Notes on the Common Law in Florida
Compiled by Walter Kenaston.
See also a table of contents to Leslie A. Thompson's compilation, and the foreward by Guy Botts to his compilation for Volume III, F.S., 1941.
Common Law Adopted into Territory
Florida Statutes.
2.01 Common law and certain statutes declared in force.--The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
History.--s. 1, Nov. 6, 1829; RS 59; GS 59; RGS 71; CGL 87.
also
Florida Statutes
775.01 Common law of England.--The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject.
History.--s. 1, Nov. 6, 1829; s. 1, Feb. 10, 1832; RS 2369; GS 3194; RGS 5024; CGL 7126.
It is my contention that the English peoples did not need this act to give effect to the common law because they brought it with them as part of their heritage, which no government could lawfully refuse them. This, in fact, was expressed in the Declaration and Resolves of the First Continental Congress, October 14, 1774, specifically "resolve 6:"
Resolved, N.C.D. 6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
Rather, I believe this act imported the common law into the "State," being the government itself, for the benefit of those subject to the administrative government, as distinguished from the constitutional government.
The Act, from the Laws of the Territory of Florida, 1829 (page 8), adopting the English common law is as follows. The laws relating to crimes and misdemeanors, from the Laws of the Territory of Florida, 1832 (page 63) is quoted only in part (section 1) follows that. Marginal notes have not been reproduced.
[Laws of the Territory of Florida, 1829, page 8]
AN ACT
Providing for the adoption of the Common and Statute Laws of England, and for repealing certain laws and ordinances.
Be it enacted by the Governor and Legislative Council of the Territory of Florida, That the common and statute laws of England, which are of a general and not of a local nature, with the exception hereinafter mentioned down to the fourth day of July, one thousand seven hundred and seventy-six, be, and the same are hereby declared to be of force in this Territory: Provided, The said statutes and common law be not inconsistent with the constitution and laws of the United States, and the acts of the Legislative Council of this Territory; And provided also, That none of the British statutes respecting crimes and misdemeanors, shall be in force in this Territory, except statutes declaratory of and in aid of the common law; nor shall any person be punished by the said common law, when there is an existing provision by the statutes of this Territory on the subject; but when there exists no such provision by statute of the Territory, then the several courts of this Territory shall proceed to punish such offence by fine and imprisonment : Provided, That in no case, the fine shall exceed five hundred dollars, or the imprisonment, twelve months.
Sec. 2. Be it further enacted, That all the laws and ordinances in force in this Territory to the twenty-second day of July, one thousand eight hundred and twenty-two, be and the same are hereby repealed: Provided nevertheless, That all causes of action arising under, and founded on, any of said laws and ordinances, shall be judicially determined according to the principles and rules of said laws and ordinances, any thing in this act to the contrary notwithstanding.
Sec. 3. Be it further enacted, That all proceedings which have, heretofore, been had, and done in the different courts of this Territory in accordance with the provisions of the foregoing sections of this act, be, and they are hereby declared to be good and valid.
Passed, 6th November, 1829.
A. BELLAMY.
President of the Legislative Council.
THOMAS MUNROE, Clerk.
Approved, 6th November, 1829.
WM. P. DUVAL.
Governor of the Territory of Florida.
[Laws of the Territory of Florida, 1832, page 63, partial]
No. 55. An ACT relating to Crimes and Misdemeanors.
Sec. 1. Be it enacted by the Governor and Legislative Council of the Territory of Florida, That the Common Law of England, in relation to Crimes and Misdemeanors, except so far as the same relates to the modes and degrees of punishment, be and the same is hereby adopted and declared to be in full force in this Territory.
[The intervening 77 sections defining crimes and misdemeanors and their punishments are omitted here.]
Sec. 79. Be it further enacted, That an act relating to Crimes and Misdemeanors, passed 14th November 1828, be and the same is hereby repealed: Provided however, That all offences heretofore committed against the provisions of that act, shall be prosecuted and punished, as if the same were in full force and effect.
Sec. 80. And be it further enacted, That an act to amend an act relating to Crimes and Misdemeanors, passed 17th November, 1829, be and the same is hereby repealed.
Passed Feb. 6, 1832.
APPROVED Feb. 10, 1832
Common Law Compiled, Published
On December 27, 1845, an act was approved to compile which statute laws of England were made a part of our law by virtue of the Act of November 6, 1829. The Governor commissioned Leslie A. Thompson, Esquire, to make this compilation, and, according to page 3 and 4 of the foreword to Volume III of the Compiled Statutes of 1941, Helpful and Useful Matter, copyright 1946, though Judge Thompson completed the assignment, for reasons lost in the obscurity of the past, his finished work was never officially approved by the Governor or published. Judge Thompson's compilation is considered a magnificent work entitled to verity. See the foreword to Volume III of the Compiled Statutes of 1941, Helpful and Useful Matter, pages 3 through 79, British Statutes in Force in the State of Florida. [This volume may be hard to find. It is referenced in a few places, a Florida Law Review article dated 04 Mar 1996, for example.] The 1946 publication omitted various British Satutes as superseded by Florida Statutes - this is only possible if considering their effect within the government itself (the _S_tate) because a (Florida) statute could not supersede a heritage of law of the people of Florida (the _s_tate).
There is a reference to "Thompson's Compilation British Statutes" in Gilmer vs. Bird, 15 Fla. 410, at 422 (June, 1875), evidencing a published compilation not long after Leslie Thompson undertook his effort.
These statutes are noted in Florida Statutes Annotated by West's Publishing Company in Chapter 2. According to the leading note of FSA, Chapter 2, a compilation was printed in 1931 in pamphlet form by the Attorney General, Fred H. Davis, for distribution to members of the Florida Bar.
Also Chapter 17391, Laws of Florida, 1935, directed certain members of the Bar of the State of Florida to "compile, collect, edit, annotate, cite, and arrange" the Statute Laws of England of force within the State of Florida. I do not know what came of this other than to speculate the fruits of this effort became the material published on pages 5 through 79 of Volume III of the 1941 Florida Statutes, titled "BRITISH STATUTES IN FORCE IN THE STATE OF FLORIDA," mentioned above.
So it appears that this compilation of the common law for Florida was published two times in full and once more partially, though none are available to the general public.
Rules of Court
Comments on Common Law
From the Encyclopedic Digest of Florida Reports, Vol. 4, Part 1 (1961):
Source.--American courts do not look solely to English cases to determine what the common law is. Coleman v. Davis, (Fla. App. 1st Dist.), 120 So. (2d) 56.
Words "common law of England" as used in statute adopting "common law of England" as it existed July 4, 1776 refer not only to the common law as declared by English courts but also to the common law as declared by courts of the American states. Id.
Common Law Rules Only Applicable to Civil Actions.--The common-law rules apply only to civil actions and do not affect the separate statutory framework which governs criminal procedure. Farrior v. State, (Fla.), 76 So. (2d) 148; Long v. State, (Fla.), 96 So. (2d) 897.
English Statutes are in force in Florida - contrary to those who say the common law is unwritten; whatever one wants to call them, these statutes are in force in Florida
Florida is a common-law State, in view of provisions of this section [FS § 2.01] adopting consistent and general English common and statutory law down to July 4, 1776. Henderson v. U.S., Ct. Cl. 18 F.Supp. 404 (1937); State ex rel. Williams v. Coleman, 131 Fla. 892, 180 So. 357 (1938). (FSA 2.01, nt. 1.)
The Common law of England and the statutes in aid thereof, down to the 4th year of James 1., were adopted by the Legislature of Florida on the second day of September, 1822. (Laws of 1822, p. 53.) Again, the common and statute laws of England were enacted by the Legislature June 29, 1823, [(]Laws of 1823, p. 11). Hart v. Bostwick, 14 Fla. 162 (1872). (FSA 2.01 nt. 1.)
Florida adopted the common law of England. Mitchell v. St. Maxent, 71 U. S. 237, 243, 18 L. Ed. 326.
In 1829. Waller v. First Savings, etc., Co., 103 Fla. 1025, 138 So. 780; Dixon Crucible Co. v. Paul, 167 F. 784.
And It Prevails when Not Inconsistent with Statutory or Constitutional Provisions.
Other Common References
Black's 3rd:
GIVE COLOR. To admit an apparent or colorable right in the opposite party. Under the ancient system a plea of confession and avoidance must give color to the affirmative averments of the complaint, or it would be fatally defective. The "giving color" was simply the absence of any denials, and the express or silent admission that the declaration, as far as it went, told the truth. Smith v. Marley, 39 Idaho, 779, 230 P. 769, 770. See Color.
GOING TO THE COUNTRY. When a party, under the common-law system of pleading, finished his pleading by the words "and of this he puts himself upon the country," this was called "going to the country." It was the essential termination of a pleading which took issue upon a material fact in the preceding pleading. Wharton.