This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Like accord and satisfaction,1 the method of settling controversies and disputes by means of arbitration seems to be one of immemorial antiquity in English law as indeed it is in practically every system of law. In early society, when the central authority is weak, it is, on the one hand, sometimes difficult to distinguish between the voluntary submission of the parties to their own arbitrators, and their submission to the judgments of the judicial powers, since in either case their obedience, if any, is purely voluntary.2
Arbitration was probably an established method of settling disputes before the king's courts were established in England. The fact that the jurisdiction of the king's courts was, at the outset, confined chiefly to criminal matters, to disputes concerning freeholds and to certain forms of tort, prevented these courts from dealing with arbitration, except in case of tort, or in cases in which the submission was under seal or seizin of realty was made as a result of the arbitration. As forms of action involving contract liability appeared in the king's courts, they were forced to deal more and more with arbitration as a recognized method of discharging pre-existing liability. In the earliest reports of cases,3 arbitration seems to be assumed as a well-established method of settling disputes. The early digests show that arbitration was assumed as a sufficient discharge, and that the courts were already elaborating the details and discussing problems which were much the same as those which trouble our courts to-day, after making due allowance for the different economic and social conditions of the times.4 Evidently the rules determining the general nature and effect of arbitration and many of the leading principles were "known and uncontroverted law,"5 when the courts decided the cases which are reported in the year books.
2 See Sec. 2536 et seq. and 2613 et seq.
3 Richards v. Smith, 33 Utah 8, 91
4 Gordon v. United States, 74 U. S. (7 Wall.) 188, 10 L. ed. 36; Perry v. Cobb, 88 Me. 436, 49 L. R. A. 389, 34 Atl. 278; Millsaps v. Estes, 137 N. Car. 535, 107 Am. St. Rep. 496, 70 L. R. A. 170, 50 S. E. 227.
5 Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. R. A. 623; Chandos v. American Fire Ins. Co., 84 Wis. 184, 19 L. R. A. 321, 64 N. W. 390.
1 See Sec. 2502.
2 The method by which the blood feud was compromised, was more like arbitration than like a modern proceeding in court. Nothing could be done unless the parties submitted at the outset, and there was no available means for coercing them in case they refused to abide by the award. See The Njals Saga, Sources of Ancient and Primitive Law, Vol. I, Evolution of Law Series, pp. 122 et seq.
In many states provision for arbitration is made by statute. Where no such provision is made, arbitration at common law is, nevertheless, a valid method of discharge.8 If the statutes provide for arbitration, such statutes are not exclusive unless they are so made by their express terms;7 and an arbitration which is good at common law, is good under such statutes, although it does not conform to the terms of the statutes on the subject.8