elony,
without benefit of clergy, and the offense is triable by a jury and
before justices at the common law; yet, by our militia laws before
mentioned, a much lighter punishment is inflicted for desertion in
time of peace. So, by the Roman law also, desertion in time of war was
punished with death, but more mildly in time of tranquillity. But our
Mutiny Act makes no such distinction; for any of the faults above
mentioned are, equally at all times, punishable with death itself, if
a court martial shall think proper.

This discretionary power of the court martial is indeed to be guided
by the directions of the crown; which, with regard to military
offenses, has almost an absolute legislative power. "His Majesty,"
says the act, "may form articles of war, and constitute courts
martial, with power to try any crime by such articles, and inflict
penalties by sentence or judgment of the same." A vast and most
important trust! an unlimited power to create crimes, and annex to
them any punishments, not extending to life or limb! These are indeed
forbidden to be inflicted, except for crimes declared to be so
punishable by this act; which crimes we have just enumerated, and
among which we may observe that any disobedience to lawful commands is
one. Perhaps in some future revision of this act, which is in many
respects hastily penned, it may be thought worthy the wisdom of
Parliament to ascertain the limits of military subjection, and to
enact express articles of war for the government of the army, as is
done for the government of the navy; especially as, by our
constitution, the nobility and the gentry of the kingdom, who serve
their country as militia officers, are annually subjected to the same
arbitrary rule during their time of exercise.

One of the greatest advantages of our English law is that not only the
crimes themselves which it punishes, but also the penalties which it
inflicts, are ascertained and notorious; nothing is left to arbitrary
discretion; the king by his judges dispenses what the law has
previously ordained, but is not himself the legislator. How much
therefore is it to be regretted that a set of men, whose bravery has
so often preserved the liberties of their country, should be reduced
to a state of servitude in the midst of a nation of free men! for Sir
Edward Coke[50] will inform us that it is one of the genuine marks of
servitude, to have the law, which is our rule of action, either
concealed or precar