Common Law in Illinois

Here is a Power Point pre­sen­ta­tion I used when I spoke at the Illi­nois Lib­er­tar­ian Party Con­ven­tion in 2006. My speech focused on the Com­mon Law, and how it is still oper­a­tive in Illi­nois. Offi­cials often por­tray indi­vid­u­als who invoke the Com­mon Law as being fringe, patriot or mili­tia rad­i­cals; and there is much con­fu­sion and mis­un­der­stand­ing of what the Com­mon Law is. The Com­mon Law embod­ies long-held judi­cial deci­sions dat­ing back hun­dreds of years. It stands in dis­tinc­tion to statu­tory law, which is man-made law and often mala pro­hibita in nature. The appli­ca­tion of statutes in rela­tion to the Com­mon Law is to mod­ify, amend, or address short­com­ings in the Com­mon Law to address the appli­ca­tion of the Com­mon Law to modern-day issues where the Com­mon Law had not pre­vi­ously been applied. The notes below I gleaned from the Cor­pus Juris Secun­dum which is the author­i­ta­tive Legal Ency­clo­pe­dia used by legal pro­fes­sion­als and jurists. I have also included an addi­tional analy­sis of the City of St. Louis, Mis­souri Earn­ings Tax, which imposes a 1% tax upon the “wages” of “tax­pay­ers” work­ing within the cor­po­rate lim­its of the City of St. Louis, Mis­souri. I attempt to clar­ify and illus­trate the chi­canery and con­fu­sion used in the word­ing of the City Code which attempts to impose a tax upon work­ing peo­ple. You will need the abil­ity to view Microsoft Pow­er­Point slide shows to view the pre­sen­ta­tion.
Click here to view the Slide Show Presentation.

Com­mon Law in Illi­nois
Cor­pus Juris Secun­dum on the Com­mon Law § § 11 et seq.

The com­mon law of Eng­land, so far as applic­a­ble and of a gen­eral nature, is in full force in Illi­nois until repealed by leg­isla­tive author­ity.
There is no national com­mon law oper­a­tive as such through­out the United States, and the adop­tion and appli­ca­tion of the com­mon law were mat­ters left to the sev­eral states for determination.

Under the Act of March 5, 1874, which is still in effect, the Gen­eral Assem­bly pro­vided: “The com­mon law of Eng­land, so far as the same is applic­a­ble and of a gen­eral nature, and all statutes or acts of the British par­lia­ment made in aid of, and to sup­ply the defects of the com­mon law, prior to the fourth year of James the First, except­ing the sec­ond sec­tion of the sixth chap­ter of 43d Eliz­a­beth, the eighth chap­ter of 13th Eliz­a­beth, and ninth chap­ter of 37th Henry Eighth, and which are of a gen­eral nature and not local to that king­dom, shall be the rule of deci­sion, and shall be con­sid­ered as of full force until repealed by leg­isla­tive author­ity.” The fourth year of James the First began March 24, 1606.

This statute, with­out the excep­tions, was passed by the gen­eral con­ven­tion of the Colony of Vir­ginia, May, 1776, and in its present form was car­ried into the leg­is­la­ture of the Indi­ana Ter­ri­tory by the Act of Sep­tem­ber 7, 1807, was in force in the ter­ri­tory of Illi­nois and was reen­acted by the first state leg­is­la­ture by Act of Feb­ru­ary 4, 1819, and has been retained in the same form in suc­ceed­ing revi­sions. The statute is declara­tory of what was the law by which the inhab­i­tants of the ter­ri­tory now con­sti­tut­ing the State of Illi­nois were gov­erned, and of the rights, priv­i­leges, and immu­ni­ties to which they were enti­tled ever since Anglo-Saxon civ­i­liza­tion first obtained a foothold in it.

The leg­is­la­ture fixed the fourth year of James the First, instead of the date of the Dec­la­ra­tion of Inde­pen­dence, or of the for­ma­tion of our Con­sti­tu­tion, as the period for trans­plant­ing the com­mon law of Eng­land because that was the period at which the first ter­ri­to­r­ial gov­ern­ment was estab­lished in Amer­ica, and with it the com­mon law of Eng­land as it then existed.

As a result of the Act, the great body of the Eng­lish com­mon law became, so far as applic­a­ble, in force in this state, and remains in force except so far as it has been mod­i­fied or repealed by statute, or changed or mod­i­fied by cus­tom as found in deci­sions of our courts. The com­mon law, when applic­a­ble, is as much a part of the law of the state, where it has not been expressly abro­gated by statute, as the statutes them­selves. In other words, Illi­nois is a com­mon law state.
On the other hand, it has long been set­tled that the adop­tion has extended only to cases where the com­mon law is applic­a­ble to the habits and con­di­tion of our soci­ety and in har­mony with the genius, spirit, and objects of our insti­tu­tions. The statute adopt­ing the com­mon law of Eng­land does not require the courts to enforce the local cus­toms of Eng­land, but, on the con­trary, they are excluded.

What the statute adopted was not just those doc­trines which hap­pened to have already been announced by Eng­lish courts at the close of the Mid­dle Ages, but rather a sys­tem of law whose out­stand­ing char­ac­ter­is­tics are its adapt­abil­ity and capac­ity for growth. The Supreme Court pointed out in the very early case of Penny v. Lit­tle, which was quoted in Amann v. Faidy, “That if we are to be restricted to the com­mon law, as it was enacted at fourth James, reject­ing all mod­i­fi­ca­tions and improve­ments which have since been made, by prac­tice and statutes, except our own statutes, we will find that sys­tem entirely inap­plic­a­ble to our present con­di­tion, for the sim­ple rea­son that it is more than two hun­dred years behind the age.”

Adop­tion of Eng­lish statutes. The Act of March 5, 1874, which is still in effect, adopted not only the com­mon law of Eng­land, but also all statutes in aid thereof or to sup­ply defects therein passed prior to the fourth year of James the First, except the sec­ond sec­tion of the sixth chap­ter of 43 Eliz­a­beth, the eighth chap­ter of 13th Eliz­a­beth, and ninth chap­ter of 37th Henry the Eighth, which were of a gen­eral nature and not local to that king­dom.
Eng­lish statutes are not in force in Illi­nois which were passed since the fourth year of James the First, or which are inap­plic­a­ble to our con­di­tions and incon­sis­tent with our institutions.

Cor­pus Juris Secun­dum on the Com­mon Law § § 14, 15

Var­i­ous max­ims and prin­ci­ples of the com­mon law which are of gen­eral appli­ca­tion and are suited to the con­di­tions and sur­round­ings of our state have been adopted and are in force to the extent that they have not been super­seded by statu­tory enactment.

Thus, the courts have applied the doc­trine of Mobilia sequ­un­tur per­sonam and the maxim De min­imis non curat lex.
In addi­tion, other max­ims and prin­ci­ples have been applied, such as igno­rance of the law excuses no one, and every­one of sound and pure mind is bound at his peril to take knowl­edge of both the com­mon and statute law; the law only favors the vig­i­lant; the law abhors for­fei­tures and will show them no mercy or favor; per­sons must so use their own prop­erty and so exer­cise their own priv­i­leges that they do not thereby destroy or peril the rights of oth­ers; the law does not per­mit a per­son to do indi­rectly what he can­not do directly; and the law does not require the per­for­mance of a use­less act.

Statutes

Rules for the con­struc­tion of statutes are not rules of law, but are only aids which courts use to ascer­tain the leg­isla­tive intent not clearly man­i­fest from the lan­guage of the statute.

The pur­pose of all rules or max­ims adopted by the courts for the con­struc­tion or inter­pre­ta­tion of statutes is to dis­cover the true intent and mean­ing of the law. These rules or max­ims are not rules of law, but are merely aids used by the courts in arriv­ing at the real inten­tion of the leg­is­la­ture when that inten­tion is not clearly man­i­fest from the lan­guage used.

These rules are use­ful only in cases of doubt, and are never to be used to cre­ate a doubt, but only to remove it.

Def­i­n­i­tions.

The Gen­eral Assem­bly has the power to make a rea­son­able def­i­n­i­tion of the terms used in an act, even though such def­i­n­i­tions do not cor­re­spond with those con­tained in other acts. Statu­tory def­i­n­i­tions con­trol in the con­struc­tion of the terms in an act, and the common-law def­i­n­i­tions of those terms must yield to the statu­tory definitions.

Words defined

The words in a statute may be defined by com­mon usage, by pre­vi­ous judi­cial con­struc­tion, as well as by statu­tory def­i­n­i­tion, to ren­der the statute certain.

§ 52. Con­struc­tion as includ­ing or bind­ing sovereign

Gen­eral leg­isla­tive enact­ments do not impair the rights of the sov­er­eign unless such an intent is expressly declared in the statute.
The rights of the sov­er­eign are never impaired by a gen­eral leg­isla­tive enact­ment unless such an intent is expressly declared in the statute, and the words of a statute apply­ing to pri­vate rights do not affect the rights of the state. The state is not bound by or included in any act of the Gen­eral Assem­bly unless expressly named or nec­es­sar­ily implied to give effect to the act, although the rule that gen­eral leg­isla­tive enact­ments are not applic­a­ble to the state is not vio­lated when the state is made sub­ject to the pro­vi­sions thereof by rea­son of the expressed inten­tion of the Gen­eral Assem­bly to make it sub­ject thereto.

In com­mon usage the word “per­son” does not include the sov­er­eign, and statutes employ­ing the word are gen­er­ally con­strued to exclude the sov­er­eign, although the pur­pose, sub­ject mat­ter, con­text, leg­isla­tive his­tory, and exec­u­tive inter­pre­ta­tion of a statute are aids to con­struc­tion which may indi­cate an intent, by the use of the term “per­son,” to bring the state or nation within the scope of the statute. Accord­ing to the Statute on Statutes, the words “per­son” or “per­sons,” as well as all words refer­ring to or import­ing per­sons, may extend and be applied to bod­ies politic and cor­po­rate as well as individuals.