had been the first made by Lord Campbell as Chancellor. Praise from Lord Cranworth, who commented after Campbell's death that his reports 'really do, in the fewest possible words, lay down the law, very often more distinctly and more accurately than it is to be found in many lengthened reports'," is similarly open to question. Cranworth and Campbell were close associates- while Attorney General, Campbell had chosen Cranworth (then Sir Monsey Rolfe) as his Solicitor General," and Cranworth was one of the few eminent lawyers of his day whom Campbell held in high regard,"

The fact that Campbell's reputation as a reporter has remained high is, perhaps, surprising in view of the criticism that has been heaped on his other principal published works, the Lives of the Chancellors and Lives of the Chief Justices= Even his biographer Atlay - kinder to his subject than that subject

43. (1855) 5 El & BI447 at 455, 119 ER 547 at 550.44. (1867)LR2QB412at437.45. (1867) LR 2 QB 412 at 438.46. J B Atlay The Victorian Chancellors vol 2 [Lord St Leonards to Lord Herschell] (London: Smith, Elder, 1908) p 216.47. Williams v Bayley (1866) LR 1 HL 200 at 213.48. Atlay, above n 46 p 57.


49. Atlay, above n 46 p 53.50. See A W B Simpson (ed) Biographical Dictionary of the Common Law (London: Butterworths, 1984) pp 101-102 for a summary of this.


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ever was - concurs in the verdict that 'no one who has ever followed Lord Campbell to the sources of his informationwill ever trust him again' ,5J and cannot resist an acid footnote that '[o]ne of the few pieces of good fortune that can be credited to the luckless House of Stuart was Campbell's abandonment of his project to attempt the Life of Charles I' .52 Chief Baron Pollock - one among many critics, it must be said, but there is a pleasing symmetry in recording his verdict on Campbell in addition to that on Espinasse - was blunter, saying that'the truth is Campbell was neither honorable [sic] nor even honest' .53

Certainlyit is an obvious and reasonable comment here that law reporting and

biography (in which, incidentally, Campbell was happy to rely on, and quote, Espinasse's articles in Fraser's Magazine) require very different skills, and

that the product of Campbell's youth in the former should not be judged against the work of his later middle age in the latter. But even as a reporter,

and despite the eminence he attained, Campbell has not been immune to criticism, and it is criticism of a kind which brings us back to the role of the law reporter and to the way in which he might produce his text. Campbell's

jocular (and typically self-regarding) account of his drawer full of 'bad Ellenborough law' showed him to be a ruthless selector; there are hints that

he may have been equally ruthless as an editor. Maule J - who, in addition to being rude about Espinasse, as noted above, was

'contemptuous of ... [Campbell], believing him to possess a lesser intellect'>'- casts doubt on Campbell's report of Matthews v West London Water Works Company" in Overton v Freeman. His words differ from report to report, and again illustrate that even in mid-nineteenth century one can find considerable variation between reporters. The Common Bench Reports of John Scott state simply that 'the report is short and unsatisfactory: and the particular circumstancesare not detailed' .56 This criticism is expandedin the Law Journal' s version." and yet another version is given by Wallace:

'It is ... very shortly reported; and we have frequently found, in referring to the attorneys whose names are mentioned by the reporter at the end of the cases, that the real circumstances of the case explain the apparent anomaly of the decision. '58

This rings true because of an additional subtle jibe at Campbell - he had been the first reporter to include the names of attorneys in his reports, and cynics had hinted that he had done so to earn their gratitude and business. Wallace appends Maule's comment to his own verdict, which is equally damning:

'The greatest defect in these Reports is perhaps, too short statements of the case. These curt statements - as dispensing with that long-continued close intentio mentis of the ancients, which we call 'attention' - are very agreeable to a reader who is reading a book through in course, or when, referring to a particular case,

51. Atlay, above n 46 p 189, citing Dictionary of National Biography, viii, 383.52. Atlay, above n 46 p 185, n 2.53. Lord Hanworth Lord Chief Baron Pollock: a memoir (London: John Murray, 1929)p203.54. Simpson, above n 50 p 357.55. (1813) 3 Camp 403, 170 ER 1425.


56. (1852) 11 CB 867 at 872, 138 ER 717 at 719.57. 21 UCP 52 at 54.58. Wallace, above n 12 p 542 n 1.



he refers to it only for a general idea about it; but for the judge or lawyer who refers to a case in order to see how far it affords a precedent in one now before him, and where he desires to compare not only outline, but the filling in, they are unsatisfactory and dangerous.t"

One final point should be noted in relation to law reporting. It applies equally to Espinasse and to Campbell, and it helps to explain why they might have been subject to criticism. Both had chosen to report at the lower levels of the hierarchy of courts, where unreserved, impromptu judgments were the norm. Such judgments were of doubtful authorlty.s? and reporting them could be a risky business. This is neatly illustrated by an incident in Doe d James v Staunton, as reported by the indefatigable Joseph Chitty the elder.61

Counsel for the plaintiff pressed Bayley J with an earlier decision of his, reported by Starkie (then producing Nisi Prius reports). Bayley J interrupted him:

'Very likely one's first thoughts at Nisi Prius may be wrong, and I am extremely sorry that they are ever reported, and still more so that they are ever mentioned again, at least so far as my Nisi Prius decisions are concerned, because I think they are entitled to very little weight. What is said by a judge upon a trial is merely the first impression of his mind on a point coming suddenly before him, and which he has had no opportunity of considering beforehand.t'?

In the light of the way that certain names seem to keep cropping up, it will be no surprise that the barrister interrupted by this candid outburst was John Campbell. Everyone in court must have known that he had been a Nisi Prius reporter until three years earlier. IfBayley's comments embarrassed him, there is no hint of this in the report.

3 WHAT IS STILK V MYRICK ABOUT?

If the previous section has seemed somewhat wide-ranging, and remote from Stilk, it has merely sought to make the point that we should not be surprised that reports can differ. Each reporter was simply giving his impression of the case. There is no special significance in the fact that Campbell's version of the judgment is roughly twice the length of Espinasse's. Certainly, this does not of itself make Campbell right and Espinasse wrong; it simply shows that each approached his task as editor in a different way. Nor can any particular conclusions be drawn from the style of the reports. Each is linguistically coherent, and each has features which make it plausible as an account of an extempore judgment - the interjected 'I say' of Campbell's second sentence, for example, or the neat rhetorical questions with which Espinasse ends his version. But again, this is just the law reporter doing his job as editor.

59. Ibid.60. See F Pollock A First Book of Jurisprudence (London: Macmillan, 6th edn, 1929)p 347, referring to a commentbyBestJ in Parton v Williams (1820) 3 B & AId 330at341,106 ER 684 at 688.61. (1819) 1 Chitty's Practice Cases 118.


62. (1819) 1 Chitty's Practice Cases 118 at 120-121; the exchange is omitted from the reportofthecasein2B &Ald371, 106ER402.


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Bearing in mind that both texts must be treated with caution, it is interesting to compare the two methodically. The surprise is not how different, but how similar they are. The best way to do this is to take each sentence of Espinasse's report, as the less full version, and to find its equivalent in Campbell. To the sentence which refers to Harris v Watson there is, it appears, no equivalent in Campbell; this is the crux of the case, and to this we will return. But, except for this sentence, there is nothing in Espinasse that does not have its parallel in Campbell. Espinasse's following sentence, beginning 'When the defendant .. .' makes the same point as the sentence in Campbell which begins 'Before they sailed from London ... '. The next sentence, 'Here the voyage was to the Baltick .. .', corresponds to the first part of Campbell's 'If they had been at liberty to quit the vessel at Cronstadt ... ', though Campbell continues with a point omitted by Espinasse, concerning what might have happened had the master 'capriciously discharged the two men who were wanting'. This is, of course, not the only point made by Campbell but ignored by Espinasse - the latter's omission of any reference to consideration is another point that must be considered in more detail later. Espinasse's two closing questions, beginning 'If any part of the crew had died .. .' and 'If that accident would have left them liable .. .' are the equivalent of Campbell's single sentence beginning 'But the desertion of the crew .. .'. Leaving aside for the moment the problem references to Harris v Watson, each report makes sense as it stands, but Espinasse has produced a report which supports a 'public policy' analysis, and Campbell a report which culminates in an application of the doctrine of consideration, by using identical reasoning. A literary critic would be struck by the consonance between the two reports, not the difference. Perhaps it is in the nature of lawyers - or at least of those used to an adversarial system - to assume that if two texts are not identical, then they must be diametrically opposed; that one must be wrong, one right.

What about the references to Harris v Watson? Surely at this point there is a direct conflict between the two reports? It is suggested - tentatively - that it may be possible to reconcile even these two sentences. This can only be speculation, but it is surely as valid to suggest an answer to the question 'what did the judge mean?' when we have two accounts (or, at least, impressions) of what he said, than it is to ask and answer the question 'what really happened in Cronstadt?', which is what judges and commentators have done when they suppose Stilk v Myrick to have been a case of coercion. Could Espinasse's statement that Ellenborough 'recognised the principle of the case of Harris v Watson as founded on just and proper policy' be no more than his equivalent of Campbell's 'I think Harris v Watson was rightly decided'? Or, to put it another way and to paraphrase the combined text of both reporters, could Ellenborough have been suggesting that Lord Kenyon's decision in the earlier case was indeed based on a just and proper policy, but not on the policy which is stated in the report of Harris v Watson? Such a construction would have the advantage of making perfect sense of Espinasse's report, in which the apparent approval of Harris v Watson otherwise looks rather odd, since there is no subsequent reference to any of the reasoning used in the case. Espinasse, on such an analysis, makes Ellenborough give an alternative policy-based reason why he approves of the decision in Harris v Watson. This still does not, of course, explain Espinasse's omission of the doctrine of consideration, but that issue must wait for the next section of this article.



It should be noted here that, even by Campbell's account, Ellenborough does not say that his predecessor was wrong in Harris v Watson. Instead, he uses the time-honoured technique, noted by Wallace in the previous section, of shooting the messenger who brought bad news: it is the 'ground of public policy, upon which Lord Kenyon is stated to have proceeded' (emphasis added) with which he finds fault.

It is worth looking, at this point, at the full text of Lord Kenyon's judgmentin Harris v Watson, as reported by Thomas Peake:

'If this action was to be supported, it would materially affect the navigation of this kingdom. It has been long since determined, that when the freight is lost, the wages are also lost. This rule was founded on a principle of policy, for if sailors were in all events to have their wages, and in times of danger entitled to insist on an extra charge on such a promise as this, they would in many cases suffer a ship to sink, unless the captain would pay any extravagant demand they might think proper to make.'63

There are weaknesses of logic and analysis here to which Ellenborough might have taken exception. Any suggestion of actual coercion by the sailors was not warranted by the facts: the plaintiff had proved that the master 'to induce the seamen to exert themselves, made the promise' of extra wages. More important than this, though, is Kenyon's explanation for the rule that 'when the freight is lost, the wages are also lost' - often expressed in the maxim that 'freight is the mother of wages'. The rule itself is stated accurately - subject to certain exceptions, only if a ship came safely to port would its crew be paid - but Kenyon's explanation of it as based on the need to prevent the possibility of coercion is overly narrow. Aside from the obvious economic explanation for the rule, that it was not in the interests of commerce for ship-ownersto be required to pay wages when they had made a loss on the voyage, it was clearly aimed at a more common scenario than the making of 'extravagant demands'. The point of the rule is very much the point made in both reports of Stilk v Myrick, that sailors must do all in their power to stop their ship being lost or captured; only if they were successful in this would they receive their wages. Its prime point is to encourage them not to neglect their duties, or abandon ship, in times of difficulty; only incidentally and indirectly is it aimed at the extreme situation which Lord Kenyon mentions, where they both neglect their duties (or threaten to), and in addition make extravagant demands for extra money. The policy articulated by Ellenborough in Stilk v Myrick, whichever reporter one reads, acknowledges this: in Campbell's words, that sailors must do 'all that they could under all the emergencies of the voyage', or, in Espinasse's version, that a sailor must 'do all the work his situation called upon him to do'.

It is not surprising that Kenyon and Ellenborough should have expressed their views differently, or that the latter should have done so with more precision and logic. The risks of relying on Campbell as a biographer have been noticed in the previous section of this article, but however careless his approach to facts may have been, he is recognised as an astute judge of the legal powers of his contemporaries and near-contemporaries. He says of Kenyon as a barrister that'although he knew with intuitive quickness what was the right conclusion on


63. (1791)Peake 102at 103,170ER 94.


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any legal question, he had not the art of showing how according to the rules of dialectics this conclusion should be reached'," As ajudge, Campbell adds, 'he was very far from being a scientific jurist; he could very imperfectly explain the rule of law by which he was governed, and when in private he was asked for his reasons, he would answer, "I vow to God that it is SO".'65 Harris v Watson may be just such a case of instinctive reasoning, but the spectre of coercion which Kenyon raised in the case - and of which Ellenborough made no mention in Stilk v Myrick- has cast a long shadow. Ellenborough himself received generally favourable treatment from Campbell, who notes that he was 'particularly famous for mercantile law', and that under him '[a] more liberal and scientific mode ... was restored of treating commercial questions' .66

It is surely a reasonable suggestion that Ellenborough's 'scientific mode' of treating commercial questions might lead him to improve on the somewhat inappropriate, even inept, words of Kenyon. Such an interpretation applies to either reporter's account of the case, but it does not explain why Campbell's version should take a final step to the doctrine of consideration, while Espinasse sticks with public policy. Any suggested answer to this question must involve an examination of the policy considerations that might affect a case involving merchant seamen.

4 SAILORS AND PUBLIC POLICY

The simplest explanation of Espinasse' s omission is, of course, that it is no more than another example of his weakness as a reporter - we have seen already that both the Peakes drew attention to cases in which Espinasse had missed the point, or at any rate had missed a point. It is certainly easy enough to believe this - easier than it is to believe that Campbellfabricatedhis references to consideration, a view which has never been explored at length, but which must be implicit in the argument of any commentator who without further analysis prefers Espinasse's account. But it may be that Espinasse simply felt that the final step from policy to theory was superfluous, and that the case made perfect sense without it.

There is certainly plenty of evidence to show that sailors were treated in many respects as a class apart, as a group of workers to which particular rules applied, and for whom exceptions to established rules might be made. Much of the body of rules governing them was concerned as much with giving them extra protection as with keeping them in their place. Probably the most striking development here - though the one that is, it must be admitted, the furthest removed from Stilk v Myrick - is the protection that they were given from oppressive bargains." It was acknowledged by both Parliament and the courts

64. J Campbell Lives of the Chief Justices of England vol 3 [Lord Kenyon to LordTenterden] (London: John Murray, 1857) p 8.65. Ibid P 83.66. Ibid pp 154, 157.67. On this see P S Ariyah The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979) pp 171-172, describing this development as 'one of the forgotten episodes oflegal history'.


/



that sailors were liable to be preyed upon by the unscrupulous, particularly when they became entitled to salvage or prize money as a result of helping to save another vessel or to capture an enemy ship. An act of 174768 regulated contracts for the sale of prize money entered into before 1 June 1747 (s 3, limiting purchasers to 'the full consideration-money ... they really and bonafide gave for the same' , plus interest), declared future contracts for the sale of prize money void (ss 4-5), and imposed stringent additional formality requirements on the execution ofletters of attorney (another method of transferring prize rights) by sailors (s 6). The main aim of the act was to benefit sailors in the Navy, but it also extended to the crew of privateers - and, as will be shown, it is not always possible when considering policy to distinguish between merchant and Naval seamen. A later statute of 1786,69intended to tighten up the provisions of the1747 act, refers in its preamble to the 'great frauds and abuses ... daily practised in the receiving of seamen's wages'.

The courts took a similarly protective approach in such matters. Detailed consideration of the case law is beyond the scope of this article, but a few brief extracts will capture the tone. Inthe course of Chancery proceedings concerningtwo sailors who had sold their shares in prize money (worth, it later turned out, about £600 each) for £150 and £130, Lord Hardwicke commented:

'There cannot be a more useful set of men to the public, nor a more unthinking sort of people, than common sailors, who, as soon as ever they get on shore, for the sake of a little immediate pleasure are willing to part with their right to any thing in expectation, for a very little in possession; and this is the sense of the Legislature, both from the Stat. 1 Geo. 2 and the 20 Geo. 2, c.24, whereby they have taken notice of them as a set of men not fit to take care of themselves, and therefore have taken care of them against themselves. I do not say that every contract with a sailor is void, or ought to be set aside, but every contract with them must be fair."?

Insubsequentproceedings againstthe same defendantsin the Exchequer,the court said that they had 'waited like harpies and land-sharks to draw this poor sailor into this agreement'." Sir Thomas Clarke MR commented, in How v Weldon and Edwards, that sailors had been considered by the courts and Parliament 'as a race of men loose and unthinking, who will almost for nothing part with what they have acquired perhaps with their blood'." The readiness of the courts to intervene in such cases was exceptional. It gave sailors privileged treatment similar to that afforded to another protected category from the opposite end of the social spectrum, expectant heirs. Sir Thomas Clarke admitted the parallel: he prefaced the remark quoted above with the comment that '[i]t is reasonable to consider the vendor in at least as favourable a light as a young heir'. Sailors, like the rich, were different. Even Lord Kenyon, in another case on the protective legislation, could refer to 'those most useful and deserving bodies of men, the seamen and marines of this country'."

68. 21 Geo n, c 24.69. 26 Geo ill, c 63.70. Baldwin and Alder v Rochford (1748) 1 Wils KB 229 at 230, 95 ER 589 at 590.71. Taylourv Rochfort (1751) 2 Yes Sen 281 at 283,28 ER 182 at 183.72. (1754) 2 Yes Sen 516 at 518,28 ER 330 at 331.


73. Turtle v Hartwell (1795) 6 TR426 at 429, 101 ER 630 at 631.


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Another area in which merchant seamen received different - indeed unique- treatment was in their contracts of service. Here again there was statutory regulation, though in this case it was designed both to protect them and to prevent them from misbehaving. An Act of 172974 provided an elaborate regulatory framework. The preamble to the statute is entirely negative in tone towards seamen, and lists examples of bad behaviour which might threaten commerce. These include, desertion, neglect of duty, and - intriguingly - the statement that'very often, when ships and vessels come to be cleared out, in order to proceed on their respective voyages, the seamen refuse to proceed with them, without coming to new agreements for increasing their wages'. But despite the negative tone of this preamble, the text of the statute strikes a balance between threatening and protecting the marine work-force. By s 1, all masters of trading ships must reach an agreement before the voyage with the seamen, made in writing, which specifies the voyage and the wages. This written agreement must be signed by each sailor within three days of boarding the ship, and 'shall be conclusive and binding to all the parties, for and during the time or times so agreed or contracted for, to all intents and purposes, any custom or usage to the contrary in any wise notwithstanding' (s 2). Failure to comply with the requirements did not make a contract void, but rendered the master liable to a £5 fine for each sailor whose contract had not been appropriately made (s 1). When there were court proceedings to recover wages, it was to be the master's or owners' duty to produce the written agreement, and the seamen were not to fail in their action simply because this had not been done (s 8). Masters who failed to pay their crew on time (ie within 30 days of return to this country) were to be liable to make each seaman an additional payment of £1 (s 7). These measures all, to a greater or lesser extent, protected seamen; the other side of the coin was that they were to forfeit their wages absolutely in cases of desertion (s 3), and were to be subject to lesser penalties for absenteeism (s 5) orleaving the ship before discharge (s 6). When this act and others involving merchant seamen were consolidated and amended in 183575 there was a more overtly paternal tone: the preamble to this act refers to the need to give merchant seamen 'all due Encouragement and Protection'.

The legislation governing seamen's contracts of service would clearly protect

them to an extent from oppressive conduct by masters, by ensuring that the sailors received their full wages as specified in the ship's articles, but it could also cut the other way. A sailor who sought to recover more than the sum specified would fail because of the statute. This happened in White v Wilson,76in which a chief mate claimed that the master had promised him, inaccordance with usual practice on slave ships, 'the average price of one negro slave' in addition to the wages specified in the articles. Similarly, in Elsworth v Woolmore77 the executor of a deceased sail-maker failed to recover additional wages which were claimed to be in accordance with the settled usage of the East India Company, and which had been promised to the sail-maker by the ship's husband (the owners' agent in port), but which had not been included in the articles. It is not at all clear

74. 2 Geo II, c 36, extended on a number of occasions, and made perpetual in 1761;2 Geo III, c 31.75. 5 & 6 Will N,c 19.76. (1800) 2 Bos & Pu1116, 126 ER 1188.


77. (1803) 5 Esp 84,170 ER 746.



why Stilk v Myrick was not decided on a similar basis - it appears from both reports of the case that Stilk had signed the ship's articles stating that his pay was to be £5 a month. According to Espinasse's version, the defendant's counsel did object 'that any engagement by the master for a larger sum than was stipulated for by the articles was void' ,78 which may be an indirect reference to the statute, but there is no express reference to it, and no further mention of the articles. The only suggestion that can be made here is that there may have been either some practical reason why the articles could not be produced (eg that they were missing, or that they had been improperly executed), or some procedural reason, not apparent from either report of the case, why defence counsel could not rely on them. This cannot be reporter's error: Espinasse and Campbell were well aware of the statutory provisions. Espinasse had been junior counsel for the plaintiff in Elsworth v Woolmore, and had reported the case. Campbell's report of Stilk v Myrick follows his report of Bowman v Manzelmanl? a case on s 8 of the 1729 statute (production of articles); Espinasse was again junior counsel for the plaintiff. Campbell also appends as a footnote to Stilk v Myrick yet another case (which he refers to as Anon. coram Lord Ellenborough, at Guildhall ...18068°)in which Ellenborough had to resolve an apparent conflict between the rule that 'freight is the mother of wages' and s 13 of the 1729 Act; the rule prevailed. It appears from the full report of this last case given by Espinasse (and here is a clear instance where Espinasse is the better reporter) as Dunkley v Bulwer and Lloyd." that he was, yet again, junior counsel for the plaintiff. Had the statute been referred to in court in Stilk v Myrick, one or other reporter would surely have mentioned it.

A particular difficulty when attempting to assess the policy considerations surrounding seamen's contracts is that it appears that the common law courts were entertaining actions which would traditionally have been decided, in accordance with mercantile usage, by the Court of Admiralty. This court was famously protective of sailors: for a good example from the era of Harris v Watson and Stilk v Myrick, see Robinett v The Ship 'Exeter', in which the court noted that 'common mariners ... from their ignorance and helpless state [are] placed in a peculiar manner under the tender protection of the court' .82

The court

78. 6 Esp 129 at 130,170 ER 851.79. (1809) 2 Camp 315,170 ER 1168.SO. 2 Camp 320, 170ER 1169n. GilmoresuggeststhatCampbelladdedhisnotetoStilkv Myrick to indicate that the 1806 case was in some way 'scandalous', and that 'theuninteresting truth may conceivably be that Lord Ellenborough was an owner's man allthe way' (G Gilmore The Death of Contract (Columbus: Ohio State University Press,1974) p 115 n 57. If this were the truth it would not be uninteresting, but there is noevidence to support Gilmore's suggestion. Cases such as Bowman v Manzelman (1809)2 Camp 315, 170 ER 1168 would seem to give exactly the opposite impression of Ellenborough's attitude, and the full text of the 1806 case given by Espinasse (below n 81), to which Gilmore does not refer, shows that Ellenborough' s judgment was entirely logical. Had Campbell wished to accuse Ellenborough of partiality he had ample opportunity when he wrote his biography; he did not do so. If anyone was 'an owner's man' it was not Ellenborough but Campbell - see below nn 113-118 and related text. SI. (1806) 6 Esp 86,170 ER 838.


S2. (1799) 2 C Rob 261, 165 ER 309.


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in this case also showed a clear awareness of the pressures of life at sea, and permitted normal standards of behaviour to be varied as a consequence; they noted both that 'in a mode of life peculiarly exposed to severe peril and exertion... indulgence and refreshment is naturally sought by such persons in grosser pleasures of that kind' (ie drink; it appeared that the plaintiff had got drunk onChristmas Day), and that the pressures could lead to 'strong expressions and violent demeanour' .83 Similarly in The 'Beaver'P' a suit for wages by a sailor who 'had infirmities about him' and who had been put ashore in the course of the voyage, an Admiralty judge could refer to him as 'the poor man' , and to the master's action as 'a great violation of common tenderness and humanity'. 85 Even when the court felt unable to assist - as in The 'Friends ',86 refusing to let a sailor who had been captured and taken as a prisoner to France after two days at sea recover his wages - they could suggest that others might, noting that 'the misfortune of his captivity may well entitle him to the kind consideration of his owner' .87

The common law courts seem to have been anxious not to overturn established commercial usage or the practice of the Court of Admiralty. As early as 1705 we find Holt CJ agreeing that a sailor, who claimed wages when he had been impressed after his ship had been taken by the French and ransomed, could recover if he could prove that this was indeed, as counsel claimed, 'the usage among merchants';in the event he could not produce this proof," Another notable instance is Cutter v Powell,89 in which the administratrix of a sailor who had died towards the end of a voyage famously failed to recover on a quantum meruit for a proportion of his wages." Lord Kenyon began his judgment with these words:

'Ishould be extremely sorry that in the decision of this case we should determine against what has been the received opinion in the mercantile world on contracts of this kind, because it is of great importance that the laws by which the contracts of so useful a body of men as the sailors are supposed to be guided should not be overturned.'?'

The air of uncertainty which permeates the judgments in Cutter v Powell- and which must make it one of the least likely 'leading cases' ever - shows how anxious the judges were not to overturn established commercial practice. The court had deferred judgment so that inquiries might be made in the commercial world about the particular sort of agreement that Cutter had made - Grose J states that he had 'inquired into the practice of the merchants in the city'92 - but still only felt able to give judgment for the defendant 'unless some other information relative to usage in cases of this kind should be laid before the Court before the

83. 2 C Rob 261 at 264-265,165 ER309 at 310-311.84. (1800) 3 C Rob 92,165 ER 397.85. 3 C Rob 92 at 93, 165 ER 397 at 398.86. (1801) 4 C Rob 143, 165 ER 565.87. 4 C Rob 143 at 145, 165 ER 565 at 566.88. Chandlery Meade, reported in the text of Wiggins vIngleton (1705) 2 Ld Raym 1211,92ER300.89. (1795) 6 TR 320, 101 ER 573.90. For a full analysis of this case, see S J Stoljar 'The great case of Cutter v Powell'(1956) 34 Can Bar Rev 288.91. 6 TR 320 at 324, 101 ER 573 at 575.92. 6 TR 320 at 325, 101 ER 573 at 576.



end of this term' ;93 this was not done. Inthe event, the court reached a decision which was expressly based on the specific form of the agreement (a promissory note to pay a lump sum ten days after arrival), and was not intended to provide a universal rule for sailors' contracts, still less for contracts of service in general (in which it was accepted that recovery on a quantum meruit would have been possible). There is also express reference to the need to follow the usage of the Court of Admiralty - and an inquiry of this court as to its practice - in another sailor's wages cases, Chandler v Grieves.9-1

The special treatment given to merchant seamen is an obvious reflection of the paramount importance of international trade to the nation's wealth. As the1729 Act95 had stated in its preamble, 'the welfare and riches of this Kingdom greatly depend on the trade and navigation thereof ... upon which great numbers of the artificers and manufacturers livelihoods wholly depend'. But there was another point to consider, one which had a special relevance in time of war at sea. The defence of the country also depended indirectly on its merchant seamen. As Lewis points out, with only a small standing Navy the government was obliged in time of war to conscript merchant seamen to man its warships, generally by means of the press-gangs: 'the Merchant Seaman and what we now call the Naval Rating were, in the eighteenth century, one and the same person' .96

A subsidiary point here shows why it might be difficult to get sailors to embark on the return leg of their voyage, and why it was of crucial importance to do so. Most of the unwilling recruits to the Royal Navy would have been found by press-officers boarding merchant ships, but this could only be done when a ship was inward-bound." As Lewis also notes, merchant seamen's wages were liable to rise dramatically in time of war." Those who deserted at Cronstadt may have had no trouble making up for the wages they had lost. The importance of the merchant seaman to national security is just one more factor to explain his difference, and to show why such a complex web of rules (whether statutory rules, mercantile custom, Admiralty practice or common law) needed to be woven around him."

93. 6 TR 320 at 327,101 ER 573 at 577.94. (1792) 2 H B1606, 126 ER 730 (appended to the report of Gienar v Meyer (1796)2 H Bl603, 126 ER 728).95. 2 Geo II, c 36.96. M Lewis A Social History of the Navy 1793-1815 (London: George Allen & Unwin,1960) pp 98-99.97. Ibid, P 102.98. Ibid, pp 100-101, pointing to the irony that the merchant seaman was most likely tobe impressed into the Navy at exactly the time when he could command the highest wages outside it.99. It is tempting also to link these factors to the presence of the Attorney General ascounsel for a common sailor, both in this case and in Bowman v Manzelman (1809)2 Camp 315, 170 ER 1168, but this can only be speculation. At this period the AttorneyGeneral was permitted to take private clients in addition to his official duties. Gibbs seemsto have taken full advantage of this right; as an example, he appears in no fewer than85 cases in the second volume of Campbell's Reports alone, and there is no obvious common factor to these cases. This is certainly a tribute to the Attorney General's


energy; this was exactly the time when Gibbs, in his official capacity, was waging his notorious war on the press: see W S Holdsworth History of English Law (London: Methuen and Sweet & Maxwell, 1952) vol 13 pp 536-537.


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There is a fascinating side light on the extent of the duty which the law could impose on sailors - and on the perils of sea travel- in the case of Newman v Walters.loo Here the plaintiff (who had previously been a captain in the merchant service) was a passenger on a ship which got into difficulties on Chichester Shoals. The captain and three of the crew promptly escaped in the ship's pinnace. The pilot was drunk. The crew asked the plaintiff to take charge; he did so, and brought the ship safely to port. When he sought to recover the compensation he had been promised by the owners, it was argued that he had only been doing his duty as a passenger when he saved the ship. Counsel for the owners argued that 'in cases of extreme peril it is the duty of every person on board to assist in saving the ship' .101 The court agreed that a passenger did indeed have duties - Lord Alvanley said that in time of danger 'he must do works of necessity for the preservation of the lives of all on board', Heath J that 'if indeed the ship be attacked he must defend it' 102 - but permitted the plaintiff to recover because by any standards he had gone beyond those duties. A case such as this would certainly make it hard, if not impossible, to argue that a sailor could exceed his duty in times of danger.

Any decision such as Stilk v Myrick which defined the duties of merchantseamen, and stated that they were to serve for their original pay during all the emergencies of the voyage, must be viewed in the context of this web of rules. This is true whether the decision leads on to a question of theory, such as the doctrine of consideration, or whether it remains at the general level of policy concerns. As noted earlier, Espinasse may simply have felt that it was unnecessary to include the references to consideration. His other writings indicate that he preferred to remain at a practical- or a procedural-level than to venture into legal theory. In the 1793edition of his Digest (little more, it must be said, than an expanded version of Buller's Nisi Prius), he devotes the first 171 pages to the action of assumpsit, but only on p 94 do we find the statement that 'if there is no consideration at all this action will not lie, for ex nudo pacto non oritur actio' .103 He seems, indeed to have considered neither Harris v Watsonnor Stilk v Myrick especiallysignificant(or is this merely another example of carelessness?): he makes no reference to Harris v Watson in the 1793 edition,'?' and no reference to either Harris v Watson or to Stilk v Myrick in the 1812edition. It is interesting to compare this with the treatment given to the cases by William Selwyn (1775-1855), who also published a work for practitioners on the law of Nisi Prius in 1812. The doctrine of consideration appears at the start of his account of the action of assumpsit, and both Stilk v Myrick (in Campbell's version) and Harris v Watson are used to illustrate the statement that 'mere performance of an act, which the party was by law bound to perform, is not a sufficient consideration' .105 Espinasse and Selwyn may

100. (1804) 3 Bos & Pu1612, 127 ER 330.101.3 Bos & Pul612 at 615, 127 ER 330 at 331-332.102. 3 Bos & Pul612 at 615-616, 127 ER 330 at 332.103. I Espinasse Digest of the Law of Actions and Trials at Nisi Prius (London: Printedfor T Cadell ... and Whieldon and Butterworth, 2nd edn, 1793) p 94.104. Despite a section 'In the case of Seamens [sic] Wages' on pp 113-114.105. W SelwynAn Abridgment of the Law of Nisi Prius (London:Printed for W Clarke andSons ... andJ Cooke,3rd edn, 1812)pp 44, 46. Selwynhad not mentionedHarris v Watsonin the 1808edition of his Abridgment (London:Printed by A Strahan ... for W Reed).



represent different generations of legal thought here, with Espinasse out of step with the growing tendency to analyse contract law in theoretical terms.!" Equally, Campbell (or Ellenborough; we cannot, of course, be sure whose are the words 'without looking to the policy of this agreement' in the final sentence of Campbell's version) may have been too eager to seek a theoreticaljustification for a decision in such a complex and sensitive area. Later writers took a similar approach to Selwyn. Both Joseph Chitty (the elder) and his son, also Joseph, refer to Harris v Watson in a manner which makes it clear that they approached the case through Campbell's account of Stilk v Myrick: it illustrates the point that '[a] promise to a party in consideration of his doing voluntarily what he was legally bound to do ... is not binding, the considerationbeing insufficient' 107 and is an example of a nudum pactum. 108 In the standard work on shipping law at this period, it is Campbell's account alone that is cited, and quoted, with the comment that 'the Chief Justice, in his own manly and dignified manner, decided the case upon the general ground' .109

Despite the general acceptance in the later nineteenth century of Campbell'sversion of the judgment in Stilk v Myrick, it is still possible to find occasional references to public policy as the basis for cases involving sailors. In Scotson v Pegg, for example, Martin B. interrupted counsel to make this point, though the reports differ as to who had the last word. In Hurlstone and Norman's report.!'? Martin corrects counsel who says that a captain's promise to pay more during a storm at sea is void for want of consideration; in the Law Times version,IIIMartin is himself corrected by counsel, who says that want of consideration is 'the better reason'. Similarly, in Foakes v Beer,112counsel for the appellant could argue that 'the cases about seamen's wages have always been based on questions of public policy', but was able to cite only Harris v Watson in support of this.

The most intriguing reference to public policy in connection with Stilk v Myrick is a statement in Harris v Carter.t" This again involved a captain who, after desertions, had promised the remainder of his crew extra wages. One of the crew sued the owners for the extra wages promised. He failed in his action, and the reason is given as absence of consideration. But the Chief Justice went on to say:

'I cannot altogether agree with Lord Ellenborough, in Stilk v Myrick ... , in discarding the ground of public policy on which Lord Kenyon relied in Harris v Watson ... ; for I think it would be most mischievous to commerce, if it were

106. On this developmentgenerally,see A W B Simpson 'Innovation innineteenthcentury contract law' (1975) 91 LQR 247.107. J Chitty (the elder) Treatise on the laws of commerce and manufactures (4 vols) (London: Henry Butterworth, 1820-24) vol 3, p 66.108. J Chitty (junior) Practical treatise on the law of contracts not under seal (London: S Sweet, 2nd edn, 1834). Neither father (above n 107) nor son refers expressly to Stilk vMyrick.109. C AbbottA treatise of the law relative to merchant ships and seamen by J H Abbott(London: Joseph Butterworth, 5th edn, 1827) p 441.110. (1861) 6 H & N 295 at 299, 158 ER 121.111.3 LT753.


112. (1884) 9 App Cas 605 at 609.113. (1854) 3 E & B 559, 118 ER 1251.


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supposed that captainshad power, under such circumstances,to bind their owners by a promise to pay more than was agreed for.'!"

It is hard to see exactly what this comment means. It appears to relate to an argument that had been advanced that the captain had, in fact, discharged at least one of the seamen who were alleged to have deserted. Counsel had argued that this was covered by Ellenborough' s statement in Campbell's version of Stilkv Myrick that 'if the captain had capriciously discharged the two men who were wanting, the others might not have been compellable to take the whole duty upon themselves,and their agreeing to do so might have been a sufficient consideration for an advance of wages'. The Chief Justice was clearly concerned that there might be such a case, in which a master had made a promise which was supported by consideration (for example, because he had 'capriciously discharged' some of his crew), but where there were policy reasons why the promise, though a valid contract between master and sailor, should not be held to bind the owners.IIS This seemsto have nothingat all to do with Kenyon's reasoninginHarris v Watson, which (like Stilk v Myrick) was an action against the master, not the owners, and in which the binding effect of the promise on the latter could not have been an issue. Certainly, the comment in Harris v Carter cannot be a revival of a policy argument based on coercion, for in a case of coercion, given the approach the ChiefJ ustice takes to Stilk v Myrick, there would have been no consideration, and the promise would have been unenforceable against either master or owners. In any event, there was no suggestion of coercion on the facts of Harris v Carter.

Do the Chief Justice's comments in Harris v Carter challenge the validity ofJohn Campbell's report of Stilk v Myrick? This seems highly unlikely. Who was the Chief Justice in question? John Campbell. It is another little-noticed irony that he was also one of thejudges in Hartley v Ponsonby, 116 a case in which sailors were allowed to recover (against the master) on a promise of extra wages after desertions, because so many of the crew had deserted that it was a danger to the lives of the remainder for them to proceed with the voyage. Campbell does not expressly refer to public policy in this case, though another judge, Crompton J, does SO.117 Hartley v Ponsonby may be Campbell's suggestedanswer to the problem he perceived in Harris v Carter, that only if there were so few crew left (whether because of desertion or because the captain had discharged them) that there would be a danger to life would the remainder be permitted to renegotiate their contracts. He is careful to point out in Hartleyv Ponsonby that 'In Harris v Carter there was no such risk' .I1S If this suggestionis correct, it follows that Hartley v Ponsonby, generally perceived as a case in

114. 3 E & B 559 at 562, 118 ER 1251 at 1253. The case is also reported in the Law Journal Reports (below n 115) and the Weekly Reporter; the report in the latter runs the two arguments together, ending with the sentence 'In the present case there was no valid consideration, and it would be most mischievous to the commerce and public policy of this country if such an opinion could be enforced' (2 WR 409).115. That 'under such circumstances' means the circumstances of Harris v Carter, notof the earlier cases, is apparent from the report in 23 LJQB 295 at 296, where the phrase used is 'in cases like the present'.116. (1857) 7 E & B 872, 119 ER 1471.117.7 E & B 872 at 879, 119 ER 1471 at 1473.


118.7 E & B 872 at 878,119 ER 1471 at 1473.



which the principle of Salk v Myrick was relaxed by the introduction of an exception, may in fact be the more restrictive of the two cases. Ellenborough might have permitted Stilk to recover if the captain had discharged the two

deserters; Campbell would not have done so, for it would clearly have been safe to continue with the voyage. Hartley v Ponsonby seems also to be another (late) example of a case in which the common law was led by the practice of

the Court of Admiralty: see the comments of Dr Lushington in The 'Araminta',119 expressly following Stilk v Myrick but suggesting this exception to it. Dr Lushington's judgment is remarkable as one of the few cases where there is any extended discussion of the issue of coercion. This is yet another case in which desertion had reduced the ship's company; here the deserters

had left the ship to dig for gold in Australia (so, for a time, had the master and the entire crew, but the owners accepted a share of the gold as compensation

for this). Dr Lushington recognised- and his words have a modem ring to them - that the master may well have been under indirect pressure, but he does not explore the implications of this, preferring instead to take refuge in the orthodox view:

' ... [T]he master voluntarily distributed the forfeited wages among the crew ... I have used the expression voluntarily, because I think the effect of the evidence is, that the crew exercised no compulsion towards him, though, perhaps, in another sense of the word, such payment was not voluntary, and the more apt expression may be, and the one nearest the truth, that he was compelled by circumstancesto make that payment; however ... I strongly incline to the opinion that if this were a contract for any reward beyond the wages stipulated for in the mariners' contract, it would not matter whether the contract was compulsory or voluntary. '120

Returning to Campbell's comments on public policy in Harris v Carter, the likeliest explanation is that he was in some way confusing Harris v Watson,Stilk v Myrick and the earlier case of Yates v Hall,121 in which the problem he envisaged in Harris v Carter had in fact occurred. A seaman had been promised his wages by his master after his ship had been captured, if he agreed to be a hostage to secure payment of ransom. He agreed to do so. The owners elected to abandon the ship, and the unfortunate hostage found himself in captivity for almost four years. The majority of the court held that the sailor could recover against the owners, but Buller J, in a powerful dissenting judgment, drew the distinction which Campbell seems to be making in Harris v Carter: the master's promise may well have given rise to a valid contract- sailors were Ilotunder an obligation to agree to be held hostage - but this contract should not be allowed to bind the owners. Campbell had referred to Yates v Hall in his footnote to Stilk v Myrick.122

It is ironic that the one judge who could have solved some of the problems withStilk v Myrick seems instead to have made matters worse.

119. (1854) 1 Sp Ecc & Ad 224,164 ER 130.120. 1 Sp Ecc & Ad 224 at 229, 164 ER 130 at 133. There is an earlier suggestion that the master in Stilk v Myrick may have been similarly 'compelled by circumstances' in Abbott (above n 109) p 441: ' ... if the master had not been apprehensive of further desertion, he would not have made such a promise.'121. (1785) 1 TR 73,99 ER 979.


122.2 Camp 317 at 320,170 ER 1168 at 1169n.


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5 CONCLUSION

This article is not intended to be a discussion of the desirability of maintaining the perceived principle of Stilk v Myrick. It has merely attempted to show that there are complicating factors, surrounding both the text and context of the case, which modem judges and commentators have tended to ignore. Recent cases - and Williams v Roffeyl23is the prime example here - take an over-simplified view of it. As noted earlier, the textual problems (Espinasse v Campbell) are altogetherignored in Williamsv Roffey, though they are addressed in some earlier cases: see the comment of Mocatta J inNorth Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The 'Atlantic Baron'), 124

that 'Campbell's reports have the better reputation', or the rather fuller analysis of Lord Scarman in Pao On v Lau Liu Long.l25 The Court of Appeal in Williams v Roffey does consider the context of the earlier cases, and is prepared to admit that the decisions were driven by public policy, but sees this policy as no more than the need to avoid coercion. This is most obvious in the judgment of Purchas LJ:

'The two cases,Harris v Watson ... andStilk v Myrick ... involved circumstances of a very special nature, namely the extraordinary conditions existing at the turn of the 18th century under which seamen had to serve their contracts of employment on the high seas. There were strong public policy grounds at that time to protect the master and owners of a ship from being held to ransom by disaffected crews.' 126

Such an analysis has been enthusiastically adopted by commentators. Adams and Brownsword, for example, state that '[t]he better answer ... must be that Stilk v Myrick was a case involving what would nowadays be recognised as economic duress' .127 Halson similarly sees the sailors' cases as 'a rare articulation of the policy consideration underpinning the law in the area of contractual modifications; the non-enforcement of extorted modifications and the enforcement of freely agreed alterations' .128

This approach renders the decision in Williams v Roffey open to attack. McKendrick points out that there is 'no evidence that Stilk applied any pressure on the master' .129 Nor, one might add, is there any evidence that the claimant in Harris v Watson applied pressure, and nor did Lord Kenyon say that he had. McKendrick also suggests that ifthe Court of Appeal in Williamsv Roffey wished to tum Stilk v Myrick into a duress case, they could have done so more easily by relying on Espinasse's report and on Harris v Watson. This is true, but it would stillhave been an over-simpleview of the case. Espinasse's report of Stilkv Myrick was not solely about duress, though this may well be one strand that runs through it, any more than Campbell's was solely about consideration.

123. [1991] 1 QB 1.124. [1979] 1 QB 705 at 712H.125. [1980] AC 614 at 632-633.126. [1991] 1 QB 1 at 2IB-C, echoing the words of counsel, [1991] 1 QB 1 at 5.127. J Adams and R Brownsword 'Contract, consideration and the critical path' (1990)53 MLR 536 at 539.128. R Halson 'The modification of contractual obligations' (1991) Current Legal


Problems 111 at 112.129. E McKendrick Contract Law (London: Macmillan, 3rd edn, 1997) p 88.



As suggested in the fourth section of this article, Stilk v Myrick is a case which must be read in the context of the mass of policy concerns which led the courts, throughout the eighteenth century and into the nineteenth century, to treat merchant seamen as in almost every respect different from other workers. It is also a case, as suggested in the second and third sections, in which we need to be aware of the complexity of the issues which surround the very text. It is not enough to look at the two reports and choose one as 'right', or to look at the two reporters and choose one as 'more reliable'. This is true whether or not the view advanced here, that the difference between the texts may be more apparent than real, is accepted. This article may seem like a perverse attempt to muddy the waters at just the time when we had started to see Stilk v Myrick more clearly, but it is only by taking a broader view, both of the text of the case and of its context, that the problems it poses will be resolved.

Campbell, Espinasse and the Sailors

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