Editing Common law (section)

== History ==
{{See also|English law}}

=== Origins ===
The common law{{mdash}}so named because it was common to all the king's courts across England{{mdash}}originated in the practices of the courts of the English kings in the centuries following the [[Norman Conquest]] in 1066.{{sfnp|Langbein|Lerner|Smith|2009|p=4}}  Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various [[shires]] and [[Hundred (county division)|hundreds]].{{sfnp|Langbein|Lerner|Smith|2009|p=4}}  A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed.{{sfnp|Langbein|Lerner|Smith|2009|p=4}} The degree to which common law drew from earlier [[Anglo-Saxon kingdoms|Anglo-Saxon]] traditions such as the [[jury]], [[ordeals]], the penalty of [[outlawry]], and [[writs]] {{ndash}} all of which were incorporated into the Norman common law {{ndash}} is still a subject of much discussion. Additionally, the [[Catholic Church]] operated its own court system that adjudicated issues of [[Canon law of the Catholic Church|canon law]],{{sfnp|Langbein|Lerner|Smith|2009|p=4}} which included much of what would today be regarded as [[family law]].

The main sources for the history of the common law in the Middle Ages are the [[plea rolls]] and the [[Year Books]]. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in [[The National Archives (United Kingdom)|the UK National Archives]], by whose permission images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center).<ref>Documents from Medieval and Early Modern England from the National Archives in London.[http://aalt.law.uh.edu/] {{Webarchive|url=https://web.archive.org/web/20160306122827/http://aalt.law.uh.edu/|date=6 March 2016}}  Publications of the [[Selden Society]] include a Year Books series and other volumes transcribing and translating the original manuscripts of early common law cases and law reports, each volume having its editor's scholarly introduction. [http://www.law.harvard.edu/programs/selden_society/pub.html Publications of the Selden Society]</ref><ref>One history of the law before the Norman Conquest is [[Sir Frederick Pollock, 1st Baronet|Pollock]] and [[Frederic William Maitland|Maitland]], ''The History of English Law before the Time of [[Edward I]]'', .[https://archive.org/details/historyofenglish00polluoft]</ref>

The doctrine of precedent developed during the 12th and 13th centuries,<ref>{{cite journal |last=Jeffery |first=Clarence Ray |year=1957 |title=The Development of Crime in Early English Society |journal=Journal of Criminal Law, Criminology, and Police Science |volume=47 |issue=6 |pages=647–666|doi=10.2307/1140057 |jstor= 1140057 |url=https://scholarlycommons.law.northwestern.edu/jclc/vol47/iss6/2 }}</ref> as the collective judicial decisions that were based in tradition, [[custom (law)|custom]] and [[precedent]].<ref>Winston Churchill, ''A History of the English Speaking Peoples'', Chapter 13, ''The English Common Law''</ref>

The form of reasoning used in common law is known as [[casuistry]] or [[case-based reasoning]]. The common law, as applied in [[civil case]]s (as distinct from [[criminal case]]s), was devised as a means of [[damages|compensating]] someone for wrongful acts known as [[tort]]s, including both [[intentional tort]]s and torts caused by [[negligence]], and as developing the body of law recognizing and regulating [[contract]]s. The type of [[legal procedure|procedure]] practiced in common law courts is known as the [[adversarial system]]; this is also a development of the common law.

=== Medieval English common law ===
[[File:Microcosm of London Plate 094 - Westminster Hall edited.jpg|thumb|A view of [[Westminster Hall]] in the [[Palace of Westminster]], [[London]], early 19th century]]

In 1154, [[Henry II of England|Henry II]] became the first [[Plantagenet]] king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a [[jury]] system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its [[verdict]] through evaluating common [[Traditional knowledge|local knowledge]], not necessarily through the presentation of [[evidence (law)|evidence]], a distinguishing factor from today's civil and criminal court systems.

At the time, royal government centered on the ''[[Curia regis|Curia Regis]]'' (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of [[Parliament of the United Kingdom|Parliament]], the [[Star Chamber]], and [[Privy Council of the United Kingdom|Privy Council]]. Henry II developed the practice of sending judges (numbering around 20 to 30 in the 1180s) from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter.<ref name="Legal">{{Cite book|last=Baker|first=John|url=http://www.oxfordscholarship.com/view/10.1093/oso/9780198812609.001.0001/oso-9780198812609|title=Introduction to English Legal History|date=2019-03-21|publisher=Oxford University Press|isbn=978-0-19-881260-9|edition=5|language=en|doi=10.1093/oso/9780198812609.001.0001}}</ref> The king's itinerant justices would generally receive a [[writ]] or commission under the great seal.<ref name="Legal" /> They would then resolve disputes on an [[ad hoc]] basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as ''stare decisis'' (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law".

The king's object was to preserve public order, but providing law and order was also extremely profitable – cases on forest use as well as fines and forfeitures can generate "great treasure" for the government.<ref>''Croniques de London'' (Camden Soc., 1844), pp. 28–9.</ref><ref name="Legal" /> Eyres (a Norman French word for judicial circuit, originating from Latin ''iter'') are more than just courts; they would supervise local government, raise revenue, investigate crimes, and enforce feudal rights of the king.<ref name="Legal" /> There were complaints of the ''eyre'' of 1198 reducing the kingdom to poverty<ref>''Chronica Rogeri de Houedene'' (RS, 1871), IV, p. 62.</ref> and [[Cornish people|Cornishmen]] fleeing to escape the eyre of 1233.<ref>''Annales Monastici'' (RS, 1864–69), III, p. 135.</ref>

Henry II's creation of a powerful and unified court system, which curbed somewhat the power of [[canon law|canonical]] (church) courts, brought him (and England) into conflict with the church, most famously with [[Thomas Becket]], the [[Archbishop of Canterbury]]. The murder of the archbishop gave rise to a wave of popular outrage against the King. International pressure on Henry grew, and in May 1172 he negotiated a [[Compromise of Avranches|settlement with the papacy]] in which the King swore to go on crusade as well as effectively overturned the more controversial clauses of the [[Constitutions of Clarendon]]. Henry nevertheless continued to exert influence in any ecclesiastical case which interested him and royal power was exercised more subtly with considerable success.

The English [[Court of Common Pleas (England)|Court of Common Pleas]] was established after [[Magna Carta]] in 1215 to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's [[Palace of Westminster#Westminster Hall|Palace of Westminster]], permanently except in the vacations between the four terms of the [[Legal year]].

Judge-made common law operated as the primary source of law for several hundred years, before [[Parliament of England|Parliament]] acquired legislative powers to create [[statutory law]]. In England, judges have devised a number of rules as to [[Mechanisms of the English common law|how to deal with precedent decisions]]. The early development of case-law in the thirteenth century has been traced to [[Henry de Bracton|Bracton]]'s ''On the Laws and Customs of England'' and led to the yearly compilations of court cases known as [[Year Books]], of which the first extant was published in 1268, the same year that Bracton died.<ref>[[Theodore Plucknett|T. F. T. Plucknett]], ''A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp.260–261''</ref> The Year Books are known as the law reports of medieval England, and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into recognizable form.<ref>{{cite web| url = http://www.bu.edu/law/faculty-scholarship/legal-history-the-year-books/| title = BUSL, ''Legal History: The Year Books''}}</ref><ref>Cambridge History of English and American Literature ''The Year Books and their Value''[http://www.bartleby.com/218/1309.html]</ref>

=== Influence of Roman law ===
The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.

By the time of the rediscovery of the [[Roman law]] in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.<ref>E.g., R. C. van Caenegem, ''The Birth of the English Common Law'' 89–92 (1988).</ref> However, the first common law scholars, most notably [[Ranulf de Glanvill|Glanvill]] and [[Henry de Bracton|Bracton]], as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.<ref>E.g., [[Peter Birks]], Grant McLeod, ''Justinian's Institutes'' 7 (1987).</ref> One of the first and throughout its history one of the most significant treatises of the common law, Bracton's ''De Legibus et Consuetudinibus Angliae'' (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's ''[[Corpus Juris Civilis|Institutes]]''.<ref>E.g., George E. Woodbine (ed.), [[Samuel E. Thorne]] (transl.), ''Bracton on the Laws and Customs of England'', Vol. I (Introduction) 46 (1968); Carl Güterbock, ''Bracton and his Relation to the Roman Law'' 35–38 (1866).</ref> The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into ''[[in rem]]'' (typically, actions against a ''thing'' or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and ''[[in personam]]'' (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's ''Commentaries on the Laws of England'',<ref>Stephen P. Buhofer, ''Structuring the Law: The Common Law and the Roman Institutional System'', Swiss Review of International and European Law (SZIER/RSDIE) 5/2007, 24.</ref> and Roman law ideas regained importance with the revival of academic law schools in the 19th century.<ref>Peter Stein, ''Continental Influences on English Legal thought, 1600–1900'', ''in'' Peter Stein, ''The Character and Influence of the Roman Civil Law'' 223 ''et seq''. (1988).</ref> As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent [[unjust enrichment]]) can be found in the civil law as well as in the common law.<ref>See generally Stephen P. Buhofer, ''Structuring the Law: The Common Law and the Roman Institutional System'', Swiss Review of International and European Law (SZIER/RSDIE) 5/2007.</ref>

===Early modern era===

The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke, and was universal among lawyers and judges from the earliest times to the mid-19th century.<ref name="CarpenterColumbiaCourtDecisions" />  However, for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law.<ref name="CarpenterColumbiaCourtDecisions" />

West's encyclopedia of American law, defines common law as "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts."<ref name=WestEnc>{{cite book |last1=Lehman |first1=Jeffrey |last2=Phelps |first2=Shirelle |title=West's encyclopedia of American law, Volume 3 |date=2005 |publisher=Thomson/Gale |location=Detroit |isbn=9780787663704 |page=30 |edition=2nd |mode=cs2<!--to fit this into a sentence-->}}</ref>

=== Coke ===

The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice [[Edward Coke]], in his treatise, ''[[Institutes of the Lawes of England]]'' in the 17th century.

As Sir Edward Coke (1552–1634) put it in the preface to the eighth volume of his ''Reports'' (1600–1615), "the grounds of our common laws" were "beyond the memorie or register of any beginning".<ref>James R. Stoner, Jr., [http://www.nlnrac.org/earlymodern/common-law ''Common Law and the Law of Reason''] ([https://faculty.lsu.edu/poston/index.php Stoner] is a professor of political science, not law)</ref>

=== Blackstone ===

According to [[William Blackstone]] the unwritten law derived its authority from immemorial usage and "universal reception throughout the kingdom".<ref>Sir William Blackstone (1723–1780) in his ''Commentaries on the Laws of England'' (1765–1769)</ref><ref name=congress>Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p 15876</ref> While its precise meaning may have changed since Blackstone's time, in modern usage it is generally understood to mean law that is independent of statutes. This was repeated by the United States Supreme Court in ''Levy v. McCartee'': "It is too plain for argument that the common law is here spoken of, in its appropriate sense, as the unwritten law of the land, independent of statutory enactments".<ref name=congress/>

More specifically, in modern usage, this is understood to mean law that is made by judges, not the [[declaratory statutes]] of Blackstone's era.<ref name=interpretation /><ref>Sir William Blackstone (1723–1780), ''Commentaries on the Laws of England'' (1765–1769): "Statutes are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disreputable; remedial when made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.</ref>

=== Jeremy Bentham ===
The term "judge made law" comes from Jeremy Bentham and the modern practice of adjudication as application of precedent derived from case law begins with Jeremy Bentham's attack on the legitimacy of the common law. The modern legal practice of applying case law as precedent made obsolete the declaratory theory of common law that prevailed in Blackstone's time.<ref>{{cite book |last1=Gearey |first1=Adam |last2=Morrison |first2=Wayne |last3=Jago |first3=Robert |title=The Politics of the Common Law: Perspectives, Rights, Processes, Institutions |date=2013 |publisher=Taylor & Francis |page=115}}</ref><ref>{{cite book |last1=Postema |first1=Gerald |title=Bentham and the Common Law Tradition |url=https://academic.oup.com/book/35287/chapter-abstract/299899893?redirectedFrom=fulltext |doi=10.1093/oso/9780198793052.003.0006}}</ref>

=== Propagation of the common law to the colonies and Commonwealth by reception statutes ===

{{anchor|CL_Reception_Statutes}}A [[reception statute]] is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence common law, to the extent not explicitly rejected by the [[legislative body]] or [[constitution]] of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of [[#Louisiana (1700s)|Louisiana]], have either implemented reception statutes or adopted the common law by judicial opinion.<ref>Edited [https://books.google.com/books?id=wl3KFBnC0P0C Thinking like a lawyer: an introduction to legal reasoning]{{Dead link|date=December 2023 |bot=InternetArchiveBot |fix-attempted=yes }} (Westview Press, 1996), pg. 10</ref>

Other examples of reception statutes in the United States, the states of the U.S., Canada and its provinces, and Hong Kong, are discussed in the [[reception statute]] article.

Yet, adoption of the common law in the newly independent United States was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception.<ref name=BostonSocialLawCommonOrCivil /> Jeffersonians decried lawyers and their common law tradition as threats to the new republic. The Jeffersonians preferred a legislatively enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials. Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer (later President) John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in 1803, lawyers in Massachusetts donated their books to found a law library.<ref name=BostonSocialLawCommonOrCivil />  A Jeffersonian newspaper criticized the library, as it would carry forward "all the old authorities practiced in England for centuries back ... whereby a new system of jurisprudence [will be founded] on the high monarchical system [to] become the Common Law of this Commonwealth... [The library] may hereafter have a very unsocial purpose."<ref name=BostonSocialLawCommonOrCivil />

For several decades after independence, English law still exerted influence over American common law—for example, with ''[[Byrne v Boadle]]'' (1863), which first applied the [[res ipsa loquitur]] doctrine.

=== Decline of Latin maxims and "blind imitation of the past", and adding flexibility to ''stare decisis'' {{Anchor|History_and_Holmes}} ===
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "[[Nemo iudex in causa sua|One cannot be a judge in one's own cause]]" (see [[Dr. Bonham's Case]]), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such as those of Lord Chief Justice [[Edward Coke]], presented the common law as a collection of such maxims.

Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. [[Oliver Wendell Holmes Jr.]] in his famous article, "The Path of the Law",<ref>{{cite journal|volume=10 |journal=Harvard Law Review |pages=457–478 |year=1897|url=http://www.gutenberg.org/ebooks/2373|title=The Path of the Law|first=Oliver Wendell Jr. |last=Holmes|doi=10.2307/1322028|issue=8|jstor=1322028 }}</ref> commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present", but "the man of the future is the man of statistics and the master of economics". In an 1880 lecture at Harvard, he wrote:<ref>[[The Common Law (Holmes)|The Common Law]] {{cite web| url = https://archive.org/details/commonlaw00holmuoft| title = O. W. Holmes, Jr., ''The Common Law''| year = 1882}}</ref>

{{blockquote|The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the [[:w:syllogism|syllogism]] in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the [[:w:axiom|axioms]] and corollaries of a book of mathematics.}}

In the early 20th century, [[Louis Brandeis]], later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in [[Brandeis Brief|his briefs]], and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims.

Reliance on old maxims is now deprecated.<ref>''Acree v. Republic of Iraq'', 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring).</ref> Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like.<ref>Foreign influence over American law is not new; only the controversy.  For example, in ''The Western Maid'', 257 U.S. 419, 432 (1922), Justice Holmes wrote "When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules," and adopted a rule from without to decide the case.</ref> The degree to which these external factors ''should'' influence adjudication is the subject of active debate, but it is indisputable that judges ''do'' draw on experience and learning from everyday life, from other fields, and from other jurisdictions.<ref>[[Roper v. Simmons]], 543 U.S. 551 (2005) (holding unconstitutional to impose capital punishment for crimes committed while under the age of 18, based on "evolving standards of decency", largely based on other nations' law)</ref>

=== 1870 through 20th century, and the procedural merger of law and equity ===
<!-- "Fusion of law and equity" redirects here. Please edit redirect if changing the name of this section header -->
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common law system would petition the King in person. For example, they might argue that an award of damages (at [[#Law as opposed to equity|common law (as opposed to equity)]]) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of [[Equity (law)|equity]], administered by the [[Lord Chancellor]], in the courts of [[Court of equity|chancery]]. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other,<ref>{{harvnb|Salmond|1907|p=34}}</ref> even though it was established by the 17th century that equity should prevail.

In England, courts of law (as opposed to equity) were merged with [[Court of equity|courts of equity]] by the [[Judicature Acts]] of 1873 and 1875, with equity prevailing in case of conflict.<ref>Lobban, Michael "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II | year=2004 | work=Law and History Review, 2004 (University of Illinois Press) . {{ISSN|0738-2480}}.</ref>

In the United States, parallel systems of [[#Disambiguate equity|law]] (providing money [[damages]], with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The [[United States federal courts]] procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new [[Federal Rules of Civil Procedure]] combined [[#Disambiguate equity|law]] and equity into one form of action, the "civil action". Fed.R.Civ.P. {{frcp|2}}. The distinction survives to the extent that issues that were "common law (as opposed to equity)" as of 1791 (the date of adoption of the [[Seventh Amendment to the United States Constitution|Seventh Amendment]]) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.<ref>E.g., ''Markman v. Westview Instruments, Inc.'', 517 U.S. 370, 376 (1996) ("[W]e [the U.S. Supreme Court] have understood that the right of trial by jury thus preserved is the right which existed under the English [[#Disambiguate equity|common law (as opposed to equity)]] when the Amendment was adopted. In keeping with our longstanding adherence to this 'historical test', we ask, first, whether we are dealing with a cause of action that either was tried at [[#Disambiguate equity|law (as opposed to equity)]] at the time of the founding or is at least analogous to one that was. If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." (citations and quotations omitted, holding that interpretation of the scope of a patent had no analogy in 1790, and is thus a question to be decided by a judge, not a jury)</ref>

The states of Delaware, Illinois, Mississippi, South Carolina, and Tennessee continue to have divided courts of law and courts of chancery, for example, the [[Delaware Court of Chancery]]. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division.

=== Common law pleading and its abolition in the early 20th century ===

For centuries, through to the 19th century, the common law acknowledged only specific [[Form of action|forms of action]], and required very careful drafting of the opening pleading (called a [[writ]]) to slot into exactly one of them: [[debt]], [[detinue]], [[covenant (law)|covenant]], special [[assumpsit]], general assumpsit, [[trespass]], [[trover]], [[replevin]], case (or [[trespass on the case]]), and [[ejectment]].<ref>F. W. Maitland, ''The Forms of Action at Common Law'', 1909, [https://legacy.fordham.edu/Halsall/basis/maitland-formsofaction.asp Lecture I], {{Webarchive|url=https://web.archive.org/web/20160622144219/http://legacy.fordham.edu/halsall/basis/maitland-formsofaction.asp |date=22 June 2016 }} or John Jay McKelvey, Principles of Common Law Pleading (1894) or [[James Barr Ames|Ames]], [[Joseph Chitty|Chitty]], [[Henry John Stephen|Stephen]], [[James Bradley Thayer|Thayer]] and other writers named in the preface of Perry's [http://www.lawfulpath.com/ref/commonlawpleadin00perr.pdf ''Common-law Pleading: its history and principles''] (Boston, 1897) or Koffler and Reppy, 1969, [https://kateofgaia.files.wordpress.com/2013/12/handbook-of-common-law-pleadings1.pdf ''Handbook of Common Law Pleading'']</ref> To initiate a lawsuit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific legal terms and phrases that had been traditional for centuries. Under the old common law pleading standards, a suit by a ''pro se'' ("for oneself", without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.

One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.<ref>The remainder of the "common law" discussed in the rest of the article remained intact; all that was abolished were the highly technical requirements for language of the paper provided by the plaintiff to the defendant to initiate a case.</ref> A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.<ref>E.g., Federal Rule of Civil Procedure, Rule 4, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief".</ref> This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.<ref>E.g., Federal Rule of Civil Procedure, Rule 1, civil procedure rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding".</ref>