The Medieval Law Merchant: The Tyranny of a Construct

摘要

Contrary to the still influential views of early 20th-century historians, long-distance trade did not die out entirely during the early Middle Ages (Van Doosselaere 2009, pp. 47–49, 52). Even in the 9th and 10th centuries, Italians still sailed the eastern Mediterranean and traded with Byzantium and the Middle East, while Frisian and Breton merchants traded with Scandinavia, Germany, and Britain (id., pp. 48, 52). From the middle of the 12th until the late 13th century the great international fairs flourished, particularly in Champagne, Flanders, and England. Some of these fairs, of course, originated before this time. They are mentioned in records in the 10th and 11th centuries (Verlinden 1963, pp. 122–126). But in the early period they were largely local and regional affairs, attended by the residents of the neighboring villages and countryside rather than by international merchants. They did not, in other words, begin as spontaneous gatherings of long-distance traders. Beginning in the late 13th century, Europe entered the third period of medieval long-distance commerce as the major fairs declined as the locus for sales and commerce moved to the entrep?t towns: first Bruges, and later Antwerp, London, and Amsterdam. In such cities, merchants could do business all year around rather than just at fair time. However, towns had limitations that fairs did not. At a fair, anyone could sell his or her wares. Local traders had no priority or privileges over foreigners, as they did in towns. In this sense, fair trade was free trade. Town trade was not (Howell 2010, pp. 9–10). There, the fundamental xenophobia and protectionism of the times hedged around the foreign merchants' ability to trade with barriers and restrictions (Moore 1985, p. 93). A foreigner could not simply wander into a town and trade at will. He needed the permission and protection of the lord, and he usually had to be a member of a merchant guild. Even then, he could not set up a shop (id.), and his ability to conduct other business was subject to extensive regulations in many instances designed to protect monopolistic local guilds and fill the lord's coffers through taxation (Hanham 1973, p. 174; Nicholas 1987, p. 140; Ogilvie 2011, p. 67). That regulations determined a great deal of the commercial process did not, however, mean that customs did not exist. They did. But they were seldom more than local or network specific (Bart 2000, p. 12). English wool merchants, for instance, customarily used one measure of weight in England and another at the staple in Calais, and neither measure was used elsewhere in the wool trade (Hanham 1973, p. 174). In Bruges, Spanish and Italian merchants litigated extensively before the town court about the alleged Spanish custom of paying tax on freightage on Spanish ships (Gilliodts-van Severen 1901, pp. 79–80, 111, 122–124). The cloth merchants of Kent had a custom of rotating their sales trips to London among themselves, with the traveling merchant taking along the cloth of his compatriots to sell on their behalf.12What the late medieval and early modern commercial manuals do tell us, however, is that certain commercial practices and techniques—such as the use of bills of exchange, partnership mechanisms to limit liability, insurance, fractional reserve banking, and creditor collective action bankruptcy—did eventually spread across Europe. This raises the possibility that Gerard Malynes was correct in 1622 when he framed his book as covering the universal law merchant and then primarily wrote about these very commercial techniques. But, if he were correct that these techniques constituted a uniform and universal law merchant, his was not a medieval law merchant. Although the Italians invented these techniques in the Middle Ages, that does not mean that the rest of Europe adopted them right away, no matter how commercially useful they were. As one scholar described it, medieval merchants “traveled to fairs and markets all over Europe exchanging goods which they knew little about with people they knew little about” (Benson 1989, pp. 648–649) and, one could add, in places they knew little about (Reyerson 2002, p. 71). How could they have done business under such circumstances if the rules governing their contracts differed from place to place? The question obviously implicates issues of ex post enforcement, which will be treated in the following section. This section focuses on information exchange: How did foreign merchants find contracting partners? How did they know whom to trust? How did they learn the local laws and customs? The law merchant advocates correctly diagnose one of the leading risks of inter-city trade in the Middle Ages: the foreigner had no automatic legal protection for his person and property, and he could find courts biased against him (Trakman 1983, pp. 10–11). The foreigner was a suspicious character in the Middle Ages, a period so parochial and xenophobic that the peasant from t