Henry viii’s efforts to assert the invalidity of his marriage to Katherine of Aragon have received short shrift from historians. J. J. Scarisbrick insisted that the pope's difficulty was not just that the Emperor was Katherine's nephew, ‘but that Charles was Katherine's nephew and Henry's case a feeble one’.Footnote ¹ This verdict has been echoed by a host of other scholars;Footnote ² it still dominates interpretations of the subject and is implicit in surveys of the contemporary literature, where the views of the king's critics are not always subject to quite the same degree of forensic analysis as those of his supporters.Footnote ³ This article seeks to recast this judgement, suggesting that, while the monarch's handling of the affair was often clumsy and even perverse, a strong defence might be made of the contentions that his union with Katherine was indeed contrary to Scripture, to canon law and to prevailing interpretations of what constituted a valid Christian marriage, and that Julius ii’s dispensation should not have been granted.

Like many other litigants, Henry adopted a ‘scatter-fire’ approach to his task of seeking an annulment, attacking a vast array of targets, hoping that at least one shot might reach its mark.Footnote ⁴ His opponents tended to follow suit, thus a comprehensive analysis of each pellet might seem desirable to do the parties full justice. This has not been attempted in the present study. Instead it has seemed best to concentrate on three of the most serious and most often cited defences of the queen's case, those based on the questions Henry asked of the universities in 1530–1, thus setting the agenda for the debate.Footnote ⁵ The first of these was that, while forbidden by the texts of Leviticus,Footnote ⁶ marriage to a brother's widow was prohibited by the Church only if the previous marriage had been consummated, whereas Katherine insisted that she came to Henry virgo intacta.Footnote ⁷ Secondly, it was argued that the Levitical prohibition should be interpreted as being limited by the command in Deuteronomy requiring a man to marry a childless brother's widow, exactly what Henry had done.Footnote ⁸ Lastly, the king's critics cited a number of what they considered relevant precedents for the dispensation granted to Henry and Katherine by papal bull in 1503.Footnote ⁹

These three arguments will be examined in detail. Each appears to have serious weaknesses. The strict application of canonical procedures in the case would appear to favour a verdict that Arthur and Katherine had indeed consummated their union. On Deuteronomy, not only had the Church generally regarded the command as obsolete and inapplicable to Christians but the contentious verse does not on close examination cover Henry's case at all. Finally, none of the oft-cited papal dispensations involved a clear-cut breach of the Levitical injunctions: the bull really does seem to have broken new ground and might not have been issued had all the facts been known.

Disputing the strength of these objections, however, does little to justify many of the other features of the case that Henry actually made. Only on the first of the three issues discussed here did he eventually take a coherent line that might have brought a measure of success. Elsewhere he was always seeking to explore dubious side-tracks, simply missing obvious points or allowing the bees buzzing in his bonnet to distort his understanding of the problem. The principal apian distraction was his insistence that the Levitical inhibitions reflected tenets of natural law.Footnote ¹⁰ This was an argument that did not appear in the king's first attack on the validity of his dispensation, which had been based on the arguably surer ground of divine law alone.Footnote ¹¹ Robert Wakefield was probably the man who had encouraged the king to raise the stakes here.Footnote ¹² But Henry's critics tended to agree with Thomas Aquinas that the only sexual unions forbidden by the primary precepts of natural law were those in the direct line;Footnote ¹³ all other kinship relationships were covered, if at all, by secondary precepts, divine law or human law – laws that might perhaps be dispensed by an appropriate authority. It is hard to take Henry's position seriously here, especially since his interpretation would condemn as ‘unnatural’ unions actually allowed in Leviticus or even prescribed by Deuteronomy. Certainly there were scholars who were prepared to expand Aquinas's category to forbid intercourse between brother and sister,Footnote ¹⁴ but Henry appears to have been almost unique among contemporaries in extending this scope to include siblings’ spouses.Footnote ¹⁵

At least there was no doubt that Katherine had been Arthur's wife, but had she been so in name only? This is what she firmly claimed, and in the minds of most contemporary canonists, non-consummation of a first marriage put the union into a separate category, one that would permit a second marriage regardless of any kinship between the first spouse and the second. Three centuries earlier, verdicts might have been different, with non-consummation being allowed to dissolve a marriage only for the sake of one partner's taking religious vows;Footnote ¹⁶ however, more recently there had been several cases where this justification had been successfully pleaded to allow a spouse to enter a fuller sexual union, the most prominent involving Henry iv of Castile and Louis xii of France.Footnote ¹⁷ Dissolution of a marriage on the grounds of non-consummation meant that any affinity created by that marriage no longer existed. A partner's death before the union had been consummated would also remove that affinity; thus if Katherine's marriage to Arthur had been unconsummated then she should be free to marry her late husband's brother.

Henry's arguments on this matter veered sharply. At first he denied Katherine's assertion that she was still a virgin when Arthur died.Footnote ¹⁸ Then, persuaded by Wolsey that he could turn the queen's defiance against her, he toyed with the suggestion that the dispensation he received could be interpreted as applying only to a full, consummated marriage.Footnote ¹⁹ Even if correct, this was perhaps just too clever, since a retroactive dispensation could have been offered.Footnote ²⁰ Thomas Cranmer then seems to have persuaded Henry that even an unconsummated marriage was a crucial impediment.Footnote ²¹ This was a step too far in the opposite direction; eventually the king returned to his original course, alleging simply that Katherine had lied.Footnote ²²

This contention might have brought a wholly undeserved success to Henry. Sadly for Katherine, the canonical procedures for determining non-consummation suits would have worked against her.Footnote ²³ As in any such dispute, witnesses were questioned. Not surprisingly, their stories differed according to their nationality: like the decisions of the universities this was a case of what Hans Thieme delightfully described as cuius regio, eius opinio.Footnote ²⁴ English ones remembered a raunchy young prince boasting of his having ‘been this night in the midst of Spain’. Most of the interrogation records of the queen's Spanish servants have been lost, but they seem to have agreed with the implications of the leading questions that they were fed by recollecting only an immature wimp.Footnote ²⁵ Canonical rules, however, held that in such controversies, the husband's view was to be preferred to the wife's.Footnote ²⁶ Furthermore, in the absence of sound evidence to the contrary, in any marriage that had lasted more than a few days, consummation should be presumed.Footnote ²⁷ This is why neither Mendoza, the Spanish ambassador, nor his successor, Chapuys, was enthusiastic about Katherine's claim and probably why Campeggio felt relief that the question was not to be argued at Rome.Footnote ²⁸ As Gardiner had warned the queen earlier, presumption would run against her:Footnote ²⁹ rightly or wrongly, in any court operating under standard canonical rules and procedures, she would probably have lost this argument. Her chances of victory might nevertheless have been enhanced had she been prepared to provide intimate details refuting the stories of Arthur's youthful braggadocio, since canon law treated mere attempts at intercourse as failing to ‘complete’ a union.Footnote ³⁰ To argue on such lines she would doubtless have felt degrading; thus Katherine stood firm in her simple – if perhaps ‘Clintonesque’ – denial.

When it comes to the contrast between Leviticus and Deuteronomy it would again appear that the king had been dealt what should have been a winning hand, yet even when he recognised his good fortune he continued to misplay it. In his favour was the fact that the Deuteronomical exception was not generally recognised as applying to Christians: Aquinas had regarded it as obsolete.Footnote ³¹ In the responses of those universities defending the marriage the principal reason for citing the disparity was simply that it showed that exceptions had been made, and that the Levitical rule against marriage to one's brother's widow could thus not be held to contravene indispensable principles of divine or natural law; none insisted that the levirate was binding on Christians.Footnote ³²

But Aquinas's view did not command universal assent. A number of scholars, few in number but formidable in debate and including Bishop John Fisher, Henry's most voluble and persistent critic, held that the levirate exception could apply to Christians, and even that it might be mandatory.Footnote ³³ Their starting point was often to point out St Augustine's solution to the apparent discrepancy between authoritative texts and his insistence that they must be interpreted as being compatible, otherwise Scripture would be contradicting itself, which was impossible. The saint's answer had been that the Levitical prohibition should be understood as applying only if the brother (even if divorced) was alive or had left a widow with children.Footnote ³⁴ While others had treated Augustine's argument as simply an exercise in Old Testament exegesis, these authors insisted on its current relevance to Christian marriages. The fact that there seemed no known prior examples of a Christian levirate marriage could be excused by insisting that the 1503 bull involved no innovation but merely the resurrection of an old principle that had previously been ignored.

Those, like Fisher and Cajetan,Footnote ³⁵ taking the ‘levirate command’ seriously, insisted that Henry's marriage to Katherine exactly fitted the exception made by Deuteronomy – a verdict repeated by many more recent scholars.Footnote ³⁶ Henry's usual response was to argue that the levirate had been allowed only by special divine dispensation to the Jews; however, not content with this fairly unexceptionable claim, he later veered off at a tangent to cite Wakefield's re-translation of the passage in Deuteronomy as referring not just to a brother but to any blood kinsman.Footnote ³⁷ Unfortunately, as Cajetan pointed out, exactly the same Hebrew word appeared in Leviticus, where Henry had of course insisted a full ‘brother’ was meant.Footnote ³⁸

Both sides might be accused of playing fast-and-loose with their translations and implicit assumptions but there is no need to pursue these red herrings further, since there was a somewhat larger creature that has nevertheless often eluded recognition. This ‘elephant in the room’ was that the initial condition stated in the first words of Deuteronomy xxv.5 simply did not apply to Henry's case, thus negating the force of the instruction that followed.Footnote ³⁹ Henry and Arthur had not ‘lived together’ since 1493; thereafter, in David Starkey's words, ‘they met only on high days and holidays at their parents’ court’.Footnote ⁴⁰ Usually they dwelt far apart because Arthur, as prince of Wales, was based in the Marches and the principality. A modern commentary on the verse's command asserts that ‘it really gives the impression that it is considered valid only if this (cohabitation) can be taken for granted’.Footnote ⁴¹ Henry's critics appear to have ignored a quite explicit proviso. This may seem surprising but, as numerous experiments in visual perception have shown, it is easy to overlook one feature of a scene when concentrating on another task, and the present writer must plead equally guilty since the significance of the clause had escaped his own attention in forty years of teaching.Footnote ⁴² Nevertheless, whether or not the Levitical prohibition applied to his case, Henry's marriage to Katherine certainly did not fulfil that clear Deuteronomical injunction on which Fisher and others, insisted. In this respect Deuteronomy was simply irrelevant: reconciling its text with that of Leviticus might thus be an interesting exegetical exercise but it had no bearing on a union which fell outside the former's ambit. Furthermore, as pointed out by Marco Raffaelo in 1531, even if Henry had previously lived with his brother, he had not conformed to the requirements of a husband marrying under Deuteronomy's provisions: he had not promised to raise children in his brother's name and had christened his first-born son ‘Henry’, not Arthur. Such failures could deprive the union of any divine sanction and put it back within the scope of Leviticus.Footnote ⁴³ Deuteronomy, even if considered binding on Christians, was thus doubly irrelevant.

At first the king seemed unaware that he held this particular ace. It does not seem to have featured in the debates at BlackfriarsFootnote ⁴⁴ and his earliest indicative allusion appears to be in lengthy instructions of December 1529 to Wiltshire and others for their embassy to Charles v, where the fraternal exception is stated as allowed ‘only to those who lived together’.Footnote ⁴⁵ Yet the point is not emphasised and Henry rapidly moved on to other issues in contention. Neither this nor Henry's failure to preserve his brother's name is mentioned in the Censurae or the Determinations of the universities. By the time that A glass of the truth was compiled in 1532 the crucial points, while not exactly stressed, were made quite coherently: both conditions are mentioned and it is stated that all the provisions noted in Deuteronomy xxv.5–6 must be obeyed for the rule to apply.Footnote ⁴⁶ The tract continues by insisting that the law applied only to the Jews,Footnote ⁴⁷ but then weakens its case by repeating Wakefield's exploded redefinition of ‘brother’. In his refutation of this work Harpsfield was able to concentrate on the latter point and ignore the stronger contentions.Footnote ⁴⁸

In Henry's obsession with an idiosyncratic interpretation of natural law and his apparent indifference to the strength of his own case on Deuteronomy we may discern a litigant who seems determined to snatch defeat from the jaws of possible victory. Nevertheless it is hard to resist the conclusion that the biblical texts themselves support Henry's claim that his marriage contravened divine law as expounded by Moses. But the status of the Mosaic injunctions had been weakened for Christians by St Paul's distinction between the Old Law and the Law of Christ.Footnote ⁴⁹ Over the centuries this had been refined into distinguishing the moral commands of the old Testament from the judicial and the ceremonial.Footnote ⁵⁰ Circumcision, animal sacrifices and dietary restrictions clearly fell into the last category and were considered to be no longer applicable. The same was generally held to be true of the ‘judicial’ commands respecting legal procedures and punishments: thus it was no longer considered obligatory to stone adulterers to death.Footnote ⁵¹ The moral commands, including those on marriage, were treated with more respect, but there were two views on their current status. One held that they were still matters of positive divine law, the other that they now applied simply because the Christian Church had willed their continuance – i.e. that they had become ecclesiastical ordinances – matters of human law.Footnote ⁵² Henry held the former view; most – but not all – of his critics rested their case chiefly on the latter,Footnote ⁵³ though often, like Fisher, adding ‘covering’ refutations based on divine law as well.

In this controversy the pontificate of Innocent iii provides much relevant material. His decree Litteras was generally taken as holding the Levitical prohibitions to be indispensable commands of divine law.Footnote ⁵⁴ Henry was tempted to agree, but in the Censurae and The determinations of the universities he eventually retreated from this position, accepting with Aquinas that divine law might exceptionally be dispensed by those ‘specially chosen by God’.Footnote ⁵⁵ The grounds of disagreement were thus essentially those of why, by whom and on what grounds this might be done. The king denied such powers to the popeFootnote ⁵⁶ while those of his opponents who held that the prohibited degrees were still matters of divine lawFootnote ⁵⁷ generally followed (or perhaps extended) Johannes Andreae's argument that the pope, as Vicar of Christ, might also be considered one ‘specially chosen by God’.Footnote ⁵⁸ For all the controversialists, however, whether they took the restrictions as divine or human, the issue of valid grounds mattered. When speaking of dispensations from human law Aquinas had stated that these should only be granted ex magni et evidenti causa,Footnote ⁵⁹ and one might argue that perhaps an even higher threshold for such justifications should apply in cases involving divine law.Footnote ⁶⁰

These differences – on the nature and scope of dispensations – appear starkly in the annulment controversy; indeed, if Henry's flimsy arguments on natural law and his critics’ equally weak contentions on Deuteronomy are set aside, they form its essential core. Since we are dealing with a society where the roots of authority lay with both codes and customs, law and precedent, contemporaries sought evidence from both. It is true that papal decisions did not necessarily require explicit justification: they might depend on what even Henry viii had earlier admitted was the pope's ‘absolute’ power.Footnote ⁶¹ But Julius ii and Clement vii eschewed this line of argument and sought canonically strong grounds for the bull and for its reconsideration.Footnote ⁶²

In the field of legal codes Henry's view, whether treated as a matter of divine or human law, held a strong position. Among other examples the Council of Neo-Caesarea (c. 315) and the regional Council of Agde (506) followed the Levitical injunction by forbidding the marriage of men to their brothers’ widows.Footnote ⁶³ Faced with such arguments, Bishop Fisher usually asserted that the prohibitions did not specifically forbid all dispensations – yet nor did they specifically allow any. As on the Leviticus/Deuteronomy dilemma, Fisher reasoned that in cases of ambiguity the pope should interpret the matter.Footnote ⁶⁴ Yet such a papal interpretation had been given by Innocent iii in a rider to his judgement on the Livonian issue discussed below: that, whatever the validity of pagan marriages to which the Deuteronomical exception might apply, a man's marriage to the widow of a deceased childless brother should not be permitted to baptised Christians.Footnote ⁶⁵ On such grounds, Henry's union with Katherine could be deemed improper. This view is reinforced by the verdict in 1392 on the only broadly comparable case of which we have knowledge, that of the count of Armagnac, where the pope's advisers (admittedly on a majority verdict) held that by divine law no such marriage was allowable.Footnote ⁶⁶

These decisions, however, had been taken long ago. Doctrines evolve, a point that had been stressed by Innocent iii himself in his reduction of the list of prohibited degrees from seven to fourFootnote ⁶⁷ and by Aquinas in explaining why, in his view, the Deuteronomical exception no longer applied.Footnote ⁶⁸ Even if there were no exact recent parallels, could it be shown that there had been cases exhibiting similar characteristics where dispensations had been allowed? This was the justification sought by Julius ii when pondering whether to sanction Henry's marriage to Katherine and one where ‘Cardinal Hadrian’ (Adrian de Castello) assured him that relevant precedents existed.Footnote ⁶⁹ But did they? This is the ground where major battles might have been fought, yet it was a field on which Henry persistently refused to campaign. To him, arguments from previous cases were of little value: since he was convinced that his marriage transgressed natural and divine law, it followed that any other unions with close kin were equally invalid.Footnote ⁷⁰ Yet by failing to challenge his critics on the alleged precedents that they cited, Henry did himself a major disservice, since it is perfectly arguable that none of them had any strict relevance to his own case.

Many historians have claimed that doors – if not floodgates – were opened by the advisers of Martin v at the Council of Constance in 1415, who were said to have maintained that popes could dispense even within the Levitical degrees. This may, however, be one of those cases where the old charge that ‘History does not repeat itself, but historians repeat each other’ rings true. Reference is often made to the valuable work of G. H. Joyce who does indeed make this claim about the scope of papal dispensation.Footnote ⁷¹ But this usually scrupulous scholar may here have confused the Levitical injunctions with those of the Fourth Lateran Council. The document he cites is at least ambiguous. The crucial sentence agrees to the proposed marriage and adds that ‘a dispensation of this kind may be lawfully allowed’.Footnote ⁷² But to what does ‘of this kind’ (huiusmodi) refer? The case that provoked the comment was one of a widower who wished to marry his wife's sister – a marriage that probably never took place. But far from forbidding such sexual unions, Leviticus appears to sanction them.Footnote ⁷³ It is true that under the decrees of the Fourth Lateran Council in 1215 such marriages, like those of uncle/niece and of first cousins, were forbidden, but none of these had been forbidden by Leviticus, thus they would appear to be commands only of human law.

Thousands of matrimonial cases came before ecclesiastical courts in the fifteenth century and many of those surviving in the records have been exhaustively and fruitfully studied by scholars, notably by Ludwig Schmugge.Footnote ⁷⁴ It is not impossible that some did involve dispensations from Leviticus, but the printed evidence suggests that the majority – and possibly all – relate to breaches of the 1215 rules. Most concern third- and fourth-degree unions, none of which are forbidden by Leviticus, while the small number of first- and second-degree dispensations also appear to relate to marriages permitted under the Levitical code. It would thus seem that, whatever their technical legal status, divine or human, the explicit inhibitions of the Mosaic law on the ‘prohibited degrees’ were still largely regarded as binding.Footnote ⁷⁵

This may not perhaps have been true of all cases in lower courts, where degrees of canonical expertise doubtless varied, but if we turn our attention to those receiving papal dispensations the issue becomes clearer, since before Julius ii’s grant to Henry there were, contrary to Cardinal Adrian's assurances, arguably no absolutely clear-cut examples of a pope's dispensing from the Levitical prohibitions. Nevertheless what appeared to be relevant precedents were often cited by Henry's opponents. Some of these were erroneous, such as the extraordinary claim, made by Fisher among others, that a brother had been allowed to marry his own sister;Footnote ⁷⁶ the same is true of allegations of papally sanctioned bigamy, where the ambiguity of the term may have misled critics.Footnote ⁷⁷

If the errors and myths are discounted the number of cases used against Henry can be reduced to four. One of these was Manuel of Portugal's marriage (1500) to his late wife's sister. This time, unlike the similar proposed union in 1415, the marriage did take place. Yet again, however, it must be noted that this dispensation could not be regarded as breaching the Levitical rules but only the man-made extensions – and rationalisations – of the Fourth Lateran Council.Footnote ⁷⁸

Two cases did indeed appear to contravene the quite explicit Levitical prohibitions of aunt/nephew marriages and that is how historians have characterised them.Footnote ⁷⁹ Margaret Holland had in 1411 been licensed by John xxiii to marry her late husband's half-nephew, Thomas of Clarence, despite Leviticus xviii.14 and xx.20, while, in apparent defiance of Leviticus xviii.12 and xx.19, Joanna of Naples was briefly married to the Neapolitan king, Ferdinand ii, her half-brother's son, who died in 1496. But there are problems with both examples. Both involved half-blood relationships. It is true that canon law treated such unions as equivalent to full-blood ones, but one could argue that the only half-blood sexual relationship explicitly forbidden by Leviticus was that of half-siblings.Footnote ⁸⁰ Again one has to have recourse to ‘implicit assumptions’ to justify categorising these two marriages as contravening Leviticus, though they did at least require (and received) dispensations from the Church. Secondly – a feature that would have delighted Henry had he bothered to investigate the cases – both unions had been barren. Admittedly, Joanna's lasted only a matter of weeks, but Margaret Holland had borne six children (including Henry's great-grandfather) in nine years to her first husband while her second marriage, entered when she was twenty-seven and also lasting nine years, proved childless – exactly the penalty threatened by Leviticus xx.20. Thirdly, the grantors of these concessions were hardly pillars of rectitude. The fifteenth-century John xxiii is not only classified as an antipope but appears to have had an early criminal career that included piracy; the Catholic encyclopedia calls him ‘utterly worldly-minded, ambitious, crafty, unscrupulous and immoral’.Footnote ⁸¹ The same source describes the pontificate of Alexander vi, who allowed Joanna's marriage, as characterised by nepotism and greed.Footnote ⁸² Since it was generally accepted, even by Bishop Fisher, that popes could err,Footnote ⁸³ it is hard to conceive of decisions by the most discreditable pontiffs of the fifteenth century being regarded as somehow providing binding precedents.

The fourth alleged precedent should perhaps, like the first, be ruled out since it could not apply to Henry's union with Katherine at all. Yet both then and more recently it has been used, somewhat surprisingly, to clinch the case against the king. It is thus worth exploring more fully. It has been noted above that Innocent iii’s decree Litteras had usually been taken as insisting that the Levitical injunctions were matters of divine law and could not be dispensed. Though all controversialists, including Henry viii, generally accepted Aquinas's modification of this principle, the king's critics sought to accuse Innocent iii of failing to follow his own dictum in his 1201 decree, Deus qui ecclesiam, by allowing Livonian neophytes to continue to enjoy marriages with their brothers’ widows that they had entered into before their conversion, but only if they had married in accordance with the principles of Deuteronomy xxv.5–6.Footnote ⁸⁴ Harpsfield's charge, echoing Fisher's, was that if such marriages could be allowed to converts for the sake of maintaining the faith, then they should surely be allowed for the purposes of maintaining European peace, as had been the justification of the 1503 bull sanctioning Henry's union with Katherine: either both provided adequate grounds for dispensation or neither did.Footnote ⁸⁵

This contention, however, involves a failure to appreciate the context in which Deus qui ecclesiam was issued and also a serious misunderstanding of the special position of neophytes. Recent Christian conquests, including that of Livonia, had raised several issues concerning the marital status of those seeking Christian baptism. In 1198 Innocent had ruled that converts who had previously married according to ‘the discipline of the Old Law’ (i.e. of Moses) or their own traditions should not be separated.Footnote ⁸⁶ This, however, would seem to confirm the validity of even bigamous or first-degree unions that complied with local customs, so the following year he clarified that only marriages of those related in the second or more remote degrees should be allowed to continue, while polygamists could retain only one wife.Footnote ⁸⁷ Subsequently, in 1201, the bishop of Livonia asked what principle should govern the admission of those who had (before conversion) married their brothers’ widows. The question raised a problem. Such unions had been allowed by implication in 1198 but their status had been clouded by the ambiguous terms of the 1199 judgement, since there were different ways of counting degrees (another issue settled by the 1215 Lateran council). What Innocent then did was basically to clarify and confirm the reference in his 1198 ruling to the ‘Old Law’, authorising the dissolution of any previous marriage to a brother's widow unless the situation conformed to the principles of Deuteronomy. To this he added a rider confirming that, after conversion, no new marriages of this type could be allowed.Footnote ⁸⁸

It is surprising that Fisher and Harpsfield seem to have been unaware of the relevance of the distinction between pagan marriages, which could be valid but in some circumstances might be dissolved (notably by the application of Pauline privilegeFootnote ⁸⁹), and Christian ones, which were not merely valid but were fully sacramental and thus breakable only by death. This established principle lay behind Innocent's earlier rulings and still stands in the present Codex iuris canonici. Footnote ⁹⁰ None of these decisions involved deviation from any element of Christian teaching and Innocent made it abundantly clear that such concessions could not apply to marriages of baptised Christians. In seeking to justify the union of two ‘cradle-Christians’ by the Livonian example, Harpsfield in the sixteenth century and Scarisbrick in the twentieth were making a fundamental category mistake – comparing Christian apples with pagan oranges.

The position should thus have been perfectly clear at the time, but unfortunately we are fishing in muddy waters. When Deus qui ecclesiam was incorporated into the great Corpus iuris canonici by Raymond de Pennafort it was given a misleading rubric, omitting any mention of neophytes and simply stating: ‘It is not permitted to take a brother's wife in marriage and in fact (any who does so) is to be separated, unless the Church otherwise dispenses.’Footnote ⁹¹ The decretal had specifically denied recognition to any convert's future marriage to his brother's widow and ‘dispensed’ from no Christian principle. Nevertheless, those final words, shorn of the text of the judgement, could be read as opening the door to levirate marriages by established Christians, despite Innocent's clear rejection of such intention. It is therefore easily understandable that many should have read Deus qui ecclesiam in the context of what is essentially an editing error in its heading – an error which would have no juridical significanceFootnote ⁹² – and thus concluded that there had been a very relevant precedent for Henry's first marriage.Footnote ⁹³

It is unfortunate that Henry chose not to investigate these cases to support his position, but his own interpretation of natural law prevented him from making use of opponents’ weapons that he could have turned against them.Footnote ⁹⁴ On arguments from precedent, Katherine's supporters could not have wished for a more incompetent adversary. If these cases are taken seriously, however, as they should have been in an impartial and knowledgeable tribunal, Julius ii’s 1503 grant would thus seem to have moved into new territory – dispensing from a perfectly clear and explicit Levitical command as well as ignoring Innocent iii’s insistence that the Deuteronomical exception could definitely not apply to baptised Christians.Footnote ⁹⁵

The above analysis has necessarily limited itself to three issues of principle and has sought to demonstrate that, while not cast-iron, the royal case was made of stronger metal than Henry's critics have often alleged. There was one less sharply debated matter on which the king's view might have been worthy of serious consideration.Footnote ⁹⁶ Most of his other claims could be countered by the citing of sound precedents or canonical practices, including the embarrassing offer of a retroactive dispensation, convalidating the disputed marriage.Footnote ⁹⁷ Yet even if all the positive arguments are added together, they amount only to no more than a strengthening of the ‘historical’ case that the 1503 dispensation should not have been granted. This is not, however, to claim that Henry should also have gained his annulment if the issue been decided in the dispassionate judicial manner for which Katherine had pleaded.Footnote ⁹⁸ Here we enter another field. Even if it had been agreed that a fully informed Julius ii should have thought more seriously about – or even denied – the grant of a dispensation in 1503, the crucial question twenty-five years later for Clement vii and his advisers was whether that decision could or should be rescinded.

Again it is not inconceivable that Henry might have won. Nothing is impossible in history and reality can trump the wildest dreams of satirical imagination. The circumstances that might have allowed such a victory are not hard to picture, especially with a pope who, ever seeking to avoid hard choices, came close to abnegating his appellate authority in this case,Footnote ⁹⁹ a pope who had also hinted that he might solve Henry's succession problems by permitting Princess Mary to marry her half-brother or by allowing Henry to have two wives.Footnote ¹⁰⁰ But the situation hypothesised by the present study is that where a well-informed and objective inquisitorial court, unaffected by external pressures, was examining the case in the light of canonical rulings and procedures, not one where the Church might have piled innovatory Pelion upon pragmatic Ossa.

And here it must be acknowledged that, while a substantial case could be built to support Henry's challenge on the issue of the bull, the fact of that issue had significantly changed the situation and the canonical context within which it might be viewed. On the question of possible rescission of the bull the critics seem to have been right: on balance, precedent would appear to run against the king. Neither a dissolution nor an annulment would seem likely to have been granted. No previous marriage had been ended on the grounds that a pope had acted ultra vires;Footnote ¹⁰¹ nor, as David d'Avray notes, ‘was any dispensation to my knowledge … ever revoked because the alleged political ills that it was meant to cure were later shown to be imaginary’.Footnote ¹⁰² The application of the principle of dissimulatio – the turning of a blind eye to the legal weaknesses of a long-standing union in view of the greater good that would accrue by leaving well alone – could also have favoured the queen's cause;Footnote ¹⁰³ a similar canonical rule held that ‘doubtful cases ought to be resolved in favour of the marriage’.Footnote ¹⁰⁴ Most significant of all might be the maxim asserted by Gilles Bellemère in the count of Armagnac's case in 1392, that if the pope asks for advice before taking action, he should be told that the dispensation should not be granted; however, if he has already acted, then he should not be opposed.Footnote ¹⁰⁵ Thus even if Henry had succeeded in convincing an impartial court of the impropriety of Julius ii’s granting the 1503 dispensation, all the huffing and puffing of his lengthy campaign might well have gained him not that triumphant solution for which he had striven but merely the cold comfort of a Pyrrhic victory.