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The Court of Common Pleas of East Florida 1763-1783

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_full_journalsubtitle: Revue d’Histoire du Droit – The Legal History Review _full_abbrevjournaltitle: LEGA _full_ppubnumber: ISSN 0040-7585 (print version) _full_epubnumber: ISSN 1571-8190 (online version) _full_issue: 3-4 _full_issuetitle: 0 _full_alt_author_running_head (change var. to _alt_author_rh): 0 _full_alt_articletitle_running_head (change var. to _alt_arttitle_rh): 0 _full_alt_articletitle_toc: 0 _full_is_advance_article: 0 540 Tijdschrift voor rechtsgeschiedenis 85 (2017) 540-576 Mirow Revue d’Histoire du Droit 85 (2017) 540-576 The Legal History review 85 (2017) 540-576 brill.com/lega The Court of Common Pleas of East Florida 1763-1783 M.C. Mirow Florida International University College of Law, Miami, Florida, USA [email protected] Summary Legal historians have surmised that court records of the British province of East Florida (1763-1783) have been either lost or destroyed. This assumption was based on the poor conditions for survival of documents in Florida and statements made in the secondary literature on the province. Nonetheless, a significant number of documents related to the courts of British East Florida exist in the National Archives (Kew). These materials reveal an active legal culture using English law in a wide range of courts including (1) the Court of Common Pleas; (2) the Court of Chancery; (3) the Court of General Sessions of the Peace, Oyer et Terminer, Assize and General Gaol Delivery; (4) Special Courts of Oyer et Terminer; (5) the Court of Vice-Admiralty; (6) the Court of Ordinary; (7) the General Court; and (8) a District Court. This article studies a portion of the documents related to the Court of Common Pleas to describe the nature of the court’s practice in civil litigation. It closely examines three cases for which sufficient extant pleadings permit the reconstruction of the gen- eral contours of recovery for breach of a sales contract through an action of trespass on the case, for contract enforcement through an action of covenant, and for recovery of a sum certain through an action of debt. The small window provided by these cases into the activities of this court reveals a heretofore unknown world of English common law in North America during and after the American Declaration of Independence. This new information supplements and challenges our established understanding of colo- * I thank the University of Edinburgh, Edinburgh Law School, and John Cairns for their hospital- ity during my recent stay there as a MacCormick Fellow. This article is a revised version of the MacCormick seminar delivered 10 May 2016 entitled ‘Florida’s Forgotten British Legal Past’. I thank Robert Jarvis for discussing the British courts of East Florida with me and for his en- couragement. I appreciate the thoughtful suggestions of Sir John Baker, James Cusick, David Ibbetson, William Nelson and Frank Sicius at earlier stages of this research. © koninklijke brill nv, leiden,Tijdschrift 2017 | doi voor10.1163/15718190-08534P06 rechtsgeschiedenisDownloaded from 85 Brill.com09/24/2021 (2017) 540-576 10:16:15PM via free access _full_journalsubtitle: Revue d’Histoire du Droit – The Legal History Review _full_abbrevjournaltitle: LEGA _full_ppubnumber: ISSN 0040-7585 (print version) _full_epubnumber: ISSN 1571-8190 (online version) _full_issue: 3-4 _full_issuetitle: 0 _full_alt_author_running_head (change var. to _alt_author_rh): 0 _full_alt_articletitle_running_head (change var. to _alt_arttitle_rh): 0 _full_alt_articletitle_toc: 0 _full_is_advance_article: 0 The Court Of Common Pleas Of East Florida 1763-1783 541 nial law in North America in the revolutionary period and the use of law in the British Empire. This study illustrates the many opportunities these sources offer to legal histo- rians of the period. Keywords East Florida – British Empire – Common Pleas – civil actions – trespass on the case – assumpsit – covenant – debt 1 Introduction The Court of Common Pleas of East Florida was an English common law court active from the 1760s until the mid-1780s in the British province of East Florida. This article analyses heretofore unknown documents from this court recently uncovered in the National Archives (Kew). After providing background on the province of East Florida and some general aspects of the Court of Common Pleas, this article turns to several sets of extant documents related to individu- al cases from the early 1780s to explore the nature of the court’s practice, the personnel related to the court, and its procedure in civil litigation. This small window into the activities of this court reveals a heretofore unknown world of English common law in North America during and after the American Declara- tion of Independence. East Florida was a British province from 1763 to 1784. The nature and opera- tion of East Florida’s courts and legal culture have eluded historians of the North American colonial experience, American colonial legal historians, and British legal historians. The extant secondary literature on these courts is lim- ited to descriptions of their place in the British government and their person- nel1. In 1943, Mowat, a political and institutional historian of the province, speculated that ‘Local records, such as court records, for the period are lacking, unless they should turn up in the papers of the paymaster general’s office’2. The dearth of information on these courts resulted from the assumption that all records from these courts were lost or destroyed3. Nonetheless, earlier investi- 1 R. Jarvis, The British Courts, in: Florida’s other courts: unconventional justice in the Sunshine State, ed. R. Jarvis, Gainesville (forthcoming). 2 C.L. Mowat, East Florida as a British Province 1763-1784, Berkeley 1943, p. 213. 3 Jarvis; British Courts (supra, n. 1); C.A. Vallandingham, Tracking down legal sources on prestate- Tijdschrift voor rechtsgeschiedenis 85 (2017) 540-576 Downloaded from Brill.com09/24/2021 10:16:15PM via free access 542 Mirow gations were limited almost entirely to the records of the Colonial Office, the most logical place for legal records of East Florida to have been deposited4. Not all legal records from British East Florida were lost or destroyed. For example, because some legal records related to property claims by East Florida loyalists who sought to obtain compensation from the British Crown after it transferred the province to Spain, loyalists’ claims and assorted papers related to the courts of East Florida were eventually held by the Treasury5. Many of the court records were most likely retained because they related to the ownership of property and assets held by loyalists. They were not organized or catalogued in detail before storage. A search of records held in the National Archives (Kew) under ‘Records created or inherited by HM Treasury’ has revealed docu- ments related to at least eight distinct functioning courts in East Florida during the British period. These include (1) the Court of Common Pleas; (2) the Court of Chancery; (3) the Court of General Sessions of the Peace, Oyer et Terminer, Assize and General Gaol Delivery; (4) Special Courts of Oyer et Terminer; (5) the Court of Vice-Admiralty; (6) the Court of Ordinary; (7) the General Court; and (8) a District Court6. This article addresses only selected aspects of the Court of Common Pleas. This court and the other courts listed here await more systematic study. Documents from the Court of Common Pleas of East Florida reveal a hith- erto unknown world of British colonial legal practice and legality. They chron- icle the way East Florida became British after a peaceful transition from Spain in 1763. They provide an indication of the legal world of a fourteenth, and loyal, hood Florida, in: Prestatehood legal materials: a fifty-state research guide, Volume 1: A–M, eds. M. Chiorazzi and M. Most, New York 2005, p. 253-254, 259. 4 Mowat, East Florida (supra, n. 2), p. 213-214. 5 The files of these claims from the Audit Office Papers and Colonial Office Papers have been used as the basis of a fine study of loyalists in East Florida; W.H. Siebert, Loyalists in East Florida 1774 to 1785: the most important documents pertaining thereto edited with an accompanying narrative, Deland 1929, Volume 1 and 2. 6 See, e.g. Fraser and Richardson v. Graham, Capias Writ, 25 July 1773, T77/23, f. 177-177v (‘Court of Common Pleas’); Petition of Mr. William Grindrod for Letters of Guardianship of the Person and Estate of Elizabeth Williams a Minor, 3 August 1780, T77/26, f. 154v–155 (‘Court of Chancery’); The King v. Joseph Couch, Death Warrant, 7 January 1783, T77/23 f. 560v (‘General Court of Sessions of the Peace, Oyer et Terminer, Assize, and General Gaol Delivery’); The King v. Edward Harrington, Subpoena, 29 January 1783, T77/23, f. 506-506v (‘Special Court of Oyer et Terminer’); Polacre St. Fulcran, Oath of Prize Master, 17 March 1779, T77/23, f. 500v (‘Court of Vice-Admiralty’); Estate of Henry Hares, Citation to Creditors, 25 September 1778, T77/25 f. 722v (‘Court of Ordinary’); Clark v. McIntosh, Bail Piece, 27 September 1783, T77/25, f. 800v (‘General Court’); Allison v. Welsh, Oath of Plaintiff, 7 February 1784, T77/23 f. 1042v (‘District Court’). (All manuscripts identified CO or T are from the National Archives (Kew)). Tijdschrift voor rechtsgeschiedenisDownloaded from 85 Brill.com09/24/2021 (2017) 540-576 10:16:15PM via free access The Court Of Common Pleas Of East Florida 1763-1783 543 colony along the North American Atlantic that responded quite differently from it rebelling northern neighbors to prevalent winds of independence. In- deed, legal business increased dramatically in East Florida’s provincial capital, St. Augustine, as loyalist refugees from South Carolina and Georgia sought safe haven in what was expected to be a permanent British stronghold far beyond the 1780s. They brought families, slaves, claims for land in East Florida, and le- gal disputes with them. They swelled the population from approximately 3,000 inhabitants, excluding troops and indigenous people, in 1771 to 21,000 inhabit- ants at the time of their orderly departure from the province when it was trans- ferred to Spain in 17837.
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