EDITORIAL DEPARTMENT stances, judges and juries are invested with a discretionary power which enables them, by their own individual appreciation, to modify whatever of harshness there may be in the law. "Extenuating circumstances, therefore, are really in the nature of judicial excuses which the legislature has not specifically defined, and the appreciation of which it has left to the discretion of the judge and jury. They differ in many respects from legal excuses, which are collateral facts previously ascer tained by the law. "It is evident that extenuating circum stances cannot be foreseen by the legislature, but are facts which the judge has a right (and, indeed, under the Code it is his duty to do so) of ascertaining in all cases; and when once recognized they should naturally have the effect of diminishing the penalty attached by law to the offense. It is evident that a man who steals the property of another merely to gratify his own desire is far more culpable, morally, than one who steals to satisfy the cravings of himself and his starving family. "Shortly stated, the effect of the law is: — "(i) The creation of a maximum and mini mum of punishment, between which the judge has the power of exercising his discretion. "(2) The institution of the system of ex tenuating circumstances, enabling the judge to decrease the penalty below the minimum fixed by the law." The history and mode of operation of this system are given in this first instalment. CRIMINAL LAW (Probation System). The Massachusetts system of probation for minor offenders, now adopted in many other states, has attracted the attention of practical men in Great Britain, says A. M. Hamilton in an article in the Juridical Review (V. xviii, p. 221) entitled " Probationary Guardianship of Offenders." There is in fact a Probation of First Offenders Act, but it is lacking in the feature of guardianship, provisions looking to that end having been struck out by Parlia ment. Two experiments in the American system have been made in Scotland in recent years, in Dundee and Glasgow, with results that commend the system, but legal scruples as to competency have, however, prevented these attempts from being more than partial.
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Mr. Hamilton fully approves the system but finds that legislative aid will be necessary to extend it beyond very narrow limits in Great Britain. DIPLOMACY. " Newfoundland and her Fishing Rights," by A. B. Morine, Canada Law Journal (V. xlii, p. 737). DIVORCE. "The Divorce Problem and Recent Decisions of the U. S. Supreme Court," by D. D. Murphy, American Lawyer (V. xiv, p. 499). DIVORCE. In the November Illinois Law Review (V. i, p. 219). Henry Schofield pub lishes an analysis of " The Doctrine of Had dock v. Haddock." The author states the rule of the case to be as follows: "Under the law between the States, estab lished by the Constitution of the United States, the mere domicil within a state, at the time of the institution of divorce proceedings therein, of only one of the parties to a mar riage, the other party being, and having been continuously, domiciled in the state of the matrimonial domicil, is not enough to give that state power, or jurisdiction, to grant an interstate dissolution of that marriage." He states the syllogism of the minority to be as follows: — "Major premise: If a judicial decree is con clusive in the state where it was pronounced, it is equally conclusive in every other state. "Minor premise: This Connecticut judicial divorce decree is conclusive in the state of Connecticut. "Conclusion: This Connecticut judicial di vorce decree is conclusive in every other state." The author argues that the full faith and credit section of the Constitution did not change the rules of international law regulat ing the jurisdiction of a court of one state to pronounce a judgment entitled to enforce ment in the courts of another state. If it be true, therefore, that the Connecticut court did not have jurisdiction to grant an inter state divorce it follows that it did not have jurisdiction to grant a state divorce. The author submits that it could not have been within the contemplation of the Federal Con stitution that a husband and wife could be so domiciled in different states that no state in the Union can have power to so deal with
