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the other hand, if any white person should be guilty of the same offense, he would be indicted and, if convicted, he could safely count on ten years in the penitentiary.

Gambling.

Under our criminal statute it is a misdemeanor for any person to wager any money or other valuable thing on any game of chance, or to play for money at any game of cards or dice, etc.; but it is the unwritten law-and the unwritten law applies in this case-that all negroes may play a game of chance with dice, commonly called "craps" for money or any other valuable thing on Saturday nights or any time during the first day of the week commonly called Sunday, provided, however, it is conducted in a quiet, orderly manner in a vacant cabin or cotton house on the back side of the plantation. But it is also the unwritten law of this state, that a white person must not, at any time or place for either love or money or any other valuable thing, play a game of "craps," that being recognized as a negro game exclusively. It is also the unwritten law of this state, that all white persons may play a game of chance with cards, commonly called "poker," for money or any other valuable thing, provided, however, that said game is conducted in a quiet, orderly manner in some private place after business hours, but a negro must not, under any circumstances, play a game of "poker," for love or money, that being recognized as a white man's game.

Larceny.

If a white man be guilty of petit larceny in this state, he is either lynched or sent to the county convict farm for a long term. If a negro be guilty of petit larceny, he is either cursed, whipped, or made to pay the value of the thing stolen, or is sent to jail, all depending on what he has stolen and from whom he has stolen it. If he steals from another negro, he is arrested, tried before a justice of the peace, and sent to the county convict farm to work out his fine and cost. If he steals from a white man, he is not

usually arrested or tried at all, but is generally whipped and made to return the articles stolen or pay their value, according always to circumstances. If he steals tobacco, whisky, chickens, or watermelons from any white man for whom he is working or for whom he has ever worked, nothing is ever done with him at all, it being well known to all white. people that he cannot help doing those things, and is therefore not responsible for his acts in the premises, and any white man who would undertake to prosecute him on a charge of that kind would have no more show before a jury than a paper shirt in a bear fight.

Weapons.

If a negro be guilty of selling whisky, cocaine, or carrying a pistol, he is severely dealt with, that being necessary to protect the lives of both white and black, for there never was a more dangerous combination than a negro, whisky or cocaine, and a pistol. On the other hand, all ablebodied males above the age of sixteen years who live in the black belt, where the negroes outnumber the whites ten to one, are supposed to have pistols of standard make and size, and are supposed to carry them at all times, either concealed or otherwise, and are supposed to know how to use them to the best advantage on the shortest possible notice, notwithstanding the statute says that if any person who carries concealed, in whole or part, any bowie knife, dirk knife, butcher knife, pistol, etc., shall, on conviction, be fined not less than $25, etc., but this law applies only to the negro and the whites who live in the white belt, and has no application to the whites who live in the black belt.

Homicide.

The statutes of Mississippi also say that if any person shall be convicted of murder, he shall suffer death, unless the jury rendering the verdict shall fix the punishment at imprisonment in the penitentiary for the life of the convict. This law applies only where one white man kills another about something besides a woman. If the killing was about a wom

an, he is tried by the unwritten law and usually acquitted. But this statute does not apply to a negro at all. If he kills a white man, and is caught, he is hanged, the time and place of his execution depending altogether on who caught him, the sheriff's posse or the friends of the deceased. If the sheriff's posse were the first to get possession of him, he is hanged the third Friday after court adjourns, if the friends of the deceased are the first to get possession of him, he is hanged at once, at or near the place where the killing occurred. When a negro is indicted for killing another negro, he is seldom, if ever, tried. The usual practice is for the court to appoint some young and inexperienced attorney to defend him; then, partly out of sympathy for the negro, and partly for the young attorney, the state's attorney allows him to plead not guilty to the mur

der charge, but guilty of manslaughter, and take sentence to the penitentiary, where he stays until he is pardoned a few years later. This plan always works very satisfactory to all parties concerned,

the state saves the expense of a trial, the negro is saved from being hanged, and the state gets another cotton producer on the state farm.

These are just a few of the general unwritten rules of practice in this state, the whole of which would fill a large volume, and are seldom, if ever, understood by anyone except the native born attorney of this state.

OJ Zais

SWAN SONG.

When a lawyer's gray and faded,
Weary of his work and jaded,
Looking o'er the happy past,-
Time against him running fast,
Often times he'll tell to thee
What he was or used to be.

Blame him not, for memory traces
All the olden times and places,
Where his student life begun
Where his cases first were won,
Up along the pleasant way
Where his best successes lay.

Life to him seems like a drama

And its fading panorama

Flits before his dreaming eyes,

As its passing scenes arise,

Unto him 'tis ever new

Though it hath no charm for you.

Marvel not, for youth is fleeting
Soon life's evening you'll be greeting
And perhaps your lot may be
To indulge in reverie,

And like older men you know
Mourn the happy long ago.

Am Notten

BY HON. T. F. McCUE

Of the North Dakota Bar, and Ex-Attorney General

[ED. NOTE.-Uniform divorce laws and the ethics of divorce are subjects of widespread and growing interest This article is a novel contribution to the discussion. We shall be glad to hear from our readers on these subjects and to present their views in a series of papers culminating in the June 1914 number which will be devoted to the topic of marriage and divorce.]

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that there may be no misunderstanding as to what is meant by divorce by consent, a few words in explanation of my position at the outstart may not be out of place, which may be summarized as follows: First, the parties would have to invoke the jurisdiction of a court clothed with the power of granting divorces. Second, mutually stipulate to the fact of marriage and if there be any issue, the names and ages of such issue, asking that a decree be entered; this without allegation or proof of any ground except the voluntary mutual consent of the parties. Third, the only fact the trial court could inquire into, as to the right of the relief asked, would be to ascertain whether the stipulation was entered into voluntarily and without coercion.

Whenever one attempts to advocate a principle or theme which is out of harmony with established rules, he exposes himself to the attacks of organized society. Knowing that divorce by consent is such, I realize that the penalty that is liable to be imposed is to be classed as spectacular, or a seeker of perverted notoriety; the severity of the criticism depends upon the state of society, or rather, the age in which the matter is being considered.

Lawyers, being a conservative body, and by reason of their experience in the profession, willingly accord a fair hearing, whether the proposition advanced be ordinary or extraordinary; therefore, if, in this article, I succeed in presenting a thought worthy of the honest consideration of the bar, it will more than

counterbalance the censure of the laity.

I assume, in discussing this proposition, that the granting of a divorce is right. This assumption is based on the fact that our laws, as well as those of nearly every civilized country, recognize the right of divorce from the bonds of matrimony, upon proof of fixed or established grounds; therefore, I seek no controversy over the moral phase of the question, but desire to deal with the conditions that, as a matter of fact, exist.

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Divorce laws and regulations for dissolving marital relations are among the most vexed, cumbersome, and complicated branches of the law encountered by the practitioner in the United States. Every state enacts its own divorce laws and divorce procedure, which varies according to the ideas of the lawmakers of the individual state. The result is that a marriage between divorced people may be legally entered into in one state, which is forbidden by the statute of an adjoining state. If such people cross the line and cohabit in the latter state, as husband and wife, they may be guilty of committing a felony. It needs no argument to convince anyone that such a system of law is wrong, and there is no excuse for its existence in this age of progress and advancement. The wrong is aggravated because every citizen of the United States is entitled to equal protection under the Federal Constitution.

Divorce by consent would be an advance step toward minimizing the conflict in the laws of the several states on the subject of divorce. First, it would set at rest the question as to the jurisdiction of the parties to the action, by the court granting the decree; because, in order for such a decree to be granted,

both of the parties would have to invoke the jurisdiction of the court. Second, all property rights could be finally adjudicated, while the care, custody, and control of minor children could be determined and regulated in the same manner as regulated by the existing laws, only more effectively, on account of the court having jurisdiction of both of the parties and the subject-matter.

In order for one to have faith in him

self, he must first be honest with self, and before he condemns a principle, he should weigh it intelligently in the scale of known conditions, and not measure it alone by some fixed rule or form. Knowing the futility of controlling or regulating every human endeavor, action, or emotion by law, the uncompromising aim of every lawmaking power should be to formulate such laws as will best preserve the rights of society and relieve it from known abuses, and at the same time give equal protection to the individual.

When we weigh the operation and effect of the present divorce law in the scale of known conditions, we know, notwithstanding that many of the states have laws forbidding the granting of a divorce by consent or agreement, a large majority of the divorces granted in which there is no appearance by the respondent are begun, prosecuted, and granted with the tacit consent of the defaulting spouse. Lawyers know it, while judges cannot help but know it. These divorces are granted daily by courts who would refuse a divorce if collusion were shown; but as the prayer of the complainant is not resisted, the matter is rarely inquired into, and if the statutory ground is proven, the divorce is granted as a matter of course. This may be justly branded as a traffic in hypocrisy.

If the defendant is a nonresident, service is had, or the process of the court is put in motion by publication or some other substituted service, which gives the court no jurisdiction over the person of the defendant, and he cannot be made personally amenable to the provisions of the decree, and yet, he tacitly consented to every stage of the proceeding. Would it not be better to permit him to be a party to a proceeding of a divorce by consent and bind him by the decree, than

to grant a divorce which is tacitly obtained by consent, and leave his personal rights unadjudicated and open to further litigation?

Many people who are cultured and refined, and whose integrity is unquestioned in the community where they resided, have left their homes and gone to foreign states, acquired a residence, invoked the jurisdiction of the courts of their adopted state, for the purpose of being relieved of their marriage vows. Moralists have decried this practice and the laws that permit it, but they seem to be unable to stem the tide, and the demoralizing practice continues. It seems to me that the thing for the moralist to do is to seek a remedy by supporting a sane law that will be honest in its scope, and not an inducement for violation. It is also apparent that our laws are at fault, and the only solution is for the state to either abolish the granting of divorce entirely, or else enact sane laws permitting the granting of the same. If a divorce by consent could have been obtained, the complainant would never have sought a residence in the foreign state, which she did to avoid the humiliation of making public her grounds for divorce, at home among her friends and acquaintances.

Why compel a party to prove a crime or an offense against her spouse in order to entitle her to a divorce, when her prayer is not resisted? What are the underlying principles that demand such a provision of our law? How did such procedure become incorporated in our laws?

In answer to the first question: proof in open court that the defendant is guilty of adultery cannot lend any sanctity to the marriage vow, nor will it tend to elevate society or improve the social standing of the plaintiff. On the contrary, the proof in open court of such fact must necessarily have a demoralizing effect upon society and a like effect upon the parties involved. The individual constitutes an integral part of society, and when an integral part of an organization is affected, the whole body is weakened in a corresponding ratio as the individual is to the aggregation; besides, it can only

furnish a judicial record which disgraces by its existence the innocent children of the parties.

If the proof of the statutory ground does not tend to improve the condition of our social fabric, punish or pardon the offense, or compensate the injured, there is no just or logical reason for the requirement.

An underlying principle, in order to justify the conclusion deduced therefrom, must be fundamentally true, and not a creation of sentiment or theory. It is confessedly true that the divorcing or dissolving of the marriage vows demoralizes society, but the injury is occasioned by the result,-the divorce, and not the means employed to obtain it. Whether it was granted by mutual consent or after the recital of the facts of a statutory ground, the effect of the divorce on society is the same. So that the philosophy of the law of divorce must be that to prohibit divorces would inflict greater injury than the granting of the

same.

Therefore, we are forced to seek some other cause for the existence of the principle. Perhaps it finds justification in the claim that by making divorce procedure harsh and difficult, the number of divorces are thereby decreased. If this be true, it may be a justification; but in order to test its truth or falsity, we can only compare it with known conditions and apply it to the actual workings of our divorce courts. To go into statistics would extend this article beyond its intended space; besides, that would prove nothing, for the reason that we have no definite means of knowing what percentage of the divorces granted was the result of mutual consent.

To advocate the enactment of harsh procedure to prevent divorces is unsound, both from a legal and an equitable standpoint, because it is an admission that the state enacts a law and at the same time prescribes a procedure that is so severe as to deter the timid from invoking the remedy. If society. is benefited through this scheme of the

law, such benefit must necessarily be derived at the expense of the conscious or fearful; and confessedly, it is a remedy. for the courageous, fearless, and brazen. Admitting all that is claimed for the scheme, it is tainted with duplicity; and though fair on its face, the net result of its workings proves it to be class legislation; confessedly such is the intent and purpose of the law.

The whole foundation upon which such a claim is based is purely and simply a theory, and not sustained by actual workings and results of the divorce court, which show that whenever a couple agree to have a divorce, a decree follows. One of the parties undertakes the trying ordeal and adapts herself to the harsh procedure.

Our divorce laws are the outgrowth of the conflict between the Roman law and the Canon law, the former recognizing the right of a full divorce and restoration to conjugal rights, while the latter denied it. Our laws upon the subject are the result of a compromise between these two contentions. The result of the compromise terminated into fixed forms or grounds for divorce, which the antidivorce forces looked upon as a fetter or brake upon the granting of divorces, and which were regarded by the advocates of divorce as better than none at all.

These compromised and antiquated ideas have been enacted in one form or another as grounds for divorce by the several states, as well as the procedure to give them effect.

It would seem that as soon as the state recognizes the right to a divorce, to be consistent, it ought to give the parties a right to go into court, and have it adjucated in the same manner as any other right over which the courts have jurisdiction.

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