Loving v. United States, 517 U.S. 748, 16 (1996)

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Cite as: 517 U. S. 748 (1996)

Opinion of the Court

stirr up Sedition or shall desert Their Majestyes Service be brought to a more Exemplary and speedy Punishment than the usuall Forms of Law will allow," and "shall suffer Death or such other Punishment as by a Court-Martiall shall be Inflicted." 1 Wm. & Mary, ch. 5.

In one sense, as Loving wants to suggest, the Mutiny Act was a sparing exercise of parliamentary authority, since only the most serious domestic offenses of soldiers were made capital, and the militia was exempted. See Solorio, supra, at 442. He misunderstands the Mutiny Act of 1689, however, in arguing that it bespeaks a special solicitude for the rights of soldiers and a desire of Parliament to exclude Executive power over military capital punishment.

The Mutiny Act, as its name suggests, came on the heels of the mutiny of Scottish troops loyal to James II. 3 Macaulay 45-49. The mutiny occurred at a watershed time. Menaced by great continental powers, England had come to a grudging recognition that a standing army, long decried as an instrument of despotism, had to be maintained on its soil. The mutiny cast in high relief the dangers to the polity of a standing army turned bad. Macaulay describes the sentiment of the time:

"There must then be regular soldiers; and, if there were to be regular soldiers, it must be indispensable, both to their efficiency, and to the security of every other class, that they should be kept under a strict discipline. An ill disciplined army . . . [is] formidable only to the country which it is paid to defend. A strong line of demarcation must therefore be drawn between the soldiers and the rest of the community. For the sake of public freedom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals." Id., at 50.


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