a term derived from the nomenclature of the Roman law, and applied to an arrangement for taking and abiding by the judgment of a selected person in some disputed matter, instead of carrying it to the established courts of justice. Arrangements for avoiding the delay and expense of litigation, and referring a dispute to friends or neutral persons, are a natural practice, of which traces may be found in any state of society; but it is to the Justinian jurisprudence that we owe it as a system which has found its way into the practice of European nations in general, and has even evaded the dislike of the English common lawyers to the civil law. The eighth section of the fourth book of the Pandects is devoted to this subject, and may be consulted through the commentary of Heineccius, or a more minute critical inquiry by Gerard Noodt, in his commentary on this section (Opera, ii. 135). Almost all the advantages, as well as the defects of the system in modern practice, seem to have been anticipated by the Roman jurists. Thus it is shown that voluntarily selected judges can only properly decide questions which the parties themselves could settle by giving and taking, and that they ought not to be authorized to deal with criminal inquiries or public questions; while, by excluding matters of personal status, such as marriage or legitimacy, the Roman jurists anticipated the principle, that even private questions which may affect the public morals or policy cannot be thus extrajudicially disposed of. They dwell on the principal advantage of the system in excluding appeal from the arbitrator's decision on any such ground as erroneous law, or false views of the influence of well-investigated facts. But, on the other hand, they discuss, with their usual scientific subtlety, the many defects, such as excess of authority, neglect of form, and partiality in receiving pleadings or evidence, and the like, by which arbitrations become vitiated; and thus these jurists at once suggest what is ever the defect of a system of arbitration, that the more it performs its function of doing justice, the more it becomes what the established tribunals of the country ought to be, and fosters two systems of judicature where one should be sufficient. Some of the civilians make a distinction between the arbitrator, the name technically applicable to a person voluntarily chosen by parties to decide disputes, and the arbitror an officer to whom the prætor remitted questions of fact as to a jury. In this sense arbitors appear to have been employed as a substitute for jury trial in some of the old provincial laws of France; and hence, perhaps, it comes that, by a very remarkable provision in the French code of commerce, all questions between partners touching the partnership must be referred to arbitration. In the code of civil procedure, the title des arbitragés is treated so fully and minutely, as very forcibly to convey the impression of a separate system of voluntary jurisdiction being created for performing what ought to be accomplished by the ordinary tribunals in a well-regulated judicial system. In Scotland, the practice of arbitration has been imported from the Roman law without requiring, as in England, statutory intervention. From the peculiarities of the Scottish system of registration, the decree-arbitral, or decision of the arbiter, when recorded in pursuance of the consent of the parties in their contract of arbitration, or submission, can be enforced as the decree of a court.

the Law of England (according to Blackstone), is "where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators; who are to decide the controversy: and if they do not agree, it is usual to add, that another person be called in as umpire (imperator), to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed." The decision must be in writing (unless otherwise expressly provided in the submission), and is called an award; and thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of law or equity.

There were, however, many inconveniences attending this mode of proceeding; and in the year 1698, the legislature accordingly interfered and passed the act 9th and 10th Will. III., cap. 15, which enacted that, "for promoting trade, and rendering the awards of arbitrators the more effectual in all cases, for the final determination of controversies referred to them by merchants and traders, or others, concerning matters of account or trade, or other matters," all merchants and others, desiring to end any controversy, suit, or quarrel (for which there is no other remedy but by personal action or suit in equity), by arbitration, may agree that their submission of their suit to the award or umpirage of any person shall be made a rule of any of the courts of record, and may insert such agreement in their submission; which agreement being proved by the affidavit of one of the witnesses thereto, the court shall make a rule that such arbitration or umpirage pursuant to such submission shall be conclusive; and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of court; unless such award shall be set aside, as procured by corruption or undue means in the arbitrators or umpire, to be proved on oath to the court, before the last day of the next term after the award is made.

An application for an attachment for not performing an award, may be resisted at any time for defects appearing on the face of the award itself; for such an award, after that time, might be pleaded in bar to any action brought upon it, although it cannot be set aside for such defects after the end of the next term. Submissions of disputes to arbitration may be by consent of the parties, or with the interposition of a court of justice; by rule of court, or order of a judge, when a cause is pending, either by bond, agreement in writing, or by parol. A verbal agreement, however, to abide by an award cannot be made a rule of court. Nor can matters purely criminal be submitted to the decision of an arbitrator. And by the 12th and 13th Vict. c. 45, §§ 12–15, the provisions of the former statutes as to arbitrations are extended to "controversies and disputes, for which the remedy is by appeal to a court of general or quarter sessions of the peace."

Lastly, although the right of real property cannot pass by a mere award, yet if a party be awarded to convey land, and refuse, he will be liable to an action, or to an attachment for not performing the award.

The agreement of reference must be expressed with great care and accuracy—provisions should be inserted giving power to either party to make the submission a rule of court, to enable the court to refer the matter back to the same or to another arbitrator; and in case of the death of either party before award, for its making and delivery to his representatives; and also as to the costs, which are usually directed to be in the discretion of the arbitrator as to those of the reference, and as to those of the cause to abide the event of the award; and a certain day should be appointed on or before which the arbitrator is to make his award, with a power to such arbitrator to enlarge the time.

When arbitrators have the power of electing an umpire, they may choose him, and call in his assistance as soon as they begin to take the subject into consideration; and this is the more convenient practice, as it secures a decision upon a single investigation of the controversy.

As to the award; it must be in pursuance of the submission, and embrace all the matters submitted, and not extend beyond it in the subject-matter, in persons, in time, or in particular circumstances; it must be certain; it must make a final end and determination of all matters contained in the submission; it must be mutual, that is, it must not be entirely of things to be performed by one party, without such things being in satisfaction of the matters in difference; and finally, it must not be unreasonable, illegal, or impossible to be effectuated.

Formerly, a submission to arbitration, being a mere authority, might be revoked at any time before execution, by an instrument of as high a nature as that by which the submission was created. But now, by the Law Amendment Act (3d and 4th Will. IV., cap. 42), the submission to arbitration by Rule of Court, or Judge's order, or order of Nisi Prius, or if there be an agreement to make the submission a Rule of Court, cannot be revoked by any party thereto, without leave of the court or a judge. The death, however, of either party, before award is a revocation of the authority, unless otherwise provided in the submission; and so also is the marriage of a female before award; the marriage operating as a civil death to all her rights as a feme sole.

Under this statute the attendance of witnesses, or production of documents before the arbitrator, may be compelled by a rule of court, or order of a judge, on payment of expenses and loss of time; and the arbitrators are empowered to administer oaths to the witnesses, where it is so agreed or ordered by the rule or order of reference. Any witnesses failing to attend are deemed to be guilty of contempt of court, or giving false evidence guilty of perjury.

The court or judge may also, in the cases within the statute, enlarge the time for an arbitrator to make his award.

As to the mode of enforcing an award, see Attachment.