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.









THE FEDERALIST.