University of Miami Law Review Volume 3 Number 2 Article 6 2-1-1949 Historical Background of Florida Law James Milton Carson Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation James Milton Carson, Historical Background of Florida Law, 3 U. Miami L. Rev. 254 (1949) Available at: https://repository.law.miami.edu/umlr/vol3/iss2/6 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. HISTORICAL BACKGROUND OF FLORIDA LAW* * JAMES MILTON CARSON ' I THE NATURE AND ORIGIN OF LAW All law must derive from the psychology of the people of each particular jurisdiction, and when we speak of the psychology of the people we mean the controlling, or "mass," or "mob" psychology of the people in any particular jurisdiction. Clarence Darrow in an.article in the American Mercury,1 went very deeply into the history of the influence of the masses of the people upon laws sought to be imposed from above, and demonstrated that even in countries whose governments are considered despotic or monarchical, the people them- selves must support the laws, or else they fall into disuse and are finally re- pealed. Since law must depend upon the psychology of the people in the particular jurisdiction, it becomes essential in trying to trace the development of law in a state such as Florida to consider the different influences which enter into the formation of the so-called "mob" psychology of the people. Of course, the psychology of any people cannot be understood without some analysis and discussion of their historical, cultural, and traditional background. One of the most important things to consider in connection with the history of Florida is that it was a state of very sparse population and great area. The earliest census of this state was taken when it was the Territory of Florida, in 1830, and the total population was fewer than 35,000. The development was comparatively slow until after 1880, but even after that date, the state did not pass the half-million mark in population until sometime between the state census of 1895 and the federal census of 1900.2 The 1945 state census gave Florida a population of two and a quarter million, and it is believed that the 1950 census will show a population of approximately three million. Of course, this great growth could not have happened without a very great deal of im- migration. *This article is adapted from the first part of Mr. Carson's new book, FLORIDA LAW OF THE FAMILY, MARRIAGE AND DIVORCE, to be published by The Harrison Company, Atlanta, in the near future. **Mr. Carson, a member of the Florida Bar, is the author of the widely known book, FLORIDA COMMON LAW PLEADING; he has also written for various legal periodicals, and formerly taught in the School of Law, University of Miami. 1. The Ordeal of Prohibition, 2 AMERICAN MERCURY 419 (Aug. 1924). 2. The constitution of Florida provides for state censuses to be taken every ten years ending in five. The first one was taken in 1885. The figures given here were taken from the official publication of The Seventh Census of the State of Florida, 1945, page 9. There are many other interesting studies with regard to the shift and change and growth of population in different sections of Florida to be found in this publication. 254 HISTORICAL BACKGROUND OF FLORIDA LAW After the Civil War a great many northern people came to Florida. Many people from the older states of the South who had lost everything they owned, helped make up a tide of immigration. Beginning again after the discovery by medical men of means of controlling yellow fever, malaria, smallpox and other epidemics of tropical diseases that had flourished in the territory which is now the state, from very early days, there began another tide of im- migration which is still in full swing. So that since 1900, the population of the state has multiplied more than four times. The effect on our laws has been greater than can be gathered by a study of numbers. One of the things that has made the state interesting as a field of law is that people coming in from other states, and even from other countries, have always brought their own ideas along. When they come to Florida they remind the people of this state what provisions of law other states have as to different subjects of human activity, but gradually they all become absorbed in the community (that is, they do if they remain here) ; so that, Florida, probably more sensitivelv than any of the other Southern states, responds to experimental ideas as to law brought in from other states by new- comers. Also, the fact that Florida has been so dependent upon new- comers for the settlement of its vast area has brought about in this state much legislation designed to attract them. We have, for example, a constitutional prohibition against any State Income Tax. We have also, a constitutional pro- vision against inheritance taxes, except in such amounts as one can get credit for from the Federal Government. We get a large share of revenue froni legal- ized gambling at race tracks. We have many forms of sales tax, but not under that name; for example, we get money to run the state and the counties from gasoline tax, from cigarette tax, from tax on liquor and other things which are designed not only to attract people from other states, but to have them contribute to some extent to the support of government. It may not be amiss to call attention to the fact that when he signed the 1935 Act 3 shortening the jurisdictional period of residence for the filing of a divorce, Governor Sholtz in a message to the legislature said that we were in- viting transients into the state in the hope that they would become perma- nent residents.4 All of these psychological factors make it necessary to study very carefully the historical background of the state. II FLORIDA HISTORY BEFORE 1821 Florida was purchased by the United States from Spain by a treaty of 3. Fla. Laws 1935, c. 16975, F.SA. § 65.02 (1935). 4. See Willock, Historical Revidew of the Divorce Laws of Florida (1943) (c. 65, F.S.A.). MIAMI LAW QUARTERLY I819,r but possession was not transferred until the so-called "change of flags" in 1821. The history of the state before the "change of flags" was a curious one. On account of its geographical location Florida was eagerly desired for centuries by the French, the Spanish, and the English. It was first tinder the French flag; then was tinder the Spanish flag from 1565 until 1763; the English flag from 1763 to 1783; and the Spanish again until 1821. The Spanish claimed as being Florida, a large part of the southeastern part of what is now the United States, but as a matter of a settled claim, until the Louisiana Purchase, Spanish Florida claimed all of the territory from the Atlantic Ocean to the Mississippi -River, as far north as Natchez, Mississippi." After the Louisiana Purchase, the United States occupied that part of West Florida which was west of the Perdido River and west of the Mississippi with the exception of the so-called Florida parishes in Louisiana. Those are the parishes east of the Mississippi in southern Louisiana. For administrative purposes the Spaniards had divided Florida into two parts, East Florida and West Florida, the capital of the former being at St. Augustine, and of the latter at Pensacola. Of course, all of the laws of Spain were in full force and effect during both the Spanish occupations. By treaty of 1763 the Floridas, that is East and West Florida, were trans- ferred to England. The two provinces of East Florida and West Florida re- mained tory during the Revolution and did not join with the original thirteen colonies. The geographical location of the territory had made it a bone of con- tention between the Spanish and the French and the English; and the English, having lost the mainland on the eastern coast of what is now the United States, were not so anxious to retain Florida as formerly. Thus, by the treaty of 1783 they transferred both Floridas back to Spain. There had been considerable colonization tinder the English. Many of our local place names came from titled Englishmen who came to Florida for the'purpose of helping nail down, by actual settlement, the claim of the crown of England to the two provinces. Also, tinder the English, many grants of land were made for colonizing purposes, the most notable among them being the "Turnbull Grant" at New Smyrna. 7 During the English occupation Florida was under English law. After the transfer back to Spain most of the English settlers left the state and Florida went back under Spanish law, and remained there until the "change of flags." The Honorable R. A. Gray, Florida Secretary of State, has called atten- tion in his text book on the government of Florida to the fact that very little 5. This treaty was negotiated by John Quincy Adams, Secretary of State under James Monroe, but there was much delay in its ratification. 6.