Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a transformation in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an alliance, in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in society. This alliance also required the dismantling of the alternative institutions by which merchants had avoided the anti-commercial characteristics of earlier law. Prominent among these alternative institutions was the system of commercial arbitration, which some evidence suggests declined in importance at the beginning of the nineteenth century. The observed decline, along with an alleged judicial assault upon the principles and practices of the institution, is thus claimed as one of the harbingers of the forthcoming transformation. This Note explores the details of the history of commercial arbitration in colonial New York in order to examine the historical underpinnings of the Horwitz thesis. Part I presents the results of historical research into the growth and development of arbitration in eighteenth-century New York. Part II discusses the light cast by the investigation on the work of Horwitz and others, and suggests some implications for future work in American legal history