1787 Federalist 26 · Founding Made Plain

11787 Federalist No. 26

2The Idea of Restraining the Legislative Authority

3in Regard to the Common Defense Considered

4For the Independent Journal.

5HAMILTON

6To the People of the State of New York:

7IT WAS a thing hardly to be expected

8 that in a popular revolution

9 the minds of men should stop at that happy mean

10 which marks the salutary boundary

11 between POWER and PRIVILEGE,

12 and combines the energy of government

13 with the security of private rights.

14A failure in this delicate and important point

15 is the great source of the inconveniences

16 we experience,

17 and if we are not cautious

18 to avoid a repetition of the error,

19 in our future attempts

20 to rectify and ameliorate our system,

21 we may travel from one chimerical project

22 to another;

23 we may try change after change;

24 but we shall never be likely

25 to make any material change for the better.

26The idea of restraining the legislative authority,

27 in the means of providing for the national defense,

28 is one of those refinements

29 which owe their origin to a zeal for liberty

30 more ardent than enlightened.

31We have seen, however,

32 that it has not had thus far an extensive prevalency;

33 that even in this country,

34 where it made its first appearance,

35 Pennsylvania and North Carolina

36 are the only two States

37 by which it has been in any degree patronized;

38 and that all the others have refused

39 to give it the least countenance;

40 wisely judging that confidence

41 must be placed somewhere;

42 that the necessity of doing it,

43 is implied in the very act of delegating power;

44 and that it is better to hazard the abuse

45 of that confidence

46 than to embarrass the government

47 and endanger the public safety

48 by impolitic restrictions

49 on the legislative authority.

50The opponents of the proposed Constitution combat,

51 in this respect, the general decision of America;

52 and instead of being taught by experience

53 the propriety of correcting any extremes

54 into which we may have heretofore run,

55 they appear disposed to conduct us into others

56 still more dangerous, and more extravagant.

57As if the tone of government had been found too high,

58 or too rigid,

59 the doctrines they teach are calculated

60 to induce us to depress or to relax it,

61 by expedients which, upon other occasions,

62 have been condemned or forborne.

63It may be affirmed without the imputation of invective,

64 that if the principles they inculcate,

65 on various points,

66 could so far obtain

67 as to become the popular creed,

68 they would utterly unfit the people of this country

69 for any species of government whatever.

70But a danger of this kind is not to be apprehended.

71The citizens of America have too much discernment

72 to be argued into anarchy.

73And I am much mistaken,

74 if experience has not wrought

75 a deep and solemn conviction

76 in the public mind,

77 that greater energy of government

78 is essential to the welfare and prosperity

79 of the community.

80It may not be amiss in this place

81 concisely to remark the origin and progress

82 of the idea,

83 which aims at the exclusion

84 of military establishments

85 in time of peace.

86Though in speculative minds it may arise

87 from a contemplation of the nature and tendency

88 of such institutions,

89 fortified by the events

90 that have happened in other ages and countries,

91 yet as a national sentiment,

92 it must be traced to those habits of thinking

93 which we derive from the nation

94 from whom the inhabitants of these States

95 have in general sprung.

96In England, for a long time after the Norman Conquest,

97 the authority of the monarch was almost unlimited.

98Inroads were gradually made upon the prerogative,

99 in favor of liberty,

100 first by the barons, and afterwards by the people,

101 till the greatest part

102 of its most formidable pretensions

103 became extinct.

104But it was not till the revolution in 1688,

105 which elevated the Prince of Orange

106 to the throne of Great Britain,

107 that English liberty was completely triumphant.

108As incident to the undefined power of making war,

109 an acknowledged prerogative of the crown,

110 Charles II. had, by his own authority,

111 kept on foot in time of peace

112 a body of 5,000 regular troops.

113And this number James II. increased to 30,000;

114 who were paid out of his civil list.

115At the revolution,

116 to abolish the exercise of so dangerous an authority,

117 it became an article of the Bill of Rights then framed,

118 that "the raising or keeping a standing army

119 within the kingdom in time of peace,

120 UNLESS WITH THE CONSENT OF PARLIAMENT,

121 was against law."

122In that kingdom,

123 when the pulse of liberty was at its highest pitch,

124 no security against the danger of standing armies

125 was thought requisite,

126 beyond a prohibition of their being raised

127 or kept up

128 by the mere authority of the executive magistrate.

129The patriots, who effected that memorable revolution,

130 were too temperate, too wellinformed,

131 to think of any restraint

132 on the legislative discretion.

133They were aware that a certain number of troops

134 for guards and garrisons were indispensable;

135 that no precise bounds could be set

136 to the national exigencies;

137 that a power equal to every possible contingency

138 must exist somewhere in the government:

139 and that when they referred the exercise of that power

140 to the judgment of the legislature,

141 they had arrived at the ultimate point of precaution

142 which was reconcilable

143 with the safety of the community.

144From the same source,

145 the people of America may be said

146 to have derived an hereditary impression

147 of danger to liberty,

148 from standing armies in time of peace.

149The circumstances of a revolution

150 quickened the public sensibility

151 on every point connected

152 with the security of popular rights,

153 and in some instances raise the warmth of our zeal

154 beyond the degree

155 which consisted with the due temperature

156 of the body politic.

157The attempts of two of the States

158 to restrict the authority of the legislature

159 in the article of military establishments,

160 are of the number of these instances.

161The principles which had taught us

162 to be jealous of the power of an hereditary monarch

163 were by an injudicious excess extended

164 to the representatives of the people

165 in their popular assemblies.

166Even in some of the States,

167 where this error was not adopted,

168 we find unnecessary declarations

169 that standing armies ought not to be kept up,

170 in time of peace,

171 WITHOUT THE CONSENT OF THE LEGISLATURE.

172I call them unnecessary,

173 because the reason which had introduced

174 a similar provision

175 into the English Bill of Rights

176 is not applicable

177 to any of the State constitutions.

178The power of raising armies at all,

179 under those constitutions,

180 can by no construction be deemed

181 to reside anywhere else,

182 than in the legislatures themselves;

183 and it was superfluous, if not absurd,

184 to declare that a matter should not be done

185 without the consent of a body,

186 which alone had the power of doing it.

187Accordingly, in some of these constitutions,

188 and among others, in that of this State of New York,

189 which has been justly celebrated,

190 both in Europe and America,

191 as one of the best of the forms of government

192 established in this country,

193 there is a total silence upon the subject.

194It is remarkable,

195 that even in the two States

196 which seem to have meditated an interdiction

197 of military establishments in time of peace,

198 the mode of expression made use of

199 is rather cautionary than prohibitory.

200It is not said,

201 that standing armies SHALL NOT BE kept up,

202 but that they OUGHT NOT to be kept up,

203 in time of peace.

204This ambiguity of terms appears to have been the result

205 of a conflict between jealousy and conviction;

206 between the desire of excluding such establishments

207 at all events,

208 and the persuasion

209 that an absolute exclusion

210 would be unwise and unsafe.

211Can it be doubted that such a provision,

212 whenever the situation of public affairs

213 was understood to require a departure from it,

214 would be interpreted by the legislature

215 into a mere admonition,

216 and would be made to yield

217 to the necessities

218 or supposed necessities of the State?

219Let the fact already mentioned,

220 with respect to Pennsylvania, decide.

221What then (it may be asked)

222 is the use of such a provision,

223 if it cease to operate

224 the moment there is an inclination

225 to disregard it?

226Let us examine whether there be any comparison,

227 in point of efficacy,

228 between the provision alluded to

229 and that which is contained

230 in the new Constitution,

231 for restraining the appropriations of money

232 for military purposes

233 to the period of two years.

234The former, by aiming at too much,

235 is calculated to effect nothing;

236 the latter, by steering clear of an imprudent extreme,

237 and by being perfectly compatible

238 with a proper provision

239 for the exigencies of the nation,

240 will have a salutary and powerful operation.

241The legislature of the United States will be OBLIGED,

242 by this provision,

243 once at least in every two years,

244 to deliberate upon the propriety

245 of keeping a military force on foot;

246 to come to a new resolution on the point;

247 and to declare their sense of the matter,

248 by a formal vote

249 in the face of their constituents.

250They are not AT LIBERTY

251 to vest in the executive department

252 permanent funds for the support of an army,

253 if they were even incautious enough

254 to be willing to repose in it

255 so improper a confidence.

256As the spirit of party, in different degrees,

257 must be expected to infect all political bodies,

258 there will be, no doubt,

259 persons in the national legislature

260 willing enough to arraign the measures

261 and criminate the views of the majority.

262The provision for the support of a military force

263 will always be a favorable topic for declamation.

264As often as the question comes forward,

265 the public attention will be roused

266 and attracted to the subject,

267 by the party in opposition;

268 and if the majority should be really disposed

269 to exceed the proper limits,

270 the community will be warned of the danger,

271 and will have an opportunity of taking measures

272 to guard against it.

273Independent of parties

274 in the national legislature itself,

275 as often as the period of discussion arrived,

276 the State legislatures,

277 who will always be not only vigilant

278 but suspicious and jealous guardians

279 of the rights of the citizens

280 against encroachments

281 from the federal government,

282 will constantly have their attention awake

283 to the conduct of the national rulers,

284 and will be ready enough,

285 if any thing improper appears,

286 to sound the alarm to the people,

287 and not only to be the VOICE,

288 but, if necessary,

289 the ARM of their discontent.

290Schemes to subvert the liberties

291 of a great community

292 REQUIRE TIME to mature them for execution.

293An army, so large as seriously to menace those liberties,

294 could only be formed by progressive augmentations;

295 which would suppose,

296 not merely a temporary combination

297 between the legislature and executive,

298 but a continued conspiracy

299 for a series of time.

300Is it probable that such a combination

301 would exist at all?

302Is it probable that it would be persevered in,

303 and transmitted along

304 through all the successive variations

305 in a representative body,

306 which biennial elections would naturally produce

307 in both houses?

308Is it presumable,

309 that every man,

310 the instant he took his seat

311 in the national Senate

312 or House of Representatives,

313 would commence a traitor

314 to his constituents and to his country?

315Can it be supposed that there would not be found

316 one man, discerning enough

317 to detect so atrocious a conspiracy,

318 or bold or honest enough

319 to apprise his constituents of their danger?

320If such presumptions can fairly be made,

321 there ought at once to be an end

322 of all delegated authority.

323The people should resolve to recall all the powers

324 they have heretofore parted with

325 out of their own hands,

326 and to divide themselves into as many States

327 as there are counties,

328 in order that they may be able

329 to manage their own concerns in person.

330If such suppositions could even be reasonably made,

331 still the concealment of the design,

332 for any duration, would be impracticable.

333It would be announced,

334 by the very circumstance of augmenting the army

335 to so great an extent

336 in time of profound peace.

337What colorable reason could be assigned,

338 in a country so situated,

339 for such vast augmentations of the military force?

340It is impossible that the people

341 could be long deceived;

342 and the destruction of the project,

343 and of the projectors,

344 would quickly follow the discovery.

345It has been said

346 that the provision which limits the appropriation

347 of money for the support of an army

348 to the period of two years

349 would be unavailing,

350 because the Executive,

351 when once possessed of a force

352 large enough to awe the people into submission,

353 would find resources in that very force

354 sufficient to enable him

355 to dispense with supplies

356 from the acts of the legislature.

357But the question again recurs,

358 upon what pretense could he be put

359 in possession of a force of that magnitude

360 in time of peace?

361If we suppose it to have been created

362 in consequence of some domestic insurrection

363 or foreign war,

364 then it becomes a case

365 not within the principles of the objection;

366 for this is levelled against the power

367 of keeping up troops in time of peace.

368Few persons will be so visionary

369 as seriously to contend

370 that military forces ought not to be raised

371 to quell a rebellion or resist an invasion;

372 and if the defense of the community

373 under such circumstances

374 should make it necessary to have an army

375 so numerous as to hazard its liberty,

376 this is one of those calamaties

377 for which there is neither preventative nor cure.

378It cannot be provided against

379 by any possible form of government;

380 it might even result

381 from a simple league offensive and defensive,

382 if it should ever be necessary

383 for the confederates or allies

384 to form an army for common defense.

385But it is an evil infinitely less likely

386 to attend us in a united than in a disunited state;

387 nay, it may be safely asserted

388 that it is an evil altogether unlikely

389 to attend us in the latter situation.

390It is not easy to conceive a possibility

391 that dangers so formidable can assail the whole Union,

392 as to demand a force considerable enough

393 to place our liberties in the least jeopardy,

394 especially if we take into our view

395 the aid to be derived from the militia,

396 which ought always to be counted upon

397 as a valuable and powerful auxiliary.

398But in a state of disunion

399 (as has been fully shown in another place),

400 the contrary of this supposition would become

401 not only probable, but almost unavoidable.

402PUBLIUS.