[1120] Pollock and Maitland, op. cit., II, 383 ff.
[1121] Esmein, op. cit., I, 87, 90, 335 ff., discusses the causes which produced this irrational and intricate system.
[1122] Kemble, Saxons, II, 406-8; Lingard, Hist. Anglo-Saxon Church (2d ed.), II, 5 ff. Gregory advises Augustine to relax the rules of the church in England so as to allow marriage beyond the second degree: Haddan and Stubbs, Councils, III, 20, 21. Cf. also Esmein, op. cit., I, 344 ff.; Eichborn, Ehehinderniss, 11 ff.
[1123] Meyrick, "Marriage," in Dict. Christ. Ant., II, 1092-1103. See also his article "Prohibited Degrees," ibid., 1725-30; and Esmein, op. cit., I, 205 ff.
[1124] Thus, according to the Roman law, brother and sister are in the second degree; but by the canon law they are in the first degree. Second cousins by the canonists are regarded as in the third degree; by the Romans, as in the sixth (if they are equally distant from the common ancestor): Meyrick, op. cit., II, 1725; Pollock and Maitland, op. cit., II, 383-85; Esmein, op. cit., I, 351 ff.; Freisen, Geschichte des can. Eherechts, 371-439. For the eastern church see Zhishman, Das Eherecht der orient. Kirche, 213-373.
[1125] Pollock and Maitland, op. cit., II, 385; Esmein, op. cit., I, 75 ff., 203-5.
[1126] Pollock and Maitland, op. cit., II, 385.
[1127] Much trouble grew out of the theory of spiritual affinity. Thus "in 1462, John Howthon, of Tonbridge, was sentenced by the Consistory Court of Rochester to be whipt three times round both market and church for having married Dionysia Thomas, for whom his former wife had been godmother. The like spiritual relation occasioned (Jan. 7, 1465) a dissolution of the marriage between John Trevennock and Joan Peckham; Letitia, the former wife of the said John having been godmother to a child of the said Joan." On December 29, 1472, William Lovelasse, of Kingsdown, was cited to appear "on a charge of having married his spiritual sister, viz., a woman whom his mother had held at her confirmation."—Burn, Parish Registers, 3, 4, notes, citing Thorpe, Customale. The case of Henry VIII. and Catherine, wife of his elder brother Arthur, and the anecdote of Andowera and Fredegonda, wife of King Chilperic of Neustria (Thierry, Narratives of the Merovingian Era, London, n. d., 20), are in point. On the evils of the complex system see Thwing, The Family, 83; Law Review (English), I, 353 ff.; Woolsey, Divorce, 120 ff.; and especially Huth, Marriage of Near Kin, 113 ff.
[1128] Esmein, op. cit., I, 203-402, gives an elaborate historical account of matrimonial impediments.
[1129] The relation of the two jurisdictions is carefully examined by Friedberg, Eheschliessung, 47-57, with citation of the principal cases; also in a very clear and interesting way by Pollock and Maitland, op. cit., II, 370 ff., to whom I am particularly indebted. Cf. Geary, Marriage and Family Relations, 1-6.