Saturday, November 29, 2008

Again, Quo Warranto is not news

In case you're not paying attention to Current Events, here's a recap:

The Constitution requires a president be a "natural born citizen."

Obama be a "natural born citizen."

Several lawsuits are pending to resolve this issue.

NONE of the lawsuits will prevail, because they are not using the "right remedy" for the "right injury."

In essence, these pending lawsuits are asking for an injunction instead of the correct remedy, a Quo Warranto.

Because they are asking for the wrong remedy, judges can dismiss the lawsuit, usually with the reason that the plaintiff "lacks standing to sue."

That phrase is a subterfuge, the reasoning is irrelevant, it merely implies that the wrong remedy was chosen.

The correct remedy for usurpation is Quo Warranto, which is unusual is several respects:

Quo Warranto is rarely used.
Quo Warranto is little understood.
Quo Warranto has different rules of pleading.

First, a little (very little) history:

Quo Warranto is Latin for "what warrant." As its Latin name would suggest, it is part of the ancient Roman Law, which is not only the precursor to all "old world" legal traditions, but the foundation of "British Common Law."


A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, EMBRACING MANDAMUS, QUO WARRANTO AND PROHIBITION. BY JAMES L. HIGH. (the best reference):

593: The origin of the writ may be traced to a very early date in the history of the common law. The earliest case upon record is said to have been in the ninth year of Richard I, A. D. 1198, and was against the incumbent of a church, calling upon him to show "quo warranto" he held the church.4 It was frequently employed during the feudal period, and especially in the reign of Edward I, to strengthen the power of the crown at the expense of the barons.

When the British began to compose the written law (Statutes of Edward I), Quo Warranto was already considered ancient. As stated in the History of the Monarchy

The Statutes of Gloucester (1278) and Quo Warranto (1290) attempted to define and regulate feudal jurisdictions, which were an obstacle to royal authority and to a uniform system of justice for all

There are several famous QW cases from that period, including several that tried to revoke the Charter of the City of London. (It would affect their ability to collect taxes, quite a lucrative "franchise".) again, Highs:

§ 601. ... The-most flagrant instances of such abuse of the remedy occurred in the turbulent proceedings which marked the latter period of the reign of Charles II, when the information was used for the purpose of forfeiting the charters of large numbers of municipal corporations throughout the kingdom. ... To such an extent was the jurisdiction carried that in the celebrated case of the city of London, decided at Trinity term, in the thirty-fifth year of this reign (1684), the entire liberties, privileges and franchises of the city were seized into the hands of the king, where they remained for a period of four years ...



As part of "British Common Law" it is considered part of our American Heritige. Quo Warranto is one of our Fundamental Rights, like "Freedom of Speech," the "Right to Assemble," etc. All of those rights are spelled out in the "Bill of Rights," (first 10 amendments to the Constitution), but Quo Warranto is, several times! (Fifth Amendment, due process of law, Seventh Amendment, Suits at common law).