This document provides a historical overview of the development of equity from its origins in Islamic law and early English common law. It discusses how equity emerged to supplement the common law system, beginning in the Court of Chancery. Key figures like Henry II, Lord Nottingham, Lord Hardwicke, and Lord Eldon helped systematize equity into an established body of law. The Judicature Acts of 1873 and 1875 merged the separate courts of law and equity into a single Supreme Court with unified jurisdiction over both legal and equitable claims.

1. Presentation
By
Waqas Balouch

2. Topic
Historical Background of Equity

3. Basic Concept of equity
The basic concept of equity was fetched from Islam
ALLAH Almighty say’s in Holy Quran “surah hujurat” Verse # 13
"O mankind, indeed We have created you from male and female, and have
made you into nations and tribes, that you may know one another. Indeed
the most honored of you in the sight of Allaah is the most righteous.
Indeed, Allaah is Knowing and Acquainted" [Quran 49:13]
اے لوگو! ہم نے تم سب کو ایک (ہی) مرد وعورت سے پیدا کیا ہے اور اس لئے
کہ تم آپس میں ایک دوسرے کو پہچانو کنبے اور قبیلے بنا دیئے ہیں، اللہ کے نزدیک تم سب
میں باعزت وه ہے جو سب سے زیاده ڈرنے والا ہے۔ یقین مانو کہ اللہ دانا اور باخبر ہے
The Holly Prophet (S.A.W) said in khutbah hajj ul wida
an Arab has no superiority over a non-Arab nor a non-Arab has any superiority
over an Arab; also a white has no superiority over black nor a black any
superiority over white - except by piety and good action.

4. Basic Meaning of Common law
The common law forms a major part of the law of many countries,
especially those with a history as British territories or colonies. It is
notable for its inclusion of extensive non statutory law reflecting a
consensus of centuries of judgments by working jurists.
source: Wikipedia

5. Anglo-Saxon Era
Before Common Law the era was called Anglo-Saxon era
Generally the period from 550 to 1066.
● Organized in small
kingdoms
● “Law” during this time
was written (codes)
– influenced by Roman
law.
– created by local
“kings”

6. The Normans
Normans invade in 1066 bringing new culture and language
● By 1080s
Normans
establish well
organized counties
which “administer
local law” and set
up
“local courts.”
William the Conqueror
First king of Normans
1066 to 1086

7. Norman Times (1066-1150)
Court System
● Court of the King – the king was basically the
law when he wanted to be.
● Local Courts – held over from the Anglo-Saxon
system.
– County courts presided over by a Sheriff.
– Hundred courts: dealt with very local matters,
overseen by heads of families.
● Feudal Courts – dealt with all disputes within
the manor, overseen by feudal lord.
● Ecclesiastical courts – Catholic Church courts.

8. Henry I
● Beginning of the 12th
century, Henry I
started sending his
court judges to
preside over local
disputes.
● First signs of
centralization and
procedural
consistency.
King of England from 1100 to 1135.

9. The Beginnings
● Many historians credit
Henry II (1154-1189) for
putting in place the
foundations of the
common law system.
● Yet, well before him,
kings decided disputes
brought to them, and
magistrates did so at a
local level. King of England from 1154-1189

10. Three Ways Henry II Created the
Foundations
● Firmly established a permanent court in
Westminster.
● Created panel of regularly traveling justices.
– they presided over local issues
– decided local cases based on principles used
in
Westminster court.
● Began integrating local courts into a
nationwide system through the issuance of writs
and other procedural reforms.

11. Writs
● Writs: Permission
from the King to use
his courts.
– Circumstances that
entitled a hearing
before the common
law court.
– Fixed the jurisdiction
of the early royal
courts.
– If your issue didn't fall
within one of these
predefined
circumstances, then
you likely could not
get redress in courts
Old writ in England

12. The Early Writ System
● Roughly 40-75 common law writs (number
varied)
● Courts used of ‘legal fictions’ to expand the
their jurisdiction
● This jurisdiction limit led to the increase in
the use of the Chancery Courts.

13. The Writ System Generally
● Three groups of actions, according to
remedy:
– real: recovery of the thing (property title)
– personal: recovery of damages
– mixed: recovery of both the thing and
damages

14. The Legal Profession
● Court staff started off as close advisers to the
King
– Knights or clergy appointed by the King
● Over a few generations (by the mid 1200s)
judges were being appointed based upon their
experience as clerks for earlier judges.
● During this same period of time a quasi
professional class of advocates started
appearing in courts on behalf of parties.

15. Early Use of “Lawyers”
● Early common law
required litigants to
tell their stories to the
court.
● Court language was
formal Latin and
French.
● “Advocates” were
storytellers/translators

16. Early Juries System
● The right to a jury
was enshrined in the
Magna Carta of 1215.
– Yet, juries were used
locally well before
then.
– Juries continued to be
constituted by “peers”
– Juries were asked to
judge behavior based
on local custom.

17. Equity
● As the Common Law
system was
becoming better
organized, it faced a
new challenge . . .
● What to do about the
increasing usage of
Equity to settle
disputes
● What is Equity?

18. Uses of the Word Equity
● body of rules administered by courts of equity
● justice and fairness
● stockholder's proportionate share, or share in a
limited company
● value of property over and above encumbrances
● an equitable right or claim, such as an 'equity of
redemption'

19. According to Snell
The word equity is used in two senses. One is a broad popular sense and
Second is a narrow technical sense.
Broad popular sense
It resembles natural justice or morality.
Narrow technical sense
It may be said to be “ a portion of natural justice which, though of such
A nature as properly to admit of being judicially enforced , was , for
Certain circumstances omitted to be enforced by the common law courts
-an omission which was supplied by the court of chancery”.:
Source: snell’s principles of equity, 27th edn.,p13

20. According to Frederic William Maitland
“No, we ought to think of the relation between
common law and equity not as that between two
conflicting systems, but as that between code and
supplement, that between text and gloss. And we
should further remember this, that equity was not a
self-sufficient system-It was hardly a system at
all-But rather a collection of additional rules. Common
Law was, we may say, a complete system-If the
equitable jurisdiction of the Chancery had been
Destroyed, there still would have been law for every
case, somewhat rude law it may be, and law.
imperfectly adapted to the needs of our time, but still
law for every case. On the other hand if the Common
Law had been abolished equity must have
disappeared also, for at every point is presupposed a
great body of common law”.
Mait land : Lectures on equity, p 153,edn1969
Frederic William Maitland
1850 to 1960

21. Late 13th Century
● Three great courts
existed
– King's Bench
● heard matters dealing
with the Crown
– Court of Common Pleas
● heard all other matters
– Exchequer
● heard petitions to king

22. Exchequer (Chancery)
● King's administrative
office, consisting of:
– Exchequer (treasury)
– Chancery, head by
the Chancellor
● scribe and keeper of
the great seal
● issued writs, initiating
actions in the law
courts
● assisted the king and
his Council with
petitions
Henry Booth,
Chancellor of the Exchequer (1689-1690)

23. When Was Equity Used
● Person cannot get remedy in courts
– usually because he was poor (writs cost money) or
his adversary was too powerful.
– Petition would plead 'for the love or God'
– As Chancellor's power grew, petitioners stopped
going to King and went to Chancellor directly
● Chancellor could:
– create new writ (the weaker the king, the harder it
was to grant new writs)
– provide some other remedy after hearing the party

24. 16th Century
● More is known about Chancellors because
records improved.
● At this time Chancellors applied 'rules of
equity and good conscience.'
– not bound by precedent
– often used common law rules, consulted
judges and lawyers.
– also started using maxims of jurisprudence
borrowed from canon and civil law.

25. Late 16th Century
● Jurisprudence of
Chancery became
settled.
● could enjoin parties to
cases in common law
courts.
– could actually send
someone to jail for
trying to enforce
common law
judgment.

26. King James
● Wanted to exercise
authority over courts.
● issued decree
favoring Chancery
● Chancery never
claimed to be
superior, merely just
and fair.
King of England and Ireland

27. Settled development of modern Equity
Lawyers began to be appointed as Chancellors with the first appointment
of Lord Nottingham (1673-1682) ‘Father of Modern Equity’ – equity was
systemized, classifications to trusts.
Lord Hardwicke (1736-1756) – Laid down general principles of equity.
Lord Eldon (1801-1827)
– Strengthened the idea that decisions
must be based on precedents, he also
consolidated principles developed by
his predecessors.
By 19th Century, equity transformed into a
system of law almost as fixed as the Common
Law.

28. AAddmmiinniissttrraattiioonn ooff LLaaww aanndd EEqquuiittyy
The introduction of Judicature Act 1873 and 1875.
To solve the persistent problems caused by the overlap of Common Law and
Equity.
The old separate courts of common law and equity were abolished.
Out went the Courts of Common Pleas, King’s Bench, Exchequer, and Court of
Chancery.
In came the Supreme Court of Judicature, with each division exercising both
equitable and legal jurisdiction.
Thus any issue can be adjudicated in any division; and any point of law or
equity can be raised and determined in any Division; but, for the sake of
administrative convenience, cases are allocated to the divisions according to
their general subject-matter.
Source : www.ukparliamentary.com

29. In Case of Pugh v Heath (1882)
Lord Cairns remarks
Thus the court "is now not a Court of Law or a Court
of Equity, it is a Court of complete jurisdiction.“

30. Sec 25(11) of the Judicature Act 1873
“In all cases in which there was a conflict or variance
between the rules of equity and the rules of common law
with reference to the same matter, the former shall prevail”.

31. Oxford's Case (1616) 1 Rep Ch 1
The common law court gave a verdict in
favor of one party and the Court of Equity then
issued an injunction to prevent that party from
enforcing that judgment. The dispute was
referred to the King who asked the Attorney-
General to make a ruling. It was decided that in
cases of conflict between common law and
equity, equity was to prevail.

32. Fast forward
● So do common law systems still have a Court
of Chancery or Equity Court?
– England = no (Judicature Acts of 1875)
– U.S. federal = no (merged around same time)
– U.S. states
● historically the northeast states never had equity
courts
but the southeast did.
● Only four states have separate courts ( Delaware
, Mississippi , Alaska, and Tennessee).
● Common Law and Equity are merged.

33. Does Equity Still Matter?
● Yes. It never really was a self-sufficient,
separate system.
● Equitable claims and remedies still exist
today
– Either adopted by courts
– or codified into law
● Equitable principles are still used by courts
when required by fairness.

34. Abraham Lincoln's 5000 cases
At Law
● assumpsit's (1,240
cases)
● debt (667 cases)
● criminal (27 cases)
● appeals before the
Illinois Supreme Court
(400)
● cases in the federal
District and circuit courts
(at least 340)
At equity
● mortgage foreclose
(more than 200 cases)
● petition for injunction to
partition real estate (142
cases)
● petitions to sell real
estate to pay debts (75
cases)
● divorce cases (145)
● dower petitions (

35. Some Principles of Equity
● equity acts in personam
● equity acts on the conscience
● equity aids the vigilant
● equity will not suffer a wrong without a remedy
● equity looks at the intent, not at the form
● he who seeks equity must do equity
● he who comes to equity must come with clean
hands
● equality is equity
● equity looks on that as done which ought to be
done

36. Modern Codes & Equity
● California Civil Code (a few examples)
– For every wrong there is a remedy = (maxim)
equity will not suffer a wrong without a remedy.
– The law helps the vigilant = (maxim) equity aids
the vigilant.
– The law respects form less than substance =
equity looks at intent, not at form.

37. Thank you
For your precious time