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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.
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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.
Lon, which was afterwaj'ds obtained at Collingwood and forwarded to
the Connuissioner, it has been sliewn that even in resj>ect 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