International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Spring 2013 Issue
 

Historic Moments in International Law

 

The Case of the Corsican Upstart

Stephen C. NeffBy: Stephen C. Neff, Reader in Law – Public International Law, University of Edinburgh Law School

We all know the feeling of being saddled with unwanted guests, of various descriptions. At the moment, the United States government is playing reluctant (but stern) host to some 165 people in Guantanamo Bay, on Cuba.  If it is any consolation to the American officials – and it probably is not – it may be noted that they are not the first to grapple with delicate issues as to the legal status of their visitors.  The British government faced some eerily similar dilemmas in 1815, in the wake of the Battle of Waterloo.  Its problem was smaller in quantitative terms, as it had only one awkward guest on its hands.  But he was quite a famous one:  Napoleon Bonaparte, native of Corsica and erstwhile bearer of the grand title of Emperor of France (no paltry king, he).

Britain’s custody of the ex-Emperor was to a large extent involuntary.  Bonaparte, huddling in the French port of Rochefort after his defeat at Waterloo, slipped off to sea and surrendered himself to a British fleet that was hovering offshore.  The admiral of the fleet then sailed with his newly acquired cargo to the south coast of England.  From that point, the legal advisers of the British government became very busy.  The principal issue was to determine the legal status – and, by extension, the consequent fate – of their renowned, and unwelcome, guest.  To this vital question, an instructive variety of answers were put forward.

The preferred course of the British government was to treat Bonaparte as an insurgent against the legitimate (i.e., Bourbon) government of France  -- i.e., as an accused criminal under French domestic law.  This proposed solution received the approval of the government’s legal advisers.  As the British prime minister Lord Liverpool candidly put it, in somewhat non-legalistic terms, “we wish the King of France would hang or shoot Bonaparte as the best termination of the business.”  Unfortunately, “the business” was not to be so easily disposed of.  The restored Bourbon monarchical government, only just installed in power, feared the disorder that might be caused by such an action on its part.  As a consequence, it staunchly refused to take custody of the former “emperor.”

The obvious alternative solution was to regard Bonaparte as a prisoner of war.  This, however, would have a very undesirable consequence:  that, as such, he would be entitled to be released at the conclusion of the hostilities.  A way around this was suggested by Lord Ellenborough (Chief Justice of the King’s Bench).  When a formal peace treaty was concluded with France, Bonaparte should be explicitly excluded from its terms.  He would then continue to be detainable as a prisoner of war, i.e., Britain would remain at war with him, though now at peace with the rest of France.  Opposing this solution was the redoubtable admiralty judge William Scott (the future Lord Stowell), who was well versed in international law.  Scott insisted that a peace arrangement must, by its nature, bring peace with all of the nationals of the erstwhile enemy state.

For political reasons, however, it was widely agreed within the British government that this dangerous adventurer could not simply be released.  But on what basis could he be held? The ensuing debates on this question provide, if nothing else, a fine show of legal creativity at work.  

One proposal was to regard Bonaparte as a prisoner of war whose home state would not allow his return.  Britain could then continue holding him in custody as, in effect, an illegal immigrant.  This option had some drawbacks, though.  It might be contended – as it certainly would be today – that states are legally obligated to permit their own nationals to enter their territory.  There was also the problem that a future French government would relent and permit Bonaparte’s return – in which case Britain would then, awkwardly, be compelled to accede to the request.  It may be noted, incidentally, that Bonaparte’s own thinking ran broadly along these lines.  He never accepted the thesis that he was a prisoner of war.  Instead, he saw himself as an asylum seeker, having (as noted above) voluntarily placed himself into the merciful hands of the British.

  

Lord Eldon (the Lord Chancellor) offered an alternative suggestion, which was a twist on that of Lord Ellenborough.  He proposed that the “Napoleonic” wars, as they are so often called, should be regarded as truly that, in the strict legal sense.  That is, that the conflict in which Britain had been engaged since 1803 should be regarded, in law, as a war not against the state of France as such, but against Bonaparte as an obstreperous individual (together with his many supporters).  Bonaparte would therefore now be a prisoner of war – and, as such, entitled to release when peace was concluded.  But, suggested Lord Eldon, the British government could simply dig in its heels and refuse to conclude a peace treaty with its foe.  By keeping the state of war permanently in force, the permanent detention of the enemy (truly, the enemy!) would flow as an automatic consequence.

The fertile legal mind of Lord Eldon also devised yet another legal argument.  This involved, in effect, invoking the principle of necessity.  On this thesis, the permanent detention of Bonaparte was necessary for the maintenance of the peace and security of Europe as a whole.  By “necessary” is meant that no means less drastic than permanent imprisonment would suffice to alleviate the threat posed to world peace by this desperado.  The attractiveness of this argument was that there would be no need to classify the eminent detainee as a prisoner of war, nor any need to accuse him of any specific misdeed.  It would suffice to characterize him as a standing threat to world public order.  Support for this contention could be found in a declaration issued by the Allied powers in March 1815, just after Bonaparte’s departure from Elba and landing in France.  It stated that, by violating the Treaty of Fontainebleau, which provided for his confinement to Elba, Bonaparte “has deprived himself of protection of the law.”  It went on to state that, “as an enemy and disturber of the tranquillity of the world, he has rendered himself liable to public vengeance.”

In the event, the British government decided on permanent exile to St Helena – a decision ratified by the other allied powers in an agreement of August 2, 1815.  But the government’s doubts about the lawfulness of this course of action were so great that it decided to quell them by way of an act of Parliament.  The legislation, adopted in 1816 (some months after Bonaparte’s dispatch to St Helena), pronounced it to be “necessary for the Preservation of the Tranquility of Europe, and for the general Safety” that Bonaparte be interned for life.  But it also stated that he should be deemed to be a prisoner of war and treated as such – except as otherwise directed by the government.

This was still not the end of the matter.  The question of the Corsican’s fate was reconsidered by the major powers in 1818 at the Congress of Aix-la-Chapelle.  In the general spirit of the March 1815 declaration, it stated that, as a result of his own actions (unspecified), Bonaparte had deprived himself all rights – with the significant exception of “those which humanity requires in his favour.”  The British delegation had pressed for the inclusion of that proviso.

For those who wish to explore this fascinating legal conundrum in further detail, primary-source materials may be found in an article by H. Hale Bellot in the Law Quarterly Review of 1923 (“The Detention of Napoleon Buonaparte,” 39 L.Q.R. 170-92).  There is also an interesting discussion of Lord Eldon’s position in a 1951 article in the American Journal of International Law, by John Hall Stewart (“The Imprisonment of Napoleon: A Legal Opinion by Lord Eldon,” 45 A.J.I.L. 571-77).

Sharp-eyed readers of this column will have little trouble finding parallels with the present dilemmas of the American government in all of this.  The British were more fortunate in that their hosting of Bonaparte proved to be of limited duration.  Their famous charge died in 1821, on St Helena.  America’s dilemma has already been longer lasting.

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