Samuel Nelson

“ Is it not inconceivable that Congress, with the full knowledge of all the facts of the case, except as to the validity of the original grant, about which they wished judicial decision, intended to rely upon abandonment and prescription, when not one word is contained in the act indicating such a purpose-a purpose which, as we have said, if sustained by law and fact, utterly defeats us? ”

“ 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 ”

“ Truth is one; it cannot escape your observation.'
By the definitive treaty of peace of 1783, between Great Britain and the United States after the war of Independence, Great Britain relinquished all claim to the proprietary and territorial rights of the several United States, repeating the boundaries agreed upon in a provisional treaty of 1782, by which the seigniory was found to be included within the limits of the United States, and fell within those of Virginia. ”

“ But how absurd to enact such a law in their own favor while the United States will knew that they, and not we, had possession for three-quarters of a century, they using it and selling it in spite of us, the lawful owners.
Besides, the most natural meaning of the expression 'validity of the title,' is the legal regularity and force of the original title-papers referred to. We say, both in common and legal parlance, that a deed, barred by a statute of limitations or matter ex post facto, is not good ”

“ Repentigny, like a gallant soldier, was not willing to desert his king. It was 'too hard for his heart' to swear allegiance to the new master. He deliberately made a sacrifice of his property to his sense of loyalty. As for the alienees of De Bonne, it seems to have been a matter of selfish calculation simply. They calculated that, under the rule of the United States and by the energy and enterprise of its citizens, it would be more profitable for them to wait, as absentees, the development of the resources of the estate. ”

“ If we are right in supposing that it is the validity of the grant as made which is to be judged, then all that can be said about abandonment, escheat, & c., is of no pertinence.
But the United States took as assignee, chargeable with notice of the grant, and liable in justice to recognize whatever Great Britain or Virginia was. They found white persons, descendants of Cadotte and others, in possession of the seigniory. They had no ground to presume that these persons were there without right. ”

“ The United States then became the lord paramount of this seigniory, and were thereby invested with the power to deal with the seigniorial estate, the same as the King of France, had it continued under his dominion; and we agree that before a forfeiture or reunion with the public domain could take place, a judicial inquiry should be instituted, or, in the technical language of the common law, office found, or its legal equivalent. A legislative act, directing the possession and appropriation of the land, is equivalent to office found. ”

“ Was not this a yielding up of all objection on account of the lapse of time, during which the alleged abandonment and prescription had run?
The fact that the government of the United States has extinguished the Indian title is without weight. It was the duty of the government to extinguish it. Private persons could not treat with the Inians. ”

“ The Indians loved the French. The protection of that government was withdrawn, and from 1763 down to 1796 (the date at which, by the second section of the treaty of commerce of 1794, Great Britain withdrew her troops and surrendered the posts) , the place was in the actual possession of the English, whom the Indians disliked. Here was a term of thirty-three years during which it was plainly unsafe to attempt to hold and occupy the tract.
While the Revolutionary war was in progress it was unreasonable to expect young De Bonne, a British subject, or the Chevalier, a French subject, to occupy it. ”

“ There is, it appears, partly from public records and ancient printed books of travels, and partly from the depositions of living witnesses, evidence that between 1750 and 1762 the French and English governments, and at a date subsequent to 1762, among others a person named Cadotte, and his descendants, through whom the petitioners do not claim, were seized of the most prominent and important part of the lands; but there is no evidence of Cadotte's being the agent of De Repentigny's descendants, and still less of any privity of title of any kind between De Repentigny and him. ”

“ In point of fact the seigniory has never been vacant. The original possession under the grant was ours, and the government were bound to take notice of the fact that the grant was made, and bound by the legal presumption that the possession was under and by virtue of it. They could not presume that the white settlers there were mere 'squatters' claiming by tortious entry.
We have a right to claim not only that the grantees actually took possession and made improvements, but that all persons subsequently in possession held under them ”

“ Caldwell held the lands as he held other real property, under the laws of the government within which they were situate, the same as if they had been conveyed to him by a native citizen. The intention of the parties to the treaty was, that the citizens and subjects of each should be quieted in the enjoyment of their estates, in the same manner as if they and their heirs had been native citizens and subjects. And having conveyed to Noble, who, together with those claiming under him, were aliens, the complainant is met with the objection of alienage. ”

“ He left a son, P. A. De Bonne, who was then only two years old. The family were inhabitants of Canada, remained after the treaty of 1763, and became subjects of Great Britain. He was of age in 1779, and, in 1781, rendered faith and homage at the Castle of St. Louis, in Quebec, before the governor, as required by one of the conditions of the grant of the seigniory, and which was accepted, and a record made of it. He became an eminent barrister in the lower province of Canada, was attorney-general, and afterwards one of the justices of the King's Bench. ”

“ For the further proof of continuation of possession we have the narrative of intelligent travellers, not stated as a part of the case, but very proper to be so stated; certainly proper to be read and relied on by the court.
On the 19th of May, 1762, Alexander Henry, the traveller, as he tells us in his travels, [17] visited the post and found Cadotte there with his Indian wife and his family. Henry describes the fort, and says he found four houses there, one for the governor, one for the interpreter Cadotte, and the other two used for barracks. ”

“ McKenzie, [27] who visited the Saut between 1787 and 1793, says, that 'the village on the south shore, formerly a place of great resort for the inhabitants of Lake Superior, and consequently of considerable trade, is now dwindled to nothing.'
In their memorial to Congress of December, 1811, the principal citizens of Detroit do not even enumerate the Saut as a settlement of Michigan. They say the whole population of the territory then amounted to 4762 souls, of whom, four-fifths were French. ”

“ About the year 1755, and with the necessities of the crown, Repentigny, whom we left on his seigniory at the Saut de St. Marie, returned to Quebec and entered into the military service of the King of France, in which he remained until the surrender of the French forces, having like De Bonne been engaged in the battle of Sillery, in 1760, for the recapture of Quebec. On coming away from the Saut in 1755, he left there one Jean Baptiste Cadotte, a Frenchman, who had gone out there with him apparently as an attendant, and who had married an Indian woman. ”

“ The petitioners assume, gratuitously, perhaps, that no legal proceedings were ever taken by the British government to obtain a judicial decree or judgment of reunion or forfeiture; it being to be remarked, that the records on which the proof of this depends were never at any time under the control of the United States.
We do not acknowledge the practice of Canada to be as stated. The fief, we suppose, upon being deserted in 1755, reverted to the crown, ipso facto. It would certainly have done so by our own law. ”

“ The articles of capitulation at Montreal, dated 8th September, 1760, when the Canadas were given up to the British forces, secured to the inhabitants their property movable and immovable; and the proclamation of the king, under date of 7th October, 1763, pledged to his loving subjects of Canada his paternal care for the security of the liberty and property of those who are, or should become, inhabitants thereof. ”

“ The mode of asserting or of assuming the forfeited grant, is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly, under the authority of the government, without these preliminary proceedings. [52] In the present instance we have seen the laws have been extended over this tract, the lands surveyed, and put on sale, and confirmed to the occupants or purchasers, and, in the meantime, an opportunity given to all settlers and claimants to come in before a board of commissioners and exhibit their claims. ”

“ His family was among the earliest emigrants to the country after possession had been taken by the King of France, and held high and influential positions in the government. Soon after the execution of the definitive treaty of peace of 1763, the Governor of Canada opened a correspondence with Repentigny to induce him to remain in the province, and become a subject of Great Britain, promising him protection and advancement in his profession. ”

“ Thus the fact of actual possession, improvement, and occupation, by himself, for six years commencing in 1749, is proved by the direct as well as the historical and traditionary evidence; and it was a fulfilment of the condition subsequent contained in the ratification, relating to possession.
Authorities show that the 'abandonment' must be on the part of the owner a complete renunciation and giving up of the thing, with intent not henceforth to reassert any dominion over it. ”

“ This claim had its origin when George II was King of England, and Louis XV King of France, twenty-six years before the United States took their place in the family of nations; and the reports, English and American, may be searched in vain for an instance of the upholding of a claim of one-half the age of this.
A lapse of forty years and change of value renders a claim stale, though there be no fraud. [41] And possession which would bar an ejectment will also bar an equitable title. ”

“ Numerous jurists of high standing in Canada were examined on both sides, as experts, to prove the nature of a fief and seigniory under the laws, ancient and modern, of Canada, the coutume de Paris, &c., and as to whether, under certain royal arr ets of France, one of March 15th, 1732, another of 1711, called the arr et of Marly, the land originally granted had or had not become united to the king's domain ”

“ 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. ”

“ If the fact were as alleged, they all had capacity to take. Independently of the Michigan act of 1805, an alien can take by purchase or devise and hold till office found; and till then he can sell and convey or devise. [5]
2. Non-fulfilment of conditions; Lapse of time; Abandonment; Extinguishment of Indian title; Reunion to the crown; Want of certainty in description, &c.
The paper title being complete, the petitioners are bound to do no more, as against the United States and under the act of Congress, than to prove that the title, which emanated from New France, was valid. ”

“ Those French laws allowed aliens to purchase and hold lands during their lifetime; and alienage can only be established upon a judicial proceeding and sentence. De Repentigny was also signior of La Chenay. The crown never disturbed him, and in 1766 he sold the estate to Major Christie, of the British army.
II. AS TO BOTH CLAIMS.
1. Alienage.-The answer sets up that Noble, the purchaser from Caldwell of De Bonne's half, and all subsequent owners of that half, are aliens. The same objection would apply to the descendants of Repentigny. ”

“ Caldwell who had bought De Bonne's half, to sell this other half also, the price offered being $8100. Gaspard replies:
'Escaped from the wreck of Guadaloupe with means which supply the wants of my family, I think you will approve the determination I take of not hastening to sell a tract of land which cannot but acquire value in the future. My title-papers, well proved by his care and the measures that Madame de la Vigne assured me her husband had taken, . . . all put me in the greatest security. The proposition that Mr. Caldwell makes does not seem to me tempting. ”