766
Opinion of the Court
is entirely arbitrary in its decisions, [and] is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law." 1 Blackstone's Commentaries *413. See also Hale, History of the Common Law of England, at 26-27; Clode 21 (military law in early 17th-century England amounted to "the arbitrary right to punish or destroy, without legal trial, any assumed delinquent"). The partial security Englishmen won against such abuse in 1689 was to give Parliament, preeminent guardian of the British constitution, primacy in matters of military law. This fact does not suggest, however, that a legislature's power must be exclusive. It was for Parliament, as it did in the various Mutiny Acts, to designate as the times required what peacetime offenses by soldiers deserved the punishment of death; and it was for Parliament, as it did in 1713, to delegate the authority to define wartime offenses and devise their punishments, including death. The Crown received the delegated power and the concomitant responsibility for its prudent exercise. The lesson from the English constitutional experience was that Parliament must have the primary power to regulate the Armed Forces and to determine the punishments that could be imposed upon soldiers by courts-martial. That was not inconsistent, however, with the further power to divide authority between it and the Crown as conditions might warrant.
Far from attempting to replicate the English system, of course, the Framers separated the powers of the Federal Government into three branches to avoid dangers they thought latent or inevitable in the parliamentary structure. The historical necessities and events of the English constitutional experience, though, were familiar to them and inform our understanding of the purpose and meaning of constitutional provisions. As we have observed before, with this experience to consult they elected not to "freeze court-martial usage at a particular time" for all ages following, Solorio, supra, at 446, nor did they deprive Congress of the
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