.0^\^ IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 112 2 2 2.0 >: «. 1.8 1.25 1.4 1'^ 6" — ► V} <9 /}. .%' >/ immm'mimBm MEMORANDUM IN RELATION TO THE SEIZURE OF VESSELS BELON(JING TO J. &C. NOBLE PRKPARED IV rONSKQUENCR OF THE KKFUSAL OF THE COMMISSIONER TO HEAR ARGUMENT AT THE CLOSE OF THE COMMISSION FOR INVESTIGATION OF CHARGES AGAINST THE SAID NOBLES. McCarthy, osler, hoskin & ckeelman COLLINOWOOD ENTERPRISE PRINT. m mmm^':^,:^^mi ■i f •".' Vi ' \'^ ' ■ ■ t ll I'X.-' ■ / ». '. ■'* V .n\ ■kL. .*>',-»yi.,- &ISIi#!l^ 11 .'nJaS'-T: * '*^' ■<:•:-,''?' ;■;> ^} ';ii?:*>.:' ■\H5' MEMORANDUM l\ l{i;i,ATI()\ TfHIIK SEIZURE OF VESSELS l!KL(>N«ir\(; TO J. & C. NOBLE im{i:paki;i» in <'o\si;i/i'k\(k OF THK H KFUS A L O F TH K d >MM ISSIONE R TO U E A U A R( ! I : M F.NT \T THK CLOSE OF THE (M)MMISSIOX FOIl INVESTH^ATIOX OF CHAUiiES ACAINSTTHE SAID NOF.LES. MrCAUTHY, OSLHH, HOSKIN A- ('UK ELM AN' (•OLI.IX(J\V(»OI> KNTKRPRISK J'KINT. Memorandum IN KELATIO^' TO THE SEIZURE OF VESSELS BELONOINO TO .1. & C. NOBLE. FKEPAKEl) IN CONSEgUEXCE OF THE REFUSAL OF THE COMMISSIONER TO HEAR ARCJUMENT AT THE CLOeE OF COMMISSION FOR INVESTKJATION OF CHARGES AGALNSTTHE SAII> NOBLfiS. On the 8th aiid 9th (hiys of May, 1894, four steam tu^s and a number of sail boats which belonj,'e(l or were supposed to Iwlonfj to J. & C. Noble, of Killarney, were seized by Fishery Overseer Elliott a( Squaw Island and Hyn^ Tnlet on the (4e(»r}^ian Bay. This seizure was made under instructions from the Department of Marine and Fisher- ies to the F.().,in answer to a tele{ intt'iid lo do unytliin,y: wrnnj;, rliiit ilicy hud sent out tlu'ii" tii;,'s !ind ln>!i(s 1(1 tilt' lisliiii;; j,'f(»unds witfi tlr* t'idl t'Xprct i- tit>n tluit iifcnsj's would he recfivrd in (hie I'oursr, ihal otJKM* fisluMMniMi Imd done the sain.', and tluit llicir huts a;id tU'^-' li i I n-it hnMi st'i/."d, altliow^h it was known tu the !•'. ( ). at the tiin«' ot'tliis si'iznip that the ntlicr tui^rsand loat-i lisliin,' at the s mi'' t.ini!' and jdafi* had not vr- I'civcd liL'i'nsi's : and fiiither that they liad Ii.tii led into a tiva]) hy the antinn of the I*\ <)., who had concealed fmni tlieni the fact that theii' licenses were not likely to he <^niMted. expressly ii order to induce them to send out their tu^s and hoats in ji^ood faith in order that he nii«;ht have an oj»|).»i'tuiuty of sci/ini,' them. These lepresentalioiis havin;^ het?n inaije tithe |)ei>arlnient. the NoUles were met with tiie answer that nuntemus complaints had hccn made a^fainst them to the hepartment in former years, that it was stated and i»elie\ed to he the fact that they luwl heeii convicted of violations of the Fisheries Act ami He_i;ulations, and in short that theii- conduct in other years had heen such as to justify tlmii" heint; treattid as outlaws, and that tliey could expect no l(MUency whatever, even if it was ti'ue that they had in this iiista'nce been harshly ti'eated l»y tin* 1\ (>.. and that lljeir oji'euee was a merely technical one. Tile iVohles sti'on,i,dy assrtrt.sd that th) stitrtiUHiits mide t> th' Department a^^ainst them were for the most pai't j^ross slanders,that it was untrue that they had, as cliai'^ed, pei'sistently vitdated the law and hiuJ incited others to do the same, and that if any such charj^es had l)een made, upon a |>uhhc investi;,Mtion they cnild satisfactorily dis prove or explain them. So 111) !iy and .so j^i-oss were the charjjes which had been made aj,'ainst the Nobles in letter.s and reports to t!ie Depai-tnient, l>y the F. (>., and perhaps by others instiijated by him and by their rivals in the Hshiiij; busines.s, that the Dej)a»'tment felt justiKed in tnaking })ublic by a letter (►ver the si<>;natun> of .lames ilardt^e, Ks |., AcSinj,' Deputy Ministei- of Marine and Fisheries. ad(h*e.ssetl to the "Uweu Sound Sun ;" a series of charf^e.s, stated in such stronj^ lan^Ljua.ife and in such general terms, that they could hardly have been justified had the N<>bles been convicted a dozen time's foi various ofi'ences against the f ty the F. had sent «*X|>»*CtV- shHrmt'ii li MM/." he tlic ries Act furs had lat tiiey M'v had at tlu'ii' t> th ' s,that it law and «;es ha,d ily dis made tlie F. ill the jtuhhc Deputy Hound I in such jid the li.^t the '•Fishci it's Ae't an(i Ki'Xid-'itions." In ill'' iiii'iith Ui'.Iidy, IMM, a < 'i»niinissi(i:i vvas onlcrcil t<» issin' tm till' ;ii\ ('sti;,'atiiih u:'tii«' cliiiii^cs rctcncrl t-., i»iii in sjdtc dt' (>ni|nii-i('.s \>\ th»' N'ohh's as lo the tinu- mid |ilait' of hraiin;;, iiotliin;,' tiirther wm>^ l.rard l>y ihiiii nut il oil Scj.triiilxf L'Jnil, iSi'l, a tel»'i:iaiii was sciil tioiM <)Ma\\a adNlsiiijn' ihciii that the •' t'oiiiinission tor I n\eMti<;at ion would iiK'ci on ScjitcnilM'r LlJith at Kili.iiiit'y. ThcMf l)fin,i; n<» tch- :;ia]ih station at Killanicy it w.'.s ,sonn' days hetoic this t.'l(>t;rani K'fu'ht'd (he Nolili's, when tlu^y iniincdiat* iy iiiaon this limitation of the scope of the Commission, because he had n«»t brought witii him any (locuments in the possession of tlie Dej)artment bearint; an earlier date than April .SOtli, lSi)i>. Counsel for t!ie Nobles asked to be allowt-d to peruse the Commis- sion, in order to see the endorsemcMit by the ^[inister of the order al- lowing the fyle of the D(>partment to l)e taken away by the Commis- sioner, but this was peremptorily refused, the C.)ininissioner statin;L( that he would not allow the Connnission t(» be seen, but would simj)ly read it aloud, which he did, but (Hd n(»t read tiie endarsenuMit. The Nobles then })roceeded, undei' pn)test, tu give evidence under the ruling of the Commissioner, of the extenuating circumstances upon which they relied as shewing their offence to have been merelv a tech- liiciil 'iiH- aiid |)rn\ ill;; tiinl tlicy liiul I;('<'ii drlilicrfitt'lv led \u\t> ;i tiii;* In till' !•'. ( >., ,iiii| it is tint ton iui|. Ii tnsi\ tlii'V wjiollv siU'crt'onnl\ Island. Otli'-f stale- ni-nts contained in Mr. llardees letter, and v.li'eh were donbtleHs Iiu.s»m1 U|i(ai It Iters reeei\ed hy the I )e|iarl nient. weri- also sh( wn l) he lint iiie. and in shoi't the falsity <'f the eharu'es ai^ainst the NoUles in Lfenerhl was shewn when the I''. ' ). himself, admittedly Iiostile to iIk mi. s\M»i'e that if it hud not been fm a certain iMiM\ieli.iii toi' the sale of fish illi'ii-ally eauLrht. ill |S!):i. he would have leeonnnen.jed in t he spring of this year that tlh' lie<'nses in (|iiestioii should l)e ;;;ia:ited to them. In \ lew of this statement on <»ath, of an tiiiftiendly witiie^s,it can hard 1y he said that apart from the particular conviction refened to.and the eircnimstaiin'H .surroiMidiiijj the seizure in (piesiion, the reeoi-d of the Nol)l(>s can l>e such as to just if\ the inllietion up.>n thein of a line of tli(tus!iiids<»f dollar's, worth of \esxels and plant, in addition to the <'on secpiential damai'^es to their hu.siness. an*l the hnmiliation and injury to their I'eputat ion necessarily followii'.L; from the \ iolent attack con tained in Mr. Hardee's letter, which, in view of his ojlicial position, car ried with all the weiirht attachiii'^ to an acl of ihe honnnion (lovern mcnt. In view of the fact that the inllietion of this loss upon the Xohh's has Ijccii attempted to he justiti(»d by their ulleiied past I'ccord as viola- tor's «(f the law, it may be well to say s(»methiii,i; uj^oii that pt»int befiuc statin;; the circumstances in connection with tlie sei/.ui'c in (]ucsti' i!i.| on a hi Till lalJ ilo il tl'llj* (•(•*'( Ir.l III ■lii.'li Im'I tTC illlHd- •ir liaviiiL; tlic yi'!:r lli'f sl.ilc- (litnl)t l("s> I WM t'l It,' Nuhirs ill I' t'l Hiciii. the sjjriiijn' to tliriii. (■ill) liiii'd (•.;il.(l the <1 nt* tlic a fine (tf I t he coll 1(1 ill j my Ut'k COM lion, cur (JoVCIM ■ Nohlcs iis \ iohi lit licl'oic ||ucstioii, Jl.'lSt 1-c- ICoinniis- ric F. (). iveoiii jitiLj that lias tl'.c powers ot' ,1 .lusl ice of tlic I'ciicc uiiilcr llic Ad. for Ituyinu- a Miiall i|iiaiititv ot" |»icl:crcl which it was allcu;c«l tlicy knew to lia\c hccii illc'^'ally caiiiilil. 'I'lic summons was ma'utor. olijection was taken as lo his sill iiif;' upon (he liciich. ami he lliereii|Hiii ujidcrtook (o .(djoiirii the inaltir tor a week, at the end ol' which time lie u^ain a)t- |)»,ired with Mr. (ieorne r»iirden. Police .Ma;^ist r;ile, at theSault. Mr. Ihirden declined to allow the other Mai,asl rales to sit with him on the I.eiich, wheieiipon he was reminded that ManJtoulin Island wasnoi within hi.s jurisdiction, and the other iiiaufiHl rates then proceeded to'liear th«' case. Mr. Klliott retV.sin;; tit proceed t'liither with it het'orc iheiii, ' he Mu\' their dischariie, and declined to appear het'ore ihirdcii, who in tlii>ir alisence undertook to intlict upon tiiem a line ani(aintin;j: alto}{t'ther to s:i7t).tH). Ill'' Nohles havin«^' refu.sed to pay this line, the papers were sent to the I )e|iartiiient, when it was as a matter ot" course not eiit'orccd. .Messrs. Nohle stated on oath liefore the Commissioner that in the course of thirty years, during which t ime they h,id either hy them selves or thr«ai,yh their cmployt'i^s activelv en<^rao;ed in the lisher\ husiness, they had never heeii convicted of .an oli'ence until the occasion of the sei/urt! in u^uestion, mi the Spring- of this \{'u\ with the excep t ion «»f the alleLfcd conviction, the I'ircum-taiiccs of which are ahove stated and in respect of which they had nii to tliciii i* - .Hfiidiiii; tlif'if allcuf'd violations; of tlic law, alt!iou,i,di tlic (Joinniissioiici- (']i('j)ly statt'd ill liis picsciM-c tliat he was tlicic for tlic jtuiposr (»f art- iiiy- as rounscl aijainst tiu* Nohics. Moie tiiaii tliat, tlic N<»hlcs d< niaiidcd. in tlic ]iicsciicc of the ('oiiiniissioMcr,that chaises shonid Ijc made ayaiiist them, and juililiely challtiiiied the I''. < ). to i^o into the witness lu»\, and slate anything' he knew ai^ainst them, hut he |)ositi\ely iefnsedto(h» so, and it is siihmittcd that nothin*.' cm shew neie elea'ly that it was out of his jiowcm- to estahlish the ehar<,'es eontained in his rejioits to the l)e[)ar'tment. than tlic fact that he was eomjiclled to stat<' that lait foe tlie one ehaiLre icfeiied to. their conduct was such that he would liaxc teconiniciidcd tlicii- a])i)lication for licenses. How would it lie jiossihle to justify the total luin of the husincss of a liiiii of mcichants, the infliction upon them of a loss amountinirto tens of thousands of dollars, hy reason of a paltry con\iction for the sale <»f a few illei^ally caujiht Hsh : and it seems simply moiistron the Conmiission, that the oflence which was sou;/ht to he made the occasion of the infliction y the alKdavit of Mr. Lonect of tlie convic- tion for tishing without a license, upon the occasion in (|uestion. the unfortunated men wej-e entrapped and deceived into a jilea of <;uilty, in order that a coiivicti<»n mi.^lit he rei;istereil auainst theni for the pni pro j)ar ) ha( I ap when the I tluMii i( - itnissidiici' iSt' of JU't- lic Nobles should Ije :o into the j)ositi\<'ly hew in-fe eontaiiHvl eoiniielleil [uhiet WiiN lieenses. e business lountinir to m t'of the ;trous that ii eonvie- wn hy tlie ,vas souvfht it Wiis not of a tvaj) ee the uii- wliich he siite them liei- {irove lied t'fdiii 4'used,l)Ut liiftei' the of Mr. Ivurded to lie couvie- Ition, the [f iruilty, for the pui'poses of the seizure iind conliseiition of their vessels, and that as is pi-oved by tlie letter of the Poliet; Magistrate himself, the latter was a party to the fraud, and while rej)!'es"ntiii,L!: to tljeni ihat the eonvietion had nothing to do with the seizure;, and thit he i"e;;arded the ofTence as a pun^ly teehnical one, and that he would .so report to the Department in their favour in order tiiat the tu-^s and boats seized mi^ht b«' im- UHHliatelv returned ; instead of so doiiiij x'ut in a mr»st malieious and libellous report, based upon !ioe\iden( e whatever, and simply, so far as i'.iin be learnefl, from the verbal st;iteMi!'iits of the V. (). Mr. Lonj; and the Nobles had come prepaied t(» defend the case, but upon bein;jt assured that the offence was reL'ar-sion, they were entirely taken by surprise, Jtnd simply ha(l to get what evidence happened to be immedi- 10 i Jitely Hv;iiliil)I<' ill rrlatittn tir witness the K.O., althitu*;!) they well knew that he was bitterly hostile to them, and would eadeavoui- to injure them in evei-y possible way, and they accoi-din<,dy reipiested him to give evidence. What followed was most extraordinarv : KLLIOTF HEFTSED TO (ilVE EVIJ)ENC'K. A (iovernment Otiicer. holding a judicial position, refused to testify to facts within his knowledge iiefore a(j<»v- ernment Cwer emle ivoured to I'uin. Why? Either liecause he kne a facts which would tell in their favor. (»r because he had grossly slandered them in his reports t<» the Government. 'I'he result shewed that he was probably actuated by both mcttives. The Conimissionei" I'efused to comjtel him to testify, although his powers under the Act were expressly pointed «>ut, and he adj«»urne i the Connnission until tiie following day for the exj)ress purpose «)f en- abling Elliott to consider his evidence, thereby not oidy taking away from the Nobles the advantage of beinir able to examine him befoi'e he could consider the ett'ect of his evidence, l)ut causing them consider- able additional ex[)ens«' by prolonging the sitting of the Connnission. Even more serious obstacles were placed in the way of the Nobles, in endeavouring t(» elicit facts from the P.O., by the positive refusal of the Commissioner to allow them to see even those papers which he had brought from the Department for the purpose of the investigation, tor it will readily be seen that it was impossible properly to conduct the examination without knowing what Elliott had stated in his letters t^» the Department. The Connnissioner, however, after having at first refused to giv(» any information as to what documents he had, finally agreed that he w«»uld read such portions as he might see fit. in tlie pre- 1 s»1 N a(i I Tl.e F (». I no stP})s » tl«H klH)\V- jtaptT, and session had live t'xcept ,hat he was ii in every s evidence. iEKrSED a judicial 'tore a Gov- facts, and entirely at nde ivoured uld tell in s repoi'ts to actuated iou;{h his adjourne t ose of en- :in<; away irn hefoi'e n considei'- niission. le Nobles, refusal of ich he hud ifation, for nduct the ! letters ti> g at first d, finally n the pre- i n sfhce of the witness, hefttre allowing the exaniination ttt j)roceed, and all efiorts of (.Counsel to obtain further concessions were unavailing. Notwithstaixling all these pearing that he was dealing not with the Nobles but with the riv.il C'om}>any, Elliott stated that he could arrange it all right, that he had a licen.se in his pocket tor a man named iJishop, who was' not going t(» use it, and that he would ti'ansfer it t») Malcolm, which he accordingly undertook to do, by en- (hiseuK'iit uj.on the license,contrary to one of the Fishery Regulations most stringently insisted up<»n. When, on the following «hiy, Elliott proceeded to Byng Inlet to seize the remainder of the Nobles' Ijoats, this man Matthew Bishop was there fishing anisho{)"s application for the licen.se, expecting that he would fish for them, but, having aftei'wai'ds, ipiarrelled with him, complained to the F. (). that Bishop had broken faith with them, an. undertook to take away his license and give it to a man who was not dealing with the men who were .so obnoxious to him. Th'^ result wa.s, two men fished all season on one license, by this a.ssumj)ti(»ti of authority «)n the part of the F. (>., which, if permitted by the Department, would defeat the whole effect of the Fishery Regulations, place all power in the hands of the Overseer, and render any action by the De})artnjent a mere formality. 12 It was alsoproved by Malcolm uiul AlhiTt Low, that at tlic tine of the seizuiv, there were many bouts of the rival Company, including two steam tu compelled to call the Manager of the rival Company, in order to prove the date of their ai)plication for license, which was May 17th, 1804, and this witness undertook to say that In- always received his license hefore starting out to fish, and had done so for three years past, evidence which was contradicted by every witness called, and by the F. O. himself, who stated that these regulations -/ere only made for 1893, and were not enforced even in that year. Secondly: The F. O. was compelled to admit that it was true, as stated by the No]>les, that where the i-(!gulations had been allowed to fall in abeyance, a year's grace was allowed, at least in one instance, to a man named S. F. lleeves, to dispose of his plant. The regnlaticms oidy allow one man license for five pr)und nets, whereas, lleeves had for some time past, been fishing with no less than sixteen pound nets, thereby destroying great quantities of fish. When the regulations were enforced, Reeves nevertheless received his license for sixteen pound nets, upon the understanding that they would not Vie renewed for another year. It will be remembered that this fact was positively denied by Mr. Hardee in his letter to the "Owen Sound Sun." Thirdly : The fact that the seizure this Spring was the result of a deliberate and malicious trap by the F. O., for the Nobles, was absol- utely proved up(m his own admissions. Owing to the omission by the Commissioner to bring Elliott's letters and reports written during the winter of 189li-94, it was impossible t<» get at the instructions from the Department to him, over the same li-i ,t the tin e •, including? F. O, wh.» eau proved he time t to pi-otect himself, as he had ample )>ower to seize Ixtats ille^^ally Hshinj; without any sj«>cial iiistructi(»ns. There can he no dispute upon these points, for they are admitted hy Klliott himself. KlMOTT, TIIKN, OIITAINEU TIIK IXFoHMATloN II'ON WIIK 11 MIS TKLKfiRAM WAS |«ASK1) FR<)M NoHLK IIIMSKLF A I' "UK SaULT, ALLOWKI) TIIK LATTKR TO LKAVK WITIIOi: TIIK SI.Klir i;sT MINT THAT ANV SF.IZIIRK WAS (oNTKMPLATKI). MOU l)tl <'SS hecauf-e, as is un(|uestional)ly the case, a hint to Nohle at that time, [would have spoiled the whole trap, and would, as Nohle himself swoi-e. 11 lave rcsu I ted HI an imme diate (trder hv him to their vessels to cease |fishin<;. Elliott merely waited for his instructions to make the seizure. [an- pose that these men had any object in swearing' to a di lil)ei'ate false- IkmkI; particularly when it would brinj,' down u|)on them the malice of the I"'. ()., who had such extensive p(»weis over them. In the second place, these men say that they have lost their seasons tishinu, that they have l(»st their ijoats, and that they have never been convipted of violatin<^ any <»f the Fishery Laws ; that their ruin has been s(» complete, that they did nttt know how they could ^et through the following winter, and that when they complained to PjUiott, he stated that their boats had been seized, because he thougiit they were working for the Nobles, and he suj)itosed that their boats and rigs belonged to t!iem, although Iw was, in thi.s, as is shewn, entiiely mis- taken. All ok TMIi STATKMKNTS IN THKSK AFFIDAVITS WERK ADMITTED BY Elliott in his evidence to be absolutely thue. The i-esult is, that when challenged. Elliott was not only not able to establish the charges previously made against the Nobles, upon which the Depai'tment supjuKsed that the seizure or confiscation would be justified, l)Ut admitted that his sole reason for preventing them from getting their licenses was the conviction of 18S>.'i, which, was in fact, n(» conviction at all ; that the whole conviction and seizure in question, was the result of a delibeiate trap. It is not too much to sfiy, in view of the evidence, that this trap was dishonestly and fraudulently set for them by the F. ()., and that even when it came to the formal charge before the Magistrate, the Nobles were deceived into abandoning their idea of defending it upon all the grounds above indicated; and that by the conduct of the F. O., a man who tmght to hold a judicial and impartial position, not only have the Nobles been practically I'uined, 17 'casoii than tln' Nobles. n, involved in the form iernai'd, I). be l)roii<,'ht ; in the Hist luinin*; the ,son to suj»- ei-ate false- le malice of leii' season's nevei' been ir ruin has Lfet through Elliott, he they were ts and rigs itirely mis- iMiTTEi) nv not able to Ipon which would be [hem fi'om Is in fact, |i question, liy, in view [tly set for lial charge )ning theii- [id that by licial and ruined. ^ if but unf«»rtunate lishermen liave, througli his mistake, been brought to the verge of starvation ; and it is submitten should justice Im;' y renilering Nalue- less any property that the V. ( ). had been unabh* to sci/e. This would be iiuthing less than persecution, and the onlv lesson that the tishermen of the North Shore coidd learn from such a decis- ion would be that at all hazards they must bow to every whim and caprice