Taking on Theodore Roosevelt

by Harry Lembeck

  WHILE PRESIDENT ROOSEVELT WAS in Panama, talk began circulating quietly in officers’ clubs at army posts that insufficient attention had been paid to the officers’ actions at Fort Brown at the time of the shooting. Some said the delay in beginning an investigation, in particular not inspecting the soldiers’ rifles in time to reveal whether they had been fired, was a neglect of duty.9 The grumbling soon became public. One week after the election, the New York Times reported that the battalion's commanding officer, Major Charles Penrose, was almost certainly to be taken to court, and every other officer at the post was a potential defendant. Two days later it said the army was under “tremendous pressure” to do something.10 There things stood until December 5, the day before the Senate would approve the Foraker and Penrose resolutions, when Roosevelt told Taft he had made “a careful study” of Major Blocksom's report and of a letter from a former army officer named A. B. Nettleton. He was now uncertain the Black Battalion's officers “are or are not blamable.” He asked for a thorough investigation and report.11

  Major Blocksom's report by itself should not have raised any concern about the officers. His report defended their inattention before the shooting (“Who could imagine that American soldiers in a body would try to murder unoffending women and innocent children?”) and said Major Penrose did the right thing after the Evans assault by keeping the soldiers out of town and away from civilians. It may have been something Penrose did much later at Fort Reno that upset Roosevelt. As the battalion was discharged at Fort Reno, Penrose was reported to have told Gilchrist Stewart, “There goes the last of the best disciplined, best behaved and regulated battalion in the entire United States Army.” Stewart asked if this was for publication. “Yes, indeed, I would say that anywhere.” Stewart told it to the Washington Post, which published it on November 27, the day Roosevelt returned from Panama. The New York Times ran with the story that same day. On Thanksgiving Roosevelt would have read in the Post that morning that Penrose's statement had caused indignation at the War Department. “It was flagrantly insubordinate, and his court-martial would surely follow.” President Roosevelt may have seen this as a message to him.12

  The Nettleton letter more likely pricked Roosevelt's curiosity. Nettleton zeroed in on behaviors and practices uniquely military for which officers have the responsibility and in which the martinet Roosevelt would have an interest. Nettleton was “surprised by several facts relating to discipline,” amazed “that neither the commanding officer, the officer of the day, nor the officer of the guard should have known anything about the bloody event,” and “that the officer of the day…had undressed, gone to bed, and was sound asleep throughout the entire occurrence.”13

  Taft ordered wanted the general staff “at once” to confer with General Garlington, Major Blocksom and the “Judge-Advocate-General.”14 By including the army's senior lawyer and making the matter a priority, it was clear where this was going. Garlington, experienced in how the army operated, hedged. In the army problems roll from higher to lower ranks, and although he told the general staff he did not think that any criminal charge “would hold before any court,” he pointed to the man sent to Brownsville to investigate the original trouble. That would have been Major Augustus Blocksom. Blocksom stood his ground. Major Penrose may have made an “error in judgement” but not one of “intention or neglect,” and certainly none of the other officers “didn't do his full duty.” Less than a week later the general staff recommended courts-martial for Penrose and Captain Edgar Macklin, and in quick order, the judge advocate general agreed, Secretary Taft concurred, and Roosevelt noted, “Approved: Make the necessary order.” Total time between Roosevelt telling Loeb he had some concerns to Roosevelt's approval of court-martial: nine days.15 Roosevelt could show he was just as willing to go after white officers as black soldiers.

  ON SUNDAY, DECEMBER 1, Roosevelt had Loeb ask the War Department for precedents for the discharge of an entire battalion of soldiers. Knowing what Foraker was planning, he also ordered Blocksom to review Stewart's synopses of the testimony and evidence and come to Washington to meet him, and the next night Blocksom was on his way.16 Before leaving Texas Blocksom asked Mayor Frederick Combe and Captain William Kelly in Brownsville to forward him the papers and proofs he anticipated Roosevelt would want to see. Blocksom was learning how to play the game.17

  It seemed like a large part of the War Department was devoting itself to defending the discharges and had been since Taft tried to delay them.18 The effort continued into the next weekend. On Friday, Roosevelt made it to the Lodges’ for the dinner he had canceled on Monday. Brownsville was on the menu. Saturday he wondered why he still had not received the final Constitution League/Stewart Report.19 He had Loeb send a wire asking for it, and later that evening Gilchrist Stewart replied, “Telegram from Loeb received. Regret delay exceedingly.” He promised the report would be in Washington on Monday evening.20

  Stewart's reply came from Milholland's office in New York, where the two of them and other leaders of the Constitution League were meeting to get the report finished and sent to an impatient president (and to Foraker, who also was expecting it).21 The pressure on them to finish must have been intense. One reason no doubt was the effort that had to be made—ultimately without success—to clean it up. Forty years later, historian James Tinsley, who was sympathetic to the soldiers, would describe it as “hastily prepared[, reflecting] in part a bias and prejudice in favor of the Negro as strong as the bias of which it complained.”22 Calling it “hastily prepared” was an act of charity. It was an awful mess. There was a terrible inattention to detail. Jacob Frazier's name was spelled two ways in Affidavit L, “Fraser” and “Frazer,” and neither was correct.23 It was signed and notarized on November 24, 1906, but the notary's commission expired the previous June. In John M. Hill's affidavit (Affidavit M) the commission for the same notary was shown as unexpired. Both could not be right. Furthermore, on some affidavits the notary was shown as E. T. Barbour, and on others as E. J. Barbon.24 Wilbert Voshelle (Affidavit B) was not a soldier and not sent to Fort Reno, but according to his affidavit, that was where he signed it. Affidavit G was by twenty-five soldiers and not notarized for any of them. Affidavit H was from thirty-four soldiers but evidently signed by only one. Affidavit T was called a “general affidavit” and signed by thirty-five soldiers, but not one signature was notarized.25

  Before sending the wire to Roosevelt, Stewart and Milholland talked and probably decided it was not a good idea to go into these details.26 Who could blame them? In Stewart's defense, while he was working with the soldiers, they were either still in the army or discharged and away from Fort Reno. No one knows what sort of secretarial and stenographic help he might have had. Joe Smith, a friend of Milholland's and a Constitution League man, had been sent ahead to do the spade work, but he was the wrong man for the job.27 Most crucial, Stewart had three days, four at the most, to travel to Fort Reno, interview those of the 150 or more soldiers Smith and Barbour did not get to, put what they said into written statements, and have them signed and notarized. The rush was necessary to satisfy the demand for Stewart's new facts by Roosevelt returning from Panama and by Foraker returning to the Senate.

  AS CASUALLY AS THE affidavits were prepared, one might have expected an inferior presentation of the soldiers’ defense, but all in all it was good. As Professor Tinsley noted, Stewart laced it with the bias of an advocate, but that is what he was expected to do. That aside, it was well organized and well written and presented as a lawyer might argue in court for clients. He disputed the “prosecution's” facts and argued the soldiers had not had an opportunity to interpret them in a way that supported their innocence or to present their side of the story. (He was right. They had made statements to investigating army officers, but those did not reach Washington, DC, until the day General Garlington was told to go to Oklahoma; by then the army's and Roosevelt's minds were made up. They had concluded soldiers had been the shooters before any of their statements denying it
were looked at.28) Stewart pointed out the Brownsville residents’ bias cast doubt on their incriminating testimony; those who thought they saw soldiers only because the shooters wore khaki could have been mistaken since khaki was “the usual garb of numerous civilians”; some of the witnesses were unable to identify the shooters either as soldiers or as Negro, and this was just as meaningful as those who saw black soldiers; bullets and shells found on the streets and identified as army ammunition could have fit into “the rifle in common use in that part of Texas”; and, of course, the case had been prejudged by the investigators.29 But for Roosevelt, he needed to do more; he had to show facts disproving the soldiers were the shooters.

  Significantly the report omitted any discussion of the law or Roosevelt's authority to discharge the soldiers. That would be something Foraker would face shortly in the Senate, and by leaving it out Stewart may have been responding to a suggestion from Senator Foraker.

  ON DECEMBER 7 JOHN Milholland made a note in his diary that a meeting of the Constitution League in Philadelphia was “not a howling success.”30 There is no mention of the resolution approved at that meeting “respectfully” urging the Senate to investigate the Brownsville Incident. In New York on December 10, Andrew B. Humphrey, the Constitution League's secretary, signed Stewart's report (addressed to “The President” and prefaced with the resolution), and he and Stewart took it to Washington. Milholland would note with relief that the two were on their way.31 The next day at 5:00 p.m. Stewart handed it to William Loeb at the White House.32

  Roosevelt would have recognized the name of Andrew Humphrey; they went way back. To Roosevelt, Humphrey was another “goo-goo,” with his eyes on the stars and his feet in the air.33 Running for New York governor in 1900, Roosevelt promised the voters he would clean things up in Albany. After he was elected he directed his aim at the state's insurance department and its superintendent, Lou Payn. Payn, who later would admit he knew nothing about the insurance business when he was appointed (by Governor Roosevelt's predecessor), somehow obtained loans from insurance companies that inexplicably were not reported. He ran the department in a fairly relaxed manner and was said to have allowed one company to write its own annual report for the state's records rather than imposing on the department, which normally took care of it, and he received $200,000 for this gesture. Roosevelt the governor found it more difficult than Roosevelt the candidate thought it would be to ease Payn out of office, but with the assistance of Andrew Humphrey he did it. Some residual anxiety over how he accomplished it must have stayed with Roosevelt, and in June 1904, in the middle of that year's presidential election, he invited Payn to visit him at the White House, where the two of them and George Cortelyou, the chairman of the Republican National Committee, had a cordial discussion about old times. Payn evidently scratched whatever itch Roosevelt had, and when he left the meeting he told reporters, “I took occasion to assure the President that I was for him and should exert my influence to the limit for his election.”34

  In later years Humphrey would become active in the peace movement so generously supported by Andrew Carnegie, but like the “Cold War Warriors” of the Democratic Party in midcentury, most notably John F. Kennedy, he recognized that for the country's security from foreign threat, he had to plant his feet firmly on the ground. Shortly after World War I began, he joined with others to demand the United States start preparing for a war.35 On this issue, as with Lou Payn, he and Roosevelt stood together. On the matter of civil rights and black equality, Humphrey had none of Roosevelt's equivocations.

  SOMETHING IN THE STEWART Report bothered Roosevelt. Stewart's forceful arguments that none of the soldiers had done anything wrong were to Roosevelt naive and foolish, but he had known all along some of the men had to be innocent of any involvement, and now he wondered what to do about them. The Senate would wonder about this too, and giving these soldiers a way back into the army, no matter how difficult it might be, would make it easier to uphold the discharges of the others. It would be the right thing to do for more than one reason. It would be justice, of course. And some of the exonerated men might be more willing to identify the guilty ones. He decided it was a good idea to make a show of permitting reenlistment. He had Taft come up with a plan that allowed it but only after a soldier proved he was innocent. The burden of proof—some said an impossible burden—was settled on the soldiers.36

  THERE WERE TWO SEPARATE Stewart reports—one for the White House and the other for Congress. They were virtually identical and both included the Constitution League resolution. The one addressed to “The President” asked him for nothing. He was not asked to unwind Special Orders No. 266 or otherwise rescind the discharges. The “petition” to Congress asked for an investigation. It was as if Milholland and Stewart knew Stewart had failed to turn up new facts showing the soldiers’ innocence and were handing this task over to Congress. Reinstatement of the soldiers seemed to have been set aside by them for the time being. If asking Roosevelt for no relief was their indirect way of asking him to stand aside and allow the Senate to move ahead, they showed zero understanding of the man they were up against.

  WILLIAM LOEB IMMEDIATELY SENT Stewart's report to Secretary of War Taft with no instructions or other comment. He knew the efficient Taft would do his duty. Copies were sent to General Garlington and Major Blocksom, each of whom answered within a few days that they interpreted the evidence differently.37 This back and forth over what the evidence did or did not prove illustrates the red herring distracting anyone trying to figure out who was right in the Brownsville Incident. It should not have been the soldiers’ responsibility to prove anything. That was the government's burden, not to do so “conclusively,” as Roosevelt would later say in his message of December 19, 1906, but “beyond a reasonable doubt.” Gilchrist Stewart understood this. In his telegram of November 29, he tried to shift the burden back onto the army and President Roosevelt. He tried to make the point that President Roosevelt, acting as the prosecutor (and, though he didn't say it, judge, jury, and executioner), failed to meet this burden. In his report of December 10, he also tried to persuade Roosevelt that if the soldiers had any burden it was whether “there is fair reason to believe that the commotion on the night in question was created by parties not soldiers” (author's emphasis). Stewart said there was. Historians considering Brownsville have tended to think Roosevelt did not meet his proper burden of proof, and while Stewart did meet the one he set for himself, he should not have had to. President Roosevelt, however, did not see himself as a court of law, and he did not see these rules as applicable to the discharges.

  TWO DAYS LATER MAJOR Blocksom, pursuant to prior orders, was on the train to Washington to meet with President Roosevelt. With time on his hands and no distractions, he supplemented his response of December 4. He made note of Stewart's misspelling of the names of Privates Howard and Lipscomb and wondered how soldiers could have been shooters and still gotten back for the roll calls. “I never believed the first roll calls were accurate,” because officers and many noncommissioned officers thought principally of defending the post from attack and not taking roll.38 He also recounted the number of soldiers not at the roll call and came up with a slightly higher number (but not enough to match the number of shooters).

  Most important, whether he realized it or not, he lessened the burden for defending his recommendation of discharge. Discharge was justified for reasons of “public safety [rather] than punishment.”39 With such a lower and meaningless burden, he changed the game.

  “All I care for is an investigation of the whole affair, in order that the real facts may be laid before the Senate.”

  Senator Joseph Foraker, editorial in the

  New York Sun, January 22, 1907

  IT WAS CLEAR TO Senator Foraker that the December 6 resolutions weren't enough. Penrose's was weak, and Roosevelt could dodge its intent easily. His own was a fishing expedition for all information “in the possession of the [war] department,” but after plowing through it all,
then what? The word investigation was not in either of them. Roosevelt agreeing so quickly to abide by both showed he feared neither one.

  THE DAY AFTER FORAKER presented the Constitution League/Stewart Report to the Senate, President Roosevelt met with John C. Spooner of Wisconsin, who had told senators he liked Foraker's resolution over Penrose's. Spooner disliked Penrose's use of the word request because it was appropriate only when disclosure of information was potentially harmful to the public interest, something not present here.1 This did not mean he favored an investigation. He accepted the discharges because he felt Roosevelt had the authority to order them.

  Earlier in his career Spooner had championed the Negro right to vote. In 1890 he spoke strongly in favor of then-representative Henry Cabot Lodge's legislation to reduce Southern representation in Congress for denying voting rights to Negroes (a denial not so implicitly blessed by Booker T. Washington's Atlanta Compromise).2 “The guaranties of the Constitution and the majesty of the law are not for any race or class.”3 Historian James R. Parker characterized him as one who adopted and used the Republican “talk” of equality, but did very little to achieve it. Mostly his “talk” was used to score political points against the Democrats and not as a sincere and sustained effort to resolve the problem. When the party's interests were involved, as in Brownsville, the party came first.4 Spooner denied he was anything but genuine but admitted he was discouraged. “I took great interest…for years, until it seemed hopeless.”5