The Theory and Practice of Diplomatic Law in The Renaissance and Classical Period

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The theory and practice

of diplomatic law in the
renaissance and classical
periods
a
J. Craig Barker
a
Lecturer in Law , University of Reading
Published online: 19 Oct 2007.
To cite this article: J. Craig Barker (1995) The theory and practice of diplomatic
law in the renaissance and classical periods, Diplomacy & Statecraft, 6:3,
593-615, DOI: 10.1080/09592299508405979
To link to this article: http://dx.doi.org/10.1080/09592299508405979
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The Theory and Practice of
Diplomatic Law in the
Renaissance and Classical
Periods
J. CRAIG BARKER
The roots of diplomatic law lie buried in ancient history, making it

one of the oldest branches of international law. However, the greatest
development of diplomatic privileges and immunities took place in
the renaissance and classical periods from the middle of the fifteenth
century to the outbreak of the French Revolution in 1789. This
period began with the establishment of permanent diplomatic rela-
tions in Italy and witnessed a huge expansion of diplomatic activity
throughout Europe and beyond. It was a period when diplomacy was
used as much for gathering information as for conducting relations,
with great importance being placed on ceremony and procedure.
Each ambassador was regarded as the personal representative of the
sending sovereign or state and, accordingly, entitled to the utmost
respect and dignity, according to the rank of the person or body
which sent him.
Factors such as these influenced the development of diplomatic
law, and in particular the privileges and immunities of diplomatic
agents, which developed from a stage where the only fully accepted
rule of diplomatic law was the inviolability of the diplomatic envoy
to a stage where the privileges and immunities of ambassadors and
their suites were so extensive that whole areas of cities were con-
sidered as being outside the jurisdiction of the receiving sovereign.
This paper will examine how this enormous expansion in diplomatic
privileges and immunities came about. In particular, it will be argued
that it was the practical application of theories put forward by
leading jurists which encouraged the excessive claims to diplomatic
Diplomacy & Statecraft, Vol.6, No.3 (November 1995), pp.593-615
PUBLISHED BY FRANK CASS, LONDON
594 DIPLOMACY & STATECRAFT
privileges and immunities which characterized this period of the

development of diplomatic law. On the contrary, however, far from
wishing to encourage such excessive claims, it will be shown that
many of the leading theorists were in favour of limiting diplomatic
privileges and immunities to what was functionally necessary taking
account of the status of ambassadors as the representative of the
sending sovereign or state, a theoretical basis for the law which
survives to this day.
Diplomatic Law before the Fifteenth Century

The development of diplomatic law has occurred over many
thousands of years. Indeed, Sir Harold Nicolson has even gone as far
as to speculate that the concept of diplomatic immunity may have
found a place in the inter-tribal relations of the prehistoric man.1 The
centuries which passed before the advent of permanent diplomatic
relations saw a continued observance of the inviolability of the
diplomatic envoy amongst many different and entirely unconnected
civilizations. From the Greeks and Romans2 in Europe to the ancient
Indians and Chinese in Asia,3 it is apparent that messengers from
foreign territories were generally allowed to complete their missions
without the fear of interference.
Religion played an important role in the diplomatic law of many
of the ancient civilizations. Gentili, in his De Legationibus Libri Tres,
cites a number of contemporary Greek and Roman writers who
commented upon the importance of religious ceremony to the early
ambassadors.4 Alexander, for example, declared that no one 'could
perform the functions of an embassy unless he had first washed his
hands in water poured over them by heralds, and had made a libation
to Zeus from goblets wreathed with garlands'.5 Diplomatic relations
were regulated in Roman times by the College of Fetials, whose
practices gave rise to the jus fetiale.6 The College fulfilled its tasks
with great ceremony, the declaration of war being effected by the
hurling of a bloody spear upon the soil of the enemy, literally at first,
and subsequently by use of a column in front of the Temple of
Bollonus, which was regarded as symbolizing the enemy frontier.7 It
would seem that the College of Fetials 'was composed of persons
who were sacred at all times, their sanctity not being restricted to
DIPLOMATIC LAW IN THE RENAISSANCE AND CLASSICAL PERIODS 5 9 5
occasions when they acted in a diplomatic capacity'.1 Finally, with

regard to the ancient Indians, Viswanatha notes that they chose as
their envoys 'men of the priestly class whose persons were considered
by all as sacrosanct'.'
According to Oppenheim, it was religious sanctity which formed
the basis of early diplomatic law:
... it is remarkable that even in antiquity, where no such law as
the modern international law was known, ambassadors

everywhere enjoyed a special protection and certain privileges,
although not by law but by religion, ambassadors being looked
upon as sacrosanct.10
It is submitted, however, that although religion played an important
role in the diplomatic law of the ancient civilizations it would be wrong
to overstate that role. While religion suffices as an explanation for the
inviolability of ambassadors within certain groups of peoples sharing a
common religious background, such as the Greek city-states or the
Roman Empire, it does not fully explain the inviolability of diplomatic
envoys between such groups. A better explanation of the role of
religion in early diplomatic law is that the cloak of religious sanctity
was utilized as a form of guarantee against harm being done to persons
who were regarded as fulfilling an essential role in society." It is
submitted that throughout the development of diplomatic relations
until the creation of permanent diplomacy, diplomatic law was
essentially based on the inherent necessity of inter-tribal and inter-state
relations, the inviolability of envoys being secured to a considerable
extent by means of religious sanctity.
It was not until the advent of the 'new' diplomacy12 and the
establishment of permanent diplomatic relations, however, that the
need for a comprehensive enumeration of diplomatic privileges and
immunities arose. It was perceived that the necessity of the
diplomatic process was no longer sufficient to explain such privileges
and immunities, which had increased well beyond the accepted
principle of the inviolability of the diplomatic agent.
The Development of the 'New' Diplomacy

Among the ancients, the Greeks and Romans, while contributing
much to the development of many disciplines, did not excel in the

field of diplomacy. Indeed, it was not until the time of the Byzantine
Empire that the first example of professional diplomacy is to be
found. Faced with the threat of the growing strength of Persia and the
emerging Islamic Empire in the east, and the opportunity of
extending their influence over the warring barbarian kingdoms in the
west, the Byzantines developed a comprehensive system of diplomacy
which can be regarded as the effective starting point of modern

diplomacy." However, it was in Italy that the rules and techniques of
the new diplomacy began to emerge in the relations of the many city-
states that made up the Italian peninsula.14
Italy at this time found itself in a somewhat unique position.
Garret Mattingly describes that position thus: 'Italy was beginning to
become such a system of mutually balanced parts in unstable equili-
brium as all Europe was to be three hundred years later, a small scale
model for experiments with the institutions of the new state.'15
Cut off from the rest of Europe by the Alps, and covering a
peninsula large enough to contain a number of competing city-states
but small enough to allow for a degree of inter-state relations, con-
ditions in Italy were ripe for the further development of diplomatic
method.
It was during this period of relative isolation that there developed
in Italy what could be described as the cornerstone of modern
diplomatic relations, the establishment of the permanent diplomatic
mission. Throughout the early period of the history of diplomacy, it
is apparent that no clear system of permanent international relations
was established. It was not until the states of Italy, in their isolated but
combined state, were set free to focus on the competitive struggle
amongst themselves over the limited territory of the Italian peninsula,
coupled with the 'fear or hope of French intervention',16 that the
need for permanent diplomatic representation arose.17 Behrens
discusses this point well:
All recent writers on the subject are agreed that the practice [of
employing resident ambassadors] must be ascribed to the
emergence of the leading States from conditions of political chaos
to comparative unity under the rule of princes anxious to earn
personal glory by territorial conquest, and to the consequent
development of international rivalries which imposed upon

governments the necessity of acquiring more extensive and
accurate information on their neighbours' doings and intentions
than could be obtained from the sources hitherto available.18
Nicolson, among others, declares the first resident embassy outside
Rome to be that of Nicodemus dei Pontramoli, accredited in 1450 by
Sforza, Duke of Milan, to Cosimo dei Medici in Florence.1'
Mattingly, on the other hand, doubts whether Nicodemus was in fact

an accredited ambassador, declaring him to be merely 'the Republic's
most influential private citizen in Florence'.20 Despite this doubt as to
the exact starting point for the office of resident ambassador, it is
clear that within the next ten or so years, all the principal states of
Italy had established permanent diplomatic relations with one
another.21
Throughout the rest of Europe at this time, the practice of sending
occasional embassies was well established. However, despite the
effects of the diplomacy of Louis XI of France,22 permanent diplo-
matic relations were almost unknown outside Italy.23 This situation
was soon to change. The intervention of the major European powers
into Italy which sparked the wars of Italy signalled also the spread of
the Italian diplomatic method into Europe. As Hill explains:
Among the results of the rivalry for supremacy in Italy, the most
important and the most enduring was the establishment of
permanent diplomatic relations between the chief European
countries ... The plans of Charles VIII of France for the
conquest of Italy suddenly brought Europe to a consciousness of
its peril and of the need and value of alliances between the
powers. In close connection with the great coalitions which
followed was developed the institution of permanent
diplomatic representation.24
The Development of Diplomatic Law under the 'New' Diplomacy

The natural result of this newly found confidence in the institution of
permanent diplomatic relations was to produce in the early sixteenth
century a huge expansion of diplomatic activity within Europe. This
expansion brought with it the need for academic study into the
598 DIPLOMACY &c STATECRAFT
subject of diplomacy and, to an increasing extent, diplomatic law.

Most important among the early treatises on diplomatic law were
Ayrault's impressively titled Lordre, formalite et instruction judiciaire
dont les anciens Grecs et Romains ont usee et accusations publiques
(sinon qu'ils ayent commence a {'execution) conferSs au stil et usage
de nostre France (1576), Gentilis' De Legationibus Libri Tres (1585),
and Hotman's LAmbassadeur (1603). However, it was not until
Grotius published his De Jure Belli Ac Pacts in 1625 that academic

writers began to study contemporary state practice as the foundation
of diplomatic law instead of relying on an extension of Roman
doctrines which provided insufficient explanation of the diplomatic
relations between different states. Of the many excellent treatises on
the subject of diplomacy written after this point, the most notable
include Wicquefort's LAmbassadeur et ses fonctions (1681),
Cornelius Van Bynkershoek's De Foro Legatorum (1721) and Vattel's
Le Droit Des Gens (1750).
Of the many theories which emerged in explanation of the
juridical basis of diplomatic privileges and immunities in the period
of the 'new' diplomacy, two contributed most to the development of
the diplomatic law of the period.25 These are the 'personal represent-
ative' or 'representative character' theory and the 'exterritoriality'
theory. While it is possible to examine each theory in isolation, it is
important to bear in mind the fact that they did not exist indepen-
dently of one another and any precise delimitation of the scope of
each theory must be somewhat artificial.
(1) The 'Representative Character' Theory

The theory or theories which attracted most favour in the early years
of post-permanent diplomatic relations were those which can be
brought under the collective heading of 'representative character',
each of which 'ultimately traces immunity to the sovereignty of the
State which sends the agent'.26 If one examines the works of many of
the great theorists of the sixteenth and seventeenth centuries,
including Grotius, Bynkershoek, Wicquefort and Vattel, it is apparent
that, while each discussed the many different possible bases on which
the law had developed, all saw the character of the diplomatic envoy
as being of paramount importance.
Grotius, having noted that 'the views of those who send ambas-
DIPLOMATIC LAW IN THE RENAISSANCE AND CLASSICAL PERIODS 599
sadors are generally different from the views of those who receive
him, and often directly opposed', concluded that 'Ambassadors, as if
by a kind of fiction, are considered to represent those who sent
them'.27
Almost 100 years later, Bynkershoek explained the effect of the
representative character theory thus:
The sole reason why ambassadors are exempted from the power
of those to whom they have been sent is that they should not,
while performing the duty of their office, change their status
and become subject to another while they are acting as the
representatives of their prince who is generally rival.28
On the other hand, the fiction was not simply that ambassadors were
considered to represent those who sent them and should not be
required to change allegiance, rather that they were entitled to those
privileges and immunities which reflected not just the sovereignty of
the sending sovereign but also his independence, equality and dignity.
According to Wicquefort:
De fait, la raison pourquoi le droit de gens exempte le Ministre
Public de la Jurisdiction de lieu de sa residence, est parcequ'il
represent un Souvrain, sur lequel un autre souvrain n'a ni
superiorite ni jurisdiction; c'est pourquoi il ne la peut etendre sur
son Ambassador non plus.29
The 'representative character' theories extended the privileges and
immunities of diplomatic envoys well beyond mere inviolability.
Immunity from civil and criminal suit was continually asserted during
this period and had become firmly established by the beginning of the
eighteenth century.30 The importance of the 'representative character'
theories to this process was made clear by Bynkershoek, who, having
rejected the sanctity of the diplomat as the basis for immunity,31
declared:
We must therefore look for some other reason why ambassadors
are granted immunity from the ordinary jurisdiction. And on
thinking the matter over you will find this reason consists in the
fact that the status of ambassadors is such that it has come to be
firmly established that an ambassador is not the subject of him
to whom he has been sent but remains the subject of him who
has sent him. On this account he is not regarded as subject to
the jurisdiction of him in whose country he is serving as
ambassador, whether it is a case of a debt or a crime.32
The 'representative character' theories extended diplomatic
privileges and immunities to the extent of imposing a duty to protect
the diplomatic envoy on the receiving sovereign or state. Perhaps the
clearest enunciation of this is to be found in the work of Vattel:

The respect which is due to sovereigns should reflect upon their
representatives and particularly upon an ambassador, as
representing the person of his master in the highest degree ... It
is particularly the duty of the sovereign to whom a minister is
sent to afford security to the person of the minister. To receive
a minister in his representative capacity is equivalent to
promising to give him the most particular protection and to see
that he enjoys all possible safety."
He reinforced this requirement when discussing 'What is due to
ministers in countries through which they pass' by concluding that
they should be given the fullest protection.34
(2) The 'Exterritoriality' Theory
A second theory emerged during this time in explanation of the
privileges and immunities which attached to diplomatic envoys and
their retinue, that is, the theory of 'exterritoriality'. The basis of the
theory is that an ambassador is considered by some fiction to be
resident outside the territory of the receiving state and within that of
the state which sent him, or, alternatively, that the diplomatic
premises are considered to be within the territory of the sending
state. The result is that the ambassador and his suite are considered
to be not simply outside the jurisdiction of the receiving state but
actually outside that state's territory. The fundamental precondition
for the development of this theory and the factor which separated it
from the 'representative character' theories was the reliance on a
distinctly territorial concept of jurisdiction which coincided with the
emergence of the concept of the modern state.35 It appeared to make
sense that, as the concept of the absolute territorial jurisdiction of the
state became the norm, the simplest way to explain diplomatic

privileges and immunities was to invent the fiction that the recipients
of those privileges and immunities were not within the territory of
the jurisdictional state.
As well as the numerous practical difficulties with this approach,
however, it would appear that the origins and theoretical integrity of
the concept of 'exterritoriality' are more than a little dubious,
•writing in 1576, at a time when the majority of jurists insisted that

ambassadors who did not act within the limits of the ambassadorial
functions possessed no immunity whatsoever,34 Pierre Ayrault was the
first jurist to declare of the ambassador: 'II y sera tenu pour absent,
et pour present en son pays'.37
It is Grotius, however, who is most often credited with the
creation of the 'exterritoriality' theory, an attribution which, it is
submitted, is based on a gross misinterpretation of the writings of the
great jurist. Having already established that ambassadors are the
representatives of those who sent them, Grotius continued: 'In conse-
quence, by a similar fiction, ambassadors were held to be outside the
limits of the country to which they were accredited. For this reason,
they are not subject to the municipal law of the State within which
they are living.'38
There is no doubting the highly ambiguous nature of this passage.
It would seem that use of the phrase extra territorium in the original
Latin text was descriptive and was not intended to promote the idea
of exterritoriality as the basis of diplomatic immunity.
It has already been argued that Grotius relied on the represent-
ative character of ambassadors as the primary justification for the
privileges and immunities to which they were entitled. Reference by
him to ambassadors being 'held to be outside the limits of the country
to which they were accredited' was intended as nothing more than a
description of the practical result of the ambassador being outside the
jurisdiction of the receiving state by virtue of his being the represent-
ative of an independent sovereign. It was thus wholly consistent with
the 'representative character' theories of diplomatic law.3'
Of the many jurists to emerge after Grotius, many seemed to play
down the significance of the fiction of exterritoriality. Zouche, for
example, believed that ambassadors should be sent home for punish-
ment but did not refer to any notion of exterritoriality, apparently
rejecting it as the basis of the ambassador's privileges and immunities.40

Ogden contends that it was the misinterpretation of Grotius' writings
by a number of later writers, including Bynkershoek, Wolff, Vattel and
De Martens, which gave rise to the theory of exterritoriality.41
Credence is given to this thesis if one examines the work of
Bynkershoek, who clearly misquoted Grotius when he declared:
Grotius in his De Jure Belli ac Pads ... has expressed it in these
words: "Therefore, I am wholly of the opinion that the nations

decided that the general custom which subjects anyone living in
a territory other than his own to the laws of that territory
should admit an exception in the case of ambassadors; namely
that insomuch as they are regarded by a sort of fiction as
identical with the person sending them, they should also, by a
similar fiction, be declared outside the territory and so not liable
to the civil law of the people among whom they are living."42
This misquote of Grotius' words extends the significance of the
element of exterritoriality contained therein from being merely
descriptive of the status of an ambassador to the extent that it is a
requirement for the granting of privileges and immunities that they
should be declared outside the territory of the receiving state.
Bynkershoek did, on occasion, refer to the fact that ambassadors
were thought of as being outside the territory of the receiving state.43
On the other hand, Bynkershoek's 'sole reason' for diplomatic
privileges and immunities was that the ambassador, as a represent-
ative of his sovereign, remains subject to that sovereign's jurisdiction
and not to that of the sovereign to whom he has been sent.44 Thus, in
spite of his misquote of Grotius, Bynkershoek appeared to reject the
theory of 'exterritoriality' as a basis for diplomatic privileges and
immunities.
So did Vattel, whose statement to the effect that ambassadors are
not subject to the jurisdiction of the country to which they are sent45
cannot be construed as being supportive of the 'exterritoriality'
theory.45 It may be concluded of the most influential jurists of the
periods presently under discussion that the majority used the fiction
of 'exterritoriality' in an essentially descriptive manner, relying on
other theories, primarily the 'representative character' theories, to
provide the legal basis for diplomatic privileges and immunities.
It was in practice, however, that the 'exterritoriality' theory was

most in evidence. Adair informs us of the 'remarkable series of cases
in which England was involved under Elizabeth I'.47 In all cases cited
by Adair, full diplomatic privileges and immunities were granted, if
occasionally rather belatedly, leading him to conclude:
... throughout the sixteenth and seventeenth centuries, so far
as can be discovered, no ambassador was ever put to death, nor
even subjected to any very prolonged imprisonment for crimes

committed, unless he was a subject of the State to which he had
been sent; and an ambassador's position often rendered him a
centre of such sedition as, in a subject, would have met with
immediate execution.48
The period of history presently under discussion was a time of great
diplomatic intrigue.49 The principal ambassadorial function was the
collection and collation of information to be relayed back to the
ambassador's home government. On the other hand, in many situa-
tions, the ambassador's skills as a negotiator may have been the only
means of averting armed conflict.50 The job, by its very nature, left
ambassadors open to charges of spying and, in more than a few cases,
treason. While it is undeniable that many of the diplomatic envoys of
the time did involve themselves in plots against the authorities of the
country to which they had been sent, many others did not and if it
were not for the granting of diplomatic privileges and immunities
such individuals would have found themselves in an invidious
position. Furthermore, many of the crimes of which ambassadors
were accused were capital offences. The result was a demand by
sending states for more and more immunities, ostensibly to protect
their envoys from interference. The need for states at the time to
access the information gathered by their representatives, coupled
with the principle of reciprocity, resulted in most demands for
increased privileges and immunities being granted.
The result of the 'exterritoriality' theory being pursued to its
practical conclusion, however, was that immunity extended not only to
an ambassador's person, his family and official staff but also to all
unofficial members of the household and any hangers-on, all of whom
could apparently claim diplomatic immunity for almost everything
they did. On the related question of asylum, it would seem that 'an
embassy could afford protection to all offenders except those who were
suspect of high crimes against the state itself'.51 Further, as a result of
the reciprocal demands for increased immunity, a situation quickly
developed in practice whereby not only the embassy was considered to
be foreign territory and therefore immune from local jurisdiction, but
also vast areas of the surrounding city, thus creating the so-called
franchise du quartier, and making these areas dens for outlaws and
criminals. This was especially so in Rome52 and Madrid." Adair
concludes from his study of the immunities granted to ambassadors

during the sixteenth and seventeenth centuries that 'practice had dealt
far more generously with the ambassador than the theorists would
allow'.54
(3) The Necessity of the Diplomatic Function

The necessity of the diplomatic function has always been recognized
as a valid basis for the development of diplomatic law even before the
establishment of permanent diplomatic relations. In its early incarn-
ation, however, necessity was used simply to justify the inviolability
of the diplomatic agent and certain limited rights relevant thereto.
Certainly, before the establishment of permanent diplomatic relations
the need for diplomatic privileges and immunities was somewhat
restricted. A third theory which began to evolve around the time of
the establishment of permanent diplomatic relations, possibly as a
reaction to the excesses associated with the 'exterritoriality' theory
and, to a lesser extent, the 'representative character' theories, was the
'functional necessity' theory. As its name suggests, this theory has
regard to the proper functioning of the diplomatic process and
requires that diplomatic agents are bestowed with such privileges and
immunities as are required in order that they can fully and properly
perform their diplomatic function.
Among the early writers, such as Grotius, the necessity of the
diplomatic function continued to be important as a justification for
the inviolability of the diplomatic agent and his property. Thus,
according to Grotius, 'an ambassador ought to be free from all
compulsion - such compulsion as affects the things of which he has
need as well as that which touches his personality - in order that he
may have full security'.55 So too Bynkershoek, who was concerned
about the need to protect the whole good of the embassy:
But if you should imprison the ambassador and subject him to

punishment at the hands of him in whose realm he is sojourn-
ing, then with the fall of the delinquent ambassador down
comes also the whole good of the embassy, and even though he
has not been guilty of any crime, you expose him in unlimited
degree to accusations of all sorts.56
Wicquefort was even clearer about the importance of the diplomatic
function:
Et il n'y a point de juge qui puisse extendre sa jurisdiction sur
les personnes que ce droit protege; parcequ'il troubleroit un
commerce, dont la liberte est fondee sur une necessite
indispensible, et il osteroit de celui des hommes le moyen de
conserver la societe, que ne pburroit pas subsister sans ce
principe...57
It should be noted, however, that none of these jurists regarded the
need to protect the function of the mission as the primary juridical
basis of the law. Of all the early jurists, it was Vattel who placed
greatest emphasis on the necessity of the diplomatic function:
Now, ambassadors and other public ministers are necessary
instruments in the maintenance of that general society of
Nations and of that mutual intercourse between them. But they
can not accomplish the object of their appointment unless they
are endowed with all the prerogatives necessary to perform the
duties of their charge safely, freely, faithfully and successfully.
Consequently, the same Law of Nations which obliges Nations
to receive foreign ministers likewise clearly obliges them, in
receiving those ministers, to accord them all the rights they
require and all the privileges necessary for the performance of
their duties.58
Vattel was not concerned solely with the diplomatic function as an
entity in itself. For Vattel the important factor was the ability of an
ambassador to complete his mission efficiently and free from inter-
ference. He continued:
It is necessary that he should have no snares to apprehend, that
he should not be interfered with in the performance of his
duties by any intrigues, that he should have nothing to hope and

nothing to fear from the sovereign to whom he is sent.
Consequently, in order to insure the success of his mission, he
must be independent of the sovereign authority, of both the civil
and criminal jurisdiction of the country ... if an ambassador
could be indicted for ordinary misdemeanours, and criminally
prosecuted, imprisoned, and punished, if he could be sued in
civil cases, it would often happen that he would neither have the
power, nor the time, nor the freedom of mind which the affairs
of his sovereign required.59
As a result of his emphasis on the ambassadorial function, Vattel was
able to limit the apparently absolute privileges and immunities
granted to ambassadors which accompanied the 'representative
character' and 'exterritoriality' theories. He concluded:
The independence of the foreign minister must not be
converted into unrestrained licence; it does not release him
from the duty of conforming in his external conduct to the
customs and laws of the country in all that does not relate to his
character as an ambassador; he is independent, but he has not
the right to do whatever he pleases.'0
As has already been noted, Vattel, like the majority of his
contemporaries, relied primarily on the ambassador's representative
character as the fundamental basis of diplomatic law. It is apparent
from the passages of his work quoted above, however, that he placed
much emphasis on the function of the ambassador, if only to add
further weight to the principle that the ambassador was at all times
to be regarded as independent. The continued relevance of the
passages of Vattel's work quoted above makes it clear that he was one
of the first and most influential writers in the move towards modern
diplomatic law.
Law and Diplomacy in the Modern Period

The renaissance and classical periods were undoubtedly periods of
great development in the history of both diplomacy and diplomatic
law. Following on from the establishment of permanent diplomatic
relations in the fifteenth century, 'the time was soon to come when
no nation, no princely house could well dispense with a diplomatic
establishment'.61 Certainly, the development of diplomatic methodo-
logy did not stop with the outbreak of the French Revolution.
Indeed, if peace is the mark of successful diplomacy then the
diplomacy which followed the Vienna settlement of 1814-15 can be
considered far more successful than that of the previous three
centuries having been 'a period of unprecedented peace and of a

hitherto unknown stability in international relations and most State
frontiers'."
The twentieth century has witnessed its own revolutionary
transformation in diplomatic method from old diplomacy to new, a
process which has culminated in the establishment of so-called
'conference diplomacy'. The seeds of this new diplomacy were sown
during the nineteenth century. Nicolson points to three factors which
influenced the development of diplomatic method during the nine-
teenth century and led to the development of the new diplomacy.
These are first, 'the growing realization of the importance of public
opinion'," secondly, the revolutionary improvement in communi-
cations,64 and, finally, the collapse of the Concert of Europe.*5
While the change from the old diplomacy to the new is tangible, it
would be wrong to overstate the effects of this apparently revolu-
tionary change. While there has undoubtedly been a vast increase in
the amount of multilateral diplomacy (perhaps the most visible aspect
of the new diplomacy), it is clear that the primary role of ambassadors
and the diplomatic mission has changed little since the establishment
of permanent diplomatic relations. The argument that diplomacy has
somehow lost its way in pursuit of democracy" does not stand up to
analysis.67 The new diplomacy would seem to be no more than a
necessary development to meet the demands of modern international
society.68 The most fundamental change in diplomatic method
undoubtedly occurred in the fifteenth century with the establishment
of permanent diplomatic relations and it was during the next three
centuries that the development of diplomacy reached its zenith.
Diplomatic law too has developed since the end of the classical
period. The beginning of the nineteenth century saw a move towards
the codification of diplomatic law in multilateral agreements. Annex
XVII of the Acts of the Congress of Vienna in 1815, for example,
constituted the first multilateral agreement purporting to regulate

aspects of diplomatic relations." Subsequently, the law was the subject
of numerous attempts at codification, including the Regulation of
Cambridge, adopted by the Institute of International Law (1895), the
draft codifications of the American Institute of International Law
(1925), the Committee of Experts for the Progressive Development of
International Law of the League of Nations (1926), and the Harvard
Law School (1932). This process culminated with the adoption of the
Vienna Convention on Diplomatic Relations in 1961.
In fact, diplomatic law has developed to such an extent that the
'exterritoriality' and 'representative character' theories have now all
but been abandoned. It is clear that the practical excesses associated
with the 'exterritoriality' theory coupled with its dubious theoretical
integrity had been identified by the leading jurists even during the
period when the concept of 'exterritoriality' dominated the practical
application of diplomatic law. As has been pointed out above, all the
great jurists including Grotius, Bynkershoek and Vattel relied on
other bases for the explanation of diplomatic privileges and immuni-
ties while utilizing the fiction of 'exterritoriality' in a primarily
descriptive sense. By the beginning of the twentieth century, 'exter-
ritoriality' both as a theory and as a means of description had been
thoroughly discredited:
It is perfectly clear that exterritoriality is a fiction which has no
foundation either in law or in fact, and no effort of legal
construction will ever succeed in proving that the person and
the legation buildings of a diplomatic agent situated in the
capital of State X are on territory which is foreign from the
point of view of the State in question. There are sound practical
as well as theoretical reasons for abandoning the term
"exterritoriality", for the mere employment of this unfortunate
expression is liable to lead to errors and to legal consequences
which are absolutely inadmissible.70
The validity of the 'representative character' theories began seriously to
be challenged during the attempts at codification referred to above.71 It
is clear from the Preamble to the 1961 Convention that the
representative character of the diplomatic mission continues to be of
relevance.72 The halcyon days of the 'representative character' theory,
where it was required that an ambassador be given privileges and

immunities simply because of the fact that the ambassador represented
a sovereign or state whose sovereign status demanded respect and
dignity, have long since gone. While the Vienna Convention specifically
states that diplomatic missions are to be regarded as representing states,
the clear purpose of diplomatic privileges and immunities under the
Convention is to 'ensure the efficient performance of the functioning of
diplomatic missions'.73
Nevertheless, in spite of the demise of the 'exterritoriality' theory

and the reduced influence of the 'representative character' theories,
it is clear that many of the legal principles developed during the
renaissance and classical periods remain relevant to modern diploma-
tic law. Indeed, it was felt necessary in 1961 to retain reference to the
'representative character' theories in the Preamble to the Vienna
Convention in order to assist in the interpretation of certain rules
contained in the Convention which were clearly declarative of
customary international law.74 Further, at risk of misinterpretation, it
remains possible on the basis of the rules contained in the Vienna
Convention to describe the position of the diplomatic mission and, to
a certain extent, the diplomatic agent, as being exterritorial in terms
of the jurisdiction which the receiving state is entitled to exercise in
exactly the same way as Grotius described the jurisdictional situation
in 1625.
Conclusions
The period from 1450 to 1789 was undoubtedly one of great
development in both diplomacy and diplomatic law. Indeed, the period
began with the most radical development in the history of diplomacy,
that is, the establishment of permanent diplomatic relations, a develop-
ment which was to have immeasurable effects on both diplomatic
method and diplomatic law. Even with the enormous changes which
have occurred since that time, it is clear that much of the diplomatic
methodology of the period survives intact to this day. As for diplomatic
law, it cannot be denied that the period can be characterized by the
almost continuous expansion of diplomatic privileges and immunities
based on the 'representative character' and 'exterritoriality' theories.
On the other hand, it is clear that the vast majority of diplomatic
privileges and immunities developed during that period survive to this

day, with only those privileges and immunities which were based
entirely on the discredited 'exterritoriality' theory having been
abandoned.
It is submitted that the necessity of the diplomatic function is and
always has been a necessary element of the juridical basis of diplomatic
law. It is interesting to note, however, that it was not until the
eighteenth century that jurists such as Vattel began to have regard to

the necessity of the diplomatic function as more than just a basis for
the inviolability of the diplomatic agent and his property. It is argued,
therefore, that the necessity of the diplomatic function in and of itself
did not provide a firm enough basis on which to develop diplomatic
privileges and immunities subsequent to the establishment of
permanent diplomatic relations. It was necessary for the leading
contemporary jurists to look to other bases in order to explain the vast
increase in diplomatic privileges and immunities occurring in practice.
The 'representative character' theories and the 'exterritoriality' theory
were creatures of their time, a fact witnessed by the demise of both
theories in modern diplomatic law. Nevertheless, it is clear that the
emergence of diplomatic privileges and immunities into the settled
regime apparent in modern diplomatic law would not have been
possible without the developments which took place during the
renaissance and classical periods.
NOTES
1. See Harold Nicolson, The Evolution of Diplomatic Method (London: Constable Co.
Ltd, 1949), at p.2 where Nicolson speculates that successful negotiation over, for
example, the delimitation of hunting territories would have been impossible if the
representatives of either party were murdered on arrival. He concludes: 'Thus, the first
principle to become firmly established was that of diplomatic immunity'.
2. On Greek and Roman diplomacy see, generally, Coleman Phillipson, The International
Law and Custom of Ancient Greece and Rome (London: MacMillan & Co. Ltd, 1911);
Hill, A History of Diplomacy in the International Development of Europe (London:
Longman, Green & Co., 1905); Harold Nicolson, Diplomacy (Oxford: OUP, 2nd edn.
1949); Nicolson, Evolution; Young, 'The Development of the Law of Diplomatic
Relations', British Yearbook of International Law, Vol.40 (1964), p.141.
3. For a discussion of the diplomatic relations of the Ancient Indians and Chinese, see
Ogden, Juridical Bases of Diplomatic Immunity (New York: John Byrne & Co., 1936),
pp.11-13.
4. Gehtili, De Legationibus Libri Tres (Classics of International Law Series, 1964) Book I,
Ch.XI, p.28.
5. Infra.
6. Two of this century's most eminent writers on diplomacy disagree as to the importance
of the College of Fetials. David Hill sees the institution as the principal source of
diplomatic activity in Rome at the time. He informs us that the College of Fetials was
a sacred body concerned exclusively with the task of negotiation. It had the power to
declare war and conclude peace and was also empowered to conclude treaties on
behalf of the Roman people. (Hill, History, Vol.1, p.8.) Harold Nicolson, on the other
hand, compares the function of the College with those of the Treaty Department in our
own Foreign Office. He outlines the duties of the College as including such tasks as
'preserving treaty documents, dealing with matters of protocol, and seeing to it that
war was declared or peace concluded in proper ceremonial form' (Nicolson,

Evolution, p.15).
7. Ibid., p.27.
8. Ogden, Juridical Bases of Diplomatic Law, p.17.
9. Viswanatha, International Law in Ancient India (Bombay, 1925), pp.29-30.
10. Oppenheim, International Law (London: Ed. Lauterpacht, 6th edn. 1947) Vol.1, Pt.III,
Ch.II, p.687.
11. This is the view taken by Ogden, who declares: 'The ancients, realising the importance
of an ambassador's functions, employed officials already possessed of sanctity to go
upon diplomatic missions' (Juridical Bases of Diplomatic Immunity, p.29).
12. On the 'new' diplomacy in general, see M.S. Anderson, The Rise of Modem Diplomacy
1450-1919 (London: Longman, 1993), Ch.1, 'The "New Diplomacy" of the Fifteenth
and Sixteenth Centuries'.
13. Byzantine diplomacy, unlike that of Greece and Rome, was well organized and
effective. Byzantine emperors were the first to introduce a department of their
government to deal with external affairs, doing so long before similar institutions were
created elsewhere. So too were the Byzantines the first to develop extensively the art
of negotiation, which they exercised with 'consummate ingenuity' (Nicolson,
Diplomacy, p.10). Delegations to Byzantium were met at the border and conducted by
the most circuitous and difficult route to the capital in order to give an impression of
impregnability. In Constantinople itself, the visitors were entertained with endless
military reviews and bestowed with many honours. At the same time, they were kept
under strict surveillance, all their movements being monitored in order to guard
against spying. As Nicolson so aptly puts it, 'the ceremony of their reception was
organised with splendour and fraud' (Nicolson, Evolution, p.26).
14. It was Venice that learned most from its relations with Byzantium. The Venetians added
their own refinements to the Byzantine diplomatic method. They were, for example,
the first to create an organized system of diplomacy, preserve their state archives in
diplomatic forms and keep their missions abroad supplied with regular news-letters.
On the other hand, the Venetians can be criticized for their belief that all foreign
ambassadors had come to spy (Nicolson, Evolution, p.27).
15. Mattingly, Renaissance Diplomacy (London: Penguin Books, 1955), p.56.
16. Hill, History, Vol.II, p.153.
17. Mattingly, Renaissance Diplomacy, p.57.
18. B. Behrens, 'Origins of the Office of English Resident Ambassador in Rome', English
Historical Review, Vol.49 (1934), p.640.
19. Nicolson, Evolution, p.33. See also Hill, History, Vol.II, p.154.
20. Mattingly, Renaissance Diplomacy, p.79.
21. Nicolson, Evolution, p.33.
22. Hill, History, Vol.II, p.155: 'As the international mechanism set in motion by the King
of France became more complicated, the time was soon to come when no nation, no
princely house, could well dispense with a diplomatic establishment'.
23. 'Even the great powers were hardly more advanced in their international intercourse
than the barbarian kingdoms of the Middle Ages.' Ibid., p.309.
24. Ibid., pp.308-9.
25. See, for example, the memorandum prepared by the Secretariat of the International
Law Commission entitled 'Diplomatic Privileges and Immunities', Document
A/CN.4/98, Yearbook of the International Law Commission, 1956, Vol.11, p.129,
Section B at pp.157-161. The memorandum also mentions the 'functional necessity'
theory which will be commented on later in this paper.
26. Ogden, Juridical Bases of Diplomatic Law, p.105.
27. Grotius, De Jure Belli Ac Pads (1625), p.443.
28. Bynkershoek, De Foro Legatorum (Classics of International Law Series, 1946), Ch.VIII,
p.44.
29. Wicquefort, L'Ambassadeur et ses fonctions (Classics of International Law Series), Liv.I,
S.XXVII.
30. See M.S. Anderson, The Rise of Modem Diplomacy (London: Longman, 1993) at p.54
which refers to the case of A.A. Matveev, the Russian Ambassador to London who was
arrested in September 1708 for failure to pay outstanding debts. He spent just a few
hours in jail and when he was released was accompanied to his home by the heads of
all the foreign missions in London. Professor Anderson asserts that '[T]he following
year saw the passing by Parliament of legislation protecting foreign diplomats against
criminal and civil proceedings — the most explicit undertaking of this kind hitherto
given by any State - and a special mission to Moscow to apologise to Peter I for the
insult offered to his representative'.
31. Bynkershoek, De Foro Legatorum, p.28: 'Sanctity of a person had never exempted
anyone from jurisdiction of a magistrate to whom the party concerned is subject.'
32. Infra.
33. Vattel, The Law of Nations (Classics of International Law Series, 1916), Vol.III, Ch.VII,
p.371.
34. Ibid., p.372: 'It is true that only the prince to whom the minister is sent is under
obligation and special agreement to see that the minister enjoys all the rights attached
to his character; but other sovereigns through whose territory he passes may not refuse
him the respect which is due to the minister of a sovereign and which Nations mutually
owe to one another. Above all, they should give him the fullest protection.'
35. See Ogden, Juridical Bases of Diplomatic Law, pp.63-4, who commented that it was
'[N]ot until there had been a repudiation of the feudal idea of over-lordship, and a
development of the idea of complete authority over the national territory, was the
concept of territorial sovereignty and exclusive jurisdiction finally established'.
36. For a full statement of these views, see Adair, The Exterritoriality of Ambassadors in the
Sixteenth and Seventeenth Centuries (London: Longman, 1929), pp.14-26.
37. Ayrault, L'ordre, formalité et instruction judiciaire, Liv.I, Pt.IV s.13, 15. Quoted in
Adair, Extraterritoriality, p.16. Ogden says of Ayrault that '[he] did not in any way
infer that extra-terriroriality was a rational basis of diplomatic immunity ... he worked
out other philosophical bases for the complete immunity with which he believed
ambassadors were endowed' (Juridical Bases, p.73 (notes)).
38. Grotius, De Jure Belli Ac Pacis, p.443.
39. Adair says of this passage: 'This approximates very closely to the usual modern doctrine
that an ambassador's privileges result from his diplomatic character and not from any
real theory of exterritoriality, which is a fiction invented in order to convey a more
striking image of such immunity from local jurisdiction' (Extraterritoriality, p.28). See
also Ogden, Juridical Bases, p.73: 'Grotius believed the fiction of extra-territoriality to
be descriptive of the conditions resulting from a philosophically ascertained principle
which he believed should govern States in their relationship with each other'.
40. The work of Zouche is discussed by Adair, Extraterritoriality, p.30. See also Ogden,
Juridical Bases, pp.73-4.
41. Ogden, Juridical Bases, p.74.
42. Bynkershoek, De Foro Legatorum, Ch.VIII, p.43 (emphasis added).
43. Ibid., p.27: 'ambassadors are thought of as being outside the territory of him to whom
they are sent as ambassadors and as being still subjects of the prince who sent them,
and whose majesty might indeed be said to be injured in the person of his ambassador.'
Infra. See also Ch.VIII, p.44.
44. Infra. See also Ch.VIII, p.44.
45. Vattel, The Law of Nations, Vol.11, Bk.IV, Ch.viii, s.110, p.389. For a contrary view, see
Ogden, Juridical Bases, p.77.

46. For a contrary view, see Ogden, Juridical Bases, p.77.
47. Adair, Extraterritoriality, Ch.III, p.64. These included the case of Don Guerau de Spes,
the Spanish ambassador in England, the case of the Bishop of Ross, the envoy of Mary
Queen of Scots, the case of the Spanish ambassador, Mendoza, and that of L'Aubspine,
the French ambassador.
48. Infra.
49. See Sir Herbert Butterfield 'Diplomacy' in Hatton and Anderson, Studies in Diplomatic
History (London: Longman, 1970), p.357, at p.361: 'In the earlier, cruder days, it was
particularly true that the history of foreign policy ran too much to sensationalism and
had too much of the flavour of melodrama, shocking one with its Machiavellian ruses,
its confidence tricks and its attempts at blackmail.'
50. See, for example, Butterfield, 'Diplomacy', where, in attempting to define diplomacy
he declares 'that something more than a mere difference of opinion is involved,
something more than a question of understanding, or failing to understand, the other
party's point of view. Initially at least, the need for diplomacy arises because there is a
conflict of wills, resulting perhaps from the collision of interests ... Diplomacy may
include anything short of actual war, therefore, and sometimes the kindest thing that
one can say of it is that it is better than having the guns actually firing'.
51. Adair, Extraterritoriality, p.225.
52. Professor Anderson informs us that '[B]y the eighteenth century the position in Rome
had become so impossible (since not merely considerable areas around foreign
embassies but also churches and the houses of cardinals offered refuge to criminals)
that the papal police had to be equipped with special maps to show them which streets
they were permitted to pass through' (The Rise of Modem Diplomacy, p.56).
53. See Adair, Extraterritoriality, pp.220-23, who quotes the Embajada Espagnole: 'The
quarter of each ambassador came to be a thieves' sanctuary, and the whole district a
refuge of vagabonds and scoundrels. Such was the lawlessness, that almost daily
conflict took place between the ambassadors' servants and the lower police officials'.
54. Infra.
55. Grotius, De Jure Belli Ac Pacis, Vol.11, Bk.II, Ch.XVIII, p.448. Bynkershoek, De Foro
Legatorum, Ch.XVII, p.93.
56. Bynkershoek, De Foro Legatorum, Ch.XVII, p.93. Wicquefort, L'Ambassadeur et ses
fonctions, Liv.I, s.XXVII, p.383.
57. Wicquefort, L'Ambassadeur et ses fonctions, Liv.I, s.XXVII, p.383. Vattel, The Law of
Nations, Bk.IV, Ch.VII, p.376.
58. Vattel, The Law of Nations, Bk.IV, Ch.VII, p.376.
59. Ibid.
60. Ibid., p.377.
61. Hill, A History of Diplomacy, Vol.II, p.155.
62. Anderson, The Rise of Modern Diplomacy, p.181
63. '... during the nineteenth century the regard for public opinion became an ever
increasing factor in the transition between the old diplomacy and the new'. Nicolson,
Diplomacy, pp.37-8.
64. 'The steam engine, the telegraph, the aeroplane and the telephone have done much to
modify the practices of the old diplomacy' (Nicolson, Diplomacy, p.38). For a
summary of such arguments, see Nicolson, Evolution, Ch.IV.
65. Nicolson saw the Concert of Europe as 'more than a purely inoperative diplomatic
catchword or ... a phrase designed to justify the domination of the Great Powers. It
represented a tacit understanding between the five Great Powers that there were
certain common standards of dignity, humanity and good faith which should govern
the conduct of these Powers in their relations with each other and in their dealings with
less potent or less civilised communities' (ibid, p.37). Nicolson is deeply critical of the
transition from the old diplomacy to the new: 'The old systems of authority, such as
the Balance of Power, the Concert of Europe, and the discipline of the Great Powers
had been discredited; ... in place of the old methods of stability, a new method of the
utmost instability was introduced' (Evolution, p.88).
66. For a summary of such arguments, see Nicolson, Evolution, Ch.IV
67. See, for example, Sasson Sofer, 'Old and New Diplomacy: A Debate Revisited', Review
of International Studies, Vol.14 (1988), p.195, at p.203: 'Frequent sojourns to foreign
capitals by Heads of State and Foreign Ministers do not necessarily detract from the
diplomat's importance. Politicians are no substitute for the accumulative experience of
professional diplomats abroad'. See also Do Nascimento E Silva, Diplomacy in
International Law (1972), at p.14: '... the duties of diplomatic missions have increased
and continue to increase daily owing to the greater interdependence that now exists
among nations and the expansion of interstate political, economic, commercial,
cultural and social interests.'
68. 'Prolonged negotiations between diplomats usually precede the conclusion of an
agreement's final details by Heads of States. Rather than signalling a new era,
conference diplomacy may be viewed as the climax of traditional diplomatic activity
... Summit meetings are suitable and desirable in times of crisis; however, they cannot
serve as a permanent substitute for traditional diplomacy.' Sofer, Old and New
Diplomacy, p.204.
69. The main purpose of the Agreement was to establish three categories of diplomatic
representative and to deal with the problem of precedence. For a discussion of the
terms and effect of Annex XVII of the Acts of the Congress of Vienna and the Protocol
of the Conference of Aix-La-Chappelle (1818), which added a fourth category of
diplomatic representative, see the Memorandum prepared by the ILC Secretariat on
Diplomatic Intercourse and Immunities, Document A/CN.4/98, 1956, Yearbook of the
International Law Commission, Vol.11, p.133.
70. Report of Special Rapporteur Diena to the Sub-Committee on Diplomatic Immunities
of the Committee of Experts for the Progressive Codification of International Law,
League of Nations Document, C.45.M.22.1926, American Journal of International
Law, Vol.20, No.153 (Supp. 1926).
71. '... the draft conventions ... such as the 1925 draft of the American Institute of
International Law, the 1929 proposals of the Institute of International Law, the
Harvard Research draft, which, in effect, repudiate the theory of 'exterritoriality', also
seem highly reluctant to accept the theory of the agent's representative character.'
Memorandum on 'Diplomatic Intercourse and Immunities' prepared at the request of
Mr A.E.F. Sandstrom, Special Rapporteur to the ILC, UN Document A/CN.4/98,
1956, Yearbook of the International Law Commission, Vol.11, p.130 at 160.
72. Paragraph 4 of the Preamble to the Vienna Convention reads as follows: 'Realizing that
the purpose of such privileges and immunities is not to benefit individuals but to ensure
the efficient performance of the functions of diplomatic missions as representing State'
(emphasis added).
73. Vienna Convention on Diplomatic Relations 1961, Preamble, para.4.
74. See, for example, the waiver provision (Article 32). Mr Bartos, the Yugoslav delegate
to the Vienna Conference, pointed out that inclusion of a provision referring to
functional necessity as the sole basis of diplomatic privileges and immunities would
imply an obligation to waive diplomatic privileges and immunities where laws or
regulations had been infringed. UN Doc A/Conf.20/14, United Nations Conference on
Diplomatic Intercourse and Immunities, Official Records, Vol.1, p.131. Perhaps a
clearer and more accurate interpretation of the waiver provision under these
conditions would be that there was an implied obligation to waive diplomatic
privileges and immunities where laws and regulations had been infringed and to do so
would not impair the functioning of the diplomatic mission.

The Theory and Practice of Diplomatic Law in The Renaissance and Classical Period

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Diplomacy & Statecraft

The theory and practice

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The roots of diplomatic law lie buried in ancient history, making it

privileges and immunities which characterized this period of the

survives to this day.

Diplomatic Law before the Fifteenth Century

occasions when they acted in a diplomatic capacity'.1 Finally, with

the modern international law was known, ambassadors

The Development of the 'New' Diplomacy

much to the development of many disciplines, did not excel in the

which can be regarded as the effective starting point of modern

development of international rivalries which imposed upon

Mattingly, on the other hand, doubts whether Nicodemus was in fact

The Development of Diplomatic Law under the 'New' Diplomacy

subject of diplomacy and, to an increasing extent, diplomatic law.

Grotius published his De Jure Belli Ac Pacts in 1625 that academic

(1) The 'Representative Character' Theory

clearest enunciation of this is to be found in the work of Vattel:

state became the norm, the simplest way to explain diplomatic

•writing in 1576, at a time when the majority of jurists insisted that

rejecting it as the basis of the ambassador's privileges and immunities.40

words: "Therefore, I am wholly of the opinion that the nations

It was in practice, however, that the 'exterritoriality' theory was

even subjected to any very prolonged imprisonment for crimes

concludes from his study of the immunities granted to ambassadors

(3) The Necessity of the Diplomatic Function

But if you should imprison the ambassador and subject him to

duties by any intrigues, that he should have nothing to hope and

Law and Diplomacy in the Modern Period

centuries having been 'a period of unprecedented peace and of a

constituted the first multilateral agreement purporting to regulate

where it was required that an ambassador be given privileges and

Nevertheless, in spite of the demise of the 'exterritoriality' theory

privileges and immunities developed during that period survive to this

eighteenth century that jurists such as Vattel began to have regard to

war was declared or peace concluded in proper ceremonial form' (Nicolson,

Ogden, Juridical Bases, p.77.

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