In the other mode of proceeding, which was strictly in accordance with the defi nition which we have given of arbitration, the parties were at liberty to refer their differences to whomsoever they chose. The submission was generally made by a written agreement, which frequently con tained an engagement by third persons to become sureties for its performance. (Demosthenes, Speech against Apaturius, chap. 4.) There lay no appeal from the award of the arbitrator to any other tri bunal, unless probably such a right of appeal was reserved in the agreement. (See the law quoted by Demosthenes against Meidas, chap. 26.) The Roman law upon this subject is much better understood, and is of infi nitely greater importance. Its influence has extended over the whole of Europe, and even in our own country it is evident that references made by virtue of a mu tual agreement — apparently the first species of arbitration known in our law —are mainly founded upon the doctrines contained in the Digest, iv. tit. 8. The only mode of referring a matter to arbi tration in the Roman law was by an agreement called compromissum, which contained the names of the arbitrators (hence called arbitri compromissarii), the matters intended to be referred, and an undertaking by both parties to abide by the award, or in default thereof to pay to the other a certain sum of money as a penalty. The rule which forbids matters of public interest to be submitted to the judgment of a private referee, was not confined in its operation to criminal pro secutions and penal actions, but extended to preclude arbitrators as well from enter taining any question affecting the civil condition (status) of any individual,—his freedom, for instanee,—as from deciding on the validity of any contract which it was attempted to set aside on the ground of its having been obtained by fraud or force.
The persons named as arbitrators were not bound to undertake the office, but having once done so, they might, by an application to the praetor, be compelled to go through with it. Their authority was terminated by the death of either of the parties, unless his heirs were included in the submission ; by the expiration of the time limited for the decision ; by either party broken the agreement, and so in cu the penalty ; or by his becoming insolvent, and his property, in consequence of a cessio bonorum, being vested in his creditors. Their authority also ceased by what we should call an implied revo cation, if the subject matter of the re ference perished, or if the parties settled the dispute in some other way, referred it to other arbitrators, or proceeded with an action respecting it. Besides the cases in which his authority was thus at an end, an arbitrator could not be compelled to proceed with the reference if he could allege any sufficient excuse, as for in stance, that the submission was void, that' there had arisen a deadly enmity between him and one of the parties, or that he had been prevented by ill-health, or by an appointment to some public office.
The extent of the arbitrator's authority depended upon the terms of the submis sion, which might be either special or general. The submission usually ap pointed a certain day for the making of the award, but power was generally given to the arbitrators to enlarge the time if necessary, and they could not give their award on an earlier day without the con sent of the parties. On the day originally appointed, or on that subsequently fixed by the arbitrators, they formally pro nounced their award, and (unless it had been agreed otherwise) the parties were required to be present, and if one of them failed to appear, the award was not bind ing, but the party who had thus prevented the arbitration being completed incurred the penalty specified in the submission.
If there were several arbitrators, all were bound to attend, and the opinion of the majority prevailed; and if they were equally divided, it is said that they might of their own authority appoint an um pire, and in case of their refusing, the praetor had the power of compelling them to do so. When their award was pronounced, their authority expired, and they could neither retract nor alter their decision.
The award when made had not the au thority of the sentence of a court of jus tice, nor was there any direct method of enforcing the performance of it; but as the parties had bound themselves to abide by the arbitrator's decision, if either of them refused to perform it, or in any other way committed a breach of his en gagement, he was liable to an action ; and however unsatisfactory the award might appear, there was no appeal to any other court. If, indeed, the arbitrators had been gailty of corruption, fraud, or mis conduct, or if they had not adhered to their authority, their award was not bind ing: there was, however, no direct method of setting it aside; but if an action was brought to enforce the award, such mis conduct might be insisted on as an an swer to it. (Heineccius, Elem. Jur. Civ. pars i. § 531-543; Vodtius, Commentaries ad Pandect. vol. i. pp. 290-300.) The Roman law was, with some slight modifications, adopted in France (Domat, Civil Law, part i. book i. tit. 14; and Public Law, book ii. tit. 7; Pothier, Traite de Procedure Civile, part ii. chap. iv. art. 2), and,notwithstanding the changes which have been introduced from time to time, it still forms the ground work of the system. There are at pre sent three kinds of arbitration ; the first is voluntary arbitration, which is founded, as in the Roman law, upon an agreement of the parties. The mode of proceeding in this case is treated of at considerable length, and with minute attention to de tails, in the Code de Procedure Civile, art. 1003-1028.
The ordinary courts exercise a much greater control over the proceedings in references than they do in England, but they have never had the power which the magistrates had at Rome—of compelling a person who had once undertaken the office of arbitrator to proceed with it ; nevertheless, if he fail to do so, without a sufficient excuse, he is liable to an ac tion for the damages occasioned by his neglect of duty. In order to understand clearly the peculiarities of the French system, it will be necessary to bear m mind that the proceedings before the arbitrators are much more nearly on the same footing with the regular administra tion of justice than is the case with us, and that many of the details are merely adopted from the practice of the ordinary courts : for instance, there is a system of local judicature established in France, and as the judge is resident in the neigh bourhood of the suitors, it has been found necessary, in order to guard against par tiality or the suspicion of partiality, to allow either party to refuse or challenge a judge, as in England they would chal lenge a juryman ; and in the same manner an arbitrator may be challenged, but this can only be in respect of some objection which has arisen since his ap ..intment, for the very act of appointing .• is an implied waiver of any objections which might have existed up to that time ; but if there is no ground for challenge, the arbitrator's authority cannot be revoked without the consent of both parties.