Taking on Theodore Roosevelt

by Harry Lembeck

  Roosevelt and Spooner met five times in December and January “to discuss the case,” beginning, according to Spooner's biographer, Dorothy Ganfield Fowler, on December 3, the day Penrose and Spooner introduced their resolutions.6 “Shortly thereafter the Wisconsin Senator began to receive from Secretary of War Taft batches and batches of material on the Brownsville case.”7 All this mutual affection, courting, and some accommodation by Spooner did the trick. Spooner became a secure member of Team Roosevelt.

  On December 19, along with a special message he claimed would put to rest all objections to the discharges, end Foraker's insurrection against him, and discourage any further opposition, Roosevelt sent the requested documentation. It must have landed on the senators’ desks with a thud. The government later would publish it in book form as part of volume 11 of Senate Document No. 155 for that session of Congress, and it would be 545 pages long.8 Its chronologic order meanders and makes frequent U-turns; there is no list of the documents, table of contents, or index; and there is barely any coherence in how it was assembled. It is confusing and hard to follow. That it had been prepared and delivered to the Senate so quickly may be an endorsement of the hard work and diligent attention devoted to it. Or a deliberate carelessness intended to make it unusable to Senator Foraker.

  The first attachment to Roosevelt's message was a memorandum from Taft.9 (The many exhibits and attachments to Roosevelt's message are really the exhibits and attachments to Taft's memo. Taft referred to them as the “full information bearing upon the order of discharge.”10) Taft defended the discharges on the facts and the law. He disputed the conclusions in the Stewart Report and presented those he considered more likely and consistent with the facts. He analyzed the law, including how it was applied in past examples of discharges without honor, and incorporated the opinion of the army's “Judge-Advocate-General that confirmed the complete power of the President to discharge every member of any [military] organization.”

  Roosevelt's message itself was one of the most disturbing documents ever prepared by a president.11 Its argumentative tone, abusive language, inflammatory imagery, and irresponsibly divisive rhetoric resembled a tirade by the generalissimo in a banana republic junta. Although Roosevelt began reasonably (in the first sentence he called what the soldiers did “misconduct”), immediately he stopped mincing words. What a sentence or two earlier had been characterized as “misconduct” was now “an attack, as cold blooded as it was cowardly,” nothing “blacker [in] the annals of the army,” “a dastardly crime,” “mutiny and murder, treason,” “atrocious conduct…under cover of night.”12 The attackers “leaped over the walls,” “hurried through the town,” “shot at whomever they saw moving,” and “into houses where they saw lights.” Their victims were “women and children,” some “sleeping” in their beds, and innocent guests sitting by a window in a hotel. This was only the beginning of their criminal behavior. Evoking his recent annual message, Roosevelt told the Senate a second crime was banding “together in a conspiracy to protect the assassins.” This was a “conspiracy of silence” disregarding that they had “sworn to uphold the laws of the United States, and [were] under every obligation of oath and honor not merely to refrain from criminality, but with the sturdiest rigor to hunt down criminality; and the crime they committed or connived at was murder. They perverted the power put into their hands to sustain the law into the most deadly violation of the law.”13

  He was speaking of men not convicted of a crime.

  Though the army's report was “most careful,” the guilty shooters could not be identified because “the streets of the town are poorly lighted.”14 He had no choice but to discharge them from the army without trial or hearing. And he had the right to do it because “these men were all in the service of the United States under contracts of enlistment, which by their terms and by statute were terminable by my direction as Commander in Chief of the Army…. It was my clear duty to terminate those contracts when the public interest demanded it; and it would have been a betrayal of the public interest on my part not to terminate the contracts which were keeping in the service of the United States a body of mutineers and murderers” (author's emphasis).15 President Roosevelt here was invoking the rationale inspired by Major Blocksom while on the train to Washington earlier that month when he wrote, “All enlisted men of the three companies present on the night of August 13 [should] be discharged [from] the service” for reasons of “public safety” (author's emphasis).16 President Roosevelt was making his case not as commander in chief but as “protector of the public.” He was arguing that decisions made in this role overrode concerns with trials and due process of law. It would have been an impossible case to make in the twenty-first century, but Roosevelt was seeing if he could make it stick in 1906.

  Turning from public protector to public executioner, he reminded senators what he did was not punishment because “discharge from the service” was “utterly inadequate.” He regretted being unable to punish them with “death.”17 If he had not already crossed the line separating discourse from demagoguery, he went on to obliterate it. In his annual message two weeks earlier he “gave utterance to the abhorrence which all decent citizens should feel for the deeds of [in almost all cases white men] who take part in lynchings,” and astonishingly he accused Brownsville soldiers of committing a crime just like lynching. “In the case of these companies we had to deal with men who in the first place were guilty of what is practically the worst possible form of lynching—for a lynching is in its essence lawless and murderous vengeance taken by an armed mob for real or fancied wrongs—and who in the second place covered up the crime of lynching by standing with a vicious solidarity to protect the criminals” (author's emphasis).18 Negroes reading or hearing these words must have shivered.19

  The next day the Washington Post reported, “The virility of language and forcefulness of expression…excited much wonder among the Senators.” In an accompanying editorial it said, “The President comes back with terrific force.” But it could not, nor would not, disguise that Roosevelt was declaring war on “a group of his Republican colleagues” (author's emphasis).20 President Roosevelt already had, seemingly with little concern, antagonized black voters, virtually all of whom were Republicans. Now he was threatening to create a second front in the intraparty conflict and widen the split. His enemies now were fellow Republicans.

  IN HIS MEMOIRS WRITTEN a decade later, Joseph Foraker said Roosevelt's message was “of the most vitriolic character. His language bore evidence on its face of intent to make it nearly offensive to all who disagreed from him.”21 But that day he responded “as soon as the reading [of the message] was concluded.” Before Penrose or anyone else could gain a step on him, he was on his feet: “Mr. President I ask that the message, with the accompanying exhibits and all paper connected therewith, may be printed as a document and referred to the Committee on Military Affairs, with instructions to take such testimony as may be necessary to establish all the facts, the expense so incurred to be paid out of the contingent fund of the Senate.”22 This was clever. A request to print the message and its exhibits required practically no permission from senators and normally would be accepted by the vice president saying quickly and indistinctly, “Hearing-no-objection-it-is-so-ordered,” as if it were one long word. Foraker's feint was to couple the printing request with an order sending it to the Military Affairs Committee and hope no one would notice or object. If he could get way with that, then the other language (“with instructions to take such testimony as may be necessary to establish all the facts, the expense so incurred to be paid out of the contingent fund of the Senate”) was enough for the committee to start and maintain an investigation. Foraker was trying to avoid a formal investigation resolution that would have to be introduced, accepted for discussion, debated, amended, hashed out and in the end approved. Or not.

  Who would have expected him to disguise the investigation by folding it into a routine request that a document be printed? Hen
ry Cabot Lodge would. Coming out of his chair, the senator from Massachusetts spoke quietly, “The last part ought to be a separate resolution. The usual motion is, of course, that the message be referred and printed, to which there is no objection, but I think before we decide to enter on a Congressional investigation the matter ought to be presented at least separately.”23 The battle had begun.

  It was clear to both sides that an investigation eventually would be approved. The fight was to frame its scope in terms favorable to one side or the other. Foraker wanted an unhampered inquiry, in which he as a member of the Military Affairs Committee could probe Brownsville as a frontier surgeon probed a wound until he found the bullet and could begin to work on its damage. Lodge, acting on President Roosevelt's behalf, wanted the investigation corralled for the same reasons Foraker did not. The less it could do, the less it could accomplish.

  Foraker tested Lodge's determination. Presenting the investigation separate from the printing was fine, he said, but was there an objection to “testimony being taken in regard to the facts of the matter?” Lodge ignored the question and shot back, if an investigation is what you want and what the Senate wants, let us do it right. Foraker tried again. We don't know “whether all the evidence is there [in the documents included with the special message].” Isn't it better that it goes to the committee for it to sift through and see if it is complete and, if not, what to do about it? Again ignoring Foraker, Lodge repeated to the vice president, “I ask that the motion be divided.”24

  Boies Penrose came to Lodge's assistance with “a suggestion to the Senator from Ohio.” Why not simply print Roosevelt's special message, send it to the Military Affairs Committee, and see what it wants to do. If it wants a resolution, it can ask for it.25

  Senator Joseph C. S. Blackburn of Kentucky, a Democrat and his party's leader in the Senate, spoke up. Neither he nor the Democrats cared a bit what happened to the soldiers, and an investigation, the tougher the better, was fine with him. Let the Republicans tear each other and President Roosevelt to pieces publicly for the next few months. His interest was to make mischief. Blackburn said he saw no reason why the request for printing would be a problem, but in his haste to take the floor and sneak his non-resolution resolution past the Senate, Foraker had not bothered to write out what he wanted. Write it down, said Blackburn, so we may see whether your purpose is “to instruct and direct the Military Affairs Committee…to make an investigation, or whether…to leave it to the committee to determine whether an investigation is to be made.”26 Foraker could see he had gotten all the mileage he ever would out of his verbal resolution and sat down at his desk to write out what he wanted the Senate to do. While he did this, Vice President Fairbanks pronounced that the part asking for the printing was agreed to.

  While Foraker was scribbling at his desk, deciding what to ask for and how to ask for it, Lodge used the dead space to point out that Roosevelt sent over “a considerable amount of printed testimony” and added, “which I for one should like to examine.” Before he agreed to an investigation, “I should like to see the papers first.”27 Foraker continued to gather his thoughts and put them in writing while the Senate temporarily turned to other business. When he was finished, he presented it to the Senate. It said that if after reviewing the documents given to the Senate the committee wanted an investigation, it was authorized to conduct it.

  Lodge said this was fine with him, because, as he understood this proposed resolution, it did not order an investigation. That was left to the Military Affairs Committee, which “by bill or otherwise” could ask for one. Or not, if it chose. Foraker and Lodge were talking past each other and getting nowhere. Senator Francis Warren was unsure where they were going but knew whenever they got there the problem would land in his lap as the chairman of the Military Affairs Committee. He reminded the Senate that payment of the committee's expenses first had to be approved by a different committee.28 Another hurdle for Foraker, something he did not anticipate or, if he did, he thought he could finesse; it was potentially more delay. Spooner of Wisconsin wanted to hear the resolution again. After it was read, Foraker, still hoping to get the matter into the Military Affairs Committee that day, modified what he wrote down to omit this funding problem. Before it could be discussed, Alexander Clay of Georgia, a Democrat, wanted more time to read the testimony. Like schoolyard bullies they were starting to pile on Foraker. Clay objected to any consideration of a resolution, whatever it was. Shelby Collum, an Illinois Republican, wanted the Senate to move on to other business. Foraker tried to speak; Collum would not let him, insisting upon his motion.29

  Here the “debate” ended. Its deliberate tumult and confusion, disguised as sincere questions and honest expressions of opinion, were a warning to Foraker. This is what he was in for. They were only starting.

  THE WASHINGTON POST WOULD write the next day that Roosevelt's message was “as much a defiance as an explanation.”30 John Milholland wrote in his diary, “Began the day by sending Foraker a ringing telegram. He is leading the fight in Congress on behalf of the Negro Battalion Roosevelt dismissed. The President fired another message yesterday in defense of his undefensible action, seeking by violent language to force the public to accept his ‘hot air for evidence and conclusions.’” His friend Joe Smith called it “sewer gas.”31

  Roosevelt wanted Foraker to know he was not afraid of an inquiry. Foraker already knew that, and he knew he was in for a fight. Roosevelt's point man in the Senate that day, Henry Cabot Lodge, did well on his behalf but once or twice needed some help from colleagues. Foraker never got his resolution accepted; in fact, he never got to formally introduce it. He tried to deal with objections by accommodating them rather than meeting them head on. But he was still in the game. He showed he was prepared, clever, and able to adjust to the debate. He would be more careful about giving in to objections from here on. His opponents had not killed his resolution. He would bring it up again tomorrow.

  The day was a draw.

  Except no one stood with Foraker. No senator was there to come into the debate and spell him for a minute or two so he could collect his thoughts. Not one member of his party spoke for his position. None was his ally.

  He was still alone.

  AS VICE PRESIDENT FAIRBANKS brought the Senate to order the next day, the visitors’ galleries and those for the press, diplomats, and VIPs were full. Senator Foraker was to reply to President Roosevelt's special message and nobody wanted to miss it. Sitting on the floor of the Senate were two former secretaries of war, now Republican senators. Redfield Proctor of Vermont led the War Department under President Harrison, and Michigan's Russell A. Alger under McKinley. Both may have whispered a quiet thanks to the heavens they never had to face anything like Brownsville or an angry president like Theodore Roosevelt. In the reserved-seating areas were Congressman Nicholas Longworth from Cincinnati (President Roosevelt's son-in-law) and Joseph Cannon, the Speaker of the House of Representatives.32 Both had come over from the other side of the Capitol to hear what Foraker had to say. Both knew they were in for a great performance by Longworth's fellow Cincinnatian. The vice president asked the clerk to read Foraker's resolution coming over from yesterday, and when the clerk finished, Fairbanks turned to his college friend from Ohio Wesleyan and gestured that the Senate floor was his.

  HE BEGAN NOT LIKE a fire alarm but as an experienced lawyer, quietly and earnestly pleading his client's case with simple words and without the need for histrionics. Roosevelt the day before was a loose cannon, firing off one misstatement after another.33 Foraker, with the confidence of a debater, would have the facts at hand to support what he said and could cite them quickly and correctly. He was quiet, almost conversational, as he started off with what appeared to be a yarn. When he got home last night, he told the Senate, he had a chance to read for the third time what President Roosevelt said in his message. “I may be mistaken but in my opinion,” President Roosevelt has no authority to discharge the soldiers, and even if he does the eviden
ce does not support it. In this rural manner, the big-city lawyer expressed the situation in a way anyone could understand. For the record, he repeated it more formally: “He has misconceived…his constitutional powers” and “misconceived the testimony upon which his action is based.”34

  He remained formal and studied as he analyzed the constitutional text. According to Article II, Section 1 of the Constitution (which he read from his notes), “The President shall be Commander in Chief of the Army.” He stopped. “I have read far enough. That's all [it] says.” But “Congress shall have the power, ‘To make Rules for the government and regulation of the land and naval forces’” (author's emphasis).35 So, for example, a president can say “where they should be stationed in time of peace.” But Congress determines “how…men shall be enlisted and men shall be discharged [and] the rights that shall accrue to them on account of their service.”36 Foraker was beginning a logical, step-by-step argument. First an undeniable statement, followed by another just as undeniable, then another, and so on, until at the end a listener has agreed with each link in the chain and must accept the strength of the conclusion. Foraker forged the next link. The military forces were governed by the Articles of War enacted by Congress.37 He took the time to read nineteen separate articles, showing the Senate that Congress had identified offenses that seem to have been what the Brownsville soldiers were accused of, and in every one of these it was a court-martial that must decide guilt and a court-martial that must impose punishment. Not the president, whether as commander in chief or in any other capacity. He next cited a treatise on military law by General George B. Davis that said “refusing to testify…and give evidence” (which Foraker did not have to say is exactly what a conspiracy of silence is) came within Article 62. Therefore such a charge too must be tried by court-martial and guilt must be punished by court-martial, not by President Roosevelt. This General George B. Davis happened to be army's “Judge-Advocate-General” advising President Roosevelt and Secretary Taft on their actions in Brownsville.38