Ordinary (Roman law, judex ordinarius), in its proper sense, or that which it bore in the Roman law, a judge who took cognizance of causes in the regular course and proper right of his office, and not by way of special deputation. This acceptation of the word is very exactly preserved in the ecclesiastical law, though in books of the common law the bishop who is the ordinary in England is familiarly referred to as " one who has ordinary jurisdiction in causes ecclesiastical." The bishop of each diocese is the ordinary therein. In virtue of his office he certifies excommunications, the lawfulness of marriages, and the like ecclesiastical and spiritual matters, to the courts of common law. Formerly, and until the statute 8 Elizabeth, c. 4, under claim of the benefit of clergy, he asserted an exclusive jurisdiction over his clerks. But the particular and most prominent judicial function of the ordinary consisted in his grant of probate of wills and letters testamentary. Of these matters the bishops, or in certain cases the archbishops, had for many centuries, and until very recently, exclusive jurisdiction. It has been much discussed whether the probate of wills and the granting of administrations were matters entirely and originally of ecclesiastical cognizance.
It is now the better opinion that they were not, but that they belonged to the county courts, or to the courts baron of the lords of manors. Certainly these courts existed and wills were made before an ecclesiastical jurisdiction was established. After that was done, and until the time of the conquest, the bishop sat with the earl in the county court. The spiritual and temporal courts were separated in the time of William I., but it is not clear to which of the two the cognizance of wills was intrusted. But Spel-man asserts, mainly on the authority of (ilan-vil, that in the times of Henry I. and Henry II. testamentary causes were regularly heard in the ecclesiastical courts. Since that time the probate jurisdiction of all the dioceses has been in the bishops' or archbishops' courts; and from it the forms and method of probate jurisdiction were borrowed in the United States, with more or less change. But by the "probate act" of 20 and 21 Victoria (1857), and by an additional act of 1858, the whole of the probate jurisdiction of England was taken from the ordinary, and vested in a court of probate. - In the United States the officer to whom probate of wills is committed is called in some judge of probate, in others ordinary register, or surrogate. (See Probate).