From the December 2006 Idaho Observer:
King Edward I and the "writ of quo warranto" Possible clues for modern application
Wikipedia, the amazing on-line research encyclopedia, says: "Quo Warranto had its origins in an attempt by King Edward I of England to investigate and recover royal lands, rights, and franchises in England, in particular those lost during the reign of his father, King Henry III of England. From 1278 to 1294, Edward dispatched justices throughout England to inquire ‘by what warrant’ English lords held their lands and exercised their jurisdictions (often the right to hold a court and collect its profits). Initially, the justices demanded written proof in the form of charters, but resistance and the unrecorded nature of many grants forced Edward to accept those rights peacefully exercised since 1189. Later, Quo Warranto functioned as a court order (or ‘writ’) to show proof of authority; for example, demanding that someone acting as the sheriff prove that the king had actually appointed him to that office (literally, ‘By whose warrant are you the sheriff?’)."
"In the U.S.A. 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 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.
"With U.S. independence, sovereignty passed from the monarch to the people, and with it the right and authority of every individual to seek the prerogative writs, such as quo warranto and habeas corpus, ‘in the name of the people,’ for oneself or any other. It is called ‘prerogative’ because a court of competent jurisdiction has no discretion whether to issue them, only to set the response for a hearing, usually within 3-20 days, to hear, ahead of all other cases on its docket, the proof of the respondent that he has authority, and to support the respondent if he provides sufficient proof. By the ancient standard of due process, if the court failed to conduct the hearing, the writ would issue by default without further notice, and could be enforced by any persons as militia.
"In the New York Ratification Convention, amendments were proposed to the new Constitution that included one that would recognize the right of every person to bring the prerogative writs ‘in the name of the people.’ This right, which may be characterized as the right to a presumption of nonauthority, was apparently considered so obvious by James Madison and others that he combined it with others to become the Ninth Amendment to the United States Constitution."
The website at www.constitution.org states, "The common law writ of quo warranto has been suppressed at the federal level in the United States, and deprecated at the state level, but remains a right under the Ninth Amendment which was understood and presumed by the Founders, and which affords the only judicial remedy for violations of the Constitution by public officials and agents. Here are a few writings on the subject. Revival of the writs must be combined with reviving standing for private prosecution of public rights, subverted by the decision in Frothingham v. Mellon, 262 U.S. 447 (1923), which is discussed in an article by Steve Winter, The Metaphor of Standing and the Problem of Self-Governance.
A Google search on "writ of quo warranto" is helpful. An extensive review of the possibility of modern application of quo warranto, available at www.constitution.org, is the chapter on quo warranto in "The Practice of Extraordinary Remedies" by Chester James Antieau (1987).
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