59 N.Y.U. L. Rev. 443 (1984)
The Formalization of Informal Law: Arbitration before the American Revolution

handle is hein.journals/nylr59 and id is 457 raw text is: NEW YORK UNIVERSITY
LAW REVIEW

VOLUME 59                             JUNE 1984                            NuvmB      3
THE FORMALIZATION OF INFORMAL LAW:
ARBITRATION BEFORE THE
AMERICAN REVOLUTION
BRUCE H. MANN*
In colonial times arbitration played an important role in reso cing disputes, muds more co than
it does today. The reason, Professor Mann suggests, ies in the communal nature of colonial
society, in the spirit of cooperation and trust that nccsarily dwracttrked relations among those
who settled the New World. In this Article, he aplore the link between community and
arbitration as it existed in Connecticut during thesevententh and eighteenth centuries. lcfilnds
thatsocial and economic changes in this period transformed arbitration from a neighbody
process into one that was more coercive and law-like. In the mtd-160Os, when Connecticut was
a society of small, insular towns whose residents depended cntirdy on one another for their
physical and spiritual well-being, arbitration was a purely voluntary proccs. The partes oral
agreement to submit their dispute to arbitration and to perform the award granted was unen-
forceable, but enforcement was not an issue for neiglhoors who could rely on cods otherir good
faith. By the turn of the century, however, population growth and Increased migration had
weakened community ties between disputants and the voluntary nature of arbitration began to
Jade. Professor Mann traces this development through the erolution of submLiion forms, the
manner in which parties submitted their dispute to arbitration. Oral forms were succeded by
written ones-first deeds, then conditioned bonds and promissory notes-designed to gice the
partiesgreater assurance that the loser would comply with the award. By the end of thecentury,
submissions and awards had become legally enforceable, and what was once an Informal procen
had assumed many of the technical featurs of a legal proceeding. Arbitration had also ceased to
be a source of equitable relief. Money damages had become the primary form of award,
Professor Mann observes, because disputes, like the rdations between disputants, were lea
comprehensive and thus capable of resolution without broad, personalized remedies.
Zephaniah Swift, a Connecticut jurist of the early republic, de-
scribed arbitration as an amicable and neighbourly mode of settling
personal controversies.' Arbitrators, he wrote, are not tied down to
the same strictness, formality and precision as courts of law. While
*Associate Professor of Law, Washington University, St. Louis. A.B., A.M., 1972, Brown
University; J.D., M. Phil., 1975, Ph.D., 1977, Yale University. I am grateful to Barbara A.
Black, John H. Langbein, Aviam Softer, and Elizabeth Warren for their exhaustive, and
sometimes exhausting, criticisms of various drafts. I am sure they would wish to be absolved of
responsibility for points on which we still differ. Robert Claus, former State Archivist of
Connecticut, greatly facilitated my research. An earlier version of the Article was presented at
the annual meeting of the Law and Society Association in Toronto on June 6, 1982. A Legal
History Fellowship from the American Bar Foundation aided completion of the Article.
1 2 Z. Swift, A System of the Laws of the State of Connecticut 7 (Windham, Conn. 1798).
443

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