yet, in times of profound peace, a little relaxation of military
rigour would not, one should hope, be productive of much
inconvenience. And, upon this principle, though by our standing
laws[w] (still remaining in force, though not attended to) desertion
in time of war is made felony, without benefit of clergy, and the
offence is triable by a jury and before the judges of the common law;
yet, by our militia laws beforementioned, 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[x]. But our mutiny act makes no such distinction:
for any of the faults therein 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
offences, 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 such penalties as
the articles direct." 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 present constitution, the nobility and gentry of
the kingdom, who serve their country as militia officers, are annually
subjected to the same arbitrary rule, during their time of exercise.

[Footnote w: Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2.]

[Footnote x: _Ff._ 49. 16. 5.]

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 legisla