Category Archives: Featured

Disecting the Illinois Drivers License Law – in progress….

I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.

So, what does a driver’s license do? Well, by definition a license is permission to do something that is otherwise illegal.

http://legal-dictionary.thefreedictionary.com/license – The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile.  Let’s look at what a privilege is:

http://legal-dictionary.thefreedictionary.com/privilege – privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens.  It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.

 There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” to not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.

Here are a couple of examples:

Under former clause 5 of ¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors

The word “parties” in the Venue Act (see, now, ch. 110, ¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.

Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.

The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.

The word “company” in an act relating to the right to operate a street railway could not, under ¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.

The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.

A city was a “person” within Workmen’s Compensation Act, § 3 (ch. 48, ¶136, repealed), in view of ¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.

So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.

If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.

Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.

Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois

There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:

(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in this state shall be deemed to be a resident of Illinois

(a) Every human being who resides in Illinois shall be deemed to be a resident of this State.

(a) Every human being who resides in this state shall be deemed to be a resident of Illinois

As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.

We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.

(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
 Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.
(Source: Laws 1945, p. 1717.)

5 ILCS 70/1.14 – § 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.

1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ¶6 (see, now, ch. 111, ¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 § 70/1.14

There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.

AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State.
(Source: P.A. 81-840.)

We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:

ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust.
(Source: Laws 1959, p. 196.)

I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?

(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)

Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:

625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586

To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:

DIVISION 1. SYSTEMS OF HIGHWAYS
http://033ffdb.netsolhost.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)

 Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:

http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
     2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
     3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
     4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.

This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.

Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:

http://033ffdb.netsolhost.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)

I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.

I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.

(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
http://033ffdb.netsolhost.com/mark/ilcs/ilcs43c49.html?DocName=062500050HCh.+17&ActID=1815&ChapterID=49&SeqStart=153100000&SeqEnd=153300000
(625 ILCS 5/17-101) (from Ch. 95 1/2, par. 17-101)
Sec. 17-101. Powers and duties of governor. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State is empowered to contract and to do all other things necessary in behalf of this State to secure the full benefits available to this State under the Federal Highway Safety Act of 1966, as amended, and in so doing, to cooperate with Federal and State agencies, agencies private and public, interested organizations, and with individuals, to effectuate the purposes of that enactment, and any and all subsequent amendments thereto. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. To that end he shall coordinate the activities of the Secretary of State and the State Board of Education and of any and all departments and agencies of this State and its subdivisions, relating thereto.
(Source: P.A. 81-1508.)

 Let’s analyze this statute line-by-line.

1. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State – The duties and responsibilities of the Governor of Illinois are conferred only by the Constitution of Illinois. The laws do not confer duties and responsibilities. His office is a Constitutional office and the duties and responsibilities are found in the Constitution of Illinois. I would argue that this statute is unconstitutional. The question is, what, exactly, are the duties and responsibilities conferred upon the Governor by “the laws of this State”, which is a federal territory or federal municipal corporation under the jurisdiction imposed by the Federal Highway Safety Act of 1966.

2. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. – This wording is very suspect, as how did the Governor become the “official of this State”, and where to the responsibilities for dealing with the Federal Government arise in the Illinois Constitution? Since the Governor is a creature of the Constitution, and his duties and obligations are Constitutinal in-nature, let’s look to the Constitution for any “offical of this State” designation or responsibility to the Federal Government:

Illinois Constitution
Article 5, SECTION 8. GOVERNOR—SUPREME EXECUTIVE POWER
http://www.ilga.gov/commission/lru/Ilconstitution.pdf
The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
This is the first of several sections setting forth the powers of the Governor. This section states the powers that are most general. The Illinois Supreme Court has commented that this provision does not empower the Governor to establish new legal requirements by executive order or otherwise; as to persons not under his jurisdiction, he may only execute and enforce existing law.
The Governor does have control over agencies under him through his power to remove subordinates and his authority (recognized under Article 13, section 2) to establish ethical standards for agencies under him. – I see no obligation to the Federal Government imposed by the Illinois Constitution. I see no designation for “official of this State”, or any other such designation.

 What I think we have established, or have othewise made a very strong argument for or raised serious questions to, is the object and intent of the Drivers License laws, the proper jurisdiction involved, and whether this is a State law or Federal Law.

 As I said, this may have began with a proper exercise of the police power of the State in legislating for the health, safety, welfare, and morals of its Citizens, but has become something more invasive and encroaching. The issue is not whether we agree with the laws, or whether they serve any compelling state interest or protect public safety, it is by what authority do these laws exist? I’m going to go back to some of the earliest motor vehicle legislation and quote verbatim from that legislation, showing that in the beginning, the only objects of regulation were those using motor vehicles in the pursuit of a pecuniary benefit.

Smith’s Illinois Revised Statutes – 1921
Page 1720
MOTOR VEHICLES
AN ACT in relation to motor vehicles and to repeal a certain act therein named. [Approved June 30, 1919]
Page 1725
228. Chauffers – Regulations – License – Fees, etc.]
§27. An application for a license to operate motor vehicles as a chauffer, who is hereby defined to mean any person operating a

motor vehicle as a mechanic or employee, and who directly or indirectly receives pay or any compensation whatsoever
Page 1726
for any work or services in connection with the operation of a motor vehicle or the transportation of passengers or merchendise with a motor vehicle for hire or for pecuniary profit, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority….
(Last paragraph on left column of page)
No person shall operate or drive a motor vehicle as a chauffer upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section: Provided, however, that a non-resident chauffeur who has registered under the provisions of the law in force in the city, state, foreign country or province, territory or Federal district, of his residence, substantially equivalent to the provisions of this section shall be exempt from license hereunder, while temporarily sojouring within this State, only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence like privileges are granted to persons duly licensed and registered as chauffeurs under the laws of this State, and who are residents of this State.
230. Chauffeur or operator must be licensed.]
§29. No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.

Smith-Hurd
Illinois Revised Statutes
With cross references
1923
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1925
Essentially the save verbiage.

Cahill Illinois Revised Statutes
Keyed to Annotated Statutes
1927
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1929
Essentially the save verbiage.

Illinois Revised Statutes
With cross references
1925
State Bar Association Edition
Chap. 95 1/2 section 33 Page 2125
32b. Licenses of chauffeurs for 1938.]
§26b. All the provisions of law in force prior to the passage of this amendatory Act relating to the licensing and regulation of chauffeurs shall remain in full force and effect with respect to all chaiffeurs licensed for the year 1938. The provisions of this amendatory Act relating to the licensing and regulation of chauffeurs shall not apply to chauffeurs so licensed for the year 1938. Added by act filed July 12, 1938. L.1938, First Sp.Sess., p.39.
S.H.A. 95 1/2 Section 32b; J.A. 85.032(2).
33. Chauffeurs – License – Application – Examination – Fee – Age – Form of license-school bus and vehicle of common carrier- Record in office of Secretary of State-Non-resident chauffeurs-Renewal of licenses.]
§27. An application for a license to operate a motor vehicle as a chauffeur, who is hereby defined to mean any person whose principal occupation is that of operating a motor vehicle as a mechanic or employee, or who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with the operation of a motor vehicle for the transportation of passengers or merchendise for hire, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority. Provided, however, that no person shall be held to be a chauffeur, and subject to the provisions hereof, who operates a motor vehicle incidentally to some other and principal occupation and where such motor vehicle is so perated solely in furtherance of such other and principal occupation and is not used for the transportation of passengers or merchendise for hire; and, provided, further, that no person shall b eheld to be a chauffeur and subject to the provisions hereof who operates a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States or who operates a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway; and, provided, further, that any garage which repairs or services motor vehicles and operates a service car shall have at least one licensed chauffeur who insofar as it is possible, shall take care of all testing and outside service work.

Chap. 95 1/2 section 33 Page 2126
34a. License as chauffeur or operator required – Exemptions.]
§28a. On and after May 1, 1939 in the case of operators and on and after January 1, 1939 in the case of chauffeurs, no person except those herinafter expressly exempted, shall drive any motor vehicle upon a highway in this State, unless such person has a valid license as an operator or chauffeur under the provisions of this Act, an operator being hereby defined to mean any person, other than a chauffeur, who is in actual physical control of a motor vechicle upon a highway. Any person holding a valid chauffeur’s license hereunder need not procure an operator’s license. Provided, however, that the following persons are exempt from the requirements of this section:
1. Any person while operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States;
2. Any person while driving or operating a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway;
3. A non-resident of this State who is at least fifteen years of age and who has in his immediate possession a valid operator’s license issued to him in his home State or Country, may operate a motor vehicle in this State only as an operator;
4. A non-resident who is at least eighteen years of age and who has in his immediate possesion a valid chauffeur’s license issued to him in his State or Country may operate a motor vehicle in this State either as an operator or chauffeur except that any such person must be licensed as a chauffeur hereunder before accepting employment as a chauffeur from a resident of this State;
5. Any non-resident who is at least fifteen years of age, whose home State or Country does not require the licensing of operators, while operating a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if in the home State or Country of such non-resident.
The provisions of this section granting exemptions to non-residents shall be operative only when under the laws of this State, foreign country or province, territory or federal district of such non-resident, like exemptions and privileges are granted to licensed resident operators and chauffeurs of this State. Added by act filed July 12, 1938. L.1938, First Sp. Sess., p.39

This is where “Operators” came to be and to require licenses. This is the beginning of the “drivers license”.

Given the foregoing, let’s look at the current law and see just “who” is required to have a driver’s license:

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

Who, is exempt?

http://033ffdb.netsolhost.com/mark/ilcs/ilcs47662.html?DocName=062500050HCh.+6&ActID=1815&ChapterID=49&SeqStart=72100000&SeqEnd=90800000
(625 ILCS 5/6-102) (from Ch. 95 1/2, par. 6-102)
    Sec. 6-102. What persons are exempt. The following persons are exempt from the requirements of Section 6-101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
        1. Any employee of the United States Government or any member of the Armed Forces of the United States, while operating a motor vehicle owned by or leased to the United States Government and being operated on official business need not be licensed;
        2. A nonresident who has in his immediate possession a valid license issued to him in his home state or country may operate a motor vehicle for which he is licensed for the period during which he is in this State;
        3. A nonresident and his spouse and children living with him who is a student at a college or university in Illinois who have a valid license issued by their home State.
        4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.
        5. A resident of this State who has been serving as a member of the Armed Forces of the United States outside the Continental limits of the United States, for a period of 90 days following his return to the continental limits of the United States.
        6. A nonresident on active duty in the Armed Forces of the United States who has a valid license issued by his home state and such nonresident’s spouse, and dependent children and living with parents, who have a valid license issued by their home state.
        7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country. Upon expiration of such 90 day period, such new resident must comply with the provisions of this Act and apply for an Illinois license or permit.
        8. An engineer, conductor, brakeman, or any other member of the crew of a locomotive or train being operated upon rails, including operation on a railroad crossing over a public street, road or highway. Such person is not required to display a driver’s license to any law enforcement officer in connection with the operation of a locomotive or train within this State.
    The provisions of this Section granting exemption to any nonresident shall be operative to the same extent that the laws of the State or country of such nonresident grant like exemption to residents of this State.
    The Secretary of State may implement the exemption provisions of this Section by inclusion thereof in a reciprocity agreement, arrangement or declaration issued pursuant to this Act.
(Source: P.A. 96-607, eff. 8-24-09.)

The power to license rests with the legislature, and their exercise of the police power. I believe the State of Illinois exceeds its police power authority in the current drivers license laws because it does not serve to protect the citizens from a threat to the health, safety, welfare, or morals; and is equally violative of the equal protection clause of the 14th Amendment in excluding some from complying with the licensing requirements. There can be no exclusion for some where the compelling state interest does not differentiate between classes of individuals in carrying forth the provisions of the law. In the case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994), Mahony argued that the government could not be exempt from one ordinance and he be obligated to it. By those under number 1. above being exempt with no rational basis in driver competency, I believe it is violative of the equal protection clause and an invalid exercise of the police power when causing some to be licensed and not others. In-fact, it can be said that the state fails in exercising its police powers because people now can renew their licenses without having to take a competency road test or exam every time their license expires. Theoretically, driver competency can diminish over this time and the state, thereby, places drivers “legally” upon the road who pose an articulable danger to other drivers.

…..More to come……….

 

TABLE OF AUTHORITIES/DEFINITIONS/CASES CITED

Illinois Vehicle Code Definitions:

(625 ILCS 5/1-154.1) (from Ch. 95 1/2, par. 1-154.1)
Sec. 1-154.1. Operate. To ride in or on, other than as a passenger, use or control in any manner the operation of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-154.2) (from Ch. 95 1/2, par. 1-154.2)
Sec. 1-154.2. Operator. Every person who operates or is in actual physical control of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-115.8)
Sec. 1-115.8. Drive. To drive, operate, or be in physical control of a motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-116) (from Ch. 95 1/2, par. 1-116)
Sec. 1-116. Driver.
Every person who drives or is in actual physical control of a vehicle.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-209.5)
Sec. 1-209.5. Transportation. The actual movement of property or passengers by motor vehicle, together with loading, unloading, and any other accessorial or ancillary service provided by the carrier in connection with movement by motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133) (from Ch. 95 1/2, par. 1-133)
Sec. 1-133. Interstate or Interstate Commerce.
Transportation between 2 or more States or transportation originating in one State and passing into or through other States for delivery in another State, and which is not intrastate.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-133.05)
Sec. 1-133.05. Interstate carrier of property. Any person who is engaged in the transportation of property only by motor vehicle in whole or in part in interstate or foreign commerce in this State either with or without authority issued from the Interstate Commerce Commission.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133.1) (from Ch. 95 1/2, par. 1-133.1)
Sec. 1-133.1. Interstate highway. Any highway which is now, or shall hereafter be, a part of the national system of interstate and defense highways within this State.
(Source: P.A. 85-830.)

(625 ILCS 5/1-134) (from Ch. 95 1/2, par. 1-134)
Sec. 1-134. Intrastate or Intrastate Commerce.
Transportation originating at any point or place within this State and destined to any other point or place within this State, irrespective of the route, highway or highways traversed, and including transportation which passes into or through another State before delivery is made within this State, and including any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-145) (from Ch. 95 1/2, par. 1-145)
Sec. 1-145. Motor carrier.
An operator of For-Hire vehicles pursuant to the Illinois Motor Carrier of Property Law.

(625 ILCS 5/1-122.5) (from Ch. 95 1/2, par. 1-124)
Sec. 1-122.5. For-hire. The operation of a vehicle for compensation and subject to federal regulation by the Interstate Commerce Commission or to state regulation by the Illinois Commerce Commission and those vehicles governed by Chapters 8 and 9 under this Code and regulated by the Secretary of State.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-153) (from Ch. 95 1/2, par. 1-153)
Sec. 1-153. Not-For-Hire.
Operation of a commercial vehicle in furtherance of any commercial or industrial enterprise but not For-Hire.
(Source: P.A. 76-1586.)

(625 ILCS 5/8-101) (from Ch. 95 1/2, par. 8-101)
Sec. 8-101. Proof of financial responsibility – Persons who operate motor vehicles in transportation of passengers for hire.
(a) It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. – (Source: P.A. 76-1586.)

(625 ILCS 5/1-207) (from Ch. 95 1/2, par. 1-207)
Sec. 1-207. Traffic.
Pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-217) (from Ch. 95 1/2, par. 1-217)
Sec. 1-217. Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
For this Code, vehicles are divided into 2 divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.
(Source: P.A. 92-812, eff. 8-21-02.)

(625 ILCS 5/1-146) (from Ch. 95 1/2, par. 1-146)
Sec. 1-146. Motor vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.
(Source: P.A. 96-125, eff. 1-1-10.)

(625 ILCS 5/1-157) (from Ch. 95 1/2, par. 1-157)
Sec. 1-157. Passenger car.
A motor vehicle of the First Division including a multipurpose passenger vehicle, that is designed for carrying not more than 10 persons.
(Source: P.A. 78-343.)

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

(625 ILCS 5/6-112) (from Ch. 95 1/2, par. 6-112)
Sec. 6-112. License and Permits to be carried and exhibited on demand. Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.
For the purposes of this Section, “display” means the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof.
(Source: P.A. 76-1749.)

(625 ILCS 5/1-138) (from Ch. 95 1/2, par. 1-138)
Sec. 1-138. License to drive.
Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-138.1) (from Ch. 95 1/2, par. 1-138.1)
Sec. 1-138.1. Licensee. A person licensed or required to be licensed under Sections 5-101, 5-102, 5-201 and 5-301 of this Code.
(Source: P.A. 83-1473.)

(625 ILCS 5/5-101) (from Ch. 95 1/2, par. 5-101)
Sec. 5-101. New vehicle dealers must be licensed.
(625 ILCS 5/5-102) (from Ch. 95 1/2, par. 5-102)
Sec. 5-102. Used vehicle dealers must be licensed.
(625 ILCS 5/5-201) (from Ch. 95 1/2, par. 5-201)
Sec. 5-201. Transporters must apply for in-transit plates.
(625 ILCS 5/5-301) (from Ch. 95 1/2, par. 5-301)
Sec. 5-301. Automotive parts recyclers, scrap processors, repairers and rebuilders must be licensed.

(625 ILCS 5/1-110) (from Ch. 95 1/2, par. 1-110)
Sec. 1-110. Cancellation of driver’s license.
The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but, with the exception of Sections 6-107, 6-108 and 6-201, the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.
(Source: P.A. 86-1450.)
(625 ILCS 5/6-107) (from Ch. 95 1/2, par. 6-107)
Sec. 6-107. Graduated license.
(625 ILCS 5/6-108) (from Ch. 95 1/2, par. 6-108)
Sec. 6-108. Cancellation of license issued to minor.
(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.

ARTICLE II. CANCELLATION, SUSPENSION, OR
REVOCATION OF LICENSES AND PERMITS

(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.
(a) The Secretary of State is authorized to cancel any license or permit upon determining that the holder thereof:
(SEE FULL CITATION)

(625 ILCS 5/6-202) (from Ch. 95 1/2, par. 6-202)
Sec. 6-202. Non-residents and Unlicensed Persons-Revocation and Suspension-Reporting Convictions.
(a) The privilege of driving a motor vehicle on highways of this State given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be suspended or revoked.
(b) The Secretary of State is authorized, upon receiving a report of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the laws of this State relating to operation, custody or ownership of motor vehicles, to forward a copy or abstract of such report to the motor vehicle administrator of the State wherein the person so convicted is a resident.
(c) (Blank.)
(d) This section is subject to the provisions of the Driver License Compact.
(Source: P.A. 96-962, eff. 7-2-10.)

(625 ILCS 5/6-206)
(Text of Section from P.A. 96-1551)
Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing.
(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person’s records or other sufficient evidence that the person:
(SEE FULL CITATION)

(625 ILCS 5/6-209) (from Ch. 95 1/2, par. 6-209)
Sec. 6-209. Notice of Cancellation, Suspension or Revocation – Surrender and Return of License. The Secretary of State upon cancelling, suspending or revoking a license or permit shall immediately notify the holder thereof in writing and shall require that such license or permit shall be surrendered to and retained by the Secretary of State. However, upon payment of the reinstatement fee set out in subsection (g) of Section 6-118 at the end of any period of suspension of a license the licensee, if not ineligible for some other reason, shall be entitled to reinstatement of driving privileges and the return of his license if it has not then expired; or, in case it has expired, to apply for a new license.
(Source: P.A. 81-462.)

(625 ILCS 5/6-212) (from Ch. 95 1/2, par. 6-212)
Sec. 6-212. Court Review. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Secretary of State hereunder.
(Source: P.A. 82-783.)

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-115.6)
Sec. 1-115.6. Domiciliary. A person who is domiciled.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586.)

 

OTHER NOTES AND SOURCES

S.H.A. ch. 95½, §§ 6-101 et seq.
Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).
11 De Paul L.Rev. 125 (1961)

References 

§ 97. Nature and Effect of License; Transfer

Legal Encyclopedias

C.J.S., Motor Vehicles § 159
A license to operate a motor vehicle is a mere privilege.
A license to operate a motor vehicle on the public highways is a mere privilege and is not a property right. [Foot Note 38]

While the Illinois Driver Licensing Law no longer provides for chauffeur’s licenses, as discussed supra § 93, the licensing of chauffeurs was a grant, personal to the applicant, did not extend to anyone else, [Foot Note 39] and a chauffeur’s license was not transferable. [Foot Note 40]
    [Foot Note 38] See 1947 Op.Atty.Gen. 115.

    [Foot Note 39] Use by son of father’s license

    Boy under age of eighteen years, ineligible to obtain a chauffeur’s license, has no legal right to operate father’s taxicab, although father has a chauffeur’s license.—See 1926 Op.Atty.Gen. 507.

    [Foot Note 40] See 1916 Op.Atty.Gen. 910.
END OF SECTION
Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 9. Crimes and Prosecutions
B. Particular Offenses

Correlation Table  References 

§ 425. Driving without Driver’s License

Legal Encyclopedias

C.J.S., Motor Vehicles § 639(1)
It is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit.
Under the Illinois Vehicle Code, [Foot Note 97] and under some municipal ordinances, [Foot Note 98] it is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit. [Foot Note 99]

It is essential for a conviction of failure to have a driver’s license when operating a motor vehicle that there be proof beyond a reasonable doubt that the defendant was driving the automobile at the time in question. [Foot Note 1]
CUMULATIVE SUPPLEMENT

Cases:

Driver’s arrest outside jurisdiction of arresting officer was within officers statutory authority to arrest, where officer observed driver commit traffic infraction forming sufficient basis for stop while within officer’s jurisdiction and formed initial suspicion that driver was driving with suspended license while driver was within officer’s jurisdiction. People v. Schaefer, 343 Ill. App. 3d 159, 277 Ill. Dec. 600, 796 N.E.2d 686 (2d Dist. 2003).
[END]
4 Ill. Law and Prac. Automobiles and Motor Vehicles § 91

Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 4. Licensing and Regulation of Drivers
A. In General

References 

§ 91. General Considerations
AutomobilesKey Symbol130, 136, 145

Legal Encyclopedias

C.J.S., Motor Vehicles §§ 146 et seq.

Forms

Modern Legal Forms, Automobiles
No person except those expressly exempted may drive a motor vehicle on an Illinois highway unless he has a valid license or permit.
Under the Illinois Driver Licensing Law, which is part of the Illinois Vehicle Code of 1969, effective July 1, 1970, and which regulates the privilege of operating motor vehicles on the highways, no person except those expressly exempted shall drive any motor vehicle on a highway in the State of Illinois unless he has a valid license or permit, or a restricted license or permit, issued under the Act. [Foot Note 1]

The Secretary of State is charged with the administration of the Act and may make and enforce rules and regulations relating to its administration. [Foot Note 2]

The failure of a driver to have a license has no logical relevance to the issues of negligence or contributory negligence. [Foot Note 3]

Local regulations. Within constitutional limitations, municipalities may regulate and license drivers of motor vehicles to the extent that authority has been delegated by the General Assembly; [Foot Note 4] but any person licensed as a driver under the Driver Licensing Law may not be required by any city, village, incorporated town or other municipal corporation to obtain any other license to exercise the privilege thereby granted. [Foot Note 5]

Under the Cities and Villages Act, municipalities have the power to license, tax, and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation; [Foot Note 6] and motor trucks, motor driven commercial vehicles, and motor vehicles which are used for public hire are excepted from the prohibition of a municipal tax or license fee. [Foot Note 7]

The City of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab drivers unless they are properly licensed. [Foot Note 8] It has been held that an ordinance which compels a person who uses his automobile for his private business and pleasure only to submit to an examination and to take out a license imposes a burden on one class of citizens in the use of the streets not imposed on the others, and that it is beyond the power of a municipality and void. [Foot Note 9]

In any event an ordinance which is unreasonable and arbitrary is invalid. [Foot Note 10]

Driver’s license medical review. A Driver’s License Medical Advisory Board has been established within the Office of Secretary of State, to establish standards for determining the degree to which a person’s medical condition constitutes a limitation to the person’s ability to operate a motor vehicle or causes the person to be a driving hazard. Cases shall be referred to the Board by the Secretary, for medical evaluation of the person under review, and to determine what medical conditions exist that may impair the individual’s ability to operate a motor vehicle safely. [Foot Note 10.5]

Driver’s duty to report medical condition. Every driver shall report to the Secretary any medical condition that is likely to cause loss of consciousness or any loss of ability to safely operate a motor vehicle within 10 days of the driver becoming aware of the condition. [Foot Note 10.10]
    [Foot Note 1] S.H.A. ch. 95½, §§ 6-101 et seq.

    S.H.A. ch. 95½, ¶¶6-101 et seq., is now 625 ILCS 5/6-101 et seq., recodified effective January 1, 1993.

    See 1958 Op.Atty.Gen. 218; 1961 Op.Atty.Gen. 16.

    Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).

    People v. Frye, 1983, 4 Dist., 447 N.E.2d 1065, 69 Ill.Dec. 630, 113 Ill.App.3d 853 (possession of valid license at any time is prima facie proof that holder must have driven upon highways of state as predicate for application of implied consent statute).

    [Foot Note 2] S.H.A. ch. 95½, § 6-211.

    S.H.A. ch. 95½, ¶6-211, is now 625 ILCS 5/6-211, recodified effective January 1, 1993.

    Revocation of driving school license

    Perez v. Edgar, 1982, 436 N.E.2d 639, 62 Ill.Dec. 613, 106 Ill.App.3d 981.

    [Foot Note 3] Perry v. Richerson, 1954, 122 N.E.2d 75, 3 Ill.App.2d 338.

    [Foot Note 4] Power conferred by charter

    City of Chicago Charter, § 1, cls. 7, 9, 66, delegating police power to the city, and giving power over its streets, authorized it to pass Code Ordinances 1911, § 2696, prohibiting the use of automobiles in the transportation of passengers or merchandise by a person not competent who has not been examined and licensed.—City of Chicago v. Kluever, 1913, 100 N.E. 917, 257 Ill. 317.

    [Foot Note 5] S.H.A. ch. 95½, § 6-101(c).

    S.H.A. ch. 95½, ¶6-101(c), is now 625 ILCS 5/6-101(c), recodified effective January 1, 1993.

    [Foot Note 6] S.H.A. ch. 24, § 11-42-6.

    S.H.A. ch. 24, ¶11-42-6, is now 65 ILCS 5/11-42-6, recodified effective January 1, 1993.

    [Foot Note 7] S.H.A. ch. 24, § 8-11-4.

    S.H.A. ch. 24, ¶8-11-4, was amended in 1983 (provision deleted).

    Ordinance requiring license

    Cities and villages may adopt ordinances not inconsistent with Motor Vehicle Law requiring all persons operating cars for public hire or commercial purposes to secure a license so to do.—See 1914 Op.Atty.Gen. 1131.

    [Foot Note 8] City of Chicago v. Dorband, 1939, 18 N.E.2d 107, 297 Ill.App. 617.

    People v. Thompson, 1922, 225 Ill.App. 567.

    [Foot Note 9] City of Chicago v. Banker, 1904, 112 Ill.App. 94 (Chicago ordinance of June 30, 1902).

    [Foot Note 10] Ambulance driver

    Portion of ordinance prohibiting issuance of ambulance attendant-driver’s license to any person at any time after conviction of crime involving use of deadly weapon, traffic in narcotic drugs, infamous crime against nature, incest or rape did not bear any relationship to public health or safety, was unreasonable and arbitrary and was invalid as to ambulance attendant-driver who owned ambulance service and had been convicted of armed robbery 17 years prior to application for license.—Roth v. Daley, 1970, 256 N.E.2d 166, 119 Ill.App.2d 462.

    [Foot Note 10.5] S.H.A. ch. 95½ ¶¶6900 et seq. is now 625 ILCS 5/6-900 et seq., recodified in 1993.

    S.H.A. ch. 95½, ¶¶6-900 et seq., added in 1992.

    [Foot Note 10.10] 625 ILCS 5/6-116.5, added in 1996.
IL-LP AUTOS § 91

END OF SECTION

C.J.S., Motor Vehicles §§ 146 et seq.

60 C.J.S. Motor Vehicles § 262

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary  Correlation Table 

§ 262. Generally

License regulations apply to the driver of a motor vehicle, and must be complied with by all coming within the terms of such regulations.
Generally, by virtue of statutory provisions or regulations, only persons who hold licenses as chauffeurs or operators may lawfully operate or drive motor vehicles upon the public highways.[Foot Note 1] Where the operator of a private commercial carrier is obligated by law to obtain a commercial driver’s license, this requirement applies to all persons regularly engaged as operators of such carriers.[Foot Note 2] In some jurisdictions, a person who operates a motor vehicle for hire must obtain a special license,[Foot Note 3] but if a vehicle is operated for purposes other than furnishing transportation for hire no special license is required.[Foot Note 4]

Where every operator is required to obtain a license, the license is personal to the particular person who operates the motor vehicle and must be obtained by, and issued to, him or her.[Foot Note 5] Therefore, a corporation or partnership which owns or controls a motor vehicle is not entitled to a license to operate it.[Foot Note 6]

Where statutorily provided that no person may operate a motor vehicle for hire or as a chauffeur unless specially licensed so to do, an owner who is licensed merely as an operator, and not as a chauffeur, is not authorized to operate his or her automobile for hire.[Foot Note 7] However, a person holding a license as a commercial operator or chauffeur is not required to have an ordinary operator’s license.[Foot Note 8]

Unless expressly exempted, state officers and employees come within the requirements of licensing provisions broad enough in their terms to include such persons.[Foot Note 9] A municipality operating busses running through another city is required to comply with reasonable regulations concerning the qualifications of drivers of such busses.[Foot Note 10]
Steering towed car.

A person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statutory provision requiring an operator or driver to be licensed.[Foot Note 11]
    [Foot Note 1] Tex.—Leatherman v. Starkey, 356 S.W.2d 151 (Tex. Civ. App. Amarillo 1962), writ refused n.r.e., (Oct. 6, 1962).

    Intent to change residence as affecting residence, see C.J.S., Domicile §§ 14 to 17.

    License not required for driver on unfinished road

    W.Va.—State v. Boyles, 112 W. Va. 125, 163 S.E. 814 (1932).
    No operating or driving where vehicle not started

    N.Y.—Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440 (City Ct. 1937).
    Intention to change residence

    D.C.—Bush v. District of Columbia, 78 A.2d 234 (Mun. Ct. App. D.C. 1951).

    [Foot Note 2] Driver employed by railroad

    Miss.—Lumpkin v. Birdsong, 212 Miss. 616, 55 So. 2d 230 (1951).

    [Foot Note 3] Operation for hire construed

    R.I.—State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

    [Foot Note 4] R.I.—State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

    [Foot Note 5] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Legal name requirement valid

    U.S.—Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff’d, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

    [Foot Note 6] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Registration of the vehicle in corporate or partnership name, see § 168.

    [Foot Note 7] Mass.—Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387 (1919).

    [Foot Note 8] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 9] Mo.—City of St. Louis v. Carpenter, 341 S.W.2d 786, 87 A.L.R.2d 1219 (Mo. 1961).

    [Foot Note 10] Ohio—Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144, 4 Ohio Op. 31, 198 N.E. 41, 101 A.L.R. 426 (1935).

    [Foot Note 11] Ohio—City of Toledo v. Burks, 100 Ohio App. 127, 60 Ohio Op. 104, 136 N.E.2d 150 (6th Dist. Lucas County 1955).
END OF SECTION
60 C.J.S. Motor Vehicles § 256

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary  Correlation Table 

§ 256. Purpose

Motor vehicle operators and chauffeurs are generally licensed by the state in the interest of public safety.
Generally, the purposes of requiring chauffeurs and operators to be licensed are to insure the competency of the operators of motor vehicles and to regulate the use of this means of rapid transit on the public highways, in the interest of public safety.[Foot Note 1] It is also the purpose of such licensing to furnish a further guaranty that proper use of the vehicle will be made,[Foot Note 2] and that it will be operated in compliance with applicable statutory provisions.[Foot Note 3] The purpose of requiring the operator of a motor vehicle to report changes of address to the commissioner of motor vehicles is identification of drivers and the facilitation of communication with them.[Foot Note 4]
    [Foot Note 1] Nev.—State, Dept. of Motor Vehicles and Public Safety v. Miles, 111 Nev. 681, 895 P.2d 1316 (1995).

    [Foot Note 2] State may make and enforce regulations reasonably calculated to promote care

    Neb.—Russell v. State, Dept. of Motor Vehicles, 247 Neb. 885, 531 N.W.2d 212 (1995).

    [Foot Note 3] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Purpose of requirement that epilepsy patients be disclosed to licensing authority

    U.S.—Harden v. Allstate Ins. Co., 883 F. Supp. 963 (D. Del. 1995).

    [Foot Note 4] Conn.—State v. Baltromitis, 5 Conn. Cir. Ct. 72, 242 A.2d 99 (App. Div. 1967).
END OF SECTION
60 C.J.S. Motor Vehicles § 257

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary  Correlation Table 

§ 257. Right to operate as privilege
AutomobilesKey Symbol130, 132 to 136, 143
The right to operate a motor vehicle is, generally, a privilege, not a right.
A license is, generally, merely a personal privilege,[Foot Note 1] which may be revoked.[Foot Note 2] Where a license is deemed a personal privilege, it is not a vested right,[Foot Note 3] nor is it considered a natural right[Foot Note 4] or a civil right.[Foot Note 5] A driver’s license is also not a contract or property right[Foot Note 6] in any legal or constitutional sense.[Foot Note 7] Neither is it a right of such a nature that it may be sold or assigned.[Foot Note 8] The payment by the licensee of the required fees upon the issuance to him or her of the operator’s license does not convert the privilege granted into a property right.[Foot Note 9]

In some jurisdictions, however, while still recognizing that a license is a personal privilege, a license is deemed in the nature of a right.[Foot Note 10] In other jurisdictions, a license is both a personal privilege and a property right.[Foot Note 11] In still other jurisdictions, a license to operate a motor vehicle is more of a property interest.[Foot Note 12] A license may also be determined to be a vested property right in the individual.[Foot Note 13]
    [Foot Note 1] La.—State v. Jackson, 764 So. 2d 64 (La. 2000).

    Highway driving a privilege, not a right

    Ill.—People v. Jung, 192 Ill. 2d 1, 248 Ill. Dec. 258, 733 N.E.2d 1256 (2000).
    Privilege not constitutionally guaranteed

    N.D.—North Dakota Dept. of Transp. v. DuPaul, 487 N.W.2d 593 (N.D. 1992).
    Conditional privilege

    Va.—Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).
    Important and valued privilege

    Vt.—Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967).
    Limited right

    Pa.—Com. v. Vivio, 209 Pa. Super. 90, 224 A.2d 777 (1966).
    Qualified right

    Mo.—Blydenburg v. David, 413 S.W.2d 284 (Mo. 1967).

    [Foot Note 2] Mont.—Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972 (1999).

    Revocation or suspension of license, generally, see §§ 290to 293.

    [Foot Note 3] Cal.—O’Connor v. Superior Court, 90 Cal. App. 3d 107, 153 Cal. Rptr. 306 (1st Dist. 1979).

    Not right entitled to protection against governmental interference or restriction

    Colo.—People v. Zinn, 843 P.2d 1351 (Colo. 1993).

    [Foot Note 4] Kan.—State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).

    Not absolute right

    Ohio—Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

    [Foot Note 5] Tex.—Allen v. State, 410 S.W.2d 52 (Tex. Civ. App. Houston 1966).

    [Foot Note 6] Ohio—Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

    [Foot Note 7] Cal.—Department of Motor Vehicles v. Superior Court, 58 Cal. App. 3d 936, 130 Cal. Rptr. 311 (1st Dist. 1976).

    [Foot Note 8] N.Y.—City of Rochester v. Falk, 170 Misc. 238, 9 N.Y.S.2d 343 (City Ct. 1939).

    [Foot Note 9] Kan.—State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967), opinion withdrawn on other grounds on reh’g, 199 Kan. 615, 433 P.2d 414 (1967).

    License fees, see §§ 281to 283.

    [Foot Note 10] N.D.—State ex rel. Hjelle v. A Motor Vehicle Described as a 1973 Brockway Tractor License No. 237342, Serial No. 79629, Trailer SN No. 75-2531-LB-150, 299 N.W.2d 557 (N.D. 1980).

    Nonfundamental right

    Va.—Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).

    [Foot Note 11] Pa.—Com., Dept. of Transp., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw. 214, 408 A.2d 173 (1979).

    [Foot Note 12] W.Va.—Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).

    Substantial right

    N.Y.—Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
    Real value

    N.Y.—Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup 1954).

    [Foot Note 13] N.Y.—People v. Emmanuel, 82 Misc. 2d 298, 368 N.Y.S.2d 773 (City Crim. Ct. 1975).

    Substantial property interest that may not be deprived without due process of law

    N.Y.—Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
    Basis of change in view from privilege to vested property right

    N.Y.—People v. McAnarney, 28 Misc. 2d 778, 210 N.Y.S.2d 340 (County Ct. 1961).
END OF SECTION

60 C.J.S. Motor Vehicles § 260

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
2. Power to License

Topic Summary  Correlation Table 

§ 260. State

Within constitutional limits, a state legislature may require drivers of motor vehicles on the public highways to be licensed and may impose reasonable conditions under which the license is to be issued.
The granting or withholding of licenses to operators of motor vehicles is a method of exercise of the state’s regulatory power over public highways.[Foot Note 1] The state legislature, under this power, has control of the licensing of those who, as chauffeurs or operators, drive such vehicles.[Foot Note 2] In the absence of constitutional restrictions, it may require that, before a person is entitled to operate or drive a motor vehicle upon the public highways, he or she must obtain a license as a chauffeur or operator and pay a prescribed license fee.[Foot Note 3]

In the exercise of this power, the legislature may classify the persons to whom the prescribed regulations will apply, provided such classification is not unreasonable and arbitrary.[Foot Note 4] Thus, the legislature may reasonably distinguish between individuals on the basis of maturity and judgment, physical capacity or ability, and similar matters which would affect the competency of a person to safely operate a motor vehicle upon the highway.[Foot Note 5] The state may prescribe the conditions under which the privilege of operating such vehicles may be granted[Foot Note 6] and exercised.[Foot Note 7] The legislature may reserve this power exclusively to the state[Foot Note 8] in order to establish, throughout the state, a uniform system regarding the licensing of chauffeurs and operators.[Foot Note 9] The legislature may also vest exclusive authority to issue licenses in a state board or commission.[Foot Note 10] Additionally, a legislature may be authorized to enact a statutory provision granting state courts the right to issue judicial driving permits.[Foot Note 11]
    [Foot Note 1] N.C.—Smith v. Walsh, 34 N.C. App. 287, 238 S.E.2d 157 (1977).

    Purpose

    Ohio—City of Kettering v. Baker, 42 Ohio St. 2d 351, 71 Ohio Op. 2d 322, 328 N.E.2d 805 (1975).

    [Foot Note 2] Mich.—Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977).

    [Foot Note 3] U.S.—Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

    Persons subject to license regulations, generally, see §§ 262to 264.

    License fees, generally, see §§ 281to 283.

    [Foot Note 4] Cal.—Ex parte Stork, 167 Cal. 294, 139 P. 684 (1914).

    Taxicab license

    Wash.—Tarver v. City Commission In and For City of Bremerton, 72 Wash. 2d 726, 435 P.2d 531 (1967).

    [Foot Note 5] Wash.—State v. Scheffel, 82 Wash. 2d 872, 514 P.2d 1052 (1973).

    Qualifications or eligibility for license, generally, see §§ 268to 271.

    [Foot Note 6] S.D.—Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).

    Reasonable regulation

    U.S.—Quetawki v. Prentice, 303 F. Supp. 737 (D.N.M. 1968).

    [Foot Note 7] N.Y.—People v. Frank, 61 Misc. 2d 450, 305 N.Y.S.2d 940 (Sup 1969).

    [Foot Note 8] Tex.—Ball v. City of McKinney, 286 S.W. 341 (Tex. Civ. App. Dallas 1926), writ refused, (Nov. 10, 1926).

    [Foot Note 9] N.Y.—Boord v. Wallander, 195 Misc. 557, 89 N.Y.S.2d 796 (Sup 1949), judgment modified on other grounds, 277 A.D. 253, 98 N.Y.S.2d 1 (1st Dep’t 1950), judgment aff’d on other grounds, 302 N.Y. 890, 100 N.E.2d 177 (1951).

    [Foot Note 10] Neb.—Johnston v. Department of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973).

    Duty as to medically suspect drivers

    La.—Fowler v. Roberts, 526 So. 2d 266 (La. Ct. App. 2d Cir. 1988), writ denied, 531 So. 2d 278 (La. 1988) and writ granted, 531 So. 2d 257 (La. 1988) and judgment aff’d, 556 So. 2d 1 (La. 1989).
    Control over other governmental agencies

    Cal.—Yeoman v. Department of Motor Vehicles, 273 Cal. App. 2d 71, 78 Cal. Rptr. 251 (4th Dist. 1969).

    [Foot Note 11] Ill.—People v. Inghram, 118 Ill. 2d 140, 113 Ill. Dec. 65, 514 N.E.2d 977 (1987).
END OF SECTION
60 C.J.S. Motor Vehicles V Refs.

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs

Topic Summary  Correlation Table 

Research References
Drinking/Driving Litigation Criminal and Civil (2d ed.) (DRNKDRIVING)

A.L.R. Library

West’s A.L.R. Digest, AutomobilesKey Symbol129 to 145
A.L.R. Index: Automobiles and Highway Traffic; Certificates of Title; Driver’s Licenses; Driving While Under the Influence of Drugs; Guest Statute; Passengers; Pedestrians; Reckless Driving; Speed and Speeding; Traffic Offenses and Violations
Denial Of Accused’s Request For Initial Contact With Attorney—Drunk Driving Cases, 109 A.L.R. 5th 611
Admissibility, In Motor Vehicle License Suspension Proceedings, Of Evidence Obtained By Unlawful Search And Seizure, 23 A.L.R. 5th 108
Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of, Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542
Automobiles: Necessity Or Emergency As Defense In Prosecution For Driving Without Operator’s License Or While License Is Suspended, 7 A.L.R. 5th 73
Validity, Construction, Application, And Effect Of Statute Requiring Conditions, In Addition To Expiration Of Time, For Reinstatement Of Suspended Or Revoked Driver’s License, 2 A.L.R. 5th 725
Automobiles: Validity And Construction Of Legislation Authorizing Revocation Or Suspension Of Operator’s License For “Habitual”, “Persistent”, Or “Frequent” Violations Of Traffic Regulations, 48 A.L.R. 4th 367
Construction And Effect Of Statutes Which Make Parent, Custodian, Or Other Person Signing Minor’s Application For Vehicle Operator’s License Liable For Licensee’s Negligence Or Willful Misconduct, 45 A.L.R. 4th 87

Treatises and Practice Aids

Nichols Drinking/Driving Litigation: Criminal and Civil (2d ed.) §§ 7:1 to 7:25, 8:1 to 8:5, 9:14, 9:27, 11:1, 11:16 to 11:19, 11:30, 11:37

END OF SECTION
60 C.J.S. Motor Vehicles § 263

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary  Correlation Table 

§ 263. Chauffeur or operator
AutomobilesKey Symbol129, 130, 132 to 137
A distinction is sometimes recognized between an operator and a chauffeur, as “chauffeur” often refers to one who is paid for driving an automobile.
In some jurisdictions, a distinction is made between a chauffeur and an operator. An operator is any person, other than a chauffeur, who operates or drives a motor vehicle.[Foot Note 1] A person need not be a chauffeur in order to secure a chauffeur’s license.[Foot Note 2] The fact that a driver holds such a license does not necessarily make such driver a chauffeur, unless he or she receives pay for the services.[Foot Note 3] Therefore, one who holds a chauffeur’s license, but is not a chauffeur, and who drives upon the highway may be just an operator.[Foot Note 4]

The term chauffeur has a general meaning, as well as a restrictive meaning.[Foot Note 5] In the general sense, a chauffeur is one who operates and propels,[Foot Note 6] or drives and operates,[Foot Note 7] or manages the running of,[Foot Note 8] an automobile. In a more restricted sense, a chauffeur is a person who drives an automobile for hire.[Foot Note 9] Chauffeur may also have different meanings, dependent on the terms of the statutory provision in which it appears.[Foot Note 10] As used in regulations requiring a person who desires to operate a motor vehicle as a chauffeur, or as a paid operator, first to obtain a chauffeur’s or driver’s license, it means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car.[Foot Note 11] In such case, the term chauffeur does not include operators who are not employed and paid for operating the motor vehicle.[Foot Note 12] Moreover, it does not include an employee who receives his or her compensation for services rendered, other than the operation of motor vehicles, although in performing such services he or she may incidentally operate a motor vehicle.[Foot Note 13] An employee of a public utility, who incidentally uses a motor vehicle in his or her business of repair, is not a chauffeur, and is not required to obtain a chauffeur’s license.[Foot Note 14] There is, however, authority to the contrary.[Foot Note 15]

Owner as driver.

An owner of a motor vehicle who has obtained an operator’s license may not, unless otherwise permitted, drive his or her vehicle as a public service vehicle for hire without a chauffeur’s license.[Foot Note 16] An owner who acts as an independent contractor in the operation of his or her vehicle is not, however, required to take out a chauffeur’s license.[Foot Note 17] This includes a person who, in delivering goods for one person, drives a motor vehicle which he or she has borrowed from a third person.[Foot Note 18]
    [Foot Note 1] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 2] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 3] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    Whether driver is chauffeur dependent on terms of applicable statutory provision, see § 263.

    [Foot Note 4] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 5] La.—Day v. Bush, 18 La. App. 682, 139 So. 42 (2d Cir. 1932).

    [Foot Note 6] Mo.—State v. Swagerty, 203 Mo. 517, 102 S.W. 483 (1907).

    [Foot Note 7] Ill.—Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035 (1905).

    [Foot Note 8] Neb.—Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

    [Foot Note 9] Neb.—Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

    [Foot Note 10] Ala.—Turner v. State, 226 Ala. 269, 146 So. 601 (1933).

    Uniformed patrolmen not chauffeurs

    Mo.—State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 (1930).
    American soldier not chauffeur

    Tex.—American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Civ. App. San Antonio 1920), writ refused, (Apr. 6, 1921).

    [Foot Note 11] U.S.—State of Md. for Use of Weaver v. O’Brien, 140 F. Supp. 306 (D. Md. 1956).

    Test

    U.S.—Maryland Cas. Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex. 1940), judgment aff’d on other grounds, 116 F.2d 494 (C.C.A. 5th Cir. 1940).

    [Foot Note 12] Ky.—Winslow v. Everson, 221 Ky. 430, 298 S.W. 1084 (1927).

    [Foot Note 13] W.Va.—State v. Wimmer, 117 W. Va. 498, 186 S.E. 133, 105 A.L.R. 67 (1936).

    Services of son

    Cal.—Hunton v. California Portland Cement Co., 50 Cal. App. 2d 684, 123 P.2d 947 (4th Dist. 1942).

    [Foot Note 14] N.Y.—People v. Dennis, 166 N.Y.S. 318 (County Ct. 1915).

    [Foot Note 15] N.Y.—People v. Fulton, 96 Misc. 663, 162 N.Y.S. 125 (County Ct. 1916).

    [Foot Note 16] Mo.—Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89 (1920).

    Chauffeur defined

    Tex.—Peniche v. Aeromexico, 580 S.W.2d 152 (Tex. Civ. App. Houston 1st Dist. 1979).

    [Foot Note 17] N.Y.—People v. Ritter, 120 Misc. 852, 200 N.Y.S. 816 (County Ct. 1922).

    [Foot Note 18] Ind.—A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 141 N.E. 227 (Div. 1 1923).

 CJS MOTORVEH § 263

END OF SECTION

 

NOTES ON POLICE POWER

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
VIII. Police Power
A. In General

Topic Summary  References 

§   610. Nature of power

 Constitutional Law   81

The police power is a governmental function, an inherent attribute of sovereignty, which exists without any reservation in the constitution as an essential element in all orderly governments.

 The police power is a governmental function,[FN1] an inherent attribute of sovereignty,[FN2] and the greatest and most powerful attribute of government.[FN3] Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the citizens of the state,[FN4] and although it may be given to the people of the state by the constitution,[FN5] the power exists without any reservation in the constitution,[FN6] being founded on the duty of the state to protect the health, safety, and welfare of its citizens.[FN7]

The police power, in its nature, is very broad and comprehensive,[FN8] and the laws enacted for the purpose of regulation thereunder may be impolitic, harsh, and oppressive.[FN9] It corresponds to the right of self-preservation in the individual,[FN10] and is an essential element in all orderly governments,[FN11] because it is necessary to the proper maintenance of the government and the general welfare of the community.[FN12]

The power comprehends reasonable preventative measures no less than the punishment of perpetrated offenses,[FN13] and it may act to prevent apprehended dangers as well as to control those already existing.[FN14] The police power depends on the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests.[FN15] It has for its object the improvement of economic[FN16] and social conditions affecting the community at large and collectively with a view of bringing about “the greatest good of the greatest number.”[FN17]

The constitution presupposes the existence of the police power and is to be construed with reference to that fact,[FN18] and police regulations presuppose conditions which, unless controlled, will operate to a public disadvantage.[FN19]

 [FN1] U.S.—Aldens, Inc. v. LaFollette, 552 F.2d 745 (7th Cir. 1977).

Ala.—City of Decatur v. Robinson, 251 Ala. 99, 36 So. 2d 673 (1948).

[FN2] U.S.—City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1965).

Cal.—Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 110 Cal. Rptr. 2d 708 (1st Dist. 2001), as modified on denial of reh’g, (Sept. 13, 2001).

Colo.—CF & I Steel, L.P. v. United Steel Workers of America (USWA), 74 P.3d 513 (Colo. Ct. App. 2003).

Okla.—Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5 (Okla. 2003).

Exercise not dependent on emergency

Police power is permanent right of sovereignty, and its exercise is not dependent on emergency.

N.J.—In re North Jersey Title Ins. Co., 120 N.J. Eq. 148, 184 A. 420 (Ch. 1936), aff’d, 120 N.J. Eq. 608, 187 A. 146 (Ct. Err. & App. 1936).

[FN3] Pa.—Com. v. Widovich, 295 Pa. 311, 145 A. 295 (1929).

[FN4] U.S.—Ziffrin, Inc. v. Martin, 24 F. Supp. 924 (E.D. Ky. 1938), aff’d, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128 (1939) (abrogated on other grounds by, Granholm v. Heald, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (U.S. 2005)).

[FN5] Vt.—Sowma v. Parker, 112 Vt. 241, 22 A.2d 513 (1941).

[FN6] Ohio—Vincent v. Elyria Bd. of Ed., 7 Ohio App. 2d 58, 36 Ohio Op. 2d 151, 218 N.E.2d 764 (9th Dist. Lorain County 1966).

Tex.—Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June 25, 1969).

Wash.—Reesman v. State, 74 Wash. 2d 646, 445 P.2d 1004 (1968).

Not referable to any single provision

Md.—Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946).

[FN7] Md.—Linkus v. Maryland State Bd. of Heating Ventilation, Air-Conditioning and Refrigeration Contractors, 114 Md. App. 262, 689 A.2d 1254 (1997).

N.M.—In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973).

Tex.—Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (July 23, 1975).

Duty to act

(1) Legislature has a duty to enact laws providing for general welfare and safety of people within state.

Ind.—State ex rel. Mavity v. Tyndall, 225 Ind. 360, 74 N.E.2d 914 (1947).

(2) There is no constitutional provision which imposes a duty on a state to provide services to its citizens.

U.S.—New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

Public necessity

Police power is founded in public necessity, which justifies its exercise.

Conn.—State v. Heller, 123 Conn. 492, 196 A. 337 (1937).

[FN8] N.Y.—Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715 N.Y.S.2d 819 (4th Dep’t 2000).

Okla.—State v. Nevins, 1980 OK CR 30, 611 P.2d 251 (Okla. Crim. App. 1980).

W. Va.—State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).

Almost infinite variety of subjects embraced

U.S.—Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968).

[FN9] Cal.—D’Amico v. Brock, 122 Cal. App. 2d 63, 264 P.2d 120 (3d Dist. 1953).

Iowa—Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954).

W.Va.—State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S.E.2d 263 (1949).

Strict liability

In exercise of power, state may impose liability without fault.

Ala.—Walker v. State, 356 So. 2d 672 (Ala. 1977).

[FN10] U.S.—Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935).

Ala.—Jones v. State, 56 Ala. App. 280, 321 So. 2d 247 (Crim. App. 1975).

N.Y.—DeLury v. City of New York, 51 A.D.2d 288, 381 N.Y.S.2d 236 (1st Dep’t 1976).

[FN11] U.S.—Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800 (D.P.R. 1975), judgment aff’d, 553 F.2d 701 (1st Cir. 1977).

Ky.—Roe v. Com., 405 S.W.2d 25 (Ky. 1966).

Wash.—Spokane County v. Valu-Mart, Inc., 69 Wash. 2d 712, 419 P.2d 993 (1966).

Law of necessity

Police power is law of necessity.

N.J.—Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954).

[FN12] Ariz.—Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (Div. 2 1975).

Tenn.—H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).

Tex.—Texas State Bd. of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex. Civ. App. Austin 1976), writ refused n.r.e., (Mar. 9, 1977).

[FN13] U.S.—Jung v. City of Winona, 71 F. Supp. 558 (D. Minn. 1947).

N.J.—State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (N.J. Ct. Err. & App. 1938).

Assumptions unprovable or unproved

(1) Unprovable assumption may be acted on by states in areas of public control.

U.S.—Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

(2) Legislatures properly may rely on scientifically unproven assumptions both in regulation of commercial and business transactions and for protection of broad social interests in order and morality.

D.C.—U. S. v. Moses, 339 A.2d 46 (D.C. 1975).

Blocking evasive techniques

In area of regulation, statute may push beyond debatable limits in order to block evasive techniques.

Cal.—Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3d Dist. 1968).

[FN14] U.S.—Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Colo.—People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).

N.Y.—McCallin v. Walsh, 64 A.D.2d 46, 407 N.Y.S.2d 852 (1st Dep’t 1978), order aff’d, 46 N.Y.2d 808, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).

Delayed impact

Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

Alaska—Ravin v. State, 537 P.2d 494 (Alaska 1975).

Possession of devices or products

Mere possession of dangerous or deleterious devices or products may be forbidden by state under its police powers.

D.C.—Smith v. District of Columbia, 436 A.2d 53 (D.C. 1981).

[FN15] Ga.—De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

N.C.—State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953).

Va.—Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732 (1940).

Giving up rights for public benefit

Power to pass laws regulating persons and property stems from theory that when persons choose to live in groups they must give up some individual freedom for good of group.

La.—City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).

[FN16] Wis.—Gross v. Woodman’s Food Market, Inc., 259 Wis. 2d 181, 2002 WI App 295, 655 N.W.2d 718 (Ct. App. 2002), review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (2003).

[FN17] Md.—Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A.2d 471 (1949).

Mich.—People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945).

N.C.—Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Interest of public paramount

Fla.—Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938).

[FN18] Fla.—McInerney v. Ervin, 46 So. 2d 458 (Fla. 1950).

La.—City of Baton Rouge v. Ross, 654 So. 2d 1311 (La. 1995).

N.D.—State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

[FN19] Ky.—Commonwealth for Use and Ben. of City of Wilmore v. McCray, 250 Ky. 182, 61 S.W.2d 1043 (1933).

Utah—State v. Packer Corporation, 77 Utah 500, 297 P. 1013 (1931).

END OF SECTION

CJS CONSTLAW §  610

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XV. Privileges and Immunities of Citizens and Related Matters
C. Denial of Privileges and Immunities
2. Police Power and Regulation

Topic Summary  References 

§   1067. State’s exercise of police power

 Constitutional Law   206(1), 207(1), 207(6)

While a state, in the exercise of its police power, may pass laws for the health, morals, safety, and general welfare of persons within its jurisdiction, such exercise of power must not discriminate arbitrarily between citizens.

 Neither the guaranty contained in the original United States Constitution of the privileges and immunities of citizens of the several states, nor that contained in the Fourteenth Amendment, takes away or impairs the police power of the several states to pass reasonable laws for the promotion of the health, morals, safety, and general welfare of persons subject to their jurisdiction.[FN1] The privileges and immunities clause applies only to protect citizens of one state from discriminatory treatment in another state, and does not limit the state’s police power over its own citizens.[FN2]

It has been held that the privileges and immunities clauses have no application to statutes enacted in the exercise of that power.[FN3] On the other hand, it has been held that the police power is subject to the constitutional guaranty of equality of privilege,[FN4] and an exercise of the police power must not arbitrarily discriminate between citizens.[FN5] Nevertheless, the protections afforded by constitutional clauses protecting privileges and immunities of citizens are not absolute and will yield to reasonable exercise of state police powers.[FN6]

While in the matter of police regulation, the powers of the state are very broad, it cannot single out a corporation, any more than a natural person, and subject it to burdens which are not cast on others similarly situated, without contravening the limitations of the Fourteenth Amendment of the Federal Constitution.[FN7]

 [FN1] U.S.—Sullivan v. Shaw, 6 F. Supp. 112 (S.D. Cal. 1934).

Fla.—Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941).

Mo.—State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988 (1933).

N.Y.—People ex rel. Bryant v. Zimmerman, 213 A.D. 414, 210 N.Y.S. 269 (4th Dep’t 1925), aff’d, 241 N.Y. 405, 150 N.E. 497, 43 A.L.R. 909 (1926), aff’d, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A.L.R. 785 (1928).

Or.—Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512 (1928).

Tenn.—Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132 (1930).

W.Va.—Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953).

[FN2] Me.—State v. Hayes, 603 A.2d 869 (Me. 1992).

[FN3] Wash.—Frach v. Schoettler, 46 Wash. 2d 281, 280 P.2d 1038 (1955).

[FN4] N.C.—State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

[FN5] Ind.—City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312 (1891).

S.C.—Schloss Poster Advertising Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939).

[FN6] Mont.—State v. Barnes, 232 Mont. 405, 758 P.2d 264 (1988).

[FN7] U.S.—Southern Bell Tel. & Tel. Co. v. Town of Calhoun, 287 F. 381 (W.D. S.C. 1923).

END OF SECTION

CJS CONSTLAW §  1067

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XVI. Equal Protection of the Laws
B. Nature and Scope of Prohibitions

Topic Summary  References 

§   1115. Exercise of police power

 Constitutional Law   212

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power, to pass laws for the protection of the public health, safety, welfare, or morals.

 The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power,[FN1] to pass laws for the protection of the public health, safety, welfare, or morals,[FN2] and indeed, the state has wide discretion to do so under the equal protection clause.[FN3] Furthermore, it does not interfere with the proper exercise of that power.[FN4]

However, according to the weight of authority, an exercise of the police power is subject to the constitutional limitation that no state shall deny the equal protection of the laws to any person within its jurisdiction;[FN5] and the Fourteenth Amendment invalidates enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained.[FN6] In other words, equal protection requires that the exercise of police power be wholly free of unreason and arbitrariness.[FN7] It is necessary that a police regulation shall apply equally or uniformly to all persons similarly situated or within a class.[FN8] Thus, the lawmaking authority may, under its police power, enact regulations that are not all-embracing, and it may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law;[FN9] but an exercise of the police power must not be discriminatory in operation.[FN10]

The equal protection clause of the Fourteenth Amendment to the Federal Constitution does not take from a state or municipal corporation the power to classify in the adoption of police laws or regulations,[FN11] but admits of the exercise of a wide or broad scope of discretion in that regard.[FN12]

 [FN1] Del.—In re Auditorium, Inc., 46 Del. 430, 84 A.2d 598 (Super. Ct. 1951).

[FN2] Fla.—Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. Dist. Ct. App. 1st Dist. 1992).

Ohio—St. Ann’s Hosp. v. Arnold, 109 Ohio App. 3d 562, 672 N.E.2d 743 (10th Dist. Franklin County 1996).

Pa.—Pennsylvania Turnpike Com’n v. Com., 855 A.2d 923 (Pa. Commw. Ct. 2004), as amended, (Aug. 4, 2004).

[FN3] U.S.—Lee v. State, 869 F. Supp. 1491 (D. Or. 1994).

Colo.—Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002), cert. denied, 2003 WL 21222805 (Colo. 2003) and cert. denied, (May 27, 2003).

[FN4] U.S.—Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Chambers v. Bachtel, 55 F.2d 851 (C.C.A. 5th Cir. 1932).

Kan.—Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974).

[FN5] U.S.—Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Szeto v. Louisiana State Bd. of Dentistry, 508 F. Supp. 268 (E.D. La. 1981).

Fla.—Junco v. State Bd. of Accountancy, 390 So. 2d 329 (Fla. 1980).

[FN6] Ill.—Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267, 29 Ill. Dec. 333, 391 N.E.2d 758 (3d Dist. 1979).

[FN7] N.J.—515 Associates v. City of Newark, 132 N.J. 180, 623 A.2d 1366 (1993).

[FN8] U.S.—Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934 (D. Wyo. 1976).

Cal.—Elysium Institute, Inc. v. County of Los Angeles, 232 Cal. App. 3d 408, 283 Cal. Rptr. 688 (2d Dist. 1991).

Neb.—Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[FN9] Fla.—Pacheco v. Pacheco, 246 So. 2d 778 (Fla. 1971).

[FN10] U.S.—Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948).

Ariz.—State v. Norcross, 26 Ariz. App. 115, 546 P.2d 840 (Div. 1 1976).

[FN11] U.S.—Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946).

Tenn.—Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

As to legislative classifications, generally, see §  1110.

[FN12] U.S.—City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367 (11th Cir. 1987).

Ill.—People v. Toliver, 251 Ill. App. 3d 1092, 191 Ill. Dec. 290, 623 N.E.2d 880 (2d Dist. 1993).

Tenn.—Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

END OF SECTION

CJS CONSTLAW §  1115

Tagged , , ,

Judge José Longoria sentences mom for spanking her child.

This story, out of Corpus Christi, Texas, has gotten fairly decent attention, albeit has been misrepresented in a number of ways. Some of the headlines state the judge “convicted the mother” of spanking her child, when in-fact she pleaded guilty. The judge merely passed sentence. That said, the comments made by Judge Jose Longoria speak to an unreasonable and despotic man who is very fit to wear the dress and bang the gavel of just-us. I will not attempt to raise the judiciary to some level of respect of nobility by stating that such acts are beyond its imagination since this type of conduct is exactly what the judiciary was created for. Longoria merely did what the people allowed him to do by their either electing or otherwise supporting him. It is like blaming a wolf for devouring a sheep when it was yourselves who placed the wolf in the barnyard.

As I stated in posts to the story, here is the lesson taught by the State. They will teach you that you have no interest in your children other than what they give you. They will teach your children that they will find safety and security in us; and if, upon reaching an age which they determine is reasonable, will beat, torture, or jail your children for their disobedience. Parents are hereby declared, impotent and the State omnipotent. For whatever reason, Mrs. Gonzales pleaded guilty to the charges. She should have demanded a jury trial because as the prosecutor even admitted, there is no clear law that criminalizes the spanking of one’s own child.  Every now and then the government will bring absurd charges against people they believe sufficiently ignorant or intimidated as a litmus test for their arrogance. No longer does the law have to rely upon the written word where acts and prohibitions are clearly defined, they now resort to presumption and the arbitrary edicts of judges.

Benches throughout this country are polluted with men and women of such villainy and there is but little recourse but to either not avail yourself to their unjust system or know how to defend yourself. Short of someone sufficiently outraged and indignant at the abuse which oozes from their gavel withdrawing their allegiance to this system of abuse, I can see a time where solitary individuals will resort to skulking into a judge’s residence and spiriting them from the comfort and safety of their bed to be tortured or dismembered as a statement of exasperation and saturation.

Meanwhile, men such as Jose Longoria will continue to exploit ignorance and exercise tyranny over the timid and weak. He believes parents are not within their rights to discipline their own children by spanking, but I would dare say that when that child fails to submit to the will of the State, he would have nothing to say about police either Tasering, pepper spraying, cuffing, or beating that same child should it fall from the grace of one of the State’s agents. Such men are of the lowest sort and should be dealt with accordingly.

If you wish to reach out to Judge Longoria, here is information you may use on expressing whatever your opinion, hopefully that of outrage.

José Longoria (D)
State District Judge (Nueces)

Residential Information

JOSE  LONGORIA

5050 GREENBRIAR

CORPUS CHRISTI, TX 78413

(361) 992-2267

Entered Office: 01-01-2001

Term Ends: 12-31-2012
District: 214
General Information
Profession: Judge
Home Town: Corpus Christi
Birthdate: 03-02-1943
Contact and Phone Numbers
901 Leopard, Room 902
Corpus Christi, TX 78401
(361) 888-0463
Fax: (361) 888-3671
Contact via Email

General Contact for Nueces
901 Leopard, Room 303
Corpus Christi, TX 78401
(361) 888-0444
Fax: (361) 888-0445
Website
Contact via Email

 

The story follows:

Judge has harsh words for Mom before sentencing her for spanking her kid
Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.

CORPUS CHRISTI, Texas (CBS) — A judge in Corpus Christi, Texas had some harsh words for a mother charged with spanking her own child before sentencing her to probation.

“You don’t spank children today,” said Judge Jose Longoria. “In the old days, maybe we got spanked, but there was a different quarrel. You don’t spank children.”

Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.

As part of the plea deal, Gonzales will serve five years probation, during which time she’ll have to take parenting classes, follow CPS guidelines, and make a $50 payment to the Children’s Advocacy Center.

She was arrested back in December after the child’s paternal grandmother noticed red marks on the child’s rear end. The grandmother took the girl, who was two years-old at the time, to the hospital to be checked out.

Gonzales who doesn’t have custody of the child or her other two children, is trying to get them back, but until CPS feels she is ready the kids are living with their paternal grandmother.

 

An open letter to Brendan Kelly, State’s Attorney

An open letter to Brendan Kelly, State’s Attorney

Mr. Kelly, you know of me. We have met face-to-face and communicated over phone calls and email. I have published our dealings on my website, www.markmccoy.com. You likewise know that I have been making claims of criminal acts committed by Fairview Heights Policemen, Joshua Alemond and Aaron Nyman. We met when you were acting as Circuit Clerk, and at that time you became aware of my allegations of criminal acts committed by these officers.

Mr. Kelly, I also know that your office is in possession of video evidence of the alleged criminal acts. You possess falsified and perjured reports from these officers, as well as video from the dashboard cameras from their patrol cars. The video shows one of the officers approaching me while on my knees at gunpoint, fully compliant and passive, and then being laid on the ground then beaten and Tasered, unprovoked. The ensuing reports which fabricated charges contradict the video evidence and give rise to perjury and falsifying charges.

Yet, Mr. Kelly, men such as you and these officers invoke what you call, “the law”, and selectively assail and prosecute what is convenient. The State was determined in pursuing charges against me, all of which were dismissed. Where is the same level of commitment in prosecuting police who break the law?

Tell me, Mr. Kelly, why do you not review the evidence? Why do you not accept my complaints? Where is so-called justice? I think we both know.

Mr. Kelly, let me introduce  you to some Appellate Court opinions that you may be familiar with, and if not, should acquaint yourself with.

Appellate Court of Illinois, Third District.

The People, ex rel. James M. Mahoney, State’s Attorney,

v.

Decatur, Springfield & St. Louis Railway Company, et al.

1905.

120 Ill.App. 229, 1905 WL 1987 (Ill.App. 3 Dist.)

This is an information or bill in chancery, in the name of the People of the State of Illinois, filed by James M. Mahoney, state’s attorney of Macoupin county, praying that appellees may be perpetually enjoined from entering upon any portion of West street in Carlinville, a city incorporated under the general incorporation law of Illinois, for the purpose of constructing a railroad, and from constructing such railroad in or upon said street. Upon a hearing upon the merits, the Circuit Court entered a decree dismissing the bill for want of equity, from which the complainant appeals.

Appellees were engaged in building an electric railroad from the city of Springfield to and through the city of Carlinville, and desired to obtain the right to lay down railroad tracks in and upon West street, in said city of Carlinville.

Pursuant to the statute enumerating the powers of city councils, which provides that a city council shall have no power to grant the use of, or the right to, lay down any railroad tracks, in any street of the city, to any railroad company, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes (Rev. Stat. 1903), certain persons professing to own property having a frontage of 8,200.5 feet upon said West street (the total frontage upon said street being 13,364.84 feet) on July 30, 1903, filed with the city clerk of said city a petition asking the city council to adopt an ordinance granting such right to appellees. On August 17, 1903, a number of those who had signed such original petition, and who represented 1,716 feet of frontage, filed with the city clerk an instrument in writing, which was on the same day presented and read to a meeting of the city council, by which they sought to withdraw their signatures from the original petition, and protesting that by reason of such withdrawal there remained no petition signed by more than one-half of the frontage of said street as required by law and therefore the council had no legal power to pass an ordinance granting such privilege. On August 21, 1903, an ordinance was duly passed by the city council authorizing appellees to construct, maintain and operate an electric railway on said West street.

It is first contended by appellees that the bill was properly dismissed for the reason that it appears that the proceeding is not bona fide for the purpose of protecting a public right shown to be threatened, but was in fact instituted to protect private owners of abutting property from a threatened injury to their property for which there is a complete remedy at law.

*2 In support of such contention affidavits were presented and filed upon the hearing, to the effect that the bill of information is contained in a wrapper indorsed with the names of the attorneys who are assisting the state’s attorney in the case; that the interlineations therein and indorsements thereon are in the handwriting of one of such attorneys, and further that the state’s attorney had theretofore stated that the bill was filed in his name because the property owners had been advised by their attorneys that they could not obtain an injunction in any way and that they had for that reason gotten him to file the bill in his own name.

Affidavits filed by appellant show that the information was prepared and filed conjointly by the state’s attorney and counsel for certain property owners who were, at the request of the state’s attorney, assisting him in the suit, and that the state’s attorney was impelled to act in the matter through the solicitation and importunity of different property holders upon West street and elsewhere in the city. We are unable to perceive how the actions of the state’s attorney can be impugned because he was thus moved to act, or that there was any impropriety in his accepting the assistance of private counsel, who were acting also for certain property owners. Any citizen has a right to call upon the state’s attorney to redress a public wrong. The fact that private rights may also be involved and that through the acts of the state’s attorney in the interests of the public, private wrongs, as well, may directly or indirectly be redressed, is immaterial. There was no impropriety in the action of the state’s attorney in requesting and accepting the assistance of such other counsel. Moreover it appears from the affidavit of the assistant state’s attorney, made in the absence of his chief from the State, that the information was filed by the state’s attorney of his own motion as the representative of the public; that he has not received and does not expect to receive any compensation whatever for his acts or services in the matter. In the case of People v. G. E. Ry. Co., 172 Ill. 129, cited by counsel for appellees, the court dismissed a similar proceeding to this for the reason that it clearly appeared from the evidence that the people were not in fact parties, that, on the contrary, the suit was instituted and prosecuted by the attorney-general at the sole instigation of a rival corporation by which he was employed and paid for his services. Nothing of the kind appears in the case at bar, and we, therefore, hold the contention in question to be unfounded and without merit.

It is further contended by appellees in support of the decree that the parties who signed the original petition asking the city council to grant the privileges sought by appellees could not afterward, and before the adoption of an ordinance, withdraw their signatures from such petition, and revoke such authority as said signatures thereto had given the council.

*3 In the case of Theurer v. The People, 211 Ill. 296, the sufficiency of an application for a license to keep a dramshop was involved. By an ordinance of the village of Hyde Park, it was necessary that a majority of the property owners within a certain prescribed territory should sign the application for such a license before the same could be granted by the mayor of the city of Chicago, to which the village had been annexed. The application there under consideration was, among others, signed by one Alister, who represented a certain number of feet frontage. It was presented to the mayor on May 29th. On June 22nd, and while the matter was under consideration and the signatures to the application were being verified, the mayor consented that the dram-shop might be opened, subject however, to the revocation of such provisional consent, if evidence should meanwhile be produced, sufficient under the law, in the judgment of the mayor, to invalidate the application. On July 22nd, following, Alister withdrew his name from the application, the effect of which was to leave the application unsupported by the requisite amount of frontage. Whereupon the mayor refused to grant the license. It was insisted by counsel for the applicant seeking the license, that the act of signing the application was an irrevocable act. The court held that Alister had a right to withdraw his consent at any time before the mayor had finally acted. See also, Kinsloe v. Pogue, 213 Ill. 302.

We are of opinion that the reasoning adopted and the conclusions reached by the court in the Theurer case and the cases there cited, and the rule thereby established, are applicable to the case at bar and are decisive of the question under consideration. That upon the withdrawal by property owners representing 1,716 feet of frontage, of their signatures to the application, there remained no such petition as is required by statute. Consequently the city council were without legal power or authority thereafter to adopt the ordinance in question and such ordinance was void and without legal force or effect.

Appellees further contend that inasmuch as the legislature has committed to the city of Carlinville, and other like municipalities, its sovereignty in respect to streets, highways and public grounds within its limits, the city of Carlinville is invested with the authority of the State in this respect and is the proper, if not the only party to maintain a bill in equity to restrain obstructions of streets within its limits; that it may, or may not, in its discretion, question appellees’ right of occupancy of West street; and further that the city having decided not to act, abutting owners can recover at law and have no other remedy.

In answer to this contention it is sufficient to reiterate that this proceeding is not by abutting property owners, but is, brought by the representative of the public, in their interest and behalf. In Doane v. Lake St. El. R. Co., 165 Ill. 510, it is said where the use of a street has not been legally authorized, an information in chancery by the attorney-general or state’s attorney on behalf of the People or a bill for injunction by the city, affords a proper and complete remedy. There is nothing in the authorities cited by counsel inconsistent with the view that a bill may be filed by either the city, the attorney-general or the state’s attorney, or that the state’s attorney may act regardless of whether the city may or may not think proper to do so. In the case under consideration, the city council has acted without legal authority or power. The theory that unless such city council chooses to stultify itself by authorizing proceedings to attach and defeat the result of such illegal action on its part the public is without remedy in the premises, is without support of reason or authority and clearly untenable.

*4 It is finally insisted that the abutting and other property owners upon whose motion the state’s attorney acted, have been guilty of such laches in denying the filing of the bill for five months, while the railroad company was acquiring and grading its right of way, and in failing to urge the application for an injunction for six months further while the company was completing its tracks up West street; that no such drastic relief as asked should be now allowed, but that they should be remitted to their action at law. The proceeding being in behalf of, and in the interests of the People, the doctrine of laches is not applicable.

“The attorney-general and the state’s attorney may file an information on behalf of the People where the interests of the public are involved and lapse of time constitutes no bar to such proceeding. The doctrine of estoppel does not apply to a matter in the nature of a public right, and the State is not embraced within the Statute of Limitations unless specially named, and, by analogy, does not fall within the doctrine of estoppel.” The People v. Burns, 212 Ill. 227.

The decree of the Circuit Court will be reversed and the cause remanded with directions to proceed in conformity with the views herein expressed.

Reversed and remanded.

 

Mitchell WARE, Plaintiff-Appellant,

v.

C. Bernard CAREY, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, Defendants-Appellees.

75 Ill.App.3d 906, 394 N.E.2d 690, 31 Ill.Dec. 488

In 1973 plaintiff, Mitchell Ware, filed a complaint against C. Bernard Carey, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, charging defamation. After several amendments and the dismissal of various counts, plaintiff’s third amended complaint was reduced to three counts (Counts I, III and X). Defendants filed their motion for summary judgment on all three counts and subsequently amended that motion. Plaintiff moved for summary judgment as to Counts I and III. On January 19, 1978, the circuit court of Cook County granted summary judgment for defendants on all counts. Plaintiff appeals that order. Because of the death of defendant Berkowitz, the action has abated as to him.

At the time of the alleged defamatory publications, plaintiff was the Deputy Superintendent of the Chicago Police Department. His responsibilities included supervision of the Intelligence Division, Internal Affairs Division, Inspections Division and Vice Control Division. Defendant, C. Bernard Carey, was the Cook County State’s Attorney. The remaining defendants were assistant State’s attorneys.

Count I alleges that Carey defamed plaintiff by virtue of a press release and public statement issued on September 11, 1973. It was further alleged that Carey knowingly made these false, defamatory statements. Count III alleges that Carey defamed Ware when he knowingly made false defamatory statements on a television interview show. Count X alleges that Carey and the other defendants caused the Cook County Grand Jury to issue a letter to Chicago Police Superintendent James Rochford that defamed plaintiff. Ware also alleged that defendants acted with knowledge of the falsity of the letter’s contents. The circuit court entered summary judgment for defendants on Counts I and III, finding as a matter of law that actual malice did not exist. Summary judgment for defendants on Count X was also granted because there was no genuine issue of material fact that defendants caused the drafting or publication of the letter.

Ware appeals on all counts, contending that factual issues remain necessitating remandment for trial on the merits. We affirm on all counts. Further development of the facts pertaining to each count follows in connection with the contentions of the parties.

Count I concerns Carey’s September 11, 1973, press release, which follows in its entirety:

“I have called this press conference to call public attention to what appears to me a deliberate attempt by Mayor Daley and his Police Superintendent Conlisk and Mitchell Ware to cover up police corruption and downgrade the efforts being made by this Office and U.S. Attorney James Thompson to expose and prosecute the many instances of extortion, shakedown, and corruption in the Police Department.

“Yesterday, a story appeared in one of the Chicago newspapers in which Mitchell Ware, Deputy Superintendent of Police in charge of inspectional services stated that now the cleanup of the Police Department in Chicago has been completed. According to Ware there can be no more corruption in the Police Department because if there was he would be aware of it.

“This follows the recent statement by Ware’s mentor, Mayor Daley, that there is no corruption in the Police Department. The public is corrupt, not the police.

“Shortly before the Mayor’s astounding pronouncement his Police Superintendent James Conlisk exploded to the press his confidence in the Police Department and in fact characterized prosecution of police extortionists as a smear on the top command of his Department. These public statements seem to me to be a deliberate signal to the police that official Chicago will continue to wink at corruption.

“I want to go on record that nothing is further from the truth. The era of police shakedown and extortion is ending. Such practices will no longer be tolerated.

“My office and the U.S. Attorney’s office will continue to investigate and prosecute any illegal acts to the limit of the law. It is the height of irony that the C-5 unit which Ware credits with the miracle of completing the cleanup of police corruption in Chicago should be headed by Mayor Daley’s protege, John J. Clarke, the man who is himself under indictment in the Federal Court on 8 counts of obstruction of justice and perjury. This is one more glaring example of Mayor Daley’s contempt for the intelligence of the people of Chicago and their concern for a Police Department worthy to meet the challenge of crime.

“Conlisk has publicly declared his confidence in Clarke despite the federal indictment. He can see nothing wrong in keeping a man in charge of this sensitive C-5 unit whose integrity has been challenged by the Federal Grand Jury. On the other hand, he cannot contain his indignation that at long last corruption within the Department is being brought to account before the courts.

“This City’s Police Department faces a crisis of confidence with the public. This is not a time for officials to show weakness or avert their eyes. I call upon these officials to retract these obnoxious statements and join with me to root out police corruption.

“Our office has charged or convicted 19 police officers this year, while the U.S. Attorney’s Office has 61 indictments or convictions of police officers.

“The vast majority of police are honest. They strive to be allowed to carry out their duty to protect the safety of the community. Without public respect and cooperation, their job can become  difficult and bitter. To ignore and even condone police corruption puts an extra burden on the honest cop.

“Mitchell Ware was appointed to clean up the Police Department when the public was crying out against obvious dishonesty, but now that the heat has cooled down, Daley, Conlisk and Ware think they can go back to the old routine of automatic whitewash.

“U.S. Attorney Thompson and I are determined to rid the Police Department of the extortionists and shakedown artists of whatever rank. Chicago needs and is entitled to an honest Police Department.”

Ware alleged that these statements were reported extensively by various Chicago newspapers, wire services and local radio and television stations. He contends that according to the plain meaning of the statement, Carey accused him of protecting and covering up police corruption.

After learning about this press release, Ware made a phone call to Carey. Ware alleged in his complaint that during this phone conversation “(t)he defendant Carey acknowledged and admitted the falsity of the statements complained of .”

Ware asserts that summary judgment on Count I was improper because the depositions on file established a material issue of fact as to whether Carey published his statements with actual malice (I. e., with knowledge of the falsity of his remarks or reckless disregard of whether they were false or not).   Troman v. Wood (1975), 62 Ill.2d 184, 189-190, 340 N.E.2d 292.

Carey offers four responses. First, by filing a cross-motion for summary judgment on Count I, Ware conceded that no triable fact issues remained and waiver or estoppel prohibits his arguing this issue on appeal. Second, his press release is capable of an innocent construction. Third, no triable issue as to actual malice exists. Fourth, as Cook County State’s Attorney, Carey is protected by an absolute privilege from defamation actions.

We find that Carey was protected by an absolute privilege from civil defamation and need not address the remaining issues.

II.

Carey maintains that the public statement which forms the basis for Count I is protected by the absolute executive privilege recognized in Blair v. Walker (1976), 64 Ill.2d 1, 349 N.E.2d 385. Alternatively, he claims the statement is non-actionable because of the doctrine of prosecutorial (quasi-judicial) immunity as defined in Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. We agree that Blair is controlling and need not discuss quasi-judicial immunity.

In Blair, plaintiffs were allegedly libeled by press releases made by Governor Walker. The Governor stated that plaintiffs used a corporate front and legal technicalities to obtain the home of a “helpless woman” through a foreclosure sale. He accused plaintiffs of violating real estate broker licensing laws and characterized them as “unscrupulous.” The Governor further stated that he had instructed the Department of Registration and Education to revoke plaintiffs’ real estate licenses.

The Supreme Court held that the Governor is protected from defamation actions by an absolute privilege when issuing statements legitimately related to matters committed to his responsibility. Plaintiffs contended that since the Governor had no express authority to license real estate brokers, he had acted beyond the scope of his duty. The court reasoned that the Governor did not violate the inherent, discretionary authority of his office by informing the public of actions he had directed be instituted against plaintiffs. The Governor’s duties include supervision of the Department of Registration and Education. Department officers are his subordinates. If the Governor’s statements had been communicated to Department officials, they clearly would have been absolutely privileged. The court also believed that the Governor did not exceed the bounds of his duty in communicating this message to his constituency.

Carey asks us to extend the Blair holding to afford him an absolute privilege in this case. Two issues concern us: (1) whether absolute executive immunity granted the Governor in Blair should be applied to the State’s Attorney, and (2) if so, whether Carey acted within the scope of that immunity.

We note initially that the State’s Attorney is an executive official as his office is part of the executive branch of government. ( People v. Vaughn (1977), 49 Ill.App.3d 37, 6 Ill.Dec. 932, 363 N.E.2d 879.) Blair’s grant of absolute executive immunity was held applicable to the chief executive officer of a municipality in Loniello v.   Fitzgerald (1976), 42 Ill.App.3d 900, 1 Ill.Dec. 560, 356 N.E.2d 842. Statements made by a mayor during a city council meeting were within the ambit of this privilege. The Loniello court deemed it logical that a mayor, like the Governor “should be able to carry out his daily responsibilities free from concern that his actions will result in civil damage suits.” Blair, 64 Ill.2d 1, 7, 349 N.E.2d 385, 387; see, also, Larson v. Doner (1961), 32 Ill.App.2d 471, 178 N.E.2d 399 (absolute privilege afforded mayor and city commissioners).

We are of the opinion that the policy underlying the grant of absolute immunity in Blair, Loniello and Larson is equally applicable to the instant case. Judge Learned Hand summarized the policy considerations favoring absolute immunity for government officials in Gregoire v. Biddle (2d Cir. 1939), 177 F.2d 579, 581 (Cert. denied (1950), 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363):

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to satisfy a jury of his good faith.”

[1][2] Carey is the chief law enforcement official for Cook County, Illinois. The State’s Attorney is a high ranking executive officer and an officer of the court charged with the administration of the law. ( People v. Dean (1923), 308 Ill. 74, 139 N.E. 37.) He has also been described as a “ quasi-judicial” officer. ( People ex rel. Schreiner v. Courtney (1942), 380 Ill. 171, 43 N.E.2d 982.) We believe that his office and the social and public interests it furthers are comparable to the chief executive officials of municipalities. Accordingly, we hold that the State’s Attorney has an absolute executive privilege from liability for defamation arising from the performance of his duties.

[3][4] It remains to be considered whether Carey’s press release under the circumstances of this case concerns matters legitimately related to matters committed to his responsibility. (Blair.) Duties of the State’s Attorney are codified in Ill.Rev.Stat.1977, ch. 14, par. 5. Among others, they include the duties:

“(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.

“(6) To attend before judges and prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court, when in his power so to do.

“(10) To perform such other and further duties as may, from time to time, be enjoined on him by law.”

The Illinois judiciary has added the duty to keep informed as to violations of the criminal laws ( O’Hair v. People (1889), 32 Ill.App. 277) and to investigate facts and determine whether an offense has been committed ( People v. Pohl (1964), 47 Ill.App.2d 232, 197 N.E.2d 759). The State’s Attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense may be charged. ( People v. Rhodes (1967), 38 Ill.2d 389, 231 N.E.2d 400.) In short, he has wide discretion in enforcing the criminal laws. ( Marcisz v. Marcisz (1976), 65 Ill.2d 206, 2 Ill.Dec. 310, 357 N.E.2d 477.) We interpret these Particularly principles as charging the State’s Attorney with responsibilities in criminal matters prior to any formal charging that may take place.

Standards of the American Bar Association regarding prosecution are also helpful in delineating the scope of the State’s Attorney’s responsibilities.   (ABA Standards, The Prosecution Function (1971).) Sections 1.1(a), (b), and 2.7 provide:

“1.1 The function of the prosecutor.

(a) The office of prosecutor, as the chief law enforcement official of his jurisdiction, is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law.

(b) The prosecutor is both an administrator of justice and an advocate; he must exercise sound discretion in the performance of his functions.

“2.7 Relations with the police.

(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.

(b) The prosecutor should cooperate with police in providing the services of his staff to aid in training police in the performance of their function in accordance with law.“ (Emphasis added.)

Particularly pertinent is section 3.1(a):

“A prosecutor, as the chief law enforcement official of his jurisdiction, ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but he has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.”

Of particular interest to this case are remarks in the Introduction to these ABA standards:

“(T)he prosecutor is the leader of law enforcement in the community. He is expected to participate actively in marshaling society’s resources against the threat of crime. When a crisis in the enforcement of criminal law arises in the community, * * * he may be drawn into the maelstrom of political controversy by the demand that he ‘stamp out the criminals.’ He is called upon to make public statements, to propose legislative reforms, or to direct the energies of the law enforcement machinery of the community.” ABA Standards Relating to the Administration of Criminal Justice, Compilation, p. 77 (1974). (Emphasis added.)

ABA Standards regarding police functions also are instructive (ABA Standards, The Urban Police Function, ss 1.1, 5.1, 9.3 (1973):

“1.1 Complexity of police task.

(a) Since police, as an agency of the criminal justice system, have a major responsibility for dealing with serious crime, efforts should continually be made to improve the capacity of police to discharge this responsibility effectively. It should also be recognized, however, that police effectiveness in dealing with crime is often largely dependent upon the effectiveness of other agencies both within and outside the criminal justice system. Those in the system must work together through liaison, cooperation, and constructive joint effort. This effort is vital to the effective operation of the police and the entire criminal justice system.

“5.1 Need for accountability.

Since a principal function of police is the safeguarding of democratic processes, if police fail to conform their conduct to the requirements of law, they subvert the democratic process and frustrate the achievement of a principal police function. It is for this reason that high priority must be given for ensuring that the police are made fully accountable to their police administrator and to the public for their actions.

“9.3 The news media.

Public understanding of the police function is heavily dependent upon the coverage given by mass media to the newsworthy events in which the police are involved. Newspaper, radio, and television**696 ***494 reporters assigned to reporting on police activities should have a sufficiently thorough understanding of the complexities of the police function to enable them to cover such events (as well as other matters that now go unreported) in a manner that promotes the public’s understanding of the police role.“

[5] With these principles in mind, we turn to the circumstances of the instant case.  Carey submitted an affidavit in support of his motion for summary judgment on Counts I and III.  This affidavit was not contested by motion or counter-affidavit, so its substance must be taken as true.   ( Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601; Watson v. Southwest Messenger Press, Inc. (1973),12 Ill.App.3d 968, 299 N.E.2d 409.) Carey contends that his affidavit establishes an innocent construction for his press release. We do not reach this issue, but consider the affidavit solely to determine the scope of Carey’s responsibilities as Cook County State’s Attorney. In pertinent part, the affidavit reads:

“5. That statements which are the subject matter of Counts I and II of the Substitute Third Amended Complaint were made by me as State’s Attorney of Cook County in response to statements by the late Mayor of Chicago, Richard J. Daley, that the person that pays off a police official is responsible for police corruption and not the policeman that takes the money, and that tavern owners may lose their liquor licenses after they testify against the police officers charged with extorting the payoff; a statement by former Chicago Superintendent of Police James Conlisk publicly attacking the credibility of a police officer who testified in a police extortion trial that other police officers extorted or received payoffs from tavern owners; and the statement of plaintiff Mitchell Ware that all pockets of corruption have been removed from the Chicago Police Department.

“6. The aforementioned statements were made during the pendency of an extortion trial of a Chicago Police Commander and other Chicago policemen before an unsequestered jury.

“7. That my many years of experience as a law enforcement official and my reading of studies of official corruption led me to believe that corruption cannot be eradicated until there is an admission that it exists and that the aforementioned statements of Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware, taken together, implied that individuals who came forward to testify about police extortion and payoffs could be punished and that police officers could infer that other law enforcement officials would not be vigilant in attempting to eradicate corruption.

“8. That by my statements I intended to call a halt to the type of statements being made by Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware and request that we work together to eradicate corruption.

“9. That I believed that my statements, taken as a whole, were true and in the best public interest.”

[6] We believe that Carey’s issuance of the press release remarks were legitimately related to his responsibilities as leader of community law enforcement and his concomitant duty to investigate police corruption. The ABA Standards charge the prosecutor with (1) the duty to insure faithful execution of the laws (s 1.1(a)); (2) providing legal advice and training concerning police functions (s 2.7); (3) an affirmative *917 responsibility to investigate suspected illegal activity when this is not adequately dealt with by the police (s 3.1(a)); and (4) maintaining liaison, cooperation and constructive joint effort with the police department to assure police effectiveness in dealing with the crime (s 1.1 of The Urban Police Function).

If that portion of the press release pertaining to Ware was communicated directly to him, rather than to the public, it undoubtedly would be absolutely privileged. Carey’s affidavit demonstrates his twofold concern over (1) the effect Ware’s statement may have had on a pending police extortion trial and Carey’s ability to prosecute future episodes of police misconduct, and (2) the need to recognize corruption exists as a prerequisite to its eradication. The communication of these concerns to Deputy Superintendent Ware was certainly consistent with the principles set forth by the ABA. It was also a proper exercise of Carey’s discretion as to the pretrial administration of criminal justice.

Following the Blair analysis, we must next decide whether Carey’s decision to inform the general public should be afforded absolute privilege. We are of the opinion that, like the Governor in Blair, Carey could, in the exercise of his discretion, communicate these remarks to the public. The ABA Standards portray the importance of public disclosure concerning the police function (ABA Standards, The Urban Police Function, s 9.3 (1973)) and the need for police accountability to the public (s 5.1). The State’s Attorney has the inherent power as the chief legal official in the county to maintain this accountability. As the Introduction to the Standards indicates “(h)e is called upon to make public statements” and “the prosecutor’s activity is in large part open to the public gaze and spotlighted by the press.” We cannot say Carey’s call for public accountability by Ware was outside the perimeters of the State’s Attorney’s discretion.

In Blair, the court noted that the Governor did not exceed the scope of his discretionary powers by informing the public about disciplinary actions he had directed be taken. Indeed, the effective functioning of our system of government is dependent largely upon the force of an informed public opinion as to the quality of service rendered by public officials, and free and unfettered action by the public’s representatives. ( Howlett v. Scott (1977), 69 Ill.2d 135, 144, 13 Ill.Dec. 9, 370 N.E.2d 1036.) Carey’s press release appeared to be an effort to harness the dual effectiveness of his office and public opinion to curb what he believed was an improper use of police powers by Ware. Carey’s remarks may be taken, therefore, as an official reprimand to Ware for actions that Carey believed were not in the best interest of criminal justice administration.

Ware argues, however, that the State’s Attorney’s office admitted that no prosecution or investigation of Ware was under process or even contemplated. Therefore, Carey exceeded his traditional responsibilities by accusing Ware of protecting corruption. This argument misses the point. Ware had made public statements that all pockets of corruption had been eradicated from the Chicago Police Department. Carey feared this sort of statement might have influenced an unsequestered jury in a pending federal trial. Investigation of whether Ware had made his statements with the intent of protecting corruption was not necessary since the effect of his statements might have influenced that jury. According to his affidavit, Carey acted based upon his experience in law enforcement, his studies of official corruption, and his belief that police corruption continued to exist in Chicago. At the point in time of Carey’s remarks to the press, Carey was only concerned with the veracity and effect of Ware’s statement and the appearance of impropriety by Ware. The fact that no formal investigation or charging of Ware based upon an intent to protect corruption took place does not militate against Carey’s responsibility to mitigate what he believed were damaging remarks by Ware. Accordingly, under the circumstances described above, Carey’s September 11, 1973, press release was absolutely privileged.

We need not decide if executive absolute immunity is applicable to Counts III and X, as they are affirmed for other reasons explained below.

III.

Count III of plaintiff’s complaint alleges that on September 23, 1973, Carey made the following defamatory statement during a public television appearance:

Question from Mary Jane O’Dell: “Mr. Carey, I don’t understand why are you miffed with Mitchell Ware because he seems to have done something before you did it . . . you say you are going to do this . . . you are planning to do this . . . but you haven’t actually done it yet. What has he done thats wrong?”

Carey: “No not at all. And if you will look back at what I have said regardless of how they have changed the tones of all this and all the silly counter charges that they have made . . . is that my only disagreement with Mitchell Ware is that I disagreed with two statements that he made. The first one indicating that all the police corruption had now been cleaned up and that he was aware of all the pockets of corruption . . . now this couldn’t be so because he hasn’t brought us all of these things that we know are still going on. Now we have worked on a cooperative basis with the C-5 Unit and they have done an excellent job in many areas . . . and I never questioned the job that they are doing. What I question are these types of public statements that are intended to delude the public into thinking that this is all over now or utilizes a signal to everyone that now you don’t have to cooperate anymore because the corruption is ended and we’re going to go back to good old times in Chicago. Those were my quarrels with Mitchell Ware . . . I also quarreled with his statement the other day that this gambling operation erradicated a three million industry when in fact the next day the operation is back in business.”

Question from Mary Jane O’Dell: “But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true. Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.”

Carey: “Oh yes, lets put that back in the proper perspective. Its a historical fact that the syndicate has operated for years in the city of Chicago and I dare anyone to try and dispute that fact and its also historical fact and its not only historical fact but its a matter of testimony in pending federal trials excluding the one thats going on now which we can’t discuss . . . but the federal trials that have gone on heretofore which indicated much corruption in high public officials including an ex-governor, including the present, at that time the present county clerk, and corruption within the police department, convictions have been had.”

Specifically, Ware contends that Carey’s response to the second question is an allegation that Ware was responsible for protecting the syndicate. Carey asserts that summary judgment in his favor on Count III was proper based on three grounds. First, the complaint alleges only conclusions with regard to the alleged defamatory statement and does not allege actual malice. Second, the specific statement alleged was never pleaded until after the statute of limitations had expired. Third, the specific statement complained of is capable of an innocent construction which does not defame Ware.

[7] We agree with Carey’s third contention and need not address his other arguments.  The innocent construction rule requires that an article, passage or statement be read and construed as a whole and the words given their natural and obvious meaning.  Words that are allegedly libelous capable of being read innocently must be so read and declared nonactionable as a matter of law.     Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 347, 243 N.E.2d 217; John v. Tribune Co. (1962), 24 Ill.2d 437, 181 N.E.2d 105, Cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114.

[8] We are of the opinion that placed in the full context of the conversation Carey’s response is capable of an innocent construction. Mary Jane O’Dell offered two questions for Carey’s consideration. First, he was asked: “But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true.” Immediately following was the query: “Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.” Carey’s response, “Oh yes, let’s put that back in the proper perspective” might refer to either question. It is possible that Carey was merely quarreling with Ware’s claim that police corruption did not exist, rather than accusing Ware of protecting corruption and the syndicate. Accordingly, we are required to hold Carey’s statement is nonactionable.

The plausibility of this innocent construction is evidenced by Carey’s response to O’Dell’s previous question which is quoted above. There, she also presented Carey with a twofold question: “I don’t understand why are you miffed with Mitchell Ware” and “What has he done thats wrong?” Carey’s answer, “No not at all” more probably relates to the first question and indicates he was not “miffed” at Ware. Consistency would require his answer to O’Dell’s next question also be interpreted as sequential.

IV.

Count X of plaintiff’s complaint deals with the publication of a letter, signed by the foreman of the extended May 1975 Grand Jury, to the Superintendent of the Chicago Police Department, James M. Rochford. The substance of the letter was that evidence presented during the grand jury investigation indicated that Deputy Superintendent Ware completely ignored his responsibility to supervise the activities of the Security Section of the Chicago Police Department. Ware was accused of gross neglect of his official duties which attributed to the excesses engaged in by members of the Security System. Ware alleged that the letter was written at the direction of the defendants Carey, Berkowitz, Iavarone and Gillis, and published in the news media by or with their approval.

The complaint further alleges that the scope of the investigation by the extended May 1975 Grand Jury concerned criminal acts committed by police officers from 1967 to 1970. Defendants were aware that Ware did not join the Chicago Police Department until 1972. Thus, each defendant was allegedly aware of the falsity of the letter’s contents.

Defendants’ motion for summary judgment was supported by the affidavits of Carey, Berkowitz, Gillis and Iavarone. Each affiant asserted that he did not cause or direct the grand jury foreman to write, sign or issue the controverted letter. Nor did affiants cause or direct their agents *921 or employees to take such action. Attached also to the motion for summary judgment were excerpts from the deposition of the grand jury foreman, Sylvester Maida. Pertinent portions of Maida’s deposition testimony explaining the composition and publication of the letter follow:

“Q (by Mr. Ware): Had you ever met with any of the Defendants and that would include Bernard Carey, Ralph Berkowitz, Kenneth Gillis, Nicholas Iavarone, or any of their employees before the convening of the Cook County Grand Jury?

“A: No.

“Q: Have you ever met and conversed with either of the Defendants in this cause outside the Grand Jury room?

“A: No.

“Q: When did you initially decide to write the letter?

“A: I guess I did write the letter but the jury did discuss some kind of letter to Rochford, and this is what they discussed and what they wanted to send.

“Q: Did you discuss the idea of writing the letter, the contents of this letter with anyone other than a Grand Juror outside the Grand Jury room before it was written?

“A: No.

“Q: Were you given any directions or suggestions or assistance in the composition of this letter by anyone in the State’s Attorney’s office outside the Grand Jury room?

“A: No, not that I can recall, no.

“Q: Did anyone in the State’s Attorney’s office suggest to you the writing of the 44 page report or the letter in this case outside the Grand Jury room?

“A: No.

“The Witness: I didn’t write the letter. There was some college people there that were a little in fact, towards the end of the last couple of weeks of this here, when they wrote up this recommendation, there were a couple of well, I presume they had college educations because they were rather smart, as far as I was concerned, and they kind of took over the recommendations. And there was one or two others that were kind of a little sharp on this and I kind of just sat in the background and just listened to what they were doing and went along and read it and agreed with them on what they had said and on what they decided, the recommendation of it.

“That’s why I said I never wrote any letters, or I don’t think I ever made my own recommendation in that 44 page report. That was all agreed by the jurors, so this is the truth and nothing but the truth.”

During their depositions, defendants were questioned as to whether they wrote the letter to Rochford or assisted the foreman in its drafting. Defendants refused to answer on the grounds of grand jury secrecy. Therefore, defendants’ depositions are not inconsistent with their affidavits.

Plaintiff filed a response to defendants’ motion for summary judgment as to Count X. He contended that an issue of fact remained; that defendants’ affidavits were self-serving and failed to resolve the issue of responsibility for the letter; and that defendants failed to answer pertinent questions on discovery under the guise of grand jury secrecy. In support of his response, Ware attached excerpts from the deposition of Maida, excerpts from the depositions of defendants Iavarone and Gillis and his own affidavit.

Ware’s affidavit states that defendants were aware of when he began his services as a Chicago Police Department Superintendent. Affiant further stated that each defendant knew of the existence of a gag order issued by the circuit court of Cook County pertaining to the extended May 1975 Grand Jury. Iavarone and Gillis were working under the direction of Carey and Berkowitz and reported to them on grand jury activities.

Ware also stated that the letter “was delivered at the direction of the defendant Iavarone, and with knowledge and complicity on the parts of both Iavarone and Gillis (with knowledge) that it contained * * * defamatory allegations concerning (Ware).” Affiant attempted to identify the individuals specifically responsible for the letter but defendants chose not to answer during discovery, alleging grand jury secrecy.

Excerpts from Maida’s deposition testimony selected by Ware establish that Maida did not personally write the letter to Superintendent Rochford. In fact, Maida had little or no recollection as to the drafting, editing, typing or mailing of the letter. However, Maida did admit the possibility that the grand jury was responsible for the letter. He maintained that his involvement, if any, consisted of reading the proposed letter and signing it.

Gillis’ deposition revealed that he was familiar with the grand jury letter and report. However, Gillis was instructed by counsel not to answer questions pertaining to the grand jury letter. Gillis, therefore, offered no information as to the preparation of the letter and report.

The deposition testimony of Iavarone established that he was familiar with the letter sent to Rochford, that he knew its contents and that he had it physically delivered. The witness professed to know who wrote the letter but was instructed by counsel not to answer the question: “Did you write the letter?” Iavarone stated that Carey knew about the letter but did not know its contents until this suit was filed. He did not personally show the letter to Carey or Berkowitz. Iavarone did show the letter to Gillis, but did not know if Gillis discussed it with Carey or Berkowitz. Iavarone also testified that his secretary had typed the letter.

We find that, based on the above-mentioned affidavits and deposition excerpts, no triable issue of fact existed as to whether defendants were responsible for the publication of the grand jury letter.

[9][10] Defendants’ affidavits are neither controverted by Ware’s affidavit nor by deposition testimony. An affidavit in support of a motion for summary judgment is actually a substitute for in-court testimony and should contain as much information as the affiant could competently testify to if he were sworn as a witness. ( Fooden v. Board of Governors of State Colleges and Universities (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, Cert. denied (1972), 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 766.) Here, defendants directly contradicted the allegations of Count X in their affidavits by denying any responsibility for the drafting or publication of the grand jury letter. Where such averments of fact are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish issues of fact. (Fooden.) Ware’s counteraffidavit is wholly conclusory, speculative and merely serves to restate the allegations of his complaint with reference to defendants’ responsibility for the letter. Ware states no facts indicating his personal knowledge concerning these allegations. Moreover, Ware admitted in his deposition that he had no personal knowledge regarding what transpired before the grand jury. Only defendants and Maida would have personal knowledge as to responsibility for the letter. Defendants’ affidavits denying responsibility remain uncontroverted by Ware. Maida’s explanation that other jurors may have been responsible for the letter is consistent with defendants’ affidavits. Accordingly, summary judgment for defendants as to Count X was proper.

Ware also complains that defendants’ failure to discuss the letter during deposition testimony under the guise of grand jury secrecy creates an issue of fact. Ware asserts the fact of nondisclosure in his counteraffidavit and defendants’ depositions bear this out. During deposition questioning, on advice from counsel, defendants refused to answer certain questions pertaining to the authorship, composition and delivery of the grand jury letter. Defendants’ counsel made timely objections to these questions and Ware “certified” these questions.

We are of the opinion that this issue should have been raised in the trial court. (See Hill v. Thomas B. Jeffery Co. (1920), 292 Ill. 490, 127 N.E. 124.) Supreme Court Rule 211 (Ill.Rev.Stat.1977, ch. 110A, par. 211(c)(4) ) provides:

“Any party may, but need not, on notice and motion obtain a ruling by the court on the objections In advance of the trial.” (Emphasis added.)

Moreover, Rule 219, concerning refusal to answer by a deponent, provides that the proponent of the question may move for an order compelling an answer. Additional discovery options available to Ware were the possibilities of a protective order regulating discovery to prevent an unreasonable disadvantage, or oppression by defendants (Rule 201(c)(1) ); court supervision of discovery (Rule 201(c)(2) ); or discovery sanctions where appropriate (Rule 219(c), (d) ).

If Ware had attempted to implement these discovery safeguards, the issue of grand jury secrecy as a purported ground for refusal to answer deposition questions could have been litigated below. Our record, however, is silent on this issue. Since defendants have denied involvement with the grand jury letter via affidavits, we will not construe their deposition silence as inconsistent with these denials.

Construing all of the materials before the trial court in the light most favorable to the non-moving party Century Display Manufacturing   Corp. v. D. R. Wager Construction Co., Inc.  (1977), 46 Ill.App.3d 643, 4 Ill.Dec. 913, 360 N.E.2d 1346), we find no triable issue of fact as to Count X.

For all of the aforementioned reasons, the order of the circuit court of Cook County granting defendants summary judgment on Counts I, III and X is affirmed.

Affirmed.

PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Terrence J. BARON, Defendant-Appellant.

130 Ill.App.2d 588, 264 N.E.2d 423

The defendant, Terrence J. Baron, was indicted for the illegal sale of hallucinogenic drugs, in violation of section 802(b) of Chapter 111 1/2 of Illinois Revised Statutes of 1969. The indictment charged that the defendant sold 220 LSD tablets on May 27, 1969, and the indictment bore number F69-41. This was a second offense and was therefore classified as a felony. The first offense against the defendant was charged in a complaint which was then pending before the same court. It bore case number M69-590, and was classified as a misdemeanor. See: Ill.Rev.Stat.1969, ch. 111 1/2, par. 804. A further and unrelated misdemeanor charge was pending against the defendant which bore number M69-591.

The defendant pled guilty to charges M69-590 and F69-41, and the State then filed a nolle prosequi to case number M69-591. The case numbered F69-41 was then set for hearing on an application for probation and for hearing in aggravation and mitigation. The court ordered the probation officer to make an investigation and report back within two weeks.

At this point in the proceeding, it was made known to the court that the guilty pleas in cases F69-41 and M69-590 had both been obtained upon a promise of probation. When it became apparent that the court was not going to be governed by the negotiated plea agreement, the defendant’s counsel immediately asked that the pleas of guilty be withdrawn in cases F69-41 and M69-590, and that the nolle prosequi, which had been entered in case M69-591, be withdrawn and the case reinstated, thus placing everything in the proceedings back at its initial status. The court denied the motion and granted probation for a period of three years, conditioned upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

[1] The defendant filed an extensive motion for new trial, which was denied, and he has appealed. He contends, among things, that the trial court erred in refusing to permit him to withdraw his pleas of guilty. We believe that the defendant is correct in this contention.

The defendant obviously agreed to plead guilty upon the misapprehension that he would receive an unconditional probation on the felony charge of selling hallucinogenic drugs. The record permits no other conclusion. The court would not accede to such agreement, and conditioned the defendant’s probation upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

In The People v. Riebe, 40 Ill.2d 565 at page 568, 241 N.E.2d 313 at page 314 (1969), the court summarized the oft-repeated principles applicable to permitting the withdrawal of a plea of guilty, in these words:

‘The discretion of the trial court to permit the withdrawal of the plea of guilty is a judicial discretion which should always be exercised in favor of innocence and liberty. The law favors a trial upon the merits by jury, and all courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits, if possible. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of the plea from guilty to not guilty. The withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.’

The Advisory Committee on the Criminal Trial of the American Bar Association Project on Minimum Standards for Criminal Justice with reference to Pleas of Guilty, recommends in Part II, Section 2.1, (a)(ii)(4), relating to the withdrawal of a guilty plea, that the court should allow a defendant to withdraw a guilty plea if the defendant proves that ‘he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement.’ See: The People v. Walston, 38 Ill.2d 39, 43, 44, 230 N.E.2d 233 (1967).

[2] We are compelled to the conclusion that the trial judge knew of the negotiations that preceded the plea of guilty in cases numbered F69-41 and M69-590. While that judge was not the judge who entered the subsequent orders, this circumstance does not alter our view that the ends of justice require that the defendant be permitted to withdraw his plea of guilty in cases numbered M69-590 and F69-41, and to substitute in lieu thereof, pleas of not guilty. We note that as to the other misdemeanor case numbered M69-591, a nolle prosequi was entered at the time the guilty pleas were entered. The record and appellant’s brief indicate*591 that this nolle prosequi was a part of the same plea agreement. Consequently, the defendant must agree to the reinstatement of that case, subject to his right to change his pleas, if he is to be permitted to alter his pleas in cases F69-41 and M69-590.

If such concession is not forthcoming, the judgment herein is to be affirmed; if such concession is made, then the judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

[3][4][5] The trial judge who entered the judgment appealed from herein evidently became confused with reference to the number, charge, plea, and status of each of the three cases which were pending against the defendant. Under such circumstances, he entered an order that the felony case against the defendant, numbered F69-41 be designated a misdemeanor. Such order was beyond his power. It is the duty of the State’s Attorney in misdemeanor cases, and the State’s Attorney or Grand Jury in felony cases, to determine the charge which will be placed against a person.

Section 5 of Chapter 14 of Illinois Revised Statutes of 1969 provides that it is the duty of the State’s Attorney to commence and prosecute all criminal actions, suits and indictments. Article III of the Illinois Constitution divides the powers of the government among the legislative, executive and judicial departments, and provides that neither of these departments shall exercise powers belonging to either of the other departments.

The State’s Attorney’s office is a part of the executive branch of the government, and the powers exercised by that office are executive powers.  A judge or court cannot exercise the powers of the executive branch of our government.   People ex rel. Elliott v. Covelli, 415 Ill. 79, 88, 89, 112 N.E.2d 156 (1953). Thus, the court erred in designating the felony charge as a misdemeanor and in treating it as such. This order was void as a judicial encroachment upon the executive power of the State’s Attorney.

The other matters raised by the defendant need not be discussed in view of the position we have taken herein. Accordingly, the judgment is reversed and remanded, subject to the conditions enumerated in the opinion.

Reversed and remanded.

Supreme Court of the United States.

 

VOGEL, Ex’r, etc.,

v.

GRUAZ.

110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158

This is an action on the case, brought by Timothy Gruaz, against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous, and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a state court of Illinois, and was removed by the defendant into the circuit court of the United States for the Southern district of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the fourteenth of June the defendant died, on the twelfth of July an order abating the case was moved for, on behalf of the defendant, and on the sixteenth of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June 7, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the circuit court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was state’s attorney for Madison county, Illinois; he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred: ‘Question. I will ask you if you had any conversation with Dr. Bircher with regard to Gruaz, and, if so, when was it? Counsel for defense asked witness if at that time he was occupying the same position he now holds. Answer. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher? A. Yes, sir. (Defendant’s counsel object to witness testifying to matters disclosed to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to* disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state’s attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can’t swear that the word ‘thief’ was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison county, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn’t say what took place before the grand jury. Don’t know, I suppose. Witness. No, I don’t know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on-I don’t say that; I advised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as state’s attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn’t get judgment against him, and so put it in a better shape to prosecute him. He stated his case, and I thought from his statement that he would have few, if any, witnesses besides himself, and that it would be doubtful, however honestly he might believe, that he had cause; it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit; but, said I, you are here, and you mustn’t think hardly of me if the grand jury don’t find a bill; and I directed him to the grand jury room.’

The bill of exceptions also contains the following: ‘In reference to the testimony of state’s attorney C. L. Cook, the court instructed the jury as folfows: ‘I admitted that evidence with an explanation, and with the explanation made in the admission of it I think I am content, and I think the jury may take it into consideration; but if they think the defendant was actuated by honest motives in making the declaration he did, they will disregard it.’ To the giving of which last instruction the defendant excepted, for the reason that the instruction ignores the element of want of probable cause, and for the reason also that the jury should have been instructed to disregard Cook’s testimony entirely.’

We are of opinion that what was said by Bircher to Mr. Cook was an absolutely privileged communication. It was said to Mr. Cook while he was state’s attorney or prosecutor of crimes for the county, and while he was acting in that capacity. Bircher inquired for the state’s attorney and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated how and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that.  The grand jury was then in session, and Mr. Cook advised Bircher that he had a good case and directed him to the grand jury-room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged and not to be disclosed against the objection of Bircher.  Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him on a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz.  The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them.  It made that relation more sacred on the ground of public policy.  The avenue to the grand jury should always be free and unobstructed.  Bircher might have gone directly before it without consulting with Mr. Cook, but if he chose to consult him instead of a private counsel, there was great propriety in his doing so.  Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection.   Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state’s attorney to ‘commence and prosecute’ all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified, because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter and question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and that of the public through him, to have a criminal prosecution commenced by Mr. Cook by the intervention of the grand jury against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington v. Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the treasury department of the United States that the plaintiff was intending to defraud the revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the house of lords, L. R. 7 H. L. 744. See, also, 1 Greenl. Ev. § 250; Black v. Holmes, 1 Fox & Sm. 28.

It makes no difference that there was evidence of the speaking of the same words to persons other than Mr. Cook, and that the speaking of them to Mr. Cook was not the sole ground of action or of recovery. The evidence was incompetent, and it must be inferred that it affected the minds of the jury both on the main issue and on the question of damages.

It results from these views that the judgment below cannot be upheld, and that it must be reversed, and the case be remanded to the circuit court, with direction to set aside the verdict and vacate the judgment and take such further proceedings as may be according to law and not inconsistent with this opinion.

The Politics of Obedience – The Discourse of Voluntary Servitude by Étienne de la Boétie

More Anti-Statism: The Underpinnings of the State

La Boétie wrote the following essay while still a law student at the University of Orléans in the early 1550s. Gene Sharp, author of The Politics of Nonviolent Action, had this to say about it: “[La] Boétie’s Discourse is a highly significant essay on the ultimate source of political power, the origins of dictatorship, and the means by which people can prevent political enslavement and liberate themselves. The Discourse should have a prominent place in the history of political theory, and also of the development of the power analysis in which the technique of non-violent struggle is rooted.”

The Politics of Obedience:
The Discourse of Voluntary Servitude

by Étienne de la Boétie

(Part I)

I see no good in having several lords;
Let one alone be master, let one alone be king.

THESE WORDS Homer puts in the mouth of Ulysses,1 as he addresses the people. If he had said nothing further than “I see no good in having several lords,” it would have been well spoken. For the sake of logic he should have maintained that the rule of several could not be good since the power of one man alone, as soon as he acquires the title of master, becomes abusive and unreasonable. Instead he declared what seems preposterous: “Let one alone be master, let one alone be king.” We must not be critical of Ulysses, who at the moment was perhaps obliged to speak these words in order to quell a mutiny in the army, for this reason, in my opinion, choosing language to meet the emergency rather than the truth. Yet, in the light of reason, it is a great misfortune to be at the beck and call of one master, for it is impossible to be sure that he is going to be kind, since it is always in his power to be cruel whenever he pleases. As for having several masters, according to the number one has, it amounts to being that many times unfortunate. Although I do not wish at this time to discuss this much debated question, namely whether other types of government are preferable to monarchy,2 still I should like to know, before casting doubt on the place that monarchy should occupy among commonwealths, whether or not it belongs to such a group, since it is hard to believe that there is anything of common wealth in a country where everything belongs to one master. This question, however, can remain for another time and would really require a separate treatment involving by its very nature all sorts of political discussion.

FOR THE PRESENT I should like merely to understand how it happens that so many men, so many villages, so many cities, so many nations, sometimes suffer under a single tyrant who has no other power than the power they give him; who is able to harm them only to the extent to which they have the willingness to bear with him; who could do them absolutely no injury unless they preferred to put up with him rather than contradict him. Surely a striking situation! Yet it is so common that one must grieve the more and wonder the less at the spectacle of a million men serving in wretchedness, their necks under the yoke, not constrained by a greater multitude than they, but simply, it would seem, delighted and charmed by the name of one man alone whose power they need not fear, for he is evidently the one person whose qualities they cannot admire because of his inhumanity and brutality toward them. A weakness characteristic of human kind is that we often have to obey force; we have to make concessions; we ourselves cannot always be the stronger. Therefore, when a nation is constrained by the fortune of war to serve a single clique, as happened when the city of Athens served the thirty Tyrants3 one should not be amazed that the nation obeys, but simply be grieved by the situation; or rather, instead of being amazed or saddened, consider patiently the evil and look forward hopefully toward a happier future.

Our nature is such that the common duties of human relationship occupy a great part of the course of our life. It is reasonable to love virtue, to esteem good deeds, to be grateful for good from whatever source we may receive it, and, often, to give up some of our comfort in order to increase the honor and advantage of some man whom we love and who deserves it. Therefore, if the inhabitants of a country have found some great personage who has shown rare foresight in protecting them in an emergency, rare boldness in defending them, rare solicitude in governing them, and if, from that point on, they contract the habit of obeying him and depending on him to such an extent that they grant him certain prerogatives, I fear that such a procedure is not prudent, inasmuch as they remove him from a position in which he was doing good and advance him to a dignity in which he may do evil. Certainly while he continues to manifest good will one need fear no harm from a man who seems to be generally well disposed.

But O good Lord! What strange phenomenon is this? What name shall we give it? What is the nature of this misfortune? What vice is it, or, rather, what degradation? To see an endless multitude of people not merely obeying, but driven to servility? Not ruled, but tyrannized over? These wretches have no wealth, no kin, nor wife nor children, not even life itself that they can call their own. They suffer plundering, wantonness, cruelty, not from an army, not from a barbarian horde, on account of whom they must shed their blood and sacrifice their lives, but from a single man; not from a Hercules nor from a Samson, but from a single little man. Too frequently this same little man is the most cowardly and effeminate in the nation, a stranger to the powder of battle and hesitant on the sands of the tournament; not only without energy to direct men by force, but with hardly enough virility to bed with a common woman! Shall we call subjection to such a leader cowardice? Shall we say that those who serve him are cowardly and faint-hearted? If two, if three, if four, do not defend themselves from the one, we might call that circumstance surprising but nevertheless conceivable. In such a case one might be justified in suspecting a lack of courage. But if a hundred, if a thousand endure the caprice of a single man, should we not rather say that they lack not the courage but the desire to rise against him, and that such an attitude indicates indifference rather than cowardice? When not a hundred, not a thousand men, but a hundred provinces, a thousand cities, a million men, refuse to assail a single man from whom the kindest treatment received is the infliction of serfdom and slavery, what shall we call that? Is it cowardice? Of course there is in every vice inevitably some limit beyond which one cannot go. Two, possibly ten, may fear one; but when a thousand, a million men, a thousand cities, fail to protect themselves against the domination of one man, this cannot be called cowardly, for cowardice does not sink to such a depth, any more than valor can be termed the effort of one individual to scale a fortress, to attack an army, or to conquer a kingdom. What monstrous vice, then, is this which does not even deserve to be called cowardice, a vice for which no term can be found vile enough, which nature herself disavows and our tongues refuse to name?

Place on one side fifty thousand armed men, and on the other the same number; let them join in battle, one side fighting to retain its liberty, the other to take it away; to which would you, at a guess, promise victory? Which men do you think would march more gallantly to combat—those who anticipate as a reward for their suffering the maintenance of their freedom, or those who cannot expect any other prize for the blows exchanged than the enslavement of others? One side will have before its eyes the blessings of the past and the hope of similar joy in the future; their thoughts will dwell less on the comparatively brief pain of battle than on what they may have to endure forever, they, their children, and all their posterity. The other side has nothing to inspire it with courage except the weak urge of greed, which fades before danger and which can never be so keen, it seems to me, that it will not be dismayed by the least drop of blood from wounds. Consider the justly famous battles of Miltiades,4 Leonidas,5 Themistocles,6 still fresh today in recorded history and in the minds of men as if they had occurred but yesterday, battles fought in Greece for the welfare of the Greeks and as an example to the world. What power do you think gave to such a mere handful of men not the strength but the courage to withstand the attack of a fleet so vast that even the seas were burdened, and to defeat the armies of so many nations, armies so immense that their officers alone outnumbered the entire Greek force? What was it but the fact that in those glorious days this struggle represented not so much a fight of Greeks against Persians as a victory of liberty over domination, of freedom over greed?

It amazes us to hear accounts of the valor that liberty arouses in the hearts of those who defend it; but who could believe reports of what goes on every day among the inhabitants of some countries, who could really believe that one man alone may mistreat a hundred thousand and deprive them of their liberty? Who would credit such a report if he merely heard it, without being present to witness the event? And if this condition occurred only in distant lands and were reported to us, which one among us would not assume the tale to be imagined or invented, and not really true? Obviously there is no need of fighting to overcome this single tyrant, for he is automatically defeated if the country refuses consent to its own enslavement: it is not necessary to deprive him of anything, but simply to give him nothing; there is no need that the country make an effort to do anything for itself provided it does nothing against itself. It is therefore the inhabitants themselves who permit, or, rather, bring about, their own subjection, since by ceasing to submit they would put an end to their servitude. A people enslaves itself, cuts its own throat, when, having a choice between being vassals and being free men, it deserts its liberties and takes on the yoke, gives consent to its own misery, or, rather, apparently welcomes it. If it cost the people anything to recover its freedom, I should not urge action to this end, although there is nothing a human should hold more dear than the restoration of his own natural right, to change himself from a beast of burden back to a man, so to speak. I do not demand of him so much boldness; let him prefer the doubtful security of living wretchedly to the uncertain hope of living as he pleases. What then? If in order to have liberty nothing more is needed than to long for it, if only a simple act of the will is necessary, is there any nation in the world that considers a single wish too high a price to pay in order to recover rights which it ought to be ready to redeem at the cost of its blood, rights such that their loss must bring all men of honor to the point of feeling life to be unendurable and death itself a deliverance?

Everyone knows that the fire from a little spark will increase and blaze ever higher as long as it finds wood to burn; yet without being quenched by water, but merely by finding no more fuel to feed on, it consumes itself, dies down, and is no longer a flame. Similarly, the more tyrants pillage, the more they crave, the more they ruin and destroy; the more one yields to them, and obeys them, by that much do they become mightier and more formidable, the readier to annihilate and destroy. But if not one thing is yielded to them, if, without any violence they are simply not obeyed, they become naked and undone and as nothing, just as, when the root receives no nourishment, the branch withers and dies.

To achieve the good that they desire, the bold do not fear danger; the intelligent do not refuse to undergo suffering. It is the stupid and cowardly who are neither able to endure hardship nor to vindicate their rights; they stop at merely longing for them, and lose through timidity the valor roused by the effort to claim their rights, although the desire to enjoy them still remains as part of their nature. A longing common to both the wise and the foolish, to brave men and to cowards, is this longing for all those things which, when acquired, would make them happy and contented. Yet one element appears to be lacking. I do not know how it happens that nature fails to place within the hearts of men a burning desire for liberty, a blessing so great and so desirable that when it is lost all evils follow thereafter, and even the blessings that remain lose taste and savor because of their corruption by servitude. Liberty is the only joy upon which men do not seem to insist; for surely if they really wanted it they would receive it. Apparently they refuse this wonderful privilege because it is so easily acquired.

Poor, wretched, and stupid peoples, nations determined on your own misfortune and blind to your own good! You let yourselves be deprived before your own eyes of the best part of your revenues; your fields are plundered, your homes robbed, your family heirlooms taken away. You live in such a way that you cannot claim a single thing as your own; and it would seem that you consider yourselves lucky to be loaned your property, your families, and your very lives. All this havoc, this misfortune, this ruin, descends upon you not from alien foes, but from the one enemy whom you yourselves render as powerful as he is, for whom you go bravely to war, for whose greatness you do not refuse to offer your own bodies unto death. He who thus domineers over you has only two eyes, only two hands, only one body, no more than is possessed by the least man among the infinite numbers dwelling in your cities; he has indeed nothing more than the power that you confer upon him to destroy you. Where has he acquired enough eyes to spy upon you, if you do not provide them yourselves? How can he have so many arms to beat you with, if he does not borrow them from you? The feet that trample down your cities, where does he get them if they are not your own? How does he have any power over you except through you? How would he dare assail you if he had no cooperation from you? What could he do to you if you yourselves did not connive with the thief who plunders you, if you were not accomplices of the murderer who kills you, if you were not traitors to yourselves? You sow your crops in order that he may ravage them, you install and furnish your homes to give him goods to pillage; you rear your daughters that he may gratify his lust; you bring up your children in order that he may confer upon them the greatest privilege he knows—to be led into his battles, to be delivered to butchery, to be made the servants of his greed and the instruments of his vengeance; you yield your bodies unto hard labor in order that he may indulge in his delights and wallow in his filthy pleasures; you weaken yourselves in order to make him the stronger and the mightier to hold you in check. From all these indignities, such as the very beasts of the field would not endure, you can deliver yourselves if you try, not by taking action, but merely by willing to be free. Resolve to serve no more, and you are at once freed. I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer; then you will behold him, like a great Colossus whose pedestal has been pulled away, fall of his own weight and break into pieces?

(Part II)

DOCTORS ARE NO DOUBT CORRECT in warning us not to touch incurable wounds; and I am presumably taking chances in preaching as I do to a people which has long lost all sensitivity and, no longer conscious of its infirmity, is plainly suffering from mortal illness. Let us therefore understand by logic, if we can, how it happens that this obstinate willingness to submit has become so deeply rooted in a nation that the very love of liberty now seems no longer natural.

In the first place, all would agree that, if we led our lives according to the ways intended by nature and the lessons taught by her, we should be intuitively obedient to our parents; later we should adopt reason as our guide and become slaves to nobody. Concerning the obedience given instinctively to one’s father and mother, we are in agreement, each one admitting himself to be a model. As to whether reason is born with us or not, that is a question loudly discussed by academicians and treated by all schools of philosophers. For the present I think I do not err in stating that there is in our souls some native seed of reason, which, if nourished by good counsel and training, flowers into virtue, but which, on the other hand, if unable to resist the vices surrounding it, is stifled and blighted. Yet surely if there is anything in this world clear and obvious, to which one cannot close one’s eyes, it is the fact that nature, handmaiden of God, governess of men, has cast us all in the same mold in order that we may behold in one another companions, or rather brothers. If in distributing her gifts nature has favored some more than others with respect to body or spirit, she has nevertheless not planned to place us within this world as if it were a field of battle, and has not endowed the stronger or the cleverer in order that they may act like armed brigands in a forest and attack the weaker. One should rather conclude that in distributing larger shares to some and smaller shares to others, nature has intended to give occasion for brotherly love to become manifest, some of us having the strength to give help to others who are in need of it. Hence, since this kind mother has given us the whole world as a dwelling place, has lodged us in the same house, has fashioned us according to the same model so that in beholding one another we might almost recognize ourselves; since she has bestowed upon us all the great gift of voice and speech for fraternal relationship, thus achieving by the common and mutual statement of our thoughts a communion of our wills; and since she has tried in every way to narrow and tighten the bond of our union and kinship; since she has revealed in every possible manner her intention, not so much to associate us as to make us one organic whole, there can be no further doubt that we are all naturally free, inasmuch as we are all comrades. Accordingly it should not enter the mind of anyone that nature has placed some of us in slavery, since she has actually created us all in one likeness.

Therefore it is fruitless to argue whether or not liberty is natural, since none can be held in slavery without being wronged, and in a world governed by a nature, which is reasonable, there is nothing so contrary as an injustice. Since freedom is our natural state, we are not only in possession of it but have the urge to defend it. Now, if perchance some cast a doubt on this conclusion and are so corrupted that they are not able to recognize their rights and inborn tendencies, I shall have to do them the honor that is properly theirs and place, so to speak, brute beasts in the pulpit to throw light on their nature and condition, The very beasts, God help me! if men are not too deaf, cry out to them, “Long live Liberty!” Many among them die as soon as captured: just as the fish loses life as soon as he leaves the water, so do these creatures close their eyes upon the light and have no desire to survive the loss of their natural freedom. If the animals were to constitute their kingdom by rank, their nobility would be chosen from this type. Others, from the largest to the smallest, when captured put up such a strong resistance by means of claws, horns, beak, and paws, that they show clearly enough how they cling to what they are losing; afterwards in captivity they manifest by so many evident signs their awareness of their misfortune, that it is easy to see they are languishing rather than living, and continue their existence—more in lamentation of their lost freedom than in enjoyment of their servitude. What else can explain the behavior of the elephant who, after defending himself to the last ounce of his strength and knowing himself on the point of being taken, dashes his jaws against the trees and breaks his tusks, thus manifesting his longing to remain free as he has been and proving his wit and ability to buy off the huntsmen in the hope that through the sacrifice of his tusks he will be permitted to offer his ivory as a ransom for his liberty? We feed the horse from birth in order to train him to do our bidding. Yet he is tamed with such difficulty that when we begin to break him in he bites the bit, he rears at the touch of the spur, as if to reveal his instinct and show by his actions that, if he obeys, he does so not of his own free will but under constraint. What more can we say?

Even the oxen under the weight of the yoke complain,
And the birds in their cage lament,

as I expressed it some time ago, toying with our French poesy. For I shall not hesitate in writing to you, O Longa, to introduce some of my verses, which I never read to you because of your obvious encouragement which is quite likely to make me conceited. And now, since all beings, because they feel, suffer misery in subjection and long for liberty; since the very beasts, although made for the service of man, cannot become accustomed to control without protest, what evil chance has so denatured man that he, the only creature really born to be free, lacks the memory of his original condition and the desire to return to it?

There are three kinds of tyrants; some receive their proud position through elections by the people, others by force of arms, others by inheritance. Those who have acquired power by means of war act in such wise that it is evident they rule over a conquered country. Those who are born to kingship are scarcely any better, because they are nourished on the breast of tyranny, suck in with their milk the instincts of the tyrant, and consider the people under them as their inherited serfs; and according to their individual disposition, miserly or prodigal, they treat their kingdom as their property. He who has received the state from the people, however, ought to be, it seems to me, more bearable and would be so, I think, were it not for the fact that as soon as he sees himself higher than the others, flattered by that quality which we call grandeur, he plans never to relinquish his position. Such a man usually determines to pass on to his children the authority that the people have conferred upon him; and once his heirs have taken this attitude, strange it is how far they surpass other tyrants in all sorts of vices, and especially in cruelty, because they find no other means to impose this new tyranny than by tightening control and removing their subjects so far from any notion of liberty that even if the memory of it is fresh it will soon be eradicated. Yet, to speak accurately, I do perceive that there is some difference among these three types of tyranny, but as for stating a preference, I cannot grant there is any. For although the means of coming into power differ, still the method of ruling is practically the same; those who are elected act as if they were breaking in bullocks; those who are conquerors make the people their prey; those who are heirs plan to treat them as if they were their natural slaves.

In connection with this, let us imagine some newborn individuals, neither acquainted with slavery nor desirous of liberty, ignorant indeed of the very words. If they were permitted to choose between being slaves and free men, to which would they give their vote? There can be no doubt that they would much prefer to be guided by reason itself than to be ordered about by the whims of a single man. The only possible exception might be the Israelites who, without any compulsion or need, appointed a tyrant.7 I can never read their history without becoming angered and even inhuman enough to find satisfaction in the many evils that befell them on this account. But certainly all men, as long as they remain men, before letting themselves become enslaved must either be driven by force or led into it by deception; conquered by foreign armies, as were Sparta and Athens by the forces of Alexander8 or by political factions, as when at an earlier period the control of Athens had passed into the hands of Pisistrates.9 When they lose their liberty through deceit they are not so often betrayed by others as misled by themselves. This was the case with the people of Syracuse, chief city of Sicily when, in the throes of war and heedlessly planning only for the present danger, they promoted Denis,10 their first tyrant, by entrusting to him the command of the army, without realizing that they had given him such power that on his victorious return this worthy man would behave as if he had vanquished not his enemies but his compatriots, transforming himself from captain to king, and then from king to tyrant.11

It is incredible how as soon as a people becomes subject, it promptly falls into such complete forgetfulness of its freedom that it can hardly be roused to the point of regaining it, obeying so easily and so willingly that one is led to say, on beholding such a situation, that this people has not so much lost its liberty as won its enslavement. It is true that in the beginning men submit under constraint and by force; but those who come after them obey without regret and perform willingly what their predecessors had done because they had to. This is why men born under the yoke and then nourished and reared in slavery are content, without further effort, to live in their native circumstance, unaware of any other state or right, and considering as quite natural the condition into which they were born. There is, however, no heir so spendthrift or indifferent that he does not sometimes scan the account books of his father in order to see if he is enjoying all the privileges of his legacy or whether, perchance, his rights and those of his predecessor have not been encroached upon. Nevertheless it is clear enough that the powerful influence of custom is in no respect more compelling than in this, namely, habituation to subjection. It is said that Mithridates12 trained himself to drink poison. Like him we learn to swallow, and not to find bitter, the venom of servitude. It cannot be denied that nature is influential in shaping us to her will and making us reveal our rich or meager endowment; yet it must be admitted that she has less power over us than custom, for the reason that native endowment, no matter how good, is dissipated unless encouraged, whereas environment always shapes us in its own way, whatever that may be, in spite of nature’s gifts. The good seed that nature plants in us is so slight and so slippery that it cannot withstand the least harm from wrong nourishment; it flourishes less easily, becomes spoiled, withers, and comes to nothing. Fruit trees retain their own particular quality if permitted to grow undisturbed, but lose it promptly and bear strange fruit not their own when ingrafted. Every herb has its peculiar characteristics, its virtues and properties; yet frost, weather, soil, or the gardener’s hand increase or diminish its strength; the plant seen one spot cannot be recognized in another.

Whoever could have observed the early Venetians, a handful of people living so freely that the most wicked among them would not wish to be king over them, so born and trained that they would not vie with one another except as to which one could give the best counsel and nurture their liberty most carefully, so instructed and developed from their cradles that they would not exchange for all the other delights of the world an iota of their freedom; who, I say, familiar with the original nature of such a people, could visit today the territories of the man known as the Great Doge,13 and there contemplate with composure a people unwilling to live except to serve him, and maintaining his power at the cost of their lives? Who would believe that these two groups of people had an identical origin? Would one not rather conclude that upon leaving a city of men he had chanced upon a menagerie of beasts? Lycurgus,14 the lawgiver of Sparta, is reported to have reared two dogs of the same litter by fattening one in the kitchen and training the other in the fields to the sound of the bugle and the horn, thereby to demonstrate to the Lacedaemonians that men, too, develop according to their early habits. He set the two dogs in the open market place, and between them he placed a bowl of soup and a hare. One ran to the bowl of soup, the other to the hare; yet they were, as he maintained, born brothers of the same parents. In such manner did this leader, by his laws and customs, shape and instruct the Spartans so well that any one of them would sooner have died than acknowledge any sovereign other than law and reason.

It gives me pleasure to recall a conversation of the olden time between one of the favorites of Xerxes, the great king of Persia, and two Lacedaemonians. When Xerxes equipped his great army to conquer Greece, he sent his ambassadors into the Greek cities to ask for water and earth. That was the procedure the Persians adopted in summoning the cities to surrender. Neither to Athens nor to Sparta, however, did he dispatch such messengers, because those who had been sent there by Darius his father had been thrown, by the Athenians and Spartans, some into ditches and others into wells, with the invitation to help themselves freely there to water and soil to take back to their prince. Those Greeks could not permit even the slightest suggestion of encroachment upon their liberty. The Spartans suspected, nevertheless, that they had incurred the wrath of the gods by their action, and especially the wrath of Talthybios, the god of the heralds; in order to appease him they decided to send Xerxes two of their citizens in atonement for the cruel death inflicted upon the ambassadors of his father. Two Spartans, one named Sperte and the other Bulis, volunteered to offer themselves as a sacrifice. So they departed, and on the way they came to the palace of the Persian named Hydarnes, lieutenant of the king in all the Asiatic cities situated on the sea coasts. He received them with great honor, feasted them, and then, speaking of one thing and another, he asked them why they refused so obdurately his king’s friendship. “Consider well, O Spartans,” said he, “and realize by my example that the king knows how to honor those who are worthy, and believe that if you were his men he would do the same for you; if you belonged to him and he had known you, there is not one among you who might not be the lord of some Greek city.”

“By such words, Hydarnes, you give us no good counsel,” replied the Lacedaemonians, “because you have experienced merely the advantage of which you speak; you do not know the privilege we enjoy. You have the honor of the king’s favor; but you know nothing about liberty, what relish it has and how sweet it is. For if you had any knowledge of it, you yourself would advise us to defend it, not with lance and shield, but with our very teeth and nails.”

Only Spartans could give such an answer, and surely both of them spoke as they had been trained. It was impossible for the Persian to regret liberty, not having known it, nor for the Lacedaemonians to find subjection acceptable after having enjoyed freedom.

Cato the Utican, while still a child under the rod, could come and go in the house of Sylla the despot. Because of the place and family of his origin and because he and Sylla were close relatives, the door was never closed to him. He always had his teacher with him when he went there, as was the custom for children of noble birth. He noticed that in the house of Sylla, in the dictator’s presence or at his command, some men were imprisoned and others sentenced; one was banished, another was strangled; one demanded the goods of another citizen, another his head; in short, all went there, not as to the house of a city magistrate but as to the people’s tyrant, and this was therefore not a court of justice, but rather a resort of tyranny. Whereupon the young lad said to his teacher, “Why don’t you give me a dagger? I will hide it under my robe. I often go into Sylla’s room before he is risen, and my arm is strong enough to rid the city of him.” There is a speech truly characteristic of Cato; it was a true beginning of this hero so worthy of his end. And should one not mention his name or his country, but state merely the fact as it is, the episode itself would speak eloquently, and anyone would divine that he was a Roman born in Rome at the time when she was free.

And why all this? Certainly not because I believe that the land or the region has anything to do with it, for in any place and in any climate subjection is bitter and to be free is pleasant; but merely because I am of the opinion that one should pity those who, at birth, arrive with the yoke upon their necks. We should exonerate and forgive them, since they have not seen even the shadow of liberty, and, being quite unaware of it, cannot perceive the evil endured through their own slavery. If there were actually a country like that of the Cimmerians mentioned by Homer,15 where the sun shines otherwise than on our own, shedding its radiance steadily for six successive months and then leaving humanity to drowse in obscurity until it returns at the end of another half-year, should we be surprised to learn that those born during this long night do grow so accustomed to their native darkness that unless they were told about the sun they would have no desire to see the light? One never pines for what he has never known; longing comes only after enjoyment and constitutes, amidst the experience of sorrow, the memory of past joy. It is truly the nature of man to be free and to wish to be so, yet his character is such that he instinctively follows the tendencies that his training gives him.

Let us therefore admit that all those things to which he is trained and accustomed seem natural to man and that only that is truly native to him which he receives with his primitive, untrained individuality. Thus custom becomes the first reason for voluntary servitude. Men are like handsome race horses who first bite the bit and later like it, and rearing under the saddle a while soon learn to enjoy displaying their harness and prance proudly beneath their trappings. Similarly men will grow accustomed to the idea that they have always been in subjection, that their fathers lived in the same way; they will think they are obliged to suffer this evil, and will persuade themselves by example and imitation of others, finally investing those who order them around with proprietary rights, based on the idea that it has always been that way.

There are always a few, better endowed than others, who feel the weight of the yoke and cannot restrain themselves from attempting to shake it off: these are the men who never become tamed under subjection and who always, like Ulysses on land and sea constantly seeking the smoke of his chimney, cannot prevent themselves from peering about for their natural privileges and from remembering their ancestors and their former ways. These are in fact the men who, possessed of clear minds and far-sighted spirit, are not satisfied, like the brutish mass, to see only what is at their feet, but rather look about them, behind and before, and even recall the things of the past in order to judge those of the future, and compare both with their present condition. These are the ones who, having good minds of their own, have further trained them by study and learning. Even if liberty had entirely perished from the earth, such men would invent it. For them slavery has no satisfactions, no matter how well disguised.

The Grand Turk16 was well aware that books and teaching more than anything else give men the sense to comprehend their own nature and to detest tyranny. I understand that in his territory there are few educated people, for he does not want many. On account of this restriction, men of strong zeal and devotion, who in spite of the passing of time have preserved their love of freedom, still remain ineffective because, however numerous they may be, they are not known to one another; under the tyrant they have lost freedom of action, of speech, and almost of thought; they are alone in their aspiration. Indeed Momus, god of mockery, was not merely joking when he found this to criticize in the man fashioned by Vulcan, namely, that the maker had not set a little window in his creature’s heart to render his thoughts visible. It is reported that Brutus, Cassius, and Casca, on undertaking to free Rome, and for that matter the whole world, refused to include in their band Cicero, that great enthusiast for the public welfare if ever there was one, because they considered his heart too timid for such a lofty deed; they trusted his willingness but they were none too sure of his courage. Yet whoever studies the deeds of earlier days and the annals of antiquity will find practically no instance of heroes who failed to deliver their country from evil hands when they set about their task with a firm, whole-hearted, and sincere intention. Liberty, as if to reveal her nature, seems to have given them new strength. Harmodios and Aristogiton, Thrasybulus, Brutus the Elder, Valerianus, and Dion achieved successfully what they planned virtuously: for hardly ever does good fortune fail a strong will. Brutus the Younger and Cassius were successful in eliminating servitude, and although they perished in their attempt to restore liberty, they did not die miserably (what blasphemy it would be to say there was anything miserable about these men, either in their death or in their living!).17 Their loss worked great harm, everlasting misfortune, and complete destruction of the Republic, which appears to have been buried with them. Other and later undertakings against the Roman emperors were merely plottings of ambitious people, who deserve no pity for the misfortunes that overtook them, for it is evident that they sought not to destroy, but merely to usurp the crown, scheming to drive away the tyrant, but to retain tyranny. For myself, I could not wish such men to prosper and I am glad they have shown by their example that the sacred name of Liberty must never be used to cover a false enterprise.

But to come back to the thread of our discourse, which I have practically lost: the essential reason why men take orders willingly is that they are born serfs and are reared as such. From this cause there follows another result, namely that people easily become cowardly and submissive under tyrants. For this observation I am deeply grateful to Hippocrates, the renowned father of medicine, who noted and reported it in a treatise of his entitled Concerning Diseases. This famous man was certainly endowed with a great heart and proved it clearly by his reply to the Great King, who wanted to attach him to his person by means of special privileges and large gifts. Hippocrates answered frankly that it would be a weight on his conscience to make use of his science for the cure of barbarians who wished to slay his fellow Greeks, or to serve faithfully by his skill anyone who undertook to enslave Greece. The letter he sent the king can still be read among his other works and will forever testify to his great heart and noble character.

By this time it should be evident that liberty once lost, valor also perishes. A subject people shows neither gladness nor eagerness in combat: its men march sullenly to danger almost as if in bonds, and stultified; they do not feel throbbing within them that eagerness for liberty which engenders scorn of peril and imparts readiness to acquire honor and glory by a brave death amidst one’s comrades. Among free men there is competition as to who will do most, each for the common good, each by himself, all expecting to share in the misfortunes of defeat, or in the benefits of victory; but an enslaved people loses in addition to this warlike courage, all signs of enthusiasm, for their hearts are degraded, submissive, and incapable of any great deed. Tyrants are well aware of this, and, in order to degrade their subjects further, encourage them to assume this attitude and make it instinctive.

Xenophon, grave historian of first rank among the Greeks, wrote a book in which he makes Simonides speak with Hieron, Tyrant of Syracuse, concerning the anxieties of the tyrant. This book is full of fine and serious remonstrances, which in my opinion are as persuasive as words can be. Would to God that all despots who have ever lived might have kept it before their eyes and used it as a mirror! I cannot believe they would have failed to recognize their warts and to have conceived some shame for their blotches. In this treatise is explained the torment in which tyrants find themselves when obliged to fear everyone because they do evil unto every man. Among other things we find the statement that bad kings employ foreigners in their wars and pay them, not daring to entrust weapons in the hands of their own people, whom they have wronged. (There have been good kings who have used mercenaries from foreign nations, even among the French, although more so formerly than today, but with the quite different purpose of preserving their own people, considering as nothing the loss of money in the effort to spare French lives. That is, I believe, what Scipio the great African meant when he said he would rather save one citizen than defeat a hundred enemies.) For it is plainly evident that the dictator does not consider his power firmly established until he has reached the point where there is no man under him who is of any worth. Therefore there may be justly applied to him the reproach to the master of the elephants made by Thrason and reported by Terence:

Are you indeed so proud
Because you command wild beasts?

This method tyrants use of stultifying their subjects cannot be more clearly observed than in what Cyrus did with the Lydians after he had taken Sardis, their chief city, and had at his mercy the captured Croesus, their fabulously rich king. When news was brought to him that the people of Sardis had rebelled, it would have been easy for him to reduce them by force; but being unwilling either to sack such a fine city or to maintain an army there to police it, he thought of an unusual expedient for reducing it. He established in it brothels, taverns, and public games, and issued the proclamation that the inhabitants were to enjoy them. He found this type of garrison so effective that he never again had to draw the sword against the Lydians. These wretched people enjoyed themselves inventing all kinds of games, so that the Latins have derived the word from them, and what we call pastimes they call ludi, as if they meant to say Lydi. Not all tyrants have manifested so clearly their intention to effeminize their victims; but in fact, what the aforementioned despot publicly proclaimed and put into effect, most of the others have pursued secretly as an end. It is indeed the nature of the populace, whose density is always greater in the cities, to be suspicious toward one who has their welfare at heart, and gullible toward one who fools them. Do not imagine that there is any bird more easily caught by decoy, nor any fish sooner fixed on the hook by wormy bait, than are all these poor fools neatly tricked into servitude by the slightest feather passed, so to speak, before their mouths. Truly it is a marvelous thing that they let themselves be caught so quickly at the slightest tickling of their fancy. Plays, farces, spectacles, gladiators, strange beasts, medals, pictures, and other such opiates, these were for ancient peoples the bait toward slavery, the price of their liberty, the instruments of tyranny. By these practices and enticements the ancient dictators so successfully lulled their subjects under the yoke, that the stupefied peoples, fascinated by the pastimes and vain pleasures flashed before their eyes, learned subservience as naively, but not so creditably, as little children learn to read by looking at bright picture books. Roman tyrants invented a further refinement. They often provided the city wards with feasts to cajole the rabble, always more readily tempted by the pleasure of eating than by anything else. The most intelligent and understanding amongst them would not have quit his soup bowl to recover the liberty of the Republic of Plato. Tyrants would distribute largess, a bushel of wheat, a gallon of wine, and a sesterce: and then everybody would shamelessly cry, “Long live the King!” The fools did not realize that they were merely recovering a portion of their own property, and that their ruler could not have given them what they were receiving without having first taken it from them. A man might one day be presented with a sesterce and gorge himself at the public feast, lauding Tiberius and Nero for handsome liberality, who on the morrow, would be forced to abandon his property to their avarice, his children to their lust, his very blood to the cruelty of these magnificent emperors, without offering any more resistance than a stone or a tree stump. The mob has always behaved in this way—eagerly open to bribes that cannot be honorably accepted, and dissolutely callous to degradation and insult that cannot be honorably endured. Nowadays I do not meet anyone who, on hearing mention of Nero, does not shudder at the very name of that hideous monster, that disgusting and vile pestilence. Yet when he died—when this incendiary, this executioner, this savage beast, died as vilely as he had lived—the noble Roman people, mindful of his games and his festivals, were saddened to the point of wearing mourning for him. Thus wrote Cornelius Tacitus, a competent and serious author, and one of the most reliable. This will not be considered peculiar in view of what this same people had previously done at the death of Julius Caesar, who had swept away their laws and their liberty, in whose character, it seems to me, there was nothing worth while, for his very liberality, which is so highly praised, was more baneful than the cruelest tyrant who ever existed, because it was actually this poisonous amiability of his that sweetened servitude for the Roman people. After his death, that people, still preserving on their palates the flavor of his banquets and in their minds the memory of his prodigality, vied with one another to pay him homage. They piled up the seats of the Forum for the great fire that reduced his body to ashes, and later raised a column to him as to “The Father of His People.” (Such was the inscription on the capital.) They did him more honor, dead as he was, than they had any right to confer upon any man in the world, except perhaps on those who had killed him.

They didn’t even neglect, these Roman emperors, to assume generally the title of Tribune of the People, partly because this office was held sacred and inviolable and also because it had been founded for the defense and protection of the people and enjoyed the favor of the state. By this means they made sure that the populace would trust them completely, as if they merely used the title and did not abuse it. Today there are some who do not behave very differently; they never undertake an unjust policy, even one of some importance, without prefacing it with some pretty speech concerning public welfare and common good. You well know, O Longa, this formula which they use quite cleverly in certain places; although for the most part, to be sure, there cannot be cleverness where there is so much impudence. The kings of the Assyrians and even after them those of the Medes showed themselves in public as seldom as possible in order to set up a doubt in the minds of the rabble as to whether they were not in some way more than man, and thereby to encourage people to use their imagination for those things which they cannot judge by sight. Thus a great many nations who for a long time dwelt under the control of the Assyrians became accustomed, with all this mystery, to their own subjection, and submitted the more readily for not knowing what sort of master they had, or scarcely even if they had one, all of them fearing by report someone they had never seen. The earliest kings of Egypt rarely showed themselves without carrying a cat, or sometimes a branch, or appearing with fire on their heads, masking themselves with these objects and parading like workers of magic. By doing this they inspired their subjects with reverence and admiration, whereas with people neither too stupid nor too slavish they would merely have aroused, it seems to me, amusement and laughter. It is pitiful to review the list of devices that early despots used to establish their tyranny; to discover how many little tricks they employed, always finding the populace conveniently gullible, readily caught in the net as soon as it was spread. Indeed they always fooled their victims so easily that while mocking them they enslaved them the more.

What comment can I make concerning another fine counterfeit that ancient peoples accepted as true money? They believed firmly that the great toe of Pyrrhus, king of Epirus, performed miracles and cured diseases of the spleen; they even enhanced the tale further with the legend that this toe, after the corpse had been burned, was found among the ashes, untouched by the fire. In this wise a foolish people itself invents lies and then believes them. Many men have recounted such things, but in such a way that it is easy to see that the parts were pieced together from idle gossip of the city and silly reports from the rabble. When Vespasian, returning from Assyria, passes through Alexandria on his way to Rome to take possession of the empire, he performs wonders: he makes the crippled straight, restores sight to the blind, and does many other fine things, concerning which the credulous and undiscriminating were, in my opinion, more blind than those cured. Tyrants themselves have wondered that men could endure the persecution of a single man; they have insisted on using religion for their own protection and, where possible, have borrowed a stray bit of divinity to bolster up their evil ways. If we are to believe the Sybil of Virgil, Salmoneus, in torment for having paraded as Jupiter in order to deceive the populace, now atones in nethermost Hell:

He suffered endless torment for having dared to
imitate
The thunderbolts of heaven and the flames of
Jupiter.
Upon a chariot drawn by four chargers he went,
unsteadily
Riding aloft, in his fist a great shining torch.
Among the Greeks and into the market-place
In the heart of the city of Elis he had ridden
boldly:
And displaying thus his vainglory he assumed
An honor which undeniably belongs to the gods
alone.
This fool who imitated storm and the inimitable
thunderbolt
By clash of brass and with his dizzying charge
On horn-hoofed steeds, the all-powerful Father
beheld,
Hurled not a torch, nor the feeble light
From a waxen taper with its smoky fumes,
But by the furious blast of thunder and lightning
He brought him low, his heels above his head.

If such a one, who in his time acted merely through the folly of insolence, is so well received in Hell, I think that those who have used religion as a cloak to hide their vileness will be even more deservedly lodged in the same place.

Our own leaders have employed in France certain similar devices, such as toads, fleurs-de-lys, sacred vessels, and standards with flames of gold. However that may be, I do not wish, for my part, to be incredulous, since neither we nor our ancestors have had any occasion up to now for skepticism. Our kings have always been so generous in times of peace and so valiant in time of war, that from birth they seem not to have been created by nature like many others, but even before birth to have been designated by Almighty God for the government and preservation of this kingdom. Even if this were not so, yet should I not enter the tilting ground to call in question the truth of our traditions, or to examine them so strictly as to take away their fine conceits. Here is such a field for our French poetry, now not merely honored but, it seems to me, reborn through our Rosnard, our Baif, our Bellay. These poets are defending our language so well that I dare to believe that very soon neither the Greeks nor the Latins will in this respect have any advantage over us except possibly that of seniority. And I should assuredly do wrong to our poesy—I like to use that word despite the fact that several have rhymed mechanically, for I still discern a number of men today capable of ennobling poetry and restoring it to its first lustre—but, as I say, I should do the Muse great injury if I deprived her now of those fine tales about. King Clovis, amongst which it seems to me I can already see how agreeably and how happily the inspiration of our Ronsard in his Frunciade will play. I appreciate his loftiness, I am aware of his keen spirit, and I know the charm of the man: he will appropriate the oriflamme to his use much as did the Romans their sacred bucklers and the shields cast from heaven to earth, according to Virgil. He will use our phial of holy oil much as the Athenians used the basket of Ericthonius; he will win applause for our deeds of valor as they did for their olive wreath which they insist can still be found in Minerva’s tower. Certainly I should be presumptuous if I tried to cast slurs on our records and thus invade the realm of our poets.

But to return to our subject, the thread of which I have unwittingly lost in this discussion: it has always happened that tyrants, in order to strengthen their power, have made every effort to train their people not only in obedience and servility toward themselves, but also in adoration. Therefore all that I have said up to the present concerning the means by which a more willing submission has been obtained applies to dictators in their relationship with the inferior and common classes.

(Part III)

I COME NOW to a point which is, in my opinion, the mainspring and the secret of domination, the support and foundation of tyranny. Whoever thinks that halberds, sentries, the placing of the watch, serve to protect and shield tyrants is, in my judgment, completely mistaken. These are used, it seems to me, more for ceremony and a show of force than for any reliance placed in them. The archers forbid the entrance to the palace to the poorly dressed who have no weapons, not to the well armed who can carry out some plot. Certainly it is easy to say of the Roman emperors that fewer escaped from danger by aid of their guards than were killed by their own archers.18 It is not the troops on horseback, it is not the companies afoot, it is not arms that defend the tyrant. This does not seem credible on first thought, but it is nevertheless true that there are only four or five who maintain the dictator, four or five who keep the country in bondage to him. Five or six have always had access to his ear, and have either gone to him of their own accord, or else have been summoned by him, to be accomplices in his cruelties, companions in his pleasures, panders to his lusts, and sharers in his plunders. These six manage their chief so successfully that he comes to be held accountable not only for his own misdeeds but even for theirs. The six have six hundred who profit under them, and with the six hundred they do what they have accomplished with their tyrant. The six hundred maintain under them six thousand, whom they promote in rank, upon whom they confer the government of provinces or the direction of finances, in order that they may serve as instruments of avarice and cruelty, executing orders at the proper time and working such havoc all around that they could not last except under the shadow of the six hundred, nor be exempt from law and punishment except through their influence.

The consequence of all this is fatal indeed. And whoever is pleased to unwind the skein will observe that not the six thousand but a hundred thousand, and even millions, cling to the tyrant by this cord to which they are tied. According to Homer, Jupiter boasts of being able to draw to himself all the gods when he pulls a chain. Such a scheme caused the increase in the senate under Julius, the formation of new ranks, the creation of offices; not really, if properly considered, to reform justice, but to provide new supporters of despotism. In short, when the point is reached, through big favors or little ones, that large profits or small are obtained under a tyrant, there are found almost as many people to whom tyranny seems advantageous as those to whom liberty would seem desirable. Doctors declare that if, when some part of the body has gangrene a disturbance arises in another spot, it immediately flows to the troubled part. Even so, whenever a ruler makes himself a dictator, all the wicked dregs of the nation—I do not mean the pack of petty thieves and earless ruffians19 who, in a republic, are unimportant in evil or good—but all those who are corrupted by burning ambition or extraordinary avarice, these gather around him and support him in order to have a share in the booty and to constitute themselves petty chiefs under the big tyrant. This is the practice among notorious robbers and famous pirates: some scour the country, others pursue voyagers; some lie in ambush, others keep a lookout; some commit murder, others robbery; and although there are among them differences in rank, some being only underlings while others are chieftains of gangs, yet is there not a single one among them who does not feel himself to be a sharer, if not of the main booty, at least in the pursuit of it. It is dependably related that Sicilian pirates gathered in such great numbers that it became necessary to send against them Pompey the Great, and that they drew into their alliance fine towns and great cities in whose harbors they took refuge on returning from their expeditions, paying handsomely for the haven given their stolen goods.

Thus the despot subdues his subjects, some of them by means of others, and thus is he protected by those from whom, if they were decent men, he would have to guard himself; just as, in order to split wood, one has to use a wedge of the wood itself. Such are his archers, his guards, his halberdiers; not that they themselves do not suffer occasionally at his hands, but this riff-raff, abandoned alike by God and man, can be led to endure evil if permitted to commit it, not against him who exploits them, but against those who like themselves submit, but are helpless. Nevertheless, observing those men who painfully serve the tyrant in order to win some profit from his tyranny and from the subjection of the populace, I am often overcome with amazement at their wickedness and sometimes by pity for their folly. For, in all honesty, can it be in any way except in folly that you approach a tyrant, withdrawing further from your liberty and, so to speak, embracing with both hands your servitude? Let such men lay aside briefly their ambition, or let them forget for a moment their avarice, and look at themselves as they really are. Then they will realize clearly that the townspeople, the peasants whom they trample under foot and treat worse than convicts or slaves, they will realize, I say, that these people, mistreated as they may be, are nevertheless, in comparison with themselves, better off and fairly free. The tiller of the soil and the artisan, no matter how enslaved, discharge their obligation when they do what they are told to do; but the dictator sees men about him wooing and begging his favor, and doing much more than he tells them to do. Such men must not only obey orders; they must anticipate his wishes; to satisfy him they must foresee his desires; they must wear themselves out, torment themselves, kill themselves with work in his interest, and accept his pleasure as their own, neglecting their preference for his, distorting their character and corrupting their nature; they must pay heed to his words, to his intonation, to his gestures, and to his glance. Let them have no eye, nor foot, nor hand that is not alert to respond to his wishes or to seek out his thoughts.

Can that be called a happy life? Can it be called living? Is there anything more intolerable than that situation, I won’t say for a man of mettle nor even for a man of high birth, but simply for a man of common sense or, to go even further, for anyone having the face of a man? What condition is more wretched than to live thus, with nothing to call one’s own, receiving from someone else one’s sustenance, one’s power to act, one’s body, one’s very life?

Still men accept servility in order to acquire wealth; as if they could acquire anything of their own when they cannot even assert that they belong to themselves, or as if anyone could possess under a tyrant a single thing in his own name. Yet they act as if their wealth really belonged to them, and forget that it is they themselves who give the ruler the power to deprive everybody of everything, leaving nothing that anyone can identify as belonging to somebody. They notice that nothing makes men so subservient to a tyrant’s cruelty as property; that the possession of wealth is the worst of crimes against him, punishable even by death; that he loves nothing quite so much as money and ruins only the rich, who come before him as before a butcher, offering themselves so stuffed and bulging that they make his mouth water. These favorites should not recall so much the memory of those who have won great wealth from tyrants as of those who, after they had for some time amassed it, have lost to him their property as well as their lives; they should consider not how many others have gained a fortune, but rather how few of them have kept it. Whether we examine ancient history or simply the times in which we live, we shall see clearly how great is the number of those who, having by shameful means won the ear of princes—who either profit from their villainies or take advantage of their naiveté—were in the end reduced to nothing by these very princes; and although at first such servitors were met by a ready willingness to promote their interests, they later found an equally obvious inconstancy which brought them to ruin. Certainly among so large a number of people who have at one time or another had some relationship with bad rulers, there have been few or practically none at all who have not felt applied to themselves the tyrant’s animosity, which they had formerly stirred up against others. Most often, after becoming rich by despoiling others, under the favor of his protection, they find themselves at last enriching him with their own spoils.

Even men of character—if it sometimes happens that a tyrant likes such a man well enough to hold him in his good graces, because in him shine forth the virtue and integrity that inspire a certain reverence even in the most depraved–even men of character, I say, could not long avoid succumbing to the common malady and would early experience the effects of tyranny at their own expense. A Seneca, a Burrus, a Thrasea, this triumverate of splendid men, will provide a sufficient reminder of such misfortune. Two of them were close to the tyrant by the fatal responsibility of holding in their hands the management of his affairs, and both were esteemed and beloved by him. One of them, moreover, had a peculiar claim upon his friendship, having instructed his master as a child. Yet these three by their cruel death give sufficient evidence of how little faith one can place in the friendship of an evil ruler. Indeed what friendship may be expected from one whose heart is bitter enough to hate even his own people, who do naught else but obey him? It is because he does not know how to love that he ultimately impoverishes his own spirit and destroys his own empire.

Now if one would argue that these men fell into disgrace because they wanted to act honorably, let him look around boldly at others close to that same tyrant, and he will see that those who came into his favor and maintained themselves by dishonorable means did not fare much better. Who has ever heard tell of a love more centered, of an affection more persistent, who has ever read of a man more desperately attached to a woman than Nero was to Poppaea? Yet she was later poisoned by his own hand. Agrippina his mother had killed her husband, Claudius, in order to exalt her son; to gratify him she had never hesitated at doing or bearing anything; and yet this very son, her offspring, her emperor, elevated by her hand, after failing her often, finally took her life. It is indeed true that no one denies she would have well deserved this punishment, if only it had come to her by some other hand than that of the son she had brought into the world. Who was ever more easily managed, more naive, or, to speak quite frankly, a greater simpleton, than Claudius the Emperor? Who was ever more wrapped up in his wife than he in Messalina, whom he delivered finally into the hands of the executioner? Stupidity in a tyrant always renders him incapable of benevolent action; but in some mysterious way by dint of acting cruelly even towards those who are his closest associates, he seems to manifest what little intelligence he may have.

Quite generally known is the striking phrase of that other tyrant who, gazing at the throat of his wife, a woman he dearly loved and without whom it seemed he could not live, caressed her with this charming comment: “This lovely throat would be cut at once if I but gave the order.” That is why the majority of the dictators of former days were commonly slain by their closest favorites who, observing the nature of tyranny, could not be so confident of the whim of the tyrant as they were distrustful of his power. Thus was Domitian killed by Stephen, Commodus by one of his mistresses, Antoninus by Macrinus, and practically all the others in similar violent fashion.

The fact is that the tyrant is never truly loved, nor does he love. Friendship is a sacred word, a holy thing; it is never developed except between persons of character, and never takes root except through mutual respect; it flourishes not so much by kindnesses as by sincerity. What makes one friend sure of another is the knowledge of his integrity: as guarantees he has his friend’s fine nature, his honor, and his constancy. There can be no friendship where there is cruelty, where there is disloyalty, where there is injustice. And in places where the wicked gather there is conspiracy only, not companionship: these have no affection for one another; fear alone holds them together; they are not friends, they are merely accomplices.

Although it might not be impossible, yet it would be difficult to find true friendship in a tyrant; elevated above others and having no companions, he finds himself already beyond the pale of friendship, which receives its real sustenance from an equality that, to proceed without a limp, must have its two limbs equal. That is why there is honor among thieves (or so it is reported) in the sharing of the booty; they are peers and comrades; if they are not fond of one another they at least respect one another and do not seek to lessen their strength by squabbling. But the favorites of a tyrant can never feel entirely secure, and the less so because he has learned from them that he is all powerful and unlimited by any law or obligation. Thus it becomes his wont to consider his own will as reason enough, and to be master of all with never a compeer. Therefore it seems a pity that with so many examples at hand, with the danger always present, no one is anxious to act the wise man at the expense of the others, and that among so many persons fawning upon their ruler there is not a single one who has the wisdom and the boldness to say to him what, according to the fable,20 the fox said to the lion who feigned illness: “I should be glad to enter your lair to pay my respects; but I see many tracks of beasts that have gone toward you, yet not a single trace of any who have come back.”

These wretches see the glint of the despot’s treasures and are bedazzled by the radiance of his splendor. Drawn by this brilliance they come near, without realizing they are approaching a flame that cannot fail to scorch them. Similarly attracted, the indiscreet satyr of the old fables, on seeing the bright fire brought down by Prometheus, found it so beautiful that he went and kissed it, and was burned21; so, as the Tuscan22 poet reminds us, the moth, intent upon desire, seeks the flame because it shines, and also experiences its other quality, the burning. Moreover, even admitting that favorites may at times escape from the hands of him they serve, they are never safe from the ruler who comes after him. If he is good, they must render an account of their past and recognize at last that justice exists; if he is bad and resembles their late master, he will certainly have his own favorites, who are not usually satisfied to occupy in their turn merely the posts of their precedessors, but will more often insist on their wealth and their lives. Can anyone be found, then, who under such perilous circumstances and with so little security will still be ambitious to fill such an ill-fated position and serve, despite such perils, so dangerous a master? Good God, what suffering, what martyrdom all this involves! To be occupied night and day in planning to please one person, and yet to fear him more than anyone else in the world; to be always on the watch, ears open, wondering whence the blow will come; to search out conspiracy, to be on guard against snares, to scan the faces of companions for signs of treachery, to smile at everybody and be mortally afraid of all, to be sure of nobody, either as an open enemy or as a reliable friend; showing always a gay countenance despite an apprehensive heart, unable to be joyous yet not daring to be sad!

However, there is satisfaction in examining what they get out of all this torment, what advantage they derive from all the trouble of their wretched existence. Actually the people never blame the tyrant for the evils they suffer, but they do place responsibility on those who influence him; peoples, nations, all compete with one another, even the peasants, even the tillers of the soil, in mentioning the names of the favorites, in analyzing their vices, and heaping upon them a thousand insults, a thousand obscenities, a thousand maledictions. All their prayers, all their vows are directed against these persons; they hold them accountable for all their misfortunes, their pestilences, their famines; and if at times they show them outward respect, at those very moments they are fuming in their hearts and hold them in greater horror than wild beasts. This is the glory and honor heaped upon influential favorites for their services by people who, if they could tear apart their living bodies, would still clamor for more, only half satiated by the agony they might behold. For even when the favorites are dead those who live after are never too lazy to blacken the names of these man-eaters23 with the ink of a thousand pens, tear their reputations into bits in a thousand books, and drag, so to speak, their bones past posterity, forever punishing them after their death for their wicked lives.

Let us therefore learn while there is yet time, let us learn to do good. Let us raise our eyes to Heaven for the sake of our honor, for the very love of virtue, or, to speak wisely, for the love and praise of God Almighty, who is the infallible witness of our deeds and the just judge of our faults. As for me, I truly believe I am right, since there is nothing so contrary to a generous and loving God as tyranny—I believe He has reserved, in a separate spot in Hell, some very special punishment for tyrants and their accomplices.

NOTES

1. Iliad, Book II, Lines 204–205.—H.K.

2. Government by a single ruler. From the Greek monos (single) and arkhein (to command).—H.K.

3. An autocratic council of thirty magistrates that governed Athens for eight months in 404 B.C. They exhibited such monstrous despotism that the city rose in anger and drove them forth.—H.E.

4. Athenian general, died 489 B.C. Some of his battles: expedition against Scythians; Lemnos; Imbros; Marathon, where Darius the Pemian was defeated.—H.K.

5. King of Sparta, died at Thermopolae in 480 B.C., defending the pass with three hundred loyal Spartans against Xerxes.—H.K.

6. Athenian statesman and general, died 460 B.C. Some of his battles: expedition against Aegean Isles; victory over Persians under Xerxes at Salamis.—H.K.

7. The reference is to Saul anointed by Samuel.—H.K.

8. Alexander the Macedonian became the acknowledged master of all Hellenes at the Assembly of Corinth, 335 B.C.—H.K.

9. Athenian tyrant, died 627 B.C. He used ruse and bluster to control the city and was obliged to flee several times.—H.K.

10. Denis or Dionysius, tyrant of Syracuse, died in 367 B.C. Of lowly birth, this dictator imposed himself by plottings, putsches, and purges. The danger from which he saved his city was the invasion by the Carthaginians.—H.K.

11. Dionysius seized power in Syraeuse in 405 B.C.—M.N.R.

12. Mithridates (c. 135–63 B.C.) was next to Hannibal the most dreaded and potent enemy of Roman power. The reference in the text is to his youth when he spent some years in retirement hardening himself and immunizing himself against poison. In his old age, defeated by Pompey, betrayed by his own son, he tried poison and Finally had to resort to the dagger of a friendly Gaul. (Pliny, Natural History, XXIV, 2.)—H.K.

13. The ruler of Venice.—M.N.R.

14. A half-legendary figure concerning whose life Plutarch admits there is much obscurity. He bequeathed to his land a rigid code regulating land, assembly, education, with the individual subordinate to the state.—H.K.

15. Odyssey. Book II, Lines 14–19. The Cimmerians were a barbarian people active north of the Black Sea in the eighth and seventh centuries B.C., and gave their name to Crimea.—M.N.R.

16. The Ottoman Sultan of Constantinople was often called the Grand Turk.—M.N.R.

17. Brutus and Cassias helped to assassinate Julius Caesar in 44 B.C. They committed suicide after being defeated by Marcus Antonius at the Battles of Philippi in 42 B.C.—M.N.R.

18. Almost a third of the Roman Emperors were killed by their own soldiers.—M.N.R.

19. The cutting off of ears as a punishment for thievery is very ancient. In the middle ages it was still practiced under St. Louis. Men so mutilated were dishonored and could not enter the clergy or the magistracy.—H.K.

20. By Aesop.—M.N.R.

21. Aeschylus’ Prometheus the Firebearer (fragment).—M.N.R.

22. Petrarch, Cazoniere, Sonnet XVII. La Boetie has accurately rendered the lines concerning the moth.—H.K.

23. The word was used by Homer in the Iliad, Book I, Line 341.—M.N.R.

Tagged , , ,