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Roman Law Timeline

Roman Law Timeline


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  • 450 BCE

    The laws of the 'Twelve Tables', the basis of Roman law, are compiled.

  • 367 BCE

    Law passed enabling Roman plebians to become consuls.

  • 339 BCE

    The leges Publilae decrees that one of Rome's two censors must be a plebeian.

  • c. 242 BCE

    Special magistrates (praetor peregrinus) begin to oversee legal disputes concerning non-Roman citizens.

  • 131 CE

    The Praetor's Edict is first codified, an annual pronouncement on alterations to Roman law.

  • 212 CE

    Caracalla's edict grants Roman citizenship to all free inhabitants of the Roman Empire.

  • c. 292 CE

    The 'Codex Gregorianus' is compiled, a collection of summaries of Roman legal documents.

  • 295 CE

    The 'Codex Hermogenianus' is compiled, a collection of summaries of Roman legal documents.

  • c. 430 CE - 439 CE

    The 'Theodosian Code', a collection of over 2,700 Roman laws is compiled.

  • 528 CE - 534 CE

    The 'Codex Iustinianus' is compiled, a collection of summaries of Roman legal documents.

  • 533 CE

    The 'Digest' part of the 'Corpus Iuris Civilus' is composed and summarises over 2000 Roman legal documents.


Roman law

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Roman law, the law of ancient Rome from the time of the founding of the city in 753 bce until the fall of the Western Empire in the 5th century ce . It remained in use in the Eastern, or Byzantine, Empire until 1453. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East. It forms the basis for the law codes of most countries of continental Europe (see civil law) and derivative systems elsewhere.

The term Roman law today often refers to more than the laws of Roman society. The legal institutions evolved by the Romans had influence on the laws of other peoples in times long after the disappearance of the Roman Empire and in countries that were never subject to Roman rule. To take the most striking example, in a large part of Germany, until the adoption of a common code for the whole empire in 1900, the Roman law was in force as “subsidiary law” that is, it was applied unless excluded by contrary local provisions. This law, however, which was in force in parts of Europe long after the fall of the Roman Empire, was not the Roman law in its original form. Although its basis was indeed the Corpus Juris Civilis—the codifying legislation of the emperor Justinian I—this legislation had been interpreted, developed, and adapted to later conditions by generations of jurists from the 11th century onward and had received additions from non-Roman sources.


MEDIEVAL ROMAN LAW

Roman law continued to influence European law after the fall of the Western Roman Empire to Germanic tribal rule, but it did so not as territorial law but as merely the personal law of the section of the population claiming to be Roman rather than Germanic. Among the Germanic kingdoms of western Europe, rulers such as the Visigothic kings of Spain used vulgarized forms of Roman law for their Roman subjects. The basis for these laws was usually the Theodosian Code rather than Justinian's, since the former was disseminated before the collapse of the Western Roman Empire. Justinian's corpus was not compiled until after Roman power was largely lost in the West. Roman law also influenced western Europe, because it was used as the basis of canon (church) law in the Corpus Juris Canonici (Body of Canon Law), and Roman civil and canon law also became the basis of the ius commune, a set of legal principles generally accepted throughout Europe. Within each developing state of the late Middle Ages and the early modern period, Roman law had varying impact on local and royal laws, depending on the geographical proximity to the old Roman imperial areas and individual developments within the separate states.

Although it was taught continuously in the East, it was not until the late eleventh century that the West rediscovered the Corpus Juris Civilis of Justinian, and the text was then studied and taught at the medieval universities throughout western Europe beginning in the twelfth century. This new study of the Corpus Juris Civilis began in Bologna, Italy, at the university's law school, and it became popular for a number of reasons. The Roman Empire of Justinian and the medieval Holy Roman Empire were conflated in the minds of many. Justinian was seen as a Holy Roman Emperor and his laws as imperial legislation. In addition, twelfth-century jurists recognized that Roman law represented a high development of legal thought, and they saw Roman law as "written reason" and hence superior to other law.

University scholars not only studied the Corpus Juris Civilis, they also added their own explanations and interpretations, which often became as important as the original text. The earliest of these scholars were known as the glossators, who wrote marginal or interlinear comments called glosses on the entire text of Justinian. In this process they discovered some inconsistencies and contradictions that Tribonian's hurried committee had not managed to eliminate. Glossators tried to resolve such discrepancies by interpretation. Between 1220 and 1250 the glossator Franciscus Accursius compiled a collection of selected glosses, which became known as the Glossa ordinaria (or Magna glossa ).

Following the glossators were the commentators (or postglossators). They did not merely continue the glossators' work but also contributed their own legal knowledge by writing original commentaries on the Corpus Juris Civilis and the Glossa ordinaria. They also applied the law to their own time by writing legal opinions in response to questions concerning real cases. Two of the most significant of the early commentators were Bartolus of Saxoferrato and Baldus of Ubaldis. The commentators were most active in the fourteenth and fifteenth centuries, and, like the glossators, most were Italian.


Roman Law

Most scholars cite the Roman system as the most important tradition influencing Western law. Roman law was less egalitarian than Athenian law, since its first purpose was to protect aristocratic landholders. Furthermore, the spread of Roman law occurred through empire and military dominance. Yet, the Roman tradition also implanted several basic principles of the rule of law, including the need for public knowledge of civil law and judicial procedures, that the law should be stable and evolve according to precedent and circumstances, and that natural law (the universal rights of man) can provide the basis for positive (man-made) law. The Roman tradition was maintained under the Byzantine Empire and over time was incorporated into much of European law and practice throughout the Holy Roman Empire.


Table Three

If anyone defrauded another by not returning what was given to him for safe keeping, he would have to pay twice the amount in penalty. There was now a maximum rate of interest, the unciarum faemus (foemus?) (most likely 10%) For the payment of a debt confirmed by a court one had thirty days to pay.

Thereafter one could be seized by force and the court would hand one to the creditor for a term of up to sixty days (most likely for labour). Thereafter one could be sold into slavery. A non-Roman could not acquire property by usucapio (See Table Four). A Roman proprietor could always demand it to be restored back to him.


The Dominate vs The Principate

Understanding the labels may help make this period easier to understand. The French refer to the Dominate as

le Bas Empire le Haut Empire Le Haut Empire dominus Dominus vobiscum le Bas Empire


Historical Timeline

"In Athens and other Greek city-states [approximately 1100 BC - 400 BC], the status of atimia [literally without honor, a form of disenfranchisement] was imposed upon criminal offenders. This status carried the loss of many citizenship rights, including the right to participate in the polis (polity). Of course, only elites had those rights to begin with, so disenfranchisement [losing the ability to vote] was a penalty imposed on deviant elites.

In ancient Rome, the related punishment of infamia [loss of public rights] could be imposed on criminal offenders. In this case, the principle penalties were loss of suffrage and the right to serve in the Roman legions (a desired opportunity).

In medieval [a historical period ending in the 16th Century] Europe, the legal doctrines of 'civil death' and 'outlawry' carried forward similar notions. As with atimia, those punished with civil death generally suffered a complete loss of citizenship rights (in some early Germanic texts, outlaw status meant a 'loss of peace' that was comparable to becoming a wolf, since the outlaw had to 'live in the forest'). In extreme cases, civil death could be injurious or fatal, since outlaws could be killed by anyone with impunity, or have their property seized. In most medieval contexts, political rights held little substantive meaning. But the civil death model carried over into parts of modern criminal law."

Jeff Manza, PhD and Christopher Uggen, PhD Locked Out: Felon Disenfranchisement and American Democracy, 2006

1607 - 1776 - Practice of 'Civil Death' Is Carried over to the British Colonies in America

"Criminal disenfranchisement has its roots in the punishment of 'civil death,' imposed for criminal offences under Greek, Roman, Germanic and later Anglo-Saxon law. English law developed the related punishment of attainder which resulted in forfeiture of all property, inability to inherit or devise property, and loss of all civil rights. These principles were transplanted to the British colonies [the first British settlement was established at Jamestown, Virginia in 1607] which later became Canada and the United States [in 1776]."

Debora Parkes, LLM "Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws," Temple Political and Civil Rights Law Review, Fall 2003

1764 - 1776 - Public Debate Ensues in the British Colonies over Whether Voting Is a Right or a Privilege

"[A]side from property qualifications, there were no firm principles governing colonial voting rights, and suffrage [voting] laws accordingly were quite varied. In practice, moreover, the enforcement of application of suffrage laws was uneven and dependent on local circumstances.

[T]he revolutionary period [roughly 1764-1776]. witnessed heated public exchanges and sharp political conflict over the [voting] franchise. Implicit in these arguments was the claim that voting was not a right but a privilege, one that the state could legitimately grant or curtail in its own interest.

Yet there was a problem with this vision of suffrage as a right. there was no way to argue that voting was a right or a natural right without opening a Pandora's box. If voting was a natural right, then everyone should possess it.

[S]everal important legal and jurisdictional issues also were shaped, or structured, during the revolutionary period. The first was that suffrage was defined as a constitutional issue. Implicit in this treatment was the notion that suffrage requirements ought to be durable and difficult to change."

1789 - US Constitution Forges a Link Between Voting in National Elections and State Suffrage Rules

Artist's rendition of the signing of the United States Constitution in 1789
Source: "Scene at the Signing of the Constitution of the United States," commons.wikimedia.org (accessed June 28, 2013)

"Under the Articles of Confederation [ratified in 1777], the states had retained complete control over the [voting] franchise. But the Constitution of the United States forged a link between state suffrage rules and the right to vote in national elections: those who participated in elections for the 'most numerous Branch of the state legislature'. there was no formal debate about the possibility of a national standard more inclusive than the laws already prevailing in the states. Indeed, the records of the federal convention and state constitutional conventions suggest that most members of the new nation's political leadership did not favor a more democratic franchise.

By making the franchise in national elections dependent on state suffrage laws, the authors of the Constitution compromised their substantive disagreements to solve a potentially explosive political problem. citizenship in the new nation - controlled by the federal government - was divorced from the right to vote."

Apr. 19, 1792 - Kentucky Constitution Is First among US States to Establish Criminal Disenfranchisement

Kentucky's state constitution is ratified. It states "Laws shall be made to exclude from. suffrage those who thereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors."

July 9, 1793 - Vermont Constitution Establishes Criminal Disenfranchisement

Vermont's state constitution is ratified. It gives authority to the state supreme court to disenfranchise those guilty of bribery, corruption, or other crimes.

1800-1849

Nov. 29, 1802 - Ohio Constitution Establishes Criminal Disenfranchisement

Ohio's state constitution is ratified. It states "The legislature shall have full power to exclude from the privilege of voting. any person convicted of bribery, perjury, or otherwise infamous crime."

Jan. 22, 1812 - Louisiana Constitution Establishes Criminal Disenfranchisement

Louisiana's state constitution is ratified. It states "Laws shall be made to exclude from. suffrage those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors." It also specifically bars from voting those convicted of being "engaged in a duel with deadly weapons against a citizen of Louisiana."

June 10, 1816 - Indiana Constitution Establishes Criminal Disenfranchisement

Indiana's state constitution is ratified. It states "The General Assembly shall have full power to exclude from the privilege of electing, or being elected, any person convicted of an infamous crime."

July 7, 1817 - Mississippi Constitution Establishes Criminal Disenfranchisement

Mississippi's state constitution is ratified. It states "Laws shall be made to exclude from. suffrage, those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors."

Oct. 12, 1818 - Connecticut Constitution Establishes Criminal Disenfranchisement

Connecticut's state constitution is ratified. It bars from voting "those convicted of bribery, forgery, perjury, dueling, fraudulent bankruptcy, theft, or other offense for which an infamous punishment is inflicted."

July 5, 1819 - Alabama Constitution Establishes Criminal Disenfranchisement

Alabama's state constitution is ratified. It states "Laws shall be made to exclude from. suffrage. those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors."

June 12, 1820 - Missouri Constitution Establishes Criminal Disenfranchisement

Missouri's state constitution is ratified. It states "The General Assembly shall have power to exclude. from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime." The constitution also specifically bars those convicted of electoral bribery for ten years.

Aug. 28, 1821 - New York Constitution Establishes Criminal Disenfranchisement

New York's state constitution is ratified. It states "Laws may be passed by excluding from the right of suffrage persons. convicted of infamous crimes."

Jan. 14, 1830 - Virginia Constitution Establishes Criminal Disenfranchisement

Virginia's state constitution is ratified. It specifically bars from voting those "convicted of an infamous crime."

Nov. 8, 1831 - Delaware Constitution Establishes Criminal Disenfranchisement

Delaware's state constitution is ratified. It states "The legislature may impose the forfeiture of the right of suffrage as a punishment of crime." The constitution also specifically bars from voting those convicted of a felony.

May 1834 - Tennessee Constitution Establishes Criminal Disenfranchisement

Tennessee's state constitution is ratified. It states "Laws may be passed excluding from the right of suffrage persons who may be convicted of infamous crimes."

Dec. 3, 1838 - Florida Constitution Establishes Criminal Disenfranchisement

Florida's state constitution is ratified. It states "Laws shall be made by the General Assembly to exclude from. suffrage those who shall have been, or may thereafter be, convicted of bribery, perjury, forgery, or other high crime or misdemeanor." It also states that "the General Assembly shall have power to exclude from. the right of suffrage, all persons convicted of bribery, perjury, or other infamous crimes." The constitution came into effect in 1845 when Florida became a U.S. state.

Nov. 5, 1842 - Rhode Island Constitution Establishes Criminal Disenfranchisement

Rhode Island's state constitution is ratified. It specifically bars from voting those "convicted of bribery or of any crime deemed infamous at common law, until expressly restored to the right of suffrage by an act of General Assembly."

June 29, 1844 - New Jersey Constitution Establishes Criminal Disenfranchisement

New Jersey's state constitution is ratified. It specifically bars from voting those "convicted of felonies unless pardoned or restored by law to the right of suffrage." It also states "The legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of bribery."

Nov. 5, 1845 - Louisiana Constitution Ratified to Bar Anyone Sentenced to Hard Labor from Voting

Louisiana's state constitution specifically bars from voting those "under interdiction" or "under conviction of any crime punishable with hard labor."

Aug. 27, 1845 - Texas Constitution Establishes Criminal Disenfranchisement

Texas' state constitution is ratified. It states "Laws shall be made to exclude. from the right of suffrage those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes."

Aug. 3, 1846 - Iowa Constitution Establishes Criminal Disenfranchisement

Iowa's state constitution is ratified. It bars from voting those "convicted of any infamous crime."

Nov. 3, 1846 - New York Constitution Ratified to Bar Persons Convicted of "Infamous" Crimes from Voting

New York's new state constitution is ratified. It states "Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny, or of any other infamous crime. and for wagering on elections."

Feb. 1, 1848 - Wisconsin Constitution Establishes Criminal Disenfranchisement

Wisconsin's state constitution is ratified. It states "Laws may be passed excluding from the right of suffrage all persons. convicted of bribery, or larceny, or any infamous crime. and for betting on elections."

Nov. 1849 - California Constitution Establishes Criminal Disenfranchisement

California's state constitution is ratified. It states "Laws shall be made to exclude from. the right of suffrage those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." The constitution also specifically bars from voting "those convicted of any infamous crime." The constitution came into effect with statehood in 1850.

1850-1899

June 4, 1851 - Maryland Constitution Establishes Criminal Disenfranchisement

Maryland's state constitution is ratified. It bars from voting persons "convicted of larceny or other infamous crime" unless pardoned by the executive also persons convicted of bribery at elections are "forever disqualified from voting."

Aug. 29, 1857 - Minnesota Constitution Establishes Criminal Disenfranchisement

Minnesota's state constitution is ratified. It specifically bars from voting those "convicted of treason or felony until restored to civil rights." This came into effect with statehood in 1858.

Nov. 1857 - Oregon Constitution Establishes Criminal Disenfranchisement

Oregon's state constitution is ratified. It specifically bars from voting those "convicted of crimes punishable by imprisonment." This constitution came into effect with statehood in 1859.

Feb. 3, 1870 - 15th Amendment to the US Constitution Gives the Vote to Former Slaves and Prohibits Racially Based Disenfranchisement

1867 wood engraving print image of African American men voting by A.R. Waud
Source: Library of Congress, "The Right to Vote," www.loc.gov (accessed June 28, 2013)

The US Constitution's 15th Amendment is ratified on Feb. 3, 1870. It stipulates: "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have the power to enforce this article by appropriate legislation."

1882 - US Congress Passes the Edmunds Act, Banning Polygamists from Voting

"In 1882 Congress passed the Edmunds Act. It restated that polygamy was a felony punishable by five years of imprisonment and a $500 fine. Convicted polygamists were disenfranchised and were ineligible to hold political office."

Utah History Encyclopedia "Polygamy," www.media.utah.edu (accessed July 15, 2009)

1900-1949

1901 - New Alabama Constitution Expands Criminal Disenfranchisement in Effort to Maintain White Supremacy

"Between 1890 and 1910 many states adopted new laws or reconfigured preexisting laws to handicap newly enfranchised black citizens whose rights had been expanded by both the Fourteenth and Fifteenth Amendments.

The purpose of these various measures, as the President of Alabama's all-white 1901 constitutional convention explained, was 'within the limits imposed by the Federal Constitution to establish white supremacy.'"

The 1901 Constitution stated the following: "The following persons shall be disqualified both from registering, and from voting, namely:

All idiots and insane persons those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector."

Elizabeth Hull, PhD The Disenfranchisement of Ex-Felons, 2006

1950-1999

Sep. 9, 1957 - President Eisenhower Signs the Civil Rights Act of 1957

"Congress passes the Civil Rights Act of 1957, giving the U.S. Attorney General the authority to bring lawsuits on behalf of African Americans denied the right to vote. The Civil Rights Act of 1957 is the first such measure to pass Congress since adoption of the federal civil rights laws of 1875. Among other things, the Act authorizes the U.S. Attorney General to sue to correct discrimination and intimidation of potential voters."

American Civil Liberties Union (ACLU) "Voting Rights Act Timeline," www.aclu.org Mar. 4, 2005

Aug. 6, 1965 - President Johnson Signs the Voting Rights Act

President Lyndon Johnson signing the Voting Rights Act
Source: National Archives, "Photograph of President Lyndon Johnson Signing the Voting Rights Act," archives.gov, Aug. 6, 1965

"President Johnson signed the [Voting Rights Act] into law on August 6, 1965. Section 2 of the Act, which closely followed the language of the 15th amendment, applied a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis. Among its other provisions, the Act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest. Under Section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect. In addition, the Attorney General could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county's polling place."

US Department of Justice "The Voting Rights Act of 1965," www.usdoj.gov (accessed July 15, 2009)

[ Editor’s Note : The Voting Rights Act was renewed in 1970 for five years, 1975 for seven years, 1982 for 25 years, and in 2006 for an additional 25 years. On June 25, 2013, in the case Shelby v. Holder , the United States Supreme Court struck down section 4 of the Voting Rights Act in a 5-4 decision.]

May 24, 1966 - California Supreme Court in Otsuka v. Hite Defines the Term "Infamous Crimes"

The California Supreme Court rules in Otsuka v. Hite that the phrase "infamous crimes" in the state constitution should only disenfranchise those "deemed to constitute a threat to the integrity of the elective process."

June 13, 1967 - New York Supreme Court Rules That Criminal Disenfranchisement Is Reasonable and Constitutional in Green v. Board of Elections

The New York Supreme Court rules in Green v. Board of Elections that criminal disenfranchisement statutes are constitutional, arguing that "a man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact. It can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws. "

Nov. 16, 1972 - Federal Appeals Court Argues That "Constitutional Concepts" Should Evolve Along with Modern Concepts of Justice and Punishment

The Ninth Circuit Court of Appeals stated in Dillenburg v. Kramer that "courts have been hard pressed to define state interest served by laws disenfranchising persons convicted of crimes. Search for modern reasons to sustain the old governmental disenfranchisement prerogative has usually ended with a general pronouncement that a state has an interest in preventing persons who have been convicted of serious crimes from participation in the electoral process or a quasi-metaphysical invocation that the interest is preservation of the 'purity of the ballot box.'.

Earlier in our constitutional history, laws disenfranchising persons convicted of crime may have been immune from attack. But the constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber."

The ruling overturned a lower court decision denying the appellant, Byrle L. Dillenburg, a chance to have a three judge panel in US district court decide whether or not Washington's criminal disenfranchisement law was unconstitutional.

June 24, 1974 - US Supreme Court Rules That Disenfranchising Convicted Felons Does Not Violate the Equal Protection Clause of the US Constitution

The US Supreme Court rules in a 6-3 decision in Richardson v. Ramirez that "California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause.

Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions. recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision.

But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened one, presumably the people of the State of California will ultimately come around to the view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument."

Nov. 5, 1974 - California Amends Constitution to Allow Felons to Vote After Completion of Incarceration and Parole

"In November of 1974, California voters passed Proposition 10, which effectively restored voting rights to former felons. California thus joined a growing number of states that removed permanent voting restrictions for people convicted of felonies, ‘infamous’ crimes and a variety of lesser offenses. While this measure received little fanfare in the media, its impact was substantial due to California’s dramatic increase in incarceration rates beginning in the 1970s. Over the next 30 years, this change restored voting rights for hundreds of thousands of citizens who otherwise would have been disenfranchised."

The constitution restricts felons from voting "while. imprisoned or on parole for the conviction of a felony."

Michael C. Campbell "Criminal Disenfranchisement Reform in California: A Deviant Case Study," Punishment Society, 2007

Apr. 22, 1980 - US Supreme Court Rules That Purposeful Racial Discrimination Must Be Evident for a Disenfranchisement Law to Be Unconstitutional

The US Supreme Court rules in a 6-3 decision in City of Mobile, Alabama v. Bolden that only actions undertaken with "racially discriminatory motivation" were unconstitutional or illegal under the Voting Rights Act.

The Supreme Court ruling states that there must be "purposeful discrimination" for a voting disenfranchisement law to be found unconstitutional. Racial discrimination alone is irrelevant unless it can be shown that the intent was to racially discriminate.

This case set one of the benchmarks for future cases challenging felon disenfranchisement laws based upon racial intent.

Apr. 16, 1985 - US Supreme Court Rules That Criminal Disenfranchisement Is Legal If there Is No Racially Discriminatory Intent

The US Supreme Court rules in an 8-0 decision in Hunter v. Underwood that states have the right to disenfranchise criminals but "not with a racially discriminatory intent."

2000-present

Nov. 4, 2000 - Massachusetts Voters Ban Incarcerated Felons from Voting

"In 2000 [Nov. 4], Massachusetts became the only state in recent history to further restrict voting rights for felons. Prior to a ballot question [passed by 60.3% of voters] that year, there were no voting restrictions for felons in Massachusetts. This changed when the Massachusetts constitution was amended to include, ’Persons who are incarcerated in a correctional facility due to a felony conviction’ may not vote' (Mass Const. Art. III as amended in 2000)."

Massachusetts Statewide Harm Reduction Coalition (SHaRC) "Statewide Harm Reduction Coalition Demands Voting Rights for Felons," www.massdecarcerate.org (accessed July 17, 2009)

Mar. 15, 2001 - New Mexico Repeals Lifetime Ban on Felon Voting

"In March 2001, the New Mexico legislature adopted Senate Bill 204, repealing the state’s lifetime ban on ex-felon voting. Prior to the bill’s passage, anyone convicted of a felony faced permanent disenfranchisement. According to the new law, persons convicted of a felony who have completed their prison terms, as well as any offenders completing probation or parole, are automatically eligible to register. There is no application process required to restore voting rights. It is estimated that over 50,000 New Mexicans were barred from voting at the time of the law’s enactment."

Sentencing Project "Legislative Changes On Felony Disenfranchisement, 1996-2003," www.sentencingproject.org, Sep. 2003

Feb. 14, 2002 - US Senate Votes Down Amendment Granting Felons The Right to Vote in Federal Elections

"[In] 2002 U.S. Senate vote on an amendment to the federal voting reform legislation [Equal protection of Voting Rights Act of 2001] that proposed to restore voting rights to ex-felons in federal elections. Senators from the 11 former confederate states voted 18 to 4 against enfranchisement (the measure went down by a 63-31 floor vote), and the most passionate speeches against it were made by southerners. "

Jeff Manza, PhD and Christopher Uggen, PhD Locked Out: Felon Disenfranchisement and American Democracy, 2006

Sep. 25, 2003 - Alabama Passes Bill Allowing Most Felons to Register to Vote

"In 2003, [Alabama] Governor Riley signed into law a bill [Section 15-22-36.1] that permits most people with felony convictions [in the state of Alabama] to apply for a certificate of eligibility to register to vote after completing their sentence."

American Civil Liberties Union (ACLU) "Breaking Barriers to the Ballot Box: Felon Enfranchisement Toolkit," www.aclu.org (accessed July 16, 2009)

July 1, 2003 - Nevada Passes Bill to Automatically Restore the Vote to Felons

"In 2003, the Nevada legislature passed Assembly Bill 55. Highlights of the new law include:

For people released from parole, prison, or probation before July 1, 2003, the law automatically restores voting rights and the right to serve as a juror in a civil case. These individuals gain the right to run for public office after four years and can serve as a juror in a criminal case after six years. This applies to all former felons, regardless of the number or seriousness of the convictions.

For people released after July 1, 2003, the bill requires the immediate restoration of these rights only for individuals who have committed a single, nonviolent felony, including a drug offense. Those who have been convicted of a violent felony or who have served for multiple convictions must petition a court for the restoration of their rights.

The bill also allows ex-felons to hold 26 different occupations from which they were previously banned."

Applied Research Center "Re-Enfranchising Ex-Felons Assembly Bill, 55, State of Nevada, 2003," www.arc.org (accessed Aug. 3, 2009)

March 2005 - Nebraska Repeals Lifetime Ban on Felon Voting

"In March 2005, the [Nebraska] Legislature repealed the lifetime ban on all felons and replaced it with a two-year post-sentence ban. Gov. Dave Heineman vetoed the bill but was overridden by the Legislature."

Rachel La Corte, MA "Ex-Felons Face Roadblocks in Regaining Voting Rights," Seattle Post Intelligencer, July 4, 2005

June 17, 2005 - Iowa Restores Vote to All Felons Who Have Completed Their Sentences

"Gov. Tom Vilsack of Iowa announced yesterday [6/17/05] that he would restore voting rights for all felons who have completed their sentences, ending what advocates for voting rights had called one of the most restrictive disenfranchisement laws in the country."

New York Times "Iowa Governor Will Give Felons the Right to Vote," June 18, 2005

July 7, 2006 - Washington District Court Rules in Farrakhan v. Gregoire That State's Criminal Disenfranchisement Laws Do Not Violate Section 2 of the Voting Rights Act

"On July 7, the Eastern District Court of Washington dismissed the Farrakhan v. Gregoire case, in which the plaintiffs charged that Washington's felon disenfranchisement laws and restoration policies disproportionately result in the denial of voting rights for racial minorities and therefore violate Section 2 of the 1965 Voting Rights Act.

In its Decision, the Court concluded that it is 'compelled to find that there is discrimination in Washington's criminal justice system on account of race' and that this discrimination 'clearly hinders the ability of racial minorities to participate effectively in the political process.' Despite these conclusions, however, the Court dismissed the case citing a 'remarkable absence of any history of official discrimination' in Washington's electoral process and felon disenfranchisement provisions."

Sentencing Project " Washington State: Court Dismisses Farrakhan Disenfranchisement Case Charging VRA Violation," www.sentencingproject.org, July 1

Apr. 5, 2007 - Florida Gov. Charlie Crist Institutes Automatic Vote Restoration to Felons Who Have Completed Their Full Sentences

The Florida Rules of Executive Clemency were amended by Gov. Charlie Crist (R) and the Florida Board of Executive Clemency on Apr. 5, 2007. The new rules now permit disenfranchised felons to have their ability to vote automatically restored once they have completed their full sentences, including "imprisonment, parole, probation, community control, control release, and conditional release [and] has paid all restitution." Additional requirements are also mandated. Previous rules required at least five "crime-free" years before such restoration.

Apr. 26, 2007 - Maryland Institutes Automatic Vote Restoration for All Felons upon Completion of Sentence

"In 2007, the [Maryland] Legislature repealed all provisions of the state’s lifetime voting ban, including the three-year waiting period after completion of sentence for certain categories of offenses, and instituted an automatic restoration policy for all persons upon completion of sentence."

American Civil Liberties Union (ACLU) "Breaking Barriers to the Ballot Box: Felon Enfranchisement Toolkit," www.aclu.org (accessed July 16, 2009)

July 26, 2007 - Washington Supreme Court Reinstates Fine Payment as Part of Felon Re-Enfranchisement Qualifications

On July 26, 2007, the Washington State Supreme Court, in Madison v. Washington, reversed an Apr. 21 2006 King County superior Court order giving "all felons who have satisfied the terms of their sentences except for paying legal financial obligations, and who, due to their financial status, are unable to pay their legal financial obligations immediately," the right to vote.

The Washington State Supreme Court ruled that persons convicted of a felony in the state of Washington who were convicted after July 1, 1984 have their ability to vote restored once all probation/parole is completed and all fines are paid.

Those convicted prior to July 1, 1984 must petition the sentencing review board to have their ability to vote restored.

Dec. 2007 - Barack Obama Supports Felon Re-Enfranchisement

Presidential candidate Barack Obama made a statement supporting the re-enfranchisement of felons in a Dec. 7, 2007 questionnaire for the National Association for the Advancement of Colored People (NAACP):

"I support restoration of voting rights for ex-offenders. I am a cosponsor of the Count Every Vote Act, and would sign that legislation into law as president."

Jan. 5, 2010 - 9th US Circuit Court of Appeals Rules that Washington's Felon Disenfranchisement Law Violates the Voting Rights Act

A three judge panel of the 9th US Circuit Court of Appeals ruled 2-1 in Farrakhan v. Gregoire that Washington's felon disenfranchisement law violates Section 2 of the Voting Rights Act and that plaintiffs "demonstrated that the discriminatory impact of Washington’s felon disenfranchisement is attributable to racial discrimination." According to a press release from Washington Secretary of State Sam Reed, the ruling will allow "inmates currently behind bars to vote in Washington."

[ Editors Note : In an interview with ProCon.org on Jan. 6, 2010, Sam Reed’s office stated that they were expecting the Attorney General to appeal this decision (the office announced later that day that the case will be appealed to the US Supreme Court). The office also stated that until guidance is recieved from the Washington Attorney General’s Office as to how this ruling should be implemented, the “status quo” remains in place incarcerated felons will not be allowed to vote.]

Oct. 7, 2010 - Washington's Felon Disenfranchisement Law Upheld in en banc Reversal of 9th US Circuit Court Decision

On Oct. 7, 2010, the 9th Circuit Court of Appeals, in a full 11 judge bench hearing of Farrakhan v. Gregoire, reversed the court’s 2-1 panel decision from Jan. 5, 2010, and ruled 11-0 that Washington’s felon disenfranchisement law did not violate the Voting Rights Act.

The court's majority opinion stated: "Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. Accordingly, the district court didn’t err when it granted summary judgment against them."

Oct. 18, 2010 - US Supreme Court Declines Taking Up MA Felon Voting Case Simmons v. Galvin

On Oct. 18, 2010 the US Supreme Court published its denial of a Writ of Certiorari filed Feb. 1, 2010 in the case of Simmons v. Galvin thus refusing to hear the case.

The petitioners had claimed that a Massachusetts law banning felons from voting while incarcerated was racially discriminatory and in violation of the Voting Rights Act.

Jan. 14, 2011 - Iowa Rescinds Automatic Voting Restoration for Convicted Felons Who Have Completed Their Sentences

On Jan. 14, 2011, the Republican Governor of Iowa, Terry Branstad, issued executive order 70, rescinding a law allowing people convicted of a felony to automatically have their ability to vote restored after completing their sentences. The automatic voting restoration law had been instituted by former Democratic Governor Tom Vilsack's signing of executive order 42 in 2005. Felons in Iowa must now pay all outstanding monetary obligations to the court in addition to completing their sentence and period of parole or probation. People convicted of a felony may then apply for restoration of the ability to vote.

Mar. 9, 2011 - Florida Rescinds Automatic Voting Restoration for Convicted Felons Who Have Completed Their Sentences

On Mar. 9, 2011 the Florida rules of Executive Clemency were toughened. Automatic restoration of civil rights and the ability to vote will no longer be granted for any offenses. All individuals convicted of any felony will now have to apply for executive clemency after a five year waiting period. Individuals who are convicted, or who have previously been convicted, of certain felonies such as murder, assault, child abuse, drug trafficking, arson, etc. are subject to a seven year waiting period and a clemency board hearing to determine whether or not the ability to vote will be restored.

Prior to the Mar. 9, 2011 rule change some individuals convicted of nonviolent felonies were re-enfranchised automatically by the Clemency Board upon completion of their full sentence, including payment of fines and fees.

Mar. 19, 2012 - South Dakota Enacts HB 1247, Removing the Vote from Convicted Felons until Completion of Probation

On Mar. 19, 2012, HB 1247 was enacted. The bill took the ability to vote away from convicted felons serving terms of probation. Previously, only persons on parole or incarcerated were ineligible to register to vote. Now convicted felons must serve their full term of incarceration, parole, and probation before they may register to vote.

Apr. 16, 2013 - Delaware Senate Passes the Hazel D. Plant Voter Restoration Act

On April 16, 2013 the Delaware Senate passed the Hazel D. Plant Voter Restoration Act in a 15-6 vote. The act amended the Delaware Constitution by removing the five year waiting period for most felons to regain the ability to vote. Persons convicted of a felony (with some exceptions) are now automatically eligible to vote after serving their full sentence including incarceration, parole, and probation.

May 29, 2013 - Virginia Institutes Automatic Vote Restoration to All Nonviolent Felons Who Have Completed Their Full Sentences

Virginia Governor Robert F. McDonnell announces automatic restoration of the vote to nonviolent felons who have completed their sentences
Source: "Photo Galleries," governor.virginia.gov (accessed June 28, 2013)

On May 29, 2013, Governor Bob McDonnell announced that he will automatically restore the ability to vote to all nonviolent felons who meet the following conditions:

1) have completed their term of incarceration and all probation or parole
2) have paid all court costs, fines, and any restitution and
3) have no pending felony charges.

Previously, individuals convicted of most nonviolent felonies had to wait two years to apply for a gubernatorial restoration of voting ability after completion of their sentence and the payment of any fines and restitution.

Persons convicted of violent felonies, drug sales or manufacturing, crimes against minors, and election law offenses must wait five years to apply for a gubernatorial restoration of rights.

Feb. 11, 2014 - Attorney General Eric Holder Calls for Restoration of the Vote to People Convicted of a Felony

In a speech on criminal justice reform at the Georgetown University Law Center on Feb. 11, 2014, Attorney General Eric Holder called for the restoration of the vote to people convicted of a felony. According to the New York Times, "The call was mostly symbolic — Mr. Holder has no authority to enact these changes himself — but it marked the attorney general’s latest effort to eliminate laws that he says disproportionately keep minorities from the polls."

In his speech, Attorney General Holder stated the following: "Across this country today, an estimated 5.8 million Americans – 5.8 million of our fellow citizens – are prohibited from voting because of current or previous felony convictions. That’s more than the individual populations of 31 U.S. states. And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.

It is unwise, it is unjust, and it is not in keeping with our democratic values. These laws deserve to be not only reconsidered, but repealed. And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines."

Eric H. Holder, JD "Attorney General Eric Holder Delivers Remarks on Criminal Justice Reform at Georgetown University Law Center," www.justice.gov, Feb. 11, 2013

New York Times “Holder Urges States to Repeal Bans on Felons’ Voting,” nytimes.com, Feb. 11, 2014

Nov. 24, 2015 - Voting Rights Restored to Nonviolent Felons in Kentucky

"[T]he governor of Kentucky [Steven L. Beshear] on Tuesday issued an executive order that immediately granted the right to vote to about 140,000 nonviolent felons who have completed their sentences.

Kentucky had been one of just three states imposing a lifetime voting ban on felons unless they received a special exemption from the governor. Florida and Iowa still carry the lifetime ban.

As an executive order, the new policy can be altered or scrapped by a future governor. But the initial response from the governor-elect, Matt Bevin, a conservative Republican, was positive.

[The executive] order excludes those with new pending charges and those convicted of violent crimes, sex crimes, bribery or treason."

New York Times "Kentucky Governor Restores Voting Rights to Thousands of Felons," nytimes.com, Nov. 24, 2015

Dec. 22, 2015 - New Kentucky Governor Reverses Prior Executive Order That Allowed Nonviolent Felons to Vote

"Kentucky's new Republican governor has rescinded an executive order that restored voting rights to as many as 140,000 non-violent felons.

'While I have been a vocal supporter of the restoration of rights,' Gov. Matt Bevin (R-Ky.) said in announcing the order, 'it is an issue that must be addressed through the legislature and by the will of the people.'"

Washington Post "Kentucky’s New Governor Reverses Executive Order That Restored Voting Rights for Felons," washingtonpost.com, Dec. 23, 2015

Feb. 9, 2016 - Maryland Senate Restores the Vote to Convicted Felons Immediately upon Release from Prison

"The Maryland General Assembly voted to override a veto today on a bill that will restore voting rights for approximately 40,000 citizens who live in their communities but cannot vote because of a criminal conviction in their past…

Previous Maryland law withheld the right to vote from individuals until they fully completed every requirement of their sentence, including those beyond incarceration, like probation and parole supervision. SB 340/HB980, introduced by Sen. Joan Carter Conway (D-Baltimore) and Del. Cory McCray (D-Baltimore), simplifies the process by allowing an individual to become eligible to vote upon release from prison or if they were never incarcerated."

Brennan Center for Justice at the New York University School of Law "Voting Rights Restored to 40,000 Marylanders," brennancenter.org, Feb. 9, 2016

Apr. 22, 2016 - Virginia Governor Restores Voting Rights to All Felons

"Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing the Republican-run legislature. The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans.

The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party."

New York Times "Virginia Governor Restores Voting Rights to Felons," nytimes.com, Apr. 22, 2016

July 22, 2016 - Virginia Supreme Court Rules Executive Order Restoring Voting Rights to 200,000 Felons Unconstitutional

"Virginia Gov. Terry McAuliffe's [Apr. 22, 2016] sweeping executive order restoring the voting rights of more than 200,000 felons is unconstitutional, the state's highest court ruled Friday [July 22, 2016], siding with Republican lawmakers who said the governor overstepped his authority.

In a 4-3 decision, the Supreme Court of Virginia ordered the state to cancel the registrations of the more than 11,000 felons who have signed up to vote so far under the governor's April executive order.

Republicans argued that [Virginia] governors cannot restore rights en masse but must consider each former offender's case individually."

Washington Times "Virginia Court Nixes Order Restoring Felons’ Voting Rights," washingtontimes.com, July 22, 2016

In a press release issued after the Supreme Court of Virginia ruling, the Governor stated that, because the court invalidated his blanket order to restore voting rights to all felons in the state, he "will expeditiously sign nearly 13,000 individual orders to restore the fundamental rights of the citizens who have had their rights restored and registered to vote. And I will continue to sign orders until I have completed restoration for all 200,000 Virginians."

Sep. 28, 2016 - California Governor Restores Voting to Convicted Felons Serving Time in County Jails

Governor Jerry Brown signed AB2466, which allows those serving low-level felony conviction sentences in county jails to vote. The bill also restores voting rights to former felons on probation or under community supervision. The bill does not change the voting status of those serving felony convictions in state or federal prisons.

CBS Sacramento, "Gov. Brown Signs Bill Allowing Felons to Vote in Jail," sacramento.cbslocal.com, Sep. 28, 2016

July 1, 2017 - Wyoming Makes Voting Rights Restoration Automatic

As of July 1, 2017, people convicted of nonviolent felonies who have completed all aspects of their sentences will have their right to vote automatically restored. Previously, former felons had to submit an application to be reenfranchised.

Ruth Kimata, "As of This Month Former Wyoming Felons Will Have the Right to Vote," wyomingnewsnow.tv, July 21, 2017

Apr. 18, 2018 - New York Governor Gives Conditional Pardons to Former Felons on Parole to Restore Vote

Governor Andrew Cuomo signed an executive order that will give conditional pardons to people with felony convictions who are on parole. The pardons will restore voting rights to about 35,000 former felons.

Joseph Spector, "Andrew Cuomo to Grant Voting Rights to Paroles Felons in New York," democratandchronicle.com, Apr. 18, 2018

May 31, 2018 - Former Felons in Louisiana to Regain Voting Rights after Five Years

Governor John Bel Edwards signed a law that will reenfranchise former felons who have been out of prison for five years but are on probation or parole. The law immediately impacts about 2,200 people, about 3% of over 70,000 people on probation or parole in Louisiana.

Elizabeth Crisp, "Gov. John Bel Edwards Signs Law Restoring Felon Voting Rights after Five Years," theadvocate.com, May 31, 2018

Nov. 7, 2018 - Florida Restores the Vote to up to 1.4 Million People with Prior Felony Convictions

"Florida added 1.4 million possible voters to the rolls when it passed Amendment 4, which said most felons will automatically have their voting rights restored when they complete their sentences and probation.

Convicted sex offenders and those convicted of murder are exempt. The measure needed 60 percent of the vote Tuesday to pass it received 64 percent of the vote.

Of the 6.1 million disenfranchised felons in the U.S., about 1.7 million live in Florida — the most of any state. Only 12 states disenfranchise people for a felony conviction after they’ve served their sentence, he said.

Voting rights advocates say there are about 1.7 million former felons in Florida, and about 1.4 million people will be able to vote. Nearly all states allow felons to vote after completing their sentences."

Washington Post "Florida Passes Amendment to Restore Felons’ Voting Rights," washingtonpost.com, Nov. 7, 2018

May 30, 2019 - Nevada Restores the Vote to about 77,000 Former Felons

"Nevada's governor has signed criminal justice reform bills that restore voting rights to convicted felons and streamlines the process for sealing low-level marijuana convictions.

Democratic Gov. Steve Sisolak signed both the measures Wednesday [May 29, 2019] as the legislative session continues on in its final days.

The voting rights legislation gives felony offenders the right to vote after being released from prison, instead of granting certain felons the right to vote two years after being released.

Sisolak says some 77,000 state residents will have their voting rights restored due to the legislation."

Associated Press "Nevada Governor Signs Criminal Justice Reform Bills," kolotv.com, May 30, 2019

July 1, 2019 - Colorado Parolees Now Eligible to Vote

A new Colorado law went into effect on July 1, 2019 that restores the vote to people with felony convictions who are on parole. 11,467 parolees were eligible to register to vote when the law went into effect

Alex Burness, "As of Today, 11467 Colorado Parolees Can Register to Vote. Will They?," coloradoindependent.com, July 1, 2019

Dec. 12, 2019 - Kentucky Governor Restores Vote to Nonviolent Felons

Governor Andy Beshear signed an executive order restoring voting rights to people with nonviolent felony convictions in the state. The order could allow up to 140,000 former felons to vote and reverses former Governor Matt Bevin's Dec. 15, 2015 reversal of former Governor Steven L. Beshear's Nov. 24, 2015 voting restoration.

Sam Levine, "Kentucky's New Democratic Governor Allows 140,000 Ex-Felons to Vote," theguardian.com, Dec. 12, 2019

Dec. 18, 2019 - New Jersey Reenfranchises Former Felons on Parole or Probation

New Jersey Governor Phil Murphy signed a voting rights restoration law for former felons who are on parole or probation. The law is expected to affect more than 80,000 people.

Vanessa Romo, "New Jersey Governor Signs Bills Restoring Voting Rights To More Than 80,000 People," npr.org, Dec. 18, 2019

Jan. 16, 2020 - Florida Supreme Court Rules Former Felons Will Have to Pay Fines and Fees before Voting

"Florida’s Supreme Court ruled Thursday [Jan. 16, 2020] that convicted felons must pay fines and other fees related to their sentences before voting, concluding a legal controversy that pitted the state government against civil voting rights advocacy groups. The court decided in its ruling that 'all terms of sentence' includes not only terms of a person’s imprisonment and supervision, but also fines and other obligations imposed as part of a punishment.. The amendment to the Florida constitution that allows 1.4 million convicted felons to vote following their release from incarceration was lauded by civil rights advocates after its passage in November, with the advocates noting that people of color had been disproportionately impacted by the ban. However, Gov. Ron DeSantis (R) signed a bill in June [2019] mandating that the former convicts pay off restitution, court fees and fines before regaining the right to vote, sparking criticism from opponents who said the law amounted to a poll tax. Several groups, including the Florida State Conference of the NAACP, the Orange County Branch of the NAACP, and the League of Women Voters of Florida, sued the state government following the bill’s signing."

Tal Axelrod, “Florida Supreme Court Rules Convicted Felons Must Pay Fines, Fees before Voting,” thehill.com, Jan. 16, 2020

[ Editor’s Note : A federal appeals court ruled on Feb. 19, 2020 that a Florida law requiring former felons to pay off restitution, court fees, and fines before voting again violates the Equal Protection Clause of the Constitution. Governor DeSantis has appealed the decision.]

Tal Axelrod, “Court Sides with Ex-Felons Who Challenged Florida Voting Requirement,” thehill.com, Feb. 19, 2020

May 24, 2020 - Former Felons in Florida Cannot Be Barred from Voting for Owing Court Fees, Rules Federal Judge

US District Judge Robert Hinkle ruled on Sunday, May 24, 2020 that parts of the Florida law requiring former felons to pay court fees, fines, and restitution to victims before they can vote is unconstitutional. Hinkle ruled that the following former felons should have their right to vote restored: those who were appointed a public defender, those whose fines, fees, and restitution were converted to civil liens (in which property such as a house is put up as collateral for payment), and those who only owe court fees. The ruling stated, "This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay.”

Kelvin Leon Jones, et al., v. Ron DeSantis et al., politico.com, May 24, 2020

Lawrence Mower, "‘A Game Changer’: Five Takeaways from Sunday’s Ruling on Felon Voting,” tampabay.com, May 25, 2020

[ Editor’s Note: The US Supreme Court ruled on July 16, 2020, that the law requiring payment of fines prior to restoration of voting rights can be enforced by the state of Florida. The case remains in federal appeals court, but, until the resolution of that case, former felons in Florida may be required to pay any and all outstanding court fines and fees before being allowed to register to vote.

Source: Dan Berman, “Supreme Court Says Florida Can Enforce Law Limiting Felons Who Owe Fines from Voting,” cnn.com, July 16, 2020]

Aug. 5, 2020 - Iowa Governor Kim Reynolds Signs Executive Order Restoring Vote to Some Former Felons

Iowa Governor Kim Reynolds signed an executive order automatically restoring the vote to some former felons who have completed their sentences. People convicted of felony homicide will still have to apply for reenfranchisement.

Iowa was the last remaining state to have a complete ban on voting for former felons. The state constitution still disenfranchises all former felons so the next governor could easily overturn Reynolds' executive order.

Veronica Stracqualursi, “Iowa Governor Signs Executive Order Restoring Some Ex-Felons’ Voting Rights,” cnn.com, Aug. 5, 2020

Sep. 11, 2020 - Appeals Court Upholds Florida Law Requiring Fine and Fee Payment

The 11th Circuit Court of Appeals ruled 6-4 that Florida can require repayment of fines and fees before former felons are eligible to vote. The court stated, "Florida withholds the franchise from any felon, regardless of wealth, who has failed to complete any term of his criminal sentence—financial or otherwise." This ruling overturns the May 24, 2020 ruling that struck down the repayment requirement.

J. Edward Moreno, “Court Upholds Florida Law Requiring Felons to Pay Fines, Fees before They Can Vote,” thehill.com, Sep. 11, 2020

Sep. 22, 2020 - Snoop Dogg and Mike Tyson to Vote for First Time in Nov. 2020 Election

Rapper and TV star Snoop Dogg and former heavyweight boxing champion Mike Tyson both said they would vote for the first time in the Nov. 2020 election. Both stars were convicted of felonies, Snoop Dogg in 1990 and 2007 and Tyson in 1992.

Snoop Dogg explained that he was lead to believe he couldn't vote even after his record was expunged. He stated about voting, "We got to make a difference, I can't talk about it and not be about it. I can't tell you to do it and then not go do it. If I tell you to do something, I done it already."

Mike Tyson was ineligible to vote until this year due to Nevada law. Nevada restored voting rights to former felons in 2019. Tyson tweeted on Sep. 22, 2020, "This election will be my 1st time voting. I never thought I could because of my felony record. I’m proud to finally vote."


Timeline of Ancient Rome - PowerPoint PPT Presentation

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Roman Law Timeline - History

The Catholic University of America, Washington, D.C.

Canon law was born in communities that felt great ambivalence about the relationship of law and faith. Custom governed early Christian communities, not a body of written law. It was custom informed by oral traditions and sacred scripture. Christians did not arrange their lives according to a Christian law but according to the spiritual goals of the community and of individual Christians. St Paul wrote to Roman Christians who knew and lived under the law created by the Roman state and reminded them that faith in Christ replaces secular law with a quest for salvation (Romans 7:1-12 and 10:1-11). Law, he sharply reminded the Galatians, cannot make a man worthy to God only faith can bring life to the just man. The inherent tension between the faith and conscience of the individual and the rigor of law has never been and never will be completely resolved in religious law.

Christian communities lived without a comprehensive body of written law for more than five centuries. Consequently, in the early Church, “canon law” as a system of norms that governed the Church or even a large number of Christian communities did not exist. This is not surprising. The Roman state regulated religious practice and quite naturally legislated for the Church after the Empire became Christian at the beginning of the fourth century. The attitudes of the Christian emperors can be seen clearly in their legislation. To take only the imperial statutes in Justinian’s Codex as a guide, there are 41 imperial statutes dating between 313 and 399 that deal with ecclesiastical discipline and practice (Titles 2-13 of the Codex). The Roman emperors had exercised authority over Roma n religious institutions, and it was only natural that Constantine would continue this assertion of imperial authority. Gradually the Church in the West did begin to conceive of itself as a corporate body that had the authority to produce rules to govern itself and exercise a separate judicial role in society. That "separation" of the church from the state would not begin in earnest until the second half of the eleventh century. Caesaropapism was the primary norm followed by all early medieval Christian rulers. In the East the Roman emperor who ruled over Greek Constantinople continued to legislate and regulate ecclesiastical institutions until its collapse in 1453 A.D. Byzantine canon law began to merge with civil law in the sixth century. The first legal collections contained only ecclesiastical norms ((κανόνες “canons”) or secular norms ( νόμοι “laws”). In the late sixth and early seventh centuries Byzantine canonists combined these two sources: these collections were named “nomokanons” ( νομοκάνονες ), although the name did not become common until the eleventh century.

In the first three centuries Christians drew their rules and norms from the Gospels and sacred scripture. Some communities produced “handbooks” that provided guidance for various aspects of Christian life. Only a few of these have survived. One of the earliest was the Didaché that established rules governing the liturgy, the sacraments, and lay practices like fasting. The Didaché was probably written in Greek for a Syrian community. The book purported to contain the teachings of the Twelve Apostles and dealt with matters of liturgy and discipline. In the early third century (218 A.D.), Hippolytus, is generally thought to have composed the Traditio apostolica, another treatise in Greek , that detailed the rites and practices of the Roman Christian community. It contains instructions for the consecration of bishops, priests, and deacons and for administering baptism. Slightly later (ca. 230) an unknown author wrote Didascalia apostolorum for Christian communities in Syria. It was written in Syriac and was incorporated into later compilations, especially a work of the late fourth century, the Apostolic Constitutions.

These very early Christian texts share several characteristics. Their authority derived from their apostolic origins, not from ecclesiastical institutions. They drew upon scripture and practice for their norms. Their focus is Christian discipline, worship, and doctrine. They were intended to serve as a manual of guidance for the clergy and, to some extent, for the laity. These texts were not, however, a compilation of legal enactments. Although Christians had the model and example of Roman law, early Christian communities did not yet have institutional structures or a sense of corporate identity that would have encouraged them to produced legal norms governing themselves. Return to Early Norms

The most important window into the structures and customs of Christian communities are the so-called Pastoral Epistles, 1 Timothy and Titus. It is most likely that the Apostle Paul did not write them. Their unknown author used these letters as a vehicles to establish rules for early Christian communities, and when he wrote he claimed Paul’s authority. At the beginning of Titus (1:5) the author reminded Titus that he had left him behind in Crete in order to correct those things that needed correcting. He was to appoint elders (presbyteri) and bishops (episcopi) in each city to govern the community. The elders should be married only once, their children should be Christians, and they should not live in luxury or moral turpitude. In Greek “episkopos” was an overseer or steward. Greek authors had used the word to describe males or females who functioned as guardians and supervisors in the Greek household. There is no evidence that women were ever "episkopoi" in the early Christian communities. The English word “steward” would probably best express its meaning. The author of Titus listed the qualifications of an “episkopos” as being humble, kind, abstemious, peaceful, prudent, and hospitable (Titus 1:7-8). This list of virtues was for the stewardship of small Christian communities that met in households and that received missionaries from other communities from time to time. The steward should also embrace and preach sound doctrine (sana doctrina) (Titus 1:9).

First Timothy gives more detail about the governance of early Christian communities. He calls the church, strikingly, the “house of God” (domus Dei) that is “the church of the living God” (ecclesia Dei vivi) (1 Tim 3:15). The implication of these metaphors is that the church is organized like a Greek or Roman household. The author of 1 Timothy states that he will instruct Christians how they should behave in the “ecclesia” (scias quomodo oporteat te in domo Dei conversari). As in Titus he rehearses the virtues that the steward. Anyone who would become steward (Si quis episcopatum desiderat . . . oportet ergo episcopum inreprehensibilem esse, 1 Tim 3:1-2) must have abilities to govern. “If a man has not learned to manage his own household how will be govern God’s church?” (1 Tim 3:5). The steward should not be a recent convert to Christianity, and he should have a good reputation. The author of 1 Timothy must have envisioned the governance of early Christian communities as being in the hands of a patriarchal male (Paterfamilias) whose obligations to his home must in some way be reflected in the early genesis of the pervasive Christian norm that clerics were married to their churches and should not move from place to place.

The “ecclesia” as a “domus” is also probably reflected in the status of “diakonous” in Paul’s epistle to the Philippi (Phil 1:1) and in 1 Tim 3:1-13. At this early time the “diaconi” should be translated as “servers” and not “deacons.” These servers were both male and female. From the description of their duties in 1 Timothy they functioned in very much the same universe as servers in Hellenistic households. As Raymond Collins puts it:

Hellenistic moralists, from the time of Aristotle, taught that some virtues were appropriate for men, others for women. . . . In such a Hellenistic society, it was important that the Pastor <i.e. author of 1 Timothy> have something to say about the qualities of women who would serve in God’s household. So he stipulates that they should be serious, not slanderers, but temperate, and faithful in all things.

By the time, of course, that the Church emerges into the clear light of day in the fourth century, the role of women was confined to the home of the bishop or priest. The Councils of Ancyra (314) and Nicaea (325) (c. 19 and c.3) laid down rules governing women who lived in the homes of the clergy. These women were now defined by their relationship to the cleric. They were no longer privileged with titles that would have given them status in the church.

The author of 1 Timothy established norms for canonical procedure in cases when accusations were leveled against the clergy. These rules would remain a part of the canonical tradition for centuries. Christians could accuse elders (presbyteri) only when two or three witnesses could substantiate the charges (1 Tim 3:19). This passage is also an illustration of how Christians drew upon the Old Testament for procedural norms. Deut 19:15 had established that two or three witnesses were necessary for convicting a person of a crime. In addition 1 Tim 3:20 used public humiliation to chastise sinners: Wrong-doers should be publicly rebuked. Their public humiliation would serve as a deterrence to others. Return to Early Norms

The New Testament epistles were a primary source for the earliest norms of canon law, but they were thoroughly inadequate as guides for Christian communities as they began to evolve into more complicated and integrated organizational structures throughout the Mediterranean world. If the Greco-Roman “domus” was a model for the organization of early Christian churches, Greco-Roman public assemblies most likely provided procedural and institutional models for early Christian assemblies. These ecclesiastical assemblies provided a forum for making doctrinal and disciplinary decisions, for garnering consent of the community, and for establishing norms for local communities. These assemblies became a part of ecclesiastical governance very early. Although later church fathers, particularly John Chrysostom, did justify conciliar assemblies on the basis of Acts 15, modern scholars have concluded that the assembly described in Acts 15 at Jerusalem cannot be described as a “council” or “synod.” There is no evidence Christians of different communities gathered together to decide matters of discipline or doctrine until the late second century. Nonetheless they undoubtedly regularly resolved questions inside their local communities with congregational assemblies.

The emergence of ecclesiastical assemblies that established canonical norms took place almost simultaneously in the East and West. In the early third century Tertullian reported that councils (concilia) were held to decide questions and to represent the “whole Christian name” (repraesentatio totius nominis Christiani). The exact nature of these assemblies has been debated, but there can be no doubt that they promulgated norms and made decisions for Christian communities. There are references to assemblies in Asia Minor at Iconium, Synnada, Bostra, and other localities in the early third century. In the second half of the century these assemblies became more common. The Council of Carthage that can be dated between 220 and 230 was the first Western assembly about which we are well informed. Bishop Cyprian of Carthage provides information that the participants confronted issues surrounding the legal rules of baptism. He also mentions another council that condemned Privatus, the bishop of Lambaesis, for his crimes. Cyprian presided over a number of councils while bishop of Carthage and used councils as a means to govern the churches of North Africa. In 251 he summoned a council to establish rules for reconciling those Christians who had abandoned their faith because of persecution. During the next year he gathered 67 bishops to treat questions of reconciliation again and infant baptism. Cyprian wrote a letter to a certain Fidus in which he informed him of the actions that the council had taken. This is the oldest conciliar letter that has survived. Subsequently councils were held in Carthage almost every year during Cyprian’s reign as bishop (251-258).

Councils created tensions between the emerging office of the monarchical bishop and his freedom to govern his church. There was an evolving conviction in Christian communities that there were norms and procedures that should be followed in all the local churches. Nevertheless Cyprian believed that a bishop should have great freedom of action and forcefully stated that he was answerable only to God. When he quarreled with Pope Stephen over the question of the validity of schismatic and heretical baptisms, the inherent conflict between local episcopal control and general norms, whether established by a centralized authority or councils, raised an issue of ecclesiology and obedience that would bedevil the Church for centuries. Cyprian’s response to Pope Stephen in 256 after his council had rejected the validity of heretical baptisms reveals his ambivalence towards any conception of canonical rules or norms that would govern the entire Church:

We are not forcing anyone in this matter we are laying down no law (legem). For every appointed leader has in his governance of the Church the freedom to exercise his own will and judgment, while having one day to render an account of his conduct to the Lord.

Cyprian recognized no system of canon law and, if he had been asked the question whether there should be a universal law for the Church (anachronistically), he would have probably opposed the idea that the Church should have an uniform system of law to which the clergy and laity would be subject. Return to Councils and Synods

By the fourth century bishops had established themselves as administrators of local churches. They also recognized their role in governing the affairs of nearby churches in councils as well as their responsibility to confront questions that touched upon the interests of the universal Church. In the East and the West councils became the main vehicles for promulgating norms that regulated the lives of clergy and the organization of the churches. It is during this period that the enactments that these assemblies produced became generally called “canons,” from the Greek word “κανών,” or “canon” in Latin. In Greek canon did not mean “law” but simply a “straight rod” or a “rule.” As we shall see, the primary focus of conciliar legislation in the fourth century was the structure of Church and clerical discipline. The earliest council for which we have a set of legislative decrees is one that was held ca. 306 in Elvira (Iliberri), a small town that once existed near Granada, Spain. This council produced canons that dealt with a wide range of matters, from clerical celibacy to apostasy. Although the 81 canons commonly attributed to the council may be the product of several Iberian councils from later in the century, it is clear that the focus of the canons was on the sexual mores of the clergy and laity. Elvira was the first Western council to dictate that priests should be celibate. Its canons, however, did not circulate widely.

With the ascension of Constantine the Great to the imperial throne in the early fourth century the Christian churches began to produce canons that were publicly promulgated and that were recognized as authoritative by all the Christian communities. Constantine also elevated the authority of bishops in Christian communities. Although it is not clear how broad his mandate was he issued a law that bishops could hear legal cases between Christians. Most scholars think that the episcopal court, the audientia episcopalis, orginated because of this legislation. Constantine also used the church council to deal with doctrinal and disciplinary problems within the Church.

The first significant councils whose canons would become important in the canonical tradition were held in the East. In 314 A.D. bishops from cities that were under the influence of the church in Antioch gathered in the Galatian city of Ancyra. The council issued 25 canons that dealt with a variety of recent problems in the church. These canons dealt with the discipline of the clergy, the alienation of ecclesiastical property, chastity, sex with animals, adultery, murder, and magic. As can be seen from this list the bishops tried to resolve disparate problems of immediate concern to the Eastern churches. Later councils continued this practice. They never attempted to produce a comprehensive set of norms for Christian communities. Another council was held at Neocaesarea between 315 and 319 A.D, a Christian community to the East of Ancyra near the Black Sea. Like the canons of the Council of Ancyra they were not a systematic set of norms. The canons covered random subjects: priests cannot marry after ordination (c.1), penance for bigamy (c.3), pregnant women are not to be excluded from baptism (c.6), a minimum age for priests of 30 years (c.11), restricting the number of deacons in one community to seven (c.15). These two early Eastern councils were never considered ecumenical, but their canons were accepted as normative and were placed in many canonical collections of the East and West. Constantine also convened a council in the West at the city of Arles in 314. It was a large council with 33 bishops present, together with many lower clergy. Arles was the first Western council that did not report that laymen had participated in its proceedings (Elivira was the last to mention lay participants in its reports). These two councils can be seen as mile markers on the road that led to the councils’ becoming assemblies in which the will of clergy constituted the only legitimate source of canonical norms.

In 325 Constantine decided to hold an imperial council in the East to settle the doctrinal controversies raised by the Arian heresy, particularly the issue of the relationship of the Father and Son in the Trinity. A number of local episcopal synods were held in the East in preparation for the council. The emperor originally planned to hold the council in Ancyra but moved it to Nicaea. He opened the council in June, 325. Around 300 bishops attended. Only a few Western clergy were present.

The twenty canons of the council very quickly became universal norms in the Christian church. The council also drafted a definition of faith that became the fundamental statement of Christian belief, the Nicene Creed. The canons established a structure for the Church that paralleled the secular organization of the Roman Empire. Rules were established for the appointment of bishops. The primacy of the episcopal sees of Rome, Antioch, and Alexandria was established. The customary prerogatives of other episcopal sees were also maintained (c.6). The bishops and clergy were mandated to remain in the churches in which they were ordained (c.15 and 16). A metropolitan bishop was to head each province. He and the bishops of his province would hold synods twice a year to decide matters of ecclesiastical discipline (c.5). The synod would be the highest ecclesiastical court of the province.

Other canons of Nicaea established norms for ecclesiastical discipline. Eunuchs were excluded from the clergy (c.1). Rapid promotion of converts in the hierarchy was forbidden (c.2). Bishops, priests, and deacons were not permitted to live with women unless they were relatives (c.3). Clergy could not practice usury (c.17).

The early councils established a pattern of governance in the Church that lasted until the end of the ninth century. Local synods met regularly in the East and the West. They decided difficult and contentious problems in the church, and they promulgated canons that regulated the affairs of the provinces. Numerous local synods were supplemented by ecumenical councils that were held exclusively in the East until the Second Council of Nicaea in 787. Although rejected by the Greeks, the Latin Church has traditionally recognized the Fourth Council of Constantinople of 869-870 as ecumenical. It was convened by Pope Nicolas I in Constantinople, but its decrees were never included in any Eastern canonical collections (it was not recognized as an ecumenical council in the West until the eleventh century). In the eleventh century the papacy asserted its exclusive right to convene an ecumenical councils. The sites of all subsequent ecumenical councils were in the West. The age of councils whose canons united the Latin and Greek churches had past.

Until the fourth century the Old and New Testaments, Apostolic traditions, real and apocryphal, custom, and synodal canons constituted the four main sources of ecclesiastical norms. During the course of the fourth century two other sources of authoritative norms emerged in the Christian Church: the writings of the fathers of the church and the letters of the bishops of Rome. In the Eastern church the “Canons of the Fathers” were recognized as norms sometime between 381 and 451. They consisted of letters or other writings directed to specific persons by the Eastern Fathers. The most important were letters of Eastern bishops. Among the twelve bishops and patriarchs named in the canon as having authoritative force were Athanasius († 373) and Cyril († 444), archbishops of Alexandria Basil the Great († 379), Archbishop of Caesarea in Cappadocia Gregory († 394), Bishop of Nyssa. Within the Greek canonical tradition, the letters of these bishops remained of fundamental importance. Consequently the episcopal letters took their place among the synodal canons in Eastern canonical collections.

In the Latin West a parallel development during the fourth and fifth centuries gave papal decretal letters (that were often rescripts, that is responses to questions) an equal place with conciliar canons. These decretal letters were responses to requests that asked for answers from the pope to problems of ecclesiastical doctrine, discipline, and governance. The form of the requests was based on similar letters sent to the Roman emperors on specific questions of law. In fourth century bishops in the Western church began to turn to Rome for answers to questions about discipline and doctrine. Pope Siricius’ (384-399) letter to Bishop Himerius of Tarragona is the earliest example we have of a letter of a pope responding to a series of questions. Himerius had sent a letter to Siricius’s predecessor, Pope Damasus (366-384). He had posed questions about the validity of baptisms performed by heretics, the rules for bestowing baptism, the treatment of Christians who lapse into paganism, and the punishment of monks and nuns who have fornicated. Damasus had not yet answered Himerius’ letter by the time of his death, but Siricius responded soon after he became pope. Clerical celibacy and continence were issues in the Iberian church, and Siricius devoted a long passage to the problem of married priests and deacons who had children with their wives after their ordination. The pope mandated that those priests who would live continently henceforward could keep their ecclesiastical offices but that those who did not were stripped of all their authority and offices.

There are several elements of the letter that will remain characteristic of papal decretals for centuries. Siricius noted that the letter was read aloud before him and other clergy (in conventu fratrum sollicitius legeremus) and implied that he discussed the problems posed by Himerius openly with his clergy. Papal consultation with his curia would become a standard practice in the papal curia. By the twelfth century, popes began to render decisions regularly with the phrase, “with the advice of our brothers <the cardinals> we ought to ordain” (de consilio fratrum nostrorum debemus statuere — Pope Alexander III [1159-1181]) or, as Pope Innocent III (1198-1216) established the formula for future papal decretals, “with the advice of our brothers we are led to respond” (de consilio fratrum nostrorum taliter in hujusmodi duximus respondendum). The validity and authority of a papal decretal were based on the prestige and primacy of the bishop of Rome and the support of the Roman Christian community. In Siricius’ time the community was represented by the “conventus fratrum” by the time of Innocent III the community was represented by the college of cardinals.

At the end of the decretal Pope Siricius asked Himerius to forward the decretal letter to all his fellow bishops on the Iberian peninsula. Even at this early date, the pope conceived of his letter as establishing authoritative norms for regions far outside Rome. Almost immediately collections of papal letters began to circulate in the Western church, and papal decretal letters took their place among conciliar canons as sources of norms for the Christian Church.

The fifth century was marked by the gradual acceptance of the Eastern conciliar canons in Rome. Latin translations were made of the canons of the Greek councils, and they began to circulate widely as authoritative texts. By the pontificate of Pope Gelasius I (492-496) the sources of canonical norms in the West were widely scattered in different languages and codices. For the first time, an attempt was made to compile a collection of canonical texts. A Greek, Dionysius Exiguus, arrived in Rome at the end of the century. He was fluent in Latin and Greek. His first task was to give the texts of the Greek councils fresh and accurate translations. He compiled three collections of conciliar canons that included 165 canons from councils dating from Nicaea and Constantinople I (381 A.D.) and arranged the text chronologically. In the last collection, commissioned by Pope Hormisdas (514-523), Dionysius placed Greek and Latin versions of the texts in the book so that readers could compare them. He also compiled a collection of papal decretals that began with the decretal letter of Pope Siricius and ended with Pope Anastasius II (496-498) in chronological order. Finally he combined these two works in a Corpus canonum that scholars have given the name Collectio Dionysiana. It was not an official collection of canonical norms — private collections would remain the only vehicles for preserving and disseminating canonical texts until the thirteenth century — but it circulated widely. A remarkable number of manuscripts (34) of the collection still exist in European libraries. Later canonists supplemented the Collectio Dionysiana. Even more importantly Pope Hadrian I (772-795) sent an augmented copy of the Collectio Dionysiana to Charles the Great that is known as the Collectio Dionysiana-Hadriana (K öln, Dombibliothek 115-116 ) . Although other collections of canonical texts were also used in the Carolingian period, the Dionysiana-Hadriana enjoyed enormous popularity in Northern Europe from the ninth to the eleventh century. One hundred manuscripts of the work have been found to date. The work of Dionysius Exiguus established the canons of the fourth-century Eastern Greek councils and papal decretals as the foundation of Western Latin canon law.

An Italian cleric named Cresconius composed a canonical collection in the sixth or seventh century — the date is not certain. In contrast to Dionysius’ chronological organization Cresconius produced one of the first collections arranged systematically, according to topics. He began and ended with the sacrament of ordination, but in between he covered marriage, clerical discipline, and other subjects. In order that his collection would be more easily used, he provided an index to the collection that listed the topics and the sources. The ecumenical councils and papal decretals were his primary sources. He also added a number of African councils to his collection. Cresconius called his collection a “Concord of Conciliar Canons” (Concordia canonum conciliorum) (K öln, Dombibliothek 120 ) . He brought concord to his collection by arranging and indexing them. Five centuries later another canonist, Gratian of Bologna, would attempt to bring concord to canon law systematically. In Cresconcius’ time the law was too young and the sources were too limited to require him to reconcile conflicting opinions and texts. There were not yet significant conflicts with which he must struggle.

Canonical collections were made in various parts of Western Christendom. The Iberian peninsula and the Roman province of Gaul were especially important. During the sixth and seventh centuries Iberian bishops held numerous church councils. These canons were collected and added to the received texts of the Eastern councils. The most important collection of this extensive and frequent legislative activity was the Collectio Hispana. It was compiled by an anonymous canonist (although some attribute the work to St Isidore of Seville) in the first half of the seventh century. It circulated almost exclusively within the Iberian church and remained important until the twelfth century, surviving in many manuscript copies. The Collectio Hispana influenced canonical collections in the Carolingian realm.

In Gaul the bishops of Arles and others in the Southern Gaul also held many church councils. The canons of these councils were collected and augmented by other councils and decretals. The most important of the Gallican collections was the Collectio Vetus Gallica. It was compiled in the early seventh century, probably in the vicinity of Lyon. A bishop of Lyon, Etherius of Lyon, might have been the author (his authorship is not certain). The collection was topically arranged and circulated far less widely than the Dionysiana or the Cresconius’ Concordia canonum conciliorum, but was copied and used in lands North of the Alps. Etherius’ chief concerns were the holding s synods, clerical discipline, the rights of metropolitan bishops, and the protection of ecclesiastical property. An Ilberian cleric, Archbishop Martin of Braga, compiled a collection of canons in the second half of the sixth century. He relied on the canons of Eastern councils and divided his collection into two subject areas: canons that dealt with the clergy and those that covered the laity.

Perhaps the most unusual pre-Carolingian collection was compiled in Ireland ca. 700 A.D. Historians have named it the Collectio Hibernensis (K öln, Dombibliothek 210 ) . Undoubtedly Irish missionaries carried it with them to the continent during the eighth and ninth centuries, and it was copied extensively. More than eighty complete or excerpts of the work are still extant. Many of these date to the eighth and ninth centuries, and many show clear signs of their insular origins in the handwriting of the text. The author strove for a comprehensive catalogue of canonical norms, arranged topically, but he sacrificed accuracy and exactness in the process. Very often his texts were severely abbreviated and altered versions of the original. False attributions of sources were common. The short version of the collection contained references to almost 1600 texts with almost 646 taken from the patristic fathers. Because Greek was a language that was cultivated in Ireland at this time, it is not surprising that the compiler included Eastern fathers as well as Western Fathers. This collection functioned as a collection of canonical norms and as a guide to priests. In an extensive section on theft, for example, not only did the compiler discuss the various types of theft but also the punishments that priests should inflict on penitents for different types of theft. These parts of the collection were later incorporated into penitential handbooks designed to give guidance to priests in the confessional. Another unusual characteristic of the collection was the inclusion of canons from very local Irish synods. Up to this time, collections commonly contained the great ecumenical councils, other early Eastern councils, the African councils, and other Iberian and Frankish councils. Obscure local councils were not included. However, from the ninth to the eleventh centuries, local synods were more and more frequently included in canonical collections. Canonical norms were taken from a wider and wider range of sources.

About fifty years after the Greek Dionysius worked in Rome, a priest from Antioch, John Scholastikos, gathered canonical texts into a new collection. John drew upon an earlier, now lost, collection, the Collectio LX titulorum. His principal sources were the established tradition of Greek conciliar canons from the early councils of Nicaea, Ancyra, Gangra to the later councils of Constantinople I and Chalcedon. This part of the collection was very similar to Dionysius’. John added texts, however, to his collection that were not yet accepted as canonical in the West, the writings of an Eastern Church Father, St. Basil the Great. John divided two letters of St Basil that were written in 374-375 into 68 chapters and arranged them systematically according to subject matter. He also included texts from secular law and continued to blur the distinction in Constantinople between the jurisdiction of secular and ecclesiastical rulers over the church. When Justinian had compiled his great codification (530-535) he had included legislation governing church government and clerical discipline at the beginning of his Codex. Further, after promulgating his Corpus iuris civilis he produced extensive legislation that dealt with ecclesiastical matters in his Novellae. John Scholastikos “canonized” this material by including 87 excerpts from Justinian’s Novellae in his collection. All of this material John placed under fifty titles that began with the honor due to the patriarch (title one) and ended with a title that dealt with the canon of prayers and the date of Easter (title fifty). John Scholastikos’ Synagoge of 50 Titles occupies a position in the Eastern church similar to that of Dionysius Exiguus’ collection in the West. It is the oldest and first important collection of canon law in the East. It was a private collection, but all later Greek canonical collections were based on it or used it as a source. Dionysius introduced papal letters as a source of canonical norms equal to conciliar canons John established the writings of the church fathers (primarily the Eastern Church Fathers) as an authoritative sources in canonical collections. Later the Third Council of Constantinople (in Trullo) of 681 decreed that the writings of Eastern Church Fathers had juridical authority equal to conciliar canons. Since John Scholastikos was the patriarch of Constantinople his office gave his collection prestige and authority in the Greek church. Three hundred years later St. Methodios translated John’s Synagoge into Slavonic. It then became the text upon which the Slavonic and Russian churches based their legal systems.

In the West compilers also began to include patristic writings into canonical collections during the sixth century. During the ninth century, Western collections began to include fragments of Roman law, but these texts mainly dealt with procedural law. Consequently by ca. 900 A.D. all the sources for Eastern and Western canon law were the same to a greater or lesser extent — with the significant exception that papal letters were not recognized as authoritative in the East. The contentious issue of papal primacy clearly can be detected in the canonists’ choices of sources in the Latin and Greek canonical collections of the early Middle Ages.

In the very early years of his reign Charles the Great (771-814) asked Pope Hadrian I to send a collection of canons to him in 774. Hadrian sent a much augmented Collectio Dionysiana that scholars have given the title, Collectio Dionysiana-Hadriana (K öln, Dombibliothek 115-116 ) . We cannot know exactly what Charles expected to receive from the pope or what his purpose was. He clearly wanted a compilation that had papal approval. We can surmise that he wished to establish clear norms for the church based on Roman authority and precedents as he tried to fashion a Frankish church for his kingdom over the next forty years. Charles considered himself to be a reformer in the ecclesiastical and the secular realm. His reign was marked by extensive reworking, copying, and compilation of earlier canonical collections. He also issued "chapters" called capitularies . This legislation established norms for the secular and ecclesiastical worlds. The result, however, was far from a system of canon law or a code of canon law. The sources of canonical norms were still scattered and various. Both ecclesiastical and secular authorities promulgated norms for their churches.

Although Charles the Great and his son, Louis the Pious (814-840) were deeply involved in ecclesiastical matters, both legal and doctrinal, they had no concept of canonical norms being established by any central authority. As we have seen, the compilers of canonical collections had a very broad view of the authoritative sources of the norms that regulated Christian society. They did not look to the pope, councils, synods, or kings for regular rulings on ecclesiastical matters. Churchmen used earlier collections as quarries for canonical norms. They expanded them and altered them withoutany notion that some authority within the church or the secular world should approve or legitimate their work.

The work of these clerics took an extraordinary turn in the ninth century. In the second half of the century the political stability of the Carolingian realm was breaking down. As Horst Fuhrmann has put it, it was “a world awash with legal uncertainty.” The church was struggling with its place in society, and the canonical norms created in the late antique Mediterranean world were not adequate for a Northern European world that was fragmented, tribal, and local, disintegrating within and attacked from without. Carolingian governing structures and legal institutions were failing, and the invasions of the Scandinavians, Magyars, and Moslems were putting pressure on all the borders of Christendom. Within this context a group of clerics in Northwestern France put together a number of canonical collections containing large amounts of forged materials. Historians have called these collections and their related texts the Pseudo-Isidorian Forgeries. They have been called Pseudo-Isidorian because the most important collection of forgeries, a canonical collection of councils and papal decretals arranged chronologically in a format similar to the Collectio Dionysiana-Hadriana, was often provided with a preface attributed to a certain “Isidorus Mercator.” It was assumed that the writer was St. Isidore of Seville († 636), the famous theologian from the Iberian peninsula. Although this collection of decretals contained many forged papal letters, they were later universally accepted as genuine in the canonical tradition.

Forged documents were not unusual in the early Middle Ages. A complex of forged texts was produced in the early sixth century as a result of the schism between Pope Symmachus and Laurentius in Rome. These “Symmachian Forgeries” were based on putative papal documents (especially the “Constitutum Sylvestri”) that purported to demonstrate that the pope could be judged by no human authority. Although forgers did work in the late antique period, forgery was not as widespread as it became in the eighth and ninth centuries. The forgers of Pseudo-Isidorian materials worked in the area around Reims in the Frankish realm. Although scholars have put forward a number of conjectures about whom the forger(s) might be, there has not been any consensus. The purpose of the forgers was to protect the rights of clerics, clerical property, and bishops from lay control and judicial authority. It had become common after the death of Charles the Great that bishops were deposed from their sees and that secular judges were rendering sentences upon clerics in their courts. The forgers were particularly concerned to protect suffragan bishops from the jurisdiction of metropolitans. The deposition of bishops became much more difficult under the rules of procedure found in the forgeries. Bishops could not be accused by laymen of any crime, and they could not be brought before a secular court. The forgers used papal power as a shield to protect the rights of bishops. A bishop could appeal to the pope at any point in a judicial proceeding. Councils and synods could no longer hear complaints against bishops. These cases were considered “causae maiores.” This is the origin of the papal prerogative that only the pope could judge cases of great importance in the Church. The canonists steadily expanded the list of “causae maiores” over the next centuries.

There were four major collections produced by the forgers in the ninth century: The Pseudo-Isidorian Decretals, The Capitulary Collection of Benedictus Levita, the Capitula Angilramni, and the so-called Collectio Hispana Gallica Augustodunensis. The Carolingians used short statements of norms, called “capitula,” to promulgate legislative and administrative orders in their realms. These capitularies contained norms for the church and for the secular realm. The forgers took their materials from secular collections of laws as well as canonical collections to accomplish their goals. The Pseudo-Isidorian Decretals (K öln, Dombibliothek 113 ) and the Capitulary Collection of Benedictus Levita drew on similar sources. The compilers of both had similar views on ecclesiastical governance. The Capitulary Collection of Benedictus Levita was finished ca. 847 and was used by the authors of the Pseudo-Isidorian Decretals, which was finished ca. 852. Of the four major collections, only the Pseudo-Isidorian Decretals had influence on the development of canon law. Its influence is paradoxical. On the one hand manuscript copies of the Decretals were found all over Europe. There is evidence that they were known in Rome by 863-864. Many Italian libraries contained copies of the work. Copies of the collection were found in all the major centers of Christendom, except England, where Pseudo-Isidore arrived only after the Norman Conquest in 1066. On the other hand, the influence of Pseudo-Isidore on other canonical collections was very small until the eleventh century. Although popes began to quote Pseudo-Isidorian decretals from the time of Pope Nicholas I (858-867) the false decretals did not find a secure place in canonical collections until the eleventh century. They would remain an uncontested part of canon law until the sixteenth century.

We now understand that medieval men had a very different conception of falsification than we do today. They falsified charters that preserved customary, unwritten rights they were sure they possessed. They created legends about the origins of families and principalities. These granted legitimacy to political systems. They produced relics to honor a Christian heroic past. The Pseudo-Isidorian forgers created documents to justify the structures and norms of a Frankish church. The paradox remains that the forgers lasting contribution to canon law was the justification of papal power, authority and monarchical government. As the long list of forged papal decretals entered canonical collections, their presence provided convincing evidence that popes from earliest times confidently governed the church and issued authoritative rulings in a wide variety of cases. The first decretals in the collection were attributed to Popes Clement I (c.91-101 A.D.) and Anacletus (c.79-c.91) the list continued to Pope Melchiades (310-314). In all there were sixty decretals from thirty popes. For later canonists, the existence of these letters was a powerful and convincing argument that the bishop of Rome had been the primate of the church since Apostolic times.

The ninth century also marked an important stage in the development of Eastern canon law. In Constantinople canon law began to merge with civil law in the sixth century. The first legal collections contained only ecclesiastical norms (κανόνες “canons”) or secular norms (νόμοι “laws”). In the late sixth and early seventh centuries Byzantine canonists combined these two sources: these collections were named “nomokanons” (νομοκάνονες), although the name did not become common until the eleventh century.

The most important Byzantine nomokanons are the Nomokanon of 50 Titles and the Nomokanon of 14 Titles. For these new collections, the canonists used John Scholastikos’ Synagoge of 50 Titles (Nomokanon of 50 Titles) and another collection, the Syntagma of Canons in 14 Titles (Nomokanon of 14 Titles), as their main source of ecclesiastical norms. They also added imperial laws taken from Justinian’s codification. The Nomokanon of 50 Titles was put together by an anonymous compiler in Antioch during the reign of Justin II (565-578) or of Maurice (582-602).

The first version of the Nomokanon of 14 Titles was compiled ca. 612-629 and was formed by combining the Syntagma of Canons of 14 Titles with the legislation of Justinian that touched upon the Church. The work was probably produced in Constantinople, but the compiler is unknown. Because Patriarch Photios wrote a prologue to a new recension of the collection ca. 882-883, historians had long assumed that Photios compiled it.

The expanded collection with the endorsement of Photios became the most important collection of canon law in the Greek Church. It shaped the content and the structure of canon law in the orthodox church. Conciliar canons, the writings of the Church Fathers, and imperial legislation constituted the authoritative sources of canon law in the Greek church. The Nomokanon of 14 Titles was revised in the eleventh century by Theodore Bestes, and Theodore Balsamon added a prologue and commentary to the collection in the twelfth century.

The Nomokanon is divided into titles and chapters. The titles contain canons and imperial laws. It was the most complete summary of regulations for the Byzantine church. The Greek canonists wrote commentaries on it. The conciliar canons in the first part are basic texts of Greek Orthodox ecclesiastical law up to the present time. The Nomokanon of 14 Titles was translated into Slavic during the patriarchate of Photios and became an important source of law in that tradition.

The contrast between the Eastern and Western churches is highlighted by their respective legal systems. In the East imperial legislation, conciliar canons, and the Eastern Church Fathers formed the foundations of the legal system. In the West papal decretals, some authentic, some forged, supplemented by ecumenical and local councils, governed ecclesiastical norms. The two churches were moving in different directions. Their two laws were becoming more and more isolated from each other.

After the Carolingian period, the next great wave of canonistic activity began at the beginning of the eleventh century with the Decretum of Bishop Burchard of Worms (between 1008 and 1012) and ended with the Italian and French collections that were influenced by principles of church reform that swirled through ecclesiastical and secular circles during the eleventh century. The spirit of reform meant that churchmen searched the traditions of the Latin church for texts that justified their views. These texts provided the auctoritates necessary for the resolution of differing views on such major issues as simony, clerical concubinage, and lay interference in the Church. As they struggled to justify their vision of the Church, the reformers realized that the Church needed a body of law that would be recognized throughout Christendom. They also realized that there should be a central authority that had the power to modify and to change law when needed. Ultimately they recognized that the papacy should be the center of that reform

The canonical collections compiled between 1000-1100 are rich evidence of these developments. Certain areas in Central and Northern Italy, Southern and Central France, Normandy, the Rhineland and England emerged as important centers of canonistic activity but no one region, including Rome, dominated the production of texts. The eleventh-century collections remained private and lacked any official approval by the pope or by anyone else. Canonical collections were used because they provided guidelines and norms, not because they had been sanctioned by some authority.

Some collections circulated widely. The manuscripts of the major collections like Bishop Burchard of Worm’s Decretum (ca. 1008-1023), The Collection in 74 Titles (ca. 1050-1075), Bishop Ivo of Chartres’ Panormia (ca. 1091-1096), are scattered all over Europe. They demonstrate a wide reception that gave them canonical legitimacy. Other collections like Bishop Anselm II of Lucca’s Collectio canonum and Lanfranc of Bec, Archbishop of Canterbury’s canonical Collection (generally referred to as the Collectio Lanfranci) had a more limited circulation, in Italy and the British Isles respectively. As their titles indicate, the major canonists of the age were bishops. Pastoral care and canon law merged during the eleventh century.

These eleventh-century collections share a number of common traits. They are all systematic collections, arranged topically. The chronologically arranged collection was no longer attractive or useful to churchmen. The reformers recognized that to achieve their goals meant that they needed compilations of law that provided texts for their positions and that emphasized the role of the pope in the governance of the church. Although historians have debated whether certain collections reflect a papal or an episcopal agenda for church government or whether some collections were vehicles for and products of the reform movement, these questions are difficult to answer. The canonists collected a wide variety of texts from older collections. Most of the collections dealt with many aspects of ecclesiastical life. Some of them were obviously concerned with certain issues: papal authority, monastic discipline, clerical marriage, simony, and others. Most collections, however, reflect their authors’ search for general norms to govern ecclesiastical institutions and to enforce clerical discipline. To describe a collection as having a single purpose is probably off the mark.

Two collections may be used to illustrate the importance and the characteristics of eleventh-century collections. The Collection in Seventy-four Titles, whose medieval title was “Diversorum patrum sententie,” was produced between ca. 1066 to 1074 by an anonymous compiler. Anselm of Lucca’s Collectio canonum was composed a little later, ca. 1081-1086, during the tempestuous, reform pontificate of Pope Gregory VII (1073-1085). His collection has sometimes been used as an exemplar of a “reform collection” of the “Gregorian Revolution.”

Scholars have debated the purpose of the Collection in Seventy-Four Titles. Some scholars have described it as a “Gregorian” collection, a product of the first years of Gregory VII's pontificate. They believe that the collection was designed to enhance the papal primacy. Indeed the collection begins with the title, De primatu Romane ecclesie, and contains 20 papal decretals of which 8 (chapters 2-9) are forgeries taken from Pseudo-Isidore’s Collection that extolled papal authority. Other scholars have concluded that since Seventy-four Titles relied on Pseudo-Isidorian Decretals and since ca. 90 chapters from Pseudo-Isidore concern the prosecution of the clergy, the focus of the collection is clerical rights in the courts. Accordingly, they view the purpose of Seventy-four Titles as extending the accusatorial norms of Pseudo-Isidore that were limited to bishops to all clerics. Both positions highlight important elements that are found in the canons of Seventy-four Titles. The collection begins with a title devoted to papal authority. Before the eleventh century no collection focused on papal power so precisely and prominently. The collection also contains canons that protect the procedural rights of all clerics (Titles 5, 7, 9, 10, 11, 14). Typical of eleventh-century collections, it deals with unworthy and simonaical clerics (Titles 15-21). The author of Seventy-four Titles clearly wanted to establish strong papal authority, the independence of the church, and guidelines for a reformed clergy.

Although the compilers of eleventh-century collections gathered their materials from a wide variety of sources, they did not privilege contemporary papal letters. Seventy-four Titles, for example, does not include one letter from a contemporary pope. For reasons that we do not fully understand, eleventh-century canonists established the textual foundations of papal authority and the universality of papal jurisdiction but did not draw upon the decretals of contemporary popes.

Anselm of Lucca began his collection with a title on the authority of the Roman church. Anselm, more than the compiler of the Seventy-four Titles, explicitly focused on papal power. The first title, “De potestate et primatu apostolicae sedis,” is the only title of the first book of the collection (twelve books in all) and contains a remarkable 89 chapters. As with Seventy-four Titles, Anselm borrowed liberally from the forged decretals that he found in Pseudo-Isidore. Pseudo-Isidore flourished in the collections of the period. Of the 1149 chapters in Anselm's collection some 260 came from Pseudo-Isidore. Anselm of Lucca's collection, more than any other, introduced Pseudo-Isidore to canon law.

Anselm’s collection assembled a rich collection of texts that supported reform of the clergy and of the church. Book four dealt with ecclesiastical privileges, Book five with tithes, monks and monasteries, and ecclesiastical property, and Book seven with the clerical orders and discipline. The final two books (11 and 12) treated excommunication and the doctrine of “just punishment.” Although scholars might debate the purpose of Seventy-four Titles, Anselm indisputably wished to advance the goals of Pope Gregory VII and the other reformers. Yet if we look at Anselm’s canonical sources, we find a startling statistic: only ten of his canons are taken from eleventh-century sources. Of these ten canons Anselm took five from Gregory VII’s legislation. But here too we have a puzzle: one was a decretal letter and the others were conciliar canons from Roman councils over which Gregory had presided. We could conclude that Anselm preferred the collective judgments of the pope in council to the decretals letters of the papal curia. If we look at later canonical collections of the late eleventh and early twelfth centuries, we find the same pattern. The canonists gathered few texts from contemporary popes or councils.

The eleventh-century canonists emphasized papal judicial and legislative primacy as it had never before in the canonical tradition. They created a new petrine ecclesiology. Yet, by and large, their canonical collections reflect a fiction that began with the Pseudo-Isidorian decretals: the canonists could conclude that the “ius antiquum” of the Church provided more than enough evidence that popes had achieved judicial and doctrinal primacy in the first three centuries of the Christian era. The men of the age fervently believed that “old law was good law.” The compilers of the canonical collections endorsed this maxim. They did not have to turn to the contemporary papal legislation to establish the new ecclesiastical order. A small number of papal decretals did find their way into the canon law collections of the eleventh century, and they justified key elements of the reformers’ program: Gregory VII’s justification of his deposition of Henry IV and his legislation in the Roman council of 1080 that condemned the investiture of clerics by laymen. But these two examples were the exception. The tacit conclusion that could be drawn from a careful study of the sources of the eleventh-century canonical collections was that the papacy did not make new law except out of necessity or utility. The final paradox is that the canonical collections of the reform period prepared the way for a revolution in the sources of canon law that took place in the twelfth and thirteenth centuries. As we will see, by the middle of the thirteenth century, papal decretals will push aside the rich and variegated sources of the first millennium of canon law and take their place as the primary source, if not the exclusive, of canonical norms.

Before the twelfth century, canon law existed as a body of norms embedded in the sources. The collections of canon law included conciliar canons, papal decretals, the writings of the church fathers, and to a more limited extent, Roman and secular law. These collections did not contain any jurisprudence because they existed in a world without jurists. There were no jurists to interpret the texts, to place a text into the context of other norms of canon law, and to point out conflicts in the texts written at various times.

Jurists arrived in the early twelfth century. They began working and teaching in the city of Bologna in North-central Italy. The first on the scene were the teachers of Roman law, Pepo and Irnerius, and they were succeeded by a cadre of teachers who raised the city to unprecedented intellectual heights. Emperor Frederick Barbarossa visited Bologna in 1155 and promulgated the Authentica Habita,, with which the emperor took the masters and students at Bologna under imperial protection. He ordered that his decree be placed in Justinian’s Codex, a collection of Roman imperial constitutions. The emperor recognized the teachers and students of a flourishing law school. He also understood the importance of the school for his realm. The Authentica Habita, more than any other single piece of evidence, calls into question recent suggestions that the teaching of Roman law at Bologna began only in the 1130's. It is difficult to imagine that the emperor would have been concerned to protect a Studio still in its infancy and to issue important legislation for it. Or, conversely, that in twenty years the studio would have reached maturity.

For the development of canon law Gratian of Bologna was the most significant canonist of the twelfth century. Until recently the only secure fact that we knew about Gratian was that he compiled a collection of canons entitled the Concordia discordantium canonum, later called the Decretum. Very quickly it became the most important canonical collection of the twelfth century and later became the foundation stone of the entire canonical tradition. It was not replaced as a handbook of canon law until the Codex iuris canonici of 1917 was promulgated.

Since the work of Anders Winroth in 1996 we have learned much more about Gratian. Winroth discovered four manuscripts of Gratian’s collection that predated the vulgate text of the Decretum. Since then another manuscript of this early recension has been discovered in the monastic library of St. Gall, Switzerland. Although all five manuscripts must be studied in detail before we fully understand their significance, some conclusions can already be made. The first recension of Gratian’s work was much shorter than the last recension. The differences between the recensions mean that Gratian must have been teaching at Bologna for a significant amount of time before he produced his first recension and that there was a significant period of time between the first and second recensions. Some evidence points to Gratian’s having begun his teaching in the early twelfth century other evidence points to the 1130's, or perhaps the 1140's. In any case, Gratian’s second recension of his work was finished in the late 1130's or early 1140's and immediately replaced all earlier collections of canon law.

Gratian became the “Father of Canon Law” because his collection was encyclopedic and because he provided a superb tool for teaching. His Decretum was a comprehensive survey of the entire tradition of canon law. Gratian drew upon the canonical sources that had become standard in the canonical tradition and assembled a rich array of canons, about 4000 in all. His sources were four major eleventh and early twelfth-century canonical collections that circulated in Italy. Anselm of Lucca’s Collectio canonum and Ivo of Chartres’s Panormia were two of these four collections. He included genuine and forged papal decretals, local and ecumenical conciliar canons, a rich collection of writings of the writings of the church fathers — more than any other earlier canonical collection, 1200 chapters in all — Roman and law, and many citations taken from the Old and New Testament.

Gratian introduced jurisprudence into canonical thought. His first innovation was to insert his voice into his collection to mingle with those of the Fathers of Nicaea, St. Augustine, and the popes of the first millennium. He did this with dicta in which he discussed the texts in his collection. He pointed to conflicts within the texts and proposed solutions. His dicta made the Decretum ideal for teaching, and the Decretum became the basic text of canon law used in the law schools of Europe for the next five centuries.

In addition to the novelty of his dicta, Gratian created a collection of canon law that was organized differently than any earlier collection. At the core of his collection he constructed 36 cases (causae). In each case he formulated a problem with a series of questions. He then would answer each question by providing the texts of canons that pertained to it. When the text of the canon did not answer the question without interpretation or when two canons seemed in conflict, Gratian provided a solution in his dicta. Gratian’s hypothetical cases were effective teaching tools that were ideally suited to the classroom.

Perhaps the most important parts of his work for the beginnings of European jurisprudence were the first twenty distinctions of the 101 distinctions (distinctiones) of the first section. In these twenty distinctiones he treated the nature of law in all its complexity. Justinian’s codification of Roman law that was being taught in Bologna at the time Gratian was working on his Decretum defined the different types of law but did not create a hierarchy of laws and did not discuss the relationship between the different types of law. Gratian did that in his first twenty distinctions. These twenty distinctions stimulated later canonists to reflect upon law and its sources. Gratian began his Decretum with the sentence: “The human race is ruled by two things, namely, natural law and usages” (Human genus duobus regitur naturali videlicet iure et moribus). The canonists grappled with the concept of natural law and with its place in jurisprudence for centuries. Their struggle resulted in an extraordinary rich jurisprudence on natural law and reflections on its relationship to canon and secular law. A very distinguished historian has written: Gratian’s Decretum was “essentially a theological and political document, preparing the way — and intended to prepare the way — for the practical asserting of the supreme authority of the papacy as lawgiver of Christendom.” This sentence might describe the purpose of Anselm of Lucca (and other canonists of the reform period) but not Gratian’s plan for his work. If Gratian’s goal for the Decretum were to be limited to one idea (a dubious idea) it would be that he wanted to describe the relationship of law to all human beings. Gratian’s purpose is clearly revealed in the first distinctions in which he analyzed the different types of law, just as Anselm of Lucca’s purpose is revealed at the beginning of his collection.

After he discussed law in the first twenty distinctions, Gratian then turned to issues of ecclesiastical government and discipline. For example distinctions 31-36 treat the morals of the clergy 60-63 ecclesiastical elections 64 and 65 episcopal ordination 77 and 78 the age of ordination 95 and 96 secular and ecclesiastical authority. In the causae Gratian discussed the problem of simony (causa 1) in causae 2-7 he treated procedural matters 16-20 monks 23 war 27 to 36 marriage. One important part of the Decretum was added later. At the end of the book the long tract on sacraments (de consecratione) was added later. Gratian’s teaching and his Decretum established canon law as a partner to Roman law first in Bologna and then all over Europe. He prepared the way for canonical jurisprudence.

Theodore Balsamon was the most important canonist in Constantinople during the twelfth century. He was born in the early decades of the century and died sometime after 1195. Unlike Gratian, who probably never held an important ecclesiastical office, Theodore Balsamon joined the ranks of the clergy quite early and was a high-ranking member of the ruling elite in Constantinople. He was ordained a deacon of Hagia Sophia, the most important church in Constantinople. Afterwards he assumed the positions of nomophylax and chartophylax as well as that of protos of the church. A nomophylax meant “guardian of the law” and was a prestigious post at the imperial court. He was the president of the school of law and was given senatorial rank. In the 1170's the Emperor Manuel I and the Patriarch of Constantinople, Michael commissioned him to revise the Nomokanon in XIV Titles. Balsamon carried out this task and also wrote a commentary on the Nomokanon. The work has given him a reputation and a position in Greek Orthodox canon law similar to Gratian in Western canon law. But there the similarity ends. The emperor commissioned Balsamon to revise canon law. Gratian worked well outside the circles of secular and ecclesiastical power. Balsamon revised an earlier work that had become the authoritative book of canon law in the East Gratian fashioned a collection of canon law that was different from any prior collection. Balsamon continued the Byzantine tradition of melding secular law with canon law. He compared all the imperial law in the Nomokanon with those in the Basilika (τὰ Βασιλικα), a collection of imperial laws from the late ninth or early tenth century. Those secular laws in the Nomokanon that were not in the Basilika were considered abrogated. For the ecclesiastical canons in the collection, Balsamon explained their place in the canonical tradition when he discussed them in his commentary. He noted any that had been abrogated or derogated by subsequent legislation. As we have seen, Gratian used Roman law but took almost all his texts from earlier canonical collections. It was Roman law that had been “canonized.”

There had been a practical reason that the emperor and patriarch asked Balsamon to work on the Nomokanon. The metropolitan of Amaseia had not filled the vacant see of Amisos. Patriarch Michael appointed a new bishop and argued that he had the authority to make the appointment because of a novella of Justinian. The metropolitan appealed to the emperor, who declared the patriarchal decision invalid. Manuel noted that the novella was not in the Basilika and therefore was not valid law. Because of this case, Balsamon was ordered to study other the imperial legislation in the Nomokanon of Fourteen Titles.

Balsamon continued to work on his commentary on the Nomokanon for a long time, possibly until he died. He took later imperial and ecclesiastical legislation into account. The last novella that he mentioned was issued by Isaac II after April 1193.

A comparison of Gratian’s and Balsamon’s ecclesiology is revealing. Gratian described a church that was centered in Rome and that had jurisdictional independence from secular rulers. Although he did not emphasize papal authority to the same degree that the eleventh-century canonical collections had, he included all the fundamental papal decretals from Pseudo-Isidore as well as genuine papal decretals that established papal jurisdictional primacy. In contrast Balsamon’s church was not independent. The emperor had the authority to establish, derogate, and abrogate canonical norms. Balsamon insisted that the emperor should exercise this power with caution and only in exceptional cases. He did not, however, grant the emperor authority in dogmatic questions.

Balsamon’s significance was central in the Byzantine canonical tradition. During both the late Byzantine as well as post-Byzantine periods, canonists cited and used excerpts from his commentary. He also influenced Slavic canonical literature. His works were translated or were transmitted by canonists like Matthew Blastares who was influenced by him.

Although it was not a highly polished text, Gratian's Decretum quickly became the standard textbook of medieval canon law in the Italian and transmontane schools. Its flaws were minor. Gratian left repetitions and seams in his text that betrayed its long period of gestation. The revisions of his work sometimes introduced confusion and ambiguity, but the canonists were only rarely dismayed by his conclusions, comments or organization.

In the formative age of canon law, that age following Gratian when the study of canon law became a discipline in the schools in Italy, Southern France, and Spain, the jurists began to fashion the first tools to construct a legal system that met the needs of twelfth-century society. Gratian's Decretum surveyed the entire terrain of canon law but was only an introduction to the law of the past. Although it provided a starting point for providing solutions, it did not answer many contemporary problems directly. The three most pressing areas in which the jurists used the new jurisprudence to transform or to define institutions were procedure, marriage law, and the structure of ecclesiastical government. In the first half century after Gratian, the jurists concentrated on these problems, and their teachings and writings vividly reflect these concerns.

The disciples and successors of Gratian at Bologna and elsewhere continued his work of bringing order to the new discipline of canon law in two ways. Almost immediately they began to write summae and glosses on the Decretum, and within several decades, the work of the jurists evolved into standard apparatus, which, along with the Decretum, formed the foundation of the teaching of canon law. At the same time, they experimented. They modified Gratian's text and, to a lesser degree, reorganized it. Scholars call these jurists decretists because Gratian’s Decretum was the center of their universe.

The textual changes that the decretists made took three forms. They added additional chapters of canon law and excerpts of Roman law to the Decretum. They called these new texts “palea.” To make Gratian's book more accessible to a wider audience, they composed abbreviations of the entire book, and, rarely, reorganized Gratian's material so completely that the result was a new work. For the most part, this work was done by anonymous jurists.

The earliest changes may have been the addition of chapters to Gratian. They were inserted into the text itself or added to the margins. Although the canonists of the twelfth century called them paleae, they did not know from whence the term came. Huguccio conjectured that the word meant `chaff' added to the good grain other authors thought that the term was derived from the name of Paucapalea, one of the first commentators on the Decretum. He, they surmised, had been responsible for the paleae added to Gratian's text.

The canonists also produced many abbreviations of Gratian's text, some of them having been produced shortly after Gratian finished his work. In France, for example, the first sign that Gratian had been received was an abbreviation of the text, Quoniam egestas, written ca. 1150. The importance of such abbreviations was not limited to those who had no or little legal training. There are seven manuscripts of Quoniam egestas, and four of them are glossed. The glosses are evidence that professional jurists also used abbreviations in their work. The abbreviators sometimes shortened the texts rather mechanically, but did, at times, added their own dicta that supplemented or replaced Gratian's. These abbreviations were, for the most part, composed in the twelfth century, and the genre almost disappears by the beginning of the thirteenth. Some of the abbreviations were the work of local jurists and were probably meant to serve the needs of local bishops.

In spite of its slightly cumbersome organization and large compass, Gratian's Decretum became the centerpiece of canonical jurisprudence and Bologna became the most important center for the study of that law in the second half of the twelfth century. The city was perfectly suited to foster the new discipline. Roman law was already a flourishing discipline there. No matter what Gratian's attitude or knowledge of Roman law was, by the end of the twelfth century no canonist could practice his trade without a thorough mastery of Justinian's codification. At a very early stage, the emperors and popes recognized the importance of Bologna and the new disciplines. We have seen that Frederick Barbarossa issued an imperial privilege to the students of Bologna in 1155. Pope Alexander III took the precaution of announcing his election to the bishop, canons, doctors and masters of Bologna in 1159. Later Pope Lucius III granted the students of Bologna papal protection against rapacious landlords in 1176-1177. The school of law at Bologna was vigorously engaged in teaching and training jurists, and the empire and the papacy slowly began to understand the significance of jurists' work for the governance of their institutions. The papal and imperial privileges are convincing evidence that they and their courts grasped the importance of these new institutions.

Many reasons compelled the papacy to take notice of the law school at Bologna. The Church had become much more juridical during the course of the twelfth century. St. Bernard's famous lament in his letter to Pope Eugenius III (1153) that the papal palace is filled with those who speak of the law of Justinian confirms what we can also detect in papal decretal letters. The new jurisprudence influenced the arengae and the doctrine of decretals. Canonists undoubtedly drafted these letters in the curia. The rush to bring legal disputes to Rome became headlong in the second half of the twelfth century. Litigants pressed the capacity of the curia to handle their numbers. Popes delegated many cases to judges-delegate, but the curia was still overburdened.

Procedure presented problems in need of authoritative solutions. As ecclesiastical courts began to render judgments on the basis of written and oral evidence, judges, litigants, and jurists began to worry about correct judicial procedure. The first notice we have that the papal curia asked for guidance from the law school at Bologna was ca. 1140 when Aimeric, the papal chancellor, asked Bulgarus to compose a short treatise on procedure. Bulgarus's tract has been preserved in several versions and had a rather wide circulation. By the 1170's the papal chancery was organized and staffed by canonists. A canonist, Albert of Morra, later Pope Gregory VIII, was appointed chancellor by Pope Alexander III. The Church became a church of law. The legal system extended from the papal curia to local courts. Lawyers began to play a visible role in the administration of justice. From the twelfth century on, distinguished jurists were often rewarded with high ecclesiastical offices. Of the twelfth-century canonists, Omnebonus (Verona), Sicardus (Cremona), Stephen (Tournai), Johannes Faventinus (Faenza), Huguccio (Ferrara), and Bernardus Papiensis (Faenza, then Pavia) became bishops. This pattern was not unique to Italy. Canonists were also rewarded with episcopal appointments in the Iberian peninsula, France and England during this period.

St. Bernard was not the only churchman who had misgivings about these developments within the church. Local bishops resented the growing centralization of the church and objected to their loss of prerogatives to the papacy. Litigants were quick to seize the advantages that distant courts and far-away judges presented. They used the appeal as an instrument of delay or even fraud. In the late twelfth century, popes Clement III and Celestine III countered these widespread abuses by attempting to restrict appeals to Rome. But by this time, the system was too entrenched. Papal justice may have been imperfect, but its success was due to litigants who voted for it with their feet. The heavier the burden on the papal curia, the quicker the curia expanded to meet the need. Pope Innocent III remarked that there was always an abundance of lawyers in Rome, and his statement reflects the practical side of Bologna's relationship to the papacy. The papal curia provided the forum Bologna sent her jurists.

Although papal decretal letters surpass the Decretum as the basic texts for the study and practice of canon law by the beginning of the thirteenth century, Gratian's Concordia reigned without significant rivals from ca. 1140 to 1190. The jurists at Bologna and elsewhere produced commentaries on the Decretum, and the jurists made it the central text of their teaching. The earliest works on the Decretum fall into two types: apparatus and summae. The canonistic summae often synthesized and paid attention to detail at the same time. To a certain extent, one may distinguish these two literary types by examining the way in which a work was transmitted. Apparatus were most often, but not always, written in the margins of the manuscripts of the law books, while summae were most frequently written separately from the book on which they commented. Twelfth-century Decretum manuscripts contain an infinite variety of marginal glosses that are an admixture of coalescing apparatus and individual glosses. In many respects, these glosses to the Decretum can be considered the most important accomplishment of the Bolognese jurists in the twelfth and early thirteenth centuries.

Bologna became the center of the world of canonical jurisprudence in the second half of the twelfth century, but canon law was taught at many transmontane centers — primarily at Paris, but also at Tours, Reims, Oxford, and other smaller cities --- neither the documentary nor the literary sources provide enough information with which we may write the history of a particular school. We can distinguish between cismontane and transmontane works, but we can rarely attribute an anonymous summae produced north of the Alps to a particular center with any certainty. At Bologna, however, we are much firmer ground. We know the names of jurists who taught there and can catalogue their works. But even at Bologna, we have very little biographical information with which to flesh out their careers. In contrast to the anecdotes that circulated about the Roman law jurists, the canonists do not seem to have participated in public forums which would have given rise to anecdotal tales, true or false.

Paucapalea was one of Gratian's first successors at Bologna and taught in his shadow. Unreliable testimony of some jurists credited him with introducing the distinctions in the first and third parts of the Decretum and with adding the paleae to Gratian's text. Almost nothing is known of his relationship to Gratian or of his public career. The only certainty is that he wrote the oldest commentary on Gratian's Decretum, probably sometime between 1144 and 1150. Paucapalea’s Summa is an impressive work. One would not expect the first commentary on Gratian to dazzle with great sophistication.

The two most important teachers of the 1150's in Bologna were Rolandus and Rufinus. The earliest notice of a Magister Rolandus in Bologna is dated 1154. Rolandus wrote many recensions of his Summa on the Decretum. The earliest was finished ca. 1150 the others in the next decade. Rolandus composed his Sententiae after the third recension of his Summa (ca. 1155). Rolandus focused on the law of marriage in his work. It was a topic of intense interest and importance for the jurists in the second half of the twelfth century.

Although Rolandus has attracted more attention from modern historians because they had erroneously identified him with Pope Alexander III, Rufinus was the major figure at Bologna in the 1150's. We know almost nothing about him, but finished his Summa on the Decretum sometime around 1164. At the end of Rufinus's Summa, an anonymous scribe dubbed him “the first elegant commentator or interpreter of that golden book, the Decretum.” Modern historians have concurred. His personality was forceful, education broad, and opinions mordant. The length and the detail of his Summa surpassed all his predecessors. Almost immediately it became the most influential commentary on Gratian in Bologna.

After Rufinus, a number of canonists wrote important commentaries on the Decretum. Stephen of Tournai (ca. 1166-1170) developed several ideas in the prologue to his Summa that reflect developments in the evolution of canonistic jurisprudence since Gratian. He introduced his Summa with an invitation to a jurist and a theologian to share a meal, one that both could partake. And, he continued, just as they had two different approaches to law, the world was governed by dualities: there are two people in God's world, clerics and laymen, two principatus, the sacerdotium and regnum, and two orders of jurisdiction, divine law and human law. The reformers of the eleventh century had fought for Stephen’s vision. Now it was a commonplace.

Sometime after 1171, Johannes Faventinus wrote a Summa that borrowed much from Rufinus and Stephen of Tournai. Although large portions of the work are derivative and were copied word for word from the sources, it enjoyed great popularity as is evident by the wide dispersal of the surviving manuscripts. One of the last canonists whom we may place in the first generation after Gratian was Simon of Bisignano. By his time the character of canonistic commentaries was changing. The outpouring of papal decretals and the systematic application of Roman law to canonical jurisprudence was well underway. Simon's works reflected both trends, and he cited papal decretals and Roman law fairly frequently. His practice foreshadowed the future.

Huguccio was, after Gratian, the most important canonist of the twelfth century. He wrote the most extensive, most widely quoted, and most influential commentary on Gratian’s Decretum in the history of canon law. He worked at the end of the twelfth century (ca. 1190), taught at Bologna, and later, like so many canonists, became the bishop of Ferrara. His commentary on Gratian was detailed, lucid, and comprehensive. Later jurists cited his ideas, incorporated his opinions into their works, and reacted to his positions. After Huguccio — with a few later exceptions (e.g. Johannes Teutonicus’ Ordinary Gloss to the Decretum [ca. 1215]) — commentaries on the Decretum ceased.

The main reason for Huguccio’s commentary marking the end of an age was the transformation of canon law from a discipline based on the explication of Gratian's Decretum to a legal system based on papal decretals. Bernard of Pavia, also known as Bernardus Balbi, inaugurated the age of the decretalists, those jurists who concentrated on papal decretals in their teaching and writing. He had glossed Gratian's Decretum during the 1170's, beginning his career at Bologna in the age of the Decretists. Like his teacher, Huguccio, Bernard followed a “cursus honorum” that became a common pattern for jurists in the thirteenth century. He studied and taught at Bologna, became provost of Pavia in 1187, bishop of Faenza in 1191, where he succeeded Johannes Faventinus to the episcopal seat, and then, in 1198 he became bishop of Pavia. As a canonist Bernard’s importance was that he gave form and organizational principles to the study and teaching of papal decretals that remained standard in the schools for the rest of the Middle Ages. He compiled a collection of decretals and other texts that Gratian had excluded and called it a Breviarium extravagantium. Every later collection of papal decretals adopted Bernard's organizational pattern. After the compilation of Compilationes secunda and tertia after ca. 1210, Bernard's Breviarium was cited as Compilatio prima by the canonists.

Bernard's Breviarium was a breakthrough for canonistic scholarship. Papal decretals had begun to occupy an evermore important position in canon law since the 1160's, but the canonists had not yet devised a way to deal with them. Small, unsystematic collections were first compiled and often attached as appendices to Gratian's Decretum. Gradually larger collections were made, but since they were usually not arranged systematically, they were difficult to use, consult, and impossible to teach.

Bernard compiled his Breviarium between 1189 and 1190, while he was provost of Pavia. The new collection took the school at Bologna by storm. Although, like Gratian's Decretum, it was a private collection, the canonists immediately used it in their classes and wrote glosses on it. Bernard’s Brevariuum served as an introduction and as a blueprint for a new system of canon law.

In his prologue to the collection, Bernard wrote that “he had compiled ‘decretales extravagantes’ from both new law and old law and organized them under titles.” Bernard was modest. He revolutionized the study of the “ius novum.” Earlier collections had been arranged according to titles, but none as systematically as Bernard's. Roman law once again provided the canonists with a model. If we compare the titles of Bernard's collection in books one and two with Roman law collections, we can see the clear influence of the structure of Justinian’s codification. The following list of titles from books one and two illustrates Bernardus adoption of Justinian's titles and organization from the Digest and the Codex:


An Introduction to Roman-Dutch Law/General Introduction

The Roman-Dutch Law: The phrase ‘Roman-Dutch Law’ was invented by Simon van Leeuwen, [1] who employed it as the subtitle of his work entitled Paratitula Juris Novissimi, published at Leyden in 1652 and republished in 1656. Subsequently his larger and better known treatise on the ‘Roman-Dutch Law’ was issued under that name in the year 1664.

The system of law thus described is that which obtained in the province of Holland during the existence of the Republic of the United Netherlands. Its main principles were carried by the Dutch into their settlements in the East and West Indies and when some of these, namely the Cape of Good Hope, Ceylon, and part of Guiana, at the end of the eighteenth and the beginning of the nineteenth century, passed under the dominion of the Crown of Great Britain, the old law was retained as the common law of the territories which now became British colonies. With the expansion of the British Empire in South Africa, the sphere of the Roman-Dutch Law has extended its boundaries, until the whole of the area comprised within the Union of South Africa, representing the four former colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River, as well as the country administered by the British South Africa Company under the name of Southern Rhodesia, has adopted this system as its common law. This is the more remarkable since in Holland itself and in the Dutch colonies of the present day, the old law has been replaced by modern codes so that the statutes and text-books, which are still consulted and followed in the above-mentioned British dominions, in the land of their origin are no longer of practical interest. [2]

For many centuries after the dissolution of the Frankish Empire there was no general legislation. Under the rule ​ of the Counts of Holland the law of that province consisted principally in general and local customs supplemented to an uncertain degree by Roman Law. The numerous privileges (handvesten) wrung from the Counts by the growing power of the towns only tended to complicate the law by a multiplication of local anomalies. [6] In such a state of things it is not surprising that men should have resorted to the Roman Law as to a system logical, coherent, and complete. [7] Later, under Spanish rule, came an era of constructive legislation but by that time the victory of the Roman Law was already assured.

Having said thus much of the Roman-Dutch Law in general, we shall proceed next to speak more particularly of its history in the Roman-Dutch Colonies, [26] for by that name we may conveniently indicate the British possessions in which this system obtains. After that we shall go on to speak of the sources from which our knowledge of the Roman-Dutch Law is derived.

It remains to speak of the geographical extension of the Roman-Dutch Law in South Africa.

  1. Treatises.
  2. Statute Law.
  3. Decisions of the Courts.
  4. Opinions of Jurists.
  5. Custom.

H. de Groot. Inleiding tot de Hollandsche Rechtsgeleertheyd ('s Gravenhage, 1631) the same with notes by Groenewegen (1644) the same with added and more extensive notes by W. Schorer (1767). [41] This is the best old edition. The best modern edition is that with historical notes by Professor Fockema Andreae. There is a translation by Sir A. F. S. Maasdorp.

Arnoldus Vinnius. [42] Commentarius in IV libros Institutionum Imperialium (1642). This well-known work contains copious references to the jus hodiernum. The best edition is that with notes by the Prussian jurist Heineccius.

S. van Groenewegen van der Made edited the Inleiding of Grotius in 1644. In 1649 he produced his well-known Tractatus de legibus abrogatis et inusitatis in Hollandia vicinisque regionibus, in which he goes through the whole of the Corpus Juris by book and title and considers how far it has been received or disused in the modern law.

Simon van Leeuwen published his Censura Forensis in 1662, and his Roomsch Hollandsch Recht in 1664. [43] The ​ last-named work was an amplification of a slighter treatise called Paratitula Juris Novissimi published in 1652 and again in 1656. The best edition of the Roomsch Hollandsch Recht is that with notes by W. Decker issued in 1780. This last-named edition has been translated with additional notes by Mr. Justice Kotzé.

Ulrik Huber issued the first volume of his Praelectiones Juris Civilis, containing his commentary on the Institutes of Justinian, in the year 1678. This was followed after a considerable interval by his commentary on the Digest in two additional volumes. The best edition is that of J. Le Plat of Louvain issued in 1766. The same author published in 1686 his treatise entitled Heedensdaegse Rechtsgeleertheyt, soo elders, als in Frieslandt gebruikelyk. The last-named work, though principally concerned with the law of Friesland, not of Holland, is a valuable contribution to the study of the Roman-Dutch Law. It was edited after the author's death by his son Zacharias Huber, who, like his father, was a Judge of the Frisian High Court.

Johannes Voet. Commentarius ad Pandectas. This work was published simultaneously at the Hague and at Leyden in 1698 and 1704 in two volumes folio. It has gone through innumerable editions. The best is the Paris edition of A. Maurice of 1829, which is free from most of the misprints which disfigure the folio editions. The whole of Voet has not been systematically translated into English, [44] but translations varying in merit are procurable of many of the separate titles. In 1793 Van der Linden published, in folio, a Supplement to Voet's Commentary. It extends only to Book xi of the Pandects. Amongst the lesser works of Voet may be mentioned his Compendium of the Pandects, which, though originally issued before the larger work, serves the purpose of an analysis of it. A little book in Dutch published in the eighteenth century under the name of De beginselen des rechts volgensJustinianus is a translation from the Latin of Voet's analysis of the Institutes (Elementa Juris), supplemented with a translation of those passages in Vinnius' Commentary in which reference is made to the modern law.

Mention has already been made of Schorer's edition of Grotius (1767) and of Decker's edition of Van Leeuwen (1780). A Dutch translation of Schorer's notes on Grotius, which contains also additional matter supplied to the translator by the author, appeared from the hand of J. E. Austen in 1784–6. This is the edition referred to in the margin of Professor Fockema Andreae's edition of Grotius.

A useful work was published by Van der Linden and other jurists in 1776 under the name of Rechtsgeleerde Observatien, dienende tot opheldering van verscheide duistere, en tot nog toe voor het grootste gedeelte onbewezene passagien uyt de Inleidinge tot de Hollandsche Rechtsgeleertheid van wylen Mr. H. de Groot.

D. G. Van der Keessel , a Professor at Leyden, issued in the year 1800 his Theses Selectae juris Hollandici et Zelandici ad supplendam Hugonis Grotii Introductionem ad Jurisprudentiam Hollandicam. The work was reprinted in 1860. There is a translation by C. A. Lorenz. The Dictata in which the author of the Theses expanded and supported them still circulate in manuscript, but have never been printed. There is a fine MS. copy in the University Library at Leyden corrected in Van der Keessel's own hand. I am told that the author's own manuscript ​ is in the Bar Library at Colombo. A typewritten copy of the Leyden MS. was presented to the Supreme Court Library at Capetown by the late Dr. C. H. van Zyl.

Joannes van der Linden is the last of the old text-writers. In 1794 he published his Verhandeling over de judicieele practijcq, which is still consulted. But his best-known work is his Introduction to Roman-Dutch Law, issued in 1806 under the name of Regtsgeleerd, Practicaal, en Koopmans Handboek. The book is very elementary, but has enjoyed great favour amongst students, particularly in Sir H. Juta's translation entitled Institutes of Holland. Another work by the same author which may be mentioned (besides his Supplement to Voet referred to above) is his Dutch translation of Pothier on Obligations with short notes from his own hand (1804–8).

If the student wishes to supplement the above-mentioned list of books with a handy law dictionary he will find Boey's Woorden-tolk easily procurable and sometimes useful. Kersteman's larger work (1768) and the supplementary volumes by Lucas Willem Kramp [45] enjoy a reputation which is scarcely merited. The collection of pleadings by Willem van Alphen known by the quaint name of Papegay (originally published in 1642) is deservedly famous. If Van der Linden's work on Procedure proves inadequate, reference may be made to Paul Merula's Manier van Procederen, the last and best edition of which, under the names of Didericus Lulius and Joannes van der Linden, was issued in the years 1781–3.

For the Law of Ceylon the student may refer to The Laws of Ceylon, by Mr. Justice Pereira (2nd ed., Colombo, 1913) to A Digest of the Civil Law of Ceylon, by Sir P. Arunachalam (vol. i, ‘Persons Natural and Juristic’, London, 1910) and to the earlier work entitled Institutes of the Laws of Ceylon, by Henry Byerley Thomson, a Puisne Judge of the Supreme Court of Ceylon, published in 1846. Sir Charles Marshall's Judgments, &c., ofthe Supreme Court of the Island of Ceylon, published at Paris in 1839, furnishes a conspectus of the Law of the Colony as it existed in the first half of the last century.

For British Guiana no text-book exists.

As examples of statutory introduction of the law of England, mention may be made of the Ceylon Ordinance No. 5 of 1852, which enacts that the law of England is to be observed in maritime matters and in respect of all contracts and questions relating to bills of exchange, promissory notes, and cheques and of the Ceylon Ordinance No. 22 of 1866, which makes similar provisions with respect to the law of partnerships, joint-stock companies, corporations, banks and banking, principals and agents, carriers by land, life and fire insurance.

In British Guiana by Ordinance No. 6 of 1864, s. 3, ‘all questions relating to the following matters, namely ships, and the property therein, and the owners thereof, and the behaviour of the master and mariners and their respective rights, duties, and liabilities as regards the carriage of passengers and goods by ships stoppage in transitu freight demurrage insurance salvage average collision between ships bills of lading and all rights, liabilities, claims, contracts, and matters arising in respect of any ship, or any such question as aforesaid, shall be adjudged, determined, construed, and enforced according to the Law of England applicable to such or the like case.’ By Ordinance No. 3 of 1909 the law of England for the time being was made the law of the Colony in relation to life and fire insurance.

​ At the Cape the General Law Amendment Act No. 8 of 1879, introduced the English law: (s. 1) in all questions relating to shipping and (s. 2) in all questions of fire, life, and marine insurance, stoppage in transitu, and bills of lading. But (s. 3) English statutes passed subsequently to the date of the Act do not apply.

Meanwhile the Commissioners append to their Report the draft of ‘An Ordinance to codify certain portions of the Roman-Dutch Law of the Colony and to substitute the English Common Law and principles of Equity for the Roman-Dutch common law’, and propose that it should come into operation by January 1, 1915. [53] The justification for a change of so uncompromising a character is found in the circumstances of the Colony.

‘While much has gone from the Roman-Dutch domain much remains. Roman-Dutch Law may be seldom quoted in the Courts and even then with little hope of the quotation seriously affecting the issue. English authorities and precedents may tend more and more to have weight with judges and lawyers to its exclusion. But it remains as an element of uncertainty. We have all the disadvantage of a mixed system without the elasticity of the Roman-Dutch jurisprudence.’

‘It increases the work of both judge and counsel. It wastes time and is a source of expense. In this country it is not a living system. We have no resident Dutch population and few even of the Dutch names survive. The colonists have no sentimental affection for any legal legacy of the Batavian Republic of 1803 or the Kingdom of the Netherlands of 1814. Our population is a small one, very mixed in race. East Indians and Portuguese make ​ up some fifty per cent. and natives of the West Indian Islands form no small proportion of the balance. Mixed as it is, it is overwhelmingly British in its attachments, traditions, and sympathies.’

How far the Statute Law of Holland obtains in the Colonies

In In re Insolvent Estate of Loudon, Discount Bank v. Dawes (1829) 1 Menz. at p. 388, the Court observed: ‘When this Colony was settled by the Dutch the general principles and rules of the law of Holland were introduced here, but by such introduction of the law of Holland it did not follow that special and local regulations should also be introduced accordingly the provisions of the Placaat of 5th February, 1665, as to the payment of the 40th penny (3 G. P. B. 1005) have never been part of the law of this Colony, because this tax has never been imposed on the inhabitants of this Colony by any law promulgated by the legislative authorities within this Colony. In like manner until a law had been passed here creating a public register the provisions of the Placaat of 1st February 1580 (? 1st April—1 G. P. B. 330), were not in force or observance here.’


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