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Steamer Virginius.

dent, but a direction merely for the purpose of having the commission organized within that time. The power to appoint the commissioners, in the first instance, for the purpose declared in the act itself, seems necessarily to imply power to fill vacancies that may happen before the accomplishment of the purpose for which they were appointed, and thus to keep the commission in existence until the close of the exhibition. A different construction might defeat the operation of the act and render its provisions nugatory.

Very respectfully, your obedient servant,

B. H. BRISTOW, Solicitor-General and Acting Attorney-General. Hon. HAMILTON FISH, Secretary of State.

STEAMER VIRGINIUS.

After examination of the papers submitted in this case, and upon consideration of the information furnished thereby: Advised that the facts presented do not establish any breach of the neutrality laws, either by the owner of the steamer or by the persons engaged thereon,

DEPARTMENT OF JUSTICE,
June 5, 1872.

SIR: I have considered the statement of F. E. Sheppard, formerly master of the steamer Virginius, and the accompanying affidavits, transmitted to this Department under cover of your letter of the 16th ultimo, in which you request an opinion "as to whether there has been any violation by the above-named vessel, or by the persons engaged in her expedition, of the neutrality or navigation laws of the United States."

The papers submitted furnish information which may give rise to a suspicion that the registry of the steamer was fraudulent, and in violation of the navigation-laws, but they do not seem to contain anything that, from a legal point of view, amounts to evidence of such violation; and in the absence of some proof of the fact, it cannot well be claimed that the law has been violated. I perceive nothing in the statement or affidavits which appears to establish any breach of the

Cape Mendocino Light-House Site.

neutrality-laws, either by the owner of the steamer or by the persons engaged in her expedition.

Upon the whole I am of the opinion that the facts presented would be insufficient to make out a case before a judicial tribunal, on an information charging a violation of our neutrality or navigation laws.

The papers mentioned are returned herewith.

I have the honor to be, your obedient servant, B. H BRISTOW, Solicitor-General and Acting Attorney-General. Hon. HAMILTON FISH, Secretary of State.

CAPE MENDOCINO LIGHT-HOUSE SITE.

Selections of the public lands, made by the State of California under the 12th section of the act of March 3, 1853, chap. 145, required the approval of the Secretary of the Interior before title passed from the United -States to the State by the grant therein contained. Under the act of July 23, 1866, chap. 219, selections theretofore made by the State, and disposed of in good faith under the laws of the State, are not confirmed, nor does the title pass until the lands are certified over to the State by the Commissioner of the General Land-Office. Hence, where the President in 1866 and 1867 reserved for light-house purposes a piece of land in California which had previously been selected by the authorities of that State under the 12th section of the act of March 3, 1853, and by them granted to a private party in accordance with the laws of the State, but the selection has never received the approval of the Secretary of the Interior, nor has the land ever been certified over to the State by the Commissioner of the General Land-Office: Held that the legal title to the premises is still in the United States.

DEPARTMENT OF JUSTICE,
June 7, 1872.

SIR: I have examined the report of the Light-House Board and the accompanying papers relative to the light-house site at Cape Mendocino, California, which were received from your Department, with a letter from the Hon. William A. Richardson, Acting Secretary, dated the 29th of April last, requesting an opinion as to the title of the United States to the site mentioned.

It appears that the land within the limits of the site, which

Cape Mendocino Light-House Site.

formerly constituted a part of the public domain, includes lots 1 and 2 of fractional section 2,gether with the south half of the northwest quarter and the northwest quarter of the southwest quarter of section 27; both sections being in township 1 north, of range 3 west, Humboldt meridian, and that an approved plat of the township was filed in the land-office at Humboldt in June, 1859.

Part of this land, namely, lot 1 of fractional section 28, was reserved by the President for light-house purposes June 8, 1866, and the remainder was reserved for the same purposes May 23, 1867, since which period the Government has expended on the premises over $100,000 in the erection of buildings, &c.

But prior to the reservations just referred to, on the 16th of June, 1860, the whole of the land described was selected by the authorities of the State of California, under the 12th section of the act of March 3, 1853, (10 Stat., 248) and was granted by the State to William Brodenson, by patent dated January 19, 1861. The selection made by the State, however, has never received the approval of the Secretary of the Interior, nor has it ever been certified over to the State by the Commissioner of the General Land-Office.

As the only adverse title set up or outstanding against the United States is that derived from the State of California under the aforesaid patent, it is unnecessary here to do more than inquire whether the State held at the date of the patent, or afterward became invested with, the legal title to the land.

Whatever title the State had in the premises was acquired by virtue of the 12th section of the act of March 3, 1853, already cited, and the act of July 23, 1866, (14 Stat., 218.) Under the former enactment, the selections made by the State authorities required the approval of the Secretary of the Interior before title passed from the United States to the State by the grant contained therein; and it is clear that, as the selection of the land has not been approved by the Secretary, the title still remains in the United States, unless it has passed to the State by the operation of the act of 1866. Now, under the latter statute, the selection, notwithstanding the language of the 1st section, is not confirmed, nor does

Limitations as to Trials by Courts-Martial.

the title pass, until the land is certified over to the State by the Commissioner of the General Land-Office, in pursuance of other provisions of the same statute, (see Hodop vs. Sharp, 40 Cal., 69; Toland vs. Mandell, 38 Cal., 41 and 42;) so that, with respect to the case under consideration, the land selected not having been certified over by the Commissioner, as already stated, the title cannot be deemed to have passed to the State, but must be regarded as still in the United States. Lot 1, of section 28, it may also be observed, was reserved before the passage of the act of 1866, and falls within the exception contained in the first proviso to the 1st section thereof.

In brief, then, as the matter now stands, I think the United States are at present in exclusive possession of the legal title to the site.

The papers are herewith returned.

I have the honor to be, sir, your obedient servant,
B. H. BRISTOW,
Solicitor-General and Acting Attorney-General.

Hon. GEO. S. BOUTWELL,

Secretary of the Treasury.

LIMITATIONS AS TO TRIALS BY COURT-MARTIAL.

The two-years' limitation prescribed by the 88th article of war applies to all offenses triable and punishable by court-martial, including those which may be thus tried and punished under the act of March 2, 1863, chap. 67.

The concealment of an offense by the accused is not a "manifest impediment" to his prosecution, within the meaning of that article, and does not prevent the limitation from running in his favor.

DEPARTMENT OF JUSTICE,
June 12, 1872.

SIR: I have duly considered your letter of the 13th ultimo, in which you ask for a construction of the 88th article of war, limiting the time within which persons shall be tried and punished by court-martial.

That article provides that "no person shall be liable to be tried and punished by a general court-martial for any offense

Limitations as to Trials by Courts-Martial.

which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that period."

You desire to know whether, if an officer, guilty of fraud, so conceals it that it could not be detected within the two years mentioned in the article, that would constitute a manifest impediment within the meaning of the exception therein.

There are many cases in which statutes limiting civil actions are suspended by the fraudulent concealment of a cause of action from the aggrieved party; but I do not understand that this doctrine has any application to criminal cases. No exception is made in them in favor of the Government because the offending party has concealed the offense. Concealment, as far as it is possible, follows the commission of every crime, and were that exception to be made in statutes limiting the time within which prosecutions must be brought, the exceptions would greatly exceed in number the cases falling under the rule. No such principle exists in general crimi nal law, and I do not think that the language of the 88th article of war justifies such a construction being placed upon it. The words "other manifest impediment" must be construed in connection with the words immediately preceding, namely, "by reason of having absented himself," and, taken together, it is apparent that the impediment intended by the article is an impediment similar in kind to absence, and that it is one which renders it impossible for a prosecution to take place. I do not think it could be extended so far as to include concealment of the offense.

The second question is whether the SSth article of war ap. plies to offenses under the act of March 2, 1863, (12 Stat., 696,) and I am of opinion that it does. The language of the article is very broad, and applies to all cases of trial by a general court-martial.

I remain your very obedient servant,

CLEMENT HUGH HILL,
Acting Attorney-General.

Hon. WM. W. BELKNAP,

Secretary of War.

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