Dr Francis Calvert Boorman’s research on the history of arbitration for the Access to Justice project at the Institute of Advanced Legal Studies, reveals why we need to understand the uses of this alternative justice system to explain the workings of 18th-century life. 

Today, arbitration is best known for its role in international commerce, family disputes, and perhaps in sport, which has its very own Court of Arbitration. In the 18th century it was ubiquitous, certainly used in the three instances already listed, but also to settle disputes ranging from the relatively frivolous such as gambling debts to cases that appear to the modern sensibility to be fit only for criminal proceedings, like assault or rape.

In the 18th century, the popularity of arbitration was often based on the perception that it was cheaper than going to court. Take, for instance, the advice of Jack Arable, a character in the play Speculation, performed at the Theatre Royal, Covent Garden, in 1795: ‘Never, never go to law; leave the whole business to arbitration, for if you don’t at first, the lawyers, after emptying your pockets, will only do it at last.’

Such statements might make us think that there was antagonism between the courts and arbitrators, a long-held belief among legal historians, but this could not be further from the truth. All of the major courts, from Chancery and King’s Bench through to the assizes, routinely referred matters to arbitration, often by lawyers, but just as likely by relevant experts including merchants, accountants, surveyors, or artisans. As Lord Chief Justice, Lord Mansfield was a great supporter of arbitration, and in the early 19th century, Lord Chancellor Eldon asked if parties in court might not ‘have their disputes determined by that more wholesome mode’.

The solitary justice of the peace would often mediate or arbitrate in disputes rather than delivering summary justice. In fact, arbitration helped to solve disputes at all levels of local government. The parish turned to arbitration to decide disputes over taxation, or their responsibility for provision for the poor and maintenance of the highways. Legislation rarely provided enough detail to regulate the functioning of government and the arbitration of a respected local, who took into account particular traditions and social relations, helped to uphold the social compact.

Yet by looking beyond the official records of court and government we can find a whole ecosystem of private arbitrations that took place without any judicial involvement. Newspapers give us some of the best stories, such as the following one found in the St James’s Chronicle or the British Evening Post.

A fight in 1790 between Big Ben and Hooper the Tinman was supposed to take place on the quays at Newbury. The High Sheriff of Berkshire, along with the Mayor of Newbury, tried to prevent the fight, but the combatants laid out a ring five miles out of town at Blackbury Common, which they reached by carriage along the Reading Road. Both men were hurt in the early rounds after which an epic contest played out. In the 131st round, Hooper was hit and fell. The fight continued to round 180. Hooper kept going down, but from this point without any blows being landed. Lord Barrymore, whose presence gives the suggestion of a crowd of aristocratic gamblers, stopped the bout and declared that it would be referred to arbitrators to decide whether a man who kept falling, without throwing or receiving punches, could still be deemed to be fighting.

Arbitration was a prop to leisure activities that were only in the early stages of establishing fixed rules and professional bodies to provide regulation, but on which large sums of money might be gambled. Its use in mediating the juxtaposition of traditional activities with an increasingly commercial, modern society also points us to the role arbitration played in greasing the wheels of the Industrial Revolution and the changes occurring in England’s economy.

As a process it was adaptable enough to help usher in many contentious changes in society, including enclosure of the common land and the new configuration of labour relations that emerged in the early 19th century. Arbitration was also useful when disputes emerged about the quality and cost of new technologies, such as steam engines. Famed engineers like Richard Arkwright, James Watt and Thomas Telford all referred disputes to arbitration or acted as arbitrators themselves.

This brief overview of our findings so far shows why we need to understand the uses of arbitration to explain the workings of 18th-century life. Together with colleagues, Dr Rhiannon Markless and Professor Derek Roebuck, I will be adding the next volume to Professor Roebuck’s monumental series on arbitration that begins in ancient Greece and brings us up to 17th-century England. We have handed our manuscript to the editors and English Arbitration and Mediation in the Long Eighteenth Century will be published on 5 November. After that we will move on to explore dispute resolution over the next hundred years. (Subscribers who pre-order by 1 July will have their names printed in a list in the book).

Dr Francis Calvert Boorman is a researcher on the history of arbitration for the Access to Justice project based at the Institute of Advanced Legal Studies (IALS), which is currently focused on 18th-century England. He is a social historian with previous publications on arbitration in Elizabethan England and the history of London.