To this Trumbull replied:
If the construction put by the Senator from Indiana upon the amendment be the true one, and we have merely taken from the master the power to control the slave and left him at the mercy of the state to be deprived of his civil rights, the trumpet of freedom that we have been blowing throughout the land has given an uncertain sound, and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the Constitutional amendment itself. With the destruction of slavery necessarily follows the destruction of the incidents of slavery. When slavery was abolished slave codes in its support were abolished also.
Those laws that prevented the colored man going from home, that did not allow him to buy or to sell, or to make contracts; that did not allow him to own property; that did not allow him to enforce rights; that did not allow him to be educated, were all badges of servitude made in the interest of slavery and as a part of slavery. They never would have been thought of or enacted anywhere but for slavery, and when slavery falls they fall also. The policy of the States where slavery has existed has been to legislate in its interest; and out of deference to slavery, which was tolerated by the Constitution of the United States, even some of the non-slaveholding states passed laws abridging the rights of the colored man which were restraints upon liberty. When slavery goes, all this system of legislation, devised in the interest of slavery and for the purpose of degrading the colored race, of keeping the negro in ignorance, of blotting out from his very soul the light of reason, if that were possible, that he might not think, but know only, like the ox, to labor, goes with it.
Now, when slavery no longer exists, the policy of the Government is to legislate in the interest of freedom. Now, our laws are to be enacted with a view to educate, improve, enlighten, and Christianize the negro; to make him an independent man; to teach him to think and to reason; to improve that principle which the Great Author of all has implanted in every human breast, which is susceptible of the highest cultivation, and destined to go on enlarging and expanding through the endless ages of eternity.
If in order to prevent slavery Congress deem it necessary to declare null and void all laws which will not permit the colored man to contract, which will not permit him to testify, which will not permit him to buy and sell, and to go where he pleases, it has the power to do so, and not only the power, but it becomes its duty to do so. That is what is provided to be done by this bill. Its provisions are temporary; but there is another bill on your table, somewhat akin to this, which is intended to be permanent, to extend to all parts of the country, and to protect persons of all races in equal civil rights.
I hope that the people of the rebellious states themselves will conform to the existing condition of things. I do not expect them to change all their opinions and prejudices. I do not expect them to rejoice that they have been discomfited. But they acknowledge that the war is over; they agree that they can no longer contend in arms against the Government; they say they are willing to submit to its authority; they say in their state conventions that slavery shall no more exist among them. With the abolition of slavery should go all the badges of servitude which have been enacted for its maintenance and support. Let them all be abolished. Let the people of the rebellious states now be as zealous and as active in the passage of laws and the inauguration of measures to elevate, develop, and improve the negro, as they have hitherto been to enslave and degrade him. Let them do justice and deal fairly with loyal Union men in their midst, and henceforth be themselves loyal, and this Congress will not have adjourned till the states whose inhabitants have been engaged in the rebellion will be restored to their former position in the Union, and we shall all be moving on in harmony together.[86]
In short, Trumbull held that it was for Congress to decide what rights might be established and enforced by federal law, in addition to that of emancipation. That this was to be a troublesome question was shown a little later by a colloquy between Trumbull and Henderson. The latter was of the opinion that the only sure way to protect the freedmen was to give them the right to vote. Trumbull thought that, for the present purpose of providing them with food, clothing, and shelter, Dr. Townsend's Sarsaparilla or any other patent medicine, would be as effectual as the right of suffrage.[87] Sumner, a little later, thought that the right to serve on juries and to hold office was among the essential securities of freedom, and Thaddeus Stevens thought that land-ownership also was necessary. What could be done under the second clause of the Thirteenth Amendment was the question, either expressed or implied, underlying the whole controversy on Reconstruction during the next ten years.
It was commonly believed that the President would approve the Freedmen's Bureau Bill; hence, when a veto message came, on the 19th of February, it was received with consternation by the Republicans in Congress. He held that the bill was both unconstitutional and inexpedient. It had been passed in the Senate by yeas 37, nays 10, every Republican voting for it and every Democrat against it. There were three absentees when the vote was taken: Cowan and Willey, Republicans, and Nesmith, Democrat. There was ample margin here for passing the bill over the veto, if the Republicans could hold together, but when the second vote was taken, February 20, the yeas were 30, and the nays 18, not two thirds. So the bill failed. Eight Republicans, Cowan, Dixon, Doolittle, Morgan, Norton, Stewart, Van Winkle, and Willey, had sided with the President. There were two absentees: Foot (Rep.), of Vermont, and Wright (Dem.), of New Jersey, both sick.
The question of negro suffrage had not yet become acute in public discussions. The state of public opinion in the North was fairly set forth by Dr. C. H. Ray in a private letter to Trumbull dated Chicago, February 7, thus:
If he [Johnson] will agree to your bill giving the freedmen the civil rights that the whites enjoy, and if he halts at that, and war is made on him because he will not go to the extent of negro suffrage, he will beat all who assail him. The party may be split, the Government may go out of Republican hands; but Andy Johnson will be cock-of-the-walk. The people, so far as I understand, are of the opinion that the war for the Union is over.... And as for the negro, they think that when he has the rights which your bill will give him, he must be contented to look upon the elective franchise as a something to be earned by giving evidence of his fitness therefor.
The excitement caused by the veto of the Freedmen's Bureau Bill was still further intensified by a struggle on a side issue, in which Trumbull took the leading part, and which involved the seat of the Democratic Senator Stockton, of New Jersey. He had been chosen by the Legislature of his state in joint meeting on March 15, 1865. The Democrats had a majority of five in the legislature, but had been unable, at first, to agree upon a candidate. Accordingly, the joint meeting, by a vote of 41 to 40, adopted a rule that any person receiving a plurality of the votes cast for Senator should be declared elected. In pursuance of this rule, a vote was taken by roll-call and John P. Stockton received 40 votes, John C. Ten Eyck received 37 votes, and there were 4 scattering, the total number being 81. Stockton was accordingly declared elected without objection, and the joint meeting adjourned sine die.
When Congress assembled in December, Stockton's certificate of election, in due form, was presented and he was sworn in. A protest, however, had been signed by all the Republican members of the New Jersey legislature and this was presented by Senator Cowan by request. It affirmed that Stockton had not received the votes of a majority of the members, as required by a law of the state. The protest and credentials were referred to the Committee on the Judiciary, which consisted of five Republicans (Trumbull, Harris, Clark, Poland, and Stewart) and one Democrat (Hendricks).
Trumbull, in behalf of the committee, reported that Stockton was duly elected and entitled to the seat. All the members concurred except Clark, of New Hampshire. Regarding the law of the state, which required a majority to elect, the report said that the state constitution denominated and recognized the two houses, either in joint session, or separately, as "The Legislature"; that the legislature, in either capacity, had the right to make its own rules; and that since a majority had voted for the plurality rule the subsequent action taken in pursuance of it was the act of the majority. There was room for an honest difference of opinion, since the enactment of a law required action by the two houses separately and a submission of the same to the governor. On this point, however, Trumbull quoted from "Story on the Constitution" to the effect that, since the governor had nothing to do with the choice of Senators, he was eliminated from consideration in any and all steps leading thereto.
It happened at this time that one Republican Senator, Foot, of Vermont, and one Democrat, Wright, of New Jersey, were absent by reason of serious illness. Wright had gone to his home in Newark for treatment, but, before going, had paired with Morrill, of Maine, on the question of his colleague's contested election. When the debate was drawing to a close, severe pressure was put upon Morrill by his radical friends in the Senate to declare his pair off, and to vote against Stockton. When the vote was taken, on concurring in the report of the Judiciary Committee, the yeas were 21 and the nays 20. Stockton himself had not voted. Twelve of the affirmative votes were Republicans. Before the result was announced, Senator Morrill, who had withheld his vote, asked the Secretary to call his name, and then voted in the negative, making a tie. Then Senator Stockton said that Morrill had been paired with his colleague on this question, and that Wright had told him before he went away that he would not go home at all without first obtaining a pair on this question. Under such circumstances he (Stockton) felt at liberty to vote in his own behalf. So he directed the Secretary to call his name and he voted in the affirmative. Morrill admitted that the pair had been made, but said that when it was made he had not contemplated that it would run so long (seven weeks), and that he therefore felt at liberty to vote. He added, with apparent satisfaction, that his vote did not change the result. This was true, but Stockton's vote did change it to his own disadvantage.