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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<jram from him advisinj? the Depart-
ment that the Nobles were then tishinjor without a license.
Durintj the followinjj month two ch_ar*i[es werejlaid against them for
fishinja: vithout a license, and they were brou«j;ht before Police Maj^is-
trate Burden cm or about June 24th, 1894, when tme of the charges
was withdrawn, and upon the other a fine of $5.00 was imposed.
The tugs and boats seized, which were of a value of several thous-
and dollars were not returned, the said sad boats being sold by private
.sale without notice to the Nobles, and the tugs Ijeing advertised for
sale by tender, which sale has been postp<med from time to time.
The Nobles have not only lost the season of 1894 but their busine.ss
has l)een ruined, their trade has \yeen turned into the hands of a rival
Company and it has become known over the whole territory through
which their business extends that fishennen dealing with them cannot
-tixpect fair treatment at the hands of the F. O. The Nobles have
stated upon oath that the loss inflicted upon them by the action of the
F. O. amounts to, no less than $25,000. As soon as it became known
that the seizure had been made, the Nobles represented to the Depart-
iiK'iit tliiil tlicy liiil Iti'i'ii trcjitfd iiiKst unjustly and unfairly by tlie V.
<)., tliJit \]u'.\ (lid \\i>{ 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/."<I,
th.a t\n'
not IV'-
j» liy the
Jit thcif
) iiitluiM'
that he
ntatioiis
kith tlif
II to th<'
,'■> 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 iiia<h' cNcry |ios,sihi«' jnc-
Had
In'cn niailc aifainst tlieni
I
jiaralio'i to meet tiir (•li:ir;^t's t'lat
althon^ha hii'.yc mnnlH'i tit' uitiu'.s.s('s were ncccssai'ily una\ailal)le,l)('iniLC
at \aiious places on ( "•'oiyian f'ay, en^ai^ed in lishiniL;,and it was conse-
• [uently not jiossihle to olttain their evidcnct* within the time limited.
The l.'oinmi.ssion haviinj; l)een lead, ahiiou,:^h it was in terms stat,ed
to l)e a C/oinmission tor investigation <»t' the char^'es that had Ijcen
niatle aifainst th»' NoWh's, the Commissioner ruled that the Nohles
weie Mjion their deh'iic;', and tiiat in any <ase he wjis not there to in-
vestigate any sudi chaii^es, 1 ait that the whole seope of the Commission
was to enahle the \ol)les to jx'oihu'c e\ ideiice of such »'.\tenuatiti^' eir-
cumstuMces as they niijj;lu (hv-^ire to hiinic t<t the notice of the Depart
menr, with relation onlv to tlif' seizure above referred to in tlie month
of Mav, 1<^!)4.
It became apparent as the Commission jir»»ceeded tliat tiu* Commis-
sioner, hafj, hefoi'c lea\in,L; Ottawa, determined u}>on 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'<lr<l in
• jiiiiii; M).
Iiii'i»l('Mt;ilIy, it also iipitiMrctl tliat maiiv of t 'w clwii'ijt's wliirli had
ln'fii iiiadf uiraiiist tlicni, ;!nd those tlic imosi mtIi'IIs one"., vvt-rc aliso-
liitcly without, fouiidatioii, iiioic ]»ail icidarU that as to their haviiiL,'
li( en eoiivit ted ii|iiim |pie\ ion-; occasioie-. and ]iatt ieularly in the ye;;r
I HO'J of having; fished with seine-; on |'>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<in,
notwithstaridir);,' the fact that by the ruling' r-efcrred to. the past re-
cord of the Nobles lias been e.xcluded fr-om the scope of the Commis-
sion.
First, as to the alle<;e(l conviction in the year 1S9-5, which the F. O.
stated upon oath, to have been his sole !j:r'ourul for r'cfusini; to I'eeom-
mend the Xobles' application for- license.'-. It appeai-s that dui'inu; that
year- a char'fi;e was laid aijain.st tiie Nobles before the V. 0.. who lias the
|oi
'!>'
i!i.|
on
a hi
Till
lalJ
ilo il tl'llj*
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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<lc ictuiiiahlc at Little ('iirreiil
on .Miinitoillin Ishilld (Mi the lelnill. Messrs. Nolde aiUK'llied to
aiisuer lo il l.et'oie i he l-'ishery < )iricer. Mr. i)iiues, .1. 1'., ant! .Mr.
Tiiikiss. -1. ['. .Mr. I'llliott ii|i|M'arim^ a-^ |trose>'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<fist rates called upon him to do so, and dismissed the case, and a
I'oiiiial record ol' the discharge was haialed to ! he Nohles .\ short
limeat'ler thi.^- tin- I'olice Ma'iist rat c came to Killariiey, and issued ;i
summons in respect ot the same chari.ce, returnahle in twti or thiee
hours het'orc him.selt". Messrs. Nohle, w Ik'Ii serxed with the summons,
produced the record t>\' 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 n<tl paid one dollar for either
line or costs.
The F. O. was compelled to state that he had never known of a
sinjL;le con\ iction au'aiiist them and that he had never even heard of
one, and in short, as ahove stated, swore more than once, durinij; his
examination, that his sole reason for refusiii;; to rei'omm'iiid thi.'m for
license was th<^ said alleijed conviction.
Till" F. ( ). aitjicn-cW lict'orc tlic CoiniiiissioiiHi', \v;is prcsfiit when tlic
Xuhlcs y;i\<' ('\ idem c, l)iit did hot juil a siiit;;l(' <|\i('sti<>ii 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 moiistr<ius that
such action should he tMken and attemptefl to he justified hy a con\ic-
tioii which could not he enfoi'ced : and, if iii addition, it is shewn hy the
e\i<lence taken u]>on the Conmiission, that the oflence which was sou;/ht
to he made the occasion of the infliction <if such a punishment was n<it
only a merely technical one, but was hrouuht ahout hy moans of a trap
deliherately laid hy the (i<tvei'niiient Officer, in orch-r to induce the tin-
fortunate men to commit a breach of the IJe^ulations ujion which he
relies, surely e\ery possible means shoulrl be taken to compensate them
f(»r the loss they have sufi'ered.
Not only does tlie evidence taken before: the Commissioner prove
that the F (). deliberately led the Nobles into a tr-ap, concealed fr»»m
(hem that there was any jirobability of theii" licenses l)eing i'efused,but
by aflida\its which were sent to the Commissioner, shortly aftei- the
closijiLT of the Commission, and particularly l>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<le'l as merelv t(H'hnical, and that a
nominal fine would be im])osed, a^reerl to a plea of j;uilty, an<l went
home fully believin<:f <^hat the matter had been satisfactorily ari-an^ed
and that their vessels would be released in a ft!W days. The Ma<,'isti'ate
after pr(»misin,Lj the Nobles and .Mr. Lon;;, who apjteared in tlujir iii-
terests, that he would lejioit to the Department in their favour as
above stated, and after havin<:j actu.illy rep(trted aijainst them, was dis-
honest enou;j;h to wi-ite Mr. Loni,', enclosint; a copy of the formal n'cord
of what took place in court before him, i-eferrinj; to his malicious le-
port sent in by him as bavins^ doubtless inlluenced the Department in
favour of the Noble.s, as shewn by the fact that the sale of the ves,sels
.seized had been postponed.
Jiefore considerinj; the »nidence adduced before the Commi.ssioner,
in support of the ccmtention of the Nobles that they had been led into
a trap by the F.O., and that lie had acted malici»tusly and unfairly to-
wards them, whihf not enforcin;; the re;,'ulations in (piestion as ai,Minst
others, a word may be said as to the disadvantages under which the
N^obles labourefl in bi-inginj^ any evidence at all before the Commis-
sioner.
Ti; has already been pointed out that the notice j^iven to them of
the sittinj,' of the Connnission was entirely insutKcient to enable them
to j)!'epare their case or to obtain the attendance of witnesses. IJy
the ruling of the Commissioner, and particularly by his omission to
bring the file of the Department relating to the matters which were
within the real scope of the Commi>-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 t<i the s'oi/u»«' of tlicir .rsu'ls. Tli<» F ( ».
was )tres«'iit fit the Coniinissioiis and not only had he taken no stejis
whatever t(»an'unj;e tor siK'li evidence as nii<;ht Inin^ facts to tlie know-
ledj;e of the Connnissioner, hut he had n(»t hrou^lit a single paper, and
his letter hor»ks, corresponchMice and other papers in his poss(.'ssion had
heen left at Sault Ste Marie.
Taken by surprise, in this way the Nobles iiad no alternative except
to call as th(>ir 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 C<tmmission issued for the investigation of those facts, and
publicly shewed his malice against men whose business is entirely at
his mercy, and whom he jiad by all means in his p«>wer 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 <lisiulvantages the K. O. was compelled to
admit :
First : That li<- had favouied the conijKtitors of the Nobles at their
expense, and that he had himself broken the regulations in onler tod<t
so. The witness Malcolm was on S(|uaw Island wIhmi the seizure was
ma<le. ('n May Htli his sail boat was tlu're fishing in charge of his
brother, and no li<'en.se had even been applied for. Kx[)ecting s<'i/,urp,
all niovejilile ai tides were taken out of the boat, but Malcolm obtained
a private inter\ie\v with Klliott, and it aj>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 an<l was not interfered with, In'cau.se, as the F. (). well
knew, his license had been sejit and should have Yyeeu in his possession.
Filliott at first attempted to deny the facts, but was finally conii)elled
to a<lmit fully the truth «»f Malcolm's statement, and to stat«^ the real
story of the transfer of this license.
It ajtpeaied that the rival cojnpany had sent in I>isho{)"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<l was giung to fish for the Nobles,
wiiereupon the F. (>. 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<j;s, without license, to the knowledge of the F. O , who
did not interfere with any «tf them, and l)ominick Ilosseau proved
that the ochei- Comi»any had no license for their boats at the time of
the seizure. The F. (). at Hrst contradicted the evidence of the inen,
but was afterwards compelled to admit tlie truth of nearly all the state-
ments made by them, or at least to say, that he could not contradict
them, and attempted to justify his failure to seize the other tuys by
saying that he knew the licenses were on their way, or at (Polling-
wood.
Owing to the fact that the F'. O. had not brought any of his books
and papers, the Nobles weii> 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 <tf
)t' the men,
11 the state -
contradict
er tu,!L,'s l)y
at ('oUiug-
f his books
of the rival
tor license,
say that hi-
had done so
k^ery witness
regulations
lat year.
s true, as
allowed to
instance, to
regulaticms
leev(^s hafi
|)!)und nets.
regulations
or sixteen
)e renewed
s positively
n."
esult of a
was absol-
ptt's letters
lipossible to
the same
period, in order to ascertain what reference was made in this corres-
pondence to the Nol)l<'s" licenses. Klliott. however, admitted, that at
some time (hirinj; tlie wintei'. he had made up his mind nctt to recom-
mend their ajtphcati.tn tor licenses, and he admitted that he knew it
was not tlie custom of the hepartmejit to grant any license which was
not reconunended by the 1'". O. He stated, that within his kn(»wledge,
no in.'-tance had ever occurred of the granting of a license by the
Department where the api»hcation had not been reconunended by the
F. ( ).
He was in constant cori-espondence with the Nobles during the
whole of that winter, and. on .January lOth, wrote to them that he
would n(»t reooniniend fishermen for license who did not send in a
ivtui'n of theii- fish for the previous season, HUT iiK Din not cive them
THE SLIGHT i:s'r hint that hi<: did not intend to hecommend tHeih lic-
enses. ( )n March I 4th, their application was sent to him, with a cheipie
for 82.S0, the auKtunt (sf fees for licenses applied for. Although it had
never been thecust(»m. in formei- years, to demand payment <»f discount
on che(pies, he underto;ik to return this cheipie, with the paltry excuse
that he would n(»t accept it without payment of iirl.Or) discount. The
application was for a large nund)er of separate licenses, and all that he
need have done was to have retained one 85 license, as against the dis-
count, but thei'e can be no doubt that he deliberately seized upon this
excuse to delay theii application, in ordei- that he might not be com-
pelled to notify them of the refusal of their licenses, until after they
had sent their boats t(j the fishing grounds.
It is submitted, that if the Nobles could urge no (»thei- extenuating
circumstances than this contemjytible and malicious action, on the part
of the F. O., that they would be entitled to a return of the property
seized. E\(mx if, which is certainly not the case, it was true, as is
sworn to by FiUiott, that the boats of the rival Company had their
licenses at the time (»f the seizure, he is nevertheless i-esponsible for
the failure to notify the Nobles in tinie, their application having been
sent in three days earlier, as proved by Clark, while the hesult wa.s not
MADE KNOWN TO THEM, UNTIL NEARLY THREE WEEKS AFTER FISHINt; HAD
BEEN COMMENCED by both Companies.
It was proved, beyond ({uestion, that it had always been the custom
14
ill fonn^ryears for vessels to gcout ejulyin April, iis soon as the ice would
permit, without waiting for licenses, which freipjently did not arrive
forf(tur, five, or six weeks afterwai-ds, and that if they waited for their
licenses, they would lose one of the best and most i)roHtal)le parts of
tlie season. «
Elliott stated, that in 1H9.% a notification had i)eeii sent to the effect
that boats should not go out without a license, but that it had- not
been enforced. At some time duiin« March, 18!)4, a similar notice
was circulated, and the Nobles themselves posted a copy on their
wharf, and gave evidence THAT IT WAS KXi'KKssr.v in hkason of this
XOTICE THAT THEY SENT IN TIII.IK APPLICATION ON THE 14tH OK MaRCII,
eai'ly enough f(»r them to receive their licenses beft»re fishing commenced;
but neither this company, nor any other fishennen, sui)posed it was the
intention of the l)epartment to c(mipel them to lose one of the most
profitable portions of the season, because there was some flelay in
answering their applications, and, as before stated, all vessels went out
at the opening of navigation, expecting their licenses to arrive in due
coui'se.
The postincj of this he(;ulation is aiisolutelv tj k only reason
oivEN Hv Elliott to justify the seizure in (^estion.
The Nobles stated jxtsitively, that they had ausolutely no reason
TO EXPECT that THERE WOULD BE ANY TROUHLE ADOUT THEIR APPLICA-
TION FOR LICENSES, AND ElLIOTT CORROBORATED THIS STATEMENT, SO far
as his knowledge went.
As has been already stated, Elliott concealed the fact of his refusal
to recoriimend the application of the Nobles, gave them no hint that it
was possible that the Department might refuse to issue licenses to
them, and deliberately, by a paltry trick, delayed their a|)plication, so
that an answer could not be received in time, but his conduct in that
respect, however, was honourable and straightforward compared with
what followed. On the 28th and 29th of April, he met Charles Noble,
HE THEN KNEW THAT NO LICENSES WOULD BE ISSUED TO THE NOBLES.
He DID NOT <UVE THE SLKJHTEST HINT OF THAT FACT, BUT ASKED NoBLE
IF HIS BOATS AND VESSELS HAD ciONE OUT. The latter answered him frankly
and openly, without the slightest hesitation, that they had gone, and
thereupon, Elliott immediately telegraphed to the Department that
1.")
p ice would
U(»t arrive
(I for their
■ pnrts of
1 tlie eflfect
had- not
lar notice
(tn their
r OF THIS
)K March,
•ntnienced;
it was the
' the most
delay in
s went out
ive in due
-Y RKAHON
I) HKASON
APPLICA-
:nt, so far
s refusal
nt that it
senses to
ation, so
in that
ed with
es Noble,
BLKS.
I) Noulk
n frankly
one, and
mt that
tl'.e Nohles were fishinjj; witluait a license, and askin<; instructions,
which were alisolutely unnecessary, «'xcei>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<l pi'(miptly carried them into ertect, thereby causing enoi-mous loss
[to the Nohles. ridiculously out of pi'opoi-tion to the ort'ence charged,
and absolutely with no other justification than the Notice sent anumd
via few months before, which, as above stated, no tisjicfuian on the
iGeoi'jL^ian Hay expected to be enforced, any m(»re than in former years,
iif the licenses did not airive in time.
Not oidy was the Department, at the time of the seizure, in possess-
ion of the sum of !?-S0, paid by the Nobles foi- theii- licenses, which
was not returned until long afterwards, but, even now. all the money
paid by the Nobles for licenses for boats which have been seized, con-
fiscated and actually sold, has not been returned, for, as was proved
before the Commissioner, the sum of i?L'.") was paid thnnij^h Overseei-
Jackson, in respect of some of the boats seized by Elliott, and this
money is now in the possession of the Department, unless, as may be
the case, it has been embezzled by «»ne of their officers, a fact which
can nuike no difference to the Nobles' lisrhts.
Tt was also proved, and this fact alone should entitle the Nobles to
a return of their vessels and a renewal of their licenses, that at the
very time of the seizure the boats weie proceedinj; to lift the nets.
■'^ in order to cease fishing, as the Nobles had ordered them to do by
f telegram, immediately upon learning the actual j)osition of the mattei-.
Disastrous as this action of the F. O. has been to the Nobles, it has
borne, perhaps, even more hardly ui)on the unfortunate fishermen, whose
1«
JipplieutionN wcic refused hikI lioiits sei/cd, for no dtluM- reason than
that Ixicause their applications were forwar'ded throiiji^h the Nohles.
Klliott, b(!cause they were dealinjj witli the ohn;»xious firm, involved
them in th«' ruin he was i)lunnin<i for the latter. Kvidenee in the form
of depositions of liolu'it J^oyter, David ^leCoy, .Josepii Bernard, I).
Mcdillivi-ay and Charles Tillson, witnesses who eould not he brouj^ht
in jierson l)efoi'e the Commissioner, wa.« handed in, |)rovin;,' in the Hist
place that Klliott had publicly stated his intentions of luining the
Nobles, and although he chose to deny this, there is no reason to suj>-
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 submitte<l, that had the past record
of the Nobles been all tliat it su|)|»o.sed to have Immmi by the Depart-
ment, it would yet be impossible t(» uphold tin* cordi^cation brought
about bv such dishonest and frau(hdent means. How much more tht>n
should justice Im;' <lone to the Nobles, in y'ww of the fact that Klliott s
i-eports to the |)epartm<iit have now In^en shewn to be a tissue of
slanders and falsehotKJ, which he has not e\en attempted to justify
befoi-e the Comnnssioner appointed to inxestigate them. As if it were
not sutHcient for a merely technical oH'ence against tlie Kishery Hegu-
lati<»ns, brttught about by a fraudulent trap, to iidlict a loss of !*25.000
upon a business linn, the decision arri\ed at before tin* recent investi-
gation, apjiears to lia\e been that im» license should be issiie<l to the
Nobles in future, thereby insuring their total ruin l>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<tf the I'ishecy ( )vei'seer ; aral, j)eihaps, that the Fishei-y liegtda-
tions nmst lu- dbsctx cd unless the Overseer- in his w isdom chooses to
disregard them.