Of Laws in Relation to Commerce, Considered in its
Nature and Distinctions
1. Of Commerce. The following subjects
deserve to be treated in a more extensive manner than the nature of this
work will permit. Fain would I glide down a gentle river, but I am carried
away by a torrent.
Commerce is a cure for the most destructive prejudices; for it is almost
a general rule that wherever we find agreeable manners, there commerce
flourishes; and that wherever there is commerce, there we meet with
Let us not be astonished, then, if our manners are now less savage than
formerly. Commerce has everywhere diffused a knowledge of the manners of
all nations: these are compared one with another, and from this comparison
arise the greatest advantages.
Commercial laws, it may be said, improve manners tor the same reason
that they destroy them. They corrupt the purest morals.1
This was the subject of Plato's complaints; and we every day see that they
polish and refine the most barbarous.
2. Of the Spirit of Commerce. Peace is the
natural effect of trade. Two nations who traffic with each other become
reciprocally dependent; for if one has an interest in buying, the other
has an interest in selling: and thus their union is founded on their
But if the spirit of commerce unites nations, it does not in the same
manner unite individuals. We see that in countries2
where the people move only by the spirit of commerce, they make a traffic
of all the humane, all the moral virtues; the most trifling things, those
which humanity would demand, are there done, or there given, only for
The spirit of trade produces in the mind of a man a certain sense of
exact justice, opposite, on the one hand, to robbery, and on the other to
those moral virtues which forbid our always adhering rigidly to the rules
of private interest, and suffer us to neglect this for the advantage of
The total privation of trade, on the contrary, produces robbery, which
Aristotle ranks in the number of means of acquiring; yet it is not at all
inconsistent with certain moral virtues. Hospitality, for instance, is
most rare in trading countries, while it is found in the most admirable
perfection among nations of vagabonds.
It is a sacrilege, says Tacitus, for a German to shut his door against
any man whomsoever, whether known or unknown. He who has behaved with
hospitality to a stranger goes to show him another house where this
hospitality is also practised; and he is there received with the same
humanity.3 But when the Germans had
founded kingdoms, hospitality had become burdensome. This appears by two
laws of the code of the Burgundians;4
one of which inflicted a penalty on every barbarian who presumed to show a
stranger the house of a Roman; and the other decreed that whoever received
a stranger should be indemnified by the inhabitants, every one being
obliged to pay his proper proportion.
3. Of the Poverty of the People. There are
two sorts of poor; those who are rendered such by the severity of
government: these are, indeed, incapable of performing almost any great
action, because their indigence is a consequence of their slavery. Others
are poor, only because they either despise or know not the conveniences of
life; and these are capable of accomplishing great things, because their
poverty constitutes a part of their liberty.
4. Of Commerce in different Governments.
Trade has some relation to forms of government. In a monarchy, it is
generally founded on luxury; and though it be also founded on real wants,
yet the principal view with which it is carried on is to procure
everything that can contribute to the pride, the pleasure, and the
capricious whims of the nation. In republics, it is commonly founded on
economy. Their merchants, having an eye to all the nations of the earth,
bring from one what is wanted by another. It is thus that the republics of
Tyre, Carthage, Athens, Marseilles, Florence, Venice, and Holland engaged
This kind of traffic has a natural relation to a republican government:
to monarchies it is only occasional. For as it is founded on the practice
of gaining little, and even less than other nations, and of remedying this
by gaining incessantly, it can hardly be carried on by a people swallowed
up in luxury, who spend much, and see nothing but objects of grandeur.
Cicero was of this opinion, when he so justly said, "I do not like
that the same people should be at once both the lords and factors of the
whole earth."5 For this would,
indeed, be to suppose that every individual in the state, and the whole
state collectively, had their heads constantly filled with grand views,
and at the same time with small ones; which is a contradiction.
Not but that the most noble enterprises are completed also in those
states which subsist by economical commerce: they have even an intrepidity
not to be found in monarchies. And the reason is this:
One branch of commerce leads to another, the small to the moderate, the
moderate to the great; thus he who has gratified his desire of gaining a
little raises himself to a situation in which he is not less desirous of
gaining a great deal.
Besides, the grand enterprises of merchants are always necessarily
connected with the affairs of the public. But, in monarchies, these public
affairs give as much distrust to the merchants as in free states they
appear to give safety. Great enterprises, therefore, in commerce are not
for monarchical, but for republican, governments.
In short, an opinion of greater certainty, as to the possession of
property in these states, makes them undertake everything. They flatter
themselves with the hopes of receiving great advantages from the smiles of
fortune; and thinking themselves sure of what they have already acquired,
they boldly expose it in order to acquire more; risking nothing, but as
the means of obtaining.
I do not pretend to say that any monarchy is entirely excluded from an
economical commerce; but of its own nature it has less tendency towards
it: neither do I mean that the republics with which we are acquainted are
absolutely deprived of the commerce of luxury; but it is less connected
with their constitution.
With regard to a despotic state, there is no occasion to mention it. A
general rule: A nation in slavery labours more to preserve than to
acquire; a free nation, more to acquire than to preserve.
5. Of Nations that have entered into an
economical Commerce. Marseilles, a necessary retreat in the midst of a
tempestuous sea; Marseilles, a harbour which all the winds, the shelves of
the sea, the disposition of the coasts, point out for a landing-place,
became frequented by mariners; while the sterility of the adjacent country
determined the citizens to an economical commerce.6
It was necessary that they should be laborious to supply what nature had
refused; that they should be just, in order to live among barbarous
nations, from whom they were to derive their prosperity; that they should
be moderate, to the end that they might always taste the sweets of a
tranquil government; in fine, that they should be frugal in their manners,
to enable them to subsist by trade — a trade the more certain as it
was less advantageous.
We everywhere see violence and oppression give birth to a commerce
founded on economy, while men are constrained to take refuge in marshes,
in isles, in the shallows of the sea, and even on rocks themselves. Thus
it was that Tyre, Venice, and the cities of Holland were founded.
Fugitives found there a place of safety. It was necessary that they should
subsist; they drew, therefore, their subsistence from all parts of the
6. Some Effects of an extensive Navigation.
It sometimes happens that a nation, when engaged in an economical
commerce, having need of the merchandise of one country, which serves as a
capital or stock for procuring the commodities of another, is satisfied
with making very little profit, and frequently none at all, in trading
with the former, in expectation of gaining greatly by the latter. Thus,
when the Dutch were almost the only nation that carried on the trade from
the south to the north of Europe; the French wines which they imported to
the north were in some measure only a capital or stock for conducting
their commerce in that part of the world.
It is a known fact that there are some kinds of merchandise in Holland
which, though imported from afar, sell for very little more than they cost
upon the spot. They account for it thus: a captain who has occasion to
ballast his ship will load it with marble; if he wants wood for stowage,
he will buy it; and, provided he loses nothing by the bargain, he will
think himself a gainer. Thus it is that Holland has its quarries and its
Further, it may happen so that not only a commerce which brings in
nothing shall be useful, but even a losing trade shall be beneficial. I
have heard it affirmed in Holland that the whale fishery in general does
not answer the expense; but it must be observed that the persons employed
in building the ships, as also those who furnish the rigging and
provisions, are jointly concerned in the fishery. Should they happen to
lose in the voyage, they have had a profit in fitting out the vessel. This
commerce, in short, is a kind of lottery, and every one is allured with
the hopes of a prize. Mankind are generally fond of gaming; and even the
most prudent have no aversion to it, when the disagreeable circumstances
attending it, such as dissipation, anxiety, passion, loss of time, and
even of life and fortune, are concealed from their view.
7. The Spirit of England with respect to
Commerce. The tariff or customs of England are very unsettled with
respect to other nations; they are changed, in some measure, with every
parliament, either by taking off particular duties, or by imposing new
ones. They endeavour by these means still to preserve their independence.
Supremely jealous with respect to trade, they bind themselves but little
by treaties, and depend only on their own laws.
Other nations have made the interests of commerce yield to those of
politics; the English, on the contrary, have ever made their political
interests give way to those of commerce. They know better than any other
people upon earth how to value, at the same time, these three great
advantages — religion, commerce, and liberty.
8. In what Manner economical Commerce has been
sometimes restrained. In several kingdoms laws have been made
extremely proper to humble the states that have entered into economical
commerce. They have forbidden their importing any merchandise, except the
product of their respective countries; and have permitted them to traffic
only in vessels built in the kingdom to which they brought their
It is necessary that the kingdom which imposes these laws should itself
be able easily to engage in commerce; otherwise it will, at least, be an
equal sufferer. It is much more advantageous to trade with a commercial
nation, whose profits are moderate, and who are rendered in some sort
dependent by the affairs of commerce; with a nation whose larger views and
whose extended trade enables them to dispose of their superfluous
merchandise; with a wealthy nation, who can take off many of their
commodities, and make them a quicker return in specie; with a nation under
a kind of necessity to be faithful, pacific from principle, and that seeks
to gain, and not to conquer: it is much better, I say, to trade with such
a notion than with others, their constant rivals, who will never grant
such great advantages.
9. Of the Prohibition of Commerce. It is a
true maxim that one nation should never exclude another from trading with
it, except for very great reasons. The Japanese trade only with two
nations, the Chinese and the Dutch. The Chinese7
gain a thousand per cent upon sugars, and sometimes as much by the goods
they take in exchange. The Dutch make nearly the same profits. Every
nation that acts upon Japanese principles must necessarily be deceived;
for it is competition which sets a just value on merchandise, and
establishes the relation between them.
Much less ought a state to lay itself under an obligation of selling its
manufactures only to a single nation, under a pretence of their taking all
at a certain price. The Poles, in this manner, dispose of their corn to
the city of Danzig; and several Indian princes have made a like contract
for their spices with the Dutch.8
These agreements are proper only for a poor nation, whose inhabitants are
satisfied to forego the hopes of enriching themselves, provided they can
be secure of a certain subsistence; or for nations whose slavery consists
either in renouncing the use of those things which nature has given them,
or in being obliged to submit to a disadvantageous commerce.
10. An Institution adapted to economical
Commerce. In states that carry on an economical commerce, they have
luckily established banks, which by their credit have formed a new species
of wealth: but it would be quite wrong to introduce them into governments
whose commerce is founded only on luxury. The erecting of banks in
countries governed by an absolute monarch supposes money on the one side,
and on the other power: that is, on the one hand, the means of procuring
everything, without any power; and on the other, the power, without any
means of procuring at all. In a government of this kind, none but the
prince ever had, or can have, a treasure; and wherever there is one, it no
sooner becomes great than it becomes the treasure of the prince.
For the same reason, all associations of merchants, in order to carry on
a particular commerce, are seldom proper in absolute governments. The
design of these companies is to give to the wealth of private persons the
weight of public riches. But in those governments this weight can be found
only in the prince. Nay, they are not even always proper in states engaged
in economical commerce; for, if the trade be not so great as to surpass
the management of particular persons, it is much better to leave it open
than, by exclusive privileges, to restrain the liberty of commerce.
11. The same Subject continued. A free port
may be established in the dominions of states whose commerce is
economical. That economy in the government which always attends the
frugality of individuals is, if I may so express myself, the soul of its
economical commerce. The loss it sustains with respect to customs it can
repair by drawing from the wealth and industry of the republic. But in a
monarchy a step of this kind must be opposite to reason; for it could have
no other effect than to ease luxury of the weight of taxes. This would be
depriving itself of the only advantage that luxury can procure, and of the
only curb which, in a constitution like this, it is capable of receiving.
12. Of the Freedom of Commerce. The freedom
of commerce is not a power granted to the merchants to do what they
please: this would be more properly its slavery. The constraint of the
merchant is not the constraint of commerce. It is in the freest countries
that the merchant finds innumerable obstacles; and he is never less
crossed by laws than in a country of slaves.
England prohibits the exportation of her wool; coals must be brought by
sea to the capital; no horses, except geldings, are allowed to be
exported; and the vessels of her colonies trading to Europe must take in
water in England.9 The English
constrain the merchant, but it is in favour of commerce.
13. What it is that destroys this Liberty.
Wherever commerce subsists, customs are established. Commerce is the
exportation and importation of merchandise, with a view to the advantage
of the state: customs are a certain right over this same exportation and
importation, founded also on the advantage of the state. Hence it becomes
necessary that the state should be neutral between its customs and its
commerce, that neither of these two interfere with each other, and then
the inhabitants enjoy a free commerce.
The farming of the customs destroys commerce by its injustice and
vexations, as well as by the excess of the imposts: but independent of
this, it destroys it even more by the difficulties that arise from it, and
by the formalities it exacts. In England, where the customs are managed by
the king's officers, business is negotiated with a singular dexterity: one
word of writing accomplishes the greatest affairs. The merchant needs not
lose an infinite deal of time; he has no occasion for a particular
commissioner, either to obviate all the difficulties of the farmers, or to
submit to them.
14. The Laws of Commerce concerning the
Confiscation of Merchandise. The Magna Charta of England forbids the
seizing and confiscating, in case of war, the effects of foreign
merchants, except by way of reprisals. It is an honour to the English
nation that they have made this one of the articles of their liberty.
In the late war between Spain and England, the former made a law which
punished with death those who brought English merchandise into the
dominions of Spain; and the same penalty on those who carried Spanish
merchandise into England.10 An
ordinance like this cannot, I believe, find a precedent in any laws but
those of Japan. It equally shocks humanity, the spirit of commerce, and
the harmony which ought to subsist in the proportion of penalties; it
confounds all our ideas, making that a crime against the state which is
only a violation of civil polity.
15. Of seizing the Persons of Merchants.
Solon made a law that the Athenians should no longer seize the body for
civil debts.11 This law he received
from Egypt. It had been made by Boccoris, and renewed by Sesostris.12
This law is extremely good with respect to the generality of civil
affairs; but there is sufficient reason for its not being observed in
those of commerce.13 For as
merchants are obliged to entrust large sums, frequently for a very short
time, and to pay money as well as to receive it, there is a necessity that
the debtor should constantly fulfil his engagements at the time prefixed;
and hence it becomes necessary to lay a constraint on his person.
In affairs relating to common civil contracts, the law ought not to
permit the seizure of the person; because the liberty of one citizen is of
greater importance to the public than the ease or prosperity of another.
But in conventions derived from commerce, the law ought to consider the
public prosperity as of greater importance than the liberty of a citizen;
which, however, does not hinder the restrictions and limitations that
humanity and good policy demand.
16. An excellent Law. Admirable is that law
of Geneva which excludes from the magistracy, and even from the admittance
into the great council, the children of those who have lived or died
insolvent, except they have discharged their father's debts. It has this
effect: it creates a confidence in the merchants, in the magistrates, and
in the city itself. There the credit of the individual has still all the
weight of public credit.
17. A Law of Rhodes.14
The inhabitants of Rhodes went further. Sextus Empiricus observes that
among those people a son could not be excused from paying his father's
debts by renouncing the succession. This law of Rhodes was calculated for
a republic founded on commerce. Now I am inclined to think that reasons
drawn from commerce itself should make this limitation, that the debts
contracted by the father since the son's entering into commerce should not
affect the estate or property acquired by the latter. A merchant ought
always to know his obligations, and to square his conduct by his
circumstances and present fortune.
18. Of the Judges of Commerce. Xenophon, in
his book of Revenues, would have rewards given to those overseers of
commerce who despatched the causes brought before them with the greatest
expedition. He was sensible of the need of our modern jurisdiction of a
The affairs of commerce are but little susceptible of formalities. They
are the actions of a day, and are every day followed by others of the same
nature. Hence it becomes necessary that every day they should be decided.
It is otherwise with those actions of life which have a principal
influence on futurity, but rarely happen. We seldom marry more than once;
deeds and wills are not the work of every day; we are but once of age.
Plato15 says that in a city where
there is no maritime commerce there ought not to be above half the number
of civil laws: this is very true. Commerce brings into the same country
different kinds of people; it introduces also a great number of contracts
and species of wealth, with various ways of acquiring it.
Thus in a trading city there are fewer judges, and more laws.
19. That a Prince ought not to engage himself in
Commerce. Theophilus,16 seeing
a vessel laden with merchandise for his wife Theodora, ordered it to be
burned. "I am emperor," said he, "and you make me the
master of a galley. By what means shall these poor men gain a livelihood
if we take their trade out of their hands?" He might have added. Who
shall set bounds to us if we monopolise all ourselves? Who shall oblige us
to fulfil our engagements? Our courtiers will follow our example; they
will be more greedy and more unjust than we: the people have some
confidence in our justice, they will have none in our opulence: all these
numerous duties, the cause of their wants, are certain proofs of ours.
20. The same Subject continued. When the
Portuguese and Castilians bore sway in the East Indies, commerce had such
opulent branches that their princes did not fail to seize them. This
ruined their settlements in those parts of the world.
The viceroy of Goa granted exclusive privileges to particular persons.
The people had no confidence in these men; and the commerce declined, by
the perpetual change of those to whom it was entrusted; nobody took care
to improve it, or to leave it entire to his successor. In short, the
profit centred in a few hands, and was not sufficiently extended.
21. Of the Commerce of the Nobility in a
Monarchy. In a monarchical government, it is contrary to the spirit of
commerce that any of the nobility should be merchants. "This,"
said the Emperors Honorius and Theodosius,17
"would be pernicious to cities; and would remove the facility of
buying and selling between the merchants and the plebeians."
It is contrary to the spirit of monarchy to admit the nobility into
commerce. The custom of suffering the nobility of England to trade is one
of those things which has there mostly contributed to weaken the
22. A singular Reflection. Persons struck
with the practice of some states imagine that in France they ought to make
laws to engage the nobility to enter into commerce. But these laws would
be the means of destroying the nobility, without being of any advantage to
trade. The practice of this country is extremely wise; merchants are not
nobles, though they may become so. They have the hopes of obtaining a
degree of nobility, unattended with its actual inconveniences. There is no
surer way of being advanced above their profession than to manage it well,
or with success; the consequence of which is generally an affluent
Laws which oblige every one to continue in his profession, and to
devolve it upon his children, neither are nor can be of use in any but
despotic kingdoms; where nobody either can or ought to have emulation.18
Let none say that every one will succeed better in his profession when
he cannot change it for another: I say that a person will succeed best
when those who have excelled hope to rise to another.
The possibility of purchasing honour with gold encourages many merchants
to put themselves in circumstances by which they may attain it. I do not
take it upon me to examine the justice of thus bartering for money the
price of virtue. There are governments where this may be very useful.
In France the dignity of the long robe, which places those who wear it
between the great nobility and the people, and without having such shining
honours as the former, has all their privileges; a dignity which, while
this body, the depositary of the laws, is encircled with glory, leaves the
private members in a mediocrity of fortune; a dignity in which there are
no other means of distinction but by a superior capacity and virtue, yet
which still leaves in view one much more illustrious: the warlike
nobility, likewise, who conceive that, whatever degree of wealth they are
possessed of, they may still increase their fortunes; who are ashamed of
augmenting, if they begin not with dissipating, their estates; who always
serve their prince with their whole capital stock, and when that is sunk
make room for others, who follow their example; who take the field that
they may never be reproached with not having been there; who, when they
can no longer hope for riches, live in expectation of honours; and when
they have not obtained the latter, enjoy the consolation of having
acquired glory: all these things together have necessarily contributed to
augment the grandeur of this kingdom; and if for two or three centuries it
has been incessantly increasing in power, this must be attributed not to
Fortune, who was never famed for constancy, but to the goodness of its
23. To what Nations Commerce is prejudicial.
Riches consist either in lands or in movable effects. The soil of every
country is commonly possessed by the natives. The laws of most states
render foreigners unwilling to purchase their lands; and nothing but the
presence of the owner improves them: this kind of riches, therefore,
belongs to every state in particular; but movable effects, as money,
notes, bills of exchange, stocks in companies, vessels, and, in fine, all
merchandise, belong to the whole world in general; in this respect, it is
composed of but one single state, of which all the societies upon earth
are members. The people who possess more of these movable effects than any
other on the globe are the most opulent. Some states have an immense
quantity acquired by their commodities, by the labour of their mechanics,
by their industry, by their discoveries, and even by chance. The avarice
of nations makes them quarrel for the movables of the whole universe. If
we could find a state so unhappy as to be deprived of the effects of other
countries, and at the same time of almost all its own, the proprietors of
the lands would be only planters to foreigners. This state, wanting all,
could acquire nothing; therefore, it would be much better for the
inhabitants not to have the least commerce with any nation upon earth, for
commerce in these circumstances must necessarily lead them to poverty.
A country that constantly exports fewer manufactures or commodities than
it receives will soon find the balance sinking; it will receive less and
less, until, falling into extreme poverty, it will receive nothing at all.
In trading countries the specie, which suddenly vanishes, quickly
returns; because those nations that have received it are its debtors. But
it never returns into those states of which we have just been speaking,
because those who have received it owe them nothing.
Poland will serve us for an example. It has scarcely any of those things
which we call the movable effects of the universe, except corn, the
produce of its lands. Some of the lords possess entire provinces; they
oppress the husbandmen, in order to have greater quantities of corn, which
they send to strangers, to procure the superfluous demands of luxury. If
Poland had no foreign trade, its inhabitants would be happier. The
grandees, who would have only their corn, would give it to their peasants
for subsistence; as their too extensive estates would become burdensome,
they would divide them among their peasants; every one would find skins or
wool in their herds or flocks, so that they would no longer be at an
immense expense in providing clothes; the great, who are ever fond of
luxury, not being able to find it but in their own country, would
encourage the labour of the poor. This nation, I affirm, would then become
more flourishing, at least if it did not become barbarous; and this the
laws might easily prevent.
Let us next consider Japan. The vast quantity of what they receive is
the cause of the vast quantity of merchandise they send abroad. Things are
thus in as nice an equilibrium as if the importation and exportation were
but small. Besides, this kind of exuberance in the state is productive of
a thousand advantages; there is a greater consumption, a greater quantity
of those things on which the arts are exercised; more men employed, and
more numerous means of acquiring power; exigencies may also happen that
require a speedy assistance, which so opulent a state can better afford
than any other. It is difficult for a country to avoid having
superfluities; but it is the nature of commerce to render the superfluous
useful, and the useful necessary. The state will be, therefore, able to
afford necessaries to a much greater number of subjects.
Let us say, then, that it is not those nations who have need of nothing
that must lose by trade; it is those who have need of everything. It is
not such people as have a sufficiency within themselves, but those who are
most in want, that will find an advantage in putting a stop to all
1. Cæsar said of the Gauls that
they were spoiled by the neighbourhood and commerce of Marseilles;
insomuch that they who formerly always conquered the Germans had now
become inferior to them. — De Bello Gall., vi. 23.
3. Et qui modo hospes fuerat,
monstrator hospitii. — De Moribus Germanorum, 21. See Cæsar,
De Bello Gall. vi. 21.
4. Tit. 38.
5. Cicero, De Rep., iv.
6. Justin, xliii. 3.
7. Father Du Halde, ii, p. 170.
8. This was first established by the
Portuguese. — Pirard, Voyages, part II, 15.
9. Acts of Navigation, 1660. It is
only in time of war that the merchants of Boston and Philadelphia send
their vessels directly to the Mediterranean.
10. Published in Cadiz in March,
11. Plutarch, Against Lending
Upon Usury, 4.
12. Diodorus, i, part II, 79.
13. The Greek legislators were to
blame in preventing the arms and plough of any man from being taken in
pledge, and yet permitting the taking of the man himself. — Ibid.
14. Hypotiposes, i. 14.
15. Laws, viii.
17. Leg., Nobiliores, Cod. de
Comm.; Leg. ult. de rescind, vendit.
18. This is actually very often the
case in such governments.
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