The Schooner Enterprise: a Forgotten Key West Murder Case

In November 1859, all eyes in Key West were focused on the Stone Building, the new home of the U.S. District Court for the Southern District of Florida.

This was the first term that the court was sitting in the Stone Building:

Shortly after the admission of Florida to the Union, the United States court was moved from the county court house to a . . . building belonging to Wall & Pinckney, fronting on Wall 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. . . .

[The Stone Building] is one of the oldest buildings in Key West, and for many years had the unique distinction of being the only one not built entirely of wood. It was known as “The Stone Building” [because it was] built [out] of cement from a cargo of that material wrecked at Key West. It is a quaint three-story structure with a high pitched roof, having a narrow balcony supported by consoles of solid cement, extending the entire side on Whitehead street. On the gable end was once a similar balcony, but it has been taken down, and only the consoles remain. Above the side balcony is a large plaster mask of the builder, Mr. John G. Ziriax, who kept the foremost bakery of his day. Before it acquired the cognomen of the “Stone Building” it was known as the “Ziriax Building.”

Due to the quick thinking of Joseph B. Browne, the court's records were saved from the 1859 fire. See Terrible Conflagration, Charleston Daily Courier (SC), May 30, 1859, at 2 (“The Records of the U.S. District Court were all saved by the [court's] Clerk, J.B. Browne.”). In his book, Jefferson Browne provides a lengthy profile of his father Joseph Browne (1814–88) and explains that Joseph became the Southern District's clerk in 1850. See Browne, supra, at xii, 211, 225–26. See also Joseph Beverly Browne, Find-A-Grave, at https://www.findagrave.com/memorial/32092494/joseph-beverly-browne.

By the time of the case, Marvin was a revered figure. Named to Key West's federal bench in 1839, when Florida was still a territory, he had been reappointed in 1847 when the Southern District was created.

See Kermit L. Hall & Eric W. Rise, From Local Courts to National Tribunals: The Federal District Courts of Florida, 1821–1990, at 10–12, 22–36 (1991).

The government was represented by U.S. District Attorney John L. Tatum, who was being assisted by Walter C. Maloney, Sr. Little is known about Tatum, who had been appointed to his post just one year earlier at the age of 21.

Tatum (1837–75) was a native of Monticello, Florida, and the brother-in-law of James T. Magbee, a powerful Tampa politician. See Kyle S. VanLandingham, James T. Magbee: “Union Man, Undoubted Secessionist and High Priest in the Radical Synagogue,” 20 Sunland Trib. (Journal of the Tampa Historical Society) 10, 14 (1994). Tatum undoubtedly secured his office with Magbee's help.

An ardent secessionist, Tatum resigned as District Attorney in 1861, see Browne, supra note 1, at 211, and soon left Key West. The 1870 federal census, taken a few years before his death, shows Tatum back in Monticello working as a merchant. See Office of the Secretary of the Interior, The Ninth Census of the United States: 1870 (1872) (Page 16, Line 26 of Schedule 1.—Inhabitants in [the] Town of Monticello, in the County of Jefferson, State of Florida, enumerated Aug. 16, 1870). See also John Lawrence Tatum, Find-A-Grave, at https://www.findagrave.com/memorial/68332290/john-lawrence-tatum.

On the other side of the courtroom, Carcer and Eloy were being jointly defended by Winer Bethel and Samuel J. Douglas. Bethel was the county's probate judge.

Bethel (1816–77) had been named Monroe County's probate judge in 1858. In 1862, he was arrested as a Confederate sympathizer and imprisoned at Fort Monroe in Hampden, Virginia, for nearly a year. Subsequently, he returned to Key West and in 1872–73 served as the city's mayor. He then became Monroe County's circuit court judge, a position he held until his death in 1877. See Browne, supra note 1, at 56, 69, 94. See also Winer Bethel, Find-A-Grave, at https://www.findagrave.com/memorial/18287692/winer-bethel. According to Browne: “Circuit Judge Winer Bethel was a large, portly, handsome man, with full curly beard, and dignified demeanor, whose appearance was always calculated to impress. He came to Key West from Nassau, [Bahamas], in 1847. . . .” Browne, supra note 1, at 182.

Also in the courtroom were the 12 jurors who would determine whether the defendants were innocent or guilty. As Marvin later remarked, several were “seafaring men.”

See infra text accompanying note 65.

Although headline-making in its day, the Enterprise case now has been all but forgotten.

Curiously, neither Browne's book, supra note 1, nor Maloney's book, supra note 8, mention the case. While Browne wrote his recollections 53 years after the trial, Maloney was a mere 17 years removed from the case. Several more modern references do exist but all either contain errors or are woefully incomplete. See, e.g., Bessie Wilson DuBois, Jupiter Inlet, 28 Tequesta 19, 27 (1968) (incorrectly claiming that each of the mutineers “had $1,925 in gold on his person” and that the Enterprise never was found); Tom Hambright, Today in Keys History, Key West Citizen (FL), Dec. 3, 2020, at 2A (brief entry explaining that Marvin sentenced Carcer and Eloy on December 3, 1859); Wesley Stout, The Beachcomber, Fort Lauderdale News (FL), Apr. 19, 1964, at 12 (short description of Morantes's death with no mention of the trial).

First, the proceedings produced no published opinions.

Second, the official case file was lost in the Great Key West Fire of 1886. Possibly the work of Spanish arsonists,

Because the fire broke out in the San Carlos Hall, the home of Key West's Cuban independence movement, some people believe the fire was intentional:

Cubans in Key West continued supporting the revolt [against Spain] until their attention was distracted by their own disaster that struck in the early morning hours of March 30, 1886. As the population slept, a fire broke out in the San Carlos Hall which quickly spread out of control enveloping large portions of the city. Before it could be extinguished some 600 buildings worth an estimated $2,000,000 were destroyed, a disaster unprecedented in the city's history. . . .

Details regarding how the fire started are not clear, but some suspected it was not accidental. Perhaps a Spanish agent's attempt to destroy San Carlos, symbolic of the revolutionary munity, developed into something more than was intended. When informed of the catastrophe, [the rebel leader Maximo] Gómez indicated he was not surprised, suggesting that he believed the Spanish may have been behind it. Whatever the cause, it resulted in paralyzing and hopelessly demoralizing the revolution's most active center of support, depriving the insurgents of critically needed financial resources and moral backing.

One item that did survive the fire is the court's journal, which is titled General Minutes.

This item was found for me by Sara E. Brewer in the National Archives in Atlanta. See E-mails from Sara E. Brewer, Archives Specialist, National Archives (Atlanta), to the author, dated Dec. 8, 2021, at 2:02 p.m., and Jan. 11, 2022, at 9:55 a.m. (copies on file with the author). For a complete listing of the Southern District's extant historical files (all of which are stored in the National Archives in Atlanta), see Record Group 21, National Archives, at https://www.archives.gov/research/guide-fed-records/groups/021.html (under “21.11.5—Records of the Southern District of the U.S. Territorial Court,” “21.11.6—Records of the U.S. District Court for the Southern District,” and “21.11.7—Records of the U.S. Circuit Court for the Southern District”).

Third, only certain issues of the Key of the Gulf, Key West's weekly newspaper, still exist.

See Key of the Gulf (Key West, Fla.) 1855–186?, Library of Congress, at https://www.loc.gov/item/sn84027561/ (indicating that only a few scattered issues have survived the ravages of time and noting that these issues can be found only at the New-York Historical Society and the University of Florida). Crystal M. Toscano, the reference librarian of the New-York Historical Society, was kind enough to photocopy and send these issues to my law school's librarian. See E-mail from Crystal M. Toscano, Reference Librarian, New-York Historical Society, to Dr. Cheryl L. Booth, Associate Director, NSU Panza Maurer Law Library, dated July 20, 2021, at 12:19 p.m. (copy on file with the author).

The events leading up to the trial began on June 5, 1859 (some sources say June 3d or 4th) when Morantes departed from Havana, Cuba, in command of the Enterprise. His crew consisted of seven men: mate George S. Heirup; a cook (whose name is unknown); and five seamen: Carcer, a Spaniard using the alias “Jaime Collado” who also went by the nickname “Frank”; Eloy, a 22-year-old Frenchman; Ortega, a deserter from the Spanish army; Charles (“Charlie” or “Charley”) Davis; and “Joe” (whose last name is unknown).

This motley band was exactly what the task at hand required. Based on information that would come out later, Morantes had given the crew the following cover story: they were sailing empty because they were going to “New Granada” to pick up a herd of cattle. Consisting primarily of present-day Colombia and Panama, New Granada provided a vague but plausible answer to anyone who might inquire about the Enterprise's intended destination.

For a history of New Granada, see, e.g., 2 Thomas Cleland Dawson, The South American Republics: Peru, Chile, Bolivia, Ecuador, Venezuela, Colombia, Panama (1904) (explaining, id. at 460, that New Granada's existence as a distinct political entity ended in 1859).

Having a good cover story was especially important for anyone sailing on the Enterprise. One year earlier, the vessel had been detained in Havana by Acting U.S. Consul Thomas Savage on suspicion that it was involved in the African slave trade. Following a tense two months, the Enterprise finally was permitted to leave Havana after being sold to a new owner. For the details of the standoff, which also involved a ship called the ARDENNES, see The Slave Trade Brisk in Cuba—Numerous Cargoes Landed, Chi. Daily Press, Oct. 8, 1858, at 2; The Case of the Ardennes, Charleston Daily Courier (SC), Oct. 27, 1858, at 1; News from the West Indies, N.Y. Daily Herald, Nov. 21, 1858, at 1; Later [News] from Havana, Daily Picayune (New Orleans), Nov. 28, 1858, at 1.

The vessel's real mission, however, had nothing to do with livestock. As the crew eventually admitted, Morantes had been hired to pick up “a cargo of Indians” in Carthagena (now Cartagena), Colombia, and take them to Havana, where they were to be sold as slaves.

Slavery was abolished in Colombia in 1851 but remained legal in Cuba until 1886. See Alexander Dawson, Latin America Since Independence: A History with Primary Sources 81 (2d ed. 2015).

The voyage apparently got off to a bad start, for within just two days the crew had hatched a plan to kill Morantes. Newspapers later reported that the crew had mutinied because it was unhappy with the ship's food.

As has been documented elsewhere, bad food regularly led to mutinies on sailing ships. See, e.g., Michael Hechter et al., Grievances and the Genesis of Rebellion: Mutiny in the Royal Navy, 1740 to 1820, 81 Am. Soc. Rev. 165, 173 (2016) (reporting that 13% of the mutinies in the British navy were attributable to bad food). See also Martin v. The William, 16 F. Cas. 914, 917 (D. Mass. 1819) (No. 9,171) (“‘Though mariners and soldiers,’ says [Charles] Molloy [in his 1676 treatise De Jure Maritimo et Navali], ‘have just cause of complaint, as that their victuals or provisions are not good, yet they must not mutiny and rebel, whereby to distract and confound the whole crew, but must make a civil and humble address to their commander, that the same may be amended[.]’”).

By now, the Enterprise was off the coast of present-day Pompano Beach (just north of present-day Fort Lauderdale) in South Florida.

Given Morantes's announced plan to sail from Havana to Cartagena (a south-southeast route), the Enterprise never should have been off the coast of any part of Florida (a north-northeast route). This suggests, as one newspaper later pointed out, that Morantes's actual destination was Africa. Either way, the voyage clearly was intended to bring slaves to Cuba, where the demand for them had outpaced the supply for years. See Hubert H.S. Aimes, A History of Slavery in Cuba, 1511 to 1868, at 248 (1907) (“[T]he price of slaves [in Cuba] rose threefold in 1855 and remained up until after 1860, when further supplies of [Chinese laborers] were brought in.”).

The scuttling occurred at 2:00 a.m. on June 8, 1859. At daybreak, a fierce struggle ensued that left both Morantes and Joe dead. After a quick burial, the six survivors broke into Morantes's belongings and found 122 “Mexican ounces” worth $1,952

A “Mexican ounce,” also known as a “doubloon,” was a large-denomination Mexican gold coin. For a photograph, see https://perma.cc/ZQ8V-54ZJ. In 1859, such coins were worth $16 each in U.S. currency. See Foreign and Domestic Gold Coins, Daily Bee (Sacramento, CA), May 11, 1859, at 2. See also W.W. Mills, Forty Years at El Paso, 1858–1898, at 28 (1901) (giving this same exchange rate).

It would take several weeks for these events to become known publicly. The earliest existing account is an unsigned syndicated newspaper report with the dateline “Key West, June 18, 1859”:

On the morning of the 17th inst., a boat was seen (by schooner Delaware at anchor at Jupiter Inlet) putting in from the Gulf—came alongside the Delaware and had a crew of six men, who reported themselves a part of the crew of schooner Enterprise, ashore on the beach between Cape Florida [present-day Key Biscayne] and Jupiter Inlet; they stated that the captain of the schooner, named S. [sic] Morantes[,] had fallen overboard one hour previous to the schooner getting ashore, and that in attempting to save him, the vessel drifted in on the breakers and was lost. They acknowledged [having] robbed the trunks after the vessel was lost, but deny that the Captain met his death at their hands. Suspicions are so strong against them that Commissioner Brown [sic] has committed them for trial.

The Enterprise was fitted out at Havana for the purpose of transporting a cargo of Indians from Carthagena to Cuba, where they are made slaves of. The trade is exactly similar to the African slave-trade, except that the vessels and men engaged in it run no risk—never being overhauled by cruisers or searched by Custom House officials. The traffic has been going on for some years, and was patronized for a long time by the famous Francisco Marti, the nobleman fisherman of Havana. He used his fishing smacks for the purpose, and stole his Indians from the Yucatan and Campeachy coast.

The Enterprise went ashore on the 8th, and drove up high on the beach. She is dry at low water; being an old vessel, we doubt whether the wreckers will attempt to save her.

Interesting from Key West: Arrival of Supposed Murderers!—A New Sort of Slave Trade, Weekly West (St. Joseph, MO), July 24, 1859, at 3. Three points in this story require elaboration. First, the schooner Delaware was the Jupiter Inlet lighthouse's recently acquired

138-ton schooner-steamer that (exact dimensions aren’t known} probably measured around 140 feet in length. . . . In May 1861 the Lighthouse Service tender Delaware was moved to the Second District [i.e., Boston] and renamed the Wave for the old tender it replaced. The ship was decommissioned in 1879 after its wood hull was judged unfit for sea.

Second, the reference to “Commissioner Brown” is a misspelled reference to the previously mentioned Joseph B. Browne. See supra note 1. In addition to his clerk of court duties, Browne also served as Key West's U.S. commissioner. As has been explained elsewhere, during this period a U.S. commissioner performed a variety of functions:

For much of the history of the federal courts, commissioners assisted federal judges and provided the federal government with local officers to support the enforcement of specific laws. In 1793 Congress authorized judges of the U.S. circuit courts to appoint “discreet persons learned in the law” to take bail in federal criminal proceedings. The statute allowed officers of the federal courts to assume responsibilities that the Judiciary Act of 1789 had vested in local magistrates and justices of the peace. In 1812 Congress authorized these court-appointed federal officers, who were no longer required to have legal training, to take affidavits in cases brought in the circuit courts. An act of 1817 referred to the officers as “commissioners” and authorized them to set bail, to take affidavits in civil cases brought in the district courts, and to take the depositions of witnesses who were unable to appear in federal court. In an 1842 act, Congress granted commissioners the same authority over federal criminal processes as it formerly had granted to state court magistrates and justices of the peace, including the power to arrest and imprison the accused.

Third, as matters turned out, wreckers were able to salvage the contents of the Enterprise. Eventually, these “materials [were] sold by the U.S. Marshal for $133.13.” Later [News] from Key West, Daily Delta (New Orleans), July 30, 1859, at 1.

More details soon were added by a stringer for the New York Herald:

The Key West correspondent of the New York Herald, under date of June 29, gives the following account of a shipwreck and the death of a Captain, which looks [to] some like piracy and murder:

The United States revenue cutter William [sic] Appleton, Lieut. Com. Randolph, arrived [in Key West] on the 26th inst., from a cruise to the southeast coast of Florida. She brings the mate and two [sic] seamen of the schooner Enterprise, of New Orleans, lost on the 8th, on Hillsboro’ Inlet. The men are charged with the murder of Capt. Moriantes [sic], and the robbery of his trunks, and of running the vessel ashore after throwing the captain overboard.

They say that the vessel was bound from Havana to Carthagena, and that she was to bring a cargo of Indians, who were to be sold as slaves on their arrival at Havana; that when off Hillsboro’ Capt. M. accidentally fell overboard, and that while they were endeavoring to raise him the schooner struck [the reef]; that they, on finding the vessel would be a wreck, were obligated to abandon the captain to his fate; and that after getting the movables from the vessel ashore, they broke open the captain's trunk, took the specie and divided it equally among them.

At Jupiter Inlet they saw the United States schooner Delaware, and were taken on board. To Capt. Owen [actually Owens] they said nothing about the robbery of the money, but told the story of the Captain's death, and the vessel's loss. One of Capt. Owen's crew discovered a belt heavily loaded with money upon the person of one of them, and reported the fact. They were not arrested until Lieut. Randolph came up with his cutter, when Capt. Owen gave them into his charge, excepting two, who, fearing they were suspected of crime, had at night taken their boat and made their escape.

There are several very suspicious circumstances about the affair, which lead the authorities here to believe that murder as well as robbery has been committed. Commissioner Browne has had an examination and committed them for trial. Lieut. Randolph searched the men after the arrest, and found over $1000 in gold secured upon them. The two who escaped have gone up the West coast, and will no doubt be overhauled, as the cutter is on their track.

Supposed Piracy and Murder, Bangor Daily Whig & Courier (ME), July 16, 1859, at 2 (paragraphing slightly altered for improved readability). Four points in this story require additional comment. First, as has been explained elsewhere, the revenue cutter John (not William) Appleton was a “small schooner sent to Key West, FL in February 1858 under Lieutenant William Randolph[.] Appleton was turned over to the Navy [on April 11, 1861] and used as a tender to USS R.R. Cuyler. She ran aground and burned in Tampa Bay in August 1861.” Appleton (John Appleton), 1858, United States Coast Guard Historian’s Office, Apr. 15, 2020, https://www.history.uscg.mil/Browse-by-Topic/Assets/Water/All/Article/2151574/appleton-john-appleton-1858/.

Second, William B. Randolph (1825–83) was, as the story reports, a lieutenant in the U.S. Revenue Marine Service (“RMS”). Originally from Virginia, he was married and lived in Key West. See Office of the Secretary of the Interior, The Eighth Census of the United States: 1860 (1864) (Page 35, Lines 16–17 of Schedule 1.—Free Inhabitants in the City of Key West, in the County of Monroe, State of Florida, enumerated Aug. 4, 1860). After the Civil War, he moved to Cooperstown, New York, where he spent the remainder of his life. See William B. Randolph, Find-A-Grave, at https://www.findagrave.com/memorial/118289731/william-b.-randolph. At the time of his death, he still was working for the RMS. See 1 U.S. Department of the Interior, Official Register of the United States: Containing a List of the Officers and Employés in the Civil, Military, and Naval Service on the First of July, 1883, at 217 (1883).

Third, as would be reported later, the meeting between the Delaware and the John Appleton occurred off Cape Florida (as previously explained, present-day Key Biscayne, just south of present-day Miami). This suggests that after rescuing the Enterprise's crew, the Delaware was in the process of taking the men to Key West (presumably for repatriation to Havana) when Captain Owens began to doubt their story and flagged down the John Appleton.

Fourth, as has been pointed out elsewhere, nothing is known about Captain Owens (not even his first name). See Snyder, supra note 31, at 92 (“Except for a few names that surfaced in reports—Beard, Woolfkill, Smith, Myers, Owens, the Patterson brothers—none [of the U.S. Lighthouse Service's employees] . . . would leave a trace of himself in the National Archives.”).

On July 2, 1859, the Key of the Gulf provided its own account of the crew's arrest:

On the 26th of June, the U.S. revenue cutter John Appleton, Lieut. Com. Wm. B. Randolph, returned to [Key West] from a cruise along the reef, bringing four of the crew of the schooner Enterprise, fallen in with at Cape Florida, and who were suspicioned with having murdered their captain.

The four men being arrested and brought before U.S. Commissioner J.B. Browne, for examination, it was ascertained that the schooner Enterprise, Capt. B.A. Morantes, sailed from Havana about the 4th or 5th of June, bound to Carthagena, New Granada, for cattle. On the third or fourth day after leaving Havana, a dispute arose between some of the crew and Capt. Morantes with regard to the [ship's] provisions. On that occasion one of the crew was heard to say: “Never mind, it will all be right soon.”

A day or two after this, the vessel was run ashore near Hillsborough, as it is believed intentionally, and the master most horribly murdered. It was stated that the vessel first struck the reef about 2 o’clock in the morning, (about the 8th of June,) and by daylight had drifted broadside on to the beach, so near, that it was not difficult to get ashore without a boat. About 7 o’clock two of the men—the cook and a Spaniard called Jose Maria—asked permission of Capt. Morantes to go along the beach to see if a settlement could be found, to which he consented, and they left.

Soon afterward, three others of the crew—called Charlie, Frank [i.e., Carcer] and Joe—went to the captain and asked permission to take the foresail out of the schooner and go on shore and put up a tent, to which he also assented. After the tent had been erected, the same three men returned to the schooner and asked permission to carry the provisions ashore. Capt. Morantes objected, saying that a vessel might come along at any moment and they could all go on board. This they seemed not to like, and after going forward, cursing among themselves, again returned to the Captain, when Charlie struck him with his fist. The Captain clinched him, and while in that position, Frank stepped up behind the Captain and stabbed him in the temple. He and Charlie then threw him overboard.

The Captain, being only wounded, endeavored, by keeping close under the vessel, to get out of the sight of his pursuers; but whenever his head would appear, they would throw iron pots or anything they could find at him. He then went out into deep water, but did not remain there long, before he approached the beach, with his hands crossed on his breast, begging them to spare him.

Frank went out in the water to meet him, giving him to understand at the same time that he would not further molest him, but as soon as he got to him he again stabbed him in the head; the Captain again went back into deep water. Charlie, Frank, and Joe then went on board of the vessel and lowered the stern-boat, and proceeded for the Captain, but the sea being rough, they capsized. Charlie and Frank jumped out, but Joe was caught under the boat and drowned.

Captain Morantes, with his hands crossed as before, came towards Charlie and Frank, begging them to spare him; but as soon as he got up to them, Frank stabbed him with a knife, and Charlie beat him over the head with an iron pump brake until he was dead. They then dragged him ashore and buried him, leveled the sand over the grave, and covered it with grass. They then got Joe's body, which was still under the boat, and buried it also.

After this they broke open the Captain's trunk and took out his money, in all about $1,800, and divided it among the crew, Charlie and Frank retaining the largest portion for themselves. After this, they all took to the boat, and proceeded up the coast until they fell in with the U.S. Light-house schooner Delaware.

They went on board [the Delaware], and after being there a few days Capt. Owen [sic] had good reason to believe that all was not right, and he arrested and sent them to Key West by the U.S. revenue cutter John Appleton. Previous to the arrest, Charlie and the cook made their escape in the [Delaware's] boat. Capt. Owen (Deputy Marshal for the occasion) is in pursuit of them with the Delaware, and it is to be hoped they will be caught and brough to punishment for this cold-blooded, horrible murder. They will all be committed for trial at the next term of the Court.

Capt. Morantes, the murdered Captain, was well known in this city and was a French Creole, a native of Louisiana, and was evidently bound for the coast of Africa.

Murder, Robbery, and Shipwreck—From the Key of the Gulf, July 2, N.Y. Times, July 14, 1859, at 8 (paragraphing slightly altered for improved readability). This article is reproduced in full, without comment, in Steven D. Singer, Shipwrecks of Florida: A Comprehensive Listing 143, 282–83 (2d ed. 2011).

In its July 9, 1859, issue, the Key of the Gulf printed the following correction to its previous reporting:

In an article last week giving an account of the loss of the schooner Enterprise and the murder of Capt. Morantes, we stated that the schr [sic] Delaware had gone in pursuit of the [two] fugitives [i.e., Davis and the cook], but this was a mistake. It was the U.S. schooner Florida, which went as far as Tampa but heard nothing more of them.

This morning, by order of the Court, [U.S.] Deputy Marshal [Frederick] Filer left for the scene of the wreck in the Revenue cutter John Appleton, for the purpose of disinterring and examining the body of Captain Morantes.

Correction, Key of the Gulf (FL), July 9, 1859, at 2. Filer (1812–80) was born in Alsace, France. See Frederick Filer, Find-A-Grave, at https://www.findagrave.com/memorial/50026550/frederick-filer. The 1860 federal census lists him as widowed with four children and indicates that he is a “shoemaker,” which suggests that he worked only part-time as a deputy marshal. See Office of the Secretary of the Interior, The Eighth Census of the United States: 1860 (1864) (Page 40, Lines 6–10 of Schedule 1.—Free Inhabitants in the City of Key West, in the County of Monroe, State of Florida, enumerated Aug. 7, 1860).

Elsewhere in the same issue, the Key of the Gulf's readers discovered a much more shocking piece of news—Heirup (the mate) was dead:

[Died], [i]n this city, on the 9th inst., of Pulmonary Consumption [i.e., tuberculosis], Mr. George S. Heirup, late mate of the schooner Enterprise. Mr. H. was on board of this vessel at the time of her wreck on the Eastern coast of Florida, near Hillsborough Inlet, and of the murder of her master [Morantes], by a part of her crew; but not a witness to this brutal and unprovoked affair.

He arrived here in very feeble health on the 26th of June, in company with others of the crew of the Enterprise, and was held in custody . . . until the charge against them could be investigated by the U.S. Commissioner [Browne]. We are pleased to state that in the examination before the Commissioner, the testimony produced entirely exonerates Mr. Heirup from any participation or knowledge of this outrageous act; and so well satisfied was the Commissioner of his innocence, that he was only held here as a witness, to give testimony in behalf of the United States, at the November Term of the Court.

Mr. Heirup we believe was a native of Belfast, Maine, where we learn he leaves a wife and family. It will be a satisfaction to them to know that although among strangers, he was kindly cared for by the officers who had [him] in [their] charge, and that his remains were followed to their last resting place by many of our good citizens.

Died, Key of the Gulf (FL), July 9, 1859, at 2 (paragraphing slightly altered for improved readability). See also Office of the Secretary of the Interior, The Eighth Census of the United States: 1860 (1864) (Page 1, Line 31 of Schedule 3.—Persons who Died during the Year ending 1st June, 1860, in [the Town of] Searsport in the County of Waldo [in the] State of Maine, enumerated by [the] Ass’t Marshal) (indicating that Heirup, a 34-year-old married sailor originally from Denmark, died after being sick for three weeks).

On July 11, 1859, Mariano Alvarez, Spain's consul at Key West, briefed his superiors on the case:

The American coast guard cruiser Appleton arrived in Key West with four prisoners from the American schooner Enterprise. The schooner's captain, V.A. Morantes, left Havana on June 4 bound for Cartagena, Nueva Granada. The crew of the Enterprise ran the schooner aground near Hillsborough on June 8. Two or three of the crew members killed Captain Morantes and stole $1,800 from his trunk. The instigators of the crime used some of the money to bribe the other crew members, who [then were] swor[n] to secrecy.

Two Spanish crew members were arrested for the murder of Captain Morantes. One of the prisoners is J.M. Ortega, a native of Spain who was brought to Key West. He claims he is innocent of any wrongdoing and says he never was aboard [i.e., atop] the Enterprise. Ortega is twenty years old and lives in Havana. When questioned, he said he did not know who had killed the captain because he was below deck during the murder.

The other prisoner says his name is Jaime Collade [sic] [i.e., Carcer], but I do not think this is his real name. He stated that he was from Alicante [in eastern Spain], but his accent sounds like he is from Andalucia [in southern Spain]. He may be one of the ringleaders of the mutiny.

The authorities are searching for the body of the captain buried somewhere along a beach in Hillsborough. Captain Morantes was popular among the residents of Key West. He was a native of France [sic] and a Creole from Louisiana. He leaves a wife and children [sic] in New Orleans.

Consuelo E. Stebbins, City of Intrigue, Nest of Revolution: A Documentary History of Key West in the Nineteenth Century 144 (2007) (paragraphing slightly altered for improved readability).

In its July 14, 1859, issue, the New Orleans Daily Picayune published its own version of the gruesome events:

The supposed murder of Capt. Moriante [sic], of the schooner Enterprise, and a native of New Orleans, has been proved too true by the confessions of the mate and one of the crew. All the murderers but two are in custody. By the confession of Gileos [sic] Faustina [sic] Elole [sic], a Frenchman and one of the seamen, the captain was murdered after the vessel had been run on shore. After the murder, one of the crew was drowned by the upsetting of a boat.

The men have been examined by the U.S. Commissioner, J.B. Browne, Esq. In the absence of the District Attorney[, J.L. Tatum, Esq.,] the United States was represented by W.C. Maloney, Esq. The examination was a lengthy one and we are unable to give it verbatim. It seems, however, that some dispute had occurred on the voyage about provisions, and ill feeling prevailed. The vessel was run ashore by one of the disaffected ones.

Sometime after striking [the reef], three of the men demanded permission to go ashore and take a sail to build a tent, but asking also for provisions, they were denied and a scuffle ensued in which the captain was stabbed and then thrown overboard. He was not killed outright, but recovered and got under the stern of the vessel, but was soon drawn thence and out into deep water. The murderers followed him in the boat, and after repeated stabs and strokes upon the head with an iron pump brake he was dispatched. His body afterwards coming on shore, was buried. The men then broke open his trunk, divided about $1800 among themselves and thence in the boat left the wreck.

They fell in off Cape Jupiter with the U.S. schooner Delaware, from which two of the party afterwards escaped. The rest were arrested by Lieut. Randolph, of the Revenue cutter Appleton, and brought to [Key West]. They will be tried in November.

Later [News] from Key West—Murder of Capt. Moriante [sic], of the Schooner Enterprise—[Special Correspondence of the Picayune], Key West, July 9, 1859, Daily Picayune (New Orleans), July 14, 1859, at 5 (paragraphing slightly altered for improved readability).

In its July 23, 1859, issue, the Key of the Gulf reported that Morantes's body, as well as Joe's, had been located:

The Key West Key of the Gulf of the 23d ult. announces that the health of that place is good and the weather delightful. The same paper gives the following account of the examination and burial of Capt. Morantes, of the schooner Enterprise, who was barbarously murdered recently by his crew:

The United States revenue cutter, John Appleton, Lieutenant Commanding [sic] Wm. B. Randolph, arrived on the night of the 21st inst., from the wreck of the schooner Enterprise, ashore “high and dry” on the beach, forty miles north of Cape Florida lighthouse.

In our issue of the 2d inst., we gave an account of the running ashore of this vessel and the murder of her captain (B.A. Morantes) by a part of the crew, which one of them [Eloy], a Frenchman by birth, described before the United States Commissioner; and on the 9th we stated that Lieut. Randolph and Deputy Marshal Filer, with the Frenchman, had started for the scene of the murder for the purpose of examining the body of Capt. Morantes, etc., and we now announce their return after having accomplished the object of the mission.

Lieut. Randolph informs us that the witness fully sustained the evidence he gave before the Commissioner, by going directly to the graves. The seaman's (Joe) was in the usual form, with head and footboards; the Captain's was levelled and smoothed over and covered with grass-sod. On opening it the body was found in a perfectly nude state, the face about twenty inches below the surface and the knees six or eight; the body had evidently been forced into a hole much too short for it, as it was contracted and distorted. The body was recognized as that of B.A. Morantes, by both Mr. Filer and Lieut. Randolph, to whom he was well known.

They found behind the lower part of the right ear a gash which had been made apparently with a knife, extending to the collar bone, and about three inches deep; right eye cut; skull not broken, but the head had the appearance from the blood shot condition of the veins to have received some hard blows; one upper tooth on the right side of the mouth gone. The lower part of the body, which was placed uppermost in the grave, was so much decomposed that no traces of violence could be distinguished on the same.

Lieut. Randolph and Deputy Marshal Filer re-interred the body, giving it the rites of Masonic burial.

Examination of the Body of Capt. Morantes, New Orleans Daily Crescent (LA), Aug. 5, 1859, at 2. By 1859, numerous Masonic lodges were operating in Florida and Louisiana and it is possible that Filer, Morantes, and Randolph were all members. See History of the Ancient and Honorable Fraternity of Free and Accepted Mason, and Concordant Orders 305–06 (discussing Florida's chapters) and 334–40 (discussing Louisiana's chapters) (Henry Leonard Stillson ed., 1891). As has been explained elsewhere, there is no comprehensive listing of past Masons, so it is impossible to test this hypothesis. See Where Can I Find Masonic Records?, Genealogy Today, at http://www.genealogytoday.com/genealogy/answers/Where_can_I_find_Masonic_records.html (“Unfortunately, there is no central repository for Masonic membership information, and no ‘one’ place to check online.”).

On August 6, 1859, Alvarez (the Spanish consul) again briefed his superiors on the case:

A French sailor [Eloy], who was a crew member on the Enterprise, testified that he knew where Captain Morantes's body was buried. The sailor was taken on a coast guard cutter to the scene of the crime in Hillsborough. The authorities also located the body of a sailor named Joe who had drowned when he was washed aboard by heavy seas during the mutiny.

When the coast guard officials arrived at the beach, the French sailor pointed out the site where Captain Morantes had been buried, and they dug up his body. The captain of the coast guard cutter inspected the corpse and noted in his report that Captain Morantes had been stabbed several times with a knife and his throat had been cut. Captain Morantes had a number of bruises on his head and body from a severe beating. Owing to the state of his body's decomposition, the officials present decided to rebury him at that same site according to Masonic rites.

One of the prisoners [Heirup], a warrant officer from the Enterprise, died in jail, and two other criminals [Davis and the cook] have not been captured yet. The two Spanish sailors [Carcer and Ortega] who were implicated in the crime are in jail here, and one will probably be hanged.

Stebbins, supra note 36, at 144–45. Unfortunately, there are no further letters from Alvarez, who left Key West just before the trial started:

Our Key West correspondent, writing on the 6th November, says:—Mariano Alvarez, Consul of Spain at this port, has been appointed Consul General and Charge d’Affairs de la Republica Espanola de Santo Domingo. The Captain General of Cuba has sent a Spanish government steamer to take Mr. Alvarez to his destination. She arrived this morning from Havana.

On the same day that Alvarez sent his report to his superiors, Joseph T. Crawford, Great Britain's Acting Consul-General in Havana, forwarded the following note to Lord John Russell, Great Britain's newly installed Secretary of State for Foreign Affairs:

The schooner “Enterprize,” [sic] which sailed from this port on the 3rd of June last, was run ashore on the coast of Florida by the crew, who murdered the Master and plundered the vessel, but some of them, who had proceeded in a boat to a lighthouse vessel, representing themselves as shipwrecked seamen, were arrested and sent for trial to Key West by the United States’ revenue-cutter “John Appleton.”

70 Accounts and Papers of the House of Commons 162 (1860) (under “No. 205”).

On September 30, 1859, Marvin issued an order commanding two dozen local citizens to come to the U.S. courthouse on Monday, November 7, 1859, for possible appointment as grand jurors.

See General Minutes, supra note 20, at 32 (citing Benjamin Albury; John Baker; Richard Barthum; John Curry, Jr.; John W. Curry; William Curry, Jr.; Daniel Davis; Henry Demeritt; William Demeritt; Joseph Ingraham; Thomas Johnson; John Knowles; William W. Knowles; John Lowe, Jr.; William B. Lowe; William C. Lowe; Whitmore Pinder; James Riggs; Joseph Roberts; Richard R. Roberts; William A. Russell; Philip Sawyer; John Skilton; and John White).

At 10:00 a.m. on November 7th, with Marvin on the bench, Moreno called the list, and 19 of the 24 answered “present.”

Id. at 33 (listing those present as Benjamin Albury; John Baker; Richard Barthum; John Curry, Jr.; John W. Curry; William Curry, Jr.; Daniel Davis; William Demeritt; Joseph Ingraham; John Knowles; William W. Knowles; John Lowe, Jr.; William C. Lowe; James Riggs; Joseph Roberts; Richard R. Roberts; William A. Russell; Philip Sawyer; and John White).

On the following day (November 8th), Marvin excused four of the grand jurors from further service.

See General Minutes, supra note 20, at 34 (excusing William Curry, Jr.; John Knowles; William W. Knowles; and James Riggs). The minutes do not indicate why the quartet was excused.

On Saturday, November 12th, Carcer and Eloy were back in court. While Eloy pleaded “not guilty” to the charges against him, Carcer's indictment was quashed because of the confusion surrounding his identity.

Id. at 35.

On November 17th, the grand jury returned indictments for murder against Carcer and Eloy.

Id. at 35–36.

By now, it was obvious that the trial would be proceeding without Morantes's actual killer (i.e., Charlie Davis). As a result, the case's style was changed from United States v. Carcer, Eloy, and Davis to United States v. Carcer and Eloy.

Compare id. at 35 with id. at 37.

On Monday, November 21st, Carcer and Eloy's trial began with jury selection.

Id. at 36.

The trial lasted two days (November 22nd–23rd), at the end of which the jury, after three hours of deliberation, found both Carcer and Eloy guilty.

Id. at 39. See also infra text accompanying note 65 (indicating that the jury deliberated for three hours). Sometime after the trial (the minutes do not give a specific date), Marvin ordered the government to pay the grand jurors a total of $164, and the petit jurors a total of $196, for their respective services. See General Minutes, supra note 20, at 44. Marvin also ordered the government to pay the witnesses a total of $251.80 for their attendance. Id.

In its December 10, 1859, issue, the Key of the Gulf published a detailed summary of the trial. Although most of the testimony confirmed what already had been reported by the press, the trial helped to straighten out the case's timeline:

During the last session of the Grand Jury of this place, a bill of indictment was found by them against Alejandro Carcer and Guillot Faustin Eloy, part of the crew of the American schooner Enterprise, charging them with the murder of B.A. Morantes, captain of said schooner.

Their trial commenced on Monday the 21st of November last, before the U.S. District Court, Judge Wm. Marvin presiding.

For the prosecution appeared the District Attorney, Mr. John L. Tatum, assisted by Mr. Walter C. Maloney. For the defense, Messrs. S.J. Douglas and Winer Bethel.

The first and principal witness brought forward by the prosecution, was Jose Maria Ortega, who testified as follows:

Is 21 years of age. Was born in old Spain, belonged to the Spanish army in Cuba, from which he deserted, secreting himself on board the schooner Enterprise, then lying in the harbor of Havana. She sailed from thence on the 5th of June last, at which time there were on board eight persons in all, viz: Capt. Morantes, the mate [i.e., Heirup], and crew, consisting of Charlie, Joe, Alejandro [i.e., Carcer], Guillot [i.e., Eloy], the cook and himself the witness.

At about 2 o’clock in the morning of the third day out, the vessel ran ashore on the coast of Florida. At daylight, witness and cook went ashore to look for houses. Returned soon after, unsuccessful. After breakfast while they were all seated on deck, Charlie rose and asked of the mate permission to kill the captain. The mate shrugged his shoulders and went below. Charlie then went behind the captain, who was seated on the binnacle [a waist-high stand housing the ship's compass], and with his open hand slapped him on the cheek. Alejandro then attacked him with a knife, cutting him severely over the temple. Joe and Guillot then took the captain up, and threw him overboard. They then all went ashore.

Joe and Guillot soon return[ed] on board [and] threw some iron pots at the captain in the water; one of which struck him on the head. The captain, however, continued swimming, dodging from one side of the vessel to to the other to avoid the blows. Soon after Charlie and Alejandro returned on board. Alejandro said, “If you wish to kill the captain, why kill him at once!” The captain begged for his life, telling Joe to remember that he (Joe) had a wife and children as well as himself.

They then lowered a boat; Joe, Charlie and Guillot got in, and pushed off in pursuit of the captain, who now began to swim out towards the deep sea. The boat had scarcely left the ship, when she was capsized [by] a heavy sea; Charlie and Guillot saved themselves, but Joe being caught underneath the boat, was drowned. Then Guillot taking a rope made a noose in it, and threw it at the captain, that he might catch him, but did not succeed. Soon after, Charlie, taking in his hand a stick of wood, called a pump-brake, waded into the water, and on reaching the captain, struck him several heavy blows on the head; then taking him by the arm, he pulled him ashore, dead. He was immediately buried by the cook and himself (the witness), the grave having been already dug.

Charlie, Guillot and Alejandro then drew Joe out from under the boat, took him ashore and rolled him in a barrel, trying to bring him to, but to no purpose—he was dead. All remained that day ashore, having brought provisions from the vessel. The next morning, the mate, (who during the scene of the murder, had been shut up in the cabin,) came ashore, and recommended them to bury Joe. They did so, the mate accompanying, and ordering them to take off their caps, while he read prayers. The next day Alejandro broke open the captain's trunk, and of the money he there found, gave each man fourteen gold doubloons.

About eight days after, they all put to sea in the boat, cruised about three or four days and were picked up by the U.S. schooner Delaware.

The second witness called, was Charles R. Cook, who testified that he was then mate and navigator of the U.S. schooner Delaware. While lying off Jupiter, picked up six men in a boat, who reported themselves as the mate, cook, and four seamen, belonging to the schooner Enterprise. They said that the captain of said schooner had been knocked overboard by the main-boom, and drowned; the schooner afterwards ran ashore. They then delivered the papers of the Enterprise to the captain of the Delaware. At evening we got underweigh [sic—now spelled “underway”] and started for Cape Florida. Next day [we] arrived at the wreck, which they pointed out. She lay broadside to the beach, with sand so banked up on the inside, that I could walk ashore. [We] [t]ook on board [the] captain's trunk, chronometer and other things belonging to the vessel. A day or two after two of the men, viz., Charlie and the cook, stole a boat from the schooner and escaped. This aroused suspicion. We searched the rest, and found fourteen doubloons on each. Then got irons from on board the Revenue cutter [John Appleton] lying at Cape Florida, and ironed them. Two days after delivered them into the charge of Lieut. Randolph commanding said Revenue cutter, by whom they were brought to Key West.

Next witness was Lieut. W.B. Randolph, who after testifying as to the receipt and delivery of said prisoners to the proper authorities at Key West, proceeded to say during July last, he left Key West to visit the wreck of the Enterprise, accompanied by Mr. Frederick Filer, and Guillot, one of the prisoners. On arriving there Guillot pointed out the grave of the captain. On disinterring his body, found it so much discomposed, that it could not be taken out. The hole was too short for the body, the knees being doubled up; recognized it, however, as the body of Capt. Morantes, whom I had seen repeatedly in Key West. Head and face showed the marks of blows, one cut about two inches long, near the right ear.

[The] [n]ext witness was John P. Baldwin, Mayor, who testified to having received [the] prisoners, papers of [the] vessel &c., from Lieut. Randolph. Recognized said papers, when produced in Court.

Two others were then called, viz: Jose Garcia, and Manuel Farina, residents of Key West. They testified to having known [the] deceased intimately, and when he was born, his personal appearance, manner of life, &c.

The last witness called by the prosecution was Hubert H. Booley, now lying in jail, charged also with the crime of murder. He testified to certain declarations made to him by the prisoners while in jail, how that Guillot said that he and Ortega, the witness, were both innocent. That he, Guillot, did not dare to assist the captain. Frank [i.e., Carcer] also said that he would never have stuck the captain with the knife, if it had not been for Charlie.

No witnesses being brought forward by the counsel for the defense, Mr. Maloney proceeded to address the jury on the side of the prosecution. He was followed by Messrs. Bethel and Douglas, the District Attorney, Mr. Tatum, concluding. Then[,] after a short charge by the Judge, [during which he] recapitulated the evidence [] and instruct[ed] the jury as to the applicability of the law to the case, the jury went out [] [and] were absent about three hours[.] [W]hen they returned [they gave] a verdict of “Guilty,” against both prisoners.

Afterwards a motion was made for a new trial on various grounds of supposed misrulings by the Court, but was denied. And on Saturday [December] 3d . . . the prisoners were brought in and the Court pronounced the following sentence:

After a full and fair trial before a jury, composed in part of seafaring men like yourselves, and in which you have had the assistance of two zealous and able lawyers, you, Alezandro [sic] Carcer, and you, Guillot Faustin Eloy, have been found guilty of the murder of Beciente A. Morantes, the master of the vessel on board of which you, at the time of the murder, composed a part of the crew. The punishment for this crime is, by the laws of all, or nearly all, civilized nations, death.

The President of the United States has authority, by the Constitution and laws, to pardon you or to commute your sentence, and time will be given to you to make application to him for that purpose. But it is my duty to inform you, lest you should be beguiled by false hopes, that you have no reasonable ground to expect his interposition in your behalf. He will, undoubtedly, in your case, permit the law to take its course.

But, although you have no reason to hope for the President's pardon, yet, notwithstanding the magnitude and enormity of your crime, you may, nevertheless, hope for pardon from that Almighty and Merciful Being, whose government and laws you have so greatly despised. You are not beyond the reach of His mercy. Your religion teaches you that God's forgiveness may be extended to you, upon the condition of deep, earnest, and sincere contrition and sorrow for the past, and faith in the atonement His Son has made for us all.

To enable you to seek His pardon, as well as to apply to the President, if you should think proper to do so, time will be allowed you until Monday, the 9th of January next. In the meantime, any priest or minister of the gospel whom you may desire to see, will be permitted to visit you in your prison. You will also be allowed to write to your friends aboard, and the Marshal will see that your letters are duly mailed.

Although you are strangers in this community, you have no enemies here. You are in a Christian country, and the courtesies and charities, which belong to Christian churches, will be extended to you in your great extremity.

The sentence of the law is, that you, Alezandro [sic] Carcer, and you, Guillot Faustin Eloy, be taken to the jail of the county from whence you came, and from thence to the place of execution, on Monday, the 9th day of January next, and between the hours of ten o’clock in the forenoon and twelve o’clock at noon of that day, on the public common surrounding the jail, you be hanged by the neck until you are dead; and may God have mercy on your souls!

U.S. District Court, Key of the Gulf (FL), Dec. 10, 1859, at 2 (paragraphing inserted for improved readability; capitalization as in the original) [hereinafter Summary]. It is not surprising that Marvin, a devout Episcopalian, peppered his remarks with references to God. In his later years, Marvin again took up his author's pen, this time writing a full-throated defense of the authenticity of the Gospels. See William Marvin, Authorship of the Four Gospels: External Evidences (1885).

In contrast, it is surprising that Marvin spent so much time discussing the subject of executive clemency. Based on later events, however, it appears Marvin knew that a request for presidential intervention already was in the works. See infra text accompanying note 71.

The Key of the Gulf ended its story by reporting on Ortega's subsequent separate trial:

Jose Maria Ortega, the witness in the above case, was tried in this Court on Tuesday [November] 29th . . . for grand larceny—having in his possession a portion of the money said to belong to the Enterprise, being his portion of the division after the murder—and was acquitted.

Summary, supra note 65. Although Ortega was indicted by the same grand jury that had indicted Carcer and Elroy, he was tried by a different petit jury. See General Minutes, supra note 20, at 40–42 (listing, id. at 41, Ortega's petit jurors as being Benjamin Archer; Henry F. Baldwin; Benjamin Curry, Jr.; Cornelius Curtis; John Gordon; Charles Howe, Jr.; William A. Lowe; Jeremiah Pent; Lewis E. Pierce; Jacob Solomon; W.H. Ward; and George G. Watson). The minutes do not reflect who served as the petit jury's foreman.

News of Marvin's sentence spread rapidly, although the details sometimes got muddled. In its reporting, for example, the Pittsfield Sun (a Massachusetts weekly) “forgot” about both Joe and Ortega:

Two sailors, a Spaniard [Carcer] and a Frenchman [Eloy], have been convicted at Key West of the murder, in June last, of Capt. B.A. Morantes of New Orleans, master of [the] schooner Enterprise, of which they formed part of the crew. . . . Davis and another [the cook] escaped at Tampa, a third [Heirup the mate] died at Key West, and the other two [Carcer and Eloy] were disposed of as above mentioned.

[No headline in original], Pittsfield Sun (MA), Dec. 15, 1859, at 1.

Similarly, the Daily National Democrat, a newspaper in Marysville, California, misstated what had happened to Carcer and Eloy's fellow crew members:

In the United States Circuit Court of Key West, Florida, on the 23d November, Aleijandro [sic] Carcer and Geuillot [sic] Faustin Eloy, two of the crew of the schooner Enterprise, were convicted for the murder of B.A. Morantes, the captain of the schooner. After the captain was killed, his money was divided among the crew. The other mutineers, six in number, had not been arrested.

Mutiny and Murder, Daily Nat’l Dem. (Marysville, CA), Dec. 31, 1859, at 2.

In his autobiography, Marvin makes no mention of the case.

See Kevin E. Kearney (ed.), Autobiography of William Marvin, 36 Fla. Hist. Q. 179 (1958).

In fact, Eloy did not hang. Three weeks after Marvin pronounced sentence, President James Buchanan issued the following order:

James Buchanan,

President of the United States of America.

To all to whom these presents shall come, Greeting:

Whereas, it appears that at a term of the District Court of the United States of America, for the Southern District of Florida, begun and holden at Key West, within and for said District, on the [left blank in original] day of November, in the year of our Lord one thousand eight hundred and fifty-nine, Guillot Faustin Eloy, one of the crew of the American Schooner “Enterprise” was convicted of the murder of Beciente A. Morantes, the master of the said Schooner, and on the [left blank in original] day of [left blank in original] in the same year, was sentenced by the said Court to be hanged on the ninth day of January in the year of our Lord one thousand eight hundred and sixty; —

And whereas, the said convict has besought me to commute his said sentence of death to some punishment of less severity, and has alleged in his behalf that he was surrounded on board of said Schooner “Enterprise” by a band of determined and lawless murderers, and in fear of his own life should he resist them, and that any participation he may have appeared to have taken, in the murder of the said Beciente A. Morantes, was from a desire to save himself, and not from a desire to take the life of the said Morantes, and that he voluntarily made known the fact that the said Morantes had been murdered, and voluntarily accompanied the [Deputy] Marshal of the United States to the place where the murder had been committed, and pointed out the spot where the body of said Morantes was buried;

And whereas, it has been stated to me by the Judge before whom the said Guillot Faustin Eloy was tried and convicted, that the said convict did voluntarily make known the fact that the said Morantes had been murdered and did willingly go with the [Deputy] Marshal and point out the spot where the body of the said Morantes was buried;

And whereas, Samuel J. Douglas and Winer Bethel, the Counsel appointed by the Court to defend the said Guillot Faustin Eloy, have stated to me in writing, that the facts set forth in his petition are substantially true, and have earnestly besought me to commute his sentence;

Now therefore, be it known, that I, James Buchanan, President of the United States of America, in consideration of the premises, and for other good and sufficient reasons me thereunto moving, have commuted and by these presents do commute the sentence of death pronounced by the said Court upon the said Guillot Faustin Eloy to imprisonment for seven years, that is to say, I have granted, and do hereby grant unto the said Guillot Faustin Eloy a pardon, so as to remit to him the penalty of death, on condition that he undergo an imprisonment at hard labor in the Penitentiary of the District of Columbia for and during the term of seven years.

In testimony whereof, I have herewith signed my name and caused the Seal of the United States to be affixed.

Done at the City of Washington, this twentieth day of December A.D. 1859, and of the Independence of the United States the Eighty-fourth.

James Buchanan

By the President:

    Lewis Cass,

    Secretary of State.

The original of Buchanan's commutation order is housed in the National Archives in College Park, Maryland, in Record Group 59 (“General Records of the Department of State, 1763–2002,” Series: Requisitions for Pardons, 1858–1862, File Unit: Guillot Faustin Eloy (Dec. 19, 1859) [Buchanan]). See https://catalog.archives.gov/id/225276316. A copy can be found on-line in the ProQuest Congressional database under “Executive Orders and Presidential Proclamations—Signed by the President; Presidential Pardons” (Accession No: 1859-44-31, Title: Commutation of Death Sentence for Murder: Guillot F. Eloy, Date: Dec. 20, 1859). See https://congressional.proquest.com/.

On March 9, 1860, in accordance with Buchanan's order, Marvin resentenced Eloy to seven years hard labor in the D.C. penitentiary. See General Minutes, supra note 20, at 43–44.

Once again, the press was quick to report this latest development. In its December 24, 1859, issue, for example, the Pittsburgh Post informed its readers:

Guillot Faustin Eloy, one of the several persons convicted in the United States court for the [Southern] district of Florida, for the murder of the master of the American schooner Enterprise, and sentenced to be hanged on the 9th of January, has had his sentence commuted, by the President, to imprisonment in the penitentiary of the District of Columbia for the period of seven years. It appears from papers laid before the President, that Eloy only participated in the murder through fear of his more criminal companions on board the vessel, and that he stated the facts of the murder to the authorities of the law at Key West, and voluntarily accompanied the [deputy] marshal to the scene of the tragedy and pointed out the spot where the captain was buried. The prisoner is a Frenchman, twenty-two years of age.

Sentence Commuted, Pitt. Post (PA), Dec. 24, 1859, at 2.

In its January 7, 1860, issue, the Key of the Gulf expressed its displeasure with Buchanan's decision to spare Eloy's life:

The President of the United States has been pleased to commute the sentence of [] Guillot F. Eloy convicted as accessory to the murder to Capt. B.A. Morantes of the schooner Enterprise from death, to imprisonment for seven years, in the Penitentiary of the District of Columbia.

The same steamer which bro’t [sic] this document by a strange coincidence brought as a passenger [Adele Morantes,] the widow of Captain Morantes[,] on her way to Havana to arrange the affairs of her deceased husband.

We do not share in the sympathy manifested in behalf of this convicted felon, and we are glad to believe that it is confined to a few only; who by the influence of their positions, nevertheless, have counselled the President to an act which nineteen twentieths [95%] of this community condemn.

Our sympathies are with the disgustingly mutilated remains of the deceased and his surviving widow and daughter.

We have been told that the steamer Isabel refused compensation for the passage of this afflicted lady, and that she has received like kindnesses from other managers of other public conveyances on the route hither. Gentlemen, you have your reward in the consciousness of a charity not misplaced.

Reprieved, Key of the Gulf (FL), Jan. 7, 1860, at 2 (emphasis in original).

To the modern reader, Buchanan's decision to pardon Eloy likely seems inexplicable. During his presidency (1857–61), however, Buchanan showed generosity to a wide range of persons (150 in all).

See P.S. Ruckman, Jr., Federal Executive Clemency in [the] United States, 1789–1995: A Preliminary Report, SSRN, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2214593 (under “Table 2”). With 150 approvals, Buchanan left office having granted slightly more clemency petitions than his predecessors, who had averaged 137.5 approvals per four-year term. Id.

Likely also difficult for a modern reader to understand is Buchanan's directive that Eloy serve his sentence in the District of Columbia penitentiary. As has been explained elsewhere, however, in the late 1850s the D.C. penitentiary, which was under-utilized, began accepting prisoners from other jurisdictions to help cover its operating costs. This delighted Congress, which, as the facility's overseer, was on the hook for any financial shortfalls.

See David K. Sullivan, Behind Prison Walls: The Operation of the District Penitentiary, 1831–1862, 71/72 Recs. Colum. Hist. Soc’y, Washington, D.C. 243, 253–54 (1971/1972).

On March 14, 1860, the New York Daily Tribune reported that Eloy was on his way to the nation's capital to begin serving his sentence:

The steamship Isabel has arrived [here in Charleston, South Carolina] from Havana 10th inst., via Key West.

Among the passengers are the [Maximillian] Maretzek opera troupe and Guillott [sic] V. [sic] Eloy, in charge of the Marshal at Key West, en route to the Penitentiary at Washington, having been convicted of being [an] accessory to the murder of Capt. Morantes.

Later [News] from Havana, N.Y. Daily Trib., Mar. 14, 1860, at 5. Maretzek (1821–97) was one of the country's most famous opera impresarios. See Katherine K. Preston, Opera on the Road: Traveling Opera Troupes in the United States, 1825–60, at 147 (1993) (“During the mid to late 1850s, Maretzek managed his own troupe, the Maretzek Opera Company, which toured extensively in the United States, Mexico, and Cuba.”). See also Max Maretzek is Dead, N.Y. Times, May 15, 1897, at 7.

As matters turned out, this was the last time any newspaper would report on Eloy's whereabouts.

In September 1862, the D.C. penitentiary was converted into a federal military installation and its prisoners were sent to the Albany state penitentiary in New York. See Albany County Jail and Penitentiary Records, 1825–1976, Albany County Hall of Records, at https://www.albanycounty.com/home/showpublisheddocument?id=308 (“[In] 1862, federal prisoners from the District of Columbia were transferred to Albany when the United States Arsenal took over the penitentiary there and it closed. This included confederate soldiers from the south and many longstanding prisoners convicted of breaking federal laws. . . . [T]he [Albany] penitentiary [was paid] a boarding fee of $1.50 per prisoner per week [and additionally benefitted from an increase in its] workforce.”).

Despite the foregoing, an examination of the following Albany penitentiary records turns up no trace of Eloy:

Deputy's Register of Prisoners: 1856–1871

In contrast, Carcer did hang. In its January 14, 1860, issue, the Key of the Gulf reported:

Alejandro Carcer suffered the extreme penalty of the law on the 9th inst. At 11 a.m., he was taken from the Jail by the U.S. Marshal and his assistants, and from thence under guard of the U.S. troops to the gallows, in the rear of the same. The prisoner was attended by two Catholic clergymen, one of them a Spanish gentleman, invited from Cuba by the Marshal for the purpose.

The appearance of the prisoner was anything but pleasant—his conduct and bearing indicating utter abandonment and debasing recklessness, extremely repulsive.

He ascended the ladder on a run, and until nearly the last moment appeared very much excited and indulged in a few violent invectives; he however thanked the officers for their kindnesses, said he forgave all, and asked to be forgiven. When placed on the trap he became as fixed as a statue; and when the drop fell, died almost instantly. He remained suspended about thirty minutes, and was then taken down and buried.

This is the only execution that has taken place on our Island for over twenty years past, and we were gratified to find the number of spectators much smaller than was expected, but regretted to see that it was in part made up of females—sad evidence of immodesty and morbid curiosity—gazing unmoved upon the revolting spectacle.

Execution of Carcer, Key of the Gulf (FL), Jan. 14, 1860, at 2 (paragraphing inserted for improved readability). Curiously, Carcer's hanging is not listed in the “ESPY File,” the massive database of U.S. executions occurring between 1608 and 2002. See M. Watt Espy & John Ortiz Smykla, Executions in the United States, 1608–2002: The ESPY File, Death Penalty Information Center, at https://www.deathpenaltyinfo.org/executions-us-1608-2002-espy-file. Other sources are to the same effect. See, e.g., Florida Executions, USGenWebSites.org, at https://usgenwebsites.org/flgenweb/FLUnion/02executions-fl%20-%20franklin%20thru%20washington.pdf (indicating that there were no executions in either Key West or Monroe County between 1831 and 1883). There is an oblique reference to Carcer's execution in James M. Denham, “A Rogue’s Paradise”: Crime and Punishment in Antebellum Florida, 1821–1861, at 209, 333 n.19 (1997) (reporting that two unnamed sailors possibly were executed in 1860 at Key West for the murder of “Capt. Morantes”).

It is not known what happened to Charlie Davis (the crewman who killed Morantes) or the cook. After their furtive escape from the Delaware, no further mention of them turns up. This suggests they either: (a) drowned; or (b) never were caught.

If they did not drown, the subsequent outbreak of the Civil War presumably would have made the pair's capture a much less pressing priority, especially as Southern police manpower and resources were shifted away from law enforcement and towards the Confederacy's military needs. See generally Robert L. Hampel & Charles W. Ormsby, Jr., Crime and Punishment on the Civil War Homefront, 106 Pa. Mag. Hist. & Bio. 223 (1982).

Despite my best efforts, there is still much we do not know about the Enterprise case, including: 1) who planned the voyage and outfitted the ship?; 2) where was the vessel actually headed?; 3) why did Morantes have so much gold in his trunk (and where did it come from)?; 4) did the crew really commit mutiny, and kill their captain, because of bad food?; 5) what became of Ortega after he was exonerated?; 6) did Eloy serve his full sentence, and if so, what happened to him following his release?; and, 7) how did Davis and the cook manage to elude capture? It is, of course, unlikely that we will ever learn the answers to any of these questions.