The United States has continued the English tradition, in which the personalities of advocates and judges play a greater part in the development of law than those of rulers and legislators. The influence of the legal literature was very great, but above all because this literature was usually the work of practitioners, many of whom became judges: so that the doctrine could appear almost a summary of the jurisprudence.
The English practice of distinguishing between the lawyer (barrister) and the attorney (solicitor), allowing only the latter direct contact with the client, never really existed in America, not even in colonial times. In the United States the legal profession – officially the name is attorney or counselor – at – law – was quickly democratized. Some states, until recently, allowed patronage to all citizens. Very little preparation was required in most states, and the practice entrance exams were one of the simplest. A radical change has taken place largely through the work of voluntary forensic associations – the most important of which is the national organization, the American Bar Association. Cultural requirements and entrance exams have become much stricter. The discipline of the exercise of the profession, which would legally fall within the jurisdiction of the courts, has been left to the associations. This is particularly the case where, as in some western states, the professional order (bar) is constituted as a public corporation and membership is a condition for exercising the profession.
It is a general rule that judges, both government-appointed and elected, must be practicing lawyers, and sometimes only after a certain number of years of practice. The position of the judge, although not exactly the same as that which he has in England, is nevertheless very high both from a social and a professional point of view. The justices of the Supreme Court of the United States enjoy a prestige that is sometimes greater than that of the president of the United States himself.
Jurists had a great deal of activity, on both sides, in colonial disputes. The early parliaments were composed largely of lawyers, and if the proportion has declined more recently, they are nevertheless numerous in state and federal parliaments. Similarly, a great many presidents of the United States were lawyers.
The influence of men like Kent and Story, in the early days of the United States, was based largely on their writings. But John Marshall, Chief Justice of the Supreme Court from 1801 to 1835, was perhaps more effective than any other in giving American law its special color. Other eminent judges in the first half of the century. XIX were John Jay and Roger Taney. The latter’s famous ruling in the Dred Scott case cast a shadow over a notable and influential judicial career. Daniel Webster was perhaps as famous as a forensic speaker and jurist as he was as a politician. Later, Rufus Choate was almost only a practical. The influence of this type of jurist is inevitably short-lived.
Judges Lemuel Shaw of Massachusetts and Thomas Cooley of Michigan gave American law a strong impetus in the sense of common law conservatism, and various Supreme Court justices, of which Bradley and Field can be taken as examples, effectively helped to establish an interpretation. of the 14th amendment which made it the guarantee of property rights, against an opposition of which Judge Hiller was the most eminent figure.
In times closer to us, the figure of Judge Oliver Wendell Holmes is the most prominent. In both the courts of Massachusetts and the Supreme Court in Washington he was the eminent liberal whose admirably written opinions gave classic expression to the fundamental character of the freedoms guaranteed by the Bill of Rights.
Great efforts have been made to improve judges and lawyers, asking for both greater proofs of ability. A tendency already mentioned, to abandon the election of judges, is gaining ground. But it is clear that simple technical changes will not be effective in themselves. The first awareness of the high degree of technical skill necessary for a judge to fulfill his duties must precede any discussion, which is really useful, relating to the methods needed to obtain what the reformers of the century. XVIII seemed essential, an independent, capable and humane judiciary.