COMMON LAW & NATURAL LAW BASIS by John Charlton Quo warranto, (Latin) means: by what warrant or right

do you act? In aw, !e"inition: 1. A legal proceeding during which an individuals right to hold an office or governmental privilege is challenged. !ests "ncyclopedia of American #aw$ %. A common law writ in&uiring into the authority by which a public official claims his'her office. !ebsters (ew !orld #aw )ictionary$ *. A state action with the intent of revo+ing the charter of a corporation that has abused or for a long period failed to e,ercise its franchise. !ebsters$ #ISTOR$: %N&LAN': According to -urt von .. -ynell/ in his .a,on and 0edieval Antecedents of the "nglish Common #aw1 !hen "dward 2 was crowned in 1%34/ he was already highly regarded not only as a formidable warrior/ but also as an able an proved administrator/ 5 6he venerable )ean of ",eter/ 7enry 8racton/ had insisted that all 9ustice flowed from the -ing/ but this was not the autocratic policy it seemed/ the implication of 8ractons great Common #aw treatise being that a %n( is)men, in* u!in( t)e +in( were un!er t)e aw, :ne of "dwards first moves was to institute the writ of &uo warranto/ 1$ by what authority one held an estate/ a manor, a tit e, es-e*ia . t)ose w)i*) in/o /e! sie(noria , or -ri/ate e(a 0uris!i*tions o/er t)eir tenants. %$ Bot) -u1 i* an! -ri/ate *ourts had long been a function of the feudal system/ and not a wa.s (o/erne! 1. t)e emer(in( Common Law . :verlaps e,isted/ illegalities/ secrete proceedings/ subterfuges/ and many tiny baronial/ feudal enclaves. 6he &uo warranto writ was not new/ *$ but "dward readily e,panded it/ attempting to root out i e(a "ran*)ises/ e,amining former royal patents/ and establishing uniform law under the -ing in their multitudinous governances. 5 "dward had instituted the writ in the year of his coronation/ careful not to threaten the established/ obviously franchised baronial class of land standing/ and e,ercising some leniences where possible/ but still e,emplifying the lawful re&uirements of proof of

authority for the stability of the -ingdom. ;our years later/ the .tatute of <loucester formali=ed the procedure more rigorously/ see+ing to eliminate fraudulent or unproven claims by the e,pedient of summoning all those claiming franchise 9urisdictions to appear before either the -ing or his ' or his itinerant 9ustices to show proof of authority. 4$ 6hose who did not appear automatically had their franchises confiscated by the local .heriff/ a practice which unearthed a number of fraudulent e,ercises of authority. 2n a manner of spea+ing/ "dwards &uo warranto maneuvers were similar in a small manner to his ancestors )omesday 8oo+/ but far more sophisticated/ in esta1 is)in( or!er . )ierar*)ies un!er t)e Crown "or e2ua1 e aws, 6o compare the importance of &uo warranto/ one may say that "dward 2 was as important to personal actions and rights as 7enry 22 was to real propter actions and rights. >$ 8oth monarchs made huge strides in the legacy of the Common #aw/ but &uo warranto also )e -e! -ro-ert. !is-utes in great measure in that it re*o(ni3e! t)e *um1ersome -ro1 ems o" "eu!a s.stem 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 ne,t and final step in which the -ings policies on land franchises resulted now in the .tatute of ?uo !arranto itself/ not as a mere subsidiary clause in the .tatue of <loucester. 6his helped clear up the type of hopeless land fiefdom obligations described by 7ollister in which one @oger of .t. <erman held an estate encumbered by no less than eight lord to vassal feudal obligations/ a virtually unsolvable <ordian +now in the law. . . . 6hus &uo warranto was as important for what it set in motion as a -re*e!ent "or 4ar iament as for what it did in establishing uniform 9ustice for individuals and reforming the hopeless anachronisms of feudalism. 6he -ing was indeed the fountain head of law which 8racton had espoused/ but/ li+e .t. 6homas A&uinas and his 9uristic liberalism which the influential professor preached at the Aniversity of Baris/ 3$ was in essence the same +ind of natural law to which the state must adhere for the well being of all its citi=ens/ including the -ingC the identical theory claimed also by 8racton and by .tephen ' #angton/ the archbishop of Canterbury. 6he law itself must be sub9ect to the natural law of divine Brovidence/ said A&uinas/ the earthly 9urisprudence sub9ect to eternal natural law. D$. 2t is important to remember that the beginnings of statutory law grew out of the 9udicial writs of the Common #aw/ and that there e,isted no true legislative bodies in medieval "ngland. !hat evolved was 9udgeEmade law/ e,emplifying customs and writs from ancient timesC and the "nglish Barliament which &uietly began to emanate under "dward was originally a high court. F$ AM%RICAN: 6he subse&uent history of &uo warranto in common law is outlined by the A... .upreme Court Justice #amar in (ewsman vs. Anited .tates e, @el. ;ri==el1

1. Usur-ation o" a -u1 i* o""i*e "rom an ear . !a. was treate! as a *rime / and/ li+e all other crimes/ could be prosecuted only in the name of the -ing by his duly authori=ed law officers. !hen a 9udgment was obtained against the intruder/ he was not only ousted from his office/ but fined for his criminal usurpation. A private citi=en 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 +insman. %. 8ut/ in time/ the criminal features were modified/ and it was recogni=ed that there might be many cases which/ though 9usti".in( 2uo warranto -ro*ee!in(s, were not o" su*) (enera im-ortan*e as to re2uire t)e attorne. (enera to ta5e *)ar(e o" t)e iti(ation, 6his was especially true in reference to the usurpation of certain municipal offices named in Fth Anne/ c. %G. 8y that act/ passed in 131G/ it was therefore provided that it should be lawful for the proper officer/ by leave of the court/ to e,hibit an information in the nature of a &uo warranto at the relation of any person desiring to prosecute the same against the designated municipal officers. 6he writ thus came to be use! as a means o" !eterminin( w)i*) o" two * aimants was entit e! to an o""i*e / but continued to be so far treated as a criminal proceeding as to warrant not only a 9udgment of ouster/ but a fine against the respondent if he was found to have been guilty of usurpation. .tandard :il Co. v. 0issouri/ %%4 A. .. %D%. 6his &uasiEcriminal act was adopted in some of the American states/ and formed the basis of statutes in others. 2t does not seem ever to have been of force in any form in the )istrict of Columbia. 6orbert v. 8ennett/ %4 !ash.#aw @ep. 1>H. And the same Justice continues/ describing how &uo warranto wor+s in the ).C. Code1 2n 1FG%/ Congress adopted a 'istri*t Co!e/ containing a chapter on &uo warranto which/ though modeled after the "nglish statute/ differed therefrom in several material particulars. 6he writ was treated as a *i/i reme!.6 it was not limited to proceedings against municipal officers/ but to a -ersons w)o in t)e 'istri*t e7er*ise! an. o""i*e, *i/i or mi itar., 2t was made available to test the right to e,ercise a public franchise or to hold an office in a private corporation. 2nstead 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. 6hese provisions I;ootnote %J have never received 9udicial interpretation. 6his case must therefore be determined according to the special language of that Code/ in the light of general principles applicable to &uo warranto/ K the prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or e,ercises a public franchise. QUO WARRANTO8S NATURAL LAW BASIS ;rom a consideration of the nature and history of &uo warranto/ one can easily see the natural law basis of this action.

1. 2t is issue! 1. t)e so/erei(n/ who has a right to confer an office or benefice/ +nown in law as a franchise %. 2t proceeds by granting t)e !e"en!ant t)e ri()t to -ro/e his title or claim *. 2t concludes/ in the case of non9-roo", remo/a of office or penalty or both. 6he sovereigns claim to issue &uo warranto is founded upon his title to authority/ to which the right to confer offices is attached. 6herefore/ the authority which confers the office has the right to &uo warranto. 6he defendant has the right to produce evidence to prove his 9ust holding of the office. ?uo warranto does not presume guilt in the holderC neither does it presuppose that the holder has the office by his own right. @ather it -resumes t)e )o !er )as a !ut. to mani"est -roo" o" )is * aim, 1e*ause su*) an o""i*e is not )is, 1ut *on"erre! u-on )im 1. t)e 2uestionin( aut)orit., 2n property rights we see an analogyC for when the owner of a property finds it being used by a nonEowner/ he as+s when did he receive his permission to use it. 6he owner has the right on account of his title to the propertyC the user has the duty to respond and relin&uish use if he cannot 9ustify his right to use. A44LICABILIT$ O: :ORMAL QUO WARR%NTO IN U,S, LAW 6he formal &uo warranto proceeding re&uires the action or consent of the e,ecutive branch/ which acts in the name of the state or government. 6he defendant has the duty to prove his claimC the office is his not by intrinsic right/ by only such by a proven claim. 6he court assuming the role of 9udge in the case/ stands between the one who moves the claim and the defendant. 6he action is a civil proceeding/ and is codified in the )istrict Columbia Code. A44LICABILIT$ O: IN:ORMAL QUO WARRANTO TO %LI&IBILIT$ CAS%S 6he analogy between property rights and franchise rights/ allows the application of the concept of an information re&uest which e,ists in criminal or civil actions/ moved by the e,ecutive branch or a representative therefore/ to a private party who is in9ured by the intrusion of another into a franchise or office. 6his is true because/ when in9ured by one claiming title to an office/ the very claim to the title as 9ustification for the in9ury/ re&uires the claimant to prove his claim. 6his form of civil action therefore is virtually a &uo warranto/ but not formally such.

6here is fre&uent misunderstanding of the nature of a &uo 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 e,ecutive branch. 6he right to move an informal &uo warranto is ancilliary to some other right notEtoEbeE in9uredC and arises in the conte,t when the defendant/ charged with the in9ury/ has done so with a claim to a franchise. As such is not a prerogative writ action. 2t is this invo+ing of the proceeding of &uo warranto/ to defend other e,isting rights/ that can be termed the common law right to &uo warranto/ since it is not based on statatue per se/ but arises out of an analogy to the formal &uo warranto proceeding in common law/ which analogy has its legal 9ustification in natural law. 2t is properly/ however/ a natural right/ the same claimed by the "nglish sovereign in issuing the first writs of &uo warranto/ and the basis for the genus of &uo warranto proceedings/ a special instance or species of which is the formal &uo warranto proceeding. 6he 3th Circuit Court @uling against the misuse of the formal &uo warranto in )istrict Courts was discussed in a previous article at 6he Bost L "mail.