Henry Flipper Court-Martial: 1881

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Henry Flipper Court-Martial: 1881

Defendant: Henry Flipper
Crimes: Embezzlement and conduct unbecoming an officer
Chief Defense Lawyer: Merritt Barber
Chief Prosecutor: John W. Clous, Judge Advocate
Presiding Officer: G. Pennypacker
Court: J. F. Wade, G. W. Schofield, W. E. Waters, William Fletcher, W. N. Tisdall, R.G. Heiner, E.S. Ewing, W.V. Richards
Place: Fort Davis, Texas
Date of Trial: September 15; November 1-December 13, 1881
Verdict: Not guilty of embezzlement; guilty of conduct unbecoming an officer
Sentence: Dishonorable discharge from the army, with loss of all benefits

SIGNIFICANCE: This court-martial deserves to be known if only because it drove out of the army the first African American to graduate from West Point and thus the first to be a regular army officer. Beyond that, many historians believe the case grew out of racial prejudice and that the sentence was disproportionately harsh.

In the years following the Civil War, despite the Thirteenth and Fourteenth Amendments to the Constitution, the United States remained a largely segregated society. West Point at least deserves some credit for accepting its first African-American cadet, James Webster Smith, in 1870, even though his time there was filled with continual "pain and strain" and he never graduated. (He failed a course in his fourth year and was dismissed.) Two more African Americans were admitted, but both failed courses and dropped out. Finally in 1873, the fourth African American and the first to graduate was admitted, Henry Ossian Flipper, born a slave in Georgia in 1856.

A Different Kind of Trial

The hazing rituals and other traditions of West Point were challenging enough for even the most socially connected white cadets. Henry Flipper had to endure four years of almost total social isolation and verbal insults, but he stayed the course and graduated with his class in 1877. As the first and only black regular army officer, he was posted to the Tenth Cavalry, a cavalry unit, all of whose personnel except officers were blacks (known by the Indians as "Buffalo Soldiers"). While fighting the Apaches, Flipper and his unit were assigned to Fort Davis, a frontier post in west Texas. Throughout this time, all his superiors and fellow officers were white, and most of them made no secret of their dislike for having a black officer among them.

In December 1880, Flipper was put in charge of the commissary, responsible for buying and selling food for the fort's personnel and their families. responsi-In 1881, Flipper's sloppy bookkeeping, careless security, and a naive willingness to extend credit to various soldiers and civilians led to the discovery that he was short some $2,400 in funds. Although friends made up the shortfall, it was too late, and on August 12, 1881, Flipper was arrested.

The Court-Martial

The court-martial convened at Fort Davis on September 15, 1881, but was suspended until November 1 to allow Flipper time to obtain counsel. Flipper was formally charged with embezzling a total of $3,791.77—most of which he had repaid by that time—and also with conduct unbecoming an officer. As always since he had become part of the army, Flipper found himself confronting an all-white world, but his attorney, Capt. Merritt Barber, mounted a solid defense. On the charge of embezzlement, he argued that under the governing military law, it had to be proven that the individual charged engaged in "intentional, wrongful, and willful conversion of public money to his own use and benefit." This, Barber noted, the prosecution had utterly failed to demonstrate and that at most Flipper was guilty of poor bookkeeping and records maintenance. To support the claim that Flipper had from the beginning planned to repay the missing sum, he argued that Flipper was expecting a check for $2,500 from a New York publisher, the royalties for his book about his time at West Point. One can only imagine the effect this must have had on a panel of white officers: a 25-year-old African American earning royalties from a book describing his mistreatment at the hands of his fellow cadets and officers!

The second charge, conduct unbecoming an officer, involved such actions as writing a false check (in an attempt to cover some of the missing funds), lying to his superior officer, and signing false reports. In fact, Flipper had done all of these, but his defense attorney argued that there were extenuating circumstances: the so-called false check? Flipper had never tried to use it in any transaction—he had only displayed it to his superior. If Flipper lied to this same superior, it was only because this man had not given him the expected guidance and support; therefore, argued Barber—turning conventional reasoning inside our—Flipper had employed minor untruths in a misguided attempt to maintain his image of a West Point officer. As for the false reports, the lawyer argued that behind this charge was the premise that he had embezzled the money for his own purposes—and there was no evidence of that.

On the broader issue of what constituted "conduct unbecoming an officer," the defense attorney referred to two fairly recent court-martials where officers had been charged with this offense. In both cases, the officers were let off on the ground that their actions had not been "prejudicial to good order and military discipline." Captain Barber argued that the same could be said of Flipper's actions. In his summation, Barber went even further, employing the flowery rhetoric typical of the day:

May we not therefore ask this court to take into consideration, the unequal battle my client has to wage, poor, naked, and practically alone, with scarce an eye of sympathy or a word to cheer, against all the resources of zealous numbers, official testimony, official position, experience and skill, charged with all the ammunition which the government could furnish from Washington to Texas, and may we not trust that this court will throw around him the mantle of its charity, if any errors are found, giving him the benefit of every doubt… and giving him your confidence that the charity you extend to him so generously will be as generously redeemed by his future record in the service.

What was most revealing here, as well as through the entire trial, is that there is no explicit reference to Flipper's being an African American. In any case, realizing they had no evidence to convict Flipper of embezzlement, the court returned a verdict of not guilty on that charge, but they did find him guilty of conduct unbecoming an officer. The sentence was that he be dismissed from the service.

At that time, an officer could not be dismissed as a result of a court-martial until after the sentence had been reviewed by the president of the United States. Flipper's case passed up to the president through the normal channels of review, and the judge advocate general of the U.S. Army, David G. Swain, did in fact recommend that the guilty verdict be "mitigated to a lesser degree of punishment." President Chester Alan Arthur, however, simply approved the original judgment and sentence, and Flipper was dishonorably discharged from the army in 1882.

Flipper's Later Fate

Flipper took up a career as the first professional African-American civil and mining engineer, eventually attaining several federal appointments and becoming a recognized authority on Mexican and South American law. From the outset and throughout his life, Flipper tried every possible means to get the judgment overturned, but he died in 1940 without succeeding. In 1976, however, thanks greatly to the efforts of the eighth African American to graduate from West Point, Minton Francis (Class of 1944), and Ray McColl, a white Georgia schoolteacher, an army administrative board upgraded Flipper's discharge to "Honorable" and dated it June 30, 1882. But according to the Justice Department, Flipper remained on record as a convicted felon. The only way to change that was to get a court to retry the case and overturn the finding of guilt—or to get a presidential pardon. In 1994, a West Point graduate (Class of 1966) and lawyer, Thomas Carhart, while working at Princeton on his Ph.D. dissertation about the first African Americans at West Point, decided to take up Flipper's case. After Carhart enlisted the support of others in the legal community, the case was subjected to a close analysis. Among other points, Carhart showed that white officers convicted of more serious crimes had not been dishonorably discharged. Finally, on February 19, 1999, President Bill Clinton signed the first posthumous presidential pardon in American history. Henry Flipper's name was finally cleared.

—John S. Bowman