By: Stephen
C. Neff, Reader in Law – Public International Law, University of Edinburgh Law
School
Don Bernardino
de Mendoza was a man of action, in an age of swashbucklers. By temperament, he
was not one of life’s natural diplomats – though that was his vocation for a
crucial period of time. His misadventures in that field ended up contributing
to the development of international law of diplomatic relations.
Mendoza was born
in or around 1540 in Spain, into a distinguished family, his father having been
both a count and a viscount. It was also a large family – our hero was the
tenth child out of twenty. He was a precocious student, becoming a reader of
five foreign languages and studying, at a very young age, at the University of
Alcalá. He did military service for Spain, most notably in the Dutch War of
Independence, where he served under the infamous Duke of Alba. For his prowess,
he was knighted in 1576 (joining the prestigious Order of Santiago). He then
hung up his spurs and entered upon a new career as a diplomat.
That was where
the trouble began. An early mission to Pope Pius V (to secure papal support for
Spain against the Dutch insurgents) seems to have gone well. The same cannot
be said of his tenure as Spanish ambassador to England, which began in 1578.
Relations with the host government were bound to be difficult, given that
England was supporting, more or less openly, the Protestant insurgents in the
Netherlands. But Mendoza was not the man to smooth things over. An early
dispute with his hosts was over the alleged trespasses of Francis Drake in
areas over which Spain claimed sovereignty – with the bestowal of a knighthood
onto Drake adding still further to his country’s sense of injury. When Queen
Elizabeth I remarked to him that he had done nothing but complain for three and
half years after his arrival, he lost his temper and told her that perhaps the
roar of cannons would improve her hearing. From 1580, Elizabeth limited his
access to her court.
Elizabeth had
good reason to be wary of this envoy, who soon began to involve himself rather
more deeply than was fitting in local politics. In particular, he became a
central figure in what became known as the Throckmorton plot, which envisaged
an invasion of England by French forces, the assassination of Elizabeth, and
the installation of the Catholic Mary Queen of Scots onto the English throne.
The eponymous Francis Throckmorton served as an intermediary between Mendoza
and Mary. The plan miscarried when Throckmorton was apprehended in 1583 and
confessed – with torture as a prime inducement to candor. He was executed for
high treason the following year. Mary Queen of Scots was placed in close
confinement to forestall any further ambitions on her part.
Mendoza’s fate
was to be brought before the Privy Council, in January 1584. His heated
denials of guilt convinced no one. There was uncertainty, however, as to what
to do to, or about, him – and in particular what kind of protection, if any,
his status as a diplomat afforded him. To shed light on this conundrum, the
English government sought the services of two prominent international lawyers.
One was Alberico Gentili, of Italian origin, who was a reader in civil law
(i.e., Roman law) at Oxford University. The other was a French Protestant
writer named Jean Hotman. The two entertained a certain diversity of view on
this delicate issue.
Gentili did not
take the view that Mendoza was immune from prosecution for his misconduct. But
he did insist that international law, rather than ordinary English criminal
law, was the governing law in the case. This was by virtue of Mendoza’s
diplomatic role. Gentili went on to conclude that, according to international
law, a crime that was only conceived and plotted, but not fully carried out,
was not punishable by either death or imprisonment. The correct penalty was
expulsion.
Hotman came to a
somewhat different conclusion. His view was that an ambassador who abuses his
position, in the manner of Mendoza, thereby automatically forfeited the
privileges to which diplomats were normally entitled. These were asserted to
be distinctly limited in number – basically comprising exemption from taxes and
impositions. They were subject to civil actions in the manner of ordinary
persons – with the caveat that the physical premises of diplomatic missions