CAPVT XII
Nulla aequitate niti Lusitanos in prohibendo commercio
Ex his quae dicta sunt satis perspicitur eorum caeca aviditas, qui, ne quemquam in partem lucri admittant, illis rationibus conscientiam suam placare student, quas ipsi magistri Hispanorum qui in eadem sunt causa manifestae vanitatis convincunt.[168a] Omnes enim qui in rebus Indicis usurpantur colores iniuste captari quantum ipsis licet, satis innuunt, adduntque numquam eam rem serio Theologorum examine probatam. Illa vero querela quid est iniquius, quod dicunt Lusitani quaestus suos exhauriri copia contra licentium? Inter certissima enim Iuris enuntiata est, nec in dolo eum versari, nec fraudem facere, ne damnum quidem alteri dare videri, qui iure suo utitur; quod maxime verum est, si non ut alteri noceatur, sed rem suam augendi animo quippiam fiat.[169a] Inspici enim debet id quod principaliter agitur, non quod extrinsecus in consequentiam venit. Immo si proprie loquimur cum Vlpiano, non ille damnum dat, sed lucro quo adhuc alter utebatur eum prohibet.
Naturale autem est et summo iuri atque etiam aequitati
CHAPTER XII
The Portuguese prohibition of trade has no foundation in equity
From what has been said thus far it is easy to see the blind cupidity of those who in order not to admit any one else to a share in their gains, strive to still their consciences by the very arguments which the Spanish jurists, interested too in the same case, show to be absolutely empty.[168] For they intimate as clearly as they can that as regards India all the pretexts employed, are far fetched and unjust. They add that this right was never seriously approved by the swarm of theologians. Indeed, what is more unjust than the complaint made by the Portuguese that their profits are drained off by the number of their competitors? An incontrovertible rule of law lays down that a man who uses his own right is justly presumed to be contriving neither a deceit nor a fraud, in fact not even to be doing any one an injury. This is particularly true, if he has no intention to harm any one, but only to increase his own property.[169] For what ought to be considered is the chief and ultimate intent not the irrelevant consequence. Indeed, if we may with propriety agree with Ulpian, he is not doing an injury, but he is preventing some one from getting a profit which another was previously enjoying.
Moreover it is natural and conformable to the highest law as well as equity, that when a gain open to all is concerned every person prefers it for himself rather than for