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Previously to the accession of Charles V., it can not be said that an inquisition had ever been established in the provinces. Isolated instances to the contrary, adduced by the canonists who gave their advice to Margaret of Parma, rather proved the absence than the existence of the system.
Certain German writers have, for instance, maintained that, alongside of the canonist doctrine with regard to trade, there existed in mediæval Europe a commercial law, recognised in the secular courts, and altogether opposed to the peculiar doctrines of the canonists.
Reform upon a reasonable basis has been made difficult by the unfortunate retention of the idea of delinquency. With the traditions of the Canonists at the back of our heads we have somehow persuaded ourselves that there cannot be a divorce unless there is a delinquent, a real serious delinquent who, if he had his deserts, would be imprisoned and consigned to infamy.
They are visible in the dogmas of the canonists. They are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. Grotius and his successors invested them not less with brilliancy and plausibility than with practical importance.
They refuted this by saying that this defence was admissible only for earlier and better times, but not for "the qadhis of our time." To which he cuttingly replied "And ye, are ye canonists of the better, the ancient time?" In truth, the students of sacred science are just as much "of our time" as the qadhis. Even in the eleventh century the great theologian Ghazali counted them all equal.
Previously to the accession of Charles V., it can not be said that an inquisition had ever been established in the provinces. Isolated instances to the contrary, adduced by the canonists who gave their advice to Margaret of Parma, rather proved the absence than the existence of the system.
So, too, of those quarto civilians and canonists of Leyden and Amsterdam, with their smooth white vellum coats, bearing so generic a resemblance to Dutch cheeses, that they might be supposed to represent the experiments of some Gouda dairyman on the quadrature of the circle. An easy life and an established position in society are the secret of their excellent preservation and condition.
The Canonists regarded the disabilities attaching to bastardy as a punishment inflicted on the offending parents, and considered, therefore, that no burden should fall on the children when there had been a ceremony in good faith on the part of one at least of the parents. In this respect the English law is less reasonable and humane.
Canonists and theologians accepted without hesitation the justification of trade formulated by Aquinas. Henri de Gand, Duns Scotus, and François de Mayronis unhesitatingly accepted the view of Aquinas, and incorporated it in their works.
When the Canonists superseded the old conception of marriage as a contract of purchase by their sacramental marriage, they were in many respects effecting a real progress, and the return to the idea of a contract, as soon as its temporary value as a protest has ceased, proves altogether out of harmony with any advanced stage of civilization.
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