chapter 8
That trading is free by the law of nations
among all or between any
If the Portugals say that a certain proper right appertaineth unto them of exercising trade with the Indians they shall be confuted almost by the same arguments. We will briefly repeat them and apply them.
This was brought in by the law of nations that all men should have free liberty of negotiation among themselves which no man could take away. And as this was immediately necessary after distinction of dominion so it may seem to have a more ancient beginning. For Aristotle subtly called μεταβλητικήν ἀναπλήρωσιν τη̑ς κατὰ ϕύσιν αυταρκείας, that is to say, that what was wanting to nature was supplied by negotiation that everyone conveniently might have enough. It ought therefore to be common by the law of nations not only privatively but also positively or affirmatively, as the Schoolmen say.
That may thus be understood. Nature had given all things to all men, but seeing they were barred from the use of many things whereof man’s life standeth in need by reason of the distance of places, it was needful to pass over from place to place. Neither yet was there permutation, but finding other things with others they used them at their pleasure by course. Almost after the same manner they report the Seres do, who, leaving their goods in the wilderness, the bargain is made only by the honesty and conscience of the changers.
But so soon as movable things (necessity which was even now declared pointing at it) passed into proper right, permutation was found out, whereby that which is wanting unto one should be supplied of that which is superfluous to another. So Pliny proveth out of Homer that traffic was found out for the maintenance of the life of man. But after that immovable things began to be divided unto lords and owners, community being on all parts taken away made trading necessary, not only between men divided by distance of places but also between neighbors, which that it might more easily proceed money was afterward invented, so called απο του νομου, because it was a civil institution.
The universal reason therefore of all contracts η μεταβλητική was from nature, but some particular means and the price itself η χρηματιστική, from institution, which the ancient interpreters of the law did not sufficiently distinguish, yet all men confess that property of things (at the least of movables) to have proceeded from the primary law of nations and also all contracts whereunto no price is added. The philosophers of τη̑ς μεταβλητικη̑ς, which we may call translation, make two kinds, τήν ∊μπορικὴν καὶ τὴν καπηλικὴν, of the which ∊μπορική, which is as the word itself declareth between nations far distant, by the order of nature is the foremost and is so set down by Plato.Καπηλική seemeth to be same which Aristotle calleth παράστασις, a standing or shop negotiation between citizens. The same Aristotle divideth τὴν ∊μπορικὴν into ναυκληρίαν and ϕορτηγίαν, whereof the one carrieth merchandise by land, the other by sea. But καπηλική is the baser and contrariwise ∊μπορική the more honest or honorable and that chiefly which concerneth the sea, because it imparteth many things to many.
Whereupon Ulpian saith that taking of money for freight of shipping appertaineth to the highest and greatest commonwealth. And that there is not the same use of such as are allowed to buy and sell because according to nature that is altogether necessary. Aristotle saith, ἔστι γὰρ η μεταβλητικὴ πάντων, ἀρξαμένη τὸ μὲν πρôτον ∊κ του̑ κατὰ ϕύσιν, τ˛ τὰ μὲν πλείω, τὰ δέ ∊λάττω τôν ἱκανôν ἔχειν τοὺς ανθρώπους, that is to say, for translation of things began from the beginning from that which is according to nature, when men had partly more than was sufficient and partly less. Seneca saith, “the law of nations warranteth thee to sell that which thou has bought.”
Therefore, the liberty of trading is agreeable to the primary law of nations which hath a natural and perpetual cause and therefore cannot be taken away and, if it might, yet could it not but by the consent of all nations, so far off is it that any nation, by any means, may justly hinder two nations that are willing to trade between themselves.
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