I take as my text the phrase “a distinct smell of a legalistic sort of perspective“. It has a nice ring, and the additional advantage of being precisely, exactly, what the system of decrees of nullity, impediments and dispensations, evolved by the Church to manage marriage, was, in the days of which we speak. I’ll expound a little. After which, if necessary, I’ll expand. Followed, if required, by huffing, puffing and bluffing. And though this is the Classic Illustrated version, I might run over the 4k limit. So I’ll leave stuff lots of out. If any one notices, ask. Or if more info on any point I mention is wanted, likewise. There is stuff behind most of these points.
By the 16th century, the Church system for managing the sacrament of marriage was incredibly complex. It was designed to do two things: protect the sacrament, and simultaneously permit the making and unmaking of dynastic marriages, for political reasons. At Henry’s level, arranged marriages were basically between nation and nation, interest and interest, region and region, not two individuals. And marriages so arranged for reasons of state must be able to be re-arranged, as reasons of state required. And so it was ordered. To do this, a system of courts, running up to the Rota in Rome existed. And marriages were made and unmade, routinely and constantly, decrees issued, impediments dispensed, under this system. Plenty examples available, in and around Henry, if required.
The evolved system focused on a complicated series of impediments, legal conditions that would prevent a marriage, that might generally be divided into two classes. One focused on “intent” (with respect to the four classic requirements for a sacrament). This affected mostly the ordinary folk, and was concerned with such things as fraud, force or incompetence in a marriage; the intent must be informed and voluntary (loosely interpreted).
The other class of impediments focused on the “matter” of the sacrament; whether the individuals could validly marry, considering the system of wide spread impediments, that fell into three general categories: consanguinity, affinity, and a even more complex one called the justice of public honesty. And since this is where it gets tricky, I’ll leave out the details. Raise your hand for more. For now, just note that a contemporary Scottish bishop observed that, given the widespread web of impediments, it was unlikely any two persons of quality could marry totally assured there was no lurking impediment anywhere. Which was exactly the point. And, Trent began to reform it, as it did other stuff.
Using the system, Henry sought to do what was commonplace at the time, at his social level. He sought a decree of nullity with respect to his marriage to Catherine, in order to make a marriage that would provide him with a legitimate male heir (a thing that had been worrying him for years) and also permit him to scratch an itch that he had recently acquired, re: La Boleyn. Seemed reasonable to him.
And, with respect to the system as it was worked in his day, it was not only reasonable, it was unexceptional. It happened daily. To make it happen, Henry had to submit his case to the system, and wait for a decree of nullity, which he was fully justified in expecting to be forthcoming. His case was based on the concept of an impediment to his marriage to Catherine, arising from the prohibition in Leviticus against a man marrying his brother’s wife; a form of impediment of affinity (of which there were many kinds and degrees. Because of this impediment, Julius II had issued a dispensation (the other side of a decree of nullity, removing an impediment) permitting Henry to marry Catherine in the first place. Henry’s case maintained that the prohibition was Scriptural, God’s law, not positive Church law, and thus was beyond a Pope’s power to dispense. There are impediments like that; no one can dispense to permit a son to marry his mother for example (an absolute impediment of consanguinity in the first degree, direct, not to get technical). This meant that he was saying that Julius had made an error and the dispensation exceeded Papal authority ( was ultra vires). Church rulings on whether the Levitical prohibition was natural or Divine law had varied over the years.
While a reasonable case, it was not an exceptionally strong one (there exists a text in Deuteronomy that mitigates against it), though normally, it wouldn’t need to be. And Clement was not an exceptionally strong Pope. And for historical reasons that I pass over, the ruling was against Henry (hint: Charles V). But there was actually a stronger case lurking in Henry’s history (not that either case would have gotten him the decree of nullity; politics and military power trump canonical law). His stronger case, as Cardinal Wolsey saw, lay in the class of impediments called the justice of public honesty. Without getting into too many technical details, this meant that if a marriage was contracted and consummated between A and B, two actual types of impediments might arise for person C later wishing to marry A or B. There was the potential for an impediment of affinity, which arose from the consummation of the marriage, or of the justice of public honesty, which arose from the betrothal/marriage contract.
At the time, the rule was that if a valid marriage was contracted, and consummated, and later a dispensation was sought for someone who would have an impediment to marrying A or B, the dispensation need only specifically state that the affinity impediment was dispensed, and the impediment of public honesty was thereby dispensed, implicitly. But, if Catherine and Arthur’s marriage was *not *consummated, as Catherine and others maintained all along, and as was likely true, then the justice of public honesty must be explicitly dispensed. Julius didn’t do that. And hence there was a good case for Henry. Precisely the sort of crack the system was designed to allow.
He didn’t pursue that, and it didn’t really matter. Given the relationship between Clement and Charles, and Charles and Catherine, no way was Henry going to get a decree of nullity. An Emperor trumps a King. And an emperor controlling a Pope is stronger still. So Henry didn’t get his decree. He got a Church, instead. He was run over by a political decision (which was part of the system) and replied with a political reaction.
This is the quick version, and note that it matters not a whit how hefty Henry was (and at the time, he was still fairly svelte, jousting and all) or how fragile the Tudor genes were. The system, arranged to permit just what he sought, smacked him in the face. He responded.
Yes, I know more about it. And if you want to, too (aside from talking to me), I suggest J. J. Scarisbrick’s HENRY VIII, the current standard bio. It’s not pro-Henry, it’s pro- history. Which is good, keeps down the waving of cardboard cutouts. And, for mind numbing detail, H. Kelly’s THE MATRIMONIAL TRIALS OF HENRY VIII. He doesn’t always agree with Scarisbrick.
And yes, I’ve C&P myself here. Saves time.
GKC
A king that can not rule his own passions can certainly not rule another’s - certainly not justly nor competently.