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Arbitration in America: The Early History

  • James Oldham and Su Jin Kim

On June 29, 1789, Zephaniah Turner of Charles County, Maryland, wrote to President George Washington and observed:

Our Laws are too Numerous. Is it not possible that an alteration might take place for the benefit of the public?…Could it not be possible to curtail the Number of Lawyers in the different States? Suppose each State was to have but Two Lawyers to be paid liberally…[and] where a real dispute subsisted between Plaintiff and Defendant a reference [to arbitration] should be proposed, and arbitrators [be] indifferently chosen by both parties…whose determination shall be final.

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1. Record Group 360, National Archives, Washington, D.C. Turner added: “I would not mean to discourage the Study of Law, but I really find that the multiplicity of Students in that branch, in this State, has been an inconvenience to the Sons of reputable Parents and more so to the Parents themselves.”

2. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991).

3. H.R. Rep No. 96, 68th Cong., 1st Sess., 1–2 (1924).

4. Tobey v. County of Bristol, 23 F.Cas. 1313 (C.C. Mass. 1845).

5. As stated in the West headnote: “Under a statute authorizing county commissioners to refer to arbitrators the claims of a person against the county, the commissioners have no authority to submit a part only of his claim.” Ibid. 1317.

6. Ibid., 1320.

7. Wellington v. Mackintosh, 2 Atk. 569 (1743).

8. Kill v. Hollister, 1 Wils. 129 (1746).

9. For an explanation, relying on manuscript reports of both cases, see Oldham, James, “Detecting Non-Fiction: Sleuthing among Manuscript Case Reports for What was Really Said,” in Law Reporting in England, ed. Stebbings, Chantal (London: Hambledon, 1995) 133, 138–40.

10. In Thomson v. Charnock, 8 T.R. 139 (1799), the plaintiff sued for breach of covenant, and the defendant's answer (the plea) was that it had been agreed in the contract (the charter-party) to refer any dispute to arbitration. Chief Justice Kenyon of the Court of King's Bench would not allow the plea, declaring that “it is not necessary now to say how this point ought to be determined if it were res integra, it having been decided again and again that an agreement to refer all matters in difference to arbitration is not sufficient to oust the Courts of Law or Equity of their jurisdiction.” 140.

11. 23 F.Cas. at 1321.

12. Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448 (1957).

13. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

14. 9 U.S.C. §1.

15. Circuit City Stores, Inc. v. Adams, 532 U.S.105 (2001).

16. Ibid., 119.

17. Ibid., 111.

18. See, for example, Circuit City Stores, Inc. v. Mantor, 335 F.3d 1101 (9th Cir. 2003), cert. denied 540 U.S. 1160 (2004) (arbitration agreement substantively unconscionable under California law).

19. For recent cases in addition to Circuit City, see Eastern Associated Coal Corporation v. United Mine Workers of America, 531 U.S. 57 (2000); Green Tree Financial Corp. v. Randolph, 530 U.S.1296 (2000); Major League Baseball Players Association v. Garvey, 532 U.S. 504 (2001); and 14 Penn Plaza v. Pyett, 566 U.S. 247 (2009).

20. Tay. 37, 1 N.C. 126 (1799).

21. Ibid., 127.

22. The fullest version is Mann, Bruce H., “The Formalization of Informal Law: Arbitration Before the American Revolution,New York University Law Review 59 (1984): 443. A somewhat abridged version was later presented as chapter 4 in Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987).

23. Mann, “The Formalization of Informal Law,” 451.

24. Ibid., 456, 468.

25. Moglen, Eben, “Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law,Yale Law Journal 93 (1983): 135.

26. March, John, Actions for Slander, and Arbitrements (printed for Elizabeth Walbanck, London, 1674 [first written in 1648]),149. In the 1674 edition, the section devoted to arbitration runs 171 pages. Even so, March was not the first to take up the subject in print. Arbitration is treated, although in much less depth, in the writings of Sir John Doddridge, a seventeenth century judge on the Court of King's Bench. Doddridge, John, The Lawyers Light (printed for Benjamin Fisher, London, 1629), 17 and following; also, John Doddridge, The English Lawyer (printed by the assignees of I. More, Esq., London, 1631) 129, 166190.

27. For the background and development of the statute, see Horwitz, Henry and Oldham, James, “John Locke, Lord Mansfield, and Arbitration During the Eighteenth Century,” The Historical Journal 36 (1993) 137.

28. Ibid., 139, citing Locke MS C 30, fol. 18, Bodleian Library, Oxford, and Kelly, Patrick H., ed., Locke on Money , 2 vols., (Oxford: Oxford University Press, 1991) II:485–86.

29. William Blackstone claimed that, as a consequence of the 1698 legislation, “it is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt, as is awarded for disobedience to such rules and orders as are issued by the courts themselves.” Blackstone, William, Commentaries on the Laws of England, (Chicago: University of Chicago reprint, 1979; originally published 1768) III:17.

30. See Horwitz and Oldham, supra n.27 above, at 145–147.

31. Anstey, John, The Pleader's Guide, a Didactic Poem, In Two Books, Containing the Conduct of a Suit at Law (London: T. Cadell, Jr. and W. Davies, 1796), 7071. The author explained with the following footnote: “Arbitrations–By the 9 and 10 W. 3d. c. 15, it is enacted, That Merchants, Traders, and all persons desiring to end their controversies by Arbitration, may agree that their submission of their Suit to the Award or Umpirage of any person or persons should be made a rule of any of his Majesty's Courts of Record; and in case of disobedience to such Award or Umpirage, the parties neglecting or refusing to perform the same, shall be subject to all Penalties of contemning a Rule of Court.”

32. For example, Bruce Mann notes the adoption in 1753 in Connecticut of a variation of the Locke statute. Mann, “The Formalization of Informal Law,” 468–69.

33. Brown, Elizabeth Gaspar, British Statutes in American Law 1776–1836 (Ann Arbor: University of Michigan Law School, 1964).

34. Ibid., 4.

35. Ibid., 7.

36. Ibid., 12.

37. Ibid., 13.

38. Ibid.

39. Blackstone, Commentaries, I:105.

40. Brown, British Statutes, 16.

41. Bryson, W. Hamilton, “English Common Law in Virginia,Journal of Legal History 6 (1985) 249, 253

42. Brown, n. 33, 17.

43. Ibid., 19. See the Pennsylvania experience described below (text at notes 47–100) and the Maryland example (notes 101–24).

44. “An Act for Determining Differences by Arbitration,” 9 & 10 Will. 3, c. 15, at 697 (1698).

45. The colonies/states/territories in question are: Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, and Virginia. See “An Act providing for the determination of suits and controversies, by arbitration,” 1819 Alabama Acts 58; Ch. IX, “Arbitrators and Awards,” William McBall and Sam C. Roane, Revised Statutes of the State of Arkansas 103 (1838); “An Act for the more easy and effectually finishing of Controversies by Arbitration,” 1753 Connecticut Colony Acts & Laws 268, microformed on Colonial Session Laws (William S. Hein); Ch. V, “An Act about Defalcation” and Ch. VI, “An Act concerning Awards,” Willard Hall, Laws Of The State Of Delaware: To The Year Of Our Lord, One Thousand Eight Hundred And Twenty Nine Inclusive: To Which Are Prefixed The Declaration Of Independence And Constitution Of The United States (Wilmington: Porter & Son, 1829 rev. ed), 111–12; “An Act, Concerning Awards and Arbitrations,” 1823 Acts of the Florida Legislative Council 28, microformed on Session Laws of American States and Territories, Florida Territory, 1822–1845, Fiche 4 (Redgrave Info. Res.); “An act for determining differences by arbitration,” William Schley, Digest of the English Statutes in Force in the State of Georgia 302 (1826); “An Act authorizing and regulating Arbitrations,” 1819 Illinois Laws 71; “An Act authorising and regulating arbitrations, “1818 Indiana Acts 320; “An Act concerning Awards,” 1798 Kentucky Acts 57; “An Act for rendering the decision of Civil Causes as speedy and as little expensive as possible,” 1 Laws of the State of Maine 361 (1821); “An Act for rendering the Decision of civil Causes, as Speedy, and as little expensive as possible,” 1786 Massachusetts Acts 474; “Of reference to arbitration by agreement before a justice of the peace,” Revised Statutes of the State of Michigan 531 (1838); “An Act, concerning Arbitrations and Awards,” 1822 Mississippi Laws 99; “An Act regulating Arbitrations and References,” 1 Laws of the State of Missouri 137 (1825); Ch. 36, “An Act in Addition to an Act Intitled an Act for the More Speedy Recovery of Small Debts and to Save Cost Usually Attending the Recovery thereof in the Present Course of Law” (Dec. 16, 1796) and Ch. 17, “An Act for Rendering the Decision of Civil Causes More Speedy and Less Expensive than heretofore” (June 21, 1797), in Laws of New Hampshire: Including Public and Private Acts, Resolves, Votes, etc., Second Constitutional Period 1792–1801, vol. 6 (Concord: Evans Printing, Co., 1917), 380, 409; “An Act for regulating References and determining Controversies by Arbitration,” 1794 Acts of the Eighteenth General Assembly of the State of New Jersey 965; “An Act for determining Differences by Arbitration,” (enacted 1791), 1 Laws of the State of New York 156 (1802); “An Act authorizing and regulating arbitrations,” 1799 Acts Published by the Governor and Judges of the Territory of the United States, North-West of the River Ohio 44, microformed on Session Laws of American States and Territories, Northwest Territory, 1788–1801, Fiche 3 (Redgrave Info. Res.) and “An Act, authorising and regulating arbitrations,” 1805 Ohio Laws 140; “An Act for Defalcation,” (enacted 1705), John W. Purdon, Digest of the Laws of Pennsylvania 44 (M'Carty & Davis 1831) and “An Act to regulate Arbitrations and proceedings in Courts of Justice,” 4 Smith 326 (March 1806), as cited by Purdon; “An Act prescribing the Manner of Proceeding in Courts,” in The Public Laws Of The State Of Rhode-Island And Providence Plantations: As Revised By A Committee, And Finally Enacted By The Honourable General Assembly, At Their Session In January, 1798 (Providence: Carter and Wilkinson, 1798), §§ 15–16, pp. 161–76; Ch. VI, “Of the Judiciary” (passed March 2, 1797), § 79, pp. 85–86, Ch. VIII, “Of Probate of Wills, and Settlement of Estates” (passed March 10, 1797), No. 1, § 85, p. 156, Ch. XI, “Of the Jurisdiction of Justices of the Peace” (passed March 4, 1797), No. 1, §§ 31–33, pp. 181–82 in The Laws Of The State Of Vermont, Digested And Compiled, Including The Declaration Of Independence, The Constitution Of The United States, And Of This State, 2 vols. (Randolph: Sereno Wright, 1808), I:85, 86, 156, 181–82; and “An Act concerning Awards,” 1789 Virginia Acts, Ch. LII.

46. In the Provincial Court of Maryland records, starting in 1712, arbitration entries begin to employ the phrase, “according to the form of the statute.” There was no Maryland statute at the time to which this expression could refer. It is logical and likely that the reference was to the 1698 English statute. (The 1712 case reflecting the earliest use of the expression that we have discovered was Carey v. Jessup, Maryland Statutes Annotated (hereafter “MSA”)/Provincial Court Judicial Records (hereafter “PCJR”), Liber TP #2, April Term 1712.) Further, William Kilty in his Report on English Statutes in Maryland (see text following n. 119) states that “[i]t would seem . . . that this statute [the 1698 act] had been considered in force in the province” prior to 1778. Kilty, William, A Report of All Such English Statutes As Existed At the Time Of the First Emigration Of the People Of Maryland, and Which By Experience Have Been Found Applicable To Their Local and Other Circumstances; and Of Such Others As Have Been Made In England Or Great-Britain, and Have Been Introduced, Used and Practised, By the Courts Of Law Or Equity; and Also All Such Parts Of the Same As May Be Proper To Be Introduced and Incorporated Into the Body Of the Statute Law Of the State. (Annapolis: Jehu Chandler, 1811) 181.

47. “An Act to regulate Arbitrations and proceedings in Courts of Justice,” March 1806. Another part was added in 1808 and was reworded in 1810 with much more detail. The statute was supplemented in 1813, 1820, 1821, 1824, and 1825. Purdon, John W., Digest of the Laws of Pennsylvania (Philadelphia: M'Carty & Davis, 1831) 4556.

48. Dallas, A. James, comp., Laws of the Commonwealth of Pennsylvania (Philadelphia: Hall and Sellers, 1797) I:6566.

49. Dallas, Reports I:vi.

50. Primer v. Kuhn, 1 U.S. 452, 456 (Pa. 1789).

51. Kyd, Stuart, A Treatise on the Law of Awards, first American ed. (Philadelphia: William P. Farrand and Co., 1808) 34a. See, for example, Mays v. Mays, 33 Watts 561 (Pa. 1838) (recognizing the defalcation act's application to trover actions); and Massey v. Thomas, 6 Binn. 333 (Pa. 1814) (stating the court would have extended the defalcation statute to ejectment actions, if necessary).

52. Kyd, Treatise, 34d.

53. Ibid., 34b.

54. Ibid., 326a.

55. Addison's Reports 216 (Westmoreland County Court, 1794).

56. Ibid., 225.

57. Ibid., 221.

58. Ibid., 225.

59. Williams v. Craig, 1 U.S. 313, 314–15 (Pa. 1788).

60. Herman v. Freeman, 8 Serg. & Rawle 9 (Pa. 1822). See also our discussion of manuscript sources below, text at nn. 67–85.

61. Klein, Richard Henry, Judgment by Confession in Pennsylvania. (Philadelphia: George T. Bisel, 1929) 2. Judgments of confession could be entered with or without a warrant of attorney, or by the prothonotary. See, generally, ibid., for a description of amicable action practice under common law and statutory law.

62. Ibid., 2–3.

63. Pittsburgh Term. Coal Corp. v. Potts, 92 Pa. Super. Ct. 1 (1927) (“Judgments rendered in amicable actions do not depend for their validity upon conformity with the provisions of any act of assembly; such actions and judgments are not statutory but were well known at common law and sec. 40 of the Act of June 13, 1836, P. L. 572, 579, is merely a recognition of an established common law practice.”). Robert Sprenkle further elaborated: “The manner in which the agreement for the confession of judgment in an amicable action was carried into effect was not of great importance and the courts under prior practice never required strict conformity to a standard practice. Therefore, the procedure varied from the filing of a simple declaration by one attorney acting for both parties to the filing of a praecipe for a summons and a self-sustaining complaint with affidavit, followed by a confession with the instrument containing the power of attorney attached; nor was it important . . . that any particular phraseology be used by the attorney in confession of judgment. It was the substance and not the form which was considered important.” Sprenkle, Robert C., Pennsylvania Confession of Judgement (Philadelphia: Bisel Co., 1982) I, §4.2, pp. 1011.

64. Sprenkle, Pennsylvania Confession, §3.1, 7 (see footnotes on that page for illustrative cases). In Herman v. Freeman, 8 Binn. 9 (Pa. 1822), the court characterized the action as a “reference under the Act of 1705” in which “the plaintiff and defendant consent to a rule of Court, for the adjustment of their controversies by persons mutually chosen by themselves.” Therefore, it was an “entry of an amicable action, designating the parties as plaintiff and defendant, and a submission of all matters in variance between them under the Act of 1705.” Although the text of the defalcation statute did not explicitly refer to amicable actions, they were eligible for the submission process. Such widely disparate practices have made classifying amicable actions difficult.

65. See Mays v. Mays, 33 Watts 561 (Pa. 1838) (“Amicable action of trover . . . in which . . . we do nominate and appoint Simon Drum, William M'Kinney and Randal M'Laughlin arbitrators.”); Massey v. Thomas, 6 Binn. 333 (Pa. 1814) (“Amicable action of ejectment . . . . All matters in variance and controversy between the parties respecting a boundary line between them, referred to [seven persons] who, or any four to decide; and the said parties request the prothonotary to grant an order accordingly.”).

66. See above, text at nn. 4–11.

67. The State Archives in Harrisburg, Pennsylvania hold over a thousand manuscripts of such actions (dating from 1762 to 1837), 300 of which we compiled as a representative sample.

68. Record Groups 33.9 and 33.99, respectively.

69. The sampled documents were all filed in the Eastern District of Pennsylvania, which included the city of Philadelphia and neighboring counties. Arbitration practice may have differed in less urban parts of the state.

70. Oliver Pollock is often credited with the creation of the United States dollar sign, and he was a major financier of the American Revolution. He later fell on hard times, but Congress discharged his debts in 1791. However, that same year, his financial woes returned, and he fell into debt yet again in 1800. See, generally, James, James A., Oliver Pollock; the Life and Times of an Unknown Patriot (New York: D. Appleton-Century Co., 1937). There are several rules of reference and amicable actions pertaining to him for those 2 years. See, for example, Wright v. Pollock (Pa. 1791) #102–03; Thomas v. Pollock (Pa. 1801) #323–24; Leiper v. Pollock (Pa. 1801) #325; and Smart v. Pollock (Pa. 1800) #327–29.

71. John Nixon was also a financier of the Revolutionary War. He was involved in politics and fought alongside General Washington in various battles, including Valley Forge. He became the first director of the Bank of Pennsylvania in 1780 and helped organize the Bank of North America (1781–1782), which he served as President from 1792 until his death in 1808. 1 Penn. Mag. of Hist. and Biog. (Philadelphia: Historical Society of Pennsylvania, 1877) 188–202. For cases involving Nixon as a party, see, for example, Read v. Nixon (Pa. 1801) #1015–19 (involving a dispute between partners, in which the parties decided the jury would decide whether the plaintiff was entitled to half of Mr. Nixon's salary as bank president, while referees would handle all other matters); and Macarty v. Nixon (Pa. 1785) #860–63. For a case naming Nixon as a referee, see Sibbald v. Mariner (Pa. 1795) #1078–80.

72. Girard was a French-born, naturalized American, philanthropist, and banker. He almost single-handedly saved the United States government from financial ruin during the War of 1812 (his bank underwrote up to 95% of the government's war loans), and he became one of the wealthiest men in America. He devoted much of his fortune to philanthropy. See, generally, Herrick, Cheesman A., Stephen Girard Founder (Philadelphia: Girard College, 1923).

73. Leaming v. Steinmetz (Pa. 1789) #554–55 (involving the plaintiff's right of dowry and a possible set-off using a licensed right of way).

74. Wilkoff v. Cresson (Pa. 1806), #168–69; Smith v. Saunders (Pa. 1801), #178–80; and Peaceable v. Willing (Pa. 1798) #452–66.

75. Ware's Lessee v. Fisher (Pa. 1800) #115–18.

76. Thurin v. Bell (Pa. 1794) #409–10 (involving an insurance policy on a ship's lost freight).

77. Hill v. Hughes (Pa. 1800) #1171–74.

78. Wilcox v. Bunell (Pa. 1806) #811–13; Mussi v. Rousseau (Pa. 1800) #619–20; Neill v. Neill (Pa. 1800) #896–901; and Wallis v. Wilson (Pa. 1797) #145–46.

79. Lovel v. Gilchrist (Pa. 1798) #482–86 (empowering the referees “to hear the proofs and allegations of the parties with power to examine them on oath to wit on their own adjournments and to procure such other evidence as shall be competent to satisfy their minds on the Subjects in Controversy.”); also Williams v. Redman (Pa. 1787) #221–23.

80. See, for example, McKean v. Leiper (Pa. 1805) #745–47 (in which the prothonotary had fixed the number of referees at five because the parties could not agree on a number. “The plaintiff then named twelve persons all of whom were objected to by the defendant and the prothonotary thereupon made out a list of twenty-five names and the parties alternately struck out the names each leaving [named people] … as the arbitrators.”).

81. Walsh v. Simmons (Pa. 1802) #108–12 (in which all but three of the original jurors became referees); McDonald v. Green (Pa. 1797) #645–46; and Thurin v. Bell (Pa. 1794) #409–10 (all twelve jurors were converted to referees).

82. Tobey, 23 F. Cas. at 1321.

83. Walsh v. Simmons (Pa. 1802) #108–12. The original referees said they were dissatisfied with their report because the issues had been complicated and involved points of law “they [did] not feel themselves competent to decide, and desire[d] for the sake of Justice that a new trial of it may be had.” See also Wilson v. Leiper (Pa. 1797) #217–18 (“We the Referees having Examined the acct as above menshoned and finding our selves not Capible of Settleing the ____ [sic] beg that the Court will Take som other Remedey to settle the ___ [sic].”).

84. Robert Ralston, a prominent merchant and philanthropist, was a repeat referee. Peters v. Rodgers (Pa. 1800) # 976–78; and Peddreck v. Sommerl (Pa. 1800) #948–50. See also Hurst v. Ingram (Pa. 1797) #1175–78 (merchant referees awarded the plaintiff £876 and ordered that he be exonerated and indemnified for a listed sum of money he had expended on the defendants' behalf while serving as their attorney); and Marinho v. Giese (Pa. 1795) #824-26. The agreement to refer in Marinho named Richard Rundle and James Yard as referees, among others. Both men were prominent merchants: Rundle was also real estate investor, director of the Bank of North America, and a manager of the Pennsylvania Hospital, whereas Yard owned a brick store and was also a shipping merchant. Foster, Kathleen, Captain Watson's Travels in America (1997) and Ritter, Abraham, Philadelphia and Her Merchants (Philadelphia: published by the author, 1860). In this complex case, the referees ordered the defendant (Giese) to give the power to receive goods originally consigned by himself to third parties over to Marinho – “sufficient powers to receive from Parish H Merchants of Hamburgh the dye wool consigned to them by Thomas Giese on the Ship Jane ____[sic] or the proceeds thereof if the same should be sold, the condition of which order or power shall be that the said Antonio Joze de Marinho do pay or cause to be paid to the said Parish H the amount of twelve hundred pounds sterling advanced by them to Thomas Giese.” The award also ordered Giese to pay to Marinho a little more than ₤623 in exchange for security from Marinho to Giese to indemnify Giese if the dye wool was insufficient to reimburse Parish. The referees reserved the right to determine the “nature and form of the power” to receive the consigned goods and also the “competency of the security,” and Giese would have legal recourse in the event that Giese remained liable to Parish for any sum greater than the security he was to receive from Marinho.

85. See, for example Frances v. Pearce (Pa. 1803) #1133–39 (providing that if the referees could not agree, they would appoint a “Gentleman of Eminence in the Law, namely William Tilghman Esquire.”); Ware v. Fisher (Pa. 1800), #115–18 (interpreting a will in which the referees had to determine whether “children” was synonymous with “heirs of the body.”); and Levy v. Bartram (Pa. 1790) #468–73, 556–59 (determining whether the plaintiff had any share in her deceased husband's estate as the heir and residuary legatee of a certain James Steele).

86. Text at nn. 58–59, above.

87. “The Report of the Judges of the Supreme Court of the Commonwealth of Pennsylvania” Appendix to 6 Binney's Reports (1808) 593–626. The General Assembly had passed an act in April 1807 commissioning the judges to cull through English statutes to determine which ones ought or ought not to be incorporated in Pennsylvania. Ibid., 594.

88. The judges reported that because they had been so careful in their survey, their report “deserves to be placed by the side of judicial decisions, being the result of very great research and deliberation by the judges, and of their united opinion. It may not perhaps be considered as authoritative as judicial precedent; but it approaches so nearly to it, that a safer guide in practice, or a more respectable, not to say decisive, authority in argument, cannot be wanted by the profession.” Ibid., 595, n.

89. Ibid., 625.

90. Dunlop, James, ed., The General Laws of Pennsylvania from the year 1700, to April 22, 1846, chronologically arranged: with notes and references to all the decisions of the Supreme Court of Pennsylvania, (Philadelphia: Johnson, 1847) 698, n.1; and Laws of the Commonwealth of Pennsylvania: from the fourteenth day of October, one thousand seven hundred (Philadelphia: Bioren, 1812) 5:139, n. (c).

91. See above text at nn. 55–58.

92. Kyd, Treatise, 326b.

93. Buckley v. Durant, 1 Dallas 129 (1785).

94. Ibid., 130.

95. Levezey v. Gorgas, 4 Dallas 71 (1799). The report in Dallas gives the arguments before and disposition by the High Court of Errors and Appeals, on error from the Supreme Court, which was decided on other grounds.

96. Kyd, Treatise, 326f.

97. Kunckle v. Kunckle, 1 Dallas 364 (1788).

98. Ibid., 365.

99. Ibid.

100. Kyd, Treatise, 326h.

101. Ibid.

102. E.g. Archives of Maryland, vol. VIII, p. 351, 1693.

103. E.g. Archives of Maryland, vol. LI, arbitration cases from the years 1669 (p. 20), 1670 (p. 36), 1677 (p. 544).

104. Archives of Maryland, LIV: 10, 154, 234, 316. 382, 637, 646, 712, 727.

105. Ibid., LX: 92.

106. Ibid., LXIII: 297.

107. MSA, C 1139-1, recording 546 cases from 1787 to 1827.

108. MSA C 863-1, recording 603 “actions referred by consent of parties & rule of court…see Act of Assembly November 1785, chapter 80, section 11,” 1786–1809.

109. Docket and minute books for the Provincial Court also contain arbitration references. See, e.g., MSA 548–5, September Term 1774 (docket book); MSA 553–1, April Term 1765 (minute book).

110. A few of these turned out to be continuances (signified on the index by the word “referred”). Also, examination of the documents themselves revealed a number of references that are not shown in the indexes.

111. Maryland Archives, vol. LVII, Proceedings of the Provincial Court 1666–1670.

112. Iin one case in 1702, the chief justice of the Provincial Court became one of the arbitrators in a suit in which one of the junior justices, Thomas Greenfield, was the plaintiff! Greenfield v. Cox, MSA/PCJR, Liber TG. One of the judges of the Provincial Court in mid-eighteenth century who acted as arbitrator in a number of cases was Bedddingfield Hands, Esq. See, for example, Harris v. Holt, MSA/PCJR, Liber BT #3, 325, referred April 11, 1758.

113. See Day, Alan F., “Lawyers in Colonial Maryland, 1660–1715,The American Journal of Legal History XVII (1973): 145, 163 “The population which quadrupled between 1660 and 1700 was overwhelmingly engaged in the production and marketing of tobacco. Specie of any kind was scarce and tobacco became the currency and the cash crop of the province.” (Footnote omitted.)

114. See, for example, Hall v. Ridgey, MSA/PCJR, Liber BT #3, 159, referred September 13, 1757.

115. Maryland Archives vol. LX, Proceedings of the County Court of Charles County 1666–1674, 92.

116. Jeffrey K. Sawyer, “Distrust of the Legal Establishment in Perspective: Maryland during the Early National Years,” Georgia Journal of Southern Legal History, II (1993): 1, 22.

117. Ibid., 25.

118. However, we do know that these submissions existed. See, for example, West v. Stigar, 4 H. & McH. 490 (Md. Prov. Ct. 1765); and West v. Stigar, 1 H. & McH. 247 (Md. Prov. Ct. 1767).

119. Acts of Assembly, 1778, ch. 21, §§ 8 and 9. “If any cause instituted in any court of this state shall be referred to the award of any persons, it shall be lawful for such court to give judgment, and award execution, in the same manner as they might do upon verdict; and such judgment shall have the same effect, to every intent and purpose, as any judgment upon verdict; provided such award shall remain seven days in court before judgment be entered. And if it shall appear to the court that the award was obtained by fraud or malpractice in, or by surprize, imposition, or deception of the arbitrators, or without due notice to the party, their attorney or attornies, it shall be lawful for said court to set aside the said award.”

120. Kilty, A Report of All Such English Statutes. For a description of the magnitude of this work, see Bernard Steiner, “The Adoption of English Law in Maryland,” Yale Law Journal 3 (1899) 353, 358–59.

121. According to the Maryland Court of Appeals, “The only evidence to be found on that subject [whether a particular statute was incorporated in Maryland] is furnished by Kilty's Report of the Statutes . . . . That book was compiled, printed, and distributed, under the Sanction of the State, for the use of its officers, and is a safe guide in exploring an otherwise very dubious path.” Dashiell v. Attorney General, 5 Har. & J. 392, 403 (Md. Ct. App. 1822).

122. Kilty, A Report of All Such English Statutes, 181.

123. Shriver v. State, 9 G. & J. 1 (Md. Ct. App. 1837).

124. Bernard Steiner, “The Adoption of English Law in Maryland,” 353, 360–61 (“[I]n only two cases, and these occurring in the first thirty years after the publication of the Report, were additional Statutes decided to have been found applicable, and that, in no case, was one found applicable by Kilty taken out of the list by the Court of Appeals.”).

125. Moxley v. Acker, 447 A.2d 857 (Md. Ct. App. 1982) (“Although no official action was taken on this report, ‘in only two cases . . . were additional Statutes decided to have been found applicable, and that, in no case, was one found applicable by Kilty taken out of the list by the Court of Appeals.’”); and State v. Magliano, 255 A.2d 470 (Md. Ct. Sp. App. 1969) (“That Kilty did not regard a statute as ‘applicable’ did not preclude a court from having a different view. Steiner found only two cases, however, in which Kilty's opinion was overruled, Shriver v. State, 9 Gill. & J. 1, 11 and Sibley v. Williams, 3 Gill. & J. 63.”). See also Gallaudet Univ. v. Nat'l Soc'y of the Daughters of the American Revolution, 699 A.2d 531, 541 (Md. Ct. Sp. App. 1997); Dean v. State, 285 A.2d 295, 298 n.3 (Md. Ct. Sp. App. 1971); and Silberman v. Jacobs, 267 A.2d 209, 220 (Md. Ct. App. 1970).

126. John T. Morse, Jr., The Law of Arbitration and Award (Boston: Little Brown, 1872), 80.

127. Justice White, in Gilmer v. Interstate/Johnson Lane Corp, text at n. 2, above.

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
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