prohibition to the RAISING of armies in time of peace, the United
States would then exhibit the most extraordinary spectacle which the
world has yet seen, that of a nation incapacitated by its Constitution
to prepare for defense, before it was actually invaded. As the ceremony
of a formal denunciation of war has of late fallen into disuse, the
presence of an enemy within our territories must be waited for, as the
legal warrant to the government to begin its levies of men for the
protection of the State. We must receive the blow, before we could even
prepare to return it. All that kind of policy by which nations
anticipate distant danger, and meet the gathering storm, must be
abstained from, as contrary to the genuine maxims of a free government.
We must expose our property and liberty to the mercy of foreign
invaders, and invite them by our weakness to seize the naked and
defenseless prey, because we are afraid that rulers, created by our
choice, dependent on our will, might endanger that liberty, by an abuse
of the means necessary to its preservation.
Here I expect we shall be told that the militia of the country is its
natural bulwark, and would be at all times equal to the national
defense. This doctrine, in substance, had like to have lost us our
independence. It cost millions to the United States that might have
been saved. The facts which, from our own experience, forbid a reliance
of this kind, are too recent to permit us to be the dupes of such a
suggestion. The steady operations of war against a regular and
disciplined army can only be successfully conducted by a force of the
same kind. Considerations of economy, not less than of stability and
vigor, confirm this position. The American militia, in the course of
the late war, have, by their valor on numerous occasions, erected
eternal monuments to their fame; but the bravest of them feel and know
that the liberty of their country could not have been established by
their efforts alone, however great and valuable they were. War, like
most other things, is a science to be acquired and perfected by
diligence, by perserverance, by time, and by practice.
All violent policy, as it is contrary to the natural and experienced
course of human affairs, defeats itself. Pennsylvania, at this instant,
affords an example of the truth of this remark. The Bill of Rights of
that State declares that standing armies are dangerous to liberty, and
ought not to be kept up in time of peace. Pennsylvania, nevertheless,
in a time of profound peace, from the existence of partial disorders in
one or two of her counties, has resolved to raise a body of troops; and
in all probability will keep them up as long as there is any appearance
of danger to the public peace. The conduct of Massachusetts affords a
lesson on the same subject, though on different ground. That State
(without waiting for the sanction of Congress, as the articles of the
Confederation require) was compelled to raise troops to quell a
domestic insurrection, and still keeps a corps in pay to prevent a
revival of the spirit of revolt. The particular constitution of
Massachusetts opposed no obstacle to the measure; but the instance is
still of use to instruct us that cases are likely to occur under our
government, as well as under those of other nations, which will
sometimes render a military force in time of peace essential to the
security of the society, and that it is therefore improper in this
respect to control the legislative discretion. It also teaches us, in
its application to the United States, how little the rights of a feeble
government are likely to be respected, even by its own constituents.
And it teaches us, in addition to the rest, how unequal parchment
provisions are to a struggle with public necessity.
It was a fundamental maxim of the Lacedaemonian commonwealth, that the
post of admiral should not be conferred twice on the same person. The
Peloponnesian confederates, having suffered a severe defeat at sea from
the Athenians, demanded Lysander, who had before served with success in
that capacity, to command the combined fleets. The Lacedaemonians, to
gratify their allies, and yet preserve the semblance of an adherence to
their ancient institutions, had recourse to the flimsy subterfuge of
investing Lysander with the real power of admiral, under the nominal
title of vice-admiral. This instance is selected from among a multitude
that might be cited to confirm the truth already advanced and
illustrated by domestic examples; which is, that nations pay little
regard to rules and maxims calculated in their very nature to run
counter to the necessities of society. Wise politicians will be
cautious about fettering the government with restrictions that cannot
be observed, because they know that every breach of the fundamental
laws, though dictated by necessity, impairs that sacred reverence which
ought to be maintained in the breast of rulers towards the constitution
of a country, and forms a precedent for other breaches where the same
plea of necessity does not exist at all, or is less urgent and
palpable.
PUBLIUS.
THE FEDERALIST.
No. XXVI.
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.
No. XXVII.
The Same Subject Continued
(The Idea of Restraining the Legislative Authority in Regard to the
Common Defense Considered)
From the New York Packet.
Tuesday, December 25, 1787.
HAMILTON
To the People of the State of New York:
It has been urged, in different shapes, that a Constitution of the kind
proposed by the convention cannot operate without the aid of a military
force to execute its laws. This, however, like most other things that
have been alleged on that side, rests on mere general assertion,
unsupported by any precise or intelligible designation of the reasons
upon which it is founded. As far as I have been able to divine the
latent meaning of the objectors, it seems to originate in a
presupposition that the people will be disinclined to the exercise of
federal authority in any matter of an internal nature. Waiving any
exception that might be taken to the inaccuracy or inexplicitness of
the distinction between internal and external, let us inquire what
ground there is to presuppose that disinclination in the people. Unless
we presume at the same time that the powers of the general government
will be worse administered than those of the State government, there
seems to be no room for the presumption of ill-will, disaffection, or
opposition in the people. I believe it may be laid down as a general
rule that their confidence in and obedience to a government will
commonly be proportioned to the goodness or badness of its
administration. It must be admitted that there are exceptions to this
rule; but these exceptions depend so entirely on accidental causes,
that they cannot be considered as having any relation to the intrinsic
merits or demerits of a constitution. These can only be judged of by
general principles and maxims.
Various reasons have been suggested, in the course of these papers, to
induce a probability that the general government will be better
administered than the particular governments; the principal of which
reasons are that the extension of the spheres of election will present
a greater option, or latitude of choice, to the people; that through
the medium of the State legislatures which are select bodies of men,
and which are to appoint the members of the national Senate there is
reason to expect that this branch will generally be composed with
peculiar care and judgment; that these circumstances promise greater
knowledge and more extensive information in the national councils, and
that they will be less apt to be tainted by the spirit of faction, and
more out of the reach of those occasional ill-humors, or temporary
prejudices and propensities, which, in smaller societies, frequently
contaminate the public councils, beget injustice and oppression of a
part of the community, and engender schemes which, though they gratify
a momentary inclination or desire, terminate in general distress,
dissatisfaction, and disgust. Several additional reasons of
considerable force, to fortify that probability, will occur when we
come to survey, with a more critical eye, the interior structure of the
edifice which we are invited to erect. It will be sufficient here to
remark, that until satisfactory reasons can be assigned to justify an
opinion, that the federal government is likely to be administered in
such a manner as to render it odious or contemptible to the people,
there can be no reasonable foundation for the supposition that the laws
of the Union will meet with any greater obstruction from them, or will
stand in need of any other methods to enforce their execution, than the
laws of the particular members.
The hope of impunity is a strong incitement to sedition; the dread of
punishment, a proportionably strong discouragement to it. Will not the
government of the Union, which, if possessed of a due degree of power,
can call to its aid the collective resources of the whole Confederacy,
be more likely to repress the FORMER sentiment and to inspire the
LATTER, than that of a single State, which can only command the
resources within itself? A turbulent faction in a State may easily
suppose itself able to contend with the friends to the government in
that State; but it can hardly be so infatuated as to imagine itself a
match for the combined efforts of the Union. If this reflection be
just, there is less danger of resistance from irregular combinations of
individuals to the authority of the Confederacy than to that of a
single member.