Piffle wrote:
A Legal Lohengrin wrote:
I'm not entirely sure this is consistent with the common law origin of quo warranto, but it doesn't have to be. The statute clearly abrogated any contradictory common law authority.
It's a nit about which we may disagree, but the writ was originally a royal prerogative writ, dating back to Edward I. The use was expanded
via English statute in the time of Queen Anne and has (outside the context of a monarch or monarch's chancellor bringing the action), been a creature of statute ever since. Thus, I don't consider quo warranto to have much of a common law origin at all. YMMV.
I suppose I'm riding a bit of a hobby horse and will stop this threadjack, or maybe start a new thread about it some time, but I do not think the distinction between "common law" and "statutory law" is, or ever was, as sharply and formally distinguished as some seem to think. My view on quo warranto is not unique, or particularly new.
"The writ of Quo Warranto was a common law writ."
Territory v. Lockwood, 70 U.S. 236, 238 (1865) (Swayne, J., for the Court). Swayne then goes on to make the note you did. "In the course of time it was superseded by the speedier remedy of an Information in the same nature."
Id. (citing "5 Bacon's Abridgment, 174, Tit. Information A; 3 Blackstone's Commentaries, 263"). "It was a writ of right for the king."
Id. Incidentally, as you certainly know, that is to say it was what is now generally called a prerogative writ. Incidentally,
Lockwood stands for the proposition that a qui tam action is brought on behalf of the government and cannot be brought without the government's consent.
While it is arguable that Swayne was simply speaking carelessly, and true that quo warranto is not generally listed among the writs called "common law writs," although it is generally listed in any list of "prerogative writes," lesser courts have similarly made statements clearly indicating they consider the law surrounding quo warranto to arise not only from the original statute, but from the interpretive overlay added by centuries of common law. "Both the common law and the Code of the District of Columbia clearly point out the legal course to be pursued in determining the title to an office in a corporation such as is the one in question. We apprehend that quo warranto is that remedy."
Hayes v. Burns, 25 App. D.C. 242, 247 (D.C. Cir. 1905).
As an example of something originating in "common law" that has a similar history, what is generally called the common law writ of trespass, or
trespass quare clausum fregit. Some analogous action had existed since at least the time of Alfred the Great, but the Statute of Gloucester in 1278 established it as a statutory form of action. Despite its statutory basis, trespass is generally listed as a traditional common law offense. After all, most of the principles governing it are judge-created, based as they are on centuries-old and often vague language.
Trespass may have a longer history predating the statute than quo warranto. However, both had a statutory basis during the development of most law relating to them as we inherited them from English law, but one is for formal reasons considered traditionally common law while the latter is often considered statutory and is, in contemporary America, purely statutory and quite diminished in scope.
In short, I'd generally opt for a functional rather than a formal definition of common law, in which common law is generally speaking judge-made, whether there is a nucleus of statutory language under it or not, and even statutory law can ultimately develop so many accretional layers of interpretation that their actual application is ultimately governed by common law.
At least in terms of how I often use the term in this vein, I would say a casual definition of common law would be that which, unless abrogated explicitly or by necessary implication by statute, continues to exist. I would include in that category all that enforced by state courts in, say, 1789 and on, in absence of any explicit statute in the law of that state, which would be supported by a court of that time by citing case law rather than statute.
In any event, to avoid swelling this lengthy hobby-horse threadjack completely out of proportion, from what I have read, even a lot of people who will give a highly constricted definition of "common law" when specifically discussing formal common law will then use the same phrase simply to mean our inherited body of English law, even including that with an express statutory basis.
For example, the originalist definition of NBC, to bring it back to a somewhat birther-related issue, as codified in the Fourteenth Amendment, clearly includes, as well as the formal "common law" citizens under jus soli, the citizens created by statute, that is, jus sanguinis citizens. Even Vattel recognized that.
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