tract thus formally executed and enter into a new contract with another party. XLI, 258.

28. Where, in a contract with the quartermaster department for wood, it was covenanted that, if the wood furnished was deficient in quantity or quality, the quartermaster, rèpresenting the United States in the transaction, should have the power to withhold, from the sum stipulated to be paid, such amount as might be necessary to indemnify the government against the deficiency, and no amount was so withheld, but the entire quantity of wood delivered was accepted, and the contractor, on the completion of his contract was paid in full; but subsequently it was discovered that there had been a deficiency in the amount and quality of the wood as furnished;-held, in the absence of any evidence of fraud on the part of the contractor, that he and his sureties could not be held liable on the bond given by them to secure the performance of the covenants of the contract. XXIX, 53.

29. Where a vessel was duly chartered from the owner by the quartermaster department, to carry coal from Philadelphia to Key West at a certain freight, and while en route was stopped at the Delaware breakwater by the military authori- · ties, and compelled, against the protest of the master, to discharge her cargo at Fort Monroe, held that the United States was legally bound to pay to the owner the full freight to Key West according to the terms of the contract. XX, 491.

30. It appears to be established that, in settling with a contractor under a duly executed contract, there may be offset, against the amount due to him, an amount due by him as liquidated damages under the terms of another contract which he has failed to perform.' But where the amount due from the contractor is not liquidated by the contract, the government can have no right to insist that a certain sum fixed by itself as properly due from the contractor shall be set off against the amount due to him; and if the parties cannot mutually agree upon a balance, the proper course will in general be for the Secretary of War to decline payment until the account shall be adjusted by the Court of Claims, which has jurisdiction of all set-offs and counter claims on the part of the United States against contractors and claimants. [See Sec. 1509, Rev. Sts.] XXXII, 257.

1See IV Opins. of Attys. Gen. 554; XI Id. 120.

31. Where, in the settlement of the account of a Railroad Company under a contract for military transportation, there was set off in the quartermaster department against the amount due, the sum of certain amounts regularly and voluntarily paid by the United States to the Company for transportation some five years previously, on the ground that these amounts were in excess of the usual rates, held that such offset was without sanction of law and unauthorized, there being no evidence of fraud on the part of the contractor in obtaining the payments, or of collusion between him and the officers who represented the United States in receipting the accounts and making payment. XXXV, 291.

32. Sec. 3709, Rev. Sts., requires that when contracts are made for supplies or services, they shall be made in a certain form, but it does not necessarily preclude having public work performed by hired laborers where it is not deemed desirable to enter into a formal agreement with a contractor for the purpose. So held that the Secretary of War, under whose direction the appropriations for the construction of the new State, War and Navy Department Building were required by statute to be expended, was empowered to cause the plas tering, or other particular work therein capable of being properly done by hired day labor, to be so done, instead of under contract made upon advertisement and proposals, provided he deemed it to be for the public interest to prefer the former mode. XLI, 121.

CONVENING OFFICER.

SEE SEVENTY SECOND ARTICLE.
SEVENTY THIRD ARTICLE.
SEVENTY FIFTH ARTICLE § 8.
SEVENTY NINTH ARTICLE § 1.
EIGHTIETH ARTICLE § 2.

EIGHTY FIRST ARTICLE § 1.

EIGHTY SECOND ARTICLE § 1.

ONE HUNDRED AND FOURTH ARTICLE.

COURT MARTIAL, I § 2, 4, 5, 8, 17.

REPRIMAND § 1.

REVIEWING AUTHORITY § 1.

CONVENING ORDER.

SEE SEVENTY FIFTH ARTICLE § 8.
SEVENTY NINTH ARTICLE.
EIGHTY FIRST ARTICLE § 2.
ORDER, II.

RECORD § 1, c.

COPY OF PROCEEDINGS.

SEE ONE HUNDRED AND FOURTEENTH ARTICLE.

CORRECTION OF RECORD.

SEE RECORD § 1, l.

REVIEWING OFFICER § 3.
REVISION.

COUNSEL, I-IN CIVIL PROCEEDINGS.

Under existing law, neither department nor other commanders, nor officers sued or prosecuted on account of acts done in the performance of duty, are authorized to employ counsel-U. S. district attorneys or other-at the expense of the United States. Any officer requiring to be defended or assisted by counsel in his official capacity may apply therefor to the Secretary of War, who, in a proper case, will refer the application to the Attorney General for action, according to the provisions of section 17 of the Act of June 22, 1870. XXVI, 22, 366. [By this section, incorporated in Sec. 189, Rev. Sts., it was prohibited to the heads of the executive departments, other than the Department of Justice, to employ attorneys or counsel at the expense of the United States, and declared that when in need of legal counsel or advice they should call upon the last named department to provide the same. See PROCEEDINGS AT LAW AGAINST OFFICER, &C. § 2.]

COUNSEL, II-TO ASSIST A JUDGE ADVOCATE.

In cases of exceptional difficulty and public importance, civil counsel were formerly not unfrequently retained to 'See the directions published in G. O. 15, War Dept., 1874.

assist the judge advocate. 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. V, 446; XXII, 345. [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 PROCEEDINGS AT LAW AGAINST OFFICER, &C., § 2.]

COUNSEL, III-FOR THE ACCUSED.

1. 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. IX, 538; XXXII. 519. A court martial, however, is not required to delay an unreasonable time to enable an accused to provide himself with counsel. XXX, 102. [See NINETY THIRD ARTICLE § 6.]

2. 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 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.

3. 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; XXI, 141. 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.

Compare, on this subject, People v. Daniell, 6 Lansing, 44; People v. Van Allen, 55 N. York, 31.

4. 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. XIII, 400. Nor can such a court excuse one of its members to enable him to act as counsel for an accused. XXXV, 488, 490.

COURT MARTIAL, I-AUTHORITY AND FUNCTION.

1. Courts-martial are no part of the Judiciary of the United States, but simply instrumentalities of the Executive power. [Compare PRESIDENT, I § 1.] 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§5; ONE HUNDRED AND FOURTH ARTICLE § 4.] But, though transient and summary, their judgments, when rendered upon subjects within their limited jurisdiction, (see COURT-MARTIAL, II § 1,) 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 State.'

656.

2. A court martial should in general be left to determine its own course of procedure, except where the same is defined by law or usage. It would be unwarranted by usage to require in Orders that a court martial shall adopt a certain procedure in any case or class of cases as to a matter prop

1

See Dynes v. Hoover, 20 Howard, 79; Ex parte Vallandigham, 1 Wallace, 243; 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; Ex parte Bright, 1 Utah, 148, 154; Moore v. Bastard, 4 Taunt. 67; VI Opins. of Attys. 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 courtmartial 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.