Before his arrival at St Helena, was Napoleon legally a prisoner of war?

Question

I would like to know whether in law Napoleon was a prisoner of war when he surrendered himself to the British after the Battle of Waterloo, did he retain that status up to the point when he was landed at St Helena and did his legal status change at St Helena because it belonged to the East India Company rather than the British government?

Napoleon surrendered himself to the HMS Bellerophon on 15 July 1815. He was transported to the southern coast of England and eventually set sail for his imprisonment at St Helena on HMS Northumberland on 7 August. He reached St Helena on 1 October.

I think two treaties are relevant. First, the Convention of St Cloud was signed on 7 July 1815. This signified the end of hostilities and allowed the British and Prussian troops to freely enter Paris. Napoleon surrendered himself after this date.

More importantly (I think), the Treaty of Paris was signed by Britain and France on 20 November 1815. Article 10 of this stated: “All Prisoners taken during the hostilities, as well as all hostages which may have been carried off or given, shall be restored in the shortest time possible.”

A search of news stories in the London Times suggests in practice the British government did not start releasing French prisoners until late December 1815: “Government gave directions in the course of last week, of the agents of the prison depots at Forton and Dartmoor (Captains MOTTLEY anti SHORTLAND) to provide vessels and send home all the French prisoners that are under their charge. Yesterday those in confinement at Forton commenced being shipped, either for Havre or Cherburgh. (The Times, 26 December 1815, p 3).

The relevance of all this is that Napoleon arrived at St Helena on 1 October, BEFORE the Treaty of Paris was signed. Since St Helena belonged to the East India Company, I suspect the island lay outside the jurisdiction of British courts AFTER the Treaty was signed. In other words, once he had been taken there, the British authorities were no longer obliged to release him according to the terms of the Treaty of Paris. It may be that that this was an important motive for sending Napoleon to St Helena, not just because it was very isolated.

Answer 1

Napoleon was never a prisoner of war, since he surrendered, as you say, after the conclusion of hostilities. If a label is necessary, he was probably a prisoner of State; but the important point was that in Rochefort he surrendered not, as in 1814, to the Allied Powers but to the British Government specifically: he dictated a letter on 13 July 1815 to George III including the lines "I come, like Themistocles, to throw myself on the hospitality of the British people. I put myself under the protection of their laws". (Since the French government had declared several of Napoleon's followers traitors and written to one of his staff "The interests of the State and the safety of his person make it absolutely necessary [for Napoleon to leave France as soon as possible]" and the Prussian and Russian governments would cheerfully have hanged him [no citation, but the behaviour of the occupying armies leaves little doubt], it is probable that this was less a grand gesture and more a necessity.)

It is clear from his correspondence that Napoleon was envisaging some sort of genteel retirement like that of his brother Lucien, who was living in a country house under the supervision of a single police inspector; but this was never realistic, and the captain of the Bellerophon wrote specifically "I have no authority to agree to any such arrangement...I cannot enter into any promise as to the reception he may meet with" [from the British Government]; Napoleon decided to surrender nevertheless.

It is interesting that Lord Liverpool (the Prime Minister) decided not merely not to imprison Bonaparte in the Tower as the newspapers were suggesting, but not to allow him to set foot in England: whether this was to avoid legal complications or to prevent a possible rescue attempt will never be known. But is is clear that after 15 July 1815 Napoleon had placed himself entirely in the power of the British Government, to be imprisoned or dealt with as they pleased.

[Quotations as in Cordingly's Billy Ruffian, since it is to hand; but the best treatment of those days is Gilbert Martineau's Napoleon Surrenders.]