1818. The Friendschaft. The 30th article of the present treaty limits the obligation 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 1813. The Friendschaft. 1818. The Friendschaft. gular absurdity, indeed, if the law, upon the instrument, 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 consignce, 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 freight is paid in London, and, "of course, by the consignors." If this corollary, thus summarily deduced, of a payment by the shippers, mean no more than a payment by the consignees through the shippers as their immediate agents at London, it may be admitted as probable, and, at all events, as harmless. But, if it mean a payment by the shippers as principals, or on their own account, then it is denied to follow from the proposition which it claims as its premises. But the peculiarities, thus examined, are relied on as constituting a support on which to rest the doctrine contained in the cases of Davis et al. v. James, and Moore v. Wilson, which are cited, (as it would seem,) to prove, that where the consignor pays the freight, the bill of lading does not vest the property in the consignee! It is not material to inquire how far these cases would now stand the test of a strict scrutiny. It is but doing justice, however, to the great men who decided them, to say, that they establish no such doctrine. Lord Mansfield expressly declares, that he does not proceed at all on the ground of proprietorship, but simply on the agreement of the carrier. And Lord Kenyon, in Dawes v. Peck, states, that the doctrine which they furnish is no more, than, that the consignor may bring an action for breach of contract against the carrier on his agreement, where the consignor is to be at the expense of the carriage, "where he stands in the character of an insurer to the consignee for the safe arrival of the goods." It is alleged, that if the interest in these claims a 5 Burr. 2680. b 1 T. R. 659. c7 T. R. 330. 1818. The Friendschaft. 1818. The Friend schaft. were bona fide neutral, it is incredible, that the invoices and letters would not have accompanied the shipment. Is it not equally probable, where the shipment is not on neutral account, or partly on neutral and partly on hostile account, and there is no attempt at deception, that it would have been accompanied with letters and invoices? Yet in the vast multitude of the shipments clearly on enemy account, made by this ship, and which have been condemned without a controversy, there is not one in ten thus accompanied. The packet sails between London and Lisbon with a regularity, certainty, and frequency, little short of what takes place in transmissions by mail. It is the great and established medium of conveyance, established by treaty stipulations, for passengers and letters. Is it strange, therefore, that all the communications between the shipper and the owner of the goods, except a copy of the bill of lading, (which at once evidences the property, and is directory to the master,) should have been sent by this certain and regular and official medium of conveyance? If duplicates of these communications had accompanied the shipments in question, this unusual caution might have been construed into a proof of guilt, and these additional evidences of neutral proprietorship stigmatized as the badges of fraud. But it is alleged, also, that the bills of lading are not verified. The only individual of the crew examined by the commissioners, is the master, and he supports the bill of lading as far as can be expected of a carrier-master. In answer to the 13th interrogatory, he declares that the bills of lading are not false or colourable; and in answer to the 20th, |