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Customary Rights of Labour on a Shore Whaling Station

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Customary Rights of Labour on a Shore Whaling Station 639 HARRIS V FITZHERBERT: CUSTOMARY RIGHTS OF LABOUR ON A SHORE WHALING STATION Stuart Anderson* This note considers an early adaptation of common law to conditions on New Zealand whaling stations, made relatively easy by the law's prior acceptance of local custom or usage as a determinant of legal rights. The case, Harris v Fitzherbert from 1843, is significant also for the jury's acceptance of a manual workers' construction of the rule over financiers’. A bare description of the legal claim in Harris v Fitzherbert,1 decided at Wellington in April 1843, gives no hint of its interest; actions to enforce a bill of exchange, as this was, must have arisen dozens of times that year in English and colonial courts and the sum at stake was little more than £25. It was the circumstances in which the bill had been obtained, however, that gave the case its importance, with manual workers aligning on the one side and merchants on the other. Had Harris extorted the bill, as Fitzherbert and his merchant witnesses would interpret the story? Or had he had a customary legal right prior to Fitzherbert's, which Fitzherbert was properly obliged to buy out? By allowing the right to be grounded on custom – this in a colony barely three years old concerning a business practised for not much more than a dozen – Martin CJ gave the jury responsibility of confirming or denying the existence of the rule Harris claimed.2 The case required their most serious consideration, he said, as it would establish a precedent in a matter involving the interests of many, among them, indirectly, several of the witnesses they had heard. * Professor, Faculty of Law, University of Otago. This case came to light during the New Zealand Lost Cases Project funded by the New Zealand Law Foundation. 1 Harris v Fitzherbert Supreme Court Wellington, April 1843 New Zealand Colonist and Port Nicholson Advertiser (Wellington, 14 April 1843) at 3 [Harris v Fitzherbert]. This case is reproduced in the Appendix to this paper. There is uncertainty over the correct date of this case; the report says it was Wednesday 4th, however the 4th was a Tuesday. 2 For the origins of New Zealand shore whaling see Harry Morton The Whale's Wake (University of Otago Press, Dunedin, 1982) at 230. 640 (2011) 42 VUWLR The bill was for the balance of Harris's wages as cooper on Alexander Antonio's whaling station at Kapiti for the 1842 whaling season.3 It had been drawn by Antonio's clerk on William Fitzherbert, a Wellington merchant, after, Harris said, Fitzherbert had explicitly promised to honour it. Fitzherbert had reneged. He had been financing Antonio that year and was the man who supplied the station's food on credit (and gear and clothing perhaps), and who would buy the produce at a pre-arranged price at the season's end. But Harris and some others of Antonio's men had prevented Antonio shipping the final consignment of oil to Fitzherbert unless they were either first paid off for the season or guaranteed their pay. The question was whether they had that right. If not, their conduct would have been unlawful and Fitzherbert could disown the order for lack of consideration.4 Nothing is said about Harris having a written contract, though very likely he did, but instead his counsel, Alfred Hanson, founded the men's right to treat the produce as security for their pay on custom. The case's interest lies partly in that way of conceiving the issue, partly in the consequence that doing so divided responsibility for the new rule between judge and jury, and partly just in the result (that Harris won). However contingent that victory, it can be seen, and probably was seen, as a victory for labour over capital. The dispute itself was most likely the collision of a novice whaling operator, a financier making his first whaling investment, and a poor year for whaling. That picture emerges less from Harris v Fitzherbert than from Fitzherbert v Antonio the previous day, in which Fitzherbert recovered judgment for debts of some £474, his loss on the 1842 season.5 Casual evidence in that case suggests that Antonio had not had his own station before 1842, in that Fitzherbert is shown to have paid Captain Mayhew to allow Antonio to use the trypots and other whaling gear formerly belonging to John Medares, deceased. Antonio is not mentioned in any of the whaling or local histories. Mayhew, a well-known man among the early whalers and farmers on Kapiti, American vice-consul and the administrator of Medares's estate, had offered Medares's stations at Kapiti and Cloudy Bay for sale in the previous October. The inference from this evidence is that the Kapiti station had not sold, perhaps a sign that cannier minds than Fitzherbert's thought the island had more stations than the declining resource could sustain.6 Mayhew himself was soon to leave the island. 3 It is called an order in the case and may not have been negotiable. In law it would still be a bill, however, because it was drawn on a third party. 4 John Bernard Byles A Practical Treatise on Bills of Exchange (3rd ed, S Sweet, London, 1839) at 72–73. 5 Fitzherbert v Antonio Supreme Court Wellington, 4 April 1843 New Zealand Colonist and Port Nicholson Advertiser (Wellington, 11 April 1843) at 2. 6 For Mayhew, see Chris Maclean Kapiti (Whitcombe Press, Wellington, 1999) at 122 and 159–161. For Medares's estate, see New Zealand Gazette and Wellington Spectator (Wellington, 25 September 1841) at 1 and also New Zealand Gazette and Wellington Spectator (Wellington, 2 July 1842) at 1; there is phonetic variation in spelling his name – 'Medaris' in the Australasian Chronicle (Sydney, 24 December 1840) at 3, but 'Medary' in the New Zealand Gazette and Wellington Spectator (Wellington, 10 October 1840) at 2, and 'Madiera' in the New Zealand Gazette and Wellington Spectator (Wellington, 24 July 1841) at 3. This HARRIS V FITZHERBERT: CUSTOMARY RIGHTS OF LABOUR ON A SHORE WHALING STATION 641 Fitzherbert, whose ambitions had earlier run to medicine or a college fellowship, was a reluctant merchant arrived in the colony in September 1841. His arrival had been driven by anxiety for the progress of his partnership, the original intention being that Fitzherbert would handle only the English end of the business.7 Finding few openings he turned to whaling, where he would have to have threaded a way between operations already well established. The season developed so poorly, however, that after a few months Antonio had had to renegotiate his agreement with Fitzherbert. This resulted in tying himself into a three-year contract and mortgaging his boats, but allowing him to roll his first year's debts over to the next – a concession, however, which Martin CJ would ultimately find worded too imprecisely to shield Antonio from Fitzherbert's suit just eight months later.8 Fitzherbert did take one cargo of oil and bone off Antonio's station in October 1842, but when his vessel returned for the remainder the men held some back as security for their pay. That crisis was eventually resolved by Fitzherbert writing to Antonio undertaking to honour bills Antonio might draw on him, one of which was then made out to Harris. We do not know which if any of these Fitzherbert paid, whether he singled Harris out for non-payment, and if so why. Nor do we know anything about Harris, save that he was reputable enough to be hired, apparently, by Robert Jillet (or Jillett) as a cooper for the 1843 season.9 Jillet, who was both whaler and farmer on Kapiti, was consolidating whaling there, quite likely attracting headsmen from other stations to his service, a successful operator for a few years until the whaling finally gave out.10 Whatever reasons Fitzherbert had for not paying, however, he rested his legal defence on a distinction between the general run of whaling hands, who were paid a lump sum calculated as a share of the station's produce (largely contingent, therefore, on the season's success), and Harris, who was one of the station's few employees paid by a monthly wage. Only the former, his counsel Hugh Ross argued, had an interest in the oil, hence, perhaps, a lien over it until paid; wage earners must look to their employer in the ordinary way. suggests he may be "Mr John, the Portuguese" recounted in Edward Jerningham Wakefield Adventure in New Zealand (J Murray, London, 1845) vol I at 108. 7 David Hamer "Fitzherbert, William" (2010) Dictionary of New Zealand Biography <www.teara.govt.nz>. The partnership was promptly dissolved: New Zealand Gazette and Wellington Spectator (Wellington, 20 October 1841) at 2. 8 After losing the case (see above n 5), Antonio tried unsuccessfully to nonsuit Fitzherbert on the ground that this agreement barred the action: Fitzherbert v Antonio Supreme Court Wellington, date unknown (July/August 1843) New Zealand Gazette and Wellington Spectator (Wellington, 2 August 1843) at 3. 9 Harris v Fitzherbert, above n 1, evidence of Joseph Burrell. 10 Nigel Prickett "The Archaeology of New Zealand Shore Whaling" (National Historic Heritage Workshop, Wellington, September 2002) at 86 and 96; "Oil" New Zealand Gazette and Wellington Spectator (Wellington, 13 January 1844) at 2; see also "7 Robert Jillett (1812–1860), Shore Whaler" (2010) Jillett Family <jillettfamily.com>. 642 (2011) 42 VUWLR At least, that is probably what he argued. The newspaper report, though detailed, is mostly a transcription of evidence exactly like one finds in a judge's notebook.
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