The allegation of the Second Article, put to vote on the 26th, and beaten by the same vote as was the Eleventh, was a corollary of the First-violation of the Tenure-of-Office Act in the appointment of General Thomas as Secretary of War ad interim, WITHOUT THE ADVICE AND CONSENT OF THE SENATE. This was the first declaration ever made in the Senate that an ad interim or merely temporary appointment to fill a vacancy, required confirmation by that body. The power to make such an appointment is so clearly possessed by the President without consultation of the Senate-had been so uniformly exercised by every preceding President without question, that argument on that point would be superfluous.
In reality the essence of the Second Article, as of the First, was the removal of Mr. Stanton. If the President could remove him without the consent of the Senate, which was clearly established in the debate in the conference by Messrs. Sherman and Howe, the way was clear for the appointment of an act interim Secretary, to the end that the office be filled until such time as the President would be prepared to refill the place with a Secretary on consultation with the Senate. That was the very thing he attempted to do on the 22nd of February, the day after Mr.
Stanton's removal, when he sent to the Senate the nomination of Thomas Ewing, Senior, to be Secretary of War, for the action of that body.
The Third Article was so closely analagous to the Second, that an analysis of it would be in the nature of repetition. If there were any distinctions between them, they were so finely drawn that they amounted simply to a distinction without a difference--a characteristic, indeed, of a large part of the eleven Articles of Impeachment--a characteristic so conspicuous that it was not deemed worth while by the majority to go further in their submission to the Court.
These three Articles--the Second, Third and Eleventh--being the only Articles of the entire list of eleven put to a vote, and having been taken up and passed upon out of their numerical but in the order of their supposed availability--must therefore be regarded as confessedly the strongest and most likely of the entire list to command the support of the Senate. They were selected and set out. for the test. That selection was equivalent to saying, "we put the Impeachment cause to test on these three Articles. If they fail, we have nothing more to offer."They were put to test and failed. They failed because of their innate weakness. Failed because they proved nothing. Failed because not a single allegation of the entire indictment was or could be proven or tortured into all impeachable offense. Not a remark made by the President or an act performed in all the long and bitter controversy that. had subsisted between himself and Congress could be brought nearer to the impeachment mark, in fact, few if any of them so near, as had been the every day rule in the House of Representatives during the previous two years in their treatment of the President. Yet nobody thought of impeaching members of the House for their every day personal vituperations against him.
Bill after bill had been offered in Congress, and law after law enacted, with apparently the sole purpose of hampering the Constitutional authority apparently functions of the President--even the assumption of Executive powers and judicial functions by Congress--the not remote purpose of which seemed to be his entrapment into some measure of resistance upon which could be based an indictment. The House seemed to be literally "lying in wait" for him, with traps set on every side for his ensnarement.
At last, after two years of this sort of scheming and impatient and anxious waiting, the opportunity seemed to have offered in the alleged violation of the Tenure-of-Office Act. The fosterers of the impeachment crusade, weary with their long vigil and growing desperate with every additional day's delay, clutched at the new turn of affairs like a drowning man at a floating straw, and with the avidity of a starved gudgeon at a painted fly.
It was not strange that this sort of diplomacy, developed and exposed as it was in the Senate, in spite of the unfair and partisan maneuvering of the prosecution to prevent it, should have reacted, and contributed to turn against the impeachment movement gentlemen who entered upon the investigation under oath to give Mr. Johnson a fair, non-partisan trial. The only surprise was that, after the exposure of the malignant partisan spirit that sat in judgment upon Mr. Johnson, and the utter and absolute failure to prove any violation of law on his part, but on the contrary, a determination to preserve from infringement the functions of his office and prevent a revolution from fundamental political forms by the absorption of the Executive authority by the legislative branch of the government--that even a majority, and more especially, that nearly two-thirds of the Senate, could have been found at the close in support of the Impeachment.
This record will serve to explain the omission to vote on the First Article--Messrs. Sherman and Howe being precluded from supporting it in consequence of the position taken by them in the controversy between the two Houses of Congress over the first section of the Tenure-of-Office Bill while that bill was pending, and to avoid defeat on the first vote taken, which was inevitable on that Article--and also to explain, so far as any explanation is possible, the zig-zag method of conducting the ballot--skipping all the first ten Articles and going down to the bottom of the list for the first vote, with the promise of then going back to the first Article and continuing to the end. but, instead, skipping that for the second time, and starting in again on the Second and then the Third.
