¹ An escapade that has become known as ‘The 100 Days’.

² These events can be found in any of the plethora of books outlining Napoleon’s life. For an account of the military dimension see D. Chandler, The Campaigns of Napoleon (1973). Containing both the military aspects as well as the political, see M. Price, Napoleon: The End of Glory (2016).

³ The use of the term ‘allies’ for the victorious powers is somewhat misleading. Napoleon’s army also made extensive use of alliances and non-French soldiers.

⁴ That international legal discourse has been organized around an indeterminate binary is a well-established one within the literature. See D. Kennedy, International Legal Structures (1987); M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006). In contrast to the binary presented by Koskenniemi, I am not suggesting that the dialectic in response to Napoleon moved between utopian and apologetic styled arguments. The fundamental axis is one concerning the location of sovereignty, between the primacy of the national and international.

⁵ M. Belissa, Repenser L’Ordre Européen (1795-1802): De La Société Des Rois Aux Droits Des Nations (2006).

⁶ H. M. Scott, The Birth of a Great Power System, 1740-1815 (2013), 1–7. The Great Power system was not a replacement of the balance-of-power concept typically associated with Europe but its refinement. E. V. Gulick, Europe’s Classical Balance of Power: A Case History of the Theory and Practice of One of the Great Concepts of European Statecraft (1955).

⁷ For a recent analysis of the Congress of Vienna and the construction of this order see G. Sluga, The Invention of International Order: Remaking Europe after Napoleon (2021).

⁸ G. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004).

⁹ Ibid., at 6.

¹⁰ Ibid., at 249.

¹¹ The importance of the Congress is captured in many periodizations of international law. See H. Duchhardt, ‘From the Peace of Westphalia to the Congress of Vienna’, in B. Fassbender and A. Peters (eds.), The Oxford Handbook of the History of International Law (2012), 628; W. Grewe, The Epochs of International Law (2000).

¹² For work in this vein see A. Anghie, Imperialism, Sovereignty, and the Making of International Law (2005); P. Chatterjee, The Black Hole of Empire: History of a Global Practice of Power (2009); D. Otto, ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’, (1996) 5 Social and Legal Studies 337; R. Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (2019), 6. Critical approaches, however, are not limited to the study of empire and colonialism. See H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (2000), 1; D. Buss, ‘Performing Legal Order: Some Feminist Thoughts on International Criminal Law’, (2011) 11 International Criminal Law Review 409; F. N. Aolain, D. Haynes and N. Cahn, On the Frontlines: Gender, War and the Post Conflict Process (2011); M. Krook and F. MacKay (eds.), Gender, Politics and Institutions: Towards a Feminist Institutionalism (2011); D. Otto, ‘“Taking a Break” from “Normal”: Thinking Queer in the Context of International Law’, (2007) 101 Proceedings of the 115 ^th ASIL Annual Meeting 119.

¹³ P. Strathern, Napoleon in Egypt (2008).

¹⁴ The Haitian Revolution is receiving increasing academic attention. See A. Ferrer, Freedom’s Mirror: Cuba and Haiti in the Age of Revolution (2014); L. Dubois, Avengers of the New World: The Story of the Haitian Revolution (2005).

¹⁵ See Duchhardt, supra note 11, and A. Cassese, The Human Dimension of International Law: Selected Papers (2008), 90. In his expansive history of the law of nations, Koskenniemi has done important work on exploring the international legal imagination of Napoleonic figures, such as Hauterive and Reyneval; however, he makes little reference to the legalities of removing of Napoleon. See M. Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300-1870 (2021). In the French literature, Thierry Lentz has accomplished important work on Napoleon’s own practice and understanding of the Law of Nations. See T. Lentz, ‘Napoléon et le droit des gens’, in T. Lentz and Y. Bruley (eds.), Diplomates au Temps de Napoléon (2014), 225.

¹⁶ 1701–1714. Fought over who would inherit the throne of Spain following the death of the childless Charles II.

¹⁷ 1740–1748. Following the death of Emperor Charles VI, his only heir was his daughter Maria Theresa. There were disputes as to whether Maria could inherit her father’s possessions, giving foreign powers the excuse to intervene. Principal amongst these was Frederick II of Prussia, who attacked and occupied Silesia.

¹⁸ 1756–1763. The Seven Years War is really two wars: one fought in the colonies between the UK and France, and the other taking place in central Europe as Empress Maria formed a coalition to take back Silesia and humble Prussia.

¹⁹ The east had its own system and the central antagonism with was the Ottoman Empire. See Scott, supra note 6, at 36.

²⁰ Ibid., at 6, 35, 117–21, 143–4.

²¹ Ibid., at 6.

²² Ibid., at 157–69, 201–13.

²³ H. Spruyt, The Sovereign State and its Competitors: An Analysis of Systems Change (2020).

²⁴ J. Bodin, ‘Six Lives of the Republic’, in J. Franklin (ed., translator), On Sovereignty: Four Chapters From the Six Books of The Commonwealth (1992). The absolutist understanding of sovereignty is the traditional reading of Bodin: J. Franklin, Jean Bodin and the Rise of Absolutist Theory (1973). That being said, it is somewhat inaccurate to say that Bodin’s sovereignty is unfettered. The sovereign must still respect natural and divine law. However, it is not for a subject to resist a sovereign if they break that law (see Bodin, supra note 24, at 119–20).

²⁵ T. Hobbes, Leviathan (N. Malcolm (ed.), 2012), 132.

²⁶ J. Locke, Second Treatise of Government (M. Goldie (ed.), 2016).

²⁷ J. J. Rousseau, The Social Contract: Or, Principles of Political Law (1893), 25. For an in-detail commentary on Rousseau’s famous text see D. L. Williams, Rousseau’s Social Contract (2014).

²⁸ It must be stressed that the differences between the social contract theories are significant. For Hobbes, the state of nature is a brutal place where life is short (see Hobbes, supra note 25, at 97); to Locke, the state of nature is governed by a comprehensive natural law that is available to everyone to execute (see Locke, supra note 26, at 5–6); Pufendorf has two contracts: one establishing civilization and the other deciding the mode of government to be adopted. To Rousseau the state of nature is to be preferred over civilization; civilization represents a corruption of nature through its pursuit of private property and the social contract. See J. J. Rousseau, Discourse on Inequality (translated by M. Cranston, 1984); M. Plattner, Rousseau’s State of Nature: An Interpretation of the Discourse on Inequality (1979).

²⁹ See Rousseau, supra note 27, at 25. For writings on Rousseau’s ‘general will’ see J. Cohen, Rousseau: A Free Community of Equals, (2010); F. Neuhouser, ‘Freedom, Dependence, and the General Will’, (1993) 102(3) The Philosophical Review 363; P. Kain, ‘Rousseau, the General Will, and Individual Liberty’, (1990) 7(3) History of Philosophy Quarterly 315; A. Levine, The General Will: Rousseau, Marx, Communism (1993).

³⁰ See Locke, supra note 26, at 63: ‘The great and chief End therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the preservation of their Property.’ For commentary on Locke’s philosophy see R. Corbett, The Lockean Commonwealth (2009); J. Franklin, John Locke and the Theory of Sovereignty (1978); L. Thomas, Locke on Government (1995).

³¹ E. Vattel, The Law of Nations: Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (2011), 31.

³² Ibid., at 70. As with Bodin, the exact parameters by which a subject could resist a sovereign were heavily curtailed. For Hobbes, the sovereign cannot even breach the social contract (for he is not a party to it). See S. Sreedhar, Hobbes on Resistance: Defying the Leviathan (2010) for a piece exploring the capacity of citizens to resist the sovereign power.

³³ These are variously composed between natural law thinkers. For Vattel, states are bound to pursue the mutual perfection of one another’s society (see Vattel, supra note 31, at 193), but this is limited in that states are better able to look after themselves than an individual (ibid., at 209) and that the lack of a sovereign prevents its full realization (ibid., at 199).

³⁴ See Vattel, supra note 31, 192.

³⁵ M. Koskenniemi, ‘Miserable Comforters: International Relations as New Natural Law’, (2009) 15(3) European Journal of International Relations 395.

³⁶ I. Kant, Perpetual Peace (2016); S. Neff, Justice Among Nations (2014), 188; see Koskenniemi, supra note 15, at 872.

³⁷ D. Hume, A Treatise of Human Nature (Penguin Classics, 1985); J. Bentham, ‘Principles of International Law’, in J. Bowring (ed.), The Works of Jeremy Bentham (1838-43), vol. III, at 537.

³⁸ J. Austin, The Province of Jurisprudence Determined (1998).

³⁹ For general histories of the just war doctrine see D. Brunstetter and C. O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21 ^st Century (2018); J. T. Johnson, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (1981).

⁴⁰ See Vattel, supra note 31, at 302. For some general discussions of Vattel’s work see: V. Chetail and P. Haggenmacher (eds.), Vattel’s International Law in a 21 ^st Century Perspective (2011); P. Schröder (ed.), Concepts and Contexts of Vattel’s Political and Legal Thought (2021); S. Beaulac, The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (2004).

⁴¹ See Vattel, supra note 31, at 432.

⁴² Ibid., at 431.

⁴³ Ibid., (emphasis added).

⁴⁴ Ibid.

⁴⁵ W. Rech, Enemies of Mankind: Vattel’s Theory of Collective Security (2013), 151.

⁴⁶ Ibid.

⁴⁷ E. De Waresquiel, Talleyrand. Le prince immobile (2019), 285.

⁴⁸ For a recent analysis of this process and its connections to international law see E. J. Kolla, Sovereignty, International Law, and the French Revolution (2017).

⁴⁹ In 1800, Alexandre d’Hauterive would go so far as to suggest that, following the division of Poland, the rise of Prussia and Russia, and the colonial acquisitions of Great Britain, the old balance of power and ‘European public law’ established at Westphalia had been destroyed. The Revolution, for Hauterive, is inherently tied to the international order: ‘de cette forte et inévitable commotion est résultée la destruction complete d’un système incoherent … les germes d’une anarchie politique avaient été jeté en Europe, par les mêmes causes qui avaient jeté en France les germes de l’anarchie sociale’. (‘from this strong and inevitable commotion has resulted the complete destruction of an incoherent system … the germs of a political anarchy have been thrown into Europe by the same causes that threw into France the germs of social anarchy’). A. D’Hauterive, De L’État de La France, A La Fin De L’an VIII (1800). In response to Hauterive, Friedrich Gentz would provide a robust critique. See F. Gentz, On the State of Europe Before and After the French Revolution (1802).

⁵⁰ See Kant, supra note 36.

⁵¹ ‘war of pens’.

⁵² See Belissa supra note 5, at 389–407.

⁵³ For commentary on Hauterive and his influence upon international diplomacy and law see I. Richefort, ‘Une grande figure de la diplomatie sou l’Empire: Alexandre d’Hauterive’, in Lentz and Bruley, supra note 15, at 81; R. Cahen, ‘Hauterive et l’école des diplomaties (1800-1830)’, (2020) 18 Clio@Temis Revue électronique d’histoire du droit.

⁵⁴ T. Lentz, Nouvelle histoire du premier empire IV. Les cent jours 1815 (2010), 234.

⁵⁵ G. Rayneval, The Last Waltz of the Law of Nations: A Translation of the 1803 Edition of De Rayneval’s The Institutions of Natural Law and the Law of Nations (translated by J. Allain, 2019), Book II, Chapter V, §8.

⁵⁶ Ibid.

⁵⁷ G. Martens, Précis du Droit Des Gens moderne de l’Europe fondé sur les traités et l’usage (1821), Préface à l’édition Allemande de 1796, IV §120.

⁵⁸ Ibid., at IV §121.

⁵⁹ Ibid.

⁶⁰ Ibid., Introduction, §2.

⁶¹ ‘unite under a legislative, executive and judicial power, common and supreme, which fixes and guarantees rights’. Ibid., Introduction, §3.

⁶² ‘falling into anarchy’.

⁶³ Ibid., Introduction, §4.

⁶⁴ ‘it is incontestable that each power has the right to appose any unjust step by another power, the goal of which is to aggregate to itself domination, aggrandisement, preponderance, or universal monarchy’. J. L. Klüber, Droit Des Gens Moderne De Le L’Europe (1819), §42. In his footnotes, he cites the war against Napoleon as such an example.

⁶⁵ ‘During a civil discord, a rebellion, or the dethronement of a prince, a foreign state has only provisionally recognized one of the parties; this never carries with it a prejudice to the rights of the other party.’ Ibid., §52.

⁶⁶ See Gentz, supra note 49, at 199.

⁶⁷ Ibid.

⁶⁸ Ibid., at 200–1 (emphasis added).

⁶⁹ Ibid.

⁷⁰ Napoleon’s life has been the subject of countless biographies. For a representative selection see J. Tulard, Napoléon ou le mythe du sauveur (1977); G. Gengembre, Napoléon. La vie. La légende (2001); G. Lefebvre, Napoleon (2011); A. Roberts, Napoleon the Great (2015); P. Dwyer, Napoleon: The Path to Power (2008); P. Dwyer, Citizen Emperor (2013); M. Broers, Napoleon: Soldier of Destiny (2015); M. Broers, Napoleon: Spirit of the Age (2018); P. Gueniffey, Bonaparte (2017); A. Zymoski, Napoleon: The Man Behind the Myth (2019); A. Castelot, Bonaparte (2019); A. Castelot, Napoléon (2019).

In recent years, the study of the Napoleonic period has shifted from the man to his empire. For analyses of the various aspects of Napoleon’s empire and its implications see M. Broers, Europe Under Napoleon 1799-1815 (1996); A. Jourdan, L’Empire de Napoléon (2000); J. Boudon, Histoire du Consulat et de L’Empire (2001); T. Lentz, Nouvelle histoire du Premier Empire, in 4 vol. (2002-2010); P. Dwyer and A. Forrest (eds.), Napoleon and his Empire: Europe 1804-1814 (2007); P. Dwyer (ed.), Napoleon and Europe (2001).

⁷¹ This invasion was to force Tsar Alexander I back into an alliance against the UK. A. Zamoyski, 1812: Napoleon’s Fatal March on Moscow (2005); D. Lieven, Russia Against Napoleon: The Battle for Europe 1807-1814 (2016).

⁷² Tsar Alexander would have no truck with Napoleon, believing that the stability of Europe could only be achieved with a French leader other than Napoleon. He frequently was at odds with Metternich’s policy, which he interpreted as a willingness to reach an accommodation with Napoleon. See Lieven, ibid., at 470.

⁷³ W. Siemann, Metternich: Strategist and Visionary (2019), 374–96. It should be noted that this is a revisionist account of Metternich. The previous orthodoxy was that Metternich wanted to make peace with Napoleon, only changing his mind when Napoleon had refused all entreaty. See Price, supra note 2, at 158.

⁷⁴ This followed a careful peace representation that Metternich was confident would be rejected. See Siemann, ibid., at 375.

⁷⁵ Price also accepts this interpretation, but nevertheless criticizes Napoleon for not going along with them. See Price, supra note 2, at 158–71.

⁷⁶ Frankfurt Declaration, 1 December 1813, available at www.napoleon-series.org/research/government/diplomatic/c_frankfort.html. See also Siemann, supra note 73, at 378.

⁷⁷ Ibid.

⁷⁸ Ibid.

⁷⁹ For a discussion of the events at Châtillon see Price, supra note 2, at 187.

⁸⁰ Tsar Alexander was opposed to any such conference. Only the threat of Austrian withdrawal from the alliance and news of military defeats forced his acquiescence. See Lieven, supra note 71, at 483.

⁸¹ See Siemann, supra note 73, at 383.

⁸² Ibid., at 384.

⁸³ See Waresquiel, supra note 47, 569.

⁸⁴ See Siemann, supra note 73, at 384. Anglophone scholarship has typically heaped the blame directly onto Napoleon’s character defects. See Price, supra note 2, at 249; H. Kissinger, A World Restored: Metternich, Castlereagh and the Problems of Peace 1812-1822 (1957), 130–5; P. Schroeder, The Transformation of European Politics, 1763-1848 (1996), 507; M. Jarrett, The Congress of Vienna and its Legacy: War and Great Power Diplomacy After Napoleon (2013), 63. From Napoleon’s perspective, the reduction of France to its former limits would hardly serve to maintain the balance of power. The natural borders were necessary to counterbalance the Austrian, Prussian, and Russian gains in the dismantling of Poland, and Britain’s growing colonial domination. Napoléon Bonaparte, Correspondance Générale: Vol XV Les Chutes, Janvier 1814-mai 1821 (2018), Letter 37736 and 38394. In this claim, Napoleon echoes the positions set out by Hauterive more than a decade earlier.

⁸⁵ To counteract this strategy, Napoleon would frequently state that the French people would not accept the proposed peace (ibid., Letter 38394).

⁸⁶ A. Zamoyski, Rites of Peace: The Fall of Napoleon and the Congress of Vienna (2008), 167; see Schroeder, supra note 84, at 501.

⁸⁷ According to Ikenberry, these proposals can be traced back to a diplomatic exchange between Alexander and William Pitt in 1805. G. J. Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars (2016), 81.

⁸⁸ For many commentators Chaumont is a turning point. For Schroeder, Chaumont marks the point where the allies’ each subordinated the full realization of their parochial intentions to that of the common good. As such, it ‘laid the foundations for victory, peace, and post-war security’. See Schroeder, supra note 84, at 501–4.

⁸⁹ See Zamoyski, supra note 86, at 168. Gulick stresses that Chaumont represents the refinement of the balance-of-power system. See Gulick, supra note 6, at 56.

⁹⁰ A fact that Napoleon was aware of and willing to exploit. He instructed Caulaincourt, his representative at the conference, to object that:

⁹¹ Perhaps ironically, Gentz himself, present with the Austrian staff, was opposed at this point to the removal of Napoleon. See P. Sweet, Friedrich Von Gentz: Defender of the Old Order (1941).

⁹² See Lieven, supra note 71, at 515. For a history of Alexander’s time in Paris see M. Rey, Un tsar à Paris (2014).

⁹³ See Zamoyski, supra note 86, at 173; Kissinger, supra note 84, at 136–7; Price, supra note 2, at 230; Lieven, supra note 71, at 517. For biographies of Talleyrand see P. Dwyer, Talleyrand (2002); R. Harris, Talleyrand: Betrayer and Saviour of France (2007); see Waresquiel supra note 47.

⁹⁴ See Siemann, supra note 73, at 394.

⁹⁵ For a detailed account of Talleyrand’s political manoeuvring see Waresquiel, supra note 47, at 563–78. See Lieven, supra note 71, at 518.

⁹⁶ A. Alison, History of Europe from the Commencement of the French Revolution to the Restoration of the Bourbons in 1815 (1860). This declaration is very similar to that suggested to Castlereagh from Lord Bathurst and the Prince Regent. In that proposed declaration the instability of Europe and the horrors of war were directly attributed to Napoleon, ‘and that although nothing could be more foreign to the intentions of the allied powers, than any attempt to prescribe to an independent nation, either the person of its sovereign or the form of its government’ the restoration of the Bourbons was necessary for ‘procuring permanent happiness and tranquillity to France itself and to the rest of Europe’. C. K. Webster, British Diplomacy, 1813-1815: Selected Documents Dealing with the Reconstruction of Europe (1921), Bathurst to Castlereagh, 27 February 1814, 162.

⁹⁷ ‘tear the pact which united him to the French people’. Quoted in Waresquiel, supra note 47, at 581; see Lieven, supra note 71, at 518; Zamoyski, supra note 86, at 180.

⁹⁸ It should also be noted that the allies ensured that Louis XVIII reinstatement was done through a senate vote. See Lefebvre, supra note 70, at 351.

⁹⁹ See Waresquiel, supra note 47, at 580.

¹⁰⁰ See Schroeder, supra note 84, at 507.

The justifications for Fontainebleau are set out in a letter by Castlereagh to Liverpool: ‘The motives for accelerating the immediate conclusion of this act were the inconvenience, if not the danger, of Napoleon’s remaining at Fontainebleau, surrounded by troops who still, in a considerable degree, remain faithful to him …’. See Webster, supra note 96, Castlereagh to Liverpool, 13 April 1814, at 175.

¹⁰¹ There is a possibility Alexander might have accepted a regency. He was still not impressed with Louis, and Bernadotte by this point had proven a disappointment. M. Adams, Napoleon and Russia (2014), 516.

¹⁰² See Waresquiel, supra note 47, at 582; S. Englund, Napoleon: A Political Life (2004), 416. See also F. Favier, Le Maréchal Marmont (2017).

¹⁰³ See Lieven, supra note 71, at 518; Schroeder, supra note 84, at 506.

¹⁰⁴ See Roberts, supra note 70, at 716.

¹⁰⁵ See Dwyer, supra note 93, at 140.

¹⁰⁶ There is evidence to suggest that Talleyrand explored the possibility of having Napoleon assassinated. See Price, supra note 2, at 225.

¹⁰⁷ See Lieven, supra note 71, at 519; Zamoyski, supra note 86, at 183; Schroeder, supra note 84, at 508.

¹⁰⁸ For an in-depth exploration of these events see T. Lentz, Les Vingt Jours de Fontainebleau. La première abdication de Napoléon. 31 mars-20 avril 1814 (2014).

¹⁰⁹ The Kingdom of Italy was later absorbed into the Austrian empire under the Treaty of Paris 1814.

¹¹⁰ Joseph had ruled both Naples and then Spain, Louis had briefly been King of the Netherlands, and Jerome was King of Westphalia.

¹¹¹ The legal dimension of how Napoleon ran his empire has been under-theorized. The Kingdoms of the Netherlands and Westphalia were nominally sovereign in their own right, Napoleon could intervene as he willed, deposing Louis and annexing the territory of the Netherlands to France in 1810.

¹¹² With the notable exception of the Kingdom of Naples, which continued to be ruled by Prince Murat until 1815.

¹¹³ For both Martens and Klüber, the authority to participate in a treaty was an emanation of the sovereignty of the nation. It came from below – from the social contract.

¹¹⁴ 1814 Treaty of Fontainebleau, Art. I.

¹¹⁵ Ibid.

¹¹⁶ Ibid., Art. III.

¹¹⁷ See Zamoyski, supra note 86, at 183; Dwyer, supra note 70, at 487.

¹¹⁸ See Siemann, supra note 73, at 395.

¹¹⁹ See Dwyer, supra note 93, at 140.

¹²⁰ See Webster, supra note 96, Castlereagh to Liverpool, 13 April 1814 at 176.

¹²¹ See Dwyer, supra note 70, at 487. It is worth noting that Napoleon attempted suicide before leaving for Elba. Ibid., at 489.

¹²² See Roberts, supra note 70, at 723.

¹²³ Ibid.; F. McLynn, Napoleon (1997), 597.

¹²⁴ P. Hicks, ‘Napoleon on Elba: An Exile of Consent’, in P. Mansel and T. Riotte (eds.), Monarchy and Exile: The Politics of Legitimacy from Marie de Médicis to Wilhelm II (2011), 223.

¹²⁵ E. Waresquiel, Cent jours, la tentation de l’impossible: Mars-juillet 1815 (2008), 164.

¹²⁶ See Dwyer, supra note 70, at 51; Waresquiel, ibid., at 164; N. MacKenzie, The Escape from Elba: The Fall and Flight of Napoleon, 1814-1815 (1982); Harris, supra note 93, at 255.

¹²⁷ ‘we have here a fairly decided intention of removing Bonaparte from the Ile of Elba’. See Lentz, supra note 54, at 281. Napoleon was kept well informed of these developments. While benefiting from his own network of agents, the allies were hardly discreet. The majority of newspapers were full of speculation as to where he would be sent (ibid., at 281). See also P. Branda, La Guerre secrete de Napoléon. Ile d’Elbe. 1814-1815 (2014).

¹²⁸ See Lentz, ibid., at 513. Alongside, and contributing to, the treatment of Napoleon was that of Murat – former marshal and brother-in-law of Napoleon that had held onto the throne of Naples during the Emperor’s fall by changing sides and joining the allies. The latter, however, were far from happy with the arrangement, fearing collaboration between Murat and his former master, and seeing the lingering French presence as an impediment to the order they wished to establish. France, in particular, were eager to see the Bourbons restored to Naples. When Napoleon first left Elba, the allies’ first reaction was to believe he would land in Italy. No one thought he would dare to appear in France – especially in the royalist south. During the hundred days, Murat would act rashly and against Napoleon’s advice, invading Habsburg territory and proclaiming the establishment of a unified kingdom of Italy under his sceptre. Soon afterwards, his army was routed. Murat would finish by being executed by the allies.

¹²⁹ See Zamoyski, supra note 86, at 450; Lefebvre, supra note 70, at 360. Dwyer recognizes the provoking circumstances but still attributes the blame to Napoleon’s restless nature. See Dwyer, supra note 93, at 157. Schroeder does accept the provocation but nevertheless pins the blame on Napoleon’s megalomania. He argues that the 100 Days was simply the act of an ‘ambitious, unscrupulous Corsican general’ who ‘took advantage of his adopted country’s divisions’. The move here to de-legitimize Napoleon as even French (if not a civilized, European, being) is somewhat alarming. See Schroeder, supra note 84, at 548–50.

¹³⁰ The fundamental tension is summed up by Waresquiel: ‘Pourquoi ne pas envoyer l’inquiétant personnage plus loin, aux Açores, ou à Sainte-Hélène par exemple? Mais en vertu de quel droit? Napoléon a signé avec les puissance alliées un traité qui lui donne légalement la souveraineté d’Elbe. Il fait partie du concert des souverains.’ (‘Why not send the worrying person further, to the Acores, or to Saint Helena, for example? But in virtue of what right? Napoleon had signed with the allied powers a treaty which legally gave him the sovereignty of Elba. He is part of the concert of sovereigns.’). See Waresquiel, supra note 125, at 164.

¹³¹ See Dwyer, supra note 70, at 514.

¹³² McLynn has suggested that Napoleon’s anomalous position was the result of British and Austrian collusion. In essence, a situation was created in which Napoleon would have little choice but to return to France, thus justifying allied calls to have him removed from Europe entirely. See McLynn, supra note 123, at 604. Though this argument has been refuted: J. Orieux, Talleyrand (2006), 617–24.

¹³³ See Dwyer, supra note 70, at 521-3.

¹³⁴ Quoted in Lentz, supra note 54, at 348.

¹³⁵ ‘recognized by an international treaty, and not the prisoner of his vanquishers’. Ibid.

¹³⁶ Events at the Congress had not been going smoothly. Tensions over Poland and Saxon territory were leading to acrimony. See Dwyer, supra note 70, at 525. The return of Napoleon and the prospect of further war was looked upon favourably by the Prussians as opening the possibility of acquiring more territory from a defeated France. Ibid., at 526.

¹³⁷ Drafted chiefly by Talleyrand in order to support the faltering Bourbon restoration. See Harris, supra note 93, at 255; Price, supra note 2, at 252; Lentz, supra note 54, at 352.

¹³⁸ Quoted from Roberts, supra note70, at 737. Interestingly, the British government were initially reluctant to openly agree to a declaration or to support the reinstatement of Louis XVIII. See Webster, supra note 96, Castlereagh to Wellington, 16 March 1815, at 313–14. The vacillating British political position is also captured by Lentz. In the Parliamentary debates concerning the declaration, Lord Grey evinced some sympathy for Napoleon, pointing out the failure of France to honour its treaty obligation. See Lentz, supra note 54, at 356.

¹³⁹ Waresquiel has described the declaration as ‘une arme politique formidable braquée sur Napoléon comme le canon d’un fusil tenu à plusieurs mains’ (‘a formidable political weapon pointed at Napoleon like a gun barrel, held by several hands’). See Waresquiel, supra note 125, at 165.

¹⁴⁰ Quoted in Dwyer, supra note 70, at 526. This, for Kissinger, is an expression of the new legitimacy hammered out at Vienna. See Kissinger, supra note 84, at 176–7.

¹⁴¹ See Zamoyski, supra note 86, at 448.

¹⁴² See Englund, supra note 102, at 431; Dwyer, supra note 70, 526.

¹⁴³ ‘Bonaparte is, therefore, placed, in the strictest sense of the word, out of right and out of law.’ See Lentz, supra note 54, at 353 (emphasis added).

¹⁴⁴ ‘He no longer belongs to the civil and social order.’ Ibid.

¹⁴⁵ ‘is certainly the strongest act that has ever been made against an individual’.

¹⁴⁶ ‘outside the law … outside the human race’. Quoted in Waresquiel, supra note 47, at 644.

¹⁴⁷ See McLynn, supra note 123, at 607. Adams describes it as ‘spurious’. See Adams supra note 101, at 529.

¹⁴⁸ Despite being a trenchant critic of the empire, Napoleon lured Benjamin Constant into composing it. As it happened, the Constitution failed to please anyone, being an incoherent blend between imperialism and liberalism. See Dwyer, supra note 70, at 539.

¹⁴⁹ Ibid., at 541. The extent to which the plebiscite indicated support for Napoleon has been questioned. The turnout was poor and the assenting votes less than in 1804. Though Dwyer suggests that the lacklustre electoral performance was probably a symptom of indifference than hostility. See Ibid. See also Waresquiel, supra note 125, at 435; Englund, supra note 102, at 434.

¹⁵⁰ See Englund, ibid., at 429–30. The new liberal constitution was drawn up by Benjamin Constant. See Roberts, supra note 70, at 748. Napoleon affirmed that his return was ‘l’ouvrage d’une irrésistible puissance, l’ouvrage de la volonté unanime d’une grande nation qui connaît ses devoirs et ses droits’ (‘the work of an irresistible power, the work of the unanimous will of a great nation who knows its duties and its rights’). The Bourbons did not suit the French, who called back a liberator. Preying again upon the hegemonic behaviour of the allies, he also stressed that ‘le principe invariable de sa [the French] politique sera le respect le plus absolu de l’indépendance des autres nations’ (‘invariable principle of its politics will be the most absolute respect of the independence of other nations’) (see Bonaparte, supra note 84, Letter 39210). Finally, he wished to resist the allied representation of France as being, ‘comme les hommes de [17]93, dans l’anarchie la plus complete’ (‘like the men of 1793, in the most complete anarchy’). France was engaged in establishing ‘une veritable liberté sans anarchie, telle qu’il la faut pour le bonheur intérieur de la nation et sans alarmer aucune puissance’ (‘a true liberty without anarchy, such that is needed for the interior happiness of the nation and without alarming no power’). (Ibid., Letter 39227).

¹⁵¹ Of course, events were not as clear-cut as this suggests. Both Napoleon and Louis engaged in a fraught battle over whom embodied the sovereignty of the nation. Louis attracted considerable support from the liberals within Paris but failed to win over the army. See Waresquiel, supra note 125, at 87, 140, 168, 208, 214.

¹⁵² See Englund, supra note 102, at 431; Roberts, supra note 70, at 746.

¹⁵³ See Siemann, supra note 73, at 547.

¹⁵⁴ Ibid.

¹⁵⁵ 1815 Treaty of Vienna, Art I.

¹⁵⁶ Ibid.

¹⁵⁷ For Schroeder, this was an operation of international law: ‘The requirements of international law transcended a nation’s right to choose its sovereign; France was not entitled to choose a ruler incapable of living at peace with Europe.’ See Schroeder, supra note 84, at 552. This echoes the argument by Lord Eldon set out below. Siemann also makes a similar argument, but, again, does not explain how the allied actions were ‘based on international law’. See Siemann, supra note 73, at 547.

¹⁵⁸ Notwithstanding the fact that Louis XVIII and France were party to the treaty, the allies remained equivocal as to whether the treaty committed them to the restoration of the (re)exiled King. Alexander, sceptical of the Bourbon king from March 1814, felt confirmed in his conviction that Louis could not govern France. While Napoleon had to go, the Tsar would even consider a regency from Napoleon’s son. Castlereagh, in turn, while the treaty of alliance was being ratified in Parliament, stressed that nothing in the treaty should be understood as aiming to impose a government on France. See Lentz, supra note 54, at 355–6.

¹⁵⁹ There is a question mark over the legality of Napoleon’s abdication. His abdication was conditional on the acceptance of his son as Emperor. In a stormy session of the French upper chamber, La Bédoyère thundered that ‘[s]i son fils n’est pas reconnu, n’est pas couronne, je dis que Napoléon n’a pas abdiqué: sa déclaration est nulle’ (‘if his son is not recognized, is not crowned, I say that Napoleon has not abdicated: his declaration is void’) (ibid., at 522). More generally, the wider internal French politics here are complex. Ibid., at 509–22; N. MacKenzie, Fallen Eagle: How the Royal Navy Captured Napoleon (2009), 38-57; Englund, supra note 102, at 444; Dwyer, supra note 70, at 551–4; J. Bertaud, L’Abdication. 21-23 juin 1815 (2011).

¹⁶⁰ See MacKenzie, supra note 159, at 165. Napoleon showed considerable vacillation leading up to this moment – even holding out the hope of being permitted to lead France’s armies in a renewed war. See Englund, supra note 102, at 446; Roberts, supra note 70, at 772; Dwyer, supra note 70, at 559.

¹⁶¹ 1815 Treaty of Vienna, Art I.

¹⁶² G. J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2014), 49.

¹⁶³ Ibid., at 38.

¹⁶⁴ See Webster, supra note 96; Castlereagh to Liverpool, at 342.

¹⁶⁵ Ibid., Castlereagh to Liverpool, at 350.

¹⁶⁶ Ibid.

¹⁶⁷ See MacKenzie, supra note 159, at 189.

¹⁶⁸ The risk of Napoleon gaining public safety or becoming a symbol of future resistance was too great. A. Forrest, Napoleon (2012), 296–7.

¹⁶⁹ See MacKenzie, supra note 126, at 183. The Independent Whig on 31 July thundered:

The prominent barrister Capel Lofft made a similar argument in the Morning Chronicle, stressing that ‘deportation, or transportation … cannot legally exist in this country, except where the law expressly provides it on trial and sentence’. See MacKenzie, supra note 159, at 192. Of course, not all the British press was so sympathetic. The Courier asked how the liberals could defend a tyrant and afford him the protection of laws. Others suggested that Napoleon, as a dangerous animal, should be treated through exceptional measures. The St. James’ Chronicle even suggested that the British government was acting under natural law. Ibid.

¹⁷⁰ G. Martineau, Napoleon Surrenders (1973), 180–2.

¹⁷¹ The imprisonment of Napoleon on St. Helena would be confirmed by the allies in 1818 at the Congress of Aix-La-Chapelle. See Jarrett, supra note 84, at 205.

¹⁷² Ibid., at 152.

¹⁷³ See MacKenzie, supra note 159, at 119. Napoleon was not idle in contesting the British actions. ‘Je proteste solennellement ici, à la face du ciel et des hommes, contre la violence qui m’est faite, contre la violation de mes droits les plus sacrés, en disposant, par la force, de ma personne et de ma liberté.’ (‘I solemnly protest here, in the face of heaven and men, against the violence which has been don’t to me, against the violation of my most sacred rights, disposing, by force, of my person and my liberty.’) (see Bonaparte, supra note 84, Letter 40069).

¹⁷⁴ J. H. Stewart, ‘A Legal Opinion by Lord Eldon’, (1951) 45(3) AJIL 571, at 575. As Adams has argued:

See Adams, supra note 101, at 533.

¹⁷⁵ See Stewart, supra note 174, at 575.

¹⁷⁶ See Bass, supra note 162, at 53; MacKenzie, supra note 159, at 191.

¹⁷⁷ Interestingly, many political commentaries of the period barely mention the exile. Schroeder and Kissinger skip over the fact without mention or analysis. See Roberts, supra note 70, at 778.

¹⁷⁸ Ibid., at 801. His body would only be returned to France in 1840. His tomb can be found today in the Invalides in Paris and may be visited by the public.