Common Law Points and Why We Have Due Process

Dear

Stetson College of Law Professor Jane T. Bradford,

Florida State Representative Ed Hooper, and

Florida State Senator Dennis Jones:

I noticed in Florida Statutes (1999), Title I. Chapter 2, at ' 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. l, Nov. 6, 1829; RS 59; GS 59; RGS 71; CGL 87."

The English peoples in America prior to 1776 did not need such a statute.
They inherited English statutory and common law upon arrival or birth in the
English colonies. No government there could lawfully refuse them the
protection of English statutory and common law. The Declaration and Resolves
<http://www.yale.edu/lawweb/avalon/resolves.htm> of the First Continental
Congress, October 14, 1774, specifically expressed this in "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.

Note the Act, from the Laws of the Territory of Florida, 1829 (page 8),
which adopts the English common law:

[Laws of the Territory of Florida, 1829, page 8]

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

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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.

The Laws of the Territory of Florida, 1832 (Section 1, page 63) regarding
Crimes and Misdemeanors, in part:

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.]

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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

On December 27, 1845, an act was approved to compile which statute laws of
England were made a part of Florida 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
<http://home.earthlink.net/%7Ewalterk1/Patr/CL/CLawFore.html> 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
<http://home.earthlink.net/%7Ewalterk1/Patr/CL/CLawFore.html> 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 Statutes superseded by Florida Statutes.

Can a Florida statute actually supersede a heritage of law of the people of

Florida, and if so, can it lawfully affect the People?

Gilmer vs. Bird, 15 Fla. 410, at 422 (June, 1875) refers to "Thompson's
Compilation British Statutes."

Do you have access to the above compilation by Leslie Thompson?

Florida Statutes Annotated by West's Publishing Company notes the existence

of these statutes 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.

Do you have access to the above compilation by Fred Davis?

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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.

Do you have access to the above compilation of English statute laws in

Florida by the Florida Bar?

According to Coleman v. Davis, (Fla. App. 1st Dist.), 120 So. (2d) 56, the
Encyclopedic Digest of Florida Reports, Vol. 4, Part 1 (1961) provides that
the words "common law of England" in the statute adopting "common law of
England" as it existed July 4, 1776 refer BOTH to the common law as declared
by English courts AND to the common law as declared by courts of the
American states.

Farrior v. State, (Fla.), 76 So. (2d) 148; Long v. State, (Fla.), 96 So.
(2d) 897 provides that the common-law rules apply only to civil actions and
do not affect the separate statutory framework which governs criminal
procedure.

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.) provide that
FS § 2.01 adopts consistent and general English common and statutory law
down to July 4, 1776.

Hart v. Bostwick, 14 Fla. 162 (1872). (FSA 2.01 nt. 1.) provides that the
Florida Legislature thus adopted the Common law of England and the statutes
in aid thereof, down to the 4th year of James I, on the second day of
September, 1822. (Laws of 1822, p. 53.), and the legislature enacted the
statute laws of England on June 29, 1823, [(]Laws of 1823, p. 11).

Mitchell v. St. Maxent, 71 U. S. 237, 243, 18 L. Ed. 326; Waller v. First

Savings, etc., Co., 103 Fla. 1025, 138 So. 780; and Dixon Crucible Co. v.
Paul, 167 F. 784 provide that Florida adopted the common law of England.

Does this mean that the Common and statutory law of England as of 4 July
1776 apply in Florida except where inconsistent with the Florida or USA
Constitutions, Florida or USA Statutes, and Florida or USA court rulings
(common law)?

If we (the People) cannot access the common and statutory laws of England as
of 4 July 1776 (because the People cannot find published compilations of
those laws, then HOW CAN WE OBTAIN REMEDY FROM THOSE laws?

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I make the point here that the people must have the ability to KNOW the law
in order to obtain remedy from it or to avoid violating it. If we (the
People) cannot find it, does that not indicate an intentional deceit by the
Government of Florida, an effort to hide those laws from us (the People)?

Who stands behind such a suppression of knowledge? Who has taken those laws
out of publication and denied broad public access to them?

I further make the point that the public should not have to trapse down to a
law library to search for such documents, only to discover they don’t exist.
In fact we should have instantaneous on-line access to them, and they should
exist in every public or college library of every kind in the state.

Professor, do you remember the “Posted No Trepassing” placed prominently at

places of possible entry to private property? What legal right do such
signs give the landowner or resident? What if the owner posted the sign in
8-point type at the top of a 50-foot vertical pole 100 feet inside the
property so that nobody could read it? What if the town in the olden days
posted its important ordinances on such a pole in the town center? Would
they have effect? And what about the rights guaranteed by such ordinances?
How would the people know they had such rights?

How can the people lay hands and eyes upon the common and statutory laws of
England that have effect in Florida today?

Why We Have Due Process

Darren sent this:

PROPRIETORS OF CHARLES RIVER BRIDGE v. PROPRIETORS OF, 36 U.S. 420

(1837)

36 U.S. 420 (Pet.)

The Proprietors of the CHARLES RIVER BRIDGE, Plaintiffs in error,

v.
The Proprietors of the WARREN BRIDGE and others.

January Term, 1837[ Proprietors of Charles River Bridge v. Proprietors of 36

US 420 (1837) ]

Corporations are also of all grades, and made for varied objects; all
governments are corporations, created by usage and common consent, or grants
and charters which create a body politic for prescribed purposes; but

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whether they are private, local or general, in their objects, for the
enjoyment of [582-Continued.] property, or the exercise of power, they are
all governed by the same rules of law, as to the construction and the
obligation of the instrument by which the incorporation is made.

One universal rule of law protects persons and property. It is a fundamental

principle of the common law of England, that the term freemen of the
kingdom, includes 'all persons,' ecclesiastical and temporal, incorporate,
politique or natural; it is a part of their magna charta (2 Inst. 4), and is
incorporated into our institutions. The persons of the members of
corporations are on the same footing of protection as other persons, and
their corporate property secured by the same laws which protect that of
individuals. 2 Inst. 46-7. 'No man shall be taken,' 'no man shall be
disseised,' without due process of law, is a principle taken from magna
charta, infused into all our state constitutions, and is made inviolable by
the federal government, by the amendments to the constitution.