Replacing the 'Sword of War' with the 'Scales of Justice': Henfield's Case and the Origins of Lawfare in the United States

9 Journal of National Security Law and Policy ___ (2018)

36 Pages Posted: 13 Jun 2018

Date Written: Feb 1, 2017

Abstract

Law plays a central role when dealing with international relations and armed conflict. The interaction between law and armed conflict has become known as "lawfare." Lawfare utilizes law to achieve military objectives. This benefits global society as conflicts can be addressed without the resort to violence. The United States has been criticized for its lack of formal lawfare strategy. This article pushes back on that notion. It examines the origins of lawfare in the United States and argues that criminal prosecution of national security matters has a long history in the United States and continues to be a viable solution to national security threats. The article makes this argument through the examination of Henfield's Case, a criminal prosecution from 1793 where the United States had to remedy an act of war committed by one of its citizens. The United States had declared neutrality in the war between France and Great Britain. Gideon Henfield, an American Revolutionary War veteran, enlisted to serve on a French privateer. The French privateer attacked a British merchant ship, capturing it. When the British protested, the Washington Administration faced a potential armed conflict. To pacify the British, the United States turned to law. Framing the problem as a legal one, it prosecuted Henfield as a criminal, constructing a legal theory for criminal liability. A jury ultimately exonerated Henfield but the prosecution itself pacified the British. Henfield's case set precedent for the use of criminal prosecutions as a form of lawfare, one that continues to the present but is often overlooked.

Keywords: Lawfare, Criminal Prosecution, Foreign Policy, Legal History, National Security

JEL Classification: K14

Suggested Citation

Ingram, Scott, Replacing the 'Sword of War' with the 'Scales of Justice': Henfield's Case and the Origins of Lawfare in the United States (Feb 1, 2017). 9 Journal of National Security Law and Policy ___ (2018) , Available at SSRN: https://ssrn.com/abstract=3189027

Scott Ingram (Contact Author)

High Point University ( email )

833 Montlieu Avenue
High Point, NC 27262
United States

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