No. 541.
Sir L. S. Sackville West to Mr. Bayard.

Sir: With reference to your note of the 22d of June last I have the honor to inclose herewith copy of an approved minute of the privy council of Canada, embodying a report of the minister of marine and fisheries, dealing with the statement of Messrs. S. H. Davis & Co. relative to the seizure of their property by Dominion officials.

I have the honor, etc.,

L. S. Sackville West.
[Inclosure.]

Certified copy of a report of a committee of the honorable the privy council, approved by his excellency the governor-general in council on the 9th September, 1887.

The committee of the privy council have had under consideration a dispatch, dated June 23, 1887, from Her Majesty’s minister at Washington transmitting a statement of Messrs. S. H. Davis & Co., of Detroit, Mich., relative to the seizure of their property by Canadian officials in Canadian territory, and requesting that inquiry be made into the matter.

The minister of marine and fisheries, to whom the matter was referred, reports the circumstances under which the seizures complained of were made, as follows:

It having come to the knowledge of the officers of the fisheries department in Juno last that a large number of nets were being illegally set in the Georgian Bay by two fishermen named, respectively, McLean and Lincoln (the former a British and the latter an American subject) an official was sent to ascertain the facts. Upon his arrival it was found that fishing was being carried on in a most extensive manner, and [Page 770]that neither of the parties engaged therein had a license from the department of marine and fisheries.

The minister states that although interim receipts appear to have been issued by-Fishery Overseer James, purporting to cover the cost of a license for six boats, very conflicting statements are made as to the conditions under which these receipts were given by the overseer.

This phase of the case is, however, unimportant, as upon inspection of the nets in use, and in which the seized fish were taken, it was ascertained that the mesh in every net was of illegal size; neither is the fact essential, though a reference thereto should not be omitted, as throwing some light on the extent of the illegal proceedings, resulting in the seizure of the fish purchased by the Messrs. Davis, that nearly 70 miles or over 122,000 yards of these illegal nets were in use, being at least 87,000 yards in excess of the quantity the six boats would have been entitled to use under a license from the department of fisheries.

The minister observes that subsection 3 of section 10, cap. 95 of the Revised Statutes of Canada provides as follows:

“Gill-nets for catchiug salmon trout or white fish shall have meshes of at least 5 inches, extension measure.” Subsection 3 of section 18 of the act referred to further provides that “all materials, implements, or appliances used, and all fish taken or killed in violation of this act or any regulation under it, snail be confiscated to Her Majesty, and may be seized and confiscated on view by any fishery officer, or taken and removed by any person for delivery to any justice of the peace, and the proceeds arising from the disposal thereof may be applied towards defraying expenses under this act.”

The claim therefore of Messrs. Davis & Co. that the fish, having been bought and paid for by them, should not have been seized, is clearly untenable.

The minister remarks that if it be admitted that fish illegally caught, but disposed of to a second party, are exempt from seizure, the law would become inoperative and incapable of effectual enforcement. In this case Messrs. Davis & Co.’s complaint should be directed against the parties who sold them the fish which had been illegally caught and not against the department of fisheries, which simply enforced the laws of the country in the interest of one of its industries deserving the most careful protection.

The minister further observes that the question of citizenship was not raised or considered by his officers in this matter, nor has any prejudice existed against Messrs. Davis & Co. on account of their nationality.

The law has been enforced altogether irrespective of any considerations as to the individuals interested. Citizens of the United States trading in Canada have a well-defined status, with perfect freedom to transact business in all legal commodities, of which legally-caught fish is one, and the minister is not aware, in the action under consideration, of having permitted in the least degree any infringement of that status.

The minister deems it unnecessary to refer to the alleged threat of seizure on the part of Canadian officers of the steamer Remora, as no such seizure was made, and if the vessel was, as it is presumed she was, legally within her right in being at French River for the purpose of taking on board the fish, no improper detention would have been permitted.

The fish cars to which Messrs. Davis & Co.’s claim refers, being no part of the apparatus used in taking the confiscated fish, the officer of the fisheries department at Victoria Harbor was instructed on the 9th of July last to return them to the agent of the Messrs. Davis, at French River.

The committee concurring in the report of the ministry of marine and fisheries advise that your excellency be moved to transmit a copy of this minute to Her Majesty’s minister at Washington.

All which is respectfully submitted for your excellency’s approval.

John J. McGee,
Clerk Privy Council.