his application for counsel was commonly recommended to be denied. I, 348, September, 1862; II, 16, January, 1863; III, 105, July, 1863; VII, 45, January, 1864; VIII, 51, 108, 130, March, 1864; X, 576, XI, 201, December, 1864; XIII, 509, March, 1865; XVI, 565, XVIII, 290, October, 1865; XXI, 197, January, 1866; XXIII, 121, July, 1866; XXIV, 135, January, 1867; XXVI, 248, December, 1867; 521, 536, April, 1868; XXIX, 458, November, 1869; XXX, 83, February, 1870; XXXIV, 65, January, 1873.

973. But, by the act of 1870, above indicated, the whole matter of the employment of counsel in cases of a public nature, and the settlement of their compensation, has been taken from the chiefs of the other executive departments and transferred to the Attorney General. Sec. 189, Rev. Sts. (derived from sec. 17 of said act), provides generally that "No head of a department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice shall call upon the Department of Justice, the officers of which shall attend to the same." The subject is regulated in detail by Secs. 356 to 367, Rev. Sts.; and when an officer or soldier gives notice, as required by par. 1059, A. R. (968 of 1895; 1072 of 1901), of a suit or prosecution commenced against him for an act done in the due performance of a military duty and applies to be defended at the expense of the United States, the Secretary of War, if he deems the case to be one in which such action will be just and expedient, will refer the papers to the Attorney General for the proper action. XXXVIII, 99, June, 1876; 62, 32, October, 1893.

974. Where an attorney submitted to the War Department a claim for services rendered an enlisted man in a habeas corpus proceeding, no notice of such employment having been previously given, it was held that the employment and payment of the attorney were prohibited by Secs. 189 and 365, Rev. Sts., and further that in view of Sec. 366, Rev. Sts., payment of the claim could not be made except by special act of Congress.1 Card 7256, December, 1899.

975. An action for damages was commenced against an officer on account of his having placed in confinement, as a deserter, a man who was in fact a discharged soldier. The man had been regularly turned over to him as a deserter, and it was his duty to receive and hold him. The officer applied for counsel, under par. 1057, A. R. (968 of 1895; 1072 of 1901). Advised that the application be referred to the Department of Justice for disposition." 50, 363, November, 1891.

976. An officer proposing to bring suit in the Court of Claims,

1 See par. 968, Army Regulations of 1895 (1072 of 1901).

2 The Attorney General instructed the local district attorney to appear and defend in the case.

under Sec. 1059, Rev. Sts., for the amount of certain subsistence funds, for which he had been made responsible through the dereliction of a commissary sergeant, applied to the Secretary of War to detail an officer of the army to act as his attorney in the prosecution of the claim. Held, in view of the provisions of sec. 5498, Rev. Sts., that such detail could not lawfully be made.1 35, 452, October, 1889.

977. An officer made application for counsel to assist a sergeant of his company in bringing suit for false imprisonment against a civil official. As the imprisonment of the soldier did not arise from any matter connected with his public duties, held that the application could not be acceded to under A. R. 845.2 LIII, 175, October, 1885.

978. A soldier having been arrested by the civil authorities of a State for the commission of a civil offence, his post commander applied for counsel to defend him. Advised that there was no provision of law for furnishing counsel in such a case. The laws of the State make it the duty of the courts to assign counsel at the request of an accused party when unable to employ any. 42, 51, July, 1890; 49, 253, September, 1891.

979. Upon a request that counsel be employed by the War Department to defend an Indian under arrest on a criminal charge, before a State court, as an act of justice to "a ward of the nation," it was held that there was no fund under control of the Secretary of War that could be used to pay such counsel, and further that the Secretary of War was without authority in the premises. 29, 154, January, 1889. 980. The Commissioners of the Vicksburg Military Park employed a firm of lawyers, subject to the approval of the Secretary of War, "to make abstracts of title for them and advise them what steps may be necessary to perfect the title to the lands which the Government needs for the Park." Held, that Sec. 189, Rev. Sts., prohibited the employment in question and that therefore the Secretary of War was without authority to approve the same. Card 6781, July, 1899.

981. The War Department has no special regulations covering the matter of the qualifications of attorneys appearing before it. In practice any attorney who has legal authority to represent a client in a particular matter will be heard by the Department in that matter. Card 2931, February, 1897, to March, 1900.

COUNSEL TO ASSIST A JUDGE-ADVOCATE.

982. There is no special provision of law for compensating attorneys retained as counsel to assist judge-advocates. Such counsel should not be retained, except in important and complicated cases; and the

1 See 16 Opins. At. Gen., 478.

2 See 1057 of 1889 (968 of 1895; 1072 of 1901).

authority of the Secretary of War for their employment should first be sought and obtained. The claims of such counsel, approved by the judge-advocate, should be presented to the Secretary of War, to be paid, if allowed, out of the contingent fund.1 V. 446, December, 1863. 983. The fact of the selection of a certain officer as the judgeadvocate of a military court is evidence that such officer is considered qualified to conduct the prosecution of cases before such court; and the employment of civil counsel to aid him in any case can be authorized only by the Secretary of War, or some proper commander. For a judge-advocate to employ counsel without such authority, or to contract with a counsel to pay him for his services a certain amount fixed between them without the sanction of the proper superior, would be an irregular and unwarrantable proceeding, and no such contract would be binding upon the Government. If paid at all he should be paid only such amount as, upon a review of all his services and inspection of the record itself, shall be deemed reasonable and just. 345, August, 1866.

COUNSEL FOR THE ACCUSED.

XXII

984. An officer or soldier put upon trial before a court martial is not entitled as of right to have counsel present with him to assist him in his defence, but the privilege is one which is almost invariably conceded, and where it is unreasonably refused, such refusal may constitute ground for the disapproval of the proceedings. XXXII, 519, April, 1872. A court martial, however, is not required to delay an unreasonable time to enable an accused to provide himself with counsel. XXX, 102, February, 1870.

985. While reasonable facilities for procuring such counsel as he may desire should be afforded an accused, his claim must be regarded as subordinate to the interests of the service. Thus where an accused officer applied to the department commander who had convened the court, to authorize a particular officer whom he desired as counsel to

1In cases of exceptional difficulty and public importance, civil counsel were formerly not unfrequently retained to assist the judge advocate, as indicated in the text. Since the creation, however, of the office of Judge Advocate General of the Army, and of the corps of Judge Advocates, by the act of July 17, 1862, such instances have been of the rarest occurrence. Under the existing law, indeed, counsel could be employed (at the public expense) for this purpose only through the Department of Justice upon the request or recommendation of the Secretary of War.

"See McNaughten, p. 178; Macomb (edition of 1809), p. 94; Winthrop, Mil. Law and Precedents, 241.

In the case published in par. 4, S. O. 145, Dept. of the East, 1896, the Department Commander decided, as shown by the record, that "as there is no officer* * * available for detail as counsel, it is believed, considering each of the charges, that the judge-advocate of the court should be able to guard the interests of the accused." Compare, on this subject, People v. Daniell, 6 Lansing, 44; People v. Van Allen, 55 New York, 31.

act in that capacity, and this officer could not at the time be spared from his regular duties without material prejudice to the public interests, held that the commander was justified in denying the application, and further that the validity of the subsequent proceedings and sentence in the case was not affected by such denial. XXXII, 519, April,

1872.

986. An accused, prior to arraignment, even if in close arrest, should be allowed to have interviews with such counsel, military or civil, as he may have selected. XII, 441, June, 1865; XXI, 141, December, 1865. So, his counsel should be permitted to have interviews with any accessible military person whom it may be proposed to use as a material witness, or whose knowledge of facts may be useful to the accused in preparing for trial. XIX, 33, October, 1865.

987. A military court has no authority (analogous to that sometimes exercised by civil courts in criminal cases) to assign counsel to an accused unprovided with counsel. So held that it has no power whatever to compel an officer to act as counsel for an accused. XIII, 400, July, 1874. Nor can such a court excuse one of its members to enable him to act as counsel for an accused. XXXV, 490, July, 1874; 57, 417, January, 1893.

988. Held that G. O. 29 of 1890, providing for the detail by the commander of a post at which a general court-martial is ordered to sit, of a suitable officer of his command to act as counsel for prisoners to be arraigned, if requested by them, was not to be construed as sanctioning the detail or voluntary appearance of a post commander himself in such capacity at his own post. 65, 77, May, 1894.

989. Section III, Circular 8, A. G. O., 1894, provides that "no officer directly responsible for the discipline of an organization or organizations under his command-as the commanding officer of a post, band, company, battalion, squadron, or regiment-nor the trial officer of a summary court will be regarded as a 'suitable' officer under the provisions of General Order 29, A. G. O., 1890, for this duty (counsel for defence before general court-martial) at the post where he is stationed." Held that the section quoted was intended to declare the officers mentioned therein not suitable for the duty of counsel, and that it should not be construed as conferring upon them an exemption from such duty, which they could waive.1 Card 29, July, 1894.

990. By the use of the word counsel in General Order No. 29, A. G. O., 1890, without qualification, it was undoubtedly intended that officers detailed as such should perform for an accused soldier all those duties which usually devolve upon counsel for defendants before civil

1 See COUNSEL, Court-Martial Manual of 1901, p. 25.

courts of criminal jurisdiction, in so far as such duties are apposite to the procedure of military courts. It would be proper for an officer so detailed to employ all honorable means to acquit him, that is to invoke every defence which the law and facts justify, without regard to his own opinion as to the guilt or innocence of the accused. Military law does not any more than the civil assume to punish all wrong doing, but only such as can be ascertained by the methods of justice which the law and the customs of the service prescribe.1 64, 164, March, 1894; Card 609, November, 1894.

991. An application by an accused officer to be furnished, at the expense of the United States, with civil counsel to defend him on his trial by court martial, remarked upon as unprecedented and not to be entertained. Par. 1057, A. R. (968 of 1895; 1072 of 1901), relates to no such a case. 50, 277, November, 1891. No authority exists for the payment by the United States of civil counsel employed by an officer or an enlisted man to defend him on his trial by court martial. 32, 165, May, 1889; 45, 438, February, 1891.

COURT MARTIAL-AUTHORITY AND FUNCTION.

992. Courts martial are no part of the Judiciary of the United States, but simply instrumentalities of the Executive power. (Compare § 2038, post.) They are creatures of orders; the power to convene them, as well as the power to act upon their proceedings, being an attribute of command. (See SEVENTY-SECOND ARTICLE; ONE HUNDRED AND FOURTH ARTICLE.) But, though transient and summary, their judg ments, when rendered upon subjects within their limited jurisdiction (see COURT MARTIAL JURISDICTION), are as legal and valid as those of any other tribunals, nor are the same subject to be appealed from, set aside, or reviewed, by the courts of the United States or of any any State.2 V. 656, December, 1863; LV, 486-492, March, 1888.

1See COUNSEL, Court Martial Manual of 1901, p. 25.

2 See Dynes v. Hoover, 20 How., 79; Ex parte Vallandigham, 1 Wall., 243; Keyes v. U. S., 109 U. S., 336; Wales v. Whitney, 114 id., 564; Smith v. Whitney, 116 id., 167; Johnson v. Sayre, 158 id., 109, 118; Fugitive Slave Law Cases, 1 Blatch., 635; In re Bogart, 2 Sawyer, 402, 409; Moore v. Houston, 3 S. & R., 197; Ex parte Dunbar, 14 Mass., 392; Brown v. Wadsworth, 15 Verm., 170; People v. Van Allen, 55 N. York, 31; Perault v. Rand., 10 Hun., 222; Moore v. Bastard, 4 Taunt., 67; 6 Opins. At. Gen., 415, 425. "No acts of military officers or tribunals, within the scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of common law." Tyler v. Pomeroy, 8 Allen, 484. Where a court martial has jurisdiction, "its proceedings cannot be collaterally impeached for any mere error or irregularity committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances." Ex parte Reed, 10 Otto, 13. See Winthrop's Mil. L. & P., 55-57 and authorities cited; 3 Greenleaf Ev., 470; Clode Mil. F., 361; id., M. L., 58.

In Rose ex rel. Carter v. Roberts (99 Fed. Rep., 948) the court said: "It is not the