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Leviticus, Deuteronomy and Henry VIII

  • J. F. HADWIN (a1)

Abstract

This paper re-examines three of the major arguments on the validity of Henry VIII's first marriage, suggesting that, though the king misplayed his cards, he held a much better hand than his contemporary or modern critics have allowed. With a better presentation of his cause, an unbiased court might well have concluded that, on canonical principles and precedents, the union with Katherine should not have been permitted.Unfortunately for Henry, however, even such a favourable verdict could have failed to free him from his Spanish consort.

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I should like to record my thanks to Graham Kew, Andrew Foster, David d'Avray, George Bernard, Caroline Rowland and the late Cliff Davies for their advice and the fruitful discussions which have considerably helped me to clarify my understanding of this subject, and also to the anonymous readers for their valuable suggestions.

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1 Scarisbrick, J. J., Henry VIII, New Haven–London 1997, 197.

2 See Elton, G. R., Reform and reformation, London 1977, 107; Parmiter, G. de C., The king’s great matter, London 1967, 101; Smith, A. G. R, The emergence of a nation state, London 1984, 19; Kelly, H. A., The matrimonial trials of Henry VIII, Eugene, Or 2004, 140; and Fletcher, Catherine, The divorce of Henry VIII: the untold story, London 2013, 138.

3 Bedouelle, Guy and Gal, Patrick Le (eds), Le «Divorce» du roi Henry VIII: études et documents, Geneva 1987; The divorce tracts of Henry VIII, ed. Surtz, E. and Murphy, V., Angers 1988. The latter reprints, and superbly edits, the lengthy treatises in Latin and English of 1530–1, Gravissimae censurae and The determinations of the universities.

4 d'Avray, D. L., Papacy, monarchy and marriage, 860–1600, Cambridge 2015, 174.

5 Scarisbrick, Henry VIII, 163–97. The questions asked were neatly summarised by the university of Angers: ‘whether it is unlawful by the law of God, and the law of nature, for a man to marry the wife that is left of his brother, and that departed without children, but so that the marriage was consummate. And again whether it is lawful for the pope for dispense in such marriage’: Divorce tracts, 10–11.

6 Leviticus viii.16; xx.21.

7 Campeggio reported Katherine's claim at her confession that she ‘restò intacta et incorrupta, come venne dal ventre di sua madre’ (‘remained as whole and uncorrupted as she had come from her mother's womb’): Romische Dokumente zur Geschichte des Ehescheidung Heinrichs viii von England, ed. Stefan Ehses, Paderborn 1895, no. 31; cf. d'Avray, D. L., Dissolving royal marriage: a documentary history, 860–1600, Cambridge 2014, 231.

8 Deuteronomy xxv.5–6. This practice was known as the levirate. The Vulgate's ‘liberis’ (children) is not here a satisfactory translation of the somewhat ambiguous Hebrew which, as the context implies, might be better rendered by ‘sons’, as in the New Revised Standard Version (1989) and the English Standard Version (2001).

9 For example the cases noted by Scarisbrick, Henry VIII, 177–80; cf. Hughes, Philip, The Reformation in England, London 1950, i. 170 n. 3. For the bull's text see Burnet, Gilbert, History of the Reformation: a collection of documents, ed. Pocock, N., Oxford 1865, ii, no. i; cf. d'Avray, Dissolving royal marriages, 232–5.

10 This contention pervades Henry's published statements of his case and is most fully expressed in Divorce tracts, particularly in chs v, vi. Natural law was generally taken to derive from the nature of things and to be of universal application; divine law was the ‘positive’ law of God, essentially binding on the faithful. Cf. Joyce, G. H., Christian marriage, London 1933, 523.

11 Henricus Octavus: ‘a moderate statement of the King's case, which rested principally on the prohibition of the law of God as expressed in Leviticus and not on a double prohibition of the law of nature as well as of divine law’: Virginia Murphy: ‘The debate over Henry viii’s first divorce: an analysis of the contemporary treatises’, unpubl. PhD diss. Cambridge 1984, 78, cf. 149–50; cf. LP iv/2, no. 3140 (TNA, SP 2/C vol. i); LP iv/3, no. 5377 (BL, ms Cotton Vitellius B. xi. fo. 117). By October 1530 Henry was insisting to his emissaries in Rome that ‘our marriage is prohibited both by Divine and by Natural law, which two laws … you must in no means allow to be disjointed’: LP iii/3, no. 6667 (SP 1/58, fos 120–5).

12 Divorce tracts, pp. xvii, xx. On Wakefield see ODNB.

13 Thomas Aquinas, Summa theologica: English translation by the Dominican Fathers, New York 1911, < http://www.newadvent.org>; Latin (Leonine edition), Rome 1888–1906, <http://www.corpusthomisticum.org>, supplement q. 54, 3. The distinction between primary and secondary precepts of natural law was ignored both by Henry and by most of his critics.

14 Joyce, Christian marriage, 526.

15 Divorce tracts, 194–5. Most of the universities that had been induced to support the royal case agreed on this point but it received little support elsewhere.

16 Joyce, Christian marriage, 430–6, 449–56.

17 d'Avray, D. L., Medieval marriage: symbol and society, Oxford 2005, 168–99; Papacy, monarchy and marriage, 122–30, 324–7; and Dissolving royal marriages, 190–219, 285–7.

18 LP iv/2, no. 3140 (SP 2/C vol. 1).

19 LP iv/2, no. 3217 (SP1/42 fos 151–2); Scarisbrick, Henry VIII, 183–97, 286–7. The argument was that an unconsummated prior marriage required a dispensation from the lesser impediment of ‘public honesty’, which was not what Julius had granted. Nevertheless, Clement vii commented that the 1503 dispensation would still be valid, even if Katherine had been a virgin, a view with which Scarisbrick now concurs: Romische Dokumente, no. 71; Scarisbrick, Henry VIII, pp. x–xi.

20 Bernard, G. W., The King's reformation: Henry VIII and the remaking of the English Church, New Haven–London 2005, 24. This is true of many of Henry's other criticisms of the 1503 bull, but the procedures for the convalidation of a marriage by a retroactive bull would require the renewed consent of the parties. A refusal by Henry would have exposed the insincerity of his pleas that he would ideally desire his marriage to be validated: Kelly, Matrimonial trials, 81, 84, 139–41.

21 Divorce tracts, 122–9, 160–7, 342–5; CSPS iv/2, no. 786 (LP v, no. 401). This contention was contradicted by cases such as those of Henry iv of Castile and Louis xii of France, while several of the universities supporting Henry had indicated that the ban applied only if the previous marriage had been consummated.

22 Records of the Reformation: the divorce, 1527–1533, ed. Pocock, Nicholas, Oxford 1870, ii, no. cccxx at pp. 413–17.

23 CJC ii. X, iv.15 passim. A useful guide through canonical procedures is provided by Brundage, J. A. in his Medieval canon law, London–New York 1995, 120–53.

24 Thieme, Hans, Die Ehescheidung Heinrichs VIII und die europäischen Universitäten, Karlsruhe 1957, 13.

25 Tremlett, Giles, Catherine of Aragon: Henry's Spanish queen, London 2010, 315–16, 336–8; LP iv/3, no. 5774 (BL, ms Cotton Vitellius B, xii, fos 70, 80, 85, 98).

26 Reformation records, ii, no. cccxx at p. 416; Helmholz, R. H., The Oxford history of the laws of England, I: The canon law, Oxford, 2004, 547–8.

27 Helmholz, Oxford history i, ch. v, esp. pp. 311, 330–2 on presumption; LP iv/3, no. 6481.1 (SP 1/57 fo. 198); Reformation records, ii, no. cccxx at p. 413. The Codices iuris canonici of 1917 and 1983 confirmed this principle: canon 1015, para 2 (1917), <http://www.scribd.com>; canon 1061, para 2 (1983), <http://www.intratext.com>.

28 Mendoza: CSPS iii/2, no. 570; cf. Kelly, Matrimonial trials, 60; Chapuys: CSPS iv/2, no. 641 (LP v, no. 112); CSPS iv/2, no. 765 (LP v, no. 340); Campeggio: CSPS v/1, no. 29 (LP vii, no. 370; BL, ms Add. 28,586, fo.191).

29 CSPS iv/2, no. 739 (LP v, no. 287). Nicholas Harpsfield accepted the force of these arguments but made an eloquent case for preferring the queen's word: A treatise on the pretended divorce between Henry VIII and Catharine of Aragon, ed. Pocock, Nicholas (Camden Society, n.s. xxi), London 1878, 212–21.

30 CJC ii. X, iv, 1.30, 32; cf. Louis xii’s account of failing to consummate his first marriage: d'Avray, Dissolving royal marriages, 215.

31 Summa theologica, supplement q. 55, 8, ad 2. The claim that the levirate had been abolished by the Gospel was made by most of Henry's supporters in this debate, as by the University of Toulouse: Divorce tracts, 26–7.

32 Not all their responses have survived, nor have details of all their debates, but the printed texts and summaries support this conclusion: Bedouelle and Le Gal, <<Divorce>> du roi Henry VIII, pt ii; cf. the arguments of Francisco de Vitoria quoted in E. Michelin, ‘Francisco de Vitoria’, at pp. 265–87.

33 On Fisher see Richard Rex's invaluable work, The theology of John Fisher, Cambridge 1991. Among major figures taking this line were Cajetan (in his work of 1530), Cochlaeus, Bernardus de Sanctis and Bartolomeo de Spina. Echoing these views, Katherine's chaplain, Thomas Abel, trenchantly exposed in Invicta veritas (Luneburg 1534) many of the errors and exaggerations in the Censurae: G. B. Skelly, ‘Cardinal Cajetan’; N. Guerin, ‘Johannes Cochlaeus’; A. F. von Gunten, ‘Barthélemy de Spina’; ‘Thomas Abell’; and ‘Bernardus Raetinus Sanctius’, all in [Guy Bedouelle and Patrick Le Gal], ‘Repértoire bio-bibliographique’, in Bedouelle and Le Gal, <<Divorce>> du roi Henry VIII, 204–28, 229–42, 243–63, 309–10, 416–17.

34 ‘Quaestiones in Heptateceuchum’, PL xxxiv. 547ff, <http://documentacatholicaomnia.eu>. This solution raises the question of whether other Levitical prohibitions could also be read as containing hidden assumptions about the husband's death. Fisher's neat and commonsensical answer was to insist that ‘all affinity endeth with death’: Murphy, ‘The debate over Henry viii’s first divorce’, 237; cf. Harpsfield, Pretended divorce, 98–100 (pp. 28–120 are based on Fisher's Brevis apologia). But this idea was a swallow that made no summer: the Church adhered to the principle of equating the prohibited degrees of affinity with the corresponding degrees of consanguinity: Aquinas, Summa theologica, supplement, q. 55 a. 2.

35 Cajetan, the most eminent of these critics, begged Henry to reconsider his position: BL, ms Cotton Vitellius B, xiv, fo. 121 (briefly but misleadingly summarised in LP vii, no. 110).

36 Scarisbrick writes that Henry's ‘case had fitted Deuteronomy exactly’: Henry VIII, 178. Identical sentiments (complete with the adverb) are expressed by Surtz and Murphy, Divorce tracts, p. ii and by Rex, Richard, The Tudors, Stroud 2002, 49; cf. Kelly: Matrimonial trials, 15. Patrick Le Gal refers to ‘la situation de Henry viii qui correspondait en tous points au cas prévu par le Deuteronomie’: ‘Le Cas canonique et le problème éxégetique’, in Bedouelle and Le Gal, <<Divorce>> du roi Henry VIII, 39.

37 Divorce tracts, 48–9, 148–9, 254–5; Reformation records, ii, no. cccxx at pp. 393–4.

38 Skelly, ‘Cajetan’, 211–13.

39 ‘Quando habitaverint fratres simul’ (‘When brothers have lived together at the same time’). Though the Jews were to extend the practice beyond actual cohabitation the Vulgate text, like the Septuagint, seems faithful to the Hebrew.

40 Starkey, David, Henry: virtuous prince, London 2009, 66.

41 Rad, Gerhard von, Deuteronomy: a commentary, trans. Barton, Dorothea, London 1966, 154.

42 The crucial legal problem arising is that of the validity of conditional mandates where a condition is unfulfilled. It is tempting (though perhaps futile) to speculate on why this point was so seldom addressed. If Henry had emphasised it more this might have forced the matter on the critics’ attention; as he did not, it may have been taken for granted that the princes had been brought up together.

43 CSPS iv/2, no. 646. Raffaelo was a Jewish convert to Christianity who spent three years in England. The rival Dominicans, Cajetan (in 1530) and de Spina, also insisted that levirate marriage was acceptable only in certain precise conditions, including the bringing up of a firstborn son in the name of the deceased brother according to Deuteronomy xxv. 6: Skelly, ‘Cajetan’, 216–23; von Gunten, ‘de Spina’, 255–63. Cajetan later modified his position, arguing that the law involved was only ‘judicial’ and subject to papal dispensation: Skelly, ‘Cajetan’, 223–8.

44 Kelly examines the Blackfriars debates in valuable detail: Matrimonial trials, 75–128.

45 LP iv/3, no. 6111 (SP 1/56, fo.140).

46 Reformation records, ii. no. cccxx, ‘A glass of the truth’, 391–3. Philip Hughes neatly summarises this treatise in The Reformation in England, i. 248–53.

47 The commands in Leviticus were for immediate application and are stated to come directly from God while those in Deuteronomy were chiefly considered as orders from Moses (under divine inspiration) regulating the Jews’ future life in the promised land.

48 Harpsfield, Pretended divorce, 170–5.

49 Romans iii.20ff; cf. Galatians ii.16ff.

50 Aquinas clarified the distinctions in a series of specific and incidental comments in his questions on law: Summa theologica 1a. 2ae, qq. 98–106; cf. Joyce, Christian marriage, 524.

51 Many of Henry's critics, including Fisher and Cajetan (in his 1534 work), relegated the Levitical commands into the ‘judicial’ category: Murphy, ‘The debate over Henry viii’s first divorce’, 12, 120; Skelly, ‘Cajetan’, 227.

52 This proposition was one of Wyclif's alleged articles condemned by the university of Oxford in 1411 and (indirectly) by the Council of Constance in 1415: Divorce tracts, 259–60. Nevertheless it had since gained favour in association with the other teachings of Duns Scotus. The origin of the ‘human law’ interpretation is usually ascribed to Scotus, though the contention seems to have originated with Gratian: CJC i, Decretum Gratiani, causa 35, q. 1, cited in the first article of Katherine's Libellus: Kelly, Matrimonial trials, 289–90. But Gratian held that the Levitical decrees should not be dispensed, comparing them to the Church's insistence on the celibacy of the upper clergy. Relegating a law from the ‘divine’ to the ‘human’ category did not, therefore, imply that it could be dispensed at will.

53 Among them were Fisher, Girolamo Aleander and Alonso de Virves: [Bedouelle and Le Gal], ‘Repértoire bio-bibliographique’, 347, 315, 428–9. Despite his usual diffidence on such matters, Clement vii asserted his belief that the issue in Henry's case was one of human law: Romische Dokumente, doc. 71.

54 CJC ii. X, ii. 13.13; Joyce, Christian marriage, 522. Joyce's suggestion that Aquinas might have been moving towards a Scotist viewpoint seems to rest on a contextual misunderstanding of Aquinas's discussion of the degrees of consanguinity in the ‘Old Law’: ibid. 524 n. 2, second para.

55 Divorce tracts: contrast 70–1, 76–7 with 144–5 which quotes exactly from Aquinas, Summa theologica, 1a, 2ae, q. 97, 4, ad 3. Aquinas had modified his earlier views on the matter: Joyce, Christian marriage, 523 n. 2.

56 Reformation records ii, no. cccxx at p. 400. Henry was often charged with inconsistency, having strongly defended papal authority in his Assertio septem sacramentorum of 1521. Philip Hughes notes some passionate defences of papal authority from this work in The Reformation in England, i. 171 n. 2, 202–3. According to Chapuys, Henry indicated in March 1533 that he might change his opinion once again if the pope fell in with his wishes: CSPS iv/2, no. 1057 (LP vi, no. 296).

57 Tommaso Badia, Petrus-Paulus Caporella and Carlo Ruini took this line, as did the universities of Salamanca and Granada: [Bedouelle and Le Gal], ‘Repértoire bio-bibliographique’; ‘La Position de l'Université de Salamanque’; and ‘Les Autres Universités’, in Bedouelle and Le Gal, <<Divorce>> du roi Henry VIII, 319–20, 328–9, 415, 114–15, 179.

58 Bedouelle and Le Gal claim that this was still a minority view: ‘Les Autres Universités’, ibid. 179. Johannes Andreae is briefly discussed by Kelly, Matrimonial trials, 7–8, and in Divorce tracts, 364. Henry repeatedly rejected this interpretation: Divorce tracts, 236–61. The Council of Trent was to make no distinction between ‘divine’ and ‘human’ elements in defending the Church's right to dispense from the Levitical degrees of consanguinity (canon 1803); affinity was then taken as implicitly included. The Tridentine canons are accessible at <http://www.documentacatholicaomnia.eu>.

59 Aquinas, Quodlibet, iv, Paris (Leonine edition) 1996, q. 8, a. 2, <http://www.corpusthomisticum.org>. Similar adjectives are used throughout this debate, as in [Bedouelle and Le Gal], ‘Les Opinions des docteurs’, and ‘Repértoire bio-bibliographique’, in Bedouelle and Le Gal, << Divorce>> du roi Henry VIII, 203, 329, 351. In Quodlibet Aquinas was still insisting that only human law was dispensable by man.

60 G. H. Joyce rather antedates the victory of the ‘human law’ view of the prohibited degrees: Christian marriage, 524–5. As Henry's case makes clear, these issues were still matters of debate within the Church.

61 This was in connection with his asking whether he could be allowed a second wife if Katherine took vows of religion: LP iv/2 4977 (BL, ms Cotton, Vitellius B, x, fos 146ff).

62 On Julius see Reformation records, i, no. i. Clement insisted he was no canonist: i, nos l, li. In Henry's case he appointed two legatine commissions to be presided over by Campeggio and Wolsey, though he asked Campeggio not to give any verdict until he had been consulted: Scarisbrick, Henry VIII, 205–15; Romische Dokumente, doc. 22 and n. Richard Helmholz warns us that the canons should not be treated as if they were ‘a modern code’: Oxford history, i. 161; nevertheless, the king's critics seem to have played strictly by what they understood to be canonical rules.

63 Joyce, Christian marriage, 536; CJC i, Decretum Gratiani, C. 35, q. ii/iii, c. 8.

64 He first made this point in a letter of May 1527: Reformation records, i, no. iv (SP 1/42 fos 51–2); cf. Deuteronomy xvii.8–13.

65 CJC ii. X, iv.19.9.

66 Kelly, Matrimonial trials, 8–9; Harpsfield, Pretended divorce, 121–2. The parallel is closer if the Deuteronomical exception is taken as indicating only a lack of sons, since the brother had left two daughters.

67 CJC ii. X, iv.14.8; cf. Joyce, Christian marriage, 541.

68 Summa theologica, supplement, q. 55, 8, ad 2. Such evolution perhaps accelerated in the twentieth century. In 1200 it was inconceivable that a man should be dispensed to marry his brother's widow; today, under the 1983 Codex, that barrier has been lifted and such a marriage could proceed unhindered.

69 Reformation records, i, no. i.

70 Divorce tracts, 48–77. The Spanish ambassador to the papacy, Miguel Mai, claimed in horror that such extensions of natural law impediments could ‘bastardize many great princes’: LP iv/3, no. 6501 (SP 1/57 fo. 243).

71 Joyce, Christian marriage, 525; cf. Scarisbrick, Henry VIII, 177.

72 ‘Huiusmodi dispensationem de iure concedi posse’: Joyce, Christian marriage, 525 n.1.

73 Leviticus xviii.18.

74 Ludwig Schmugge, Marriage on trial: late medieval German couples and the papal court, trans. A. A. Larson, Washington, DC 2012, passim and bibliography at pp. 355–67.

75 See the examples cited in d'Avray, Papacy, monarchy and marriage, 201–3; cf. Kelly: ‘It was the general opinion in the Middle Ages that the Levitical decrees were held to be indispensable’: Matrimonial trials, 186.

76 This confusion is explained in Joyce, Christian marriage, 526 n. 2.

77 Clerics in minor orders (below that of subdeacon), while exempt from the rule of celibacy, were forbidden to remarry after a wife's death, but dispensations were occasionally given. Such remarriage was canonically called ‘bigamy’; having two living wives was termed ‘polygamy’. On this usage see Rock's, P. M. J. detailed article, ‘Bigamy in canon law’, in The Catholic encyclopedia, ii, New York 1907, <http://www.newadvent.org>; cf. d'Avray, Medieval marriage, 157–67.

78 A point accepted by Harpsfield, Pretended divorce, 46. A similar proposal had been rejected earlier by Eugenius iv after the noted canonist Juan de Torquemada provided misleading advice that illustrates how even experts could become lost in the labyrinthine complexities of canon law: Joyce, Christian marriage, 525–6, 621–2; Kelly, Matrimonial trials, 11–12. Those of us who have stumbled in Torquemada's footsteps can only sympathise: cf. Le Gal, ‘Le Cas canonique’, and [Guy Bedouelle and Patrick Le Gal], ‘Conclusion’, in Bedouelle and Le Gal, <<Divorce>> du roi Henry VIII, 46, 443.

79 Kelly, Matrimonial trials, 9–10; Scarisbrick, Henry VIII, 177.

80 Leviticus, xviii.9, 11; xx.17; cf. Deuteronomy, xxvii.22. Like the extension of the prohibited degrees to illicit copula (cancelled in the Codex iuris canonici of 1917), the canonical expansion to include other half-blood kin may be regarded as a matter of human law.

81 Kirsch, J. P., ‘John xxiii’, in The Catholic encyclopedia, viii, New York 1910, 434–5, <http://www.newadvent.org>.

82 J. Loughlin, ‘Alexander vi’, ibid. i, New York 1907, 289–94, <http://www.newadvent.org>.

83 The strengths and weaknesses of Fisher's conception of authority are neatly summarised in Rex, Theology of John Fisher, 93–109, 190. See also Richard Rex, ‘The polemical theologian’, and Cogan, Brian, ‘Fisher's view of the Church’, in Bradshaw, Brendan and Duffy, Eamon (eds), Humanism, reform and the reformation: the career of Bishop John Fisher, Cambridge 1989, 109–30, 131–54. See also Joyce, Christian marriage, 441.

84 CJC ii. X, iv.19.9. Since the Livonian neophytes had not been Jews the allusion to Deuteronomy appears strange, but it seems likely that such a proviso had previously been used in connection with the admission of converts from Judaism: cf. CJC ii. X, iv.14.4.

85 Harpsfield, Pretended divorce, 112, 124–66; cf. John Fisher, Licitum fuisse, Cambridge University Library ms Ff. v. 25, fos 169r, 189v. Scarisbrick agrees, claiming that ‘Fisher was right when he said that this bull, Deus qui ecclesiam, was decisive’: Henry VIII, 179.

86 CJC ii. X, iv.14.4.

87 CJC ii. X, iv.19.8.

88 CJC ii. X, iv.19.9. The rider is stated at the end: ‘ne tales sibi de cetero, postquam ad fidem venerint, copulent, prohibentes’.

89 1 Corinthians vii.12–17; Joyce, Christian marriage, 467–504.

90 Codex iuris canonici (1983), canons 1055–6, 1142–50.

91 ‘Non licere relictam fratris in uxore accipere, et de facto separanda est, nisi aliter ecclesia dispenset.’

92 Capitular rubrics are not regarded as part of the authoritative text: Van Hove, Alphonse, ‘Corpus juris canonici’, in The Catholic encyclopedia, iv, New York 1908, 391–4, <http://www.newadvent.org>.

93 The University of Louvain cited several authorities quoting the rubric's words to support the dispensability of the Levitical law: Patrick Le Gal, ‘La Détérmination de l'Université de Louvain’, in Bedouelle and Le Gal, << Divorce>> du roi Henry VIII, 96. But no ‘dispensation’ had been involved. Innocent had simply conceded (‘concedimus’) that the previous non-sacramental marriages of neophytes are governed by different rules and that this was one of them. At most his judgement merely clarified doctrine on that matter, fulfilling the same ‘interpretative’ role that Fisher was to defend in 1527. Similarly the prohibition of the levirate to Christians was, to Innocent, a restatement of an existing (divine) law, though Henry's critics and even Clement vii, also perhaps misled by the rubric, saw it as a dispensable matter of human law: Kelly, Matrimonial trials, 139. Even if it were, the decretal's concession would not of course have covered this marriage, which did not conform to the Deuteronomical exception.

94 Henry seems to have ignored all these cases. He often cited Innocent's other decretals but on Deus qui ecclesiam he allowed his opponents to make the running: Divorce tracts, 68–73.

95 Though Henry's dispensation may not have followed precedent it did, however, set one, for Clement vii dispensed at least two noblemen to marry their brothers’ widows: Scarisbrick, Henry VIII, 177; Kelly, Matrimonial trials, 15.

96 This was the alleged inadequacy of the dispensation's stated justification, merely the ‘maintenance’ of Anglo-Spanish amity. This claim seriously worried Charles v and Miguel Mai, who persistently sought evidence of some urgency – war or the threat of war – at the time of the bull's issue: LP iv/2, no. 6103 (SP 1/56, fos 132–3); CSPS iv/2, no. 810 (BL, ms Add. 28584, fo. 15); CSPS iv/2, no. 789 (BL, ms Add. 28583, fo. 376).

97 Henry's detailed case was made to the Blackfriars court most fully in the king's libellus. The queen's libellus made some powerful rejoinders and was to form the basis of much subsequent literature defending the marriage: Kelly, Matrimonial trials, 90–2, 102–8, 289–95. Convalidation might be thought especially useful because Henry's pubertal renunciation of the marriage in 1505 could be taken as invalidating the original dispensation: cf. [Patrick Le Gal], ‘Le Consultations des universités’, in Bedouelle and Le Gal, <<Divorce du roi Henry VIII>>, 46–7.

98 Tremlett, Catherine of Aragon, 288, 309, 311. Though no such wholly impartial ‘Rawlsian’ court would have been conceivable, Clement reminded Wolsey and Campeggio that their judgement should conform to ‘justice and equity’: Reformation records, i, no. 167. Canon law also required due process and a plausible case for any verdict: d'Avray, Papacy, monarchy and marriage, chs iii, vii.

99 Scarisbrick, Henry VIII, 207–15; Romische Dokumente, no. 22.

100 LP iv/2, no. 5072; LP iv/3, no. 6627. These suggestions may have been diplomatic ruses: Joyce, Christian marriage, 572 n. 2.

101 Celestine iii (1191–8) seriously misinterpreted the principle of Pauline Privilege by granting a divorce to a woman whose husband deserted her and married a non-Christian, confirming her ‘remarriage’ to a Christian: CJC ii. X, iii.33.1. Innocent iii ruled that such grounds should not be valid: CJC ii. X, iv.19.7. Nevertheless, he does not appear to have rescinded his predecessor's decision.

102 d'Avray, Papacy, monarchy and marriage, 229.

103 Ibid. 197–201; CJC ii. X, iv.14,6, cited in Katherine's libellus, pt 14: Kelly, Matrimonial trials, 295. The University of Louvain was among those arguing that it would be ‘scandalous’ to annul such a long-standing consummated union even if the dispensation authorising it had been faulty: Le Gal, ‘Louvain’, 101; cf. Fisher, Licitum fuisse, 197v. Nevertheless, none of the precedents cited on this issue involved breaches of the Levitical code, while the matter raises serious moral questions about ‘means and ends’: Skelly, ‘Cajetan’, 224; Guy Bedouelle, ‘Les Réformateurs protestants et le << divorce >>’, in Bedouelle and Le Gal, <<Divorce>> du roi Henry VIII, 292; Aquinas, Summa theologica, supplement, q. 5, 9, ad 2; Copleston, F. C., Aquinas, Harmondsworth 1955, 198204.

104 Brundage, Medieval canon law, 169.

105 Kelly, Matrimonial trials, 8–9 n. 8; cf. d'Avray, Medieval marriage, 176.

I should like to record my thanks to Graham Kew, Andrew Foster, David d'Avray, George Bernard, Caroline Rowland and the late Cliff Davies for their advice and the fruitful discussions which have considerably helped me to clarify my understanding of this subject, and also to the anonymous readers for their valuable suggestions.

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