When Napoleon surrendered himself to a British naval captain after his defeat at Waterloo, the victors were faced with a judicial headache. Norman MacKenzie asks: was St Helena Britain’s Guantanamo Bay?
On July 15th, 1815, after being defeated at Waterloo and deposed in Paris, the former Emperor Napoleon Bonaparte presented himself to Captain Frederick Maitland, commander of HMS Bellerophon, which was blockading the exit from Rochefort on the French Atlantic coast. This peaceful surrender precipitated one of the most complex and unresolved issues in British law and politics. In modern parlance, the British were faced with the prospect of making Napoleon the subject of ‘extraordinary rendition’ – the extrajudicial transfer of a person from one state to another that recently characterised President George W. Bush’s war on terror. The problem was that sympathy for Napoleon in Britain – boatloads of far from hostile sightseers hailed him as he walked onBellerophon’s deck in Plymouth Sound – meant that it would be risky to deal with him legally in the courts and just as risky to defy public opinion and treat him summarily and probably unlawfully.
Napoleon had certainly been ‘seized and detained’, in the words of the standing order to all British naval captains. But in what capacity was he held? Was he a prisoner of war? He had certainly led French armies against Russia, Prussia, Austria and Britain, but he had no formal status. He might simply be regarded as an ‘outlaw’, as he had been denounced by the Congress of Vienna after he escaped from exile in the island of Elba in February 1815, thus violating the Treaty of Fontainbleau which had placed him there. As he had been previously recognised by his enemies as Emperor of France, could he be said to have become a fugitive rebel against his own regime? Perhaps, as one legal precedent suggested, he could be regarded simply as a ‘vagabond’ and taken up for disturbance of the peace with no rights to legal trial or appeal anywhere in Europe.
There were, in any case, significant differences between the Allies who had defeated Napoleon. The Prussians wanted to catch him and execute him. The Austrians were embarrassed by the fact that he was the son-in-law of the Emperor Francis I; and the Russian Tsar Alexander I – who had secured lenient treatment for him the year before – was preoccupied with his entanglement with a spiritualist guru. There were French royalists who were hot for summary revenge, but the newly restored Louis XVIII did not feel secure enough to have charge of his disruptive opponent, while the British conceded that Louis was too weak to keep him safe and preserve the tranquility of Europe.Whether they liked it or not, the British government was saddled with the long-term responsibility of guarding him. Having got hold of him, he had somehow to be disposed of, if only because they could claim that they were acting as agents for all his enemies.
The situation was further complicated by two misconceptions. Napoleon was content to regard himself as a prisoner of war, who by the rules of war must be released when the war ended, even if in this peculiar military resurrection a war had never formally begun. There had been no occasion for a formal declaration of war – the Allies meeting at the Congress of Vienna considered that their warlike rally against Napoleon was, in effect, the continuation of the campaign which had ended with his dethronement a year before. It was a kind of riddle. If Napoleon was not recognised as a head of state, how could war be formally declared against him? Moreover, it could not be a war against France, since Louis XVIII was recognised as the legitimate ruler of France and his Bourbon government in exile was part of the alliance against Napoleon. Nevertheless, the British government was caught by its conviction that he was a prisoner of war and that it was under no obligation to release him.
Napoleon’s misconception was his belief that if he once set foot on a British ship he not only secured ‘the protection of the law of Britain’ but could take advantage of a supposed ‘law of hospitality’ under which he believed the British gave asylum to fugitive rebels; and he also believed that – in what he called ‘the solidarity of sovereigns’ – the Prince Regent would offer him asylum to spend a retired life on some English estate. He specifically asked the prince, in a letter that was never delivered, for a country house ‘about ten or twelve leagues from London – a big enough house to accommodate all my suite’.
These assumptions were reinforced by the fact that Captain Maitland was hundreds of sea miles away from the Admiralty and had no guidance about the way he should receive his eminent prisoner. In the event, Maitland behaved with a cautious dignity, which both the Admiralty and Napoleon felt raised false hopes about Boney’s reception in England.
While the British Prime Minister Lord Liverpool and his Foreign Minister Lord Castlereagh had earlier discussed what might be done if Napoleon were defeated, they had assumed he would be taken on the battlefield or on board a ship in flight to America or Mexico. It had never occurred to them that he might simply give himself up without trying to negotiate terms. Once they heard he was on HMS Bellerophon and on the way to England they fell back on the formula that he was a prisoner of war.
The unforeseen circumstances, which had landed the government with the problem of what we now designate as ‘extraordinary rendition’, meant that it immediately looked for support to Lord Chancellor Eldon, a member of the Cabinet and head of the judiciary.Rendition is a somewhat ambiguous word in French but its general meaning is some form of surrender. The addition of ‘extraordinary’ is modern and more ominous in its implications of force majeure and dubious treatment – as currently perceived by the inmates of Guantanamo Bay. Rendition is an act of doubtful legality committed outside what were then called the Laws of Nations, which would today be seen as a violation of the Geneva Convention. It is also an act outside the standing law and practice of the state which is denying rights that it generally professes; and it is a course of action which excludes any legal redress by due process and by its nature raises moral and practical difficulties for any state attempting it.
Such were the complex and urgent problems confronting the Liverpool government and its law officers the moment they heard that Maitland was bringing Napoleon back to Plymouth. They were determined to prevent Napoleon’s numerous sympathisers from getting him ashore and laying his case before an English court. It is difficult to imagine that, after the Terror and after the long war that had just ended at Waterloo, there was any sympathy for Napoleon. In fact, the Whig opposition, led by Lord Holland, had been a ‘peace party’ for years and – in a country which was barely democratic – there was still a vociferous radical ferment expressed in newspapers and demonstrations that broke through the repressive measures of the Tory government. Such feelings ran strongly enough to make the government panicky at the prospect of Napoleon, or even his supporters, turning up in an English court or rousing the country. The obvious solution was simply to hold him captive and take him off to end his days on an inaccessible island. That might be impracticable, or unlawful, and there might even be later attempts to bring him back from St Helena.Would these be lawful or unlawful? To put it simply, was necessity the excuse for unlawful acts? As Cicero put it: In war the laws are silent.
The law officers certainly shared the government’s desire to have done with Napoleon for good; and were equally worried about the strength of radical and Bonapartist opinion in the country. Having taken advice from his law officers, Lord Liverpool found his difficulty compounded by the fact that they could not agree among themselves about what should be done. The law must be an essential safeguard against social disruption, but the law was also the law and so Eldon, Chief Justice Ellenborough, the Master of the Rolls, the Attorney-General and the Solicitor-General all scratched about for any precedent for the government to do lawfully what it intended to do anyway.
Lord Eldon was baffled to the point of incoherence in his letter of advice to the prime minister, which reflected the uncertainties of the lawyers, but he left the issue for the prime minister to decide for himself. Twenty-five years later, another Lord Chancellor, Lord Campbell, reviewed the arguments from 1815 and sympathised with the difficulties his judicial predecessors had faced. He ultimately came down on Lord Eldon’s side, still doubtful on the legal case but invoking what Eldon had called ‘the law of self-preservation’, which permitted the government as an act of state to hold Napoleon on St Helena indefinitely.
This still fell short on the question of lawfulness, which so concerned Eldon that he felt unable as Lord Chancellor to affix the Great Seal to the Convention of September 1815 which the Allies drew up to formalise their attitude to Bonaparte and his family. Eldon persuaded the British government to protect itself by a complicated Act of Indemnity – which gave cover against possibly unlawful actions to its officials in the future and declared that attempts to rescue Napoleon would be treated as treason. It also prevented residents on St Helena (not a British possession but a property leased from the East India Company) from bringing actions under British law in British courts. This ruling specifically applied to Napoleon, his retinue, and even his dependents. The need for this concern about legal actions by Napoleon or initiated on his behalf had been underlined by the huge crowds at Plymouth.
The need for guard ships to control the crowds was emphasised by an attempt by a lawyer named Alexander Mackenrot to use one of the complicated provisions of thehabeas corpus acts to get Napoleon off Bellerophon and into the courts: a writ was issued summoning him to appear in November as a witness in a libel case. This ingenious scheme almost succeeded. The lawyer carrying the writ reached Plymouth and sought to serve the writ on the local admiral, Lord Keith, chasing him comically from one vessel to the next and just failing to catch him. ‘We are in great trouble down here,’ Keith wrote to a relative. To prevent even greater trouble, Keith desperately took Bellerophonand her escorts to sea and kept tacking to and fro off Berry Head until HMSNorthumberland – which was to take Napoleon to St Helena – arrived and the prisoner could safely be transferred for the long voyage.
In the end the government had taken drastic action to avoid the moral and legal problems of extraordinary rendition but it had not faced the general problem of prisoners’ rights, which was to persist in such situations and still does today. The right of a prisoner to appearance in the courts or Parliament is still relevant, as well as the humanitarian question of protecting such prisoners from cruel conditions or unusual punishment. In this respect Napoleon’s case set the scene for contemporary issues of rendition. As Lord Campbell conceded in 1840, it was the humiliating conditions in which Napoleon was kept which were, at that time, remembered more than his legal complaints. It was Napoleon’s form of counter-attack to the way he was treated – notably at the hands of Governor Lowe on St Helena, but also by Lowe’s masters in Whitehall – which has become the legend of Napoleon’s heroism in adversity. Campbell also declared that the government’s regime on St Helena was conducted ‘in a cruel spirit’ and it was an ‘impeachment of British justice and generosity’.
That judgement too has its resonance today. Rendition may be necessary, it may even be unavoidably unlawful, but it should never stifle the human outcry of its victims.