International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2014 Issue

Historic Moments in International Law


The Envoy from Hell – and What to Do with Him

Stephen C. NeffBy: 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



were inviolable, so that no executions against property could be carried out there.  Otherwise, diplomats were obligated to obey the law of the country to which they were posted.  As an offender against the law of nations, Hotman maintained, Mendoza should be imprisoned and not merely expelled.

In the event, expulsion was the punishment meted out. Menodoza reacted with typical aggressiveness.  He refused to depart from the country until he had informed his king (Philip II of Spain) of what had happened. He duly informed Philip, with some degree of understatement, that “public indignation is very great against me.”  Indeed, pamphleteers generally called for harsher treatment.  When told that he was fortunate not be punished more severely, Mendoza reportedly scoffed at the idea.  He was forcibly placed onto a boat bound for France – while warning his disgruntled hosts that his master would avenge this insult with war.  (War did indeed break out between England and Spain in the coming years, but this was largely over English support for Dutch rebels rather than for the summary dispatching of Mendoza.)

The principal actors in this little drama all went on to various degrees of distinction.  Following a brief sojourn in Wittenberg in Germany, Gentili returned to Oxford in 1587, now as Regius Professor of Civil Law.  (The chair is currently held by Boudewijn Sirks.)  Both he and Hotman took good advantage of their labors to publish treatises on diplomatic law.  Gentili set out his ideas in De Legationibus in 1585, the year after the Mendoza affair.  It was his first major contribution to international-law scholarship.  Hotman wrote a treatise entitled L’Ambassadeur in 1603 – although his renown was compromised by accusations that he had plagiarized a previous work by an Italian writer named Carlo Pasquali.

As for Mendoza, there were further adventures in store.  He showed little penitence for his past conduct. His next posting was to France, where he once again became active (to put it mildly) in local politics.  Specifically, he became deeply embroiled in the machinations of the Guise faction, who were extreme Catholics, in the religious civil strife that was then tearing France apart.  His chief role was to act as paymaster for the funnelling of Habsburg funds to the Guise forces.  He also helped organize the Day of the Barricades in 1588, in which a revolt by Catholic extremists drove King Henry III from Paris. There is also evidence of support, from afar, for another assassination plot against Elizabeth I (the Babington plot of 1586).  For these various initiatives, Henry III demanded of Philip II that he recall his all-too-energetic representative. Philip declined to do so, and Mendoza only left France in 1591, when blindness was overtaking him.

Perhaps his disability mellowed him, as he turned his attention in his last years to scholarly pursuits. His most notable contribution was a treatise on warfare, written in 1596 and translated (from Castilian) into Latin, English, and German.  He also wrote a commentary on the Dutch wars, which was strikingly fair-minded, given his high-level involvement on one side.  Finally, he translated a portion of the writings of the Dutch (Protestant) scholar Justus Lipsius.  It appears that he even dabbled in poetry.  He also, somewhat ironically, made a contribution to English historical studies, in that his dispatches to Spain became a useful source of information about the English political and diplomatic scene at the time.  He died in Spain in 1604 – fittingly, the year in which England and Spain brought the war between them to a conclusion in the Treaty of London.

For those who seek further detail on this incident, useful information may be found in an excellent book by Linda S. Frey and Marsha L. Frey, The History of Diplomatic Immunity (1999). The current law on the subject is set out in the Vienna Convention on Diplomatic Relations (of 1961), which is rather more indulgent towards wayward ambassadors than the English government was in 1584.  According to the Convention, a person in Mendoza’s position has full immunity from criminal prosecution in the receiving state (unless it is waived by the sending government).  All that the host government can do is to declare the offending envoy persona non grata and require his departure.  It should be noted that this is not, strictly speaking, what was done in the Mendoza affair.  Mendoza’s expulsion was regarded as punishment for an offense committed under international law – punishment inflicted by English authorities, who did not hesitate to assume jurisdiction over their troublesome envoy.  Neither Gentili nor Hotman held that Mendoza possessed a blanket immunity against prosecution.  It may be left to the rumination of readers whether the Vienna Convention approach really represents an improvement over the law as it stood in the 16th Century.

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