FEDERALIST No. 26

The Idea of Restraining the Legislative Authority in Regard to the

Common Defense Considered

For the Independent Journal.

HAMILTON

To the People of the State of New York:

IT WAS a thing hardly to be expected that in a popular

revolution the minds of men should stop at that happy mean which

marks the salutary boundary between POWER and PRIVILEGE, and

combines the energy of government with the security of private

rights. A failure in this delicate and important point is the great

source of the inconveniences we experience, and if we are not

cautious to avoid a repetition of the error, in our future attempts

to rectify and ameliorate our system, we may travel from one

chimerical project to another; we may try change after change; but

we shall never be likely to make any material change for the better.

The idea of restraining the legislative authority, in the means

of providing for the national defense, is one of those refinements

which owe their origin to a zeal for liberty more ardent than

enlightened. We have seen, however, that it has not had thus far an

extensive prevalency; that even in this country, where it made its

first appearance, Pennsylvania and North Carolina are the only two

States by which it has been in any degree patronized; and that all

the others have refused to give it the least countenance; wisely

judging that confidence must be placed somewhere; that the

necessity of doing it, is implied in the very act of delegating

power; and that it is better to hazard the abuse of that confidence

than to embarrass the government and endanger the public safety by

impolitic restrictions on the legislative authority. The opponents

of the proposed Constitution combat, in this respect, the general

decision of America; and instead of being taught by experience the

propriety of correcting any extremes into which we may have

heretofore run, they appear disposed to conduct us into others still

more dangerous, and more extravagant. As if the tone of government

had been found too high, or too rigid, the doctrines they teach are

calculated to induce us to depress or to relax it, by expedients

which, upon other occasions, have been condemned or forborne. It

may be affirmed without the imputation of invective, that if the

principles they inculcate, on various points, could so far obtain as

to become the popular creed, they would utterly unfit the people of

this country for any species of government whatever. But a danger

of this kind is not to be apprehended. The citizens of America have

too much discernment to be argued into anarchy. And I am much

mistaken, if experience has not wrought a deep and solemn conviction

in the public mind, that greater energy of government is essential

to the welfare and prosperity of the community.

It may not be amiss in this place concisely to remark the origin

and progress of the idea, which aims at the exclusion of military

establishments in time of peace. Though in speculative minds it may

arise from a contemplation of the nature and tendency of such

institutions, fortified by the events that have happened in other

ages and countries, yet as a national sentiment, it must be traced

to those habits of thinking which we derive from the nation from

whom the inhabitants of these States have in general sprung.

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

authority of the monarch was almost unlimited. Inroads were

gradually made upon the prerogative, in favor of liberty, first by

the barons, and afterwards by the people, till the greatest part of

its most formidable pretensions became extinct. But it was not till

the revolution in 1688, which elevated the Prince of Orange to the

throne of Great Britain, that English liberty was completely

triumphant. As incident to the undefined power of making war, an

acknowledged prerogative of the crown, Charles II. had, by his own

authority, kept on foot in time of peace a body of 5,000 regular

troops. And this number James II. increased to 30,000; who were

paid out of his civil list. At the revolution, to abolish the

exercise of so dangerous an authority, it became an article of the

Bill of Rights then framed, that ``the raising or keeping a standing

army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF

PARLIAMENT, was against law.''

In that kingdom, when the pulse of liberty was at its highest

pitch, no security against the danger of standing armies was thought

requisite, beyond a prohibition of their being raised or kept up by

the mere authority of the executive magistrate. The patriots, who

effected that memorable revolution, were too temperate, too

wellinformed, to think of any restraint on the legislative

discretion. They were aware that a certain number of troops for

guards and garrisons were indispensable; that no precise bounds

could be set to the national exigencies; that a power equal to

every possible contingency must exist somewhere in the government:

and that when they referred the exercise of that power to the

judgment of the legislature, they had arrived at the ultimate point

of precaution which was reconcilable with the safety of the

community.

From the same source, the people of America may be said to have

derived an hereditary impression of danger to liberty, from standing

armies in time of peace. The circumstances of a revolution

quickened the public sensibility on every point connected with the

security of popular rights, and in some instances raise the warmth

of our zeal beyond the degree which consisted with the due

temperature of the body politic. The attempts of two of the States

to restrict the authority of the legislature in the article of

military establishments, are of the number of these instances. The

principles which had taught us to be jealous of the power of an

hereditary monarch were by an injudicious excess extended to the

representatives of the people in their popular assemblies. Even in

some of the States, where this error was not adopted, we find

unnecessary declarations that standing armies ought not to be kept

up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I

call them unnecessary, because the reason which had introduced a

similar provision into the English Bill of Rights is not applicable

to any of the State constitutions. The power of raising armies at

all, under those constitutions, can by no construction be deemed to

reside anywhere else, than in the legislatures themselves; and it

was superfluous, if not absurd, to declare that a matter should not

be done without the consent of a body, which alone had the power of

doing it. Accordingly, in some of these constitutions, and among

others, in that of this State of New York, which has been justly

celebrated, both in Europe and America, as one of the best of the

forms of government established in this country, there is a total

silence upon the subject.

It is remarkable, that even in the two States which seem to have

meditated an interdiction of military establishments in time of

peace, the mode of expression made use of is rather cautionary than

prohibitory. It is not said, that standing armies SHALL NOT BE kept

up, but that they OUGHT NOT to be kept up, in time of peace. This

ambiguity of terms appears to have been the result of a conflict

between jealousy and conviction; between the desire of excluding

such establishments at all events, and the persuasion that an

absolute exclusion would be unwise and unsafe.

Can it be doubted that such a provision, whenever the situation

of public affairs was understood to require a departure from it,

would be interpreted by the legislature into a mere admonition, and

would be made to yield to the necessities or supposed necessities of

the State? Let the fact already mentioned, with respect to

Pennsylvania, decide. What then (it may be asked) is the use of

such a provision, if it cease to operate the moment there is an

inclination to disregard it?

Let us examine whether there be any comparison, in point of

efficacy, between the provision alluded to and that which is

contained in the new Constitution, for restraining the

appropriations of money for military purposes to the period of two

years. The former, by aiming at too much, is calculated to effect

nothing; the latter, by steering clear of an imprudent extreme, and

by being perfectly compatible with a proper provision for the

exigencies of the nation, will have a salutary and powerful

operation.

The legislature of the United States will be OBLIGED, by this

provision, once at least in every two years, to deliberate upon the

propriety of keeping a military force on foot; to come to a new

resolution on the point; and to declare their sense of the matter,

by a formal vote in the face of their constituents. They are not AT

LIBERTY to vest in the executive department permanent funds for the

support of an army, if they were even incautious enough to be

willing to repose in it so improper a confidence. As the spirit of

party, in different degrees, must be expected to infect all

political bodies, there will be, no doubt, persons in the national

legislature willing enough to arraign the measures and criminate the

views of the majority. The provision for the support of a military

force will always be a favorable topic for declamation. As often as

the question comes forward, the public attention will be roused and

attracted to the subject, by the party in opposition; and if the

majority should be really disposed to exceed the proper limits, the

community will be warned of the danger, and will have an opportunity

of taking measures to guard against it. Independent of parties in

the national legislature itself, as often as the period of

discussion arrived, the State legislatures, who will always be not

only vigilant but suspicious and jealous guardians of the rights of

the citizens against encroachments from the federal government, will

constantly have their attention awake to the conduct of the national

rulers, and will be ready enough, if any thing improper appears, to

sound the alarm to the people, and not only to be the VOICE, but, if

necessary, the ARM of their discontent.

Schemes to subvert the liberties of a great community REQUIRE

TIME to mature them for execution. An army, so large as seriously

to menace those liberties, could only be formed by progressive

augmentations; which would suppose, not merely a temporary

combination between the legislature and executive, but a continued

conspiracy for a series of time. Is it probable that such a

combination would exist at all? Is it probable that it would be

persevered in, and transmitted along through all the successive

variations in a representative body, which biennial elections would

naturally produce in both houses? Is it presumable, that every man,

the instant he took his seat in the national Senate or House of

Representatives, would commence a traitor to his constituents and to

his country? Can it be supposed that there would not be found one

man, discerning enough to detect so atrocious a conspiracy, or bold

or honest enough to apprise his constituents of their danger? If

such presumptions can fairly be made, there ought at once to be an

end of all delegated authority. The people should resolve to recall

all the powers they have heretofore parted with out of their own

hands, and to divide themselves into as many States as there are

counties, in order that they may be able to manage their own

concerns in person.

If such suppositions could even be reasonably made, still the

concealment of the design, for any duration, would be impracticable.

It would be announced, by the very circumstance of augmenting the

army to so great an extent in time of profound peace. What

colorable reason could be assigned, in a country so situated, for

such vast augmentations of the military force? It is impossible

that the people could be long deceived; and the destruction of the

project, and of the projectors, would quickly follow the discovery.

It has been said that the provision which limits the

appropriation of money for the support of an army to the period of

two years would be unavailing, because the Executive, when once

possessed of a force large enough to awe the people into submission,

would find resources in that very force sufficient to enable him to

dispense with supplies from the acts of the legislature. But the

question again recurs, upon what pretense could he be put in

possession of a force of that magnitude in time of peace? If we

suppose it to have been created in consequence of some domestic

insurrection or foreign war, then it becomes a case not within the

principles of the objection; for this is levelled against the power

of keeping up troops in time of peace. Few persons will be so

visionary as seriously to contend that military forces ought not to

be raised to quell a rebellion or resist an invasion; and if the

defense of the community under such circumstances should make it

necessary to have an army so numerous as to hazard its liberty, this

is one of those calamaties for which there is neither preventative

nor cure. It cannot be provided against by any possible form of

government; it might even result from a simple league offensive and

defensive, if it should ever be necessary for the confederates or

allies to form an army for common defense.

But it is an evil infinitely less likely to attend us in a

united than in a disunited state; nay, it may be safely asserted

that it is an evil altogether unlikely to attend us in the latter

situation. It is not easy to conceive a possibility that dangers so

formidable can assail the whole Union, as to demand a force

considerable enough to place our liberties in the least jeopardy,

especially if we take into our view the aid to be derived from the

militia, which ought always to be counted upon as a valuable and

powerful auxiliary. But in a state of disunion (as has been fully

shown in another place), the contrary of this supposition would

become not only probable, but almost unavoidable.

PUBLIUS.