COMMON LAW ORIGIN,NATURAL LAW BASIS
by John Charlton
(Oct. 10, 2009) — The nature of a quo warranto proceeding is as important to understand as its history, when considering arguments for and against standing and jurisdiction in cases seeking to resolve the national crisis brought on by the usurpation of the U.S. Presidency by Barack Hussein Obama.
The Definition of Quo Warranto
Quo warranto, is a Late Latin phrase meaning “by what warrant or right do you act?”
In law it is defined by West’s Encyclopedia of American Law, thus:
A legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged.
Again Webster’s New World Law Dictionary, defines Quo warranto thus
1. A common law writ inquiring into the authority by which a public official claims his/her office.
2. A state action with the intent of revoking the charter of a corporation that has abused or for a long period failed to exercise its franchise.
The Origin of Quo Warranto in English Common Law
Let’s examine the origins of quo warranto in the legal traditions of England and the United States.
First, in England its usage is of great antiquity:
Kurt von S. Kynell, in his Saxon and Medieval Antecedents of the English Common Law, discusses this on p. 129-131:
When Edward I was crowned in 1274, he was already highly regarded not only as a formidable warrior, but also as an able an proved administrator, …
The venerable Dean of Exeter, Henry Bracton, had insisted that all justice flowed from the King, but this was not the autocratic policy it seemed, the implication of Bracton’s great Common Law treatise being that all Englishmen, including the King were under the law. One of Edward’s first moves was to institute the writ of quo warranto,(1) by what authority one held an estate, a manor, a title, especially those which involved siegnorial, or private legal jurisdictions over their tenants. (2) Both public and private courts had long been a function of the feudal system, and not always governed by the emerging Common Law. Overlaps existed, illegalities, secrete proceedings, subterfuges, and many tiny baronial, feudal enclaves.
The quo warranto writ was not new, (3) but Edward readily expanded it, attempting to root out illegal franchises, examining former royal patents, and establishing uniform law under the King in their multitudinous governances. …
Edward had instituted the writ in the year of his coronation, careful not to threaten the established, obviously franchised baronial class of land standing, and exercising some leniences where possible, but still exemplifying the lawful requirements of proof of authority for the stability of the Kingdom. Four years later, the Statute of Gloucester formalized the procedure more rigorously, seeking to eliminate fraudulent or unproven claims by the expedient of summoning all those claiming franchise jurisdictions to appear before either the King or his / or his itinerant justices to show proof of authority.(4) Those who did not appear automatically had their franchises confiscated by the local Sheriff, a practice which unearthed a number of fraudulent exercises of authority. In a manner of speaking, Edward’s quo warranto maneuvers were similar in a small manner to his ancestor’s Domesday Book, but fare more sophisticated, in establishing orderly hierarchies under the Crown for equable laws. To compare the importance of quo warranto, one may say that Edward I was as important to personal actions and rights as Henry II was to real propter actions and rights. (5) Both monarchs made huge strides in the legacy of the Common Law, but quo warranto also helped property disputes in great measure in that it recognized the cumbersome problems of feudal system of layered tenures, especially in light of a rapidly growing mercantilism, charter cities, and the increasing power and influence of trade guilds, certainly including the masons.
Another twelve years passed before the next and final step in which the King’s policies on land franchises resulted now in the Statute of Quo Warranto itself, not as a mere subsidiary clause in the Statue of Gloucester. This helped clear up the type of hopeless land fiefdom obligations described by Hollister in which one Roger of St. German held an estate encumbered by no less than eight lord to vassal feudal obligations, a virtually unsolvable Gordian know in the law. . . .
Thus quo warranto was as important for what it set in motion as a precedent for Parliament as for what it did in establishing uniform justice for individuals and reforming the hopeless anachronisms of feudalism. The King was indeed the fountain head of law which Bracton had espoused, but, like St. Thomas Aquinas and his juristic liberalism which the influential professor preached at the University of Paris, (7) was in essence the same kind of natural law to which the state must adhere for the well being of all its citizens, including the King; the identical theory claimed also by Bracton and by Stephen / Langton, the archbishop of Canterbury. The law itself must be subject to the natural law of divine Providence, said Aquinas, the earthly jurisprudence subject to eternal natural law.(8).
It is important to remember that the beginnings of statutory law grew out of the judicial writs of the Common Law, and that there existed no true legislative bodies in medieval England. What evolved was judge-made law, exemplifying customs and writs from ancient times; and the English Parliament which quietly began to emanate under Edward was originally a high court.(9)
[Footnotes lacking in on-line version.]
Quo Warranto passes from English Law to American Law
The subsequent history of quo warranto in England is outlined by the U.S. Supreme Court Justice Lamar in Newsman vs. United States ex Rel. Frizzel:
1. Usurpation of a public office from an early day was treated as a crime, and, like all other crimes, could be prosecuted only in the name of the King by his duly authorized law officers. When a judgment was obtained against the intruder, he was not only ousted from his office, but fined for his criminal usurpation. A private citizen could no more prosecute such a proceeding in his own name than he could in his own name prosecute for the crime of murder, even though the victim was his near kinsman.
2. But, in time, the criminal features were modified, and it was recognized that there might be many cases which, though justifying quo warranto proceedings, were not of such general importance as to require the attorney general to take charge of the litigation. This was especially true in reference to the usurpation of certain municipal offices named in 9th Anne, c. 20. By that act, passed in 1710, it was therefore provided that it should be lawful
“for the proper officer, by leave of the court, to exhibit an information in the nature of a quo warranto at the relation of any person desiring to prosecute the same“
against the designated municipal officers. The writ thus came to be used as a means of determining which of two claimants was entitled to an office, but continued to be so far treated as a criminal proceeding as to warrant not only a judgment of ouster, but a fine against the respondent if he was found to have been guilty of usurpation. Standard Oil Co. v. Missouri, 224 U. S. 282. This quasi-criminal act was adopted in some of the American states, and formed the basis of statutes in others. It does not seem ever to have been of force in any form in the District of Columbia. Torbert v. Bennett, 24 Wash.Law Rep. 156.
Quo Warranto in the D. C. Code
And the same Justice continues, describing how quo warranto works in the D.C. Code:
In 1902, Congress adopted a District Code, containing a chapter on quo warranto which, though modeled after the English statute, differed therefrom in several material particulars. The writ was treated as a civil remedy; it was not limited to proceedings against municipal officers, but to all persons who in the District exercised any office, civil or military. It was made available to test the right to exercise a public franchise or to hold an office in a private corporation. Instead of providing that “any person desiring to prosecute” might do so with the consent of the court, certain restrictions were imposed and one enlargement of the right was made. These provisions [Footnote 2] have never received judicial interpretation. This case must therefore be determined according to the special language of that Code, in the light of general principles applicable to quo warranto, — the prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.
Quo Warranto’s Natural Law Basis
From a consideration of the nature and history of quo warranto, one can easily see the natural law basis of this action. First, let’s summarize what the quo warranto action was as prosecuted by the English monarch:
1. It is issued by the sovereign, who has a right to confer an office or benefice, known in law as a franchise
2. It proceeds by granting the defendant the right to prove his title or claim
3. It concludes, in the case of non-proof, removal of office or penalty or both.
The sovereign’s claim to issue quo warranto is founded upon his title to authority, to which the right to confer offices is attached.
Therefore, the authority which confers the office has the right to quo warranto.
The defendant has the right to produce evidence to prove his just holding of the office.
Quo warranto does not presume guilt in the holder; neither does it presuppose that the holder has the office by his own right. Rather it presumes the holder has a duty to manifest proof of his claim, because such an office is not his, but conferred upon him by the questioning authority.
In property rights we see an analogy; for when the owner of a property finds it being used by a non-owner, he asks when did he receive his permission to use it. The owner has the right to question the user on account of the owner’s title to the property; the user has the duty to respond and relinquish use if he cannot justify his right to use.
Formal Quo warrento in U.S. Law is a civil proceeding
The formal quo warranto proceeding requires the action or consent of the executive branch, which acts in the name of the state or government.
The defendant has the duty to prove his claim; the office is his not by intrinsic right, by only such by a proven claim.
The court assuming the role of judge in the case, stands between the one who moves the claim and the defendant. The action is a civil proceeding, and is codified in the District Columbia Code.
Use of informal Quo warranto in civil cases
The analogy between property rights and franchise rights, allows the application of the concept of an information request — which exists in criminal or civil actions, moved by the executive branch or a representative therefore —t o a private party who is injured by the intrusion of another into a franchise or office.
This is true because, when injured by one claiming title to an office, the very claim to the title as justification for the injury, requires the claimant to prove his claim. This form of civil action therefore is virtually a quo warranto, but not formally such.
There is frequent misunderstanding of the nature of a quo warranto proceeding, when the term, while referring to a manner of proceeding, is understood solely as a specific form which is a prerogative writ of the sovereign or executive branch.
The right to move an informal quo warranto is ancilliary to some other right not-to-be-injured; and arises in the context when the defendant, charged with the injury, has done so with a claim to a franchise. As such is not a prerogative writ action.
It is this invoking of a proceeding of quo warranto, to defend other existing rights, that can be termed the “common law right to quo warranto,” since it is not based on statatue per se, but arises out of an analogy to the formal quo warranto proceedings which existed in common law for centuries, the analogy to which has its legal justification in natural law. It is properly, however, a natural right, the same claimed by the English sovereign in issuing the first writs of quo warranto, and it is this natural right which is the basis for the genus of quo warranto proceedings, a special instance or species of which is the formal quo warranto proceeding. This right, stated in its simplest terms, is the right to question the title claimed by the other party in a dispute over injuries, which conerns that title; wherein there is reasonable ground to believe the claimaint to the title is an interloper.
The 7th Circuit Court Ruling against the misuse of the formal quo warranto in District Courts was discussed in a previous article at The Post & Email.