Quo warranto

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Quo warranto (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or "franchise") they claim to hold.

Early history[edit]

With the spread of royal justice in the 12th and 13th centuries, private franchises and liberties were increasingly called upon to uphold the king's peace: to act against “malefactors and peace breakers, so that it may appear that you are a lover of our peace”.[1] From 1218 onwards,[2] royal Eyres also began using the old writ of quo warranto - a court order to show proof of authority, as for example (literally) "By what warrant are you the sheriff?" - to investigate the origins of such franchises.[3] An inquest of 1255 began examining such liberties nationwide; [4] and the same enquiry was taken up again by King Edward I of England in 1278, when he decreed in the Statute of Gloucester that “We must find out what is ours, and due to us, and others what is theirs, and due to them”. [5]

From one point of view this can be seen as an attempt to investigate and recover royal lands, rights, and franchises in England,[6] in particular those lost during the reign of his father, King Henry III of England.[7][8] From another, it was less of an attack on franchises as a clarification of them: in Hilda Johnstone's words, “Edward's aim, it is clear, was from the first not abolition but definition”.[9]

A similar ambiguity surrounds the role of the justices that, from 1278 to 1294, Edward dispatched s throughout the Kingdom of England to inquire "by what warrant" English lords claimed their liberties and exercised jurisdiction, including the right to hold a court and collect its profits. Some of the justices demanded written proof in the form of charters, others accepted a plea of 'Immemorial tenure';[10] and resistance[citation needed] and the unrecorded nature of many grants meant that eventually, by the Statute of Quo Warranto (1290), the principle was generally accepted that those rights peacefully exercised since 1189 - the beginning of the reign of Richard I; this is the legal definition in England of the phrase "time immemorial"[6][11] - were legitimate.[12]

Publication[edit]

The Quo warranto pleas from the reigns of Edward I, Edward II and Edward III were published by the Record Commission in 1818.

Later developments[edit]

The most famous historical instance of quo warranto was the action taken against the Corporation of London by Charles II in 1683.[13] The King's Bench adjudged the charter and franchises of the City of London to be forfeited to the Crown, though this judgment was reversed by the London, Quo Warranto Judgment Reversed Act 1689 shortly after the Glorious Revolution.

But the remodelling of the City of London was only part of a wider remodelling of some forty chartered parliamntary boroughs by the Crown[14] - a policy taken up again in 1688 by James the Second, when some thirty-five new charters were issued after quo warranto produced the surrender of the old ones.[15] This Quo warranto remodelling or 'Dissolution' of the parliamentary corporations gave point to the claim by William of Orange that “our expedition is intended for no other design but to have a free and lawful parliament assembled”, and underpinned the charge in the Bill of Rights that James had been “violating the freedom of election by members to serve in parliament”.[16]

Quo warranto today[edit]

In the United States today, quo warranto usually arises in a civil case as a plaintiff's claim (and thus a "cause of action" instead of a writ) that some governmental[citation needed] or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires) those authorized by statute or by the corporation's charter.

In some jurisdictions that have enacted judicial review statutes, the prerogative writ of quo warranto has been abolished. This includes Queensland[17] and New South Wales.[18]

See also[edit]

References[edit]

  1. ^ Henry III, 1237, in Helen Cam Law-finders and Law-makers (London 1962) p. 38-9
  2. ^ Helen Cam Law-finders and Law-makers (London 1962) p. 39
  3. ^ S. H. Steinberg ed.' A New Dictionary of British History (London 1963) p. 299
  4. ^ Helen Cam Law-finders and Law-makers (London 1962) p. 39-40
  5. ^ J. R. Tanner ed., The Cambridge Medieval History Vol VII (C 1932) p. 394
  6. ^ a b Clanchy From Memory to Written Record p. 3
  7. ^ Harris, Nicholas; Charles Purton Cooper (1831). Public Records. p. 74. 
  8. ^ Carpenter, David A. (1996). The reign of Henry III. p. 88. ISBN 978-1-85285-137-8. 
  9. ^ J. R. Tanner ed., The Cambridge Medieval History Vol VII (C 1932) p. 394
  10. ^ Helen Cam Law-finders and Law-makers (London 1962) p. 41
  11. ^ Clanchy From Memory to Written Record p. 152
  12. ^ S. H. Steinberg ed.' A New Dictionary of British History (London 1963) p. 299
  13. ^ Shortt, John (1888), Informations (criminal and quo warranto) mandamus and prohibition, American law series, C. H. Edson and company, p. 137 .
  14. ^ J. H. Plumb, The Growth of Political Stability in England (London 1986) p. 55-6
  15. ^ M. Ashley, The Glorious Revolution (London 1966) p. 112
  16. ^ M. Ashley, The Glorious Revolution (London 1966) p. 205-7
  17. ^ Sn 42 Abolition of quo warranto, Judicial Review Act 1991, Queensland Consolidated Acts
  18. ^ Sn 12 Quo Warranto Supreme Court Act 1970, New South Wales Consolidated Acts

Bibliography[edit]

  • Clanchy, M. T. (1993). From Memory to Written Record: England 1066–1307 (Second ed.). Malden, MA: Blackwell Publishing. ISBN 978-0-631-16857-7. 
  • Michael Prestwich, Edward I (London: Methuen, 1988, updated edition Yale University Press, 1997 ISBN 0-300-07209-0)
  • Michael Prestwich, The Three Edwards: War and State in England 1272–1377 (London: Weidenfeld & Nicolson, 1980, reprinted Routledge 1996) ISBN 0-415-05133-9
  • Donald W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I, 1278–1294 (Oxford; Clarendon Press, 1963)

External links[edit]