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John Locke, Lord Mansfield, and Arbitration During the Eighteenth Century*

Published online by Cambridge University Press:  11 February 2009

Henry Horwitz  and
James Oldham
Henry Horwitz
Affiliation:
University of Iowa
James Oldham
Affiliation:
Georgetown University
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Abstract

An exploration of the origins of the Arbitration Act of 1698 and an analysis of court-related arbitration during the next century. Principal conclusions: (1) that the act originated at the board of trade, with John Locke drafting and drawing upon judicial practice of the later 1600s; (2) that use of the act's provisions was limited before the 1770s even though extra-judicial arbitration was proliferating; (3) that thereafter, with the Court of King's Bench under Lord Mansfield taking the lead, rules of court under the act multiplied; and (4) that arbitration under the act was increasingly ‘legalized’ in procedure and in the qualifications of the arbitrators.

Type
Articles
Information
The Historical Journal , Volume 36 , Issue 1 , March 1993 , pp. 137 - 159
Copyright
Copyright © Cambridge University Press 1993

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References

1 Brewer, J., ‘The Wilkites and the law, 1763–74: a study of radical notions of governance’, An ungovernable people, eds. Brewer, J. and Styles, J. (London, 1980), pp. 168–9Google Scholar . Burrows' Worcester Journal of 15 Nov. reprinted the story from a London paper, The Gazeteer and New Daily Advertiser of 13 Nov.

2 Holdsworth, W., The history of English law, XIV (London, 1964), pp. 188, and 187–201Google Scholar .

3 For the board's involvement in projects for domestic reform during its early years, see Mathias, R. G., ‘The economic policy of the Board of Trade 1696–1714’ (unpublished B.Litt. thesis, University of Oxford, 1939)Google Scholar .

4 Public Record Office, Colonial Office 391/9, p. 62. The earliest and fullest notice in Locke scholarship of his hand in the arbitration proposal is Bourne, H. R. Fox, The life of John Locke (London, 1876), 11, 355–8Google Scholar .

5 Bodleian Library, Locke MS C30 fo. 18, now printed in Locke on money, ed. Kelly, Patrick H. (Oxford, 2 vols., 1991) II, 485Google Scholar 486.

6 Aubrey on education, ed. Stephen, J. E. (London, 1972), p. 104Google Scholar. Our thanks to Sir Keith Thomas for this reference.

7 The correspondence of John Locke, ed. DeBeer, E. S., VI (Oxford, 1979), 689–92Google Scholar .

8 P.R.O., CO 391/9, pp. 222–3.

9 Early drafts of the bill survive at Bodl. Lib., Locke MS C30, fo. 105. Comparison of these with the version later submitted by the board to the privy council indicates that the righthand text was the earlier of the two and that the lefthand text was probably the version sent by the board to Locke in the country after undergoing revision chiefly at William Blathwayt's initiative. For the process of revision, see P.R.O., CO 391/9, pp. 235, 288, 354–5, 358; the board's final composite version is at P.R.O., CO 389/14, pp. 91–2.

10 Holdsworth, , History, XIV, 187Google Scholar . See especially Powell, E., ‘Arbitration and the law in England in the late Middle Ages’, Royal Historical Society Transactions, 5th series, XXXIII (1983), 49–67CrossRefGoogle Scholar ; and also Rawcliffe, C., ‘“That kindliness should be cherished more, and discord driven out”: the settlement of commercial disputes by arbitration in later medieval England’ Enterprise and individuals in fifteenth-century England, ed. Kermode, Jennifer (Gloucester, 1991), pp. 99–117Google Scholar .

11 The centralized court system required that nisi prius cases be initiated by a filing in King's Bench, Common Pleas, or the law side of the Court of Exchequer; technically, then, such cases would be heard in those courts unless before (nisiprius) the dates set for hearing, they were tried at the sittings in London or Middlesex or on assize in the provinces.

12 These are calendared by Cockburn, James in Western circuit assize orders 1629–1648 (Camden Society, 4th series, XVII, London, 1976)Google Scholar . See also his A history of English assizes 1558–1714 (Cambridge, 1972), p. 136Google Scholar .

13 P.R.O., Assizes 22/1, fo. 1. Compare the somewhat fuller newspaper account of similar proceedings over a century later: ‘Last week the trial between Master and Owners of the Scooner Unity…came on before Baron Perrot, at the Assizes at Chelmsford…The action was brought to recover £3,000 damages, supposed to have been suffered by the said ship and cargo during her detainer; when, after a part of the Plaintiffs witnesses were heard, the Court recommended that the damage might be setded by the arbitration of three of the Special Jury then present, on Defendant's agreeing to pay all costs of suit, which was assented to’ Lloyd's Evening Post, 22–24 Mar. 1773. On occasion, both in the 1650s and later, an alternate form is found: the jury is ordered to find a verdict for the plaintiff, the verdict is to stand as security for the defendant's performance of the award, and entry of the postea is stayed pending the arbitrator's determination of the amount of damages.

14 P.R.O., Common Pleas 45/416, Lamb v. Hudson, 6 and 16 May 1659, referring back to an earlier order of 26 June 1658.

15 Powell, , ‘Arbitration’ pp. 52–3Google Scholar ; Rappaport, Steve, Worlds within worlds: structures of life in sixteenth-century London (Cambridge, 1989), pp. 206–7CrossRefGoogle Scholar , 383; Bodl. Lib., Rawlinson MS D804, part i, notebook of a London attorney (1672–87) including entries of bonds for arbitration and indentures of awards, fos. 5V, III, 23, and passim.

16 Arbitrium Redivivum: Or The Law of Arbitration (1694), P. 10.

17 P.R.O., Chancery 109/20, part 1 (unsorted box). For the extensive quasi-legalistic documentation even an out-of-court arbitration could generate, see The papers of Thomas Bowrey 1669–1713, ed. SirTemple, Richard Carnac (Hakluyt Society, 2nd series, LVIII [1927]), pp. 303ffGoogle Scholar. Our thanks to David Bush of Harvard University for this reference.

18 Preface to Arbitrium Redivivum.

19 In this connection, the agreement of two partners in a Lambeth distillery is worth noting. Along with the conventional provision for settlement of disputes by arbitration (in this instance backed up with mutual penal bonds of £500), the parties covenanted that should the arbitration fail, nothing given in by either side as evidence in the arbitration should ‘be made use of…or produced in evidence or testimony by the other' in any subsequent litigation. P.R.O., C 103/189 (Mason v. Markes), 1694.

20 In fact, the records of King's Bench in these years do not include any rules relating to suits at nisi prius which were referred to arbitration. However, in several instances in which arbitrations were agreed upon before suits went to trial, the bench did manifest a concern over enforcement, and in one case the parties were ordered to enter into penal bonds of £1,000 to perform the award: P.R.O., King's Bench 125/90, Vyner v. Peek, Hilary 1658.

21 Stilts v. Triste, 13 Charles II, 1 Siderfin 54 (English Reports 82), Sir T. Raymond 35 (ER 83), 1 Keble 130 and 138 (ER 83); Heliar v. Brown, 15 Charles II, 2 Keble 22 (ER 84); Darbyshire v. Cannon, 21 Charles II, 2 Keble 575 (ER 84), 1 Modern 21 (ER 86); Tremenhere v. Tresillian, 22 Charles II, 1 Siderfin 452 (ER 82) and as Clemenhere v. Tresilian, 2 Keble 645 (ER 84).

22 Lord Nottingham's ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’, ed. Yale, D. E. C. (Cambridge, 1965), p. 309Google Scholar . Nottingham specifically cited the decision in Hide v. Petit, 21 Charles II, 1 Chancery Cases 185–6 (ER 22) in which his predecessor Bridgman observed: ‘of late the Courts of Law do refuse to grant Attachments’ as a matter of course ‘bu t leave the Party to his Action, the Rule being Evidence of his Submission’.

23 Coats v. Pocok, 27 Charles II, 3 Keble 446 (ER 84); Holt v. Berry, 29–30 Charles II, 3 Keble 844 (ER 84). See also Skip v. Chamberlain, 6 William & Mary, Comberbach 303 (ER 90); Forsterv. Brunetti, 8 William III, 1 Salkeld 83 (ER 91).

24 Of these forty-eight, thirty-seven originated at nisiprius, the other eleven in suits which had not yet gone to trial (styled ‘special references’ in eighteenth-century practice manuals). P.R.O., CP 45/629–37 (Easter term 1697 through Hilary 1698); P.R.O., KB 125/126–7 (Hilary Michaelmas 1697). Our thanks to Tim Wales of Cambridge University for searching these records.

25 P.R.O., CO 389/14, pp. 91–2. For the process of revision, see above, n. 9.

26 P.R.O., CO 389/14, p. 90.

27 Lords Journals, XVI, 231; Manuscripts of the House of Lords 1697–1698 (new series 3, 1905), pp. 113–14.

28 The chair of the Commons' committee on the bill was Locke's close friend Clarke, Edward. The text of the act is printed in Statutes of the realm, VII (London, 1820), 369–70Google Scholar .

29 Bacon (London, 1731), pp. 33–4. See also Hawkins, W., A treatise of the pleas of the crown (London, 1721), II, 153Google Scholar; Impey, J., The new Instructor Clericalis (3rd edn, London, 1790), pp. 684–5Google Scholar .

30 Commentaries (Chicago reprint edn, 1979), III, 17.

31 All eighteenth-century years, in this and succeeding tables, run from the Easter term through the Hilary term. P.R.O., CP 45/629–37, 719–21, 768–9, 812–15, 830–4; P.R.O., KB 125/126–7, 136, 144, 154, 159.

32 The act allowed entry of arbitration agreements in any court of record, and occasional entries were made in the central courts of equity – Chancery an d the equity side of Exchequer. Since references from nisi prius could only be entered in the common law courts, most Chancery rules were generated by submissions o r ‘special references’ (see above, n. 24). Some arbitration agreements and awards can be found at P.R.O., C 32. Th e story of a prolonged and contentious process of arbitration in the equity side of the Court of Exchequer is told by Price, J. M. in ‘Sheffield v. Starke: Institutional experimentation in the London–Maryland trade c. 1696–1706’ Business History, XXVIII, 2 (1986), esp. pp. 23–6Google Scholar.

33 Brooks, C. W., ‘Interpersonal conflict and social tension: civil litigation in England 1640–1830’ in eds. Beier, A. L. et al. The first modern society (Cambridge, 1989), pp. 360–4Google Scholar .

34 In 1793, Lord Chancellor Loughborough observed in passing: ‘everyone knows diis [arbitration] clause is in every article of partnership’; Mitchell v. Harris, 2 Ves. Jun. 129 at 136 (ER 31).

35 The Grosvenor estate in Mayfair, Part I (Survey of London 39, London (1977), 15–16)Google Scholar . The agreements are now at Victoria Library (Westminster), Grosvenor Estate MSS 1049/3/9.

36 British Library 816 m. 10, no. 85, clause II. Virtually identical language may be found in the London Assurance proposals of 1722; ibid. no. 98, clause 7. Note, too, that creditors appearing before commissioners for bankruptcy were offered the option of arbitration in disputes over the worth of their claims.

37 Scott v. Avery (1856) in 5 house of lords cases 811 at 818 (ER 10). See also his assertion in Russell v. Pellegrini (1856) in 6 Ellis & Blackman 1020 at 1026 (ER 119) that ‘the courts of law had, in former times, acquired a horror of arbitration’ quoted in Wolaver, E., ‘The historical background of commercial arbitration’ University of Pennsylvania Law Review, LXXXIII (1934), 142Google Scholar.

38 Lincoln's Inn, Hill MS 26 (Hilary 1746), fo. 149. Hill's unprinted reports have been shown to be reliable an d informative in other contexts: Oldham, James, ‘New light on Mansfield and slavery’ Journal of British Studies, XXVII (1988), 45, 55–9Google Scholar . For another report of Wellington, see Lincoln's Inn, Coxe MS 46 (Easter 1743), fos. 170–1. For reports of Kill, see Harvard Law Library, Dennison MSS, Long Notebook no. 83 (Trinity 1746), fo. 48b, an d also no. 150 (Easter 1746), fo. no; Lincoln's Inn, Misc. MS III (Easter 1746), p. 1317.

39 P.R.O., CP 45/830–1, 850, 852, 861–2; P.R.O., KB 125/159, 164, 169.

40 Brooks, , ‘Interpersonal conflict’ p. 364Google Scholar.

41 Oldham, James, The Mansfield manuscripts and the growth of English law in the eighteenth century (Chapel Hill, North Carolina, 2 vols., 1992), pp. 122–4Google Scholar . Appendix E calendars references to arbitration in cases brought to trial before Mansfield.

42 Mansfield was involved in the making of no less than forty-one of the eighty-four references entered as rules in King's Bench in 1785.

43 Baker, J. H., An introduction to English legal history (3rd edn, London, 1990), p. 60Google Scholar , and also P. 398.

44 Printed examples of such rules can be found in the appendix to the second edition of Kyd, Stewart, A treatise on the law of awards (London, 1799), pp. 398—437Google Scholar .

45 All told, single arbitrators were named in 68 of 84 references, groups of arbitrators in 33 of 37 submissions (in two other submissions, the arbitrators' names are omitted).

46 The total of thirteen includes all instances that might possibly be construed as involving business relationships; among them are five references in which the only pointers to the nature of the issue in controversy are Mansfield's indications in his trial notes that the form of legal action in the suits involved was ‘in case’ for goods delivered, money lent or o n account, for work or labour, etc., or in debt.

47 This total of eight includes the one submission for which some indication of the nature of the dispute is given in the King's Bench rulebook.

48 Another gauge of what was at stake in arbitration cases is provided by the sums specified in the penal bonds commonly exchanged by parties in out-of-court agreements (and sometimes recorded in rules of court of submissions). In twelve instances of submissions noted in P.R.O., C 42/1–2 and 10 (boxes from the early and later decades of the century), the range was from £200 to £20,000, with a median amount of £2,000. Given that penal bonds usually were made out in double the amount of the actual sums at stake, at least half these disputes probably involved claims of £1,000 or more.

49 Two of these references and two of these submissions are included in our total of thirteen rules made with respect to business disputes.

50 Fourteen of these nineteen were designated as merchants; the others included a shipbuilder, an upholsterer, a carpenter, a pawnbroker, and a timber merchant and a victualler named jointly.

51 All four were treated as involving business arrangements solely on the basis of the form of action noted by Mansfield.

52 Burrow, who became Master of the Crown Office in 1756 (and served as reporter of King's Bench cases from 1756 to 1772), on occasion served as an arbitrator in misdemeanour cases on the ‘crown side’ of the court that involved conduct on the borders between crime and tort; Oldham, , The Mansfield manuscripts, p. 1623Google Scholar .

53 As Lowten was designated in over four-tenths of the forty-one references of 1785 in which Mansfield had been the trial judge, so Chief Justice of Common Pleas Sir James Eyre relied heavily upon another minor court officer, the Marshall and Associate Harry Edgell, in references of the 1790s made at the metropolitan sessions: P.R.O., ASSI 39/9–10.

54 Oldham, , The Mansfield manuscripts, p. 154Google Scholar . For a newspaper report of Baron Perrot of the Exchequer recommending a reference at the assizes at Chelmsford in 1773, see above, n. 12.

55 P.R.O., CP 45/772–82; P.R.O., KB 125/145–7.

56 For a fuller account of common stipulations in rules for references in King's Bench in 1785, see Oldham, , The Mansfield manuscripts, pp. 1540–1Google Scholar . Some of these procedural stipulations can be found in skeleton form in pre-1698 references: e.g. the order that a named individual attend with a transfer book in Gillingham v. DaCosta, P.R.O., KB 125/125 (Easter 1695).

57 The chapter is at volume 1, 260–9, of the third edition of Crompton's treatise published in 1786; the first edition of Kyd's authoritative work was published in 1791.

58 Normally, a party arrested on a writ of attachment would be permitted to give bond to appear before the court to explain his ‘contempt’.

59 P.R.O., KB 125/170, Easter–Michaelmas 1785. Hopkins's spell in custody may be contrasted with the eighteen months the prisoner in the 1770 newspaper story was said to have languished in prison.

60 Occasionally, the survival of nisi prius special rule books makes it possible to calculate the frequency of entry of references. Of twenty-five references made on the Western Circuit in 1775 and 1785 which allowed for entry as a rule in King's Bench, fifteen were so entered. Of thirteen references made on the Home Circuit between 1737 and 1741 permitting entry in King's Bench, six were so entered. P.R.O., ASSI 22/3 and 34/76.

61 A treatise on the laws of awards (Dublin, 1791), pp. 250–1Google Scholar , and repeated in the 1799 edition at pp. 392–3.

62 E.g. Mansfield, remarked in Hawkins v. Colclough (1757)Google Scholar , as quoted in Holdsworth, , History, XIV, 192Google Scholar : ‘It is right they [awards] should be liberally construed, because they are made by judges of the parties' own choosing.

63 P.R.O., KB 125/197–8; P.R.O., CP 44/67.

64 A preliminary analysis of the even more voluminous evidence for 1825 suggests a continuation and elaboration of the trends discernible in 1805.

65 Holdsworth, , History, XIV, 190–1Google Scholar , 196–7; for these provisions, see sections 39–41 of ‘anActfor the further Amendment of the Law’ 3–4 William IV c. 42 (1833).

66 There were, to be sure, a few occasions when arbitration under rule went seriously awry. A particularly striking case was Smith v. Trinder (King's Bench rule of 9 Nov. 1767). One side ended up by bringing a charge of forgery; the other, charges of riot. P.R.O., KB 125/160, 9 Nov. 1767; KB 1/17, affidavits re Trinder's and his associates' alleged ‘conspiracy and misdemeanour’ KB 21/39, Michaelmas 1767 and Hilary 1768.

67 Rubin, G. and Sugarman, D., ‘Towards a new history of law and material society in England, 1750–1914’ in eds. Rubin, G. and Sugarman, D., Law, economy and society, 1750–1914: Essays in the history of English law (Abingdon, 1984), p. 15Google Scholar , and cf. p. 4.

68 Commentaries, I, 353; The parliamentary history of England, XV (London, 1813), 740Google Scholar . And in general see Lieberman, David, The province of legislation determined (Cambridge, 1989), pp. 29–67CrossRefGoogle Scholar .

69 See above, n. 56.

70 The Gazeteer and Mew Daily Advertiser, 13 Nov. 1770.

71 Commentaries, III, 380, and IV, 277–80.

72 Commentaries, IV, 282.

73 Commentaries, IV, 282, 283–4.

74 For a discussion of the analogous effects on arbitration in Connecticut after the enactment there in 1753 of a statute based on the 1698 act, see Mann, Bruce, ‘The formalization of informal law: arbitration before the American revolution’ New York University Law Review, LIX (1984), esp. pp. 473–81Google Scholar .