The EENROM. May 21st, 1799. goods might be taken on freight, with a condition that they should be configned to Meffieurs Fabritius and Wever:" This is not like an authority to buy a cargo in undivided moieties for these gentlemen, and other persons; there are no directions for a partnership when I fee how these instructions are executed and by whom, in a manner totally different from what they purport, I am strongly induced to fufpect that they are merely colourable inftructions, and that the real history of this tranfaction is connected with previous arrangements in Batavia between Meffieurs Fabritius and Wever, and Mr. Inglehart, the perfon actually employed in putting this cargo on board. The cargo is put on board by him, and it is a very material question, on which the fate of the cargo, and of the ship likewise may depend; Whether it was the intention of the fupercargo, in this part of the tranfaction, to mislead the British courts of justice, and British cruizers, as to the property of the cargo? for I am of opinion, that if fuch an intention can be' proved in the agent, let the interests of his employers in Denmark be what they may, the must be affected by his conduct, and the consequence will attach on them to confifcate their property so engaged. This is no ordinary fupercargo, he is the fon of his employer, and appears to have been delegated with greater powers than fupercargoes ufually enjoy; his conduct muft in point of law and confcience, and under the most lenient confiderations of equity, be held to bind his principal with peculiar force. In ftrict law every fupercargo will bind his employer; and although where law is adminstered with great indulgence, cafes may arife in which the Court will not implicate the owner; owner; as in fome cafes where fupercargoes have any, The regular penalty of fuch a proceeding must be confifcation; for it is a rule of this Court, which I fhall ever hold, till I am better inftructed by the fuperior Court, that if a neutral will weave a web of fraud of this fort, this Court will not take the trouble of picking out the threads for him, in order to diftinguifh the found from the unfound; if he is detected in fraud he will be involved in toto.-A neutral furely cannot be permitted to fay, "I have endeavoured to protect the whole, but this part is really my property, take the reft and let me go with my own:" If he will engage in fraudulent concerns with other perfons, they must all stand or fall together. Let us fee then if there is not reason, not only to fufpect, but to conclude, that there was a defign to represent the cargo, which appears to have belonged in great part to Inglehart The EENROM. May 21st, 1799. The EENROM. May 21st, £799. Inglehart the Dutchman, as the entire property of Fabritius and Wever. In the first place Mr. Ingle bart was the shipper, yet his name is not once men tioned in the papers; in no one place does his name occur, which cannot be an accidental omiffion, fince it is according to the most ordinary courfe of business. that the name of the fhipper should be specified; I must therefore confider this fuppreffion, as a studied contrivance, to withdraw from the notice of the Court, every connection that Mr. Inglehart has had with this tranfaction. The mafter and the mate defcribe Fabritius and Wever as the entire proprietors, and Mr. Fabritius jun. as the fhipper; they were examined as foon as the fhip was brought in; and, as we may prefume, before they were apprifed of the existence of other papers; they agree with the formal papers in keeping out of fight the name of Inglehart, and never once make mention of him: This is an extraordinary circumstance, for the mafter is in this cafe not a common carrier-mafter; he is a confidential manager of the business, according to the instructions, yet so much is he kept in the dark, or keeps himself so, that he represents Fabritius and Wever as the entire proprietors of the cargo. It is faid, as an excufe for this man, that he was affected with an almost total derangement of mind whilst he was at Batavia, owing to the climate, and that he came home perfectly ignorant of the tranfaction; but there is no mention of this malady in his depofition, nor are there any figns of it; he gives a cool and rational recital of facts, and fhews at least a method in his madness, in every part of his conduct that prefents itself to our view; he was appointed joint agent with Fabritius, P yet yet he was left under the delufion that the whole cargo, of which only half is now claimed, belonged to Meffrs. Fabritius and Wever. If he was deceived, it ferves to establish the impofition on the part of others; if he joined in the deceit, it still farther fortifies the fufpicion of a general combination of fraud. Mr. Fronier, who was the mafter fubftituted in his place for the returned voyage, lies under the fame mistake; he defcribes the cargo as the entire property of Fabritius and Wever. I do not say that this Court will lay down a rule fo harfh as to require that every carrier-master fhould know the property of every part of her cargo; yet in time of war it cannot be unknown to neutrals that the mafter is expected to speak to the property of his cargo; more especially in a cafe like this, where the property is fo great as one half, and where the mafter is a confidential perfon, and where there is a fon of his employer in the character of a fupercargo on board; total ignorance can scarcely happen to fuch a master; and where it is pretended, it ftrongly rivets on the mind of the Court a fufpicion (by which I always mean a legal fufpicion) that there is fomething behind, which it is for the intereft of the parties to conceal. But the matter does not end here: there is no mention of any diftinction of property in the papers: The invoice defcribes the whole cargo as the property of Fabritius and Wever; and this paper is figned, not by the mafter but by the fupercargo. It is faid that the invoice is not a paper of confequence, that the bill of lading is the document to which reference is ufually made; but this is both: it is a bill of lading as well as an invoice then how came The EENROM. May 21ft, 1799. The EENROM. May 21ft, 1799. came this on board? It is faid that Mr. Fabritius was ill, that the lading was conducted for him, and that he figned the paper without attention to its contents: How can I accede to fuch an explanation? Is it credible that a man, entrusted with the management of fo large a concern, fhould fall into fuch a misapprehenfion as to fign a folemn paper afferting the whole property to belong to his employer, wher he well knew that it did not? or can it be believed that on his recovery he should not have made himfelf acquainted with every thing that had been done for him? to act otherwise would be fo monftrous, that no pretence of illness is fufficient to apologife for it. I But it is faid Mr. Fabritius has, fince his arrival in England, difclofed the truth and given in his claim for only one half, and much credit is affumed for this inftance of fair and ingenuous conduct.- Allowing all the merit that is due to fuch a recantation, I do not know that it can be of any avail to protect this case from the penalties attaching on the former part of the tranfaction; for if the Court is fatisfied that the intention was to hold out to British cruizers a noli me tangere as to the whole on an appearance of its being Danish property-although a locus penitentia is to be allowed to all men, I cannot but think that it comes a little too late, under the circumstances of the prefent cafe-Shall a deceit bé allowed during the whole of fuch a voyage; and after it has had a great part of its effect in deceiving our cruizers, fhall it be done away by this late confeffion? If the reprefentation of the papers, and the master, and the substituted mafter, had been believed, the whole of this cargo 15 |