STORY, Circuit Justice.
On the 30th of March, 1839, the legislature of Massachusetts passed the following resolve on the petition of Jonathan Tobey, the plaintiff in the present suit. “Resolved, for reasons set forth in the said petition, that the county commissioners of the county of Bristol be authorized to examine the claims, which the said Jonathan Tobey alleges he has against the said county, and for which he has no legal or equitable remedy, and to make him such allowances therefor as to them may seem expedient, just and right; and the said commissioners are further authorized, if they see fit, to refer the claims of the said Tobey to the determination of arbitrators, mutually selected by themselves and the said Tobey; the decision of the said commissioners, or of the several arbitrators, in the premises, to be final.” It is obvious, that the design of this resolve was to clothe the commissioners with an authority which they did not before possess, and to enable him to have administered to him, against the county, some remedial redress for claims, for which he before had no legal or equitable remedy. Although the resolve is not very exact in its language, it would seem to have given to the commissioners the alternative of one of two courses; either of themselves to examine the whole of the claims of Tobey contemplated in the resolve, and to allow such of them as they might deem expedient, just or right; or to refer the whole of the same claims to arbitration, as the commissioners should deem fit; so that a final decision, in the one way or the other, should be made of all the premises. It does not seem to me that the resolve contemplated a partial arbitration of these claims, or a partial examination of them by the commissioners. The petition of Tobey, on which the resolve was founded, does not refer to any account or specific enumeration of the claims laid before the legislature. But doubtless the resolve was intended to apply to such claims only as Tobey then had or professed to have against the county. At the March term of the court of county commissioners, in 1842, at an adjournment of the court in May of the same year, Tobey presented his petition to the commissioners, stating that ho had “a claim against the county of Bristol growing out of the construction of a road from Taunton to [1319]*1319New Bedford,” and requesting “that his said claim and all his claims may be referred to disinterested men, that the same may be finally disposed of.” From the testimony of the witness, Timothy G. Coffin, it appears, that the claims referred to in the petition, were those stated in the account B. annexed to the present hill in equity. The petition was continued to the September term of the court of commissioners in 1842, and after a hearing of the counsel for the petitioner, an entry was made on the docket of the court, apparently by order of the court, “Jonathan Tobey, petitioner for reference... Granted.” There were several adjournments of the September term of the court; one on the 5th day of October, 1842, and another on the 22d of November, of the same year. At what precise time the above docket entry was made does not appear. But at the adjournment on the 22d of November, the following order was passed by the court “Jonathan Tobey, now on the 22d of November, 1842, moves the hon. county commissioners to proceed to the selection of referees, to whom to refer the claims of Jonathan Tobey against the county of Bristol, according to the decision of the hon. court, made September term, 1842. On this motion, ordered, that the commissioners will refer all claims, which Jonathan Tobey has presented against the county of Bristol, excepting such claims as have been embraced in the said Tobey’s suits against the said county, and against Noah Claflin and others, and also excepting all the claims the said Tobey has presented arising out of his prosecution of his suit against the said Noah Claflin and others, which said suits were instituted and prosecuted in the United States court, and are now ready to proceed to the selection of the referees.” To any arbitration, with such exceptions, Tobey declined to accede; and the present bill is brought to compel the county commissioners, by injunction or otherwise, to agree to arbitrators to be selected from the schedule of persons offered by the plaintiff, and, under the prayer for general relief, for the appointment by mutual consent, of other persons as arbitrators, if the list so offered is not acceptable. Pending the proceedings in this court, one of the county commissioners has gone out of office, and a new commissioner has been appointed in his stead; and it is admitted, that the suit cannot be finally disposed of without his being made a party. But this objection being merely in its nature dilatory only, and not ending the proceedings, but only requiring a supplemental bill, the parties have been content to argue the cause upon what is, after all, the main question to be decided. And that question is, whether this court, as a court of equity, possesses authority to compel the county commissioners to submit to any arbitration, under the circumstances of the case.
Before proceeding directly to this question, it may be well to dispose of some considerations stated at the argument, in a brief manner. The final order of the county eommis-sioners makes certain exceptions from the claims of the plaintiff, which they offer to submit to arbitration. Now, in my judgment, if any of the excepted claims were, in fact, in the contemplation of the resolve of 1839, the commissioners have no authority, under the resolve, to submit a part of them only, to arbitration; but are bound to submit the whole, if any. Of course, as has been already intimated, if any of the claims are new, and are not comprehended in the resolve, they would not fall within the same predicament; but would constitute a good ground why the submission of them to arbitration should • be declined. In respect to another point made at the bar, that a sufficient and appropriate remedy, if any lies, will lie in the state court by way of mandamus; that is certainly a consideration entitled to much weight, if the entertaining of the present bill be a matter solely for the exercise of the sound discretion of this court. But if the case be one over which this court possesses a full jurisdiction, and the party has rights, which he is entitled to have protected by its authority, ,1 do not know that the existence of a concurrent jurisdiction in the state court would authorize this court to decline jurisdiction over the cause.
The grave question is, whether this court, as a court of equity, does possess jurisdiction to compel the defendants to submit the claims of the plaintiff to arbitration, under the circumstances of the present case. I observe, that at the argument, the cape has been treated by the plaintiff’s counsel as a matter of contract or agreement on the part of the commissioners, to submit the claims to arbitration; and that when the court, upon petition of Tobey, entered upon their docket, through their clerk. “Granted,” it amounted to a consummated agreement to refer the same, and nothing remained but mutually to agree upon the arbitrators. But I entertain great doubts upon both parts of the proposition. In the first place, an agreement to refer without saying more, how, and when, and to whom the submission is to be, can hardly be deemed anything more than an inchoate and imperfect agreement, the first step, only, in a negotiation, which is to fall of itself, if the arbitrators are not subsequently agreed upon. It is rather of the nature of a conditional consent to refer, provided the parties can agree upon the arbitrators. In the next place, it does not seem to me that the act of the commissioners in executing this authority, is to be treated as founded upon, or constituting of itself; any contract or agreement whatsoever. It is an exercise by them of a public special authority, confided to them by the resolve, not as individuals, but as a court, and acting as a court. No one can reasonably doubt, that the authority to examine and allow the claims is to be in the exercise of judicial functions, by the commissioners, as much [1320]*1320so as the laying out of a highway, or the award of a committee or jury, to ascertain the amount of the damages. The commissioners were not hy the resolve authorized, in terms, to make any contract or agreement, nor were they personally hound hy any award made hy the arbitrators, if duly chosen. But' the award would bind the county, not upon the footing of being a contract or agreement made by the commissioners, for and on behalf of the county, but hy mere operation of law, as a legal liability, imposed upon the county as a public corporation, independent of contract or agreement, under and in virtue of the resolve. But supposing it to be otherwise, and here there was a real contract or agreement, not conditional but absolute, on the part of the commissioners, to refer the claims to arbitration, can such an agreement he enforced by a court of equity? No one can be found, as I believe, and at all events, no case has been cited by counsel, or has fallen within the scope of my researches, . in which an agreement to refer a claim to arbitration, has ever been specifically enforced in equity. So far as the authorities go, they are altogether the other way. The cases are divided into two classes. One, where an agreement to refer to arbitration has been set up as a defence to a suit at law, as well as in equity; the other, where the party as plaintiff has sought to enforce such an agreement in a court of equity. Both classes have shared the same fate. The courts have refused to allow the former as a bar or defence against the suit; and have declined to enforce the latter as ill-founded in point of jurisdiction. In respect to the former class, I will barely refer to Wellington v. Mackintosh, 2 Atk. 569; Mitchell v. Harris, 4 Brown, Ch. 311, 2 Ves. Jr. 129; Kill v. Hollister, 1 Wils. 129; Street v. Rigby, 6 Ves. 815; and Thompson v. Charnock, 8 Term R. 139. In respect to the latter class: In Street v. Rigby, 6 Ves. 813, 818, Lord Eldon significantly said, that no instance is to be found of a decree for specific performance of an agreement to name arbitrators, or that any discussion upon it has taken place in experience for the last twenty-five years; and he referred to the case of Price v. Williams, 3 Brown, Ch. 163, before Lord Thurlow, in which he, Lord Eldon, was counsel, where Lord Thurlow held, that the court could not perform such an agreement. I do not find in the very brief and unsatisfactory reports of the case of Price v. Williams, Id., and 1 Ves. Jr. 365, any notice of this point; but there cannot be any serious doubt of the accuracy of Lord Eldon’s recollection of the case. In Gourlay v. Duke of Somerset, 19 Ves. 430, Sir William Grant, one of the greatest masters of equity of his age, expressly said, that a bill seeking to enforce the specific performance of an agreement to refer to arbitration, was a species of bill that has never been entertained by a court of equity. There are several other cases bearing strongly on the same doctrine, such as Milnes v. Gery, 14 Ves. 400; Blundell v. Brettargh, 17 Ves. 232; and Wilks v. Davis, 3 Mer. 507. But a later case, directly in point, is Agar v. Macklew, 2 Sim. & S. 418, where Sir John Leach utterly refused to decree the specific performance of an agreement to refer to arbitration. On that occasion, he said: “I consider it to be quite settled, that this court will not entertain a bill ror the specific performance of an agreement to refer to arbitration; nor will it, in such a case, substitute the master for the arbitrators, which would be to bind the parties contrary to their agreement.”
It was suggested at the argument, that the ground upon which this doctrine of courts of equity is founded, is not solid or satisfactory. If this were admitted to be true, I do not know that any judge would now deem it correct or safe to depart from it, as he must content himself upon this, as many other occasions, to administer the established law, and walk in the footsteps of his predecessors, super antiquas vias. But, in truth, I do not well see, that the doctrine could have been otherwise settled. The two general grounds on which it rests, belong to other branches of equity jurisprudence as well as this. What are they? The first ground is, that a court of equity ought not to compel a party to submit the decision of his rights to a tribunal, which confessedly, does not possess full, adequate, and complete means, within itself, to investigate the merits of the case, and to administer justice. The common tribunals of the country do possess these means; and although a party may have entered into an agreement to submit his rights to arbitration, this furnishes no reason for a court of equity to deprive him of the right to withdraw from such agreement, and thus to take from him the locus penitent!®; and to declare that the common tribunals of the country shall be closed against him, and he shall be compelled to submit all his rights and ;nterests to the decision of another tribunal, however defective or imperfect it may be, to administer entire justice. The argument at the bar misconceived the doctrine oi ihe court on this head. Courts of equity do not refuse to interfere to compel a party specifically to perform an agreement to refer to arbitration, because they wish to discourage arbitrations, as against public policy. On the contrary, they have and can have no just objection to these domestic forums, and will enforce, and promptly interfere to enforce their awards when fairly and lawfully made, without hesitation or question. But when they are asked to proceed farther and to compel the parties to appoint arbitrators whose award shall be final, they necessarily pause to consider, whether such tribunals possess adequate means of giving redress, and.whether they [1321]*1321¡have a right to compel a reluctant party to submit to such a tribunal, and to close against him the doors of the common courts of justice, provided by the government to protect lights and to redress wrongs. One of the established principles of courts of equity is, not to entertain a bill for the specific performance of any agreement, where it is doubtful whether it may not thereby become the instrument of injustice, or to deprive parties of rights which they are otherwise fairly entitled to have protected. The specific performance of an agreement is, by no means, a matter of right which a party has authority to demand from a court of equity. So far from this, it is a matter of sound discretion in the court, to be granted or withheld, according to its own view of the merits and circumstances of the particular case, and never amounts to a peremptory duty. Now we all know, that arbitrators, at the common law, possess no authority whatsoever, even to. administer an oath, or to compel the attendance of witnesses. They ■cannot-compel the production of- documents, and papers and books of account, or insist upon .a discovery of facts from the parties under oath. They are not ordinarily well enough acquainted with the principles of law or equity, to administer either effectually, in complicated cases; and hence it has often been said, that the judgment of arbitrators is but rusticum judicium. Ought then a court of equity to compel a resort to such a tribunal, by which, however honest and intelligent, it can in no case be clear that the real legal or equitable rights of the parties can be fully ascertained or perfectly protected?
It his been said at the bar, that in modern times, most nations, and especially commercial nations, not only favor arbitrations, but in many instances make them compulsive. But in considering this point, two circumstances are important to be kept in view. In the first place, whenever arbitrations are made compulsive, it is by legislative authority, which at the same time, arms the arbitrators with the fullest powers to ascertain the facts, to compel the attendance of witnesses, to require discovery of papers, books and accounts, and generally, also, to compel the parties to submit themselves to examination under oath. In the next place, these arbitrations are never, or at least not ■ordinarily, made compulsive to the extent of excluding the jurisdiction of the regular courts of justice; but are instituted as mere preliminaries to an appeal to those courts, from the award of the arbitrators, if either party desires it, so that the law, and in many cases, the facts also, if disputed, are re-examinable there. So that, in many cases, it will be found, that protracted litigation and very onerous expenses often follow as necessary results of the system. Indeed, so far as the system of compulsive arbitrations has. been tried in America, the experiment has not, as I understand, been such as to make any favorable impression upon the public mind, as to its utility or convenience. At all events, it cannot be correctly said, that public policy, in our age, generally favors or encourages arbitrations, which are to be final and conclusive, to an extent beyond that which belongs to the ordinary operations of the common law. It is certainly the policy of the common law, not to compel men to submit their rights and interests to arbitration, or to enforce agreements for such a purpose. Nay, the common law goes farther, and even if a submission has been made to arbitrators, who are named, by deed or otherwise, with an express stipulation, that the submission shall be irrevocable, it still is revocable and counter-mandable, by either party, before the J.ward is actually made, although not afterwards. This was decided as long ago as in Vynior’s Case. 8 Coke, 81b. The reason there given, is, that a man cannot, by his act, make such authority, power, or warrant not counter-mandable,-which is by law, and of .its own nature, countermandable; as if a' man should, by express words, declare his testament to be irrevocable, yet he may revoke it, for his acts or words cannot alter the judgment of law, to make that irrevocable, which is of its own nature revocable. This doctrine has been constantly upheld down to the present day, as will appear from the cases of Milne v. Gratrix, 7 East, 607; Clapham v. Higham, 1 Bing. 89; King v. Joseph, 5 Taunt. 452. But where an award has been made before the revocation, it will be held obligatory, and the parties will not be allowed to revoke it, and the courts of law as well as of equity will enforce it. In this view of the matter, courts of equity do but follow out the dictates and analogies of the law. When the law has declared, that any agreement for an arbitration is. in its very nature, revocable, and cannot be made irrevocable by any agreement of the parties, courts of equity are bound to respect this interposition, and are not at liberty to decree that to be positive and absolute in its obligation, which the law declares to be conditional and countermandable.
And this leads me to remark in the second place, that it is an established principle of courts of equity never to enforce the specific performance of any agreement, where it would be a vain and imperfect act, or where a specific performance is from the very nature and character of the agreement, impracticable or inequitable, to be enforced. 2 Story. Eq. Jur. § 959a. Thus, for example, courts of equity will not decree the specific performance of an agreement for a partnership in business, where it is to be merely doing the pleasure of both parties, because it may be forthwith dissolved by either party. See Story, Partn. §§ 189, 190, and Colly. Partn. (2d Ed.) bk. 2, pp. 132, 133, c. 2, § 2; 1 Story, Eq. Jur. [1322]*1322§ 666, and the cases there cited; Crawshay v. Maule, 1 Swanst. 515, the reporter’s note. So, upon the like ground, courts of equity will not decree the specific performance of a contract by an author to write dramatic performances for a particular theatre, although it will restrain him from writing for another theatre, if he has contracted not to do so (2 Story, Eq. Jur. § 959a; Morris v. Colman, 18 Ves. 437; Clarke v. Price, 3 Wils. Ch. 157; Baldwin v. Society for Diffusion of Useful Knowledge, 9 Sim. 393); nor will they compel the specific performance of a contract by an actor to act a specified number of nights at a particular theatre (Kemble v. Kean, 6 Sim. 333); nor will they compel the specific performance of a contract to furnish maps to be engraved and published by the other party (Baldwin v. Society for Diffusion of Useful Knowledge, 9 Sim. 393). In all these cases the reason is the same, the utter inadequacy of the means of the court to enforce the due performance of such a contract The same • principle would apply to.the case of a specific 'Contract by a master to paint an historical picture, or a contract by a sculptor to carve a statue or a group, historical or otherwise. Prom their very nature, all such contracts must depend for their due execution, upon the skill, and will, and honor of the contracting party. Now this very reasoning applies with equal force to the case at bar. How can a court of equity compel the respective parties to name arbitrators; and a fortiori, how can it compel the parties mutually to select arbitrators, since each much, in such a case, agree to all the arbitrators? If one party refuses to name an arbitrator, how is the court to compel him to name one? If an arbitrator is named by one party, how is the court to ascertain, if the other party objects to him, whether he is right or wrong in his objection? If one party names an arbitrator, who will not act, how can the court compel him to select another? If one party names an arbitrator not agreed to by the other, how is the court to find out what are his reasons for refusing? If one party names an arbitrator whom the other deems incompetent, how is the court to decide upon the question of his competency? Take the present case, where the arbitrators are to be mutually selected, when and within what time are they to be appointed? How many shall they be, — two, three, four, five, seven, ten, or even twenty? The resolve is silent as to the number. Can the court fix the number, if the parties do not agree upon it? That would be doing what has never yet been done. If either party should refuse to name any arbitrator, or to agree upon any named by the other side, has the court authority, of itself, to appoint arbitrators, or to substitute a master for them? That would be, as Sir John Leach said in Agar v. Macklen. 2 Sim. & S. 418, 423, to bind the parties contrary to their agreement; and in Milnes v. Gery, 14 Ves. 400, 408, Sir William Grant held such an appointment to be clearly beyond the authority of the court. In Wilks v. Davis, 3 Mer. 507, 509, Lord Eldon referring to the cases of Cooth v. Jackson, 6 Ves. 34; Milnes v. Gery, 14 Ves. 400, 408; and Blundell v. Brettargh, 17 Ves. 232, —said: “It has been determined in the cases referred to, that if one party agrees to sell and another to purchase, at a price to be settled by arbitrators named by the parties, if no award has been made, the court cannot decree respecting it.” In Cooth v. Jackson, 6 Ves. 34, Lord Eldon said: “I am not aware of a case even at law, nor that a court of equity has ever entertained this jurisdiction, that where a reference has been made to arbitration and the judgment of the arbitrators is not given in the time and manner according to the agreement, the court have substituted themselves for the arbitrators and made the award. I am not aware that it has been done even in a case where the substantial thing to be done is agreed between the parties, but the time and manner in which it is to be done, is that which they have put upon others to execute.” The same learned judge, in Blundell v. Brettargh, 17 Ves. 232, 242, affirmed the same statement, substituting only the word “prescribe” for “execute.” So that we abundantly see, that the very impracticability of compelling the parties to name arbitrators, or upon their default, for the court to appoint them, constitutes, and must forever constitute, a complete bar to any attempt on the part of a court of equity to compel the specific performance of any agreement to refer to arbitration. It is essentially, in its very nature and character, an agreement which must rest in the good faith and honor of the parties, and like an agreement to paint a picture, or to carve a statue, or to write a book, or to invent patterns for prints, must be left to the conscience of the parties, or to such remedy in damages for the breach thereof, as the law has provided.
There is another consideration, which is entitled to great weight, under the circumstances of the present case, which has been already alluded to. It is, that if the authority was confided to the commissioners, as a court, and they were to act judicially under the resolve, it seems to me, that if they refused to act, and it was not a matter left in their mere discretion, the appropriate remedy lies in the supreme court of the state, as the appellate jurisdiction competent to compel inferior tribunals to do their duty; and the fit remedy would be by mandamus. This court, as a court of equity, possesses no re-visory power over the acts of the state tribunals in the exercise of their jurisdiction. It has no authority to compel them to do their duty, or to abstain from the exercise of their functions. It belongs ad alium examen.
Without going more at large into the subject, it appears to me, that the present is not a ease in which this court can afford any [1323]*1323relief whatsoever to the plaintiff, however strong his claims may be upon the justice of the county and its public functionaries. I shall, therefore, order the bill to be discharged, but without costs to the defendants.