to discover, that neither the one nor the other was the case; that the
whole power of raising armies was lodged in the LEGISLATURE, not in the
EXECUTIVE; that this legislature was to be a popular body, consisting of
the representatives of the people periodically elected; and that instead
of the provision he had supposed in favor of standing armies, there was
to be found, in respect to this object, an important qualification
even of the legislative discretion, in that clause which forbids the
appropriation of money for the support of an army for any longer period
than two years a precaution which, upon a nearer view of it, will appear
to be a great and real security against the keeping up of troops without
evident necessity.
Disappointed in his first surmise, the person I have supposed would be
apt to pursue his conjectures a little further. He would naturally
say to himself, it is impossible that all this vehement and pathetic
declamation can be without some colorable pretext. It must needs be that
this people, so jealous of their liberties, have, in all the preceding
models of the constitutions which they have established, inserted the
most precise and rigid precautions on this point, the omission of which,
in the new plan, has given birth to all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the several
State constitutions, how great would be his disappointment to find that
TWO ONLY of them(1) contained an interdiction of standing armies in time
of peace; that the other eleven had either observed a profound silence
on the subject, or had in express terms admitted the right of the
Legislature to authorize their existence.
Still, however he would be persuaded that there must be some plausible
foundation for the cry raised on this head. He would never be able to
imagine, while any source of information remained unexplored, that it
was nothing more than an experiment upon the public credulity, dictated
either by a deliberate intention to deceive, or by the overflowings of
a zeal too intemperate to be ingenuous. It would probably occur to him,
that he would be likely to find the precautions he was in search of
in the primitive compact between the States. Here, at length, he would
expect to meet with a solution of the enigma. No doubt, he would observe
to himself, the existing Confederation must contain the most explicit
provisions against military establishments in time of peace; and a
departure from this model, in a favorite point, has occasioned the
discontent which appears to influence these political champions.
If he should now apply himself to a careful and critical survey of the
articles of Confederation, his astonishment would not only be increased,
but would acquire a mixture of indignation, at the unexpected discovery,
that these articles, instead of containing the prohibition he looked
for, and though they had, with jealous circumspection, restricted the
authority of the State legislatures in this particular, had not imposed
a single restraint on that of the United States. If he happened to be
a man of quick sensibility, or ardent temper, he could now no longer
refrain from regarding these clamors as the dishonest artifices of a
sinister and unprincipled opposition to a plan which ought at least to
receive a fair and candid examination from all sincere lovers of their
country! How else, he would say, could the authors of them have been
tempted to vent such loud censures upon that plan, about a point in
which it seems to have conformed itself to the general sense of America
as declared in its different forms of government, and in which it has
even superadded a new and powerful guard unknown to any of them? If,
on the contrary, he happened to be a man of calm and dispassionate
feelings, he would indulge a sigh for the frailty of human nature,
and would lament, that in a matter so interesting to the happiness
of millions, the true merits of the question should be perplexed
and entangled by expedients so unfriendly to an impartial and right
determination. Even such a man could hardly forbear remarking, that
a conduct of this kind has too much the appearance of an intention to
mislead the people by alarming their passions, rather than to convince
them by arguments addressed to their understandings.
But however little this objection may be countenanced, even by
precedents among ourselves, it may be satisfactory to take a nearer view
of its intrinsic merits. From a close examination it will appear that
restraints upon the discretion of the legislature in respect to military
establishments in time of peace, would be improper to be imposed, and
if imposed, from the necessities of society, would be unlikely to be
observed.
Though a wide ocean separates the United States from Europe, yet there
are various considerations that warn us against an excess of confidence
or security. On one side of us, and stretching far into our rear, are
growing settlements subject to the dominion of Britain. On the other
side, and extending to meet the British settlements, are colonies and
establishments subject to the dominion of Spain. This situation and the
vicinity of the West India Islands, belonging to these two powers create
between them, in respect to their American possessions and in relation
to us, a common interest. The savage tribes on our Western frontier
ought to be regarded as our natural enemies, their natural allies,
because they have most to fear from us, and most to hope from them.
The improvements in the art of navigation have, as to the facility of
communication, rendered distant nations, in a great measure, neighbors.
Britain and Spain are among the principal maritime powers of Europe. A
future concert of views between these nations ought not to be regarded
as improbable. The increasing remoteness of consanguinity is every day
diminishing the force of the family compact between France and Spain.
And politicians have ever with great reason considered the ties of
blood as feeble and precarious links of political connection.
These circumstances combined, admonish us not to be too sanguine in
considering ourselves as entirely out of the reach of danger.
Previous to the Revolution, and ever since the peace, there has been a
constant necessity for keeping small garrisons on our Western frontier.
No person can doubt that these will continue to be indispensable, if
it should only be against the ravages and depredations of the Indians.
These garrisons must either be furnished by occasional detachments from
the militia, or by permanent corps in the pay of the government. The
first is impracticable; and if practicable, would be pernicious. The
militia would not long, if at all, submit to be dragged from their
occupations and families to perform that most disagreeable duty in times
of profound peace. And if they could be prevailed upon or compelled to
do it, the increased expense of a frequent rotation of service, and
the loss of labor and disconcertion of the industrious pursuits of
individuals, would form conclusive objections to the scheme. It would
be as burdensome and injurious to the public as ruinous to private
citizens. The latter resource of permanent corps in the pay of the
government amounts to a standing army in time of peace; a small one,
indeed, but not the less real for being small. Here is a simple view of
the subject, that shows us at once the impropriety of a constitutional
interdiction of such establishments, and the necessity of leaving the
matter to the discretion and prudence of the legislature.
In proportion to our increase in strength, it is probable, nay, it may
be said certain, that Britain and Spain would augment their military
establishments in our neighborhood. If we should not be willing to be
exposed, in a naked and defenseless condition, to their insults and
encroachments, we should find it expedient to increase our frontier
garrisons in some ratio to the force by which our Western settlements
might be annoyed. There are, and will be, particular posts, the
possession of which will include the command of large districts of
territory, and facilitate future invasions of the remainder. It may be
added that some of those posts will be keys to the trade with the Indian
nations. Can any man think it would be wise to leave such posts in
a situation to be at any instant seized by one or the other of two
neighboring and formidable powers? To act this part would be to desert
all the usual maxims of prudence and policy.
If we mean to be a commercial people, or even to be secure on our
Atlantic side, we must endeavor, as soon as possible, to have a navy. To
this purpose there must be dock-yards and arsenals; and for the defense
of these, fortifications, and probably garrisons. When a nation has
become so powerful by sea that it can protect its dock-yards by its
fleets, this supersedes the necessity of garrisons for that purpose;
but where naval establishments are in their infancy, moderate garrisons
will, in all likelihood, be found an indispensable security against
descents for the destruction of the arsenals and dock-yards, and
sometimes of the fleet itself.
PUBLIUS
1 This statement of the matter is taken from the printed collection of
State constitutions. Pennsylvania and North Carolina are the two which
contain the interdiction in these words: "As standing armies in time of
peace are dangerous to liberty, THEY OUGHT NOT to be kept up." This
is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire,
Massachusetts, Delaware, and Maryland have, in each of their bills of
rights, a clause to this effect: "Standing armies are dangerous to
liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF
THE LEGISLATURE"; which is a formal admission of the authority of the
Legislature. New York has no bills of rights, and her constitution says
not a word about the matter. No bills of rights appear annexed to the
constitutions of the other States, except the foregoing, and their
constitutions are equally silent. I am told, however that one or two
States have bills of rights which do not appear in this collection; but
that those also recognize the right of the legislative authority in this
respect.
FEDERALIST No. 25
The Same Subject Continued (The Powers Necessary to the Common Defense
Further Considered)
From the New York Packet. Friday, December 21, 1787.
HAMILTON
To the People of the State of New York:
IT MAY perhaps be urged that the objects enumerated in the preceding
number ought to be provided for by the State governments, under the
direction of the Union. But this would be, in reality, an inversion
of the primary principle of our political association, as it would in
practice transfer the care of the common defense from the federal
head to the individual members: a project oppressive to some States,
dangerous to all, and baneful to the Confederacy.
The territories of Britain, Spain, and of the Indian nations in our
neighborhood do not border on particular States, but encircle the Union
from Maine to Georgia. The danger, though in different degrees, is
therefore common. And the means of guarding against it ought, in like
manner, to be the objects of common councils and of a common treasury.
It happens that some States, from local situation, are more directly
exposed. New York is of this class. Upon the plan of separate
provisions, New York would have to sustain the whole weight of the
establishments requisite to her immediate safety, and to the mediate or
ultimate protection of her neighbors. This would neither be equitable as
it respected New York nor safe as it respected the other States. Various
inconveniences would attend such a system. The States, to whose lot it
might fall to support the necessary establishments, would be as little
able as willing, for a considerable time to come, to bear the burden of
competent provisions. The security of all would thus be subjected to
the parsimony, improvidence, or inability of a part. If the resources of
such part becoming more abundant and extensive, its provisions should be
proportionally enlarged, the other States would quickly take the alarm
at seeing the whole military force of the Union in the hands of two or
three of its members, and those probably amongst the most powerful. They
would each choose to have some counterpoise, and pretenses could easily
be contrived. In this situation, military establishments, nourished by
mutual jealousy, would be apt to swell beyond their natural or proper
size; and being at the separate disposal of the members, they would be
engines for the abridgment or demolition of the national authority.
Reasons have been already given to induce a supposition that the State
governments will too naturally be prone to a rivalship with that of the
Union, the foundation of which will be the love of power; and that in
any contest between the federal head and one of its members the people
will be most apt to unite with their local government. If, in addition
to this immense advantage, the ambition of the members should be
stimulated by the separate and independent possession of military
forces, it would afford too strong a temptation and too great a
facility to them to make enterprises upon, and finally to subvert, the
constitutional authority of the Union. On the other hand, the liberty of
the people would be less safe in this state of things than in that which
left the national forces in the hands of the national government. As
far as an army may be considered as a dangerous weapon of power, it
had better be in those hands of which the people are most likely to be
jealous than in those of which they are least likely to be jealous.
For it is a truth, which the experience of ages has attested, that the
people are always most in danger when the means of injuring their
rights are in the possession of those of whom they entertain the least
suspicion.
The framers of the existing Confederation, fully aware of the danger to
the Union from the separate possession of military forces by the States,
have, in express terms, prohibited them from having either ships or
troops, unless with the consent of Congress. The truth is, that the
existence of a federal government and military establishments under
State authority are not less at variance with each other than a
due supply of the federal treasury and the system of quotas and
requisitions.
There are other lights besides those already taken notice of, in
which the impropriety of restraints on the discretion of the national
legislature will be equally manifest. The design of the objection, which
has been mentioned, is to preclude standing armies in time of
peace, though we have never been informed how far it is designed the
prohibition should extend; whether to raising armies as well as to
KEEPING THEM UP in a season of tranquillity or not. If it be confined
to the latter it will have no precise signification, and it will be
ineffectual for the purpose intended. When armies are once raised what
shall be denominated "keeping them up," contrary to the sense of the
Constitution? What time shall be requisite to ascertain the violation?
Shall it be a week, a month, a year? Or shall we say they may be
continued as long as the danger which occasioned their being raised
continues? This would be to admit that they might be kept up IN TIME OF
PEACE, against threatening or impending danger, which would be at once
to deviate from the literal meaning of the prohibition, and to
introduce an extensive latitude of construction. Who shall judge of the
continuance of the danger? This must undoubtedly be submitted to the
national government, and the matter would then be brought to this issue,
that the national government, to provide against apprehended danger,
might in the first instance raise troops, and might afterwards keep them
on foot as long as they supposed the peace or safety of the community
was in any degree of jeopardy. It is easy to perceive that a discretion
so latitudinary as this would afford ample room for eluding the force of
the provision.
The supposed utility of a provision of this kind can only be founded
on the supposed probability, or at least possibility, of a combination
between the executive and the legislative, in some scheme of usurpation.
Should this at any time happen, how easy would it be to fabricate
pretenses of approaching danger! Indian hostilities, instigated by Spain
or Britain, would always be at hand. Provocations to produce the desired
appearances might even be given to some foreign power, and appeased
again by timely concessions. If we can reasonably presume such a
combination to have been formed, and that the enterprise is warranted
by a sufficient prospect of success, the army, when once raised, from
whatever cause, or on whatever pretext, may be applied to the execution
of the project.
If, to obviate this consequence, it should be resolved to extend the
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
perseverance, 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
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.