1911 Encyclopædia Britannica/Quo Warranto

From Wikisource
Jump to: navigation, search

QUO WARRANTO, in English law, the name given to an ancient prerogative writ calling upon any person usurping any office, franchise, liberty or privilege belonging to the Crown, to show "by what warrant" he maintained his claim, the onus being on the defendant. It lay also for non-user or misuser of an office, &c. If the Crown succeeded, judgment of forfeiture or ousterlemain was given against the defendant. The procedure was regulated by statute as early as 1278 (the statute of Quo Warranto, 6 Edw. I. c. 1), passed in consequence of the commission of quo warranto issued by Edward I. A distinction was drawn in the report between libertates, jurisdiction exercised by the lord as lord, and regalia, jurisdiction exercised by Crown grant. After a time the cumbrousness and inconvenience of the ancient practice led to its being superseded by the modern form of an information in the nature of a quo warranto, exhibited in the King's Bench Division either by the attorney-general ex officio or by the king's coroner and attorney at the instance of a private person called the relator. The information will not be issued except by leave of the court on proper cause being shown. It does not lie where there has been no user or where the office has determined. Nor does it lie for the usurpation of every kind of office. But it lies where the office is of a public nature and created by statute, even though it is not an encroachment upon the prerogative of the Crown. Where the usurpation is of a municipal office the information is regulated by 9 Anne c. 25 (1711), under which the defendant may be fined and judgment of ouster given against him, and costs may be granted for or against the relator. Such an information must, in the case of boroughs within the Municipal Corporations Act 1882, be brought within twelve months after disqualification (s. 225); in the case of other boroughs, within six years after the defendant first took upon himself the office (32 Geo. III. c. 58, s. 2). The information in the nature of a quo warranto, though nominally a criminal, has long been really a civil proceeding, and has recently been expressly declared to be so (Supreme Court of Judicature Act 1884, s. 15). In cases not falling within 9 Anne c. 25, judgment of ouster is not usually given. The most famous historical instance of quo warranto was the action taken against the corporation of London by Charles II. in 1684. The King's Bench adjudged the charter and franchises of the city of London to be forfeited to the Crown (State Trials, vol. viii. 1039). This judgment was reversed by 2 Will. & Mary, sess. 1, c. 8; and it was further enacted, in limitation of the prerogative, that the franchises of the city should never be seized or forejudged on pretence of any forfeiture or misdemeanour. In Scotland the analogous procedure is by action of declarator.

In the United States the right to a public office is tried by quo warranto or similar procedure, regulated by the state laws. Proceedings by quo warranto lie in a United States court for the removal of persons holding office contrary to art. xiv. s. 3 of the Amendments to the Constitution (act of the 31st of May 1870, c. 14).