prove the conspiracy. Though the offense of conspiracy, even where the overt act is committed, is complete before the commission of the overt act, in the sense that nothing more is necessary to constitute the crime, yet the conspiracy must be deemed to continue during the commission of the overt act. Com. v. Corlies, 3 Brewst. 575; State v. Ormiston, 66 Iowa, 143. Mere knowledge of a conspiracy without actual participation in it is insufficient to convict. Indeed, such evidence is inadmissible. People v. Evans, 90 Ill. 384. But presence at a meeting of the conspirators may be shown as evidence of participation. Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320. § 583. Rule from the "Star Route" Case as to Reasonable Doubt.-"All crimes are generally more or less difficult to establish; but conspiracies are peculiarly the product of darkness. Conspiracies are very seldom reduced to writing. They are entered into sometimes in a very informal way; generally, in fact, in an informal way. The parties may not come together at all. They may be in different parts of the country. But if, by any means, by telegraph or letter or by dumb show, if any of them are dumb, if by any means whatever, they come to a mutual understanding for the purpose of committing a crime against the government that is a conspiracy, provided it be followed by an overt act. It is said that you ought not to convict men on circumstantial evidence unless it be of the clearest and most absolutely convincing character. The rule in regard to conspiracy, as in regard to all crimes, is that you shall be satisfied in your own mind, beyond a reasonable doubt, of the guilt of the defendants. I do not know that I am capable of making that any clearer. The books contain discourses on the subject, amplifications of that idea, but after all it comes back to the point that every man on the jury should be satisfied of the guilt of the defendants beyond a reasonable doubt. The reasonable doubt ought to be a doubt which arises out of the evidence in the case. It ought not to be conjecture. It ought to be a doubt supported by a reason. There is a difficulty, though. You are twelve men on the jury. Your organs are different, your mental capacities are different, and your powers of observation are different. What may seem to be a reasonable doubt to one may not seem so to another. But that is a difficulty which cannot be avoided as long as twelve men have to pass upon the question of the liberty of the citizen. Each man ought to be satisfied in that sense. The jury ought to be careful to see that the doubt arises out of the evidence and is not a mere conjecture. A man is seen upon the street to strike another upon the head and fell him to the ground by a blow with a bludgeon. The stricken man's skull is cracked and he dies. It is possible that he might have had a convenient apoplectic fit and died from it; but if there is no evidence of apoplexy and no evidence that that caused his death and the blow was sufficient to cause his death it would be folly, weakness, and an unreasonable ground that the man might have died of apoplexy." United States v. Dorsey, 3 Star Route Trials (Government ed.) 3188. CHAPTER LXV. EVIDENCE IN TRIALS BY COURTS-MARTIAL. 584. Courts-martial Entertain Limited Jurisdiction. 586. Arbitrary Nature of the Rules. 587. Justified only by Military Necessity. 588. Review of the Celebrated Milligan Case. 589. Extract from De Hart's Military Law. 590. Power of these Courts to Originate Evidence. 591. Functions of the Judge Advocate. 592. Evidence in Support of the Averments of the Charge. 593. Liberal Rules as to Defensive Evidence. 594. Rule as to Counsel. 595. Recalling Witnesses. 596. Evidence of the Record on Appeal. 597. Partial Review of Miscellaneous Authorities. § 584. Courts-martial Entertain Limited Jurisdiction.Courts-martial and delinquency courts are tribunals of special and limited powers, having jurisdiction only of offenses against military discipline committed by persons belonging to the particular branch of the military organization for which such courts are organized. The military courts are courts of special, limited—not general -jurisdiction. While the civil courts cannot interfere with the military courts, when acting within their jurisdiction, it is the province of the former to confine the latter strictly to the exercise of their special jurisdiction. Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601. In Re Bogart, 2 Sawy. 396, and in Ex parte Reed, 100 U. S. 21, 25 L. ed. 538, the court inquired into the fact whether the petitioners were in the naval service, at the time when the alleged offense was committed, and, on finding that they were, held, that the courts were proceeding within their appropriate jurisdiction, and refused on that ground to interfere. Re Zimmerman, 30 Fed. Rep. 176. Military law proper is that branch of the public law which is enacted or ordained for the government exclusively of the mili tary state, and is operative equally in peace and in war. 1 Winthrop, Military Law, 4. Military law is that portion of the law of the land designed for the government of a particular class of persons, and administered by special tribunals. It is superinduced to the ordinary law for the purpose of regulating the citizen in his character of soldier; and although military offenses are not cognizable under the common law jurisdiction of the United States, yet the articles of war clearly recognize the superiority of the civil over the military authority. Benet, Military Laws & Courts-martial, 1. § 585. Rules of Evidence Governing. While Congress has authorized courts-martial, established their composition, jurisdiction, and rules of procedure, it has never prescribed the rules of evidence which shall govern their proceedings. Courts-martial, being courts alone of criminal jurisdiction, must therefore adhere to the rules of evidence of the United States criminal courts. Opinions Atty. Gen. 344; 3 Greenl. Ev. § 469. These rules are the common law rules of evidence in criminal cases, except where Congress has prescribed otherwise. The only other exceptions which are permitted are those which are of necessity created by the nature of the service, and by the constitution of the court, and its course of proceeding. 3 Greenl. Ev. § 476, cited in Ives, Military Law, 300. § 586. Arbitrary Nature of the Rules.-The Duke of Wellington said, in the House of Lords, on the 1st of April, 1851, in reference to the Ceylon rebellion of 1849, "that martial law was neither more nor less than the will of the general who commands the army; in fact, martial law is no law at all." A military commission derives its powers and authority wholly from martial law; and by that law and military authority only are its proceedings to be judged or reviewed. Dynes v. Hoover, 61 U. S. 20 How. 78, 15 L. ed. 843; Ex parte Vallandigham, 68 U. S. 1 Wall. 243, 17 L. ed. 589. Martial law is the will of the commanding officer of an armed force or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief or supreme executive ruler. Speech of the Duke of Wellington, 95 Hansard, Parl. Debates (3d series), 80, 8 Opinions Atty. Gen. 367; Examination of Major Andre before Board of Officers, 18 Colonial Pamph. Martial law and its tribunals have thus come to be recognized in the military operations of all civilized warfare. Washington, in the Revolutionary War, had repeated recourse to military commissions. General Scott resorted to them as instruments with which to govern the people of Mexico within his lines. They are familiarly recognized in express terms by the acts of Congress of July 17, 1862, chap. 201, § 5; Mar. 18, 1863, chap. 75, § 36; Resolution No. 18, Mar. 11, 1862; and their jurisdiction over certain offenses is also recognized by these acts. 1 Blackstone's Commentaries, pp. 413, 414, says: "For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law." Lord Loughborough, delivering the judgment of the King's Bench in Grant v. Gould, 2 H. Bl. 69, says: "Martial law, such as it is described by Hale, and such also, as it is marked by Mr. Justice Blackstone, does not exist in England at all. Where martial law is established and prevails in any country, it is of a totally different nature from which is inaccurately called martial law, merely because the decision is by a courtmartial, but which bears no affinity to that which was formerly attempted to be exercised in this kingdom, which was contrary to the constitution and which has been for a century totally exploded." § 587. Justified only by Military Necessity.-The military necessity, which justifies or excuses the exercise of martial law over persons not in the military service, must be an actual, not a fictitious necessity. Martial law, which punishes without legal trial, can only be enforced at a place where war is actually blazing, where the courts are driven out and a legal trial physically impossible. It cannot be continued an hour after this state of things ceases, nor can it be tolerated at one place because the courts are broken up by war or insurrection in another place. Our views on this point are more fully expressed by Sir James Mackintosh, in his great speech on the case of Rev. Jno. Smith, delivered in the House of Commons June 1st, 1824. 3 Mackintosh's Works, 726, 734; Hale, Hist. Com. L. 41-43; 3 Hall, Const. |