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from engaging in certain employments, which would be likely to prove injurious to the unborn child, but there can be no more justification for the prohibition of the prosecution of certain callings by women, because the employment will prove hurtful to themselves, than it would be for the State to prohibit men from working in the manufacture of white lead, because they are apt to contract lead poisoning, or to probibit occupation in certain parts of iron smelting works, because the lives of the men so engaged are materially shortened.
§ 87. Police regulation of skilled trades and learned professions. - Where the successful prosecution of a calling requires a certain amount of technical knowledge and professional skill, and the lack of them in the practitioner will result in material damage to the one who employs him, it is a legitimate exercise of police power to prohibit any one from engaging in the calling who has not previously been examined by the lawfully constituted authority and received a certificate in testimony of his qualification to prace tice the profession. The right of the State to exercise this control over skilled trades and the learned professions, with a single exception in respect to teachers and expounders of religion, has never been seriously questioned. Thus we find in every State statutes which provide for the examination of those who wish to engage in the practice of the law, of medicine and surgery, of pharmacy, and sometimes we find statutes which require all engineers to be examined before they are permitted to take charge of an engine. So, also, in England, it was once made necessary for one to serve an apprenticeship before he was permitted to pursue any one of the skilled trades. That is not now the law in the United States, but there would be no constitutional objection to such a statute, if it were enacted. Judge Cooley says: • No one has any right to practice law or medicine except under the regulations the State may prescribe.
The privilege may be given to one sex and denied to the other, and other discriminations equally arbitrary may doubtless be established.”i A distinguished judge of Missouri says there can be no doubt “ that the legislature of Missouri can declare the practice of law or medicine an unlawful calling, if they thought fit to do so." ? If the rules heretofore laid down for the determination of the limitation of the police control of employments be sustainable, the position of these distinguished judges is untenable. The professions of law and medicine are profitable employments, to the public as well as to the practitioners; and the only elements of danger arising from the practice of them lies in the admission of incompetent persons into them. Any prohibition which extends further than to prevent the admission of incompetent men will be unconstitutional. It has been held that women can be denied the right to engage in the practice of law. In the State court the principal ground for a denial of the plaintiff 's right to engage in the practice of law was maintained to be that, “ as a married woman (she) would be bound neither by her express contracts, nor by those implied contracts, which it is the policy of the law to create between attorney and client.” In the Supreme Court of the United States, although the opinion of the court, delivered by Justice Miller, was rested upon the fact that the practice of law in Illinois was not one of the privileges and immunities of citizens of the United States as such, and therefore did not come within the jurisdiction of the court, in a separate opinion by Judge Bradley, in which Judges Field and Swayne concur, it is claimed that the statutes of a State may prohibit a woman from practicing law, because on account of the supposed difference in her mental capacity she cannot acquire that degree of skill which the successful practice of the law requires. Of course, a married woman, under her strict common-law disabilities, cannot make binding contracts, and it would be impossible for her to be sued on any express or implied obligation which she may have incurred in the practice. This no doubt would furnish a justification for a statute which prohibited married women from engaging in the practice of law, provided the disabilities thus imposed by the law are themselves constitutional. But in respect to the inability of woman to attain the standard of professional skill required by the law to insure clients against the ignorant blunderings of attorneys, one is forced to the conclusion that this, like very many other venerable distinctions between the sexes, is the result of sexual prejudice.
1 Cooley on Torts, pp. 289, 290.
Napton, J., in Austin v. State, 10 Mo. 591. 8 Bradwell v. State, 55 Ill. 535; 8. C. 16 Wall. 130.
Judge Cooley's position, in respect to the unlimited power of the State to regulate the practice of law and medicine, is that the practice of these professions is a privilege, and cannot be demanded as a matter of right. I can see no ground upon which this claim may be supported, so far as it refers to medicine. The physician and surgeon derives no peculiar benefit from the State, and there can be no substantial difference between his right to pursue his calling and that of a teacher to ply his vocation, or of the merchant to engage in business. They are not enjoying any peculiar privilege. Nor can I see any reason for looking upon the practice of law, outside of the courts, as a privilege. I cannot see why it is a peculiar privilege, derivable from the State, for an attorney to draw up a deed, or to make a will for a client. But inasmuch as courts are creatures of the law, and independently of the State, there can be no courts and no advocates, the right to appear for another in a court of justice may be considered a privilege which may be denied or granted at the pleasure of the State authorities. In England, at an early day, one accused of crime was not allowed to have counsel, and the right to appear by counsel in any case, rests upon rule of law. Yet even with this concession, it may still be claimed that such a privilege should be granted equally and to all, to avoid the constitutional objection to the granting of unequal or special privileges and immunities."
1 “In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded upon nature, reason and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and in my opinion, in view of the peculiar characteristics, destiny and mission of woman, it is within the province of the legislature to ordain what offices, positions, and call. ings shall be Alled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and irmness which are presumed to predominate in the sterner sex. For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.” Opinion of Justice Bradley, concurred in by JJ. Swayne and Field, in Bradwell v. Illinois, 16 Wall. 142. • As to which see post, $ 162.
In respect to the regulation of the practice of medicine, the constitutionality of laws has likewise been questioned.? In respect to the clerical profession, the constitutional guaranties against encroachments on religious liberty and freedom of worship would be violated, if an attempt were made by the State to determine who shall minister to the spiritual wants of the people. Every individual, and every body of people, have a constitutional right to select their own clergymen and expounders of religion, and it can never, under our present constitutions, which ordain a complete separation of church and State, become a matter of State regulation as it is in some of the states of Europe.! $ 88.
1 The constitutionality of the regulations of the right to practice law has often been questioned. Thus a statute has been held to be unconstitutional which required attorneys to take an oath that they have not engaged in dueling, as a condition precedent to practicing law. Matter of Dorsey, 7 Port. (Ala.) 293. It had also been held to be unconstitutional for a statute to prohibit one from engaging in the practice of law who had served in the Confederate Army in the war of the rebellion, or to require them to take an oath that they have never taken up arms against the United States. Ex parte Tenney, 2 Duv. (Ky.) 351; Ex parte Law, 35 Ga. 285; Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277 But it is constitutional to require attorneys to take the oath of allegiance to the United States goveroment. Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. And in order that he may be disbarred, precise and specific charges of malpractice or unprofessional behavior must be brought against him, and he must have an opportunity to be heard in his own defense. State o. Watkins, 3 Mo. 480; Matter of Mills, 1 Mich. 392; State o. Start, 7 Iowa, 499; Fisher's Case, 6 Leigh, 619; Withers v. State, 36 Ala. 252; Ex parte Percy, 36 N. Y. 651.
2 By a Massachusetts law it was provided that no one can be permitted to recover by legal process the fees he has earned in the practice of medicine and surgery, unless he has been licensed by the Massachusetts Med.
Regulation of practice in the learned professions.—Not only does the State undertake to prescribe the terms and conditions for the admission of members to the learned professions, so as to exclude dishonest and incompetent men, but in some instances laws have been enacted to regulate the practice of the professions. Thus at common law attorneys were prohibited from making contracts with their clients to receive a certain portion of what is recovered in a suit, as compensation for their services. This was called champerty. It is still the law everywhere, in the absence of a repealing statute ; but public opinion, in respect to the character of the offense, has so far changed that the law has become a dead letter, and reputable attorneys are daily accepting fees, contingent upon the success of the suit, and proportionate to the amount recovered in the judgment. It is also a common rule of the court that attorneys will not be allowed to become bail or surety for their clients in a pending suit.' ical Society or was graduated as a doctor of medicine in Harvard Universe ity: the statute was held to be constitutional. Hewitt v. Charier, 16 Pick. 353. So, also, an act of Nevada, providing that graduation from a medical college was necessary to receive a license to practice medicine except in the case of those who have practiced for ten years in that State, was held to be not unconstitutional, because it does not make a similar exception in favor of those who had practiced for the same length of time elsewhere. Ex parte Spinney, 10 Nev. 323. 1 Cooley on Torts, p. 290; Cooley Const. Law, pp. 231, 232.