_By the Law of Nations trade is free to all persons whatsoever_
If however the Portuguese claim that they have an exclusive right
to trade with the East Indies, their claim will be refuted by
practically all the same arguments which already have been brought
forward. Nevertheless I shall repeat them briefly, and apply them to
this particular claim.
By the law of nations the principle was introduced that the
opportunity to engage in trade, of which no one can be deprived,[147]
should be free to all men. This principle, inasmuch as its
application was straightway necessary after the distinctions of
private ownerships were made, can therefore be seen to have had a
very remote origin. Aristotle, in a very clever phrase, in his work
entitled the Politics,[148] has said that the art of exchange is
a completion of the independence which Nature requires. Therefore
trade ought to be common to all according to the law of nations,
not only in a negative but also in a positive, or as the jurists
say, affirmative sense.[149] The things that come under the former
category are subject to change, those of the latter category are not.
This statement is to be explained in the following way.
Nature had given all things to all men. But since men were prevented
from using many things which were desirable in every day life because
they lived so far apart,
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proveniunt, opus fuit traiectione; nec adhuc tamen permutatio erat,
sed aliis vicissim rebus apud alios repertis suo arbitrio utebantur;
quo fere modo apud Seres dicitur rebus in solitudine relictis sola
mutantium religione peragi commercium.[150a]
Sed cum statim res mobiles monstrante necessitate, quae modo
explicata est, in ius proprium transissent, inventa est permutatio,
qua quod alteri deest ex eo quod alteri superest suppleretur.[151a]
Ita commercia victus gratia inventa ex Homero Plinius probat.[152a]
Postquam vero res etiam immobiles in dominos distingui coeperunt,
sublata undique communio non inter homines locorum spatiis discretos
tantum, verum etiam inter vicinos necessarium fecit commercium; quod
ut facilius procederet, nummus postea adventus est, dictus ἀπὸ τοῦ
νόμου quod institutum sit civile.[153a]
Ipsa igitur ratio omnium contractuum universalis, ἡ μεταβλητική
a natura est; modi autem aliquot singulares ipsumque pretium, ἡ
χρηματιστική ab instituto;[154a] quae vetustiores iuris interpretes
non satis distinxerunt. Fatentur
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and because, as we have said above, everything was not found
everywhere, it was necessary to transport things from one place to
another; not that there was yet an interchange of commodities, but
that people were accustomed to make reciprocal use of things found
in one another’s territory according to their own judgment. They say
that trade arose among the Chinese in about this way. Things were
deposited at places out in the desert and left to the good faith and
conscience of those who exchanged things of their own for what they
took.[150]
But when movables passed into private ownership (a change brought
about by necessity, as has been explained above), straightway there
arose a method of exchange by which the lack of one person was
supplemented by that of which another person had an over supply.[151]
Hence commerce was born out of necessity for the commodities of life,
as Pliny shows by a citation from Homer.[152] But after immovables
also began to be recognized as private property, the consequent
annihilation of universal community of use made commerce a necessity
not only between men whose habitations were far apart but even
between men who were neighbors; and in order that trade might be
carried on more easily, somewhat later they invented money, which, as
the derivation of the word shows, is a civic institution.[153]
Therefore the universal basis of all contracts, namely exchange, is
derived from nature; but some particular kinds of exchange, and the
money payment itself, are derived from law;[154] although the older
commentators on the law have not made this distinction sufficiently
clear. Nevertheless all
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tamen omnes proprietatem rerum, saltem mobilium a iure gentium
primario prodire, itemque contractus omnes quibus pretium non
accedit.[155a] Philosophi[156a] τῆς μεταβλητικῆς quam translationem
vertere licebit, genera statuunt duo: τὴν ἐμπορικιὴν καὶ τὴν
καπηλικήν quarum ἐμπορική quae ut vox ipsa indicat inter
gentes dissitas, ordine naturae prior est, et sic a Platone
ponitur.[157a] Καπηλική eadem videtur esse quae παράστασις[158a]
Aristoteli, tabernaria sive stataria negotiatio inter cives. Idem
Aristoteles[159a] τὴν ἐμπορικήν dividit in ναυκληρίαν et φορτηγίαν
quarum haec terrestri itinere, illa maritimo merces devehit.
Sordidior autem est καπηλική contra honestior ἐμπορική et maritima
maxime, quia multa multis impertit.[160a]
Vnde navium exercitionem ad summam rempublicam pertinere dicit
Vlpianus; institorum non eundem esse usum; quia illa omnino secundum
naturam necessaria est. Aristoteles:[161a] ἔστι γὰρ ἡ μεταβλητικὴ
πάντων, ἀρξαμένη τὸ μὲν πρῶτον ἐκ τοῦ κατὰ φύσιν, τῷ τὰ μὲν πλείω, τὰ
δὲ ἐλάττω τῶν ἱκανῶν ἔχειν τοὺς ἀνθρώπους, ‘est enim translatio rerum
omnium coepta ab initio, ab eo quod est secundum naturam, cum homines
partim haberent plura, quam sufficerent, partim etiam pauciora’.
Seneca:[162a] ‘quae emeris, vendere; gentium ius est’.
Commercandi igitur libertas ex iure est primario gentium,
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authorities agree that the ownership of things, particularly of
movables, arises out of the primary law of nations, and that all
contracts in which a price is not mentioned, are derived from the
same source.[155] The philosophers[156] distinguish two kinds of
exchange using Greek words which we shall take the liberty to
translate as ‘wholesale’ and ‘retail’ trade. The former, as the Greek
word shows, signifies trade or exchange between widely separated
nations, and it ranks first in the order of Nature, as is shown
in Plato’s Republic.[157] The latter seems to be the same kind of
exchange that Aristotle calls by another Greek word[158] which means
retail or shop trade between citizens. Aristotle makes a further
division of wholesale trade into overland and overseas trade.[159]
But of the two, retail trade is the more petty and sordid, and
wholesale the more honorable; but most honorable of all is the
wholesale overseas trade, because it makes so many people sharers in
so many things.[160]
Hence Ulpian says that the maintenance of ships is the highest duty
of a state, because it is an absolutely natural necessity, but that
the maintenance of hucksters has not the same value. In another place
Aristotle says: “For the art of exchange extends to all possessions,
and it arises at first in a natural manner from the circumstance that
some have too little, others too much.”[161] And Seneca is also to be
cited in this connection for he has said that buying and selling is
the law of nations.[162]
Therefore freedom of trade is based on a primitive right of nations
which has a natural and permanent cause; and
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quod naturalem et perpetuam causam habet, ideoque tolli non potest,
et si posset non tamen posset nisi omnium gentium consensu: tantum
abest ut ullo modo gens aliqua gentes duas inter se contrahere
volentes iuste impediat.
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so that right cannot be destroyed, or at all events it may not be
destroyed except by the consent of all nations. For surely no one
nation may justly oppose in any way two nations that desire to enter
into a contract with each other.
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CAPVT IX
_Mercaturam cum Indis propriam non esse Lusitanorum titulo
occupationis_
Primum inventio aut occupatio hic locum non habet, quia ius mercandi
non est aliquid corporale, quod possit apprehendi; neque prodesset
Lusitanis etiamsi primi hominum cum Indis habuissent commercia, quod
tamen non potest non esse falsissimum. Nam et cum initio populi in
diversa iere, aliquos necesse est primos fuisse mercatores, quos
tamen ius nullum acquisivisse certo est certius. Quare si Lusitanis
ius aliquod competit, ut soli cum Indis negotientur, id exemplo
ceterarum servitutum, ex concessione oriri debuit aut expressa aut
tacita, hoc est praescriptione; neque aliter potest.
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