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Remember that I’ve been interested in this for over 15 years. And it is a complicated story. Whether the Levitical Prohibition (which impeded a valid marriage, if it was applicable) was dispensable was a subject that was up in the air, in Henry’s day. The subject had been decided both ways. And I’ve often posted here on it. For example:
The question (in Henry’s causa) was whether the Pope could dispense from the Levitical Prohibition, or no. That is, was it Divine, or Church law (and, if Divine, was there a possible provision to permit dispensing). It was a question that had been argued for some time, beginning with a case heard and argued for Bernard, Count of Armaganc, before Clement VII (not the Clement of Henry’s day, the first of the Avignonese Popes), in 1392. Clement looked at, and turned down, opinions of the jurist John Andreae, and the arguments of John Dun Scotus, that only direct line marriages (consanguinity) were thus prohibited. The ruling in this case was against Bernard, who, like Henry, was looking at a case of marrying his older brother’s widow. The impediment was considered Divine, and the claim of expediency was not allowed, to dispense
The next case was before John XXIII; the Pisan Pope. Prima facie, it appeared that it also could not be dispensed. It touches on two points in the tale of Henry’s own Great Matter. First, that Hank hung his hat on the Leviticial prohibition, that is, that marrying his brother’s widow fell within the degrees prohibited in Leviticus, and was ultra vires, beyond the power of the Pope to dispense. And two, that the rules and interpretations on this and on other such matters were constantly changing.
So, in 1410. John XXIII, was visited by two English gentlemen of nobility/royalty, sons of Henry IV: Henry, Prince of Wales , and Thomas, his brother, Duke of Clarence. They had a little problem they wanted the Pope to straighten out. Thomas, D of C, was enamored of a certain lady, one Margaret Holland. Trouble was that she and Thomas had a couple of impediments in the way (as was the usual case), of consanguinity and of affinity. The impediment of consanguinity was no big deal, but that of affinity looked to be. In brief, Margaret was the widow of John Beaufort, Earl of Somerset. Who was the brother of Henry IV. That is, Thomas was seeking to marry the widow of his father’s brother. Which fell within the Church’s reading, at the time, of the degrees impeded by the Levitical Prohibition, and which was of divine provenance. John turned, as was the custom, to a legal adviser (Peter of Ancarano, who followed Andreae’s reasoning) whose consilium said that, for weighty reasons, the Pope could dispense the impediment. John did so, which was a precedent setting decision, as of 1411. So, Thomas and Margaret, aunt and nephew, became husband and wife, in 1412. In doing so, she became as far as was known) the first woman in Christendom to marry legitimately within the declared Levitical degrees, with a dispensation, the thing that Henry asserted, in his causa, was ultra vires.
But there was another issue in the case. An undispensed impediment of the justice of public honesty.
Henry’s stronger case, as Cardinal Wolsey saw, lay in a class of impediments called the justice of public honesty. Without getting into 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. That is, there was the potential for an impediment of affinity, which arose from the 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 some one 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 the marriage was not consummated, as Catherine and her duenna 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.
The issue was not whether there had been a dispensation from Julius for Henry to marry Catherine, but, rather, was it a valid one, or was it ultra vires. Was the impediment Divine or Church law? and did the Pope possess the authority of expediency to dispense some Divine impediments; if so was this one? The point had been decided both ways, historically. Implicitly, was there still an unresolved impediment of the justice of public honesty. Likely. A case that might have gone either way. What tipped it was the daunting figure of Charles V, and the irresolute figure of Clement VII. Theology and politics, working together, for an answer.
Some of that I’ve posted above, #76, to which I refer you.
Point being: there certainly was an impediment with respect to the Levitical Prohibition in Henry’s day, and the question of whether it was a diriment one, or one that a Pope could dispense, had been decided both ways. And then there was another lurking undispensed impediment, in the question of public honesty.
None of which is to say that Henry had a slam-dunk case. But he had one as good as normally was found in such cases.
The history is far more complex than even suggested here, so far. Particularly as to how the system was structured to accommodate dynastic marriages. History is often like that.
Kelly’s MATRIMONIAL TRIALS OF HENRY VIII is recommended, as is Scarisbrick’s bio, already mentioned.
The question (in Henry’s causa) was whether the Pope could dispense from the Levitical Prohibition, or no. That is, was it Divine, or Church law (and, if Divine, was there a possible provision to permit dispensing). It was a question that had been argued for some time, beginning with a case heard and argued for Bernard, Count of Armaganc, before Clement VII (not the Clement of Henry’s day, the first of the Avignonese Popes), in 1392. Clement looked at, and turned down, opinions of the jurist John Andreae, and the arguments of John Dun Scotus, that only direct line marriages (consanguinity) were thus prohibited. The ruling in this case was against Bernard, who, like Henry, was looking at a case of marrying his older brother’s widow. The impediment was considered Divine, and the claim of expediency was not allowed, to dispense
The next case was before John XXIII; the Pisan Pope. Prima facie, it appeared that it also could not be dispensed. It touches on two points in the tale of Henry’s own Great Matter. First, that Hank hung his hat on the Leviticial prohibition, that is, that marrying his brother’s widow fell within the degrees prohibited in Leviticus, and was ultra vires, beyond the power of the Pope to dispense. And two, that the rules and interpretations on this and on other such matters were constantly changing.
So, in 1410. John XXIII, was visited by two English gentlemen of nobility/royalty, sons of Henry IV: Henry, Prince of Wales , and Thomas, his brother, Duke of Clarence. They had a little problem they wanted the Pope to straighten out. Thomas, D of C, was enamored of a certain lady, one Margaret Holland. Trouble was that she and Thomas had a couple of impediments in the way (as was the usual case), of consanguinity and of affinity. The impediment of consanguinity was no big deal, but that of affinity looked to be. In brief, Margaret was the widow of John Beaufort, Earl of Somerset. Who was the brother of Henry IV. That is, Thomas was seeking to marry the widow of his father’s brother. Which fell within the Church’s reading, at the time, of the degrees impeded by the Levitical Prohibition, and which was of divine provenance. John turned, as was the custom, to a legal adviser (Peter of Ancarano, who followed Andreae’s reasoning) whose consilium said that, for weighty reasons, the Pope could dispense the impediment. John did so, which was a precedent setting decision, as of 1411. So, Thomas and Margaret, aunt and nephew, became husband and wife, in 1412. In doing so, she became as far as was known) the first woman in Christendom to marry legitimately within the declared Levitical degrees, with a dispensation, the thing that Henry asserted, in his causa, was ultra vires.
But there was another issue in the case. An undispensed impediment of the justice of public honesty.
Henry’s stronger case, as Cardinal Wolsey saw, lay in a class of impediments called the justice of public honesty. Without getting into 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. That is, there was the potential for an impediment of affinity, which arose from the 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 some one 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 the marriage was not consummated, as Catherine and her duenna 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.
The issue was not whether there had been a dispensation from Julius for Henry to marry Catherine, but, rather, was it a valid one, or was it ultra vires. Was the impediment Divine or Church law? and did the Pope possess the authority of expediency to dispense some Divine impediments; if so was this one? The point had been decided both ways, historically. Implicitly, was there still an unresolved impediment of the justice of public honesty. Likely. A case that might have gone either way. What tipped it was the daunting figure of Charles V, and the irresolute figure of Clement VII. Theology and politics, working together, for an answer.
Some of that I’ve posted above, #76, to which I refer you.
Point being: there certainly was an impediment with respect to the Levitical Prohibition in Henry’s day, and the question of whether it was a diriment one, or one that a Pope could dispense, had been decided both ways. And then there was another lurking undispensed impediment, in the question of public honesty.
None of which is to say that Henry had a slam-dunk case. But he had one as good as normally was found in such cases.
The history is far more complex than even suggested here, so far. Particularly as to how the system was structured to accommodate dynastic marriages. History is often like that.
Kelly’s MATRIMONIAL TRIALS OF HENRY VIII is recommended, as is Scarisbrick’s bio, already mentioned.
