Knight was too sanguine. The Emperor, finding the Pope’s detention as a prisoner embarrassing, allowed him, on the 9th of December, to escape to Orvieto, where he was apparently at liberty; but he was only in a larger cage, all his territories being occupied by Imperial troops, and he himself watched by the General of the Observants, and warned at his peril to grant nothing to Catherine’s prejudice. Henry’s Secretary followed him, saw him, and obtained something which on examination proved to be worthless. The negotiations were left again in Wolsey’s hands, and were pressed with all the eagerness of a desperate man.
Pope Clement had ceased to be a free agent. He did not look to the rights of the case. He would gladly have pleased Henry could he have pleased him without displeasing Charles. The case itself was peculiar, and opinions differed on the rights and wrongs of it. The reader must be from time to time reminded that, as the law of England has stood ever since, a marriage with a brother’s widow was not a marriage. As the law of the Church then stood, it was not a marriage unless permitted by the Pope; and according to the same law of England the Pope neither has, nor ever had, any authority to dispense with the law. Therefore Henry, on the abstract contention, was in the right. He had married Catherine under an error. The problem was to untie the knot with as little suffering to either as the nature of the case permitted. That the negotiations were full of inconsistencies, evasions, and contradictions, was natural and inevitable. To cut the knot without untying it was the only direct course, but that all means were exhausted before the application of so violent a remedy was rather a credit than a reproach.
The first inconsistency was in the King. He did not regard his marriage as valid; therefore he thought himself at liberty to marry again; but he did not wish to illegitimatise his daughter or degrade Catherine. He disputed the validity of the dispensation of Julius II.; yet he required a dispensation from Clement which was equally questionable to enable him to take a second wife. The management of the case having reverted to Wolsey, fresh instructions were sent to Sir Gregory Casalis, the regular English agent at the Papal court, to wait on Clement. Casalis was “bid consider how much the affair concerned the relief of the King’s conscience, the safety of his soul, the preservation of his life, the continuation of his succession, the welfare and repose of all his subjects now and hereafter.” The Pope at Orvieto was personally accessible. Casalis was to represent to him the many difficulties which had arisen in connection with the marriage, and the certainty of civil war in England should the King die leaving the succession no better provided for. He was, therefore, to request the Pope to grant a commission to Wolsey to hear the case and to decide it, and (perhaps as an alternative) to sign a dispensation, a draft of which Wolsey enclosed. The language of the dispensation was peculiar. Wolsey explained it by saying that “the King, remembering by the example of past times what false claims [to the crown] had been put forward, to avoid all colour or pretext of the same, desired this of the Pope as absolutely necessary.” If these two requests were conceded, Henry undertook on his part to require the Emperor to set the Pope at liberty, or to declare war against him if he refused.
A dispensation, which was to evade the real point at issue, yet to convey to the King a power to take another wife, was a novelty in itself and likely to be carefully worded. It has given occasion among modern historians to important inferences disgraceful to everyone concerned. The sinister meaning supposed to be obvious to modern critics could not have been concealed from the Pope himself. Here, therefore, follow the words which have been fastened on as for ever fatal to the intelligence and character of Henry and his Ministers.
The Pope, after reviewing the later history of England, the distractions caused by rival claimants of the crown, after admitting the necessity of guarding against the designs of the ambitious, and empowering Henry to marry again, was made to address the King in these words:27—
“In order to take away all occasion from evil doers, we do in the plenitude of our power hereby suspend hâc vice all canons forbidding marriage in the fourth degree, also all canons de impedimento publicæ honestatis preventing marriage in consequence of clandestine espousals, further all canons relating to precontracts clandestinely made but not consummated, also all canons affecting impediments created by affinity rising ex illicito coitu, in any degree even in the first, so far as the marriage to be contracted by you, the petitioner, can be objected to or in any wise be impugned by the same. Further, to avoid canonical objections on the side of the woman by reason of former contract clandestinely made, or impediment of public honesty or justice arising from such clandestine contract, or of any affinity contracted in any degree even the first, ex illicito coitu: and in the event that it has proceeded beyond the second or third degrees of consanguinity, whereby otherwise you, the petitioner, would not be allowed by the canons to contract marriage, we hereby license you to take such woman for wife, and suffer you and the woman to marry free from all ecclesiastical objections and censures.”
The explanation given by Wolsey of the wording of this document is that it was intended to preclude any objections which might be raised to the prejudice of the offspring of a marriage in itself irregular. It was therefore made as comprehensive as possible. Dr. Lingard, followed by Mr. Brewer, and other writers see in it a transparent personal application to the situation in which Henry intended to place himself in making a wife of Anne Boleyn. Two years subsequent to the period when this dispensation was asked for, when the question of the divorce had developed into a battle between England and the Papacy, and the passions of Catholics and Reformers were boiling over in recrimination and invective, the King’s plea that he was parting from Catherine out of conscience was met by stories set floating in society that the King himself had previously intrigued with the mother and sister of the lady whom he intended to marry; precisely the same obstacle existed, therefore, to his marriage with Anne, being further aggravated by incest. No attempt was ever made to prove these charges; no particulars were given of time or place. No witnesses were produced, nor other evidence, though to prove them would have been of infinite importance. Queen Catherine, who if any one must have known it if the accusation was true, never alludes to Mary Boleyn in the fiercest of her denunciations. It was heard of only in the conversation of disaffected priests or secret visitors to the Spanish Ambassador, and was made public only in the manifesto of Reginald Pole, which accompanied Paul III.’s Bull for Henry’s deposition. Even this authority, which was not much in itself, is made less by the fact that in the first draft of “Pole’s Book,” sent to England to be examined in 1535, the story is not mentioned. Evidently, therefore, Pole had not then heard of it or did not believe it. The guilt with the mother is now abandoned as too monstrous. The guilt with the sister is peremptorily insisted on, and the words of the dispensation are appealed to as no longer leaving room for doubt. To what else, it is asked, can such extraordinary expressions refer unless to some disgraceful personal liaison?
The uninstructed who draw inferences of fact from the verbiage of legal documents will discover often what are called “mare’s nests.” I will request the reader to consider what this supposition involves. The dispensation would have to be copied into the Roman registers, subject to the inspection of the acutest canon lawyers in the world. If the meaning is so clear to us, it must have been clear to them. We are, therefore, to believe that Henry, when demanding to be separated from Catherine, as an escape from mortal sin, for the relief of his conscience and the surety of his succession, was gratuitously putting the Pope in possession of a secret which had only to be published to extinguish him and his plea in an outburst of scorn and laughter.
There was no need for such an acknowledgment, for the intrigue could not be proved. It could not be required