Definition
A popular action is a lawsuit brought to enforce a statutory penalty or forfeiture where any member of the public — not merely an injured party — has standing to sue. The right to sue belongs to the people generally, and whoever brings the action first may recover the penalty. The plaintiff need not demonstrate personal injury; the statute itself confers standing on any willing claimant.
Popular actions are closely associated with the qui tam mechanism, under which a private citizen sues on behalf of the government and typically shares in any recovery. The two concepts overlap substantially: every qui tam action is a form of popular action, though some scholars treat popular action as the broader category encompassing forfeitures where no government share is contemplated.
Common Confusion
Popular action and qui tam are often used interchangeably, but the terms are not perfectly synonymous. Qui tam specifically describes actions brought in the government's name by a private relator who receives a portion of the recovery — the Latin phrase qui tam pro domino rege quam pro se ipso sequitur ("who sues as much for the king as for himself") signals the dual-plaintiff structure. A popular action is the genus; qui tam is one species of it. Some early statutes created popular actions with no government share at all, making the qui tam label inapt. Researchers should treat the terms as related but distinct when working with pre-nineteenth-century sources.
Why It Matters in Research
Popular action is a term of art that has largely dropped out of modern American legal vocabulary, but it is essential for understanding a wide range of historical statutory enforcement regimes. Researchers working in common law materials from the seventeenth through nineteenth centuries will encounter it frequently in the context of penal statutes — price regulation, customs violations, sabbath laws, usury, and similar offenses where legislatures chose private enforcement over public prosecution.
The term presents a navigational trap for modern researchers: because the phrase "popular action" has no current doctrinal life in most American jurisdictions, searching for it in contemporary databases yields almost nothing useful, while searching in historical digests and treatises yields abundant material. Researchers should pivot to qui tam when working in modern sources and to popular action or actio popularis when working in English common law or early American sources.
The corpus connection to the False Claims Act is critical. The federal False Claims Act, first enacted in 1863, is the most important surviving American descendant of the popular action tradition. Modern False Claims Act scholarship frequently traces the statute's qui tam provisions back to the popular action concept, making this term a gateway to understanding the Act's constitutional and historical foundations.
Jurisdictional divergence also matters. Several states abolished popular actions by statute during the nineteenth century on the theory that they invited abuse and encouraged litigation by strangers to the underlying wrong. Other states retained them. Researchers should not assume that the existence of a penal statute in a given jurisdiction implies a popular action right — the enabling language must be examined.
Historical Dictionary Support
The four shelf sources agree closely on the core definition. Black's (both editions) and Burrill follow Blackstone's Commentaries (3 Bl. Comm. 160) nearly verbatim, defining the popular action as one "given to any such person or persons as will sue for it." Bouvier adds the direct equation with qui tam and cites the Digest (Dig. 47.23.1), reaching back to Roman law roots through the actio popularis — the Roman device permitting any citizen to sue to vindicate a public interest.
Burrill is alone among the shelf sources in explicitly cross-referencing Actio popularis, which is useful: researchers consulting Burrill should follow that cross-reference, as it provides the civil law lineage of the concept. The Roman actio popularis was broader than the English popular action in some respects, extending to nuisances and public wrongs beyond mere statutory penalties.
What the historical dictionaries do not address is the erosion of popular actions in American practice during the nineteenth century, and the survival of the concept in the qui tam provisions of federal and state false claims statutes. None of the shelf sources were written with the modern False Claims Act landscape in view, and they should be read accordingly — as capturing a concept alive and functioning in their own era, not as guides to its current form.
Jurisdictional Note
Popular actions as a general common law device have largely been abolished or allowed to lapse in most American jurisdictions. Where the concept survives, it does so through specific enabling statutes — most prominently the federal False Claims Act and its state analogs. English law retained the form longer, though most English penal statutes that created popular actions were eventually reformed or repealed.