Taking on Theodore Roosevelt

by Harry Lembeck

  [Foraker] Q: Now let me ask you if there is any difficulty whatever about boring that [Krag] barrel to accommodate this [Springfield] cartridge?

  [Crozier] A: I take it to be easily done.

  Q: Do you not know, General Crozier, that it is actually done by those who have Krag rifles, to accommodate the Springfield cartridge, since the Springfield rifle was brought into use?

  A: No, Sir, this is news to me.17

  Now there were two rifles—the Springfield and the Krag—that could have fired the bullets.

  What about the Mauser? “Yes, Sir,” answered Crozier, “as far as my examination of it here in my hand, it might be a Mexican army Mauser.” Crozier felt comfortable saying this because he could not tell from the bullet in his hand, distorted by being fired, what it originally weighed or how long was its length. But if it was a Mauser bullet, it would not have fit into the Springfield.

  [Foraker] Q: You do not know that during the last two years [the Mexican army has] been issuing [a different size cartridge]?

  [Crozier] A: No, sir; I am not aware of it.

  Q: Made for the express purpose of accommodating our Springfield rifle caliber?

  A: That I am not aware of.

  Q: You have never heard of that at all, until it is suggested now?

  A: No, sir.18

  Now the Military Affairs Committee knew there were three kinds of rifles that could have fired this bullet, one of which was issued to the Mexican army just across the Rio Grande. There was another, the civilian Winchester. Although General Crozier failed to mention it to the committee, five months before he testified he was told 438 of the Winchester “model of 1805” rifles had been “chambered” for the Springfield ammunition and shipped to “dealers and others.”19

  Foraker therefore showed that the conclusion that the bullets had to have been fired by soldiers because they were army bullets and usable only in their Springfield rifles was false. But he was not finished. There were two types of Springfield ammunition: long-range, high-power “ball” ammunition for combat, and short-range, less powerful “guard” ammunition. The bullets retrieved in Brownsville were high power. Guided by the questions put to him by Foraker, Quartermaster Sergeant George McMurray of Company C told the committee that after arriving in Brownsville he had collected all high-power ammunition issued at Fort Niobrara and made sure it was all accounted for, then he had given each man ten rounds of guard ammunition. So the bullets like those dug out of Brownsville walls and fences had been returned by the soldiers before the shooting. And then, just before the committee excused McMurray, Foraker showed why he was a lawyer “in full”:

  Sergeant McMurray: One thing, there was a wood shed there, and I found in one of those woodsheds there a whole box of shells there, in the woodshed, that had been left there, I suppose, by the Twenty-sixth.

  [Senator Foraker] Q: You were preceded at Brownsville by the Twenty-sixth Infantry?

  [Sergeant McMurray] A: Yes, Sir.

  Q: Two or three companies?

  A: Yes, sir.

  Q: And in a wood shed belonging to the barracks that you occupied?

  A: Yes, sir; that had been used on target practice, as I would suppose.

  …

  Q: And how many were there?

  A: There must have been a thousand or more. It was a box nearly full.

  …

  Q: No cover on the box?

  A: No, Sir.

  …

  Q: And they had been standing there for how long a time before you got there?

  A: I couldn't say how long. It looked like they had been there some time.20

  So others had access to empty Springfield shells and could have scattered them on the ground. On the cold page of the transcript, this appears as an “oh, by the way” bit of information from Sergeant McMurray, eager to cooperate with the committee. It was really tenacious prospecting beforehand by Foraker to dig out this nugget of gold, the experience to know just where and how to use it, and the thespian skills of an experienced trial lawyer to mine the dramatic moment for its very best effect.

  Throughout the hearings his preparation was thorough. He tracked down witnesses “from Boston to Winnemucca, Nev.”21 He contacted Dr. Edger, the army surgeon at Fort Brown, to find out what his testimony would be.22 He wrote Captain Macklin asking him whether he made the statement in Crixell's bar, “These negroes might jump over the fence some night and shoot hell out of the town and that their officers could not prevent their doing it if they took such a notion.” Captain Samuel Lyon responded, “Capt. Macklin has turned your letter of the 11th inst. over to me as his counsel.” The allegation “is unqualifiedly false in all material particulars.”23 Unsolicited suggestions and assistance came from the public. From “a friend” in Louisville: “I see through the paper you are asking for the names of the soldiers of the 25th.” He gave Foraker J. H. Howard's address and employer in Louisville.24 In December Foraker received a “Personal and Confidential” letter from Captain Ralph E. Gambell of the Porto Rico Infantry with information about Inspector General Garlington. “In Oct. 1877, Garlington was adjutant of the 7th Cavalry and with Gen. Sturges on an Indian chase on the Missouri river. Their steamer landed at a point where Gen. Miles was waiting with a command, among which were some colored troops. In passing up a narrow gangway as Garlington was coming down, an old Negro Sergeant accidentally touched elbows with the officer. Garlington stood him up by the rail, cursed and abused him shamefully. The Serg't reported it to his Captain, and the latter being a Civil War veteran carried it to Gen. Miles. Miles instantly sent his Adjutant Gen. on board the steamer with orders to Gen. Sturges to clap Lt. Garlington in close arrest, which was done. He remained there 48 hours and then made a public apology to Serg't. Coloredman. Garlington has been gunning for ‘Niggers’ ever since.” When Garlington testified before the committee, Foraker never brought this up.25

  When the black soldiers appeared before the committee, Foraker treated them softly and respectfully, always addressing them by their former ranks, thereby subtly reminding his senatorial colleagues what these men had been and reinforcing what President Roosevelt had taken from them. Jacob Frazier was first sergeant of Company D, a noncommissioned officer in the US Army, a man who gave orders and expected them to be obeyed; now he was a porter at the Elliott National Bank in Boston. Foraker was careful to call him “Sergeant.” By contrast Democratic senator William Warner, having accepted the prosecutorial baton from the chastened Senator Lodge, insisted on using “Mr.” to show Frazier was nothing more than a civilian and occasionally something less when he addressed him by only his last name.26

  Foraker's skills showed themselves nowhere better than when he cross-examined witnesses. Teofilo Martinez was sleeping on the rear gallery (another name for porch in Brownsville) of Francesco Yturria's home on Washington Street and directly across from Fort Brown. He told the committee the shots came from “the direction of the barracks” identified by him on a map as Company C's barracks. It took Foraker less than two minutes to show Martinez could not have seen a thing.

  [Senator Foraker] Q: Are there any trees between the rear part of the Yturria house and the end of C barracks?

  [Teofilo Martinez] A:…A large tree.

  Q: Can you see C barracks from the rear part of the Yturria house?

  A: No, sir; on account of the trees.27

  Major Blocksom was a tougher nut but he too cracked from the pressure of Foraker's cross-examination. Foraker persuaded Major Blocksom to change his mind about Sergeant James Reid, the sergeant of the guard at the time of the shooting, from saying he swore falsely about the incident's events to “I say now that my opinion is now that there is more of a chance he might be perfectly honest.”28

  “I am pretty familiar with the rules governing the interrogation of witnesses,” Foraker immodestly said at the beginning of the hearings.29 Later on Senator Warren agreed. “We all know he has to be a smooth examiner to follow the Senator from Ohio.”30

&n
bsp; Letters came into Foraker's Senate office thanking him for his efforts and congratulating him for how well he was doing. The Colored Foraker Club in Cadiz, Ohio, sent him resolutions of praise. W. W. Dudley, a lawyer in Washington, DC, wrote “how much I am pleased” and suggested he look up a helpful US Supreme Court decision. F. H. M. Murray, a founder of the Niagara Movement, advised him on strategy and who the raiders might have been. Charles P. Lincoln, a lawyer in El Reno, asked for a photo he could hang in the Republican headquarters there. Katie Leahy, who operated the Leahy Hotel in Brownsville and witnessed the shooting, invited him to be her guest at her hotel if he came to Brownsville (“I will do all in my power to make your stay in our city not only satisfactory but pleasant”).31

  Some federal employees were willing to risk Roosevelt's wrath to stand by Foraker. From E. N. Martin, US special pension examiner, came, “Your refusal to bend your knee and cringe your neck to the ‘Big Stick’ has intensified my admiration for your courage and genius.”32 Even the Twenty-Fifth Infantry's chaplain Theophilus Steward stuck his tongue out at his commander in chief when he said, “Senator Foraker is covering himself in glory.”33

  Joseph Foraker was more than anyone responsible for the headline in Monroe Trotter's Guardian of Boston: “Colored Soldiers Testifying Strongly.”34 Constitution League secretary A. B. Humphrey wrote, “Your magnificent conduct of the Brownsville case entitles you to the moral support of the world, and I believe you will get it when the facts are known.”35 John Milholland knew what it cost him. “[Had] the Senator not identified himself with the Brownsville Inquiry, he would have had no trouble in Washington, or in his own State.”36

  ON MARCH 18, 1908, there appeared a story in newspapers about a man in Galveston, Texas, named D. C. Gray. Gray said he had been a soldier in the Black Battalion's Company B, and on the night of the shooting he and other soldiers had been in their barracks playing cards. Suddenly a soldier not identified by Gray (nor were the card players) came into the room, angry from an insult to one of his friends (also not identified) from a white man. “He was going to fix that white [expletive] so that he will never fool with another soldier's friend.” Quickly other soldiers joined with him and they rushed for the gun racks, “fixed the sentry,” jumped the wall, and raced into Brownsville. They shot “in the house of Mr. Cowarts on Fourteenth street…into the Starcks house…as some of the boys did not like him and they wanted to kill him.” Then they ran to Thirteenth Street where it joined Elizabeth Street and shot policeman Dominguez after he shot at them first. “Anyway, all of them said that when Major Penrose examined them.” They shot into the saloon “run by Frank Natus” because they had had some trouble there. When they heard bugles sounding back at the fort, they knew the raid “was all off” and raced back to the barracks and got into their beds before anyone could see they had been out. One of the soldiers on guard came into the barracks and, in a loud whisper, told “any of you fellas in that dirty business” to get their guns in shape and back in the gun racks because “there will be inspection.” When the first sergeant (which would have been Mingo Sanders) ordered them to fall in, they got dressed and went outside. When roll was taken, all the shooters were present.37

  The Senate committee interrupted the testimony of Matias G. Tamayo, the post scavenger,38 on March 18 to discuss Gray and his story. A telegram that day from the army's adjutant general advised the committee that Major Blocksom told him that the “Chief of Police, Galveston, has just wired me [that] confession of Gray, supposed discharged soldier, appearing in papers today, is a fake,” and without much discussion all the committee members, regardless of their Brownsville position, agreed it must be so.39 For a man who was not there, Gray was remarkably well informed about what happened. He identified the houses shot into (but misspelled the owners’ names); knew Frank Natus's and Joe Dominguez's names and where they were shot; knew approximately what time the shooting took place, how many shooters were thought to have been involved, and how the bugle call might have been an alarm to get back to Fort Brown; and plausibly described what might have happened when the soldiers, had they been shooters, returned to the barracks.

  But no one with the name D. C. Gray or anything like it was in company at Fort Brown. The D. C. Gray in question had lived in Galveston for the past seven years and never had been in the army.40 Senator Foraker thought the committee should subpoena the editor of the Galveston newspaper that broke the story. Senator Warren suggested waiting a few days to “see what the developments are.”41 All agreed this made sense.

  Foraker wanted to show the soldiers had nothing to do with the shooting and could not have planned a cover-up. Gray's statement showed otherwise. But if true, it would have helped Foraker and the innocent soldiers confirm their innocence and get them back in the army. It also would have helped Roosevelt because it confirmed the shooters were soldiers and, up until then, had not said anything.

  The matter was dropped; the Gray confession was ignored.

  FORAKER CLAIMED HE FOUND the “subject of patronage disagreeable” and that he attended to it only because he had a duty to recommend Ohioans to the White House for federal positions.42 Supplying federal jobs rewarded deserving supporters and encouraged their future support. But it could be a pain in the neck. John Galvin was a Cincinnati lawyer who desperately wanted to be a federal judge. Only a week after the Senate voted to investigate the Brownsville shooting, and without invitation, he solicited Foraker's assistance. “I cannot refrain from extending to you my sincere and hearty congratulations upon the new evidence, not only of your courage, but of your matchless skill in debate. I read with much pleasure in the Enquirer this morning of the account at the Gridiron dinner.” Galvin was just getting started. He mentioned the terrible ordeal Jim Foraker was going through and that he made a point of seeing poor Jim in the hospital in Philadelphia, who looked pretty good, all things considered. Then he got down to the matter of the federal judgeship. “When an opportunity to gratify the ambition of a lifetime presents itself, and it appears that it may possibly never come again, a man clings on tenaciously to the slightest hope, and is reluctant to hold his hands and do nothing, when by some activity he might accomplish something toward the gratification of that ambition.” Galvin was saying, will you help me? Foraker merely thanked him “for his kind words.” Galvin kept pressing. “Of course, as you can imagine that I am interested and watch everything in the papers…. Is there anything I can do to advance my own chances in any way.” There was nothing. Foraker told him he planned to ask President Roosevelt to nominate Judge John J. Adams of Zanesville.

  But federal appointments, even plums like judgeships, are like busses; there is always another one coming along, not quite as often but just as assuredly. Galvin kept in touch with the senator through late spring and early summer until news of Roosevelt's cold shoulder got through to him. Galvin realized Foraker was unable to rescue him from the practice of law, but that was no reason to burn bridges. He continued to send encouragement to Foraker, whose enemies “have seen fit to…demand your elimination from the face of the earth.” He and others “are ready to go forth and fight with you as long as you give the word of command, and whether you command or not, we propose to fight against any attempt to eliminate you or injure you in any way. We are still with you and for you.”43 Most job seekers were just as pesky, but not as nice as the disappointed Mr. Galvin.

  Judge Adams, the man Foraker wanted for the federal bench, never got the appointment either. On March 18 Roosevelt wrote Foraker, “I have come to the conclusion that Mr. John E. Sater…best meets the requirements…I shall give him a recess appointment.” A recess appointment is made when the Senate is not in session, and, under the Constitution, Senate approval is not required until the end of the next calendar year. But individual senators have leverage over appointments, too; “senatorial courtesy” gives them something akin to a veto over any nominee for a federal position from that senator's state.44 A clever president can work his way around this. In
1874 President Grant's man for the customs collector position in Boston was opposed by Senator George S. Boutwell of Massachusetts. Boutwell thought his position was perfectly clear to Grant when the Senate Committee on Commerce and Boutwell as its chairman voted against the nomination. But the careless senator neglected to inform President Grant personally and emphatically. If only Boutwell had “asked me to withdraw the nomination…, I would have acceded to his request.”45

  Foraker delayed Sater's donning judicial robes until March 1, 1909, simply by asking the Senate to accord him this senatorial courtesy.46 He also gave Roosevelt some small payback by successfully engineering Senate rejection of four Taft supporters for postmasterships in Ohio.47 Meanwhile, Roosevelt was working on other plans for Foraker that would have him out of the Senate at the end of 1908.

  Foraker and Roosevelt had had an unsettled patronage relationship going back to 1905, when Foraker submitted newspaper editor Howard D. Mannington for surveyor of customs in Columbus. Roosevelt said no. A few months later Foraker objected to Roosevelt replacing an Ohio man as consul in Glasgow. Roosevelt did it anyway.48 There was talk in the street that Roosevelt was asking James Garfield for names and not, as he should have been, Ohio's two senators, who were “mad because Mr. Garfield has been consulted by President Roosevelt as to Ohio appointments. Their version is that Mr. Garfield had ‘butted in.’”49 It was to get worse after Brownsville. On March 16, 1907, Roosevelt gave instructions to George Cortelyou, now secretary of the treasury (but with patronage still in his portfolio), “In any appointments of importance in Ohio I think it advisable now that the judgment of Secretary Taft should be obtained; and if there is any difficulty with either of the Senators you might mention that by my direction Mr. Taft is to be consulted as I feel a peculiar regard for his judgment and I think it wise to follow it.”50 Beyond simple job appointments, two months later Cortelyou's Treasury Department denied a request from a Cincinnati bank for “additional [Government] deposits” to bulk up its books during the economy's Panic of 1907.51 The bank had made its request through Foraker.