Definition
REFERENCE has three distinct legal meanings, each operating in a separate doctrinal context.
1. In practice (procedural law): The act by which a court sends a pending cause or matter — or a specific question arising within it — to a referee or master for examination, fact-finding, and report back to the court. The referee takes testimony, applies the applicable standard, and submits findings or recommendations; the court retains authority to adopt, modify, or reject the report. This is the most technically developed meaning and the one with the richest procedural history.
2. In contracts and arbitration: An agreement by parties to submit a dispute to one or more chosen referees or arbitrators for decision. In older usage, "reference" and "submission to arbitration" were nearly interchangeable. The term emphasized the act of directing the controversy outward — away from the court — rather than the arbitral proceeding itself.
3. In commercial and mercantile law: The act of directing a prospective creditor or business partner to a named third party who can vouch for the requesting party's creditworthiness, character, or standing. The named third party is the reference (or referee in the personal sense). This usage appears in credit transactions, employment, and professional contexts.
Common Language
Modern common usage (Wiktionary): A relationship or relation to something; information about a person provided by someone acquainted with them; a person who provides such information; a reference work; the act of submitting something for information or decision.
Historical common usage (Webster's 1913): The act of referring, or the state of being referred; a specific direction of attention; relation or regard; one who, or that which, is referred to; a person of whom inquiries can be made as to integrity and capacity.
The common meanings are not wrong about the law — they are merely incomplete. The procedural and contractual legal meanings carry formal procedural consequences (a court order, a binding submission) that the ordinary senses of "directing attention" or "vouching for a person" do not. A researcher encountering "reference" in a court document must determine which of the three legal senses applies; the common meaning alone will not resolve the question.
Recognized Forms
/SUBTYPES
Compulsory reference: A court-ordered reference to a referee without the consent of the parties, typically available by statute in cases involving complex accounts or lengthy calculations.
Consensual reference (reference by consent): A reference made with the agreement of the parties, often conferring broader authority on the referee than a compulsory reference would.
General reference: A reference of the entire cause to the referee for decision on all issues of fact and law.
Special reference: A reference of a specific question or limited issue — an accounting, a damage calculation, or a title examination — with the remainder of the case retained by the court.
Why It Matters in Research
Terminological slippage is the central hazard here. In historical sources, "reference" appears in at least three substantively different procedural postures: (1) the order sending a matter to a referee, (2) the entire proceeding before the referee, and (3) the referee's report itself. A citation to a "reference" in nineteenth-century equity practice may be any one of these. The researcher must read surrounding context carefully.
The arbitration meaning of "reference" has migrated significantly. Modern commercial arbitration statutes and the Federal Arbitration Act use "arbitration" and "submission" as the operative terms; "reference" in this sense has largely retreated to British and Commonwealth usage, where it remains standard. Researchers working in pre-twentieth-century American sources will find the terms used interchangeably; those working in contemporary American materials will rarely see "reference" carry the arbitration meaning.
In commercial contexts, the credit-reference meaning is largely pre-modern in legal sources but remains alive in contract boilerplate (letters of reference, reference clauses in credit applications). These should not be confused with the procedural sense when they appear in transactional documents.
The master/referee distinction matters for corpus navigation. Historical courts of equity used "master in chancery" where courts of law might use "referee." Post-merger practice (following the merger of law and equity courts) standardized the "referee" terminology in many jurisdictions, but older sources will use "master," "examiner," "auditor," and "commissioner" as functional equivalents. A search on "reference" alone will not surface cases using these alternative titles.
Burrill's note that "reference" was "supposed to correspond with the officer called master of requests" under Roman law is historically interesting but has no operational modern significance. It does explain why Burrill's treatment is heavier on the equity side than Black's.
Historical Dictionary Support
All four sources agree that "reference" carries the procedural meaning of sending a matter to a referee, though they weight the surrounding detail differently. Burrill's is the most procedure-specific, citing Novellae and the Code and grounding the term in its equity antecedents. Black's (both editions) is the most comprehensive, covering all three meanings in a single entry and explicitly cross-referencing REFER. Bouvier's gives the most developed treatment of the mercantile credit sense, connecting it to the concept of privileged communications — a doctrinal link the other dictionaries omit and that is practically useful for researchers working on defamation questions arising from negative credit references.
None of the historical dictionaries adequately distinguishes general from special references, or compulsory from consensual ones — a gap that matters considerably in practice, since the procedural rules, the scope of the referee's authority, and the standard of appellate review differ across these forms. Researchers should not rely on the dictionary entries alone when working through referee-related procedure.
Black's second edition entry appears to reproduce the first edition entry nearly verbatim, with a partial citation fragment (U.S. Comp. St. 1901, p. 3418) that suggests a statutory cross-reference was included in the original but did not survive the digitization of the second edition entry in this corpus cleanly.
Jurisdictional Note
Federal courts governed by the Federal Rules of Civil Procedure use the term "master" (Rule 53) rather than "referee" for court-appointed adjuncts, though the functional role is similar to the historical reference. State courts vary widely: some retain "referee" as a statutory title, others use "special master," "hearing officer," or "commissioner." The procedural rules governing the conduct of references, the evidentiary standards, and the binding effect of reports differ accordingly.
Encyclopedia Cross-Reference
See also: Surety Bonds — Performance, Payment, and Bid Bonds (Law Mind Insurance Law Encyclopedia, insurance_69) — relevant for credit-reference clauses appearing in bonding and surety contexts.