Opinion of the Court.

plainant. An appeal was then taken to this court, the cause was submitted on printed briefs, and the decree of the Circuit Court was reversed. The opinion took no notice of the fact (which did not appear in the record) that the grant was one of that class in which the quantity granted was but a small part of the territory embraced within the boundaries named. It proceeded throughout as it would have done on the supposition that the grant covered and filled up the whole territory described. It simply dealt with and affirmed the general proposition that a Mexican grant while under judicial investigation was not public land open for disposal and sale, but was reserved territory within the meaning of the law,—a proposition not seriously disputed. On the question of time when the rejection of the grant took effect, it held with the defendant, that the records of this court could be consulted to ascertain the precise day of rendering judgment. After deciding this point, there was no difficulty, under the admissions of the bill, in reversing the decree of the Circuit Court. The opinion, however, examined somewhat at large the grounds on which it should be held that Mexican grants (whether valid or invalid) while under judicial consideration, should be treated as reserved lands. The principal reason was that they were not "public lands" in the sense of congressional legislation; those terms being habitually used to describe such lands as are subject to sale or other disposal under general laws. The Pacific Railroad acts of 1862 and 1864 only granted, in aid of the railroads to be constructed under them, "every alternate section of public land . . . not sold, reserved, or otherwise disposed of by the United States, and to which a preëmption or homestead claim may not have attached at the time the line of said road is definitely fixed." The lands comprised in a Mexican grant, it was held, must be regarded not as "public lands" but as "reserved" lands, because, by the treaty with Mexico, all private property was to be respected. And when the act of March 3d, 1851, created a board of commissioners to examine all claims to Mexican grants, the 13th section declared "that all lands the claims to which have been finally rejected by the commissioners in the manner herein provided,

Opinion of the Court.

or which shall be finally decided to be invalid by the District or Supreme Court, and all lands the claims to which shall not have been presented to the commissioners within two years after the date of this act, shall be deemed, held, and considered, as part of the public domain of the United States, " 9 Stat. 633; implying that until then they were not part of the public domain. The same conclusion was thought to be inferred from the act of March 3d, 1853, which introduced the land system into California; the sixth section of which, amongst other things, exempted from preëmption and sale "lands claimed under any foreign grant or title." And this reservation, the court argued, would apply equally to grants that were fraudulent and void, as to those that were valid; for, until investigated, it could not be known which were valid and which were void.

This reasoning of the court in Newhall v. Sanger is entirely conclusive as to all definite grants which identified the land granted, such as the case before it then appeared to be; but is it fairly applicable to floats? that is to say, grants of a certain quantity to be located within a larger tract of territory, whether of limited extent, marked by certain bounds, or anywhere in the State, as in the case of Yturbide? Many small grants, of only a few leagues, were susceptible of location in large territories. The Alvarado grant, claimed by Fremont, Fremont v. United States, 17 How. 542, was only for ten square leagues within a region containing upwards of a hundred square leagues. The description in the grant was "the tract of land known as Mariposas, to the extent of ten square leagues, within the limits of the Sierra Nevada and the rivers known by the names of the Chanchilles, of the Merced, and of the San Joaquin." Did all this vast region cease to be the public domain of the United States for the sake of the ten leagues which constituted the actual grant? Would not such a conclusion have been unreasonable, prejudicial to the public interest, and entirely unnecessary for the protection of the grantee? It may be that the Land Office might properly suspend ordinary operations in the disposal of lands within the territory indicated, and in that sense they might not be con

Opinion of the Court.

sidered as public lands; but why should they not be regarded as public lands disposable by Congress itself, care being taken to preserve a sufficient quantity to satisfy the grant?

As we have already seen, there can be no doubt that a grant made by Congress within the limits of a territory subject to a Mexican float, would take precedence of the float if sufficient land remained to satisfy it. The only question is, whether the surplus land so at the disposal of Congress may be regarded as public land within the meaning of the railroad aid grants. We are disposed to think that it may be, and that as to grants of this character, floating grants as they may be called, the railroad aid grants are not deprived of effect provided a sufficient quantity lying together be left to satisfy the grant. In this case no difficulty could occur in carrying out this view. The territory described has sufficient extent west of range 7 to satisfy the grant of eleven leagues, and there seems to be no valid reason why it should not be satisfied from this part. Of course, the satisfaction of the grant is a fiction; for it never had any validity. But the part referred to would be sufficient to satisfy it, if it had been a valid grant. And as the government had the right of location, and has made a grant of its title to the railroad company, the company may exercise the same right subject to the like conditions. The company has made its election to take its lands in range 7 and the ranges that lie easterly thereof; and this option leaves the tract west of range 7 (subject to its right of way) open to disposal in the ordinary manner of other public lands.

There is really nothing in the decision of Newhall v. Sanger in conflict with the views here expressed; because the court did not have before it the case of a floating grant.

In a number of cases decided since the decision in Newhall v. Sanger, that case has been referred to with approbation; and in some of them expressions have been used as if the question of floating grants to be located in larger territories had been decided therein. But we have seen that this is not correct, and we are not aware of any case in which this class

Syllabus.

of grants has been actually involved and has formed the subject of decision.

The decree of the Circuit Court is affirmed in this and the other cases argued with it. In consequence of the death of Kate D. McLaughlin, the decree will be entered as of the first day of the term, nunc pro tunc.

No. 11, DEWITT v. MCLAUGHLIN; No. 12, FRIEND v. WISE. In error to the Circuit Court of the United States for the District of California. These cases were, by the above direction of the court, affirmed, and judgment entered nunc pro tunc as of October 10, 1887. Affirmed.

Mr. W. J. Johnston and Mr. M. D. Brainard for plaintiffs in

error.

Mr. A. L. Rhoads and Mr. Henry Beard for defendants in error.

BENSON v. McMAHON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 1420. Argued May 1, 1888. - Decided May 14, 1888.

On the hearing of an appeal from a judgment of a Circuit Court, discharging a writ of habeas corpus which had been issued on the petition of a person arrested for a crime committed in a foreign country, and held for extradition under treaty provisions, the jurisdiction of the commissioner and the sufficiency of the legal ground for his action are the main questions to be decided; and this court declines to consider questions respecting the introduction of evidence, or the sufficiency of the authentication of documentary proof.

When a person is held for examination before a commissioner, to determine whether he shall be surrendered to the Mexican authorities, to be extradited for a crime committed in Mexico, the question to be determined is, whether the commission of the crime alleged is so established as to justify the prisoner's apprehension and commitment for trial if the offence had been committed in the United States; and the proceeding resembles in its character preliminary examinations before a magistrate for the

Opinion of the Court.

purpose of determining whether a case is made out to justify the holding of a person accused, to answer to an indictment.

The crime of "forgery," as enumerated in article 3 of the Treaty of Extradition with Mexico of June 20, 1862, is not confined to the English common-law offence of forgery; but it includes the making, forging, uttering, and selling to the public, fraudulent printed tickets of admission to an operatic performance, bearing on their face in print the name of the manager of the operatic company, and also stamped with his name and seal. It seems that such an offence is also included in the crime of forgery as defined by the English common law.

THIS was an appeal from a judgment denying a discharge to a prisoner, on a writ of habeas corpus. Petitioner appealed. The case is stated in the opinion.

Mr. Peter Mitchell for appellant.

Mr. S. Mallet-Prevost and Mr. De Lancey Nicoll for appellees.

MR. JUSTICE MILLER delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of the United States for the Southern District of New York upon a writ of habeas corpus, in which that court remanded the prisoner to the custody of the marshal of the district.

The proceedings were originally instituted by a complaint, made before Samuel H. Lyman, a United States commissioner for the Circuit Court of that district, by one Juan N. Navarro, consul general of the Republic of Mexico at the city of New York, against George Benson, whom he charged with being guilty of the crime of forgery, committed in Mexico, and therefore liable to extradition under the treaty of December 11, 1861, between the United States and Mexico, to be there tried for that offence. The case was heard quite elaborately before Commissioner Lyman, who rendered the following judgment: "After a full and fair examination of the law and the facts in the case, I find that the evidence produced against the said Benson is sufficient in law to justify his commitment for the crime of forgery for the purpose of being delivered up as a fugitive from justice to the Republic of Mexico, pursuant to