Some regarded him as a French subject, and, if that view were correct,
he could hardly be detained by us as a prisoner of war after we had
concluded a treaty of peace with France. But, again, it seemed to some,
the Lord Chancellor being among them, a questionable point whether in
the last campaign we had been at war with France; whether, on the
contrary, we had not assumed the character of an ally of France against
him. And, on the supposition that we had been at war with France, a
second question was raised by Lord Ellenborough, the Chief-justice,
"what rights result on principle from a state of war, as against all the
individuals of the belligerent nations--rights, whatever they may be,
seldom, if ever, enforced against individuals, because individuals
hardly ever make war but as part of an aggregate nation." The
question--as, after consultation with Lord Ellenborough and his own
brother, Sir William Scott, it finally appeared to Lord Eldon, on whom
the Prime-minister naturally depended, as his chief legal counsellor,
though in its political aspect he judged for himself--was, firstly,
"whether it could possibly be inconsistent with justice or the law of
nations that, till some peace were made by treaty with some person
considered as Napoleon's sovereign, or till some peace were made with
himself, we should keep him imprisoned in some part of our King's
dominions.
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