COMMENTARIES
ON THE
LAWS
OF
ENGLAND
BOOK THE THIRD
BY
WILLIAM BLACKSTONE,
Esq.
SOLICITOR GENERAL TO HER MAJESTY.
THE EIGHTH EDITION. OXFORD,
AT THE
CLARENDON PRESS, MDCCLXXVIII,
PRINTED FOR WILLIAM STRAHAN, THOMAS CADELL,
AND DANIEL PRINCE. II.
ARBITRATION is where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgement 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 or impar) to whose sole judgement it is then referred; or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or fettled, as it could have been by the agreement of the parties or the judgement of the court of justice. But the right of real property cannot thus pass by a mere award : which subtilty in point of form (for it is now reduced to nothing else) had it’s rise from feudal principles; for, if this had been permitted, the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitration-bond to refuse compliance. For, though originally the submission to arbitration used to be by word, or by deed, yet both of these being revocable in their nature, it is now become the practice to enter into mutual bonds, with condition to stand to the award or arbitration of the arbitrators or umpire therein named. And experience having shown the great use of these peaceable and domestic tribunals, especially if settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; the legislature has now established the use of them, as well in controversies where causes are depending, as in those where no action is brought, and which still depend upon the rules of the common law|: enacting, by statute 9 & 10 W.III.c.15. that all merchants and others, who desire to end any controversy, (for which there is no other remedy but by personal action or suit in equity) may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king’s courts of record: and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award shall be set aside, for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made. And, in consequence of this feature, 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 those rules and orders which are issued by the courts themselves.