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3 U. Fla. L. Rev. 303 (1950)
Extent to Which the English Common Law and Statutes are in Effect

handle is hein.journals/uflr3 and id is 307 raw text is: EXTENT TO WHICH THE ENGLISH COMMON LAW AND STATUTES ARE IN EFFECT JAMES W. DAY Section 2.01 of Florida Statutes 1949, which was enacted on Novem- ber 6, 1829,1 reads as follows: 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 fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and com- mon law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state. Various meanings are attached to the term common law, and often the sense in which it is employed in a particular instance is de- terminable only from the context in which it stands. It is sometimes used in American decisions and elsewhere as including English statutes that modify the English common law. Thus American statutes that adopt the English common law without mention of English statutes are construed in some jurisdictions as adopting also those statutes in force in England on the date as of which the common law was adopted by the jurisdiction in question.2 Since, however, the Florida statute ex- pressly adopts both the English common law and the English statutes as they existed on July 4, 1776, it is evident that the Legislature of Florida is here using the term common law as it was employed by Blackstone,3 namely, as consisting of the lex non scripta or that portion of the law that derives its force from custom and immemorial usage and not from statutory enactment. Cases in which the decisions are based on custom and usage are evidence of that custom and usage and constitute the chief repository of the common or non-statutory law. In American jurisdictions that have adopted the English common law as it existed on a specified date, the English cases prior to that date are usually accepted as conclusive evidence of what the common law 1Fla. Terr. Acts 1829, p. 8. 2E.g., Masury & Son v. Bisbee Lumber Co., 49 Ariz. 443, 68 P.2d 679 (1937); see Browning v. Browning's Estate, 3 N.M. 371, 886, 9 Pac. 677, 684 (1886). But cf., e.g., Boardman v. Catlett, 21 Miss. 149 (1849); Farmers' and Merchants' Ins. Co. v. Jensen, 58 Neb. 522, 78 N.W. 1054 (1899). 31 BL. COMMI. *63. (803)

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