“The genesis of English polity and the structure of its legal system are the result of the

Norman Invasion of 1066 by which William I seized control of the entire kingdom.” 1After
the Norman’s Conquest, the Normans had introduced a legal system that was common to the
whole kingdom thereby developing the “common law” system. To this end, the Court of the
King’s Bench had been created to deal with legal matters and from this court the common
law principles were generated.2
There were many downfalls that developed from the common law system. The legal system
was plagued with corruption and inefficiency. Juries were bribed or intimidated so that a
litigant could not obtain justice. ‘Distrust of juries is an important factor in the early
popularity of equity courts’.3 The jury system also obstructed the development of the law, as
the judges were forced to concentrate on explaining the law to the jury as opposed to framing
and expanding the parameters of the law.
Additionally, the procedures of the common law courts were often ill-suited to deal with
cases which required the personal attendance of the parties and witnesses and commanding a
party to do, or not to do, an act. The common law courts were better suited to deal with
disputes concerning land where, rather than deal with an individual directly, his land could be
taken from him. 
Another major downfall of the common law system was the strict writ system. In 1258 the
Provisions of Oxford laid down that any new writ had to fit the formula of a previous one and
so, if one could not be found in the register of writs, the plaintiff was unable to bring his case.
Whatever the reason for this, its effect was far reaching as it stultified the development of the
common law and the gap had to be filled by another system of law. 4(Duddington, p.10) 
For these, and other reasons, litigants took to petitioning the King’s Council to do justice.
The root of equity stemmed from the inadequacies of the common law. Strictly speaking, the
principles of equity are the rules which have been developed by the Courts of Chancery over
the centuries.5
The early common law, although beneficial, became unable to respond to the needs of
society. Accordingly, those with grievances started to take them directly to the King who, in
time, passed them on to his Chancellor. The Chancellor, being an ecclesiastic, decided them
according to general principles of justice and so equity was born. Thus, in the 15th century
the chancery evolved into a judicial body known as the Court of Chancery.6

Notably, equity and common law were two distinct systems of law, utilized within two
separate courts in England.7 Equity would conflict with common law since equity was used as
an advantage by some to prevent the enforcement of the common law rules as shown in the
1615 case of the Earl of Oxford.8 In this case the attorney general Sir Francis Bacon stated

1
Alastair Hudson (2003) Equity & Trusts. London: Cavendish Publishing Limited. 3rd edn. p. 10
2
Ibid.
3
Plucknett (1948) A Concise History of the Common Law. London: Butterworths. 4th edn
4
John Duddington (2006) Essentials of equity and Trust law. Harlow, England: Pearson Education Limited. p.
10
5
Alastair Hudson (2008) Understanding Equity and Trusts. London: Cavendish Publishing Limited. 3rd edn. p. 1
6
T. Cockburn, T, Harris, W, & Shirley, M, (2005) Equity & Trusts. Butterworths
7
Ibid.
8
1 Rep Ch 1 at 6
that: “in the event of any conflict between the common law and the law of equity, equity
would prevail’.

After equity had become a regular system of law, and a rival to the common law, it became
just as, if not more so, hidebound by technicalities than the common law had been and so the
disease ended up worse than the cure. This distinction between equity and common law was
ended by the Judicature Act of 1873, which completed the process of reform of equity, and
now both equity and the common law are administered side by side in the same courts.9

Despite the clear distinction between common law and equity prior to the Judicature Act of
1873, the Chancellor was not the first to base legal decisions on notions of justice and
fairness. In a 1309 case a man who had promised to hand over a document by a certain day or
face a penalty had failed to do so. He was unable to do so as he was overseas at the time and
pointed out that the creditor had suffered no damage by the delay. The court took the point
and told the creditor that he would have to wait seven years for the money. Here at a very
early date we see the courts applying very much the idea of equity suggested by Aristotle.10
Furthermore, there is evidence to support the fact that the common law courts were prepared
to grant remedies which look very similar to the equitable remedies granted later by the
Chancellor and which have been seen as one of the distinctive contributions of equity to
English law.

9
Duddington (2006) p. 8-9
10
Allen (1964) Law in the Making. Oxford: Oxford University Press. 7th edn