The incidents of the war itself do not belong to a work such as this; but, tantalizing as it must be to an historian of any class to pass over the brilliant series of achievements which gave Britain the glory of being twice[175] the principal agent in the deliverance of Continental Europe, the glories of Salamanca, Victoria, Orthes, and Waterloo must be left to other writers, who, it is not unpatriotic to hope, may never again have similar cause for exulting descriptions. But out of the crowning triumph of Waterloo a difficulty arose which, though it may be difficult to characterize the principle on which it was settled, since it was not strictly a question of constitutional, international, or military law; and though the circumstances were so peculiar that the conclusion adopted is never likely to be referred to as a precedent, seems still deserving of a brief mention, especially as an act of Parliament was passed to sanction the decision of the cabinet. Baffled by the vigilance of our cruisers in every attempt to escape from one of the western ports of France to America, Napoleon was at last compelled to surrender himself to a British squadron. But, though he was our prisoner, the Prime-minister considered us, in all our dealings with him, as so bound by engagements to our allies, that he was to be regarded as "the common prisoner of all, so far that we should not give him up or release him without the joint consent of all." The question was full of difficulty. There were, probably, very few persons in this or any other country who did not coincide in the impropriety of releasing him, and so putting it in his power once more to rekindle a war in Europe. But it was a political view of the case, founded on a consideration of what was required by the tranquillity of Europe; and it was not easy to lay down any legal ground to justify the determination. Some regarded him as a French subject, and, if that view were correct, he could hardly be detained by us as a prisoner of war after we had concluded a treaty of peace with France. But, again, it seemed to some, the Lord Chancellor being among them, a questionable point whether in the last campaign we had been at war with France; whether, on the contrary, we had not assumed the character of an ally of France against him. And, on the supposition that we had been at war with France, a second question was raised by Lord Ellenborough, the Chief-justice, "what rights result on principle from a state of war, as against all the individuals of the belligerent nations-rights, whatever they may be, seldom, if ever, enforced against individuals, because individuals hardly ever make war but as part of an aggregate nation." The question-as, after consultation with Lord Ellenborough and his own brother, Sir William Scott, it finally appeared to Lord Eldon, on whom the Prime-minister naturally depended, as his chief legal counsellor, though in its political aspect he judged for himself-was, firstly, "whether it could possibly be inconsistent with justice or the law of nations that, till some peace were made by treaty with some person considered as Napoleon's sovereign, or till some peace were made with himself, we should keep him imprisoned in some part of our King's dominions." And, secondly, "whether there were any person who could possibly be considered his sovereign, after the treaty of 1814 had clothed him with the character of Emperor of Elba, with imperial dignity and imperial revenue." Lord Liverpool himself, however, raised another question: whether, by his invasion of France, he had not forfeited his right to be regarded as an independent sovereign; resting this doubt on a suggestion which, among others, he proposed to the Lord Chancellor, that "at Elba he enjoyed only a limited and conditional sovereignty, which ceased when the condition on which he held it was violated."
This last suggestion, it must be confessed, appears untenable, as totally inconsistent with the language of the Treaty of Fontainebleau, under the provisions of which Napoleon became sovereign of Elba, and which does not contain a single article which bears out the opinion that his sovereignty was limited or conditional. On the contrary, the words of the treaty expressly agree that "Elba should form during his life a separate principality, which should be possessed by him in full sovereignty and property."
There is no need to discuss the views of Blucher. On the news of Napoleon's landing at Frejus reaching the plenipotentiaries assembled at the Congress of Vienna, they at once issued a declaration that, "in breaking the convention which had established him at Elba, Buonaparte" (for they refused him his imperial appellation of Napoleon) "had destroyed the only legal title on which his existence depended.... He had placed himself out of the pale of civil and social relations, and, as the enemy and disturber of the peace of the world, he was delivered over to public justice." And the old Prussian, burning with a desire to avenge the indignities and injuries which he had inflicted on Prussia, avowed his determination to execute him as an outlaw, if he should fall into his hands. And it is still less worthwhile to inquire-though Lord Holland in his place in Parliament did desire the House to consult the judges on the point-whether, if Napoleon were a prisoner of war, he "were not entitled to his habeas corpus, if detained after the signature of a treaty of peace with all the powers, or any of which he could be considered as the subject."
On the whole, the simplest view of the position and of our detention of him, the view most reconcilable with the principles which regulate the waging and the relinquishing a state of war, seems to be to consider that Napoleon was a sovereign with whom we were at war; that that war could only be terminated by a treaty of peace between ourselves and him; that it rested with us to conclude, or to abstain from concluding, any such treaty; and that, till we should conclude it, we had clearly a right to detain him as a prisoner of war. It must, at the same time, be admitted that modern history afforded no precedent for the detention of a prisoner for his whole life (unless, indeed, Elizabeth's imprisonment of the Queen of Scots may be considered as one), and that the most solid justification for it was necessity. To quote the language of Lord Eldon, "I believe it will turn out that, if you can't make this a casus exceptionis or omissus in the law of nations, founded upon necessity, you will not really know what to say upon it. Salus Reipublicae suprema lex, as to one state; Salus omnium Rerumpublicarum must be the suprema lex as to this case."[176]
In the course of the year 1818 a somewhat singular question as to the position of the Regent was raised by a claim advanced by Colonel Berkeley to produce his Royal Highness as a witness in a court of law. The Prince consulted the Prime-minister, and the Prime-minister referred it to the Attorney and Solicitor General, not concealing his own impression that it could not be consistent with his constitutional position and prerogative for the King to appear as a witness to be subjected to examination and cross-examination.[177] They, in their statement of opinion, assumed it to be an undeniable principle of the constitution that the sovereign, "by reason of his royal character, could not give testimony." And therefore they had no doubt that the Regent, exercising his authority, was equally prevented from so doing. Colonel Berkeley's counsel had urged that, even if he could not appear in open court and be sworn, he had the privilege of communicating his evidence in a peculiar mode, by certificate under the Sign Manual or Great Seal. But the Attorney and Solicitor General professed that they could not discover whence this last privilege was derived; they urged, as an insurmountable objection to such a contrivance, that "all instruments under the Sign Manual or Great Seal must, in point of form, be in the name of and on behalf of the King, which would manifestly be incongruous when the evidence certified was not that of the King, but of the Regent himself." And they quoted a case in which Lord Chief-justice Willes had said "that the certificate of the King, under his Sign Manual, of a fact (except in an old case in Chancery) had always been refused." As it had been urged also, on Colonel Berkeley's behalf, that the Prince had formerly "joined in proving the will of the Duke of Brunswick," his brother-in-law, they farther expressed an opinion that "he ought not to have done so, but should have left it to the other executors."