精彩内容 Third Period: Growth of Equity (1485-1832) (1) Emergence of Equity The strict compliance with formalist procedure exposed the common law to two dangers: that of not developing with sufficient freedom to meet the needs of the period and that the dangers of becoming paralyzed because of the conservatism of the legal world of the time. Unfortunately, these shortcomings of the royal courts could not be rectified or corrected by other courts that had general jurisdiction, for these courts were themselves in decline and gradually disappeared from the scene. The situation led to the eventuality that in a number of cases, no just solution could be found. In seeking another way of obtaining redress, a direct appeal to the King, the fountain of all justice and favor, was the logical and natural option. In cases of no solution or shocking solution, people addressed the King ask him to intervene as an act of royal grace to satisfy conscience and as a work of brotherly love. As the King's confessor, the Chancellor had the responsibility of guiding the King's conscience and would, if he thought it appropriate, transmit the request to the King for judgment in his council. In other countries, the judges themselves could supply the required remedy by prohibiting the abuse of a right or fraud, or by applying the principle of public order and good morals; such remedies were possible on the European continent within the very framework of the legal principles. In England, however, the royal courts did not have same freedom of action because they had never had the same general jurisdiction and were bound to observe rigid procedures. This recourse to the royal prerogative, perfectly justifiable and unopposed so long as it remained exceptional, could not fail to give rise to a conflict when it became institutionalized and developed into a system of legal rules set up in opposed to the common law.Gradually request for intervention by the Chancellor became more frequently; the practice became institutionalized. At the time of the Wars of the Roses (1453-1485), the Chancellor became a more and more autonomous judge deciding alone in the name of King and his council. Decisions were made on the basis of “the equity of the case.” Equitable doctrines grew out of the chancellor’s decisions. These worked to add to and correct the legal principles applied by the royal courts.After 1529, the Chancellor no longer served as confessor to the sovereign and was not an ecclesiastic but examined the petitions addressed to him as a real judge and observed a written procedure inspired by Canon law. The substantive principles he applied were also largely taken from Roman law and Canon law rather than the
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