Federalist No. 65 is an essay by Alexander Hamilton, the sixty-fifth of The Federalist Papers. It was published on March 7, 1788 under the pseudonym "Publius", the name under which all The Federalist papers were published. Titled "The Powers of the Senate Continued", it carries on a theme begun by John Jay in Federalist No. 64.
Overview
Publius begins by discussing the Senate's role as a "judiciary character" during the trial of impeachments. Federalist 65 is the only essay in the Federalist Papers that specifically delineates upon the Framer's intended use and purpose of the impeachment and removal power. The constitution defines the impeachable offences as "treason, bribery, or other high crimes and misdemeanors." The latter definition of "high crimes and misdemeanors" left ambiguity and room for interpretation within the realm of impeachment. Publius however goes on to designate the scope of impeachment to:
"The subject of jurisdiction are those offences which proceed from the misconduct of men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."
Because the accused offence is political in nature and in direct relation to the public trust, Publius explains that the unfortunate side-effect of impeachment will subsequently agitate the passions of the entire community and divide individuals into parties and factions. The inquiry into impeachment will thus become not entirely based upon the offence itself, but also on the pre-existing biases and personal interests of rival factions. Publius asserts that "...in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt." Looking retrospectively at previous impeachments or impeachment attempts, there does seem to truth to the fact that prior resentment and passion was a leading factor in the overall pursuit for impeachment. Publius then poses the question as to whether the Senate is the proper depository for such a power. He explains that the proposed model of dividing the vote of impeachment and the trial between the House of Representatives and the Senate was not the Constiutional Convention's original idea but rather was borrowed by the system in place in Britain's Parliament. In the British system, the House of Commons votes upon the call for impeachment and then if impeached, the trial takes place in the House of Lords. The system has been successful but Publius does continue by asking if this model is proper for our own proposed government. Ultimately Publius says that no other group is really capable for such a task. He states that, "What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?" Publius goes through other possible bodies that could act as a tribunal or jury. He states that the Supreme Court is an obvious choice for a trial, however upon his further inspection, he notes that the results of the trial could be contested by certain parties and that the Supreme Court, an unelected body, may not have the "degree of credit and authority" to settle any qualms brought on as a result of the trial. The Supreme Court also has only a small number of individuals; Publius states that the number of jurors must be high enough to prove without a doubt that an overwhelming number of individuals were convinced upon the guilt of the accused.
