Two Standards of Judgment

by John F. Murphy, PhD, late professor of Government, U.S. Coast Guard Academy 

[First published in the September-October 1965 issue of the U.S. Coast Guard Academy Alumni Association Bulletin (Vol. XXVII, No. 5), pp. 366-375.]
 

The New York Sun was unstinting in its praise of the man who had been nominated to receive the highly coveted gold medal of the Massachusetts Humane Society in 1894.

Captain Mike Healv is a good deal more distinguished person in the waters of the far Northwest than any president of the United States or any potentate of Europe has become.  He stands for law and order in many thousand square miles of land and water, and if you should ask in the Arctic Sea, “Who is the greatest man in America?” the instant answer would be, “Why, Mike Healy.”  When an innocent citizen of the Atlantic coast once asked on the Pacific who Mike Healy was, the answer came, “Why, he’s the United States. He holds in these parts a power of attorney for the whole country.” (1)

Yet, Captain Michael A. Healy stood trial in 1890 on charges of illegal punishment of civilian seamen, cruelty to merchant seamen, and drunkenness on duty.  The hearing of the Investigating Board were held in the office of the Collector of Customs at San Francisco, beginning on February 24th.  The accusations arose directly out of Captain Healy’s conduct during the 1889 cruise to the north of the United States Revenue Cutter BEAR.

On January 11, 1890, a mass-meeting of San Francisco citizens was held in the Metropolitan Temple to protest Mike Healy’s actions.  A reporter of the San Francisco Morning Call wrote that the seating capacity of the Temple was “thoroughly tested” by the meeting called to “condemn the tricing—up of three American seamen named Alfred Holben, Otto Daeweritz, and Roy Framsden at Oonalaska by Captain Healy of the United States Steamship BEAR.”

After distribution of copies of an affidavit by Holben, the bands entered, followed by the Coast Seamen’s Union, in uniform.  The Brewery Workers marched in a few minutes later, carrying “. . . a transparency displaying the picture of a trice-up sailor and the words, 'The Tortures of the Inquisition Revived by Captain Healy' . . ."

On the stage were the speakers, Hon. Charles Sumner, Rev. J. A. Cruzan, ex-Judge Robert Ferral, Herman Guttstadt, Rev. Richard Harcourt, D. D., W. J. B. Mackay, Thomas Finnerty, Andrew Fursyth, Alfred Fuhrman, H. Whitman, and members of the Coast Seamen’s Union in uniform, and the Brewery Workers in regalia.  Captain Healy’s victims occupied seats in the auditorium.  The throng that filled the hall was largely composed of workingmen. Very few representatives of the gentler sex were present.

“The proceedings were opened with a lively air by Professor A.  J. Smith’s band.”  W. J. B. Mackay, editor of the Coast Seamen’s Journal, read Holben’s affidavit and told the audience that American ships “. . . are known throughout the world as the most barbarous afloat. They are barbarous because such men as Healy are given authority.” The Rev. J. A. Cruzan, pastor of the Third Congregational Church then told the meeting that ". . . men were once tortured upon the land and the day has come when men must no longer be tortured on sea . . . The man who can rule on sea or land is the man who can rule himself.  He who cannot control himself cannot control others.”

The Hon. Charles A. Sumner declared that “. . . If there is any place where gentleness and dignity should be exemplified it is on the deck of a navy vessel.”  Harsh discipline was not necessary, said Sumner, pointing out that he had rounded the Horn in 1850, serving before the mast, and . . . during that voyage of six months I never saw a man struck or heard one sworn at.  I never heard an oath from an officer or anything that could be considered ungentlemanly.”

Herman Guttstadt, the next speaker, compared conditions in the American merchant marine with those of the British, “. . . much to the disadvantage of the former.”  “Congress,” said Guttstadt, “should be urged to repeal all laws which give to officers the power to treat sailors as Captain Healy had treated the sailors who complained against him.”  “The Rev. Dr. Harcourt was then introduced and said he believed in God and the flag of our country.  He believed in humanity and was opposed to man's inhumanity to man . . . he believed that wherever America’s flag flies there ought to be justice.”

Former Judge Robert Ferral insisted that Captain Healy had acted without warrant of law.  He saw Healy completely unable to defy public opinion and he called for the trial of Healy on charges of cruelty and inhumanity to seamen.  Ferral added that he was glad that the Seamen’s Union had intervened and he praised the good work being done by the union.

The final speaker was Alfred Fuhrman, Statistical Secretary of the Council of Federated Trades, who compared Healy’s cruelty to the burning of witches at Salem.  “Thank God we know that the strong arm of a strong government will make the repetition of such acts impossible . . . . If,  after full investigation, the general Government did not accord the vindication sought, the people could display their sovereignty at the ballot box."  He then offered a set of resolutions calling upon the Secretary of the Treasury to investigate the case.  The resolutions were unanimously adopted by the mass-meeting, which then heard statements of cruelty on board the BEAR related by two members of her crew, Henry H. Spicer and James Hughes. (2)

W. J. B. Mackay forwarded the resolutions to the Secretary of the Treasury on January 25th. (3)  A few days later, writing on stationery of the California Women's Christian Temperance Union, Mrs. M. B. Eden preferred serious charges against Captain Healy.  Identifying herself as the Superintendent of Work among Sailors, W.C.T.U., Mrs. Eden accused Captain Healy of being ". . . an inebriate, being often in a drunken states for days at a time, and while in that condition, has been guilty of great cruelty toward the men on board the whalers and some of the merchant vessels."  Mrs. Eden stated that the lives of the crew of BEAR were endangered when Captain Healy, ". . . too drunk to navigate . . ." had run the vessel aground.  In addition, Mrs. Eden stated that the lives of the men of the whaling bark LOGADO through rapid changes of course which repeatedly snapped the hawser by which the bark was being towed out of Unalaska Harbor.

In support of her charges of cruelty, Mrs. Eden declared that twenty-three crew members of the bark WANDERER had been triced-up, making it necessary for the BEAR's surgeon to attend one who fainted and another who had gone into convulsions.  In Mrs. Eden's view, the ". . .unavoidable hardships our brave Arctic sailors undergo have been greatly aggravated by Captain Healy's brutality."  She was convinced that Captain Healy's ". . . drink habit is responsible for the terrible sufferings that have been caused."  Mrs. Eden's final statement left no room for doubt as to the basic issue.  "Had Captain Healy been a sober man, I doubt if any of these cases of cruelty and neglect of duty would have happened, for he was undeniably drunk on each occasion." (4)

The resolutions of the mass-meeting detailed the instances of brutality:

Whereas: Captain Healey of the U. S. Revenue Cutter “BEAR,” while cruising in Alaskan waters, has, during the month of June 1889, caused to be seized and tortured, in a most shocking manner, three inoffensive American Seamen who were employed on board of the bark “ESTELLA”; ordering them triced—up with their hands shackled behind their backs, —and with  ropes fastened to the handcuffs—, suspended in such a position that their toes just touched the deck, and

Whereas: These unfortunate men, after being tortured as described, at one time for seven minutes and at another time fifteen minutes, were then subjected to other intensely painful punishmet, such as being chained to stanchions for 42 consecutive hours with handcuffs that were too small for their wrists, and

Whereas: The sworn affidavits of the said seamen as well as the statements of eyewitnesses set forth that no cause whatever had been given to Captain Healy to subject men to such horrible treatment and that the only explanation for his unwarranted and brutal conduct was his almost continual state of intoxication, and

Whereas: The three said seamen were put ashore, after their horrible tortures and left to shift for themselves, upon the desolate coast of a frigid community, thereby suffering again innumerable hardships ere [sic] reaching the port of San Francisco, now, be it resolved. . . (5)

The repetition of identical charges by the mass-meeting and the California W.C.T.U., taken with the timing of Mrs. Eden’s letter and that of W. J. B. Mackay, indicate the close liaison of the two forces.  Indeed, the elements of San Francisco society ranged against Mike Healy offered a strange alignment.  In company within the Women’s Christian Temperance Union and a fair number of the city’s ministers were the Coast Seamen’s Union, the Brewery Workers, plus certain former holders of public office.  It is apparent that a major effort was underway to mobilize San Francisco’s public opinion against Mike Healy.

The language of the mass-meeting rings with the ideas of the Populists, who honestly believed that reform of government and the observance of humanitarian conduct could bring the triumph of social justice in the United States.  The flavor of the era is evident in Fuhrman’s reference to the “sovereignty at the ballot box,” while the search for social justice reflects sharply in the call by the Rev. Dr. Harcourt. Clearly, the mass meeting was in accord with the spirit of humanitarianism sweeping the nation.

The Secretary of the Treasury took an extremely serious view of the charges against Captain Healy.  Mr. [William] Windom ordered a Board of Investigation to be convened at San Francisco to determine the truth of the matter.  The Board was made up of Mr. T. G. Phelps, Collector of the Port of San Francisco, Captain J. W. White, USRCS, and Dr. T. H. Bailhache, USMHS.  Witnesses were heard from March 3rd to March 22nd and reported in 228 pages of sworn testimony taken from 42 witnesses. (6)

The stenographic record shows an extremely effective development of evidence in the case.  Proceedings were marred, however, by the lack of a clear cut presentation of evidence by the complaining parties to the action.  The finding of the Board, signed by all members, cleared Healy of all charges.  Further, the Board made the official suggestion that “Captain Healy’s long and arduous service in the Arctic be recognized by the Department.” (7)

The findings of the Board did not end the conflict between Healy and the forces arrayed against him.  In a letter dated March 24, 1890, Mrs. M. B. Eden attacked both the investigation and the Board’s verdict.  Mrs. Eden stated that the members of the Board were so sympathetic to Captain Healy that they conducted the investigation in the absence of the chief complaining witnesses.  She added that the Board’s admission of hearsay evidence caused Mr. Hutton, attorney for the complaining seamen, to submit to admission of hearsay.  Finally, Mrs. Eden decried the use of vile and insulting language by the defense attorney, Mr. Stonehill, and the use of “obsene language” in Captain Healy’s testimony which, in Mrs. Eden’s words, “. . . was unrebuked.” (8)

Mrs. M. F. Gray, in a separate letter to Secretary Windom, stated that members of the W.C.T.U. were given to believe that they were not wanted at the investigation.  She further charged that the defense had asked the pastor of the Mariner's Church at San Francisco to get the W.C.T.U. to ". . . let up on Captain Healy."  Like Mrs. Eden, Mrs. Gray complained about the “obscene language uttered in our presence.”  In the defense attorney’s insistence that Mrs. Eden be put under oath to testify, Mrs. Gray saw a vicious attempt to discredit Mrs. Eden.  Mrs. Gray closed her letter with a list of personal references in Washington on whom the Secretary might call in regard to her reputation and standing. (9)

Mr. H. W. Hutton, attorney for the complaining seamen and listed by the Board as the Attorney for the Prosecution, also wrote to Secretary Windom.  His complaints followed the same category as those of Mrs. Eden and Mrs. Gray, but he devoted considerable attention to the admission of hearsay evidence and the use of affidavits testifying to the good character of Captain Healy.  Insisting that time defense had gained clear advantage through the procedures adopted by the Board, Hutton openly accused the Board of being partial to the defendant.  In effect, both of the ladies concerned and the attorney for the seamen saw the investigation as a gigantic whitewash of Mike Healy. (10)

Healy's defense differentiated between the charges of drunkenness and the accusations of cruelty.  The defense refuted the drunkenness charge through the testimony of twenty-one witnesses, most of whom were masters of vessels engaged in the Arctic trade.  In impeaching the testimony of the two prosectuion witnesses, the defense obtained an admission by one that he was under a cloud in the matter of a stolen pistol and holster. (11)  It disposed of the other by obtaining what amounted to almost a retraction of earlier charges. (12)  As the Board put it: "We find, therefore, the charge of drunkenness wholly unsustained." (13)

Defense against the charges of cruelty took the form of no defense.  The witnesses for Captain Healy, including Mike Healy himself, admitted the tricing-up of the seamen and shifted the question to another base.  In short, was the tricing-up of merchant seamen by an officer of the Revenue Cutter Service legally permitted or legally prohibited?  Further, did the legal justification or prohibition depend upon specific law or did it arise out of circumstance?

Aside from the prominence of the defendant and the clash of powerful segments of the San Francisco population, what makes the Board of Investigation important is the rise of the legal question: May a particular action, admittedly cruel and illegal under most conditions, take on the cover of legality due to unique circumstances?  Healy’s defense maintained that legality could be conferred on an illegal act by law of necessity.

Testimony taken at the trial developed that the three complaining seamen were not the only ones triced-up.  In addition, twenty-one members of the crew of the bark WANDERER had been trice-up by order of Captain Healy.  Healy replied that tricing-up was the only remedy open to him as a means of ending mutiny or threatened mutiny.  In the case of the ESTELLA, Captain Healy and his witnesses testified that Captain Avery, master of the ESTELLA, had requested protection.  During her voyage to Alaska, the ESTELLA, a coal bark, had run aground under circumstances which were subject to question, her crew had gone ashore without permission of the ship's officers, and the ESTELLA had to be towed into the Port of Unalaska.

According to testimony, some crewmen of the ESTELLA had attacked the mate of the vessel, blacking his eyes and marking up his face.  On time arrival of the BEAR at Unalaska, the mate reported to Captain Healy that the crew had threatened to kill the ship's officers.  Three ringleaders, Alfred Holben, Otto Daeweritz, and Roy Frandsen, were pointed out to Captain Healy.  Healy testified that he attempted to talk with Frandsen about the charges made against him by his officers.  Frandsen's reply was "Got to hell!", followed by an obscenity.  Nonetheless, Frandsen did comply with Healy's order to go forward and Healy did nothing. (14)

A few hours later, as the BEAR was preparing to drop off from the dock where she had been taking coal from the ESTELLA, some of the ESTELLA’s crew let go the wrong line and Captain Healy asked why this was done.  The answer given was, "Shut up, you have nothing to do with us."  Healy called his Master-at-arms to put the man in irons but the man ran away.  Another of the ESTELLA's crew mad an insulting remark and was taken on board the BEAR and placed in irons.  The BEAR then dropped off and went to the buoy in the harbor.  Healy then went ashore and was almost immediately called by the mate of the ESTELLA, who complained that Hulben and Daeweritz swore they would cut his guts out.  Daeweritz had refused to work and Holben had said that if his friend were taken to the BEAR, he wanted to go too.

Captain Healy called for Mr. Bummer, first lieutenant of the BEAR, and ordered him to take Daeweritz on board time BEAR and put him in irons.  As Daeweritz crossed the deck of the ESTELLA, Holben repeated his statement that he wanted to go to the BEAR if Daeweritz went.  Healy then told Holben that if he went on board the BEAR he would be triced up. (15)  At that point, Captain Healy ordered Mr. Buhner to trice-up all three from the ESTELLA.  Buhner testified that he was ordered to frighten the men rather than harm them and, accordingly, they were triced-up for about fifteen minutes and let down.  Afterwards, the men were shackled to a stanchion for about four and a half hours.  (16)

Although there was no charge of cruelty against Captain Healy in the case of the WANDERER, testimony showed that Lt. Buhner, acting on Healy's orders, had triced-up twenty-one men of the WANDERER after they had refused to work.  Before being triced-up, the men were individually told by Mr. Buhner that they would be triced-up until they decided to work.  When, as individuals, they agreed to resume work, they were let down.  In the WANDERER incident, two men required medical attention which was supplied by the surgeon of the BEAR.  (17)

The cruelty inherent in the practice of tricing-up was not denied by Captain Healy or the defense.  Lt. Buhner told the Board that the practice had been outlawed in the U.S. Navy in 1863.  However, both Healy and Buhner also testified that the method was well-suited to the Alaska frontier.  As Healy put it:

It is not a customary treatment except on frontier places.  We are empowered by Congress to suppress mutinies.  We have no right to exercise magisterial functions.  Our functions as such are exercised by policemen.  We must suppress mutinies.  A policeman does not sit in judgment on a man before he acts.  We are not allowed to hold trials . . . If a mutiny occurred at San Francisco, to quell a mutiny or disturbance we would go and arrest the man, and turn him over to the police.  But, up there, where there is no jail to bring men to, that is the last resort, to trice men up.  (18)

The verdict of the Board turned upon the question: Was the admitted cruelty of Captain Healy excused by the circumstances which surrounded it?  In the case of the ESTELLA, the Board stated that men “. . . were mutinous before reaching port, and were therefore rebellious and insubordinate; that there were no Courts or peace officers within reach of Oonalaska. . .“  The Board found further, that Captain Healy had used “. . . every reasonable effort to persuade the men to cease time insubordination before resorting to the extreme measure of punishing. . .”  The Board concluded “. . .that their punishment was, therefore, justifiable."  (19)

The verdict becomes increasingly understandable when we look into the composition of the Board.  President of the Board was Mr. T. G. Phelps, Collector of Customs at San Francisco, who was highly knowledgeable in Alaskan affairs and within whose jurisdiction the entire Alaska Customs District lay.  Surgeon T. H. Bailhache was a member of the United States Marine Hospital Service who was familiar with the medical history and problems of the maritime trade between Alaska and the West Coast.  The third member was a Captain J. W. White, USRCS, who had made the first scouting cruise along the coast of Alaska in 1867, following transfer of the territory to United States jurisdiction.  Though these members, all familiar with conditions on the Alaskan frontier, Healy's actions seemed admirably suited to the problem.  In their verdict, the Board members specifically refer to the need for tight discipline:

It is evident discipline must be enforced in these far off seas where dangers, on account of fogs and floating ice, thickens, for the protection of property and the mutual safety to the lives of officers and seamen.  (20)

Healy’s accusers were understandably upset by the verdict.  Their letters to Secretary Windom reflect their chagrin and dismay at what they considered a whitewash of cruelty.  One thing is certain, that the conflict was not satisfactorily settled by the trial.  Yet, perhaps, as we look at the incident, the conflict was insoluble.  

What made the conflict insoluble was the existence of two standards of judgment, one belonging to civilization and the other to the frontier.  As with any true frontier, Alaska in the 90s suffered a lack of regular law enforcement.  Only lightly settled, Alaska attracted men no better and no worse than those who moved to the frontier further south.  The problems of law and order, which make up so much of the history of America's western frontier, were no less real at Unalaska than at Dodge City.  Just as lawbreakers, and sometimes those only suspected of lawbreaking, died before the guns of western marshals, so the mutineers, or those suspected of it, were punished by Mike Healy.  Healy was a tough man admirably suited for a tough role on a tough frontier.  Certainly those who appealed for his aid made their request on the basis of Healy's reputation.  As the only law enforcement officer in the area, he upheld the law with the means at his disposal.

Mike Healy was a victim of technology and chronology.  The actions which he took at Unalaska were probably well-tailored to conditions.  The methods he used were frontier methods.  Yet, due to the advance of technology, he could complete his cruise to the north and return to San Francisco within a few months.  To try Mike Healy by San Francisco standards of conduct is analogous to an investigation of Wyatt Earp by a New York grand jury.  Unlike Earp, Healy was amendable to a civilized jurisdiction.

The conflict between Healy and the citizens of San Francisco was symptomatic of an essential conflict within the Americas of the 1890s.  As the frontier closed, the measures of a man's value on the frontier, work combativeness and raw strength, came seriously into question.  As civilization supplanted the pioneer society, men came to look for social justice, individual dignity for the least of men, and the establishment of the humanitarian ideal in place of the law of the jungle.  Whether he realized it or not, Mike Healy was caught in the conflict.  He reacted in the manner of the experienced and professionally knowledgeable Coast Guard officer of his day.

NOTES:

1)  NEW YORK SUN, 28 January 1894.

2)  THE MORNING CALL, San Francisco, 12 January 1890.

3)  Letter to Secy. Windom, 25 January 1890, M-174-V. 59 R. M., in U.S. Archives.

4)  Letter to Secy. Windom, 29 January 1890.

5)  THE MORNING CALL, 12 January 1890.

6)  Stenographic record appears in M-174-V.  59 R. M., U.S. Archives.

7)  IBID., Report in re Case Capt. M. A. Healy.

8)  Letter to Secy. Windom, 24 March 1890.

9)  Letter to Secy. Windom, 24 March 1890.

10) Letter to Secy. Windom, 24 March 1890.

11) Testimony, 222.

12) Testimony, 226.

13) Report in re Case of Capt. M. A. Healy, 4.

14) Testimony, 210.

15) Testimony, 210.

16) Testimony, 113-114.

17) Testimony, 115.

18)  Testimony, 210-211.

19)  Report in re Cast Capt. M. A. Healy, 2.

20)  Report in re Case Capt. M. A. Healy, 3.