"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