U B
323
A4
F67
MAY DA

THE BLACK BATTALION
ECAUSE THEY ARE NEGROES, BUT ONLY
BECAUSE THEY ARE MEN
SPEECH
OF
HON. JOSEPH B. -FORAKER
OF OHIO
IN THE
SENATE OF THE UNITED STATES
APRIL 14, 1908
WASHINGTON
1903
38545-7648
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 the Senate.
The 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. 266, 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 which 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 on
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 whole 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
178770
38545-7648
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, 1906, 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"
en 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
were 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
were able to judge, all those noncommissioned officers and sol-
diers of the battalion who were in a situation to know, and who
28515-7618
200
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 President 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 bad
been taken in discharging the men.
In consequence, the President directed Mr. Purdy, an assistant
to the Attorney-General, and Major Blocksom 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 togethe
38545-7048
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 Matamoros, 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 where 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
38545-7648
7
night of the affray by Maj. Charles W. Penrose, the commanding
officer of the battalion and the post; Captain Lyon, commanding
Company D; Captain Macklin, commanding Company C; Lieu-
tenant Lawrason, commanding Company B, 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 alley, 20 feet in
width, known in the testimony as Cowen 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 30 feet
in width, called the Garrison road.
Along the 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 165 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, 1906, 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 x-
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 the reputation of the battalion that they have
as yet hardly discovered a single clue to such a terrible preconcerted
crime, 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 suffer 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, 1906, 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 13th 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
by 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.
I em-
No evidence that there was any conspiracy of silence.
phasize that, because that, you will discover as we proceed, is
38545-7648
9
an important part of this case in so far as there is any case
left.
Upon this report, without an iota of additional testimony-in
other words, upon the mere suggestion of General Garlington
and others that an agreement to withhold testimony had been
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 his
action that in his message to the Senate of December 19, 1903,
he said:
A blacker crime never stained the annals of the 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.
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, 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, then re-
turned-the total time occupied from the time of the first shots to
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 dis-
38545-7648
10
covered since General Garlington's report to indicate, much less
establish, a conspiracy of silence, and at that 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 "6 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
the 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 fired 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 the shooting
commenced at some point outside the reservation stands prac-
tically uncontradicted.
These witnesses were George W. Rendall and his wife, Jose
Martinez, and J. P. McDonel.
Rendall and his wife lived in the upper story of a building
that stood on the corner of Elizabeth strect and the Garrison
road.
Their front windows looked out over the reservation. Rendall
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 three
shots in succession, calling out after each shot, Corporal of
38515-7048
12
the guard-number two." That was the kind of signal which
under such circumstances he was required to give.
Rendall was in a situation to have seen other shots, if any
had been fired. He did not see any others.
His testimony that he saw a body of men after these shots
ve 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
Coen 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
husband 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 with
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
sounded, 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 with
what did in fact happen.
That the testimony of these so-called "eyewitnesses," aside
from the many contradictions by themselves and by one
another, was entirely unreliable is shown by the testimony of
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 Penrose testified that he could not distinguish one of
his white officers from one of his colored enlisted men at a
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 flat 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 peuding 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
witness or which is not shown by uncontradicted testim
to the effect of darkness on the vision to have been unreliable
if not impossible.
as
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
38545-7643
14
tell whether a man is white or black or anything about how he
is dressed.
Since this testimony has been 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
can recognize whether a man whom I see moving is a white
man 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.
The 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.
fa
pe
There is an attempt to show that they had a motive in the
they were debatred from drinking with the white
In the saloons of Brownsville; that one of their num-
ber
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
but very little, and that they never made any complaint to their
officers or to anybody else on account of being debarred by some
33545-7648
15
of the saloons of Brownsville from drinking at the same bar
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 that
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 way 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 toward 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 were 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's
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 Newton 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 had 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
told 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 down 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 off 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
have 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.
66
It may be safely concluded, therefore, that the trouble with
Reid did not furnish any motive for what occurred.
DOMINGUEZ.
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 MRS. 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
show 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 FOR 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 (156 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
He further quotes with approval from Wills on Circumstan-
tial Evidence, as follows:
In the investigation and estimate of criminatory evidence there is an
anticipated prima facie presumption in favor of the innocence of the
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.
CHARACTER OF THE MEN.
In addition to this presumption there is in favor of the sol-
diers their character both as men and soldiers.
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.
Victoriano 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 them 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,
Uor M
38543-7648
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 give
personal knowledge, but only conclusions based upon what was peces-
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 minutes 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
sounded.
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-
ricipated in the shooting and then returned and joined their
38545-7648
21
companies without detection, yet they do not believe that any
such thing occurred, or that it could have occurred without
the men being detected.
Later that night, after Mayor Combe notified Major Penrose
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, or 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 or 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 its 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
DorM
38545-7048
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
bad 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 character 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
Mou
38545-7648
23
participated in the affray or to warrant the suspicion that they
did, and yet it was this company toward which all suspicions
of guilt were directed by Major Blocksom and all others down
to the time when this fact with respect to its ammunition was
established.
Suspicion was directed to this company because Newton.
Reid, and Adair, the three men, each of whom had some kind
of trouble at Brownsville, all belonged to this company, and
because there was delay in the opening of the gun racks, in
consequence of which at least two of them 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 exer
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
cosmoline 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 tha
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 W. Rendall 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
shots because they did not sound like the shots he heard later,
which 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 unqualified 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
they 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
they heard first two shots, then a fusillade of shots, then three
separate and distinct shots, which were undoubtedly the shots
38545-7048
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 may
be insisted that because he was a soldier his statements shoul
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 he 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, aud
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, however, 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
38545-7643
26
El Reno, down to the time when their men were discharged
without honor, but, notwithstanding they made every kind of
an effort, they failed to get any clue 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
e had any knowledge whatever as to who had done the shoot-
ing.
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
a number of important facts favorable to the soldiers were de-
veloped and established.
THE MICROSCOPIC 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
bandolier were picked up in the alleys and streets of Brownsville
the next morning after the shooting.
38545-7048
27
Until these were brought to the fort and shown to Major Penrose
and the other officers of the battalion they would not, any of them,
believe it possible that any of the men of the battalion had been 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 that
moment they put their men under the strictest scrutiny and surveil
lance and made every effort possible to ascertain who the guilty mea
were, but all such efforts failed.
In the meanwhile the court-martial of Major Penrose was held at
San Antonio and the investigation before the Senate committee com-
menced. The testimony so taken satisfied the officers, as we have
already pointed out, that their men were not guilty, and they have so
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 were
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 150 to
300 shots fired that night in Brownsville by the raiders, whoever 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 Cowen 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 shells
and clips or other evidence that the soldiers had done the firing, as
the citizens were at that time charging. He found no shell, no clip,
no evidence of any kind inside the reservation wall, but outside the
wall, across the street, in front of the garrison and at the mouth of
Cowen alley, where, according to the testimony of the guard and the
scavenger and other witnesses, the first shots were heard, he found
seven shells and six clips in a circular area not more than 10 inches
in diameter. The testimony is conclusive that if these shells had
fallen from Springfield rifles as they were fired they would have been
scattered over an area perhaps 10 feet in diameter. It is the opinion
38545-7648
28
of all the 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 officers, 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
the streets of Brownsville, which indentations were similarly mag-
ified.
In order 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
29
the property account of the company, that they were charged
to four different soldiers, whose names were given. They were
subpoenaed and brought before the committee, and they testified,
and three of the rifles were accounted for as in the hands of
men that night, not one of them showing any evidence of having
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 were interested
and there might be unreliable testimony given. But it was not
necessary to pursue that any further, 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 company'
quarters. I have told all this in the report, and I would rather
read that.
Mr. SCOTT. And that
And that gun had never been used.
Mr. FORAKER. No. I want to read that, and I want the
attention of every Senator who will so honor me.
The thirty-three exploded shells were otherwise subjected to the most
careful inspection by these experts. The result of this investigation
was submitted to the committee in the form of an official report made
by these officers to the Secretary of War. It is found at pages 1309-
1325 of the record. Without being unduly tedious, the results were:
1. That there was such an exact identity between the indentations
found on the heads 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 guns belonging to Company B of the
Twenty-fifth Infantry that the officers reported that, beyond a reason-
able doubt, the shells picked up in the streets of Brownsville had been
fired out of those four guns.
2. The experts 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 firing pin before they were exploded.
3. They further officially reported that certain of the shells picked
up in the streets of Brownsville, nine in number, bore marks indicating
that they had 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, 1906, 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 coal oil and in other ways, this cosmoline had been
entirely removed, so that the spring worked freely, such a thing as a
failure to explode practically never happened; and all testified that long
before these troops left Fort Niobrara, where they used their rifles in
target practice, they ceased to have any such difficulty and that during
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 sounded 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 might have
been inserted but not yet fired, and that this cartridge so withdrawn was
reinserted and fired when firing was resumed, and that in this way
shells would show marks indicating that they had been inserted more
38515-7648
30
than once in the firing piece. The officers and men all testified that
except only on the target range at
the history of these arms any such
occasion for such double insertion.
cers and men who testified on the
never could have occurred except
Niobrara.
Fort Niobrara there was never in
double insertion of cartridges or any
It was the opinion
It was the opinion of all the offi-
subject that these double insertions
only on the target range at Fort
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
soldiers 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
that 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 Penrose 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 and
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. Yes, 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.
.6
38545-7648
31
"
Was that the full number that had been issued to that com
pany? A. That was all that we had-all the Springfield rifles we had.
Q. And you remember, do you, positively that at that time you
knew that you had in the gun racks the full number of rifles that should
be there after deducting the other rifles that you accounted for as being
elsewhere?—A. Yes, sir.
·
Q. If there had been three rifles missing from the racks, would you or
not have detected it?-A. If there had been what?
(6
Q. If there had been
three rifles missing, would you have detected
it? A. I believe I would have detected one short.
"Q. You would have detected one short.
detected one short. Now, do you remember
Thomas Taylor of your company?-A. Yes, sir.
Q. Do you remember seeing him that night? A. I know that he
was present that night, though I don't remember seeing his face 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; because I
know that he was carried on the rolls of the company at this time,
and I checked up the whereabouts of every man in the company that
night.
Q. And you know that he answered to his name at the roll call,
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 not one of them; so therefore it follows
that he was in ranks, does it not? A. Yes, sir.
Q. Now, is that true also of Joseph L. Wilson ?-A. Yes, sir; that
is true of Joseph L. Wilson also.
65
Q. Do you remember seeing him in ranks that night?-A. No, sirg
I do 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 me in the company.
is smaller than most of the men in the company.
He
Q. But if he had been absent when his name was called. 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.
(6
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.
66
Q. But you do remember distinctly that every man was in 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 FOURTH GUN.
But however it may be as to the testimony of these three men being
sufficient to show that these three guns were not fired that night, the
testimony is absolutely conclusive as to the fourth gun that it was not
fired that night. This fourth gun, being 45683, was originally issued
at Fort Niobrara to Sergeant Blaney. Shortly before the battalion left
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 Blaney
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 chest.
They were all placed there when the battalion left Fort Niobrara. On
arrival at Fort Brown this arm chest was put in the storeroom, and for
want of room other baggage was piled on top of the chest. On the
night of the firing, and immediately after the company was dismissed
for the night, Lieutenant Lawrason, the company commander, under
orders from Major Penrose, proceeded to verify his rifles. He carefull
38545—7648
32
counted the rifles in the gun 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 he told the quartermaster-
gergeant 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 Blaney'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. Were 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. He had been a sergeant in that company for a long time, had
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 you
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 storeroom, whichever
you call it?—-A. Quartermaster-Sergeant Walker McCurdy.
Q. Was he, also, an old sergeant?-A. Yes, 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,
gir; 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
kept 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
rifies 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
38545-7648
33
another that, I believe, contained two or three rifles and several old
company shotguns.
Q. Now, before you opened the arm chests, let me ask whether or
not they were easy to get at, or whether there was anything on top of
them? A. No, sir; they were not easy to get at. As I recollect, we
removed considerable property before we got the arm chests cut and
got room to unscrew the lids.
Q. What kind of property was this?—A. Iron quartermaster bunks
and, I believe, some iron uprights to hold mosquito bars-T-shaped
things.
66
Q. They had been piled on top of these arm chests, had they ?—A.
Yes, sir; and were standing against the wall, between us and the arm
chests.
66
Q. When had you last before that seen these arm chests, and
where?-A. I had seen them at Fort Niobrara, Nebr., before shipment,
and when they were unloaded from the wagons and placed in the store-
house at Fort Brown.
"Q. Where were these extra guns placed in these arm chests, whether
at Fort Niobrara or Fort Brown, or where?-A. They were placed in
the arm chests at Fort Niobrara.
"Q. Do you remember seeing the guns-rifles-put in the arm chests
and the arm chests closed up for shipment at Fort Niobrara?—A. I do
not believe I was present when the property was boxed up. It was
boxed up some time before our departure, and Captain Shattuck was in
command of the company at that time.
"Q. You have told us in what condition you found the chests as to
other property being piled on top; this property was removed, was it,
from the tops of the chests? A. Yes, sir.
"Q. And then were the chests opened, or not?-A. They were opened
under my supervision and the arms counted.
Q. State in what condition you found the inside of those chests, as
to the arms.-A. The arms were placed in the proper 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.
66
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 the mou another question whether or not, before these
Q. I will ask
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
up 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 in both boxes?-A. Yes, sir.
•
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.
1658) as follows:
Q. What book is that in front of you there?
it.-A. This is the company's property book, sir.
See if you recognize
Q. The company property book of Company B?-A. Yes, sir.
Q. Will you turn to that and see what gun Sergeant Blaney had
assigned to him, according to that book, when these new Springfield
rifles were issued?-A. [Examining book.] I think it was 45683.
"Q. 45683?-A. Yes, sir.
2:
"Q. Now, it has been testified to, I believe, that Sergeant Blaney
was absent on furlough. When did he go away on furlough? A. It
was about the same time I was made quartermaster-sergeant-about
the 9th or 10th of June.
Q. That is, you succeeded him when he went away on furlough?
A. Yes, sir.
"Q. Had he returned while you were yet at Brownsville? When did
he return?-A. He returned at El Reno.
"Q. He was not with you at Fort Brown at all?-A. No, sir.
"Q. What was done with his gun when he left to go on furlough the
9th of June, or whatever date it was?-A. He took it up and packed it
away.
38545-7648–
-3
34
He
"Q. He turned it in 2--A. No. sir; he turned in his own rifle.
will tell you himself that when he returned there was a slip of paper
put in the chamber to show whose riffe it was, to keep me from issuing
it to anyone else.
"Q. Who put that in there?-A. I put it in there myself.
6.
Q. What was on that slip of paper?-A. William Blaney."
"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.
66
•
You gave him back that same rifle?—A. Yes, sir.
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 '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 ‘0. 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.
20
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. 45683-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.
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
2.
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.
66
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 1,600 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
were found in the streets, not because they fell there when fired, but
because they had been placed there by persons unknown, who had
secured them from this box of shells standing on the back porch and
easily accessible to anyone disposed to remove them therefrom. In
other words, the microscopic inspection shows conclusively, not that the
soldiers were guilty of the firing, but that the soldiers were free from
such guilt.
Before I leave that subject let me again call attention
to the fact that the next morning about the break of day,
as he testified, Captain Macklin, who was the officer of
the day, made a very careful search, having heard that the
charge was that the soldiers had done the firing, both inside the
reservation and outside, to find any evidence of such firing.
Inside the reservation he could find no shell, no clip, no evi-
dence of any kind to show that any firing had occurred. Out-
side the reservation, in the mouth of Cowen alley, where the
sentinel and the scavenger testified that the first firing occurred,
he found on a circular area, not more than 10 inches in diame-
ter-think how small that is now-seven exploded shells 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-they 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
38545-7648
37
with respect thereto, and that all such have suffered disgrace,
loss, and hardship from which they should be relieved, and that
such relief can be granted only by an act of Congress.
Apparently no one appreciates this more keenly than the
President. It is interesting to note how this matter seems to
have weighed upon his mind and how by successive steps he
has reached this conclusion.
His order discharging the men without honor was dated No-
vember 5, 1906. Congress convened December 2, 1908. On that
day resolutions were introduced in the Senate authorizing an
investigation of the facts connected with the affray and the
discharge. They led to a debate and discussion, in consequence
of which on the 12th day of December, 1906, the Secretary of
War, by direction of the President, issued the following order:
Applications to reenlist from former members of Companies B, C,
and D, Twenty-fifth Infantry, who were discharged under the pro-
visions of Special Orders, No. 266, War Department, November 9, 1908,
must be made in writing and be accompanied by such evidence, also
in writing, as the applicant may desire to submit to show that he was
neither implicated in the raid on Brownsville, Tex., on the night of
August 13, 1906, nor withheld any evidence that might lead to the
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 that the effect of my order dismissing these 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 have
directed that such portion be revoked.
On the 11th day of March, 1908, the Committee on Military
Affairs having 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 be within 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. 6206), 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 of
S. 6206, I introduced, March 12, S. 5729. Both of these bills
were referred to the Committee on Military Affairs. Both have
been reported from that committee adversely. Both are on
the Calendar for consideration by the Senate, in accordance
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 RECORD 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.
is a very short bill.
It
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
reenlisted 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. 266, 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
belonging to Company B, C, or D of the Twenty-fifth United States
Infantry, discharged without honor under Special Orders, No. 266, War
Department, dated November 9, 1906, on account of the shooting affray
28545-7648
39
that occurred at Brownsville, Tex., on the night of August 13-14, 1906,
who shall 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 respect
to that occurrence which, if made public, would or might lead to the
identification of any participator in said shooting affray or any acces-
sory 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 there-
with, shall be, and hereby is, made eligible to reenlist 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 reenlistment he shall be allowed full
pay, according to the rank he held and the pay he was receiving at the
date of discharge until his reenlistment: Provided, That all the rights
and privileges to which the soldiers reenlisting under the provisions
of this act were entitled, respectively, at the time of their discharge
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 since their discharge
without honor until the date of such reenlistment shall be computed in
determining all rights to which they may be respectively entitled 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: Provided further, 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 privi-
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 construed to pro-
hibit the prosecution and punishment of any soldier reenlisting under
the provisions hereof as to whom it may at any time hereafter appear
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 of
enlistment which have not yet expired shall be held to be for only the
remaining portion of said unexpired terms, respectively.
It will be observed with respect to these measures that both of
them proceed upon the assumption that some of the men,
whether few or many, or all, who were discharged without
honor, were innocent, and that justice requires that all such
men should have an opportunity to reenlist and be restored to
all the rights they lost by being discharged without honor.
It will also be observed that both of these bills provide that
the men so reenlisting shall be paid in full for all the time since
they were discharged without honor until their reenlistment.
In other words, in a general way the proposition of both bills
is that the innocent men shall be allowed to reenlist without
loss of pay, and be restored to all the rights lost on account of
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
bill I have offered as a substitute it is provided that all shall
be allowed to reenlist-
who shall 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:
The 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
States.
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---7643
41
therefrom, but in the fact that so long as any part of said order
of dismissal stands against them they are at least pro tanto in
disgrace and deprived of rights to which they are entitled.
Another difference is in the fact that the bill of the Senator
from Missouri does not restore to the noncommissioned officers
who may reenlist the rank they held, which my bill does. Fail-
ure to do this would be a denial of justice.
Still other differences might be pointed out, but those men-
tioned are sufficient for present purposes.
The main difference is the first 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 he has
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 sufficient 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 each 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 have 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 be 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 he
did participate in said shooting affray or have knowledge thereof which
he 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 he
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 my 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
of the perpetrators which, through a conspiracy of silence, they
have refused to divulge.
In his message to the Senate of December 19, 1906, 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
of 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
known circumstances which would lead to the conviction of those en-
38545-7648
43
gaged in the murderous assault. They have stolidly and as one man
broken their oaths of enlistment and refused to help discover the
criminals.
In that same message occurs also the following:
Incidentally I may add that the soldiers of longest service and
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 his message of January 14, submitting the Purdy testi-
mony, occurs the following:
The evidence, as will be seen, shows beyond any possibility of honest
question that some individuals among the colored troops whom I have
dismissed committed the outrages mentioned, and that some 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 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.
While these assertions, repeated over and over again in the
most extravagant language, show after all, as General Garling-
ton reported, that there was 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 from
Missouri.
If these men are innocent, as they claim and as I believe,
what else could they have said or done? Will some man please
tell what word any one of them has uttered or what thing any
one of them has done inconsistent with the innocence they
assert. And yet, because they have said and done precisely
what as innocent men they should have said and done, for that
very reason they are arraigned as guilty of conspiracy and
denounced in terms harsh enough to manifest exasperation be-
cause they will not confirm the charges against them and
thereby establish an excuse for the crime that has been so
inconsiderately committed against them and their rights, if
they are in fact innocent, as they claim to be.
It would seem that we are to be carried back in the admin-
istration of justice to the days when men and women put on
trial for witchcraft found no avenue of escape from punish-
38545-7648
44
ment, brutality, 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 these 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
167 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
this 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 not 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
38545-7648
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 upon 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 right does the Senator from Missouri assume that
the President is capable of such a manifest impropriety?
The vilest horse thief, the most dangerous burglar, or the
bloodiest murderer would not be required either to prove his
innocence or to submit to a trial before a judge who had in
even the most casual way expressed the opinion that the 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 criminals?
They are at once both citizens and soldiers of the Republic.
Aside from these charges, which they deny, their behavior,
both in the Army and out of it, has justly excited the high-
est commendation. Their record is without spot or blemish.
They are typical representatives of a race that has ever been
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 thousands of brave
defenders, not one of whom has ever turned traitor or faltered
in his fidelity.
In every war in which we have permitted them to partici-
pate they have distinguished themselves for efficiency and valor.
They have shed their blood and laid down their lives in the
fierce shock of battle, side by side with their white comrades.
They are the direct and worthy successors of the brave men
who so heroically died at Petersburg, at Wagner, and on scores
of bloody fields that this nation might live.
Faithfully, uncomplainingly, with pride and devotion, they
have performed all their duties and kept all their obligations.
They ask no favors because they are negroes, but only for
justice because they are men. [Applause in the galleries.]
О
་
38545--7648
UNIVERSITY OF MICHIGAN
3 9015 01421 2081
THE UNIVERSITY OF MICHIGAN
""