THE BLACK BATTALION
*
They ask no favors because they are negroes, but
only fcTr justice, "because they are men.
SPEECHES
OF
HON. JOSEPH B. FORMER,
OF OHIO
IN THE
SENATE OF THE UNITED STATES
December 6 and 20,1906
January 3, 7, 14, 16, 17, and 21, 1907
April 14, 1908
42114—7111
WASHINGTON
1908
DISMISSAL OF THREE COMPANIES
OP TWENTY-FIFTH INFANTRY.
DECEMBER 6, 1906.
Mr. FORAKER. Mr. President, I desire to call up, if I am in
order to do so, resolution No. ISO.
The VICE-PRESIDENT. The Senator from Ohio calls up
for consideration the resolution named by him, which will be
read.
The Secretary read the resolution submitted by Mr. Penrose
on the 3d instant, as follows:
Resolved, That the President be requested to communicate to the
Senate, if not incompatible with the public interests, full information
bearing upon the recent order dismissing from the military service of
the United States three companies of the Twenty-lifth Regiment of In¬
fantry, United States troops (colored).
Mr. DANIEL. Mr. President
Mr. FORAKER. The resolution which the Secretary has
read is the original resolution for which I have offered a sub¬
stitute.
The VICE-PRESIDENT. Does the Senator from Ohio wish
his amendment reported at length?
Mr. FORAKER. No; not necessarily.
The VICE-PRESIDENT. The question is on agreeing to the
amendment proposed by the Senator from Ohio, which has been
heretofore read.
Mr. FORAKER. Mr. President, the Senator from Pennsyl¬
vania [Mr. Penrose] is present in the building, and I have sent
for him. While waiting for his arrival, I yield to the Senator
from Virginia [Mr. Daniel], if I may be allowed to do so, who,
I believe, desires to present some morning business.
Mr. DANIEL. Mr. President, I rise to morning business. I
beg leave to offer two petitions and certain bills.
The VICE-PRESIDENT. Under the rule adopted at the last
session of Congress the Senator from Ohio [Mr. Fobakeb] can
not yield to the Senator from Virginia for that purpose. The
rule to which the Chair refers reads:
It shall not be in order to Interrupt a Senator having the floor for
the purpose of introducing any memorial, petition, report of a commit¬
tee, resolution, or bill. It shall be the duty of the Chair to enforce
this rule without any point of order hereunder being made by a Senator.
Mr. DANIEL. Mr. President, may I be allowed to state that
I did not interrupt the Senator from Ohio, but he reminded the
Senate that he was waiting for the presence of a Senator on the
other side, and yielded the floor to me without being requested
to do so or being disturbed upon the floor, and I am, I think,
in order.
7111 3
4:
, The VICE-PRESIDENT. If the Senator from Ohio has
yielded the floor, the Chair will recognize the Senator from
Virginia.
Mr. FORAKER. I have not yielded the floor.
The VICE-PRESIDENT. Then the Chair is of the opin¬
io11 , ■
Mr. FORAKER. I am sorry that I can not now accommodate
the Senator from Virginia in view of the statement of the Chair.
Mr. DANIEL. I have no idea of violating the rule, Mr.
President.
Mr. FORAKER. I want to retain thf floor.
Mr. DANIEL. Very well.
Mr. PENROSE. Mr. President, I should like to call up my
resolution, which I believe was the first one introduced on this
subject.
Mr. FORAKER. The resolution is already called up. I will
say to the Senator from Pennsylvania that I have called up in
his absence the Senator's resolution and my substitute, and they
are both now before the Senate. On yesterday, while the Sen¬
ator was absent, these resolutions were before the Senate and
there was some discussion then which I thought indicated that
there might be an agreement arrived at. I do not want to
interfere with the Senator's resolution, but I want to pass my
own; and, if there is no objection to my resolution being con¬
sidered independently, I am willing to have it so considered, and
let the Senator's resolution be considered in that way.
Mr. PENROSE. Mr. President, that suggestion is entirely
satisfactory to me. I said when the Senator from Ohio pre¬
sented his resolution that it was not incompatible with mine,
one being directed to the President and the other to the Secre-
ary of War. I would suggest that the vote be taken on my
rsolution, it having been first introduced; and if that shall be
passed, that then the Senate consider the resolution of the Sen¬
ator from Ohio.
Mr. FORAKER. I want it understood that there is a unani¬
mous agreement that my resolution be presented independently
as an original resolution, and that it will not be objected to so
that it may have to go over; otherwise I shall insist on its
being considered as a substitute for the resolution of the Sen¬
ator from Pennsylvania.
Mr. PENROSE. I ask unanimous consent that that may be
considered as the understanding—that we consider the Senator's
resolution as an independent resolution, and not subject to go
over on one objection.
Mr. WARREN. I wish to say if the resolution which I of¬
fered as a substitute, embodying the subject-matter of both
resolutions, is considered as standing in the way of the plan
proposed by the Senator from Pennsylvania [Mr. Penrose], it
may be laid aside for the purpose indicated by the Senator from
Pennsylvania.
The VICE-PRESIDENT. Is there objection to the request
that the amendment proposed by the Senator from Ohio [Mr
Forakeb] shall be regarded as an original resolution and be
considered after the disposition of the resolution introduced bv
the Senator from Pennsylvania [Mr. Penrose]? The Chair
hears no objection; and it is so ordered.
Mr. PENROSE. Mr. President, so far as the resolution intro-
7111
5
duced by the Senator from Wyoming [Mr. Warren] Is con¬
cerned, I would be entirely satisfied with it,Jbut as he has with¬
drawn it I suppose the only question before the Senate is on
the adoption of my resolution.
Mr. SPOONER. Mr. President, the question is on the adop¬
tion of the resolution of the Senator from Pennsylvania [Mr.
Penrose], as I understand.
The VICE-PRESIDENT. The question is on the adoption of
the resolution of the Senator from Pennsylvania.
Mr. SPOONER. Mr. President, I am opposed to the resolu¬
tion offered by the Senator from Pennsylvania. My opposition
to it is based entirely upon the form of it. This resolution does
not, so far as the subject-matter goes, fall within the class of
inquiries which the Senate has ever been accustomed to address
to the President. It implies on its face, Mr. President, a doubt
here which I think does not exist; as to whether the Senate
Is of right entitled to all the facts relating to the discharge of
the three named companies or not. Always the Senate, in pass¬
ing resolutions of inquiry addressed to Cabinet officers, except
the Secretary of State, make them in form of direction, not re¬
quest. It rarely has happened that a request has been ad¬
dressed to any Cabinet officer where foreign relations were in¬
volved. Where such a resolution has been adopted it has been
addressed to the President, with the qualification that he is
requested to furnish the information only so far as, in his judg¬
ment, the transmission of it is compatible with the public in¬
terest.
There are reasons for that, Mr. President. The State De¬
partment stands upon an entirely different basis as to the
Congress from the other Departments. The conduct of our
foreign relations is vested by the Constitution in the Presi¬
dent. It would not be admissible at all that either House
should have the power to force from the Secretary of State
information connected with the negotiation of treaties, commu¬
nications from foreign governments, and a variety of matters
which, if made public, would result in very great harm in our
foreign relations—matters so far within the control of the Presi¬
dent that it has always been the practice, and it always- wilP be
the practice, to recognize the fact that there is of necessity
information which it may not be compatible with the public
interest should be transmitted to Congress—to the Senate or to
the House.
There are other cases, not especially confined, Mr. President,
to the State Department, or to foreign relations, where the
President would be at liberty obviously to decline to transmit
information to Congress or to either House of Congress. Of
course, in time of war, the President being Commander in Chief
of the Army and Navy, could not, and the War Department or
the Navy Department could not, be required by either House to
transmit plans of campaign or orders issued as to the destina¬
tion of ships, or anything relating to the strategy of war, the
public knowledge of which getting to the enemy would defeat
the Government and its plans and enure to the benefit of an
enemy.
There are still other cases. The Department of Justice would
not be expected to transmit to either House the result of its
investigations upon which some one had been indicted, and lay
7111
6
bare to the defendant the case of the Government. The con¬
fidential investigations in various departments of the Govern¬
ment should be, and have always been, treated by both Houses
as confidential, and the President is entirely at liberty to per¬
mit by the Cabinet officer to whom the inquiry is addressed
as much or as little information regarding them as he might
see fit. I have no doubt the President would transmit every¬
thing upon this subject. My objection is to the form of the
resolution. I think we ought to maintain the uniform practice
upon the subject. I do not think, as to a matter upon which
the Senate ciearly has a right to be fully advised, it should
depart from the usual form of directing the transmission by
the Secretary of War or the Secretary of the Navy or the Secre¬
tary of the Interior, to adopt a resolution of request of the
President, bearing upon its face a recognition of the fact that
he is at liberty to withhold the information or to transmit such
part of it as he shall see fit.
Mr. President, in time of peace as to matters relating to the
organization and the administration of the Army there can be
no secrecy. It is purely domestic public business, as to which
the Congress has a right to know. I should be very much
disappointed if in a matter of this kind the Senate should
address the inquiry to the President, coupled, as it must be,
with the suggestion that we doubt our right to the information.
1 think it is a bad precedent to "establish. In such matters
I think we ought to maintain the practice which, so far as I
remember, hitherto has been unbroken. Therefore I am opposed
to the form of the resolution of the Senator from Pennsylvania.
I am in favor of the form of the resolution of the Senator from
Ohio.
Mr. FORAKER. Mr. President, I desire only to say a word
of the same general character as that which has been spoken by
the Senator from Wisconsin [Mr. Spooner], My objection to
the resolution offered on yesterday by the Senator from Wyo¬
ming [Mr. Warren] was that under it the President would
have a right to withhold information particularly called for by
the ^resolution I had offered. Senators will observe when they
come to look at that repolution that nothing is called for except
only that which is specifically described, and that it is all of a
character such as the Senate is clearly entitled to. No one has
the right to withhold it from the knowledge of the Senate if the
Senate asks for it. That was the only objection I had to having
my resolution incorporated with the resolution offered by the
Senator from Pennsylvania in a resolution such as was offered
by the Senator from Wyoming [Mr. Warren] on yesterday.
The same objection, of course, lies to the suggestion which was
made, also, by the Senator from Pennsylvania that we might
unite the resolutions. If the Senate sees fit to adopt it, I have
no objection to the resolution offered by the Senator from Penn¬
sylvania; but I shall insist in any contingency upon the con¬
sideration of my own resolution as calling for information we
are clearly entitled to without anybody giving his judgment
whether or not it is our right to have it.
Mr. LODGE. Mr. President, on the matter of precedents I
have only had a -moment to look back. My memory was that
we had sent many inquiries to the President which did not refer
to foreign relations. On looking hastily back through a book
7111
7
from the Secretary's desk, I find in the Fifty-ninth Congress
the following resolution, offered by the Senator from Minnesota
[Mr. Nelson], was adopted:
Resolved, That the President is hereby requested, if not incompatible
with the public interests, to transmit to the Senate the reports of the
Keep Commission on Department methods, relating to official crop sta¬
tistics and the Investigation of the Twelfth Census report on agri¬
culture.
It seems nothing could be more purely domestic than that.
I find another, as follows:
Resolved, That the President be requested to furnish the Senate, if
not incompatible with the best interests of the service, the petition and
accompanying papers of certain officers of the Army, veterans of the
civil war, retired from active service for disability contracted in the
line of duty, and who have not yet received the benefits of the act of
April 23, 1904.
Those are two very recent ones. I thought I remembered
some relating to the Philippines, and I find there are some.
This book only goes back to the Fifty-eighth Congress, but I
find a resolution submitted by Mr. Hoar, as follows:
Resolved, That the President be requested, if not in his opinion In¬
compatible with the public Interest, to inform the Senate whether there
be any law or regulation in force In the Philippine Islands which will
prevent any native of those islands who may so desire, not under ar¬
rest and against whom no charge of any offense against the United
States is pending, from coming to the United States and stating his
views or desires as to the interest of his people to the President or
either House of Congress.
Mr. SPOONER. When was that adopted?
Mr. LODGE. That was referred to the Committee on the
Philippines, and printed. It Avas not adopted. The other two
that I read were adopted. I have no doubt that others could
be found. Certainly, I think that there can be no question
that resolutions of inquiry have been addressed to the President
on all possible subjects. In this -case, he being Commander in
Chief of the Army, it seems to me it is perfectly proper in form
to address a resolution to him on a subject where he has taken
direct action and about which there is a great deal of public
feeling and has been a great deal of public discussion. It seems
to me the proper way to get the facts before us is to make
inquiry, not only of the War Department, but of the President
himself, so that he may have an opportunity to state to Con¬
gress in the fullest official manner the reasons which actuated
him in rendering this uecision, which, of course, as we all know,
is peculiarly his own.
Mr. WARREN. Mr. President, I take it for granted the
President will find some way to put the Senate in possession of
any information he has that he wishes to put before it. On
the other hand, it seems to me entirely proper for the Senate
to ask the President for such information as the Senate wants,
and that he is the proper one to ask. And believing that the
Senate and the country want all the information obtainable
I am willing, if I have the opportunity, to vote for both resolu¬
tions, the one proposed by the Senator from Pennsylvania [Mr.
Penrose] and the one proposed by the Senator from Ohio
[Mr. Forakeb]. I know of no rule against such action. I
know of no custom against it. I know of no reason why we
should not adopt both resolutions as presented here, though by
all means we should indorse the one directed to the President
whether or not we adopt the other one.
7111
8
Mr. TELLER. Mr. President, the precedents cited by the
senior Senator from Massachusetts [Mr. Lodge] might be in¬
creased in great number. For many years past, even during the
war, it was a frequent occurrence to call on the President for
information. I myself have been somewhat of a stickler in
reference to the form of resolutions of inquiry. We request the
President, and we direct the Cabinet officers; but, after all, the
whole matter of communicating information to this body by
Cabinet officers is absolutely under the control of the President.
If the President declines or thinks such information should not
be sent, it is not sent. We request the President for informa¬
tion, " if not incompatible with the public interest." That is
merely a courteous form of making the request If we left out
the expression "if not incompatible with the public interest,"
he would still have authority to withhold any information. I
think it will be found that the rule among Cabinet officers,
whenever requests of delicacy or importance have been pre¬
sented by Congress, has been to consult the President in relation
thereto.
Mr. LODGE. Will the Senator allow me to ask him a ques¬
tion in that connection?
The VICE-PRESIDENT. Does the Senator from Colorado
yield to the Senator from Massachusetts?
Mr. TELLER. Certainly.
Mr. LODGE. My memory is that there have been cases
within comparatively recent years where Cabinet officers hav¬
ing been directed by resolution of the Senate to send certain in¬
formation to it, have withheld entirely, or withheld in part, such
information by order of the President.
Mr. TELLER. Undoubtedly.
Mr. LODGE. I think it occurred under Mr. Cleveland on
more than one occasion, and I think it has occurred in relation
to the Department of the Interior quite recently, though I do
not remember the exact date.
Mr. CARMACK. Mr. President
The VICE-PRESIDENT. Does the Senator from Colorado
yield to the Senator from Tennessee?
Mr. TELLER. Yes.
Mr. CARMACK. I think that occurred'In a former session
of Congress when an answer to a resolution of mine asking the
Secretary of the Treasury for certain information was declined
on the ground that it would be incompatible with the best in¬
terests of the public service.
Mr. TELLER. Mr. President, there are undoubtedly a large
number of precedents of that kind. I had occasion some time
ago to consult the precedents running back forty or fifty years
and I have a very distinct recollection of a number of cases
where Presidents have declined to communicate information
both to the House and to the Senate.
I do not think there is any impropriety in our asking the
President in a courteous, proper manner to communicate in¬
formation to the Senate. I am under the impression, Mr.
President, that the better practice would be to ask the Secret
tary of War, the Secretary of the Treasury, or the Secretary
of the Navy, whoever it might be that had the matter under
control, without annoying the President and adding to his
■work. But, so far as I am concerned, I am willing to vote for
Till
9
a resolution asking the President for Information, or I am will¬
ing to vote for a resolution asking the Secretary of War for in¬
formation ; but I do not think we ought to ask them both. It
seems to me we ought to confine ourselves to one or the other.
I simply express my preference for the method of asking the
Secretary of War, instead of asking the President. If the
President or the Secretary of War wish to communicate on the
subject, they know how to do so by direct message to this body.
Mr. LODGE. Mr. President
The VICE-PRESIDENT. Does the Senator from Colorado
yield to the Senator from Massachusetts?
Mr. TELLER. Certainly.
Mr. LODGE. I was going to say that the resolution I read
requesting the President for certain information in regard
to veterans of the civil war was introduced by the Senator
from Colorado [Mr. Teller] himself.
Mr. CARTER. Mr. President, briefly, and principally to ad¬
dress myself to the Senator from Wisconsin [Mr. Spooner], I
think it may be taken for granted that as a matter of mere
official ethics the address of the resolution of the Senator from
Pennsylvania [Mr. Penrose] to the President of the United
States is deferential and correct. It must not *e lost sight of
that the President represents the executive department, a co¬
ordinate department of the Government. The right of the Presi¬
dent, because of his character as Chief Executive of the Nation,
charged with the conduct of our foreign affairs, to be the sole
judge as to the communication to Congress of matters relating
to our international affairs was well stated by the Senator from
Wisconsin.
The Senator further proceeded to say that in case of actual
war it would be obviously improper for the Senate to call upon
the Commander in Chief of the Army and Navy for plans of
battle or campaigns, for drafts of fortifications or lines of de¬
fense, or for any information which, if made public, might
militate against the interests of the country. But the Senator
undertakes to differentiate by saying that this is a time of
peace, and, therefore, the directions of the President with refer¬
ence to the Army must be under a different rule as relates to
the legislative department from that which would obtain in
time of war. The logic of that, I think, will not be apparent
to the mind of the Senator from Wisconsin when he reflects
upon the particular facts in this case as made known by cur¬
rent information. It is alleged, and not denied, that the troops
engaged in the controversy concerning which we seek informa¬
tion actually committed murder in the State of Texas.
Mr. FORAKER. Mr. President
The VICE-PRESIDENT. Does the Senator from Montana
yield to the Senator from Ohio?
Mr. CARTER. I do.
Mr. FORAKER. I do not know whether I correctly under¬
stood the Senator. I understood him to say that it is charged,
and not denied, that the troops mentioned, or some of them, com¬
mitted murder in the State of Texas. I want to say to the Sena¬
tor that I am not surprised that he makes that statement, be¬
cause that is the popular understanding as I gather from the
newspapers; but, nevertheless, it is not true. The record shows
that that charge is denied, and there is a great deal of testi-
7111
10
wony, if not the weight of testimony, in favor of the denial.
But that is a matter upon which I do not wish to enter. It is
a matter we can discuss after we get the facts for which the
resolutions call, one of which facts is the testimony that has
been submitted. We can then look it over and see what the
state of facts is.
Mr. CARTER. It is not necessary to the elucidation of the
point I desire to make that I should characterize the current
report as correct or incorrect. I will merely state, then, that
it is alleged, and not denied, that certain soldiers of the United
States at a point in Texas disturbed the public peace.
Mr. FORAKER. Mr. President, if the Senator will allow me,
that also is denied. The question which has been under con¬
sideration when the testimony has been taken has been whether
or not the soldiers, or any of them, participated in this so-called
" shooting up" of the town. The testimony does not clearly
show that any of them did, and there is testimony to show that
none of them did.
Mr. CARTER. Then, in order to reach an understanding
Mr. TILLMAN. Mr. President
The VICE-PRESIDENT. Does the Senator from Montang
yield to the Senator from South Carolina?
Mr. CARTER. If the Senator from South Carolina will per¬
mit me, I will say that it is alleged
Mr. FORAKER. Yes.
Mr. CARTER. That some disturbance occurred at a point
in Texas for which soldiers of the United States were respon¬
sible.
Mr. FORAKER. Mr. President
The VICE-PRESIDENT. Does the Senator from Montana
yield to the Senator from Ohio?
Mr. CARTER. Most assuredly I yield.
Mr. FORAKER. I do not wish to be overly particular about
this, but I have seen so much of this statement, assuming that
this, that, and the other thing has been done, that I feel called
upon to set the Senator right in the hope that I may at the
same time set a great many other people right.
Mr. CARTER. I will say to the Senator that I do not assume
anything. I say it is alleged. Does the Senator from Ohio
deny the fact that it is alleged?
Mr. FORAKER. I do not deny that it is alleged that troops
belonging to this command were guilty of the offense to which
the Senator refers, but what I want to get before the Senate
is that it is denied, and there is a very strong lot of testimony
in support of that denial. What the fact is I do not pretend
to say. I want to get all the facts, and then we can find out.
Mr. CARTER. Then, Mr. President
Mr. TILLMAN. Mr. President
The VICE-PRESIDENT. Does the Senator from Montana
yield to the Senator from South Carolina?
Mr. CARTER. I yield to the Senator from South Carolina
Mr. TILLMAN. I was merely going to remark that I saw In
the Washington Post this morning what purports to be an ad¬
vance copy of something the Secretary of War will send to us
in his annual report, and he has thought it of sufficient mo¬
ment to give it to the press ahead of its official presentation.
7111
11
If I am not mistaken, I saw in that report; or that alleged re¬
port—we have to speak by the card this morning—it appears
Mr. CARTER. The Senator had better put it that way.
Mr. TILLMAN. That the Secretary of War practically as¬
serts what the Senator from Montana asserts; and the Secre¬
tary of War certainly would not give out to the newspapers,
as an authoritative statement coming from him, a misstatement,
would he?
Mr. FORAKEIl. Mr. President
Mr. CARTER. I wish to interpolate, to the end that it may
not be lost to the record, that the Senator from Montana has
made no assertion in reference to the occurrence in Texas.
Mr. TILLMAN. I understand that what the Senator is al¬
leging
Mr. CARTER. The Senator stated that it was alleged In
current reports. Beyond that the Senator from Montana as¬
serted nothing.
Mr. TILLMAN. The Secretary of War alleges, or the news¬
papers allege that he alleges, that certain soldiers, ten or
twenty, did shoot up the town of Brownsville, and the facts in
regard to that transaction are what the Senator from Ohio Is
trying to get. and I hope the Senate will help him to get them.
Mr. FORAKER. Mr. President
The VICE-PRESIDENT. Does the Senator from Montana
yield to the Senator from Ohio?
Mr. CARTER. I yield.
Mr. FORAKER. Just a moment, if the Senator will allow me.
I also read in the morning papers what was reported to have
been written by the Secretary of War, and I noticed the un¬
qualified statement of the guilt of these men made by the Sec¬
retary of War, and it was because I noted that that I was more
particular to interrupt the Senator from Montana than I other¬
wise would have been.
The Secretary of War, as I understand, does not pretend to
have any information on this subject except only what is given
in a pamphlet which has been printed by the War Department,
setting forth all the testimony that has been taken in regard to
this trouble, and setting forth also the reports of the several in¬
spectors who have been there to investigate that trouble. This
is what the Secretary of War had before him
Mr. TILLMAN rose.
Mr. FORAKER. Only a line, if the Senator from South Caro¬
lina will allow me.
Mr. TILLMAN. I merely want to ask the Senator where he
got the copy of that document. I have been trying to get some¬
thing bearing on this subject.
Mr. FORAKER. I saw in the newspapers that the War De¬
partment had printed this document, and I sent there and asked
if I might be favored with a copy, and they favored me. I have
no doubt the Department will give the Senator one.
Mr. GALLINGER. One was sent to everybody.
Mr. LODGE. One was sent to every Senator.
Mr. TILLMAN. Mine has not come. I should like to have the
Senator from Massachusetts give me his, if he has a copy of it.
Mr. FORAKER. Major Blocksom is the first inspector sent
to Brownsville and the only one who went to Brownsville, and
after he had been there and had carefully gone over the whole
7111
12
situation, and after he had examined all the witnesses and had
inquired among the troops he saw fit to call upon, and after he
had familiarized himself with the testimony taken by the citi¬
zens' committee, he wrote his report, in which occurs this state¬
ment :
The officers appeared to be trying to find the criminals, but it Is
certainly unfortunate for the reputation of the battalion that they
have as yet hardly discovered a single clue to such a terrible precon¬
certed crime committed by so many men.
Then on the 28th day of August, after he had completed his
investigation and after the command had left there for El Reno,
he reported to the War Department, to the Chief of Staff, saying,
among other things :
Almost no evidence against men arrested, though believe majority
more or less guilty, etc.
Mr. CARTER. Mr. President
Mr. FORAKER. If the Senator will bear with me for just
a moment, running all through not only this report, but each of
the other reports, is the same uncertainty as to the guilt, the
same confession that there is no satisfactory evidence; and I
do not hesitate to say that this evidence, on which is predicated
the claim that these men are guilty of committing this crime, is
the most incomplete, the most unsatisfactory, the most flimsy
in character on which a conviction was ever rested to my knowl¬
edge. So, instead of saying there is against these men testi¬
mony which shows their guilt without doubt, just the opposite
is true.
In addition to the character of this testimony, which is so
unsatisfactory, is the contradictory testimony, negativing these
charges, given by the noncommissioned officers who had charge
of quarters, and who had charge of the guns, and who were in a
situation to know what the truth was. I understand it will be
no trouble to show that these are all men of good reputation for
truth and veracity, who have the confidence, as the positions
they hold indicate they have, of the officers who put them in
those positions. Now, the testimony of all these men is of ne¬
cessity entirely excluded by those who say there is no doubt
whatever about the guilt.
But, as I say, I do not now desire to discuss this matter.
When I get the facts I do want to present to the Senate an
analysis of the testimony, to show the character of it, and to
show how unsatisfactory and how insufficient it is to warrant
the serious finding against these men, and especially the men
who are conceded to be innocent and who are being punished
under this order.
Mr. CARTER. Mr. President, I think the Senate will agree
with me
Mr. CULBERSON. Mr. President
The VICE-PRESIDENT. Does the Senator from Montana
yield to the Senator from Texas?
Mr. CARTER. I should like to make an observation just at
this point, and then I shall be glad to yield.
The VICE-PRESIDENT. The Senator from Montana declines
to yield.
Mr. CARTER. Mr. President, the Senator from Ohio chal¬
lenged my statement that it was alleged that some disturbance
7111
13
occurred in the State of Texas with which troops of the United
States were connected.
Mr. FORAKER. No; " responsible."
Mr. CARTER. I submit to the Senate that the Senator from
Ohio has amply justified by his statement the fact that allega¬
tions were made and issues framed to which he very eloquently
addresses himself.
I now yield to the Senator from Texas.
Mr. CULBERSON. Mr. President, by the courtesy of the
Senator from Montana I desire to state that I agree with the
Senator from Ohio that this is not the time to discuss the tes¬
timony. But I can not permit his observation to pass unchal¬
lenged that there is practically no testimony as to the guilt of
these soldiers on the 13th of August at Brownsville.
Mr. FORAKER. If the Senator from Texas will pardon me,
I did not say there was no testimony or practically no testi¬
mony.
Mr. CULBERSON. The Senator from Ohio said the weight
of the testimony was to the contrary.
Mr. FORAKER. I said the testimony was insufficient, and
that the weight of the testimony, if colored men are to be be¬
lieved at all, is to the contrary.
Mr. CULBERSON. Occupying but a moment more of the
time of the Senator from Montana, I desire to call attention to
the fact that the Senator from Ohio omitted, doubtless inad¬
vertently, to read fully from the report before him. I desire
to read a paragraph from the report of the commanding officer
at Fort Brown upon the subject, which the Senator no doubt
has seen. I read from a telegram, dated August 15, fo The
Military Secretary, and signed C. W. Penrose, Major, Twenty-
fifth Infantry, Commanding. The Senator from Ohio will find
it at the bottom of page 12 of this pamphlet:
Were it not for the damaging evidence of the empty shells and used
clips I should be of the firm belief that none of my men was in any
way connected with the crime.
That was based, Mr. President, upon their statement merely
that they were not. Now, what does the major add to that?
But with this fact so painfully before me I am not only convinced it
was perpetrated by men of this command, but that it was carefully
planned beforehand. I have the affidavits from three noncommis¬
sioned officers who were in charge of quarters on the day and night,
and they swear positively the rifles were verified and the racks locked
after drill (practice march of Companies B and D, drill of Company C),
and the old guard returned to the quarters; that they never left the
quarters, and that the keys to the locks of the racks were never out
of their possession, and that the racks were not opened until call to
arms sounded, and were then opened by them.
From testimony gathered by the citizens' committee and given to tne
by Doctor Combe, I believe from seven to ten men were implicated in
this matter. Some one of them must have had a key to the gun rack,
and after check roll call was taken—for all were reported present at
II p. m. roll call—they slipped out of quarters, did the shooting, re¬
turned while the companies were forming, and at some time during the
early hours of the morning cleaned their rifles. This is made possible
from the fact that the shooting all occurred within two short blocks of
the barracks.
Mr. President, that is all I desire to say for the present, but
I ought to have had the indulgence of the Senate while I gave
to the Senate and to the country this statement of tne com¬
manding officer.
Mr. FORAKER. Mr. President*
7111
14
The VICE-PRESIDENT. Does the Senator from Montana
yield to the Senator from Ohio?
Mr. FORAKER. Will the Senator from Montana yield to
me for another moment?
Mr. CARTER. Certainly.
Mr. FORAKER. I wish to correct the impression which the
Senator from Texas seems to have received from what I said.
I did not say, as I understood him to repeat I had said, that
there was no testimony. I said it was unsatisfactory, in¬
complete, and of a flimsy character, using some such expres¬
sions as those; and that I reiterate. I was not unmindful of
the fact, when I made that statement, that Major Penrose, the
commanding officer, had made this report. I had read it But,
Mr. President, I was, with that in mind, also remembering what
the testimony is in this case and what I shall be able to show
to Senators it is in this case when we come to analyze it and
discuss it and compare it and point out its consistencies and its
inconsistencies. I think Major Penrose, when he wrote that
report, was of the opinion that certain of the men had unlocked
the gun racks and had taken out the guns and had done this
firing, and that that was the only way to account for the
" shooting up " of the town; and it may be that that is the
truth. I do not pretend to say. But I do say that the weight
of testimony, if the colored men who have given their evidence
under oath are to be believed, is to the contrary, and I think
I can demonstrate that, and I think I can explain, too, why
Major Penrose made that kind of a concession in the report he
made.
Mr. CARTER. Mr. President, it was no part of my purpose
to precipitate at this time a discussion on the merits of this
controversy, with only limited information in the possession of
the Senate. The purpose of the resolution of the Senator from
Pennsylvania [Mr. Penrose], supplemented by that of the
Senator from Ohio [Mr. Foraker], is to secure full informa¬
tion concerning those transactions referred to in the respective
resolutions. The only question before the Senate, as I under¬
stand, is that raised by the Senator from Wisconsin [Mr.
Spooner] concerning the manner of addressing the President
of the United States in the resolution upon which we are about
to vote. He objects to the words "if compatible with the
public interest," thus leaving it according to1 the phraseology,
respectfully subject to the judgment of the President as to
whether the information shall be given in whole or in part.
Now, the Senator from Wisconsin proceeds to say that this
would be an entirely proper address to the President of the
United States if we were engaged in actual war. This resolu¬
tion refers to the management of the Army of the United States
by its Commander in Chief, the President of the United States,
and I suggest to the Senator that the form of address which
would be proper in time of war can not be improper in time of
peace.
The Senator upon reflection will realize—and I again ap¬
proach dangerous ground—that it is alleged that in this case,
in the transaction complained of, certain citizens of the State
of Texas were murdered, and that the Army of the United
States was in some manner, directly or indirectly, concerned in
that murder. I submit to the Senator from Wisconsin that it is
7111
15
not improbable, under such circumstances, that the Department
of Justice has been in correspondence with officials of the State
of Texas with reference to the subject-matter of this alleged
murder of citizens of that State. This resolution, if addressed
to the President containing no. limitation as to that discretion,
or suggestion of it, would not only call upon the President to
send to the Senate all the correspondence emanating from the
War Department and the officers of the United States Army, but
likewise all the information contained in the correspondence of
the Department of Justice with officials of the State of Texas.
Now, it must be obvious, I think—along the line of reasoning
suggested by the Senator—that it would be highly improper for
us to ask the Department of Justice to convey to us informa¬
tion, which would thus become public, concerning a public
transaction; that it would be highly improper to ask the Presi¬
dent of the United States unqualifiedly to transmit to the Sen¬
ate correspondence with officials of the State of T6xas which
involves or may involve the possible criminality of a soldier of
the United States under the laws of that State. So, according
to the reasoning of the Senator himself, I think it is quite ob¬
vious that the phraseology of the Senator from Pennsylvania
in respectfully suggesting to the President that he may transmit
this information, if, in his judgment, it is not incompatible with
the public interest, is eminently appropriate in this particular
case. I think the Senator from Pennsylvania weighed his
words well and considered the" situation fully when he framed
the language of that resolution, which is in conformity, as I
understand, with an ancient and almost unvarying line of pre¬
cedents emanating from this body.
Mr. PENROSE. Mr. President, I have as high an opinion of
the legal attainments and knowledge of precedents possessed
by the Senator from Wisconsin [Mr. Spooner] as has any mem¬
ber of this body, and I do not yield to him in any degree in my
jealous regard for the prerogatives and privileges of the Sena¬
torial office. But in the contention he makes in this matter I
can not see that he has the slightest foundation in the line of
precedents. The Senator from Massachusetts [Mr. Lodge] has
referred to several of them. I have one here:
Januaby 16, 1906.
Mr. Teller submitted the following resolution:
Resolved, That the President be requested to furnish the Senate, If
not incompatible with the best interests of the service, the petition
and accompanying' papers of certain officers of the Army, veterans of
the civil war, retired from active service for disability contracted in
the line of duty, and who have not yet received the benefits of the act
of April 23, 1904.
A purely routine departmental matter, having no relation to
the high constitutional and international relations referred to
by the Senator from Wisconsin. On January 31 the President,
in response to the Senate resolution, sent to this body a message
of many pages, being Senate Document 179.
On May 28, 1906, Mr. Nelson submitted the following resolu¬
tion :
Resolved, That the President is hereby requested, if not incompatible
with the public interests, to transmit to the Senate the reports of the
Keep Commission on Department methods, relating to official crop sta¬
tistics and the investigation of the Twelfth Census report on agricul¬
ture.
Tn response to that resolution, which was passed by the Sen¬
ate, the President sent a message, known as " Document No.
7111
16
4G4," relating to a matter possessing none of those high quali¬
fications—constitutional and international—referred to by the
Senator from Wisconsin. I have here a number of other resolu¬
tions, but I will not take up the time of the Senate by more than
referring to them.
The pending resolution was not hastily prepared by me, but
was prepared after having examined a very large number of
precedents in the Senate, and the phraseology is identical with
those precedents. If the resolution differs from its prede¬
cessors, it is only in the element of its greater brevity and sim¬
plicity.
It occurred to me that the President, being the Commander in
Chief of the Army of the United States, having assumed before
the country sole responsibility for this act, having in the public
mind, perhaps, incurred some disagreement with his own Sec¬
retary of War upon the subject, was the proper person and the
only person to whom this body should submit a resolution re¬
questing information; that it would be discourteous to him to
go below or beyond him and ask the information from any other
person than the one who was primarily responsible and the one
who assumed the responsibility before the people of the country.
Mr. President, I introduced the resolution without guile, out
of a natural relationship to a large colored constituency in the
State of Pennsylvania, whose race prejudice has been aroused
and who felt that perhaps an affront had been put upon them.
I did not know that I was going to create such a disturbance
in the minds of some of my colleagues as was developed when
I heard the anguished tones of the Senator from Ohio inform¬
ing this body that he had a similar resolution which he would
like promptly to get before us.
Mr. FORAKER. Mr. President
The VICE-PRESIDENT. Does the Senator from Pennsyl¬
vania yield to the Senator from Ohio?
Mr. FORAKER. I did not catch the adjective which the
Senator from Pennsylvania prefixed to my tones.
Mr. PENROSE. I had no political purpose to serve and no
one to punish.
Mr. FORAKER. Mr. President
Mr. PENROSE. I was in a legitimate mental attitude.
Mr. FORAKER. Mr. President
The VICE-PRESIDENT. Does the Senator from Pennsyl¬
vania yield to the Senator from Ohio?
Mr. PENROSE. I will be through in a minute, and then the
Senator from Ohio can have the floor.
The VICE-PRESIDENT. The Senator from Pennsylvania
declines to yield.
Mr. PENROSE. I was in a perfectly legitimate mental at¬
titude, desiring to seek the truth, a condition of mind to which
no reasonable man can object. Nor have I ever known a reso¬
lution solely, and in a bona fide spirit, intended for such a
purpose to be objected to or delayed or to encounter technical
objection or controversy.
I am myself investigating this matter, and if I find that
these colored troops have been wronged, if injustice has been
perpetrated, I will be as zealous and active the Senator
from Ohio or any other member of this body to see that that
Injustice is righted. If, on the other hand, grave felonies and
7111
IT
misdemeanors and wrongs have been committed and the action
of the Department is right, I will be found supporting the
action of the Department. At the present time my only in¬
terest is to see that this matter is thoroughly cleared up, and
that the great colored constituency of Pennsylvania will feel
that there is no mystery or obscurity surrounding the subject,
and that no injustice has been perpetrated upon their race.
Mr. FORAKER. Mr. President, I understood the Senator
from Pennsylvania [Mr. Penrose] to say that I had offered my
resolution in angry tones.
Several Senators. Anguished.
Mr. FORAKER. What is it?
Mr. PENROSE. I referred more to a condition of anguish
than of anger.
Mr. FORAKER. Oh, anguished. Mr. President, I was not
aware that my tones indicated either anger or anguish. They
certainly did not indicate either. I, in common with everybody
el.se, I think, was taken by surprise when the Senator from
Pennsylvania, violating all precedents, offered his resolution.
I happened to have in my pocket the resolution which I had
dictated to my stenographer, and which he had furnished to me,
but which I had not had opportunity to look over, and not
understanding and not liking the kind of resolution offered by
the Senator from Pennsylvania, I offered mine as a substitute,
and asked that it might go over until another day, when it coulcl
be properly considered. I have no purpose in view except only
what the Senator from Pennsylvania says he has in view, to
get the facts in order that the whole subject may be intelli¬
gently considered and acted upon here in the Senate, as I think
it will have to be.
But, Mr. President, what I rose to say more particularly
than that is that I did not offer the resolution because it in¬
volved the race question. It is not necessary to consider that
question at all, and I do not desire to consider that question,
and have no thought to consider that fluestion. In my opinion,
it is a much broader and a much more serious and a much
more important question than that. It is a question which
concerns white men as well as colored men. It is a question
which concerns the Army itself. What avail is it that the
' Congresfe may raise armies if, as fast as they are raised, the
President may, if he sees fit to do so, disband them? If the
President may disband one company he may disband three,
as he has done here, and if he may discharge a whole battalion,
he can do away with a regiment if he so likes, and if he can do
away with a regiment, a brigade, and, as I say, the whole
Army.
But that is' not the most important question either, Mr. Pres¬
ident, for I do not apprehend that any President would do any¬
thing like that. I believe it will be easy to show that no Pres¬
ident has power to do any such thing and that no President
would have disposition to do any such thing. The broader ques¬
tion is one of constitutional right The President does have
power, as the Secretary of War says in the statement published
in the papers this morning, to grant discharges without honor
in contradistinction to discharges that are dishonorable and to
discharges that are honorable. But running through all au¬
thority, and necessarily so because of the spirit of our insti-
7111 2
18
tutions as well as the letter of the law, is this rule, that no such
discharge can be granted by any order, from the President
down, when it rests upon a conviction of a felony punishable
with imprisonment in the penitentiary under the laws of the
United States and when as a result of such discharge punish¬
ment is inflicted as though it had been in pursuance of the sen¬
tence of a court-martial.
Whenever it comes to the point where men are charged with
the commission of a criminal act they are entitled to a trial
before they are condemned, and they have-that right, although
they may be enlisted men in the Army of the United States.
They have it under our constitutional guaranties, and they
have it according to the letter of the statute that is applicable.
I shall point out, when the proper time comes, that the Con¬
gress of the United States has been careful, in enacting the
Articles of War and other statutes for the government and regu¬
lation of the Army, to provide that there shall be no conviction
of any enlisted man of any offense upon which a discharge can
be predicated until he has had a trial before a court-martial or
some other duly constituted tribunal.
Mr. WARREN. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Wyoming?
Mr. FORAKER. I yield.
Mr. WARREN. I assume, of course, that the Senator from
Ohio realizes the fact that the President of the United States
has power to reduce or increase the Army within certain limits,
and that he has heretofore exercised it, decreasing it very ma¬
terially?
Mr. FORAKER. Yes; and there arises another question,
which I did not intend to address myself to now. The President
has the right and the power under the law which we have en¬
acted to increase the Army not beyond a named maximum and
to decrease it not below a named minimum. If he undertake to
decrease the Army below the minimum by discharging a bat¬
talion, if it have that result, his act for that reason would be
unlawful.
But, Mr. President, I do not stand upon any mere statutory
provision of that kind. I stand upon the broad proposition that
no man in this country can be convicted of crime until he has
had a right to be heard.
Now, how stands the case with these men? I have called at¬
tention to the fact in the remarks made a few minutes ago
that these enlisted men and their officers, who were in charge of
guns and quarters, have all testified under oath. If their tes¬
timony be true, no crime has been committed by any of these
men, and it is only upon the theory that they have also com¬
mitted perjury that the conclusion was reached upon which this
action has been taken.
So these men are guilty, some of them of murder, if the case
upon which the President has acted be established; others from
the knowledge of that murder have been guilty of misprision of
felony in refusing to tell about it, and others of them still,
nearly all of them, have committed perjury in saying they had
no knowledge of it. They can therefore be tried for three
crimes, all of them involving moral turpitude and all of them
involving punishment in the penitentiary.
Till
19
Is it possible, Mr. President, that by an Executive order men
can be so convicted and punished?
But look, if you will bear with me a moment, to the result of
this order. The resolution I have offered points out—and I
had that in my mind—that we have a statute which provides
that when a man has served for thirty years faithfully and hon¬
orably he shall have a right to retire on three-quarters pay with
a monthly allowance of $9 for clothing and subsistence. That
can not be allowed to the man who is discharged without honor.
It is only allowed to the man who is honorably discharged. I
do not know how many men there are, but quite a number, I
know, from the testimony which has been given, of those who
have been discharged who would soon be entitled to be so re¬
tired. That is an important right. All retained pay is for¬
feited ; so, too, their right to pensions.
Others have served more than twenty years and are entitled
to membership in the Soldiers' Homes of the country. They
lose that right. All of them, if honorably discharged, will be en¬
titled to honorable burial, without cost to them, in national cem¬
eteries. They lose that right. All this is not important, perhaps,
to the Senator from Pennsylvania, but it is important to the
men who have served so long and so faithfully to acquire these
rights.
So I might go on enumerating other rights.
Mr. PENROSE. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Pennsylvania?
Mr. FORAKER. I will be through in a little bit, and the Sena¬
tor can then take the floor and deal in questions of anguish or
anger, as he may see fit.
So it is, Mr. President, that this broadens out, as I say, into
a case where men are sent forth branded as criminals, threefold
criminals—men who have committed murder or who have sup¬
pressed the knowledge of murder, although called upon by the
legal authorities to give that knowledge, and men who have com¬
mitted perjury. They are branded with all these crimes, and
.as a result of it they are stripped not only of honors, but also of
property rights.
Now, I say, without any statutory provision on the subject,
the Constitution itself protects them. No man can be deprived
of life, liberty, or property without due process of law. Due
process of law means in accordance with the law of the land.
The law of the land says when a man is charged, although an
enlisted man in the service of the United States, with the com¬
mission of an offense of that character he shall have a right to
trial before a court-martial and the sentence shall be such as
the court-martial may direct That is the law of the case.
It was from considerations of that kind, without any desire,
Mr. President, to make it a color question, without any desire
to introduce into the discussion of the subject any of the race
prejudice that we see so much of to our great regret here and
there, evinced throughout the country, without any desire to
find any fault with any body, but only that we might protect
broad principles and protect men who are entitled to our pro¬
tection in the enjoyment of their acquired rights that I in¬
troduced this resolution and specified the facts I want to obtain.
7111
20
Mr. SCOTT. Will the Senator from Ohio allow me to ask
him a question ?
Mr. FORAKER. Certainly.
Mr. SCOTT. May I ask whether any of the white officers
who had. charge of these three companies were dismissed in
the order?
Mr. FORAKER. No, Mr. President, no white officer is dis¬
charged. No white officer is really criticised. There is a sort
of criticism made by Major Blocksom, the first inspector, as to
one of the officers, but that he practically answers and says he
does not insist upon it. They go clearly acquit. I think,
Mr. President, they are entitled to go acquit until there is some
evidence produced that somebody did the thing these men are
charged with having done.
Now, the Senator talks about this testimony. There is a great
deal of it I might read at length, but if Senators will bear with
me a moment I will read just two or three samples. Here is
the kind of testimony sent to the War Department, and which
along with other testimony forms the predicate of this case of
crime. %
Mr. F. M. McCampbell's testimony:
I was on my way to the house on the night of the 13th, when we
met some soldiers, and they turned the guns on us and asked us, " What
are you sons of bitches hunting for ? " I think it was a whole com¬
pany. I did not see any white officer with them. I just saw the
ranks of the soldiers. They went in the direction of town, and " We
care very little if we shoot you full of holes," they said. Mr. Fielder
was going to the hotel. I did not see any firing. I don't think there
was a commissioned officer with the soldiers. That's all, about, I
know. This happened right about behind the market. There must have
been about fifty or sixty men in the company. Mr. Fielder was with
me going to the Rio Grande Hotel at that time. That's all.
The testimony shows, and there is no dispute upon that point,
that after the firing was over the commanding officer sent one of
the companies, consisting of fifty-two men, to patrol the town,
and those are the soliders this man saw. Yet that is paraded
as evidence that the soldiers did this shooting.
Mr. M. G. Dalling's testimony:
I am a State ranger. I have come into the possession of some infor¬
mation this morning, which I got from this soda-water man who sells
soda water. He told me that this soda-water man had been told by a
saloon man, who keeps a saloon in the edge of town, that some shooting
had been done last night, and that Company C could have taken the
whole town if they had wanted to, and that they could take the whole
damn State.
Mr. G. W. H. Rucker's testimony:
About Monday night last, about half past 8 o'clock, I took two cases
of soda water to saloon near edge of town. There were about thirty
or forty negroes inside gambling, as near as I can ascertain about the
crowd, and I heard three or four negroes making threats that they
would die and go to heaven before they would go back into post, but
do not know what the conversation was about. Yes; I know if I
would see this soldier again I would recognize him. I could pick him
out of a crowd. He was a soldier. Yesterday morning I passed this
negro saloon, but nobody was there. At about 12 o'clock, it must
have been, as I was picking up empty cases, I went to this saloon and
the proprietor told me that he did not need any " pop," as the bovs
had been having a little trouble with the citizens and they were all in
the post. He is working for two soldiers who are in the post, who own
the saloon. He said that if a gun had been fired last night that Com¬
pany C could have come out without any orders, and would run every
man out of town; that Company C could whip the whole State of
Texas.
And so on for quantity. Now, here is the testimony of Mr.
7111
21
J. P. McDonald. Here is a right intelligent witness, but he con¬
tradicts in one respect the testimony of every man on whose
testimony this finding is based. Mr. J. P. McDonald testified:
Question. We are here to get what information we can that will
throw light on the circumstance.—Answer. I hoard on the little block
next the garrison, about the middle. I knew there was bitter feeling
in town and thought that if they caught any negro soldiers up town
they might do them up. So I laid awake ; never pulled off my shoes.
When the first fire started I jumped up. There were from six to ten
shots on Elizabeth street; then they censed.
There is the testimony qf a citizen of Brownsville, wlio laid
awake because he was expecting trouble, and being awake and
listening for them, he heard the first shots, and he has a right
to testify intelligently upon that point. He tells us where the
firing commenced—down on Elizabeth street. Other witnesses
claim to have seen colored soldiers and that the firing com¬
menced at the quarters inside the wall surrounding the post.
I might go on at great length, but I think I have gone far
enough to show the general character of this testimony. Then,
after this testimony there is testimony here that will be given
proper attention at the proper time, of people who say what
they saw; but, as I said, when I take it up to analyze it I will
have something to say about that testimony which I do not want
to say now.
Mr. CULBERSON. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Texas?
Mr. FORAKER. I yield for a moment.
Mr. CULBERSON. The Senator from Ohio in reading the
testimony of this man McDonald undertakes to create the im¬
pression—in fact, I believes he makes a direct statement, which
contradicts the other witnesses—by saying that the first shots
were fired on Elizabeth street. The Senator is mistaken in that.
He has misconstrued the testimony. The man said:
When the first fire started I jumped up. There were from six to
ten shots on Elizabeth street; then they ceased.
Mr. FORAKER. I stand corrected, then. I was not aware
that any witness had so testified.
Mr. CULBERSON. It is the same witness the Senator read
from a moment ago.
Mr. FORAKER. What witness?
Mr. CULBERSON. McDonald.
Mr. FORAKER. Where does he say that?
Mr. CULBERSON. On page 29.
Mr. FORAKER. That is the same thing I stated.
Mr. CULBERSON. Precisely; but the Senator stated and
he undertook to make the impression that this witness said
the first shots fired were on Elizabeth street. He only states
that from six to ten shots on that street were the first ones
fired.
Mr. FORAKER. That is what I said. He said the firing
commenced on Elizabeth street.
Mr. CULBERSON. That is a mistake. The Senator 'mis¬
reads the testimony of the witness. He says he was lying
down when the first firing was heard. Then he adds that
"there were from six to ten shots fired on Elizabeth street;
then they ceased." Those were the last shots fired, Mr. Presi¬
dent, and not the first.
7111
22
Mr. FORAKER. Now, Mr. President, let us see if they were
the last. The witness proceeds :
When the first fire stalled I jumped up. There were from six to
ten shots on Elizabeth street; then th#y ceased. I went down tne
street to the next block and on to the alley and stopped on the corner.
The shooting commenced again just inside the garrison wall.
So It was not the last. I may be in error about the effect I
attach to the witness's statement, but I just happened to have
my eye fall upon it as I was looking through the record, and,
remembering what he had said, I tliftught that it would answer
for an illustration as well as anything else.
But I would call the attention of the Senator at the proper
time to the fact that this testimony is full of conflicts of that
character, so full of conflicts that it is absolutely unreliable
standing by itself, and I do not believe any jury in Christen¬
dom, unbiased, impartial, would find on such a state of evidence
anybody guilty of the commission of any serious offense. When
1 say I do not believe a jury would find them guilty I mean
iu view of the weight that should be attached to testimony
that is in conflict with that given by the troops themselves.
They testify in such a way that it would be impossible for
any man in that command to have done this shooting.
But about that I do not wish to be understood as taking any
positive position. I am only pointing out that there is grave
conflict in this testimony, and that no man who is careful as to
what he says has a right to say, in view of this state of evidence,
that there is no doubt whatever as to the guilt of these men.
There is doubt about it—serious doubt. I commenced the read¬
ing of it under the impression that there was no doubt. I took
that as granted. I supposed, as a matter of course, from what
I had seen in the papers and what I had seen of the action
which had been taken, that upon satisfactory testimony it had
been established that thex*e was that guilt. But when I got
through with the testimony, starting in with a perfectly open
mind, I came out with grave doubt about it. Now. I want all
the facts I can get, for it is a serious, broad, far-reaching matter.
When we have all the facts my resolution calls for, we can con¬
sider the matter intelligently.
Mr. TELLER. Mr. President, it is quite apparent that we
can not intelligently discuss this question, not having the infor¬
mation we ought to have. It seems to me the only question is
how we shall get the proper information. I understand the
objection made by the Senator from Wisconsin [Mr. Spooneb]
was practically the question of order, whether the resolution
ibf the Senator from Pennsylvania [Mr. Penrose] was in order
or not. I think he will probably not insist upon that.
The resolution of the Senator from Ohio [Mr. Fobakeb] calls
for more than the resolution of the Senator from Pennsylvania.
It calls for specific information upon the part of the Secretary
of War and it calls for the form of the dismissal. I do not
know whether any Senators have seen it. I know I have not,
and I am not aware what it is. I believe we will get more in¬
formation directly from the Secretary than from the President,
unless the President sees fit to refer the whole matter to the
Secretary.
Mr. President, this is a subject that Is being pretty actively
discussed. I have on my table here now a resolution from a
7111
23
rery respectable meeting of colored people in Colorado. Some
of them I know to be very respectable people. They are greatly
excited, because they are going upon the theory that the Presi¬
dent has done something to these people because they were
colored. I do not myself suppose that there is anything in that
at all.
These colored soldiers were charged with a grave offense. If
they had been white men and had been guilty of what is charged
they were guilty of, the President would have been certainly
justified in proceeding as far as his constitutional authority
would allow him to proceed. I do not know myself whether
he has proceeded beyond that point or not. I know it is as¬
serted in some circles by some people that he has gone beyond
it. That is a matter which I think we could discuss better
after we have the form of the discharge and have had an op¬
portunity to look into all the conditions and study the statutes
upon this subject
It seems to me, Mr. President, that the thing to do is to get a
report of all the facts and send them to some proper committee,
which will be, I suppose, the Committee on Military Affairs as
a matter of course. I do not believe that you will ever come
to any proper conclusion about it except by some such tri¬
bunal as that.
I wish the Senator from Pennsylvania would withdraw his
resolution and allow the resolution of the Senator from Ohio
to pass, and dispose of this question in what I think would be a
satisfactory way to everybody. If the Senator insists upon it.
I do not know that we can pass both resolutions. I do not
think it would be exactly courteous to ask the President for
one thing and the Secretary of War for another.
Mr. PENROSE. Mr. President
The YICE-PItESIDENT. Does the Senator from Colorado
yield to the Senator from Pennsylvania?
Mr. TELLER. I yield.
Mr. PENROSE. I understand the friends of both resolu¬
tions are satisfied with the arrangement suggested, that both
resolutions be passed.
Mr. TELLER. Very well; I have no further remarks to
make on the subject.
Mr. SPOONER. Mr. President, I desire to submit a few
observations.
I agree entirely with the Senator from Colorado [Mr. Teller]
that this discussion of the merits of the question is entirely
premature. For one I intend to withhold any discussion of it
until the incoming of a report which puts the Senate officially
in possession of all the facts in relation to it.
The Senator from Colorado is mistaken in supposing that I
made any point of order against the resolution offered by the
Senator from Pennsylvania. I did not. I objected to the form
of the resolution—that is, I objected to a resolution addressed
to the President as unusual. I still adhere, Mr. President, to
that objection as a matter of proper practice, although there is
nothing in the Constitution to prohibit it, nothing in the rules of
the Senate to prohibit it. It is entirely competent for the Sen¬
ate to pass it.
Mr. PENROSE. Mr. President——
7111
24
The VICE-PRESIDENT. Does the Senator from Wisconsin
yield to the Senator from Pennsylvania?
Mr. SPOONER. Certainly.
Mr. PENROSE. I should like to ask the Senator on that
point whether he contradicts the statement made by me and
the Senator from Massachusetts [Mr. Lodge] that there are
numerous precedents of the Senate justifying this course. His
present objection is purely theoretical and critical of a bad
practice in the past as much as in the present.
Mr. SPOONER. I will get to that. Mr. President, I have
not examined the precedents. I speak from my recollection as
to the almost uniform practice of the Senate during a period
of nearly sixteen years in which I have been a member of the
body. It appears that resolutions addressed to the President
have been introduced and passed—one offered by the Senator
from Colorado [Mr. Teller]. I rather think it must have been
inadvertently done, because it was not a subject upon which,
so far as I recollect the scope of the resolution, there could
have been any possibility of the Executive withholding in¬
formation from the Senate. The general practice of the Senate
has been—and it is a good practice, an almost universal prac¬
tice, except in those cases where the nature of the subject is
such as to warrant the belief that all of the information may
not properly and safely be communicated to either House of
Congress—not to address the resolution of inquiry to the Presi¬
dent, but to address it to the Secretary of the appropriate
Department, making it a direction instead of a request.
The precedent cited by the Senator from Massachusetts rela¬
tive to a request upon the President for a copy of the report of
the Keep Commission does not fall at all within the exception.
The Keep Commission was not a commission authorized by law.
It was a commission appointed by the President composed of
officials selected from the various Departments to investigate
the methods of the Executive Departments of the Government
and to report to the President for his information, as I recol¬
lect it.
Mr. CARTER. Mr. President
The VICE-PRESIDENT. Does the Senator from Wisconsin
yield to the Senator from Montana?
Mr. SPOONER. Certainly.
Mr. CARTER. I should like to ask the Senator from Wis¬
consin if that portion of the resolution should be amended,
thus calling upon the President for all the correspondence and
all the facts, whether he would deem it proper to call upon the
President, without qualification, to communicate to the Senate,
and therefore to the public, the correspondence, if any there be,'
between the Department of Justice and the legally constituted
authorities of the State of Texas with reference to the com¬
mission of crimes in that State by soldiers of the United States
liable to punishment under State law, if such communication
would militate against the ends of justice?
Mr. SPOONER. The Senator from Montana has utterly mis¬
apprehended my objection to this resolution. He insists that my
objection is because of the presence in it of the words " if not
incompatible with the public interests." He is quite mistaken.
I know quite well that propriety demands that when a request
for information is addressed to the President—and that is why
7111
25
I think such requests are limited, and has been in general prac¬
tice, to the cases which I indicated when I first spoke—it is
always qualified, so i'ar as I recollect, by these words. My
preference for the resolution of the Senator from Ohio is be¬
cause, being a request for detailed information, our right to
which is beyond question, it is addressed to the Secretary of
War, and contains no evidence that the Senate doubts its right
to the information.
I do not take it to be open to debate, Mr. President, that the
Senate has a right to obtain from the War Department copies
of discharges, records of courts-martial—everything relating to
the domestic administration of the Army not connected with
plans of campaign or of war.
Mr. CARTER. Mr. President
The VICE-PRESIDENT. Does the Senator from Wisconsin
yield to the Senator from Montana?
Mr. SPOONER. I do.
Mr. CARTER. Then I wish to state that I clearly and dis¬
tinctly understood the Senator from Wisconsin to object to the
words " if not incompatible with the public interests " in this
form of resolution.
Mr. SPOONER. Mr. President, I objected to the resolution
because it requires those words and implies in the resolution it¬
self a doubt upon the part of the Senate whether or not this in¬
formation might be properly withheld from the Senate. That is
my objection.
Mr. CARTER. The objection of the Senator was to the ad¬
dressing of any resolution to the President on the subject.
Mr. SPOONER. For that reason. The almost universal rule
of the Senate has been to address no inquiries to the President
of the United States without those words; I remember no ex¬
ception, where the nature of the subject of inquiry was such as
to make it perfectly apparent that the Senate or the House was
entitled of right to all the information covered by it, the direc¬
tion, not the request, has been made as an almost universal rule
upon the appropriate Cabinet officer, instead of by resolution of
inquiry addressed to the President.
I said there were some exceptions, and there are. Foreign
relations constitute one exception; the movement or plan of
campaign of the Army or the Navy in time of war constitutes
another, because even a child would know that the Commander
in Chief, under our Constitution, must have the discretion in
order to insure the safety of the Republic and the success of
our arms, to exercise discretion and to withhold, if his judg¬
ment so dictates, information which would endanger the public
interest if It were given to the public. The Senator from Mon¬
tana, with a logic the like of which I have never known him
to indulge in before, seemed to think that there is no dis¬
tinction, and can be none, between the information which the
Senate or the House is entitled to have in relation to the Army
in time of war and in time of peace.
It does not at all follow, Mr. President, because certain in¬
quiries as to the Army must be in time of war addressed to the
President, and he have discretion to withhold or to transmit in¬
formation, that in time of peace, upon every imaginable subject
connected with the administration of the Army, it is proper, or
comports with the dignity of the Senate or of the other House
7111
26
as legislative bodies in all cases to address Inquiries to the
President, qualified as courtesy requires such inquiries to be.
Mr. CARTER. Now, Mr. President
Mr. SPOONER. I want to get through.
Mr. CARTER. I wish to address the Senator a question at
that point.
Mr. SPOONER. Very well.
Mr. CARTER. It is well known that we are expending very
large sums of money on our coast defenses.
Mr. SPOONER. Certainly.
Mr. CARTER. I will ask the Senator if he thinks in time of
peace it is proper for the legislative department of the Govern¬
ment to make public all the plans of defense that are being pre¬
pared in case of war by calling on the Secretary of War or the
President to disclose such information?
Mr. SPOONER. The Senator gets back to my path—that is,
that the question is to be resolved with reference to the subject-
matter. I admitted it, and I admit it now. I must admit that
there are numerous cases in which absolute direction upon one
of the Departments or upon a Cabinet officer is subject of right,
I mean, to a declination by order of the President to that officer
to afford the information. But that argues nothing upon a
subject like this or upon the subject generally embodied in the
resolution of inquiry by the Senate and by the House. We
could not call upon the Attorney-General to send to the Senate
copies of papers which he has acquired through investigation to
be used in the trial of a gang of counterfeiters or to be
used in the trial of cases prosecuted under the antitrust
faw for the obvious reason, Mr. President, that it would lead
possibly to the defeat of the Government's litigation. You can
not put your side of the case into the hands of your opponent
If an investigation has been made by the Treasury Department
with reference to the apprehension of men who are smugglers,
Congress could not expect the President to permit the informa¬
tion to be sent to the Senate or the House, and warning thereby
be given to those whom the Government seeks to apprehend.
There are many such cases. Is this a case of that kind?
Congress, Mr. President, fixes the size of the Army. The Army
Is the Army of the people of the United States. It is created by
act of Congress. The rules for its government are entirely
within the jurisdiction of Congress. The grounds upon which
men may be discharged is within the constitutional capacity of the
Congress. Whether any man can be discharged for offense without
a trial is entirely within the constitutional competency of Con¬
gress. Whether the President shall be given the right to dis¬
miss an officer at will without trial is for Congress to say
The Army is supported by moneys appropriated by Congress'
The manner of the expenditure of those moneys Congress has
a right to know. I do not make any doubt whatever Mr Presi¬
dent, that it is within the constitutional right of the House or
of the Senate either, acting in a legislative capacity urton this
subject, to direct the Secretary of War to transmit to the Senate
or to the House all information within his jurisdiction unnn thp
subject of the discharge of the three colored companies
Now, Mr. President, the foundations of the Union will w
shaken whichever of these resolutions is adopted or if wi, k~
adopted. I am surprised that the Senator from Wyoming rMr
7111 * 1 *
27
Warren] withdrew his resolution. They all three might have
been adopted. The Senator from Pennsylvania thinks it im¬
proper that both should be adopted. He offered his resolution
in the form which he employed addressed to the President—
the form is proper if the resolution is to be addressed to the
President at all—because the Senator thought it would not be
within the proprieties, it having been the President's act, to
address it to his subordinate, the Secretary of War.
I do not stop to discuss the question of propriety; but it is
very proper, some Senators think, to pass both of the resolu¬
tions. The Senator from Massachusetts [Mr. Lodge] seems to
think so; the Senator from Montana [Mr. Carter] seems to
think so.
There never has been, within my knowledge, a President who
is more frank with both bodies of Congress than the present
Executive. The objection is based upon principle and was made
because I believe it is the dignified and proper course for both
bodies to pursue as to subjects upon which the House or the
Senate is entitled manifestly to the information to make a direc¬
tion in the usual way upon the appropriate Cabinet officer.
I think it will look rather absurd—I shall not further object
to it, Mr. President—to pass the resolution calling upon the
President, if not incompatible with the public interests, for full
information bearing upon the subject, and also to pass the res¬
olution of the Senator from Ohio, directing the Secretary of
War, who has probably received most of these papers from the
President, to furnish all information upon the subject on file in
the War Department. But that is a matter for the Senate to
determine.
Mr. TELLER. Mr. President, I do not wish to prolong this
debate, but the Senator from Wisconsin [Mr. Spooner] seems
to think that the resolution which I introduced some time ago
must have been inadvertently introduced. I presume the files
of this Senate will show a great many resolutions of mine of a
similar kind. I want to say to the Senator, as a matter of
history, that if he will take the trouble to go into the question
of the right of the Senate and of the other House to call upon
the Executive for information, he will find that in the early
history of the country such requests went directly to the
President. If he will take the pains to go back fifty years he
will find that it was a common occurrence, and I will venture
to say there has not been a President since the days of Wash¬
ington who has not been called upon by the Senate and the
other House for information.
During the exciting times immediately after the civil war,
when Andrew Johnson was President of the United States, a
great number of such resolutions from the House and the
Senate were day after day directed to t^he President. Some¬
times he furnished the information and sometimes he did not.
If he did not furnish it, he would say that he did not think it
was compatible with the public interests that he should do so.
In such cases I believe he always courteously declined.
When we call upon the President for informatipn, we re¬
quest him; when we call upon the Secretary of War, we direct
him. Suppose the Secretary of War fails to reply. Where is
the power of the Senate to compel him? He is a subordinate
of the President He is the mouthpiece of the President in
7111
28
many ways. He becomes the mouthpiece of the President be¬
cause of his special knowledge in regard to certain matters.
You call upon the man who is supposed to know most about
the subject concerning which information is desired. If you
want to know about public lands or about pensions, you call
upon the Secretary of the Interior; but if you want to know
about military affairs, you call upon the Secretary of War.
There is, however, no way by which you can compel the Secre¬
tary of War to reply, unless by impeachment, and we can not
institute such proceedings, for, under the Constitution, they
must originate in the House of Representatives.
There is nothing unusual in the resolution of the Senator from
Pennsylvania. As I said before, the resolution of the Senator
from Ohio calls upon the Secretary of War for information that
is not in the hands of the President, and therefore I prefer the
form of his resolution. At the end of his resolution there is a
request for an order issued to Major Penrose. Probably that
order is not in the keeping of the President, but is in the keep¬
ing of the Secretary of War. It seems to me there is an unnec¬
essary question of propriety raised here. I do not myself want
to admit that when the Senate wants information it can not call
upon the Executive for it. I do not care whether it is in one
Department or another or whether it is solely under the control
of the President. You may call upon him for information af¬
fecting matters of foreign diplomacy, but he is not obliged to
answer; sometimes he would be derelict in duty if he did an¬
swer ; but it must be fairly presumed that the Senate of the
United States will never call upon the President for informa¬
tion which ought not to be given to the country. If he says
"I do not consider it compatible with the public interests that
I should give it," that is the end of the controversy.
Mr. WARREN. I want to ask the Senator a question before
he takes his seat. v
The VICE-PRESIDENT. Does the Senator from Colorado
yield to the Senator from Wyoming?
Mr. TELLER. Certainly.
Mr. WARREN. The Senator from Colorado has been a dis¬
tinguished Cabinet officer, and I want to put this question to
him: In the present case the President, by the Constitution, is
clearly Commander in Chief of the Army—in other words, he
is the highest officer of the Army. He bears a relation to the
Army and Navy that he does not bear as to other Departments.
It seems to me that information regarding this particular case
lies not only with the Secretary of War, but undoubtedly with
the Department of Justice as well. Therefore I want to ask
the Senator from Colorado if, when we make an inquiry of the
President, he will not, as a matter of course, call upon the dif¬
ferent Departments for such information as he chooses to fur¬
nish, whereas if we call upon the Secretary of War alone, he
furnishes only that which his Department has? If so, it seems
to me in this case—while I am ready to vote for both resolu¬
tions—if we are to select one and vote for only one, it should
be the one calling upon the President, first, because he has con¬
trol over both of these Departments that may have evidence*
second, he is the Commander in Chief of the Army and its
highest authority, and, third, this action concerning the dis¬
charge of troops is the action of the President, in the absence
7111
29.
from the city at the time of the Secretary of War, and there¬
fore the President is the highest authority to appeal to and the
man above all others who is able to furnish us the information
we want.
Mr. TELLER. I think the Senator has answered his own
question, and I think he is correct about it.
Mr. CULBERSON. Mr. President, on yesterday I offered an
amendment to the resolution of the Senator from Ohio [Mr.
Foraker] ; which he accepted. Since then that resolution has
been detached in a parliamentary sense,from the resolution of
the Senator from Pennsylvania [Mr. Penrose], and I do not
know which one of these resolutions will be adopted by the
Senate. Therefore, I beg to offer the same amendment to the
resolution of the Senator from Pennsylvania which I offered
yesterday to that of the Senator from Ohio, modified to suit an
inquiry addressed to the President of the United States.
The VICE-PRESIDENT. The Senator from Texas pro¬
poses an amendment to the resolution of the Senator from
Pennsylvania [Mr. Penrose] ; which will be stated by the
Secretary.
The Secretary. It is proposed to add after the last word of
the resolution of Mr. Penrose the following:
The President is also requested to send to the Senate a copy of the
order issued to Maj. C. W. Penrose, Twenty-fifth United States Infan¬
try, directing him not to deliver to the civil authorities of Texas cer¬
tain men of his command charged with assault to murder and mur¬
der, at Brownsville, Tex., August 13. 1906, and referred to by Major
Penrose in his letter of August 24, 1900, to Capt. W. J. McDonald, of
the Texas rangers.
Mr. PENROSE. I accept the amendment of the Senator
from Texas.
The VICE-PRESIDENT. The resolution will be so modified.
The question is on agreeing to the resolution proposed by the
Senator from Pennsylvania [Mr. Penrose] as modified.
The resolution as modified was agreed to.
Mr. FORAKER. I understand that resolution No. 181 is also
before the Senate.
The VICE-PRESIDENT. It is. The question is on agree¬
ing to the resolution proposed by the Senator from Ohio [Mr.
FORAKEB].
The resolution was agreed to, as follows: *
Resolved, That the Secretary of War he, and he is hereby, directed
to furnish the Senate copies of all official letters, telegrams, reports,
orders, etc., filed in the War Department in connection with the recent
discharge of the enlisted men of companies B, C, and D, Twenty-fifth
United States Ihfantry, including the form of discharge, together
with a complete list of the men discharged, showing the record of each,
the amount of retained pay (under see. 1281 and following sections
of the Compiled Statutes, vol. 1, p. 912, edition of 1901), if any, to the
credit of each man at thp time of his discharge; the ruling of the War
Department, if any has been made in this or any other similar case, as
to the effect udou his right to such retained pay, and also the ruling
of the War Department, if any has been made in this or any similar
case, as to the effect of such discharge upon the right of an enlisted
man to retire on three-fourths pay, with an allowance for subsistance
and ciothing (under sec. 12fi0 and following sections of the Compiled
Statutes, vol. 1, p. 890, edition of 1901), and his right to enter a
National Soldiers' Home (under sec. 4821 and following sections of
the Compiled Statutes, vol. 3, p. 3B32, edition of 1901), his right to be
buried in a national cemetery (under sec. 4878 and following sections
of the Compiled Statutes, vol. 3, p. 3378, edition of 1901), and his
right to receive transportation and subsistence from place of discharge
to his home, as provided for in sec. 1290 and following sections of the
7111
30
Compiled Statutes, vol. 1, p. 916, edition of 1901; also a complete
official record of the Twenty-fifth Regiment United States Infantry,
from the time of its muster in to the date of the discharge of Com¬
panies B, C, and D.
The Secretary of War is also directed to send to the Senate a copy
of the order issued to Maj. C. W. Penrose, Twenty-fifth United States
Infantry, directing him not to deliver to the civil authorities of
Texas certain men of his command charged with assault to murder, and
murder, at Brownsville, Tex., August 13, 1906, and referred to by
Major Penrose in his letter of August 24, 1906, to Capt. W. J.
McDonald, of the Texas Rangers.
7111
DECEMBER 20, 1900.
dismissal of three companies of twenty-fifth infantry.
Mr. FORAKER. I ask that the resolution I offered yesterday,
which is on the table, may be laid before the Senate.
The VICE-PRESIDENT. The Chair lays before the Senate a
resolution coming over from yesterday, which will be read.
The Secretary read the resolution submitted yesterday by Mr.
Forakeb, as follows:
Resolved, That if the Committee on Military Affairs deem it neces¬
sary, in connection with the consideration of the message of the Presi¬
dent in response to resolutions Nos. 180 and 181, to take further
testimony to establish all facts connected with the discharge of the
members of Companies B, C, and D, Twenty-fifth United States Infan¬
try, that it be, and hereby is, authorized to send for persons and papers
and administer oaths, and report thereon, by biM or otherwise.
Mr. FORAKER. Mr. President, I said yesterday that I would
rather not make any comment in response to the President's
message until I had had an opportunity to study it carefully,
and for that reason I was anxious to have it go, and go without
objection, to the Committee on Military Affairs, where we might
deal with it in that deliberate and careful way in which such an
important matter should be considered. But after I left the
Senate I reread the message of the President. I stated in the
Senate that I had already been over it twice, once reading it
and once following the Secretary as he read it. After I went
home I read it again, and it occurred to me that it would not
be out of place, inasmuch as we were compelled, by the objec¬
tions made yesterday, to keep this matter before us for consid¬
eration, to make some remarks about it at this time.
I wish to say, in the first place, and I think Senators will
bear me out in it, that I never deal in unqualifiedly positive state¬
ments unnecessarily, and I try always to avoid extravagance of
speech in whatever I may see fit to say to my colleagues here in
this body. I shall try particularly to be conservative and con¬
siderate in whatever I may say this morning.
With that in mind, let me say, in the first place, that a care¬
ful reading of the President's message has convinced me that,
in my opinion—I may be mistaken, but in my opinion—he has-
misconceived, first, his constitutional powers with respect to the
action he has taken concerning this battalion, and, in the second
place, he has misconceived the testimony upon which his action
is based. He states in his message:
I ordered the discharge of nearly all the members of Companies B, C,
and D of the Twenty-fifth Infantry by name, in the exercise of my con¬
stitutional power aDd in pursuance of what, after full consideration, I
found to be my constitutional duty as Commander in Chief of the United
States Army.
7111 31
32
The constitutional power of the President as Commander In
Chief is found in section 2 of Article II of the Constitution, and
it reads, in part, as follows :
The President shall be Commander in Chief of the Army and Navy
of the United States, and of the militia, etc.
I have read far enough. That is all that the Constitution
says as to the constitutional powers of the President as Com¬
mander in Chief.
In section 8 of Article I of the Constitution it is provided as I
shall read. I have a note of it, but I prefer to read from the
Constitution itself. However, to save time I will read from
my notes. Section 8 of Article I reads, in part, as follows:
The Congress shall have power * * * to raise and support
armies; * * * to make rules for the government and regulation of
the land and naval forces.
That is all that is applicable, and I confine myself in the read¬
ing to that.
Now, Mr. President, it must be apparent to anyone without
any study that the constitutional power conferred upon the
President of the United States as Commander in Chief is to
command the Army, and the power conferred by the Constitution
on the Congress is a power to raise the Army and to prescribe
the laws and the rules whereby the Army shall be regulated.
Nobody would pretend that the Congress had any power or that
anybody else had any power over the President as the com¬
mander to direct the movement of troops, to say where they
should be stationed in time of peace or how they should be
directed against the enemy in time of war. He, in that par¬
ticular, is absolute, without anybody to question his authority.
But, on the other hand, it seems to me, Mr. President, equally
clear no one can question that the Congress has power to pre¬
scribe by law what rules and regulations shall govern the Army
as to its organization, as to the size of the Army, its maximum,
Its minimum, as to the number of the infantry regiments, the
number of cavalry regiments, the number of artillery regiments,
and the number of batteries, and the number of men in each of
these units of organization; and how, Mr. President, particu¬
larly, men shall be enlisted and men shall be discharged from
the Army, the terms and conditions upon which they shall be
enlisted, the rights that shall accrue to them on account of their
service—long service, faithful service—whether or not they
shall be recognized by the Government and be rewarded by the
Government. All. that rests with Congress as a part of that
power. As a part of that power it is competent for the Con¬
gress of the United States to provide that no man shall be sum¬
marily discharged from the Army after he has been regularly
enlisted except upon certain terms and conditions; that no man
in the Army shall be found guilty of any offense with which he
may be charged except after he "has had an opportunity to ap¬
pear before a tribunal where he can present his defense, where
he can be represented in person and be represented by attorney,
if he wants to be, or by some one else to speak for him; where
he can confront his accusers and cross-examine their witnesses.
Now, Mr. President, with that as a preliminary, I desire to
call attention to the fact that the Congress has most carefully
considered this whole subject, and the Congress has with ex¬
treme care provided what the terms and conditions of enlist-
7111
33
ment shall be, what the obligations of an enlisted man shall be,
under .what conditions he may be discharged, whether he may
be discharged dishonorably or whether he may be honorably
discharged, and of recent years, by virtue of a regulation that
was promulgated in 1895, which has been acquiesced in by Con¬
gress and may be said now to have the approval of law, whether
he may be discharged without honor, as these men were. I call
attention to the Articles of War. It is provided in the second
of these articles as follows:
Article 2. These rules and articles shall be read to every enlisted
man at the time of or within six days after his enlistment, and he
shall thereupon take an oath or affirmation in the following form: " I,
A. B., do solemnly swear (or affirm) that I will bear true faith and
allegiance to the United States of America; that I will serve them
honestly and faithfully against all their enemies whomsoever, and that
I will obey the orders of the President of the United States and the
orders of the officers appointed over me, according to the rules and Arti¬
cles of War." This oath may be taken before any commissioned officer
of the Army.
So, Mr. President, the obligation which we are told these men
violated when they declined to give testimony asked for and
which the officers assumed they could give if they would tell
what they knew, was an obligation to obey everything that
might be commanded by their superiors, from the President
down, which was commanded in accordance with the rules and
Articles of War.
That is the first limitation. Stopping there, Mr. President, it
must be evident to any careful student of this subject that it was
not intended that the constitutional power of the President as
Commander in Chief should be, especially in time of peace, with¬
out restraint, without restriction, without limitation, but, as the
Constitution itself declares when it empowers Congress with re¬
spect to this subject, that it should be subject to such rules and
regulations as the Congress might prescribe, and Congress has
prescribed that the duty of the soldier shall be confined, in the
obeying of orders, to that which is in harmony with the Articles
of War.
Now, what do these Articles of War prescribe? I have them
before me, but I took occasion to copy out the essence of those
to which I wish next to call attention. It is provided in article
16 as follows. Let me say before I commence to read that I
am going to read only the skeleton just to indicate the general
nature of the provisions, and it will be found, when I have read
all the provisions on the subject, that the Congress, specifically
mentioning every kind of an offense, has carefully provided for
the question how, in the event of the commission of such an
offense, the soldier shall be found guilty of it. Commencing
with article 16, it is as follows:
Any enlisted man who sells or willfully or through neglect wastes
the ammunition delivered out to him shall be punished as a court-mar¬
tial may direct.
Article 17 provides that—
Any soldier who sells or through neglect loses or spoils his horse,
arms, clothing, or accouterments shall be punished as a court-martial
may adjudge.
Article 20 provides that any soldier showing disrespect to his
commanding officer shall be punished " as a court-martial may
direct."
Article 21 provides:
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34
Any soldier who strikes wl superior officer shall be punished as &
court-martial may direct.
Article 22. Any soldier guilty of mutiny or sedition shall be
punished " as a court-martial may direct."
In the President's message of yesterday we are officially in¬
formed that these men were guilty of mutiny, and he discharged
them in the way he did because of the mutinous character of
their conduct.
Article 24. Any soldier who refuses to obey an officer who is
trying to suppress a quarrel or affray shall be punished " as a
court-martial may direct."
Article 26. Any soldier who challenges or accepts a challenge
to fight a duel shall be punished " as a court-martial may di¬
rect."
Article 31 provides:
Any soldier who lies out of his quarters, garrison, or camp without
leave shall be punished as a court-martial may direct.
Article 32. Any soldier who absents himself from his troops,
etc., without leave shall be punished " as a court-martial may
direct."
Article 33. Any soldier who absents himself from parade
without leave shall be punished " as a court-martial may direct."
Article 34. Any soldier who is found 1 mile from camp with¬
out leave in writing shall be punished " as a court-martial may
direct."
Article 36. Any soldier who hires another to do his duty, in¬
stead of doing it himself, shall be punished " as a court-martial
may direct."
Article 38. Any officer found drunk on guard, etc., shall be
dismissed from the service, but any soldier who so offends shall
be punished " as a court-martial may direct."
The general provision is added to this section following:
No court-martial shall sentence any soldier to be branded, marked, op
tattooed.
Article 39. Any sentinel found sleeping upon his post shall be
punished " as a court-martial may direct."
Article 40. Any soldier who quits his guard, platoon, or divi¬
sion without leave, except in a case of urgent necessity, shall be
punished " as a court-martial may direct."
Article 42. Any soldier who misbehaves before the enemy, etc.,
shall be punished " as a court-martial may direct."
Article 47. Any soldier who deserts in time of war shall be
punished " as a court-martial may direct," except that in time of
peace the death penalty shall not be imposed.
Article 51. Any soldier who advises another to desert, etc.,
shall be punished " as a court-martial may direct."
Article 55. All soldiers must behave themselves in quarters
and on the march, and whoever commits any waste or spoil
either in walks, or trees, parks, warrens, fish ponds, houses,
gardens, grain fields, inclosures, or meadows, or maliciously de¬
stroys any property belonging to inhabitants of the United
States shall be punished " as a court-martial may direct."
Article 56. Any soldier who does violence to any person bring¬
ing provisions, etc., to the camp shall be punished " as a court-
martial may direct."
Article 59 provides that—
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When any officer or soldier is accused of a capital crime or of any
offense against the person or property of any citizen of any of the
United States which is punishable by the laws of the land, the com¬
manding officer and the officers of the regiment, troop, battery, etc., to
which the person so accused belongs are required, except in time of war,
• * * to deliver them up to the civil magistrate.
Article 60 provides that any person in the military service of
the United States, who makes or causes to be made any false
claim, or enters into any agreement or agreements to defraud
the United States, or who makes or uses any false paper to de¬
fraud the United States, or who commits perjury in support of
any false claim against the United States, or who commits for¬
gery in such behalf, or who delivers less property than a receipt
calls for, or who gives receipts without knowing the truth re¬
cited in them, or who sells, embezzles, etc., or who buys any mili¬
tary property from any soldier, officer, or other person, the party
selling not having lawful right to sell or pledge the same, shall,
on conviction, be punished " as a court-martial may adjudge."
I come now to article 62. I have already pointed out how
specifically and carefully every kind of an offense that the law¬
making power could foresee that it was likely a soldier would
commit was provided for; and in every instance the Congress
of the United States, in the exercise of its constitutional power,
has said there shall be no summary, no arbitrary, no autocratic
exercise of power by way of conviction or punishment as for a
penalty, but there shall be a trial by a court-martial, and the
punishment shall be such as the court-martial may direct.
Then later, without stopping to read it, Congress, fearing
that a court-martial might be more severe in prescribing the
penalty than it should be, passed a statute authorizing the
President of the United States to promulgate an order specific¬
ally fixing the maximum punishment that might be imposed
upon a soldier for the violation of any of his duties as a sol¬
dier, including all the cases to which I have referred and all the
cases arising under what I now read as article 62. After thus
carefully and in detail providing specifically for every offense
they could foresee, they then enacted this omnibus clause. I
will read it from the book, as in my notes I abbreviated it
somewhat:
Article 62. A^, crimes not capital, and all disorders and neglects,
which officers and soldiers may be guilty of to the prejudice of good
order and military discipline, though not mentioned in the foregoing
Articles of War, are to he taken cognizance of by a general or a regi¬
mental, garrison, or field officers' court-martial, according to the nature
and degree of the offense and punished at the discretion of such court.
First, then, there is specific provision as to all offenses that
could be foreseen, every offense, every neglect of duty, every
disorder that they could enumerate, basing their enumeration
upon past experience, and then, for fear they might have
omitted some case and thereby have left it to a superior officer,
to anyone, no matter what his rank, from the Commander in
Chief down to the one immediately over him, they were careful
to provide in this omnibus way as to all disorders and neglecta
which are prejudicial to good order and military discipline.
Now, Mr. President, that is broad enough, I think it would be
agreed without any argument on my part, to cover the case in
question.
But this sixty-second article of war has received judicial in¬
terpretation. Let me say in passing that this article 62 was
7111
36
not enacted until after the civil war was ended. It was not In
force when General Grant did something that we were cited to
yesterday as a precedent. I will comment upon that specifically
presently. It certainly was not in force in the Confederate
army when General Lee discharged some regiment for cow¬
ardice. I do not know what the constitutional power of Gen¬
eral Lee was. I do not know what his statutory authority was,
but I know enough about the character of the case from what
the President has said about it in his message and in the notes
upon it attached to his message to say if it had been in the
United States Army it could not have been cited as a precedent
for this kind of a case.
I now read from General Davis in his work on Military Law.
I read from page 473, what is meant by " neglect and disorders "
that are prejudicial to good order and military discipline. He
says:
A " neglect" is an omission or forbearance to do a thing that can
be done or that Is required to be done. In its ordinary meaning it
is an omission, from carelessness, to do something that can be done
or ought to be done. The obligation to perform the act or thing
neglected is military in character and arises in connection with the
requirements of military duty. Law, regulations, orders, and, where
these are silent, the custom of service prescribe the several military
■duties and obligations the neglect of which is chargeable under this
article; the evidence submitted in a particular case shows the manner
In which the duty was performed and the particulars in respect to
which there has been criminal neglect. The term " disorder," as
used in this connection, is more comprehensive than when used in ref¬
erence to civil affairs, and includes not only disorders in the sense of
frays, quarrels, and the like, but all interruptions of the good order
which should prevail in camp or garrison and willful departures from
that orderly recurrence of events which constitutes military discipline
and which are, as such, harmful or prejudicial to good order and mili¬
tary discipline.
Then in a note cases are cited in support of the text. I read
from one of them, from the note at the foot of page 474. It
was a case where it was held that " refusing to testify when
duly required to attend and give evidence as a witness be¬
fore a court-martial" was a disorder and a neglect of duty
prejudicial to good order and military discipline, cognizable
under the sixty-second Article of War, and therefore an offense
for which, by virtue of that article, the accused was entitled
to trial by court-martial. That is what it was charged these
soldiers were guilty of in this case
Mr. LODGE. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Massachusetts?
Mr. FORAKER. Certainly.
Mr. LODGE. As the Senator is speaking about the power to
discharge without honor, I find that I have a memorandum
here from General Ainsworth
Mr. FORAKER. If the Senator will allow me, I am going
to take that up separately.
Mr. LODGE. I was going to ask the Senator if he would
•explain how it was that 352 enlisted men of the Regular Army
have been discharged without honor during the past two years'
Mr. FORAKER. I will explain it, and take pleasure in ex¬
plaining it. I shall take pleasure in showing to the Senator
that in no one of those cases was there any punishment In¬
volved, but simply a withholding of honor. I will talk about
the argument presently as to whether or not there is punish-
7111
3T
ment in this case. In all those eases there was no punishment
involved; they simply severed connection with the Army, as in
the ease of a young boy who comes and wants to enlist and
misrepresents his age, stating that he is of an age which au¬
thorizes him to enlist; but the next day or the next month or
six months thereafter his mother comes and says: " This is my
only support. He has made a misrepresentation about his age.
Here is the record. He is only 1G," or whatever his age may
be, " and he did not have my consent to enlist. I want to
have him discharged." Thereupon, the case going to the Sec¬
retary of War or to the President, he is discharged without
honor, according to this regulation. But I will speak about
what " without honor " implies presently.
Mr. LODGE. The Senator does not mean to suggest that,that
is the only cause of a discharge " without honor? "
Mr. FORAKER. No; certainly not. I gave that simply as
one illustration. Dozens of illustrations might be given.
Mr. LODGE. Of the 352, 113 were discharged without honor
on account of desertion, 8 on account of desertion and fraudu¬
lent enlistment, i07 on account of imprisonment under sentence
of civil court, and 38 on account of having become disqualified
from service through their own misconduct.
Mr. FORAKER. Certainly. That is as good a set of illus¬
trations as I could use, and I thank the Senator for calling my
attention to the fact that they are all found in this report. A
man is discharged without honor because he was a deserter.
What is implied in it? The man who was regularly enlisted and
then deserted was liable to be tried and found guilty of deser¬
tion, but he came and said, " I deserted; there were extenuating
circumstances; I hope you will not punish me; I will be glad if
you will give me my discharge; I will take a discharge without
honor;" and the War Department or the commander of the de¬
partment or the President, whoever it may be who can do it,
says, " Very well; we will get rid of you on the terms you pro¬
pose ; we will give you a discharge without honor." There is no
punishment in that. They are simply withholding from a man
not entitled to it what belongs only to the man who has hon¬
orably served, " faithfully and honestly," through his enlistment,
to employ the language of the statute. There is no punishment
in such case, but rather a favor.
So it is with the other cases enumerated. In each of them the
discharge was granted, and if we had the complete record you
would find it was granted doubtless on the application of the
man discharged.
But that is a very different case, Mr. President, from this.
In cases of that kind I think it is well enough to have a dis¬
charge without honor, as contradistinguished from a discharge
that is honorable or a discharge that is dishonorable.
But, Mr. President, there is no statutory provision which
recognizes a discharge without honor except only as the Con¬
gress of the United States has acquiesced in regulations for the
government of the Army prescribed by the President of the United
States, in which such discharges are mentioned for cases of
this kind. Until 1895, when the regulations now In force were
issued, during Mr. Cleveland's Administration, through his Sec¬
retary of War, Mr. Lamont, nobody had ever heard officially of
a discharge without honor. But everybody recognized that
7111
there were cases where it was not right to give a man an hon
orable discharge, and yet not proper to give him a dishonorable
discharge. They did not want to go to the trouble of court-
martialing him in order that they might give him a dishonorable
discharge. The cases were such as have been referred to. A
man who enlisted through misrepresentation as to his age was
not entitled to an honorable discharge, and they said, " We will
let him go, out of consideration for his mother and for his ten¬
der years. We will overlook it and give him a discharge, but
will say without honor," so that he can not carry away a cer¬
tificate of the Government that should be given only to men
who have served honestly and faithfully.
Mr. PROCTOR. It was a void enlistment.
Mr. FORAKER. It was a void enlistment, and they simply
cut the matter short on the application of the soldier without
going through the trouble and annoyance of a trial.
But, Mr. President, when you come to a case like this, where
men are not seeking a discharge, but where they are protesting
against it, where* men are charged with having committed a
heinous crime, as the President said yesterday, the most atro¬
cious crime that was ever committed in connection with the
Army—where we have a case of this kind, and the men are
protesting their innocence, saying, " We have served long, and
we have served faithfully, and we had nothing whatever to do
with this wrong of which you talk, and we know nothing about
it," it is not a case for a discharge without honor, and to say
that it is a discharge that can be distinguished from a dishon¬
orable discharge is simply to undertake to make a distinction
where really there is none, as I shall point out.
Now, here is what Winthrop says upon that subject, in the
first volume of Military Law and Precedents. I read from page
848:
Discharge "without honor."—This is a species of discharge recently
introduced into our practice, as supposed to be warranted by the fourth
article, and proper to be given where the circumstances which have
induced the discharge are discreditable to the soldier. But the dis¬
tinction between a discharge " without honor " and a " dishonorable "
discharge is fanciful and unreal, and, in the opinion of the author, It
is open to discussion whether this newly invented form is legally
authorized under this article.
I might read further, but I have read enough to show what
he has to say—and he is an acknowledged authority on the sub¬
ject—of a discharge without honor. The distinction is fanciful,
it is unreal; it is unreal because in a case like this it does in¬
volve punishment, no matter what may be said by the President
or anybody else to the contrary.
The President said in his message of yesterday—I want to
get the exact language—
People—
I am one of them—
have spoken as if this discharge from the service was a punishment. I
deny emphatically that Buch is the case, because as punishment it Is
utterly inadequate.
And so on.
Mr. President, we will agree that, if these men committed this
atrocious offense, the punishment of being discharged without
honor is inadequate; if they deliberately committed murder, the
punishment appropriate is death, as the President says; and if
7111
39
their comrades deliberately were guilty of misprision of felony
In refusing to give testimony as to the facts of which they had
knowledge, they committed a crime punishable with imprison¬
ment in the penitentiary for three years. So the President is
right in saying that the punishment he has imposed is inade¬
quate. But, Mr. President, punishment does not have to be ade¬
quate to be punishment. It is punishment although it may be
grossly inadequate if measured by the character of the offense.
If these men committed murder, as charged, the punishment is
inadequate. If they were innocent of murder and innocent of
misprision of felony, then is the punishment of a discharge
without honor grossly exaggerated, harsh, and brutal, for In
that case they would not have committed any crime and yet be
severely punished.
But now let us see whether this was a punishment or not.
Sometimes men talk more frankly before a point has been called
to their attention. I do not refer to the President in that con¬
nection, but refer to the Inspector-General, upon whom he chiefly
relies, General Garlingon. General Garlington has made a re¬
port which accompanies the President's message, now before
us officially, in which he tells of following the investigation of
the report of Major Blocksom, the assistant inspector. He went
down to Fort Reno, where these men were encamped, and there
investigated this subject, examining the men with a view to
finding out, if possible, if he could prove that this shooting in
the town of Brownsville was done by the soldiers of this regi¬
ment. What is it he says?
First, he said there was an order under which he went there
to perform this duty; an order issued by the Acting Secretary
of War, Robert Shaw Oliver, in which he was instructed to see
these men and to inform them frankly and fully that they must
disclose knowledge as to who of their comrades had committed
this offense, or else they would be mustered out of the service
without honor and be debarred from ever again entering the
service. What does he say he did? He says he met the men;
he examined them all so far as he thought it necessary, a great
many of them, at least, with very great care. He says " only
one man presented himself voluntarily, and that was not to
give information, but to urge his own case for exemption from
the penalty imposed by the President."
I want to refer to the dictionary to see just what is meant by
the word " penalty " and how it is defined by lexicographers. I
have always understood that " penalty" means punishment;
that when some authority imposed a penalty that that authority
was seeking to impose punishment In the concluding para¬
graph of his report General Garlington says:
I recommend that orders be issued as soon as practicable discharg¬
ing, without honor, every man in Companies B, C, and D of the Twenty-
fifth Infantry, serving at Fort Brown, Tex., on the night of August 13,
1906, and forever debarring them from reenlisting in the Army or Navy
of the United States, as well as from employment in any civil capacity
under the Government.
The order of the President was written upon the back of this
report and returned to the War Department: " Let this recom¬
mendation be executed." I am not trying to give the exact
language, but it was an order of the President to execute that
recommendation to muster the men out without honor, to de-
7111
40
bar them from entering the military service, to debar thens
from entering the naval service, to debar tl\em perpetually from
entering the civil service. But what does he say further:
In making this recommendation I recognize the fact that a number
of men who have no direct knowledge as to the identity of the men of
the Twenty-fifth Infantry who actually fired the shots on the night of
the 13th of August, 1906, will incur this extreme penalty.
Now, what is " penalty? " The Century Dictionary says:
Penalty * • * (see penality, of which penalty Is a doublet).
1. Suffering, in person or property, as a punishment annexed by law or
judicial decision to a violation of law ; penal retribution.
Now, Mr. President, what General Garlington recommended
was that this extreme penalty, which meant extreme punish¬
ment, should be inflicted upon these men; and when we observe
the consequence of it, extreme it was indeed, for these men went
forth branded, in the first place, as murderers; branded as
having been participators in the commission of one of the most
atrocious crimes that ever disgraced the United States Army,
as the President of the United States says; branded not only
as murderers, but branded as conspirators to suppress knowledge
of the murder and to prevent the bringing to trial and punish¬
ment of the guilty perpetrators of that atrocious crime. Not
only that, Mr. President, but guilty also of committing perjury,
for every one of them had sworn that he was asleep in the bar¬
racks ; that he had no knowledge of the matter and could not
give any information about it. Those men go forth, Mr. Presi¬
dent, branded in that way. I wish I had the report that came
in here showing the individual records of these men. I started
to look through it yesterday, but we reached the consideration
of this resolution before I had time to pursue it very far. But
I saw the beginning of it, and the name that stands at the head
of that list is that of Mingo Saunders, first sergeant. I observe
that he had served twenty-six years, a number of years in the
Philippine Islands, in Cuba, and in the Indian wars. He had
been enlisted, I think, eight times, and each time honorably
discharged before he was again reenlisted. He enlisted eight
times, as I have said, and at the end of each enlistment was
discharged, and under the head " remarks," it is said each time,
" excellent soldier," or " faithful and reliable soldier," or some¬
thing of equivalent import every time he was discharged; a
complimentary remark of that character—" faithful," " reli¬
able," " excellent," " extremely good," " efficient," etc., showing
that, in the language of the statute, he had served " honestly
and faithfully " twenty-six years.
Mr. SPOONER. What was his character?
Mr. FORAKER. His character was excellent; and yet that
man, whose character is excellent, is branded as a perjurer
who has been in conspiracy to suppress the crime of murder.
Why, Mr. President, an atrocious crime has been committed if
that man is not guilty. When the facts are all known we will
know who has committed the atrocious crime. This is only one
case. I do not know how many more of these soldiers there
were who had long terms of service to their credit; but they
have all been discharged in that same way, with remarks of
" excellent service," " faithful," " reliable service," etc. Such
was the record of Mingo Sanders until in November last he
was given this piece of paper, discharging him without honor,
7111
41
to carry around with him all the rest of his life, branding him
as a criminal against the country he had been so faithfully
serving, and included in the denunciation that is visited upon
the men of this battalion. Is there no punishment involved?
Is it anything but punishment, and was not punishment the
avowed purpose?
That is not all. General Garlington said again, speaking of
these men:
They appear to stand together in a determination to resist the de¬
tection of the guilty; therefore they should stand together when the
penalty falls.
So it is that three or four times the Inspector-General, whose
recommendation the President approved and whose recommen¬
dation was his order, has spoken of what happened as a penalty
or a punishment, and there is no distinction between the terms.
I shall go back now, if I can, to where I was when the Sena¬
tor from Massachusetts [Mr. Lodge] interrupted me. While
I do not object to interruptions, when I tell a Senator I am
coming to a certain point directly I hope he will allow me to
approach it in regular order, so that I will not be diverted.
Mr. LODGE. I will not interrupt the Senator again.
Mr. FORAKER. I am glad to be interrupted; but if I
answer I will hear the interruption later, because of the logical
arrangement I have in my mind of the remarks I desire to ad¬
dress to the Senate, I hope that Senators will do me the favor
not to compel me to anticipate what will properly follow later
in my remarks.
I was pointing out that article 62 of the Articles of War is an
omnibus clause and covers every kind of offense not specified.
I was reading from the authorities by which that has been inter¬
preted, and I had just called attention to the fact that one of
the cases coming under the sixty-second article of war was a
case where a soldier had refused to give testimony before a
court-martial. That is very much like what happened here.
On page 476 the author says:
As to whether an act which is a civil crime is also a military offense
no rule can be laid down which will cover all cases, for the reason that
what may be a military offense under certain circumstances may lose
that character under others. For instance, larceny by a soldier from
a civilian is not always a military crime, but it may become such in
consequence of the particular features, surroundings, or locality of the
act. What these may be can not be anticipated with a sweeping rule
comprehensive enough to provide for every possible conjunction of cir¬
cumstances. Each case must be considered on its own facts. But if
the act be committed on a military reservation or other ground occu¬
pied by the Army, or in its neighborhood, so as to be in the constructive
presence of the Army, or if committed while on duty, particularly if
the injury be to a member of the community whom it is the offender's
duty to protect; or if committed in the presence of other soldiers, or
while in uniform; or if the offender uses his military position or that
of another for the purpose of intimidation or other unlawful influence
or object—such facts would be sufficient to make it prejudicial to mili¬
tary discipline within the meaning of the sixty-second article of war.
And then in the notes found at the foot of the page occurs the
following:
If the offense be committed on a military reservation, or other
premises occupied by the Army, or in its neighborhood, so as to be, so
to speak, in the constructive presence of the Army; or if committed
by an officer or soldier while on duty, particularly if the injury is
done to a member of the community whom the offender is specially
required to protect; or if committed in the presence of other soldiers,
or while the offender is in uniform; or if the offender uses his military
7111
42
position or that of a military superior for the purpose^ of Intimidation
or other unlawful Influence or object—the offense will, in general, Pr0P"
erly be regarded as an act prejudicial to good order and military disci¬
pline, and cognizable by a court-martial under this article.
That is the sixty-second article of war.
So I might go on and read at very great length, for the
authorities are numerous. It is not an open question; it has
been passed on time and again, and always it has been held
that it was the purpose of Congress to carefully provide that no
man charged with an offense should be found guilty of it and
be punished for it otherwise than by a court-martial and as
the court might direct; or, if it were a crime cognizable by the
civil authorities, as murder is, then a civil proceeding should
follow.
I might go much further with that, but our time is limited
this morning, and I will content myself with merely outlining
what I shall undertake to elaborate when we reach the point
where we can take this matter up for orderly and extended dis¬
cussion. I hurry away from it for another reason: I want to
call attention to some other matters. The President says:
The act was one of horrible atrocity, and, so far as I am aware, un¬
paralleled for infamy in the annals of the United States Army.
If these men committed this crime, I agree with him it was
an atrocious crime. You can hardly imagine that soldiers sta¬
tioned in a town, as these men were, would organize a con¬
spiracy to raid the town, go out at midnight when everybody was
in bed and asleep, and undertake to " shoot up " the town and
take the lives of the citizens of that community. I have no
sympathy with that whatever, and it may be that all that was
done; but what I want to call attention to, as I said a while
ago, is that the President, in my opinion, has not only miscon¬
ceived his constitutional power, but also has misconceived the
testimony. What is it he tells us?
Major Blocksom's report is most careful, is based upon the testimony
of scores of eyewitnesses—testimony which conflicted only in nonessen¬
tials and which established the essential facts beyond chance of success¬
ful contradiction.
The President could not have counted the witnesses. We have
got them all here in the papers sent to us. We have a right to
assume they are all here. We asked for them all, and the mes¬
sage informs us that the request of the Senate has been fully
complied with. If so, we have every scrap of testimony to
which the President referred when he said the guilt of the men
belonging to this battalion who " shot up " the town has been
established by " scores of eyewitnesses." Let us see about that
I took some pains, after I read that over again at my home
last evening, to look through this record and count the wit¬
nesses who appeared to testify against these soldiers to the
effect that they had committed this offense.
There were two kinds of testimony taken. There was the
testimony taken of the men themselves, to which I will call at¬
tention directly. That is testimony for the defense. Then tes¬
timony to convict the men as responsible for this raid, this mur¬
der, and all this bad conduct was taken by a self-constituted
citizens' committee, which testimony was confined to the citizens
of the town who were " eyewitnesses " of what occurred. The
President says there were scores. I say he did not count the
witnesses. I have counted them. There are just twenty-one
7111
43
of them—no more. I am go in? to read the names of them, so
that they will be in the Record and so that, if I have made any
mistake, it will be here where we can correct it. George W.
Randall was the first one; O. J. Matlock was the second; Mr.
Jose Martinez was the third; Mr. Adolph Bolack was the fourth ;
Mr. A. Baker was the fifth; Mr. A. C. Moore was the sixth; Mr.
Epolita Martinez was the seventh; Mr. C. S. Canada was the
eighth; Mr. Victoriana Fernandez was the ninth; Mr. Starck
was the tenth; Mr. C. C. Madison was the eleventh; Mr. J. P.
McDonald was the twelfth; Doctor Tliorne was the thirteenth;
Mr. Herbert Elkins was the fourteenth; Macedonio Ramirez
was the fifteenth; Genaro Padron was the sixteenth; Guy Rent-
fro was the seventeenth; Celedonio Gar/a was the eighteenth;
F. M. McCampbell was the nineteenth; M. G. Dalling was the
twentieth, and G. W. H. Rucker was the twenty-first.
I looked through this testimony very carefully simply to con¬
firm what I thought when I read it the first time and to see
how many out of the twenty-one were, in fact, eyewitnesses.
There is no pretense that there is any testimony here except
what is found in the statements of these twenty-one, who, as I
say, were not sworn. They appeared before the self-constituted
committee that had no power to administer oaths, and nobody
administered an oath. They simply stated what they knew
of the trouble that occurred the night before.
Now, let me show how many of them claimed to be eyewit¬
nesses. I am going to take the time to read this testimony to
you. I will read first the testimony of Mr. Adolph Bolack. I
will undertake to point out just how many of the twenty-one
showed by their testimony that they were eyewitnesses or that
they had any knowledge whatever of the facts. They do not
know half as much as the President thinks he knows. Adolph
Bolack's testimony is as follows:
Q. Now, tell what you know.—A. Well, my wife and daughter hear
the shooting and come arunning out in the dining room and got
frightened. I was coming out to see what was coming on, but she
would not let me. I went to my window and saw Dominguez—
He was a policeman—
and two policemen go by. I holler, but Dominguez did not hear me.
After they got by they commenced shooting again. And that is all I
know. In about three minutes the shooting commenced in the alley.
Mr. SCOTT. From what is the Senator reading?
Mr. FORAKER. I am reading from Major Blocksom's re¬
port, which is embodied in the report the Senator has before
him.
Mr. SCOTT. . Why does not the Senator read from the other
copy?
Mr. FORAKER. I use this because I did not have the other,
and I have my notes on the margin. The testimony continues:
Q. Could you see anyone shooting?—A. Saw nothing.
That is far enough to read, I suppose, to count him out. That
leaves the number but 20.
Mr. A. Baker was called to the stand. This is his testimony:
Q. Just tell what you know.—A. I heard shooting during the night;
don't know exactly what hour.
Q. Was it a pistol or rifle?—A. It sounded like a pistol. I jumped
up and my brother came out and asked what it was. We climbed up on
a tank and looked over into the fort. The shooting commenced. There
were four or five shots near the wall. Then they commenced shooting
uptown.
7111
44
Q. Where do you live?—A. Near the old ice plant, in lot 9, block
59, I think.
Q. Did you see the men cross the wall ?—A. No.
Q. Do you rememher hearing a bugle call?—A. Yes.
Q. Was the firing before or after the bugle call ?—A. There were
some shots before the bugle call; then the bugle; then more shots: then
the bugle call; then more shots. I heard the men run down the
stairs, like they were coming to a fire, and some one hollei'ed " Fall
in line," and then, " March, and they went uptown.
All are agreed that one of the companies, comprising fifty-odd
men, was sent out to patrol the town immediately after the
fight.
Q. Did you hear the roll call?—A. Yes; about half an hour after
they got back—a half or three-quarters of an hour after the firing
ceased and they went back to the post.
Q. From where you were, could you look down in the alley?—A.
Yes.
Q. At the time of the firing, or within five minutes after the firing,
did you see anyone running through the alley?—A. No.
Q. Were you expecting trouble last night?—A. Yes. Yesterday
evening, about 6 o'clock, two soldiers came up to the house ana
asked if Mr. Baker lived there. Then they said they wanted a big,
broad-shouldered fellow, who said he was 'from Georgia. So we got
our arms and guarded our residence.
Q. Do you know of the shot that Mr. Randall spoke of having
gone through his room?—A. Yes; I heard it whistle.
Q. Did you notice the flash of any guns toward the fort?—A. No.
Q. If they had had a roll call you could have heard it?—A. Yes;
I heard the last one and heard nearly every name called.
Q. Why were you noticing this?—A. After they had the other
trouble the officer told him to report to him and that he would have
a roll call and get who was out. So I noticed for the roll call this
time.
Q. Did you hear the shooting up in town?—A. Yes.
Q. How many shots did you hear?—A. One hundred and fifty,
maybe two hundred. It looked like volleys of them were being fired.
(Excused.)
He saw nothing. That reduces the number to nineteen.
The next testimony is the following:
Mr. A. C. Moore takes stand. (Proprietor of Miller Hotel.)
Q. This committee is sitting for the purpose of getting information
that will place the saddle on the right horse. You are running the
Miller Hotel?—A. Yes.
Q. Are there any bullet holes in the hotel ?—A. Yes; about six.
Q. Shot by whom ?—A. By people ; last night.
Q. What time?—A. About 12.
Q. Did you see anyone shoot?—A. No.
Q. Did you hear?—A. Yes.
Q. Tell what you know.—A. The first shooting started down by the
garrison. The shooting still continued, and they came up the 'alley
right by our rooms. They gave the command here and fired. Then
they came out on Elizabeth street. There they gave the same command
again-—" Halt; fire ! "
Q. Could you tell who they were—negroes or white people?—A.
Well, it was a good, strong voice and English spoken.
Q. Could you see them ?—A. No ; I could not leave my wife; she was
In hysterics.
That is enough to read of his testimony. He goes on to make
it more emphatic that he saw nothing, but heard shots fired, as
everybody el?e did. That disposes of three of them, and only
eighteen are left.
In giving the list of witnesses I counted Mr. Epolita Martinez
as one of the twenty-one. Concerning him, however, there is
this statement printed in the testimony:
Mr. Epolita Martinez called to the stand, but as he was called to
verify a rumor concerning a soldier's remarks in his (Martinez's) drink¬
ing place, which he denied the truth of, his statements are excluded
from record.
That disposes of him and leaves seventeen.
7111
45
Mr. C. S. Canada then testified as follows:
Q. We are inquiring into the matter of last night with a view to as¬
certaining who the guilty parties are. We know they were negro
soldiers—
That is the way they commenced—
If there is anything that would throw any light on the subject we
would like to have it.—A. I did not see a single man, that I am sure.
My room is up on the third floor. As soon as the shooting hegan I
went down "on second floor and went out on the gallery. I saw that
policeman and saw that the horse was wounded. He staggered and
fell. I could tell by his rather dark clothes that he was an officer.
Q. Could you see who fired the shots?—A. No; I could not give any
description of the men.
So we will dismiss him. There are sixteen of them left.
I next call attention to the testimony of Mr. Starck, who Is
one of the men who had his house fired into.
Q. Tell what you know.—A. I don't know that I can help you much.
About half past 12 last night I was awakened by a volley being fired
Into my home. One of the shots passed right over our beds, through
both our bedroom and my children's bedroom. I saw man running
down the street coming this way. He had a rifle in his hand in about
this position [motions at shoulder!. I came to the window and saw
an object behind the trees at Mr. Turk's and was about to come down
on him when I recognized him as one of the policemen.
Q. Were you able to identify any of them as being negroes?—A. No.
Q. You only saw one man?—A. Yes; but there were more than
one, for there was a volley.
Q. How many shots did you hear before and after?—A. I could
not say exactly—fifty or a hundred. I heard a lot of shooting after
the bugle call at the post.
Q. When were the shots?—A. Just after the bugle call. The flrst
shooting was after the bugle call.
So he saw nothing. We now have only fifteen.
Mr. C. C. Madison took the stand. He was asked:
Q. We are here for the purpose of obtaining information touching
what happened last night. Tell us everything you know about it.
Who you saw shoot, if anybody.—A. We (Mr. Madison was accom¬
panied by another tinner and could not be induced to converse in
anything but the first person plural) did not see anything. The shoot¬
ing took place 10 or 15 feet from where we were sleeping.
So that reduces it to fourteen.
Doctor Thorne is the next;
Tell the committee what you know.—A. I know nothing except what
I heard.
So I will pass him by. That cuts it down to thirteen. I will
read next the testimony of Guy Ilentfro ;
Was at Creager's house on Monday night last, and heard some voices;
shortly after heard the words " There he goes," and after that—about
fifteen or twenty "minutes after—I heard some more shots. Did not
hear any conversation. That was Monday night last. I know Mike
Hamilton. He is a colored man. Saw him going in direction of Till¬
man's house, near last street of garrison wall. Have not seen him
since Three or four guards are stationed Inside firing line. Was still
going in direction of garrison when last saw him. That's all.
He saw nothing. That cuts the number down to twelve.
Celedonio Garza's testimony is next;
Yesj sir; I am sheriff of this county. On Monday last I came into
town, and was advised that soldiers had broken out of the post. After
the shooting I came out to see what was the matter.
He saw nothing. I have read enough to show that. That is
the only purpose in reading it. That cuts the number down to
eleven.
The next is F. M. McCampbell's testimony:
7111
4G
I was on my way to the house on the night of the 13th, when we met
some soldiers, and they turned the guns on us and asked us, What
are you sons of hitches hunting for?" I think it was a whole com¬
pany. I did not see any white officer with them. I just saw the ranks
of the soldiers. They went in the direction of town, and " we care very
little if we shoot you full of holes," they said. Mr. Fielder was going
to the hotel. I did not see any firing. I don't think there was a com¬
missioned officer with the soldiers. That's all, ahout, I know. This hap¬
pened right ahout behind the market. There must have been about fifty
or sixty men in the company. Mr. Fielder was with me going to the
Rio Grande Hotel at that time. That's all.
He testifies he saw no firing and that the troops he saw were
fifty or sixty in number, which was undoubtedly the company
with which Captain Lyon, under the order of Major Penrose,
patrolled the town. That cuts the number down to ten.
Next is the testimony of M. G. Dalling:
I am a State ranger. X have come into the possession of some infor¬
mation this morning, which I got from this soda-water man, who sells
soda water. He told me that this soda-water man had been told by a
saloon man who keeps a saloon in the edge of the town that some
shooting had been done last night, and that Company C could have
taken the whole town if they had wanted to, and that they could take
the whole damn State.
That cuts it down to nine. Then there is the testimony of
G. W. H. Rucker:
About Monday night last, ahout half-past 8, I took two cases of
soda water to saloon near edge of town. There were about thirty or
forty negroes inside, gambling, as near as I can ascertain about the
crowd, and 'I heard three or four negroes making threats that they
would die and go to heaven before they would go back into post, birt
do not know what the conversation was ahout. Yes; I know if I would
see this soldier again I would recognize him. I could pick him out of a
crowd. He was a soldier. Yesterday morning I passed this negro
saloon, but nobody was there. About 12 o'clock, it must have been, as
I was picking up empty cases, I went to this saloon, and the proprietor
told me that he did not need any " pop," as the boys had been having
a little trouble with the citizens, and they were all in the post. He is
working for two soldiers who are in the post, who own the saloon. He
said that if a gun had been fired last night that Company C could have
come out without any orders, and would run every man out of town;
that this Company C could whip the whole State of Texas.
So he saw nothing.
That cuts the number down to eight. In other words, Instead
of " scores of eyewitnesses " who have testified to this transac¬
tion, there are only eight men at most; for nobody will pretend
that there are any other witnesses than those to whom I now
call attention; nobody will pretend that there is any other wit¬
ness, sworn or unsworn, who pretended as an eyewitness to de¬
tail what occurred. " Scores" would mean at least forty.
Therefore I say the President has been imposed upon. He has
seen fit to point out with a great deal of particularity, as it
seemed to me under the circumstances, that Major Blocksom,
who reported this testimony to him, is from Ohio, and he points
out that Major Blocksom has made a most careful report, and
that Major Blocksom has reported the testimony of these scores
of eyewitnesses.
Mr. President, I have not in this case commented on indi¬
viduals. I have not said anything about General Garlington be¬
ing a southern man, born in the South, born in South Carolina,
I believe, and appointed from Georgia. I have assumed that he
is a good officer and an honorable man. I have said nothing
about Major Blocksom, but it seems to me he is intruded
into this case by the President in a very prominent way
as from Ohio, and that his report should be strengthened
7111
47
thereby: and we are told that it was Major Blocksom who got
the testimony that fixed the guilt by scores of eyewitnesses. I
will presently speak of the testimony of the eight eyewitnesses,
but before I do that I wish to mention something else.
When a matter of this kind comes up, you do not generally
have to ask for information. It is astonishing how kind peo¬
ple are. They send you information. My mail has borne to
me a great deal. Among others that have come to me is the
following. It comes from a most reputable, a most honored
man in the State of Ohio, a man of the highest character, who
has known Major Blocksom all his life. I am going to read
you what he says about him. Major Blocksom, I take great
pleasure in saying, because he is from my State, is a good offi¬
cer, but I want to say preliminarily to readirig this that if there
is a man from Ohio in the Army who, unfortunately, beyond any
other, was unfitted for this special work, it was Major Block¬
som. He is not aware of it, I imagine. Unconsciously he is
the victim of early influences. Men are sometimes insensibly
influenced. I think he was in this case. Here is what was
written to me:
Major Blocksom was born and reared In Zanesville, Ohio. His
father, Augustus P- Blocksom, - was a prominent attorney there. I
knew him well. He was an active and radical Democratic politician,
and was entirely consistent in his views, with all the old war Demo¬
cratic ideas, and never lost an opportunity to express these views in
public. He was somewhat of an orator and could always find an in¬
terested audience among his Democratic hearers of the Vallandigham
type. This is the kind of milk his son was fed upon.
I do not know how many of my colleagues here know just
what a Vallandigham copperhead Democrat of Ohio was, but
if there was a man in all this broad land who had an antipathy
beyond another to a negro in that civil-war time it was that
kind of a man. Everybody knows that. Sometime I may, or
if I had more time I might now, say more on that subject. But
it is not necessary. But this officer was the son of that kind of
a father, and had in his youth that kind of political affiliation
and that kind of political atmosphere. It is natural that he
should inherit that prejudice and carry it with him and be in¬
sensibly influenced by it in the discharge of this very delicate
duty. I think anybody could see, by simply reading his report,
there was some kind of a screw loose with him.
Let me call attention to his report. I did not bring him into
this case. The President has called attention to the fact that
this officer comes from Ohio, and so he does; he was appointed
to the academy on the recommendation of a very able and ac¬
complished Democratic Congressman who represented that dis¬
trict at the time—back in 1872. Here is Major Blocksom's
report:
Brownsville, Tex., August 29, 1906.
Here is the first line, the first jump out of the box:
I have the honor to report investigation of trouble caused ~by soldiers
of Twenty-fifth Infantry.
Then he proceeded. Before he gets through he has occasion
to speak of a number of people. One man who seems to have
won his admiration and excited it unduly was a Captain Mc¬
Donald, who is described as a captain of Texas Rangers, what¬
ever they may be, and he pays him this high compliment Now,
Mr. President, think of this going into an official report:
7111
48
I believe he—
Judge Welch—
threatened McDonald with arrest for contempt before the latter gavo
them up—
That is, the prisoners who were in his charge—
It is possible McDonald might have fought the entire battalion with
his four or five rangers were their obedience as blind as his obstinacy.
It is said here he is so brave he would not hesitate to " charge hell
with one bucket of water."
[Laughter.]
Then immediately he says:
I met many sterling people in Brownsville.
Captain McDonald is, I suppose, a sterling man.
Mr. SPOONER. ' What?
Mr. FORAKER. S-t-e-r-l-i-n-g. Captain McDonald is one
of them. Like Ben Adhem, his " name led all the rest."
He then concludes, this man from Ohio:
It must be confessed the colored soldier is much more aggressive In
his attitude on the social equality question than he used to be.
What has that got to do with the shooting at Brownsville?
Nothing, and I pass it over. I mention it only to show his
animus. I speak of it because when the President intrudes the
character of Major Blocksom into this discussion I feel like
it is due to the Senate to know who it is from Ohio who made
this report, who went down to Brownsville and examined these
witnesses, gathered up these unsworn, loose, conflicting, dis¬
jointed, and contradictory statements, which we are told amount
to conclusive evidence of the guilt of these men of the most
heinous crime ever committed by soldiers of the United States
Army.
I might point out other things, but I have pointed out enough
to show that Major Blocksom has not forgotten his early politi¬
cal affiliations, has not gotten entirely away from the influence
of the political atmosphere he breathed in the days of his youth
at Zanesville, Ohio. Well, that is enough for him.
So far as General Garlington is concerned I have not, just
now, a word to say about him as a man. I do not know him.
I have no disposition to criticise him or anybody else, but I do
fell that it is my duty to present these facts to the Senate
We are not a lot of young men on a frolic. This is serious busi¬
ness. I am not talking here because of the hardship which has
been caused a few men, but because it embraces a great broad
principle of constitutional law and constitutional liberty. It is
a precedent, if it should be established, that will apply to white
men as well as to black men, that will apply to the whole
country.
I intended to go into detail over the testimony of the eight wit¬
nesses, but in view of the lateness of the hour and of the engage¬
ments which I am told are pressing some of the Senators, I will
pass it over with the single remark that the testimony of these
eight witnesses, to any man who knows how to examine testi¬
mony and weigh it and analyze it and determine the effective¬
ness of it and attach to it proper weight, will be utterly unsatis¬
factory and insufficient to find these men guilty of the great crime
with which they stand charged. And it is because these men
. have been convicted of this gross crime on such unsatisfactory
7111
40
testimony that I want the Committee on Military Affairs to be
empowered to send for these people—these eight, if you please,
or any others anybody can produce—and have them where they
can be examined, where they can be sworn, where they will know
that they are testifying under the responsibility of their oaths,
and where questions can be asked. Now, Mr. President, so
much for that.
Mr. KNOX. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Pennsylvania?
Mr. FORAKER. Certainly. I am not through, however.
Mr. KNOX. I merely want to ask one question, for my own
Information.
Mr. FORAKER. I yield.
Mr. KNOX. I wish to inquire of the Senator from Ohio If
he plants himself upon the proposition that there is no evidence
whatever, or that there was none before the President at the
time this order was made, except such as was elicited by Major
Blocksom and attached to his report?
Mr. FORAKER. I plant myself upon the proposition stated
by the President, that the testimony submitted by Major
Blocksom was the testimony of scores of eyewitnesses, by whose
statements it was conclusively established that these men were
guilty of this crime. I say, on the contrary, with all due respect
to everybody, that the testimony of these eight witnesses is not
sufficient of itself. The President may have had other infor¬
mation given to him by these inspectors. That is another mat¬
ter. I will come to that later.
Mr. KNOX. All I want to know, if the Senator will permit
me to supplement my question, is whether there is any neces¬
sity for searching elsewhere for the eyewitnesses to this affray
than in the testimony elicited by Major Blocksom and attached
to his report.
Mr. FORAKER. I will answer that when we get authority
to examine witnesses. I think I can produce some testimony
which will throw some important light on this transaction. I
do not hesitate to say that I promise the Senate to give them
some additional testimony. I think I know what I am talking
about and that I am not a boy going to a frolic. This is not a
case to be disposed of upon broad, unqualified, and extravagant
statements. It is a question, on the one hand, of power and, on
the other, a question of facts to be established by testimony
taken in a proper way. But I am not yet through.
Now, the testimony, in so far as any testimony of witnesses ,
may be concerned, is that to which I htive called attention—that
of eight witnesses. You will find, when you read their testi¬
mony
Mr. KNOX. I want to know if that is the testimony upon
which the order is based?
Mr. FORAKER. I say it is tthe testimony to which the
President has called our attention. Let me read the language
of the President* He does not tell us of any other testimony.
He makes an argument that it could not have been done by
citizens, because they fired into the houses; that it could not
have been done by citizens, because there were found empty
cartridge shells and clips. Is it not important, in view of the
testimony which is to be found in this record, that we should
7111 i
50
know the truth about that? What other witnesses there may
have been I do not know, but the President says—and in view
of the question propounded to me by the Senator from Pennsyl¬
vania I will call attention again to what I have been comment¬
ing upon. The President says :
Major Blocksom's report is most careful, is based upon the testimony
of scores of eyewitnesses.
Did Major Blocksom take any testimony that the President
withheld from Congress? If so, will the Senator from Penn¬
sylvania name it? I called for it all.
Mr. KNOX. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Pennsylvania. '
Mr. FORAKER. Certainly.
Mr. KNOX. The Senator from Ohio totally misapprehends
the purpose of my question. I am not undertaking to antago¬
nize anything he has stated, nor am I foreshadowing any view
I may entertain about this testimony. All I want to know is
whether I understand the Senator correctly when he says that
this case is to be judged solely, so far as it is now before the
Senate, upon the testimony of the twenty-one witnesses referred
to, of whom eight alone, he says, had any observation of the
transaction which occurred.
Mr. FORAKER. I did not mean to impute to the Senator
antagonism to me. I did not know whether he was opposed or
otherwise
Mr. KNOX. I am trying to get information.
Mr. FORAKER. The Senator wanted full information, and
that is what I am trying to get and that is what I have been
insisting upon. What I have been discussing and what I have
been insisting upon is that the President's statement that this
was a carefully prepared report of Major Blocksom, based upon
the testimony of scores of eyewitnesses, was not borne out by the
record that the President has sent us. If he has any other tes¬
timony, it has not come to us. We called for all of it. I as¬
sume it is all. If so, there are eight witnesses instead of scores
who can be said to have tried to testify that they saw something.
Mr. President, opposed to that is the testimony of whom?
The testimony of the noncommissioned officers—those who were
on guard and those who were in charge of quarters "and as such
in charge of the gun racks—and the testimony of the commis¬
sioned officers; and without stopping to read it, for it is volumi¬
nous, I will ask the Senate to give me the privilege to incorpo¬
rate in the Recobd some eight or ten affidavits. It is all in
affidavit form. If there is no objection, I should like to do that
If there is objection, I will read it.
The VICE-PRESIDENT. If there is no objection, permission
is granted.
The matter referred to is as follows:
- A".
Fobt Beown, Tex., August 1\, 1906.
Foet Beown, State of Texas, ss:
Personally appeared before me, the undersigned authority. Seret.
George Jackson, Company B, Twenty-fifth Infantry, who beine dnl*
sworn according to law, deposes and says: 6 '
" I was in charge of the company quarters of Company B. Twentr-
flfth Infantry, on the 13th and 14th of August, 1906. J-weniy
7111
51
"The company was on a practice march on the morning of the 13th
and returned to the post between 10 and 11 o'clock, when the rifles of
the company were returned to the racks to allow six men of the com¬
pany to get their rifles to go on guard. I then locked the racks again,
and there were in the racks forty-six rifles, which, with the six in the
hands of the men on guard, made fifty-two rifles, for which I was ac¬
countable. The racks were not again opened until call to arms sounded,
soon after midnight on the morning of the 14th, when I opened them
myself.
" I was not away ftom the quarters at any time during the time the
racks were closed, about 10 o'clock on the morning of the 18th, until
they were opened when call to arms sounded on the morning of the
14th, nor were the keys to the racks ever out of my possession.
" I made check roll caJl of the company at 11 p. m., on the night of
the 13th, and all men were present.
" George Jackson,
"Sergeant Company B, Twenty-fifth Infantry.'"
Sworn to and subscribed before me this 20th day of August, 1906.
Samuel P. Lyon,
Captain Ticenty-flfth Infantry, Trial Officer, Summary\ Court.
B".
Fobt Brown, Tex., August U, 1906.
Fort Brown, State of Texas, ss:
Personally appeared before me, the undersigned- authority, Sergt.
Darby W. O. Brawner. Company C, Twenty-fifth Infantry, who, being
duly sworn according to law, deposes and says:
' I was in charge of the company quarters of Company C, Twenty-
fifth Infantry, on the 13th and 14th of August, 1906. I locked the
arm racks in the company quarters between 10 and 11 o'clock a. m.
August 13. There were 53 in the racks, which, with the 4 rifles in the
hands of the members of the guard, made up to the total number issued
to the men of Company C; that is, 57 rifles in -all. The keys of the
arm racks were constantly in my possession. The arm racks were not
opened until about 12.15 a. m., August 14, 1906, for any reason except
that about 2.30 o'clock p. m. August 13, 1906, one rack was opened for
a motnent to allow the supernumerary of the guard to get his rifle in
order to take the place of a member of the guard who was taken sick,
and whose rifle was at the same time placed in this arm rack.
"About 12.15 a. m., August 14, 1906, I was awakened by a corporal of
the company, who told me that shooting had been going on and that
call to> arms had been sounded, and to get up and open the arm racks.
I went down to the first sergeant and asked him what I should do,
whether I should open the arm racks, and he said, ' Wait for orders.'
Corporal Madison, whom I met as I was returning to the squad room,
told me orders of the commanding officer were to open the arm racks.
I then opened three racks, the fourth having been broken open by the
men trying to get their rifles from the racks to fall in when call to
arms sounded.
" Darby W. O. Brawneb,
"Sergeant, Company C, Twenty-fifth Infantry."
Sworn to and subscribed before me this 20th day of August, 1906.
Samuel P. Lyon,
Captain, Twenty-fifth Infantry, Trial Officer, Summary Court.
C".
Fort Brown, Tex., August U, 1906.
Fort Brown, State of Texas:
Personally appeared before me, the undersigned authority, Corpl.
David Powell, Company D, Twenty-fifth Infantry, who, being duly
sworn according to law, deposes and gays:
" I was in charge of quarters of Company D, Twenty-fifth Infantry,
on the 13th and 14th of August, 1906.
" Company D, Twenty-fifth Infantry, was on a practice march on the
morning of the 13th and returned to the post about 9.30 a. m. when the
rifles were placed in the gun racks and the racks locked by me. At
about 10 a. m. the rac-k^ were opened to allow five men of the guard to
get their rifles and were again locked by me. There were in the racks
then fifty-two rifles and five in the hands of the men of the company on
guard, making a total of fifty-seven rifles in all for which I was ac¬
countable.
7111
"1 did not leave the quarters at any time during the day or night.
The keys to the arm racks were in my personal possession the entire
time, and the racks were not opened for any purpose whatever from
about 10 a. m. [until] after midnight on the lith, when I unlocked the
racks myself. .
" I took check roll call at 11 p. m. on the 13th, and all the men of
the company were present or accounted for.
" David Powell,
" Corporal, Company D, Twenty-fifth Infantry."
Sworn to and subscribed before me this 20th day* of August, 1906.
Samuel P. Lyon,
Captain, Twenty-fifth Infantry, Trial Officer, Summary Court.
D".
Fort Brown, Tex., August U, 1906.
Fort Brown, State of Texas:
Personally appeared before me, the undersigned authority, Private
J. H. Howard, Company D, Twenty-fifth Infantry, who, being duly
sworn according to law, deposes and says: --
" I was a member of the post guard on the night of the 13th and
14th of August, 1906. I was posted as a sentinel on post No. 2,
which extends around the barracks, keeping the buildings on my left,
at 10.30 p. m., August 13. At about 12.10 on the morning of the 14th,
when between C and B Company barracks, I beard a single shot, then
five or six, and then a regular fusilade. The shots seemed to come
from the street in the rear of the brick wall back of B Company's bar¬
racks. I thought they were shooting at me, and I looked in the di¬
rection of the sounds to me if I could see anybody, but I could not,
and I then went to the front of the barracks and gave the alarm, by
firing my piece three times and calling for the guard. I did not see
anybody at all but the post scavenger, who was at the sinks in the
rear of B Company's barracks. As soon as the shooting commenced he
drove away with his cart.
" Joseph H. Howard,
"Private, Company D, Twenty-fifth Infantry."
Sworn to and subscribed before me this 20th day of August, 1906.
Samuel P. Lyon,
Captain, Twenty-fifth Infantry, Trial Officer, Summary Court.
E".
Fort Brown, State of Texas:
Personally appeared before me, the undersigned authority, one Matias
G. Tamayo, scavenger at Fort Brown, Tex., who being duly sworn ac¬
cording to law, deposes and says :
" That at about 12.10 a. m. on the morning of August 14, 1906, he
was in rear of the quarters occupied by Company B, Twenty-fifth Infan¬
try ; that about this time a shot was fired by some person unknown in
the street just outside the wall dividing the military reservation from
the town of Brownsville, Tex.; that he could hear the bullet and that it
appeared to be going in the direction of the Rio Grande River, about
parallel to the above-mentioned wall; that immediately following this
one shot, a number of other shots were fired, all outside the wall.
" Deponent further says that previous to the fehooting he saw no
soldiers anywhere in rear of the quarters occupied by the companies of
the Twenty-fifth Infantry, and heard no talking or news of any kind;
and that he saw and heard no shot or shots from any of the company
barracks.
" Matias G. Tamayo,
"Scavenger, Fort Brown, Tex."
Sworn to and subscribed before me this 14th day of August, 1906.
Samuel P. Lyon,
Captain, Twenty-fifth Infantry, Summary Court.
F".
Fort Brown, Tex., August SS, 1906.
Sergt. J. R. Reid, Company B, Twenty-fifth Infantry, stated to me
that he did not have the call to arms sounded (he was sergeant of
the guard on the night of the 13th of August) until the shots came so
fast that he thought post was attacked. He stated also that b«
formed the guard before having the call sounded.
A. P. Blocksom,
Major. Inspector-General.
Till
Mr. FORAKER. Now, opposed to the testimony of these
eight is this testimony, taken in the form of affidavits, but taken
before the summary court, Captain Lyon, who, I am told, is one
of the best officers in the United States Army, a man of the
highest character, a man who would not send to the President
of the United States an affidavit that was given by one whom he
thought was an untruthful man. The very fact that the testi¬
mony was taken before Captain Lyon is a guaranty that it was
properly taken, that these men told the truth as they under¬
stood it.
According to this testimony the firing commenced about mid¬
night. The sentry says it commenced outside the walls of the
garrison. He immediately ran to a point near the barracks,
and, to give the alarm, fired his own piece three times in the
air. One of these eight witnesses testifies that he ran and
looked out of his window and saw somebody inside the wall
shooting up into the air. He saw the sentry, no doubt. He
then ran back into his house, put out the light, and pulled
down the blinds, so he would not get hurt. That is one of the
eight on whose testimony these men are convicted of these
heinous crimes.
They all testify that immediately after there turned out to
be a continuance of the firing, the sergeant of the guard or¬
dered the guard to fall inr and sent messages to the commanding
officer to awaken him; and when the firing continued he or¬
dered a call to arms to be sounded upon the bugle, and it was
sounded, and immediately the whole post was aroused. Men
jumped up out of their bunks and came down at midnight into
the barracks room, dressing as .rapidly as they could, some of
them half dressed when they took their places in line; rushed
to the gun racks, as told to do. to get their pieces, and every
gun rack was found to be locked just as it had been locked the
day before, except only one; and, in fact, that was found locked,
too. But there has been a good deal made of the fact that it
was broken open. A lieutenant, acting under the direct order
of Major Penrose, to avoid the delay of waiting for the ser¬
geant to get there with his key, ordered the gun rack to be
broken open and the arms taken out, and that was done.
The men immediately fell into line, and before the firing
ceased they formed their lines and the sargeants commenced the
call of the roll, and when the call of the roll was commenced
every commissioned officer was there, except only the officer of
the day, who had been on duty and had gone to sleep and was
sleeping so soundly that he could not be disturbed by a little
thing like a raid. When the roll was called every man an¬
swered to his name and every gun was found in the gun racks.
Every gun was handed out to the man to whom it belonged and
every man was there. Oh, but we are told that while that is
true—that while it turned out that when the roll was called they
were all there, that all did answer and had their guns, yet the men
who had jumped over the wail, fifteen or twenty of them, and
gone down town, two or three blocks away, doing the firing,
when it stopped rushed back to quarters, rejoined their com¬
mands, took their places in the ranks, answered to their names,
and exhibited their guns and showed that every man was there.
Consider this a moment. Not only the noncommissioned offi¬
cers, whose duty it was to place the men in proper ranks, but
7111
54
the commissioned officers were present at the roll call; and at
that time every commissioned officer of the command was alert.
They all testify they thought the garrison was being attacked
and they were looking for trouble to come over the wall toward
them. Does any man believe that fifteen or twenty men, who
had been off engaged in an excitement of that character, shoot¬
ing up the town, trying to murder people, rushing back under
such circumstances, could get into camp, could join their com¬
mands, in the very presence of the noncommissioned officers and
the commissioned officers also, and avoid being detected in doing
so?
I think I read-in the message of the President of yesterday
about something being absurd. It does not make a thing absurd
to say it is, but it does seem to me that I may be pardoned if
I say that this statement is utterly absurd. No such thing
could happen. If so, every commissioned officer of that com-
'pany ought to be dismissed from service just as soon as he can
be court-martialed. I would not dismiss him without a court-
martial.
So it is, I say, to make a long story short and hurry away
from this, there is not, as the President understands—and he
does so understand it or he would not say it—any conclusive
testimony to show that the men of this regiment committed this
offense.
But the President said not only is the testimony conclusive
so that no doubt can exist as to the guilt of certain of the men,
whoever they may be, as to the raid, but that the testimony is
equally conclusive to show that there is a conspiracy of silence
entered into by all these men. Now, let me call the attention
of Senators to the facts.
I have already commented on the facts, as the President has,
that he bases what he says, as he must of necessity, upon what
is reported to him by the inspectors whom he sent there and
in whom h« has entire confidence. He says Major Blocksom
went down to elicit the proof of the guilt, and secured that and
came away. Then he determined that he would muster these
men out if they did not tell on one another, for he was satis¬
fied, not from evidence but from deduction, that they were
guilty. So then he sent General Garlington, the Inspector of
the Army, down to Fort Reno with instructions to advise the
men that unless they came forward and testified to the facts
within their knowledge, whereby their cpmrades could be con¬
victed, they would all be mustered out without honor.
Now, General Garlington made a report upon that. It was
his purpose to find out whether or not there was this conspiracy.
The President says there was, and the President says therefore
he can not go amiss in dismissing these men from the Army;
that is the only way that the good name of the Army can be
protected; the only way that discipline can be maintained.
Now, hear what General Garlington says on the subject of
a silent conspiracy:
The uniform denial on the part of the enlisted men concerning the
u barrack talk " in regard to these acts of hostility upon the part of
certain citizens of Brownsville indicated a possible general under-
, standing among the enlisted men of this battalion as to the position
would take in tli6 pr€mis6S, but I could find no evidence of such
understanding.
He could not find any evidence. There is the officer of the
7111
55
Army, the Inspector-General, sent there for the express purpose
of finding out whether or not testimony could be obtained to
convict the men of that battalion, if there were any, who com¬
mitted this crime, and he reports to the President that he made
a labored and long-continued effort, advising the men of the
penalty, the "extreme penalty," to use his own language, that
would be imposed upon them if they failed to give him full
information, and they gave him no information. They persisted,
one and all, in saying: " I know nothing about it." In heaven's
name, if a man is absolutely innocent, as these men claim to be,
what else could he say? How otherwise could he prove his
innocence? And that is now the new requirement.
So General Garlington, instead of reporting to the President
that there is testimony which conclusively shows a conspiracy
of silence to suppress testimony, reported to the President the
very opposite, that there is no testimony whatever. That is
what General Garlington says, and yet the President tells us
in his message it is conclusively established not only that these
men shot up the town, killing one man and wounding another,
hut also conclusively established that they have agreed that they
have become conspirators to commit another crime, misprision
of felony, punishable with three years in the penitentiary.
Then, on the top of that, every last one of them has gone be¬
fore a duly ci'v tituted officer, the summary court, or a notary,
and made affidavit that he has had no knowledge, and that
-affidavit we must believe is false, is perjury. Perjury, mis¬
prision of felony, and murder are all branded upon the fore¬
heads of these men as they are turned loose upon the world in
their old days, after twenty-odd years for many of them, after
twenty-six years for one of them, to go up and down through
this land they have done so much to serve, so much to protect,
as disgraced and degraded men where they were before honored.
And this not punishment!
Now, Mr. President, I want to say in conclusion what must be
manifest to every member of the Senate, that it has been at a
very great disadvantage I have undertaken to speak here this
morning without having had an opportunity to examine these
exhibits, except in the partial way I have, that the President
attached to his message.
But, Mr. President, I was impelled to do It because I think
the President has been imposed on as to the facts, and I believe
he is big enough man, just enough man, when he knows the
facts, to undo, so far as he can, the wrong which, in my judg¬
ment, has been committed, and, in so far as he may not have the
power, to call upon us to exercise our power to help him undo
what I think is an injustice that no language can adequately
describe.
■ Now, the President said some other things, one about Ohio, In
which he cited some precedents. Will some Senator who has the
document before him show me the precedents that the Judge-
Advocate-General cites?
Mr. LODGE. I have it here.
Mr. FORAKER. The President says, in so many words, that
for his action there are "plenty of precedents." I want the
Judge-Advocate-General's report.
Mr. LODGE. The precedents are on pages 311 and 312.
General Ainsworth, The Military Secretary, furnished them.
7111
56
Mr. FORAKER. I will come to that in a minute. The Presi¬
dent says there are plenty of precedents. Well, Mr. President,
I do not know where he gets that information. He does not
send anything from the Judge-Advocate-General to show that he
had the support of that law officer of the Army in his contention
that his constitutional power is sufficient to authorize him to
make this dismissal, nor does he send anything from the Judge-
Advocate-General that warrants the statement that there are
plenty of precedents for what he has done. What is it that The
Military Secretary says?
I read as follows:
The Secretary to the President, In a letter dated December 1, 1906,
advises the Secretary of War that the President would like to have
him " look up any precedents (Lee's or others) for the action taken
in discharging the battalion of the Twenty-fifth Infantry, and if there
exist any such, send them to the President."
The Military Secretary, proceeding, says :
A protracted examination of the official records has thus far re¬
sulted in failure to discover a precedent in the Regular Army for the
discharge of those members of three companies of the Twenty-fifth
Infantry who were present on the night of August 13, 1906, when an
affray in the city of Brownsville took place.
The case referred to as " Lee's " by the Secretary to the President
is undoubtedly the case of Company G, Eighth Infantry, concerning
which an interview with Mr. J. C. Hesse was recently published in
the Washington Post. In that interview it was stated that, by order
of Lieut. Col. Robert E. Lee, the members of Company G were trans¬
ferred to other companies of the same regiment and prohibited from
reenlisting on the expiration of the terms of enlistment under which
they were then serving. A search for papers containing details of the
occurrence has resulted in failure to find them, the original papers
having been returned in 1860 to the Department of Texas, where they
were undoubtedly lost or destroyed at the time of the surrender of
the troops in that department to the Confederate military authorities.
The records show, however, that on March 18, 1860, members of
Company G, Eighth Infantry, at Fort Davis, Tex., took from the
guardhouse a citizen who was confined there and, without opposition
from the guard, hanged him to a tree near by until he was dead. The
records also show that by order of the regimental commander 27 men
of this company were detached from the company and attached to
other companies of the regiment, " to restore their discipline," and
that 12 other men of the company were transferred to other com¬
panies by order of the regimental commander without the cause of
transfer being stated. The regimental orders are not on file, and it
is impossible to state whether the reenlistment of these transferred
men was or was not prohibited ; but as the records show that some
of the transferred men did reenlist, it is evident that if an order pro¬
hibiting their reenlistment was given it was not carried into effect.
In view of the foregoing statement it will be seen that the action
taken in 1860 in the case of Company G, Eighth Infantry, is not a
precedent for the action taken in 1906 in the case of members of the
Twenty-fifth Infantry.
In the volunteer service during the civil war there occurred numer¬
ous instances of the summary discharge of large numbers of men
because of misconduct on their part. Following are some of those
instances:
Then he goes on with a list which I will not weary the Senate
to read, but I will incorporate it all in the Record, and I pass
it by with the single comment that Senators will study in vain
to find any precedent connected with the United States Army.
The nearest approach to it is a precedent given by General Lee
in discharging a regiment of Confederate soldiers. What his
power may have been, as I have said, I do not undertake to say.
It is not necessary to discuss that. But there is no precedent
in either the Volunteer or the Regular service for what the
President has done here, certainly none so far as we have been
advised, and therefore I say again somebody imposed on him
7111
57
when the President was led to say that there are plenty of
precedents for what he has done here. I say there are no
precedents.
The matter referred to Is as follows:
The members of Company A, First Eastern Shore Maryland Infantry
Volunteers, were mustered out of service August 16, 1862, by order of
the general commanding the Eighth Army Corps because they refused
to serve in Virginia.
The members of Company K, First Eastern Shore Maryland Infantry
Volunteers, were dishonorably discharged, without trial, July 2, 1863,
pursuant to the order of the general commanding the Eighth Army
Corps, subject to the approval of the Secretary of War, for refusing to
leave the section of the State in which it was claimed that they had
enlisted to serve. The action was approved by the Secretary of War
July 23, 1863.
The First Regiment, United States Reserve Corps (Missouri Infan¬
try), was mustered out of service during September and October, 1862,
pursuant to orders of the War Department, on account of the regiment
being in a state bordering closely on mutiny as a result of alleged mis¬
understanding as to the terms of enlistment.
Companies H, I, and K, Fifth Missouri Cavalry, and Company G,
Fourth Missouri Cavalry, were mustered out of the service of the
United States without trial by court-martial, in pursuance of orders
from headquarters District of Missouri, dated September 20, 1862, by
reason of mutinous conduct and disaffection of the majority of the
members of those companies.
Company C, Fremont Bodv Guard, was summarily discharged by
order of Major-General Halleck, November 30, 1861, on account of the
members refusing to be consolidated with §iny other organization of
Missouri volunteers.
The members of Company G, Tenth New Jersey Infantry Volunteers,
were discharged without trial, April 8, 1862, pursuant to orders from
the War Department, because they refused to do duty as infantry,
claiming that they were deceived into the belief that they were enter¬
ing the cavalry branch when they enlisted.
The Eleventh Regiment New York Infantry Volunteers (First Fire
Zouaves), was mustered out of service June 2, 1862, pursuant to orders
from the War Department, by reason of general demoralization, numer¬
ous desertions, and at the request of officers and enlisted men of the
organization#
The Sixtieth Regiment Ohio Infantry Volunteers was summarily dis¬
charged November 10, 1862, pursuant to a telegram from the War De¬
partment, because the regiment was " disorganized, mutinous, and
worthless."
Mr. FORAKER. But whatever precedents there may have been
in the case of General Grant or of General Lee or of any other
general in the field commanding during a time of war would
not apply in time of peace. What may have been done during
the civil war would not apply, not only because it was done
during a time of war, but because it was done before the
Articles of War, in the form in which I have read them and
commented on them, were placed in the statutes of the United
States. Since these Articles of War were framed and enacted,
as they are to-day, no man can be convicted of an offense with¬
out first having a chance before a court-martial to make his
defense, to face his accusers, and cross-examine the witnesses,
who seek to disgrace him before the world.
But now one of these precedents cited is the Sixtieth Ohio.
Here comes Ohio again:
The Sixtieth Regiment, Ohio Infantry Volunteers, were summarily
discharged November 10, 1862, pursuant to a telegram from the War
Department, because the regiment was " disorganized, mutinous, and
worthless."
Mr. President, it was with very great surprise and with very
great pain I read that statement in the President's message of
yesterday. I know something about the Sixtieth Ohio. I tried
to enlist in it, but I was too young. I was only 15 years old,
and they would not let me go. That was the first year of the
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58
war. The second year, when they were not so particular and
when I was 16, I managed to get in; and I was not as much
pleased with it after I got in as I thought I would be, but I
stayed there until the end.
The Sixtieth Ohio was a one year's regiment. It was raised
chiefly in Highland and adjoining counties. The colonel of it
was William H. Trimble, of Hillsboro, a man whom I knew as
Intimately as a boy could know a man of full age and full of
the affairs of the world. A more courtly gentleman, a more
patriotic man, a more lovable man never volunteered as a sol¬
dier to defend the flag of this country.
He was related to Senator Trimble, who represented the
State in this body after he had been a soldier and had been
wounded at Fort Meigs, fighting the Indians in the war of 1812.
He came here and died here, and his body rests now in the
Congressional Cemetery. No name in our State is more hon¬
ored than that of Trimble. It is the first time in the history of
our State that anybody by the name of Trimble has ever been
criticised for failure to adequately and fittingly and faithfully
and heroically discharge any duty he assumed.
I lived in Highland County at that time. It must be that the
records show this discharge, but if the records do show it I can
only plead that I never heard of it before.
The VICE-PRESIDENT. Will the Senator from Ohio sus¬
pend a moment while the Chair lays before the Senate the un¬
finished business, which will be stated by the Secretary?
The Secretaby. A bill (S. 5133) to promote the safety of em¬
ployees and travelers upon railroads by limiting the hours of
service of employees thereon.
Mr. LA FOLLETTE. I ask unanimous consent that the unfin¬
ished business be temporarily laid aside.
The VICE-PRESIDENT. The Senator from Wisconsin asks
unanimous consent that the unfinished business be temporarily
laid aside. Without objection, it is so ordered.
Mr. FORAKER. I am much obliged to the Senator from Wis¬
consin for his courtesy in allowing me to proceed at this time.
I send to the desk and ask that the Secretary may read from
" Ohio in the War," by Whitelaw Reid, what he says about the
Sixtieth Ohio, the one year's regiment referred to.
The VICE-PRESIDENT. The Secretary will read as re¬
quested by the Senator from Ohio.
The Secretary read as follows:
sixtieth ohio volunteer infantry one-year regiment.
There were two regiments of this number—the first raised for a
term of one year and the second for three years. The one now under
consideration is that raised for the one-year term. It was recruited in
Highland, Fayette, Ross, Clark, Brown, Clermont. Adams, Gallia, and
Noble counties by Col. William Trimble, and was intended specially for
the defense of the border counties of Ohio.
The regiment being ready for the field was ordered, on the 8th of
February, 1862, to Gallipolis to guard military stares, and during the
three months it was on duty at this point paid such special attention to
drill and discipline as to eminently fit it for field service. On the 25th
of February, 1862, the regiment was fully mustered into the United
States service and sent to the field on the 27th of April, 1862. It
joined General Fremont's forces at New Creek, in western Virginia,
about that time.
The Sixtieth was placed In a brigade with the Eighth Virginia In¬
fantry, and with Fremont's forces marched to McDowell to the relief
of Schenck's and Milroy's troops, then threatened by the enemy at
that point. The march was a forced one, and from the discretion ot
7111
59
the commanding officer of the brigade, Colonel Cluseret, a French
officer, many men of the Sixtieth and other regiments were totally dis¬
abled from further service for months. The enemy was met, after
many skirmishes, near Strasburg, and a brisk engagement ensued. In
this affair the Sixtieth Ohio behaved like veterans and won reputation.
The march up the Shenandoah Valley, in pursuit of Jackson, was one
of the most terrible ever endured by men; yet the brave soldiers of the
Sixtieth and other regiments bore it without a murmur. At Port Re¬
public the enemy was again overtaken and engaged. The Sixtieth Ohio
once more displayed its good discipline arid fine fighting qualities.
Ashby's rebel cavalry figured in this battle and was almost directly
opposed by the Sixtieth Ohio. Ashby was killed, confusion ensued in
the rebel ranks, and in a few minutes all signs of the enemy disap¬
peared.
The pursuit was continued, with more or less skirmishing, and oc¬
casionally a determined stand by the enemy. At Cross Keys the rebel
general, Stonewall Jackson, made overtures for battle. He was at
once resolutely met by General Fremont's army, and after a fierce en¬
gagement lasting some hours both parties withdrew. The battle com¬
menced at an early hour in the morning and lasted until 4 o'clock p. m.
It was a well-contested affair, in which both the national and rebel
troops displayed the most determined bravery. The Sixtieth Ohio was
highly complimented on the field for its firmness and coolness under
fire. Its loss in men killed and wounded was severe.
Early on the morning of the 9th of June the Sixtieth and Eighth
Virginia, forming an extended skirmish line, swept over the battle¬
field of the previous day, but without encountering the enemy. He had
fled during the night and escaped across the Shenandoah River near
Port Republic, burning the bridge after him. Shields's forces had
failed to intercept him. Colonel Carroll's brigade, of Shields's divi¬
sion, did get into position on the opposite side of the river, but after
making a gallant fight was overpowered and driven off.
The national forces did not pursue Jackson's rebel army. The morn¬
ing of the 12th of June found Fremont's army at Mount Jackson, it
having fallen back to that position to prevent the rebel army from get¬
ting into its rear and endangering its communications. Here, for the
first time during the campaign, the officers and men of the Sixtieth
slept in tents. At this point the Sixtieth Ohio and Eighth Virginia
parted, the Thirty-second Ohio taking the place of the Eighth Virginia.
Both of the last-named regiments were assigned to General Piatt's
brigade and made part of General Schenck's division.
The national army moved from Mount Jackson on the 19th of June
and readied Strasburg on the 22d. The illness of General Piatt placed
Colonel Trimble, of the Sixtieth, in command of the brigade. Leaving
General Milroy's brigade at Strasburg, General Fremont moved to Mid-
dletown on the 24th, at which point the army, with the exception of
Piatt's brigade, remained until July 8. At this point General Fremont
and staff left the army, leaving it in command of General Schenck until
General Sigel, the successor of Fremont, should report.
The national forces moved from Middletown on the 8th of July, by
Front Royal, to join General Pope, leaving a large amount of military
stores in and around Middletown guarded by a force of infantry, cav¬
alry, and artillery. While lying at this place news was received that
the rebel General Jackson had again penetrated into the Shenandoah
Valley with 5,000 cavalry and was menacing Winchester. Colonel
Trimble, of the Sixtieth, was ordered to take a force from his regiment
and assume command on reaching other national forces near Stras¬
burg, the point where Jackson was maneuvering. Two hundred and
fifty volunteers were selected from the Sixtieth, many of the line officers
serving as privates. Thirty mule teams were taken with the expedition
for the purpose of expediting the movement and transporting supplies.
Middletown was reached before daylight. The enemy still threatening
this point, all the Government stores were removed from Front- Royal
and the national forces marched into Winchester.
Winchester was held until the night of the 2d of September, when It
was evacuated by order of the War Department, the defeat of the
Army of the Potomac, under General Pope, rendering the move neces¬
sary. The Sixtieth Ohio led the column on the night march from Win¬
chester, reaching Harpers Ferry on the 3d of September. General
White was ordered by Major-General Wool to Martinsburg, and his
Winchester command was added to that of Colonel Miles at Harpers
Ferry. Then came the disaster to the national forces at Harpers Ferry.
It would be useless to go into a detailed statement of that affair. The
Sixtieth Ohio, under command of Colonel Trimble, resisted successfully
the attack of Gen. A. P. Hill's rebel division on the left flank in an
Infantry and artillery engagement lasting from 3 o'clock p. m. on Sun-
7111
GO
day, September 14, until after dark. It endured, with the balance of
Colonel Trimble's command, on the morning of the 15tb, till near 8
o'clock, the concentrated fire of over fifty guns, which enfiladed the
position, making a dangerous cross-fire over every portion or the com¬
mand. The anxiety of the rebels to silence Rigby's battery, supported
on the right by the Sixtieth, caused a continuous front, flank, and rear
fire upon this point. The Sixtieth Ohio remained firm under this severe
fire, protected only by a slight breastwork thrown up hastily on Sun¬
day morning. The enemy, though constantly feeling for the regiment,
failed to get its range until near the time of surrender. If the men
had risen to their feet they would have been swept from the ground.
The adjutant of the regiment lost his hand by a solid shot early in the
engagement. Twelve privates were killed and wounded. None felt
more keenly the mortification of surrender than the men of the Sixtieth
Ohio.
After the surrender it marched In the same brigade organization to
Annapolis. General Tyler, being placed in command of the paroled
troops, reorganized them, with several regiments, including the Sixtieth
and some artillery companies, under Colonel Trimble. The colonel was,
shortly after this, badly crippled by being thrown from his horse and
did not join the regiment before its honorable discharge by the Secre¬
tary of War, October 10, 1862, at Camp Douglas, Chicago.
Almost immediately after the discharge of the regiment the great
majority of its members reenlisted. into other organizations for three
years and served gallantly until the close of the war, many of them
laying down their lives In the cause of their country.
The failure by General White to provide in the capitulation for the
free colored servants in the command came near proving disastrous to
them. Colonel Trimble's anxiety upon this subject, and a sense of duty
to those whose freedom was imperiled by the surrender, caused him to
bring the subject to the attention of General Jackson on his entering
the lines with his staff. He was told no provision had been made for
them. The appeal in their behalf was met in a generous manner.
General Jackson informed him that General Hill would remain in com¬
mand at Harpers Ferry and would have control of such questions, but
added : " If you have any difficulty with General Hill you can appeal
to me." Thanking him and instructing the servants to keep in close
quarters with the regiment and the officers to protect tliem till his re¬
turn, he rode to Harpers Ferry and called on General Hill at his bead-
quarters. Waiting patiently till D'Utassy finished discussing a claim
for five surplus horses, which General Hill very properly refused to
allow, he told the general he, too, had lost horses, but had called to
present a matter of much more importance. He had learned from Gen¬
eral Jackson that no provision had been made in the capitulation for
the free colored servants. There were a number in his regiment who
had accompanied it from Ohio, and perhaps others In the command.
General Jackson had referred the matter to him.
General Hill said: "As great numbers had fled from the surrounding
country to Harpers Ferry, it would be difficult to decide who was free
and who was not; he would, therefore, leave it to the colonel's honor,
and give him passes for whoever he said was free." Thanking the
general for his courtesy and confidence, he returned to camp to com¬
municate the glad tidings to men whosp fears for their own safety had
been increased by seeing hundreds of men, women, and children, bond
and free, driven past, their bowed heads and sad countenances telling
the tale of their disappointed hopes. When marching out the next day,
he was detained at General Hill's headquarters in getting the passes
for thirteen colored men connected with the Sixtieth Ohio by another
horse claim of D'Utassy. On reaching the river he found the regiment
halted, a rebel guard with crossed bayonets In front, several country¬
men and a rebel major on horseback near the lines, and others on foot
dragging the colored boys from their positions near the officers. He
asked what all this meant. He was told in fierce tones, " He was n
d d nigger thief, stealing their slaves, and his command shouldn't
pass until every d d nigger was taken out." He told them they
were free—he had passes for them from General Hill. " They swore
tbey wouldn't regard the order of General Hill in such case." A citi¬
zen said: " General Hill's pass ought to be sufficient." The rebel major
told him to " Shut his d d mouth and attend to his own business."
The moment for action had come. The quick, sharp, decisive words,
" My men are unarmed; I am not. I'll sell my life for these free boys.
Unhand them! Guards, give way! Regiments, march! " unloosed the
grasp of these manstealers, sent the guards from the front and the regi¬
ment forward over the pontoon bridge with quick and steady tread. , When
safe on the Maryland side of the Potomac, these men, some of whom
7111
01
had families In Ohio, felt like a new birth of freedom had been vouch¬
safed them, and every officer and soldier sympathized with them in the
Joy of their deliverance.
The surrender of Harpers Ferry was investigated bv an able military
commission, of which Maj. (Jen. D. Hunter was president. It was very
severe in some of its findings, but it reported that no blame attached to
Colonel Trimble.
Mr. FORAKER. I now call attention to a record of the
Sixtieth Regiment of Ohio Volunteers, as published by the State
of Ohio in its roster of Ohio volunteers from the year 1861 to
1866. It appears from this roster, and from other statements
that will be in the record, that this regiment was enlisted for
one year. I do not know how the order happened, to be made
that it should be enlisted for a year, but its members were
enlisted for only a year. They served faithfully, distin¬
guishing themselves for their bravery and gallantry in every en¬
gagement in which they participated down to the last, which
was an unfortunate one for them, at Harpers Ferry, where they
were under the severest and hottest of the fire and where they
displayed a bravery and gallantry for which they were com¬
mended in official reports. But they were captured there, along
with the whole army, in spite of all this gallant regiment could
do. They were paroled and finally exchanged and taken to Chi¬
cago to be mustered out. They were kept in camp there until
they had served, as the roster will show, most of them, from
three to four months longer than their one year's enlistment,
and while they were there in camp doing nothing, not permitted
to do anything, it seems, from what little I have been able to
gather, that there was that kind of lax discipline and some
cases of insubordination, such as would lead, perhaps, to their
being ordered to be discharged at once. But they were all hon¬
orably discharged, and by the summary order, so far as I can
gather from its hasty reading, it was summary only in the sense
that they were ordered to be mustered out immediately instead
of being kept there in the barracks.
The Roster of Ohio Soldiers, 1861-1866, War of the Rebel¬
lion, volume 5, Fifty-fourth to Sixty-ninth Regiments Infantry,
pages 245-264, is preceded by the following historical notice:
SIXTIETH REGIMENT OHIO VOLUNTEER INFANTRY ONE YEAR'S SERVICE.
This regiment was organized at Gallipolis, Ohio, February 25 and 28,
1862, to serve one year. It was mustered out of service November 10,
1862, in accordance with orders from the War Department.
The official list of battles in which this regiment bore an honorable
part is not yet published by the War Department, but the following list
has been compiled after careful research during the preparation of
this work : Strasburg, Va., .Tune 1-2, 1862; Harrisonburg, Va., June 6,
1862; Cross Keys, Va., June 8, 1862, and Harpers Ferry, Va., Sep¬
tember 15. 1862.
Then follows the roster, and the record goes on to show that
almost every man of them immediately enlisted in other regi¬
ments and went to the front, and every one of them made a
good record as a soldier.
I knew the men of the Sixtieth Ohio. There were no better
men in the Union Army. No braver soldiers followed the flag
and no more gallant officer ever commanded a regiment than
Col. William H. Trimble. I am sorry to hear that there is this
kind of a fault in their record. It is the first time I ever heard
of it. I was out in the field at the time myself and I did not
happen to hear of it, and I never heard of it afterwards. No¬
body in Ohio remembers the Sixtieth Ohio except only as a
7111
62
regiment that was gallant and brave and heroic and that won
honor and glory for the flag on every field of battle where they
were present. I think I shall have to introduce a bill to cor¬
rect the record.
Now, Mr. President, I do not make any apology for taking the
time I have occupied, but rather I apologize that I am not able
this morning, owing to my inability, to go carefully through
these exhibits and to make a more exhaustive discussion of au¬
thorities and to speak at greater length or with more effective¬
ness.
Mr. SCOTT. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from West Virginia?
Mr. FORAKER. Certainly.
Mr. SCOTT. Then the members of the Sixtieth Ohio were
not discharged without honor? If they had been discharged
without honor, could they have reenlisted? Three of them were
members of my company afterwards, and could they have reen¬
listed if they had been discharged without honor?
Mr. FORAKER. The Senator found them. I venture to say,
gallant soldiers, as brave as any. No, Mr. President, they were
not dishonorably discharged nor discharged without honor. I
have shown that they were honorably discharged. Such a dis¬
charge as "without honor" was never heard of in that day.
Men were either honorably or dishonorably discharged. These
men were of necessity honorably discharged, or they could not
have reenlisted and won applause for their bravery and heroism.
Mr. President, I have said over and over again this is not a
question that is confined to these men alone; much less is it a
color question. I do not intend here, this morning, to enter
upon that, and I hope I will not be provoked to enter upon it at
any time in the discussion of this subject that is to follow. But if
that question must be presented I think I can show that the
Twenty-fifth Regiment, as is the case with every other colored
regiment, has a good record for bravery, gallantry, and hero¬
ism. Only this morning an officer of the Army who served
on the frontier told me that the negro troops ax-e the only
troops of the American Army who never failed to defeat the
Indians when they met them in battle. There is not one single
case where on meeting the Indians they did not drive them
off the field and win the day. Their career has been one of
honor from the beginning of our Government down to the pres¬
ent. Who can ever forget that the first blood of the Revolution
was that o£ Crispus Attucks, who was stricken to death in the
streets of Boston? And who in this body has not paused and
looked upon the picture that hangs over the stairway on the
eastern side of the Senate—Perry's Victory on Lake Erie?
And who that has looked upon it has failed to observe that
there, in that boat, at that hour of supremest peril, when Com¬
modore Perry was trying to escape from a sinking ship, seek¬
ing safety on another, by the side of him in that boat was a man
with a black face? I have not time to recount their deeds of gal¬
lantry and heroism as they are recorded in the history of the
civil war, but on another occasion that will be done if it be
necessary.
I do not ask that they be dealt with here, Mr. President, more
generously than they should be, because of this gallant service,
Till
63
but I do ask that we will practice as well as profess the " square
deal" for the black men who have given this country a " square
deal" on every occasion when they'have been called upon to
serve it At the proper time, I say, I shall speak of that, per¬
haps at some length, but I do not intend to do it now.
This morning I have undertaken to do only one thing. Hav¬
ing looked at this testimony, not because I have any personal
or selfish interest to subserve, but because I regard it as a
great question that is here involved which brings home to me,
and every Senator here, a solemn duty, and having in that
connection read and studied the testimony, I felt that it would
be impossible for us to act intelligently and do justice unless
we had some real testimony in this case. I want to see that
gentleman who is " able to charge all hell with one bucket of
water." I should like to cross-examine him, Mr. President. I
should like to see some of the other " sterling citizens of
Brownsville," and I should like to prove some things that no¬
body has said anything about yet, and I am not going to say
anything about now, but some things that concern justice, that
concern equity, that concern right, that concern the honor of
the American Army.
For that reason, Mr. President, I now modify the resolution
I offered yesterday by striking out the words which make it
optional with the Committee on Military Affairs to take further
testimony so as to make it a positive instruction that they shall
take further testimony, and I will ask that the resolution may
go over until we meet here after the holidays, when I shall
make some remarks on the subject
Mr. WARREN. Mr. President, I myself do not wish to
enter into this discussion until I have had opportunity to read
further the communications from the President and Secretary
of War, and to examine the evidence submitted, and I assume
there will not be general discussion until other Senators have
had opportunity to do likewise. I am informed by the superin¬
tendent of the document room that there will be available only
about 200 copies of the message and testimony printed as in
the document I now have in my hand. I therefore ask unani¬
mous consent that an order be made by the Senate to print as
many additional copies as can be printed within the Senate's
limit of expenditure for printing of public documents, which, I
believe, is $500.
The order was agreed to, as follows:
Ordered, That as many additional copies of Senate Document No. 155,
Fifty-ninth Congress, second session, message of the President of the
United States relating to the discharge or mustering out of regiments
or companies, as will not exceed the sum of $500 be printed for the
use of the Senate.
Mr. LODGE. Mr. President, I have no intention of discussing
this question at the present time for the simple reason that X
have not been able to read the testimony or examine the evidence
on either side with any thoroughness. That' somewhat thick vol¬
ume contains it, and we only received it this morning.
I am not one of those who when they approach a new sub¬
ject first make up their minds. I prefer, in approaching a new
subject, to make up my mind after I have considered the testi¬
mony. Even from the rough glance that I have been able to
give this testimony, as the Senator from Ohio has been laying it
7111
64
in fragments before the Senate, I observe that there are two
sides, and I myself should like to be informed about both sides.
If this regiment or these companies are entirely innocent of
the shooting with which they are charged, as the Senator from
Ohio alleges
Mr. FORAKER. No, Mr. President, I do not allege that
The Senator must allow me to correct him. I have not alleged
that they are entirely innocent. I have simply alleged that
the testimony upon which it is said their guilt is conclusively
established is not satisfactory or conclusive, and that there
ought to be further testimony taken. I think there is testi¬
mony to show that they are free from guilt, but I do not know
what the facts are, and I want to find out.
Mr. LODGE. If they are entirely innocent of the offenses
with which they are charged, then they have been the subject
of the greatest possible injustice, and no one will be more
anxious than I to do everything that is possible? to vindicate
them, to restore any rights they may have lost, and to redresa
in every possible way every wrong that they may have suffered.
But if, Mr. President, they are guilty of the offenses that have
been charged, then I think equal justice should be done to the
President, the Secretary of War. and the Army officers who
have been charged with this painful duty. I think there is a
question not only-of justice to these men, but that there Is
some justice due to the President of the United States, the Sec¬
retary of War, and the officers who have made this investiga¬
tion and presented these recommendations.
The President and the Secretary of War have given many
weeks of consideration to this question. It is not conceivable
that either of them would be influenced in the matter by any
local or race prejudice. I do not think that they would have
arrived at the conclusion at which they have arrived without
some consideration or without strong evidence. I for one
should like to have time to examine the evidence upon which
they have acted.
The report has been presented by officers of the Army. I
should be very slow to believe that any officer of the United
States Army would be guilty of the unspeakable infamy of
advising the removal of these men from the Army or holding
them up to shame and punishment because that officer's father
happened to be a Democrat. I believe it is incredible, Mr. Presi¬
dent, that an officer of the Army, on a grave question like this,
would deliberately falsify facts and make recommendations
which would lead to great injury to innocent men because he
happened to be born in the State of South Carolina. I do not
remember, Mr. President, where the third officer—Colonel Lover-
ing—was born; and I do not care where any of them was born
or what the politics of their fathers happened to be. I believe,
until it is shown to the contrary, that they are honorable men,
doing their duty in an honorable way. They may be in error.
It is very possible they are in error. " To err is human." But
that they did not do their duty honorably I can not believe; and
I think it is traveling a long way from the record to point out
that the father of one of these officers was a Democrat.
Mr. President, I think these officers of the Army, and I think
the President and the Secretary of War, are entitled to consider¬
ation. If, as I say, these men have been discharged from the
7111
65
Army without having been guilty of the offenses with which
they are charged, there is no more important duty on each one
cf us than to see that that great wrong is redressed. But if
they were properly removed from the Army and were guilty
of the crimes charged against them, then it is equally our duty
to sustain the Administration in what has been done.
I do not profess to judge. I have had no time to read the
testimony in this thick volume. I have had no time to examine
the statements of the officers or the testimony of any of the
witnesses; but as I followed the Senator from Ohio, when he
stated it was inconceivable that this regiment should have en¬
gaged in anything of this kind, I noted as I turned the pages
over something absolutely unknown to me until I looked at the
document—that this regiment since 18S3 had " shot up " four
towns. In 1SS5 it " shot up" the town of Sturgis, in Dakota
Territory. Dr. H. P. Lynch was shot and instantly killed, and
the soldier who committed the murder was caught and hanged
by citizens of the town. Then the soldiers " shot up " the town.
In 1S99 they " shot up " the town of Winnemucca, in Nevada;
in 1900 they " shot up " El Paso—" shot up " the jail and killed
a policeman; in 1904—quite recently—they engaged in a deadly
brawl at Niobrara and " shot up" the town of Valentine, ac¬
cording to one statement here, and in the affray lives were lost.
Mr. President, the men of that regiment may be absolutely in¬
nocent of what is charged against them in this case. I am not
prepared to say; I have not read the evidence; but I think it is
just as well, when it is stated that it is inconceivable that they
should have committed this crime, that these official reports
should go in the Record with the speech of the Senator from
Ohio. Therefore I ask that the pages of this document, Senate
Document 155, from page 315 to the middle of page 365, be
printed in the Record.
*******
Mr. FORAKER. I have modified my resolution, as I said I
would, and I ask that it may be read as modified.
The VICE-PRESIDENT. The Secretary will read the reso¬
lution of the Senator from Ohio as modified.
The Secretary read the resolution as modified, as follows:
Resolved, That the Committee on Military Affairs foe, and hereby is,
authorized to take such further testimony as may be necessary to es¬
tablish the facts connected with the discharge of members of Companies
B, C, and D, Twenty-fifth United States Infantry, and that it be, and
hereby is, authorized to send for persons and papers and administer
oaths, and report thereon,, by bill or otherwise.
Mr. FORAKER. I now ask that the resolution go over.
The VICE-PRESIDENT. The resolution will be printed and
lie on the table.
7111 5
JANUARY 3, 1907.
The Senate having under consideration the following resolu¬
tion by Mr. Fobakeb—
Resolved, That the Committee on Military Affairs, be, and hereby is,
authorized to take such further testimony as may be necessary to es¬
tablish the facts connected with the discharge of members of Companies
B, C, and D, Twenty-fifth United States Infantry, and that it be, and
hereby is, authorized to send for persons and papers and administer
oaths, and report thereon, by bill or otherwise—
Mr. FORAKER said:
I do not rise, Mr. President, for the purpose of engaging in a
discussion of the race question. That question, as I have re¬
peatedly said since this matter has been debated in the Senate,
does not belong in the controversy we have been having. It be¬
littles this question to introduce that subject. At another time,
however, I may take occasion, if that question is to be thrust
upon us, to make some remarks in answer to it; but for the
present I pass that by.
Neither do I intend now, Mr. President, to discuss the ques¬
tion of the constitutional or legal power of the President to make
the order he made discharging these troops. I do not propose
to discuss that because some days ago, in response to the Presi¬
dent's message, I made some remarks upon that subject, and be¬
cause, in the second place, the resolution now before the Senate
is simply a resolution directing the Committee on Military Af¬
fairs to make an investigation as to the facts in this case. When
this resolution shall be adopted and the committee shall have
made that investigation and shall have reported to the Senate,
if it be in order, we can again discuss the question of constitu¬
tional and legal power, but for the present I pass that by for
the reason indicated.
Neither do I propose at this time, Mr. President, to discuss
the facts as disclosed by the testimony that has been sent to the
Senate by the President, or the testimony that has just now
been added by the Senator from Texas to what was sent us by
the President.
I do not propose to discuss the facts at this time because this
is not the time to try the case if we are to further investigate
it. I discussed the competency of the testimony and the weight
of it some days ago, because challenged to do so by statements
found *in the President's message, but only for the purpose of
showing why, in my judgment, the testimony that had seemed
sufficient to the President was not in fact sufficient.
I pass that by, therefore, until I know what the action of the
Senate will be upon this resolution. If it be adopted, as I think
66 7111
67
it should be, and as I hope it will be, the investigation will fol¬
low, all the testimony will be brought, before us in due time by
the committee, and then we can discuss it and weigh it and de¬
termine what it establishes and what it does not establish.
My purpose in rising at this time, Mr. President, is not, there¬
fore, to discuss any of the questions to which the Senator from
Texas has addressed himself, but rather only to defend myself
from the charge made by the Senator from Texas that in the
remarks submitted to the Senate some days ago I reflected
on Captain McDonald, a distinguished acquaintance of his and
a citizen of Brownsville, who met with commendation at the
hands of Major Blocksom. The reference to my remarks sub¬
mitted a few days ago just now made by the Senator from Texas
is of such a character that one not being advised would con¬
clude that I had disparaged the character of Captain McDonald.
Not so, Mr. President. I called attention in the following lan¬
guage to Captain McDonald. Speaking of the report of Major
Blocksom, in which he spoke of having met a number of the
" sterling citizens of Brownsville," I proceeded as follows:
One man who seems to have won his admiration and excited it un¬
duly was a Captain McDonald, who is described as a captain of Texas
Rangers, whatever they may be, and he pays him this high compliment.
Now, Mr. President, think of this going into an official report:
It is possible—
Says Major Blocksom—
It is possible McDonald might have fought the entire battalion with
his four or five rangers were their obedience as blind as his obstinacy.
It is said here he is so brave he would not hesitate to " charge hell
with one bucket of water."
Then immediately he says:
I met many sterling people in Brownsville.
I was then interrupted by the Senator from Wisconsin [Mr.
Spooneb] to know what that adjective was, and I repeated it,
" sterling," and remarked:
Captain McDonald is one of them. Like Ben Adhem, his " name led
all the rest."
With that I quit Captain McDonald and did not refer to him
again in the course of those remarks except to say later the
following. I was speaking of my desire to have an investiga¬
tion. I was speaking of my desire to secure for these dis¬
charged soldiers, who have been made to suffer so severely, an
opportunity somewhere, some time, in some manner, a day in
court, where they could confront their accusers and cross-
examine their witnesses, and in this connection I said:
I want to see that gentleman who is " able to charge all hell with
one bucket of water." I should like to cross-examine him, Mr. Presi¬
dent.
That is all I said about him. I do not know why he should
be offended, unless because I called him a gentleman. [Laugh¬
ter.] But, Mr. President, I had no thought then of reflecting
upon him. He was an entire stranger to me. The reference to
him made by Major Blocksom was quite unusual. It does not
seem to me unnatural that I should have ihade comment upon
it. Since then, however, I have learned a great deal about
Captain McDonald, and I want here and now, in view of the
remarks of the Senator from Texas, and in view of some other
things that have come to me, to pay proper tribute to Captain
7111
68
McDonald, to show what a brave, public-spirited man he Is, and
to put it into the Record, where it will live forever, for I as¬
sume our institutions will be perpetuated.
Mr. GALLINGER. It will never be read.
Mr. FORAKER. The Senator from New Hampshire sug¬
gests that it will never be read. I do not know. I think this
will be read, but for fear it will not be read I will read it my¬
self. I read from the Cincinnati Enquirer of a few days ago,
in order that we may know who this gentleman is and what
he is. I do not intend to comment upon him, but will give him
just as his friends have given him in this article, just as he
has caused himself, in what seems to be an inspired article, to
appear before the American people. This article has a rather
sensational headline and it makes some references to me, which
I hope I will be excused for reading under the circumstances:
glitter in mcdonald's bye noted texas eangeb, who probed negro
iilots, kesents alleged slurs of senator foraker walking ar¬
senal desires to meet the ohioan picturesque westerner
" would charge hell with a bucket of water," says major
blocksom.
[Special dispatch to the Enquirer.]
Austin, Tex., December 29.
Capt. Bill McDonald is willing to go to Washington to tell what he
knows about the negro soldiers' riot at Brownsville before a Congres¬
sional investigating committee. He is anxious to go. He says that he
wants to meet Senator J. B. Forakkr, who. according to published dis¬
patches, referred to him slurringly on the floor of the Senate the other
day as " that Captain McDonald." Captain McDonald is the man men¬
tioned in Major Blocksom's report on the Brownsville riot as the man
who would " charge hell with a bucket of water."
Probably having no other use for the water. [Laughter.]
Captain McDonald does not say that he would make any trouble for
Senator Foraker when he meets him—
What a relief that is to me [laughter]—
but the cold glitter in his steel-blue eyes when he refers to the Ohio
Senator does not indicate that it would be an altogether pleasant
meeting.
Captain McDonald is said to know more about the Brownsville affair
than any of those who investigated it.
How natural therefore, Mr. President, that we should have an
opportunity to examine him.
He was sent there by Governor Lanham as soon as it occurred, and
spent some time making a personal inquiry into the trouble. As a
direct result of his research, twelve negro soldiers were arrested on the
charge of being implicated in the shooting up of the town, in which one
man was killed and another wounded.
These are the men selected by Captain McDonald and arrested
upon his order as the men who, as the result of his investigation,
were by him regarded as the guilty persons who had done the
firing, and they are the same twelve men who were discharged
by the grand jury, as we were advised by the Senator from
Texas [Mr. Culberson] in his remarks a moment ago, after they
had taken a great deal of testimony, all the testimony presum¬
ably that Captain McDonald had before him when he directed
these twelve men, as the guilty ones, to be arrested and taken
before the grand jury.
Captain McDonald made a written report of his findings to Governor
Lanham and to President Roosevelt.
I think we ought to have that
big texas ranger.
Captain McDonald is the most noted peace officer in the Southwest.
He has been commander of a company of Texas Rangers for nearly
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twenty years, and during that period he has experienced many thrilling
encounters with desperate men. Only a few weeks ago he and three
members of his company were riding along a road near Rio Grande
City when they were fired upon by Mexicans in ambush. Captain
McDonald and his men returned the fire in the darkness, being guided
in their aim by the flashes of the guns of the attacking party. They
killed four Mexicans and wounded others.
That is his account of that transaction. I have another ac¬
count written by people who were not in sympathy with what
Captain McDonald did on that occasion, which does not put
quite so favorable a view upon it either as to the bravery of the
man or as to the justification for the killing of four men and
the wounding of five others. But "that is not in order now. I
mention it only that we may get thoroughly, or at least as thor¬
oughly as we may be able to, acquainted with the gentleman
who is vouched for by the Senator from Texas as truthful and
honest, and as fearless and brave as he is truthful and honest.
More of this :
Captain McDonald has killed a number of men while in the perform¬
ance of his duty as an officer of the law. He is literally ,fshot to
pieces," but he is still as lithe and active as a boy. He is never un¬
armed. Day and night he wears a big .45, and one of the latest im¬
proved automatic pistols. He sleeps with both these pistols by his
side, whether in a hotel in town or in camp in some remote and dan¬
gerous locality of the border region. He says that he never knows
when he may need them.
The article goes on at that same rate telling of a number of
other difficulties and a number of other killings. I shall not
take the time to read further, but I ask that it all may be
printed in the Record where it can be read by anyone who may
desire to re&cl it
The VICE-PRESIDENT. Without objection, the matter re¬
ferred to will be printed in the Record.
The matter referred to is as follows:
LIFE ON THE FRONTIER.
Practically all of Captain McDonald s life has been spent upon the
frontier. He trailed Indians and hunted buffalo upon the plains of
.Texas forty years ago. He has a record for ceolness and bravery that
is almost unequaled.
Ten years ago Captain McDonald had a pistol duel with Sheriff .Toe
Matthews, of Childress County, and two deputies at Quanah. He killed
Sheriff Matthews and was himself wounded almost to death. The two
men had trouble over who should have custody of a prisoner whom
Captain McDonald had arrested in an adjoining county. Sheriff Mat¬
thews and two deputies came to Quanah with the avowed intention of
killing McDonald. The latter heard of this threat and was prepared
for trouble. Matthews and McDonald met upon the public square and
both pulled their pistols. Matthews got in the first shot, the bullet
going through McDonald's right lung. They were within ten feet of
each other, hut the force of the bullet and the terrible wound did not
floor McDonald. He fired at Matthews, and the bullet struck a piece
of plug tobacco and a thick notebook that shielded Matthew's heart.
The two men fired the second shots simultaneously. Matthews was
struck near the heart, and he fell to the ground unconscious. McDon¬
ald was hit in the right side, and the bullet ranged upward and came
out at his neck. While Matthews and McDonald were having this duel
the two deputies of Matthews were shooting at McDonald at close
range, but all of their bullets went wild.
TENDED TO THE DEPUTIES.
When McDonald saw that he had killed Matthews, he turned his
attention to the two deputies. He fired at them as they fled down the
street and he then sank down unconscious. He was a long time re¬
covering from the wounds he received.
Seven years ago John and George Humphries, two white farmers who
lived in the " trans-cedar" country in the northeastern part of the
State, were lynched one night by a party of unknown men. Governor
Sayers sent Captain McDonald to the scene of the crime with in-
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70
structions to discover, If possible, the guilty parties and to arrest them.
Alone and unaided Captain McDonald arrested twelve of the most des¬
perate men of that community and was successful in establishing the
guilt of all of them. They were sentenced to long terms of imprison¬
ment. In hunting up evidence against these men he traveled about the
■country and visited them at their homes alone. He received a number
of threats against his life, but he paid no attention to them.
It was through the individual efforts of Captain McDonald that the
notorious Reese-Townsend feud, which caused many killings in Colorado
and Bastrop counties, was broken up. On one occasion, when the mem¬
bers of these opposing factions, numbering more than 100 men, were
drawn up in fighting array at Columbus, Captain McDonald walked up
to them and ordered them to deliver over their arms to him. The
crowd demurred at first, and he had to knock one of the more ob¬
streperous objectors to his order down with a gun. He searched every
member of both factions and took all of their guns and knives away
from them. At another threatened outbreak of these same feudists a
few months later at Bastrop he performed a similar service.
fob to smugglers.
Captain McDonald has hunted down many desperate robbers and
smugglers along the Rio Grande. He was also stationed in the Pan¬
handle for several years, and it was through his active work that that
part of the State was rid of the bands of cattle and horse thieves who
formerly made it their rendezvous. He had many fights with these out¬
laws. He left the town of Quanah one day on the trail of a notorious
criminal who was badly wanted in different parts of the State for mur¬
der and robbery. He followed the outlaw for more than 400 miles,
stopping only an hour or two at a time to get a little sleep and give
bis horse its needed rest. He finally overtook his man in what was
then known as " No Man's Land," which is now a part of Oklahoma.
He found him in camp with four other men, who were also probably out¬
laws, but Captain McDonald did not recognize them. He was after
this particular man, and he unhesitatingly dismounted at the camp and
walked to where the men were sitting and told the fellow that he was
his prisoner. Captain McDonald says that he expected every minute to
be shot before he got away from that remote camp, but he was not
molested as he forced his prisoner to mount a horse and ride away with
him toward Texas.
Three or four years ago Captain McDonald had a fight with cattle
thieves in the Panhandle. Three of them escaped, and he followed
them alone for 300 miles, finally rounding them up near Norman, Okla.,
where he arrested them single-handed and placed them in jail.
These are only a few of the incidents in Captain McDonald's long
career as a commander of the State rangers. They serve to show what
kind of a man Senator Foraker would have to deal with if he should
meet him in Washington.
Mr. FORAKER. Mr. President, I have here another account
of him. This is in the nature of an interview with him, and it
comes from a newspaper, the reliability of which can not be
questioned, I imagine, for it is taken from the Houston Post, of
Texas, of the 24th of December, 1906. I read as follows:
ranger captain m'donald he is perfectly willing to be cross-
examined by foraker story of the brownsville raid and why
major blocksom formed his opinion m'donald accused major
penrose of being an accessory after the fact to the browns¬
ville outrage some things that have not heretofore been
published.
Captain of Rangers William J. McDonald spent last night in Houston
en route to Madisonville, where he has business that demands his at¬
tention. As usual, the captain is going " squirrel hunting." In other
words, the captain's business is no one else's business. He doesn't
talk much. He simply acts when the time comes.
" Foraker doesn't seem to know much about the Rangers of Texas,
Captain," suggested the Post man last night at the Rice Hotel.
"What is that fellow jumping on me for, anyway? I haven't done
anything to him. I could tell him who the Rangers are and what they
are for, though. I could tell him that the Rangers are the fellows that
bring the scalawags and rascals that he is trying to defend to justice.
When the Rangers get hold of them, and they generally get hold of
them when they start after them—they may stand hitched. We had
those negroes down there at Brownsville, and we were making them
stand hitched. They would have been hitched yet if the matter had
not assumed a new phase, over which we had no control. Now, I don't
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71
care to break Into the limelight, but If Foraker Is anxious to put ques¬
tions to me concerning the Brownsville affair, I will not dodge the
issue."
When Major Blocksom suggested that Captain McDonald " would
charge hell with one bucket of water," there is no doubt but he meant
just what he said. Foraker, however, seized upon this and used It with
derision in his address. Major Blocksom had every reason to believe
that Captain McDonald was not afraid of a whole regiment of soldiers.
The captain's actions in Fort Brown before the officers and the soldiers
demonstrated that he was able to take care of himself, even though
many loaded guns were aimed at him.
Now follows the account:
how m'donald found brownsville.
The captain was In Dallas filling the position of sergeant-at-arms for
the Democratic convention when the outrage was committed at Browns¬
ville. It was ten days after this that he arrived in Brownsville, and
he went to work at once.
I think that should be two days.
The whole populace was in a state of uproar. The soldiers on the
inside of the fort were on guard with their firearms loaded, and feared
lest the people of the city made an assault upon the fort, while the
people of the city, wrought up to the pitch of desperation and ready to
fight, nevertheless were in a state of fear lest the soldiers inside the
fort should make another onslaught upon the town.
When Captain McDonald, with his trusted sergeant, McCauley, ar¬
rived they went quietly to work gathering evidence. They did not go
directly to the fort, but finding an ex-soldier who knew something of
the assault made by the negroes, got from him all he knew.
He was one of the twelve men caused to be arrested by Cap¬
tain McDonald, who was afterwards acquitted by the grand
jury.
The captain and his sergeant then went to the fort. On the way the
citizens met them and warned them that they would never get back
alive If they entered the fort; that the negro soldiers would kill them.
how hb talked to the negroes.
As they entered about twenty negroes leveled their guns at them and
demanded that they halt. They did not halt, but kept moving toward
the negro soldiers and their aimed guns. The captain was doing some
talking meanwhile. He talked to them like he would talk to a negro,
and told them what kind of stunts he would have them doing if they
didn't put up their guns, and they put up their guns.
" I'm Captain McDonald, of the Texas Bangers. I've come down
here to investigate you black scoundrels. If you make a move with
those guns I'll show you how to make kinky fur fly. Where is Major
Penrose? "
Involuntarily the bands of most of the negroes went to their hats.
There is no conflict between the manufacturing interests of
New England and the South. There can not be any, because
There was a ring in the captain's voice that they did not mistake.
That ring carried time backward in its flight more than forty years.
It was not United States soldiers standing menacingly over a civilian.
It was negroes—the old-time plantation negroes—in the presence of a
southern gentleman.
" Yes, sir, cap'n; yes, sir. Majah Penrose he ovah dar in hia house."
" One of you black scoundrels show me to him."
They all bent their bodies in a bow and all were ready. The cap¬
tain selected the one for the service and the darkey led the way to
where Major Penrose was in consultation with Major Blocksom and
Captain Macklin. «
when blocksom formed his opinion.
" I am Captain McDonald, of the Texas Rangers. The governor has
sent me down here to investigate this outrage," is the manner in which
Captain McDonald Introduced himself to Major Penrose and the other
officers. "What have you learned about this thing?"
"Absolutely nothing," answered Penrose.
" Nothing! Do you mean to tell me that you have Investigated this
matter and have learned nothing about it? How about Corporal Mil¬
ler's connection with it?" . ..
In connection with Corporal Miller, McDonald mentioned the names
of other negroes. He had secured information from the ex-soldier ana
had gathered the names of many negroes who were mixed ud in tlie
TIM
affair, and he was able to talk in a manner which showed that he was
familiar with the affair.
Corporal Miller was not mixed up in this affair at all. He was at
roll both at 8 o'clock and at 11 o'clock. I saw him, and Captain
Macklin saw him."
"Have Corporal Miller brought in here, and let me question him, and,
I'll prove to you that you are mistaken."
Corpora] Miller was brought in and the captain conducted the exami¬
nation. Penrose and Blocksom would occasionally break in with a
question, but the captain informed them that it was he that was con¬
ducting the examination; that they could ask him questions as to where
he was last year or the year before, but they would have to postpone
their questions until he got through with the negro; that he wanted to
know where Miller was on the night of the shooting up of the town.
CORPORAL MILLER MADE ADMISSIONS.
They all got good, and Miller became very humble, and he admitted
that he was not in the fort at either 8 o'clock or at 11 o'clock and that
he did not return to the fort until about or after 12 o'clock on the night
of the shooting up of the town. During this examination the negro
had his cap off. Captain McDonald had his attention. It was to this
civilian and not to his superior officers that he humbled himself. To
the captain he was a negro; to Penrose, Blocksom, and Macklin his
attitude was not even that of a soldier in the presence of his superiors.
He had forgotten that he was a soldier. And he belched up things
right along, and he got himself arrested for it, and the captain made
the arrest.
Then they go on, Mr. President, with a half column more of
it. I shall ask to have it all printed in the Recokd. I have
read just enough to show the character of this man's knowledge
of this affair and to show something of the character of the
man himself. I did not intend, when I referred to him some
days ago, to do him any injustice; but in view of the fact that
he seems to think I have, and especially in view of the fact
that my much esteemed colleague, the Senator from Texas,
seems to think I have reflected upon him, I think it but due to
Captain McDonald that these interviews with himself, which
are Apparently his own picture of himself, should be put in the
Record, where all the Senate and all the country and all pos¬
terity may read them and know of this man, who is as fearless
and brave as he is truthful and honest and who seems to have
had much to do with the preparation of this case.
The VICE-PRESIDENT. The matter referred to by the Sen¬
ator from Ohio will be printed in the Recobd, in the absence of
objection.
The matter referred to is as follows:
Captain McDonald arrested thirteen negroes on warrants issued from
the State courts. Major Penrose told him that seven or eight of the
negroes under arrest were the right ones, but that he was mistaken
about the others.
ACCUSED PENROSE OF BEING AN ACCESSORY.
" If you know that much about this thing, how Is it that you do not
know all about it and who were connected with it? Why don't you
assist me in bringing the guilty scoundrels to justice?"
And right there Captain McDonald threw it into the teeth of Major
Penrose that he was an accessory to the crime.
Major Blocksom heard it and there isn't much wonder that h<e is of
the opinion that Captain McDonald, of the Rangers of Texas, " would
charge hell with one bucket of water."
But this is not all that Major Blocksom saw of the captain that
firmly fixed this in his mind. During the time that the thirteen negro
soldiers were locked up in the guardhouse the wires were kept hot.
The order to move the troops came. Captain McDonald had the war¬
rants in his pocket and the negroes were in the guardhouse inside the
fort He could not place them in the county jail. At least he deemed
that the temper or the people made it advisable that the negroes be
kept locked up inside ftbe fort. The officers of Brownsville had allied
themselves with Major Penrose and against McDonald. Thev demanded
that he give over the warrants which he had in his possession He
still refused. The demand was made upon the order of the court, and
7111
73
officers went to him as officers and made the demand and fortified
themselves, as officers do under such circumstances, back of their guns.
It was no use. The captain had the warrants. He was ready for any
test, and he stood them off. Meanwhile he had asked the governor for
instructions. The message came back:
" Cooperate with the officers of Brownsville."
forced company of troops back to fort.
Meantime the troops were on the move. A company was taken to the
depot. Captain McDonald and his trusted sergeant went down to the
depot to see if any of the negroes for whom he had warrants were
among those being taken away. They did not have any of his negroes,
so he and his sergeant started toward the fort. They met a company of
negroes coming up. They were on the way to the depot to be removed
to San Antonio. Among them were some of the negroes that McDonald
had arrested.
" Take them negroes back to that fort and lock them up; they are
my prisoners. I'll show you people some things. I know just where I
am at in this matter, and if you people attempt to take those negroes
another step toward that depot we'll get busy."
The negroes were " righted about" and taken to the fort, and those
that McDonald had warrants in his pocket for were locked up again.
The governor's message had arrived by this time, but McDonald did not
deliver up his warrants until the next morning, and then the negroes
were placed on board a train and scooted out of Brownsville.
influence on the negro.
During their contact with McDonald they had become negroes again,
all of them. They had become subdued, notwithstanding they had made
the threat that one company of the Twenty-fifth was not afraid to
charge the whole State of Texas, and as the captain passed among them
at the fort their hands went to the caps and they bowed in respectful
manner. The influence of the captain remained with them until they
were many miles away from Brownsville. A gentleman who was on
the train which took the negroes away from Brownsville states that
they were meek and that not a word did any soldier speak until Browns¬
ville was 20 or more miles behind them. They then showed signs of
boastfulness again.
Foraker might have misinterpreted the meaning of Major Blocksom,
but when Blocksom gave expression to his how famous epigram, he felt
that way about it
Captain McDonald has written several reports of the Brownsville
affair, giving the inside of the whole thing. He has written a report to
Governor Lanham and a report to President Roosevelt, and upon in¬
structions from Governor Lanham has written a report to Senator Cul¬
berson.
has given roosevelt information.
t He has also written a letter to the President congratulating him
upon his action in disbanding the negro soldiers. In this letter he
told the President some things that the President did not know before.
Just what these things were is another story. At any rate Presi¬
dent Roosevelt has ordered a court-martial of Major Penrose and Cap¬
tain Macklin. Just where Captain Macklin was on the night of the
murder is an unknown quantity. He averred that he saw Corporal
Miller at roll both at 8 o'clock and at 11 o'clock. It transpires, how¬
ever, that he will have a hard time proving that he himself was there.
the captain when not in action.
This man, Captain McDonald, is a little bit of a fellow. One can
almost span his waist with two hands. H^ is not to say abbreviated
of stalsure, but he is by no means tall, and he is very frail. He is
mild of manner and unassuming and as docile as a lamb, and his eye
is kindly and twinkles with a smile. He is as plain as an old shoe,
and no one to meet him on the street would take him to be a " bad
man." But this is the Captain McDonald when not in action. Major
Blocksom, it seems, can best tell what the man looks like when he is
in action, and should Foraker ever come in contact with him during
such a time it would not be in a derisive way that he would say that
he was one of those fellows who " would charge hell with a bucket of
water."
Mr. FORAKER. I now ask for a vote on the resolution, Mr.
President.
Mr. LODGE obtained the floor.
Mr. CULBERSON. Will the Senator from Massachusetts
yield to me?
7111
74
The VICE-PRESIDENT. Does the Senator from Massachu¬
setts yield to the Senator from Texas?
Mr. LODGE. Certainly.
Mr. CULBERSON. Mr. President, it was not my pleasure to
hear all the remarks of the Senator from Ohio [Mr. Fobakeb]
who has just taken his seat, but from what I can learn of his
remarks I think the country is to be felicitated upon the fact
that he has now turned his attention from attempting to estab¬
lish the innocence of the guilty persons to a species of ridicule
of the captain of the Texas Rangers. From what I caught,
what the Senator has read seems to be merely an effusion of
some newspaper reporter in Texas, I believe, and some repre¬
sentative of the Cincinnati Enquirer, as to the character of
man Captain McDonald is—of course, purposely exaggerated.
There is one thing else I ought to add to what I have said
about Captain McDonald, and that is this: In view of the wish
expressed in this Chamber a few days ago—but which has been
omitted from the Record—to meet him, it affords me very much
pleasure to say, in the same spirit, that he never declined an
invitation of that character in all his life, and he is too old to
change his habits now.
Mr. LODGE. Mr. President, I offer to the resolution the
amendment which I send to the desk.
The VICE-PRESIDENT. The amendment proposed by the
Senator from Massachusetts to the resolution will be stated.
The Secretary. After the word "discharge" it is proposed
to insert "by the President of the United States in the exer¬
cise of his constitutional and legal authority as Commander in
Chief."
Mr. LODGE. Mr. President, as a member of the Committee
on Military Affairs, which will be charged with the proposed in¬
vestigation and with hearing the testimony, I think it would be
very unbecoming in me to form any final opinion as to the ques¬
tion of fact which has been raised, and certainly most improper
for me to express any opinion in regard to it. The question of
fact is all that is covered by the resolution of the Senator from
Ohio [Mr. Foraker], and I hope that resolution will pass at the
earliest moment, and that the committee will take it up and
press their hearings to a conclusion. But until they have heard
all the testimony, as a member of the committee I think it would
be, as I have said, unfitting for me to discuss the question of
fact.
But the question of law is an entirely different one. That
question was opened up by the Senator from Ohio the first day
he spoke. It has been discussed again to-day by the Senator
from Texas [Mr. Culberson]. While it would be an impro¬
priety for me to form or express an opinion as to the facts, I
can see no possible objection to myself or any other Senator,
whether a member of the committee or not, expressing an opin¬
ion as to the question of law. I have given some study to it
during the recess, and I have no doubt whatever as to the Presi¬
dent's constitutional and legal authority to issue the order which
he did discharging the soldiers. Whether the facts justified that
order is a wholly different question, and that is the question
which the resolution refers to the committee for decision; but
as the legal and constitutional question has been raised, I think
It would be just as well for the Senate to pass upon that ques¬
tion and remove it entirely from the jurisdiction of the com-
7111
75
mittee, confining them, as the resolution purports to confine
them, to the question of fact.
It is for this reason that I hare moved the amendment which
I have sent to the desk.
Mr. FORAKER. Mr. President, I am opposed to the adoption
of the amendment. That is a question as to which the Senate
should not estop itself 'from giving further consideration. It
is a very important question. It is true I made some remarks
upon that point when I spoke a few days ago, and it is true that
the Senator from Texas [Mr. Culberson] discussed that propo¬
sition to-day; but the discussion of the Senator from Texas and
the discussion I indulged in are enough in themselves to show
that it is at least a controverted proposition.
The Senator from Massachusetts [Mr. Lodge] says that he has
no doubt about the President's authority. I have no doubt either
as to the view I have expressed. It is a matter which, it seems
to me, ought not to be acted upon in connection with the resolu¬
tion providing for an investigation of the facts. Let us confine
the resolution to its purpose, namely, to investigate the facts,
and then, when we have all the facts, we can consider not only
the law applicable to the state of facts we may report, but also
all the law applicable to the case as it is insisted by others it
has already been established. So I hope the amendment will
be voted down.
Mr. BEVERIDGE. I ask before action is taken that the
original resolution of the Senator from Ohio [Mr. Fobakeb] and
the amendment proposed by the Senator from Massachusetts
[Mr. Lodge] be read.
The VICE-PRESIDENT. The Secretary will read the resolu¬
tion of the Senator from Ohio as it is proposed to be amended
by the Senator from Massachusetts.
The Secretary read the resolution as proposed to be amended,
as follows:
Resolved, That the Committee on Military Affairs be, and hereby is,
authorized to take such further testimony as may be necessary to estab¬
lish the facts connected with the discharge, by the President of the
United States in the exercise of his constitutional and legal authority
as Commander in Chief, of members of Companies B, C, and D, Twenty-
fifth United States Infantry, and that it be, and hereby is, authorized
to send for persons and papers and administer oaths, and report thereon,
by bill or otherwise.
Mr. LODGE. Mr. President, the Senator from Ohio says
very justly that his resolution deals only with the facts. It is
for that purpose—to confine the committee entirely to the
facts—that I have offered the amendment. I think the Senate
will have to pass upon the question of constitutionality, as it
has been raised, and it seems to me they can pass on it just as
well at one time as another.
Mr. WARREN. Mr. President
The VICE-PRESIDENT. Does the Senator from Massachu¬
setts yield to the Senator from Wyoming?
Mr. LODGE. I yield.
Mr. WARREN. I do not wish to take the Senator from Mas¬
sachusetts from the floor, but now or at the conclusion of his re¬
marks I wish to ask unanimous consent that the resolution of
the Senator from Ohio and the amendment to it proposed by the
Senator from Massachusetts lie over until to-morrow or until
our next meeting, allowing it to keep its place until it comes up
in regular order after morning business.
7111
76
Mr. FORAKER. I object.
The VICE-PRESIDENT. Objection is made.
Mr. LODGE. Mr. President, I am very anxious to have thlg
resolution disposed of as soon as possible. I should like to be
heard briefly upon my amendment. I am suffering to-day from
a cold and a somewhat sore throat, and it is extremely difficult
for me to go on this afternoon
Mr. FORAKER. In view of that statement, I withdraw the
objection.
Mr. LODGE. But if the Senator from Ohio insists, I will
go on.
Mr. FORAKER. In view of the statement of the Senator
from Massachusetts—I did not know that the request was made
by the Senator from Wyoming [Mr. Wabben] on account of the
Senator from Massachusetts—I withdraw my objection.
7111
JANUARY 7, 190T.
The Senate having under consideration the following resolu¬
tion by Mr. Fobakeb—
. Resolved, That the Committee on Military Affnirs he, and hereby is,
authorized to take such further testimony as mny be necessary to es¬
tablish the facts connected with the discharge of members of Companies
B, C, and D, Twenty-fifth United States Infantry, and that it be, and
hereby is, authorized to send for persons and papers and administer
oaths, and report thereon, by bill or otherwise—
Mr. FORAKER said:
Mr. President : The Senator from Massachusetts [Mr.
Lodge] criticises the resolution I offered, in the first place,
because it authorizes the Committee on Military Affairs to take
"further testimony." He reminds us that the Senate has not
taken any testimony, and that, therefore, to direct the Com¬
mittee on Military Affairs to take "further tesimony" is not
the proper direction for us to give, for it assumes that we
have done something that we have not done. In the first place,
Mr. President, I am not particular about the language that may
be employed. I do not care whether the resolution is worded
" to take further testimony " or simply " to take testimony
but, in view of what the Senator from Massachusetts has said,
it is in order perhaps for me to state that when I framed the
resolution in the way to which he takes exception in the respect
referred to I had in mind that the President of the United States
had transmitted to the Senate a lot of affidavits and other
statements, not under oath, to which he referred as testimony.
The President told us in that message that the testimony he
had thus sent to us was conclusive and overwhelming. I un¬
dertook to show, in answer to that statement, that it was
neither overwhelming nor conclusive, but inadequate, insuffi¬
cient, flimsy, and unsatisfactory. I do not know whether or not
I employed any other adjectives. I would have done so if I
could have thought of any others, for I quite agree with the
Senator from Massachusetts in his suggestion that there is in
fact no testimony before the Senate. But it was that that I
had reference to when I employed the term " take further tes¬
timony."
This resolution shall not fail, however, let me say again, be¬
cause of any mere technical objection to the language which
may have been employed by me when I drafted it. I am after
the substance. I will let all things that are not substantial be
waived.
Coming now to the substance, the Senator has offered a sub¬
stitute. He says the substitute, as he has offered it, is to have
practically the same effect as would have been produced by
the adoption of the amendment he offered last Thursday to the
7111 77
7S
resolution which I had introduced, and he tells us that his pur¬
pose in offering the amendment he did offer to my resolution
and now in offering his substitute is to recognize the fact that
there are two great questions—one a question of fact, about
which he concedes we have a right to make inquiry, and the
other a question of law, or a question of constitutional and
legal power on the part of the Executive to take the action
that is under consideration. That, the Senator says, we have
no power to take any notice of, and he wants us to separate these
two questions, that not only the committee, but also the Senate
shall be concluded from giving any consideration whatever to,
ok taking any action upon, the question of the constitutional
and legal power of the Executive to take this action.
Mr. President, because the Senator so interprets his amend¬
ment to my resolution and the substitute he now offers I am
opposed to both. It is not true, as I understand the law and
the authorities—and I repeat in this connection that I may, of
course, be mistaken about it, for it is only my opinion—that
the President as Commander in Chief has inherent power to do
that which he has done, and that Congress has never under¬
taken to deprive him of that inherent power.
What is the power of the President? It is twofold. In all
the authorities it is spoken of as constitutional power and legal
power. What is the constitutional power of the President?
His constitutional power is to command. " He shall be Com¬
mander in Chief of the Army and the Navy." That is all the power
the Constitution confers upon him. If there were nothing else
said about the Army or the Navy, or about anybody else ex¬
ercising any power with respect to the Army and Navy, it might
well be argued, as the Senator from Massachusetts has argued,
that the power of the Commander in Chief is the same power
that the commander in chief of the British army was invested
with and exercised.
The power of the President with respect to the Army and
Navy is not, however, deduced from what was the practice or
what was the power in the British army, but it is deduced from
the Constitution of the United States. He has no power as
Commander in Chief except only that which is by that Con¬
stitution conferred upon him. Under the Constitution he has no
power to raise an army; he has no power to dismiss an army.
He has power to grant discharges in certain cases only because
the Congress of the United States has conferred that power upon
him, a power not only with respect to discharges, but a power
in connection with the Army in other respects. What he de¬
rives directly from the Constitution is his constitutional power;
what he derives from the Congress of the United States is his
legal power.
It is not an open question what is his power under the
Constitution as Commander in Chief. We do not have to go to
the British army and to British precedents to ascertain the
limitations of that power. The Supreme Court of the United
States has spoken on that point as long ago as in 9 Howard.
The Supreme Court of the United States said, speaking on that
subject, at page 615:
As Commander in Chief he is authorized to direct the movements of
the naval and military forces placed by law at his command, and to
employ them in the manner he may deem most effectual to harass and
conquer and subdue the enemy.
7111
79
I might read further to the same effect. It Is enough to say
that in that case, and ever since in every other case in which
the Supreme Court of the United States has had occasion to
speak on that subject, what the Supreme Court then and there
said has been repeated without modification or change of any
kind whatsoever. In every instance, when the power of the
Commander in Chief of the Army of the United States has been
referred to, it has been said by that court that his constitutional
power is the power to command. He can direct where the
Army and Navy of the United States shall be quartered or sta¬
tioned ; how they shall be employed in time of war; how they
shall be directed to move against the enemy; and all that
is over and above and beyond the power of the Congress of the
United States to control. That is his absolute, unqualified
power, with which the Congress of the United States has no au¬
thority whatever to interfere.
In 16 Peters, at page 291, the Supreme Court of the United
States again spoke on this subject in the case of The United
States v. Eliason. The last paragraph of the syllabus reads as
follows:
The power of the Executive to establish rules and regulations for the
government of the Army is undoubted. The power to establish neces¬
sarily implies the power to modify or to repeal or to create anew.
The Secretary of War is the regular constitutional organ of the Presi¬
dent for the administration of the military establishment of the nation,
and rules and orders publicly promulgated through him must be re¬
ceived as the acts of the Executive, and as such are binding upon all
within the sphere of his legal and constitutional authority,
Mr. President, what does that mean? It means simply this,
as in this opinion is elaborated, that if with respect to any sub¬
ject necessary in the regulation of the Army the Congress of
the United States shall not have spoken, ex necessitate rei, the
Commander in Chief may prescribe a regulation, and that it
will be effective, but no regulation can be made by the Com¬
mander in Chief except only such as may be within the sphere
of his legal and constitutional authority and power.
Mr. President, there is no autocracy in this country. There
is no arbitrary and dictatorial and unrestrained and unre¬
stricted power in even the Commander in Chief of the Army of
the United States. All power is derived from the Constitu¬
tion. The President's power as Commander in Chief comes to
him directly from the Constitution, and his legal power comes
to him from the Constitution, through the Congress of the
United States. What he does not derive directly from the
Constitution or through enactments of the Congress of the
United States he is as absolutely without as though he were
any other person or individual other than the Commander in
Chief. I shall not take time to read from the body of the
opinion. I have read the essence of it. I have read it to
show that, as I said a moment ago, there are two kinds of
power with respect to the President as Commander in Chief
with which he is invested—one the constitutional power to be
Commander in Chief, the other legal power conferred upon him
by Congress, and conferred upon him by Congress because the
Constitution says that the Congress shall have power to raise
armies and to prescribe rules and laws and regulations for the
government of the Army. In prescribing these rules the Con¬
gress can say " The President may have power in certain con-
7111
80
tingencies to dismiss men from the Army which we have raised;
but, without such a provision, if the Congress should have spoken
upon it at all, the President would not have that power, ex¬
cept in conformity with the law of Congress. Wherever the
Congress has spoken in the making of a regulation, that regu¬
lation is the law of the land, and it is binding on the Presi¬
dent of the United States as well as upon everybody else.
Mr. CULBERSON. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Texas?
Mr. FORAKER. Certainly.
Mr. CULBERSON. I understand the Senator from Ohio to
have referred to the regulations for the Army, which have been
from time to time promulgated by the President. What I desire
to ask the Senator is this: Does he take the position that the
power of the President to promulgate such regulations springs
from the statute alone or from his constitutional authority as
Commander in Chief?
Mr. FORAKER. I spoke explicitly on that point. The Sena¬
tor, of course, was not following me closely enough to catch
what I said. I said if, with respect to regulations, the Congress
failed to act as to the regulation on any particular point the
President might ex necessitate make a regulation as Commander
in Chief, but if the Congress shall have acted then, the Presi¬
dent has no power to act except only i:p conformity with and by
virtue of that authority of law.
Mr. President, in 1G9 United States, in what is known as the
" Garlinger case," at page 316, it was held by the Supreme Court
of the United States with respect to regulations made by the
Treasury Department, which are determined upon the same
principles precisely—that the regulation must conform to law—
that it can not add to any right or detract from any duty. If
the Congress of the United States shall have spoken upon the
subject, no other power can speak' except in conformity to the
will of Congress as the Congress has so expressed its will.
Mr. President, has the Congress spoken on this subject? The
Senator from Massachusetts [Mr. Lodge] tells us that the rela¬
tion of the enlisted man to the United States is a contractual
relation. That is true. Nobody, I believe, ever contended for
anything else. And it is because it is a contractual relation that
the enlisted man has rights beyond what he would have but for
his contract. When I was speaking here a few days ago I
called attention to the nature of his contract. It is set forth in
the second article of war. There is nothing indefinite as to
the obligation of the enlisted man, nor is there anything indefi¬
nite as to the rights of the enlisted man. In the second article
of war it is provided that when he enlists he shall take this kind
of an obligation:
I, A B, do solemnly swear (or affirm) that I will bear true faith
and allegiance to the United States of America; that I will serve
them honestly and faithfully against all their enemies whomsoever and
that I will obey the orders of the President of the United States and
the orders of the officers appointed over me, according to the rules and
Articles of War.
In other words, the rules and Articles of War are incorporated
Into this contractual obligation that the enlisted man assumes
when he enters the service of the United States in the Army.
" Rules " relate to regulations that are prescribed for the gov-
7iii
81
ernment of the Army. The Articles of War are directly en¬
acted by the Congress of the United States.
Now, what are these Articles of War first? At great length
I pointed out here a few days ago that the Congress of the
United States in enacting the Articles of War which are incor¬
porated in the enlisted man's contract, had specifically pointed
out in advance and provided for almost every kind of offense
that an enlisted man could be foreseen to be likely to commit,
and with respect to every such it had specifically provided that
he should have a right to trial by court-martial and his pun¬
ishment should be such as the court-martial might inflict.
And then, for fear something might be omitted, might not be
covered, they enacted an omnibus clause, now the sixty-second
article of war, in which it is provided that every offense—I
will not stop to read it*—no matter what its character may be,
except only murder, which was to be taken care of otherwise,
every offense prejudicial to good order and military discipline
should be cognizable under the sixty-second article of war, and
the punishment should be such as a court-martial might direct.
Mr. President, on that occasion I went to a good deal of
trouble to show upon authority that what these unfortunate
men who have been discharged from the Twenty-fifth Infantry
had been guilty of, if anything, was an offense cognizable under
the sixty-second article of war. I had not then seen Senate
Document 155. It had been sent to the Senate by the President
the day before and we had sent it to the printer. It was in his
hands. It came to the Senate while I was speaking. I had no
opportunity to look through it, but I did look through it a day or
two afterwards. And one of the first things I discovered was
that the War Department and the President and the Department
of Justice had precluded themselves from denying that these
alleged offenses were cognizable under the sixty-second article
of war.
It will be remembered that thirteen men, one of them a dis¬
charged soldier, were singled out and arrested on civil process
at Brownsville, charged with the commission of this offense,
and incarcerated in jail and held there by the civil authorities
until the time when the Twenty-fifth Infantry left there to go
to El Reno. Just before they left an agreement was arrived at
between the Government authorities and the civil authorities
whereby the twelve soldiers were discharged. Immediately after
the War Department and the President and the Attorney-Gen¬
eral, who had been brought into the case to give his advice and
opinion on these important subjects, were advised of that, they
directed the department commander of the Department of Texas,
General McCaskey, I believe it was, to proceed forthwith to file
charges against each and all of the twelve men under the sixty-
second article of war.
I at once wrote a letter to the Secretary of War and requested
to be informed—for that record did not state anything about
it—whether the charges had been so filed and, if so, what had
become of them. In due time I received from him the charges
and specifications, twelve in all. There should be that many
here. I want to incorporate them into the record. They are all
alike.
Charge and specification preferred """'nst Sergt. James R. Reld,
Company B, Twenty-fifth Infantry.
7111 6
82
He is the man who was sergeant of the guard on the night
sixteen men went out, as claimed, from that fort with guns and
arms, and climbed over the wall and shot up the town, and then
returned without him or anybody under his command, although
on duty and on the alert, looking for people coming from that di¬
rection, seeing one of them. Something was said by the Senator
from Massachusetts [Mr. Lodge] about a most astonishing and
mysterious sort of plot that the Constitution League contended
had been entered into. I do not know; I do not want to speak
about the facts now, but I will say this much in passing: If
what is contended for here to show that these men are-guilty of
this charge be true—that there was such a conspiracy, such a
consummation of it, and that many men engaged in it, and the
number of accessories before and after the fact necessary to
enable it to be carried out—it is a thing- that has happened with¬
out a precedent in all the history of criminal jurisprudence.
In my opinion such a thing never happened, never could happen,
and never will happen. But that is foreign to the point I was
discussing.
I want to show that these men, if they committed the crime
charged against them, are amenable to the law. There was a
law created by which they were to be tried, by which, according
to the obligations which they assumed when they enlisted, they
had a right to be tried, and a right, as the Supreme Court has
said, that no power on earth can take away from them. Now,
here is what they are charged with:
Charge.—Conduct to the prejudice of good order and military dis¬
cipline in violation of the sixty-second article of war.
Specification.—In that Sergt. James R. Reid, Company B, Twenty-
fifth Infantry, did, without authority, take from the barracks of his or
other company stationed at Fort Brown, Tex., one (1) magazine rifle,
caliber .30, model 1903, and did, singly or in company with other party
or parties unknown, take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen of said town was killed
and another wounded, by loading with ball cartridges and firing said
rifle in said streets of said town, and causing damage to property of
inhabitants of said town. This on or about August 13, 190G. (Signed.)
H. Clay M. Supple, first lieutenant and battalion adjutant, Twenty-
sixth Infantry, officer preferring charge.
Then there is a list of witnesses, and then there is an indorse¬
ment to which I call attention. It is the first indorsement:
[First indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the un¬
dersigned, as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be
substantiated.
,, , C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
I send to the desk this paper, with eleven others just like it
in form—there should be that many—and I ask that they may be
incorporated in my remarks without being read. I wish to put
them in the Record at some point, and they may as well come
in here as at any other.
The VICE-PRESIDENT. Without objection the papers sent
to the desk by the Senator from Ohio will be printed in the
Record.
7111
S3
The papers referred to are as follows:
Charge and specification preferred against Sergt. James R. Reid, Com'
party B, Twenty-flfth Infantry.
Charge.—Conduct to the prejudice of good order and military dis¬
cipline in violation of the sixty-second article of war.
Specification.—In that Sergt. James R. Reid, Company B, Twenty-
fifth Infantry, did, without authority, take from the barracks of his or
other company stationed at Fort Brown, Tex., one (1) magazine rifle,
caliber .30, model 1903, and did, singly or in company with other
party or parties unknown, take part in a disturbance in the streets of
Brownsville, Tex., in which disturbance one citizen of said town waa
killed and another wounded, by loading with ball cartridges and firing
said rifle in said streets of said town, and causing damage to property
of inhabitants of said town.
This on or about August 13, 1906.
H. Clay M. Supplee,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. George Jackson, Company B; Private John Hol-
lomon, Company B; Sergt. Darby W. O. Browner, Company C ; Corpl.
Charles H. Madison, Company C ; Corpl. Willie H. Miller, Company C;
Private Charles W. Askew, Company C ; Private James W. Newton, Com¬
pany C; Private Oscar W. Reid, Company C; Corpl. David Powell, Com¬
pany D; Private James C. Gill, Company D; Private Joseph H. How¬
ard, Company D, Twenty-fifth Infantry.
In confinement since August 25, 1906.
Rate of pay. $23 per month.
Previous convictions: One, September 8, 1905.
[First indorsement.]
Fort Sam Houston, Tex., August 88, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned as far as practicable with the -means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be
substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Sergt. Darby W. O. Browner,
Company C, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci¬
pline in violation of the sixty-second article of war.
Specification.—In that Sergt. Darby W. O. Browner, Company C,
Twenty-fifth Infantry, did, without authority, take from the barracks of
his or other company stationed at Fort Brown, Tex., one (1) magazine
rifle, caliber .30, model 1903, and did singly, or in company with other
party or parties unknown, take part in a disturbance in the streets of
Brownsville, Tex., in which disturbance one citizen of said town was
killed and another wounded, by loading with ball cartridges and firing
said rifle in said streets of said town, causing damage to property of
inhabitants of said town.
This on or about August 13, 1906.
H. Clay M. Supples,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. George Jackson. Company B; Private John Hol-
lomon, Company B; Corpl. Charles H. Madison, Company C; Corpl.
Willie H. Miller, Company C; Private Charles W. Askew, Company C;
Private James W. Newton, Company C; Private Oscar W. Reid, Com¬
pany C; Corpl. David Powell, Company D; Private James C. Gill, Com¬
pany D ; Private Joseph H. Howard, Company D, Twenty-fifth Infantry.
In confinement since August 25, 1906.
Rate of pay, .
Previous convictions: None.
» [First indorsement.]
Fort Sam Houston, Tex, August S8, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned as far as practicable with the means at hand, and I am of
7111
s±
the opinion that It Is doubtful If the allegations as set forth can be
substantiated.
C. .T. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Gorpl. David Powell, Com¬
pany D, Tioenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci¬
pline in violation of the sixty-second article of war.
Specification.—In that Corpl. David Powell, Company D, Twenty-fifth
Infantry, did, without authority, take from the barracks of his or other
company stationed at Fort Brown, Tex., one magazine rifle, caliber .MO,
model 1903, and did, singly or in company with other party or parties
unknown, take part in a disturbance in the streets of Brownsville, Tex.,
In which disturbance one citizen of said town was killed and another
wounded, by loading with ball cartridges and firing said rifle in said
streets of said town and causing damage to property of inhabitants of
said town.
This on or about August 13, 1906.
H. CLAY M. Suppled,
First Lieutenant, Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnbssbs : Sergt. James R. Reid, Company B; Sergt. George Jack¬
son, Company B; Private John Hollomon, Company B; Sergt. Darby
W. O. Browner, Company C; Corpl. Charles H. Madison, Company C;
Corpl. Willie H. Miller, Company C; Private Charles W. Askew, Com¬
pany C; Private James W. Newton, Company C; Private Oscar W.
Reid, Company C; Private Joseph H. Howard, Company D; Private
James C. Gill, Company D.
In confinement since August 25, 1906.
Rate of pay : $20 per month.
Previous convictions: None.
[First Indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned, as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be
substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Private James C. Qill,
Company D, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci¬
pline, in violation of the- sixty-second article of war.
Specification.—In that Private James C. Gill, Company D, Twenty-
fifth Infantry, did without authority take from the barracks of his
or other company stationed at Fort Brown, Tex., one magazine rifle,
caliber .30, model 1903, and did singly or in company with other party
or parties unknown take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen of said town was killed
and another wounded, by loading with ball cartridges and firing said
rifle in said streets of said town and causing damage to property of
inhabitants of said town.
This on or about August 13, 1906.
H. Clay M. Supplee,
First Lieutenant, Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B; Sergt. George Jack-
eon, Company B; Private John Hollomon, Company B; Sergt. Darby
W. O. Browner, Company. C; Corpl. Charles H. Madison, Company C;
Corpl. Willie H. Miller, Company C; Private Charles W. Askew, Com¬
pany C; Private James W. Newton, Company C; Private Oscar W.
Reid, Company C; Corpl. David Powell, Company D; Private Joseph
H. Howard, Company D.
In confinement since August 25, 1906.
Rate of pay: Thirteen dollars per month.
Previous convictions: Two.
[First Indorsement.]
Fort Sam Houston, Tex., August S8, 1S0S.
Respectfully forwarded to the military secretary, Department of
"£exas, recommending trial by general court-martial. Under paragraph
7111
85
©62, Army Regulations, these charges have heen investigated hy the
undersigned, as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be
substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Private Joseph H. Howard,
Company D, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military dis¬
cipline in violation of the two hundred and sixty-second article of war.
Specification.—In that Private Joseph H. Howard, Company D,
Twenty-fifth Infantry, did, without authority, take from the barracks of
his or other company stationed at Fort Brown, Tex., one magazine rifle,
caliber .30, model 1903, and did, singly or in company with other party
or parties unknown, take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen of said town was killed
and another wounded, by loading with ball cartridges and firing said
rifle in said streets of said town, and causing damage to property of
inhabitants of town.
This on or about August 13, 1906.
H. Clay M. SurpLEE,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B ; Sergt. George Jack¬
son, Company B; Private John Hollomon, Company B ; Sergt. Darby
W. O. Browner, Company C; Corpl. Charles H. Madison, Company C;
Corpl. Willie H. Miller, Company C; Private Charles W. Askew, Com¬
pany C; Private James W. Newton, Company C; Private Oscar W. Reid,
Company C; Corpl. David Powell, Company D; Private James C. Gill,
Company D, Twenty-fifth Infantry.
In confinement since August 23, 1906.
Rate of pay: $14 per month.
Previous convictions: None.
[First indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned as far as practicable with the means at hand, and I am
of the opinion that it is doubtful if the allegations as set forth can
be substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Private Oscar W. Reid, Com¬
pany C, Twenty-Fifth Infantry.
Charge.—Conduct to the prejudice of good order and military dis¬
cipline in violation of the sixty-second article of war.
Specification.—In that Private Oscar W. Reid, Company C, Twenty-
fifth Infantry, did without authority take from the barracks of his or
other company stationed at Fort Brown, Tex., one magazine rifle,
caliber .30, model 1903, and did singly or in company with other party
or parties unknown take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen of said town was 'killed
and another wounded, by loading with ball cartridges and firing said
rifle in said streets of said town and causing damage to property of
Inhabitants of said town. This on or about August 13, 1906.
H. Clay M. Supplee.,
First Lieutenant, Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B; Sergt. George Jack¬
son, Company B; Private John Hollomon, Company B; Sergt. Darby
W. O. Browner, Company C ; Corpl. Charles H. Madison, Company C;
Corpl. Willie H. Miller, Company C; Private Charles W. Askew, Com¬
pany C ; Private James W. Newton, Company C; Corpl. David Powell,
Company D, Private James C. Gill, Company D; Private Joseph H.
Howard, Company D.
In confinement since August 25, 1906.
Rate of pay, $14 per month.
Previous convictions, four.
[First indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
7111 *
sr>
962, Army Regulations, these charges have been investigated by the
undersigned, as far as practicable with the means at hand, and 1 am
of the opinion that it is doubtful if the allegations as set forth can be
substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Private James TP. Newton,
Company C, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military dis¬
cipline in violation of the sixty-second article of war.
Specification.—In that Private James W. Newton, Company C,
Twenty-fifth Infantry, did without authority take from his or other
companies stationed at Fort Brown, Tex., rne (1) magazine rifle, caliber
.30, model 1903, and did, singly or in company with other party or
parties unknown, take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen was killed and another
wounded, by loading with ball cartridges and firing said rifle in said
streets of said town, and causing damage to the property of the inhab¬
itants of said town. This on or about August 13, 1006.
H. Clay M. Supplee,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B; Sergt. George Jack¬
son, Company B ; Private John Hollomon, Company B ; Sergt. Darby
W. O. Browner, Company C ; Corpl. Charles H. Madison, Company C;
Corpl. Willie H. Miller, Company C ; Private Charles W. Askew, Com¬
pany C; Private Oscar W. Reid, Company C; Corpl. David Powell,
Company D; Private James C. Gill, Company D; Private Joseph H.
Howard, Company D, Twenty-fifth Infantry.
In confinement since August 25, 1906.
Rate of pay: .
Previous convictions: Four—December 2, 1905; April 28, 1906;
June 4, 1906; June 23, 1906.
[First indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charseg have been investigated by the un¬
dersigned as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be
substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Private Charles W. Askew,
Company C, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci-
pine in violation of the sixty-second article of war.
Specification.—In that Private Charles W. Askew, Company C,
Twenty-fifth Infantry, did, without authority, take from the barracks
of his or other company stationed at Fort Brown, Te^., one (1) maga¬
zine rifle, caliber .30, model 1903, and did, singly or in company with
other party or parties unknown, take part in a disturbance in the streets
of Brownsville, Tex., in which disturbance one citizen of said town was
killed and another wounded, by loading with ball cartridges and firing
said rifle in said streets of said town, and causing damage to the prop¬
erty of the inhabitants of said town.
This on or about August 13, 1906.
H. Clay M. Supplee,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Corpl. Wilie H. Miller, Company C; Sergt. Darby W. O.
Browner, Company C; Sergt. George Jackson, Company B; Private
John Holloman, Company BI Corpl. Charles Madison, Company C;
Private James W. Newton, Company C ; Private Oscar W. Reid, Com¬
pany C; Corpl. David Powell, Company D; Private James C. Gill, Com¬
pany D; Private Joseph H. Howard, Company D, Twenty-fifth Infantry;
Sergt. James R. Reid, Company B.
In confinement since August 25, 1906.
Rate of pay, ;
Previous conviction, none.
7111
[First indorsement.]
Fort Sam Houston, Tex., August S8, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned, as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be sub¬
stantiated.
C. J. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Corpl. Willie H. Miller, Com¬
pany C, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci¬
pline in violation of the sixty-second article of war.
Specification.—In that Corpl. Willie H. Miller, Company C, Twenty-
fifth Infantry, did, without authority, take from the barracks of his
or other company stationed at Fort Brown, Tex., one (1) magazine
rifle, caliber .30, model 1903, and did, singly or in company with
other party or parties Unknown, take part in a disturbance in the
streets of Brownsville, Tex., in which disturbance one citizen of said
town was killed and another wounded, by loading with ball cartridges
and firing said rifle in said streets of said town, and causing damage
to the property of inhabitants of said town. This on or about August
13, 1906.
H. Clay M. Supplee,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses.—Sergt. Darby W. O. Browner, Company C ; Sergt. George
Jackson, Company B: Private John Hollomon, Company B; Corpl.
Charles H. Madison, Company C ; Private Charles W. Askew, Company
C; Private James W. Newton, Company C; Private Oscar W. Reid,
Company C ; Corpl. David Towell, Company D ; Private James C. Gill,
Company D; Private Joseph H. Howard, Company D, Twenty-fifth
Infantry; Sergt. James R. Reid, Company B.
In confinement since August 25, 1906.
Rate of pay: .
Previous convictions: Four (4).
[First indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned, as far as practicable with the means at hand, and I
am of the opinion that it is doubtful if the allegations as set forth
can be substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Corpl. Charles H. Madison,
Company C, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci¬
pline in violation of the sixty-second article of war.
Specification.—In that Corpl. Charles H. Madison, Company C,
Twenty-fifth Infantry, did, without authority, take from the barracks
of his or other company stationed at Fort Brown, Tex., one magazine
rifle, caliber .30, model 1903, and did singly, or in company with other
party or parties unknown, take part in a disturbance in the streets of
Brownsville, Tex., in which disturbance one citizen of said town was
killed and another wounded, by loading with ball cartridges and firing
said rifle in said streets of said town, and causing damage to property
Of inhabitants of said town. This on or about August 13. 1906.
H. Clay M. Supplee,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B; Sergt. George Jack¬
son, Company B; Private John Hollomon, Company B; Sergt. Darby
W. O. Browner, Company C ; Corpl. Willie H. Miller, Company C; Pri¬
vate Charles W. Askew, Company C ; Private James W. Newton, Com¬
pany C ; Private Oscar W. Reid, Company C ; Corpl. David Powell, Com¬
pany D; Private James C. Gill, Company D; Private Joseph H. Howard,
Company D.
In confinement since August 25, 1906.
Rate of pay : Fourteen dollars per month.
Previous convictions: None.
7111
88
[First Indorsement.!
Fort Sam Houston, Tex., August £8, t906.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the un¬
dersigned, as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can be sub¬
stantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and epeciflcation preferred against Private John Hollomon,
Company B, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military disci¬
pline in violation of the sixty-second article of war.
Specification.—In that Private John Hollomon, Company B, Twenty-
fifth Infantry, did without authority take from the barracks of his or
other company stationed at Fort Brown, Tex., one magazine rifle,
caliber .30, model 1903, and did singly or in company with other party
or parties unknown take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen of said town was killed
and another wounded, by loading with ball cartridges and firing said
rifle in said streets of said town and causing damage to property of
inhabitants of said town.
This on or about August 13, 1906.
H. Clay M. Supplee,
First Lieutenant and Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B; Sergt. George Jack¬
son, Company B; Sergt. Darby W. 0. Browner, Company C; Corpl.
Charles H. Madison, Company C; Corpl. Willie H. Miller, Company C;
Private Charles W. Askew, Company C; Private James W. Newton,
Company C; Private Oscar W. Reid, Company C; Corpl. David Powell,
Company D; Private Joseph H. Howard, Company D; Private James C.
Gill. Company D.
In confinement since August 25, 1906.
Rate of pay, $18 per month.
Previous convictions, 1.
[First indorsement.]
Fort Sam Houston, Tex., August 28, 1906.
Respectfully forwarded to the military secretary, Department of
T£xas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, the charges have been investigated by the
undersigned, as far as practicable with the means at hand, and I am
of the opinion that it is doubtful if the allegations as set forth can
be substantiated.
C. J. T. Clarke,
Major, Twenty-sixth Infantry, Commanding.
Charge and specification preferred against Sergt. George Jackson, Com¬
pany B, Twenty-fifth Infantry.
Charge.—Conduct to the prejudice of good order and military dis¬
cipline, in violation of the sixty-second article of war.
Specification.—In that Sergt. George Jackson, Company B, Twenty-
fifth Infantry, did, without authority, take from the barracks of his or
other company stationed at Fort Brown, Tex., one magazine rifle, cali¬
ber .30, model 1903, and did, singly or in company with other party or
parties unknown, take part in a disturbance in the streets of Browns¬
ville, Tex., in which disturbance one citizen of said town was killed
and another wounded, by loading with ball cartridges and firing said
rifle in said streets of said town and causing damage to property of
inhabitants of said town.
This on or about August 13, 1906.
H. Clay M. Supplee,
First Lieutenant, Battalion Adjutant,
Twenty-sixth Infantry, Officer Preferring Charge.
Witnesses : Sergt. James R. Reid, Company B; Private John Hollo¬
mon, Company B; Sergt. Darby W. O. Browner, Company C: Corpl.
Charles H. Madison, Company C ; Corpl. Willie H. Miller, Company C:
Private Charles W. Askew, Company C; Private James W. Newton,
Company C; Private Oscar W. Reid, Company C ; Corpl. David Powell,
Company D; Private Joseph H. Howard, Company D; Private James
C. Gill, Company D.
In confinement since August 25, 1906.
Rate of pay: $23 per month.
Previous convictions: None.
7111
89
[First Indorsement.]
Fort Sam Houston, Tax., August £8, 190S.
Respectfully forwarded to the military secretary, Department of
Texas, recommending trial by general court-martial. Under paragraph
962, Army Regulations, these charges have been investigated by the
undersigned, as far as practicable with the means at hand, and I am of
the opinion that it is doubtful if the allegations as set forth can bo
substantiated.
C J» T Claske
Major, Twenty-sixth Infantry, Commanding.
Mr. FORAKER. Mr. President, the point I make is that If
these men were guilty as charged, there was a law, and it has
been recognized by the Department that there was a law, under
which they could be brought to trial, and The Military Secretary,
General Ainsworth, in transmitting his order that the charges
should be thus preferred says he does it with the approval of the
President of the United States and the Attorney-General of the
United States.
Now, what became of it? The Senate Is already familiar with
the fact that these twelve men were selected as the ones most
likely to have committed this crime; and so they were, for they
were the sergeant of the guard, and the men on guard, and the
sergeants and other noncommissioned officers in charge of the
quarters and the guns and the gun racks. They held the keys. No
such conspiracy could have been formed and carried out with¬
out every one of them having knowledge of it. Their cases
were brought before the grand jury at Brownsville. For three
weeks, I have been told, the grand jury was investigating, and
it finally dismissed the men on the ground that there was no
testimony whatever on which to convict them. Then they were
In time dismissed from the service of the United States, but dis¬
missed without having been brought to trial under these charges
and specifications against them, under the sixty-second article
of war. So it is that these men have had no opportunity any¬
where, although arrested by civil process and then later charged
with a militai-y offense and entitled to a military trial, to ap¬
pear and say "We are not guilty, and here is the testimony by
which we propose to establish our innocence."
Mr. President, the Senator from Massachusetts says, " Very
well; go ahead and investigate all the facts connected with the
transaction at Brownsville, but do not do anything that calls in
question the constitutional or the legal power of the President
of the United States to dismiss these men as he has done." Mr.
President, if the particular state of facts may be immaterial,
then it is immaterial whether there were any facts at all. If
the President can discharge because there is a state of facts
that causes him to suspicion, and suspicion when, as he says
himself, he has no testimony, if upon that condition he can say,
"I will dismiss and am warranted in doing it," he can say " I
will dismiss without regard to whether there are any facts at all,
and if you want to know about it I will simply tell you "—as the
Senator from Massachusetts has, in effect, told us—"it is none
of your business. I am Commander in Chief of the Army. I
know my constitutional right and power. I know what it was
In the British army. I know what it was in the American
Army when George Washington commanded, before the Con¬
stitution of the United States was adopted, and I have that
power, and I will not be questioned, and I will not be called to
account."
7111
90
Mr. President, the President may be right. He has his ideas
of the law. He has doubtless studied this question. Others
have also doubtless studied it and are in accord with him—the
Senator from Massachusetts seems to be—and therefore it may
be I am entirely wrong; but I am simple minded enough to
think that it makes a great deal of difference whether there are
any facts to call for such action as this. I think we have a
right to make inquiry, and I think the Senate of the United
States would be in a most ridiculous attitude before the country,
and with respect to its own duty, if here now it should adopt a
resolution, no matter who offers it or what may be its form,
that could be interpreted to estop us from raising a question,
when we come to consider this case upon the facts that will be
developed, as to whether or not upon that state of facts the
President acted within his constitutional or legal power, espe¬
cially if it should turn out that the soldiers did not commit any
offense whatever.
But, Mr. President, this becomes a pretty plain case when we
run it down a little further. Before the war and down until
the 20th of August, 1866, which is the date'of the official ter¬
mination of the civil war, the President of the United States
did have power, whenever in his judgment he thought it proper
to do so for the good of the service, to dismiss any officer in
either the Army or the Navy, and he did have prior to that time
far greater and more autocratic powers with respect to the en¬
listed men than he has ever had sjnce or ever will have again
in time of peace.
On the date I mentioned a law went into effect which had
been passed in July, 1866—that is, it took effect on the 20th of
August following, when it was declared that the civil war was
at an end—providing that in time of peace no officer of the Army
or the Navy or the Marine Corps should be dismissed without
being given a trial before a court-martial. That has been the
law ever since.
Now, when they thus legislated about officers, the Congress of
the United States commenced also to legislate about enlisted
men. They authorized the President of the United States to pre¬
scribe a code of regulations, subject to approval by the Congress
of the United States, and one President after another prescribed
codes of regulations—Army regulations. In no one of them,
until 1895, was such a thing as a discharge without honor rec¬
ognized. But then, for the first time, it was introduced. Before
that time all discharges had been either honorable or dishon¬
orably. On that date, however, it was provided also that dis¬
charges without honor might be granted. ,
Now, in what kind of a case? The Senator called our atten¬
tion to the fact that the President's'message discloses by one
of its exhibits that during the past year 352 discharges from the
Army were granted without honor, and he talks as though of
necessity, if what I am contending for could be sustained,
every one of them would be invalid and an undue exercise, a
usurpatory exercise, of power. Not at all. I think the dis¬
charge without honor is proper enough in a proper case, in such
a case as it was intended for; and what kind of a case was it
intended for?
As I said the other day in speaking, if I had the list before me
I would have numerous illustrations suggested to my mind imme-
7111
91
diately. But the illustration [ gave then was of a boy seeking
to enlist and succeeding in enlisting by misrepresenting his age.
He serves a few months. His mother comes and finds him. lie
is homesick. He has imposed upon the enlisting otiicers. His
enlistment was not honest. lie is not entitled to that certificate
of an honorable discharge which should be given only to a man
who has rendered faithl'ul and honest service, to employ the lan¬
guage used in the statute. Therefore they say, " The boy is doing
no good. It is a case of hardship. He wants to be discharged.
We will discharge him;" and the Seci'etary of War or the
President, as the case may be, orders that he be discharged with¬
out honor; that his connection with the servii e be terminated,
not in the way of punishment, but in the'way of favor to him.
There is another man who has deserted. The officers do not
think much of him perhaps as a soldier anyhow. He is arrested
and brought back. There may be some great trouble about prov¬
ing the case against him, or on account of some other difficulty
or because of extenuating circumstances they may be willing to
let him go without trial and without honor because he has re¬
quested that he may quit the service in that way. So he is
granted a discharge without honor.
But, Mr. President, in no case whatever—and I challenge the
War Department or anybody else who wants to speak on that
side of the proposition to produce one single precedent—has a
man been discharged without honor and without hearing because
he was charged with a crime which he protested he was not
guilty of and who protested against being so discharged. I chal¬
lenge them to cite a single instance where he has been so dis¬
charged until after he has been given a trial. In all the 352
cases the Senator from Massachusetts will not find a precedent.
In no instance will h$ find a precedent.
Mr. President, it is an elementary proposition, it is a birth¬
right, as the Supreme Court of the United States has said, that
every American citizen charged with crime shall have a chance
to appear somewhere, before some court, some tribunal, and there
meet his accusers and answer their witnesses.
Ah, but the Senator from Massachusetts says the fifth amend¬
ment to the Constitution does not apply, with its guaranties of
due process when life, liberty, and property are put in jeopardy,
to an enlisted man; that it is not intended for the Army, be¬
cause the Army is expressly excepted. That is true, Mr. Presi¬
dent. Nobody ever did contend that in and of itself that con¬
stitutional provision had application for the benefit of the ex¬
cepted classes, but, Mr. President, the Congress of the United
States, having scrupulous regard for the fact that the enlisted
men were citizens of the United States and entitled to the pro¬
tection of the law, as a substitute for that constitutional guar¬
anty gave a statutory guaranty, which is written into every
man's contract of enlistment, that if charged with crime he
should have opportunity to defend himself before a court-mar¬
tial. And, Mr. President, not only in the numerous articles of
war to which I have referred are these provisions to be found,
but they are to be found in the Army Regulations, and in the
Army Regulations with special reference to discharges without
honor.
Let me read what is provided in section 146 of the Army Regu-
7111
02
Iatlons. The Senator from Minnesota [Mr. Nelson] suggests
that I read also article 145, and I will do so:
145. A soldier, on his discharge from the service, will be given a
certificate of discharge signed by a field officer of his regiment or corps,
or by the commanding officer when no field officer is present. When
more than one field officer of the regiment or corps is present the com¬
manding officer may designate the particular field officer to perform this
duty, and in any case the commanding officer may require the discharge
to be submitted to him before delivery to the soldier.
Now, there is a provision about discharges at the end of serv¬
ice. Here is another provision. It has been claimed that it
also applies exclusively to discharges at the end of the soldier's
term of enlistment But, Mr. President, not so, for you will
observe, as I read it, how broad and unqualified its language is.
It is a provision that is framed for the express purpose of mak¬
ing it impossible for injustice to be done to the soldiers by the
exercise of the power to discharge without honor. It reads as
follows:
The character given on a discharge will be signed by the company
or detachment commander, and great care will be taken that no in¬
justice is done the soldier.
No injustice shall be done the soldier.
If the soldier's service has been honest and faithful, he will be en¬
titled to such character as will warrant his reenlistment—that is, to
character at least " good." Where the company commander deems the
service not honest and faithful, he shall, if practicable, so notify the
soldier at least thirty days prior to discharge, and shall at the same
time notify the commanding officer, who will in every such case con¬
vene a board of officers, three if practicable, to determine whether the
Boldier's service has been honest and faithful.
Now, listen to this:
The soldier will in every case be given a hearing before the hoard.
That is not all—
If the company commander is the commandihg officer, he will report
the facts to the next higher commander, who will convene the board.
The finding of the board, when approved by the convening authority,
shall be finaf. Discharge without honor on account of " service not
honest and faithful " will be given only on the approved finding of a
board of officers as herein prescribed.
Now, Mr. President, there is no pretense that anybody under¬
took in this case to follow this plain mandate of the law. Is
the President of the United States over and above the law?
Can he ignore it? Is not a law for all in this country charged
with its administration as well as for all who are subject to it?
Suppose this order had been granted by the Secretary of War.
He has precisely the same power under the statute to grant
discharges without honor that the President has, for the power
is conferred in the same sentence, in the same breath, as it were.
It is as broad for one as the other. If the Secretary of War
had ordered these men discharged no man would be heard here
or elsewhere to claim that he bad acted within the law if in
doing so he had ignored that provision.
Now, is this an idle provision? Mr. President and Senators,
let me call your attention to the fact that this section 146 has
been floating around in the Army Regulations in one form and
another ever since discharges without honor were first recog¬
nized in the Army Regulations in 1895, from time to time
changed down until 1901. From 1895 it was provided that the
company commander should notify the enlisted man that he
would discharge him without honor, and then if the enlisted man
7111
93
wanted a board of inquiry be could make application for It, and
upon such application it would be the duty of his commanding
officer to give it to him. In 1901 the Army Regulations were so
changed, while President McKinley was yet in office, as to pro¬
vide that if an enlisted man when notified of the intention to
discharge him without honor failed to demand a board of in¬
quiry he should be deemed to have waived that right. That
stood for two or three years; and then the regulation was put
into its present form—namely, that it should be the duty of the
company commander to give him notice, and then not the duty
of the man to make application for a board if he wanted it, but
the duty of the company commander to ndtify the post com¬
mander, and then the duty of the post commander, without con¬
sulting the man, to convene this board and notify the man to
appear before it to make such defense against putting that kind
of stigma upon him as he might be able to make.
Why that care on the part of Congress to change in that way
this provision? Why, Mr. President, every man knows, when
he stops to think, that the Congress of the United States was
thinking of the "helpless condition of enlisted men in most of
such instances. The Congress of the United States was think¬
ing of their lack of knowledge of legal provisions affecting their
rights, and that many men doubtless were losing their rights be¬
cause they had no knowledge with respect to their right to a
board of inquiry. To cure all that, to make it absolutely safe
that no man should be put out of the Army of the United States
with a brand of crime on him, or any other stigma on him, by a
discharge without honor until he had a day in court, the Con¬
gress of the United States approving these regulations, which
are promulgated by the President of the United States and the
Secretary of War, provided that there should be in no case
whatever any discharge without honor until the enlisted man
had been brought before a board and the court had so decided.
There is no pretense that anything of that kind was done
here. If I have argued to any purpose, I have shown that it is
the soldier's contractual right to have this inquiry and to have
this opportunity to defend, especially where he is charged with
a crime.
These regulations, as they now stand, as I have said, were in
force, I think, when every one of the men discharged at Browns¬
ville was enlisted on his last enlistment. Every one of them
then had these provisions written into his contract of enlist¬
ment.
Ah, but we are told by the Senator from Massachusetts of
what high importance it is that the President of the United
States, as Commander in Chief, should be invested with this
arbitrary power. He suggests that dire calamities may follow
if in particular instances the President is not so authorized. If
so, the responsibility would be not his, but the responsibility of
Congress.
But, Mr. President, the Supreme Court of the United States
has spoken on that point also. In the Milligan case, reported in
71 United States, the Supreme Court answered that kind of an
argument. I perhaps should say to Senators that that was a
case where Milligan was tried before a military commission
during a time of war, and it was claimed that the State of
Indiana, where he was tried, had not seceded, that war was
7111
94
not in effect there, that the courts were open, and that there
wag a denial of justice not to allow him to go into the duly
authorized and constituted courts of the country- The answer
was that the exigencies of the case were such that they were
bound to take these extraordinary and unprecedented steps as
against him. What did the Supreme Court say?
No graver question was ever considered by this court, nor one which
more nearly concerns the rights of the whole people, for it is the birth¬
right of every American citizen, when charged with, crime, to be tried
and punished according to law.
You can say the same as to the soldier, in view of the fact,
which I pointed out, that every conceivable crime is provided for
by law, only that he shall be tried before a court-martial instead
of in the civil courts.
The power of punishment is alone through the means which the laws
have provided for that purpose, and if they are ineffectual—
We are told they were ineffectual here; that here was murder,
and perjury, and a conspiracy of silence, an unknown crime
under the statutory law of the country, but nevertheless a high-
sounding one, full 6f much meaning that is reprehensible; and
that because they were guilty of all these things they were dis¬
missed from the service. Why? Because they had no testi¬
mony to prove any of these things. The Inspector-General,
General Garlington, himself reports that he thinks there was
probably a conspiracy of silence, but he is unable to find any
testimony whatever to that effect. Now, they say therefore
this legal proceeding for trial by court-martial was ineffectual,
and because he could not discover who the guilty ones were we
will turn them all out, the innocent with the guilty. The
Supreme Court says.
And if they are ineffeclaal there 5s an immunity from punishment,
no matter how great an offender the individual may be, or how much
his crimes may have shocked, the sense of justice of the country or en¬
dangered its safety. By the protection of the law human rights are
secured; withdraw that protection, and they are at the mercy of wicked
rulers or the clamor of an excited people. If there was law to justify
this military trial, it is not our province to interfere; if there was not,
it is our duty to declare the nullity of the whole proceeding. * * *
By that constitution and the laws authorized by it this question must
be determined. The provisions of that instrument on the administra¬
tion of criminal justice are too plain and direct to leave room for mis¬
construction or doubt of their true meaning.
Speaking further on this subject, the Supreme Court says:
The Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its protec¬
tion all classes of men at all times and under all circumstances. No
doctrine involving more pernicious consequences was ever invented by
the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government.
This was a time of war, when the nation was in a death
grapple for its life, a very different situation from that which
was presented at Brownsville, where the occurrence was in a
time of profound peace, when the Army had nothing else to do
of any importance to be compared with this except only to con¬
vene a court, as the law directed, and let these men appear and
have their day in court, and present their defense, and have it
ruled upon.
Now, here is something else to which I invite the serious at¬
tention of every Senator. The Supreme Court, dealing with this
claim, that because of a great exigency they had the right to
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suspend the law, says they have no such right, and then adds
this:
Such a doctrine leads directly to anarchy or despotism, but the theory
of necessity on which it is based is false, for the Government, within
the Constitution, has all the powers granted to it which are necessary
to preserve its existence. * * *
Speaking further as to the power of the President with respect
to the ordering of the commission, the court says:
They can not justify on the mandate of the President, because he is
controlled by law and has his appropriate sphere of duty, which is to
execute, not to make, the laws ; and there is " no unwritten criminal
code to which resort can be had as a source of criminal jurisdiction."
On a point I passed a few moments ago the court speaks in
Ex parte Milligan as follows :
Congress has the power not only to raise and support and govern
armies, but to declare war. It has, therefore, the power to provide by
law for carrying on war. This power necessarily extends to all legis¬
lation essential to the prosecution of war with vigor and success, ex¬
cept such as interferes with the command of the forces and the conduct
of campaigns. That power and duty belongs to the President as Com¬
mander in Chief. Both these powers are derived from the Constitution,
but neither is defined by that instrument. Their extent must be deter¬
mined by their nature and by the principles of our institutions.
The power to make the necessary laws is in Congress; the power to
execute in the President. Both powers imply many subordinate and
auxiliary powers. Each includes all authority essential to its due exer¬
cise. But neither can the President, in war more than in peace, in¬
trude upon the proper authority of Congress, nor Congress upon the
proper authority of the President. Both are servants of the people,
whose will is expressed in the fundamental law. Congress can not di¬
rect the conduct of campaigns, nor can the President or any commander
under him, without the sanction of Congress, institute tribunals for the
trial and punishment of offenses, either of soldiers or civilians, unless in
cases of a controlling necessity, which justifies what it compels, or at
least insures acts of indemnity from the justice of the legislature.
Now, Mr. President, we are told-by the Senator from Massa¬
chusetts of some precedents. He tells us of what General Lee
did and of what General Grant did. Well, the Judge-Advocate-
General, happily for my purpose, has also told us of those prece¬
dents. Here is what the JudgerAdvocate-General says in Senate
Document 155, in a statement submitted to us by the President
as an exhibit to his message. The Judge-Advocate-General says,
on page 311:
The Secretary to the President, in a letter dated December 1, 1906,
advises the Secretary of War that the President would like to have him
" look up any precedents (Lee's or others) for the action taken in dis¬
charging the battalion of the Twenty-fifth Infantry, and if there exist
any sucii, send them to the President."
A protracted examination of the official records has thus far resulted
In failure to discover a precedent in the Regular Army for the discharge
of those members of three companies of the Twenty-fifth Infantry who
were present on the night of August 13, 1906, when an affray in the
city of Brownsville took place.
Without reading it, I will ask to have incorporated what he
says about the Lee case, which he discusses to the extent of a
page or more, concluding his discussion of it with the following:
In view of the foregoing statement, it will be seen that the action
taken in 1860 in the case of Company G, Eighth Infantry, is not a
precedent for the action taken in 1906 in the case of members of the
Twenty-fifth Infantry.
The matter referred to is as follows:
The case referred to as " Lee's " by the Secretary to the President
Is undoubtedly the case of Company G, Eighth Infantry, concerning
which an interview with Mr. J. C. Hesse was recently published in
the Washington Post. In that interview it was stated that, by order
of Lieut. Col. Eobert E. Lee, the members of Company Q were trans-
'7111
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ferred to other companies of the same regiment and prohibited from
reenlisting on the expiration of the terms of enlistment under which
they were then serving. A search for papers containing details of
the occurrence has resulted in failure to find them, the original papers
having been returned in 1800 to the Department of Texas, where
they were undoubtedly lost or destroyed at the time of the surrender of
the troops in that department to the Confederate military authorities.
The records show, however, that on March 18, 18G0, members of
Company G, Eighth Infantry, at Fort Davis, Tex., took from the
guardhouse a citizen who was confined there and, without opposition
from the guard, hanged him to a tree near by until he was dead. The
records also show that by order of the regimental commander twenty-
seven men of this company were detached from the company and at¬
tached to other companies of the regiment, " to restore their discipline,"
and that twelve other men of the company were transferred to other
companies by order of the regimental commander without the cause of
transfer being stated. The regimental orders are not on file, and it
is impossible to state whether the reenlistment of these transferred men
was or was not prohibited; but as the records show that some of
the transferred men did reenlist, it Is evident that if an order pro¬
hibiting their reenlistment was given it was not carried into effect.
In view of the foregoing statement, it will be seen that the action
taken in 1860 in the case of Company G, Eighth Infantry, is not a
precedent for the action taken in 1906 in the case of members of the
Twenty-fifth Infantry.
Mr. LODGE. Will the Senator allow me?
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Massachusetts?
Mr. FORAKER. Certainly.
Mr. LODGE. There are two Lee cases.
Mr. FORAKER. Yes; I am aware of that.
Mr. LODGE. The one that the Senator refers to is tha
Regular Army case.
Mr. FORAKER. Yes.
Mr. LODGE. There are two Lee cases that I cited, and I
cited from both Grant and Lee.
Mr. FORAKER. The Senator from Massachusetts cited this
identical case, the case of the Eighth Infantry company, happen¬
ing before the war.
Mr. LODGE. I did, and I cited also a case occurring during
the war.
Mr. FORAKER. I am coming to the other case. I can not
speak of both at the same time.
Mr. LODGE. I see that.
Mr. FORAKER. I am dealing now with the first citation.
The Senator cited it as a precedent for what the President did.
The President himself cites it as a precedent, notwithstand-1
ing what the Judge-Advocate-General says—that it is not a
precedent. Anybody reading it can see it is not a precedent.
Why anybody should say it was a precedent, in view of such
plain statements and in view of the fact patent on the face of
the record that it can not by any possibility be a precedent, I
do not know.
Now, the other was a case where in time of war General Lee '
dismissed a whole regiment because they had shown cowardice
In every battle in which they had been engaged.
Now, Mr. President, I do not know what the powers of Gen¬
eral Lee were. They were derived from the constitution of the
Confederate States. They might have been broader, but whether
they were or not is immaterial, in view of the fact that it was a
time of war, and it is the rule running as an exception through
all cases that where it is necessary to the protection of the
army such radical orders and steps as these may be made and
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taken. That was one of the necessities of war. Will some-
body find me a case where one individual has been dismissed
in time of peace without honor, in the face of the army regu¬
lation giving him a right to trial, and yet denying it to him?
Mr. President, that reminds me of something I ought to have
spoken of a moment ago. The President is careful to point out
in his message that he discharged these men not as organiza¬
tions. He did not break up the companies. He discharged each
and every one of the members of these companies, in so far as
he discharged them, by name—each individual by himself.
Each individual by himself being so discharged, each individual
by himself had a right, without any question, for that makes it
conclusive, placing him right within the terms of it, to the ben¬
efit of the one hundred and forty-sixth regulation of the Army,
that he should have a board of inquiry, and he should have it
without asking for it; that it should be the duty of his supe¬
riors to know of his rights, advise him of his rights, and protect
him in his rights.
So, too, it is with the other precedents that have been estab¬
lished. They are all in the volunteer service and they are all
during a time of war. Take the first here that is cited as a
precedent:
The members of Company A, First Eastern Shore Maryland Infantry
Volunteers, were mustered out of service August 16, 1862, by order of
the general commanding the Eighth Army Corps because they refused
to serve in Virginia.
Now, when you run down the facts you find out they were not
dishonorably discharged. They were honorably discharged.
They said they had been.enlisted to serve at home, in Maryland,
and not to go away from their homes down into Virginia, to
invade the sacred soil of their beloved sister State.
They wanted to stay at home and render their service, aiid
they were told, " If you will not go, we will muster you out."
They said, " Very well, muster us out;" and the record shows
that they were honorably discharged and that they nearly all
enlisted afterwards in other companies.
Here is a New Jersey company. I have a letter about that
company, but I will not stop to read it:
The members of Company G, Tenth New Jersey Infantry Volunteers,
were discharged without trial April 8, 1862, pursuant to orders from
the War Department, because they refused to do duty as infantry,
claiming that they were deceived into the belief that they were entering
the cavalry branch when they enlisted.
How discharged? Without honor? No; honorably discharged.
They were enlisted as cavalrymen and brought down to Wash¬
ington.
Mr. KEAN. And every one of them reenlisted and served
during the war.
Mr. FORAKER. I was not familiar with that fact. I thank
the Senator from New Jersey for making me acquainted with
it They said: " We enlisted as cavalry; we will not go into
this infantry regiment. We did not come here to serve in that
capacity." They were told: " Very well; we will muster you
out." And they were mustered out, and then, as the Senator from
New Jersey has said, every one of them probably enlisted in some
other company and served through to the end of the war.
Now I come to the Sixtieth Ohio, and I am going to make a
few remarks -about that. Mr. President, will somebody tell me
7111 7
08
why the Sixtieth Ohio was cited as a precedent for what was
done in the Brownsville case? No; nobody will tell me, but I
know, and every Senator here knows, why it was cited. Now, I
will show the injustice done to as brave and gallant a regiment
as ever wore the uniform or carried arms in defense of the
national flag. Since that matter came up here in the Senate I
have been flooded with letters from surviving members of that
regiment. They have come to me not only from those residing in
Ohio, but from all directions. I have one here, which I will first
read. It comes from Caldwell, Kans. I read it because it is
from a lawyer who knows how to state the facts, and who has
stated them in a logical, intelligent way. He says:
Caldwell, Kans., Christmas, 1906.
Hon. J. B. Foraker,
United States Senate, Washington, D. G.
Dear Sir : I see by the papers you are having some issue with the
President in regard to the discharge of the Sixtieth Ohio Volunteer
Infantry.
You will remember me. I was born in the same county with you—
Highland—and I was a member of Company B, Sixtieth Ohio Volunteer
Infantry. This regiment was organized by Col. William H. Trimble in
the fall of 1861, and also allow me to say, by way of parenthesis, a
braver man never sat astride a horse.
Now, as to its organization, in no place in the records of this regi¬
ment can you find, in my opinion, anything to show that it was ever
mustered into the United States service.
I wrote him in regard to that, telling him I understood that
the record did show that they had been mustered in, and in
answer he wrote me a letter from which I quote what he said
on that point, as follows:
I know the records show at Columbus that we were mustered in the
United States service on the 25th day of February, 1862, by Captain
Dodd, but none of us ever knew of it, not even our company officers,
as all of our discharges (mine the same) read we were discharged by
reason of expiration of term of service. Some years after that in con¬
versation with an officer of that regiment he informed me he had un¬
derstood that Captain Dodd had come there at that time and had con¬
sulted the field officers, and they all expressed the opinion it would
create a furore to muster the regiment at that time, and he just simply
signed the muster rolls privately and went away.
I do not know what the facts are about that. It was a very
unusual transaction, if it occurred; but the explanation for it is
furnished in the fact that those men were enlisted, as I will now
proceed to show by reading from this letter, during the fall of
1861, in Highland County and adjacent counties in the State of
Ohio, that they were sworn into the service, taken into camp,
put under discipline, and every man of them supposed that then
his enlistment had already commenced, and he dated the be¬
ginning of his service from the time he put on the uniform and
became a soldier. But now I will read what he says:
The men of the different companies were enlisted by recruiting officers,
clothed only with authority to receive recruits and organize a company.
The men were enlisted and sworn in by these recruiting officers. This
regiment was enlisted for one year. There was some question as to
when our time would expire, owing to the different dates at which en¬
listments were made. I, for instance, enlisted in October, 1861.
The regiment went into camp shortly after that near Hillsboro, and
remained there until about the 1st of February, when it was sent to
Gallipolis, where it remained until the following May, when we joined
Fremont at New Creek, Va. We followed him in his Virginia campaign
in West Virginia, and crossed the mountains with him and fought Jack-
Son at Cottontown, Strasburg, Cross Keys, Harrisonburg, and Port Re¬
public. We then moved down the valley gradually until in July, when
we went into camp at Winchester.
When Lee went into Maryland in 18C2 to fight the battles of South
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Mountain and Antietam, we evacuated Winchester and went to Harpers
Ferry, where at the time of the battles mentioned the Confederates
pounced upon us with overpowering force, with the result that our en¬
tire force was surrendered by Col. D. S. Miles, who was in command.
He was a Regular Army officer.
At no time in all these engagements did our regiment ever show a
white feather, while on the other hand the One hundred and twenty-
sixth New York, which was an important part of the force assigned to
hold Maryland Heights, the key of our position, became panic-stricken
and broke and ran from their place in line, with the result that after
four days of defense we were surrendered, but at once paroled upon con¬
dition that " we were not to bear arms against the Confederate States
of America, nor do any garrison, guard, or constabulary duty," as
nearly as I can remember the language, " until exchanged."
I have examined the record, and his language is almost ab¬
solutely accurate.
We were sent to Camp Douglas, at Chicago. General Tyler was in
command. He had there a lot of Confederate prisoners, and one of
the first things required of us was to take guns and stand guard over
these prisoners.
This we regarded as a violation of our paroles, and for that reason
refused to obey the order. The trouble at once commenced. All the
Harpers Ferry troops were in the same situation—the New York regi¬
ments, the Ninth Vermont, and the Thirty-second Ohio and other com¬
mands, as well as the Sixtieth Ohio.
One thing seemed to lead to another, but so far as I can recall, no
one of the regiments was any worse than the others. All were com¬
pelled, on account of the conditions of their parole, to be kept without
arms and in idleness.
The Sixtieth Ohio had the additional grievance growing out of the
fact that the terms of most of the men had expired, as they claimed.
They naturally did not want to be kept there under discipline when
they knew, as everybody knew, they could not be again sent to the
field.
They were no more disorganized than any other regiments, and they
were no more mutinous or insubordinate, and so far as being worthless
is concerned, they were worthless in no other sense than that their
times were out and that there was nothing they could do or be al¬
lowed to do. They' were finally discharged, but they were honorably
discharged, and I never before heard that anybody claimed that there
was anything discreditable in their record. As soon as they were ex¬
changed many of them reenlisted and all were good soldiers to the
end.
I send you this as the testimony of one who was a member of the
regiment and who participated in all that experience. I send it not
alone on account of the survivors, but also and more particularly on
account of the dead comrades of that splendid regiment.
Inasmuch as I have not met you for many years, I refer you to
Senator Long and the Hon. Victor Murdoch:—
The Member of Congress from his district—
who are both personal friends.
Very truly, yours, etc. C. C. Ridings.
I remember him very well—a man of most excellent family.
I did not know he was still living, but this attack on the honor
of his regiment brought him to my attention in that way.
I have another letter here which I want to read. First, how¬
ever, I have here a discharge that one of the members of that
regiment sent me. I want that to go into the Record as I
read it:
To all whom it may concern:
Know ye that Zebulin Ford, a private of Captain George B. Gardner's
company, Sixtieth Regiment of Ohio Volunteer Infantry, who was en¬
rolled on the 16th day of November, 1861, to serve one year, is hereby
discharged from the service of the United States this 10th day of
November, 1862, at Chicago, 111., by reason of regiment being honorably
mustered out of service.
No objection to his reenlistment is known to exist.
Said Zebulin Ford was born in Pickaway County, in the State of
7111
100
Ohio, is 21 years of age, 5 feet 8 inches high, fair complexion, blue eyes,
brown hair, and by occupation when enrolled a farmer.
Given at Chicago, 111., this 10th day of November, 1862.
Geo. B. Gardner,
Captain Company O,
' Sixtieth Regiment Ohio Volunteer Infantry.
I have here one more letter. It is a letter sent me by a sur¬
vivor of the Thirty-second Ohio. In the battle at Harpers
Ferry there were not only the Sixtieth Ohio, but also the Thirty-
second Ohio and the Eighty-seventh Ohio—three Ohio regiments.
While there were three Ohio regiments, there were also six
New York regiments, all surrendered together. One of them,
as I read a moment ago, was unfortunate enough to become
panic stricken and to run. I do not mention that to the dis¬
credit of the regiment, but only because I am compelled to re¬
sort to history and take it as I find it. The regiment, I am
happy to say, made afterwards a splendid record. It became
one of the best regiments in the Union Army. There was noth¬
ing remarkable iu the fact that, being suddenly attacked, as
they were, by Stonewall Jackson's veterans in that the first
battle in which they were engaged, they should have had the
misfortune to make such a record as they did. I have here a
history of the civil war, in which it is stated that they did mis¬
behave, to the great chagrin and mortification of all the other
New York regiments. But the unfortunate thing about it was
that they happened, with their comrade regiments, to be holding
the key to Harpers Ferry—Maryland Heights—and when they
broke and fled the enemy swept through the space thus made
and in a moment were in possession of the command of that
position, and surrender necessarily followed. It was not the
fault of the Sixtieth Ohio, not the fault of any Ohio regiment;
perhaps not in a way to be criticised for it the fault of this regi¬
ment. It might have been the fault of the officers.
Now, I have the following letter from a survivor of the
Thirty-second Ohio. I have here also the history from which
he quotes, but I will read his letter. He says:
Van Wert, Ohio, December £6, 1906.
Hon. J. B. Fobaker,
Senator, Washington, D. 0.
Dear Sir : I see from correspondence introduced as evidence that the
Sixtieth Regiment Ohio Infantry was discharged because it had become
disorganized and mutinous while at Camp Douglas as paroled prisoners.
This was a one-year regiment, whose term of service had expired, and
when we take that into account, the bad treatment received at the hands
of the Government in sending them out of their own State to a camp
in another State, where they were treated more like malefactors than
paroled prisoners, they were not so much to be blamed or censured as
were the regiments who had two years or more yet to serve. The
Thirty-second Regiment Ohio Infantry—of which I was a member—was
among that batch of Harpers Ferry prisoners taken to Camp Douglas.
I will now quote from the regimental history, which gives some of its
experiences and happenings while there:
" There was much disappointment expressed by the regiment in being
hurried through the State to a camp in another State. The fact is,
those who directed this arrangement made a mistake. The Thirty-
second should have been sent to a camp in its own State, promptly
Eaid the money due them, and paroled until exchanged. This would
ave given satisfaction and would have been appreciated by the entire
regiment. Instead, they were placed in Camp Douglas and strictly
guarded, all privileges curtailed, and although they had been informed
they would be promptly paid on reaching Camp Douglas, yet all pay
was withheld and in every respect the service at Camp Douglas waa
much more disagreeable than at the front. They were ordered to do
camp guard duty. The officers made the details and under command
of their respective orderlies they reported at guard mount; but when
7111
101
other officers attempted to force arms Into their hands they refused,
and giving the guns a toss stood them hutts up, the bayonet buried in
the ground. The authorities ordered them to confine themselves to
their quarters, but they came and went at will. The regulars were
ordered out, the regiment formed line, armed with brickbats—
The Thirty-second Ohio armed with brickbats! This is not
the Sixtieth Ohio. I want simply to show what other regiments
did—
" The regulars were ordered to load with ball, and they did so, the of-
fleer commanding the regulars ordering the Thirty-second to their quar¬
ters, but they did not move. The condition was critical and a colli¬
sion seemed imminent. At this moment a shout was heard, and look¬
ing to the westward the head of a column of troops was seen coming
down on the flank of the regulars on double quick. It was the Thirty-
ninth New York. That regiment had heard of the situation in the camp
of the Thirty-second and determined to take a hand with their old com¬
rades in suppressing the regulars—
The Thirty-ninth New York was captured at Harpers Ferry
along with the Thirty-second Ohio and the Sixtieth Ohio—
" The latter, seeing that intimidation and force were alike imprac¬
ticable, retreated in good order, followed by the jeers and groans of the
Thirty-second Ohio and the Thirty-ninth New York."
Then he goes on and describes how later they were exchanged.
The regiment was then called back to the fi'ont and reorganized;
and from that time on to the end no regiment in the service made
a better record than the Thirty-second Ohio. The Thirty-ninth
New York made a like good record, and so did every other regi¬
ment that was captured on that unfortunate occasion.
But, Mr. President, the point to which I want to call attention
Is that the complaint of General Tyler shows on its face, accord¬
ing to the letter caused to be published by the War Department,
that the complaint of these men was that it would be a violation
of their paroles to require them to do this duty, and that their
time was out, more than one year having expired since they
were enlisted. In that same letter General Tyler says General
Halleck was of the opinion that the men were right about their
contention, and he was of the opinion that their time was out,
at least nine-tenths of them.
How were they discharged? I have read one of the dis¬
charges. I might read many more. I might cite much other
evidence. They were discharged, Mr. President, honorably.
The regiment was mustered out because it had reached the end
of its service, and no man in that regiment ever heard that there
wag such a complaint against their record until it was sent here
to this body in an official communication signed by the Presi¬
dent of the United States.
I felt that it was my duty—and I therefore make no apology
for taking the time of the Senate on that account—to set forth
as an act of justice to these men, most of whom at least I well
knew, the record that they actually made.
Mr. TILLMAN. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from South Carolina?
Mr. FORAKER. Certainly.
Mr. TILLMAN. Mr. President, I was forced to be absent
when the Senator from Ohio made his speech on this subject be¬
fore the holidays. Perhaps he has already indicated, but I did
not understand him a moment ago, as to how it is that every
Seoator here knows why this regiment wns picked nut to be
pilloried, as it has been, before the country as a lot of cowards
7111
102
or something else who deserved dishonorable discharges. I
would be glad if the Senator would inform us what was the
matter, what was the motive, what was the animus of it?
Mr. FORAKER. Mr. President, I am not obliged to tell the
Senator everything I know, especially when I know that the
Senator knows. [Laughter.]
Mr. TILLMAN. If the Senator from South Carolina knew he
certainly would not ask the question. It is not a mere play of
words. The Senator owes it to the country, which is possibly
not as well informed as Senators are, to let it know why this
regiment has been disgraced, as it were, when it did not deserve
it.
Mr. FORAKER. It is such a delightful experience to keep
something back that I think I will disappoint the Senator to¬
night. [Laughter.]
I might speak at much greater length
Mr. TILLMAN. I again appeal to the Senator if he will not
tell us what his opinion on the subject is.
Mr. FORAKER. It is very late now, and I do not want to de¬
tain the Senate any longer.
Mr. TILLMAN. Will the Senator answer this question: I
have been informed since I rose that the Senator himself was a
member of this regiment at some time.
Mr. FORAKER. No; the Senator is mistaken about that.
No wonder somebody got that impression, because some of the
newspapers published that statement. I said when calling at¬
tention to this regiment on a previous occasion that I knew the
regiment well; that I had tried to enlist in it in 1861, but they
would not accept me. I was only 15 years of age at that time,
so I had to stay at home another year. In 1862 I enlisted in
the Eighty-ninth Ohio, the only regiment in which I ever served.
I served in that from 1862 until the end of the war.
Mr. TILLMAN. Then the Senator never did belong to the
Sixtieth Ohio?
Mr. FORAKER. I never belonged to the Sixtieth Ohio, but
if I had belonged to it I would be as proud of it as these men
are, and I would as indignantly resent any attempt to smirch
their splendid records.
Mr. TILLMAN. After that I have nothing more to say, ex¬
cept that possibly somebody in the War Department may have
thought the Senator did get in the regiment, and that was the
reason why they brought it out. [Laughter.]
Mr. FORAKER. I do not know that anybody in the War
Department thought of that, but it is possible that somebody in
the War Department, or some other place, remembered that the
Senator from Ohio lived in Ohio at that time. [Laughter.]
Mr. President, it is getting late, and Senators are asking me
to forbear any further discussion this evening. I think, with¬
out concluding, I will stop at this point, with notice to the Sen¬
ate that I may resume my remarks briefly to-morrow morning.
I am almost through, if not entirely; but I want to look over
what material I have, and perhaps I may put something more
in the Recokd.
7111
JANUARY U, 1907.
The Senate having received a message from the Fresident of the
United States, transmiting the report of Assistant Attorney-General
Milton D. Purdy on the affray at Brownsville, Texas—
Mr. FORAKER said:
Mr. President : I am not going to make a speech, but I want
to make a few remarks, if I may be allowed to do so.
What I want to say, Mr. President, is that this testimony,
whatever it may be, whatever it may amount to—and from the
President's message we are bound to presume that it amounts to
a great deal, as he says it is conclusive—but whatever it may
be, whatever it may amount to, it does not remove the objec¬
tion that I have had to this proceeding from the beginning.
What I have been trying to contend for—and I hope I shall
be successful in that—is to secure a hearing for the men who
are charged with these serious crimes. This testimony has
been taken, as the other testimony was, ex parte, behind closed
doors, as the newspapers state, without anybody representing
the men most interested to cross-examine or to have a word to
say about it. I do not complain of that; but I only call atten¬
tion to the fact that it has been taken in that way as a reason
why I shall not desist, notwithstanding what the President
says as to the character of it, from pressing the resolution that
I have offered so as to have an investigation of the subject
where everybody can be heard, and especially the men who are
charged with the crimes of murder and perjury and conspiracy,
to the end that if they can establish any fact in their favor
they may have an opportunity to do so.
I do not propose, even if I were familiar with this testimony,
to discuss the case upon its merits at this time or at any time
before there has been an investigation, if we shall order one;
for I believe in discussing the case after it has been properly
made and made in accordance with the spirit of American in¬
stitutions, after every man, no matter how humble he may be,
has had an opportunity to be heard—to have a day in court, if
you please. When that time comes I shall have more to say
about this particular testimony as well as the other testimony
that has so far been adduced, together with such testimony as
the committee may take.
7111 103
JANUARY 16, 1907.
Mr. FORAKER. Mr. President, I take tlio floor at this time
because, so far as I am aware, there is no other Senator who
desires to speak to the pending resolution. If there be any
Senator who desires to discuss it, I would prefer that he speak
before I speak, for I trust that I will be allowed, under all the
circumstances, to close the debate. That, I suppose, according to
parliamentary usage, is my right.
Mr. CLAPP. Will the Senator from Ohio yield to me to make
a statement?
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Minnesota?
Mr. FORAKER. Certainly.
Mr. CLAPP. The Senator from North Dakota [Mr. McCum-
beb] stated that he desired to be heard. I merely mention it
for the Senator's information.
Mr. CULBERSON. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Texas?
Mr. FORAKER. Certainly.
Mr. CULBERSON. I desire to say, in answer to the sug¬
gestion of the Senator from Ohio, that I suppose everyone will
concede the propriety of his closing the discussion on this mat¬
ter. Nevertheless, if he should say anything Jn the speech
which he is about to deliver that calls for some answer, 1
imagine there will be no objection to its being made.
Mr. FORAKER. Certainly not, and I am very liable to do
that. Somehow or other I feel just as though I might.
Mr. CULBERSON. We still have the power to close.
Mr. FORAKER. Mr. President, I wish to commence where
the Senator from Pennsylvania [Mr. Knox] left off. His clos¬
ing remarks were in the nature of a criticism upon the form of
the resolution that is under consideration. This resolution, No.
208. is as follows:
Resolved, That the Committee on Military Affairs be, and hereby is,
authorized to take such further testimony as may be necessary to estab¬
lish the facts connected with the discharge of members of Companies
B, C, and D, Twenty-fifth United States Infantry, and that it be, and
hereby is, authorized to send for persons and papers and administer
oaths, and report thereon, by bill or otherwise.
There is another paragraph which I accepted, offered by the
Senator from Texas [Mr. Culbekson], authorizing the commit¬
tee, or any subcommittee it may appoint, to sit at Brownsville
if deemed advisable, but I have read all that I care to have go
into the Record.
I call attention to the fact—and in making this statement I
104 7111
105
am undertaking not only to answer the Senator from Pennsyl¬
vania, but also other Senators who have spoken to the same
effect—that what is called for by this resolution is an investi¬
gation of facts—nothing else. There is not by this resolution
any question of the power of the Chief Executive raised. There
can not be under the resolution or within the scope of it any
criticism whatever of anything the President of the United
States has done. I have no purpose of that kind. I do not
understand how Senators can imagine that there is within the
scope of the proposed resolution any possibility for this investi¬
gation to take such a course or such a range as that it would
involve anything of that nature. It calls for facts—facts con¬
nected with the discharge of the soldiers.
Why do I mention the discharge? That is an executive act,
Senators say. I say discharge, because it is the discharge about
which we are all concerned. If the discharge of these soldiers
had not been a result of the affray at Brownsville, there would
not have been any thought on the part of anybody of having
an investigation of the facts connected with the affray at
Brownsville.
But, Mr. President, as I have said on another occasion, I am
not particular about the language. I am willing to accept any
language that will satisfy Senators by which the committee will
be authorized to go to the bottom of this matter and establish
the truth, if they can establish it, and by which, in undertaking
to discharge that high and important duty, these men who
stand arraigned before the country as criminals will have a
chance to be heard in their own defense. I am more concerned
about that than I am to know whose resolution is adopted or
what shall be the language employed in framing that resolution.
But, Mr. President, since when did Senators become possessed
of this sensitiveness on this point? This is not the first resolu¬
tion we have had under consideration in the Senate in regard
to this matter during the present session. I call attention to
two resolutions, for both of which I think every Senator here
perhaps voted, and a number of Senators who are now tak¬
ing exception to this language spoke in support of them.
In the first place, we adopted on the 6th day of December
a resolution offered by the Senator from Pennsylvania [Mr.
Penkose]. I do not know what the truth is, but the papers
announced that that resolution has met with the approval of the
President of the United States, that it had been submitted to
him, and that the Senator offering it was authorized to say to
the Senate that the President would be glad to have us adopt
it Now, what does it say?
Resolved, That the President be requested to communicate to the
Senate, if not incompatible with the public interests, full information
bearing upon the recent order dismissing from the military service of
the United States three companies of the Twenty-fifth Regiment of In¬
fantry, United States troops (colored).
Nobody took exception to that as calling on the President for
information in regard to a purely executive act. Nobody took
occasion when that resolution was under consideration to say,
" What is the use to pass it, for it is beyond the control of the
Congress, and we can not do anything about it, no matter what
the answer may be."
That is not the only resolution which we then had under con¬
sideration. Senators will remember that I offered a resolution
7111
106
which was adopted on that same day. I read just the com¬
mencement of it. It is as follows :
Resolved, That the Secretary of War be. and he is hereby, directed
to furnish the Senate copies of all official letters, telegrams, reports,
orders, and so forth, filed in the War Department in connection with
the recent dischmye of thp enlisted men of Companies B, C, and D,
Twenty-fifth United States Infantry.
Did anybody take exception to the form of that resolution?
No one did. On the contrary, the distinguished Senator from
Wisconsin [Mr. Spoonek] spoke in support of that resolution.
He spoke on both of these resolutions, for they were both under
consideration at the same time. I quote from the Senator's
language, as employed on that occasion:
Mr. President, I am opposed to the resolution offered by the Sen¬
ator from Pennsylvania. My opposition to it is based entirely upon
the form of it. This resolution does not, so far as the subject-matter
goes, fall within the class of inquiries which the Senate has ever been
accustomed to address to the President. It implies on its face, Mr.
President, a doubt here which I think does not exist—as to whether
the Senate is of right entitlea to all the facts relating to the discharge
of the three named companies or not.
Further along in the course of his remarks he used this
language:
Mr. President, in time of peace as to matters relating to the organi¬
zation and the administration of the Army there can be no secrecy. It
is purely domestic public business, as to which the Congress has a right
to know. I should be very much disappointed if in a matter of this
kind the Senate should address the inquiry to the President, coupled,
as it must be, with the suggestion that we doubt our right to the in¬
formation. I think it is a bad precedent to establish. In such matters
I think we ought to maintain the practice which, so far as I remember,
hitherto has been unbroken. Therefore I am opposed to the form of
the resolution of the Senator from Pennsylvania. I am in favor of
the form of the resolution of the Senator from Ohio.
Mr. SrOONER. Will the Senator from Ohio allow me a
word?
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Seuator from Wisconsin?
Mr. FORAKER. Certainly.
Mr. SPOONEIl. I would not, if I had the power, change a
word the Senator has read.
Mr. FORAKER. I am not surprised that the Senator says
that. Of course he would not. Why should he? What I am
calling attention to is the fact that no Senator criticised the
resolution because it called for facts relating to and connected
with the discharge of the members of these three companies.
The facts we wanted were facts connected with the discharge.
We did not care anything about the affray at Brownsville, ex¬
cept only as the affray at Brownsville made up facts that had
led to that discharge. That is why we wanted them. Nobody
thought then to say, " Oh, this is an Executive act, about which
the Congress has no right to concern itself, because when you
get the facts you can not do anything about them."
Now, it is not to be wondered at that when I came to draft
the present resolution I should have employed precisely the
same language that stood muster on these two former occa¬
sions. I did not know anybody would raise any question about
it. I was not offering a resolution here calling for anything
that criticised the President; nothing that called in question
his exercise of power. I was calling for the facts. What for?
To criticise the President, as the Senator from Idaho [Mr.
Heybukn] said a moment ago? I have not criticised the
7111
107
President I have been trying to defend the President. I
have said I thought the President had been imposed upon, and
I think so still, and I think before we are done with this in¬
vestigation the President himself will agree with me in that
particular. But that is all foreign to our present purpose. I
am not going to be drawn into any discussion of that at this
time.
Why, then, did I offer the resolution? What was the Presi¬
dent's order? I had that in mind. The President's order was
that these men should be by name discharged—practically all
the members of these three companies. But he conceded, as
everybody else conceded who had to do with it officially, that
in all probability there were quite a number of these men who
had not only not participated in the shooting up of Brownsville,
but who also had no knowledge whatever about it t6 withhold
from the inspection officers or from anybody else. And the
President, in recognition of the fact that he might be imposing
a great hardship, as we are now told we must call it, upon in¬
nocent men, said: " I will undo and relieve the hardship so
far as I can in behalf of aDy of these men whom I have just
discharged who will come forward and by satisfactory evi¬
dence show that they are innocent of the shooting, innocent of
perjury, and innocent of withholding knowledge of which it
was thought they might have been possessed."
Where and how are these men who claim to be innocent—and
they all claim, under oath, to be innocent—to appear and by
satisfactory evidence satisfy somebody who is authorized to
take that evidence that they are innocent? Is there any place
so competent for them to be given an opportunity to appear as
before this great committee, the Committee on Military Af¬
fairs, consisting of thirteen men, in the judgment of every
one of whom the Senate would have confidence and in the judg¬
ment of every one of whom, I think, the President of the
United States would have entire confidence.
Suppose a case: If we pass this resolution, witnesses will be
called; the whole matter will be gone into. If it should turn
out, as I think I know in advance that it will, that this and that
and the other soldier, perhaps a hundred of them, or even
more of them, maybe all of them, will satisfy the committee
that they had no part in the shooting and had no guilty knowl¬
edge to withhold, are they not then within the terms of the
President's order? Is it not a high duty for us to give them an
opportunity to place themselves where the President says he
will extend a helping hand to them if they can so place them¬
selves?
So, Mr. President, it is not the purpose of the investigation
to embarrass anybody or criticise anybody. And after the
long service I have had here I do not like the insinuation that
goes with some of these remarks that have been made that
there is a purpose other than that which should be the purpose
of the Senate acting only with reference to the public good
and to do justice to men who certainly need the help which it is
within our power possibly to extend them. Such were the pur¬
poses of the resolution, and I employed the language I did only
because it seemed appropriate; because it had been employed
twice before in the other resolutions upon which I have com¬
mented.
7111
108
But, as I said, I have no disposition to stick in the bark
about this matter. What I want is that we may open the door
to these men to come in, if they want to, and offer whatever evi¬
dence they may be able to command to show that they are, as
they claim to be, innocent of this awful crime. If they can
not show that, the clemency of the President in the respect to
which I have called attention will not avail, but if they can
show that, I would not believe that the President of the United
States would hesitate one moment to do all in his power to re¬
instate the men as to whom, by a unanimous vote, we will as¬
sume, of our committee, we should certify back to this body
" we have fully examined into this case, and we believe that
A B and C D and E F and G H, and so on down through
the whole list, as to whom we may be able to make such a cer¬
tificate, are entirely innocent of having participated in the
shooting or of having withheld evidence. We believe their serv¬
ice has been honest and faithful, and we recommend that the
President withdraw so much of his order as debars them from
reenlisting, and that the Congress of the United States pass a
bill restoring them, if we have that power, to their place in
the Army and to all things they have lost in consequence of
this order." Would not the President of the United States be
rejoiced if in that way, through our help, a hundred of these
men could be relieved of this awtul stigma which he, by his
Executive order, has placed upon them? If he would not, I
do not know the man. If he would not rejoice, he is the only
man in this country, in my opinion, who would not. I think
he would be rejoiced in such a case.
But now, Mr. President, to meet the differing views of Sen¬
ators, I offer the resolution I sent to the desk, which I under¬
stand will meet their objections, as a modification of the reso¬
lution that is under consideration, and I ask that it may be read
and printed in the Record.
The PRESIDING OFFICER (Mr. Dick in the chair). The
resolution will be read.
The Secretary read as follows:
Resolved,, That the Committee on Military Affairs is hereby author¬
ized and directed, by subcommittee or otherwise, to take and have
printed testimony for the purpose of ascertaining all the facts with
reference to or connected with the affray at Brownsville, Tex., on the
night of August 13—14, 1906. Said committee is authorized to send
for persons and papers, to administer oaths, to sit during sessions of
the Senate, and, if deemed advisable, at Brownsville or elsewhere, the
expenses of the investigation to be paid from the contingent fund of
the Senate.
Mr. SPOONER. Will the Senator from Ohio yield to me for
a moment?
Mr. FORAKER. Certainly.
Mr. SPOONER. Is it the desire of the Senator to proceed
with his remarks at this time or to take up the resolution to¬
morrow and make his speech?
Mr. ALDRICH (to Mr. Spooner). To-morrow there are the
eulogies on the late Senator Bate.
Mr. SPOONER. Then to-morrow the pending resolution will
not be taken up anyway.
Mr. FORAKER. Let me say just one word before I take up
this other matter. I want to say it in this connection, and then
I will yield to the Senator.
I desire to say that I offer this modification with the under-
7111
109
standing that it Is not to be contended by anybody that it is
capable of a construction that will limit or restrain or restrict
our inquiry as to any facts connected with any of these impor¬
tant transactions.
Now, as to the Senator's suggestion that I stop here until to¬
morrow morning, I think it is a good suggestion, and I believe
I shall act upon it I see it is late.
7111
JANUARY 17, 1907.
The VICE-PRESIDENT. If there are no concurrent or other
resolutions, the morning business is closed. The Chair lays be¬
fore the Senate a resolution, which will be read.
The Secretary read the resolution submitted by Mr. Fobakeb,
as modified by him yesterday, as follows:
Resolved, That the Committee on Military Affairs is hereby author¬
ized and directed, by subcommittee or otherwise, to take and have
printed testimony for the purpose of ascertaining all the facts with
reference to or connected with the affray at Brownsville, Tex., on the
night of August 13-14, 1906. Said committee is authorized to send
for persons and papers, to administer oaths, to sit during sessions of
the Senate, and, if deemed advisable, at Brownsville or elsewhere, the
expenses of the investigation to be paid from the contingent fund of
the Senate.
Mr. FORAKER rose.
Mr. BLACKBURN. Mr. President, I will ask the courtesy of
the Senator from Ohio long enough to say that in his speech
yesterday afternoon the Senator stated that it was his desire
to close this debate. To that, Mr. President, I have no objection.
But it is my purpose to offer an amendment to the resolution of
the Senator from Ohio, and in that connection I should say that
it is not my purpose to discuss the amendment at any consider¬
able length, nor, in fact, to go beyond a statement of its intent
and scope. It seems to me, in the light of the Senator's declara¬
tion and expressed wish, it is proper for me to give him notice
of this purpose. It will be entirely agreeable to me for the Sen¬
ator himself to determine at what point my proposed amendment
shall be submitted, whether before he proceeds with his argu¬
ment, or later, after he shall have concluded.
Mr. FORAKER. Mr. President, I would rather, for reasons
which I think the Senator will appreciate, conclude my remarks
at this time. I would be obliged to the Senator, however, if
without interrupting me to make his explanation he would be
willing to offer his amendment so that I may be advised of its
nature.
Mr. BLACKBURN. It was with that purpose that I made the
suggestion, as probably the Senator from Ohio, in the course of
his concluding argument, would want to have an opportunity of
noticing the proposed amendment. That course Is entirely
agreeable to me. I send it to the desk to be read for the in¬
formation of the Senator and the information of other Senators,
and at the conclusion of the speech of the Senator from Ohio I
shall ask to submit briefly a statement as to the purpose and
scope and intent of the proposed amendment.
The VICE-PRESIDENT. The Senator from Kentucky pro¬
poses an amendment to the resolution of the Senator from Ohio,
which will be read by the Secretary.
110 7111
Ill
The Secketaby. After the first words, "Resolved, That," it is
proposed to insert the following:
Without questioning or denying the legal right of the President to
discharge without honor enlisted men from the Army of the United
States.
Mr. FORAKER. Mr. President, I need not say I am opposed
to that amendment and can not accept it. I want "to get the
facts, and my resolution calls for nothing but the facts.
- But, Mr. President, I do not think the Senate should now,
by adopting an amendment of that character, preclude itself
from considering this question of power when all the facts that
may be obtained by the committee shall have been laid before
the Senate.
I had hoped it would not be necessary to say anything more on
the question of the power of the Chief Executive, but this
amendment makes it necessary, perhaps, that I should ad¬
dress myself to that proposition at this time, not for the pur¬
pose of elaborately arguing it, but only for the purpose of show¬
ing at least that it is a question about which we should not
preclude ourselves by taking action of this kind before we have
learned and established what this case is.
There is another thing, Mr. President. On yesterday, sup¬
posing I was meeting the objections of all Senators who were
disposed to have an investigation at all, I agreed to a modifi¬
cation of my resolution. I did that upon the theory that all
question of power was to be postponed until the case was
ȣ>rought before the Senate upon the testimony. I did that for
the sake of harmony. I did that for the sake of getting the
facts and opening the door
Mr. BLACKBURN. The Senator does not, I am sure, mean
to be understood—
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Kentucky?
Mr. FORAKER. Certainly.
Mr. BLACKBURN. I am sure the Senator does not mean to
be understood as even intimating that I or those about me were
parties to that agreement.
Mr. FORAKER. Certainly not. I am speaking about my
party colleagues on this side of the Chamber. I supposed when
that modification was agreed upon it would be satisfactory and
we would have a vote; that those who did not want an investi¬
gation of the facts would vote " no," and those who wanted an
investigation of the facts would vote for the resolution, with the
understanding that we were not hampered or restrained in the
investigation of the facts, but that no question of power was to
be considered by the committee or to be reported upon by the
committee.
But now, in view of what the Senator brings into the case,
let me speak about the power of the President to make this
kind' of an order. I listened with close attention and with very
great interest to the very able arguments of the Senator from
Wisconsin [Mr. Spooner], the Senator from Pennsylvania [Mr.
Knox], and other Senators on that point, who contended that
the President had power inherent in him as Commander in
Chief to make the order in question, and that, such power inher¬
ing in him as Commander in Chief, it had not been taken away
from him by any statute or by any regulation of the Army, but.
on the contrary, had rather been confirmed to him. I believe
7111
112
that, in a word, is the gist of the arguments that have been
made on the other side as to this proposition.
Mr. President, when I spoke here on December 20 I touched
upon that point because I thought we were challenged to speak
about it by some passages in the President's message. I then
made some rather extended remarks as to what was the consti¬
tutional power of the President and what was the constitutional
power of Congress with respect to the Army, contending in that
behalf that the constitutional power of the President is the
power to command and that the constitutional power of the
Congress is the power to raise armies and to provide rules for
the government and regulation thereof. And I contended that
because of these constitutional provisions it was competent for
the Congress to make all necessary regulations, and that when
any regulation had been made by Congress for the government
of the Army, as to the size of it, as to the units of its organiza¬
tion, as to the distribution of it between infantry, artillery, and
cavalry, as to enlistment, as to discharge—anything permanent
in its character as a. regulation, those regulations were abso¬
lutely binding on the President, as well as on everybody else,
and that the President had no power to make regulations except
only when authorized by Congress or when Congress had neg¬
lected to make some regulation, which necessity compelled him
to make for the preservation of his Army or for its proper gov¬
ernment or management.
I will ask to have incorporated in my remarks at this place
what I then said on that subject. I send the remarks to which
I refer to the desk, and ask that the Reporter may incorporate
them.
The VICE-PRESIDENT. Without objection, permission is
granted.
The matter referred to is as follows:
" The President shall he Commander in Chief of the Army and Navy
of the United States, and of the militia, etc."
I have read far enough. That is all that the Constitution says as
to the constitutional powers of the President as Commander in Chief.
In section 8 of Article I of the Constitution it is provided as I shall
read. I have a note of it, but I prefer to read from the Constitution
itself. However, to save time I will read from my notes. Section 8
of Article I reads, in part, as follows:
" The Congress shall have power * * * to raise and support
armies ; * * * to make rules for the government and regulation of
the land and naval forces."
That is all that is applicable, and I confine myself In the reading to
that.
Now, Mr. President, it must be apparent to anyone without any study
that the constitutional power conferred upon the President of the
United States as Commander in Chief is to command the Army, and
the power conferred by the Constitution on the Congress is a power to
raise the Army and to prescribe the laws and" the rules whereby the
Army shall be regulated. Nobody would pretend that the Congress had
any power or that anybody else hud any power over the President as
the commander to direct the movement of troops, to say where they
should be stationed in time of peace or how they should be directed
against the enemy in time of war. He, in that particular, is absolute,
without anybody to question his authority.
But, on the other hand, it seems to me, Mr. President, equally clear
no one can question that the Congress has power to prescribe by law
what rules and regulations shall govern the Army as to its organiza¬
tion, as to the size of the Army, its maximum, its minimum, as to the
number of the infantry regiments, the number of cavalry regiments, the
number of artillery regiments, and the number of batteries, and the
number of men in each of these units of organization ; and how, Mr.
President, particularly, men shall be enlisted and men shall be dis¬
charged from the Army, the terms and conditions upon which they shall
7111
113
be enlisted, the rights that shall accrue to them on account of their
service—long service, faithful service—whether or not they shall be
recognized by the Government and be rewarded by the Government
All that rests with Congress as a part of that power. As a part of
that power it is competent for the Congress of the United States to
provide that no man shall be summarily discharged from the Army
after he has been regularly enlisted except upon certain terms and
conditions; that no man in the Army shall be found guilty of any
offense with which he may be charged except after he has had an op¬
portunity to appear before a tribunal where he can present his defense,
where he can be represented in person and be represented by attorney,
if he wants to be, or by some one else to speak for him; where he can
confront his accusers and cross-examine their witnesses.
Mr. FORAKER. Now; Mr. President, I call attention to what
I then said and repeat it in substance, so that there may be no
misunderstanding *of what I have been contending for, namely,
that the constitutional power of the President is the power to
command, the constitutional power of the Congress is the power
to regulate and govern the Army; that the President is supreme
as commander and can not be interfered with by the Congress,
and that the Congress is supreme in legislating for the Army
and can not be interfered with by the President; that the Presi¬
dent can make regulations only by authority of faw or as a
result of a necessity that Congress has not provided for.
That was my first statement. I repeated that statement in
effect when I spoke here January 7. I did not suppose there
would be issue taken upon that proposition. But there has
been. On yesterday the Senator from Pennsylvania [Mr. Knox]
cited some authorities to support his contention that this power
inheres in the President to make regulations and to make
orders; and the Senator from Wisconsin [Mr. Spoonek] con¬
tended that whatever the power of the Congress might be to
regulate and govern the Army, it did not extend to the regula¬
tion of orders issued by the Commander.
The Senator from Massachusetts [Mr. Lodge] told us that
our fathers made the Constitution with the British constitution
in mind, and that when they provided that the President of the
United States should be the Commander in Chief of the Army
they had reference in their minds to the powers of the King as
the commander in chief of the British army.
Mr. President, I was rather surprised to hear that kind of a
statement coming from a representative of Massachusetts, the
scene of the Boston tea party, Bunker Hill, and other places of
great Revolutionary historic interest, for of all the men in this
body he should remember that our forefathers and their prede¬
cessors fled to this continent in order that they might get away
from the King, and they had no purpose at any time, certainly
not when they framed the Constitution after our independence
had been conquered, to create a king or to create kingly power
for any man to exercise.
I have some authorities on that subject. In the first place, I
call attention to what Alexander Hamilton said. In that elder,
if not better, day when lawyers were lawyers and proud of their
profession and ready to stand up for the law everywhere and
under all circumstances, when courts were courts and fearlessly
administered justice, and when Senators were Senators and
spoke on the floor of this Chamber precisely what they spoke in'
the cloakroom, he was considered a fairly good authority on the
Constitution of the United States. Alexander Hamilton, in the
Federalist, said what I am about to read.
7111 8
114
I need not tell you who Alexander Hamilton was. He was
the greatest creative genius of the formative stages of our Gov¬
ernment, the most brilliant man of his time, the best authority
011 government making, and the most pronounced type of all who
contended for a strong centralized government. It was his con¬
tention throughout that the central government should be a
strong government, as nearly the opposite of what we had under
the Articles of Confederation as it was possible to make it, and
to him, perhaps, more than anybody else are we indebted for
our Constitution, not that he said as much in the Convention as
others or took as much part there, but because he led success¬
fully the greatest parliamentary battle ever fought on the
American continent, or in the world, when he secured the rati¬
fication by the New York convention of the Constitution of the
united States, which without that ratification never would have
been adopted.
Mr. President, here is what Alexander Hamilton said on this
point. I read this in answer to the suggestion of the Senator
from Massachusetts [Mr. Lodge] that, the Commander in Chief
was given all the inherent power, the same power, that per¬
tained to the comitfander in chief of the British army. In dis¬
cussing this subject in the sixty-ninth number of the Federalist,
Alexander Hamilton said:
Second—
I will not read all of it—
The President is to be Commander in Chief of the Army and Navy
of the United States. In this respect his authority would be nominally
the same with that of the King of Great Britain, but in substance much
inferior to it. It would amount to nothing more than the supreme com¬
mand and direction of the military and naval forces as first general
and admiral of the confederacy, while that of the British King extends
to the declaring of war and to the raising and regulating of fleets and
armies; all which, by the Constitution under consideration, would ap¬
pertain to the Legislature.
I need not read further. I have read enough to show what
Mr. Hamilton's view was of the Constitution he helped to make,
the Constitution which he did more than any other one man to
secure the ratification of by the requisite number of States.
He did not imagine, Mr. President, that the power that was
being conferred upon the President of the United States as
Commander in Chief of our Army and Navy was the same as
the powers of the commander in chief of the British army.
He recognized that we were undertaking here to escape not only
from kingly power, but also from unwritten constitutions, and
to establish governments founded on written constitutions.
Those men knew exactly, and better than anybody else, what
to put in a constitution to express their purpose, for they were
the greatest constitution makers the world has ever known.
Mr. Gladstone once said with respect to that Constitution—I
can not quote his words exactly, but I can substantially—that
it was the greatest work ever struck off by the hand of man at
a single effort. The only criticism I would make upon that
statement is that it was not a single effort. It was the ripened
work of two hundred years of constitution building. Our
fathers, in securing and drafting and discussing their charters,
their organic laws, had come to understand the work of creat¬
ing a government resting on a written constitution better than
anybody else in all the world. They knew the danger of leaving
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anything to be inferred from the institutions in the light of
which, of course, our institutions were founded.
Therefore they provided what? Not that our Commander in
Chief should have the same power as the British commander in
chief, but that he should be limited to the power to command,
while the other power that had belonged to the British com¬
mander to regulate the army should be given to Congress.
I think that authority of itself is enough to establish the
proposition for which I have been contending. But let me call
attention in this connection to the fact that I cited on previous
occasions a number of authorities precisely in line with what
Mr. Hamilton said, and yesterday the Senator from Pennsyl¬
vania [Mr. Knox] cited one of them in his argument. He cited
it to show that the President of the United States has power
to make regulations inherent in him as Commander 411 Chief,
as I understood the Senator. The case I refer to, as cited by
him in support of that proposition, is reported in 16 Peters,
known as the " Eliason ease." In that case—I cited it in one
of the speeches I made here on the subject—the Supreme Court
said that the President had the power to make regulations when
Congress had not acted with respect to a subject where regu¬
lation was necessary, and it said all such regulations as the
President might see fit to make would have the effect of law,
provided, Mr. President, provided they were within the legal and
constitutional sphere of the President—not otherwise.
But, Mr. President, yesterday the Senator from Pennsylvania
cited an authority that no one else until he cited it had called
attention to in this debate, O'Brien on Military Law. I had
never seen the work. This is a work that was published sixty
years ago. I overlooked it because I was looking for something
more modern, and I shall call attention to something more
modern presently. I sent at once to the Library and got this
work, looked through it, to find that it is one of the best author¬
ities on this subject I have found anywhere. I am greatly ob¬
liged to the Senator from Pennsylvania for calling jny atten¬
tion to it. After discussing the power of the President as Com¬
mander in Chief and after citing the constitutional provision
that the President shall be the Commander in Chief and the
Congress shall have power to raise armies and provide rules
for the government and regulation of the same, this author
proceeds. I read from page 30:
The effect of these provisions is that Congress, after raising and
equipping an army, can not use it against the liberties of the country,
because it can neither command it nor appoint a commander to it.
The President can do nothing detrimental to the public safety, for
Congress may at any moment strike from his hands the instrument he
is misusing. Independently of this, any military command contrary
to law is null, and no military officer dare obey it under penalty of
punishment by a military 01* civil court.
In all that relates to the raising of an army, to Its strength, to its
organization, to its criminal code, Congress is omnipotent, the Presi¬
dent powerless. The same -remark applies to the fiscal concerns of
the Army.
And then, passing over a part of the text, he continues:
The command of the President is, indeed, absolute within its sphere,
but its sphere is bounded on all sides by law.
It is " bounded on all sides by law." And so it is—
The moment the Executive oversteps the boundaries prescribed he
becomes powerless and his commands are of no force.
I looked to see the speech of the Senator from Wisconsin
[Mr. Spooneb] in the Recobd this morning, but it has not yet
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116
been printed. Therefore, if I am in error in quoting him, I hope
he will correct me. I understood him to say that this power
conferred by the Constitution upon the Congress to provide
rules for the government and regulation of the Army was not
a power that authorized Congress to interfere with any order
the Commander in Chief might make.
Mr. SPOONER. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Wisconsin?
Mr. FORAKER. Certainly.
Mr. SPOONER. If the Senator appeals to me, that is my
opinion. I think Congress is given power to govern the Army
through rules and regulations. I agree entirely with the Sen¬
ator that neither Congress nor. the President can exceed the
constitutional power. Neither can the President exceed any
statutory restriction.
Mr. FORAKER. I understand. All I appealed to the Sen¬
ator for was to see that I did not misquote him.
Mr. SPOONER. That is right.
Mr. FORAKER. I am quoting him simply from recollec¬
tion, because I have had no opportunity to see his remarks in
print.
Mr. SPOONER. That is right.
Mr. FORAKER. But now, in answer to that, Mr. President,
I read again the sentence that prompted me to make that allu¬
sion to the Senator's remarks :
The moment the Executive oversteps the boundaries prescribed he
becomes powerless and his commands are of no force.
That is, an order
Mr. SPOONER. I agree to that. I said, if the Senator will
permit me a moment, that where the President in the exercise
of a power which he possesses, derived from the Constitution or
from a law, makes an order, while the Congress may change the
rule it can not review and set aside that order.
Mr. FORAKER. That is true, Mr. President; but I have
been reading from Mr. Hamilton to show that the power of the
President is a power to command, and that all power with re¬
spect to the regulation of the Army is vested in Congress. If
the Congress do not exercise that power and the necessity
arise, the Commander in Chief may, from the necessity of the
case, prescribe a regulation for it. I am not done reading from
this author. He says further:
Congress may declare when and for what objects the Army is to be
used and for what purposes it may not be used, and thus chart out
accurately the limits of Executive power. And even within these
limits the action of the Executive indirectly, but absolutely, depends
on the concurrence of Congress, which must appropriate funds for
the purpose before even a corporal's guard can be moved.
So contracted is the actual authority of the President that, but for
the protective power of his qualified veto, his command might be so
restricted by legislation as to destroy its utility. It is in the power
of Congress not only to protect itself, but to embarrass the action of the
Executive at every step. It may prohibit the approach of troops
within a certain distance from the Capitol; it may raise troops for a
special service, such as to garrison a particular fort or to operate in a
particular district, and may declare that this corps shall serve no¬
where else. In none of these or similar cases dare the President over¬
step the limits prescribed. The only effect of his illegal order would
be to subject to punishment the officer who obeyed it.
As Commander in Chief the President may issue to the Army any
military commands or orders whatever, provided they be not illegal.
These orders are of binding force on those to whom they are given,
not merely by virtue of law, but in consequence of the article of the
Constitution appointing hitn supreme commander.
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Then, passing over a part'of the text, he continues:
As the Executive has no legislative power it is plain that the regu¬
lations issued by him to the Army are not law; and as he is as much
bound by law as any other citizen it follows that, if any of them con-
"iFj- th.ey are so far nul1 alui void> otherwise they are con
stitutionally binding as military commands.
Or military orders, to adopt the language which was employed
by the Senator from Wisconsin.
Mr. President, there is not in point of principle much differ¬
ence between the Senator from Wisconsin and myself. The
difference is in the application of it. What I have contended
for from the outset is, as expressed by this authority, that the
President, in the exercise of his power as Commander in
Chief, is surrounded on all sides by law, and is just as amenable
to law as is anybody else, and* this authority, taken in connec¬
tion with the interpretation of the Constitution given by Mr.
Hamilton, shows that his power under the Constituion is lim¬
ited to coTmmand; the same power as, he says for illustration,
would belong to the Admiral of the Navy or the first General
of the Army. That is what Alexander Hamilton said about it,
and that is what I contend for in regard to it.
But, now, let us come down to something more recent. I have
not been very long out of the active practice of the profession
of law, but I have been out of it long enough for text writers
to commence a series of publications on a new classification
of Jaw. There is no new law in it, but the classification is
new. All these orders and regulations about which we have
been talking are now classified by the text writers as ad¬
ministrative law, and a number of books have been written on
this subject quite recently. I have before me one by Fairlie.
I read from it at page 32, where he discusses this subject:
Military powers.—The President is by the Constitution Commander
in Chief of the Army and Navy, and also of the State militia when in
the service of the United States. Congress, however, has the power of
declaring war and of military legislation. It is thus difficult, if not
impossible, to draw a strict line of demarcation between the authority
of Congress and that of the President. But the general principles of
demarcation can be indicated, and in practice there have been very few
important conflicts. Congress regulates whatever is of general and
permanent importance, while the President determines all matters tem¬
porary and not general in their nature.
It is by virtue of that rule, by virtue of that principle, Mr.
President, that Congress, within the exercise of its constitu¬
tional power, undertakes to regulate not only how men shall be
enlisted when an army is raised, on what terms and conditions
and for what length of time, what they shall be paid for their
services, but also undertakes to regulate how men shall be dis¬
charged. It is just as much a permanent rule to regulate the
discharge as it is to regulate the enlistment. Nobody will, con¬
tend that anyone but Congress has constitutional power to raise
an army. No one should contend that with respect to anything
permanent in the nature of regulation anybody but Congress has
the power to act. If it be true that the powers of the Com¬
mander in Chief under the Constitution of the United States are
not the powers of the British King; if it be true that his powers
are only those deduced from the Constitution; if it be true, as
Mr. Hamilton says, that he is but the first general, then it fol¬
lows, Mr. President, that be has no so-called inherent power
with respect to discharges; and he has never pretended to ex¬
ercise the inherent power to grant discharges as President of
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118
the United States from the beginning of our Government down
to this day. He never undertakes to discharge a man from
the service in time of peace except in accordance with the rules
prescribed for the government of discharges by Congress or by
Army Regulations promulgated by the President through the
Secretary of War, by Virtue of authority from Congress. I
might read at greater length to the same effect on that subject
Mr. SPOONER. Mr. President, will the Senator allow me to
interrupt him?
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Wisconsin?
Mr. FORAKER. Certainly.
Mr. SPOONER. The Senator does not understand me as tak¬
ing a position which contravenes what he has just read?
Mr. FORAKER. I do.
Mr. SPOONER. Well
Mr. FORAKER. I understand the Senator to say—and I un¬
derstood him to say it in so many words—that the Commander
in Chief, by his inherent power, without regard to the statutes,
had authority to discharge a man from the service if he thought
the good of the service required it, without regard to a regula¬
tion of Congress on the subject.
Mr. SPOONER. On the contrary, Mr. President, I said that
it was not necessary in this matter to discuss that question.
Mr. FORAKER. I know that is what the Senator said.
Mr. SPOONER. And I did not discuss it.
Mr. FORAKER. Well, but the Senator certainly made the
statement I refer to.
Mr. SPOONER. I said it was unnecessary to discuss the
question, because the President proceeded under the act of Con¬
gress.
Mr. FORAKER. Certainly; but the Senator had spoken of
the inherent power of the President, indicating the opinion that,
in the exercise of his inherent power without any statutory
provision, the President may so discharge a man; but he did
add—and I should have added that in the statement of what
the Senator said when I quoted what he said on the point to
which he was addressing himself when he took exception to a
portion of my remarks—he added that it was not necessary
now to discuss that, because the statute of Congress so provided.
Then the Senator went on to challenge all who believed that
the President had this statutory power, to point out wherein it
had been limited. Now, I am going to tell you wherein it has
been limited, according to the opinion I have about it. I say I
am at a disadvantage when I undertake to quote the Senator,
because he speaks with such an entertaining manner, so elabo¬
rately, and so forcibly, and on this occasion he spoke at such
length that it is impossible for me, two days afterwards, without
having a chance to look at the text of his remarks, to be sure
that I am quoting him accurately.
Mr. SPOONER. If the Senator will permit me, I should have
been very much delighted to have printed my remarks in the
Recokd the next morning, but I did not have an opportunity to
read them until last night on account of the pressure of other
business.
Mr. FORAKER. I am not finding any fault with that. I
only referred to it by way of apology for myself. That is all.
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119
I want to call attention to another late work, by Goodnow,
on this same subject. These are modern works. At page 86,
after fully discussing this subject—I am going to read very
briefly, because it is not necessary to read it at length—it is
sufficient to say that it agrees entirely with every authority
that I have quoted—with Fairlie, with Hamilton, with 16
Peters, with O'Brien, and with all the other cases. At the foot
of page 86, after fully discussing the question, he says:
Furthermore, such executive regulations, whether Issued by the Presi¬
dent or by hesffls of Departments acting under his direction, must con¬
form to the law, else the courts will refuse to enforce them.
He cites 106 U. S. Reports, 460, the case of Barlow v. Jones,
the syllabus of which reads as follows:
1. Animals specially imported from beyond the seas for breeding pur¬
poses are not subject to duty.
'2. The Secretary of the Treasury has no authority to prescribe a
regulation requiring that before admitting them free the collector shall
" be satisfied that they are of superior stock, adapted to improving the
breed in the "United States."
The Chief Justice delivered the opinion of the court, in which
he said that it was competent under the law for the Secretary,
with the approval of the President, to establish such regulations
as had been established because the law authorized it, but that
there was no power anywhere in the Secretary to prescribe a
regulation, or in the President or in anybody else, that added to
the law or took away from it. Therefore, when they said a
certain class of animals might be admitted duty free, the Secre¬
tary could not add another necessary qualification to exempt
them from duty.
Now I come to the challenge the Senator gave to point out
any limitation upon the power conferred by article 4 of the
Articles of War upon the President. It has been quoted so
often that I suppose I need not quote it again, but if I can find
it perhaps I had better do so.
Mr. TILLMAN. I have it here and will hand it to the Sen¬
ator.
Mr. FORAKER. I thank the Senator.
The fourth article of war provides as follows:
No enlisted man, duly sworn, shall be discharged from the service
without a discharge in writing, signed by a field officer of the regiment
to which he belongs, or by the commanding officer when no field officer
is present; and no discharge shall be given to any enlisted man before
his term of service has expired, except by order of the President, the
Secretary of War, the commanding officer of a department, or by sen¬
tence of a general court-martial.
The Senator argues that this is a broad and unqualified con¬
ference of power, by this fourth article of war, upon the Presi¬
dent to grant discharges; and on its face it is. He challenges
us to point out any limitation upon it. Mr. President, that is
the easiest thing in this whole debate. This limitation upon the
President is found in all the articles providing for courts-martial,
especially the sixty-second article of war. It is in one article
after another, as I have heretofore pointed out. It is in these
articles provided that for this and that and the other offense,
enumerating every possible offense that could be foreseen and
thought of beforehand that a soldier was likely to commit, he
should be subject to trial by court-martial, and his punishment
should be such, and only such, as the court-martial might direct.
Then we have the sixty-second article. It is the omnibus article,
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which provides that any other offense that a soldier may commit,
not specified, shall be punishable after a trial by court-martial
in such manner as the court-martial may direct.
The point that I contend for is this, Mr. President, that where
an enlisted man is charged with a crime, charged with an offense
that is cognizable under the Articles of War, and with respect to
which he is entitled to trial by court-martial, neither the Presi¬
dent nor anybody else has the right to take the law as to that
offense into his own hands. He has not the right, because in
the contract of enlistment that the enlisted man enters into, it
is expressly provided that he shall be ruled and governed in ac¬
cordance with the Articles of War.
Mr. CULBERSON. Mr. President, will the Senator allow me
to interrupt him for a question?
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Texas?
Mr. FORAKER. Certainly.
Mr. CULBERSON. Mr. President, it is conceded that one of
the crimes committed at Brownsville, by soldiers or otherwise,
is murder, which is a capital offense under the laws of Texas.
I call the Senator's attention to the fact that article 62, which
he says governs all crimes, especially excepts capital cases.
Mr. FORAKER. Certainly it does. I have already pointed
that out and commented on it; not on this occasion, however.
Mr. CULBERSON. I want to ask the Senator, in view of the
fact that there is absolutely no provision in the Articles of War
punishing capital cases, does he deny that the President has
authority to discharge from the Army a murderer?
Mr. FORAKER. I deny, Mr. President, that the President of
the United States has any authority whatever with respect to
discharges from the Army, except only that which is conferred
upon him by statute. The power conferred upon him by the
fourth article is to be construed in connection with all these
other safeguards which the Congress, in enacting these Articles
of War, has seen fit to throw about the enlisted man for his pro¬
tection. In the case of murder he is entitled to be turned over
to the civil authorities to be tried.
Mr. CULBERSON. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Texas?
Mr. FORAKER. It is one of the provisions, however, of the
Articles of War, I believe, that a discharge may be granted on
account of conviction in the civil courts. Now I yield to the
Senator.
Mr. CULBERSON. I may have misunderstood the Senator,
but I understood him to s^y that the President had no power to
discharge in this case, because the punishmejit of every conceiv¬
able crime was provided for by the Ai'ticles of War. Now, when
I point out to him that capital cases are expressly excepted and
that there was a capital offense committed at Brownsville, he
says, as I understand him, changing his position somewhat, that
because that is punishable by State law the President had no
power to discharge.
Mr. FORAKER. Mr. President, I am not changing my posi¬
tion at all. Every conceivable crime is provided for by the
Articles of War. It is provided how, if a soldier shall be
charged with an offense, he shall be tried in every case. He
7111
121
where he* shall be turned over to the civil authorities and be
shall be tried by a court-martial, except only in capital cases,
tried by them. That is as much a provision for the trial of the
man as though the provision were teat he should be tried before
a general court-martial. There is nothing different in principle.
The Articles of War have carefully provided for every con¬
ceivable case, for that case to which the Senator calls my at¬
tention, as well as for all other cases. ,
Mr. President, all these provisions of the Articles of War
are, therefore, I say, limitations upon the broad, unqualified
power conferred by the fourth article. That is the contention
I made in the first remarks that I offered here, and the conten¬
tion I have been making ever since.
So it is about the regulations.. The regulations are made by
the President and promulgated by him through the Secretary of
War. They are made for the government of the Army. But,
Mr. President, they are not made by virtue of his power as
Commander in Chief; they are made by virtue of the fact that
Congress has authorized the President to make them by express
statutory provision. That duty is intrusted to him; and when
he makes regulations and promulgates them it is the duty of
Congress to take notice, and the Supreme Court has held that
if Congress does not take exception to the regulations that are
thus promulgated they have the same force and effect as law.
It is competent for us at any time to take exception. There¬
fore, it is, Mr. President, that the provision with respect to dis¬
charges without honor is another limitation upon the power
conferred by the fourth article of war.
But, says the Senator from Wisconsin, the President who
promulgates these Army regulations to-day may to-morrow,
when occasion arises, override them with a new regulation. That
is the effect of what I understood him to say. Mr. President,
that is a rather startling legal proposition for a free and con¬
stitutionally governed people to accept. I have never heard of
but one instance, in modern times, at any rate, of any supreme
authority of the state undertaking to override in the afternoon
what was law in the forenoon without legislative intervention,
but simply by executive power. The official to whom I refer
was the late Oom Paul, president of the Boer republic. I do
not know whether the facts were as charged or not, but in the
indictment against , him was that charge that if the law did not
suit him when he "came to apply it to a case, he forthwith
changed it, and then applied it in its changed form, making
the law from day to day, if he saw fit, just what he wished to
make it. Is it possible that we are to have that kind of law¬
making in this country? I take it not even the President would
stand for that sort of a. contention, much as he might like to
make the law fit this particular case.
Mr. President, the President can not do it, for this reason:
There is a limitation upon his power in that respect. Every
one of the men discharged by this order was enlisted after the
regulation to which I refer—the one hundred and forty-sixth
regulation—was put into its present' form, and the contract of
each man is therefore that he submits to be governed according
to the rules and Articles of War; according to the regulations
and Articles of War;
Mr. MALLORY. Mr. President
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122
Mr. FORAKER. In a moment. So it was that in the form
in which it now stands that regulation was written into the
contract of every one of these 167 men who were discharged.
It was a part of the contract; and, being a contract right, not
even the President himself could change it. He may change the
regulations, and thus affect all men enlisted afterwards, but he
could not give it a retroa ?tive effect, so as to enable him to dis¬
charge these men in violation of regulations existing when they
enlisted.
Mr. MALLORY. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Florida?
Mr. FORAKER. Certainly.
Mr. MALLORY. I have listened with a great deal of interest
to the Senator from Ohio. If I understand his position aright,
it is that wherever the Articles of War prescribe there shall be
a court-martial for an offense the President is debarred from
discharging a soldier when guilty of such offense?
Mr. FORAKER. Yes, sir.
Mr. MALLORY. How does the Senator account for the ap¬
proving by himself of the action of the President in discharging
some men who had been guilty of fraudulent enlistment and
who had deserted, perhaps, without subjecting them to a court-
martial? There are some 352 cases, including some of those of
which, I understand, the Senator from Ohio approved.
Mr. FORAKER. Mr. President, I take great pleasure in re¬
minding the Senator that I have spoken on that subject ex¬
plicitly, and I have challenged the War Department, and I
have challenged any Senator who wants to speak in opposition
to what I am contending for, to bring forward a single case
out of the 352 that are referred to where a discharge was not
granted in effect as a favor instead of as a punishment. I gave
a number of illustrations. A man comes forward and he peti¬
tions to be discharged from the service. There are reasons why
his officers may think he is of no value in the service, and they
are willing to have him discharged. The case being laid before
the President, and the man wanting it, the President discharges
him. But now let me suggest to the Senator the reverse of that. If
the President, without regard to the state of facts, can discharge
without honor, he can discharge without any facts whatever.
That is the ultimate result of the argument the Senator contends
for, and if he can discharge three companies without any rea¬
son except that he so wills, he can discharge the whole Army
simply because he wishes to do so.
Mr. MALLORY. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
further to the Senator from Florida?
Mr. FORAKER. Certainly.
Mr. MALLORY. If the President is required by law to sub¬
ject any man who violates one of those articles to a court-
martial, it does not lie in the province of the President to grant
any favor or to permit a discharge simply because he chooses
to oblige a transgressor. The Senator approved both of the
cases to which I have referred, and yet fraudulent enlistment
and desertion are punishable specifically by court-martial.
Mr. FORAKER. Certainly; but if the soldier, as I have
heretofore said repeatedly in this debate, denies the charge that
7111
123
he was fraudulently enlisted or that he deserted, and stands
upon his rights, the President has no power, except only to
court-martial him, for such is the law. But if the soldier says,
" Yes; I did make a misrepresentation; I am sorry for It; I
want to get out, and I am willing to take a discharge without
honor," then the President has power to give it.
Mr. President, the point is that a discharge without honor
is limited necessarily, because of the construction that we must
give to the other articles of war, to cases where a man is dis¬
charged, not as a criminal or because by Executive order he
has been found guilty of a crime, but where he comes and
makes no contention, but submits and accepts, and is willing
to accept, and is usually glad to get, a discharge " without
honor." It is a matter of favor and not of penalty.
Mr. TILLMAN. Mr. President
The YICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from South Carolina?
Mr. FORAKER. If there be in the 352 cases one different
from what I have said, then let somebody produce it. Now, I
yield to the Senator.
Mr. TILLMAN. I want to suggest to the Senator that the
word " given" in the fourth article—providing that no dis¬
charge shall be " given "—exactly fits his own contention and
confirms it.
Mr. FORAKER. Yes.
Mr. TILLMAN. And absolutely makes it certain that that is
the only method by which a discharge can be given. It is a
discharge made not by order, as for a punishment, but given as
a matter of grace.
Mr. FORAKER. I am very much obliged to the Senator for
calling my attention to that word. It does support the conten¬
tion. But, Mr. President, if the word " given " were not there,
but some other word, it would have the same general effect.
Of necessity, we would have to conclude, if we gave effect to the
other articles of war, that where a man is charged with crime
and denies it and stands upon his rights, he has a right to trial,
and there is no power lodged anywhere to say he is guilty
and order him to be dismissed; there is no power lodged any¬
where to indict a man by order, try a man by order, convict a
man by order, and then punish him by order.
Mr. President, there is another limitation upon the power
of the President, and that is the spirit of American institutions
that runs through all our legislation and all our political re¬
lations—'the spirit that every man somewhere and some time
and in some manner shall have his day in court when charged
with crime. That, Mr. President, has been the law of the world
from the beginning of civilization.
I am reminded of the trial of Paul before Agrippa. You re¬
member that Festus reported the case of Paul to Agrippa, and
that he declined to punish him or to find him guilty of any offense
until he had a chance to be heard. I read verses 14, 15,
and 16 of the twenty-fifth chapter of the Acts of the Apostles:
14. And when they had been there many days, Festus declared Paul's
cause unto the King, saying, There is a certain man left in bonds by
Felix.
15. About whom, when I was at Jerusalem, the chief priests and the
elders of the Jews informed me, desiring to have judgment against him.
16. To whom I answered. It is not the manner of the Romans
to deliver any man to die, before that he which is accused have the
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accusers face to face, and have license to answer for himself concerning
the crime laid against him.
That, Mr. President, has ever been the law of every civilized
and every Christian country in all the history of the world.
No man shall be convicted of crime until after he has been per¬
mitted to face his accusers and cross-examine the witnesses.
Is it possible that we, in this twentieth century, with our boasted
constitutional liberty, are behind the Romans of two thousand
years ago? No; it is elementary, and when in the fifth amend¬
ment to the Constitution it was provided that life, liberty, or
property should not be taken without due process of law, and
then the Army and the Navy were excepted from that provi¬
sion, the Congress, recognizing the incongruity of such a pro¬
vision with the spirit of liberty and the nature of our institu¬
tions, provided that the enlisted man should have due process
of law, should have a right .to trial.
What is due process of law? Due process of law is nothing
more than being heard and punished according to the law of the
land, and so Congress made a law of the land for the enlisted
man who had been put outside the" provision of the fifth amend¬
ment to the Constitution. That law so made by Congress has
continued until this day. Does any man need to be told that
anything in conflict with the spirit of American liberty and
American justice and American right is un-American? Shall
a man who has served his country for twenty-six years, who has
borne the flag of this nation in battle always to victory, who
has an honorable record—as honorable as any man in the pub¬
lic service, from the President down to the lowest—be dis¬
graced before the world, branded as a criminal, without being
given a chance somewhere to say to an authority authorized to
hear him, " I am not guilty; I have not committed this of¬
fense," and prove his contention if he can? If such is the law,
it is a shame and a disgrace to the American people.
It was because of this spirit of our institutions that the
Congress carefully so provided, and all the more carefully be¬
cause enlisted men in the Army are under officers who have a
certain measure of very autocratic power; under officers fre¬
quently far removed from courts of justice and from those to
whom the enlisted men could appeal if their rights were being
taken away from them. For such reasons has the Congress
provided that every man in the Army who is charged with a
crime shall have a right to be tried before a court-martial, shall
have a. right to come and present his defense, if he claims to
have one.
All these men claim to have a defense. I do not know
whether their defense is good, or not. That remains to be
seen. I am not going to be drawn into a discussion of the
merits of this testimony, although by other Senators there has
been much discussion of that character. . I am confining my¬
self to the great, bread question that applies to white men as
well as to black men. I am not going to belittle and dwarf this
question of constitutional power on the one side and constitu¬
tional right and liberty on the other by introducing the race
problem or any other question that would belittle it. It is a
great, broad, living question, and we should deal with it with
a sense of that fact
But the Senator from Wisconsin [Mr. Spooneb] "told us in an
effort he was making to evade—I do not use that word in an
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offensive sense—the restrictions of the Articles of War as to
trial and the regulations as to discharge without honor, he con¬
tended, I say, in order to escape the effects of them, as I under¬
stood him always—let that be understood—that no charges have
been preferred against these men; that they do not stand
charged with anything, in a technical sense. Of course he could
not mean in any other. And he says further, " Neither are they
so charged nor have they been punished." Let us see if they
have not been both charged and punished. Who is it that ar¬
raigns these men before the world? The Inspector-General of
the Army, General Garlington, is one, Major Blocksom, an in¬
spector, is another, and the President of the United States and
the Secretary of War speak to the same effect. What do they
say? These are not indefinite men, indefinite individuals.
They are the highest officials of the nation. They say to Con¬
gress—the President does and the Secretary does, and they
cause the Army officials to say the "same thing by "transmitting
their reports—that some of these men have committed murder,
many of them have committed perjury, all of them possibly have
committed misprision of felony by refusing to tell what the
men say they do not know anything about
The President tells us of the savagery of these men, of the
brutal crime they committed, of the murder they committed.
He speaks of them in his last message as midnight 'assassins.
All these terms are justifiable when the men are shown to be
guilty and to the extent they are shown to be guilty, but I am
not speaking of that. I am speaking of the question whether
or not they are charged by anybody with any offense. Is not
that a charge? Is not that an official charge? Is not that the
worst possible form of charge that could be made against them?
And the punishment. It is not adequate, everybody agrees,
for a murderer if he be found to have been a murderer to sim¬
ply dismiss him from the Army without his extra pay or with
his right to retire on pay taken away from him as a result of it.
That is not punishment of an adequate character. But, as I
said once before, while that is true, yet it is punishment of the
severest character to men who may be innocent of all crime.
I have not heard anybody contend that all the men in this bat¬
talion are guilty of an offense. I have heard it contended that
from fifteen to twenty were guilty of shooting up the town, and
that they were all murderers because murder was committed.
To the extent that it may be established by testimony, that will
be the result. It must be that they had accessories before the
fact and accessories after the fact. If they did any such thing
as charged, necessarily they had, and those who were accesso¬
ries before and after the fact are equally guilty, we will assume,
at least morally, whatever the local statute may say. That is
the character of the charge that is made.
I have before me the President's message, the one he sent to
Congress December 19, in which these men are arraigned in
this language:
In short, the evidence proves conclusively that a number of the sol¬
diers engaged in a deliberate and concerted attack, as cold blooded as it
was cowardly; the purpose being to terrorize the community, and to kill
or injure men, women, and children in their homes and beds or on the
streets, and this at an hour of the night when concerted or effective
resistance or defense was out of the question, and when detection by
identification of the criminals in the United States uniform was well-
nigh impossible. So much for the original crime. A blacker never
stained the annals of our Army.
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I ask that the remainder of the paragraph, as I have marked
it, be incorporated by the Reporter in my remarks.
The VICE-PRESIDENT. Without objection, permission is
granted.
The matter referred to is as follows:
It has been supplemented by another, only less black, in the shape
of a successful conspiracy of silence for the purpose of shielding those
who took part in the original conspiracy of murder. These soldiers
were not schoolboys on a frolic. They were full-grown men, in the
uniform of the United States Army, armed with deadly weapons, sworn
to uphold the laws of the United States, and 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 com¬
mitted 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.
Mr. FORAKER. Mr. President, I do not wish to detain the
Senate unduiy, so I shall hurry along.
It is said, " Now, what are you going to do if you have an
investigation?" It will be time to cross the river when we
get to it. I yesterday stated that one purpose of this investiga¬
tion was to give these men the opportunity, if any of them can
avail themselves of it, to show that they have no responsibility
whatever for this crime, and that they have not committed the
offense of withholding knowledge, for they have no knowledge.
I do not know how many of them can show that they are with¬
out offense in that and in every other particular. But I am
sure, from what I have been advised of, that many of them
can; the great majority of them can. If so, it is our duty to
establish that fact, to the end that the President may, as he
has said he would do in such a contingency, act with favor in
the reinstatement of these men and the restoration of them to
all rights which they have improperly lost by reason of his
order including innocent men.
That is true without regard to the evidence which has been
sent here, taken recently by Mr. Purdy. I am not going to com¬
ment on that now. I have not read it all yet, but I have read
most of it. But when I have read it all, at a later day and at
a more appropriate time I shall have something to say about it.
For the present I want to say with respect to it that it does
not relieve this case from the objections that I have been urg¬
ing against the procedure leading up to the discharge of these
men, because this testimony was taken ex parte—taken by offi¬
cials who were sent there by the President to investigate and to
secure testimony without these men themselves or through any
representative having an opportunity to defend, to appear, to
cross-examine. We do not in that way convict men of crime in
this country, not even soldiers. The lowliest citizen, the hum¬
blest man, is entitled to his day In court, and that is true though
he may be a soldier in the United States Army. His court will
be a military court instead of a civil court. That is the only
difference.
Now, I think we ought to have this investigation on the
President's account, to the end that he, upon testimony properly
taken, where everybody has a right to be heard, may be sus¬
tained and vindicated if the testimony shall have that effect;
for the credit of the Army, without regard to what the result
may be; for the sake of common decency, and to be in accord
with the spirit of American institutions.
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Mr. NELSON. Will the Senator from Ohio allow me to In¬
terrupt him for a minute?
The VICE-PRESIDENT. Does the Senator froni Ohio yield
to the Senator from Minnesota?
Mr. FORAKER. Certainly.
Mr. NELSON. I desire to call the Senator's attention to the
fact that all that evidence is confined to the issue whether these
men committed that raid, and not whether there was any mis¬
prision of the crime.
Mr. FORAKER. The Senator is exactly right; and on that
point General Garlington says he thinks probably there is a
conspiracy of silence, but there is no evidence whatever to show
it. That is almost his exact language, I believe. It is quite as
strong, at any rate.
Now, I want to come to something else, and I desire to hurry
through. I have been amazed at the feeling that breaks out in
this country whenever something is done which involves the col¬
ored man, especially if it be some injustice or wrong to him.
If my colleagues on the other side will allow me to say so, it is
most surprising to me, in connection with lynchings in the
South and, for that matter, also in the North. It does not seem
to be enough to put a man to death outside the law—without
waiting for the law—but it must be done with brutality. He
must be burned at the stake, as has been done in some instances,
or the poor victim is put to some horrible torture in connection
with his lynching, frequently something that would disgrace
Indian savages.
Now, that spirit has been cropping out here to some extent.
The Senator from South Carolina [Mr. Tillman] the other day,
in speaking, told us what had happened at Athens, Ohio. I do
not want to comment upon that except only to call attention to
the fact that the Secretary of War did in that case what I think
it was right and proper for him to do, notwithstanding the pro¬
tests that were made against it. When he was informed that
some soldiers had been engaged in the shooting up of the town
of Athens; that they had shot a corporal of the provost guard
and killed him and severely wounded a sergeant and two or
three others, I believe, and that the men had been arrested and
that their cases were to be brought before the grand jury, and
that they would be put on trial for murder, the Secretary of
War directed the Judge-Advocate-General to send one of his
staff to Athens to defend those men, and the Attorney-General
of the United States was importuned to have the district attor¬
ney for the southern district of Ohio, in which Athens was situ¬
ated, to attend and care for and protect and look out for and
defend the rights of these men. And the Judge-Advocate-Gen¬
eral appeared and the district attorney, by his assistant, ap¬
peared.
All that was done by the Government, and when General
Grosvenor, as it has been shown by the evidence put in the
Record, wrote to the Secretary of War protesting against the
Government intervening to defend murderers, as he charged
these men with being, the Secretary of War said he justified
his action on the ground that an enlisted man, when he gets
into trouble of that kind, should be treated as in some sense a
ward of the Government because of his helpless condition. The
Government did everything in its power to see that they were
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protected. The testimony was marshaled to show their inno¬
cence in so far as it could be. The men were finally tried and
some of them were convicted, and one of them is now in the
penitentiary of Ohio.
Mr. President, that rule was not foT'.owed in this case. If
anybody can think of anybody more helpless than a discharged,
discredited negro soldier in Brownsville,. I would like to know
who it would be.
Mr. CULBERSON. Mr. President——
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Texas?
Mr. FORAKER. Certainly.
Mr. CULBERSON. I simply rise, in view of the statement
of the Senator, to remind him that the assistant district attor¬
ney for the southern district of Texas was sent at the request
of the Secretary of War to see that these men had a fair trial
at Brownsville.
Mr. FORAKER. If that be true, I stand corrected, and I
am much obliged to the Senator for calling my attention to that
fact. This is the first time I have heard of it, and if there is
anything of that nature in this record I would be obliged if the
Senator would point it out. I have overlooked it if there is.
Mr. CULBERSON. The report of the assistant district at¬
torney is in the record.
Mr. FORAKER. I have overlooked it.
Mr. CULBERSON. His name is A. C. Hamilton.
Mr. FORAKER. Yes; since the Senator mentions the name,
I recall there is something of the kind in the record.
Mr. CULBERSON. It was quite early.
Mr. FORAKER. Perhaps so; but what I am talking about is
what is being done now. Men are being sent, a representative
from the Department of Justice and a representative of
the Army, to Brownsville, what for? To get testimony that
would look to the defense of these men in any contingency?
They claim they are innocent. They make a claim that the
men at Athens could not and did not pretend to make. These
men claim they are innocent and swear they are innocent, and
because they have all sworn they are innocent, and because the
testimony first sent to Congress seemed inadequate to justify
the action that had been taken, officers of the Government are
sent there to secure and send here testimony looking to their
conviction. Their defense and testimony for them receive no
consideration whatever.
Now, Mr. President, that is not all. They sent to us in the
President's message what purports to be a history of the
Twenty-fifth Infantry, and the Senator from South Carolina
[Mr. Tillman] in his speech the other day—and he must not
take exception to the fact that I take exception to something
that was said by one who is assisting, as he announced, in the
trial of this case—the Senator took occasion to say that the
record sent to the Senate by the President of the United States
as an exhibit to his message shows that these discharged men
are a set of brutal, murderous, cutthroats, or something like
that. I can not quote his language exactly, but that is the
effect of it. I know he used the word " cutthroats" and I
know he used the word " brutal," and I know he used the word
" murderous." How many other adjectives he employed I do
not recall That is what he said. Other Senators have spoken
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to tlie same effect. Quite a number have told us that they
were vicious, that they were brutaJ, that they ought to be
called the " Bloody Twenty-fifth," and so forth, and so on.
Let me call the attention of Senators to the fact that not a
single man of the 167 discharged had anything whatever to do
with any one of the offenses recited in this record of the Twenty-
fifth—not one of them—nor did any one of the companies of this
battalion have anything t& do with any shooting affray in all
the forty years this regiment has been in existence. Let me
analyze this record. It is set out here with great particularity,
and I call the attention of every Senator to it. In this record,
at page 315, is given first an official account of the shooting
affair at Sturgis City, Dak. I can not read it. It is not'
necessary. There was a shooting affray, denominated properly
by that name. One man was shot and killed, and it was a
murder, and there was no excuse for it, and 1 would not stand
here to extenuate to 'the extent of one iota the crime committed
by the men who did that shooting; and yet there were extenu¬
ating and provoking causes that led to it. But let it stand as
murder committed by those men. But who were those men?
They all belonged to Company H, of the Twenty-fifth Infantry.
Not one of them belonged to Company B, C, or D, and that hap¬
pened in 1885, twenty-two years ago. Every man connected
with that shooting long ago was mustered out of the service,
some after they had been tried and convicted for that crime.
But, while I will not stop to read that, let me in justice to
this much-abused regiment, read what Gen. Alfred H. Terry
saw fit to say in his official report on that subject. At page
359 of Senate Document 155 there will be found his official re¬
port. He was the commanding officer. He said ":
I have had much experience with colored troops, and I have always
found them as well behaved and as amenable to discipline as any
white troops that we have. The characteristic submissiveness of their
race is manifested in the readiness with which they yield to military
control.
They are much more temperate than our white troops, and crime
and disorders resulting from intoxication are comparatively rare among
them.
Passing over a few paragraphs, he says, further:
I take it for granted that in the Territory of Dakota the keeping of
houses of ill-fame is prohibited by law, but. notwithstanding the law
there are in the town two brothels which would appear to have been
established for the express purpose of catering to the taste and pan¬
dering to the passions of the colored troops, for they are " stocked "
with colored prostitutes—negresses and mulattoes.
They are, I am assured, places of the vilest character, and it was at
one of them that the affray of September 19 occurred. Had no
such place existed it is most improbable that any affray would have
occurred, and if the people of Sturgis City suffer such places to exist
they must, I submit, expect the natural result of their existence—
frequent broils, and from time to time the commission of the most
serious crimes. And I submit further that until the people of the
town shall have suppressed these dens, which equally debauch the
troops of the post and threaten their own safety, they will not be In
a position to ask the Government to change its garrison.
Now, that is one. There was a shooting. There was a man
killed. I do not pretend to extenuate or to apologize for it.
Only as an act of justice I read what the commanding officer
said about it, and every man knows that we never had in the
United States service a more conservative, conscientious, and
capable man to judge honestly than Alfred H. Terry, a major-
general of the volunteers during the civil war and a brigadier-
general at the time when this shooting affray occurred.
7111 9
130
Moreover, there was a board appointed in that case. Did the
President of the United States, by order, discharge somebody
because of that shooting? No; they convened a board of in¬
quiry and they investigated it. There was the same effort there
to conceal as is charged here, but when the trial came on the
guilty parties were discovered. The testimony established the
guilt, and they were all brought to punishment.
What is the next case? One of these bloody shooting affrays,
the only one that any one of the companies of this battalion had
anything to do with. It happened at San Carlos, in Arizona.
It was not a shooting scrape at all, but a case where some men
of Company C got into a sort of fist fight with some of the
Indians'stationed at that agency, and the soldiers got the better
of the Indians and beat them up pretty badly with clubs; but
there was no shooting. Nobody was armed on either side.
There was nothing in connection with that occurrence that has
not occurred a hundred times in connection with white compa¬
nies and white regiments. I pass that by as not worthy of any
further comment.
Mr. SPOONER. The men were identified in that case and
punished.
Mr. FORAKER. Certainly. And now the Senator suggests
to my mind an important point. I said here the other day that
if, out of the 170 men then belonging to this battalion stationed
at Fort Brown, 16 to 20 of the number had organized a raid, had
plotted a shooting up of the town, and then carried it out in
the way indicated, of necessity they must have accessories be¬
fore and accessories after the fact; and it seemed to me utterly
impossible that a crime of such magnitude, with so many men
engaged in it, could be carried out in the way indicated and
they or some of them not be discovered by anybody.
But it is said the colored men were in a conspiracy and they
would not discover them. It is conceded that the white offi¬
cers—the commissioned officers—were not in the plot. They
were present. Immediately after the firing commenced they
repaired to the barracks and saw the men formed in line, and
stood by while the roll was called. It has been said that the
roll was carelessly called. I do not think so. I know enough
of what the facts are to believe that it was carefully called and
every man was there, and that the roll was practically called
before the firing ceased, and that the commissioned officers
stood by the side of the orderlies who were calling the roll, and
that they were on the alert, especially to see anybody who
might be approaching from the city, from which point they
thought they were being attacked. No commissioned officer saw
anybody come and join the ranks.
Does anyone contend that sixteen or twenty men who had
been 300 yards, or whatever the distance may be, down in the
town shooting up the town, in the state of excitement they
would necessarily be under, could come after the firing rushing
back to the garrison, pass around the barracks, join the com¬
panies, and form in line in front of the barracks and not be
detected by the commissioned officers or by the noncommis¬
sioned officers who called the roll?
Mr. President, this may amount to nothing in the final result,
but now it amounts to this: It is such an extraordinary thing
that I was justified in saying, as I did the other day, that you
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131
may search the history of criminal jurisprudence in vain from
the beginning of the world to this time to find anything like
it successfully carried out with nobody to tell it, not a clew to
be found to convict any one of the men. You will search in
vain for anything like it. At Sturgis City and at San Carlos
and all the other places where the conspirators killed some¬
body they undertook to conceal their crime, but in every in¬
stance the crime was detected. Witnesses were found. They
were found because the men were guilty. " Murder will out"
to-day as much as when that fact was first announced. But so
much for that
Now I come to another case, the third, the shooting at Win-
nemucca; and I want the attention of Senators, because I have
a rather unpleasant duty to perform with respect to this al¬
leged shooting. The resolutions of the Senate were sent to the
War Department and to the President, calling for all the facts
relating to these discharges and calling for the history of this
regiment. In response we got, among other things, what pur¬
ported to be a history of the shooting at Winnemucca. The rec¬
ord of the shooting at Winnemucca. as shown by this record, con¬
sisted of a report made by S. W. Groesbeck, Judge-Advocate-Gen¬
eral of the United States Army; a recommendation by William R.
Shafter, major-general commanding, two or three short affida¬
vits, and a very extended sensational newspaper account of the
shooting. The upshot of it all, according to the report made by
the Judge-Advocate-General and this newspaper account, is that
not Companies B, C. and D, but Companies L and M, of the
Twenty-fifth, with Company K, of the Twenty-fourth, were on
their way to the Philippines. They stopped at this little place in
Nevada, called Winnemucca, and the officers went from the
train to get their suppers. It was about 7.30 in the evening.
While they were getting their suppers a report was brought to
them that there was a shooting affray occurring in a saloon.
They immediately repaired to it, but found that all the men who
had been at the saloon had returned to the train. The news¬
paper account goes on to tell how the men went into that saloon,
a little place 20 by 20 feet, which had a bar, with tables and
chairs. There could not have been very many men in it. They
seemed like a good many perhaps. They went in to get some re¬
freshments, and they got into some kind of a squabble, and one
of them whipped out his revolver, as the newspaper says, and
shot the bartender and seriously wounded him. The troops were
immediately inspected. No guilty man could be found among
them. No gun could be found that had been discharged and no
revolver that had, been discharged. The troops had to hurry on,
although they were kept there some hours. In due time tliey
went on board the transport at San Francisco; and when they
were on the Pacific Ocean, without anybody to represent them,
the Judge-Advocate-General who makes this report was sent to
Winnemucca, and he there got an ex parte statement, such as
had been published in the newspapers; and his report was made
in accordance with that. General Shafter, reviewing that report,
recommended that these companies be fined to the extent of $250.
and there the record sent us stops.
Well, I read it over and I thought I would like to know
whether that fine was paid. Somehow or other it seemed to me
that possibly something had been omitted, and so I wrote to
the Secretary of War calling his attention to this state of the
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132
records, and inquiring whether or not there we/e any more
correspondence or orders and documents of any kind on file in
the War Department having reference to this shooting.
In answer to that in due time I received the following, in¬
closed in a letter from the Secretary of War, giving additional
information in regard to that shooting. I ask that it may be
printed in full in my remarks as a part of the same.
The VICE-PRESIDENT. Without objection, permission Is
granted.
The matter referred to is as follows:
United States Senate,
Washington, D. C., April g, 1903.
Hon. Elihu Root,
Secretary of War, Washington, D. C.
Dear Sir : I inclose two letters from Mr. Bert Klucny, of Winne-
mucca, Nev., a constituent of mine, relative to a claim he and others
have for depredations committed by some negro troops, en route to the
Philippines, at Winnemucca. The letters will give you all the informa¬
tion I have regarding, the matter. Will you kindly advise me whether
such claims have ever been filed in your Department; and if so, what
disposition has been made of them? Kindly return the letters with
your reply, and greatly oblige,
Yours, respectfully, Francis G. Newlands.
[First indorsement.]
Headquarters of the Ah my,
Adjutant-General's Office,
Washington, April 13, 1903.
Respectfully referred to the commanding general Department of the
Missouri, Omaha, Nebr.
The records of this office show that while passing through the town of
Winnemucca, Nev., certain members of Companies L and M, Twenty-
fifth Infantry, committed depredations upon the property belonging to
one C. W. Deiss and one Bert Klucny, citizens of tlie town in question,
and that upon the recommendation of the Judge-Advocate-General cer¬
tain papers on the subject (249375 A. G. O.) were referred to the
commanding officer Twenty-fifth Infantry, through the Division of the
Philippines, on August 14, 1899, for the purpose of appointing a board
of officers to endeavor to ascertain, if possible, the perpetrators of the
outrage.
The Secretary of War desires to know what action, if any, has been
taken on this paper.
By command of Lieutenant-General Miles:
William Exnis,
Lieut. Col., Artillery Carps,
Assistant Adjutant-General.
[Second indorsement.]
Headquarters Department of the Miss.ouri,
Omalut. Xebr., April 16, 1903.
Respectfully referred to the commanding officer Twenty-fifth Infan¬
try, through commanding officer Fort Niobrara, Nebr., for the informa¬
tion called for in the first indorsement.
By command of Major-General Bates:
E. J. McCLBiRNAND,
^ Major of Cavalry, Adjutant-General.
[Third indorsement.]
Headquarters Twenty-fifth United States Infantry,
Fort Niobrara, Nebr., April 18, 1903.
Respectfully referred to Capt. A. B. Shattuck, quartermaster Twenty-
fifth Infantry, for a full and complete report of the circumstances re¬
ferred to within.
By order of Colonel. Bowman :
Captain, Adjutant Twenty-fifth Infantry.
Seven inctosures.
7111
133
[Fourth indorsement.]
Fort Niobrara, NebA., May 2, 1903.
Respectfully returned to the adjutant Twenty-fifth Infantry, report
Inclosed. I was relieved from duty with Company L in August, 1899.
A. B. Shattuck,
Capttnn, Quartermaster Twenty-fifth Infantry.
[Fifth indorsement.]
Headquarters Twenti-fifth Infantry,
Fort Niobrara, Nebr., May 3, 1903.
Respectfully referred to the commanding officer Company M, Twenty-
fifth Infantry, for report on separate paper of the circumstances men¬
tioned within as far as can he gathered from records of company or
testimony of enlisted men.
By order of Colonel Bowman.
J. D. Leitch,
Captain, Adjutant Twenty-fifth Infantry.
[Sixth indorsement.]
Company M, Twenty-fifth Infantry,
Fort Niobrara, Nebr., May 26, 1903.
Respectfully returned to the adjutant Tw enty-lifth Infantry ; report
herewith inclosed.
J. P. O'Neil,
Captain, Twenty-fifth Infantry, Commanding Company M.
[Seventh indorsement.]
Headquarters Twenty-fifth United States Infantry,
Fort Xiohrura, Nebr., May 26, 1903.
Respectfully referred to Capt. S. P. Lyon, Twenty-fifth Infantry, for
remark.
By order of Colonel Bowman.
J. D. Leitch,
Captain, Adjutant Ticenty-fifth Infantry.
[Eighth indorsement.]
Fort Niobrara, Nebr., June 16, 1903.
Respectfully returned to the adjutant, Fort Niohrara, Nebr., report
Inclosed.
Samuel P. Lyon,
Captain, Twenty-fifth Infantry.
[Ninth indorsement.]
Headquarters Twenty-fifth United States Infantry,
Fort Niobrara, Nebr., June 21, 1903.
Respectfully forwarded to the Adjutant-General LTnited States Army
(through military channels) inviting attention to fourth, sixth, and
eighth indorsements hereon, and the three inclosures to these indorse¬
ments, being letters from Captains O'Neil, Shattuck, and Lyon, Twenty-
fifth Infantry. The records of this regiment show that a board of
officers, consisting of Capts. H. A. Leonbnusei, W. J. Pardee, and
F. H. Albright and First Lieut. C. F. Bates, Twenty-fifth Infantry, was
convened on October 14, 1899, to consider evidence in this case and
decide what amount of damage should be assessed to companies L
and M, Twenty-fifth Infantry, but there is no record of the report
of the board ever having been sent through these headquarters.
First Lieut. C. F. Bates, Twenty-fifth Infantry, who is now serving
at this post, was recorder of the board in question, and states that on
account of the officers composing the board being scattered widely in
Luzon it was impracticable to make up the proceedings, so that no
report was ever made.
A. H. Bowman,
Colonel Twenty-fifth Infantry, Commanding.
[Tenth indorsement.]
Headquarters Department of the Missouri,
Omaha, Nebr., June 2'/, 1903.
Respectfully returned to the Adjutant-General of the Army, inviting
attention to the ninth indorsement.
W. M. Weight,
Captain, Second Infantry, A. D. C.,
Acting Adjutant-General, in absence of Department Commander.
7111
134
[Eleventh indorsement.]
War Department, Adjutant-General's Officb,
Washington, June 29, 190S.
Respectfully referred to the Quartermaster-General for remark.
By order of the Secretary of War.
E. R. Hills,
Major, Artillery Corps, Acting Assistant Adjutant-General.
[Twelfth indorsement.]
War Department,
Quartermaster-General's Office,
Washington, July 11, 1903.
Respectfully returned to the Secretary of War.
The records of this office fail to show the receipt of any claim for
destruction of property and wounding of Christopher Wilhelm Deisa
In " Berte " Klucny's saloon, at Winnemucca, Nev.
There is no appropriation applicable to the payment for damages.
The only relief for such claimants is in the action of Congress.
C. F. Humphrey,
Quartermaster-General U. 8. Army.
[Thirteenth indorsement.]
War Department, Adjutant-General's Office,
Washington, July 16, 190S.
Respectfully referred to the Judge-Advocate-General for remark.
By order of the Secretary of Waj:
E. R. Hills,
Major, Artillery Corps, Acting Assistant Adjutant-General.
[Fourteenth indorsement.]
War Department,
Judge-Advocate-General's Office,
Washington, D. C., July 23, 1909.
Respectfully returned to the Adjutant-General.
On June 29, 1899, a troop train carrying portions of the Twenty-
fourth and Twenty-fifth Infantry, on their way to San Francisco to
embark for the Philippines, stopped at Winnemucca, Nev. Soldiers
from this train are alleged to have entered the saloon of one Bert
Klucny, to have helped themselves to the contents of the place, to
have damaged the premises, and to have shot one Christopher Deiss,
an attendant of the saloon.
A letter from Hon. Francis G. Newlands, United States Senate, in¬
closes two letters from Mr. Bert Klucny, in which the latter speaks
of having claimed for himself $5,000 damages and of a claim for
$100,000 made by Christopher Deiss. Nothing is known in this office
regarding such claims having been made, and in the twelfth indorse¬
ment the Quartermaster-General states that no such claims are on
file in this office. It is thought from the amounts mentioned and the
circumstances of the case that if these claims were made it must
have been with the idea that the United States Government was re¬
sponsible. For the tortious acts of its soldiers the Government can
not be held responsible, and the only remedy apparent might be
through the powers given to certain officers under the fifty-fourth
article of war.
So far as the measure of damages to the saloon and Its contents
is concerned, it is on record in these papers that Bert Klucny refused
to give a statement of the amount of his loss.
Complaint appears to have been made to the commanding officer
of the train at Winnemucca immediately after the fracas occurred,
and he appears to have given the local authorities every opportunity
to identify the perpetrators of the damage, without result. A com¬
plaint appears therein to have reached the commanding general, De¬
partment of California, who caused the judge-advocate of the depart¬
ment to make an investigation. The investigation was had at Winne¬
mucca, and a report made on July 13, 1899. As by that time the
Twenty-fifth Infantry was on its way across the Pacific, the investi¬
gation could only be of an ex parte nature. The conclusions formu¬
lated by the judge-advocate in his report are, inter alia, that the
Bhooting of Deiss was not done with a service pistol, and that " the
destruction of property and wounding of Christopher Wilhelm DelBS
in ' Bert' Klucny's saloon are due to the disorderly conduct and
criminal actions of the enlisted men of Companies h and M, Twenty-
fifth Infantry."
7111
135
ThU report was forwarded to the Adjutant-General of the Army
July 15, 1899, indorsed : " ♦ * » with recommendation that $250
be stopped from officers and enlisted men of Companies L and M
Twenty-fifth Infantry, and paid to Mr. C. W. Deiss, barkeeper of Berf
Klucny's saloon.
" No recommendation for damages to Klucny's saloon should be made,
as he declines to state his loss."
How the sum of $250 as compensation to Deiss was fixed upon Is not
stated.
The papers appear to have been referred to this office and the then
Judge-Advocate-General returned them on August 4, 1S99, to the Ad¬
jutant-General, with a recommendation that proceedings be taken
under the fifty-fourth article of war, in view of the decision of the De¬
partment In the Palmer case (1S95, A. S. O., 28574), and suggesting
that the procedure established for such cases in General Orders, No. 35,
Adjutant-General's Office, 1868, be followed, and a board convened by
the commanding general, Department of California, to assess the
amount of damages, etc., and that when assessed the amount be stopped
against the guilty individuals or, if the Palmer case be taken as a
Erecedent, against the organizations some members of which appear to
ave committed the depredations.
The matter now comes up under the letter of Senator Newlands.
This letter was referred to the headquarters of the Twenty-fifth In¬
fantry at Fort Niobrara, and from thence to various officers of the regi¬
ment having a knowledge of the case. From the ninth indorsement,
by Col. A. H. Bowman, Twenty-fifth Infantry, returning the papers, we
find that a board was convened on October 14, 1899, to consider evidence
in the case, but that there is no record of the report of the board ever
having passed through regimental headquarters. From the recollections
of Lieutenant Bates, who was recorder of the board, Colonel Bowman
is informed that, owing to the members of the board being scattered in
Luzon, it was impracticable to make up the proceedings, and no report
was ever made.
It is to be regretted that this board did not report, and it is sur¬
prising that, having been once formally detailed, the board was
allowed to disregard its orders and drop out of sight.
Over four years have elapsed since the occurrence at Winnemucca.
The term of enlistment of every man on the troop train has expired.
The report of Captain O'Neil, Twenty-fifth Infantry, shows that there
were but nineteen men in company M, Twenty-fifth Infantry, in May
26, 1903, who were in the company on June 29, 1899, and that none of
them were present during the trouble at Winnemucca. It is probable
that a similar condition obtains in Company L.
Under these circumstances there seems to be nothing that can be dons
looking toward " making reparation from the offenders' pay."
It would be out of the question, in the absence of any identification
of the actual culprits, to stop at this date an amount from the pay of
the two companies involved.
It is recommended that Senator Newlands be advised that there are
no claims on file in the Department made by Bert Klucny or by Chris¬
topher Deiss, and that after considering the data available in the case
it is not thought that anything can now be done by the Department
looking toward granting compensation either to Mr. Klucny or to Mr.
Deiss for what damage they may have suffered.
Geo. B. Davis,
Judge-Advocate-General.
[Fifteenth indorsement.]
Wab Department, Adjutant-General's Office,
'Washington, July g7, 1903.
Respectfully returned to the Secretary of War with report as directed
on the first fold of this paper.
W. P. Hall,
Acting Adjutant-General.
Fobt Niobeaha, Nebb., April SO, 190S.
The Adjutant Twenty-fifth Infantby.
Sib : In compliance with instructions from your office, I have the
honor to submit the following report relative to the affair at Winne¬
mucca, Nev. The train bearing Companies L and M, Twenty-fifth In¬
fantry, and K, Twenty-fourth Infantry, arrived at this town about dark
June 29, 1899. The majority of the officers, myself included, pro¬
ceeded to the nearest eating house for supper. During the meal a
citizen entered the room and reported that the soldiers had wrecked
a saloon and shot a man.
7111
13G
All the officers Immediately left the room, and I proceeded at once
to the cars occupied by Company L, Twenty-fifth Infantry, which com¬
pany I commanded. , , ,
The men were in or about the cars, quiet and orderly; the street was
filled with citizens, and more or less excitement prevailed. In a few
minutes the commanding officer ordered me to form my company. It
was formed outside the car, roll called, all were present, and the men
were then carefully inspected by several of the citizens, who claimed
they could identify the men who had done the shooting. I accompanied
them, questioned the men, and gave all possible assistance to locate the
guilty parties. Sergeant Smith, an old soldier with an excellent record,
was recognized as having been in the saloon. He admitted it; stated
that he went there immediately upon the arrival of the train, sat at a
table, had some beer, paid for it, and returned to his car, and was in
the car when the discharge of firearms took place, and that he had no
knowledge of the affair. His statements were corroborated and he was
believed. His revolver and ammunition were examined. The revolver
had not been fired and his ammunition was as issued. A private named
Porter was also recognized as having been in the saloon. It was proved
that he sat at the table with Sergeant Smith and that the beer he had
was paid for. He also claimed to have left the saloon before the trouble
and shooting began. Neither man could give any information on the
subject. Twice again the company was formed outside the car and
carefully inspected. No one could be identified as having been mixed
up in the affair, and none of the alleged stolen articles were found.
All the men to whom revolvers had been issued were fallen in, their
revolvers inspected by the sheriff and myself; none were found to have
been fired and all ammunition was as issued. Suddenly the search for
the soldier who had fired the shot which had hit a citizen stopped and
a new one begun for a soldier who was said to have stolen some four
bottles of beer.
A white recruit traveling in one of the cars occupied by Company
L said he was in the saloon at the time, had seen the man take the
beer, and could recognize him. The company was again inspected by
the sheriff, myself, and the said recruit. He could not identify the al¬
leged thief. We were detained at Winnmucca some six hours. During
the time men were quiet and orderly. I asked repeated questions of
the various men, all disclaimed any knowledge or participation in the
affair, and it was impossible to select any one as having been engaged
in the same. I did not enter or go near the saloon in question and
know nothing as to its condition at any time. As the commanding'
officer of Company L, Twenty-fifth Infantry, and being present at the
time, it is only fair and just, both to myself and the men to reply to
certain statements in the report of the judge-advocate, especially his
" conclusions as to the facts," and which he states " of necessity rest
upon ex parte information." I am positive had he been present on the
night in question he could never have arrived at some of his conclu¬
sions. Company L was not allowed to leave its coaches in a body,
as might be inferred, i>age 4, said report. The companies were re¬
cruited- to an unusual size, and it did not take many colored soldiers
at about dark to give the impression that the streets of Winnemucca
were crowded. Fewer still, that said saloon was crowded—a room
20 by 20, containing bar, table, and chairs. Company L was the first
company to be inspected; when its inspection was over much surprise
was evinced when it was learned that this was only one-third of the
soldiers present. I never heard a probable estimate as to the number
of soldiers in said saloon. When we reached Winnemucca the men had
had their supper, the berths were made down, and I have always be¬
lieved that only a comparatively few men left the train. The im¬
pression should not prevail that men of Company Iv, Twenty-fourth In¬
fantry, were not allowed to leave the train at stations. I was present
and saw them.
All soldiers, so far as I observed, conducted themselves well on such
occasions. It was a matter of talk in the officers' car, between officers
and civilians, that a sergeant of this company was the only person
found on the train whose revolver had been discharged, evidently some
time before, said to have been at prairie dogs after leaving Port As-
sinniboine, and which explanation was, I believe, satisfactory. If the
statements of the noncommissioned officers of said company are to re¬
ceive such weight (p. 4, J. A.'s report), the statements of noncommis-
. eioned officers of the other companies present should receive equal
weight. At the time and place I heard no statements made by the civ¬
ilians which relieved from suspicion one company more than another.
The coaches occupied by Company L, Twenty-fifth Infantry, were in
rear and nearly opposite said saloon. When the shooting began it
would have been the most natural th'"" for those men off the train
7111
137
to get on at the nearest point, and this Is probably just what thev did
do, and then proceeded to their proper curs.
Any. statement was made to the judge-advocate which would give
him the impression that the men of Company L had " liberty to leave
the train in any numbers whenever it stopped," such information was
decidedly ex parte and given with no knowledge on the subject. Com¬
pany L occupied two coaches, a noncommissioned officer in charge of
each and a soldier on duty in each coach at all times. My orders
were that no one could leave the train without permission of the first
sergeant, that all must go through his car and out the rear door, which
was next the officers' car, where they would be the more likely to be
observed in getting off and on the train. If conclusion third (p. 5, said
report) was derived from this source of information, it was as unjust
to me as to the men of the company. It is admitted that the soldiers
did no shooting in the saloon. When it was suggested that others be
searched, it was remarked that it was against the law to carry re¬
volvers in Winnemucca. Had such a search been made and revolvers
found, it would not have been the first time that such a law had been
found to have been broken.
The bullet extracted from the said Deiss was shown to officers In the
car. There could be no possible doubt. It was not Government am¬
munition, neither was it fired from a Government revolver. Chris¬
topher Dtiss teas shot icith a small-caliber revolver while standing In¬
side the saloon near the bar. Why soldiers armed with a Government re¬
volver, caliber .38, were so carefully inspected to find the party who
had fired this shot I did not understand. It certainly would not have
been unreasonable to have inspected the bar and others connected there¬
with in the attempt to locate party who had fired the shot.
In conclusion, I have-never believed that soldiers did the shooting.
They had no motive. I have no doubt the bar was overtaxed, that the
men were not being served fast enough and began helping themselves,
and that then measures were taken to clear the saloon. I think it
well understood that barrooms are, as a rule, supplied with firearms,
within easy reach for cases of emergency. If any inspection was made
of said saloon, I did not hear of it.
The suddenness with which the attempt to locate the party who had
fired the shot which might have killed the said Deiss was dropped, not
to be again taken up, and a search begun for a soldier who was said to
have stolen some four bottles of beer only tended to confirm my impres¬
sions and to infer that some of the citizens at least had their own
doubts on the subject.
Very respectfully,
A. B. Shattuck,
Captain and Quartermaster, Twenty-fifth Infantry.
Fokt Niobrara, Nebr., May 26, 1903.
The Adjutant Twenty-fifth Infantry,
Fort Niobrara, Nebr.
Sir : I have carefully Investigated this case. There are only nine¬
teen men in the company now who were in the company at that date;
none of these were present at the disturbance, and their statem&nts
are all from hearsay. The first sergeant of the company, Wyatt Huff¬
man, was then first sergeant of the company, and might be able to
throw some light on the subject, but he is on furlough and will not
return until after the middle of June.
I was not with the regiment at that time.
Very respectfully, _ „
J. P. O Neil,
Captain, Twenty-fifth Infantry, Commanding Company M.
Fort Niobrara, Nebr., June 16, 1903.
Wie Adjutant, Twenty-fifth Infantry.
Sir: In compliance with seventh indorsement, I have the honor to
submit the following statement regarding the disturbance at Winne¬
mucca, Nev., June 29, 1890.
This affair happened so long ago that my memory is clear only as to
certain prominent points, which are as follows:
About dark on the evening of June 29 the train with Companies L
and M, Twenty-fifth Infantry, en route to San Francisco, reached Winne¬
mucca. I was at that time adjutant of the Second Battalion, Twenty-
fifth Infantry. Shortly after the train stopped most, or may be all, of
the officers went to a hotel a short distance from the station for sup-
Eer. While we were eating a civilian came in and said that a soldier
ad shot a civilian in a saloon near the station. The officers at once
7111
138
left the hotel and went to the train; when we reached there all the en¬
listed men who had left the train had returned, and all was quiet.
1 did not enter or examine the saloon, or see the man who had been
shot. .
The district attorney, with other officials of the town, came to the
train, and every assistance was given them to identify, if possible, the
soldier or soldiers who, they claimed, were involved in the shooting.
The troops were turned out three or four times -for their inspection,
every soldier being present. Although several civilians claimed to be
able to recognize the soldiers who were guilty, they were unable to
do so.
The bullet extracted from the man who, it was claimed, was shot by
a soldier proved on examination not to be a .38 caliber service bullet.
The revolvers in the possession of the men, upon inspection, showed
no evidence of having been fired recently.
My opinion at the time was that, while there bad been some sort of
disturbance in the saloon, it was not proven that the shooting was done
by a soldier, nor did the evidence we could gather and an examination
°t. the bullet even indicate strongly that such was the case. This
opinion I have had no reason to change.
To the best of my recollection the matter of guards and permitting
men to leave cars at the stations was turned over to the company com¬
manders and managed by them, subject to the approval of the bat¬
talion commander.
Very respectfully, Samuel P. Lyon,
Captain, Twenty-fifth Infantry.
War Department,
Washington, August 19, 1903.
My Dear Sir : The Department duly received your letter of April 6
last, inclosing two communications from Mr. Bert Klucny relative to
claims of himself and Chris. Deiss for damages alleged to have been sus¬
tained at the hands of United States colored troops while passing
through the town of Winnemucca, Nev., en route to the Philippines,
and asking if the said claims have ever been filed in the War Depart¬
ment ; and if so, what disposition has been made of them.
Replying thereto, I beg to inform you that no such claims are on
file In the Department, and, after considering the data available in the
case, it is not thought that anything can now be done by the Depart¬
ment toward granting compensation either to Mr. Klucny or to Mr.
Deiss for what damage they may have suffered.
The inclosures above referred to are returned herewith, as requested.
Very respectfully,
W. Sanger,
Assistant Secretary of War,
Hon. Francis G. Newlands,
United States Senate.
Mr. FORAKER. I call attention to the report by George B.
Davis, Judge-Advocate-General, on this subject; also a report
by Capt. A. B. Shattuck, quartermaster of the Twenty-fifth
Infantry at the time, and also a report of Capt. Samuel P.
Lyon, captain of one of the companies. I want to read some of
this. All this was omitted, Mr. President, for some reason, when
we were given an account of the shooting at Winnemucca. We
were given an account which showed that colored soldiers had
done the shooting. Now, what does this say? Captain Shat¬
tuck in making a report on the subject, dated at Fort Niobrara,
Nebr., April 30, 1903, says .what I shall read. The regiment
had gone to the Philippines and had returned when he was
called upon for this report.
Fort Niobrara, Nebr., April SO, 190S.
Sir : In compliance with instructions from your office I have the
lionor to submit the following report relative to the affair at Winne¬
mucca, Nev. The train bearing Companies L and M, Twenty-fifth
Infantry, and K, Twenty-fourth Infantry, arrived at this town about
fiark June 29, 1899. The majority of the officers, myself included,
proceeded to the nearest eating house for supper. During the meal a
citizen entered the room and reported that the soldiers had wrecked a
saloon and shot a man.
AH the officers immediately left the room, and I proceeded at once
7111
139
to the cars occupied by Company L, Twenty-fifth Infantry, which com¬
pany I commanded.
ThS„m?Q ^5reor about the cars, quiet and orderly; the street
was filled with citizens and more or less excitement prevailed. In a
few minutes the commanding officer ordered nie to form my company
It was formed outside the car, roll called, all were present, and the
men were then carefully inspected by several of the citizens who
claimed they could identify the men who had done the shooting. I
accompanied them, questioned the men, and gave all possible assistance
to locate the guilty parties. Sergeant Smith, an old soldier with an
excellent record, was recognized as having been in the saloon. He ad¬
mitted it, stated that he went there immediately upon the arrival of
the train, sat at a table, had some beor, paid for it, and returned to
his car, and was in the car when the discharge of firearms took place,
and that he had no knowledge of the affair. His statements were
corroborated, and he was believed. His revolver and ammunition were
examined. The revolver had not been fired and his ammunition was
as issued. A private named Porter was also recognized as .having
been in the saloon It was proven that he sat at the table with Ser¬
geant Smith, and that the beer he had was paid for. He also claimed
to have left the saloon before the trouble and shooting began. Neither
man could give any information on the subject. Twice again the com¬
pany was formed outside the cat wd carefully inspected. No one
could be identified as having been mixed up in the affair, and none of
the alleged stolen articles were found. All the men to whom revolvers
had been issued were fallen in, their revolvers inspected by the sheriff
and myself; none were found to have been fired, and all ammunition
was as issued. Suddenly the search for the soldier who had fired the
shot which had hit a citizen stopped and a new one begun for a soldier
who was said to have stolen some four bottles of beer. A white re¬
cruit, traveling in one of the cars occupied by Company L, said he
was in the saloon at the time, had seen the man take the beer, and
could recognize him. The company was again inspected by the sheriff,
myself, and the said recruit. He could not identify the alleged thief.
We were detained at Winnemucca some six hours. During the time
men were quiet and orderly. I asked repeated questions of the various
men; all disclaimed any knowledge or participation in the affaii, and it
was impossible to select anyone as having been engaged in the same.
I did not enter or go near the saloon in question, and know nothing
as to its condition at any time. As the commanding officer of Com¬
pany L, Twenty-fifth Infantry, and being present at the time, it is
only fair and just, both to myself and the men, to reply to certain
statements in the report of the Judge-Advocate, especially his " con¬
clusions as to the facts," and which he states " of necessity rests upon
ex parte information." I am positive had he been present on the night
in question he could never have arrived at some of his conclusions.
Company L was not allowed to leave its coaches in a body, as might
be inferred (p. 4, said report). The companies were recruited t* an
unusual size, and it did not take many colored soldiers, at about dark,
to give the impression that the streets of Winnemucca were crowded.
Fewer still that said saloon was crowded—a room 20 by 20, contain¬
ing bar, table, and chairs. Company L was the first company to be
Inspected. When its inspection was over, much surprise was evinced
when it was learned that this was only one-third of the soldiers
present. I never heard a probable estimate as to the number of sol¬
diers In said saloon. When we reached Winnemucca, the men had
their supper, the berths were made down, and I have alwajs believed
that only a comparatively few men left the train. The~impression
should not prevail that men of .Company K, Twenty-fourth Infantry,
were not allowed to leave the train at station. I was present and saw
All soldiers, so far as I observed, conducted themselves well on such
occasions. It was a matter of talk in the officers' car, between officers
and civilians, that a sergeant of this company was the only person
found on the train whose revolver had been discharged, evidently some
time before, said to have been at prairie dogs after leaving Fort Assin-
niboine, and which explanation was, I believe, satisfactory. If the
statements of the noncommissioned officers of said company are to
receive such weight (p. 4, J. A.'s report) the statements of noncom¬
missioned of the other companies present should receive equal weight.
At the time and place I heard no statements made by the civilians
which relieved from suspicion one company more than another.
The coaches occupied by Company L, Twenty-fifth Infantry, were in
rear and nearly opposite said saloon. When the shooting began, It
wnnld liavp been the mos± natural thing for those men off the train to
fret on alT the nearest point and this Is probably Just what they did
do, and then proceeded to their proper cars.
7111
140
I have read all that with care, because It Is all responsive to
the charges that are made against these men in the Judge-Advo-
cate-General's report, which has been sent to us as though a cor¬
rect and undisputed account of what occurred.
Now, passing over a sentence and coming to the point, he
points out how the man who was wounded had the bullet ex¬
tracted from him. and says :
The bullet extracted from the said Delss was shown to officers in the
car. There could be no possible doubt. It was not Government ammu¬
nition, neither was it fired from a Government revolver. Christopher
Deiss was shot with a small caliber revolver while standing inside the
saloon near the bar.
So lie goes on, Mr. President. I have read enough to show
the nature of it. Captain Lyon sustains what Captain Shattuck
says; every other officer who makes a report sustains him, and
thus it is shown by this testimony that there is 110 reliance to be
placed in the Judge-Advocate-General's report that was sent
to us.
Therefore, so far as Winnemucca is concerned, there was no
shooting by any member of the Twenty-fifth Infantry, let alone
by any member of either Company B, Company C, or Company D,
neither of which companies was there. It is not for me to say
why this important testimony was withheld when we were ask¬
ing for the history of these shooting affrays. These helpless
wards of the Nation were put in the attitude of having under¬
taken to murder a man on whose premises they had gone, with¬
out at the same time giving us this conclusive testimony to show
they had not done any such thing. I make no comment; it is
not necessary.
I have shown that at Fort Sturgis, twenty-seven years ago,
some men from Company H did shoot and kill a man in a raid¬
ing party. I have shown that at San Carlos some men of Com¬
pany C got into an affray of some kind, without guns or deadly
weapons, and had a fight, in which the negroes got the better
of some Indians. I have shown that at Winnemucca, where it
was undertaken by the records sent us to establish that they did
some shooting, they did not do any shooting. I do not have to
comment on it. It is not necessary. It speaks for itself.
Mr. TILLMAN. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from South Carolina?
Mr. FORAKER. Certainly.
Mr. TILLMAN. I call the Senator's attention to the state¬
ment he made a little while ago as erroneous in regard to all the
men having been engaged in these shooting scrapes having been
punished. Nothing has ever been done with those who killed a
negro woman at Fort Niobrara.
Mr. FORAKER. I am coming to that in a minute, to show
you that tliey did not kill any negro woman at Fort Niobrara.
Mr. TILLMAN. Then, in the name of common sense, what
did the War Department mean by sending us all this stuff?
Mr. FORAKER. That is what I want to know. I will
show you what it is. That is what I am here for. I will show
you what was done at Fort Niobrara in a minute.
But next came a most deplorable shooting affray, that which
occurred at Fort Bliss, at El Paso, Tex. There a member of
Company A—not one of theee three companies—a member of
Company A of the Twenty-fifth Infantry was arrested and put
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In jail. His comrades wanted to bail him out. They would not
accept bail. This is at page 352. His comrades went back to
camp, 2 or 3 miles distant, and at midnight or later got away
from the sergeant in charge of the gun racks the key, went to the
gun racks and took out their guns, organized a raiding party
of four or five men, marched back to the .iail with axes and guns
to liberate their comrade, and in the affray that resulted one
of the soldiers was killed and one of the jailers was killed.
Now, that was a crime without any excuse at all in law. I am
not here to extenuate it. But, Mr. President, General McKib-
ben, known to most Senators as one of the most splendid officers
in the Army, made a report upon that, in which he showed
there was great provocation. I do not cite that for the pur¬
pose of extenuating the crime, but simply that justice may be
done, and that these men, who for forty years have stood faith¬
fully to the flag and the honor of their country, shall not, in
addition to being denounced as guilty of this particular crime,
be branded as a lot of cutthroats and brutal murderers, as
shown by the records that are sent here. So much for that.
Now, I come to the last, Fort Niobrara; and what about Fort
Niobrara? This regiment was stationed there. Company B
was there along with some other companies of the regiment.
There was a place a mile and a half distant from the reserva¬
tion where a drinking place was kept. About midnight some
men fired into that place, wounded two people, one of them a
colored soldier belonging to Company B, who was sitting there
simply a guest in the establishment. Nobody but colored men
went there. The country was full of cowboys. There is no
testimony to this day who did it. The officer of the day in
that case, on duty at the time, hearing the firing and getting a
report that there had been an alleged shooting, at once posted
extra pickets to detect anybody who might be returning to the
camp, and had check roll call, and the guns inspected, and every
soldier was there, and every man was there except only one
white soldier from Company K of the Eleventh and two men out
of the band.
The place that was fired upon was a place that was fre¬
quented not by white people, but only by the soldiers of this
command, and if it be an absurdity to think, as Senators have
forcibly said it is, that the people of Brownsville could be
charged with shooting up themselves, was it not also an ab¬
surdity to say that members of this colored regiment would go
down and in a wanton way shoot up their comrades who were
there at that place of entertainment?
Now, that is all there is of this record. This bloody history,
of which we have heard so much, consists of two shooting
affrays, and only two, in which anybody was killed, one at EI
Paso—utterly inexcusable; I do not pretend to extenuate it—
and the other at Fort Sturgis, twenty-seven years ago, and in
no one of these did any member of Company B or Company C
or Company D take any part. The record of these companies,
covering forty years, is without a blemish.
Mr. President, that is not all. I have here an official con¬
gratulatory order issued to the Twenty-fifth Regiment at the
close of the Spanish-American war. I will ask permission to
put it in the Record in full. It is embodied in a newspaper
article giving the history of the Twenty-fifth Regiment. It is
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about a column in length. I ask that the whole article be In¬
corporated in my remarks, including this official congratulatory
order. I want to cite it simply to show that the order com¬
mences with a statement that for the first time in twenty-eight
years the whole regiment had been assembled when the Spanish-
American war commenced. For twenty-eight years they had
been scattered over the country doing duty, a company here and
another yonder, or a battalion here and another yonder, per¬
haps. These units of organization had been as separate and
distinct as though they were so many separate and distinct
regiments. When the war came the whole regiment was brought
together for the first time in that long period, and the record
shows that no regiment that went to Cuba won more honor on
the field of battle than did the Twenty-fifth Infantry, and no
companies in the American Army have a clearer record or a
more gallant and heroic record than Companies B, C, and D of
that regiment. Not a man of either one of these companies,
according to these reports, that are spoken of as a condemna¬
tion of the regiment had anything to do with any shooting affray.
No one of them had anything to do with any disturbance of any
kind except the few men of Company C who got into an alter¬
cation with some Indians, where there was no shooting at all,
a thing that might happen with any white company and has hap¬
pened hundreds of times with white companies.
The VICE-PRESIDENT. Without objection, the paper will
be printed in the Record.
The matter referred to is as follows:
FACED BULLETS LIKE HEROES OFFICIAL STORY OF THE TWENTY-FIFTH
UNITED STATES INFANTRY AT EL CANEY COLORED REGULARS PROVED
THEIR YALOR UNDER A MUPDEROUS FIRE WAS IN THE NEAREST IN-
TRENCHMENT TO SANTIAGO WHEN THE SURRENDER OF THE CITY WAS
MADE.
All the Army made history during the short Cuban war; but the
colored regulars in three days practically revolutionized the sentiment
of the country in regard to the colored soldier, and as a result more
than 100 Afro-Americans are bearing commissions in the United States
Army.
The entire colored contingent—the Ninth and Tenth Cavalry and the
Twenty-fourth and Twenty-fifth Infantry—did well. It has been said
by one who knows : " Not a colored soldier disgraced himself on Cuban
soil." Indeed, the converse of this is practically true. Every colored
soldier honored himself.
Without desiring to take away one leaf or sprig from the laurels won
by the other colored regiments, and with a full recognition of the valor
of the entire Army, I invite attention to the following official story of
the action of the Twenty-fifth United States Infantry in the Cuban
campaign:
I may summarize in advance by saying that the Twenty-fifth was the
first regiment to leave its home station, the first to go into camp, was
a part of the first expedition to Cuba, and the second to land, and had
the honor of digging the intrenchments nearest to the enemy's line. In
physique and discipline it was so nearly perfect that only one man from
its ranks died on Cuban soil from climatic disease and only two from
diseases of any sort. The men are mostly large, many of them being
six-footers and weighing, when in good condition, 200 pounds and over,
and the standard of intelligence among them and the language used are
about up to what obtains in the Army generally. In marksmanship,
drill, and general military knowledge and skill they have attained a
high degree of efficiency, and, as a whole, are of excellent character and
temper.
The present regimental commander is Lieut. Col. A. S. Daggett, a
highly accomplished officer, who rose to the rank of colonel in the civil
war and was brevetted brigadier-general for gallant and meritorious
services in the battle of the Wilderness. He came to the command of
the regiment in Tampa but a few weeks before it embarked on the
transports for Cuban shores.
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The story that I am now to present to the readers of the Herald Is
woven almost entirely from the official reports and orders of Colonel Dae
gett, who commanded the regiment most successfully through the fierce
fight before Santiago. Anyone who saw the regiment as it passed the
camp of the Second Massachusetts on its way to the present caron
would have witnessed an open and cordial tribute to its valor. As thewe
worn and dusty—and dusky—veterans swung by the cultivated, well-
bred amateur warriors of Massachusetts the young heroes gave them
such cheers and apylause as soldiers seldom give. " They have a good
feeling for us," said a sergeant of the Twenty-fifth to me. " They think
you are soldiers," I remarked. " They know we are soldiers," he re¬
plied.
The Twenty-fifth, with all the other colored regiments, is known as
a band of fighters.
The history of the, campaign of the Twenty-fifth is succinctly and
graphically told in the following general orders published near Santiago,
August 11, 1898 :
" Gathered from three different stations, many of you strangers to
each other, you assembled as a regiment for the first time in more than
twenty-eight years on May 7, 1898, at Tampa, Fla. There you en¬
deavored to solidify and prepare yourselves, as far as the oppressive
weather would permit, for the work that appeared to be before you.
But who could have foretold the severity of that work? You endured
the severe hardships of a long sea voyage, which no one who has not
experienced it can appreciate.
" You then disembarked amid dangerous surroundings, and on land¬
ing were for the first time on hostile ground. You marched under a
tropical sun, carrying blanket roll, three days' rations, and 100 rounds
©f ammunition, through rain and mud, part of the time at night, sleep-
ingon the wet ground without shelter, living part of the time on scant
rations, even of bacon, hard bread, and coffee, until, on July 1, you
arrived at El Caney. Here you took the battle Jformation and advanced
to the stone fort more like veteran troops than troops who had never
been under fire.
" You again marched day and night, halting only to dig four lines
of intrenchments, the last being the nearest point to the enemy reached
by any organization, when, still holding your rifles, within these in¬
trenchments, notice was received that Santiago and the Spanish army
had surrendered.
" But commendable as the record may be, the brightest hours of your
lives were on the afternoon of July 1. Formed in battle array,, you
advanced to the stone fort against volleys therefrom, and rifle pits in
front, and against a galling fire from blockhouses, the church tower,
and the village on your left. You continued to advance skillfully and
bravely, directed by the officers in immediate command, halting and de¬
livering such a cool and well-directed fire that the enemy was com¬
pelled to wave the white flag in token of surrender.
" Seldom have troops been called upon to face a severer fire, and
never have they acquitted themselves better.
" The regimental reserve was called upon to try its nerve by lying
quiet under a galling fire without returning it, where men were killed
and wounded. This is a test of nerve which the firing line can not
realize, and requires the highest quality of bravery and endurance.
You may well return to the United States proud of your accomplish¬
ments, and if any ask what you have done, point him to El Caney."
The history of that part of the battle performed by the Twenty-fifth
is further detailed by the regimental commander in his official reports
to his superiors. These reports and the orders just quoted from consti¬
tute the whole official literature on the subject, and hence the present
story may be regarded as both authentic and exhaustive.
According to Colonel Daggett's report the regiment occupied the right
of a short reconstructed line, with the Fourth Infantry on its left. To
the right of the Twenty-fifth somewhere were about fifty Cubans, but
the testimony is that they did not help in the fight.
The firing line of the Twenty-fifth consisted of two companies—H and
G. Company D was then ordered to deploy as flankers on the right.
This battalion was commanded by Capt. W. S. Scott, and advanced in
line with the Fourth Infantry, all being under fire, until within about
500 yards of the fort. Here the line found cover, halted, and delivered
an effective fire. At this point the Fourth Infantry was blocked by
natural obstacles, and could make no further advance, but continued to
pour a telling fire into the fort. .
Colonel Daggett ordered an advance, which was quickly made by the
Twenty-fifth, but in doing so it broke away from the Fourth, which
was halted on its left, and thus separated itself from the brigade and
exposed its left to a severe oblique, or nearly cross Are, from the vil-
7111
144
Iage and blockhouses which were on the left and a little in front of El
Caney. Company C was then ordered to reenforce the left of the line,
and Lieutenant Kinson's company was called from the reserve to re¬
place Company C in the line of support, thus making five companies in
action.
The battalion in this formation continued to advance from cover to
cover until it reached a point within 50 yards of the fort. Here these
companies opened so cool, steady, and sure a fire that a Spaniard could
not show himself but he was immediately hit, and fifteen or twenty
minutes before any other troops came up the enemy put out the white
flag.
The space, however, between the front of the Twenty-fifth and the
fort was so swept by the cross fire from the church and blockhouses on
the left that it was impossible for one of our officers to cross to re¬
ceive the surrender of the fort or for a Spanish officer to bring the
flag to our lines.
At the end of about twenty minutes one company of the Twelfth In¬
fantry, which had gotten round to a point where they were thoroughly
screened from the fire of both the fort and the village, under protec¬
tion of the fire of the Twenty-fifth, entered the fort and received the
surrender, which the bullets of the Twenty-fifth had brought about.
Two of our men—Butler, of H Company, and J. H. Jones, of I Com¬
pany—entered the fort at the same time with the men of the Twelfth,
and while an officer of that regiment received the white flag of sur¬
render, these two men seized the Spanish standard. They were imme¬
diately ordered to give it up by an officer of the Twelfth and obeyed,
but before doing so they each tore a piece from the flag. One of these
pieces I have seen and examined, and the man who has it I have known
for years, and I do not hesitate to accept his story. The fact, indeed,
is so well attested that it is embodied in official reports.
The conduct of the regiment and the skill and courage of the com¬
manding officer, as well as of the company officers, were such as to
elicit highest praise. From the regiment four sergeants have been
promoted to commissions, and Lieutenant-Colonel Daggett has received
most flattering mention, the whole action of the regiment being re¬
garded as especially brilliant.
T. G. Steward,
Chaplain Twenty-fifth Infantry.
Mr. FORAKER. Now, Mr. President, one other thing. I
said I was amazed at the spirit of ugliness toward these men
which has cropped out. The shooting affray was in August last.
Mr. NEWLANDS. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Nevada?
Mr. FORAKER. Yes, sir.
Mr. NEWLANDS. Before the Senator goes to a new sub¬
ject I should like to refer to the Winnemucca incident. I have
been absent from the Senate, and I am not familiar with this
discussion. When the Senator alluded to the Winnemucca in¬
cident I sent for the record, and I find on page 340 a quotation
from a newspaper article, to which the Senator referred, which
may explain it. It is as follows:
It developed this morning that had an inspection been made of every
man on the train and his belongings the right soldier who did the
shooting would have been located. It is conclusive that a Government
revolver was not used, but a pistol of .38 caliber that one of the
colored soldiers had stolen from J. Isola's saloon at Carlin.
Mr. FORAKER. Mr. President, I went over that and said
the newspaper article made statements which warranted the
Judge-Advocate-General in making his rep«rt; but that it was
an ex parte report, as to which the company had no representa¬
tion at all; that the charges were not established in any manner,
and the statements of Captain Lyon and Captain Shattuck and
the other officers of this company show conclusively that no
such thing as that occurred. The newspaper article the Sena¬
tor refers to is, as I myself characterized it, bitterly hostile
all the way through; it is sensational; it is a pretty good type
of yellow journalism.
7111
145
Mr. President, since this shooting there have appeared many
charges—I spoke here one day and the next day telegrams were
sent from El Reno about an attack being made on Captain Mack-
lin, that he had been attacked by a discharged soldier of the
Twenty-fifth Infantry. I saw in some quarters a statement to
the effect that that was one of the first fruits of our under¬
taking to say a word in behalf of a hearing for these men. But
that is of no consequence here. That is the story that went out.
What is the truth about it? Everybody knows now that no
discharged soldier of the Twenty-fifth Infantry had anything
to do with it.
Only a few days later, however, the newspapers were filled
with sensational accounts of how h discharged soldier from the
Twenty-fifth Infantry had crowded a Mrs. Clifford off the street
with rudeness and with brutality, and went on to tell how ugly
and vicious and mean these men were, all in keeping with the
character which the Senator from South Carolina conceives
from reading this record they had acquired, but now everybody
knows that story has been exploded. The man who undertook
to pass Mrs. Clifford while crossing the street was a porter on
a Pullman car, who was rushing into a lunch house to get a
sandwich, and had hurried out in order that he might get back
before train time. No incivility whatever was intended, and
there was no clashing except that which was accidental.
Then two or three days later there was a sensational account
of how another discharged soldier of the Twenty-fifth Infantry
had gone into a Chinese laundry, wantonly fired on the China¬
man who was in charge, and had shot him up. But in a few
days after there came a refutation of that to the effect that it
was not a soldier at all, but that it was somebody in the employ¬
ment of the railroad company who had rushed in there and had
some kind of an altercation.
Mr. LODGE. Mr. President
The VICE-PRESIDENT. Does the Senator from Ohio yield
to the Senator from Massachusetts?
Mr. FORAKER. Certainly.
Mr. LODGE. In regard to the shooting of Captain Macklin,
I thought the man who did it had been arrested.
Mr. FORAKER. A man has been arrested recently, but he is
not a discharged soldier of any of these companies.
Mr. LODGE. He was a soldier of Company A.
Mr. FORAKER. I understand he was, but he has not yet
been tried, and I do not know whether or not he is guilty. He
says he is not guilty.
What I am talking about is the sensational account sent out.
Everything that is done is attributed to these men, and at last
we have a sensational account that there is a conspiracy among
the discharged men to murder all the white officers of the
Twenty-fifth Infantry because these soldiers had been dis¬
charged. Now, that has been exploded. Major Penrose says
that there is no truth whatever in the statement that such testi¬
mony has been developed or that anybody has any such thought,
so far as he is aware.
I mention all this, Mr. President, not for the purpose of en¬
gaging in a race controversy or discussing the race question,
but only for the purpose of admonishing Senators that if we
are to investigate this matter with a view to establishing the
7111 10
146
facts let us wait until the facts have been found. We are
strong enough, and there is nobody concerned who is not brave
enough, to have the truth known. If there is any class of peo¬
ple in this country to whom we should be just, to whose rights
we should see to it that no injury is permitted, it is not only the
soldier who is defending us, but it is especially the colored sol¬
dier, who is more helpless, possibly, before the law than any¬
body else.
The Senator from Wisconsin asked yesterday what else was
the President to do but to discharge these men. The President
could not, he said, try them, because there was no evidence.
No evidence! Mr. President, I have heard of that as a reason
many times for not trying men on charges of crime, but I never
before heard of that as a reason why some other kind of punish¬
ment should be meted out to them. I read the other day from
the language of the Supreme Court in the Milligan case, where
the court say that to suspend or suppress or disregard the law
upon the theory that there is some great exigency is always
inexcusable and that it leads only to anarchy or despotism.
That is the language of the Supreme Court.
I say, however, it is not the case, as I look at it, which the
Senator presents. Assuming now, Mr. President, for the sake
of argument, that the men of this battalion, to the number of
sixteen or twenty, did do this shooting, does not every man
know of necessity that the noncommissioned officers in charge
of the quarters, that the noncommissioned officers in charge of
the gun racks, that the sergeant on guard and the sentinel
pacing up and down behind the wall would, of necessity, know
who these men were? They would of necessity know, when the
sixteen or twenty men marched out of quarters, whether they
went out through the gate or jumped over the fence, and espe¬
cially would they know whether these sixteen or twenty men
commenced firing inside the fort, inside the walls, on the prem¬
ises of the Government.
If it be conclusively established, as we are told it te, that
from sixteen to twenty of those men did this shooting, then is it
not of necessity also established that these men to whom I refer
had guilty knowledge; that they were accessories before the fact,
if they did not participate in it. In the nature of things it
would be a human impossibility for those men to commence fir¬
ing, some of them from the barracks, we are told, some of them
outside the barracks from the premises inside the walls, and
then jump over the wall, start down street, shoot up the
town for ten or fifteen minutes, and then rush back and pass
through the guard and everybody else without detection.
Mr. President, it appears that every man was in line when
the roll was called; every man answered; and, not only that,
but a line of guards was put behind the wall to intercept any¬
body who might come from the town, and all this in a very few
minutes.
But I am not going to discuss that. I am only now saying
enough to show that if it was desired to establish the guilt of
these men, it was an easy matter, if they were, in fact, guilty,
to do it by simply ordering a trial, by simply following the
directions of the law, and that is what at first the authorities
started out to do. The civil authorities arrested thirteen of
these men, twelve of them soldiers and one an ex-soldier who
7111
147
had been discharged but a few days before. The men arrested
were the sergeant of the guard and the men who constituted
the guard, the sentinels, the men who were in charge of the
quarters, the men who held the keys to the gun racks, the men
who, of necessity, would have knowledge. If before a tribunal
such as the law authorized when it provided that men subject
to such charges should be tried by court-martial witnesses had
been called, if there was any shooting done at all by anybody
connected with the battalion, those were the very men who
would have had a prima facie case against them upon circum¬
stantial evidence of a character so strong that the President
held it to be conclusive, and who would have been convicted,
and the men who committed this great crime, if they committed
it, would have been brought to punishment and a punishment
adequate would have been inflicted.
But beyond suggesting that there was evidence to warrant
the trial—far more evidence than many times is laid before a
prosecuting attorney and a grand jury when an indictment is
found charging a man with crime—beyond showing that there
was that predicate for a trial, and that they were not allowed a
trial, but were denied it; that by Executive order they were
indicted, tried, convicted, and discharged without any one of
them having a chance to be heard—I do not care to speak. That
was, to my mind, under all the circumstances, without authority
of law, or, if by authority of law, then a disgrace to the Amer¬
ican people.
7111
JANUARY 21, 1907.
Mr. FORAKER. Mr. President, if the morning business IS
closed, I ask that Senate resolution No. 208 may be laid before
the Senate.
The VICE-PRESIDENT. The Chair lays before the Senate
the modified resolution submitted by the Senator from Ohio
[Mr. Foraker] January 16, 1907, which will be read:
The Secretary read the resolution, as follows:
Resolved, That the Committee on Military Affairs is hereby author¬
ized and directed, by subcommittee or otherwise, to take and have
printed testimony for the purpose of ascertaining all the facts with
reference to or connected with the affray at Brownsville, Tex., on the
night of August 13-14, 1906. Said committee is authorized to send
for persons and papers, to administer oaths, to sit during sessions of
the Senate, and, if deemed advisable, at Brownsville or elsewhere, the
expenses of the investigation to be paid from the contingent fund of
the Senate.
Mr, FORAKER. Mr. President, I modify the resolution here¬
tofore offered by me, No. 208, and ask that the modification may
be read from the desk.
The VICE-PRESIDENT. The resolution submitted by the
Senator from Ohio will be read as modified.
The Secretary read as follows:
Resolved, That, without questioning the legality or justice of any act
of the President in relation thereto, the Committee on Military Affairs
is hereby authorized and directed, by subcommittee or otherwise, to take
and have printed testimony for the purpose of ascertaining all the facts
with reference to or connected with the affray at Brownsville, Tex., on
the night of August 13-14, 1906. Said committee is authorized to send
for persons and papers, to administer oaths, to sit during sessions or
recess of the Senate, and, if deemed advisable, at Brownsville or else¬
where, the expenses of the investigation to be paid from the contingent
fund of the Senate.
Mr. FORAKER. Mr. President, I have repeatedly said since
I introduced the first resolution on this subject that I had no
purpose in introducing that resolution to refer to the Commit¬
tee on Military Affairs any question as to the power, constitu¬
tional or legal, of the Chief Executive, my sole purpose being
to have an investigation for the purpose of ascertaining the
facts. In order that we might meet some of the suggestions
that have been made by others, who seemed to fear that ques¬
tion was involved because of the form of the resolution as I
offered it, I have heretofore modified the resolution I originally
offered. That does not seem to have entirely met that objec¬
tion, but I understand that the modification now offered does
meet that objection, so far at least as my party colleagues
are concerned. I have been of the opinion all the while, and
am now, that that question was not involved and that it did not
properly belong here, but I can understand how there may be
differences of opinion about it on the part of men who are as
148 7111
149
earnest as I am and as anxious as I ani to do only justice to all
concerned in the matter.
I agreed to this modification with the understanding on my
part that it does not change the legal effect of the resolution;
that it does not restrict or restrain the scope of the inquiry as
to the facts. When the facts are ascertained we will be in the
situation of having not raised that question in any way what¬
ever and of not being precluded as to that question by anything
that we may have done in the case.
Mr. LODGE. Mr. President, I have an amendment pending
to the resolution of the Senator from Ohio, which Is the first
amendment offered. I desire now to withdraw that amend¬
ment. I do it, Mr. President, for the following reasons:
I have had but one purpose in the part which I have taken in
this debate and in the amendments which I have offered to the
resolution presented by the Senator from Ohio [Mr. Forakeb],
and that was to exclude from the consideration of the com¬
mittee what I thought neither the Senate nor the committee
had the right to discuss—the power of the President to take
the action which he took. That has seemed to me a question
of the very greatest moment. Nothing has appeared to me
more inept than the criticism that those of us who took that
view were advocating measures of centralization or seeking to
increase Executive power. If there is anything to my mind
more essential than another for the conservative maintenance
of the constitutional principles of the Government, it is to keep
entirely separate the three great branches, as the Constitution
provides.
It is not very long, Mr. President, since I most reluctantly,
but most decidedly, in accord with a large majority of the Sen¬
ate, voted to amend certain treaties before us, because it seemed
to me that an interpretation had been placed upon those treaties
which, if maintained, jvould be a distinct infringement upon the
rights of the Senate; and as I am jealous of the maintenance
of all the rights of the Senate and of the Congress, it is equally
important that the rights of the other departments of the Gov¬
ernment should be scrupulously maintained. If we begin to
invade the well-defined provinces of the other departments of
the Government, to review and revise Executive acts, performed
in accordance with the powers conferred upon the Executive,
either by the Constitution, by the statutes, or by both, the time
is not far distant when we may look not merely for Executive
interference with the action of Congress, but for Executive
interference or Congressional interference with the decisions of
the courts, than which I can conceive of nothing more disas¬
trous to the conservation of those great principles on which I
believe the security of our Government rests.
It was to exclude, Mr. President, entirely from the purview
of the committee the consideration of the power of the President
to take action which rested wholly within his executive discre¬
tion that I have taken part in this debate and offered this
amendment. The resolution of the Senator from Ohio, as now
modified, not only embodies in substance my amendment, but
makes it—and I think wisely makes it—more explicit and exact.
Of the resolution of the Senator from Ohio as it now stands,
there can be no possible misunderstanding. I withdraw my
7111
150
amendment, and I trust that the modified resolution of the Sena¬
tor from Ohio may pass exactly as it is now offered.
Mr. BACON. Will the Senator from Massachusetts permit
me to ask him a question?
The VICE-PRESIDENT. Does the Senator from Massachu¬
setts yield to the Senator from Georgia?
>Mr. LODGE. Certainly.
Mr. BACON. I want to ask the Senator this question: The
Senator says there can be no doubt about the construction of
this modified resolution, and possibly we may agree on that; but
I desire to ask the Senator this question with a view to deter¬
mining that point: The Senator will remember that the amend¬
ment offered by the Senator from Kentucky [Mr. Blackburn]
was to insert after the words " Resolved, That" thd words—
Without questioning or denying the legal right of the President to
discharge without honor enlisted men from the Army of the United
States.
The language used in the modified resolution of the Senator
from Ohio is this :
That without questioning the legality or justice of any act of the
President in relation thereto.
Now, taking those two sentences, does the Senator consider or
understand that in construing the sentence as proposed in the
modified resolution of the Senator from Ohio it is the same in
intendment and effect as the language expressed in the amend¬
ment offered by, the Senator from Kentucky?
Mr. LODGE. The modification offered by the Senator from
Ohio [Mr. Foraker] excludes the question of the legality of
the President's action not merely as to the discharge of the en¬
listed men without honor, to which the amendment of the Sena¬
tor from Kentucky [Mr. Blackburn] is confined, but the legal¬
ity of any act relating thereto—that is, of course, as to the
Brownsville matter.
Mr. BACON. So I understand, then, that the Senator con¬
strues the modified substitute proposed by the Senator from
Ohio to mean all that the amendment proposed by the Senator
from Kentucky means and to go still further?
Mr. LODGE. I do.
Mr. BACON. You understand it to mean all that and to go
still further?
Mr. LODGE. Mr. President, I ought to say that the words
" or denying " are left out
Mr. FORAKER. I want to suggest
The VICE-PRESIDENT. Does the Senator from Massachu¬
setts yield to the Senator from Ohio?
Mr. LODGE. Certainly.
Mr. FORAKER. I want to suggest to the Senator from
Massachusetts that, according to my understanding, the two
amendments do not mean the same thing.
Mr. BACON. That was the exact point as to which I de¬
sired information.
Mr. FORAKER. The words " or denying " are left out, and
the effect of the modification, as I have made it, is simply to
leave out of consideration for the present time, and to express
no opinion whatever in regard to it, all questions in regard to
legality or power.
Mr. LODGE. Mr. President, the words " or denying," which
Till
151
I did not think of when I replied to the Senator from Georgia
[Mr. Bacon] seem to me to be of no consequence whatever.
The words used in the resolution are " without questioning."
Mr. BACON. Well, would the Senator object to inserting
them, then, in the modified substitute resolution proposed by the
Senator from Ohio?
Mr. LODGE. Mr. President, I see no ne»?d of inserting the
words " or denying," for the words " without questioning " mean
that we do not question the President's right to do it, if the
English language has any meaning at all.
Mr. BACON. The Senator thinks, then, that the words
" without questioning " include " without denying."
Mr. LODGE. I think they do, to my mind, include it.
Mr. BACON. Yes. Therefore the Senator himself would
have no objection to the insertion of the words " without deny¬
ing."
Mr. LODGE. I certainly shall object to inserting the words
" or denying," if that is what the Senator means.
Mr. BACON. Does the Senator desire, in the passage of this
resolution, to leave any doubt as to whether or not the Senate
deny it?
Mr. LODGE. The resolution as it stands is absolutely satis¬
factory to me. It states that we do not question the Presi¬
dent's right either to discharge the troops or in any act relating
thereto. Nothing can be plainer than that, in my judgment
Mr. BACON. Well, Mr. President, I do not think the Sena¬
tor and I differ very materially as to the end we seek, but we
differ materially as to the phraseology.
Mr. LODGE. Mr. President, I can answer the Senator in a
moment, that the phraseology, as it now stands, seems to me to
perfectly cover the point which I desire to cover. I agreed to
it on that understanding, and I certainly shall not depart from
my agreement. If it does not mean that, then I am greatly
misled.
Mr. BACON. I hope that in the course of the consideration
of this matter we may be able to insert in this modified resolu¬
tion, as now proposed by the Senator from Ohio, after the word
" questioning," the words " or denying."
Mr. FORAKER. Mr. President, I want to say, in answer to
the suggestion of the Senator from Massachusetts [Mr. Lodge],
that my understanding of this language is that it does not com¬
mit the Senate on this proposition in any sense whatever, except
only to let the whole matter stand in abeyance so far as this
investigation is concerned. That is the theory upon which I am
willing to modify the resolution, with that understanding. In
other words, the effect will be precisely the same as though we
were to say " neither affirming nor denying the legality."
Mr. BLACKBURN. On Thursday last, Mr. President, I sub¬
mitted an amendment which I proposed to offer to the resolution
of the Senator from Ohio [Mr. Foraker], and advised the Sen¬
ate that, at the conclusion of that Senator's argument, I should
submit some suggestions in connection with the amendment
proposed by myself. During the time intervening it seems that
the other side of the Chamber have found common ground satis¬
factory to themselves.
I was not willing, Mr. President, that the resolution offered
hy the Senator from Ohio unamended should pass. My un-
7111
152
willingness was mainly attributable to the tenor of the speeches
the Senator from Ohio had made upon his resolution. I under¬
stand him this morning to say that it was never his purpose
through this agency of the Senate, the Committee on Military
Affairs, to inquire into the question of law involved in the exer¬
cise of a right which the President had asserted. I certainly
did not so construe the speeches made by the Senator from
Ohio in the earlier stages of this debate.
Mr. FORAKER. Mr. President
The "VICE-PRESIDENT. Does the Senator from Kentucky
yield to the Senator from Ohio?
Mr. BLACKBURN. With pleasure.
Mr. FORAKER. The Senator from Kentucky will not find
in any speech I have made on this subject, in either the earlier
or the later stages, any statement that I expected the Committee
on Military Affairs to inquire into the question of power.
Mr. BLACKBURN. Nor have I said so.
Mr. FORAKER. But the Senator will find in all those re¬
marks, wherever I had occasion to speak of the subject at all,
precisely the same statement in effect, that I wanted the facts
and had no thought of asking or directing the Committee on
Military Affairs to inquire into or to determine the question of
power.
Mr. BLACKBURN. That is all very true, Mr. President.
Mr. FORAKER. There was, if the Senator will bear with me
a moment, certainly some discussion of the question of power,
and a great deal of discussion; but that was not because of the
form of the resolution which was before the Senate, but only
because that question had been introduced into the controversy
by statements originally made in the message from the Presi¬
dent himself and later in answer to arguments that had been
advanced by Senators to the contrary of the position I have
taken.
Mr. BLACKBURN. Now, Mr. President, I will repeat—for
I am sure I can not be mistaken in my memory of this matter—
whilst it is true, as the Senator from Ohio now contends, that
he has not in any of his arguments upon this question avowed a
purpose to go into the inquiry as to the existence of this power
upon the part of the President, I can not be mistaken that in
those earlier arguments which he submitted he did emphatically
state, when that very question was raised, that he opposed any
limitation being put upon the scope of the investigation which
the committee was to make.
Mr. FORAKER. I just as earnestly and emphatically oppose
any restriction or limitation being placed on it now.
Mr. BLACKBURN. Then
Mr. FORAKER. But the investigation is to be an investiga¬
tion as to the facts and not as to the law; and I also opposed
anything in this resolution that would estop the Senate itself,
if after the facts have been laid before the Senate it should
see fit to do so, from taking any action it might think appro¬
priate to take.
Mr. BLACKBURN. If I may have the permission of the
Senator from Ohio I will proceed.
Mr. FORAKER. I beg pardon of the Senator from Kentucky
If I have interrupted him.
Mr. BLACKBURN. There is no need of that
7111
153
Mr. President, I am not mistaken in my recollection of an¬
other fact which bears very importantly and potently on tbe
question now, that In those earlier arguments of the Senator
from Ohio he quoted at length authorities, piled like Ossa on
top of Felion, in support of his challenge of the power of the
Pfpcj rl nn f
Mr. FORAKER. Certainly.
Mr. BLACKBURN. He denied that the President had the
power, and he fortified that denial by an exhaustive quotation
of authorities from yonder judicial branch of the Government.
Will he undertake to tell us now that that question was never
in issue? Will he undertake to tell us now that the legal au¬
thority of the President was never challenged? Then why that
waste of time and that limitless citation of legal authorities?
I opposed the resolution of the Senator from Ohio. I was
not willing that it should be passed unamended. Hence I gave
notice of a purpose to put an amendment on it which would
limit the scope of the investigation of the Committee on Mili¬
tary Affairs, and rule it down to an inquiry into facts, but with
an express disclaimer in advance by the Senate that they did
not mean to impeach or challenge, to question or deny, the legal
authority vested in the President for the act which he had per¬
formed.
I belong to that advanced school in this discussion, which
not only believes that the President held the statutory power
and authority, but that he also held the constitutional warrant
and the full authority given under the Articles of War. For
that reason I submitted a proposed amendment to the resolu¬
tion of the Senator from Ohio, and that amendment has but one
purpose in view. It was to operate as a disclaimer, upon the
part of the Senate, of any purpose of challenging the legal au¬
thority of the Executive.
Mr. President, now a modified resolution is offered as a sub¬
stitute. I very much regret that it should even appear to fail
to meet the views of any Senator upon either side of this
Chamber. On Thursday last, as I have stated before, I ex¬
pressed a purpose of submitting some remarks upon that amend¬
ment which I proposed. It may be that I am entitled to some
small measure of credit for having by that threat of inflicting
a speech upon the Senate contributed in some humble measure
toward the restoration of harmony among my friends on the
other side. [Laughter.]
The modified resolution as offered to the Senate to-day is
amply satisfactory to me. It employs, with very slight change,
the very identical language of the amendment that I submitted.
There is not a shadow of difference, except the elimination
of two words—"or deny." With that exception the phrase¬
ology of the substitute resolution now offered by the Senator
from Ohio embodies the precise phraseology of my proposed
amendment, and goes further, for it declares that there is no
question as to the discretion exercised by the President.
I say, sir, without the slightest hesitation or embarrassment,
that I am entirely content—just as fully content with the reso¬
lution offered by the Senator from Ohio as I would have been
had his original resolution been amended as I proposed. I
would be lacking in fairness, I would be fairly subject to criti¬
cism for a want of candor, if I did not here and now in my place
7111
154
avow the purpose of insisting, as a member of the Military
Affairs Committee, upon the construction that the Senator from
Massachusetts has just placed upon the pending resolution. I,
as a member of the Military Affairs Committee, serve notice
now that should this amended resolution be adopted, as I doubt
not it will be, I will go into that committee room with the firm
conviction riveted in my mind that I have no authority from
the Senate to inquire into either the legal authority of the
President or the discretion that he employed in the issue of that
order.
Now, sir, having said that much in that shape and in that
form, I have nothing more to say. I am glad to advise the
Senate of the fact that it has escaped the affliction with which
I threatened it on last Thursday. And now, Mr. President,
when I contemplate that within a very few weeks I am to pass
out from this Chamber and cease to be a member, may I not
indulge the hope that in my retirement, in the privacy of home
and family, I will be remembered kindly by the Republican
membership that I leave behind for the humble but apparently
material and valuable assistance that I have contributed to their
side in my efforts as a peacemaker. [Applause in the galleries.]
The VICE-PRESIDENT. The Chair will admonish the occu¬
pants of the galleries that under the rules of the Senate ap¬
plause is not allowed.
Mr. McCUMBER obtained the floor.
Mr. FORAKER. Mr. President
The YICE-PRESIDENT. Does the Senator from North Da¬
kota yield to the Senator from Ohio?
Mr. McCUMBER. I yield to the Senator from Ohio for a
moment.
Mr. FORAKER. No one, Mr. President, has listened to the
valedictory of the Senator from Kentucky [Mr. Blackburn]
with greater regret than I have. He is a friend of many years'
standing, a man of great ability, of high character, lovable in
every sense of the word, particularly in all his relations as a
colle'ague in this Chamber. I listened to the valedictory, how¬
ever, not as one without hope, and I listened to it also, Mr.
President, with a great deal of satisfaction in the thought that
I could in response to him say that when he goes into the Com¬
mittee on Military Affairs for the purpose of construing the
resolution we are about to adopt in the way he says he will
construe it he will find me construing it in precisely the same
way. He would have found me so construing it if it had been
adopted precisely as I first offered it.
Mr. BLACKBURN. Will the Senator allow me a word here?
Mr. FORAKER. Certainly.
Mr. BLACKBURN. I simply ask this courtesy that I may
disclaim even the semblance of a suggestion of doing an in¬
justice to the Senator. We may differ, as we often have
differed, upon questions, and some of vital importance. My
acquaintance with the Senator from Ohio began long before he
was known to fame. A quarter of a century ago, sir, he and I
sat as a court for six weeks trying an important suit by the
process of arbitration. I then was fortunate In having the op¬
portunity of getting a measure upon that man, and I beg to say
here in all candor that from then till now I have never had oc¬
casion to change that estimate nor to abate my full faith either
7111
155
in his frankness or in his ability. But he is entitled to have me
say this: I never suspected him of fighting under cover. Of
the many attributes which the Senator has there is none that
I admire more than the open, bold, frank, manly way in which
he conducts all his contests.
Mr. FORAKER. I am much obliged to the Senator from
Kentucky for his interruption. I assure him I properly ap¬
preciate all he has said and all he has suggested.
Now, if I may repeat, for that is the only thing I am par¬
ticular about, I will say again that I have had no thought at any
time—and I have said that repeatedly in the progress of this
debate—of questioning in the committee under this resolution
the power of the Chief Executive or any act of the Chief
Executive. At the same time I have strenuously contended
that before the facts are ascertained, which we hope may be
ascertained in full by this investigation, the Senate should
not preclude itself as to any question upon which it may be
called upon to take action. For that reason I have objected
to anything that would be in the nature of a declaration on
the part of the Senate that it did not have this power or that
power or the other power.
I agree to this modification because I understand that It
does not amount to any such precluding of the Senate, when
the facts are all laid before it, to take such action as the Sen¬
ate may see fit to take. For that reason I have been willing
to adopt any language that might meet with acceptance on the
part of other objecting Senators. I have not cared what the
particular language was so we get the thing accomplished that
I have been seeking to accomplish, namely, an investigation
of the facts.
7111
THE BLACK BATTALION
THEY ASK NO FAYORS BECAUSE THEY ARE NEGROES, BUT ONLY
FOR JUSTICE BECAUSE THEY ARE MEN
SPEECH
OF
HON. JOSEPH B. FORAKER
OF OHIO
IN THE
SENATE OF THE UNITED STATES
APRIL 14, 1908
"W^SHIlSTGrTOISr
1908
38545-7643
SPEECH
of
HON. JOSEPH B. FORAKER.
dismissal of three companies of twenty-fifth infantry.
Mr. FORAKER. Mr. President, I ask that Senate bill 5729
may be laid before tile Senate.
Tlie VICE-PRESIDENT. The Senator from Ohio asks that
the following bill be laid before the Senate:
The Secretary. Under Rule IX, the bill (S. 5729) to correct
the records and authorize the reenlistment of certain noncom¬
missioned officers and enlisted men belonging to Companies B,
C, and D, of the Twenty-fifth United States Infantry, who were
discharged without honor under Special Orders, No. 2GG, War
Department, November 9, 1906, and the restoration to them of
all rights of which they have been deprived on account thereof.
The VICE-PRESIDENT. Without objection the bill is be¬
fore the Senate.
Mr. FORAKER. Mr. President, I have in my hand a clip¬
ping from a newspaper wThich indicates that there is a great
deal of misinformation abroad in the land. This purports to be
a dispatch from Washington announcing that I was to speak ©n
the Brownsville matter, that my speech would occupy three
days, and that it would be in the nature of a bitter attack upon
the President of the United States and the Secretary of War.
This is the first time I was ever charged with making or con¬
templating a three days' speech. I indignantly deny that slan¬
der. Printed, as it is, it is a libel.
But more particularly, Mr. President, I desire to say that I
have at no time had any purpose to attack the President or Sec¬
retary Taft in connection with this matter or in connection with
any other matter. I have had no vengeance to seek and no oc¬
casion to seek any, I hope. In this wThole matter I have simply
sought to present to the Senate, in so far as I might be able to
do so, the facts in regard to this unfortunate affair.
I hope also, Mr. President, that I need not make any apology
to the Senate for having reduced the remarks that I desire to
make to manuscript or for using that 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.
I want to present this matter in as concise a way as I can
and in as intelligent a way as I can and within limitations that
will enable all who may so desire to find out the views I entertain
with respect to it; that is to say, that my remarks will not be
so long but that all may read who may care to read them. For
that reason I have taken the trouble which, as Senators know,
I seldom do take, of putting my views on paper, and I intend
3854o—i7648 3
4
to make use of that paper, but I hope I may be able to do so
without unduly wearying my colleagues.
Mr. President, before discussing the proposed legislation I
desire to review and analyze the testimony that has been taken
before the Committee on Military Affairs.
The resolution under which the investigation was had pre¬
cluded the committee; from considering the question of the au¬
thority of the President to make the order under which the
troops were discharged without honor, and confined the commit¬
tee to an investigation of the facts and a report of the same
to the Senate.
The committee observed this direction. While this direction
probably does not preclude me from discussing the constitutional
right and power of the President to make such an order, yet
I have fully discussed that subject on other occasions and do
not for that reason care to repeat that argument now. I shall
confine myself, therefore, in what I have to say at this time, as
the committee did, to the facts, and it will be my endeavor to
show the effect of the facts that have been established by the
testimony that has been taken.
Before entering upon this labor, it may not be amiss to re¬
mark, in view of the many misstatements that have been
made, that the purpose of this investigation has not been to
embarrass the President or anybody else; nor has it been to
make any capital of any kind, political or otherwise, against
anybody or for anybody.
On the contrary, it has been solely to establish, if possible,
who did the shooting at Brownsville on the night of August
13-14, 190G, and, if it should turn out that the shooting was
done by any of the discharged soldiers of the Twenty-fifth
United States Infantry, to identify, if possible, the particular
individuals who were guilty of participating in such shooting,
and to identify, also, if possible, any accessories either before
or after the affray, and to ascertain, also, whether or not in
any event there has been any so-called " conspiracy of silence "
on account of which the men, or any of them, have withheld
any information of which they may be possessed in regard to
such shooting affray; and this has been done with a view to
giving effect in a practical way to the suggestions of the Presi¬
dent himself, who, in his communications to Congress on this
subject, has stated in substance that if at any time it should
appear that any of the men discharged were free from guilt
with respect to the matter they might be exempted from the
operations of the order of- discharge without honor and be
restored to any rights they may have lost on account thereof.
With this purpose in view, about sixty of the men discharged
Here called as witnesses, among them, in so far as they could
be reached with subpoenas, the noncommissioned officers of the
three companies, the men who were on guard duty that night,
and every soldier with respect to whom there was the slightest
cause to think he might have any knowledge that would be of
any importance in establishing the purposes of the investigation.
The witnesses so called embraced, in so far as the committee
trere able to judge, all those noncommissioned officers and sol¬
diers of the battalion who were in a situation to know, and who
S8545—7648
5
of necessity would have known, something of the facts of such a
raid if the raiders were soldiers of the garrison.
The investigation has one unusual feature, in view of the
character of it, that merits a word of explanation, and that is
the fact that the men who were charged with guilt were first
heard by the committee in their own defense, and then, after
they had so testified, witnesses were called to show their guilt.
This grew out of the fact that the Fresident acted, in making
his order for the discharge of the men without honor, upon testi¬
mony submitted to him by the inspecting officers of the Army.
This testimony consisted of unsworn statements made by
citizens of Brownsville immediately after the shooting affray
occurred and by such statements as these inspecting officers felt
warranted in making, based on their investigations at Browns¬
ville and later at El Reno, to which post the battalion was re¬
moved a few days after the shooting occurred and at which post
the battalion was stationed when the men were discharged.
This testimony and these official reports of the inspecting offi¬
cers were thought to be, as a result of the discussion that oc¬
curred in the Senate, insufficient to warrant the action that had
been taken in discharging the men.
In consequence, the President directed Mr. Purdy, an assistant
to the Attorney-General, and Major B'locksom to visit Browns¬
ville and retake the testimony upon which his action had been
based in the form of affidavits.
Attached to this testimony were a number of exhibits, such
as bullets, that were said to have been cut out of the houses
of Brownsville, into which they were fired on the night of the
affray; exploded shells and a number of cartridges that were
found in the streets at points where the shooting had occurred,
and a bandolier which was picked up on the route over which
the raiders passed.
In addition, some testimony was submitted of experts and
ordnance officers supporting the conclusion that had been ar¬
rived at that soldiers of the Twenty-fifth United States Infantry
had done the firing.
This testimony was reviewed and submitted to the President
by the Secretary of War as conclusively establishing the guilt
of the men.
The President transmitted this testimony to the Senate, to¬
gether with the report to him of the Secretary of War, and an¬
nounced in his message of transmittal that, in his opinion, the
testimony showed beyond a reasonable doubt the guilt of the
men.
When, therefore, the Senate ordered the investigation, it was
to give the men an opportunity to meet the case that had so
been made against them. For that reason they were called
first, and after they had testified in such numbers that every
member of the committee was satisfied that to call additional
witnesses from the soldiers was unnecessary in order to get
all information that could be secured from that source, the
taking of further testimony by the soldiers was suspended.
Thereupon, in order to again convict the men of the crime
with which they had been .charged, the same witnesses who
had twice before testified were recalled and examined and
cross-examined at great length before the committee together
38545—7G48
6
with other additional witnesses. After this testimony had been
taken a number of officers of the battalion and some of the
men were recalled in rebuttal.
So it is that in a most important case, involving In its
various phases the charge of raiding, and the shooting up of
the town, the commission of murder, assaults with intent to
kill, perjury, and conspiracy to withhold testimony to screen
the guilty of crimes amounting to felonies, punished with im¬
prisonment in the penitentiary, we have the unprecedented
spectacle of the men charged being required to appear and
prove their innocence, and then to be again, for a third time,
subjected to the accusative testimony upon which the whole
case against them does and must of necessity rest.
While it may be said that this does not alter the truth, yet
it remains that it is a violation of the practice that has been
observed since the beginning of the common law for the pro¬
tection of those who were charged with crime, and a practice
that has for the accused in all cases where crime is charged
only that reasonable advantage of fully advising the accused
before he enters upon his defense of what it is that he is
accused and with what testimony in all its details it is sought
to establish such accusation. I do not mention this to com¬
plain about it, for the record will disclose to any unbiased man
who may study it that, notwithstanding this disadvantage, and
notwithstanding the many other disadvantages to which these
men were subjected, they have given their evidence with such
straightforward frankness and with such manifest truthful¬
ness that, in my opinion, nothing remains to show their com¬
plete vindication except only the discovery of the real culprits,
which time will surely make unless the adage that " murder
will out" has ceased to be a truth.
It is necessary to an intelligent discussion of the testimony to
make a brief explanatory statement as to the general situa¬
tion at Brownsville on the night of the affray.
The Government reservation known as " Fort Brown " is situ¬
ated on the bank of the Rio Grande River immediately oppo¬
site Ma^tamoros, Mexico, and within the limits of the town of
Brownsville, the principal streets and parts of which are im¬
mediately north of the reservation.
The reservation is bounded on the northern side by a brick
wall some 4 or 5 feet in height at the point whei^e the principal
part of the shooting affray is alleged to have commenced.
The garrison consisted of three companies—B, C, and D of
the Twenty-fifth United States Infantry, colored.
These were quartered in barracks that stood in a line 100
feet south of the reservation wall, so that the rear of the bar¬
racks looked out northwardly toward the town.
The main gate or entrance to the reservation opened out into
Elizabeth street, which was the principal street of Brownsville.
These companies occupied separate barracks. D Company
barracks stood to the left of the road leading out of the reserva¬
tion through the main entrance into Elizabeth street; B Com¬
pany barracks stood immediately to the right of this road, and
C Company barracks stood next on the right of B barracks.
The barracks fronted on a parade ground, on the opposite
side of which were the quarters of the officers, occupied on the
38545—7G48
7
n!fht,of tt\e affray by Maj. Charles W. Penrose, the commanding
otncei of the battalion and tlie post; Captain Lyon, commanding
Company D; Captain Macklin, commanding Company C; Lieu¬
tenant Lawrason, commanding Company "d, and Lieutenant
Grier, acting quartermaster and commissary of the post.
Parallel with Elizabeth street and 120 feet eastwardly from
the same, in the middle of the block, is an alloy, 20 feet in
width, known in the testimony as " Coweu alley."
The mouth of this alley approaches the fort at a point about
opposite the space between the B Company and C Company
barracks.
Along the wall outside the reservation was a road 00 feet
in width, called the Garrison road.
Along tlie wall inside the reservation were the sinks, coal
houses, and other outbuildings of the barracks.
The barracks were two-story buildings, with lower and up¬
per porches in rear along their entire length.
Each of these barracks was about feet in length and 40
feet in width. The upper porch was only 12 feet above the
ground.
The charge against the soldiers is that a few minutes before
midnight, August 13, 190G, a squad, estimated by the different
witnesses all the way from five or six to twenty, in pursuance
of a carefully planned and preconcerted conspiracy to shoot
up the town, in some way secured their guns from the gun
racks, opened fire on the town from the upper porch of B bar¬
racks, then rushed down to the ground, and to the wall separat¬
ing the reservation from the town, jumped over the wall at a
point opposite the Cowen alley, proceeded northwardly along
that alley a distance of two or three squares, shooting into the
houses, hotels, and saloons, and at citizens on the streets, with the
result that they fired probably from two to three hundred shots,
. killed a bartender of the Tillman saloon by the name of Frank
Natus, killed the horse of the lieutenant of police, Dominguez,
wounding him in his left arm, and did other damages of one
kind and another; that at the corner of the alley and Thir¬
teenth street, where the Miller Hotel is situated, the squad
divided, one portion of it going east on Thirteenth street to
Washington street, the next street east of Elizabeth street,
where they fired a number of shots into the house of a revenue
deputy by the name of Starck; that after this, which was the
last of the firing, they returned to the fort and joined their
companies without being detected by their officers, who were
at that time wide-awake and engaged in the formation of the
companies.
Finally, under the stress of circumstances, it was further
charged that, in the nature of things, it was impossible for such
a squad of soldiers to .plan and execute such a conspiracy with¬
out many, if not all, of the other members of the battalion having
knowledge which, if disclosed, would identify the particular
individuals who participated in the shooting, and that the in¬
ability of the inspection officers and others to secure any such
information was to be attributed to a conspiracy of silence
into which all having such knowledge, whether few or many,
must have entered.
The gradual evolution of this last charge is interesting, sug¬
gestive, and instructive.
38545—7648
8
It had its inception, so far as the record discloses, in the
following passage from the report of Major Blocksom, dated at
Brownsville, August 29, 1906:
The officers appeared to be trying to find the criminals, but it is
certainly unfortunate for tlie reputation of the battalion that they have
yet hardly discovered a single clue to such a terrible preconcerted
erime, committed by so many men.
I believe the battalion had an excellent reputation up to the 13th
of August, but the stain now upon it is the worst I have ever seen in
the Army.
Many of its old soldiers who had nothing to do with the raid must
know something tangible as to identity of the criminals. If they do
not disclose their knowledge, they should be made to sufEer with others
more guilty, as far as the law will permit. If satisfactory evidence
concerning the identity of the criminals does not come from members
Of the battalion before a certain date to be fixed by the War Depart¬
ment, I recommend that all enlisted men of the three companies present
on the night of August 13 be discharged the service and debarred from
reenlistment in the Army, Navy, or Marine Corps.
This suggestion, without the help of any further testimony,
took definite form in the order of October 4, 190G, issued by
the Assistant Secretary of War, directing General Garlington
to make an investigation, in the following language:
The President authorizes you to make known to those concerned the
orders given by him in this case, namely: " If the guilty parties can
not be discovered, the President approves the recommendation that the
whole three companies implicated in this atrocious outrage should be
dismissed, and the men forever debarred from reenlisting in the Army
or Navy of the United States."
And in this connection the President further authorizes you to make
known to those concerned that unless such enlisted men of the Twenty-
fifth Infantry as may have knowledge of the facts relating to the shoot¬
ing, killing, and riotous conduct on the part of the men with the organi¬
zations serving at Fort Brown, Tex., on the night of the loth of August,
1906, report- to you such facts and all other circumstances within their
knowledge which will assist in apprehending the guilty parties, orders
will be immediately issued from the War Department discharging every
man in Companies B, C, and D, of the Twenty-fifth Infantry, without
honor, and forever debarring them from reenlisting in the Army or
Navy of the United States, as well as from employment in any civil
capacity under the Government.
The time to be given to the enlisted men of Companies B, C, and D,
Twenty-fifth Infantry, for consideration of this ultimatum will be de¬
termined. by you. If, at the end of the time designated, the facts and
circumstances of the occurrence in question have not been established
sufficiently clearly to indicate a reasonable certainty of securing a con¬
viction of the guilty parties by evidence obtained from enlisted men of
the first battalion. Twenty-fifth Infantry, you will report the condition
fey wire to The Military Secretary.
General Garlington made his investigation, therefore, with
this thought before him, but made no further progress than to
suggest in a vague sort of way that the men had " possibly "
come to a common understanding that they would not give any
information of which they might be possessed that would lead
to the identification of any of the raiders.
On this point he said in his report that all the men denied
guilt, or guilty knowledge, but that these denials—■
indicated a possible general understanding among the enlisted men of
this battalion of the position they would take in the premises—
And I call the attention of Senators particularly to this—
but I could find no evidence of such understanding.
No evidence that there was any conspiracy of silence. I em-
gliasize that, because that, you will discover as we proceed, is
33545—7648
D
an important part of this case in so far as there is any case
left.
Upon this report, without aq iota of additional testimony—in
other words, upon the mere suggestion of General Garlington
and others that an agreement to withhold testimony had
entered into among the men, of which General Garlington was
careful to say he had found no evidence—the President ordered
all the men discharged.
Of that which was only " possible," in the opinion of General
Garlington, and of which he " could find no evidence," the
President, without any additional testimony, became so thor¬
oughly convinced by the time he felt it necessary to defend hia
action that in his message to the Senate of December 10, 1008,
he said:
A blacker crime never stained the annals of the Army. It has beos
supplemented by another, only less black, in the shape of a successful
conspiracy of silence for the purpose of shielding those who took part
in the original conspiracy of murder.
At another point in that same message he said:
Yet some of the noncommissioned officers and many of the men of
the three companies in question have banded together in a conspiracy
to protect the assassins and would-be assassins who have disgraced
their uniforms by the conduct above related. Many of these noncom¬
missioned officers and men must have known, and all of them may
have known, circumstances which would have led to the conviction of
those engaged in the murderous assault. They have stolidly, and as
one man, broken their oaths of enlistment and refused to help dis¬
cover the criminals.
A charge as to which, by the latest official report laid before
the President, it was said there was no testimony whatever.
Although diligently searched for, the inspecting officers of the
Army had been unable to find any testimony.
In his message to the Senate of January 14, 1907, after the
Purdy testimony had been taken and the President felt called
upon to further defend his action, he said:
The testimony of the witnesses and the position of the bullet holes
show that fifteen or twenty of the negro troops gathered inside the fort
and that the first shots fired into the town were fired from within the
fort—some of them, at least, from the upper galleries of the barracks.
****** *
It is out of the question that the fifteen or twenty men engaged in
the assault could have gathered behind the wall of the fort, begua
firing, some of them on the porches of the barracks, gone out into the
town, tired in the neighborhood of 200 shots in the town, then re¬
turned—the total time occupied from the time of the first shots t®
the time of their return being somewhere in the neighborhood of ten
minutes—without many of their comrades knowing what they had
done.
Indeed, the fuller details as established by the additional evidence
taken since I last communicated with the Senate make it likely that
there were very few, if any, of the soldiers dismissed who could have
been ignorant of what occurred. It is well-nigh impossible that any
of the noncommissioned officers who were at the barracks should not
have known what occurred.
This so-called " Purdy testimony " was given by the citizens of
Brownsville, and was largely but a repetition of the testimony
given previously, though not given under oath. It_ did not
embrace any testimony of the soldiers, or of anybody, in regard
to a withholding of knowledge by the soldiers, and there was no
pretense on the part of anyone that any evidence had been dia-
38545—7648
10
covered since General Garlington's report to indicate, much less
establish, a conspiracy of silence, and at tliat time he officially
reported that he could find no evidence whatever of any con¬
spiracy of silence.
But whether justified or not, the men were finally charged
with—
1. The organization of a conspiracy to shoot up the town.
2. That the squad which did the shooting necessarily had a
number of accessories both before and after the fact.
3. That the first shots were fired from the upper gallery of
B barracks.
4. That other shots were fired from within the reservation.
5. That the raiders then jumped over the wall and committed
the outrages mentioned, returned to quarters, and joined their
companies without the detection of any of them by their com¬
missioned officers.
6. That of necessity such a conspiracy could not have been
formed and executed without many, if not all, of the enlisted
men, particularly the noncommissioned officers, having knowl¬
edge, which, if disclosed, would lead to the identity of the
raiders, and that the refusal of the men to disclose such infor¬
mation was evidence of a conspiracy of silence to defeat the
ends of justice.
EVIDENCE AGAINST THE SOLDIERS.
The testimony to support these charges consists of two classes—
so-called " eyewitnesses," who testified to their personal obser¬
vations, and circumstantial evidence, such as the finding of
cartridges, exploded shells, and so forth, at the places where the
firing was done.
We are told in the majority report that there were fifteen
witnesses who saw the men who did the firing and recognized
them as soldiers from the garrison. Most of these witnesses
have testified four different times.
First, before the citizens' committee a day or two after the
shooting occurred.
Second, before the grand jury of Cameron County, in which
Brownsville is situated.
Third, before the Penrose court-martial, and finally before
the Senate Committee on Military Affairs.
Their testimony so given is sufficiently contradictory to show
that it is unreliable.
But, aside from the contradictions on account of the darkness
of the night, many things that were testified to by these wit¬
nesses could not have possibly been observed by them.
There were no artificial lights in the Cowen alley and no
light of any kind in the reservation, except at the main gate,
120 feet distant from the mouth of Cowen alley.
In all the immediate neighborhood of the points where,
according to all the witnesses the first shots were fired, whether
inside or outside the reservation, it was as dark as a very
dark night could make it.
These witnesses testified that hearing the firing they went
to their windows, looked out into this darkness, and at a dis¬
tance ranging all the way from 30 up to 150 feet saw the firing
party and recognized them as soldiers from the garrison by
38545—7648
11
tie color of their faces, by the uniforms they wore, and the
guns they carried.
It is unnecessary to go over this evidence in a detailed way,
for, conceding for the sake of argument that the witnesses
undertook to testify truthfully, the flimsy and unreliable char¬
acter of the whole of it is fairly indicated by the testimony
of the four principal so-called " eyewitnesses."
Without their testimony there is no credible evidence what¬
ever to support the charge that the first shots were lived from
the barracks or from any place within the reservation or that
there was any jumping over the wall by anybody.
Without the testimony of these four witnesses the testimony
of the officers and the men of the battalion that tlie shooting
commenced at some point outside the reservation stands prac¬
tically uncontradicted.
These witnesses were George W. Kendall and his wife, Jose
Martinez, and J. P. McDonel.
Kendall and his wife lived in the upper story of a building
that stood on the corner of Elizabeth street and the Garrison
road.
Their front windows looked out over the reservation. Kendall
testified that he was awakened by the first shots that were
fired; that he went to his window and looked out over the
reservation to see what was occurring; that while he was look¬
ing to his right, in the direction of the barracks occupied by
D Company, he heard a shot to his left which sounded as
though it had been fired from some point in the reservation;
that thereupon he turned his head to the left to look in the
direction from which the sound came, and saw two other shots
fired in succession; that they were fired from somewhere near
the east end of B Company barracks, and that the piece from
which these shots were fired, whether a gun or a revolver, seemed
to be pointed upward, for the shots seemed to be fired into the
air. He then saw and heard men moving toward the wall at a
point in front of the mouth of Cowen alley, and saw and
heard them jump over the wall at that point.
On further examination and cross-examination the witness
stated that he was 72 years of age; that he was totally blind
in one eye; that he had been for a generation [laughter], and
that his sight from the other had been so far impaired that
he had been compelled to wear glasses for many years.
Before the Penrose court-martial he testified that when he
was awakened and got up and went to the window he put on
his glasses and therewith saw what he narrated.
Before the Senate committee he said he desired to change that
statement; that on reflection he had come to the conclusion
that he did not wear his glasses while making the observations
about which he testified, but he claimed that at night his sight
was better without glasses than with them.
But passing by all these damaging features of his testimony
and giving credence to what he says, the shots he saw fired
were doubtless those fired by the sentinel, who testifies that
after the first fusillade of shots he passed between B and C
barracks to the front line, where, facing toward the parade
ground, he held his piece in the air and fired upward thres
shots in succession, calling out after each shot, " Corporal of
38515—7648
12
the guard—number two." That was the kind of signal which
under such circumstances he was required to give.
Kendall was in a situation to have seen other shots, if any
had been fired. He did not see any others.
Bin testimony that he saw a body of men after these shots
•Efev*: toward the wall and heard them jump over into the Gar¬
rison road is simply incredible, because the uncontradicted tes¬
timony of all the witnesses is that the night was one of such
unusual darkness that without the aid of artificial light it
would have been impossible for a man with good eyes to have
seen what he described at a distance of 150 feet, which was ap¬
proximately the distance at which he claims to have witnessed
this occurrence, or at 100 feet or at 50 feet or with any degree
of certainty at even 20 feet.
But on this point Mr. Rendall is contradicted by the witness
McDonel, who lived in that immediate neighborhood and who
testified that when the first shots were fired he ran out on to
the street and to a point only a few feet from the mouth of the
Cocren alley, and that he saw the men who did the firing pass
into the alley and saw them engaged in firing into Cowen's
house one square away.
He says these men did not come from over the wall, but from
Elizabeth street, and that he was in a situation to have seen
them if they had come over the wall, and that nobody did cross
the wall.
Jose Martinez claims that he was sitting in the front part of
a room occupied by him at the corner of the alley and the gar¬
rison road near where the firing commenced; that immedi¬
ately—" instantaneously," to use his exact language—he put
out his light and threw himself on the floor and remained there
for probably thirty minutes, or even longer, until the firing had
all ceased.
At one point in his testimony he claimed to have looked out
at his back window, although his position on the floor made
that impossible, and to have seen the raiders pass up the alley
toward the Cowen house, and that he recognized them as sol¬
diers, although he could not see their faces.
On all these points he flatly contradicted himself.
Mrs. Rendall saw nothing except some men passing through
the reservation shortly after the firing commenced from the di¬
rection of D Barracks toward the point in the reservation oppo¬
site the Cowen alley. She did not see them jump over the wall,
nor hear them jump over the wall, nor pretend to see any firing
within the reservation beyond a single flash which she could
not locate. She did not even see the two shots about which her
feasband testified.
Other contradictory statements might be cited, but it is un¬
necessary to add to those already given. They are sufficient to
show that these witnesses, on account of the darkness and the
excitement, made only the most imperfect observation and were
unable at the different times they testified to recall them wTith
accuracy or in such a way as to clearly establish anything
which they testified to, except only that somewhere in their
locality the firing commenced by which they were aroused, and
that almost immediately afterwards the call to arms was
sovnded, the different companies were formed, and they saw
38545—7648
13
bodies of men moving in different directions within the reserva¬
tion, all of which, in a general way, is entirely consistent witla
what did in fact happen.
That the testimony of these so-called "eyewitnesses," aside
from the many contradictions by themselves and by ono
another, was entirely unreliable is shown by the testimony cf
all the officers and the many other witnesses who testified as to
the darkness of the night and the impossibility of recognizing
individuals at any distance without the help of artificial light.
Major Fenrose testified that he could not distinguish one o£
his white officers from one of his colored enlisted men at 8
distance from him of 10 feet, and at that distance he could
tell nothing about how anyone was dressed.
Every other officer of the battalion testified to the same gen¬
eral effect—giving instances of inability to make personal
recognition at the distance of from 5 to 10 feet.
In addition to this testimony there is in the record the testi¬
mony of a number of officers of other companies, based on actual
experiments, that the flashes of the guns from the firing of them
would not make a light from which anyone could be recognized
and that it is utterly impossible without the aid of artificial
light to tell anything about a firing party at any distance in the
dark.
There were two or three witnesses who claimed to have seen
the raiders by the aid of artificial light.
The chief of these was Paulino Preciado, the editor of a news¬
paper published in the Spanish language, called " El Porvenir."
His testimony on this point already before the committee was
in flat contradiction of his testimony before the Cameron County
grand jury and in fiat contradiction of the statement he pub¬
lished in his paper immediately after the shooting.
Besides these contradictions, which were sufficient to cause
Secretary Taft to discredit him, he had pending in the State
Department at the time when he testified before the Senate
committee a claim against the United States Government for
$10,000 damages alleged to have been sustained by reason of a
claim that he had been slightly wounded.
But he was further contradicted by the fact that one of the
bullets fired into the saloon where he was passed through the
window and lodged in a post in front of Crixell's saloon on
the opposite side of the street, which was subsequently ex¬
tracted and found to be not an Army bullet with a metallic
case, but a lead bullet of different composition from those which
the soldiers were furnished with.
In the whole evidence from beginning to end there is not a
particle of testimony from any so-called eyewitness that is not
either contradicted by the witness himself or by some other
witness or which is not shown by uncontradicted testimony as
to the effect of darkness on the vision to have been unreliable
if not impossible.
If Senators would know how difficult it is to recognize any¬
one in the nighttime they have only to stand on the sidewalk
anywhere here in Washington at night and undertake to recog¬
nize some one passing only so far distant from them as across
the street. Unless they come under the rays of artificial light or
in some other way are aided they will find it is impossible to
38545—7648
14
tell whether a man is white or black or anything about liow he
is dressed.
Since this testimony has begn on my mind to such an extent,
almost every night as I pass along the streets I find myself
experimenting in this way, looking to see at a distance if I
ean recognize whether a man whom I see moving is a white
saan or a colored man or how he is dressed. I ask every Sen¬
ator here to experiment in that way. It is no trouble. It is
rather interesting, and when you have thus experimented for
yourself you will be able to set aside all this so-called testimony
of " eyewitnesses," for there is not one of them who was in
a situation where he could tell anything at all that was reli¬
able, and the cross-examination of every one' of them disclosed
that there was nothing reliable about the testimony that he
gave in that particular.
CIRCUMSTANTIAL EVIDENCE.
The most damaging testimony against the soldiers, when
taken without explanation, was the finding in the alleys and
streets where the firing occurred of exploded shells, clips, car¬
tridges, etc.
It was the production of these shells and clips and cartridges
by Mayor Combe and his report to Major Penrose that they had
been picked up in the streets at points where the firing occurred
that caused Major Penrose and his officers to think that their
men must have done the firing.
These exploded shells show by their stamp that they were
manufactured by the Union Metallic Cartridge Company, that
they were Army shells, and that they were manufactured in the
month of December, 1905.
Thei bullets cut out of the houses into which they were fired
that night bear marks indicating that they might have been
fired out of Springfield rifles, and upon analysis were found to
have been the same kind of a bullet which the Union Metallic
Cartridge Company was manufacturing in the month of De¬
cember, 1905, and supplying to the Army.
But this testimony, in connection with other facts established,
became testimony for the soldiers, instead of against them, as
I shall undertake to show when I come to discuss this particu¬
lar evidence as a part of the case made in favor of the men.
MOTIVE.
The case against the soldiers fails in another important par¬
ticular. No adequate motive—in fact, no motive whatever—is
shown for such an assault upon the town.
There is an attempt to show that they had a motive in the
fact that they were debarred from drinking with the white
people in the saloons of Brownsville; that one of their num¬
ber—a man by the name of Newton—was brutally assaulted,
knocked down with a revolver, and painfully injured without
any sufficient justification or excuse, and that another soldier,
by the name of Reed, when returning from Matamoros was
pushed into the water by a customs officer on account of some
trifling misbehavior.
The evidence shows that the soldiers frequented the saloons
feut very little, and that they never made any complaint to their
officers or to anybody else on account of being debarred by some
38545—7648
15
of the saloons of Brownsville from drinking at the same
with white people.
On the contrary, the testimony shows positively that they did
not make any such complaint.
Both Major Blocksom and General Garlington report tnaf
they did not hear any complaints on that account, and that the
men, one and all, whom they interrogated, insisted that they
did not harbor any resentment by reason of that fact.
The testimony further shows that a few of the saloons did
not allow the soldiers to enter; that a few others provided sep¬
arate bars for their accommodation; that quite a number of
-saloons, especially those kept by Mexicans, did not discriminate
in any way, but gave to the soldiers the same accommodations
they gave to the citizens.
The testimony shows that the Tillman saloon, where Frank
Natus was the barkeeper, provided a separate bar and accom¬
modated the soldiers in such a wray that no one of them ever
made the slightest objection on account of the treatment they
received.
If the soldiers had shot up the town on account of discrimina¬
tion against them by the saloons, it is reasonable to suppose
they would have shot into saloons that did not allow them to
enter, rather than into a saloon—for the Tillman saloon is the
only one they did fire into—where they were provided with
accommodations to which they had never taken any exception.
It would seem more reasonable to suppose that if the shoot¬
ing of Natus had any reference to the treatment of the soldiers
by the saloons, that he was killed by somebody who objected
to the saloons accommodating the soldiers rather than by the
soldiers who were accommodated. It seems to me that is a
self-evident proposition.
But, however that may be, there is no excuse for saying that
the soldiers had, as a motive for shooting up the town, dis¬
crimination against them by the saloons, except only as it is
deduced as a conclusion that because they were debarred from
some of them they were angry and revengeful towTard the whole
town, and this deduction seems absurd, in view of the fact
that although the town was well supplied with saloons, yet
they spared all except only one where they had been given
accommodations that wTere at least reasonably satisfactory.
As another evidence that the soldiers were seeking revenge,
Major Blocksom reported that the house of the deputy customs
officer, Starck, which was fired into, stood next door to the
house occupied by the deputy customs officer, Tate, who as¬
saulted Private Newton, and that it was doubtless fired into
by mistake, the soldiers thinking they were firing into Tate'g
house instead of into Starck's house.
There is no testimony to justify such a conclusion except
only the fact that the major reasoned, or thought he did, that
because Newrton had been assaulted by Tate he and his com¬
panions desired to revenge Newton's wrongs by shooting into
Tate's house in the hope they might kill him or some member
of his family.
The fact did not interfere with the mental operations of the
major in reaching this conclusion that there was not one
scintilla of testimony to show that Newton or any other
38545—7648
16
soldier of the battalion knew that Tate liad a house, or on
what street it stood, or at what point on any street it stood.
Nor is there any testimony whatever to show that Newton
knew who the man was who struck him except only as he was
fcald subsequently by Captain Macklin, commander of his com¬
pany, who undertook to investigate the matter, that he had
learned that he had been knocked down by a United States
customs officer by the name of Tate. There is no testimony
to show that Captain Macklin, or anybody else connected with
the battalion, had any knowledge whatever as to the location
of Tate's residence or whether he had any residence.
But if the knocking d-own of Newton, with the revolver, by
Tate was a sufficient motive to account for the shooting up of
the town", and an attempt to shoot up the house of Tate, which
was prevented only by a mistake of Starck's house for Tate's
house, then there was an equally good and better founded
reason for supposing that Starck's house was fired into not by
soldiers, but by others who had a sufficient cause for firing into
it, but who were sufficiently well acquainted with the location
of Starck's house not to make any mistake in regard to it.
The testimony shows that Starck had during his service
made more than 600 arrests of smugglers and other violators
of the law and that some months before this shooting affray
he had, in the discharge of his duty as a deputy customs officer,
undertaken in the nighttime to arrest a smuggler who was
landing on the Texas side at a point near Brownsville.
The smuggler undertook to escape. Starck commanded him to
halt, but he kept up his flight. Starck pursued him in the dark¬
ness until coming close upon him the smuggler turned to resist,
when Starck knocked him down and severely injured him by
striking him over the head with his revolver in practically the
same way Newton was felled. When Starck took the man in
custody he discovered that the smuggler was an inhabitant of
Brownsville by the name of Avillo, whom he knew well, and
who, Starck says, was well acquainted with his premises; that
he had worked for him at his house. Starck says this man
whom he thus arrested was taken before the commissioner,
where he was bound over to await the action of the grand jury;
that he forfeited his bond and was a fugitive from justice at the
time when this shooting affray occurred.
It is far more reasonable to suppose that the men who shot
into Starck's house were men who were avenging the supposed
wrongs of Avillo, and possibly of themselves, rather than sol¬
diers from the garrison trying, by shooting into Starck's house
by mistake, to avenge the wrongs of Newton.
This is confirmed by the fact that Newton is shown by the
testimony to have been on guard duty the night of the affray,
and to have been oil post and asleep in the guardhouse when
the shooting commenced.
It is hardly probable that his companions would have gone out
to shoot up the town on his account without him accompanying
them or without him having knowledge of .their action and pur¬
pose, and it is extremely improbable that while they were en¬
gaged in such a work, if he had knowledge thereof, he would
ha^ been calmly and soundly sleeping while they were thus
avenging his wrongs.
38545—7648
17
. So far as the trouble with Private Reid is concerned, it was
of too trivial a character to merit any attention. Reid himself
did not make complaint of his treatment when he reported the
occurrence to his captain, but, on the contrary, according to the
testimony of Captain Macklin, laughingly remarked that he
" got about what he deserved."
Moreover, the trouble with Reid occurred only the night be¬
fore the affray. There was hardly time left after its occur¬
rence for forming the " carefully preconcerted, well-planned
conspiracy," to use the language of Major Penrose.
It may be safely concluded, therefore, that the trouble with
Reid did not furnish any motive for what occurred.
DOilXXGUEZ.
Neither is there any weight in the suggestion that the firing
upon Dominguez, the lieutenant of police, shows a motive for
the soldiers avenging themselves upon the peace officials of
the municipality, for the testimony shows that during the en¬
tire time the soldiers were at Brownsville their conduct was
exceptionally good; that there was but one arrest by the po¬
lice, and that was for so trivial a matter that the soldier was
released without any punishment.
There is no testimony whatever to show that the soldiers
had been interfered with in the slightest degree by any of the
police officials of the town.
On the contrary, the testimony of all the police officials is
that there was no occasion for them to make any arrests or to
interfere in any way with the soldiers, who appeared to have
deported themselves with exceptionally good conduct.
It does appear, however, that Dominguez was an efficient
officer of many years' service and very popular with the citizens
of Brownsville, because of the faithful and efficient manner in
which he had handled criminals in the discharge of his official
duties.
It appears that during his long service he had made many
arrests, and that in some instances he had found it necessary
to resort to force in arresting and handling disorderly char¬
acters, and that in at least one instance he had found it
necessary to take life.
If the suggestion is warranted that the raiders fired upon
Dominguez for the purpose of avenging themselves upon him, it
would seem far more natural and reasonable to suppose that
he was fired upon by those who had cause, real or imaginary,
for seeking revenge rather than by those who had no such
cause. There is no word of testimony to show that any soldier
of the battalion had ever so much as even heard of Dominguez,
let alone that they had any cause to injure or molest him in
any way.
In this connection there is much also in the testimony about
a story being circulated among the people of Brownsville on
the day of the assault that on the preceding evening a Mrs.
Evans, who resided near the garrison, was assaulted by one of
the soldiers, who seized her by the hair and threw her to the
ground and then ran away.
THE MBS. EVANS STORY.
There is no sworn testimony in all the record to show that
any such assault occurred, but an abundance of evidence to
38545—7648 2
18
ehow that on account of the circulation of this kind of a story
there was great excitement among the people of Brownsville
on Monday, August 13, and that in consequence such an ugly
spirit was manifested with respect to the soldiers that Mayor
Combe felt it his duty to visit Major Penrose at the garrison
about 5 o'clock that afternoon and warn him not to allow any
of his soldiers to be in Brownsville that night, telling him in
that connection if any of them should appear on the streets of
Brownsville that night he would not be responsible for their
lives, or words to that effect.
In consequence, Major Penrose issued an order canceling all
passes and requiring all his men to return to quarters by 8
o'clock that evening and to remain in quarters during the night.
There is no testimony to show that any of the men knew why
this order was issued, and no pretense of any testimony that
any of the men resented it or expressed dissatisfaction on ac¬
count of it in any way whatever.
The Evans incident, therefore, instead of furnishing a motive
for the shooting up of the town by the soldiers, only furnishes
a motive for shooting up the soldiers by the citizens.
That there was no motive appears from the further fact that
all the soldiers who had any difficulty or trouble of any kind
while in Brownsville belonged to C Company.
No one connected with either of the other companies had the
slightest trouble of any nature.
The testimony, as I shall point out later, shows conclusively
that C Company could not, in all probability, have participated
in the shooting.
It is not likely that men from B and D Companies would
have shot up the town for the purpose of avenging the wrongs
of members of the other company; certainly not without mem¬
bers of C Company—those who were injured, or somebody in
their behalf—joining in the raid.
It is from considerations and conclusions of the character
named and suggested that it is impossible for me to find suffi¬
cient testimony in the record to warrant the finding that some
of the men of the battalion " did the shooting."
And this is true, considering only that which may be called
testimony against the soldiers.
TESTIMONY FOK THE SOLDIERS.
Coming now to the testimony in their favor, we have in the
first place a presumption of innocence. This is not merely senti¬
ment. It is an element of every case that possesses substance,
and should have effect.
In the case of Coffin v. The United States (15G U. S., p. 454),
Mr. Justice White, speaking for the court, cited authorities
tracing a recognition of this presumption from Deuteronomy
to the latest law writer on the subject. He cited with approval
the following language employed by Lord Gillies in McKinley's
case, decided in 1817:
I conceive that this presumption is to be found in every code of law
Which has reason and religion and humanity for a foundation. It is a
maxim which ought to be inscribed in indelible characters in the heart
of every juryman; * * * to overturn this there must be legal
evidence of guilt carrying home a degree of conviction short only of
absolute certainty.
38545—7048
19
tiafE'Soe.rfonowl11: aW>r°Tal *°m W1"S 0n
anUciated^S^acie^TlS
party accused grounded.in reason and justice not less than in humanity
and recognized in the judicial practice of all civilized nations ; which
presumption must prevail until it be destroyed by such an overpower¬
ing amount of legal evidence of guilt as is calculated to produce the
opposite belief.
Other authorities might be cited of the same general char¬
acter without limit.
CHAIUCTER OF THE MES,
In addition to this presumption there is in favor of the sol¬
diers their character both as men and soldiery.
Not one of these three companies had a stain on its record.
They were orderly, well behaved, well disciplined, and well
drilled. They had never given their officers any trouble.
Such is the testimony of every officer, both of that regiment
and of every other, who testified on the stand and who had
knowledge of their character as soldiers and as men.
Major Penrose testified that they behaved themselves well
before their discharge without honor and since then.
General Garlington testified that although the Government
had every man under surveillance up to the time he testified,
from the time of their discharge not one has been found guilty
of any bad conduct, although turned out of the Army in dis¬
grace.
Gen. Andrew S. Burt, who commanded the regiment for
ten years, testified that they were all worthy to be believed on
their oaths. He said:
I would believe them if I were sitting on a court-martial and they
were called in their own defense.
He gave them the highest character both as men and as
soldiers.
Captain Macklin testified that they were peaceable, orderly,
well behaved; that they drank much less than white soldiers;
that there was very little trouble on pay day, and compara¬
tively few arrests.
Captain Lyon testified in an equally complimentary way.
Yictoriano Fernandez, policeman, testified that his beat was
on Elizabeth street, the principal street of the town; that it
led directly from the fort; that he saw the soldiers every day
passing to and fro, and that in all the time they were there
he never saw one of thefn drunk or disorderly, and that he had
no occasion to make any arrests.
This good character and good conduct and good discipline
should greatly strengthen the presumption of innocence in their
favor, for it is not likely that men of such character would
engage in such an affray as that which occurred at Browns¬
ville ; certainly not unless they had some positive and adequate
motive of an unusual and exasperating character, and that, the
evidence clearly shows, they did not have.
TESTIMONY OF SOLDIERS.
In the next place, there is the testimony of the soldiers them¬
selves as to their innocence.
38545—7648
20
In one form or another these men have all expressed them¬
selves under oath, and in no case is there any contradiction
whatever in the testimony of any one of them upon any essen¬
tial point.
Every man, in giving his testimony, spoke from his personal
knowledge, for each one of them knew whether or not he partici¬
pated in the affray, and each one of them knew where he was
when the affray commenced, while it was in progress, and when
it was ended, and, without exception, each man has given a
clear, straightforward account of himself in these particulars.
The statements so made by these men are believed by their
officers, who testified that, with few exceptions, they are truth¬
ful and to be believed.
These officers knew these men better than anybody else.
They were in a better situation than anybody else to determine
what credence should be attached to their statements. All
these officers are satisfied that these statements of their men
as to where they were and that their statements that they were
not among the raiders are truthful.
To refuse to believe them is to assert, as said in the minority
report:
That as fine a body of soldiers and as truthful, according to all
their officers, as can be found in the entire Army are conspirators,
murderers, and perjurers, and all this upon the uncertain, unreliable,
and contradictory statements of witnesses who did not pretend to Rive
personal knowledge, but only conclusions Tjased upon what was ueces-
sarily uncertain observations.
But these soldiers are confirmed, not only by the circum¬
stances and probabilities, but also by facts of the weightiest
character.
Within a few moments after the firing commenced the sen¬
tinel on guard gave the alarm required to be given under such
circumstances by firing his piece in the air three times and
calling out after each shot for the corporal of the guard.
Major Penrose, who had retired, but was yet awake, imme¬
diately ordered the sergeant of the guard to sound the call to
arms. This call to arms and the firing instantly awakened
the whole garrison. Excitement and more or less confusion
followed. The formation of the companies was ordered. The
sergeant in charge of the gun racks of Company C refused to
open them until he had an order from a superior officer.
This led, after some minutes of delay, to an order from
Major Penrose to break open the gun racks.
On account of this delay C Company was not formed until
some minutes after the firing had ceased, but the other com¬
panies were formed immediately after the call to arms was
Bounded.
The roll was called in B Company. It was still in progress,
but almost concluded, when the firing ceased. Every man of
the company was present or accounted for.
D Company was quickly formed, and the men were verified
by a personal inspection by Captain Lyon. Not a man was
missing from the ranks who was not accounted for.
The officers of these companies testified that while such a
thing was possible as that some of the men might have par¬
ticipated in the shooting and then returned and joined their
38343—7048
21
companies without detection, yet tliey do not believe that !\ny
such thing occurred, or that it could have occurred without
the men being detected.
Later that night, after Mayor Combe notified Major IYnrose
that the men were charged with doing the shooting, the men
were again verified, and every man was satisfactorily accounted
for.
The following morning, as soon as it was light enough to see
and to make an inspection, the guns were carefully inspected,
and the ammunition was verified, with the result that not a
cartridge was missing and not a dirty gun was found. Every
one was as bright and clean as it had been found two days be¬
fore at their regular weekly inspection.
There is much testimony in the record as to whether or not
in the nighttime, and without artificial light, the men could
have cleaned their guns if they had used them on the raid so
as to have them free from any indication of use.
The overwhelming weight of this testimony is that it is a
difficult matter to clean these rifles; that it requires from fif¬
teen to thirty minutes to clean them, and that it is absolutely
impossible to clean them in the dark, 01* with the aid of artifi¬
cial light, so they would pass such an inspection as they were
subjected to by the officers of these companies the following
morning.
This testimony as to the cleaning of these guns and the time,
required therefor was given not alone by the colored soldiers
of the Twenty-fifth United States Infantry, but also by a large
number of white soldiers who were called as witnesses.
It has been suggested that the men probably used surplus
ammunition, but the testimony is uncontradicted that they had
no surplus ammunition. All the ammunition in the possession
of the men when they left Fort Niobrara was taken away from
them, except only twenty rounds of ball cartridges for each
man, and every man in the battalion had his twenty rounds
when inspected the morning after the affray, and all the sur¬
plus ammunition with which each company was charged was
found to be on hand in the storerooms in charge of the quar¬
termaster-sergeants of the respective companies without the
shortage of a single cartridge.
That is not the testimony of the black soldiers, but of the
white officers, men who were graduates of West Point Military
Academy, and men who stand as high in point of integrity as
any men who could be called as witnesses.
The testimony further shows they had no opportunity to get
surplus ammunition either at Fort Niobrara 01* at Fort Brown.
The testimony further shows that during the stay at Fort
Brown the three companies of white soldiers of the Twenty-
sixth United States Infantry were engaged in target practice
and that generous supplies of their ammunition in some man¬
ner found their way into the hands of citizens of Brownsville.
There is testimony to the effect that whole clips of Springfield
cartridges could be seen in barrooms, standing on sideboards,
where they were used for decorative purposes, and that when
these companies of the Twenty-sixth United States Infantry
left Brownsville they carelessly left ammunition behind them
in the barracks, which was gathered up immediately after their
38545—7648
22
departure by Mexicans and scavengers who visited the bar¬
racks for the purpose of supplying themselves with whatever
had been cast away.
I have here a clip [exhibiting]. It is a facility for putting
five cartridges together in a bunch. It is that little fastener
or holder that is called the clip. I call attention to it now
because I shall have to refer to it again presently.
In other words, the testimony shows that the citizens of
Brownsville had opportunity to procure, and that they did
have in their possession, an abundance of the kind of ammuni¬
tion with which the soldiers had been supplied, and that the
colored soldiers had no ammunition whatever and no oppor¬
tunity to procure any except only that which had been distrib¬
uted to them, every cartridge of which they had when in¬
spected the morning after the shooting occurred.
, The foregoing statements as to the ammunition should be
modified as to C Company.
Each man of this company carried with him to Brownsville
from Fort Niobrara twenty rounds of ball cartridges, but a
few days after arrival at Brownsville Captain Macklin ordered
that all the ball ammunition should be returned to the quar¬
termaster-sergeant, and that the men should be supplied with
guard cartridges, ten rounds, to each man.
According to the testimony, when the shooting commenced, on
the night of August 13, each man in this company had ten
rounds of these cartridges, and not a man in this company had
possession of a single ball cartridge. Every one had been
taken from them only a few days before under this special
order.
The testimony further shows that each of these companies
had 650 rounds of guard cartridges—no more, no less.
This ammunition was issued to them at Fort Niobrara. These
cartridges are, as their name indicates, intended for only guard
purposes. They have only 15 grains of powder, whereas
the ball ammunition has 42 grains of powder. They have
a plain lead bullet, without any steel jacket such as the ball
ammunition has.
The testimony further shows that, except. only these 650
rounds for each of these three companies, there was no other
ammunition of this kind issued to the battalion or procurable
by the battalion at either Fort Niobrara or Fort Brown.
The testimony further shows that each of these three com¬
panies the morning after the firing not only accounted for every
round of ball ammunition, but also for every round of this
guard ammunition.
Each of the companies turned over to the Government at El
Reno, where the soldiers were discharged without honor, ex¬
actly 650 rounds, except only D Company, which turned in only
645 rounds.
This shortage of one clip of guard ammunition was fully ac¬
counted for by Captain Lyon, the commanding officer of Com¬
pany D.
No one pretends that there is any evidence that any bullets
of this chai'acter were used that night. No trace of any such
bullet has been found.
It follows necessarily that, so far at least as Company C is
concerned, there is absolutely no evidence to show that they
38545—7G48
23
participated in the affray or to warrant the suspicion that they
did, and yet it was tliis company toward which ail suspicions
of guilt were directed by Major P>locksom and all others down
to the time when this fact with respect to its ammunition was
established.
Suspicion was directed to this company because Newron.
Reid, and Adair, the three men, each of whom had some kind
of trouble at Brownsville, all belonged to tliis company, and
because there was delay in the opening of the gun racks, in
consequence of which at least two of tliem were broken open
by order of Major Penrose.
Major Blocksom and others engaged in the investigation
seemed to think that it was an evidence that these men were
engaged in this conspiracy, which because of their care in or¬
ganizing and executing it seems impossible to disclose, were,
while so expert on the one hand, so absolutely stupid on the
other that they would commence their operations by breaking
open their gun racks and committing other acts that would be¬
tray their identity.
How anybody possessed of the slightest power to reason
could find evidence of guilt in such performances surpasses
ordinary comprehension. Only a man so blinded with prejudice
and egotism as to be incapable of weighing conduct intelligently
could be guilty of reaching conclusions so utterly absurd.
The testimony shows another important fact that is confirma¬
tory of the innocence of the soldiers.
PISTOL SHOTS.
Ten revolvers for each company had been issued to the bat¬
talion at Fort Niobrara. There were no other revolvers or
pistols of any kind, so far as the testimony discloses, in the pos¬
session of anybody connected with the battalion.
The testimony shows that none of these revolvers had ever
been taken out of the chests in which they were when they were
delivered to the different companies, except only one that was
in the possession of one of the officers of the battalion.
All these revolvers, with this exception, were found after
the firing to be in the chests where they belonged, covered with
cosrooline that had been put on them at the arsenal, and not
one of them showing any signs of having ever been used.
The significance of this testimony arises from the fact tla*
Major Penrose and his officers and also Major Combe and a
number of other witnesses all testified positively that the first
shots fired that night were pistol shots.
Major Penrose and his officers and Mayor Combe were ex¬
perts in the handling of arms and in distinguishing between
pistols and high-power rifles.
Major Penrose said:
The first two shots I heard were undoubtedly pistol shots.'
Captain Lyon says:
The first two shots were undoubtedly revolver shots, black powder.
Lieutenant Grier:
They were what I thought were two pistol shots.
George TV. Kendall said, referring to these shots:
I think they were pistols ; that was my impression at the time-
38545—7648
24
Mayor Combe said he first heard " what I thought to be
four or five pistol shots."
He further said that he was impressed that they were pistol
isnots because they did not sound like the shots he heard later,
>yhich he recognized as high-power rifle shots.
In view of this testimony, it can not well be doubted that the
firing was commenced that night by somebody other than the
soldiers.
LOCATION OF FIRST SHOTS.
That this firing did not commence on the rear porches of the
barracks or at any other point within the reservation is clearly
shown by two witnesses who were in position to know, and un¬
questionably did know, more about the location of the first
firing than anybody else.
One of these was private J. H. Howard, of Company D, the
sentinel who was on post and who happened, when the firing
commenced, to be passing over his beat immediately in rear
of C and B barracks, about opposite the space between them,
and practically opposite the mouth of Cowen alley.
The other witness was Matias G. Tamayo, a Mexican citizen
of Brownsville, who was employed by the Government as the
scavenger, and was with his night cart immediately in the rear
of B barracks, near its kitchen, when the firing commenced.
Both testified in the most vmqualified way that there was
no firing from the barracks or from any other point within the
reservation; that the first shots were fired from some place
outside of the reservation, as nearly as they could locate them
in the Garrison road, somewhere in the vicinity of the mouth
of Cowen alley.
Both witnesses were exhaustively examined and cross-exam¬
ined without shaking or affecting their testimony on this point
in the slightest degree.
Both testified not only that there was no firing from any
point within the reservation, but that no men or bodies of men
were passing in the rear of the barracks before or at the time
of this first firing, and that nobody was seen to be jumping
over the wall from the reservation into the Garrison road out¬
side, and both testified that if any such thing had happened
tZiey were in a situation to have seen it.
They describe intelligently and positively the character of
this first firing and the location of it, and negative, absolutely,
and unqualifiedly the claim that there was any firing from any
other point except that which followed the first firing, and
which occurred as the raiders passed up Cowen alley on the
route they took.
The sentinel testifies that there were first two shots, and
then after a few seconds a fusillade of five or six shots, and
that thereupon he passed to the front line of the barracks
opposite the parade ground, held his piece in the air and gave
the alarm required under such circumstances by firing his
piece three times and after each shot crying out "Corporal of
the guard No. 2." His gun was the only one in the battalion
found dirty from firing on inspection the following morning.
Major Penrose and a number of other witnesses testified that
fliey heard first two shots, then a fusillade of shots, then, three
separate and distinct shots, which were undoubtedly the shots
3851-5—7048
25
fired by the sentinel, whom Major Penrose found at the point
where the sentinel testifies he stood when he gave the alarm.
There is nothing whatever in the record of the sentinel,
Howard, to his discredit. His testimony is intelligent, frank,
straightforward, and undoubtedly truthful, but while it mar
be insisted that because he was a soldier his statements should
be discredited, there is no reason whatever for discrediting the
testimony of Tamayo, the scavenger. He was a citizen of
Brownsville; he had lived there all his life. Owing to the fact
that they had been there so short a time ho had practically
no acquaintance with the soldiers. He testified that he had
no interest in them, of any kind whatever to affect his testi¬
mony either one way or another. His testimony was also in¬
telligent, frank, and straightforward, and although he was ex¬
amined and cross-examined in the most rigid and exhaustive
manner, his evidence was not affected or disparaged in the
slightest degree.
I come now to the
CIRCUMSTANTIAL EVIDENCE.
It consists of a number of bullets that were cut out of the
houses into which they were fired at the time of the affray, and
a lot of exploded shells, some clips and cartridges, and a bando¬
lier that were picked up in the alleys and streets of Browns¬
ville the next morning after the shooting.
All these are the same as those with which the negro sol¬
diers were supplied. They are also precisely the same, however,
with which the white soldiers were supplied who were relieved
from duty at Fort Brown by the colored soldiers. The bullets
have upon them the mark of four lands, indicating, as the testi¬
mony shows, that they were fired from either a Springfield
rifle, or a Krag rifle, or a Krag carbine, or a Mauser rifle.
It is claimed, h'owever, that they must have been fired from a
Springfield rifle.
First, because the Springfield cartridge is too long and too
large to fit into a Krag rifle, or Krag carbine, or a Mauser rifle,
and that if the bullets that were found belonged to Springfield
rifles, and that inasmuch as no one at Brownsville, so far as the
testimony discloses, had a Springfield rifle, except only the negro
soldiers, they must have done the firing.
Until this circumstantial evidence was presented to Major
Penrose and his officers, they would not believe that any of their
men had been engaged in the shooting, but this testimony
seemed so conclusive that they changed their minds and ex¬
pressed themselves as convinced that their men must have done
the shooting.
It was this apparently conclusive testimony that fastened the
conviction of guilt upon the soldiers in the minds of all who
were engaged in the investigation of the affray, and which led
the investigators to disbelieve the soldiers and to desist from in¬
vestigating the question of the possible guilt of others.
As soon as this evidence was presented to Major Penrose and
his officers they put their men under the strictest scrutiny and
subjected them to the severest discipline and examinations, with
a view to ascertaining who the guilty men were. They con¬
tinued this course not only at Fort Brown, but subsequently at
■38545—7648
26
<5 Reno, down to the time when their men were discharged
without honor, but, notwithstanding they made every kind of
an effort, they failed to yet any cine whatever to indicate what
men, if any at all, were guilty.
Every man in the command continued to stoutly and unquali¬
fiedly deny that he had participated in the affray, and also that
had any knowledge whatever as to who had done the shoot-
iag.
When General Garlington announced the President's ulti¬
matum, that unless some one disclosed who the guilty parties
were the whole battalion would be discharged without honor,
it was thought that at least those oldest in the service, and
therefore having the most to lose by such a discharge, would
come forward with incriminating testimony; but when they
continued to assert their innocence and lack of any knowledge
'whatever on the subject, their officers, who knew their pride in
their record as soldiers and knew their trustworthiness and
truthfulness and general reliability as men, began to doubt their
guilt.
This wavering ripened into conviction when during the prog¬
ress of the Penrose court-martial and the Senate investigation
° number of important facts favorable to the soldiers were de¬
veloped and established.
TIIE MICKOSCOPIC INSPECTION.
No one fact had so much weight with these officers to change
their minds as what is known in this record as the microscopic
inspection that was made of- the exploded shells above re¬
ferred to.
When the results of this investigation were communicated to
the Senate Committee on Military Affairs, made a part of the
record of the investigation, and made known to the public,
these officers carefully studied the various points and features
and phases of the same with the result that, coupled with other
testimony, they became thoroughly convinced that their men
were absolutely innocent, one and all, of any participation in
the shooting affray, and of withholding any information with •
regard thereto.
All testified fully as to this change of opinion in favor of
their men, giving their reasons therefor.
This testimony, which was so conclusive to these officers,
appears equally conclusive to my mind.
It is of the most important character and, in consequence,
is entitled to the most careful attention.
My views with respect to this circumstantial evidence and
this microscopic inspection and the conclusions deducible from
the results of the same are fully and carefully expressed in the
supplemental minority report signed by the Senator from Con¬
necticut and myself.
I do not know how better to present what I have to say in
regard thereto than by quoting the following from that report.
It involves some repetition, but in view of its importance that
is not objectionable.
THE SHELLS, CLIPS, ETC.
A lot of exploded cartridge shells, some clips and cartridges, and a
irandolier were picked up in the alleys and streets of Brownsville
the next morning after the shooting.
38545—7G48
27
these were brought to the fort and shown to Major Penrose
ana tde_ other officers of the battalion they would not, any of them,
believe it possible that any of the men of the battalion bad boon en¬
gaged in the shooting; but when these were exhibited to them, and they
were told that they were picked up at the points where the shooting
occurred, they changed their minds and concluded that in view of
such evidence their men must have done the shooting. From tho*
moment they put their men under the strictest scrutiny and surveil¬
lance and made every effort possible to ascertain who the guilty inea
were, but all such efforts failed.
In the meanwhile the court-martial of Major Tenrose was held at
San Antonio and the investigation before the Senate committee com¬
menced. The testimony so taken satisfied the officers, as we ha\e
already pointed out, that their men were not guilty, and they have bo
testified.
They testify that they were Influenced to change their opinions
and reach the conclusion that their men were not guilty by a number
of facts developed, including, among others, the results of a micro¬
scopic examination that was made of the exploded shells that wer«
picked up in the streets of Brownsville. In other words, the testi¬
mony by which they had been first led to believe that their men were
guilty turned out, as a result of this investigation, to be conclusive
proof to their minds that their men were not guilty. The part this
testimony has thus played shows that it is sufficiently important to
receive special consideration.
NUMBER OF SHELLS FOUND.
1. According to the weight of the testimony there were from iriO to
300 shots fired that night in Brownsville by the raiders, whoevt r they
may have been. There should have been found, therefore, that many
exploded shells. The testimony shows that careful search was made to
find the shells and every other species of evidence that might tend to
show that the soldiers were guilty, but with the result that, all told,
only about 40 of these exploded shells were found. In other words,
there were from 100 to 200 or 300 exploded shells, according to the
theory of those who claim that the soldiers did the firing, scattered
somewhere as a result of that firing in the alleys and the streets of
Brownsville which have never been found. Nobody pretends that there
was any difficulty on account of the nature of the ground or for any
other reason about finding any exploded shells there may have been, or
ought to have been, in the streets where the firing occurred. Seven of
these empty shells were found at the mouth of the Cowcn alley near the
fort by Captain Macklin. Others were found in the alley and in Wash¬
ington street at the point where the firing is said to have occurred.
These shells so found, except those found by Captain Macklin, were
turned over to the authorities and subsequently forwarded to the Sen¬
ate for use as evidence. There were only 33 of them in all. There
may possibly have been a few others picked up that were not turned
over, but we have no account of them, and the testimony is of such
character as to warrant the conclusion that there could have been but
very few, if any, picked up in addition to the 33 mentioned. It
is reasonable to conclude that the other shells that must have been
exploded, if there were as many shots fired as the witnesses state, were
not found to be such shells as the soldiers used, or there must have been
some other good reason for not submitting them as evidence. Whatever
the explanation may be, the fact remains, and it is a fact that in and of
itself discredits the deductions drawn to the prejudices of the soldiers
from the finding of the shells that have been submitted.
SHELLS AND CLIPS FOUND BY CAPTAIN MACKLIN.
It is testified by Captain Macklin, who was the officer of the day,
that just at the break of dawn he made a careful search for any
evidence that would show who had done the firing. In this behalf
he searched, both inside the reservation wall and outside, to find sheila
and clips or other evidence that the soldiers had done the firing, aa
the citizens were at that time charging. He found no shell, no elip,
no evidence of any kind inside the reservation wall, but outside tne
wall, across the street, in front of the garrison and at the mouth oi
Cowen alley, where, according to the testimony of the guard and tne
scavenger and other witnesses, the first shots were heard, he tou a
seven shells and six clips in a circular area not more than 10 inches
in diameter. The testimony is conclusive that if these shells naa
fallen from Springfield rifles as they were fired they would have been
scattered over an area perhaps 10 feet in diameter. It is the opimos
38545—7048
28
or all tlie witnesses who testified on that point that the shells found
by Captain Macklin could not have fallen in the position in which he
found them if they had fallen as they were fired. This fact, coupled
with the further fact that with these seven shells there were found
six clips, enough to hold thirty cartridges, further discredits the
finding of the shells in the alleys and streets as evidence of the guilt
of the soldiers.
MICROSCOPIC INVESTIGATION.
But while the investigation was in progress the War Department,
on its own motion, caused all the rifles that were in the hands of the
three companies at Brownsville that night to be forwarded to the
Springfield Armory, and detailed two ofHcers, who, under instructions
from the War Department, caused to be fired out of each of these rifles
two cartridges. The indentations on the heads of the exploded shells
so fired were put under the microscope and compared with the indenta¬
tions found on the heads of the thirty-three exploded shells picked up
in the streets of Brownsville, which indentations were similarly mag¬
nified.
In orcler that Senators may have a better idea than I can
convey by mere language, I have in my hand here an exploded
shell to which I call attention. That is the head of the shell—
where I am pointing. The center of that head is called the
" primer." When the cartridge is inserted in the gun and the
trigger is pulled a bolt shoots forward which carries what is
called the "firing pin" until it strikes the primer, and that
explodes the shell.
As I have already read, two cartridges were fired from each
one of the guns of this battalion by the officers who were in¬
trusted with the duty of making the experiment, and the indenta¬
tions made upon the heads of the shells were then magnified,
and you see by these exhibits in our record at pages 1313-1314
to what extent they were magnified. [Indicating.]
All firing pins are made by machinery and are supposed to
be practically alike, yet it is found upon examination that no
two firing pins will make the same kind of an indentation;
that is, there does not seem to be anything in either manu¬
facture or nature exactly like anything else, even when it is
made with machinery.
All the heads of these exploded shells fired by these experts
were put under the magnifying glass and magnified in that way.
So were the heads of the shells picked up in the streets of Browns¬
ville put under the magnifying glass, and then they were com¬
pared with each other with this result, that the indentations
found on the thirty-three shells picked up in the streets of
Brownsville were exactly like the indentations made upon the
shells fired by these experts out of four certain rifles that had
been sent to the Springfield Armory, which were found to have
belonged to Company B.
All that is set forth in the official report of these experts.
The experts transmitted them to the Secretary of War, with
a report in which they said that the experiments showed con¬
clusively that the thirty-three shells picked up in the streets
of Brownsville had been fired out of these four certain rifles—
eleven out of one, eight out of another, and so on. The numbers
of the rifles were given, and that was transmitted to the com¬
mittee as settling the whole matter.
But I was simple-minded enough when that came in to think
I would like to know where those four rifles were that night,
if I could find out. So I found out, from an examination of
38545—7648
20
the property account of the company, that thoy wore churgotf
to lour different soldiers, whose names wore given. They were
subpoenaed and brought before the committee, and thoy testified,
and three of the rifles were accounted for as in the hands of
men that night, not one of them showing any e\idoneo of ha\ ins
been fired when examined the next morning.
But it was said by those who were disposed to criticise and
not accept that as conclusive that these soldiers wore interest* d
and there might be unreliable testimony given. Hut it was not
necessary to pursue that any furlher, for when we came to ex¬
amine as to the fourth gun we found that gun was that night
locked up in the arms chest of the storeroom of the <*<>mp:in,v's
quarters. I have told all this in the report, and I would rather
read that.
Mr. SCOTT. And that gun had never beeu u«ed.
Mr. FOKAKEE. Xo. I want to real that, and I want the
attention of every Senator who will so honor me.
The thirty-three exploded shells were otherwise subject! d to the m >st
careful inspection by thi «e experts. The result of this investigation
was submitted to the-eommitt> e in the form of an official report made
by these officers to the-Secretary of War. It is found at pai,es
lolio ot the record. Without buns unduly tedious, the res\ills were:
1. That there was such an txact identity between the indentations
found un the h'ids of the thirty-three exploded shells picked up in the
streets of Brownsville and the indentations found upon the exploded
shells fired from four certain gun* bt longing to Company B of the
Twenty-fifth Infantry that the officers rep >rted that, beyond a reason¬
able doubt, the shells picked up in the streets of Brownsville had been
fired out of those four guns.
The exiierts further reported that they found that three of the
shells picked up in the streets of Brownsville had a double indentation,
as though a first attempt to fire them had failed and they had then
been put a second time in the piece and struck a second time with the
hammer or firms pin before they were exploded.
o. They further officially reported that certain of the shells picked
up in the streets of Brownsville, nine in number, bore marks indicating
tii.it they liad been twice or oftener inserted in a rifle as though to be
fired.
DOUBLE INDENTATIONS.
The officers of the Twenty-fifth Infantry and all the men who were
examined on the point testified that when they first received their rifles,
about the last of April, 10U6, at Fort Niobrara, they were found to be
so heavily oiled with cosmoline that the spring which shot the bolt
forward with the firing pin to strike the head of the cartridge and ex¬
plode it was impeded to such an extent that it was a matter of frequent
occurrence that cartridges failed to explode at the first stroke, but that
after, by the use of eoal oil and in other ways, this cosmoline had been
entirely removed, so that the spring worked freely, such a thins as a
failure to explode practically never happened ; and all testified that long
before these troops left Fort Niobrara, wliere they used their rifle3 ia
target practice, they ceased to have any such difficulty and that durintj
all the time they were in Brownsville no such difficulty could have been
experienced if they had had occasion to use their rifles.
THE DOUBLE INSERTION.
As to the double insertion of cartridges, the officers and men all
testified that while they were engaged in target practice at Fort Nio¬
brara the call to cease firing very frequently was founded after a car¬
tridge had been inserted but before it was fired; that this was a matter
of practically daily occurrence.
I should have said " hourly occurrence
that always the soldier was required when the call to cease firing was
sounded to at once remove from his gun any cartridge that mi„ht have
been inserted but not yet fired,.and that this cartridge so withdiawn was
v^m^prted and fired when firing was resumed, and tnat in tnis way
shells would show marks indicating that they had been inserted more
38545—7048
30
than once in the firing piece. The officers and men all testified that
except only on the target range at Fort Niobrara there was never in
the history of these arms any such double insertion of cartridges or any
occasion for such double insertion. It was the opinion of all the offi¬
cers and men who testified on the subject that these double insertions
Sever could have occurred except only on the target range at Fort
Niobrara.
What these officers say shows how improbable it is that such a
double insertion could have occurred in connection with the shooting
affray-at Brownsville, when it is remembered that when an attempt
is made to fire a cartridge and the attempt fails the bolt must be
drawn backward, with the result that the ejector throws the cartridge
out of the chamber and to the distance of anywhere from 3 to 10
feet away from the gun. The idea that a raider would undertake in
the darkness of such a night, and under such circumstances, to re¬
cover an ejected cartridge that had failed to explode in order that it
might be reinserted in the piece is utterly untenable. The same is
equally true as to those cartridges showing double indentations. There
could not be any double indentation without pulling back the bolt after
the first indentation, with the consequent expulsion of the cartridge
from the chamber out into the darkness and to the distance of 3 to 10
feet away from the gun, then recovering and reinserting the cartridge.
To suppose that on such an occasion, under such circumstances, any
such thing would or could occur is an extreme improbability, if not an
actual impossibility.
THE FOUR GUNS.
The four guns out of which the experts found that the shells picked
up in Brownsville must have been fired were identified by their num¬
bers. The testimony shows that on the night of the shooting three
of these guns were assigned, respectively, to Thomas Taylor, Joseph L.
Wilson, and Ernest English, privates of Company B. These men ap¬
peared and testified that they were in their quarters asleep when the
firing commenced, that they heard the call to arms, rushed with their
comrades to the gun racks, each getting some gun which he carried
for that night and which he returned after the company was dis¬
missed for the night to the gun racks, where they were locked up and
kept until morning; that the following morning each one found his
gun in the rack and that when submitted for inspection it was found
to be perfectly clean and bright, showing no evidence whatever of
having been fired during the night. All testify that in the excitement
and confusion each soldier grabbed the first gun he could get, but that
all guns were found in the racks, where they were verified after the
firing was over. These witnesses were clear, straightforward, and un¬
qualified in all their statements, and their testimony should be suffi¬
cient, in the absence of specific contradiction, to establish the fact that
no one of their guns was used in the shooting affray.
They are confirmed by the testimony of their company commander,
Lieutenant Lawrason, who testified, at pages 1579 and 1580, as follows :
" Q. Did you learn before your company was dismissed that night
that it had been charged by Mayor Combe that the soldiers of the gar¬
rison had fired on the town?—A. Yes, sir. I was near the main gate
into the town when Mayor Combe came up, and I heard part of the
conversation with Major Penrose, in which Mayor Combe accused the
Boldiers of having done the shooting.
" Q. Until that time had you any thought of that kind with respect
to the matter ?—A. No, sir ; I did not; I did not believe for an instant
ihat the men had done it.
•• Q. That was the first intimation you had that anybody made any
such claim?—A. Yes, sir; it was.
" Q. And then it was after that that Major Fenrose dismissed you
and told you to make these examinations, was it?—A. Yes, sir.
" Q. You took your company back, as I understand you, to the bar¬
racks and dismissed the company. Then what did you do in execution
of the major's orders?—A. I saw the arms locked in the racks aud
later
" Q. I will ask you, before you left the racks, whether or not you
counted the guns after they were put into the racks ?—A. lres, sir; I
counted them.
" Q. How many were there, or were they all there?—A. I don't re¬
member the exact number, but I remember adding to the exact number
the number of men on guard and the number of rifles that should be in
the storehouse, and the first sergeant's rifle, and adding up seventy.
" Q. That is to say, you accounted for seventy rifles, did you?—■
A. Yes, sir.
88545—7648
31
Danvv' ^lasr,-tbiit the f,Vu *!»»* &a<* **■<*« Ifsnefl to thnf com-
P "yri~~.A-. lhat was ail that we had—a!! the N priii i* field rides no had
i,r,„JH?"J.tAnd y°11 remember, do you, positively that at that time v.ni
knew that you had in the sun racks the full number of rifles that should
be there after deducting the other rilies that you accounted for us Iteln*
elsewuerc l—A. xes, sir. *
" Q. If there had been three rifles mfssinsr from the racks would ton or
not have detected it?—A. If there had beeri what? 5
" Q. If there had been three rifles ini.-Njne, would you have detected
it?—A. I believe I would have detected one short.
" Q. You would have detected one short. Kow, do you remember
Thomas Taylor of your company? A. \es, sir.
" Q. Do you remember seeing him that niUit? A. I know flint ho
was present that night, though I don't remember seeing his lace in the
ranks.
" Q. How do you know that he was present—I mean present with
your company, and I suppose you mean that? A. Yes, sir; le-nu^c I
know that he was carried on the roils of the company at this time,
and I checked up the whereabouts of every uniu iu the co upauy that
night.
" Q. And you know that he answered to his name at the roll n !J,
do you?—A. Yes, sir.
" Q. Or if not that, that you found him elsewhere?—A. Yes, sir; I
know he was accounted for at that roll call.
" Q. You have told us of all who were absent from the ranks when
the roll was called, and he was n( t one of the i ; so therefore it follows
that he was in ranks, does it not?—A. Yes, mi*.
" Q. Now, is that true also of Joseph L. Wilson?—A. Yes, sir; that
is true of Joseph L. Wilson also.
" Q. Do you remember seeing him in ranks that night?—A. No, slrf
I d.o not. He is on one end of the company, and I believe in the rear
rank, or at any rate not directly in front of nie in the company. II®
is smaller than most of the men in the company.
" Q. But if he had been absent when his name was railed, you
would have detected his absence, you would have observed it?—A.
Yes, sir.
" Q. You were paying particular attention, were you not, to the roll
call ?—A. Yes, sir ; I was, because I believed that the barracks had
been fired into, and I wanted to see if any man had possibly been
wounded and left upstairs.
" Q. And you also stated that you knew the voice of every man so
you could distinguish it and recognize it when he answered to his
name ?—A. Yes, sir; I believe I am familiar with every voice in the
company.
" Q. Now, is what you have stated as to Thomas Taylor and Joseph
L. Wilson also true as to Ernest English ?—A. Yes, sir; I believe
English was also present.
" Q. Do you remember seeing him that night?—A. No, sir; I can not
positively state that I saw the face of any man in the ranks that
night.
" Q. But you do remember distinctly that every man was m ranks
answering to his name, except those whom you have given us the names
of, who were away on the several duties you have mentioned?—A. Yes,
sir."
THE FOUETH GUN.
But however it may he as to the testimony of these three men being
sufficient to show that these three guns were not tired that night, the
Fort Niobrara for Brownsville his term of enlistment expired, and he
reenlisted and took the usual furlough of three months, to which he
was entitled. -Before starting on his furlough he turned in his gun to
the quartermaster-sergeant, Walker McCurdy, who placed his name on
a piece of paper and put it in the bore of the gun next to the chamber,
and then placed it in the arm chest and locked it up. Sergeant lUaney
did not return to the company until after it left Fort Brown. On the
night of the shooting his gun, with others, was still in this arm cnest.
They were all placed there when the battalion left Fort Nl°^aia-,
arrival at Fort Brown this arm chest was put in t110 ^1'™0111' ^nd
want of room other baggage was piled on top of the cbest. on t
ni!?ht of the firing, and immediately after the company was aismissea
fof the night. Lieutenant Lawrason, the company commander^ ££der
orders from Major Penrose, proceeded to verify his rifles. ne caicius^
38545—7G48
32
counted the rifles in the (tun racks and found there the exact number
that belonged in the racks. He then went to the storeroom, taking
with him the quartermaster-sergeant, who unlocked the room, that he
might enter. After entering the room be told the quartermaster-
sergeant that he wanted to verify the guns in his custody—those in the
arm chest. The quartermaster-sergeant thereupon removed the bag¬
gage that had been piled on top of the arm chests, unscrewed the lids,
opened up the guns, and Lieutenant Lawrason counted them, finding
that every gun was there—not one missing. In this way he estab¬
lishes that Blanev's gun was at the time of the firing in the arm chest,
with the lid screwed down and baggage on top of the chest, and
the door of the storeroom fastened under lock and key. In other
words, it is conclusively shown that as to this one gun at least it was
utterly impossible for it to have been fired in Brownsville or that it
ever had been fired, except only on the target range at Fort Niobrara
before the battalion left there.
Lieutenant Lawrason's testimony on this point is as follows:
" Q. That night, when the guns were put back in the racks, did you
count them?—A. Yes, sir; I counted them as they were placed in the
racks.
" Q. 'Wove the rifles locked up?—A. They were, sir.
" Q. By whom?—A. By the noncommissioned officer in charge of
quarters.
" Q. Who was that?—A. Sergt. George W. Jackson.
" Q. Is he a reliable man, or not?—A. I believe him to be a reliable
man, sir.
" Q. And a truthful man?—A. I think so, sir.
" Q. lie had been a sergeant in that company for a long time, bad
he not?—A. He had, for several years, I believe, sir. He was in the
company when I joined it.
" Q. And a man of good record in every sense?—A. I believe he
was, sir.
" Q. Now, you saw the gun racks locked by him ; then what did vou
do next after you had put the rifles away and locked them up in that
manner?—A. I then went down and inspected the rifles in the store¬
house.
" Q. Who was in charge of the storehouse, or storevoom, whichever
you call it?—A. Quartermaster-Sergeant Walker McCurdy.
" Q. Was he, also, an old sergeant?—A. l"es, sir; he was an old
sergeant of Company B.
" Q. Was he or not a reliable and truthful man?—A. I always be¬
lieved him to be such, sir.
" Q. He had been in the service many years, had he not?—A. Yes,
sir; he had.
" Q. And had everybody's confidence as a good soldier and a faithful
noncommissioned officer?—A. Yes, sir.
" Q. He was the quartermaster-sergeant. As quartermaster-sergeant,
what was his duty with respect to the surplus rifles and surplus am¬
munition? I mean surplus in the sense that it was not in the hands of
the men?—A. He was accountable for it, and it was his business to
keep it locked up.
" Q. You went to the storeroom after you locked up the rifles; who
went with you to the storeroom?—A. The quartermaster-sergeant.
" Q. Sergeant McCurdy?—A. Yes, sir.
" Q. What did you do, and what did you tell him, and in what con¬
dition did you find the room ; was it locked or unlocked when you went
to it?—A. It was locked and he opened it. He took out a bunch of keys,
as I recollect it, and fumbled around and got the right key and un¬
locked the door. The storeroom was very small, and we could not put
all of our quartermaster property in there, and there was some con¬
fusion in the way in which the stuff was piled. We had to remove a
lot of company property.
" Q. I will come to that in a minute. What did you tell Sergeant
McCurdy you wanted in the storeroom when you went .there; did you
tell him or not what you wanted to do until you got into the store¬
room?—A. No, sir; when I got into the storeroom I told him that I
wanted to see the rifles that he had in the storeroom.
" Q. That is, rifles that he had in his possession ?—A. Yes, sir.
" Q. Did you know how_ many rifles he had in his possession at the
time?—A. I did, by referring to the company property book which was
tept there.
" Q. We will speak about that presently. Now, go on and state what
you did and what he did when you told him.—A. He told me that the
rifles were locked up in the arm chests. I told him to open them, and
he opened one full arm chest that contained ten rifles, and also opened
38545—7G48
33
Com[jauy ^shot^uus8'1'0^ con^ainc{* two or three rifles and several old
not fhPv /ou opened the arm chests, let me nslc w heftier or
0£Wr, VTMPggrfst «r«ffrsa&?
jKa.rssssrrw' M°re we ** «»•«.*-■. i^sst
i kind °f property was this?—.V. Iron nunrteriiuister luniks
things ieV0' somc 11-011 uprights to hold mosquito burs—T shaped
"Q. They had been piled on top of these arm chests, had thevV A
chests'1"' Wei'e standiD° fgaiiibt the Mall, between us and the urui
mi,'l£-iW1*enT 5a<I you ^st that seen these arm chests, nnd
wlieie? A. I had seen them at Fort Niobrara. Nebr.. before shipment,
house aF orlfBrownun ecl from the «a=,lus and placed iu the store-
were th?5!e estra «uns Pln<'P«l in these arm chests, whether
at Fort Niobrara or I< ort Brown, or where?—A. They were placed iu
the arm chests at Fort Niobrara. '
" Q. Do you remember seeing the suns—rifles-
" Q. You have told us in what condition you found the chests as to
other property being piled on topthis property was removed, was it,
from the tops of the chests?—A. Yes, sir.
" Q. And then were the chests opened, or not?—A. Thev were onenert
under my supervision and the arms counted. 1
" Q. State in what condition you found the inside of those chests as
to the arms.—A. The arms were placed in the pioper grooves for them
and they were battened down, or held down by cleats that fit in the
boxes, to prevent their rattling around during shipment.
" Q. They had been fixed that way before they had left Niobrara?
A. Yes, sir.
" Q. And were they in that same condition when you opened them
that night?—A. They were in the same condition, sir.
" Q. Did you count the rifles when they were opened up ?—A. Yes,
sir; I counted them.
" Q. I will ask you another question—whether or not, before these
rifles were shipped from Fort Niobrara, they were coated with cos-
moline oil or any other kind of oil?—A. I believe they were coated
with cosmoline oil at the time I looked at them at Fort Brown.
" Q. When you looked at them was there any indication that they
had been disturbed in any way whatever since they had been boxed
uo at Fort Niobrara?—A. No, sir; there was not; I did not take out
all the rifles; I could count them without taking them out of the
boxes; I picked up one or two from the top.
"Q And you did count the rifles m both boxes?—A. Yes, sir.
" Q And you remember that the requisite number of rifles were
there' added to the other rifles that you found in the racks, and that
you counted as away from there, to make up the number of seventy?—
A yes sir
'"Q. There was not a rifle missing, was there?—A. No, sir."
On this point Quartermaster-Sergeant Walker McCurdy testified (p.
16awhat°bo6k is that in front of you there? See if you recognize
it.—a. This is the company's property book, sir. _
" Q. The company property book of Company B ?—A. les, sir. „
" O Will vou turn to that and see what gun Sergeant Blaney haa
Assigned to him according to that book, when these new Springfield
rifle! were i/S?—A [Examining book.] I think it was 45683.
"Q Nowf it~"has^been1 t'estifledt to, I believe, that Sergeant Blaney
was absent on furlough. When Aid he go away on furlough?—A. It
wis Ibout the same time I was made quartermaster-sergeant—about
" Q^That^is, you succeeded him when he went away on furlough? -
A""^.S,Had he returned while you were yet at Brownsville? When did
lift return?—A. He returned fl.t El Reno. .
away.
. 38545—7648 3
34
"Q. He turned it in?—A. No, sir; he turned in his own rifle. He
will tell you himself that when he returned there was a slip of paper
put in the chamber to show whose rifle it was, to keep me from issuing
it to anyone else.
" Q. Who put that in there?—A. I put it in there myself.
" Q. What was on that slip of paper?—A. ' WTilliam Blaney.'
M Q. Now, when he returned, were you still with the company ?—A.
Yes, sir.
•'Q. At El Reno?—A. Yes, sir.
" Q. And you were still quartermaster-sergeant?—A. Yes, sir.
" Q. And did you continue as quartermaster-sergeant?—A. Until I
was discharged, sir.
" Q. Until you were discharged?—A. Yes, sir.
" Q. Now, what was done in the matter of providing Sergeant
Blaney with a gun?—A. I gave him his same rifle back.
" Q. You gave him back that same rifle?—A. Yes, sir.
" Q. What does the company book show there as to what ultimately
became of it?—A. The company property book only shows here that' it
was checked off. At least it is struck out now, because it was checked
off.
" Q. Look at the number of the gun and see whether there are some
initials placed over the number?—A. No, sir; only 4 O. K.' here, when
it was turned in.
" Q. What is that written over the number [indicating on book] ?—
A. That is the captain's check mark.
"Q. That is ' C. C. K.?'—A. It is ' O. K.'
" Q. No; ' C. C. K.'—A. That is the captain's check mark, of Cap¬
tain Kinney. He could tell you. He did that himself.
" Q. The gun was turned in. You were quartermaster-sergeant when
the gun was turned in?—A. Yes, sir.
" Q. State whether or not when the guns were turned in Captain
Kinney was captain of the company.—A. Yes, sir.
" Q. And his name is C. C. Kinney?—A. Yes, sir.
" Q. State whether or not he checked up every number.—A. He had
that book, and he checked it up.
" Q. Can you tell us where that gun. No. 45G83—is that the num¬
ber?—A. 45683, I think it is, sir. [Examining book.] There is a
check over it, but I think that is what it is, No. 45683.
" Senator Warner. That is the number you gave?
" Senator Foraker. Yes.
" By Senator Foraker :
" Q. Well, it is the number that is there. State where that gun was
on the night of the 13th of August, 1906.—A. It was in the arm chest,
sir, in the company.
" Q. In the arm chest?—A. Yes, sir.
" Q. Was the arm chest open or closed?—A. It was closed, sir.
" Q. Where was the arm chest?—A. It was in the storeroom.
" Q. How long had it been in that arm chest, and who had placed it
there?—A. I placed it there at Fort Niobrara.
" Q. At Niobrara?—A. Yes, sir.
" Q- It was one of the guns that were in your charge ? It was one
of a number in your charge at that time, was it?—A. Yes, sir.
" Q. You have already testified that you packed up in arm chests all
the guns you had charged to you?—A. All the surplus guns that were
not in the hands of the men, sir.
" Q. You have a clear, positive, distinct recollection of that fact,
have you?—A. Yes, sir.
" Q. You can not be mistaken about it?—A. No, sir.
" Q. It was No. 45683 ? That was the number ?—A. Yes, sir."
If this gun was not fired that night in Brownsville, as the testi¬
mony conclusively shows it was not, then it follows that if the shells
picked up in the streets of Brownsville were fired out of this gun
they must have been fired at Fort Niobrara. The testimony shows
this was both possible and probable.
Before this microscopic investigation was made or any such question
was foreseen, it was established by uncontradicted testimony that Com¬
pany B took with it to Brownsville as a part of its baggage a box
containing from 1,000 to 2,000 exploded shells, with a proportionate
number of clips, and that after arrival at Brownsville this box, opened,
stood on the back porch of B barracks, where anyone passing might
have access to it and remove shells and clips from it. The microscopic
report says that the shells picked in the streets of Brownsville
and put in evidence were, beyond a reasonable doubt, fired out of these
four guns belonging to B Company. If so, then it also follows that
they were fired, not in Brownsville, but at Fort Niobrara, and that they
38545—7648
35
becaiisp0"?!^ in,thf streets not.because they fell there when fired, but
sornreri f, y Jiad ,I'Iacc'J Vli;',v h-v unknown, wllo had
secuua them from tins box of shells standing ou the back porch ami
easily accessible to anyone disponed to remove them therefrom. Jn
other words, the microscopic inspection shows conclusive!v not that the
soldiers were guilty of the firing, but that the soldiers were free from
such guilt.
Before I leave that subject let nie again call at lent ion
to the fact that the next morning about the break of (lay,
as he testified, Captain Macklin, who was the oilicor of
the day, made a very careful search, ha\ing heard that tin*
charge was that the soldiers had done the firing, both inside llie
reservation and outside, to find any e\idence of such linns;.
Inside the reservation he could find no shell, no clip, no e\ i-
dence of any kind to show that any firing had occurred. Out¬
side the reservation, in the mouth of Covven alley, where the
sentinel and the scavenger testified that the first firing occurred,
he found on a circular area, not more than 111 inches in diame¬
ter—think how small that is now—seven exploded sh.olls and
six of these clips. The testimony is that if those exploded shells
had been fired that night by one standing near that point, they
would have been ejected a distance anywhere from 3 to 10
feet from the gun, and they would have covered an area of 10
feet in diameter, rather than 10 inches in diameter. In other
words, that, in connection with, what is otherwise shown with
respect to these exploded shells picked up in the streets of
Brownsville, indicates that they had been placed there not as
a result of firing done by soldiers, but as a result of firing done
by somebody else who wanted to fix the responsibility for firing
upon the soldiers.
Still other facts were developed and established by the testi¬
mony that might be cited as confirmatory of the innocence
of the soldiers, but it is not necessary for present purposes to
prolong the discussion of that character of evidence.
I want to pass to a consideration of the legislation that has
been proposed, but before taking that up I desire to call atten¬
tion to the
PROBABILITIES
of this case, or rather its improbabilities.
To any mind at all familiar with human nature, and able to
reason as to the probabilities of human action, there is testi¬
mony of the strongest character in favor of the soldiers in the
striking improbability of the whole theory of their guilt.
Is it probable that men of the character the testimony shows
these men to be would deliberately plan such a conspiracy?
And if they had ability enough to plan and execute such a
conspiracy, would they be stupid enough to enter upon its
execution by breaking open their gun racks, as they did in
Company C, and by firing from their rear porches as it is
charged they did in Company B, or that they would be firing
from within the reservation grounds, on which they would
remain until by such firing and such operations they had
aroused the whole town, and directed attention to themselves,
thereby fixing their identity as soldiers; and that when they
had thus fixed attention upon themselves, and not before, they
would, in the presence of the aroused citizens jump over the
38545—7648
36
wall of the reservation and start on their errand of outrage
and murder?
Is it reasonable to suppose that if the raiders were soldiers
they would have commenced firing anywhere in the vicinity of
the reservation ? It must be remembered that it is the theory of
those who believe in their guilt that operations were com¬
menced in this bungling manner and that yet their proceed¬
ings were so carefully planned that, although they had acces¬
sories before the fact to enable them to secure their guns and
pass the guards and accessories after the fact to enable them
to return, clean their guns, and otherwise deceive their officers,
yet all concerned—the President thinks the great majority of
the battalion—have so carefully guarded the secret that no
one has allowed a single word or hint to escape that even tends
to convict. Such secrecy would be utterly impossible; but it is,
if it were possible, utterly inconsistent with the performances
with which their proceedings were initiated. The two ideas
are utterly at variance with each other—at war with each
other—{hey destroy each other.
And if the soldiers were so reckless as to disclose their iden¬
tity as soldiers by breaking open their gun racks and opening
fire in the way indicated and at the places indicated, why
should there have been maintained such secrecy with respect
to themselves and their operations in other respects?
Is it reasonable to suppose—can any fair-minded man believe—
that men capable of planning and executing such a conspiracy
and willingly engaging in such a work would be so secretive on
the one hand and so absolutely reckless on the other?
And is it reasonable to suppose that if there were from five
or six or eight to twenty soldiers engaged in the raid they could
have gone through the town to the extent described by the testi¬
mony, and in the manner shown by the testimony, and then
from a point distant 300 to 350 yards from the fort have
returned to the barracks and rejoined their companies while
in the process of formation, under the very eyes of their offi¬
cers, without being detected?
In order to have returned to their companies before their
formation was completed they would have had to run swiftly
and would, therefore, have been likely to show excitement,
quick breathing, and other effects of their exertion, which would
be observed.
The testimony of all the officers is unqualifiedly that not a
man in any one of the companies showed any sign whatever of
having participated in the affray.
It is no part of my purpose to speculate upon the sugges¬
tions of the testimony as to who, in fact, did do the shooting.
PRESENT DUTY.
At this time we are concerned only as to what affects the
soldiers, and our sole concern as to them is to ascertain, if we
can, what our duty toward them requires.
It is not essential to our action that we should determine who
the raiders were. It is enough to know, what now seems to be
commonly agreed upon, that, no matter who did the shooting,
there are many of the soldiers who are wholly innocent both
of participating in the affray and of withholding knowledge
88545--7048
37
with respect thereto, and that all such lin vo suffered disgrae/%
loss, and hardship from which the.v should l>e relieved, auc1 that
sueli relief can be granted only hy an act of Congress.
Apparently no one appreciates this more keenly than 1ha
President. It is interesting to note how this niatier seems to
have weighed upon his mind and how by successhe steps lie
has reached this conclusion.
His order discharging the men without honor was dated No¬
vember 5, 1906. Congress convened December 1!, loot!. On that
day resolutions were introduced in the Senate authori/,ing un
investigation of the facts connected with the affray and 1 ho
discharge. They led to a debate and discussion, in consequence
of which on the 12th day of December, the Secrelaiy of
War, by direction of the President, issued the following order:
Applications to reenlist from former members of Compnnit < K, C,
and D, Twenty-lifth Infantry, who were discharged under the pro¬
visions of Special Orders, No. L'Ot!, War Department, Noveml er l'.KHi,
must be made in writing and lie accompanied by such t\idenn>, also
in writing:, as the applicant may desire to submit to show lliat lie was
neither implicated in the raid on Brownsville. Tex., on the niuht of
August 13, H>0t>, nor withheld any evidence tliat might lead to th»
discovery of the perpetrators thereof.
Later, on the 14th day of January, 1907, the President, in a
special message to the Senate, said:
I am now satisfied tha.t the effect of my order dismissing those men
without honor was not to bar them from all civil employment under
the Government, and therefore that the part of the order which con¬
sisted of a declaration to this effect was lacking in validity, and I hav®
directed that such portion be revoked.
On the 11th day of March, 190S, the Committee on Military
Affairs haying made its report, the President said, in a special
message to the Senate, that he desired to revive the order of De¬
cember 12, 1906, and therefore recommended—
the passage of a law extending this time limit, so far as the soldiers
concerned are affected, until a year after the passage of the law, and
permitting the reinstatement by direction of the President of any man
who, in his judgment, shall appear not to he witliin the class whose
discharge was deemed necessary in order to maintain the discipline and
morale of the Army.
In harmony with that message four of the members of the
Committee on Military Affairs who had joined in the majority
report joined in a supplemental report recommending the
passage of a bill providing for the reinstatement in the Army,
but without providing for pay in the meantime of all the dis¬
charged soldiers who would within a year after the approval
of the act satisfy the President that they did not participate in
the affray, and that they have not withheld any information with
regard thereto.
Later, on the 19th day of March, the Senator from Missouri
introduced a bill (S. 620G), which went still further in favor of
the men, and provided that all who might reenlist under its pro¬
visions should have full pay from the date when they were dis¬
charged without honor. . „
Prior to the introduction by the Senator from Missouri ox
S. 6206, I introduced, March 12, S. 5729. Both of these bills
were referred to the Committee on Military Affairs. Yot 1 ,l*~
been reported from that committee adversely. .BotJl 3 "
the Calendar for consideration by the Senate, in accoidau .«#
38545—7648
38
with their respective merits, without either having any parlia¬
mentary advantage over the other. I speak now in favor of
the passage of S. 5729.
It will be helpful to recall in this connection precisely what
these two bills are.
I ask that they be printed in the Recqr» without reading.
The VICE-PRESIDENT. Without objection, permission is
granted.
Mr. FORAKER. I will state that the effect of the bill in¬
troduced by the Senator from Missouri [Mr. Warner] is that
any of the soldiers who were discharged may be allowed to re-
enlist whenever they may prove their innocence to the satis¬
faction of the President. Perhaps I had better read it all. It
is a very short bill.
Mr. WARREN. I hope the Senator will read the bill. The
language differs somewhat from that which the Senator has
just used. I trust he will read the bill.
Mr. FORAKER. The bill provides that whenever the Presi¬
dent shall be satisfied—I will read it as it is, then we will
have it exactly. It is as follows:
A bill (S. 6206) for the relief of certain former members of the Twenty-
fifth Regiment of United States Infantry.
Be it enacted, etc.. That if at any time within one year after the ap¬
proval of this act the President shall be satisfied that any former en¬
listed man of the Twenty-fifth Regiment of United States Infantry
who was discharged from the military service as a member of said
regiment under the provisions of a special order numbered 266 and dated
at the War Department on the 9th day of November, 1906, had no
■participation in the affray or guilty knowledge of the persons engaged
in said affray that took place at Brownsville, Tex., on the night of
August 13-14, 1906, the President may authorize the enlistment of said
man ; and any man who shall enlist in the military service under au¬
thority so given by the President shall be held and considered to have
rcenlisted immediately after his discharge under the provisions of the
special order hereinbefore cited and to be entitled, from the date of his
discharge under said special order, to the pay, allowances, and other
rights and benefits that he would have been entitled to receive from
said date of discharge if he had been honorably discharged under the
provisions of said special order and had reenlisted immediately.
I do not know of any way in which I departed from what the
bill really is in the statement which I made, except only that I
did not make the statement full enough. The bill does provide—
and that is the fundamental idea of it—that none of these men
can be authorized by the President to reenlist until he shall have
satisfied the President—to use the exact language of the bill—
that he is innocent of having participated in that affray and in¬
nocent of withholding any knowledge with respect to it; in other
words, it is a requirement that these men shall prove to the satis¬
faction of the President their innocence.
The bill I introduced—perhaps I had better read that so that
Senators may know just what it is—reads as follows:
A bill (S. 5729) to correct the records and authorize the reenlistment of
certain noncommissioned officers and enlisted men belonging to Com¬
panies B, C, and D of the Twenty-fifth United States Infantry who
were discharged without honor, under Special Orders, No. 206, War
Department, November 9, 1906, and the restoration to them of all
rights of which they have been deprived on account thereof.
Be it enacted, etc., That any noncommissioned officer or enlisted man
ftelonging to Company I!, C, or D of the Twentv-fifth United States
Infantry, discharged without honor under Special Orders, No. 266, War
department, dated November 9, 1906, on account of the shooting affray
38545—7648
39
P>CCMrre^ at Brownsville, Tex., on the nicrht of August 1.1-11 100(1
TTnitPrtHsi 03th be(?re an-v d"'Jr nntliorizcd enlisting oIKccr 'of' the
United States Army or Isavy that lie did not participate in said affray
and that he does not know of any soldier belong in- to an y of said
companies who did participate in the same, and that lie lias not at any
time heretofore and does not now withhold any knowledge witli respect
to that occurrence which, if made public, would or niii;ht lead to th«
identification of any participator in said shootincr affray or any acc<*^
sory thereto, either before or after the fact, and that ho has answered
fully to the best of his knowledge and ability all questions that have
been lawfully put to him by his officers or others in connection there¬
with, shall be, and hereby is. made eligible to rcenlist in the military
or naval forces of the United States on his application therefor at any
time within three months from and after the passage of this act, any
statute or provision of law or order or regulation to the contrary not¬
withstanding; and that upon such reenlMincnt he shall lie allowed lull
pay, according to the rank he held and the p'i> he was receiving at the
date of discharge until his reenlistment: P/tniiltil, That all the rl"htg
and privileges to which tlio soldiers reenlisting under the provisions
of this act were entitled, respectively, at the time of their diM'hart,e
shall be, and hereby are, fully restored to them, and the record showing
their discharge without honor shall be, and hereby is, annulled, set
aside, and held for naught, and the time elapsing &ince their discharge
without honor until the date of such reenlistnunt shall be computed in
determining all rights to which they may be respectively entithd on
account of continuous service as though they had been in the service
without interruption, and they shall not suffer any forfeiture of any
right or privilege by reason of such discharge: Pro cult d furtlur, That
in any case where the regular term of enlistment which the soldier was
serving at the time when discharged without honor has in the mean¬
while expired, his record shall be, and hereby is, corrected so as to
show an honorable discharge at the time of the expiration of such en¬
listment, and he shall be allowed full pay and all rights and urivi-
leges until that time; and in the event of the reenlistment of such
soldier under the provisions of this act his term of reenlistment shall
be deemed to have commenced as of the time when his previous enlist¬
ment expired, and his service under such reenlistment shall be without
prejudice of any kind by reason of his former discharge without honor:
And provided further, That in case any of the noncommissioned officers
or enlisted men belonging to said companies and discharged without
honor shall have died since they were so discharged and before the
passage of this act, but who shall have testified under oath or made
affidavit before their death that they did not participate in said shoot¬
ing affray or have any knowledge with reference thereto, their re¬
spective records shall be, and hereby are, corrected in accordance with
the provisions of this act and their legal representatives shall be en¬
titled to all pay that would have become due to them from the time of
their discharge until the time of their decease.
Sec 2 That nothing in this act contained shall be constru<:d to pro¬
hibit the prosecution and punishment of any soldier reenlisting under
the provisions hereof as to whom it may at any time hereafter
that he did participate in said shooting affray or have knowledge thereof
which he has withheld. ... . »
Sec 3 That all reenlistments under the provisions hereof of soldiers
who at the time of their discharge without honor were serving terms ol
enlistment which have not yet expired shall be held to be foi only the
remaining portion of said unexpired terms, respectively.
It will be observed with respect to these measures that both of
them nroceed upon the assumption that some of the men,
whSher few or many, or all, who were discharged without
honor were innocent, and that justice requires that all such
° Should have an opportunity to reenlist and be restored to
Si th? rights they lost by being discharged without honor.
Tt will also be observed that both of these bills provide that
the men so reenfistlog shall be paid in lull for all the time since
the men so re d witliout honor until their reenlistment.
they were d ^ general way the proposition of both bills
^ * +1!^ innocent men shall be allowed to reenlist without
loss oaf , and be restored to all the rights lost on account ot
their discharge.
38545—7648
40
The chief difference between the two bills is that, according
to the bill introduced by the Senator from Missouri, the men
who are to secure reenlistment in accordance with its terms and
provisions are required, as a condition precedent, to prove their
innocence to the satisfaction of the President,- while under the
frill I have offered as a substitute it is provided that all shall
be allowed to reenlist—
wlio sliall make oath before any duly authorized enlisting officer of
the United States Army or Navy that he did not participate in said
affray, and that he does not know of any soldier belonging to any of
said companies who did participate in the same, and that he has not at
any time heretofore and does not now withhold any knowledge with re¬
spect to that occurrence which, if made public, would or might lead to
the identification of any participator in said shooting affray, or any
accessory thereto, either before or after the fact, and that he has
answered fully to the best of his knowledge and ability all questions that
have been lawfully put to him by his officers or others in connection
therewith.
There are other important differences, among them the fol¬
lowing :
The bill offered by the Senator from Missouri does not author¬
ize the correction of the records of the men who are to be re-
enlisted. That is necessary to enable them to have their rights
to pensions, and other rights. His bill is silent on that point.
The bill offered by myself provides as follows:'
* * * Tbe record showing their discharge without honor shall be,
and hereby is, annulled, set aside, and held for naught.
This bill further provides:
That in any case where the regular term of enlistment which the sol¬
dier was serving at the time when discharged without honor has in the
meanwhile expired, his record shall be, and hereby is, corrected so as to
show an honorable discharge at the time of the expiration of such
enlistment.
This bill further provides:
That in case any of the noncommissioned officers or enlisted men be¬
longing to said companies and discharged without honor shall have died
since they were so discharged and before the passage of this act, but
who shall have testified under oath, or made affidavit before their death,
that they did not participate in said shooting affray, or have any knowl¬
edge with reference thereto, their respective records shall be, and hereby
are, corrected in accordance with the provisions of this act, etc.
There are a number of cases to which this provision would be
applicable—a number of cases as to which the law would fail in
its purpose if it did not contain some such provision.
All these provisions as to the correction of the records of
these men are absolutely necessary if we propose to meet all
the cases that will arise and treat them as equity and justice
require.
These bills differ in another respect. The order of the Presi¬
dent discharging them without honor forever debarred them
from reenlisting in either the Army or the Navy of the United
Slates.
The bill introduced by the Senator from Missouri does not
remove the bar against reenlisting in the Navy of the United
States, while my bill does explicitly remove that bar.
The importance of this is not in the fact that these soldiers
may want to reenlist in the Navy and find themselves debarred
38545—7G4S
41
therefrom, but in the f£ict tlmt so Jonff af? nny pnrt of sal(j orjOF
or dismissal stands against them tlie.v are at least pro tanto in
disgrace and deprived of rights to which thev are entitled.
Another difference is in tlie fact that the 'bill of the Senator
from Missouri does not restore to the noncommissioned oflicera
wlio may reenlist the rank they lield, which my bill does. Full*
ure to do this would be a denial of justice.
Still other differences might be jHiinled out, but those men¬
tioned are sufficient for present purposes.
The main difference is the tirst indicated. That shows that
these bills are based on radically different theories.
The bill introduced by myself requires every man who seeks
reenlistment to purge himself by making oath as to his inno¬
cence of every crime connected with the shooting affray; not
only that he did not participate in the shooting, but that "lie lias
no knowledge with respect thereto and that he has not with¬
held any knowledge from anybody.
These are requirements with which these men can comply,
and under all the circumstances the test is butliciout and all
that should be asked.
It is now more than eighteen months since this shooting
occurred. It is almost a year and a half since the men were
discharged and became separated from eacli other.
They have been during all this period under surveillance and
practically on trial.
Numerous investigations have been had. One by the grand
jury of Cameron County, Tex., another by the Penrose court-
martial, another by the Macklin court-martial, and another by
the Senate Committee on Military Affairs.
Nearly all these men havg in some connection or in some
form or other testified' as witnesses at least once, and all those
regarded as most likely to have knowledge as often as two,
three, or four times. They have been examined and cross-
examined, but during all this period, and notwithstanding all
these trials to which they have been subjected, not one iota
of testimony has been adduced anywhere by anybody of any
kind whatsoever to point to any particular one of the men as
guilty of any offense of any nature in connection with or grow¬
ing out of this shooting affray.
This fact alone, disregarding altogether their own positive
testimony as to their innocence, should be enough to authorize
the acceptance of the affidavits they will be required to make
under the bill I have offered as a sufficient basis for their re-
enlistment, especially in view of the fact that it is provided in
my bill-
That nothing in this act contained shall he construed to prohibit the
prosecution and punishment of any soldier reenlisting under the pro¬
visions hereof as to whom it may at any time hereafter appear that ho
did participate in said shooting affray or have knowledge thereof which
lie has withheld.
If these men are innocent as they claim to be, they can not
make other or further statement than my bill requires them to
make, for all an innocent man can do if charged with the com¬
mission of an offense is to say he did not do it, and that e
knows nothing whatever about it, except it be to account for his
whereabouts at the time when the offense was committed, and
38545—7648
42
that has been done by every man in this battalion who was pres¬
ent at Brownsville that night.
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.
But the bill offered by the Senator from Missouri is most ex¬
traordinary in another respect. I venture to claim that it is
without a precedent in all the history of the liberty-loving Eng¬
lish-speaking nations of the earth.
It requires two things of these men in violation of the funda¬
mental spirt of our institutions and which, in nay opinion, it
would be a disgrace to the Congress of the United States to
exact:
First, that men accused of crime shall prove their innocence;
and, second, that they shall prove their innocence to the satisfac¬
tion of a judge who has already prejudged their case, not once,
or twice, or three times, and casually, but repeatedly and offi¬
cially, and each time with a manifestation of the most unquali-
. fied conviction that not only some of the men discharged did
the shooting, but that many, if not all of them, had knowledge
©f the perpetrators which, through a conspiracy of silence, they
have refused to divulge.
In his message to the Senate of December 19, 190G, in re¬
sponse to resolutions of the Senate calling for information on
the subject, the President said:
I am glad to avail myself of the opportunity afforded by these reso¬
lutions to lay before the Senate the following facts as to the mur¬
derous conduct of certain members of the companies in question, and
as to the conspiracy by which many of the other members of these
companies saved the criminals from justice, to the disgrace of the
United States uniform.
In that same message, in another connection, he said:
As to the noncommissioned officers and enlisted men, there can be no
doubt whatever that many were necessarily privy, after if not before
the attack, to the conduct of those who took actual part in this mur¬
derous riot.
I refer to Major Blocksom's report for proof of the fact that cer¬
tainly some, and probably all, of the noncommissioned officers who were
in charge of quarters, who were responsible for the gun racks and had
keys thereto in their personal possession, knew what men were en¬
gaged in the attack.
Further along in that same message he said:
There is no question as to the murder and the attempt at murder;
there is no question that some of the soldiers were guilty thereof;
there is no question that many of their comrades privy to the deed
have combined to shelter the criminals from justice.
Again, in that same message, he speaks on that same point,
as follows:
So much for the original crime. A blacker never stained the annals
•f our Army. It has been supplemented by another only less black in
the shape of a successful conspiracy of silence for the purpose of
shielding those who took part in the original conspiracy of murder.
Further along in that same message he repeats, as follows:
Yet some of the noncommissioned officers and many of the men of
the three companies in question have banded together in a conspiracy
to protect the assassins and would-be assassins who have disgraced
their uniform by the conduct above related. Many of them may have
taown circumstances which would lead to the conviction of those en-
38545—7648
43
gaged in the murderous assault. They have stolidly and ns one man
bioken their oaths of enlistment and refused to help discover ilia
criminals. u,cl 1110
In that same message occurs also the following:
Incidentally I may add that the soldiers of longest service fina
highest position, who suffered because of the order, so far as being:
those who deserve most sympathy, deserve least, for they are the very
men upon whom we should be able especially to rely to prevent mutiny
and murder.
In lais message of January 14, submitting the Furdy testi¬
mony, occurs the following:
The evidence, as will be seen, shows beyond any'po^sibiHty of hones*
question that some individuals among the colored troops whom I have
dismissed committed the outrages mentioned, and that .tonic or all of
the other individuals whom I dismissed had knowledge of the deed and
shielded from the law those who committed it.
And then, finally in that same message, as though afraid his
numerous positive and unqualified statements on this point
would not be believed, he said:
It is out of the question that the fifteen or twenty men engaged in
the assault could have gathered behind the wall of the fort, begun
firing, some of them on the porches of the barracks, gone out into the
town, fired in the neighborhood of 200 shots in the town, and then re¬
turned—the total time occupied from the time of the first shot to the
time of their return being somewhere in the neighborhood of ten min¬
utes—without many of their comrade"» knowing what they had done.
Indeed, the fuller details as established by the additional evidenco
taken since I last communicated with the Senate make it likely that
there were very few, if any, of the soldiers dismissed who could have
been ignorant of what occurred. It is well-nigh impossible that any of
the noncommissioned officers who were at the barracks should not have
known what occurred.
While these assertions, repeated over and over again In the
most extravagant language, show after all, as General Garling-
ton reported, that there waa no evidence to establish a con¬
spiracy of silence, and that the charges and assertions that
there was such a conspiracy rested only on deductions that there
must have been such a conspiracy because nobody would tell
of that about which all claimed to have no knowledge, yet that
very fact but emphasizes the President's unfit state of mind to
act judicially in passing upon the applications of these men to
reenlist as proposed in the bill introduced by the Senator irom
Missouri •
If these men are innocent as they
What else could they have said or done? Will some man pjiejise
\\iuii eise couiu tf them uttered or what thing any
tell what woid , ^ inconsistent with the innocence they
one of them has done have saia and done precisely
assert. And yet, beca"'" * «,hould have said and done, for that
what as innocent men xuey - as gUilty of conspiracy and
very reason they are aira b tQ manifest exasperation be-
denounced in terms hal^ the charges against them and
can<=e thev will not confirm crime that has been so
;s'& ™ r/tie!r ^
inconsiderately comocent) they claim to^ ^ ^ admin.
they are m fac we are to be ca ^ aB(1 WOmen put on
It would seem ^ dayS when escape from punish-
istration of 3«stlfft f0und no avenue of escai
trial for witchcraft tounu
38545—TG48
44
ment, brataMy, and execution, except only in confession—to
the days when if a man but stood mute he was liable to be put
to death for it.
The President gives no intimation, except as already in¬
dicated, that his mind has undergone any change. He would
•therefore become judge of the worthiness of thiese men to re-
enlist if we should pass the bill introduced by the Senator
from Missouri, firmly possessed of the conviction that very few,
if any of them, were free from guilt. In other words, practically
every man of the battalion would have to prove his innocence
before one who has over and over again formally and publicly
adjudged him guilty and denounced him as guilty in the
severest language of censure and condemnation.
Another reason why this duty should not be intrusted to the
President is that it would be impossible for him to act upon
all these cases in detail, giving to the testimony of each of the
1G7 men, if all should apply to reenlist, that careful considera¬
tion which fair-dealing would require.
It may be assumed that no one would expect him to person¬
ally examine the testimony in each case and pass judgment as
the bill contemplates. He would of necessity have to call some
one to his assistance to examine the testimony and advise him,
but who would that be? Possibly the Secretary of War, who
has expressed his agreement with the President in all he has
said and done in the whole matter, and in every other matter.
[Laughter.] But he, too, is a busy man, and would doubtless
require the help of a suitable subordinate, and thus in all
probability General Garlington, as the Inspector-General of
the Army, and one of the officers who made a special in¬
vestigation, would again come to the front, and to know his-
unfitness for such a duty we have but to recall that he testi¬
fied before the Committee on Military Affairs that he would
not believe anything anyone of these soldiers might say about
tiiis matter, even under oath, unless corroborated in some satis¬
factory way.
But if none of these should be called upon to assist the
President, then somebody else—nobody knows who—would be¬
come the judicial adviser, to the satisfaction of whose whim
the men would have to prove their innocence.
Moreover, how would such a proceeding be conducted? Would
It be public or private? It is a constitutional right of the most
important character that all trials upon indictments involving
criminal charges and convictions shall be public, to the end that
the public may see to it, through the power of public sentiment,
that no man shall be unfairly condemned. This trial would not
be within the letter, but it would be within the spirit of the Con¬
stitution, for these men are not now soldiers to be dealt with
arbitrarily, but plain American citizens, invested with all the
rights of citizenship, who are seeking not only a restoration of
their good names, but also of valuable property rights, to all of
which they are confessedly entitled, if not found guilty of
crime. They should inot be dealt with, therefore, in the dark,
as though a lot of chattels, for that day for the American negro
has forever passed, but as American citizens, entitled to the
same rights white men would have under the same conditions.
In so far as we are to be governed by the fact that they were
soldiers and may be soldiers again, we should remember, as
38545—764S
45
Secretary Taft said of the white soldiers who shot up the
town of Athens, Ohio, that they are, in a sense, the wards of
the Government, and for that reason entitled, under such cir¬
cumstances, to the protection of the Government in all their
legal rights. And if we are to be further reminded, as we
have been, that the President is the Commander in Chief of the
Army, it is a sufficient answer that, while that is true, yet also
it is true that he does not create the Army. It is not for him
to say who shall enlist or reenlist. All that belongs to Congress.
In short, there is no excuse whatever for such a bill. To
pass it would be but pretending to grant relief, for manifestly,
unless there has been a decided change of mind, practically
none would follow.
Our action would but add insult to injury. It would be
without precedent, for it may be safely asserted that never
before in the history of civilization has a legislative body
been invited to require men accused of crime to prove their
innocence before a hostile judge who has already adjudged
them guilty; and never before has there been a suggestion that
any man worthy to sit in judgment ui on the rights of his
countrymen would accept such a duty if assigned him, if con¬
scious of having the slightest prejudice against the accused.
By what riclit does the Senator from Missouri assume that
the President is capable of such a manifest impropriety?
The vilest horse thief, the nrnst dangerous burglar, or the
bloodiest murderer would not be reiuired 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 de¬
fendant was guilty.
Such a performance would be justly denounced as a denial
of one of the most sacred rights of citizenship and a lasting
disgrace to the judge who perpetrated it.
Who are these men that it should be even suggested that they
should be treated worse than common criminals7
They are at once botli citizens and soldiers of the Republic.
Aside frcin these charges, which they deny, their behavior,
both in the Army and out of it, has justly "excited the high¬
est c< mniendation. Their record is without spot or blemish.
They are typical representatives of a race that has ever hpen
loyal to America and American institutions; a race that has
•never raised a hostile hand against our country s flag; a race
that has contributed to the nation tens of t^"s;^d®r°ff.J^d
defenders, not one of whom has ever turned tiaitor or falteied
in his fidelity. which we have permitted them to partici-
In every ^r^L.^uished themselves for efficiency and valor,
pate they have * d and lai(1 down their lives in the
They have shed thei g.^e with t]loir wkite comrades,
fierce shock of battle, worthy successors of the brave men
They are the direct ana , bnrg) at Wagner, and on scores
who so heroically died . nation might live.
nf hlnnrlv fields tli&t tins ^ with, pride rind devotion, tliey
Faithfully, uncomplainingly, t all thejr obligations,
have Performed all their d s negroes, but only Lor
b0iLP; ask no ESlanse in the gaUenos.1
justice because they
38545—7648
PHOTOGRAPH OF LARGE WALL MAP USED IN THE COURT ROOM AND REFERRED TO IN THE RECORD AS "THE MAP."
Original map is in office of the judge-advocate, Department of Texas, Roger S. Fitch, First Lieut. First Cavalry, J.-A., G. C. M.