Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/238

 224 //. FROM THE llOO'S TO THE 1800'S I Without proceeding to a more detailed examination enough I has been said to show that though usually the details of the Equitable Jurisdiction were worked out by the Chancellors on English lines, the subjects of jurisdiction and the powers of the Court were largely derived from the functions of the Praetor, and that this was due in the main to the influence of the early Clerical Chancellors. At present however the Courts of Chancery and Common law stand towards the Civil or any other law in no different relation. As Blackstone has said, ^ " In matters of positive right, both Courts must submit to and follow ancient and invariable maxims . . . where they exercise a concurrent jurisdiction they both follow the law of the proper tribunal; in matters originally of ecclesiastical cognizance, they both equally adopt the Canon and Imperial law, according to the nature of the subject." But the nature of the subjects which come before the Chancery is more likely to call for its re- course to the Canon or Civil law, than those which are dis- cussed in the Common Law Courts, and therefore Blackstone recognizes in 1763 that in the Chancery " the proceedings are to this day in a course much conformed to the Civil law." 2 3. Roman Law in the Ecclesiastical Courts Of the Ecclesiastical Courts, Hale says : * " the rule by which they proceed is the Canon law, but not in its full lati- tude, and only so far as it stands uncorrected, either by con- trary acts of Parliament, or by the common law and custom of England: when the canon law is silent, the civil law is taken in as a director, especially in points of exposition and determination touching wills and legacies." Their jurisdic- tion may be treated of under two heads: (1) that relating solely to the internal life and worship of the Church of England; (2) that affecting the whole realm, such as the testamentary and matrimonial jurisdiction. The first head may be shortly dealt with. The separation »BI. ill. 436. » Bl. i. 20.
 * Hist. C. L. 28. »