Qui tam: Modern Utilization of a Historical Civil War Cause of Action
From time to time, while presiding at the trial court level, an all-together-different type of case comes along. One such matter appeared on my docket several years back. I was assigned to hear a qui tam action. Having no previous experience with what a qui tam action was, I came to learn that it is a common law writ. I prepared for the case by reviewing the court file and conducting some additional research to familiarize myself with qui tam actions.
This particular case was brought under the Illinois False Claims Act (the “Act”) by the Illinois Attorney General’s Office. The Act is a vehicle to penalize entities that submit false claims for payment or defraud the state with civil liabilities. The Act allows for a private citizen, a “whistleblower,” historically known as a ‘relator,’ to bring suit on behalf of the state. This ‘relator’ presumably has information that an alleged entity defrauded the state. In Illinois, a ‘relator’ is known as a “qui tam plaintiff.” Once the citizen with material information about fraud files a complaint, the state is served and may elect to intervene and prosecute the matter. Once filed in camera, the complaint remains under seal. Should the State decline to pursue the matter, the ‘relator’ retains the right to pursue the action on their own behalf.
The purpose of the Act mirrors the Federal False Claims Act. Qui tam actions assist the United States government root-out fraud while incentivizing private citizens to come forward with relevant information known by them. The incentive of a percentage of any money judgment awarded as a result of successful prosecution of the cause is extended to the qui tam plaintiff. In Illinois, for example, a qui tam plaintiff may receive up to 30% of an award.
While the qui tam case that piqued my interest never progressed past discovery prior to me joining the appellate court, it’s the history of the cause of action and its associated development that continues to intrigue me. Two historical points in the development of qui tam actions are worth highlighting. Those points involve sovereign English kings and a revered United States President.
The common law writ action “qui tam” is an abbreviation for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur," meaning “Who sues on behalf of the King as well as for himself.” That is, private citizens are allowed to bring suit to assist the crown in protecting it from wrongdoers.
A qui tam writ allowed a commoner in merry ole England to pursue his own pecuniary interest by bringing forward information, known particularly to him, that negatively affected the King’s interest. Such as proof of unauthorized poaching of royal ground. Traditional qui tam presented clear advantages to bringing such matters to the crown's attention: (1) the allocation of a percentage of a monetary award in cases for successful prosecution, (2) the favor of the crown for protecting the King's interests, and most notably (3) the access to the seldomly available royal courts.
Thirteenth-century royal courts only heard matters involving the king. While rare for a commoner to bring suit within the framework of the royal court system, a qui tam action allowed one access to the exclusive court, through alleging a wrong concerning a matter affecting the king’s interests.
Although restricted from the royal courts, the common practice at that time only allowed a private citizen to plead his case to a local common law court of general jurisdiction. Common law court holdings often proved arbitrary as they tended to be subject to local favor and custom. Therefore, the ability to bring an action in the royal court, championing the king's cause, was the favored venue with obvious advantages.
As with so much of our legal tradition, if this common law writ was successful in protecting the crown’s interests, why not adopt the principle here. Qui tam actions followed English settlers to Colonial America and were utilized as an established legal principle. The first Continental Congress, with a limited number of officials or real policing power, codified the first qui tam action as a means of discovery of information and law enforcement in 1778.
Yet, it was famously the rampant graft of opportunistic civil war contractors preying upon the Union army's urgent need of provisions that led to the introduction of the aforementioned federal False Claims Act. In July of 1861, U.S. Representative Charles Van Wych (N.Y.) called for action to address the rampant fraud hampering the Union’s fight against the Confederacy. Prior to the passage of the federal False Claims Act, no established system of testing and procuring needed supplies of all kinds for the Union cause was in place. As a result, get-rich-quick contractors unloaded faulty goods of all types for great profit, such as sickly mules, shoddy ammunition, and spoiled rations. The House of Representatives responded by creating the United States House Select Committee on Government Contract (“The Committee”). The Committee, originally chaired by U.S. Representative Charles Van Wych (N.Y.), was granted wide discretionary power to investigate and make findings.
The powers granted to The Committee were purposefully broad. It was important to assist suppression of forces that would otherwise impede the Union war effort for self-serving interests. The Committee's remit involved investigating government contracts and reporting: (1) to which Department the contracts were made, (2) the underlying purpose of the contract, (3) the makers of the contract, (4) for what services rendered, and (5) the amount of the contract. The Committee investigated whether contracts were performed in accordance with the intended purpose, and whether the contract called for the acceptance of low-bid contracts (unless there appeared to be a valid reason for the acceptance of a higher-bid contract). The Committee enjoyed subpoena power as well as the power to take and receive evidence.
The second-appointed chair of The Committee was Elihu Washburne, a friend of President Abraham Lincoln. The Illinois Republican Congressman and promoter of General Ulysses S. Grant kept President Lincoln apprised of The Committee's findings. He once wrote to the President to express his frustration with unscrupulous contractors: "The robberies, the frauds, the peculiarities in the government which have already come to our knowledge are absolutely frightful."
The work of The Committee culminated March 2, 1863, with the passage of the federal False Claims Act. The Act outlawed fraudulent claims when contracting with the government. To encourage private citizens to come forward with information of fraudulent profiteering at the government's expense, the Act contained a provision for private “whistleblowers” to receive a share of any money recovered from prosecution under the Act. The federal False Claims Act became widely known as the ‘Lincoln Law.’
The tool once utilized to protect the interest of the English crown came to our shores with Colonial setters. The common law writ has been codified into State and Federal law. While qui tam actions are not widely utilized by Illinois practitioners, the legal principle remains a functional tool of state and federal jurisprudence.
The high-water mark of qui tam actions in the United States is famously our civil war years. Unscrupulous contractors' attempts to fleece the Union government were fought back by enacting the False Claims Act or ‘Lincoln Law.’ Many States followed suit and these actions are very much alive and well in Illinois and the United States today.
 31 U.S.C. §§ 3729-3730 (2009).
 740 Ill. Comp. Stat. Ann. 175/4 (West 2014).
 31 U.S.C. §§ 3729-3730 (2009).
 The History and Development of Qui Tam, 1972 WASH. U L. Q. 081, 085 (1972).
 Id. at 85.
 Qui Tam, Wikipedia (2023), en.wikipedia.org/wiki/Oui_tam (last visited Oct. 6, 2023).
 Mark Greenbaum, The Civil War's War on Fraud, The New York Times (Mar. 7, 2013, 12:22 PM), archive.nytimes.com/pinionator.blogs.nytimes.com/2013/03/07/the-civil-wars-war-on-fraud/.
 United States House Select Committee on Government Contracts, Wikipedia, en.wikipedia.org/wiki/United_States_House_Committee_on_Government_Contracts (last visited Oct. 6, 2023).
 @NYTcivilwar, Twitter (Mar. 7, 2013), twitter.com/NYTcivilwar/.