A Few Good Men

Legal History

A Few Good Men

By Steven M. Edwards

    You cannot make this stuff up.

    John Chestnut Whittaker was one of the first black cadets appointed to West Point.  He was born a slave on the Chestnut plantation in South Carolina.  He was owned by James Chestnut, who ordered the first shot to be fired on Fort Sumter, beginning the Civil War.  He began his education at the University of South Carolina and was appointed to West Point in 1876 as part the reconstruction effort to provide opportunities to African Americans after the war.  By all accounts, he was a very religious person, and he carried his mother’s bible with him wherever he went.

    Whittaker’s life at West Point was miserable.  The white cadets decided that it would violate their “Honor Code” to talk to Whittaker, so he sat alone in the dining room, carried his own utensils back and forth, and for the most part had no friends.  The lone exception was his roommate the first year, Henry Flipper, who was also black and was the first African American to graduate from West Point.  But Flipper was gone after Whittaker’s first year (more about Flipper later).  

    In Whittaker’s fourth year, he was found tied to his bed, bleeding from knife wounds and bruised from what appeared to be a severe beating.  Pages had been torn from his Bible, and a note was pinned to his shirt that said, “Mr. Whittaker, you will be fixed.”  The incident attracted national attention, with members of Congress and the northern newspapers demanding that the Superintendent of West Point do something.  The Superintendent was General John M. Schofield, who had fought with Sherman during the Civil War, served as Secretary of War under President Andrew Johnson, and later recommended the establishment of a naval base at Pearl Harbor in Hawaii (the Schofield barracks in Oahu are named after him).  

    After a lengthy investigation, Schofield concluded that Whittaker had faked the attack because he was failing a philosophy course and was concerned about being expelled from the school.  There was a court martial, and Judge Advocate Major Asa Bird Gardiner was brought in to be the prosecutor. Gardiner was an avowed racist who later became active in New York City politics.  A leader of Tammany Hall, he became the Manhattan District Attorney but was removed from office by Governor Theodore Roosevelt on charges of corruption.

    Whittaker was convicted, but he appealed the decision, and it ultimately was overturned by President Chester A. Arthur.  Nevertheless, Whittaker was “separated” from West Point on the order of Secretary of War Robert Todd Lincoln, President Abraham Lincoln’s son, because he had failed the philosophy exam.  Lacking a commission that would enable him to serve in the army, Whittaker went back to South Carolina, went to law school, and passed the bar.   He ultimately became an educator and served as a high school principal in Oklahoma City, where Ralph Ellison was one of his students, and was a professor of psychology at the college level.  In 1995, President William Clinton awarded Whittaker a posthumous commission.

Matter of Honor

    Michael Chepiga, a former Simpson Thacher partner and Federal Bar Council veteran, has written a play about this.  Entitled “Matter of Honor,” the play had a successful run at the Pasadena Playhouse in 2008.  Chepiga examines the subject on multiple levels through a fictional character named Chase, a private investigator who has been hired by Schofield to investigate the Whittaker episode.  Early in the play, Schofield tells Chase that he is in a difficult position because there are people who are of the opinion that he has not done enough for Whittaker and there are those who think he has done too much.  Chase responds:

    Opinions are useless.  People will argue forever and never change their minds.  You have to ignore all that and focus on just one thing – the facts.  Once you have them, what you have to do becomes simple and clear.

    As the play progresses, we see Chase embracing the world of science, which can determine things with certainty, while Whittaker clings to faith and his Bible.  Ultimately, Chase concludes that Whittaker did it to himself, because that is the only theory that fits the facts.  Shortly before the trial, however, it is revealed that Chase is a deeply flawed person with a drinking problem who is haunted by his parents’ decision to pay a poor Irish immigrant $700 to serve as Chase’s substitute in the draft.  When he testifies at trial, Chase states that his earlier conclusion was wrong – it was only a theory that fit the facts – and he had missed one basic fact:  “It’s just not in his nature.”  Whittaker had endured the worst possible treatment at West Point, but he had persevered.  In fact, he already had been told that he would be given another chance to take the philosophy exam when the incident occurred.

    The moral of the story is that Whittaker should have been given the benefit of the doubt because the government had the burden of proof.  He was convicted on the basis of opinions masquerading as facts.  In the end, he persevered; he lived to be 73 and was known for his quiet dignity and his refusal to criticize West Point.

Henry Ossian Flipper

    The story of Whittaker’s first year roommate, Henry Ossian Flipper, is even more extraordinary.  Like Whittaker, Flipper was born a slave.  Like Whittaker, he was ostracized by the other cadets at West Point. But unlike Whittaker, he graduated and received his commission.  Flipper was assigned to the 10th Cavalry Regiment, a group of all black soldiers.  He was the first African American to lead that group, which was known as the “Buffalo Soldiers.”  According to popular lore, they were given that name by their Native American adversaries, who thought their hair resembled that of bison.  And yes, it’s the same group that Bob Marley was talking about when he wrote “fighting on arrival, fighting for survival.”

    Flipper was an extraordinarily capable and personable individual.   His commander, Captain Nicholas M. Nolan, took Flipper under his wing and made him his right hand man.  Nolan infuriated his colleagues by inviting Flipper to dinner, where his daughter was present, and Flipper eventually became friendly with Nolan’s sister-in-law, and they often rode horses together.  This just wasn’t done in 1879 in the United States, let alone at an army base in Texas.  Nolan’s response to his critics was that Flipper was an “officer and a gentleman.”

    In 1879, a federal marshal arrested a number of local ranchers for illegal possession of tobacco and took them to trial before a county judge.  The county judge acquitted the ranchers, so the marshal arrested the county judge and other officials and brought them to Fort Elliott, where Nolan and Flipper were stationed.  Nolan directed Flipper to sneak the prisoners out in the middle of the night, but they were caught, and the federal marshal brought charges against Flipper for obstruction of justice.  Flipper was convicted by a federal judge, who fined him $1,000, but the fine was quickly suspended shortly after the marshal left town.

    Flipper then was transferred to another fort, where he was appointed quartermaster.  Flipper continued his relationship with Mollie Dwyer, which did not sit well with some of his colleagues.  He was accused of embezzlement, among other things, and subjected to a court martial.  Flipper was acquitted of embezzlement but convicted of “conduct unbecoming an officer and a gentleman.”  The basis for the conviction was unclear, but correspondence between Flipper and Dwyer was among the evidence used against him.  As a result of the conviction, Flipper was discharged from the army.

    Flipper went on to become a very successful civil engineer, working in Texas, Mexico, Arizona, and Venezuela.   He made a lot of money and eventually ended up in Washington as a special assistant to the Secretary of the Interior.  He died at the age of 84 in 1940.  It is said that Henry Flipper was a favorite of General Colin Powell, who for a number of years had a painting of Flipper leading the Buffalo Soldiers on the wall behind his desk.  In 1998, a group of lawyers from Arnold & Porter, working pro bono, filed a petition with the White House seeking a pardon.  On February 19, 1999, President Clinton granted Henry Flipper a full pardon.  There is now a Henry O. Flipper award at West Point for graduating cadets who exhibit “leadership, self-discipline and perseverance in the face of unusual difficulties.”

    Unfortunately, nice guys do not always finish first, but if they persevere, they may ultimately get the recognition they deserve.  They also can lead good lives, which may be enough of a reward in itself.  John Chestnut Whittaker and Henry Ossian Flipper were a couple of good men who persevered.

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