Taking on Theodore Roosevelt

by Harry Lembeck

  By the end of 1907 Michaelis was getting down to business. He wrote Foraker that he hoped the Military Affairs Committee would not issue its reports before the lawsuits were filed. His colleagues in New England were “anxious to have the public realise that the legal actions…have not been inspired by any political motive…. We are working with you, and not for you…that I am anxious to have our actions precede the reports from the Committee.” Foraker was trying to get the committee to recommend a bill allowing Brownsville soldiers to reenlist and felt an earlier lawsuit might work against this. But if Michaelis and his group wanted to go to court sooner, “I will not have an objection…. I am anxious to see what the Supreme Court of the United States will say on the question you raise. Therefore do not like to even suggest any delay.”9

  The uncertainty Foraker wanted the Supreme Court to resolve grew out of his concession to senators unwilling to question President Roosevelt's authority. Foraker had to concede Roosevelt had the right to discharge the soldiers, and the resolution directing the investigation made Roosevelt's authority off-limits. Foraker would be confined to arguing Roosevelt's action was unjust because there was no proof of any soldier's guilt. Michaelis's lawyers indirectly would return to the question of authority by arguing the enlistment of the plaintiff, Private Oscar Reid, was a contract between him and the army, which the army (not President Roosevelt) breached when it discharged him without showing he did anything wrong, and he therefore was entitled to pay and benefits for the remainder of his enlistment term under contract law.10 According to the New York Times, this was $122.26. But the hoped-for victory was that the Supreme Court would set aside his discharge because Roosevelt lacked the authority.11

  MRS. JULIA FORAKER WAS a lively woman who could allow her imagination to get the best of her. So when she wrote that an American journalist shadowed the Forakers at social events and spied on them for President Roosevelt, one would be forgiven skepticism. When she went on to say, “It took a little investigation to learn that Secret Service men…were keeping their eyes on our house,” Mrs. Foraker sounds more believable.12 Roosevelt using the Secret Service to snoop into a senator's privacy was not unknown.13

  “Not suddenly, but subtly, a queer change came over the social atmosphere of our house…. People began to change their calling hours from daytime to evening. Men who worked for my husband, and helping him collect information, called only after dark…. Sometimes…they sent their wives to see me. I would receive them and give to my husband the information they brought from their husbands…. Then we began to get it—we were being watched.”14 She recalled receptions she and her longtime friend Cornelia Fairbanks, wife of Vice President Charles Fairbanks, attended where Mrs. Fairbanks would “retreat to a far corner, stand with her back to the wall so that she could keep an eye on everybody, then signal me to come close to her and we would speak in whispers.”15

  Senator Foraker never mentioned any of this in his memoirs. But Napoleon B. Marshall, a lawyer assisting him in the committee hearings, told him Brownsville newspapers sent from Matamoros, Mexico, had a Post Office stamp on their wrapper, “Inspected at Washington.”16 Thereafter Foraker asked people to send correspondence (like a letter from Francis Woodbridge about the Reid lawsuit) to his home and not to his Senate office.

  WITH THE NEW YEAR of 1908, Foraker and the soldiers had winter's cold blast blowing strongly against them. He was not able to a build a consensus on the Military Affairs Committee for nullifying the discharges. He submitted five different drafts of a majority report he hoped would do the trick, but it was no use.17 He worked day and night to produce these five potential majority reports and, when they were rejected, he had to write the separate and lengthy Foraker-Bulkeley minority report. But he saw an opportunity to open a back door for readmission when President Roosevelt showed he was thinking about it by reviving the unwieldy December 1906 plan for reenlistment applications.18 Three months later, all the Republicans (but no Democrat) concurred when Warren, Lodge, Warner, and Du Pont appended to the majority report a proposed reenlistment bill, because “it would seem but justice to restore to all the innocent men…their rights and privileges.” Roosevelt approved it.19 Senator Foraker had a different approach in mind.20 The important difference between the two was how to weed out the guilty soldiers. Roosevelt's version permitted reenlistment “only on the presentation of proof of innocence satisfactory to the President” (Foraker's emphasis).21 Foraker's required simply an oath from the soldiers denying guilt. He saw Roosevelt's as incurably hostile to the soldiers. Roosevelt thought Foraker's would “condone murder and perjury in the past and put a premium upon perjury in the future, by permitting any murderer or perjurer, who will again perjure himself, to be restored to the United States Army.” Even if it passed over his veto, “it would simply be null [because it would usurp the appointing power of the President] and no reappointment would be made under it by me.”22 Their battle was still on.

  HIS YEARS AS A trial lawyer trained Foraker to be more than a fire alarm when he spoke. He learned to marshal his thoughts and present his positions in a logical and persuasive argument. He spoke quietly so that listeners would shush their distracting neighbors and lean forward to hear better what he was saying. When he wanted to add emphasis to his words, he used a more assertive voice. He employed body language, facial expressions, and hand gestures to cosmetically add luster to his argument's strong points and camouflage its weaknesses.

  On April 14, 1908, Foraker wanted to persuade the Senate to adopt his reenlistment bill and not the administration's. It would not be easy. The split in the Senate committee vote carried over to the full body, where the Democrats would vote against the black soldiers, the Republicans would be divided, and Roosevelt would therefore carry the day. Moreover, the Senate was like the country, and among some of its members there was what fifty years later would be called the “massive resistance” of Southern racism, while for others there would be an overall fatigue with the whole matter of civil rights and Brownsville. And President Roosevelt had, as Mrs. Foraker would grudgingly concede, “admirable dexterity in tight corners” that he would display until he got his way on Brownsville.23 Finally, there was near unanimity that soldiers had been the shooters and escaped justice only because other soldiers kept quiet about it.

  This last point Foraker could use to change minds. If President Roosevelt could not prove the charges, he could not discharge the soldiers. That was the American way of justice. Nothing—not the effect on the discipline of the Black Battalion and all other military units, not the fear in areas where these and other soldiers may in the future be posted, not the concern that some soldiers may have “gotten away with it,” and not President Roosevelt's anger that his hands might be tied—nothing permitted disregarding Americans’ constitutional rights and throwing the laws and foundation of a civilized nation out the window. Nothing.

  This was something senators might listen to.

  Still, on that April day, Foraker was a lonely man. Political allies had deserted him. Senate collegiality for him was a thing of the past, and members who formerly sought his help in Senate matters and his hand in friendship shunned him. His reputation was shattered by the relentless assault on him by President Roosevelt. He knew the Republican presidential nomination was Taft's, and its value as a wedge for him back into the Senate, if it ever existed, was gone, and indeed his Senate seat itself, with one more misstep, might be lost with it.24 But he retained what Edmund Morris called “a passion for racial justice,” an identification with the men of the Black Battalion, and an unshakable belief in their innocence. They no longer were a cause for their own sake; they were a battle for American justice. They ceased to be clients; they became his wards. He did not think of them as Negro soldiers; they were American soldiers, his soldiers. And if he lost his battle for them, he would lose his own for the soul of their and his country.

  HIS ISOLATION FROM FELLOW senators and the politicians back in Ohio eased by Senate galleries, “pa
cked with negroes, many of whom had been at the doors as early as 8 o'clock,” Senator Foraker came out of his seat to be recognized.25 “Mr. President,” he addressed Fairbanks, “I ask that [reenlistment] bill 5729 may be laid before the Senate.”26

  He knew he must overcome the feeling that everything that could be said had been said. He must make this speech different and something important to his fellow senators. He began by noting he was speaking from a prepared manuscript. “I seldom make a speech in that way, but when I do it is, in my own mind at least, a compliment to the subject I am to discuss.”27 It is that important. Then he dispelled any display of unkindness toward President Roosevelt. He denied any intention of attacking him as a newspaper clipping he held in his hand suggests. Never had that been his purpose. He wanted “simply to present to the Senate, in so far as I might be able to do so, the facts in regard to this unfortunate affair.”28 Foraker would use President Roosevelt's words to support his own arguments and make Roosevelt a member of his team. He wanted “to give effect in a practical way to the suggestions of the President himself” to exempt from the discharges men “who were free from guilt” (author's emphasis). He told the Senate, “[It is now] commonly agreed upon, that, no matter who did the shooting there are many of the soldiers who are wholly innocent [who] have suffered disgrace, loss, and hardship from which they should be relieved, and that such relief can be granted only by an act of Congress. Apparently no one appreciates this more keenly than the President” (author's emphasis).29 President Roosevelt and I want the same thing, Foraker was saying, only my bill accomplishes our common goal in a different way.

  He turned to the theory that up to twenty soldiers formed a “preconcerted conspiracy,” somehow got their hands on their weapons from the gun racks, fired into the town from the upper porch of Company B's barracks, then rushed down to and over the wall, shot up the town, killed one man and wounded another, then got back into the fort “without being detected by their officers, who were at that time wide-awake and engaged in the formation of the companies.” This cannot be believed.30

  He moved on to the evidence. There was no proof of a conspiracy of silence; even General Garlington, the army's inspector general admitted this and could only “suggest in a vague sort of way that the men had ‘possibly’ come to a common understanding” to say nothing.31 The eyewitness testimony was “sufficiently contradictory to show that it is unreliable.” More than that, the witnesses could not possibly have seen what they said they saw, and Foraker explained why. The most damaging evidence, the bullets and shells found on the street, prove nothing other than they might have been fired by the soldiers on the rifle range at their previous posting at Fort Niobrara and not in the streets of Brownsville.32

  “No adequate motive—in fact, no motive whatever—is shown for such an assault upon the town.” Frank Natus was shot in the Tillman saloon. If the soldiers were upset about the bars being closed to them, why did they shoot into it, the only one that served them?33 The wounded policeman Dominguez had no trouble with the soldiers but had made many arrests of others who would have been more likely suspects. As for the assault on the Starck house, “There was not one scintilla of testimony to show that Newton or any other soldier of the battalion knew that Tate [the next-door neighbor supposed to have been the intended target] had a house, or on what street it stood, or at what point on any street it stood.” Starck had arrested more than six hundred smugglers; maybe one of them shot up his house. Maybe it was one named Avillo, who lived in Brownsville and knew Starck's house. As for the assault on Mrs. Evans, this would be a motive for townspeople to shoot up the soldiers, not the other way around.34

  Opposing this testimony was that of the soldiers. All said they are innocent and have done so “under oath.” And their officers all believed them.35

  If President Roosevelt's and his bills accomplished the same thing, if both “proceed from the assumption that some of the men, whether few or many, or all…were innocent and that justice requires that all such men should have the opportunity to reenlist,” there are, nevertheless, differences. Foraker's voided the discharges without honor and thereby would have allowed pensions earned to be paid. More important, Foraker allowed them to prove their innocence by signing an oath that they are innocent. Why only this? Because it and testimony previously and repeatedly given by them was all they could give. “To require more is to require an impossibility, and to require a man to prove his innocence is to outrage justice by reversing the rule of evidence that obtains in every civilized country…. If these men are innocent, as they claim and as I believe, what else could they have said or done?”36

  Before he ended, Foraker questioned President Roosevelt's judgment, but gently and logically. Roosevelt's messages of December 19, 1906, and January 14, 1907, had “assertions repeated over and over again [that] in the most extravagant language emphasize the President's unfit state of mind to act judicially in passing upon the applications of these men to reenlist as proposed in the [administration's] bill.” Taking this decision out of Roosevelt's hands is no different from excusing a judge who expressed an opinion of the defendant's innocence or guilt.

  The vilest horse thief, the most dangerous burglar, or the bloodiest murderer would not be required either to prove his innocence or to submit to a trial before a judge who had in even the most casual way expressed the opinion that the defendant was guilty…. Who are these [soldiers] that it should be even suggested that they should be treated worse than common criminals? They are at once both citizens and soldiers of the Republic…. They are typical representatives of a race that has ever been loyal to America and American institutions; a race that has contributed to the nations tens of thousands of brave defenders, not one of whom has ever turned traitor or faltered in his fidelity…. Faithfully, uncomplainingly, with pride and devotion, they have performed all their duties and kept all their obligations. They ask no favors because they are negroes, but only for justice because they are men.37

  THERE IS NO EMPHASIS shown to these final words in the printed Congressional Record and wherever else they appear. But it is hard to believe Foraker, theatrical as he was, would have delivered the punch line without some punch to it. The transcribing Senate clerk hints there was when he added at this point, “Applause in the galleries.” Actually, it was a clamor unable to be stilled. Threats to clear the galleries were greeted with loud hooting followed by even more enthusiastic applause that lasted for several minutes. Senators ignored the clerk's attempt to read the next piece of legislation as they crowded around Foraker to congratulate him.38

  In Notes of a Busy Life, Foraker recalled he received “hundreds of letters and telegrams of congratulation in addition to other hundreds that were orally extended.” He printed one “I prize very highly.” J. G. Schurman, the president of Cornell University, wrote as a concerned citizen, “The President has made a terrible mistake.” As an educator he thought Foraker's speech was “overpoweringly conclusive.” And as the proud teacher to a former student who had done well: “You have acquitted yourself with triumphant distinction. The speech…will long be remembered as the voice of a public conscience outraged by the injustice, dishonor, and tyranny to which American citizens have been exposed.”39

  THE CHEERS OF APPRECIATION and joy, the congratulatory letters and telegrams, even the praise from senators meant nothing. When it came down to the business of senators adopting his bill to readmit the soldiers, his speech did not persuade enough to vote for it. And it moved President Roosevelt not at all. In his letter to Senator William Smith ten days after Foraker spoke, Roosevelt called Foraker's bill “a purely academic measure.” Displaying no doubt at all about his own actions, he told Smith, “Beyond all possible doubt, beyond all intelligent and honest opposition…the murderous assault was committed by [the] negro soldiers.”40 Now feeling the wind to his back, Roosevelt, if anything, was digging in and hardening his position.

  But the game was not yet over for Foraker and his soldiers. Histo
rian Elting Morison wrote that Foraker's speech “convinced many neutral observers that President Roosevelt and the majority of the Military Affairs Committee were wrong.”41 And it convinced some senators too. Foraker could not get his reenlistment bill passed, but as it turned out, neither could Roosevelt persuade enough senators to accept his. On this matter it was a draw. Short of the votes he needed, Foraker agreed to put the matter off until after the election.

  An irritated John Milholland wrote Foraker, “I am bombarded with inquiries about the postponement…. Do you care to say anything on the subject?” Foraker answered, “It was simply a question of defeat in May or probable success in December, and I chose the latter, reluctantly as you may well imagine.” A still unsatisfied Milholland pressed. “The Constitution League would be pleased to have you tell its members, at your convenience, why you deemed it better to postpone decisive action by the Senate until next December?” Foraker answered by quoting from a letter he sent to a man in Massachusetts. “It keeps the subject alive…during the present campaign.” Besides, he added, more than a majority vote would be needed to deal with Roosevelt's veto threat; to override the veto it would take sixty-two votes.42

  In his diary Milholland wistfully wrote, “Read letter from Sen. Foraker explaining Brownsville or trying to explain it…. Fear he had made a mistake.”43

  FORAKER WAS PHYSICALLY EXHAUSTED and close to a nervous breakdown. That's why two of his doctors, concerned he might collapse while delivering his speech, were in the Senate chamber that day. Burton was snapping at his heels. Taft, a man Foraker had never spoken meanly about or acted unfriendly to, was destroying him in Ohio. President Roosevelt, a man he had not been ashamed to say he loved at the Gridiron banquet, was working to eliminate him from public life. His brother lay dying a horrible death in a hospital less than three hours up the tracks in Philadelphia, and he was unable to be with him, attend to him, and comfort him. The previous August he had told Andrew Humphrey that he was “somewhat disappointed and depressed.” Humphrey told Milholland, who wrote to Foraker, “This is natural under the circumstances, but I attribute your depression mainly to physical exhaustion.” Foraker responded the next day, “As to the matters which Mr. Humphrey talked to you about…I have had so much disappointment and so much exasperating experience.”44 When Napoleon Marshall had nagged him about something, Foraker had brushed him off in a way so uncharacteristic for him with its tone, self-pity, and anxiety. “I am so engrossed with my contest [to retain the Senate seat] that I have no time now for anything else. Later, if I am not eliminated, I will take these subjects up again.”45 Since then, nothing had gone right for him. The committee hearings had taken an enormous amount of his time, requiring planning everything from the examination and cross-examination of witnesses to scheduling their appearances, to complete attention at every hearing to what was said by witnesses and other senators. Roosevelt's senators could let their minds wander while others senators spelled them. Foraker could not. Other senators could skip this or that hearing; Foraker had to attend every one. He did not want to run for president, but he was forced to do so, “with full knowledge at that time I had no chance whatever to be nominated,” and it competed with Brownsville for his time and attention.46 In the end, he and his soldiers lost.