CHAPTER X

COURTS

THE early settlers of Key West were not people to sit down and wait for things to come to them. In 1827 the Senate of the United States passed a bill for the establishment of a territorial court at Key West with admiralty jurisdiction. The passage of the bill was opposed by the people in the northern part of the State, and they had reasonable prospects of defeating it, when Mr. John W. Simonton went to Washington and presented a memorial to Congress urging its passage.*

In 1828 congress passed the bill establishing a territorial or federal court at Key West under the title of the "Superior Court of the Southern Judicial District of the Territory of Florida." Its jurisdiction extended over that part of "the territory which lies south of a line from Indian river on the east and Charlotte Harbor on the west, including the latter harbor."

It had civil and criminal jurisdiction, as well for offences against the laws of the Territory of Florida, as of the United States, and embraced admiralty and maritime jurisdiction, thus superseding the jurisdiction of local and inferior magistrates, as well as the special commissioners for the adjudication of questions of salvage, arising out of the frequent wrecks occurring in this vicinity. The establishment of this court, the first term of which commenced November 3, 1828, led to the migration hither of a number of lawyers, but the business of the court not proving very extensive, the stay of most of them was of limited duration. Considerable amusement was excited at the time by an announcement in the newly established newspaper called the "Register," of the arrival of a vessel from Middle Florida with "an assorted cargo, and seven lawyers." Just how many of these lawyers remained is lost to history, but that they were men of ability the records of our courts abundantly show. Few cities of a population of twenty-five thousand can boast of a bar superior to that of Key West in the days when the population was less than a thousand.

Mr. William Allison McRea, Mr. James Webb, Mr. William Marvin, Mr. L. Windsor Smith, Mr. Adam Gordon, Mr. Samuel J. Douglas, Mr, Edward Chandler, Mr. Stephen R. Mallory, Mr. William R. Hackley, Mr. Walter Cathcart Maloney, and others, were men of the highest character, distinguished alike for their ability as lawyers, and general intellectual attainments.

Dignified and courtly, scrupulous and conscientious, they placed the profession of law on the high plane tradition tells us it once occupied.

Judge James Webb of Georgia had the honor of being commissioned first judge of the superior court in 1828. He retired from office in April, 1838, and went to Texas, and became secretary of state of that republic prior to its admission into the Union. He was succeeded by William Marvin, Esq., in 1839, who occupied the bench of this court until Florida was admitted into the Union in 1845, when Isaac H. Bronson, Esq., was commissioned judge for the whole State. In 1847, when the district court of the United States for the Southern District of Florida was created, Judge Marvin was appointed judge of this court and presided over it until 1863, when he resigned.

"Judge Marvin was a man of towering intellectuality and grandeur of character. While on the bench he published a book entitled "A Treatise Upon the Law of Wreck and Salvage," which became a standard authority in the admiralty courts of England and the United States, and it occupies today a unique position among the treatises on the law of salvage. After his retirement from the bench he wrote a work on "General Average" which is an authority on this subject. Later he wrote "The Internal Evidences of the Authenticity of the Four Gospels." In this work he brought to bear his great judicial mind in the analysis of his subject.

At the close of the war he was appointed provisional governor of Florida by Andrew Johnson. In 1865 he was elected United States senator from Florida, for the term which would expire March 3, 1867. Thad Stephens and his crowd, however, had no use for men of Judge Marvin's calibre and character, and his election was nullified by reconstruction, and he never took his seat.

On the resignation of Judge Marvin in 1863 he was succeeded by Thomas J. Boynton, one of the youngest men ever appointed to the bench of the United States. He was a man of rare ability, culture and refinement. He came to Key WTest for his health, which had been greatly impaired by intense application to other sciences in addition to that of the law, but his health not improving, he resigned his position and returned north, where he soon died.

Judge John McKinney was appointed in 1871. To him Col. Maloney, in his history, pays this tribute:

"With melancholy feelings is the name of this gentleman introduced; modest, dignified, urbane, diligent and learned, he gave promise of much usefulness: alas! how short his judicial career. Leaving the island with the expressed intention of removing his family hither for permanent settlement, he failed to reach the city of New York alive; his death is reported to have occurred just previous to the arrival of the steamer in which he was a passenger."

The present incumbent of the United States district court 'for the Southern District of Florida, Judge James W. Locke, was appointed by President Grant February 1, 1872, and is the oldest Federal judge, in point of service, on the bench.

From the date of establishment of a Federal court at Key West until in the seventies, the amount of business on the admiralty side of the court was very large, but as steamships gradually took the place of sailing vessels, and light-houses were built on the most dangerous points of the Florida Reefs, the number of wrecks gradually diminished. The amount of salvage business before the court is still quite large as compared with that of other districts, but is light compared with early days.

The act of congress creating the court for the Southern District of Florida in 1847, prescribed that the judge of this court should reside at Key West, but in 1896, congress repealed that part of the act of 1847, and the judge has since lived in Jacksonville.

In 1894 the territorial limits of the Southern District of Florida were enlarged, and they now include all of the State that lies east of the Suwanee river, and the counties of Madison and Hamilton west of the Suwanee.

During the Civil War and again during the Spanish-American War, there was considerable business on the prize side of the court, and many important and novel questions were therein adjudicated.

The national bankruptcy act has also increased the work of this court, but the general civil and criminal business is inconsiderable. Only three persons have been convicted of capital felony during its existence, one of which occurred in this city, and two on the high seas. Two were capitally punished and the 'other was sentenced to imprisonment for life.

Norman Sherwood, the first man hanged in Key West, had a recontre with a man named Jones on the fifth of July, 1830. After they were separated he went away, but returned in an hour with a pistol, avowing his intention of killing Jones. Bystanders again interfered and induced him to leave, but he returned shortly still determined to kill Jones. Mr. John Wilson, who was Sherwood's friend and partner, then stepped up and asked him to give up his pistol; he refused and said he would shoot any man who attempted to take it. Wilson then laid his hand on Sherwood's shoulder and again asked him to give it up, when Sherwood shot him, and he died a few minutes later. Sherwood remarked that "he regretted Wilson's death, but it was his own fault as he had told him that he would shoot anyone who attempted to take the pistol from him; for he firmly intended to shoot Jones and would permit no man to prevent him; that Wilson had attempted to do this and he shot him, believing he had a perfect right to do so."

The prisoner was defended by Messrs. Thurston and Braden. He was found guilty of murder in the first degree, and hanged on the tenth of December, 1830.

The place where Sherwood was confined was insecure, and he had several opportunities to escape, and on being asked why he had not done so, replied: "They want to hang someone for a pattern, and I guess I'll gratify them."

How thoroughly the grand jurors of those days did their work of "inquiring into the body of the county" is shown by their presentment, December 5, 1834, in what they designated "A List of Grievances." Some of these grievances still exist, but others sound strange to modern ears.

They complained that "the jail was in bad condition; the mortar used for the wall being mostly sand and good for nothing, the walls filled with loose stones and no mortar mixed with them, and entirely unfit for the purpose for which it was designed."

"That the officials whose duty it was to keep persons charged with offences, suffered them to go at large when they ought to have been confined."

"That the territorial limits of this county were not properly defined and fixed."

"That foreigners and persons from beyond the boundaries of this territory were permitted to take fish in this district and county, and did not pay any tax or revenue to the territorial county."

"That wrecking vessels were not allowed salvage upon the duties on the goods saved from wrecks."

"The want of a marine hospital where sick and disabled seamen could be comfortably situated and properly cared for."

"That grog shops, coffee houses, billiard rooms and other places were kept open on the Sabbath. These places encourage the idle and profligate, and the same are highly destructive to the morals and good order of society."

"The introduction of free negroes and mulattoes in this county, which is contrary to the policy of protection which had long been established and adopted in the southern section of the United States."

"We also believe and feel confident that this particular district and county is more exposed to the detestable views of fanatics and abolitionists attempting to tamper with and corrupt our slave population than most places."

"The want of a road to some point on the mainland in this county whereby the citizens may be able to communicate with the seat of government in the territory."

"Against a law passed in 1833 whereby the guns and boats of persons who live and may be found on the keys are exempt from execution. The grand jurors believe that no distinction should be made between those living on the keys or the mainland."

"We present as a grievance that boats not engaged in trading or commerce, but which are farm or plantation boats, if over a certain size, should be required to get papers from the custom house and have a captain appointed under the restrictions which trade and commerce are subjected to."

"Against requiring persons who live on the mainland to attend court in Key West as jurors."

This statement of grievances was sent to our representative in Congress, with a request to lay it before the president of the United States, and use his exertions to having the grievances herein complained of redressed.

Shortly after the admission of Florida to the Union, the United States court was moved from the county court house to a stone building belonging to Wall & Pinckney, fronting on Wall street, back of the building now occupied by Monsalvatge & Reed on Front street. This building was destroyed by fire in 1859, and the court moved to the "Stone building" situated on the corner of Caroline and Whitehead streets, now used as a United States marine guardhouse. In 1885 it was moved to a building then belonging to Mr. John W. Sawyer, on the corner of Front and Fitzpatrick streets, which was destroyed in the fire of 1886. This was most unfortunate, as all the original papers and many records of important cases were lost. Court was next held in a building on the corner of Duval and Charles streets owned by Williams and Warren, where it remained until the Government building on Front street, at the foot of Greene, was completed in 1891.

STATE COURTS

Prior to 1845 when Florida was admitted into the Union, all law business was transacted in the territorial court, and it was not for some time thereafter that there was any business of importance in the State courts.

After Statehood, justice was administered by a Circuit and a Probate Court. Monroe county was in the Southern Circuit, and the first judge was William Marvin, who was appointed in December, 1845. He held the office only three months, and was succeeded by Judge George W. Macrae. In January, 1848, Judge Joseph B. Lancaster assumed the judicial toga. He was succeeded in 1853 by Judge Thomas F. King, who was followed in 1865 by Judge James Gettis.

In 1865 James Magbee became judge. During his incumbency there occurred one of the most remarkable proceedings ever witnessed in a court of justice. He was incarcerated in £he city prison in Tampa for being drunk, and while there issued a writ of habeas corpus, commanding the mayor, J. E. Lipscomb, to bring the body of James Magbee before His Honor, James Magbee, to show by what authority he was depriving him of his liberty, and caused it to be served on the mayor, who treated it with merited contempt. When the judge was released, he issued a rule for the mayor to show cause why he should not be punished for contempt of court in refusing to obey the writ, and made public his intention to send the mayor to jail. People from all parts of the county came to town to protect the mayor from the threatened outrage, and the court house was filled with Armed and determined men.

At the hearing the judge overruled the defendant's plea and sentenced him to jail. In an instant Mr. Lipscomb snatched a double barrelled shotgun from one of the bystanders and leveled it at the judge, but before he could shoot, he was surrounded by his friends and escorted out of court in defiance of the judge, and the mob of negroes assembled for his support. No attempt was afterwards made to enforce the order. Judge Magbee was a reconstruction judge, and this incident one of the minor outrages of that era.

Judge Winer Bethel, of Key West, succeeded Judge Magbee on April 6, 1875, and served until his death, March 30, 1877. Next came Henry L. Mitchel, who presided over the court until he went on the Supreme bench in 1889. Succeeding judges and their terms of service were G. A. Hanson, 1889 to 1891; Henry L. Mitchell, 1891 to 1892; G. B. Sparkman, 1892 to 1893; Barron Philips, 1893 to 1899; Joseph B. Wall, 1899 to 1911.

In 1911 the Eleventh circuit was created, consisting of Monroe, Dade and Palm Beach counties, and Livingston W. Bethel, the present incumbent, was appointed judge. He is a son of Judge Winer Bethel, who presided over the Circuit Court for Monroe county thirty-five years ago.

Judge Wall's death on December 19, 1911, removes the last survivor of those who have presided over the court in Monroe county, as judge of this circuit.

The 'first clerk of the Circuit Court was Colonel Walter Cathcart Maloney, and the first sheriff was Mr. John Costin.

PROBATE COURT

The first judge of the Probate Court was Mr. Adam Gordon, who served from August 15, 1845, to December of the same year, and was succeeded by Mr. Benjamin Sawyer, who held office until Judge Winer Bethel was appointed in January, 1858.

COUNTY COURT

In 1868 the County Court took the place of the Probate Court and Judge James W. Locke was appointed judge, who served until February, 1871, when Mr. Charles S. Baron was appointed, and was followed by Judge Angel De Lono in 1870. In 1888 James Dean, a negro lawyer from the mainland, was elected but was removed from office in 1889 by Governor Fleming for malfeasance in office. Judge De Lono was appointed to the vacancy, and was succeeded by Judge Andrew J. Kemp in 1893. In 1900 Beverly B. Whalton was elected judge and held the office until his death in January, 1910, and was succeeded by Mr. Hugh Gunn, the present incumbent.