Joseph Bailly - Legal Case of Dominique Rousseau

Legal Case of Dominique Rousseau

In Montreal, a little known legal case first asserted American jurisdiction over the lands of northern Minnesota and the upper Great Lakes. It took place in the Court of King's Bench, Register of Common Pleas (District of Montreal), Superior Term, 1803 05. It seems an unlikely place for a case over the rights of the United States within its own territory to be played out.

Dominique Rousseau and Joseph Bailly were both traders from Montreal in the years prior to the American Revolution. Both were of French Canadian parents. In the summer of 1802, Rousseau and Bailly hired Paul Hervieux of Repetingy (Montreal) to act as bourgeois and take a canoe under an American license issued at Michilimackinac and to go to Grand Portage. Here they were to trade with the Indians and the canoemen of the other companies.

On July 10 or 12 they arrived in Grand Portage Bay. They were ready for trade by 8 am the day after they arrived. They had three 'little' tents in a spot some 50 feet from the North West Company canoes and ten feet from the shore.

In testimony by Thomas Forsyth, Esquire a Montreal Trader with the XY Company and Maurice Blondeau a 'merchant voyageur' since 1752, the area had been cleared by a John Erskine (Askin) in the mid 1750s and there had been a 'free right to pitch their tents' in any open area although this area was normally occupied by the Northwest Company.

Shortly after they had set up camp, Duncan McGillivray and Simon McTavish appeared among their tents and ordered Rastoute, Hervieux's clerk, to move beyond the "little fort". This was the establishment of Mr. Boucher. Boucher ran a small trading post, of the Northwest Company, for the Canoemen. Rastoute apparently expecting this possibility produced a copy of the American issued trading license. McGillivray and McTavish replied to the effect that it was not valid at Grand Portage.

Later in the day, McGillivray and McLeod returned to the site of Hervieux's tents. With a group of bourgeois and clerks, McGillivray slashed at the trader’s tent and McLeod ordered the traders out. They pulled the stakes from the ground. Michel Robichaux, a voyageur of 25 years, heard McLeod threaten, "if (we were) at Rat Portage" I would break your neck. McLeod then opened a bale of trade goods and scattered it "to the breezes". McGillivray and McLeod then returned to the stockade.

Hervieux and his men move their camp beyond the 'little fort' of Boucher. Here they remained through the rendezvous. Upon their return to Mackinac, Bailly and Rousseau filed suit for recovery of damaged and lost goods in the courts of Montreal. "The Court having heard the parties by their Counsel and duly examined the evidence of Record ... It is Considered that the Plaintiffs do recover the sum of Five Hundred Pounds current money of this province, with costs of suit." Bailly and Rousseau won their case and established the precedence of American rule over these parts of the upper lakes. In the summer of 1804, the Northwest Company, under its British license moved its rendezvous from American soil at Grand Portage to Fort William in Thunder Bay, on British soil.