Taking on Theodore Roosevelt

by Harry Lembeck

  Another problem aside from illegal fencing was illegal acquisition of land. The enormity of the fraud was spelled out by Democratic senator James H. Berry of Arkansas: “I wish to say that in my judgment there have been millions of acres of public land secured under the law by fraudulent acts of persons.”15 The Desert Land Act made 640 acres available for ownership if a settler lived on it for three years and showed an effort to irrigate it. In November 1884 Warren acquired a parcel swearing that he had lived continuously on it for the three years. A former associate justice of the territorial supreme court pointed out that Warren actually had been living in Cheyenne and was a member of its city council. (It didn't matter; his ownership stood.)

  Warren was alleged to be involved up to his neck in the illegal acquisition of government land. Economics professor Benjamin Hibbard cites a newspaper article from 1904 stating Warren's companies acquired 125,000 acres using his employees as straw men.16 Warren was indignant. “There has been fraud ever since there have been land laws, and there always will be…. Things have come to a pretty pass when it is assumed…that every man…must be considered a thief until he has proved himself innocent [and] must live on a homestead all of his natural life before he can be recognized as an honest man.”17

  Secretary of the Interior Ethan Allen Hitchcock had enough of this and ordered an investigation aimed at Warren and others in Wyoming.18 It finished just as Warren's colleague from Ohio, Joseph Foraker, was taking aim at Roosevelt's actions in Brownsville.

  IN MARCH 1903 PRESIDENT Roosevelt toured the western states and spent two nights as a guest at a Warren ranch near Cheyenne. On the way, the two men left the train at Laramie and rode the last fifty-six miles on horseback.19 They sized each other up as their mounts trotted over land Warren later would be accused by Roosevelt's Interior Department of illegally fencing. Warren hoped Roosevelt would see for himself just what the territory was like and understand how badly ranchers needed to graze on it and how they might go about it. A few years later, as Secretary Hitchcock finished the investigation of Senator Warren's sheep grazing, fencing, and land acquisition and Senator Warren prepared to investigate the dismissals of the black soldiers, President Roosevelt and Senator Warren would remember this. Hitchcock, whom Roosevelt inherited from President McKinley, ran the Interior Department the way Roosevelt had run the Civil Service Commission: without concern for toes that might be stepped on, with little interest in bruised feelings, and with practically no allowance for misconduct. In 1901 Hitchcock curtly refused a “request” from Senator Mark Hanna, the man who got President McKinley into the White House, to remove a special inspector to make room for a man Hanna wanted. “I have not the slightest idea of removing [the man]. He has demonstrated his entire fitness for the office, during the last four years, and in the interest of the public service, he will be retained.”20 Five years later, when Hitchcock was hounding him, Warren would write Hitchcock had “gone from radical to wild, and from wild to crazy.”21

  As with most people who exhibited personality traits too much like his own, Roosevelt was uncomfortable with Hitchcock, and inevitably they got on each other's nerves. Hitchcock suggested Roosevelt's 1905 special message to Congress say, “The failure of justice to prevail in certain cases of violations of the law [is] due to lack of proper qualifications on the part of officers of the Government charged with the enforcement of the law. This [is the result of] selecting people for positions requiring confirmation by the Senate principally because they have rendered some political service.” Roosevelt almost fell out of his chair and wrote back that this was like saying, “Men appointed by me in your Department are chosen in accordance with a policy which is against the interests of the Government, without regard to [their] fitness,” and “implies the greatest dereliction of duty either in you or in me” (author's emphasis).22 He ignored the recommendation.

  SECRETARY HITCHCOCK SENT SPECIAL Investigator E. B. Linnen, one of his “ablest” inspectors, to investigate illegal fencing in Wyoming and Colorado.23 The target was Senator Francis Warren.24 Linnen's report, after almost nine months of digging into allegations and collecting evidence and sworn statements, damned Warren's company for illegally fencing 46,330 acres of federal land in Wyoming and another 1,120 acres in Colorado.25 Even harsher allegations were made. “Persons who have settled on lands within enclosures have been harassed by stockmen and their employees and agents; their stock has been driven off; their pastures eaten out by the stockmen's sheep and cattle; their fences cut; windows broken in their houses. They have been threatened and intimidated and everything has been done…to make it uncomfortable and a hardship for such settlers…to continue to live there. There is at this point a strong coterie of politicians with Senator Warren at its head…. It seems unlikely that honest prosecutions can be had.”26 Warren knew what it said before it was released by Hitchcock; what had been for many years an annoyance was about to blow up in his face. Along with the federal land violations, he might face charges of corrupting federal officials to overlook what he had done—and still was doing.27 He wasted no time turning to the onetime rancher who rode with him in Wyoming and was now in the White House. On October 4 he told Roosevelt that a leak from Hitchcock criticizing his position on the Oklahoma statehood bill showed Hitchcock was on a witch hunt against him. The next day he asked that Hitchcock not release any public statements about the Wyoming matters until he (Warren) had a chance to reply to them.28 Warren warned the request was “for my protection and for the honor and credit of your administration” (author's emphasis). The day after that, President Roosevelt told Secretary Hitchcock to do as Warren asked.29 “No publication of these facts should be made until they are submitted to me…. I desire you to take particular pains to see that not an allusion of any kind is allowed to get out…until I authorize whatever action is taken.” For posterity Roosevelt added, “My one object is to have any investigation into any alleged misconduct thoro and impartial and I care not a rap whether the man hit be Democrat or Republican, Senator or private citizen.”30 In a second letter Roosevelt again engaged in a bit of future historical revisionism, “Let me emphasize, what should surely need no emphasis, that my aim in this matter is not to shield any man,” but nevertheless again cautioned Hitchcock, “Until the matter is submitted to me no hint of it should be allowed to escape.”31

  Roosevelt had been putting his own pressure on Hitchcock. He had known what ranchers were doing but hoped they would remove the illegal fences on their own. Hitchcock's quest could reveal his naivety, but Roosevelt still hoped prosecution could be avoided.32 Since any misstep in the Linnen investigations and subsequent enforcement might be a reason to quash them, on October 9 he wrote Hitchcock, “I should like you to give me a list of all the notices sent to the offending parties to remove their fences…the date of the request for removal in each case, and…what was done by the offending fence-owner in response…. I only want this for the State of Wyoming and of course only for the last few years. If no notice was sent I should like to know the names of the officials of your Department whose business it was to send them and who thus failed in their duty, and what excuse they have to give, and what their position now is.”33

  Roosevelt's Hitchcock fatigue was obvious to General Land Office Commissioner (and former Wyoming governor) W. A. Richards, a member in good standing of the Warren Machine, whose honesty was questioned in the Linnen Report. After a midnight meeting with Roosevelt he wrote to Warren, “I came away with the very strong conviction that your judgment [that after elections something might happen with Hitchcock] was correct”34 (Richards’ emphasis).

  TWO DAYS AFTER THE off-year elections and the disclosure of Special Orders No. 266 discharging the Brownsville soldiers, Senator Joseph Foraker no doubt read in the Cincinnati Enquirer, “The Secretary of the Interior, Mr. Hitchcock, has informed the President that he would be unable to stay after March 4 [1907].”35 The New York Tribune that day carried the same report, although it implied it was Hitchcock's idea t
hat James R. Garfield replace him at the Interior Department and President Roosevelt agreed.36

  In White House meetings on Monday and Wednesday, sandwiching election day, Roosevelt yielded to Warren's pressure to be rid of the unbendable Hitchcock and to his own exasperation with him. He asked for his resignation. Hitchcock would stay until March to see that his investigations into Wyoming land acquisitions and fencing were irreversibly on a path to cleaning things up and prosecuting offenders.37 Roosevelt finally was acting against the illegal fencing.38

  Warren agreed to remove his fences, and Roosevelt gave him time to get them down. Roosevelt would see that Hitchcock would not turn his attention back to Warren in his last four months as secretary, and during that time Warren would not backslide on his obligations nor would Hitchcock have reason to think he was.39 After Hitchcock left office, Roosevelt would protect Warren against further difficulties with Garfield. The terms of the Roosevelt-Warren agreement took another month to iron out, but the parties shook hands in time for Roosevelt to leave for Panama.

  ON NOVEMBER 30 SECRETARY Hitchcock sent the accusing Linnen Report to President Roosevelt and said he agreed with its conclusions. The White House passed it on to Senator Warren for “any comment he may desire.”40 On December 10, in a letter to W. W. Gleason, his man back in Cheyenne, Warren wrote of his agreement with Roosevelt. “I wish you would keep this letter under lock and key…. I do not wish to betray the confidences of the President.” He instructed Gleason to check certain fencing. “You must go over and pull a lot of it down.”41 As for the damning Linnen Report, Roosevelt had said to Warren, “It is understood, of course, between us, that…your company has requested that [a new investigation] be made later on. [Meanwhile, we] have got to shift along with Hitchcock some way until the fourth of March.” Warren asked that Hitchcock be “let out at once,” and Roosevelt replied it was not worth “the blood and thunder. Later on, about April first maybe, we will have your matter looked over as per your request.” Warren had made it clear, “I want a clean, new, fresh deal.” Roosevelt told him, “You shall have it.”42

  Warren got his “clean, new, fresh” examination. On July 11, 1907, he received notice that the examination had found no “illegal enclosures,”43 and he and his company were “absolutely cleared” of unlawfully enclosing “Government lands” and could ignore the previous order to remove fences. Alerted to this good news, the day before he wrote Secretary Garfield to say he made good on what he always said, “Warren Live Stock Company has not an acre of land illegally inclosed.”44

  WHILE WAITING FOR HITCHCOCK to leave, President Roosevelt had to alternatively scold him to see he did not wander off the reservation and coddle him to keep him quiet. On the evening James Garfield became Interior Department secretary, he and his wife were dinner guests at the Hitchcocks’ home.45 Hitchcock had no hard feelings.

  ON FEBRUARY 4, 1907, Senator Warren, firmly in charge of the Senate's investigation of President Roosevelt and the soldiers of the Twenty-Fifth Infantry, his land irregularities satisfactorily dealt with, gaveled his committee to order.

  “I am perfectly satisfied that no man in the Battalion fired a shot.”

  Senator Joseph Foraker in a letter to

  Lieutenant Colonel Edwin F. Glenn,

  defense counsel for Major Charles Penrose,

  February 7, 1907

  AT 10:30 A.M., MONDAY, February 4, 1907, Senator Francis E. Warren brought the Senate Military Affairs Committee to order to begin its investigation of the Brownsville Incident. Over the next thirteen months—with a four-month break in the summer and fall of 1907—its members heard testimony from soldiers, civilians, investigators, and experts; read testimony from other hearings and trials; ordered sophisticated testing of rifles and other weapons, bullets, and shells found on the ground in Brownsville or dug out of walls, rooms, and trees; and endlessly discussed their differences. Its transcripts without exhibits are 3,411 pages long. When the committee issued its reports on March 11, 1908, nine senators—half its Republicans and all its Democrats—supported President Roosevelt's discharges.1 In his memoirs Foraker would write, “All of [the Democrats on the committee] were against the Negroes before a word of testimony was heard,” and enough of the Republican members would join with them to make a majority.2 It claimed the evidence “clearly established” that the soldiers had shot up the town, but exactly which ones was still a mystery.3

  Four Republican committee members, Senators Foraker, James A. Hemenway of Indiana, Morgan G. Bulkeley of Connecticut (who would sit with Joseph Foraker when he received the loving cup a year later), and Nathan Scott of West Virginia, who had stood by Foraker and defended the soldiers early in the Senate debates, disagreed with the committee's majority and said the case against the soldiers had not been proved. Their minority report said the testimony, “as thorough as it was possible to obtain,” was nevertheless “very unsatisfactory, indefinite, and conflicting.” It failed to show a motive for the soldiers to shoot up the town. Other persons, the owners of “eight gambling houses” who would not permit the black soldiers to come into their casinos and saloons and wanted the white troops back to recapture the wagering losses and bar bills that made their business so profitable, had better reasons to do it.4 And all of the battalion's white officers believed the soldiers were innocent.5 “Beyond a reasonable doubt…many of the men so discharged were innocent of any offense.” Foraker and Bulkeley went a step further and flatly added to the minority report that “none of the soldiers participated in the shooting.” In other words, all were innocent. They would submit an exhaustive seventy-four page memorandum justifying this position.6

  In his almost 1,100-page memoirs, Senator Foraker devoted only thirty-four words to these hearings.7 This may reflect regret was his lasting frustration. But in fact, he performed magnificently for the soldiers. The Senate committee was the wrong venue, and his skills as a lawyer were wasted.8 He discredited testimony against the soldiers; committee members were unmoved. Katie Leahy said she saw from her window the soldiers shooting into the town from the Company B barracks. But she could not have. Foraker showed through Lieutenant Harry Leckie that a tree blocked her view.9 George Rendall was sure he saw colored soldiers wearing army uniforms. But he was seventy-two years old, blind in one eye, had worn glasses for twenty-six years, and was not sure he had them on that night.10 Later army tests taken under similar conditions indicated almost none of the witnesses could have distinguished soldiers or their race.11 The committee's senators yawned.

  Putting on his own case, Foraker established that the soldiers were not predisposed to act violently. Major Penrose said the battalion had an excellent reputation and that it was “the best drilled and best disciplined” he had ever seen in the army. Captain Lyon echoed his commanding officer, “The drill and discipline were excellent. I never saw better.”12 Even a white soldier in the departing Twenty-Sixth Infantry, who had served in the army for fifteen years, thought the black soldiers of the Twenty-Fifth Infantry, “were about the strictest soldiers that I had ever seen.”13 Evidence that men of the battalion's parent regiment may have been involved in “shooting affrays and difficulties of one kind or another” had nothing to do with the Black Battalion's soldiers. Their records showed “no stain.” The troublemakers at Sturgis, Dakota Territory, in 1885 were with Company H, and a shooting in Winnemucca, Nevada, in 1899 was by soldiers in Companies L and M. These three companies were in different battalions. And those events were a long time ago. Company A, part of the First Battalion, was in a disturbance at Fort Bliss, Texas, but that company was not at Fort Brown and never would be. In the history of the First Battalion, only once was a man who was at Fort Brown even near trouble. Private Isaiah Raynor of Company B was wounded in a shooting at a “house of ill fame” outside Fort Niobrara, but he was the victim of a brawl by others and never thought to be anything but a hapless bystander.14 Foraker was able to show there was no motive because of the racial-hostility problems of Privates Adair, Newton,
and Reid. Adair “showed no resentment and made no threats,” Newton “made no threats…and exhibited no special resentment,” and Reid “laughingly remarked that he ‘guessed he got about what he deserved.’”15

  Foraker's biggest problem was that there were no logical suspects other than the soldiers, and the bullets, shells, and cartridges—army issue for the soldiers’ Springfield rifles—found in Brownsville implicated them. Even Major Penrose changed his mind after he saw them.16 If Foraker could show Brownsville civilians also had access to bullets like these and the weapons to fire them, it might refute everything else that pointed to the soldiers.

  SENATOR FORAKER HAD BEEN in the army. He knew how often army gear, uniforms, and ammunition found their way into civilian hands. He believed that while the soldiers may have been the only ones with Springfield rifles, they were not the only ones with Springfield rifle ammunition. To challenge the assumption they were, he acquired an education in military weapons and ammunition. He had to learn the differences among bullets; their size, composition, weight; and how they could be modified for different weapons. He found out the diameters of Springfield, Krag, and Mauser bullets were incredibly close in size, and the difference was obliterated after they struck an object and deformed (as had the Brownsville bullets). He found out a Springfield bullet can be fired by a different rifle.

  All this education paid off when General William Crozier, the army's chief of ordnance, came before the Military Affairs Committee and Foraker handed him a Brownsville bullet and asked if it might have been fired from, say, a Krag rifle. Crozier said it could not because the Krag's chamber was too small for Springfield cartridges. But Foraker pressed him: Is it possible to do something to the Krag to accommodate the larger Springfield cartridges? Surprisingly, the general said yes. “The bore could be enlarged so as to get the cartridge in.”