their adversaries under oath before a commissioner in advance of the trial. The chance of surprise at the trial is thus avoided, and pleadings dilatory and frivolous in fact, though valid in form, are wiped away, the court having power to direct summary judgment unless a bona fide case is made out by both sides on this preliminary examination. The number of cases that remain to be tried after this sifting is remarkably few. It is gratifying to note the recent decisions of our own courts extending the right to examine one's adversary before trial as to matters within his own knowledge. Perhaps the most luminous opinion upon this subject is written by Mr. Justice Leventritt, who, by the way, is a member of our own chapter, in the case of Turck v. Chisholm, 53 Misc. 110, in which he quotes a recent opinion of Justice Ingraham as follows: "Where there is no doubt of the good faith of a party to a litigation seeking to establish a fact essential to his cause of action by the testimony of his opponent, I can see no reason why a party is not entitled to have the knowledge of his opponent as to the fact which he wishes to establish put upon record so that the evidence of that fact would be available to either party to the action when the trial takes place. It is not the duty of a court of justice to suppress the facts or throw obstacles in the way of either party in establishing the truth." But even then, in our own system, the parties must await a trial which may take place months or years after the examination. The dawn is approaching but the noon-tide sun is still far in advance. Even our Legislature has finally bestirred itself from its lethargy. At last it has come to realize that a court sufficient for New York of twenty years ago is insufficient to-day. New justices have been added to the Supreme, the City and the Municipal Courts. The courts, like the law, must grow with the people. The ormor of Saul is still a very dangerous thing to him who wears it. So far we have mentioned only how for our ideals are realized in court; but how about the world outside of the courts? It is necessary to a community to have efficient hospitals, but one scarcely would think of going there to learn what was the health of the race. The field of the common law, thank God, is not confined to the courts. Go into the busy market place, the exchange, the banks, the factories, the vast shipping industries, how few are the controversies when compared with the vast quantity of business done! Is it one per cent.? We venture to say that it is less than one hundredth of one per cent. of business transactions that cause even a bona fide dispute, and a far smaller percent age that become the subjects of actual litigation. How many of you gentlemen present have ever been parties to litigation? Undoubtedly there are many of you who have never even been inside of a court. And why is this? The answer is plain. The great complex machinery of our civilization is well oiled, it runs smoothly because it is under the ever watchful eye, not of one man, however great and however versatile, but of every citizen, each seeing to it that his part of the machinery does its work. In short, we are living the common law. : 0: Labor Law. DISQUALIFICATION OF FEMALES FROM WORKING IN FACTORIES BEFORE 6 A. M. OR AFTER 9 P. M. HELD UNCONSTITUTIONAL. NEW YORK COURT OF APPEALS. Decided June 14, 1907. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. DAVID L. WILLIAMS, Respondent. Wm. S. Jackson, Attorney-General (Timothy I. Dillon of counsel), for appellant; Henry B. Corey, for respondent. GRAY, J.-The defendant was arrested and convicted upon the charge of having violated the provisions of section 3841 of the Penal Code. This section makes it a misdemeanor on the part of any person not complying with the provisions of article 6 of the Labor Law relating to factories. The provision of the Labor Law now in question is contained in section 77, which is entitled: "Hours of labor of minors and children," and reads that "no minor under the age of eighteen years, and no female shall be employed, permitted or suffered to work in any factory of this State before six o'clock in the morning or after nine o'clock in the evening of any day, or for more than ten hours in any one day, except to make a shorter work day on the last day of the week; or for more than sixty hours in any one week; or more hours in any one week than will make an average of ten hours per day for the whole number of days so worked" (L. 1903, chap. 184, sec. 2). The information and the proof were that a female, named Katie Mead, over 21 years of age, was found by the factory inspector at work in a bookbinding establishment in the city of New York at 10.20 o'clock in the evening. There was no complaint with respect to the character or construction of the building and the defendant's guilt was rested solely upon his failure to observe the provision of the statute against a female being at work after 9 o'clock in the evening. If the inhibition against employing a female in any factory after that hour was a valid act of legislation, then the defendant came within its operation and he was amenable to punish ment. After the defendant had been found guilty the trial court granted his motion in arrest of judgment and discharged him, holding that the legislative enactment was unconstitutional. The justices of the Appellate Division, in the First Department, by a divided vote, have affirmed the order of the trial court. them beyond nine o'clock in the evening, it might more readily be appreciated that the health of women was the matter of legislative concern. That is not the effect nor the sense of the provision of the seetion, with which alone we are dealing. It was not the case upon which this defendant was convicted. If this enactment is to be sustained, then an adult woman, although a citizen and entitled as such to all the rights of citizenship under our laws, may not be employed nor contract to work in any factory for any period of time, no matter how short, if it is within the prohibited hours; and this, too, without any regard to the healthfulness of the employment. It is clear, as it seems to me, that this legislation cannot and should not be upheld as a proper exercise of the police power. It is certainly discrminative against female citizens, in denying to them equal rights with men in the same pursuit. The courts have gone very far in upholding legislative enact ments framed clearly for the welfare, comfort and health of the community, and that a wide range in the exercise of the police power of the State should be conceded I do not deny; but when it is sought. under the guise of a labor law arbitrarily, as here, to prevent an adult female citizen from working at any time of the day that suits her, I think it is time to call a halt. It arbitrarily deprives citizens of their right to contract with each other. The tendency of Legislatures, in the form of regulatory measures, to interfere with the lawful pursuits of citizens is becoming a marked one in this country, and it be hooves the courts firmly and fearlessly to interpose the barriers of their judgments when invoked to protect against legislative acts plainly transcending the powers conferred by the Constitution upon the legislative body. In my judgment, the determination below was correct. I think that the Legislature, in preventing the employment of an adult woman in a factory and in prohibiting her to work therein before six o'clock in the morning or after nine o'clock in the evening, has overstepped the limits set by the Constitution of the State to the exercise of the power to interfere with the rights of citizens. The fundamental law of the State, as embodied in its Constitution, provides that "no person shall . . . be deprived of life, lib-| erty or property without the process of law" (Art. 1, sec. 6). The provisions of the State and of the Federal Constitutions protect every citizen in the rignt to pursue any lawful employment in a lawful manner. He enjoys the utmost freedom to follow his chosen pursuit, and any arbitrary distinction against or deprivation of that freedom by the Legislature is an invasion of the constitutional guaranty. Under our laws men and women now stand alike in their constitutional rights, and there is no warrant for making any discrimination between them with respect to the liberty of person or of contract. It is claimed, however, in this case that the enactment in question can be justified as an exercise of the police power of the State, having for its purpose the general welfare of the State in a measure for the preservation of the health of the female citizens. It is to be observed that it is not a regulation of the number of hours of labor for work- In this section of the Labor Law it will be observed ing women; the enactment goes far beyond this. It that women are classed with minors under the age attempts to take away the right of a woman to labor of eighteen years, for which there is no reason. The before six o'clock in the morning or after nine o'clock right of the State, as parens patriae, to restrict, or in the evening, without any reference to other con- to regulate, the labor and employment of children is siderations. In providing that no female shall be unquestionable, but an adult female is not to be reemployed, permitted or suffered to work in any fac-garded as a ward of the State, or in any other light tory in this State before six o'clock in the morning or after nine o'clock in the evening of any day," she is prevented, however willing, from engaging herself in a lawful employment during the specified periods of the twenty-four hours. Except as to women under twenty-one years of age, this was the first attempt on the part of the State to restrict their liberty of person or their freedom of contract in the pursuit of a vocation. I find nothing in the language of the section which suggests the purpose of promoting health, except as it might be inferred that for a woman to work during the forbidden hours of night would be unhealthful. If the inhibition of the section in question had been framed to prevent the ten hours of work from being performed at night, or to prolong 66 than the man is regarded, when the question relates to the business pursuit or calling. She is no more a ward of the State than is the man. She is entitled to enjoy, unmolested, her liberty of person, and her freedom to work for whom she pleases, where she pleases and as long as she pleases, within the general limits operative on all persons alike, and shall we say that this is valid legislation, which closes the doors of a factory to her before and after certain hours? I think not. Without extended reference to the cases bearing upon the much discussed subject of the exercise of the police power, I need only refer to the recent case of Lochner v. State of N. Y., 198 U. S. 45. where the Supreme Court of the United States had before it a case arising in this State under a provi sion of the Labor Law, which restricted the hours of labor for the employees of bakers. The argument there was, and it had prevailed in this court, that the legislation was valid as a health law under the police power; but the Federal Supreme Court refused to recognize the force of the argument and held, if such legislation could be justified, that constitutional protection against interference with the liberty of person and the freedom of contract was a visionary thing. It was held that bakers are in no sense wards of the State. Viewed in the light of a pure labor law, with no reference whatever to the question of health, the law ... involves neither 66 the safety, the morals nor the welfare of the public, and the interest of the public is not in the slightest degree affected by such an act." It was, also, observed that "there must be more than the mere fact of the possible existence of some small amount of unhealthfulness to warrant legislative interference with liberty." So I think, in this case, that we should say, as an adult female is in no sense a ward of the State, that she is not to be made the special object of the exercise of the paternal power of the State and that the restriction, here imposed upon her privilege to labor, violates the constitutional guarantees. In the gradual course of legislation upon the rights of a woman in this State, she has come to possess all of the responsibilities of the man and she is entitled to be placed upon an equality of rights with the man. It might be observed that working in a factory in the night hours is not the only situation of menace to the working woman, but such occupation is, arbitrarily, debarred her. person to think, act and live to the greatest possible amount of self-expression, with the least possible amount of restraint; while we mean by harmony the practical realization of this liberty in an infinitely various world. The first is only another way of saying with Immanuel Kant, "Act so that the maxim of thy conduct may be capable of being an universal law." And the second reminds us that this universal law is unattainable, just so long as liberty would remain individual, selfish and chaotic. In other words, freedom, harmony and order are either the same thing, or they are nothing at all. The subject naturally divides itself into two parts, the criminal and the civil law. Under each head there have arisen certain popular misgivings-to call them by no stronger name-which will have to be discussed. Take first the case of criminal law. We need hardly explain by way of preface that, in a proceeding a criminal law, there are, besides the prisoner, four parties concerned: the judge, the jury, the counsel for the crown, and the counsel for the defense. But what we do need to point out is that each of these persons or groups has its essential contribution to make in the interests of justice. The advocate with the rest is an officer of the court; and his acts are the deliberate acts of our judicial system. We are, however, at once met by the stock question; "But would you have a lawyer defend a man whom he knows to be guilty?" Well, to begin with, this person is largely a figment of the imagination. perienced practitioners in the criminal courts will agree in saying that their clients, even those of whose guilt they had the strongest suspicions, have seldom Ex For these reasons I advise that the order appealed in the most private consultation abandoned a posifrom should be affirmed. CULLEN, Ch. J.; EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur. Order affirmed. : 0: The Ethics of Advocacy. The science of ethics is founded on the faith that every serious occupation of mankind must have some necessary share in human progress, the nature of which it would be well to examine. Seen in the proper light, the plainest function shows a spirit of worth and vigour, which far transcends its form-an essence needing only the clothing of a name to give it universal importance. The attempt, then, of this paper is to point out that there is such a principle behind the various aspects of advocacy, and that this principle is the development and security of social harmony and personal freedom. And without going into a philosophical disquisition on harmony and freedom, let us agree at the outset that by freedom we mean the power of each tion of denial of guilt. Not only so, but it may roughly be said that in the great majority of cases the prisoner's counsel has no better means of knowing the truth about the prisoner than has the jury; and that in three causes celebres during the last twelve months, where the accused were convicted upon evidence that left their counsel as well as the general public no reasonable doubts, the convicts were loud in their complaints of the want of faith which they could see on their counsel's face. "You may never believe me," said one, whose hand was seen by three persons to be groping in another man's pocket, "You may never believe me, but I am perfectly innocent." But let us suppose the case of an accused invoking the services of a lawyer who knows him to be guilty. Let us suppose that he comes to my office, confessing his guilt, but asking me to defend him in spite of it. Or, since such a case is clean against psychology, let us suppose that I make up my mind, after speaking to him, that he is an arrant scoundrel. Even leaving out of account the oath which binds lawyers, to refuse their services to none, the question, I take it, is not-have I the right to accept his cause, but have I the right to refuse it. Let us further suppose that, my conscience being in a scrupulous and foggy state, I do refuse it. So, let us say, does every one else. On the day of his trial it will be the business of the judge himself to appoint some advocate to defend him; and he, whoever he is, that is requested by the court so to act, will be unable to decline. Sometimes, indeed, courts have made such appointments even against the will of prisoners; and, where they have not done so, have been under the duty of themselves raising those points of defense which a good advocate ought to use. It is, therefore, a fully recognized principle, the reason for which we will discuss in a moment, that the functions of an advocate will have to be performed for the accused. But if they are to be performed at all, then the more deliberate and thorough their performance may be, the better. I confess that I am unable to see how the argument can be avoided, that if the thing is done by the social system to which I belong in a democratic❘ country, it is done by myself, however indirectly; and that if it be right that the act should be done at all-and we assume that it is right by making our judges the ultimate doers of it, where all others fail-then it is not only right but obligatory that the act should be done by the advocate as individual, however unpleasant the task may be. I should say that if one is able, it is one's duty to undertake the defense of any such person applying to one; and if one is not able, that it is one's duty to direct the man to another who is; this direction itself being an assumption of his defense. Our next question concerns the defense itself. "Do you think it honest," says the plain man, continuing his arraignment of advocates-" do you consider it honest to prove a guilty man innocent?" Certainly, I do not; but this is a task which no lawyer was ever called upon to perform. If any instance be cited where work so apparently impossible was ever carried through, it could only have been in virtue, not of legal, but of some more general human qualities-unedifying indeed, but not the monopoly of one profession. By a wise convention, the accused is presumed to be innocent until he is proved to be guilty. A convention this, alas! of law rather than of fact; for the sight of a prisoner in a barred box, with a constable on either side of him, hardly conduces to the ideal of fair play. There is all the more reason, then, for the strict performance of his duty by the advocate, in an absolutely impersonal manner. He has nothing to do with the truth or untruth of the charge. Indeed, it would be most unprofessional if he were to allude in the remotest fashion to his personal belief. He will simply examine the testimony brought against the accused in the light of the rules of evidence, which are the rules of common sense; and will see to it that nothing goes before the jury which is a breach of that practical logic. As far as the jury is concerned, it is hard to see that he can go much farther than that, and one must admit that the practice of alluding in moving terms to the prisoner's aged father, or to his wife and ten children, is, in the light of pure reason, most objectionable. It is a contention, however, which has had strong support, in consideration of the fact already mentioned of the prejudice of the jurors against the accused, that the interests of justice are well served by thus offsetting the one appeal by the other, the false prejudice by the false sympathy. But one cannot help feeling that the truer remedy in the circumstances would be to find some means of preventing the first error, rather than to attempt to confute it by an error quite as serious. Most objectionable, too, is such an excess of zeal as leads a barrister to forget that the witnesses whom he cross-examines are, after all, fellow-beings; and that it is not necessary that he should cease to be a gentleman when he addresses them. In this connection the following citation from a speech by Lord Brougham seems to call for criticism. He was defending himself from certain extravagances charged against him in a celebrated trial, and said: "There are many whom it may be needful to remind that an advocate-by the sacred duty of his relation to his client-knows in the discharge of that office but one person in the world-that client, and none other. To serve that client by all expedient means, to protect that client at all hazards and costs to all others -even the party already injured—and amongst others, to himself, is the highest and most unquestioned of his duties. And he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any of them; nay, separating even the duties of a patriot from those of an advocate, he must go on, reckless of the consequences, if his fate should unhappily be to involve his country in confusion for his client." Obviously this statement, with all allowance for its occasion, verges on absurdity. If it were to be generally acted upon, advocacy would become impossible at once for lack of witnesses to put up with so brutal a treatment; and the fact that such behavior can be charged against some barristers of renown implies that to great men has been conceded now and then a license which their greater qualities eclipsed. The greatest barristers have never used such measures save as a last resort against recalci trancy or obvious deceit; and when their humbler brethren have copied the tactics without discriminating the occasion, they have served neither their clients nor themselves. But what, then, is the true reason that justifies and that can be trusted to regulate advocacy? What is intrinsic in the lines of action which we are accustomed to consider proper, and naturally separates them from those which are temporary and disapproved? When we find ourselves defending possible blackguards as a matter of course, it will not do to content ourselves with a dissertation on forensic propriety and good manners. Nor does the argument from democratic consent, to which we alluded/above, go much deeper. That the facts are as they are, as part of our highest present ideals of justice, is much; but it is no reason. We need to find not reasons, but reason at the back of all this; something that will stand out as accomplished at the very moment when such acts shall have ceased to be necessary. If one may be allowed the paradox, the necessity for the main facts of advocacy consists simply in their power finally to render themselves unnecessary. Their justification, to come to the point, is the cause of freedom. It is not too much to declare that, when freedom has ceased to be served by the defense, we are not saying the vindication, but the defense, of those accused by society, lawyers have been conspicuous by their silence. The law has not lacked its martyrs. The greatest lawyer of all time chose death rather than justify the crimes of a tyrant. It cost Papinian his head to say to Caracalla, fresh from the murder of Geta, and demanding a vindication before the Senate, “Parricide, it is more appropriate for you to commit than for me to defend." ut the rights of a subject, of a citizen in democratic times, demand another treatment; and for much stronger reasons than those given by Cicero when he says: "It is allowable to defend criminals. The people desire it; custom allows it; humanity enjoins it." For when an advocate takes up arms for an accused, he fights for much more than a single man. In accordance with the law of precedent, to which we shall presently come, each case at law is affected by its cognate predecessors, and will affect similar cases in the future. If any man, however appropriately, is allowed to-day to make an unexamined confession of guilt, the law may lose the right to investigate a confession that may be made to-morrow by one mentally deranged, or in error as to the facts, or under coercion, or perhaps in sheer despair of making any headway against strong but misleading circumstantial evidence, and hoping for lediency through an assumption of repentance. Such cases are far from infrequent. As an example of the last of them, three men were recently hanged for a murder of which they had no knowledge. The evidence was so terrifying that they confessed in the hope of receiving a lighter sentence than otherwise seemed inevitable. But they miscalculated. The death sentence was passed, and their contradiction of their confession came too late. The real criminal was not found until his unfortunate substitutes had already been hanged. And in the actual course of trial, if evidence is permitted to be made that is not logically or psychologically true, even where justified by the event, the barriers against chance and error will have been levelled not only so far as the individual prisoner is concerned, but also for all men who may afterwards stand in a similar case, however unjust the injury may be to them. It is not the individual, it is the class that is being defended in a criminal court. Whatever the advocate may think of himself, he is liberty's instrument for no momentary use. She demands a sterner service than a good-humored or even a conscientious scorn of distinctions, of technicalities, or of precedent. But we shall in a moment examine the question of precedent and technicality more fully in connection with the civil law. In civil law the first point generally selected for censure is the fact that a lawyer seems ready to defend one side of a case to-day, and exactly the opposite to-morrow. The public appears to suppose that in such an event the principles that were once invoked are subsequently controdicted. A little consideration of the matter will show that this is not the case. An advocate is concerned not with persons but with their rights. Now the number of rights which a man may have in even the simplest controversy may be many. Nor does the possession of rights o nhis part necessarily prevent the possession of rights on the part of his adversary. All litigation is in most cases a matter of balance. All life has its "ifs" and its "buts "; and, in the courts, an absolutely clear and indisputable right upon one side only is practically unknown. Such cases need never go to court, and are kept out of it by a simple knowledge and not by any application of the law. But the cases that are fought are obviously those wherein there is some tangle to be straightened out, something to be said for both sides. Either there is an element of uncertainty owing to the fact that the particular state of affairs in dispute has not been sufficiently pre-examined in the light of fundamental rules; or else the right of each party can be opposed by a counter right on the part of the other, due to some carelessness on one or both sides, carelessness of a man's own rights or disregard. It will be the duty of the adverse barristers, while making the admissions which honesty may demand, to apprise the court of the best that can be said of their respective sides. There will be no need of any contradiction between them, in spite of the common belief that learned counsel exist for the purpose of pulling each other to pieces. The indifference of their positions will be none of their own making, but inherent. Granted A, B and C says the first-and I think that I can establish them as facts-the legal rights X and Y necessarily follow. Yes, says the other, but the tribunal must also consider such facts as E, F and G, and on those facts in all similar cases hight Z arises. This is a fair outline of the majority of civil cases. Each side will, of course, take the greatest care that the asserted facts on which his opponent's |