Shipment at risk of neutral consignee, the property being in the consignee, not only by the rules of the civil and common law, but also by the law of nations, the goods are exempt from capture. So, also, if the consignee be a subject of the belligerent captor, for the delivery to the carrier is regarded as the delivery to the consignee, and the goods are neither enemy's goods, nor goods in unlawful trade with the enemy. Both the contract and shipment were lawfully made, and no rule of war being violated by the subject in acquiring the ownership of the property, or in their removal from the country, then friendly but now hostile, the character of the goods is not changed during the voyage, and they are, therefore, not liable to condemnation.' § 10. And, again, where the goods are shipped by an neutral enemy consignor, during the war, and under a prior sale, or consignee an unconditional contract of sale, the property so shipped But, vests absolutely in the neutral consignee, by delivery to the to reclaim them (unless in the sole event of the insolvency of the consignee) previous to their arrival. If any election is given to the consignee, or any power of direction or control is retained by the consignor, the goods continue, in the judgment of law, the property of the consignor, and, as such, are liable to capture during the voyage. This doctrine has been clearly established in the British Courts of Admiralty, and affirmed by the Supreme Court of the United States. It may be well to illustrate this doctrine by particular cases. Thus, where an American merchant had ordered certain goods from Holland, then at war with England, and the Dutch merchant, instead of sending the goods to him directly, shipped them on his own account to a third person, and directed his correspondent not to deliver over the bill of lading unless payment was provided for in a satisfactory. manner, it was held that the goods, which were captured on the voyage, remain the property of the consignor, and as such were liable to condemnation. So, where the goods were shipped under a positive order from the claimant, but the shippers, with a view to their own security, had the bill of lading altered so as to be transferable to their own order, Sir William Scott held that the goods, being still under the dominion of the shipper, and subject to his control, the ownership was not legally changed, and upon this ground condemned the cargo as the property of the enemy shipper.' § II. The same considerations apply where the shipment If neutral consignor is made in time of peace by a neutral consignor who becomes become an an enemy before the completion of the voyage, although enemy during there does not, perhaps, exist the same grounds of suspicion voyage as when the consignor is an enemy at the time of shipment. Nevertheless, the courts, even in this case, require the clearest evidence of neutral ownership. This is illustrated by the case of the 'Francis.' 2 Shortly previous to the breaking out of the war between Great Britain and the United States, in 1812, a merchant in Glasgow shipped several bales of goods to certain merchants in New York, and both the bill of lading and the invoice were in the names of the latter, and expressed . 1 Duer, On Insurance, vol. i. pp. 427, 428; the 'Aurora,' 4 Rob., 219; the Noydt Gedacht,' 2 Rob., 13, note; the Josephine,' 4 Rob., 25; the 'Carolina,' I Rob., 304; the 'Merrimack,' 8 Cranch., 328; the 'Venus,' 8 Cranch., 275. 28 Cranch., 354. Acceptance in transitu the shipment to be on their account and risk. It appeared, however, by a letter found on board, that the consignor, in making the shipment, had exceeded the order, so that the consignees were in effect released from any obligation to accept the goods, and by this letter he gave them an election to take the whole of the shipment, or none, as they pleased. The goods were captured on the voyage, after war had been declared, by an American privateer, and were condemned as enemy's property. In another case of the same kind, during the same war, the bill of lading expressed the goods to be shipped by a house in Liverpool, unto and on account of certain merchants in New York, and the invoice, signed by a manufacturer in Manchester, described the goods to be consigned to the claimants, but did not specify on whose account and risk. And in a letter to the consignees enclosing the invoice, he said the goods are to be sold on joint account, or on mine alone.' The goods were accordingly condemned as the property of the shipper. § 12. Where goods are shipped by an enemy consignor to a neutral consignee, not under a prior order, but with the by neutral expectation that they will be received on the terms proposed, consignee if they are in fact accepted by the consignee previous to the capture, it was held, by Sir William Scott, that his acceptance vests and perfects his title, and that, upon proof of the fact, the property will be restored. To exempt the property from capture, however, the acceptance must be absolute and unconditional. The transaction is then construed in the same manner as if the goods had been originally shipped on his account and at his risk. The same point had previously been raised in the Supreme Court of the United States, but as the acceptance in the case decided was partial and conditional, the Court expressly declined to consider what would have been the effect had the acceptance been absolute.1 by stoppage in transitu Change of § 13. Every consignor, not only at common law, but by a ownership rule of the general mercantile law, has, in certain cases, a control over the shipment, which is technically called a right of stoppage in transitu; that is, a right to countermand the bill of lading, and repossess himself of the goods, at any time after their shipment and before their arrival at their destined 1 Kent, Com. on Am. Law, vol. i. p. 87; the 'Cousine Marianne,' 1 Edw. Rep., p. 346. port. The only case in which this right of stoppage in transitu can be legally exercised, under the laws of war, is, in the expectation, confirmed by the event, of the insolvency of the consignee. If the consignee, previous to the arrival of the goods, communicate to the consignor his determination not to receive or pay for the goods, these facts are deemed equivalent to actual insolvency. But a revocation of the consignment, from fears of the insolvency of the consignee, which are not confirmed by the event, is not deemed sufficient to change the ownership. The effect of this right, when duly exercised, is to save the property from its liability to capture, where the consignment is made from a neutral to an enemy; and to incur that liability, where the consignment is made from an enemy to a neutral.' character § 14 But these cases are properly exceptions to the National general and well-settled rule of the English Admiralty, that, of goods in time of war, the national character of property cannot be changed by a transfer to a neutral during the transportation. That which was enemy's property at the commencement of the voyage, remains liable to capture, until its arrival at the port of destination. Nor is the application of the rule confined to a transfer in actual war. If it appear that the immediate motive of the transfer, although made in time of peace, was the expectation of war, and that this fact was known to the purchaser, the contract is held to be equally invalid, as against the belligerent whose right of capture was meant to be evaded. These rights, however,' says Mr. Duer, 'are an apparent difference in the mode of applying the rule in these cases. In the latter, positive evidence of the intentions of the parties is plainly required; but, in the first, the fact of a transfer is regarded as conclusive proof of the intended fraud.' This doctrine seems to have been adopted in its full extent by the Supreme Court of the United States. The rule of Admiralty, in these and other cases which we have mentioned, is different from that of common law, and its vindication is rested on the ground that its adoption is necessary to the prevention of fraud. A change in the national character of the owner, during the voyage, is not allowed to 6 Emerigon, Traité des Assurances, ch. xi. § 3; the Constancia,' 6 Rob., 324, 333; 'Twende Venner,' 6 Rob., 326, note; Ellis v. Hunt, 3 Term R., 469; Oppenheim v. Russell, 3 Bos. and Pull., 484; Dutton v. Soloman, 3 Bos. and Pull., 582; Coxe v. Harden, 4 East, 211. change the hostile character of property in transitu. If he was an enemy at the commencement of the voyage, the property is condemned, notwithstanding he may have become a subject of the capturing power previous to the capture. A Dutch ship, owned and claimed by merchants residing at the Cape of Good Hope, was captured on a voyage from Batavia to Holland, nearly two months after the inhabitants of the Cape of Good Hope, under the capitulation, had sworn allegiance to the British Crown, and had become British subjects. Their ship was condemned, on the sole ground that, 'having sailed as a Dutch ship, her character during the voyage could not be changed.' The propriety of this decision has been seriously questioned. Although the character of property is not permitted to be varied in transitu, from hostile to friendly, or neutral, so as to exempt it from capture and confiscation, nevertheless, if it be neutral or friendly at the commencement of the voyage, its character may be so effectually altered before its termination as to ensure its condemnation. As a general rule, no matter what its character at the commencement of the voyage, if its owner is an enemy at the time of the capture, the seizure is lawful and confiscation a necessary consequence. Its fate is determined by the real or constructive character of its ownership at the time of seizure; by its real character, if hostile at the time of capture, and by its constructive character, if neutral or friendly when seized, but hostile at the commencement of the voyage. The rights of the captors are vested at the time of the seizure, and cannot be divested by any subsequent change in the national character of the owner. Previous to adjudication, the owner may have become a neutral, an ally, or a subject, but in neither capacity can he claim exemption from confiscation of property seized while he was an enemy. Nor, to warrant a condemnation, is it in all cases necessary that the owner should be an actual enemy at the time of capture. If the seizure is provisionally made in contemplation of hostilities, a subsequent declaration of war has a retroactive effect, converting the neutral or friendly owner into a public enemy, and the precautionary seizure into an act of war. The seizure is at first regarded as provisional, or rather an act of an equivocal character, to be determined by subsequent events. If, in the language of Sir William Scott, the dispute |