UNIVERSALITY

In the late eleventh century and thereafter, rights and obligations under mercantile law became substantially more uniform and less diverse, more general and less discriminatory in their local application.

The universal character of the law merchant, both in its formative period and thereafter, has been stressed by all who have written about it. In 1473 the Chancellor of England declared that alien merchants who came before him for relief would have their suits determined "by the law of nature in chancery... which is called by some the law merchant, which is the law universal of the world." 11_In the first English book ( 1622) on the law merchant, Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant, the author, Gerard Malynes, stated: "I have entitled the book according to the ancient name of Lex Mercatoria... because it is customary law approved by the authority of all kingdoms and commonweals, and not a law established by the sovereignty of any prince." ¹² And Blackstone wrote in the mid-eighteenth century: "The affairs of commerce are regulated by the law of their own called the Law Merchant or Lex Mercatoria, which all nations agree in and take notice of, and it is particularly held to be part of the law of England which decides the causes of merchants by the general rules which obtain in all commercial matters relating to domestic trade, as for instance, in the drawing, the acceptance, and the transfer of Bills of Exchange." ¹³

In twelfth-century Europe the transnational character of the law merchant was an important protection against the disabilities of aliens under local law as well as against other vagaries of local laws and customs.

-342- applicable to mercantile transactions were differences of detail. As William Mitchell has put it, "Each country, it may almost be said each town, had its own variety of Law Merchant, yet all were but varieties of the same species. Everywhere the leading principles and the most important rules were the same, or tended to become the same." 15 _

It was not only discriminatory treatment under local law that "merchant strangers" had to fear, but also the violence of pirates and robbers en route and the rapacity of local taxing authorities. To protect against the dangers of travel, maritime commerce was carried on largely by coastal convoys, and on land a merchant traveled armed and usually in the company of others, often in caravans. There was no way, however, in which merchants could protect themselves against tolls, which on the Rhine, for example, were so numerous and heavy as to earn the characterization furiosa Teutonicorum insania ("Teutonic madness"). 16A French reform of 1431 still left about 130 tolls on the Loire and its tributaries. ¹⁷

The fact that the foreigner was often without rights under local law as well as without protection by local rulers made the universality of the merchant's own law a matter of urgent necessity.

Secular rulers also helped to secure the universal character of mercantile law by treaties with each other. From at least the twelfth century on, Italian cities entered into bilateral treaties in which each side agreed that citizens of the other side would have freedom to settle within its borders, to own property there, to carry on industry and trade, to worship, and to

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have access to courts. ²⁰ These treaties often established impartial tribunals of merchants to decide commercial disputes between citizens of the two treaty partners speedily and in accordance with mercantile custom and, in the absence of a custom governing the matter, according to "good conscience." ²¹ Also, in the twelfth century a treaty between King Henry II of England and the city of Cologne assured the citizens of Cologne of treatment no less favorable than English merchants received -- perhaps the oldest surviving example of the "national treatment" clause and a precursor of the most-favored-nation clause in modern commercial treaties. ²²