under the treaty? The third article is in the following words: "There shall be reserved for the use of each of the persons hereinafter mentioned, and their heirs, which persons are all Indians by descent, the following tracts of land,' etc. 'For the use of Mokitchenoqua, six hundred and forty acres of land, to be located at and near the Grand Traverse of the Flint River, in such manner as the President of the United States may direct.' It is very clear that, if a fee simple estate was intended to be granted, the parties to the treaty were unfortunate in the choice of terms by which to give effect to that intention; and yet it is difficult to conceive that any other estate was in the contemplation of the parties at the time of its execution. Will, then, the third article warrant such a construction? It will be observed that the reservation is to the use of Mokitchenoqua and her heirs. No limitation as to the time of holding, or restriction upon the right of alienation, is contained in the grant. The use of the word heirs, clearly implies, that such an estate was granted as would, upon her death, descend to her legal representatives. Here, then, are all the essential elements of a fee simple estate. This construction, we think, is justified by the words of the third article, and is strengthened by the fact that it corresponds not only with an opinion given by the Attorney General of the United States, to the Secretary of War (Land Laws, part 2, pp. 96, 97), but with the opinion of the Senate, a branch of the treaty making power, which is certainly entitled to great consideration. 3d vol. Senate Doc. 1836, No. 197." Again, in the same case, the court said: "The location of the lands became a duty devolving on the President by the treaty. This duty he could execute without an act of Congress; the treaty, when ratified, being the supreme law of the land, which the President was bound to see executed. It was impossible to describe the tract granted to any of the reservees in the treaty, as it is matter of history that none of the lands ceded had ever been surveyed. But locality is given to the grant by the terms of the treaty, with an authority to locate afterwards by a sur

vey making it definite. 10 Pet. 331. This authority being executed, the grant then became as valid to the particular section designated by the President as though the description had been incorporated in the treaty itself. We are, therefore, of opinion that a fee simple passed to the reservee, Mokitchenoqua, by force of the treaty itself, and that the rights of the parties could in no wise be affected by the subsequent act of the President directing a patent to be issued."

In Dewey v. Campau, 4 Michigan, 565, 566, the court, interpreting the same treaty, said: "A title in fee, under this clause of the treaty, passed, by this language, to the reservee. The term reservation was equivalent to an absolute grant. The title passed as effectually as if the grant had been executed. The title was conferred by the treaty; it was not, however, perfect until the location was made; the location was necessary to give it identity. The location was duly made; and thus the title to the land in controversy was consummated by giving identity to that which was before unlocated." In Campau v. Dewey, 9 Michigan, 381, 433, reference was made to Stockton v. Williams, 1 Douglass, 546, above cited, the court saying: "This decision has, for sixteen years, been recognized as the law governing the titles under this treaty, at least, and these must be quite numerous, many of which have doubtless been bought and sold on the faith of this decision. We are, therefore, compelled to recognize it as a rule of property which we are not at liberty to disturb." These cases were not, in any sense, modified by Attorney General v. Williams, 94 Michigan, 180, which was the case of an Indian treaty which expressly provided that the land there in question should never be sold or alienated to any person or persons whomsoever, without the consent of the Secretary of the Interior for the time-manifestly a different case from the present one, in which the treaty contained no restriction upon alienation.

The result of the cases cited is: 1. That this court and the highest court of Michigan concur in holding that a title in fee may pass by a treaty without the aid of an act of Congress, VOL. CCIII-16

and without a patent. 2. That the construction of the treaty here involved, whereby the respective Indians named in its third article are held to have acquired by the treaty a title in fee to the land reserved for the use of themselves, has become a rule of property in the State where the land is situated. That rule of property should not be disturbed, unless it clearly involves a misinterpretation of the words of the treaty of 1819. We agree with the state court in holding that a title in fee passed by the treaty to the children of Bokowtonden, and that the patent issued in 1827 only located or made definite the boundaries of the tract reserved to them by the treaty. It follows that the words in the patent of 1827, "but never to be conveyed by them or their heirs, without the consent and permission of the President of the United States," were ineffectual as a restriction upon the power of alienation. The President had no authority, in virtue of his office, to impose any such restriction; certainly not, without the authority of an act of Congress, and no such act was ever passed. The children of Bokowtonden having then obtained by the treaty the right to convey, there is no reason to doubt that title could be acquired by prescription. The evidence shows that the defendants and those through whom they claim, have had peaceable, adverse possession of the premises in question continuously for more than half a century prior to the commencement of this action.

Without assigning other grounds in support of the ruling below, the judgment of the Supreme Court is

Affirmed.

MR. JUSTICE WHITE did not participate in the decision of this case.

203 U. S.

Argument for Plaintiff in Error.

NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY v. RIGGS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

No. 34. Argued October 18, 1906.-Decided December 3, 1906.

The provisions of §§ 7890, 7891, Revised Statutes of Missouri, which as construed by the highest court of that State cut off any defense by a life insurance company based upon false and fraudulent statements in the application, unless the matter represented actually contributed to the death of the insured, and which apply alike to domestic and foreign corporations, is not repugnant to the Fourteenth Amendment, and does not deprive a foreign corporation coming into the State of its liberty or property without due process of law, nor deny to it the equal protection of the laws. The liberty referred to in the Fourteenth Amendment is the liberty of natural, not artificial, persons.

129 Fed. Rep. 207, affirmed.

THE facts are stated in the opinion.

Mr. Stephen S. Brown, with whom Mr. W. A. Kerr and Mr. John E. Dolman were on the brief, for plaintiff in error:

Section 7890, Rev. Stat., Missouri, of 1899, as interpreted to the jury by the trial court, violates § 1 of the Fourteenth Amendment. Smiley v. Kansas, 196 U. S. 447, 454; M., K. & T. Ry. Co. v. Haber, 169 U. S. 613, 639; C., B. & Q. R. Co. v. Chicago, 166 U. S. 226, 242, 246; Corporations are persons within the meaning of this amendment, Smyth v. Ames, 169 U. S. 466, 522; Santa Clara Co. v. So. Pac. R. R. Co., 118 U. S. 394, 396; C. C. & Augusta R. R. Co. v. Gibbs, 142 U. S. 386, 391; Gulf, Col. & S. F. Ry. v. Ellis, 165 U. S. 150, 154; St. Louis & S. F. Ry. v. Gill, 156 U. S. 649, 657; Chicago, M. & St. P. Ry. v. Minnesota, 134 U. S. 418; Reagan v. Farmers' L. & T. Co., 154 U. S. 362.

The position of the plaintiff in error is not affected by the fact that it is a foreign insurance company.

The law is not a condition to its doing business in the State.

Argument for Plaintiff in Error.

203 U. S.

It is in general terms, and hits all insurance companies. If it is invalid as to some it is invalid as to all. A company lawfully doing business in the State, is no more bound by a general unconstitutional enactment than a citizen of the State. Carroll v. Greenwich Insurance Co., 199 U. S. 401, 409.

The right to make contracts is an indispensable incident to property, without which it cannot be lawfully acquired as between living persons nor effectively preserved or used. Allgeyer v. Louisiana, 165 U. S. 578, 591; Holden v. Hardy, 169 U. S. 366, 391. The privilege of contracting is both a liberty and a property right. Frorer v. The People, 141 Illinois, 171, 181; Barbier v. Connolly, 113 U. S. 27, 31; Yick Wo v. Hopkins, 118 U. S. 356, 369; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 559; Shaver v. Pennsylvania Co., 71 Fed. Rep. 931, 939; State v. Julow, 129 Missouri, 163, 172.

Due process of law, and law of the land, which are synonymous, necessarily refer to a preëxisting rule of conduct, and are intended to secure the individual from the arbitrary exercise of the powers of the Government, unrestrained by the established principles of private rights and distributive justice. These terms were intended to perpetuate old and well established principles of right and justice by securing them from abrogation or violation. Weimer v. Bembury, 30 Michigan, 201; Cooley's Const. Lim. (6th ed.) 443.

Having these principles in mind it becomes a necessary "conclusion of reason" that a statute that has the effect to enable one to obtain the property of another by fraud, which is even more odious than force, 1 Story Eq. Jurisp., 15th ed., 200, and when the fraud shall have been accomplished, vests the title in the wrongdoer, is obnoxious to that provision of the Constitution which forbids the State to deprive one of his property without due process of law. Boyd v. United States, 116 U. S. 616; McKinster v. Sager, 72 N. E. Rep. (Ind.) 815; 1 Bouvier, Law Dict., 690; Broom's Leg. Max., 3d ed., 463, *572; Merritt v. Robinson, 35 Arkansas, 483; Riggs v. Palmer, 115 N. Y. 506, 511.