The ROSALIE and BETTY.

Feb. 5th, 1800.

not employed, except in one or two inftances, in confequence of the illness of fome of the new crew. Who is the mafter? He is reprefented as a Pruffian; but in a paper invoked from the Julie, he appears to have been habitually trading from Bourdeaux; and I think I may infer, habituallly trading to the Ifle of France; because the letter of recommendation which he carries with him, fpeaks of him as an (a) old acquaintance, and as a perfon not unknown there. There is the old measuring bill on board, which, if it applies to this fhip, describes her as a Danish fhip; but how this came to be detained alone, and no other papers, does not appear; the fact is however, that the fhip is first produced to the notice of the Court, lying in a French port, and with a new crew; and the mafter unac quainted with her former history. I cannot help thinking there is an appearance of fomething like induftry, or aftutia used, to withdraw from the Court circumstances, of which it ought to be apprized.

With respect to the cargo, it is exposed to these general obfervations, that it is put on board in a French port of the East Indies, being the proceeds (for I must take all the circumstances together) of a cargo, put on board in a French port in Europe, not in return for any cargo fent from Hamburgh to Bourdeaux, but as an original shipment in a French port,

(a) Letter from a merchant at Bourdeaux, to Mr. Delos, to the care of a merchant at the Isle of France, after mention of feveral letters which he had written. "Since which, I have written to Mr. Bedel, by a Pruffian fhip, and though the captain, Gebhardt, is an old acquaintance of mine, I fear he has acted with my letters as they do in general."

to

to be delivered at the Isle of France. It will be proper for me to confider alfo, an obfervation made on the circumstances under which this cargo was taken:

The oftenfible deftination is reprefented to be to Hamburgh undoubtedly, and it has been preffed upon me, that the place of capture, on the English coast near Dartmouth, confirms this account, and fhews that the return was not to Bourdeaux. It is not clear however, from the place of capture, that the veffel might not have found her way into fome French port in the channel; confidering the fituation of Bourdeaux, it might be thought too hazardous an enterprize to at tempt to get to that port, on account of our fleets and cruizers. It is not clear therefore, from this account, that the return might not be to a French port; taking it however, otherwife, and fuppofing the deftination to be to Hamburgh, it is faid to be a ftrong proof of the neutral property: but I think that does not amount to much, confidering the circumftances of the times, and the expofed state of the French ports. If they were not attainable, the next best expedient would be, to get the property to a neutral port ; and therefore, I think that circumftance will not weigh fo much, as it might at a time, when the ports of France were open. So much for the obfervations arifing on the furface of this cafe. I think, it is one that obliges the Court to look with some suspicion; I do not fav, to employ any thing of aftutia, in oppofition to the aftutia employed against it, (for aftutia does not belong to a Court of justice) but to exercife its vigilance; and I think, I violate no duty, in coming to the enquiry with a certain degree of jealoufy,

The ROSALIE and BETTY.

Feb 5th, 1800.

The ROSALIE and BETTY.

Feb. 5th,

1800.

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which the appearances of the cafe, and the general conduct of the parties have contributed to raife. The material object of enquiry, I think, will be, whether it was the intention of the parties to impose on English cruizers, and English Courts of juftice, in the original shipment to India. This is important, on two points; first, because as the prefent cargo is the proceeds of that shipment, if there is reafon to prefume from the fraudulent manner of the transaction, that there were French interests concerned in that cargo, there will be great reafon to conclude that the fame French intereft have travelled throughout; and fecondly, for the purpose of ascertaining the good faith of the agents; because, if I discover a deep laid artifice in the original transaction, it will be diffic cult to perfuade me, that the parties are entitled to the credit of ingenuous dealing, in the fubfequent parts of the tranfaction. The two leading facts are, that the fhip went from a French port to a French fettlement; and that the cargo was there difpofed of, in the French colony. To prevent these acts from being confidered as fraudulent, one of these two things must be fhewn; either that the deftination was avowedly and openly profeffed (for in fuch a cafe, although the trade might be held illegal, it would not be fraudulent); or fecondly, that if the fhip did not go with this avowed deftination, fhe went thither under fome urgent and fupervening neceffity; because if it was the original intention of the parties, and that intention was diffimulated, it must be confidered as a fraud; and that fraud more noxious, on account of

the

the contraband nature of feveral of the articles of the outward cargo (a).

On the first point, an open and avowed deftination to the Ifle of France, there can be no difpute; as every paper points to Tranquebar, and to no other place; except the certificate granted at Hamburgh, on the oath of Mr. Baker, which is referred to, as ftating a deftination to the Isle of France; but, unless that can be proved to have been on board in the outward voyage, in a producible form, it might as well have been a thousand leagues off; and if it was not, there is nothing to fhew even a contingent intention of going to the Ifle of France; and therefore, the destination must be deemed diffimulated. That the certificate was on board in a producible form, can, I think, hardly be maintained; for the mafter was wholly unacquainted with it, and fpeaks entirely of a deftination to Tranquebar, without any reference to the Ifle of France. That it was not produced, appears alfo from two inftances, in which this fhip was met by English cruizers and examined; and it is hardly credible, that if such a paper had appeared, a cruizer would fo far have forgotten his own interest, as well as his duty, as not to have brought the veffel in for adjudication. I am therefore forced to conclude, that this paper could not be on board in any form that

(a) The general cargo confifted of a large variety of afforted articles; amongst thefe-9 cables and 26 small ones, 6 kedge anchors, 704 bars of iron, 163 bundles of hoop, round and fquare iron, 6 cafks of fhip tar, 200 casks of pitch.

made

The ROSALIE and BETTY

Feb. Stii, 1800.

The

ROSALIE and
BETTY.

Feb. 5th, 1800.

made it producible as a fhip's paper, during the

voyage.

This brings me to the fecond point, whether the veffel was driven to unload in the Ifle of France, by any emergency arifing out of the circumftances of the voyage? It is faid, that the parties had a right to clear out for Tranquebar, reserving to themselves a liberty of touching, in this manner, at any enemy's port, for the purpose of refreshment: But I fay, that if there is fuch a reservation, it ought to be expreffed in the fhip's papers; it can least of all be admitted in a cafe where every thing points to a neutral port; where the confignee is regularly defcribed; and where every atteftation, and oath in the cafe, points to a neutral port only. As to any plea of neceffity that can be set up to justify such a deviation, there must be two neceffities fhewn, one creating an obligation to go into that port, and the other, an obligation to fell in that port; for this last is the criminal act, conftituting the fraudulent departure from the intentions which are held out in every paper in the cafe. It is faid, that this deviation was occafioned by a want of water, and the leaky condition of the fhip: the experience of the Court, does not induce it to hear these excuses with any great refpect; especially when there is no intimation in the papers of any fuch deviation. It does not appear at what time the failure of water was perceived, whether before the fhip reached British ports or not; or whether due diligence was ufed to fupply it; therefore, of this I cannot judge. But of damage done to the fhip, I fee very little; and that, not till fhe approached very near the Ifle of France;

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