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Campbell, Espinasse and the sailors: text and context in the common law
Published online by Cambridge University Press: 02 January 2018
Abstract
Stilk v Myrick (1809) 2 Camp 317, 6 ESP 129 has long been perceived as a ‘problem case’ in the law of contract. It provides a famous example of conflicting reports: one reporter appears to base the judgment on the doctrine of consideration, 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 Williams v Roffey Bros. & Nicholls [1991] I QB1. This article looks again at the texts of the two reports of Stilk v Myrick, and discusses these against 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 the facts of the case in their historical context - to take an over-simplified view of the case.
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- Copyright © Society of Legal Scholars 1999
References
1. (1809) 2 Camp 317, 170 ER 1168; 6 Esp 129, 17O ER 851.
2. (1791) Peake 102, 170 ER 94.
3. 2 Camp 317 at 318, 170 ER 1168 at 1169.
4. The writer has been unable to locate any record of the case at the Public Record Office.
5. 2 Camp 317 at 319–320, 170 ER 1I68 at 1169.
6. 6 Esp 129 at 130, 170 ER 851.
7. [1991] 1 QB 1.
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 Megany 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 wageskonsideration case, Clutterbuck v Cofin (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 [I74 ER 5041; In banc (1842): 3 Man & G 842 [133 ER 1379], 4 Scott NR 509, 11 WCP 65, 1 DNS 479, 6 Jur 131).
11. See the comments of Lord Diplock in Roberts Petroleum Ltd v Bernard Kenny Ltd [19831 2 AC 192 at 202 and Practice Statement (Court of Appeal: Authorities) [1996] 1 WLR 854.
12. J Wallace The Reporters Arranged and Characterized, 4th ed. (Boston: Soule and Bugbee, 4th edn, 1882) p 530 n 3, quoting the London Law Magazine and Review.
13. 1 Burr vi; as with all introductory material, this is omitted from the English Reports reprint.
14. Above n 12.
15. Evans v Ascough (1624) Latch 233 at 238,82 ER 362 at 364; reported in similar words, under the name Evans and Kiffinn v Ascuithe, Palmer 457 at 462. 8I ER 1169 at 1172.
16. Hadley v Buxendale (1854) 23 LJ(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.
18. See G Williams Learning the Law (London: Stevens, 11th edn, 1982) pp 35–36.
19. E Haynes A Lawyer's Notebook (London: Secker, 1932) p 43, excerpted in E Haynes The 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 lo), 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 the field, though the date printed at the foot of that preface, April 1795, might seem to give the contrary impression.
24. Peake iv.
25. (1795) Peake Add Cas 47 at 48, 170 ER 189 at 190 note(a)'.
26. (1797) Peake Add Cas 126 at 128–9, 170 ER 217 at 218 fn.
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 separately or in full.
28. Ibid.
29. Ibid, p 214.
30. Ibid, p 233.
31. Ibid, p 215.
32. 6 Esp v-vi.
33. Espinasse, I My Contemporaries; from the Notebook of a Retired Barrister’ Fraser's Magazine vol 6 (Aug-Dec 1832), pp 220–230, 314–324, 417–431Google Scholar; 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. Townsend, W (1846) Lives of Twelve Eminent Judges of the Last and of the Present Century (2 vols)Google Scholar (London: printed for Longman, Brown, Green and Longmans, 1846) vol 1, p 5I. 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.
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.
42. See J H Baker ‘New light on Slade's Case’ (1971) 51 CLJ 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, 10741 is in fact a polished redaction of his own speeches for the plaintiff.
43. (1855) 5 El & B1 447 at 455, 119 ER 547 at 550.
44. (1867) LR 2 QB 412 at 437.
45. (1867) LR 2 QB 412 at 438.
46. Atlay, J B The Victorian Chancellors vol 2 [Lord St Leonards to Lord Herschel1 1 (London: Smith, Elder, 1908) p 216 Google Scholar.
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.
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 LJCP 52 at 54.
58. Wallace, above n 12 p 542 n 1.
59. Ibid.
60. See F Pollock A First Book of Jurisprudence (London: Macmillan, 6th edn, 1929) p 347, referring to a comment by Best J in Parton v Williams (1820) 3 B & Ald 330 at 341, 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 report of the case in 2 B & Ald 37I, 106 ER 402.
63. (1791) Peake 102 at 103, 170 ER 94.
64. Campbell, J Lives of the Chief Justices of Englund vol 3 [Lord Kenyon to Lord Tenterden] (London: John Murray, 1857) p 8 Google Scholar.
65. Ibid p 83.
66. Ibid pp 154, 157.
67. On this see P S Atiyah The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979) pp 171–172, describing this development as ‘one of the forgotten episodes of legal history’.
68. 21 Geo 11, c 24.
69. 26 Geo 111, c 63.
70. Baldwin and Alder v Rochford (1748) 1 Wils KB 229 at 230. 95 ER 589 at 590.
71. Taylour v Rochfort (1751) 2 Ves Sen 281 at 283, 28 ER 182 at 183.
72. (1754) 2 Ves Sen 516 at 518, 28 ER 330 at 331.
73. Turtle v Hartwell (1795) 6 TR 426 at 429, 101 ER 630 at 631.
74. 2 Geo II, c 36, extended on a number of occasions, and made perpetual in 1761; 2 Geo 111, c31.
75. 5 & 6 Will IV, c 19.
76. (1800) 2 Bos & Pul 116, 126 ER 1188.
77. (1803) 5 Esp 84, 170 ER 746.
78. 6 Esp 129 at 130, 170 ER 851.
79. (1809) 2 Camp 315, 170 ER 1168.
80. 2 Camp 320, 170 ER 1169n. Gilmore suggests that Campbell added his note to Stilk v Myrick to indicate that the 1806 case was in some way ‘scandalous’, and that ‘the uninteresting truth may conceivably be that Lord Ellenborough was an owner's man all the 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 no evidence 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.
81. (1806) 6 Esp 86, 170 ER 838.
82. (1799) 2 C Rob 261, 165 ER 309.
83. 2 C Rob 261 at 264–265, 165 ER 309 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. Chandler v Meade, reported in the text of Wiggins v Ingleton (1705) 2 M Raym 1211, 92 ER 300.
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.
93. 6 TR 320 at 327, 101 ER 573 at 577.
94. (1792) 2 H B1 606, 126 ER 730 (appended to the report of Gienar v Meyer (1796) 2HB 1603, 126 ER 728).
95. 2 Geo 11, 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 to be 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 as counsel 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 Attorney General was permitted to take private clients in addition to his official duties. Gibbs seems to have taken full advantage of this right; as an example, he appears in no fewer than 85 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.
100. (1804) 3 Bos & Pul 612, 127 ER 330.
101. 3 Bos & Pul 612 at 615, 127 ER 330 at 331–332.
102. 3 Bos & hl 612 at 615–616, 127 ER 330 at 332.
103. I Espinasse Digest of the Law of Actions and Trials at Nisi Prim (London: Printed for 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 Selwyn An Abridgment of the Law of Nisi Prius (London: Printed for W Clarke and Sons… and J Cooke, 3rd edn, 1812) pp 44.46. Selwyn had not mentioned Harris Y Watson in the 1808 edition of his Abridgment (London: Printed by A Strahan… for W Reed).
106. On this development generally, see A W B Simpson ‘Innovation in nineteenth century contract law’ (1975) 91 LQR 247.
107. Chitty, J (the elder) Treatise on the laws of commerce and manufactures (4 vols) (London: Henry Butterworth, 1820–24) vol 3, p 66 Google Scholar.
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 v Myrick.
109. C Abbott A 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 LT 753.
112. (1884) 9 App Cas 605 at 609.
113. (1854) 3 E & B 559, 118 ER 1251.
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 Curter. not of 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 1371 at 1473.
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 116%.
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 21B-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.