Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica

I. A MEDIEVAL LEX MERCATORIA? It has been too confidently assumed by most writers that the law merchant1 arose in Italy in the central part of the Middle Ages, was chiefly founded on Roman law, and was carried by the traders of that country . . . into every country which they penetrated. That the law merchant was indeed the law of the merchants is true enough, and so is the assertion that it was applied to all transactions of a mercantile character between merchants, particularly at the great international fairs . . . . But the assumption that the law originated with the Italian merchants is more than disputable. International trade is in some measure a constant thing. Although a great revival took place after the new contact with the East which was made by the Crusades, commerce at that time simply changed hands, leaving the Arabs, who had dominated the Mediterranean for about two hundred years, and being undertaken by the Italians and to some extent by the French, and later by British and Norwegian merchants. . . . But before the Arabs came the Romans, and before the Romans the Greeks, and before the Greeks the Phoenicians. . . . But even these probably did not originate all which may at first sight appear to be their work. . . . We read of travelling merchants from the times of Jacob and Isaac, of the kings of Arabia, and of the wealthy Queen of Sheba in the days of King Solomon, and of the trade with Dedan, Aden and Saba when Tyre was at its greatest and nearing its doom.2 The author of this quotation is Wyndham Anstis Bewes (1857-1942), barrister of Lincoln's Inn, secretary of the Grotius Society and International Law Association, and author of a number of works on international and commercial law, including, probably his best-known, and from which this quotation is taken, The Romance of the 'Law Merchant (London 1923).3 Bewes's was not a legal mind of the first rank. He does not appear in Simpson's biographical Dictionary of the Common Law. His work, however, nicely illustrates a debate that has been going on for centuries: What is the relationship between mercantile law, sometimes called "the law merchant," and the English common law? Bewes's answer is that mercantile law is utterly other from the common law. It is a transnational body of law that, to use an example from another author in this tradition, goes back to Abraham's purchase of a field from the Hittites in the twenty-third chapter of Genesis? It was developed by the Phoenicians, the Greeks, and the Romans, then by the Arabs, and finally by the Italian merchants of the Middle Ages. From there it passed to all countries of the west through the great international fairs, not only Saint Denis and Champagne on the Continent, but also St. Ives and Winchester. The historian can ask a number of questions of Bewes's account. In the first place, is it supported by the evidence? Whether it is depends on what you mean by "supported." That the twenty-third chapter of Genesis tells a story of Abraham buying a plot of land from the Hittites is undeniable. Whether the author of Genesis is describing with any accuracy an historical event is at best questionable. Even if he is, what the Hittites thought they were selling and what Abraham thought he was buying is probably unrecoverable. Even more questionable is the line that Bewes draws from the undeniable facts of trading in the Ancient Near East and of trading in the Middle Ages to the development of a modern body of law that governed that trading. The historian might also ask why anybody would be telling this questionable story in 1923. A hint as to the answer to that question is given in the foreword to the book by Lord Justice Atkin, one of the most distinguished appellate judges of his day, and a former commercial law barrister.5 The book, he said, "will . . . not only create an interest in the past, but give a vision of the romance that attends the commerce of the present."6 Even after the Great War, the social position of the man of commerce was insecure; he had to be endowed with romance, given a history to match that of the lord or the knight or the country gentleman. …