Early “Lawfare” in 1812: Fallout from Fayal

Early “Lawfare” in 1812: Fallout from Fayal

I don’t intend to infringe on the popularity of the word lawfare made so popular by the Lawfare blog, but I do have a neat story to tell of early “lawfare”. On that note, check out the Lawfare blog post on civil liberties in the war of 1812- it’s part of an edited volume by Brookings scholar Pietro Nivola and WashU Professor of History Peter Kastor.

I somehow imagine that this story got left out of their edited volume, given the sparse number of people who have heard of the Battle of Fayal (or Faial). But, you get to read about it here!

So, the scene is the War of 1812- the US is fighting the British at the Azores Islands, which are in the middle of the nowhere, Atlantic Ocean, and belong to “neutral” Portugal. The battle of Fayal (the name of the colony there at the time) ensues and turns out to be important in the whole scheme of the War of 1812. Apparently with no Battle of Fayal, there would have been no Battle of New Orleans. Anyways, the British sink the American privateer brig-at-war Armstrong, and it remains “unknown” who actually fired first.

The war eventually ended and the survivors and past owners of the Armstrong tried to recover damages because their ship was sunk in a neutral port. At first, they held the Portuguese liable because they had a duty to not allow belligerence in a neutral port. Portugal tentatively assumed liability and tried to recover from the British, but the British declined to write a check for the Americans. The Portuguese suddenly don’t feel like paying after all.

The dispute lingers on while Portugal has various regime changes. Fast forward to 1835 and the US government officially demands that Portugal pay up. Apparently there were “protracted negotiations” and at least according to one source, President Zachary Taylor sent a fleet to a port in Portugal and threatened to enforce payment by war. But Taylor died, and at any rate, the United States Government (without the consent of the Armstrong claimants) and Portugal decide to submit to arbitration, employing none other than Louis Napoleon III, the President of France to be referee (a country with which we would soon be having our own issues after the Quasi-War with France, with the French Spoliation cases! But a story for another day).

Long story short, France rules in favor of Portugal, leaving the Armstrong claimants with no recourse.

Except, that is, to bring a novel suit against the United States in the Court of Claims arguing a violation of the 5th amendment takings clause (“nor shall private property be taken for public use, without just compensation”)! This was pre-Tucker Act, too!

In a speech that was included in the 1901 book “Great Speeches by Great Lawyers” (how I found out about the Fayal episode), attorney Charles O’Conor representing the original Armstrong claimants, gives a fantastic performance of explaining how  “no one will pretend that a right to a reimbursement is not property, or that the extinguishment of all remedy for the enforcement of such a right, is not taking away the right from him who possessed it”. Also great stuff in there about the uniqueness of these claims and how the lack of precedent makes them all the more important for the Court of Claims.

So that is the interesting story I wanted to tell: what happens when the US government negotiates away your right to sue someone else? Well you try to sue the United States! This Armstrong case persisted almost half a century and garnered national attention because these sailors were considered heroes back home.

What was the final verdict you ask? Well, it is a bit of a mystery! Here is a link to the book with the speech by O’Conor starting on page 191. This book claims that O’Conor won the case; the case being Armstrong v The United States, Dev. Ct. of Cl. 22, which I cannot actually find anywhere.

Instead what shows up in Lexis is

1858 U.S. Ct. Cl. LEXIS 77; 5 U.S. Cong. Rep. C.C. 149

in which the Armstrong plaintiffs unequivocally lose…So I will try to solve the mystery.


Posted on November 14, 2012, in Uncategorized and tagged , , , , , , , , , , . Bookmark the permalink. Leave a comment.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: