United States v. Repentigny

• Decision Date: 01 December 1866
• Citation: 72 U.S. 211,18 L.Ed. 627,5 Wall. 211
• Parties: UNITED STATES v. REPENTIGNY
• Court: U.S. Supreme Court

72 U.S. 211

18 L.Ed. 627

5 Wall. 211

UNITED STATES v. REPENTIGNY.

December Term, 1866

[Syllabus from pages 211-213 intentionally omitted] APPEAL by the United States from a decree of the District Court of the United States decreeing to the representatives of the Chevalier de Repentigny and of Captain Louis De Bonne, a large tract of land at the Saut de St. Marie, under a grant from the French government, in the year 1751. The proceedings and case were thus:

On the 19th April, 1860, the Congress of the United States, at the instance of certain persons, representatives of the Chevalier de Repentigny and of Captain Louis De Bonne, ancient citizens of French Canada, one of whom had died in 1760, and the other in 1786, passed a law authorizing the District Court of the United States for Michigan to examine a claim which these representatives set up to certain land at the Saut de St. Marie in the State of Michigan, under an alleged grant made in the year 1750, by the French government to the said Repentigny and De Bonne.

Under this act of Congress, Louise de Repentigny and others, all females, and resident in Guadaloupe, the representatives by descent of the Chevalier de Repentigny, with one Colonel Rotton, the representative by purchase and devise of Captain De Bonne, filed their petition on the 9th January, 1861, in the nature of a bill in equity against the United States in the said District Court of Michigan. The bill set forth a grant, with certain conditions of occupancy, as a fief or seigniory, on the 18th October, 1750, to Repentigny and De Bonne, by the Marquis de la Jonquiere, Governor of Canada, then a French province called New France, and by Monsieur Bigot, intendant of the same, of a large tract at the Saut de St. Marie, describing its nature and extent; a subsequent ratification by Louis XV, and the descents and purchases by which it was now vested in the petitioners. It set forth further that the Chevalier de Repentigny had entered upon the fief in October, 1750, and remained there till 1754; had caused clearing to be done there, put cattle on it by himself or his tenants, and had occupied the place as required by the terms of his grant, and that when withdrawing, about the year 1755, had left agents of the grantees in possession, who or whose representatives were still in occupancy of some parts of the tract; that the claim had never been abandoned; though, owing to the domicil of the parties in foreign countries, and occupations in the armies and navies of such countries, and in remote public service, the owners had not been aware of any mode in which their rights could be defined and specifically assured; that they had from the first relied implicitly upon the faith of treaties existent, as they averred, in the case, and upon the justice of the government of the United States to protect their rights and shield them from wrong; and, as respected some of the petitioners, women, descendants of Repentigny, that owing to their helplessness and the helplessness of their ancestors in respect to pecuniary means, they had been utterly unable to come to the United States and assert their rights, but had been obliged to remain absent and to trust to such exertions as their friends had from time to time voluntarily made in their behalf to recover the said lands.

The answer of the United States denied generally most of the allegations of the bill; asserted more particularly that the claimants were all aliens; that the conditions of the alleged grant had not been fulfilled by the grantees; and that by the laws of ancient Canada the land had become reunited to the king's domain; that the fief had moreover been abandoned and deserted in fact, and stood possessed by the United States, no judicial forfeiture thereof having been, under the circumstances, necessary; that none of the parties in interest had ever complied with any of the acts of Congress, prescribing in what way claimants of lands in that region should indicate their possessions; that thus, in fact, as well as of right, the fief so abandoned and deserted was reunited to the supreme domain, vested in the people of the United States of America; and that the burden and cost of bringing the same into a productive and profitable estate by the general administration, survey, and settlement thereof, by extinguishing the Indian title thereto, by improvements in the way of public works, and otherwise, had ever since, that is to say, for sixty years and upwards, been thrown upon and borne by the United States. And it set up, moreover, that the land was incapable of identification, and the grant void, owing to the vagueness of the description.

The case, as made out by the evidence, was thus:

On the 18th of October, 1750, the Marquis de la Jonqui ere, Governor of Canada, then a French province, called New France, and Monsieur Bigot, intendant of the same, by instrument,—reciting that the Chevalier de Repentigny and Captain De Bonne, officers of the French army, entertaining the purpose of establishing a seigniory, had cast their eyes upon a place called the Saut of St. Marie; that settlements in that place would be most useful, as travellers from the neighboring ports, and those from the western sea, would there find a safe retreat, and by the care and precautions which the petitioners proposed to take, would destroy in those parts the trade of Indians with the English,—made to the said Captain De Bonne and the said Chevalier de Repentigny a concession at the Saut, in what is the present State of Michigan, of a tract of land, 'with six leagues front upon the portage by six leagues in depth, bordering the river which separates the two lakes,' to be enjoyed by them, their heirs, and assignees, in perpetuity, by title of fief and seigniory, with the right of fishing and hunting within the whole extent of said concession, upon condition of doing faith and homage at the Castle of St. Louis at Quebec, of which they should hold said lands upon the customary rights and services according to the coutume de Paris, followed in that country, &c. to hold and possess the same by themselves, to cause the same to be held and possessed by their tenants, and to cause all others to desert and give it up; in default whereof it should be reunited to his majesty's domain, &c.

The tract contained about 335 square miles, or 214,000 acres.

On the 24th of June, 1751, Louis XV, then King of France, by instrument or brevet of ratification, soon after duly registered at Quebec, confirmed the concession.

The instrument of concession orders that the grantees shall enjoy, in perpetuity, the land; and, among other things enjoined are, that they improve the said concession, and use and occupy the same by their tenants; and that in default thereof the same shall be reunited to his majesty's domain. . . . His majesty ordering that the said concession shall be subject to the conditions above expressed, 'without thereby meaning to admit that they had not been stipulated for in the original grant.'

A map of the military frontier, on which the tract was marked, was made by the government surveyor, Franquett, in 1752, and returned to the proper office in Paris.

The purposes of the Marquis La Jonqui ere, the Governor of Canada, in making the grant, and the views of the ministry at home, were set forth in certain contemporary correspondence between the marquis and the ministry, as follows:-

THE GOVERNOR OF NEW FRANCE TO THE MINISTER OF MARINE AND THE COLONIES.

QUEBEC, CANADA, October 5th, 1751.

MY LORD: By my letter of the 24th August, of last year, I had the honor to let you know that in order to thwart the movements that the English do not cease to make in order to seduce the Indian nations of the North, I had sent the Sieur Chevalier de Repentigny to the Saut St. Marie, in order to make there an establishment at his own expense; to build there a palisade fort to stop the Indians of the northern posts who go to and from the English; to interrupt the commerce they carry on; stop and prevent the continuation of the 'talks,' and of the presents which the English send to those nations to corrupt them, to put them entirely in their interests, and inspire them with feelings of hate and aversion for the French.

Moreover, I had in view in that establishment to secure a retreat to the French travellers, especially to those who trade in the northern part, and for that purpose to clear the lands which are proper for the production of Indian corn there, and to subserve thereby the victualling necessary to the people of said post, and even to the needs of the voyagers.

The said Sieur de Repentigny has fulfilled, in all points, the first object of my orders.

[A part of the letter here omitted is given further on, at pages 219-20.]

In regard to the second object, the said Sieur de Repentigny has neglected nothing.

I beg of you, my lord, to be well persuaded that I shall spare no pains to render this establishment equally useful to the service of the king and to the accommodation of the travellers.

I am, with a very profound respect, &c.,

LA JONQUIERE.

THE MINISTER OF FOREIGN AFFAIRS, AT PARIS, TO THE MARQUIS DUQUESNE, GOVERNOR-GENERAL OF CANADA.

VERSAILLES, June 16, 1752.

TO MR. LE MARQUIS DUQUESNE:

I answer the letters which Mr. Le Marquis de la Jonqui ere wrote last year on the subject of the establishment of divers posts- I begin by a general observation.

It is that such sort of establishments ought not to be undertaken but with a great deal of reflection and consideration upon the motives of well-established necessity or sufficient utility. Those who propose them are never short of specious and plausible reasons for their adoption. They always have in view the good of commerce, or the importance of restraining some Indian nation, but the most often it has been proved that they act under private interest. These posts however cost a great deal to the king as well for their...