Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/241

 7. SCRUTTON: ROMAN LAW INFLUENCE 227 Court, which was to possess all jurisdiction on the subject exercisable by any ecclesiastical court, and to proceed and act and give relief on principles and rules which in the opinion of the Court should be as nearly as might be conformable to the principles and rules, on which the Ecclesiastical Courts had heretofore acted and given relief. This law of the Ecclesiastical Courts in the matter of mar- riage had been based on the Canon law, though its authority was much restricted, and depended on its having been re- ceived and admitted by Parliament, or upon immemorial usage and custom. ^ This jurisdiction devolved upon the Clerical Courts from the conception of marriage as a relig- ious sacrament and tie, the nature, validity, and dissolution of which were matters of clerical cognizance. The procedure was " regulated according to the practice of the civil and canon laws, or rather according to a mixture of both, cor- rected and new modelled by their own particular usages, and the interposition of the courts of common law." ^ A well known instance of this is the way in which the law of England dealt with the Roman doctrine of legitimatio ante nuptias. But generally the greater part of the English law on matri- monial causes is derived from the Civil or Canon law. Testamentary Jurisdiction The Testamentary jurisdiction was also in the hands of clerical judges.^ The present Procedure and Practice of the Probate Division of the High Court of Justice are the same, (except as altered by rules under the Judicature Acts), as those in force in the Court of Probate before 1875.'* This Court was created by the Act of 1857/ by which the jurisdic- tion of all ecclesiastical Courts having power to grant pr.o- bfiite of wills was transferred to it, and its practice, except as subsequently provided by rules and orders, was to be ac- cording to the then practice in the Prerogative Court of Canterbury.^ Thus the present jurisdiction of the Probate •Blackstone, iii. 100. •Coote's Probate Practice, 8th edit. London, 1878. •38 and 39 Vic. c. 77 §§ 18, 21, 36 and 37 Vic. c. 66 §§ 23. •20 and 21 Vic. c. 77 § 3. *Ibid. § 29, 30. p.A^D Ct "
 * Shelford On Marriage. London, 1841: pp. 17-21.