Mr. Marvin Goes to Key West

The three articles that begin this special issue of the British Journal of American Legal Studies, penned by Professor Robert M. Jarvis, illuminate important aspects of Key West's 19th century political and legal history. Jarvis demonstrates that while the island city was hundreds of miles south of the U.S. mainland, it was a critical depot in the nation's maritime enterprise. Perched atop the Caribbean, surrounded by dangerous reefs, and vulnerable to lawless elements, the isolated location required legal arrangements to ensure the protection of person and property.

The need for a court was obvious to everyone. Thus, in 1828, Congress created the Southern District of Florida, with President John Quincy Adams appointing James Webb its first judge. The individual who played the most important role in establishing federal authority, however, was Webb's successor, William Marvin, who arrived in Key West in 1835 after his appointment as U.S. District Attorney.

Four years later, President Martin Van Buren appointed Marvin a judge of the superior court, a tribunal possessing both territorial and federal jurisdiction. From this time until his return to New York in 1863, Marvin (with only a brief interruption during the years 1845–47) presided over numerous admiralty cases in Key West and became an internationally recognized authority on salvage law. This essay, however, focuses on Marvin's first decade in Key West (1835–45), when Florida still was a U.S. territory.

Marvin was born on a farm in Herkimer County, New York, on April 14, 1808.

For biographical sketches of Marvin, see Walter W. Manley et al., The Supreme Court of Florida and Its Predecessor Courts, 1821–1917, at 78–83 (1997) [hereinafter Predecessor Courts]; R. Boyd Murphree, William Marvin, in The Governors of Florida 149–57 (R. Boyd Murphree & Robert A. Taylor eds., 2020).

In 1826, having turned 18, Marvin decided to set out on his own. Making his way through Pennsylvania on foot, he ended up in Bladensburg, Maryland, where he opened his own school.

Id. at 180–82.

After toying with the idea of becoming a Methodist minister, Marvin was persuaded by his older brother Richard to study law. In 1830, Marvin was admitted to the Maryland bar; in 1834, having returned home, he was admitted to the New York bar.

Id. at 187 (Maryland admission); 193–94 (New York admission). As was the custom at the time, Marvin “read law” (i.e., apprenticed) in the offices of local attorneys (a “Mr. Spellman” in Frederick, Maryland, and the law firm of Tabor and Dean in Albany, New York).

In December 1834, only a year after establishing a practice in upstate New York, Marvin visited St. Augustine, Florida, on business. This extended trip changed his life.

As Marvin recalled many years later, “I sailed from New York in a Hudson River Sloop of the burthen about ninety tons having on board general cargo of merchandise bound to that place.”

Id. at 194.

In addition to making the local rounds, Marvin visited Jacksonville, a town that at the time had less than 300 residents. Wherever he went, Marvin left a favorable impression. He made friends easily and at one point went on what he described as an “exploring trip” up the St. Johns River with a “party of gentlemen.”

Id. at 196.

Marvin later credited this sojourn for his appointment as U.S. District Attorney for the Southern District of Florida:

Charles Downing introduced me to Joseph White, then delegate from Florida in Congress, and recommended me to him as a suitable person to be appointed U.S. District Attorney for the Southern District of Florida. Having this endorsement from Downing, who had taken a fancy to me, White recommended to President [Andrew] Jackson my appointment to that office.

Id. at 195. Among the St. Augustine signers of an official recommendation of Marvin to Jackson were John Bradley, John L. Doggett, Charles Downing, John Drysdale, Daniel S. Griswold, Joseph M. Hernandez, Charles Lawton, Benjamin A. Putnam, Robert Raymond Reid, Peter Sken Smith, Frederick R. Weedon, and William H. Williams. See Recommendation of William Marvin as United States Attorney, April 25, 1835, in 25 Territorial Papers of the United States 131–32 (Clarence Edwin Carter ed., 1960) [hereinafter 25 Carter].

Marvin acknowledged receipt of his appointment on July 21, 1835.

Marvin was given only an interim appointment. See Commission of William Marvin as United States Attorney (Southern District), June 20, 1835, 25 Carter, supra note 8, at 143–44. Six months later, Jackson appointed Marvin to a full four-year term. See Commission of William Marvin as United States Attorney (South Florida), January 13, 1836, id. at 223–24.

Marvin's eventual journey from New York to the island city coincided with a hurricane.

See Further Particulars of the Late Gale, Charleston Courier (SC), Oct. 31, 1835, at 2.

Created in 1828, the U.S. District Attorney's Office for the Southern District of Florida lacked continuity during its early years. Its first occupant, William A. McRea—removed within a year of his appointment—was gunned down in the streets soon thereafter.

See James M. Denham, Captain Charles E. Hawkins, “The Key West Tragedy,” and the “Unwritten Law,” 1827–1830, 99 Fla. Hist. Q. 237 (2021).

The office's constant turnover reflected both the challenges of a tropical climate and the difficulty of administering justice in what many felt was an inhospitable environment for law-and-order. James Webb, the district's first judge, still in office when Marvin arrived, already had summed up the situation in a letter to Joseph White, the territory's Congressional delegate:

[T]he population of this place, will always in great degree, be composed of foreigners from various Governments, [who] are but little acquainted with our habits & customs, & usually form very erroneous & imperfect ideas of liberty, as found in our Country. . . . [M]any of these people are of the opinion, that as soon as they land on our shores, they are at liberty to do as they please, & it is difficult to learn them, except by punishments.

Judge Webb to Delegate White, October 27, 1828, in 24 Territorial Papers of the United States 112, 112–13 (Clarence Edwin Carter ed., 1959) [hereinafter 24 Carter].

Anglo-American concepts of law-and-order, Webb further opined, were alien to many of the island's inhabitants. In a different letter, Webb described the population as being “composed of a heterogeneous mass, congregated from various parts of the world, many of whom were unacquainted with the operation of our laws, and had for several years been living in a state of unrestrained, and indeed licentious, freedom.”

Judge Webb to the Secretary of the Treasury, April 9, 1829, 24 Carter, supra note 13, at 183, 184.

From the court's opening session on November 3, 1828, until Marvin arrived in November 1835, the docket groaned under the weight of a seemingly endless number of violent acts. In the first two sessions alone, there were 13 prosecutions for assault-and-battery; five for dueling; three for mutiny; one for resisting process; and even one for helping a prisoner escape. Remarkably, most of the prosecutions resulted either in not guilty verdicts or nolle prosequis (i.e., abandonments); some simply “disappeared” from the docket. Of the 13 assault-and-battery cases, for example, only six ended in guilty verdicts and only one went to trial.

See Southern District of Florida, Minutes of the U.S. District Court, 1828–1835, in the National Archives—Atlanta, GA (Record Group 21, Carta 1: 1–38).

Over the next few years, the violence continued. Prior to Marvin's arrival, for example, the clerk of the court recorded six indictments for assault; 17 indictments for assault-and-battery; six for assault with intent to kill; two for assault with intent to ravish (i.e., rape); and nine for murder.

See Monroe County, Minutes of the Superior Court of the Southern District of Florida, 1830–1840, at 1–268 [hereinafter Monroe County Minutes] (available at the P.K. Yonge Library of Florida History at the University of Florida).

Florida's territorial superior courts operated under federal authority, but as two commentators have noted, they more closely resembled state courts.

See Kermit L. Hall & Eric W. Rise, From Local Courts to National Tribunals: The Federal District Courts of Florida, 1821–1990, at 5–20 (1991) [hereinafter Local Courts]. See also James M. Denham, A Rogue’s Paradise: Crime and Punishment in Antebellum Florida, 1821–1861, at 25–26 (1997) [hereinafter Rogue’s Paradise]; Charles D. Farris, The Courts of Territorial Florida, 19 Fla. Hist. Q. 346 (1941).

In the years 1835 to 1839, Marvin's prosecutorial duties bore some continuity to the previous period, but in addition to assault-and-battery (six cases), assault with intent to kill (one), and murder (four), he also prosecuted defendants for assault on the high seas (two), fornicating with a female slave (one), keeping a disorderly house (two), and larceny (six).

See Monroe County Minutes, supra note 16, at 277–426.

It did not take long for Marvin to appreciate the importance of the area's wrecking industry, especially when it came to adjudicating the claims of wreckers who salvaged cargo stranded on nearby reefs.

The best study of the wrecking industry remains Dorothy Dodd, The Wrecking Business on the Florida Reef, 1822–1860, 22 Fla Hist. Q. 171 (1944). See also E.A. Hammond (ed.), Wreckers and Wrecking on the Florida Reef, 1829–1832, 41 Fla. Hist. Q. 239 (1963).

Marvin quickly discovered that Key West was the nerve center of the country's wrecking business:

At the time extensive trade was carried on with Mobile, New Orleans, Galveston, and other ports in the Gulf of Mexico in sailing vessels. The Florida coast was very inefficiently & imperfectly lighted. A reef of coral formation extends along the whole of the Southern point of the peninsula from Cape Florida to the Dry Tortugas, a distance of about 200 miles; it constitutes, as it were, the northern Wall of the Gulf stream. In bad weather, many vessels would be driven ashore on this reef. The cargoes and sometimes the vessels were saved by wreckers and carried into the port of Key West. It was the business of the Court to determine the amount of compensation to be paid the salvors for saving the property and to settle the costs and expenses connected with the landing and storing of the goods.

Id. at 200 (capitalization as per original).

Handling salvage (and other) cases in his private capacity proved very lucrative for Marvin during his time as U.S. District Attorney:

I soon found by experience, that I had but very little business to do in my office as United States District Attorney, but I very soon began to do my full share as a lawyer in all other kinds of law business. In the four years that I was at the bar, I had earned in fees, over and above my expenses of living, about fourteen thousand dollars.

Id. Today, $14,000 is the equivalent of $394,000. See S. Morgan Friedman, The Inflation Calculator, at https://westegg.com/inflation/.

When Marvin, just 27, arrived in Key West in 1835, a whole new world unfolded in front of him. As he later recalled, “The acceptance of this office and removal to Key West changed the whole course and current of my life. I resided no longer in a Northern climate, where the winds, ice, and snow compelled me to live within the doors nine months of the year.”

Kearney, supra note 2, at 198.

Marvin also noticed that the inhabitants readily welcomed him into their ranks:

The population consisted of about three hundred and fifty souls. Among the leading businessmen were Fielding A. Browne, Pardon C. Greene, Oliver O’Hara, Charles Wells, George Weaver, Asa and Amos Tift, William H. Wall, and Philip Fontane. James Webb was the judge of the court and Thomas Easton, Marshal. Adam Gordon and William R. Hackley among the principal lawyers.

Id. at 199. For further descriptions of Key West when Marvin arrived, see Rogue’s Paradise, supra note 17, at 54–57; Canter Brown, Jr., Ossian Bingley Hart: Florida’s Loyalist Reconstruction Governor 68–80 (1997); Joseph T. Durkin, Stephen R. Mallory: Confederate Navy Chief 3–35 (1954).

Marvin boarded with Ellen Mallory, which immediately exposed him to all the leading lights of the village, including the hostess's son, Stephen R. Mallory, who eventually became a U.S. senator and later served as the Secretary of the Navy of the Confederate States of America.

See Durkin, supra note 26, at 19.

Marvin found “a very pleasant society on the Island, consisting of four or five families[:] the Webbs, the Whiteheads, the Gordons, the Brownes, &c; the rest of the population was mostly fishermen and wreckers.”

Kearney, supra note 2, at 203.

Marvin's personality and stature in the community soon led him into politics. Elected in 1836 to a seat on the territory's Legislative Council, Marvin ventured to the capital (Tallahassee) for the first time, and took the oath of office, on January 4, 1837.

See A Journal of the Proceedings of the Legislative Council of the Territory of Florida 11 (1837) [hereinafter 1837 Journal] (“William Marvin, the member elect from Monroe County, appeared, produced satisfactory evidence to the House of his election, and on motion of Mr. Downing, took the oath of office, and was admitted to a seat.”).

Marvin took an active part in the council's deliberations, serving on both the judiciary committee and the schools and colleges committee (chairing the latter).

Id. at 14.

In 1837, the most controversial issue in Florida (and elsewhere in the country) was banking, with advocates introducing numerous bank charter bills. Marvin opposed the idea of banks having the ability to issue their own currency. This position put him squarely into conflict with the numerous delegates who favored bank charters on that basis.

When Eben J. Wood, a member from Franklin County and the chairman of the committee on banking, proposed a bill chartering a bank in his county, Marvin, a “hard money” man, made a speech against the measure. Marvin recalled later:

My little speech, though temperate and not at all personal, enraged Wood. After I had done speaking he said speaking of me to several members sitting around, in rather an undertone, but still, loud enough for me to hear distinctly: “He is a damned rascal! [D]amn him, I’ll cut his damned ears off.” He repeated the remark once or twice. It flashed upon my mind, as quick as lightning, that I should be obliged to fight him. I had just come into the Territory from the North where dueling was not tolerated, and Wood and many other leading men in the Territory might reasonably think that I would not fight, and so, insult me at their pleasure, and if it should be understood throughout the country, that I could be insulted without properly resenting the insult, my public life would be at once ended. I determined, therefore, in an instant to fight him, and to draw the challenge from him. I immediately, in answer to his threatening words, shook my finger in his face, and said in a full round voice so that the Council could hear me: “You are a damned liar; damn you!”

Kearney, supra note 2, at 204.

Marvin understood that, given the circumstances, he had no choice but to challenge Wood, and made formal arrangements (through a second) to do so. Fortunately, mutual friends resolved the matter sufficiently to avert bloodshed. Marvin's friends even managed to extract a public apology from Wood during a subsequent council session.

Id. at 205. The published journals of the Legislative Council offer only oblique references to the Marvin-Wood confrontation, but the incident in question probably occurred on February 9. On February 11,

Mr. Marvin, moved that a committee of three be appointed to enquire into the conduct of E.J. Wood, and William Marvin, members of this house, as exhibited in this House, and in committee of the whole House on Thursday last [Feb. 9], that the said committee have leave to sit during the session of the House, and that they report to this House today at 3 o’clock, and that they have power to send for persons and papers. Which motion prevailed. . . .

In 1838, Marvin's constituents selected him to represent them at the Florida Constitutional Convention in St. Joseph, where banking once again was the most controversial issue. Marvin again sided with those who favored tight restrictions and oversight, and he supported those who sought to curtail the industry's interests. Most observers considered the final draft of the proposed constitution a victory for these forces.

For the role played by banking at the St. Joseph Constitutional Convention, see, e.g., James M. Denham, Florida Founder William P. DuVal: Frontier Bon Vivant 258–62 (2015) [hereinafter Bon Vivant]; Edward E. Baptist, Creating an Old South: Middle Florida’s Plantation Frontier Before the Civil War 159–61 (2002); Arthur Thompson, Jacksonian Democracy on the Florida Frontier 11–15 (1961); Dorothy Dodd, Florida Becomes a State (1945).

While Marvin aligned with the anti-bank forces, his primary interest was the judicial branch. Marvin took a leading role in drafting the judiciary provisions (contained in Article V of the proposed constitution) and drew praise for his work. The Florida Herald and Southern Democrat newspaper, for example, took note of his skill in working collegially with the other delegates to “establish great principles, and concede[] minor points to the opinion of others.”

The Constitution, Fla. Herald & S. Dem. (St. Augustine), Apr. 11, 1839, at 2.

One year later, Marvin's fellow citizens elected him to the Florida Senate. The 1839 legislative session proved to be one of the most tumultuous in Florida history. The adjournment of the constitutional convention essentially segued into the Legislative Council's opening session. The anti-bank Democrats swept into the 1839 council with great momentum. They had prevailed in the recent elections and were determined to rein in the banks by passing a whole host of restrictions. Marvin was with them, and together they largely prevailed.

Once again, Marvin drew praise for his part in enacting these “reforms,” with the Florida Herald and Southern Democrat writing: “Thanks principally to Judge Marvin our last Legislature proved itself Loco-foco [i.e., pro-democracy], by providing in every act of exclusive privilege, that it should be always under control of the peoples’ representatives.”

Democratic Reforms, Fla. Herald & S. Dem. (St. Augustine), June 27, 1839, at 1.

In 1839, James Webb resigned his position as superior court judge of the Southern District of Florida to migrate to Texas.

For a biography of Webb, see Hobart Huson, Webb, James (1792–1856), Texas State Historical Association, 1952, updated Nov. 1, 1995, available at https://www.tshaonline.org/handbook/entries/webb-james.

To protect their interests, the New York shipping community wanted Charles Walker, “who, before moving to Florida in 1838, had been counsel for the New York Dry Dock Company, a firm engaged in coastal shipping and salvage operations around the Florida Keys.”

Id.

In contrast, Reid recommended Marvin because of his familiarity with the operations of the court and his sensitivity to the interests of Florida's salvage operators. In his book, Hall asserts that Marvin had

incurred the ire of the shipping interests, who charged that he was too lenient in prosecuting the often aggressive tactics of salvage operators. The bar of Key West, however, endorsed Marvin; his experience would insure continuity and competence in the disposition of the extensive admiralty and maritime business before the court.

Id. at 40–41.

Also complicating Marvin's appointment was a conflict within Florida's Democratic Party. Two factions had developed: one led by Governor Richard Keith Call and Charles Downing, and another led by Judge Robert Raymond Reid and David Levy (Yulee). The conflict involved questions over banking, economic issues, and the federal government's conduct of the Second Seminole War (1835–42). The Reid-Levy faction hewed closer to Van Buren's policies than the Call-Downing faction, which eventually became part of the Whig Party in Florida.

Id. at 38. On the development of political parties in Florida during this time, see Bon Vivant, supra note 37, at 90–263; Baptist, supra note 37, at 111–19, 154–90; Thompson, supra note 37, at 7–22; Herbert J. Doherty, The Whigs of Florida, 1845–1854 (1959).

Van Buren granted Marvin a recess appointment (good until the end of the U.S. Senate's next session),

See Commission of William Marvin as Judge (Southern District), March 11, 1839, 25 Carter, supra note 8, at 596–97.

The Senate Judiciary Committee investigated the matter while also mulling accusations about certain Spanish lands grants in Marvin's district. In the meantime, the Floridian newspaper fretted that the pending issues may “delay [Marvin's] nomination to the Senate. No better man could be selected.”

[No headline in original], Floridian (Tallahassee), Feb. 15, 1840, at 3.

Marvin's appointment drew praise throughout the territory. The Pensacola Gazette newspaper, for example, enthused that Marvin “will give entire satisfaction. Judge Marvin is an ornament to the bench; he has been long known in Florida as a man of high order of intellect and incorruptible integrity, and his appointment will be hailed with pleasure.”

[No headline in original], Pensacola Gazette, May 9, 1840, at 2.

While Marvin's supporters could rejoice in his appointment, Marvin understood the challenges posed by his new position. Not only were the salvage cases piling up, the enforcement of the law, and the administration of justice, had progressed little since Marvin had arrived in Key West in 1835.

Evidence of the problems can be seen in the numerous communications between federal officials on the scene and the authorities back in Washington, D.C. Finding an adequate number of jurors to try criminal cases, for example, remained a serious problem. Lawyers for the accused often availed themselves of their statutory right of 20 preemptory challenges to escape trials. As the U.S. district attorney, marshal, and members of the Monroe County bar explained to Congress and the territorial delegate in an 1840 petition, federal law “authorises the sending of criminals with their indictments to the Eastern or Middle District [of Florida] for trial when there is a deficiency of jurors in Monroe and to bind the witnesses to appear there. Yet it makes no provision for paying the expenses of such witnesses.”

Memorial to Congress from the Officers of the Superior Court, Southern District, March 16, 1840, 26 Carter, supra note 52, at 125, 126.

The petitioners provided numerous examples of the district's inability to prosecute lawbreakers. One man, charged with murder, was sent to Tallahassee for trial but no money was available to cover the cost of the 400-mile voyage for the 13 witnesses against him. Three other persons, charged with capital offenses, had escaped from prison, or been acquitted, due to a lack of jurors. The result, the petitioners explained, was that the community was becoming frustrated and “organizing Lynch tribunals.”

Id. at 126.

Proof that local citizens were willing to take the law into their own hands came in the summer of 1841, when a mob tarred and feathered the Key West lighthouse keeper. When authorities notified U.S. Secretary of State Daniel Webster that the perpetrators of this outrage remained unpunished, Webster admonished the U.S. district attorney and “other Law officers appointed by this Government, to exert themselves fearlessly and to the utmost of their ability, to bring offenders of this sort to . . . punishment.”

The Secretary of State to L.W. Smith, July 8, 1841, 26 Carter, supra note 52, at 356, 356.

Responding forcefully to the matter of “mob authority” in a presentment to the grand jury for Monroe and Dade Counties, Marvin denounced the

crime . . . vulgarly called Lynching. Persons guilty of it establish a tribunal of their own, unknown to and in defiance of the laws; and seize, arraign, try, and punish their victims according to their own wills. They are the judges, jurors, and executioners of their own sentence. . . .

The existence of such a tribunal tends to divert immigration; to drive the quiet citizens from the country; to alarm the whole community by spreading abroad a general sense of insecurity; to destroy all regard for the authority of the law; all reverence for the due administration of justice; all love of order; and, in the end, dissolves the bonds of society, subverts government, and arms man in deadly fury against his fellow man.

Judge Marvin's Charge, Fla. Sentinel (Tallahassee), Nov. 26, 1841, at 3.

Marvin rejected all the supposed excuses for such behavior in “new countries like this”: 1) the laws are defective; 2) there are insufficient numbers of jurors; 3) courts sit too infrequently; 4) jails are non-existent; and, 5) officers neglect their duties. “But if the argument of necessity, which is the tyrant's argument, where true to the extent it is used,” Marvin exclaimed, “still it would be no justification; for the evils attendant and consequent upon such proceedings are incomparably greater than the evil of permitting offenders to escape punishment.”

Id.

Marvin clearly felt that his six years of experience in Key West entitled him to remind the authorities in Washington of the district's unmet needs. He complained to the territory's Congressional delegate that the town continued to be “exposed to the aggressions of imported villains. It is a kind of ‘Half Way House’ for travelers upon the high seas. Here they stop, refresh themselves, and not infrequently commit crimes against the laws.”

Judge Marvin to Delegate Levy, November 20, 1841, 26 Carter, supra note 52, at 403, 403 (emphasis in original).

In the meantime, favorable reports about Marvin began to appear. Though not a man of vigorous athletic habits, Marvin, 5′11″ with curly black hair, certainly commanded respect. “[A] superficial observer would pronounce him a lazy man,” one newspaper reported, “but his mind, is always at work, and to the very best advantage, and he can bend it to the severest tasks.”

[No headline in original], Pensacola Gazette, Jan. 28, 1843, at 2 (emphasis in original).

Superior court judges sat once a year in Tallahassee as the Territorial Court of Appeals. Marvin attended his first meeting of this court in April 1841. The session began just as the legislative session was ending, and Marvin had an opportunity to speak with some of the legislators before the court convened. These conversations resulted in Marvin's appointment to prepare a revised code of the territory's laws and submit it to the council as soon as possible.

See Resolutions—No. 9, Pensacola Gazette, July 17, 1841, at 1 (“[T]he Honorable William Marvin [is] appointed, and requested to revise the laws of this Territory, and to submit a revised code thereof to the Legislative Council. . . .”).

As Marvin understood his assignment, he was to

complete a revision of the whole body of statutory law, and the digesting and arranging of it into distinct chapters according to subject matter. . . .

The value and usefulness of such a code . . . must depend upon its adaption to the wants and circumstances of the country, and to its arrangement into a system.

To the Honorable the Legislative Council of the Territory of Florida, Fla. Sentinel (Tallahassee), Jan. 28, 1842, at 1 (communication from Marvin to the Legislative Council dated Jan. 21, 1842).

Marvin assured the council that he would “spare no labor, to make the work as perfect as his abilities will allow.”

Id.

According to the Pensacola Gazette, Marvin's revised code was expected to be a vast improvement “over the jumble of legislation by which we are now governed.”

[No headline in original], Pensacola Gazette, Jan. 28, 1843, at 2.

The Gazette explained that Marvin expected the digest to go into effect in 1844. Among its major innovations would be the reorganization of the territory's court system; abolishing the county courts; expanding the jurisdiction of the justices of the peace; increasing the duties of the county commissions; and creating the office of surrogate (a title the Gazette did not fancy) in each county to handle probate matters.

On January 10, 1843, Call informed the council that he had received a letter from Marvin advising him that Marvin had completed his work. Call quickly added: “The general plan and arrangement of the different subjects meets my entire approbation; and from the high reputation of Judge Marvin, for talent and research, I may venture to recommend this production to your favorable consideration.”

Journal of the Proceedings of the Legislative Council of the Territory of Florida 18 (1843) [hereinafter 1843 Journal].

Territorial Secretary Thomas H. DuVal predicted that Marvin's “Revised Code” would be “adopted with, I believe, but few amendments,” and informed U.S. Secretary of State Daniel Webster that he expected the printed volume to run six or seven hundred pages.

See Secretary DuVal to the Secretary of State, February 21, 1843, 26 Carter, supra note 52, at 618, 619.

The solons created a Joint Select Committee to consider Marvin's work and it was resolved that the first hour of each day be set aside to study the text.

Id. at 48.

Nearly every day, the committee presented chapters, put them to votes by each house, and then submitted them to the governor for approval. It was a process destined to fail. The Pensacola Gazette anticipated the problem by observing: “Judge Marvin's revision of the Statutes is passing rapidly through the House. There is some danger that there will be attempts made to amend or alter that work as prepared by Judge M. and if the work of emendation once commence, there is no knowing where it may stop.”

[No headline in original], Pensacola Gazette, Feb. 4, 1843, at 2.

Perhaps Marvin and the compendium's most difficult obstacle was Call, who, despite his earlier endorsement, now seemed to oppose every innovation Marvin proposed. In long-winded responses to both houses, Call struck down chapter after chapter. On March 13, 1843, for example, Call took issue with the chapter titled “Laws”:

I find many objections to this chapter, but there is one so cogent and decisive, I deem it unnecessary to present any other.

The third section provides, that “hereafter no English or British Statutes shall have effect, force or authority, in this Territory.” The Statute Laws of Great Britain, constitute an essential and indispensable part of the Jurisprudence of this country; and human wisdom cannot penetrate so far into the unknown events of futurity, as to foresee the effect which would be produced in our judicial system by this sweeping and general abolition of these statutes.

1843 Journal, supra note 70, at 209.

Call's remarks seemed to question the whole enterprise:

I am unwilling to discard all the former legislation of this Territory. Many of our acts have been taken from English statutes, and those of different States of the Union. Some of them might be greatly improved; but others are as perfect as we can probably make them and will compare with any of the chapters passed during the present session. It would be well for us to understand the old law before we undertake to make a new one; otherwise we may, after expending much time and labor, discover the humiliating truth, that we have produced a new statute-book, but one greatly inferior to that we have abolished.

Id. at 210.

The council adjourned on March 16, 1843, with only a portion of Marvin's work approved. While recognizing Marvin's “sagacity and intelligence,” the Pensacola Gazette applauded the council's decision not to approve Marvin's work:

[W]e cannot but feel assured that he had some better reason than occurs to our poor understanding, for thus attempting the establishment of a new code of laws, instead of bending his mind to the improvement of the old system. . . . No man would be likely to produce a better code than Judge Marvin, but we want no code; and when we formerly expressed the hope that the labors of Judge M. might be adopted, we did so under the belief that those labors consisted mainly, if not exclusively, in condensation of the old laws.

[No headline in original], Pensacola Gazette, Mar. 25, 1843, at 2.

In the end, there would be no publication of any part of Marvin's work. Whether Marvin received compensation for his labors is unknown.

In March 1844, President John Tyler nominated Marvin for a new four-year term as judge. By this time, Call, in his annual address to the Legislative Council, had made oblique references to officials who had violated the revenue laws by speculating on the territory's public funds.

See Journal of the Proceedings of the Senate of the Territory of Florida 6, 12 (1844) (message of Governor Richard Keith Call, Jan. 5, 1844).

Both houses investigated the matter. The senate's committee deferred the issue to the proper judicial tribunal while issuing a minority report, authored by the committee's chairman, that essentially adopted Call's charges. The house's committee found no wrongdoing and went so far as to suggest that Call's accusations were the product of malice. Call responded to the house's report by claiming that the “net ‘avails’ of [Marvin's] speculation[,] forbidden by law, amounts to upwards of $600.00 on a capital fund of $1,035.45.”

Id. at 269.

To rebut Call's charges, Marvin published a lengthy statement addressed “To the People of Florida.”

See William Marvin, To the People of Florida, Fla. Herald & S. Dem. (St. Augustine), June 11, 1844, at 2.

In his missive, Marvin further insisted: “That the Governor and the Council considered the law obsolete, and without force at that time, is evident from the fact, that by a solemn act passed some weeks afterwards they ‘revived’ it. . . . [This was done] after I paid the Scrip[.] [S]hall [it] have a retroactive effect, so as to make a transaction which was lawful at the time, unlawful by reason of subsequent legislation[?]”

Id. (emphasis in original).

Marvin then broadened his rebuttal by insisting that “the attack made on me was intended to reflect prejudicially upon the whole bench,”

Id.

By the time Marvin's letter was published, the U.S. Senate had confirmed his nomination.

Tyler nominated Marvin on March 29, 1844; the Senate confirmed him on May 10, 1844. See Commission of Judge Marvin (Southern District), May 10, 1844, 26 Carter, supra note 52, at 900.

The foregoing charges came as Marvin once again joined the other superior court judges for the annual session of the Territorial Court of Appeals in Tallahassee. According to the Pensacola Gazette, all five judges were present at the opening session.

Sitting with Marvin were Judges Isaac H. Bronson (Eastern District), Samuel W. Carmack (Apalachicola District), Samuel J. Douglas (Middle District), and Dillon Jordan, Jr. (Western District).

The Gazette also offered descriptions of the judges. The one concerning Marvin not only commented on his appearance but also provided insight into his temperament:

Judge Marvin . . . is the best looking man of the Court. But for the color of his hair and beard (for he is scarcely over thirty) you might imagine him a Roman praetor. He has a store of legal learning, but rather elementary; his mind I should think is decidedly of the synthetic cast, and his conclusions are almost invariably correct. It is the rare good fortune (or perhaps I should rather say it the great merit) of Judge Marvin to have become very popular without using any of the devices by which popularity is generally acquired.

Id.

Back home, the most significant legal issues facing Marvin involved admiralty matters. In this regard, Marvin was both criticized and praised for his work. On balance, however, Marvin had more supporters than detractors. In 1842, one observer wrote that

in times gone by there has been much complaint by marine insurers and ship owners against the proceedings of the Admiralty Courts at Key West. Grounds for such complaint no longer exist, and certain as I am while Judge Marvin holds the scales he will act independently and mete out to all suitors equal and exact JUSTICE.

To the Editors of the Commercial Advertiser, N.Y. Spectator, Sept. 10, 1842, at 3 (letter to the editor) (capitalization as per original).

After his reappointment in May 1844, Marvin traveled to New York, which was customary for him in the summer months given Key West's oppressive heat and the threat of yellow fever. In October 1844, a critic named “Esperanza” claimed that Marvin's absence from his post was causing substantial hardship:

The Judge has been absent since May last. It seems that when appointments are made, a capacity to stand the climate should be a clause of consideration; and if we must be saddled with appointees, who cannot reside but a few months with us, they should not be allowed compensation when absent on matters of pleasure or individual profit.

“Esperanza,” Key West—Curious State of Affairs at Key West—The Way the Wrecking Business is Managed—Is There No Remedy?, N.Y. Herald, Oct. 14, 1844, at 1.

According to Esperanza, in Marvin's absence salvors and shippers were forced to resort to ad hoc arbitration,

where irresponsible individuals are made the medium by which a valuable cargo, may be so dwindled into nothingness, that when the expenses are settled, the original owner finds himself in debt. . . .

This you may deem a sorry picture of poor human nature; but yet you will readily see that human nature is not any better for living on an island, dieted on turtle soup, with a clergyman only preaching the gospel in the winter, and the Honorable Judge of the Court, absent at Saratoga.

Id. (paragraphing altered for improved readability).

In addition to his long absences, there was a perception outside Key West that Marvin favored wreckers. In a case involving the British ship Aurora (carrying 1,096 bales of cotton from New Orleans to Liverpool), however, Marvin made his impartiality clear.

See The Aurora, 2 F. Cas. 227 (Fla. Terr. Super. Ct. 1840) (No. 659).

When the Aurora lodged on a reef near Indian Key with its rudder broken, wreckers arrived and persuaded the captain to unload 200 bales to their boat because of the shallowness of the water and the fact that the vessel was drawing 12 feet. The wreckers then brought the cotton to Key West, where they libeled the ship and cargo for salvage. Upon a careful consideration of the case, Marvin determined that had the wreckers not appeared, the ship's carpenter could have fixed the rudder, and with “good pilotage and in good weather,”

Trial in Admiralty, N.Y. Daily Express, Dec. 21, 1840, at 1.

Marvin further determined the wreckers had taken the cotton “for the purpose of giving an appearance of greater value to their services.”

Id.

A Key West-based reporter for the New York Courier and Enquirer newspaper subsequently wrote:

Whether this decision be correct or erroneous, it must satisfy people abroad of what we all know here, that Judge Marvin is not at all inclined to favor the wreckers, but is rather disposed to correct any improper practices which he may detect among this very necessary and useful class of people. This cause has long since rendered the Judge very unpopular among the wreckers.

Correspondence of the Courier and Enquirer, Wheeling Times & Advert. (VA), Dec. 24, 1840, at 2.

As Florida's March 1845 admission to the Union approached, Key West was becoming “more civilized,” no doubt in part because of an improvement in the administration of justice. In December 1844, a visitor commented on the changes:

Whoever supposes Key West to be a collection of rude huts inhabited by a roistering, drunken set of sailors, would be as much surprised at its neatly painted, comfortable houses, and groups of stalwart, orderly men, as many of my fellow-passengers were, who for the first time had set foot on its soil. The scenes about the wharves betokened the occupation of the islanders. There were ships, and brigs, and schooners in dilapidated condition. Some hove down with their keels out of water, with men clambering on their sides, and repairing the injuries caused by the rocks on which they had stranded; others were stripped of all their rigging and spars, having been condemned as unseaworthy. About these, lay the beautiful wrecking sloops, with their towering masts, spacious decks, and handsome cabins, like so many pleasure yachts, with their well-dressed crews . . . lounging about the wharf.

Key West, Buffalo Daily Courier & Economist, Nov. 22, 1844, at 1.

The visitor also noticed that

A reformation [has] been made among these hardy sons of the reef by some Cape Cod captains, whose lay missionaries [have] held nightly meetings on board their vessels. The spirit of temperance had also reached here and diffused its blessings, and not a few had foresworn the treacherous cup. In the town we saw many tropical trees, some of the gardens were tastefully arranged, and the whole presented a lively, pleasant appearance.

Id.

With Florida's statehood fast approaching, Marvin's tenure as a superior court judge was about to end. In March 1845, the authorities reorganized the state's courts under the plan that Marvin had essentially created under the St. Joseph Constitution. In most instances, the transfer from superior court (federal) to circuit court (state) went smoothly. As one newspaper noted in August 1845, “The courts as now organized, will administer the same laws, under the same forms, and be governed by the same rules as the late U.S. Courts.”

Tallahassee, August 1, 1845, Star of Fla. (Tallahassee), Aug. 1, 1845, at 3.

Home rule meant that Florida had assumed both jurisdiction and monetary responsibility over its criminal affairs. The superior courts, renamed circuit courts, functioned much as they had before statehood, except that they lacked federal jurisdiction.

On the transition from the territorial court system to the statehood court system, see Rogue’s Paradise, supra note 17, at 31–34; Local Courts, supra note 17, at 18–24; James M. Denham, From a Territorial to a State Judiciary: Florida's Antebellum Courts and Judges, 73 Fla. Hist. Q. 443, 451–52 (1995) [hereinafter Florida's Antebellum Courts].

A second factor dissuading Marvin from further service on the bench was the Florida Legislature's adoption of the “alternating system.” Under this system, Marvin would have been obligated to hear cases in the state's other circuits. To Marvin, the difficulties, dangers, and hardships of travel—where all the meeting places were reachable only by water—made the prospect of being a circuit judge quite unattractive.

The alternating system drew criticism from its inception and was repealed within two years. See Florida's Antebellum Courts, supra note 105, at 452–53.

Even if the alternating system had not been adopted, however, it is not difficult to believe that Marvin would have turned down the appointment. Within the Southern Circuit, Marvin would have been compelled to hold fall and spring terms in a sprawling area consisting of Benton (now Hernando), Dade (now Miami-Dade), Hillsborough, and Monroe Counties, an area of more than 1,500 miles that also required travel by water.

There was a final reason that the proffered appointment held no appeal: by this time, Marvin, after a short courtship, had decided to marry Harriet N. Foote of Cooperstown, New York. The marriage, although happy, was brief, as Harriet died in 1848, shortly after giving birth to a daughter named Harriet.

See Murphree & Taylor, supra note 1, at 151–52; Predecessor Courts, supra note 1, at 83; [No headline in original], N.Y. Evangelist, May 18, 1848, at 3 (reporting on Harriet's death).

Even as he rejected a seat on the state's new circuit court, Marvin understood that a federal court soon would be established in Key West and felt certain that he could secure appointment as its judge. While this proved true, Congress was slow to act. Florida's admission bill created one federal district court for the entire state, with its judge holding sessions at Key West, St. Augustine, and Tallahassee. More than a year passed before President James K. Polk named Isaac H. Bronson (who resided in St. Augustine) as its judge.

See Appointments by the President, N.Y. Daily Herald, Aug. 13, 1846, at 4.

This situation left Key West without adequate federal authority to adjudicate its still-growing salvage business.

Existing records indicate that in the breach, Marvin and “the former territorial judges continued to dispense federal justice.” Local Courts, supra note 17, at 21–22.