The King's Cardinal: The Rise and Fall of Thomas Wolsey (Pimlico) (144 page)

Almost certainly Wolsey was the first fully to appreciate that a successful outcome to the king’s ‘great matter’ demanded the direct involvement of the pope. Henry in the early stages was less certain, which is why in the summer of 1527 he and Wolsey appear to have been working in different directions; but it was only the route, not the end in view that was different. Wolsey favoured the slow but sure approach; Henry was all for speed. But even Knight’s disastrous mission is evidence that the king had realized that to get rid of his queen he needed the pope’s help and however disagreeable and inconvenient the matter was to him, the pope could not wash his hands of it. Both men needed each other: Henry to prove to the world that he was indisputably in the right, Clement to show that the Church’s authority in this vital area of the canon law was being upheld. This being so, short cuts, however tempting, were to be avoided as far as possible. Not everyone took this view all the time, and on at least two occasions Clement himself appears to have suggested that Henry should present Europe with a
fait accompli
and divorce Catherine by virtue of Wolsey’s legatine authority. And considering the cost of the divorce to everyone concerned, especially to the Catholic Church and to Wolsey, would it not have made sense to do just that: divorce Catherine, marry Anne, produce a male heir, and challenge the rest of Europe to do something about it? We know nothing of the English reaction to Clement’s supposed invitation to go it alone, in December 1528.
⁶⁸
But this in itself seems significant: if it had been taken seriously, surely some evidence would have survived? Certainly, when in the previous December the pope
had first made the suggestion, the English envoys in Rome advised against accepting it, because in their view it had only been made by him and his advisers so that they ‘would not be noted of counsel in the beginning of the matter or be privy to any speciality thereof in the commencement’.
⁶⁹
And if it is correct, as Campeggio seems to have suggested, that in September 1528 Stephen Gardiner had brought back with him from Rome a draft document enabling Henry to take unilateral action, Henry’s and Wolsey’s reaction was unenthusiastic
⁷⁰
– odd, if such a move could have been the answer to their problem. They did not take Clement’s suggestions seriously because they were never meant to be taken seriously. Instead, they were the pope’s desperate efforts to put off for as long as possible having to choose between Henry and the emperor, a choice that he did not want to make but knew that he could not avoid if both stuck to their guns. There was no way in which the pope could avoid getting involved in the divorce of a queen, just as there was no satisfactory solution from the king’s point of view that did not have the pope’s seal of approval. That Wolsey made this the cornerstone of his approach is not evidence of procrastination; despite being a slow convert to the view, even Henry continued to see it in this way for long after Wolsey’s fall.

The one problem to this approach was that it did not guarantee what Henry was insisting upon – namely, success – for the good reason that the law never does permit of certainty. Moreover, Henry’s case was not especially good. There were two main grounds for maintaining that his marriage to Catherine was invalid. The first was to argue that the impediment to it had been imposed directly by God and therefore it could not under any circumstances be dispensed with by the Church. Thus the dispensations granted by Julius
II
before it took place had no authority, Henry and Catherine had never been married in the eyes of God, and therefore both were free to marry to marry whom they liked. The evidence for God’s prohibition was derived from Leviticus, the source for all the Church’s regulations of the marital state, and in particular from two verses: ‘Thou shalt not uncover the nakedness of thy brother’s wife: it is thy brother’s nakedness’, was a view confirmed by the later statement that ‘if a man shall take his brother’s wife, it is an impurity: he hath uncovered his brother’s nakedness; they shall be childless’. Apart from the objection that Henry’s marriage had not been childless, a more serious difficulty was the text in Deuteronomy which stated that ‘when brethren dwell together, the wife of the deceased shall not marry to another; but his brother shall take her, and raise up seed for his brother’. The way round this was to argue that it was a specifically Jewish custom with only local application, which since the coming of Christ had no validity for the rest of the Christian world. Both texts had their protagonists, who over the years had defended their point of view with great skill and learning, and there was no telling which view a particular court would take.

On what came to be the main issue, the status of the Levitical prohibitions and whether or not the pope could dispense with them in special circumstances, there
had over the years been a significant change, and it was not one helpful to Henry.
⁷¹
Although for some time after the Fourth Lateran Council in 1215 these prohibitions had usually been taken in the way that Henry favoured, that is, being of divine origin, they could not be dispensed with, the writings of John Andreae, a professor of canon law at Bologna who had died in 1348, had encouraged a tendency to give increasing scope to the pope’s dispensing powers in this area, as in many others. In 1411 John
XIII
had issued a dispensation to the duke of Clarence, a younger son of Henry
IV
, enabling him to marry within the second degree of affinity, which had previously been considered indispensable. Martin v followed his precedent in giving permission for Count John
I
of Foix to marry his deceased wife’s sister, but Martin’s successor Eugenius
IV
refused to allow the future Louis
XI
of France to marry one of his deceased wife’s sisters; and the reason given was precisely that the Levitical prohibitions because ordained by God could not be dispensed with, even by the pope. And when in 1485 Richard
III
had been anxious to marry Elizabeth, the daughter of his brother, Edward
IV
, he had been strongly advised against it on similar grounds. Then, in the space of eight years three requests for dispensations within the Levitical degrees were granted, the last by Julius
II
to enable Henry to marry Catherine.

The position in the late 1520s was this. Henry could appeal to a canonical tradition which for much of the Middle Ages had been the dominant one, but the most recent precedents went against him. Moreover, even that older tradition had tended to admit an exception, the one laid down in the verse from Deuteronomy already quoted, which specifically commanded a younger brother to marry the wife of a deceased elder brother when that first marriage had been childless. As has been mentioned, Deuteronomy could be attacked, but nevertheless it did not help Henry that the most usual exception to the canon law prohibition against marriage to a widowed sister-in-law was the one that so closely fitted his own situation. It was, therefore, not the case, however attractive the notion was to Henry, that God was on his side, that a reliance on Leviticus provided the degree of certainty that he wished for. Moreover, there were two serious additional problems, the one factual, the other tactical. To take the former first: in canon law affinity was said to result from the consummation of a marriage, not from any contractual arrangement. Therefore, for God to be on Henry’s side Catherine must not only have married his brother Arthur, which was indisputable, but she must also have had sexual intercourse with him, which was not. Indeed, Catherine was always to deny it, and the fact that she did so on oath, even on occasions when it was not in her interests to do so, strongly suggests that she was telling the truth. Her difficulty was to prove it, but it would be equally difficult for Henry to disprove and if he failed, his case collapsed.

That was one additional difficulty. The tactical one was this: since the point of going to the pope was to get his approval, it was counterproductive to argue that in this matter the pope had no authority. Moreover, by and large popes were reluctant to admit that they lacked authority in any sphere, and so if Clement’s support was what was wanted, again it would not do to push the Levitical argument too strongly. This brings us to the second grounds for maintaining that Henry’s marriage to
Catherine was invalid, which was to argue that the original dispensation granted by Julius
II
was seriously defective. The great advantage of this approach was, first, that it would obviate the need to get too immersed in the uncertain seas of the canon law. More importantly, it avoided a direct challenge to papal authority and was therefore much more likely to be successful. Its great weakness, though, was that, in admitting the pope’s competence to dispense, it made it difficult to reject the solution that Clement would have been all too happy to provide, which was to admit the original defects but to offer to remedy them. In an important statement of his position set out in a letter to Henry of 7 October 1529, Clement made precisely such an offer: he was willing to grant new dispensations to clear up any uncertainty.
⁷²
He also put the point most forcibly that in cases where different views could be advanced about the validity of a marriage, the onus of proof lay very much with those who challenged its validity. And in stating the legal position Clement was also exposing Henry’s hypocrisy. A marriage which had been assumed to be good for nearly twenty years should, according to Clement, continue to be thought good unless very compelling reasons were found to the contrary. Everything possible should be done to rectify any technical difficulties that had come to light and to assuage any resulting crisis of conscience. But, of course, Henry had no real concern about his conscience, and the last thing he wanted was to have the validity of his marriage confirmed.

These two strategies, the reliance on Leviticus and a concentration on the defects in the original dispensation, need not be, nor were they, considered mutually exclusive. It is vitally important to bear in mind that Henry and Wolsey were engaged in negotiations which only in the end needed to be translated into a legal decision. In negotiations, any bargaining counter is worth playing. By all means threaten the pope with all manner of dire outcomes; maintain that he had no competence, or then again, if his views are favourable, declare that he has. It was all a question of tactics, and for this reason it is a mistake to try to attribute a particular approach to a particular person. It has been usual to identify Henry with the strategy that relied upon Leviticus, and it has recently been shown that in the submission that he made to the second legatine trial the divine nature of the Levitical prohibition was very much to the fore. The conclusion drawn is that this was because Henry really believed in Leviticus, while others, such as Wolsey, did not.
⁷³
In fact, there were obvious advantages in ascribing the Levitical argument to the king. His dubious enterprise needed to be cloaked in the greatest amount of principle possible to have any chance of carrying conviction and, anyway, it was fitting for kings to concern themselves with such lofty matters; the technicalities could be left to the clerks. It was also tactically convenient to keep the Levitical argument, essentially a threat with which to force Clement into an agreement about the technicalities, away from the day-to-day negotiations, only to be brought out on the big occasions or when the going got rough; and for such a purpose the king was an ideal repository. None of this can be proved because we have no clear insight
into Henry’s mind, but if we believe that it was his passion for Anne which fuelled the divorce and if we consider the multiplicity of arguments put forward during the search for it, then the argument advanced here seems the best way of explaining the available evidence. That being so, it may seem perverse to try to ascribe a particular version of the second strategy, that which concentrated on the technical defects, to Wolsey, but the evidence points in that direction.

Virtually nothing is known about the first legatine trial in May 1527, but the fact that it was so soon abandoned suggests that Wolsey quickly realized that what Henry had asked for would prove very difficult to achieve and could only be done with the pope’s personal intervention. The particular worry that must have pointed Wolsey towards this conclusion was the difficulty of proving that Catherine’s marriage to Arthur had been consummated. How this affected Henry’s case has already been mentioned. The point being stressed here is that it was Wolsey who first spotted the problem and, incidentally, got few thanks from Henry for doing so.
⁷⁴
Indeed, it appears to have been Wolsey’s raising the matter that encouraged him in the summer of 1527 to ignore his minister’s advice and look for a quick solution. As it was, the issue was to dominate the second legatine trial in a disastrous way for Henry, as will shortly be shown. Neither can it have been the only difficulty that Wolsey foresaw. Soon after raising it with Henry, he conducted the famous interview with Fisher in which the bishop made it abundantly clear that he saw no grounds for believing that Henry’s marriage was invalid or at least none that could not be easily remedied by the pope.
⁷⁵
This news must have been very depressing for Wolsey, however brave a face he might put on it, because since Fisher was by far and away England’s leading theologian, his view that there were no grounds for a divorce suggested strongly that there were none, or none sufficient to produce the cast-iron case that his master so desperately required. Probably it was this realization that convinced Wolsey that a decretal commission from the pope offered the best solution to the king’s ‘great matter’.