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The common law of England, so far as applicable and of a general nature, is in full force in Illinois until repealed by legislative authority.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.

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