Page:EB1911 - Volume 10.djvu/98

Rh EXTENUATING CIRCUMSTANCES. This expression is used in law with reference to crimes, to describe cases in which, though an offence has been committed without legal justification or excuse, its gravity, from the point of view of punishment or moral opprobrium, is mitigated or reduced by reason of the facts leading up to or attending the commission of the offence. According to English procedure, the jury has no power to determine the punishment to be awarded for an offence. The sentence, with certain exceptions in capital cases, is within the sole discretion of the judge, subject to the statutory prescriptions as to the kind and maximum of punishment. It is common practice for juries to add to their verdict, guilty or not guilty, a rider recommending the accused to mercy on the ground of grave provocation received, or other circumstances which in their view should mitigate the penalty. This form of rider is often added on a verdict of guilty of wilful murder, a crime as to which the judge has no discretion as to punishment, but the recommendation is sent to the Home Office for consideration in advising as to exercise of the prerogative of mercy. Quite independently of any recommendation by the jury, the judge is entitled to take into account matters proved during the trial, or laid before him after verdict, as a guide to him in determining the quantum of punishment.

Under the French law (Code d’instruction criminelle, art. 345), it is the sole right and the duty of a jury in a criminal case to pronounce whether or not the commission of the offence was attended by extenuating circumstances (circonstances atténuantes). They are not bound to say anything about the matter, but the whole or the majority may qualify the verdict by finding extenuation, and if they do, the powers of the court to impose the maximum punishment are taken away and the sentence to be pronounced is reduced in accordance with the scale laid down in art. 463 of the Code pénal. The most important result of this rule is to enable a jury to prevent the infliction of capital punishment for murder. In cases of what is termed “crime passionel,” French juries, when they do not acquit, almost invariably find extenuation; and a like verdict has become common even in the case of cold-blooded and sordid murders, owing to objections to capital punishment.

EXTERRITORIALITY, a term of international law, used to denominate certain immunities from the application of the rule that every person is subject for all acts done within the boundaries of a state to its local laws. It is also employed to describe the quasi-extraterritorial position, to borrow the phrase of Grotius, of the dwelling-place of an accredited diplomatic agent, and of the public ships of one state while in the waters of another. Latterly its sense has been extended to all cases in which states refrain from enforcing their laws within their territorial jurisdiction. The cases recognized by the law of nations relate to: (1) the persons and belongings of foreign sovereigns, whether incognito or not; (2) the persons and belongings of ambassadors, ministers plenipotentiary, and other accredited diplomatic agents and their suites (but not consuls, except in some non-Christian countries, in which they sometimes have a diplomatic character); (3) public ships in foreign waters. Exterritoriality has also been granted by treaty to the subjects and citizens of contracting Christian states resident within the territory of certain non-Christian states. Lastly, it is held that when armies or regiments are allowed by a foreign state to cross its territory, they necessarily have exterritorial rights. “The ground upon which the immunity of sovereign rulers from process in our courts,” said Mr Justice Wills in the case of Mighell v. Sultan of Johore, 1804, “is recognized by our law, is that it would be absolutely inconsistent with the status of an independent sovereign that he should be subject to the process of a foreign tribunal,” unless he deliberately submits to its jurisdiction. It has, however, been held where the foreign sovereign was also a British subject (Duke of Brunswick v. King of Hanover, 1844), that he is amenable to the jurisdiction of the English Courts in respect of transactions done by him in his capacity as a subject. A “foreign sovereign” may be taken to include the president of a republic, and even a potentate whose independence is not complete. Thus in the case, cited above, of Mighell v. Sultan of Johore, the sultan was ascertained to have abandoned all right to contract with foreign states, and to have placed his territory under British protection. The court held that he was, nevertheless, a foreign sovereign in so far as immunity from British jurisdiction was concerned. The immunity of a foreign diplomatic agent, as the direct representative of a foreign sovereign (or state), is based on the same grounds as that of the sovereign authority itself. The international practice in the case of Great Britain was confirmed by an act of parliament of the reign of Queen Anne, which is still in force. The preamble to this act states that “turbulent and disorderly persons in a most outrageous manner had insulted the person of the then ambassador of his Czarish Majesty, emperor of Great Russia,” by arresting and detaining him in custody for several hours, “in contempt to the protection granted by Her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other public ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable.” This preamble has been repeatedly held by our courts to be declaratory of the English common law. The act provides that all suits, writs, processes, against any accredited ambassador or public minister or his domestic servant, and all proceedings and judgments had thereupon, are “utterly null and void,” and that any person violating these provisions shall be punished for a breach of the public peace. Thus a foreign diplomatic agent cannot, like the sovereign he represents, waive his immunity by submitting to the British jurisdiction. The diplomatic immunity necessarily covers the residence of the diplomatic agent, which some writers describe as assimilated to territory of the state represented by the agent; but there is no consideration which can justify any extension of the immunity beyond the needs of the diplomatic mission resident within it. It is different with public ships in foreign waters. In their case the exterritoriality attaches to the vessel. Beyond its bulwarks captain and crew are subject to the ordinary jurisdiction of the state upon whose territory they happen to be. By a foreign public ship is now understood any ship in the service of a foreign state. It was even held in the case of the “Parlement Belge” (1880), a packet belonging to the Belgian government, that the character of the vessel as a public ship was not affected by its carrying passengers and merchandise for hire. In a more recent case an action brought by the owners of a Greek vessel against a vessel belonging to the state of Rumania was dismissed, though the agents of the Rumanian government had entered an appearance unconditionally and had obtained the release of the vessel on bail, on the ground that the Rumanian government had not authorized acceptance of the British jurisdiction (The “Jassy,” 1906, 75 L.J.P. 93).

Writers frequently describe the exterritoriality of both embassies and ships as absolute. There is, however, this difference, that the exterritoriality of the latter not being, like that of embassies, a derived one, there seems to be no ground for limitation of it. It was, nevertheless, laid down by the arbitrators in the “Alabama” case (Cockburn dissenting), that the privilege of exterritoriality accorded to vessels had not been admitted into the law of nations as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and that it could therefore “never be appealed to for the protection of acts done in violation of neutrality.”

The exterritorial settlements in the Far East, the privileges of Christians under the arrangements made with the Ottoman Porte, and other exceptions from local jurisdictions, are subject to the conditions laid down in the treaties by which they have been created. There are also cases in which British communities have grown up in barbarous countries without the consent of any local authority. All these are regulated by orders in council, issued now in virtue of the Foreign Jurisdiction Act 1890, an act enabling the crown to exercise any jurisdiction it may have “within a foreign country” in as ample a manner 