英美法律制度-資料下載頁(yè)
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【正文】 reas left open by the mon law, such as the enforcement of trusts, the law of fraud, and relief against penalty clauses in contracts. ? 2. It created new remedies such as specific performance and injunctions. ? 3. It took upon itself more direct interference with monlaw processes. For example, on request of a petitioner who was being sued in a monlaw court, Chancery might order a litigant not to proceed in the monlaw court. On occasion it would take a case already decided in the monlaw courts and decide it anew, with the decision often going the other way. In such cases it would issue a writ of prohibition against the party who had won in the monlaw court, forbidding him to proceed on the basis of that court’s decision. ? These claims to supremacy were vindicated in the early seventeenth century. ? Declination of the Court of Chancery Because the chancellor was a Crown official, his office supported the claims of James I (16031625) and Charles I (16251649) to prerogative powers, ., the claim that all governmental power stemmed from the king and, therefore, that Parliament and the monlaw courts were subsidiary to him. Parliament, of course, opposed these claims. This struggle reached its climax and resulted in the execution of Charles I in 1649 and the abolition of the monarchy. For a time Parliament theoretically reigned supreme in a socalled Commonwealth period followed, in 1654, by a Protectorate headed by Oliver Cromwell, who held the title of Lord Protector but in fact, although not in theory, held dictatorial powers. Cromwell died in 1658, and virtual anarchy ensued until the restoration of the monarchy with the recall of the son of the executed king, who was crowned as Charles II in 1660. During the Commonwealth period, Chancery went into eclipse, to regain its power only with the Restoration. During the eighteenth and early nieenth centuries. Chancery’s rigidity in procedure and technicality in substance rivaled and even surpassed that of the monlaw courts. In addition, the fact that it had only one chief officer, the chancellor who might be asked to review any case decided by the masters in Chancery, made it intolerably slow. Final reform of Chancery procedure did not occur until the middle of the nieenth century. ?Equity is a roguish thing, for it varies with the length of the Chancellor’s foot. –John Selden, a great English historian. Now equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness and edge of the law, and is a universal truth, it does also assist the law where it is defective and weak in the constitution and defends the law from crafty evasions, delusions, and new subtleties, invented and contrived to evade and delude the mon law, whereby such as have undoubted right are made remediless。 and this is the office of equity, to support and protect the mon law from shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy the law, nor create it, but assist it. Lord Cowper (1705) Star Chamber The last of the major courts created before the parliamentary revolution of the seventeenth century was the Star Chamber. Its origin is uncertain, but it appears to have been the remnant of the medieval King’s Council after the separation of Chancery from that body. ? The House of Lords had grown out of the Magna Curia long before 1474, and the House of Commons had been in existence for at least a century and a half by that time. Under Henry VII (14851509), the first of the Tudors, two acts were passed that either conferred or recognized Star Chamber’s jurisdiction. ? After the creation of the Privy Council to assist in executive matters in the 1530’s, Star Chamber became purely a court. It dealt with matters involving magnates who might defy the regular courts, and with matters that threatened the security of the realm, such as criminal libel, conspiracy, fery, and, later, fraud and the punishment of judges. In its inception, Star Chamber was, in a true sense, a court of equity. But its seventeenth century association with the king’s prerogative, its application to criminal and political cases of equity’s traditional broad and unchecked discretion, its use of torture to obtain evidence, and its often inhumane penalties made its later reputation somewhat less than enviable. It finally was abolished by Parliament in 1641. With its passing, the original jurisdiction of the King’s Council over legal matters disappeared. MODERN ENGLISH COURTS ? The Judicature Act of 1873 consolidated a series of statutes, redrafted in the Supreme Court of Judicature (Consolidation) Act of 1925, and overturned the whole classical structure of the English courts.
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