Title
Kyd, S., A Treatise on the Law of Awards (1st ed. 1791), at p. 2-5
Content

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Under whatever Å¿yÅ¿tem of law regular courts for the diÅ¿tribution of juÅ¿tice are erected, it is found neceÅ¿Å¿ary, in order to give certainty to their deciÅ¿ions, to adapt peculiar forms of actions, and modes of pleading, to the particular nature of the caÅ¿e, and to eÅ¿tabliÅ¿h certain formalities in the manner of bringing the parties before the court. The conÅ¿ideration of expence, that muÅ¿t neceÅ¿Å¿arily be incurred before a hearing can be obtained, and a fear that a technical miÅ¿take in Å¿ome part of the proceedings may endanger the party’s Å¿ucceÅ¿s, often prevail with him, though Å¿atisfied of the juÅ¿tice of his cauÅ¿e, to refer it to the deciÅ¿ion of an indifferent perÅ¿on, before whom he may explain every circumÅ¿tance, without the apprehenÅ¿ion of failing from ignorance of form. An action, too, can Å¿eldom decide more than a Å¿ingle queÅ¿tion; but the variety of tranÅ¿actions, which, from the nature of improved Å¿ociety, muÅ¿t frequently have place between contending parties, requires a tribunal which can completely inveÅ¿tigate the whole, Å¿et one claim or one injury againÅ¿t another, and pronounce Å¿uch a Å¿entence as will put an end at once to all their diÅ¿putes. All courts have found it neceÅ¿Å¿ary to eÅ¿tabliÅ¿h particular modes of proof, and certain rules of evidence; and one, amongÅ¿t the latter, which is founded in the firÅ¿t principles of juÅ¿tice and public policy, “that no man Å¿hall be permitted to give evidence in his own cauÅ¿e.” But this rule, like many others founded on general principles, and eÅ¿tabliÅ¿hed for 3 general convenience, is Å¿ometimes productive of particular hardÅ¿hip. From the nature of the tranÅ¿action itÅ¿elf, perhaps; from the length of time that may have elapÅ¿ed Å¿ince it took place; from the want of precaution in the parties to have their agreement witneÅ¿Å¿ed, or reduced into writing at the time; and from many other circumÅ¿tances, it may frequently happen, that either there is no other evidence than the teÅ¿timony of the parties themÅ¿elves, or what there is without theÅ¿e may be very inÅ¿ufficient to enable a public tribunal to draw a poÅ¿itive and certain concluÅ¿ion. In Å¿uch a caÅ¿e, a judge, who can examine the parties to the tranÅ¿action, who can obÅ¿erve their looks and demeanour, and who, without being confined to the Å¿trict rules of evidence, is at liberty to decide from circumÅ¿tances of probability, has manifeÅ¿tly a Å¿ingular advantage. A conviction of the good policy of encouraging theÅ¿e domeÅ¿tic tribunals, has induced thoÅ¿e who have preÅ¿ided over the formation of the civil code, to lend them their aÅ¿Å¿iÅ¿tance to enforce obedience to their decrees: that aÅ¿Å¿iÅ¿tance, however, is not given indiÅ¿criminately in all caÅ¿es, without examining into the propriety and juÅ¿tice of the award; it has been thought proper to eÅ¿tabliÅ¿h rules of interpretation, derived from the nature of the authority conferred upon the arbitrators, and the implied engagement under which the contending parties bind themÅ¿elves by their Å¿ubmiÅ¿Å¿ion: accordingly we find, that the title Awards makes no inconÅ¿iderable figure in almoÅ¿t every Å¿yÅ¿tem of law with which we are acquainted. The rules which have been eÅ¿tabliÅ¿hed with reÅ¿pect to awards, in the EngliÅ¿h law, in their general Å¿pirit and fundamental principles, bear Å¿uch a reÅ¿emblance to thoÅ¿e which are found in the pandect and code of JuÅ¿tinian (Ff. l. 4. t. 8. Cod. l. 2. T. 56.a), that there can be little doubt that the latter are the Å¿ource from whence the former Å¿prung. By what Å¿low gradations the greater number of them were firÅ¿t received into the Roman law, it is impoÅ¿Å¿ible now to diÅ¿cover, as they are given as acknowledged and long eÅ¿tabliÅ¿hed rules at the time when the pandect and code were compiled: nor is it more eaÅ¿y to Å¿ay, at what preciÅ¿e period they were adopted here, or whether they were admitted at once, or by degrees, as a component part 4 of our judicial Å¿yÅ¿tem. In the moÅ¿t ancient repoÅ¿itories (Year books)of the deciÅ¿ions of our courts, the greater part of them are mentioned as known and uncontroverted law. It is chiefly in the application of them to particular caÅ¿es, and with reÅ¿pect to the manner in which effect Å¿hall be given to them, by pleading or otherwiÅ¿e, that they have been the Å¿ubject of litigation for many centuries paÅ¿t.

Under each head into which the Å¿ubject of awards naturally divides itÅ¿elf, it is propoÅ¿ed, not barely to lay down the law as it is received at the preÅ¿ent day, but as far as the determinations of the courts on that Å¿ubject, which have been preÅ¿erved in the books of reports, will permit, to trace the variations of opinion which have at different periods taken place, and the grounds on which every queÅ¿tion has been at laÅ¿t decided. In the execution of this plan, it may Å¿ometimes perhaps be neceÅ¿Å¿ary to detail a Å¿eries of technical Å¿ubtleties, which, Å¿ome may think, might as well have been omitted: to thoÅ¿e, however, who conÅ¿ider that, in every Å¿yÅ¿tem, few laws owe their exiÅ¿tence to legiÅ¿lative wiÅ¿dom, contemplating the poÅ¿Å¿ible relations and general intereÅ¿ts of Å¿ociety, and providing at once, by a poÅ¿itive edict, a Å¿olution for every queÅ¿tion to which the various tranÅ¿actions of men with each other might in a Å¿eries of ages give birth, but that by far the greateÅ¿t number have been eÅ¿tabliÅ¿hed as each particular queÅ¿tion has ariÅ¿en; that the paÅ¿Å¿ions of the client have a tendency to influence the mind of the advocate, and that the advocate is often ready to aÅ¿Å¿iÅ¿t the client in repelling the claim of his opponent, by all the Å¿ubtleties with which his profeÅ¿Å¿ional purÅ¿uits have armed him – To Å¿uch readers, this detail will probably appear the leaÅ¿t faulty part of the work.

DEFINITIONS

That act, by which parties refer any matter in diſpute between them to the deciſion of a third perſon, is called a ſubmiſſion; the perſon to whom the reference is made, an arbitrator; when the reference is made to more than one, and proviſion made, that in caſe they ſhall diſagree, another ſhall decide, that other is called the umpire; the judgment pronounced by an arbitrator, or arbitrators, an award; that by an umpire, an umpirage, or, leſs properly, an award. (Domat. 1 Vol. 223)
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