by Gwyn, Peter
That Henry’s credibility with the pope had been destroyed at the outset was quite clear to Wolsey. In a letter dated 5 December 1527 to Gregory Casale, the permanent English representative at the Curia, he tried his best to rebuild it. Casale was told:
how the king, partly by his assiduous study and learning, and partly by conference with theologians, has found his conscience somewhat burdened with his present marriage, and out of regard to the quiet of his soul, and next to the security of his succession and the great mischiefs likely to arise, he considers it would be offensive to God and man if he were to persist in it, and with great remorse of conscience has now for a long time felt that he is living under the offence of the Almighty, whom in all his efforts and actions he always sets before him.63
Casale was to make all this known to the pope, and in every way to try and further the king’s ‘great matter’ with him. What Wolsey did not tell him was that the notion of a conscience-stricken Henry had already been exploded by Knight, but at least it could be made clear to Clement, lest by chance he had got a different impression, that Anne was not a harlot. Rather, ‘the approved, excellent, virtuous qualities of the said gentlewoman, the purity of her life, her constant virginity, her maidenly and womanly pudicity, her soberness, chasteness, meekness, humility, wisdom, and laudable qualities and manners, apparent aptness to the procreation of children, with her other infinite good qualities’ justified Wolsey believed – or said he did – the request that Henry was making.64 One may squirm at the hypocrisy, but at the same time admire the way in which Wolsey set about trying to restore the right tone to the proceedings after it had been so foolishly sullied by Henry’s half-cocked effort to obtain a speedy resolution to what could only ever have been half of his problem.
Wolsey was upset by Knight’s secret mission not because he suddenly perceived the threat to his position that Anne posed, but because it seriously impaired the chances of the king’s eventual success. But in stating that Wolsey was determined the intention is not to deny those doubts about the wisdom of the king’s wishes that have already been raised. Two pieces of evidence support the notion of an unhappy Wolsey. Cavendish states that when Wolsey first heard of Henry’s intentions he went down on bended knee in an effort to persuade him to change his mind.65 Wolsey in such a posture is not always evidence of sincerely held belief. Moreover, given that Cavendish likened the destructive power of ‘this pernicious and inordinate carnal love’ of Henry for Anne to the plague,66 he could hardly have portrayed his hero supporting it. But if there is room for scepticism, it seems likely that, if Wolsey did have doubts, he would have expressed them before the matter became public and before unalterable positions had been taken up and to that extent Cavendish’s account rings true. More convincing is Campeggio’s assessment, made not years afterwards as Cavendish’s was, but as events were still unfolding. On 9 January he wrote:
As far as I can make out the cardinal is actually not in favour of the affair, but your lordship can be sure that he would not dare to admit this openly, nor can he help to prevent it; on the contrary he has to hide his feelings and pretend to be eagerly pursuing what the king desires. I talk freely with the cardinal, since I know his opinion is as I have described it. In the end he shrugs his shoulders, and says there is nothing he can say except that the only course open is somehow to satisfy the king whatever the consequences, since in time some remedy will be found.67
Campeggio may have been clutching at straws; it would, after all, have been comforting for him to believe that secretly his fellow legate was on his side, despite his occasional bullying. For his part, Wolsey was quite astute enough to present a sympathetic face or hint that he believed something that he did not, if he thought that he could thereby get what he wanted. Nevertheless, there is something about Campeggio’s assessment that is convincing. Wolsey was not the author of the king’s ‘great matter’, and probably he always had reservations about its wisdom and may just possibly have had worries about how it would affect his own position. But if at the outset he had dared, as Cavendish maintained, to persuade the king to change his mind, he had thereafter kept his doubts to himself and done everything possible to bring about what Henry wanted. Campeggio understood that Wolsey had no choice. If his position depended upon his personal relationship with Henry, it needed to be reinforced by frequent proof that he was still the best man to put into effect the royal wishes. The more Henry wanted something, the more necessary it was for Wolsey to provide it, for if he did not, there were plenty of others who would. But it was not just a matter of self-interest; one does not serve a person or institution, and Henry was both, for over fifteen years without developing strong attachments, and no doubt the magic of kingship would also have cast its spell. Carrying out the king’s wishes was what in every sense Wolsey was programmed to do, and if one studies the letters and instructions that were drawn up by him in the pursuit of the divorce, very rarely less than five thousand words, and occasionally twice that length, and if one considers the ingenuity with which he grappled with the legal problems involved and the complexity of the diplomatic initiatives that he undertook, there can be no reason to doubt that, whatever his reservations, he did everything in his power to free Henry from his unwelcome marriage. All that remains to be considered is how skilfully he went about it, and we shall approach this on two fronts. The first to be considered will be the legal issues, which, though ultimately less important than the second – his negotiations with the pope and other European rulers – are every bit as complicated.
The most important point to make, and one which touches on both aspects, is that getting rid of a queen, especially the mother of the (albeit female) heir to the throne, was a serious undertaking with all kinds of political consequences. To take one minor point: under the terms of the Treaty of Amiens, Mary was to marry the duke of Orleans, Francis’s younger son; but what would become of this marriage if Mary, instead of being heir to the throne, became merely an illegitimate daughter? The more serious point concerned the English succession itself and the rival claims to the throne that a second marriage could create. To try and prevent such rivalry it was vitally important to achieve the divorce in the most legally binding way possible. There was also the question of decorum. One could not just dump a queen: not only because she might be, as Catherine was, popular and therefore a potential focus of opposition, but because as queen she shared in the divinity of kingship – a dangerous thing to tamper with. Moreover, there were standards of behaviour which Henry, not only as king but as a chivalrous knight and Renaissance gentleman, would be expected and would want, if at all possible, to conform to. Rigging an ecclesiastical trial and rushing into marriage with the sister of a former mistress could hardly be said to be doing that. Technically, it is true, a court sitting under Wolsey as cardinal legate would have had a legal status of sorts, and would have given Henry’s actions a veneer of respectability. However, it would not have created a good impression that one of the parties had no knowledge of the trial, and the more arbitrary and precipitate the efforts to get rid of Catherine were, the thinner that veneer became.
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 unenthusiastic70 – 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 tho
ught 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.
