On the 31st July 1815, Napoleon received the decision of the British government to send him to St Helena. His indignation as to the illegality of this decision, (as expressed in his letter to the Prince Regent written on the 4th August) was also shared by certain British liberals, indeed the issue was much discussed in the British press at the time and later.
Capel Lofft, a liberal English lawyer and admirer of Napoleon, argued in a letter to the Morning Chronicle (31 July and 10 August, 1815) that it was the “Writ of Habeas Corpus [that was] the legal mode of investigating…”.
The writ was not forthcoming, despite its having been much debated as to whether Napoleon fell under this jurisdiction – was he (or was he not) on British soil while on board Bellerophon?
In extremis, a serious attempt was made to bring Napoleon to shore as part of a bizarre unrelated legal case in which a Mr McKenrot, accused of libel, had called the Emperor of the French as a witness. In the last few days before Napoleon was transferred from Bellerophon to Northumberland (the ship which would transport him to St Helena), McKenrot, encouraged by Capel Lofft, relentlessly pursued Admiral Lord Keith, officially Napoleon's guardian while on board Bellerophon, in order to hand him the writ issued by the court of the King's Bench to subpoena Napoleon Bonaparte as a witness for the trial due to take place in November thereby delaying the prescribed transportation and in so doing strengthening the argument that Napoleon be judged under habeas corpus. After leaving a copy of the writ on 4th August at Lord Keith's residence, from which the master was absent (having got wind of the plan), McKenrot pursued the Admiral by boat as far as the Tonnant, (by which time the Admiral had transferred to another vessel).
This incident is related in Captain Maitland's account of “the Surrender of Napoleon“:
Between seven and eight o'clock, I waited on Lord Keith, who said he had received information that a habeas corpus had been taken out for the purpose of bringing Buonaparte on shore, and that a lawyer was on his way down to serve it; desiring me, therefore, to be ready to put to sea whenever the signal might be made.
On returning on board, I had an interview with Buonaparte, who was very urgent to know why the ship was preparing for sea. I told him, by Lord Keith's directions, that it was the intention of our Government, his removal should take place at sea; and that we were going out to meet the Northumberland, the ship which was to convey him to St Helena.
He begged I would write to Lord Keith, and say he wished very much to see him; and Count Bertrand told me he was also desirous of having the newspapers. I accordingly wrote to his Lordship, who was then on board the Tonnant: who, however, declined visiting him, but sent me a note, of which the following is an extract:
Extract of a Note from Admiral Viscount Keith, addressed to Captain Maitland, of H.M.S. Bellerophon, dated Tonnant, 4th August.
“I send you the paper, and shall be glad to hear the determination of the General, whom you may inform that the answer is arrived from London, and that I have no authority to alter, in any degree, any part of the former communication; which induces me to wish the selection of the persons he is inclined should attend him.”
I communicated the contents to General Bertrand, who made his report to Buonaparte. On his coming out of the cabin, I pressed him on the subject of nominating those that were to go with him to St Helena; but the only answer he returned was, “L'Empereur n'ira pas à St Hélène;”—the Emperor will not go to St Helena.
Soon after nine o'clock, the Bellerophon's signal was made to prepare to weigh, and at half-past nine we immediately started. As the light air of wind that blew was right into the Sound, and the flood-tide against us, the guard-boats were sent ahead to tow; but, soon observing a suspicious-looking person in a boat approaching the ship, I ordered one of them to cast off, keep under the ship's stern, and not allow any shore boat, under any pretext, to come near us. The person alluded to proved afterwards to have been the lawyer mentioned by Lord Keith; not with a Habeas Corpus, but a subpoena for Buonaparte to attend a trial at the Court of King's Bench as a witness. He was, however, foiled: as Lord Keith avoided him, and got on board the Prometheus, off the Ramehead, where he remained until joined by the Tonnant; while the guard-boat prevented him from approaching near enough to the Bellerophon, to serve his writ on me.[footnote 10]
While the ship was working out of the Sound, two well-dressed women in a boat kept as close to her as the guard-boat would allow, and, whenever Buonaparte appeared at the stern windows, stood up and waved their handkerchiefs.
On joining the Prometheus off the Ramehead, where Lord Keith's flag was then flying, I received the following note from his Lordship:
No date; received August 4th, in the Afternoon.
“I have been chased all day by a lawyer with a Habeas Corpus: he is landed at Cawsand, and may come off in a sailing-boat during the night; of course, keep all sorts of boats off, as I will do the like in whatever ship I may be in.
KEITH.”
Footnote 10: [The business of the Habeas Corpus is so whimsical that Capt. M. should get some legal friend to give a brief idea of the nature of the process and the purpose for which it was resorted to. The book will certainly be instantly translated into French, and such an explanation as I have hinted at will be extremely necessary. It should be thrown into a note; a few words should be added on the absurdity of the attempt. It will be otherwise thought and said that Bonaparte was kidnapped out of England contrary to the English laws. The real nature of the transaction should be distinctly explained.—SCOTT. The following note accordingly appears in the original edition:—]
To prevent erroneous impressions from going abroad, and to put this curious circumstance in its true light, I have prevailed on a friend, who was educated for the English bar, to favour me with the following account of the writs of the Habeas Corpus and subpoena; by which it will appear that no such process, or any other, as far as I can understand, could have had the effect of removing Buonaparte from one of His Majesty's ships, and causing him to be landed in England in opposition to the commands of the Government of the country.
“It is a common mistake to suppose that the celebrated Habeas Corpus Act made it a matter of right, for every person, under any restraint whatever to obtain this writ. That statute related to persons committed by legal process for criminal offences, and the object of it was to prevent them being detained an unnecessary or unreasonable length of time, without being brought to trial. Other cases of alleged illegal detention were left as at common law: in these the granting or refusal of the writ is discretionary in the Court, or Judge applied to, and it will only be issued on a proper case being laid before them. No such writ, it is believed, was ever applied for in Buonaparte's case; nor, if applied for, would it have been obtained. Where a foreigner, in private life, is brought to England, and detained against his will, the Court will grant the writ; but any application of Buonaparte, or on his behalf, must have shown him to have surrendered, and to have been then detained as a prisoner of war. Under that character, he was not entitled to the benefit of this writ; the Courts having refused it on the application of individuals brought to England as prisoners of war, even when applied for by the subject of a neutral power, who swore to his having been compelled by force to serve the enemy, and to have been captured in the course of that compulsory service.
“The real transaction alluded to, is understood to have been this: an individual being under prosecution for a libel on a naval officer, censuring his conduct on the West India station, when a French squadron was in those seas, pretended that it would aid his defence to show that the French ships were at that time in an unserviceable condition, and that Buonaparte would be able to prove the fact. He accordingly obtained a subpoena for him to attend as a witness on the trial in the Court of King's Bench, and endeavoured himself, and not by a lawyer, as at first supposed, to get on board the Bellerophon to deliver it.
“This transaction probably gave currency to the rumours of a Habeas Corpus having been issued, particularly as one description of that writ is, the proceeding for bringing a prisoner into Court to give evidence, which having given, he is remanded to gaol.
“Had the individual in question succeeded in his attempt to get on board the ship, and deliver the subpoena, it would have been of no assistance either to himself or Buonaparte, if it was at all intended to benefit the latter, as it would not have been possible for him to obey it, there not being any authority for Captain Maitland, who was answerable for his safety as a prisoner, allowing him to do so. It was, however, considered the most prudent course, by Lord Keith, not to permit the delivery of the process, the exact nature of which was at the moment unknown, lest it might involve himself or Captain Maitland in any difficulty, by an apparent disrespect to the Court, and more particularly as it might create erroneous impressions in Buonaparte's mind, that a breach of the law was committed in his not being permitted to comply with the terms of the document, not aware that it contained no power authorising his release from detention as a prisoner of war.”