FEDERALIST No. 26
The Idea of Restraining the Legislative Authority in
Regard to the Common Defense Considered
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 situ- ation 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 al-
most unavoidable.
Publius.
