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]