Saturday, July 4, 2009

Rose on Medieval Law and Lawyers

Jonathan Rose, Arizona State University Law School, has posted on SSRN several items from his "backlist":

“Litigation and Political Conflict in Fifteenth-Century East Anglia: Conspiracy and Attaint Actions and Sir John Fastolf,” Journal of Legal History, 27 (April 2006): 53-80.
Sir John Fastolf was a wealthy fifteenth-century knight and a successful military commander in the wars with France. During the last decade of his life, he was involved in a number of legal disputes with his East Anglian adversaries, the supporters of the Duke of Suffolk. This paper studies one of those disputes, which involved conspiracy and attaint actions between John Andrew, a Suffolk adherent, and Thomas Howes and John Porter, two Fastolf servants.

This dispute is interesting for two reasons. Most importantly, it shows that one cannot fully understand the operation of the fifteenth-century legal system without an awareness of the social and political context of litigation. Some contemporary litigation had a clear political nature and political considerations influenced the resolution of legal issues. All aspects of this litigation illustrates the interrelation between the operation of the legal and political systems. Often, legal actions and institutions were vehicles and arenas for political disputes.

This litigation also offers an opportunity to explore some fifteenth-century legal issues, especially those that arose in attaint actions. There is very little existing scholarship on actions of attaint. This paper, by studying an actual attaint in detail, provides further detail on this area of medieval English legal history. The paper is based on numerous primary sources in the plea rolls and Year Books.
Feodo de Compedibus Vocato le Sewet: The 15th Century Prison 'Oeconomy'"
In the Fastolf Papers in the Archives of Magdalen College, University of Oxford, is an account of payments and expenses of Sir John Fastolf made during ten years of litigation from 1449-1459, Fastolf Paper 42. One entry in this document is both puzzling and interesting. It reads:

Item paid by Thomas Howes . . . for the fee of shackles called the sewet (feodo de compedibus vocato le sewet) both for himself and for John Porter until the jurors impaneled in the attaint might appear before the justices of the King at Westminster

In this instance, the payment occurred in connection with an attaint brought by John Porter, a Fastolf servant, to overturn a jury verdict in a conspiracy case brought against him and another Fastolf servant, Thomas Howes by John Andrew, a Suffolk official and lawyer and a member of the East Anglian affinity of William de la Pole, the Duke of Suffolk.

This entry raises several interesting questions: what was the fee of shackles and why was it called the 'sewet'? The answer lies in the financial characteristics of the medieval century prison system, its 'Oeconomy.' Moreover, understanding the meaning of sewet does not answer the substantive question regarding the propriety of its imposition. The purpose of this paper is to explore these questions. In general, sewet was a payment of money or practice to make prison life less onerous.

The paper begins with an overview of the various fees charged prisoners by keepers in the medieval prisons, especially those in London, the Fleet, Newgate, Ludgate, the King's Bench Marshalsea and the sheriff's Counters. The charging of fees by keepers was a controversial practice. There were persistent complaints about these fees. From the 14th century through the 17th century, there were numerous regulations enacted detailing what fees were permissible and the amounts that could be charged.

The paper turns to use of irons, a controversial practice, both to determine what were considered the appropriate and inappropriate uses of irons and to understand the legitimacy of the fee for removing them, feodo de compedibus. A primary justification for the use of irons was to prevent prisoners from escaping. However, prisoners complained about the inappropriate use of irons and the imposition of fees to remove them. Again, over several centuries, numerous measures regulated such fees.

With this background, the paper then focuses on the meaning of sewet, a later spelling of suete, which was part of a term, suete de prisone. This term perplexed medieval scholars at the beginning of the 20th century. Although they correctly identified the core meaning, the primary investigation failed to understand that the various contexts in which it was used suggested that there were multiple meanings of the term. There was also contemporary confusion as to what Latin word was appropriate to use in official records. By the middle of the 20th century, Latham connected this Law French term with the Latin word, suavitas. Thus, sewet meant a payment of money for ameliorating prison conditions, making life there 'sweeter.' Although not disagreeing with this earlier scholarship, the paper argues for further refinement of the meaning, connecting the term also with the liability of keepers for the escape of prisoners. The paper reviews the multiple contexts and spellings of sewet and its equivalents to further explore its meaning and use. The paper asserts that the most common reason for paying sewet or suete de prisone was the removal the prisoner's irons. Removal of the irons increased the likelihood of escape and the potential for the keeper's liability for a fine or damages because of the escape as well liability for the debt of prisoner to the latter's creditor.

The paper then turns to an analysis of the propriety of charging sewet in the particular instance reflected in the entry in the Fastolf Paper 42. The use of irons was permissible in some instance and escape from the King's Bench Marshalsea was a recognized problem. However the use of irons was probably inappropriate in the case of Howes and Porter, given the reason for their imprisonment, their failure to pay a ransom to the king for their conviction in Andrew's conspiracy suit, and the low likelihood of their escape. While it is impossible to know the amount of the fee in this case, it may not be necessary as a 1445 statute appeared to prohibit the charging of sewet. Moreover, plea roll entries suggest that during the time of Howes and Porter were charged sewet, the statute was enforced strictly. In addition, Sir John Fastolf, who paid all these expenses, was a visible and easy target, for an abusive charge. Thus the paper concludes that charging of sewet to remove Howes' and Porter's irons was dubious and probably, although not clearly, inappropriate.
“Memorandum Quod: John Fastolf and the Founding of Magdalen College,” Magdalen College Record (2003)
Magdalen College in Oxford was founded in 1458 by William Waynflete, Bishop of Winchester. This article discusses the role of Sir John Fastolf, a special benefactor of the college, in the founding. As this article explains, Fastolf’s property played a significant role in enabling Bishop Waynflete to establish Magdalen College.
“Legal Profession in Medieval England: A History of Regulation,” Syracuse Law Review 48 (1998).
This article examines the history of the regulation of the English legal profession in medieval England. Two interrelated reasons make this a worthwhile endeavor: both the legal profession and its initial regulation emerged during this period. The primary objectives of this article are to identify and study the important legislation from the mid-thirteenth century to the end of the fifteenth century regulating the admission of lawyers to practice and the conduct of practicing lawyers. Critical regulations were adopted during this period. In addition, judges used their inherent power to control the admission of lawyers and sanction their misconduct. In studying this medieval regulation, this article discusses the problems and forces that led to the enactment of the various statutes and ordinances and identifies their objectives, analyzes the meaning and effect of these regulations, and attempts to appraise their historical and current significance. In addition to the historical interest in these matters, studying medieval regulation of the legal profession offers an important opportunity to discover the extent to which this initial regulation and the concerns that prompted it are similar to modern regulation and concerns regarding lawyers.

Before turning to an examination of the medieval regulation, this article provides some historical background regarding the origins and emergence of the English legal profession and the general climate of opinion in the latter half of the thirteenth century.
“The Ambidextrous Lawyer: Conflict of Interest and the Medieval Legal Profession,” University of Chicago Roundtable 7 (2000).
In the medieval era, ambidexterity, the medieval term for conflict of interest, appeared in two primary contexts: lawyer discipline and the civil liability of lawyers to victims of their misconduct. This paper studies ambidexterity, a common form of medieval lawyer misconduct, in these two contexts. The paper examines the medieval regulation of ambidexterity by analyzing the different types of conflicts, the specific loyalty duties and their rationales, and the sanctions applied. Finally, the analysis identifies the ways in which medieval conflict of interest regulation is both similar to and dissimilar from its modern treatment. The paper identifies about 75 cases, arising primarily from 1278-1400, which were classified for discussion into five categories: switching sides in the same litigation (classic ambidexterity), adversity to a former client, adversity to a client on an unrelated matter, simultaneous representation of multiple plaintiffs or defendants, and conflicts with a lawyer's personal interest.

The paper concludes that these judicially developed loyalty norms were strongest and most commonly and strictly applied to classic ambidexterity, but that loyalty duties were also owed to former clients. In both categories, protection of confidentiality played an important role. Loyalty norms also arose with regard to adversity to client on an unrelated matter, but differently as it was created consensually through contractual retainers, not by judicial or regulatory fiat. Implementation of these norms occurred in lawyers' suits for arrearages in the annuities owed by clients. Potential conflicts of interest, simultaneous representation of multiple parties, were not treated as problematic and no loyalty norms arose in such cases. Nor were conflicts with a lawyer's personal interest considered a significant problem. Finally, although the medieval cases revealed interesting similarities with modern conflict of interest regulation, the differences were more pronounced. The medieval conduct was more egregious, the loyalty duties narrower, and the remedies more limited although more punitive. The paper then considers the civil liability of lawyers to victims of ambidexterity. This portion of the paper begins with a preliminary survey of the evolution of the civil liability of lawyers. The discussion then moves to an analysis of about 30 cases involving civil liability. The paper concludes, based on this subset of cases involving ambidexterity, that the civil liability of lawyers evolved apart from the development of negligence based liability and that the civil liability of lawyers was more limited in several respects than its modern counterpart. The paper concludes with some general conclusions regarding the medieval treatment of ambidexterity and by suggesting further areas of useful research.

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