FEDERALIST No. 26



The Idea of Restraining the Legislative Authority in Regard to the

Common Defense Considered

For the Independent Journal.

Saturday, December 22, 1788



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