Mediating a Feud: The Problem of Envisioning Future Effects

A London scene (photo by Marilyn Swanson)

By Donald L. Swanson

Feuding parties are blinded by their feud. And they cannot envision the future of their feud with accuracy.

An Ancient Illustration from London

A recent essay [Fn. 1] provides details of a multi-year feud between London-area grocers, back in the early 1600s. That feud involved two lawsuits, a criminal complaint, and extensive gossip. It also involved attempts at mediation by the grocers’ guild—which failed.

What’s fascinating about the story of this feud is its long-term effects on the feuding parties. I’ll try to explain.

Francis Newton – A Small-Time Cheater

Francis Newton plied a wholesale grocer’s trade in and around London during the early 1600s. He purchased imported foodstuffs, such as spices, sugar, and dried fruits, from overseas merchants, and he purchased dry goods like starch from local manufacturers. He then resold such goods to smaller retail grocers, to regional middlemen known as chapmen, and sometimes directly to retail customers.

Newton began cheating early in his career.

One of his cheats is to entice customers by selling at low prices and then fudging the weight of the goods. Once, for example, he rode up to his shop with newly purchased goods in a cart, called for a piece of chalk, changed the “2200” weight amount chalked on the side of the goods to “2300,” then promptly carted the goods to a London grocer, to whom he sold the goods at a price reflecting the higher weight. Court records report that changing chalk marks like this was a “usuall thing with . . . Newton betwene the years 1609 & 1616.”

Newton limited his cheating to small amounts, such as:

  • 30 pounds missing from a 500-pound cask of currants;
  • 3 pounds short in a parcel of figs;
  • “mistaking in the weight” of a barrel of sugar;
  • 120 pounds missing from a load of 20 frails of raisins and 14 pounds missing from another load of 3 frails of raisins (a frail is a wicker basket holding between 30 and 75 pounds); and
  • 14 pounds missing in “haulf a hundred of wares.”

As to the effect of Newton’s small-time cheating, one witness testified:

“[Y]ow are a rich man, and cannot feele it” in your trade. But, “[T]here are others that feele it,” and some do “feele it” so much they become financially “undone.”

Newton succeeded for many years at cheating.

Getting Caught

Newton employed apprentices. His first two apprentices were John Wall and Griffin Smith, both of whom became Newton’s competitors. They also became Newton’s enemies. They turned whistleblower and spread rumors about Newton’s cheating. Their whistleblower efforts resulted in two civil lawsuits and a criminal complaint against Newton.  It was a feud against Newton.

[Extensive information exists about these cases because they resulted, collectively, in depositions of 116 individuals and almost 400 pages of material that have been preserved.]

In the end, Newton lost both lawsuits and suffered criminal sanctions.

Contrasting Fortunes

But still, after all that, Newton remained in business.

His business did take a hit: one customer, for example, testified that he did less business with Newton than before. Yet many customers who dropped Newton because of the gossip against him soon returned. In fact, Newton continued doing a brisk business and taking on new apprentices until the year before his death in 1630.

One accuser, by contrast, bankrupted himself fighting Newton. This former apprentice ended up begging for a subsidy from the grocers’ guild. “Getting even,” this accuser found, “can be expensive.” This accuser spent the last decade of his long life as the weighmaster at the royal weigh house, a sinecure granted by the guild to a poor member.

Two other accusers died shortly thereafter.

The conclusion of it all is this: the accusers won the legal battles against Newton, but Newton won the feud. Newton not only stayed in business—but prospered as well. His accusers / competitors, by contrast, had lesser fortunes.

Editorial Comments

The grocers guild tried to mediate the feud and legal proceedings between Newton and his accusers. But mediation efforts failed.

One reason for the mediation failure is undoubtedly this: Newton’s accusers foresaw that they would win the legal battles. They also believed, undoubtedly, that they were winning the public perceptions war.

What Newton’s accusers failed to foresee, however, is that they would lose the ultimate war of business competition.

This failure to foresee is still a problem in today’s world of mediation. That’s especially true for disputes between feuding parties in business competition or family relationships.

A valuable service mediators might provide to such parties is this: assistance in focusing on the parties’ future and the effects a continuing feud might have on later life.

Footnote 1. The essay is by Emily Kadens, Professor of Law, Northwestern Pritzker School of Law, Northwestern University. The essay is titled, “Cheating Pays,” and is published at 119 Columbia Law Review 527 (2019). Unless otherwise noted, all information in my article above is from this essay by Prof. Kadens, usually in her own words. Other publications by Prof. Kadens bear such fascinating titles as, “The Last Bankrupt Hanged” and “The Pitkin Affair: A Study of Fraud in Early English Bankruptcy.”

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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