by Gwyn, Peter
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’.
A decretal commission enabled the pope to pronounce sentence upon a particular case, conditional only upon certain facts being established by those to whom the commission was granted.76 As Wolsey had every intention of drawing up the commission himself, one may begin to see the point of the exercise: Wolsey could choose the battlefield.77 Another great advantage was that it would be difficult for Catherine to appeal against the judgment of the commissioners – a course of action that she was almost bound to take, as indeed she did, against any unfavourable sentence passed in England – because that judgment was already the pope’s. Not surprisingly, given that the whole exercise depended upon the pope’s close co-operation, Leviticus did not get a look in. Instead, the focus was to be entirely on the original dispensation, and in particular on three points of fact. The first was whether it was true, as the dispensation implied, that the marriage between Henry and Catherine had been necessary to preserve the peace between England and Spain. The second was whether the young Henry had desired the marriage for the reason stated in the dispensation, which was that he wanted to preserve that peace. The third was whether any of the three monarchs named in the dispensation, Henry VII, Ferdinand and Isabella, had died before the dispensation came into effect, which was taken to be when the marriage had been solemnized in June 1509.
To take the last point first, it is obvious that the answer was easy: by 1509 both Henry and Isabella were dead and therefore in no position to have any views on the subject of peace. This being so, the stated motive of those asking for the dispensation collapsed. But if the factual answer was easy, one might reasonably wonder what it had to do with the genuineness of Henry’s marriage; Julius II can hardly be blamed for the long delay between his granting the dispensation and the deaths of two of those who had requested it. He had acted in good faith, believing that the preservation of peace between royal families, in which dynastic marriages played an important role, was an honourable policy. Surely there was nothing in all this that a reasonable man could take exception to? But an unreasonable man might argue, and hence the significance of the first matter to be inquired into, that in the case in question it made no sense to maintain that the marriage served such a purpose because peace already existed between the two kingdoms. Everyone agreed that the stated motive was a very important part of a dispensation.78 Whatever one’s view of the dispensability or otherwise of the Levitical prohibition, nobody doubted that an impediment deriving from a relationship in the first degree of affinity – that is, a relationship with a brother or sister of the intended spouse – was a grave one, and that even a pope could only dispense with it for some compelling reason. If there was already peace, and no obvious reason why that peace should not continue whether or not the marriage took place, then it could hardly be argued that the marriage provided such a reason; or so the unreasonable man might argue. The second question to be investigated by the commissioners is susceptible to the same kind of analysis. At first sight it may not seem exceptionable to state, as the original dispensation did, that Henry had wanted the marriage in order to conserve peace. But the unreasonable man – and lawyers are trained to be such – might point out that at the time that the dispensation had been granted and the marriage treaty drawn up, Henry was only eleven, so not of an age to have views on such a topic. Therefore the statement in the dispensation must be false, and the dispensation itself invalid.
The purpose of the above discussion is to show with what skill Wolsey had attempted to choose the battleground on which the case was to be fought and won.79 The questions were so posed that not only was it easy to arrive at the factually correct answers, but the answers themselves would be precisely those that would most effectively undermine the validity of the dispensation. And to underline how little Wolsey intended leaving to chance, it was to be laid down in the decretal commission that it required the facts in only one of the three matters to be investigated to prove inconsistent with what was stated in the dispensation, for the marriage to be declared invalid.80 To have reduced the legal complexities raised by the king’s ‘great matter’ to these three simple questions of fact, only one of which needed to be answered in a way favourable to Henry, was a remarkable conjuring trick. No wonder Wolsey fought so hard to persuade Clement to grant such a document.
As we have seen, he got remarkably close. Clement did draw up such a document, but at the same time instructed Campeggio not to hand it over to Henry or Wolsey. Meanwhile, the case was to be tried by the two cardinals by virtue of a general commission, which was not the same thing at all. This was not only because it would be easier for Catherine to appeal against their judgment, but, much more serious, because the legal battleground under such a commission would not be controlled by Wolsey. Absolutely any argument for or against the validity of the marriage could be raised, and in such a free-for-all the many weaknesses in Henry’s case could be exposed, in particular the question that had first worried Wolsey back in June 1527: whether it could be proved that Catherine’s first marriage had been consummated. If it could not, it will be remembered, Henry’s case would suffer a severe setback: no consummation, no impediment of affinity, and therefore no reason why Henry should not have married Catherine. In fact, there did remain one, the impediment of public honesty, which was created by the existence of any kind of former marriage contract, such as there had certainly been for Catherine and Arthur. And if this impediment had existed, should it not have been dispensed with before Catherine had married Henry? It was Wolsey who late that same June had first noted this failure in the original dispensation, and saw how this could in certain circumstances be used to Henry’s advantage.81 However, the failure did not, as has been alleged, provide Wolsey with a winning line that only Henry’s obsession with Leviticus had prevented him from playing.82
According to the then generally accepted view, the omission of any reference to the impediment of public honesty in the dispensation would only have had serious consequences if the marriage had not been proceeded with and, thus, consummated. Otherwise it could be assumed that the dispensation for the impediment of affinity also covered that of public honesty. As there could be no consummated marriage without a prior marriage contract, a dispensation for the latter was considered redundant. And that a dispensation for public honesty had been considered redundant was to be presumed from the fact of its omission, especially from the English bull, the only one that
the English accepted as authentic, for in that a doubt concerning consummation was admitted. The issue of public honesty was not so obscure as to have been easily overlooked, and indeed was specifically mentioned by the English and Spanish commissioners for the marriage treaty of 1503.83 If the view in Julius II’s time was that there was no legal requirement for it to be mentioned, there was no very compelling reason why Clement should think differently. It was, therefore, most unlikely to have been a winning line. Moreover, there were tactical reasons for not playing it, for to focus on it would have been more or less to concede that consummation had not taken place, and thus to abandon the Levitical argument. It was also open to the same response as any other argument that rested on the defects of the original dispensation: that there was nothing God-given about it and so any omissions or defects could easily be put right by the pope. It was precisely to guard against this weakness that it was so important not to jettison Leviticus.
Wolsey only ever saw the omission of any reference to the impediment of public honesty in the original dispensation as of any use if the case for the consummation of Catherine’s original marriage was to give way in the face of her persistent denial. What is clear, however, is that he always feared that this might happen, and hence the insistence on a decretal commission. It is, therefore, most unlikely that he viewed the outcome of the second legatine trial with as much optimism as most historians have implied.84 It had only been the fear that, if he delayed any longer, the Imperialists would succeed in persuading the pope to advoke the case to Rome that had forced him to set it in motion. One reason for his preference for delay was the continuing uncertainty about the Spanish brief, but right up until the last moment he was still instructing the English envoys in Rome to secure yet wider powers for himself and Campeggio in an effort to make it as difficult as possible for Catherine.85 There is not the slightest doubt that, when on 31 May 1529 the trial at length got under way, Wolsey was a worried man, and the next six or seven weeks were to give ample proof that his fears were well founded. The trial went so badly for Henry that Campeggio’s adjournment on 23 July probably came as something of a relief.86 The more usual interpretation sees it as an unexpected and devastating blow to Henry’s cause, contrived by Campeggio who was desperately worried that he would have to pass judgment in Henry’s favour even though his instructions from Rome were to do no such thing. There are sound reasons for such a view: Campeggio’s instructions were on no account to proceed to a judgment and there is no doubt that by 21 June he was worried that he would be unable to comply with them, so great was the pressure to proceed.87 Three weeks later he reported that things were speeding up ‘now faster than a trot’, and that it would be impossible for him to withhold his opinion, adding, however, that in doing so he would have before his eyes only God and the honour of the Holy See.88 Was this merely an excuse for going against Clement’s wishes, or was it a hint that he would not, after all, have to come down in Henry’s favour? There are grounds for thinking that the latter was the case, the chief one being that John Fisher’s powerful intervention on 28 June turned the climate against Henry. Moved, he maintained, by Henry’s personal appeal on the 21st for anyone to speak their mind who could help relieve the burden of his conscience, Fisher proceeded to tell the court that two years of study had convinced him that Henry’s marriage was good; indeed, so convinced was he that, like John the Baptist, whose death had been brought about by his criticisms of Herod’s matrimonial plans, he was willing to lay down his life in the defence of his conviction.89 According to a friend of Campeggio’s secretary, Fisher was held in such esteem that after this intervention it would be quite impossible for the court to pronounce against the validity of the marriage.90 This may have been an exaggeration, but the immediate adjournment of the court for a week suggests that Fisher made an impact, and that in consequence Wolsey was anxious for time to take stock.91
According to Cavendish’s admittedly garbled account,92 Fisher made his speech, or perhaps it was another of his interventions, at a moment when the question of consummation was under scrutiny – this, of course, the topic that Wolsey had most feared, but it had not needed Fisher’s intervention to bring it to the forefront, for Catherine had seen to that. Back in November 1528 she had issued a public statement denying it,93 and in doing this she was only repeating what she had most forcibly declared to both Wolsey and Campeggio in private.94 Then, on 21 June 1529, she did something even more dramatic. In her one and only appearance in court she knelt before her king and husband and affirmed that ‘when you had me at the first, I take God to be my judge, I was a true maid without touch of man’.95 This public declaration was a great embarrassment. Of course, it was true, as Wolsey and others pointed out,96 that because she and Arthur had lived together for five months and had undoubtedly gone to bed, though according to Catherine on only seven occasions,97 did create a presumption that intercourse had taken place. There were also a number of people willing to swear that on their wedding night intercourse had occurred.98 But this had been almost thirty years earlier and all most people were in a position to remember was court gossip. There were really only two people who could provide authoritative testimony: one was Catherine, who had made her views all too plain, both in public and on oath, and the other was Henry, and therein lay further difficulties. In his younger days, apparently, Henry had been inclined to boast that he had found his wife a virgin.99 Now, this was the kind of thing that any husband might want to boast about, even in the special circumstances of a marriage to one’s brother’s widow, and anyway the boast might well have been untrue. Still, it was very awkward that he had made it and, worse, that it probably was true! At any rate, Henry never dared to answer Catherine’s direct challenge to declare on oath in what condition he had found her on their wedding night.100 Moreover, following the trial those who supported the king were forced to argue, against the generally accepted view, that the issue of consummation did not in any way invalidate the Levitical prohibitions.101 It also does not help one to believe in Henry’s view that vital evidence he presented to the court was suppressed from the official record before his case was retried by Thomas Cranmer at Dunstable in 1533102.
If considerable time has been spent on this rather than on any other aspect of the second legatine trial, it is because it does seem to have been a losing line for Henry, and one which, if lost, would fundamentally undermine his case that any dispensation granted for his marriage had been invalid from the start. It would then be very difficult, as we saw earlier, for him to resist the argument that any faults in the original dispensation could be easily remedied, and after twenty years of marriage even that was probably not required. Once the question of consummation had become central, Wolsey would be in difficulty; and there are indeed signs that, despite the pressure to conclude lest the case be advoked to Rome, proceedings were becoming bogged down. At one point it had been Wolsey’s and Campeggio’s intention to have all the relevant material on which to base their judgment presented to them on 14 July. But the documents were not presented until the 19th, and there are some indications that, even then, all was not as it should be, for though sentence was to have been given on the 21st, there was yet another postponement, which led only to Campeggio’s ‘unexpected’ adjournment on the 23rd.103 It is difficult to believe that these delays can be ascribed entirely to Campeggio’s machinations, for if all had been going well there would have been enormous pressure from the king’s side to come to judgment as soon as possible. But what appears to have happened is that Henry’s lawyers were having trouble in presenting a winning line – and if that was so, then the adjournment may not have been quite the disaster that is usually assumed.
There has always been something surprising about the passivity with which Wolsey accepted the allegedly unilateral declaration of an adjournment by his fellow judge, especially when it is usually further alleged that it was this declaration that destroyed him. And the idea that the adjournment was either unexpected or disastrous is not
supported by the letter which Wolsey wrote to the English envoys at Rome on 27 July. Admittedly there are problems about it, one being the date, for written apparently after the adjournment, it anticipates it! Moreover, it is a signed letter which must raise a doubt about whether it was ever sent, since outgoing letters have usually only survived in draft form. Neither is there any reference to it having been received by the envoys, nor do any of its instructions appear to have been carried out.104 On the other hand, the fact that all but the first two sentences were written in an apparently unique cipher suggests that, whether sent or not, Wolsey considered its contents of some importance.105 He began by thanking the envoys for their efforts in trying to prevent the advocation until: