United States v. Repentigny
72 U.S. 211

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U.S. Supreme Court

United States v. Repentigny, 72 U.S. 5 Wall. 211 211 (1866)

United States v. Repentigny

72 U.S. (5 Wall.) 211


1. On a conquest by one nation of another, and the subsequent surrender of the soil and change of sovereignty, those of the former inhabitants who do not remain and become citizens of the victorious sovereign, but, on the contrary, adhere to their old allegiance and continue in the service of the vanquished sovereign, deprive themselves of protection or security to their property except so far as it may be secured by treaty.

2. Hence where on such a conquest, treaty provided that the former inhabitants who wished to adhere in allegiance to their vanquished sovereign, might sell their property provided they sold it to a certain class of persons and within a time named, the property, if not so sold, became abandoned to the conqueror.

Page 72 U. S. 212

3. Where a British Canadian subject has conveyed to a citizen of the United States lands in what are now the United States, which lands such subject holds under a grant made to a French ancestor by the King of France in 1750 before Canada passed to Great Britain under its conquest in 1760, and while it yet was a French province, and embraced that part of what is now the United States containing them, the title is no longer a French, or English, but an American title, held under the laws of the United States and subject to them.

4. Semble. Where Congress authorizes a court to hear a question of title, such as is above described, to which the United States is a party, and in adjudicating it to be governed by the law of nations and of the country from which the title was derived, by principles of natural justice and according to the law of nations and the stipulations of treaties, an objection of mere alienage and consequent incapacity to take or hold must be regarded as waived.

5. A grant in the nature of a fief and seigniory was made to private individuals by the French government in 1750 of a tract of 214,000 acres at the Saut de St. Marie, in what is now Michigan, but was then called Canada, on condition of improvement and occupancy, one of the objects of the grant having been to afford a refuge for travelers in a region then a wilderness and inhabited by Indians only. In 1760, the region passed by conquest from France to Great Britain, and in 1783 in the same way from Great Britain to the United States. The grantees took possession immediately after the grant, occupying and improving the tract to a certain extent for four years, but no longer. They then came away, leaving there a person who had gone out and been there with them but who did not claim under them. One of them went away from this continent in 1764 and died in France, apparently abandoning all interests on this continent; his heir (a French subject and in the naval service of France) received and considered in 1790, 1796, and 1804, offers of purchase more or less definite for his half, and in 1800 had made an acte de notoriete, or solemn declaration in perpetuam memoriam rei, of his claim to the estate, doing however nothing more. The other grantee was killed in 1760, and the alienee of his descendants sold, in 1796, the land to British subjects who had been always resident abroad and who never in any way looked after the land. In 1824 or 1825, forty-two years after the territory within which the lands are situate had come into her possession, the parties in interest by derivation from the original grantees, made a claim to the United States for the land, this having been the first notice which the United States had of any title adverse to her own. In the meantime, the United States had, in 1823, built a fort there for the protection and encouragement of settlers, her laws had been extended over it, the Indian title extinguished, the lands surveyed and put on sale, and were now and had been in a large part for years, covered with inhabitants.

Held that even under an act of Congress which directed an adjudication to be made, among other ways, on principles of natural justice, the claim could not after such a lapse of time, and so considerable a failure to comply

Page 72 U. S. 213

with the conditions on which the grant was made, be sustained against the United States.

6. Where a tract on our Northern Lakes containing over two hundred thousand acres of land was granted in 1750 by the Crown of France as a fief and seigniory and on condition of improvement and occupancy and with a view of its being a refuge and protection for travelers against Indians then inhabiting the region, improvements which, besides a stockade fort, consisted in nothing but the erection of three or four temporary huts for laborers, the clearing of a few acres of land around the fort, planting the same with Indian corn, and the placing upon the tract of seven head of cattle and two horses, are an insufficient compliance with the conditions of improvement and occupancy, there not having been after 1754 (over a century before the commencement of the suit) any possession or occupancy by the grantees or their descendants, tenants, or assigns, or further improvement.

7. Under the Treaty of 1783 with Great Britain at the close of our Revolutionary War, the United States succeeded to all the rights, in that part of old Canada which now forms the State of Michigan, that existed in the King of France prior to its conquest from the French by the British in 1760, and among these rights, with that of dealing with the seigniorial estate of lands granted out as seigniories by the said king, after a forfeiture had occurred for non-fulfillment of the conditions of the fief. And under our system, a legislative act -- after forfeiture from nonfulfillment of the seigniorial conditions -- directing the appropriation and possession of the land -- which is equivalent to the "office found" of the common law -- is sufficient to complete its reunion with the public domain.

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.

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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

Page 72 U. S. 215

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 Jonquiere, 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 travelers 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

Page 72 U. S. 216

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 Jonquiere, 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:

Page 72 U. S. 217


"QUEBEC, CANADA, October 5, 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 travelers, 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 <|72 U.S. 219|>219-220.]"

"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 travelers."

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




"VERSAILLES, June 16, 1752"


"I answer the letters which Mr. Le Marquis de la Jonquiere wrote last year on the subject of the establishment of divers posts. "

Page 72 U. S. 218

"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 establishment as for their keeping, and serve sometimes only to occasion movements and disorders. Thus the King desires not only that you should not bind yourself to any new establishment of that sort except after having well recognized its advantages, but also that you should examine if among those which have been made for some years past there are not some that it will be good to suppress. And his majesty recommends you the greatest attention on that subject."

"By one of my dispatches, written last year to Mr. de la Jonquiere, I intimated to him that I had approved of the construction of a fort at the Saut St. Marie, and the project of cultivating the land there, and raising cattle there. We cannot but approve the dispositions which have been made for the execution of that establishment, but it must be considered that the cultivation of the lands and the multiplication of cattle must be the principal object of it, and that trade must be only the accessory of it."

"As it can hardly be expected that any other grain than corn will grow there it is necessary, at least for awhile, to stick to it, and not to persevere stubbornly in trying to raise wheat."

"The care of cattle at that post ought to precede that of the cultivation of the lands, because in proportion as Detroit and the other posts of the south shall be established, they will furnish abundance of grain to those of the north, which will be able to furnish cattle to them."

"I am perfectly &c.,"


The Sieur de Repentigny went to the place soon after the grant, and fixed himself at a spot where Fort Brady has since stood. He remained here during the years 1751, 1752, 1753, and 1754. What he did there appears best from the contemporary letter of the Marquis de la Jonquiere to the

Page 72 U. S. 219

Minister of Marine and the Colonies, already quoted, describing the matter, and from which a part omitted on page <|72 U.S. 217|>217, is now, as more in order of subject, here given.

"As soon as he arrived at Missilimakinac, the chief of the Indians of the Saut St. Marie gave to him four strings of wampum and begged of him to send them to me to express to me how sensible they were for the attention I had for them by sending to them the Sieur de Repentigny, whom they had already adopted as their nephew (which is a mark of distinction for an officer amongst the Indians) to signify to them my will in all cases to direct their steps and their actions."

"I have given order to said Sieur de Repentigny to answer at 'the talk' of that chief by the same number of strings of wampum, and to assure him and his nation of the satisfaction I have at their good dispositions."

"The Indians received him at the Saut St. Marie with much joy. He kindled my fire in that village by a neckless, which these Indians received with feelings of thankfulness. He labored first to assure himself of the most suspected of the Indians. The Indian named Cacosagane told him, in confidence, that there was a neckless in the village from the English; the said Sieur de Repentigny succeeded in withdrawing that neckless, which had been in the village for five years, and which had been asked for in vain until now. This neckless was carried into all the Saulteux villages, and others at the south, and at the north of Lake Superior, in order to make all these nations enter into the conspiracy concerted between the English and the Five Nations, after which it was put and remains in deposit at the Saut St. Marie. Fortunately for us, this conspiracy was revealed and had not any consequences. The Sieur de Repentigny has sent me that neckless, with the 'talk' of Apacquois Massisague, from village the head of Lac Ontario, to support that neckless, which he gave to the Saulteux of the foot of the rapids of Quinilitanon."

"He sent me also 'the talk' given by the English in the autumn of 1746 to form this conspiracy. I have the honor to send you enclosed, my lord, a copy of those two 'talks,' by which you will see to what excesses the English had pushed their malignity for the destruction of the French, and to make themselves masters of our forts. The said Sieur de Repentigny

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forbid the Indians of his post to go and winter at Saginaw, which is not little to say, for these nations go thence from there very easily, and in a short time to the English, who load them with presents. These Indians kept the promise which I required from them; they all stayed at Lake Superior, whatever were the inducements the English made to attract them to themselves."

"He arrived too late last year at the Saut St. Marie to fortify himself well; however, he secured himself against insults in a sort of fort large enough to receive the traders of Missilimakinac."

"The weather was dreadful in September, October, and November. Snow fell one foot deep on the 10th October, which caused him a great delay. He employed his hired men during the whole winter in cutting 1,100 pickets, of 15 feet, for his fort, with the doublings, and the timber necessary for the construction of three houses, one of them 30 feet long by 20 feet wide, and the two others 25 feet long, and the same width of the first."

"His fort is entirely finished, with the exception of a redoute of oak, which he is to have made 12 feet square, and which shall reach the same distance above the gate of the fort. As soon as this work shall be completed, he will send me the plan of his establishment. His fort is 110 feet square."

"As for the cultivation of the lands:"

"The Sieur de Repentigny had a bull, two bullocks, three cows, two heifers, one horse, and a mare from Missilimakinac. He could not, on his arrival, make clearing of lands, for the works of his fort had occupied entirely his hired men. Last spring he cleared off all the small trees and bushes within the range of the fort. He has engaged a Frenchman, who married at the Saut St. Mare an Indian woman, to take a farm; they have cleared it up and sowed it, and without a frost they will gather 30 to 35 sacks of corn."

"The said Sieur de Repentigny so much feels it his duty to devote himself to the cultivation of these lands that he has already entered into a bargain for two slaves, whom he will employ to take care of the corn that he will gather upon these lands."

On the 24th April, 1754, Governor Duquesne addressed a letter to the Chevalier "commanding at the Saut St. Marie," in which he says:

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"Besides the private advantage you will derive from the care you give to the culture of your lands, the court will be very thankful to you, and I exhort you to give yourself entirely to it by the interest I take in you. . . . Continue to keep me informed of what is passing at your post and the progress of the cultivation of the land, of which I shall make proper use."

So the same Governor writes to Machault, the Colonial Minister, dating from Quebec, 13th October, 1754, saying:

"The Chevalier de Repentigny, who commands at the Saut St. Marie, is busily engaged in the settlement of his post, which is essential for stopping all the Indians who come down from Lake Superior to go to Choueguen (Oswego), but I do not hear it said that this post yields a great revenue."

Repentigny remained at this place till 1755.

In that year, or somewhat before, war broke out between Great Britain and France, the possessions of France in America being one of the matters which Great Britain sought to gain. The British arms were victorious, and peace being concluded in 1760, Canada, which was considered as embracing the land in question, was surrendered to Great Britain.

By the capitulation made at Montreal, September 8, 1760, it was declared that

"The military and civil officers and all other persons whatsoever shall preserve the entire peaceable right and possession of their 'biens' (property), movable and immovable; they shall not be touched, nor the least damage done to them on any pretense whatsoever, and shall have liberty to keep, let, or sell them, as well to the French as to the English. [Footnote 1]"

By the preliminary articles of peace between the Kings of Great Britain and France, of November 3, 1762, [Footnote 2] it was agreed:

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"That the French inhabitants, or others, who would have been subjects of the Most Christian King in Canada, may retire in all safety and freedom wherever they please, and may sell their estates, provided it be to his Britannic Majesty's subjects, and transport their effects, as well as their persons, without being restrained in their emigration under any pretense whatsoever, except debts and criminal prosecutions; the term limited for this emigration being fixed to the space of eighteen months, to be computed from the day of the ratification of the definitive treaty."

The same clause was copied into the definitive Treaty of Paris of 10th of February, 1763, between the same powers.

By these two treaties severally, Canada was ceded and guaranteed to the Crown of Great Britain, and thus that power maintained its conquest.

This war and the peace had different results in the personal and family history of De Bonne and De Repentigny. De Bonne was killed in 1760, at the battle of Sillery, during the attempt of the French to recapture Quebec, after its taking by Wolfe in the celebrated battle on the Plains of Abraham. He left an infant son, Pierre, who was born in 1758, and was therefore two years old at the time of his father's death. Pierre remained in the province after its cession to the English, and, thus choosing a British domicil, became a British subject; rising in fact to judicial and other civil honors under the British crown. Having reached manhood, he presented himself, in 1781,

"at the Castle of St. Louis, at Quebec, to render faith and homage to his most gracious majesty King George III, as owner of the land of the Saut de Sainte Marie, conceded, in 1750, to his father and to Monsieur de Repentigny, jointly."

In 1796, he sold for

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