schaft. 1818. The 30th article of the present treaty limits the obliThe Friend. gation to the restitution of property plundered by pirates. And this obligation is reciprocal. Third. British residents are not exempt from the jurisdiction of the Portuguese tribunals. They have the privilege indeed of choosing from among the commissioned judges of the realm one who is to be presented to the king for his approbation as their judge conservator, and who, if approved, is so appointed. The authority of this judge, (who is usually selected because of his knowledge of the English language,) reaches only to the trial in the first instance of commercial disputes brought before him by British merchants, and is ever subordinate to the higher tribunals of justice established in the realm, who, in all cases, possess over him an appellate jurisdiction. The privilege is not peculiar to the British, but is extended to every friendly European nation. Fourth. The provision of the treaty of 1654, relative to the appointment of administrators to British residents dying intestate, is not renewed in the treaty of 1810. There is in lieu of it a reciprocal stipulation, (Art. 7th.) for the disposal, by the subjects of both nations, of their personal property by testament. Fifth. The provision for applying the effects seised by the Inquisition to the payment of the debts due the British creditor, is but a dictate of justice, and probably places these creditors on the same footing with native creditors. It is not found in the treaty of 1810. Sixth. There is nothing extraordinary in the mutual stipulation for the tolerance, by each, of the religion of the subjects of the other, as far as it may consist with the laws of their respective realms. Seventh. Nor is it unusual to grant to the subjects of other nations, an exemption from monopolies obligatory on native merchants. It is perfectly familiar to the court, that under the British treaty of 1795, such an exemption was accorded to American merchants from the monopoly of the British East India Company. And in the treaty of 1810 it will be seen that the stipulations are reciprocal. There is much difficulty in ascertaining the precise nature of the immunities enjoyed by British merchants in Portugal, at the date of the treaty of 1810, because the practice had been to grant them occasionally by alvaras. These are temporary proclamations, which have effect, only, for a year and a day. It is very certain that some privileges heretofore granted, were not then possessed. For instance, the alvara of 1717 exempts Englishmen from certain taxes to which the natives are liable, while the 7th article of the treaty of 1810, provides that they shall be liable to the same taxes, (and no other) as are imposed on the natives of Portugal. The probability is, that the most important of these immunities are especially enumerated in the treaty. It is unnecessary, however, to proceed further with this examination. Enough appears to show that the attempt to take the case of British merchants resident in Portugal, out of the general rule applied to domicil among civilized nations, whatever admiration may be due to its boldness, cannot receive the sanction of an enlightened court. The analogy between such merchants and Europeans in Turkey, who, there, neither sustain their original character, nor take the character of the people within whose territories they sojourn, but owe their name and poli 1818. The Friend schaft. 1318. schaft. rights. And, does a bill of lading furnish no eviThe Friend- dence, not even presumptiye, of proprietary interest in the consignee? It is understood, and such was the language of this court in the case of the St. Joze Indiano," that in general the rules of the prize court, as to the vesting of property, are the same with those of the common law. Now, "every authority which can be adduced, from the earliest period of time down to the present hour, agree, that at law, the property does pass as absolutely and as effectually, (by a bill of lading,) as if the goods had been actually delivered into the hands of the consignee." "If upon a bill of lading," (says Lord Hardwicke, in Snee v. Prescott,') between merchants residing in different countries, the goods be shipped and consigned to the prin cipal expressly in the body of the bill of lading, that vests the property in the consignee." The right of the consignor to stop goods in transitu is not founded on any presumed property in the consignor, but necessarily supposes the property to be in the consignee; for," it is a contradiction in terms, to say a man has a right to stop his own goods in transitu.” It is a right founded wholly on equitable principles, "which owes its origin to courts of equity-and, the question is not whether the property has vested under the bill of lading, for that is clear; but whether on the insolvency of the consignee, who has not paid for the goods, the consignor can countermand the con a 1 Wheat. 212. Per Buller, J. in Dom. Proc. Lickbarrow v. Mason, 6 East, 25. Note. c 1 Atk. 245. signment, or, in other words, devest the property which was vested in the consignee." Unless, therefore, a totally different rule, as to the vesting of property, is to be asserted in a court of prize from that which is established at law, a bill of lading absolutely vests the property in the consignee, and, of course, is the appropriate and definite evidence of his proprietary interest. But, it is said, these bills of lading do not express the shipment to be for the account and risk of the consignees, and state that the freight has been paid in London, and, "of course, by the consignors." Surely it is not seriously contended, that the omission to declare the shipment to be on account of the consignees, and the declaration that the freight has been paid in London, and, "of course, by the consignors," could have been designed to secure to the consignors the right of stopping in transitu ? This right is founded on principles of equity which give it a direct application to shipments made on account of the consignees, and which have no connection whatever with the legal consequences of the payment of freight. Let us see, however, what inferences may be fairly drawn from the peculiarities which are noticed in the bills of lading—They omit to state that the shipment is on account and risk of the consignees. Shall we thence infer that the shipment is on account and risk of the consignors?— This is not the inference of the law. If the bill of lading vests the property in the consignee, he, of course, sustains the peril of the shipment, unless there be an agreement to the contrary. It would be a sin a 6 East, 28, Note. 1818. The Friendschaft. 1918. The Friendschaft. gular absurdity, indeed, if the law, upon the instru ment, presumed that the consignee was the owner, and at the same time inferred that he did not bear the ordinary risks of ownership. Where the shipment is on account and at the risk of the consignor, and not of the consignee, there it may be proper to express the fact, because it is opposed to the legal presumption-But that an omission to state, what without statement is presumed, can be converted into an argument against the presumption-will be an instance of intellectual dexterity, rather fitted to surprise than to satisfy the inquirer after truth. A bill of lading evidences an agreement made by the master with the shipper for the delivery of the goods to the consignee. His undertaking is simply to carry the goods for the stipulated price to the consignee. He knows not that the consignee is to sustain the risk of the shipment-He cannot, therefore, with propriety, aver it in his contract. If, indeed, the consignor is to sustain the risk, and wishes this fact to be stated in the master's undertaking, then has he the full evidence which warrants the insertion of such a clause in the bill of lading. And, accordingly, such is the mercantile usage. Bills of lading ordinarily express account and risk when they are not the account and risk of the consignee. But it is otherwise with invoices-These are documents passing between the parties to the shipment, and contain the declaration of the consignor to the consignee. These, therefore, declare, however it may be, at whose account and hazard the shipment is made. The other peculiarity noticed in the bills of lading is, that the |