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 subpœna; 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 subpœna 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 subpœna, 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."[Back to Main Text]
Footnote 11: [I do entreat and conjure that the natural and sailor-like speech of Lord Keith be not tampered with. It is really a sin to knock the spirit out of a work by such over-delicacy.—Scott.][Back to Main Text]
Footnote 12: Since this narrative was written in the year 1815, it has been proved by Buonaparte's will, that either his attendants were misinformed, or that they, as well as himself, misrepresented the state of his finances, as he left in the hands of Lafitte, the banker, in Paris, a sum of money amounting to nearly four hundred thousand pounds sterling, besides a very considerable sum said to be vested in the American funds.[Back to Main Text]
Footnote 13: [I think the handsome and gentlemanlike account of Madame Bertrand is a complete amende honorable for anything said of her in the course of the journal, and forms a complete refutation to the objections made in the sense of delicacy towards that lady for mentioning some part of the conversation when in warmer moments. If you were to mention your having afterwards met her in France, I think it would be interesting.—Scott.][Back to Main Text]
Footnote 14: [Lallemand, if I recollect right, had begun the counter-revolution in Bonaparte's favour in the north-east of France, and anticipated the moment of success, so that his scheme had failed. I have some reason to think (being at Paris at the time and much with those who knew something of what was going on) that he would have been condemned to death along with Ney had he fallen into the hands of the restored Government. His person should be described.—Scott.][Back to Main Text]
Footnote 15: "Our new first lieutenant, Mr Andrew Mott, was the best officer I ever saw in charge of a quarter-deck. I often wondered when that man slept, eat, or dressed himself, for he was hardly ever missed from deck, was always fresh and vigorous, and his dress and appearance would, at any time, have done honour to the queen's drawing-room. Maitland was, withal, rather a little easy-going, and it occurred to me that, knowing his defect in this way, he contrived always to get a tolerable tartar of a first lieutenant, so that between the captain's good nature and the lieutenant's severity, which he occasionally checked and tempered when he thought the lieutenant was likely to exceed bounds, the ship was kept in capital discipline."—Home's Memoirs, p. 209.[Back to Main Text]