Queries on Henry VIII's Divorce

A few brave souls have taken the time and trouble to read through my 2009 history thesis on the canon law of Henry VIII's divorce; for this I thank you! Now, two questions have been posed regarding some of my conclusions/research, which I intend to answer here to the best of my ability. Those who are unfamiliar with this issue may be a little lost - please review here and here for more background on the canonical issues surrounding the divorce and the problems posed by various interpretations of Leviticus and Deuteronomy.

First, regarding impeding vs. diriment impediments and the impediment of public honesty, one person writes:

I just read your thesis on the validity of the marriage of Henry VIII and Catharine of Aragon and I must say that it is very good.

However I do have one question concerning it. You brought up at the end the question of public honesty and whether Henry could have used it to show that his marriage was invalid. Your conclusion is that it is unlikely that Clement would have agreed that because the marriage was never consummated that a dispensation for the sake of public honesty would be required and thus render the marriage invalid.

My question is; is public honesty a 'impeding (or prohibitory) impediment' 'which renders a marriage illegal but not absolutely void. The impediment is said to "impede" the marriage so long as it exists, but once it is taken away, a valid marriage remains insofar as the obstacle has been removed.' Or is it a 'diriment impediment' which 'renders a marriage null and void from the beginning, unlike an impeding impediment which merely makes it illegal.'

What resolution would there be to the problem if the marriage was only 'impeding'?

Good question - public honesty was seen as a diriment impediment that would have rendered the marriage absolutely invalid. However, it was not a diriment impediment according to natural law; if it were, the pope would have had no power to dispense from it. The fact that popes did dispense from it, usually alongside a dispensation for affinity, suggests that the Church never thought of public honesty as something pertaining to natural law, but more to positive ecclesiastical law (especially since much of this issue was bound up with custom, which could vary from region to region, as in the case of Innocent III, who dispensed recently converted Latvians to marry their brother's wives irrespective of issues of public honesty).

What if the problem with Henry's marriage had been merely an impeding impediment and not a diriment one? This I do not know - I am uncertain what steps the Church would have taken back then for a marriage that was deemed illegal but not invalid. Obviously (re)marriage would not have been permissible since they would have been already validly married. My guess is that sacramental confession and a proscribed public penance would have been in order, probably followed up by an papal bull declaring the marriage honest and legal once it had been confessed and Henry had made appropriate satisfaction.

Another person writes regarding the proper reconciliation of Deuteronomy with Leviticus regarding marrying a brother's wife:

From the moment I first read Leviticus 20:21 my first instinct was that it referred to adultery, almost in the exact same wording as does Lev 18 which continually admonishes us not to "uncover the nakedness" of close relatives nor those married to close relatives even if they are not "blood" relations. However, in the case that a blood relative should die, like a brother, since his wife has become one with the family, then it is proper duty for his brother to, in a sense, "take the place" of his brother to build up progeny for him.

I understand your argument of "redundancy" against the adultery argument, but isn't that what scripture is all about? To hammer the point in until us thick-brained dummies get it? God and his prophets repeatedly admonish us to following His commandments throughout all the scriptures to remind us of their great importance.

To me THIS reconciles the contradiction. Henry the VIII got it wrong; or he just REALLY wanted an excuse for a divorce. 

First let's tackle this issue of "redundancy." In my original post on this issue, I made the following observation: Some could argue that Leviticus 20:21 simply forbids intercourse with a brother's wife while the brother was still living, thus leaving freedom for a younger brother to marry the wife of a deceased brother who had died without issue. This argument was supported by Alexander of Hales as well as St. Albert the Great, but it has one major weakness, being its redundancy. To say you can't have intercourse with your brother's wife while he is still alive is to merely condemn adultery, and adultery is condemned already in many other places, rendering the specific prohibition of Leviticus superfluous.

What makes the argument "redundant"? The argument is redundant not just because adultery is condemned already in Scripture; of course, Scripture often hammers away at the same thing, in many different ways. But it is redundant because of the level of specificity of gives. For example, suppose we had a law that said, "Thou shalt not break the window of your next door neighbor's house, sneak in and steal his potted plant," but the real meaning of the law was just to condemn stealing in general. If simple stealing was what was being condemned, why the extra details about breaking the window and stealing the plant? We could say that this law is redundant - it uses an unnecessary amount of specificity to condemn something already broadly condemned elsewhere.

Similarly, if adultery is all that is condemned in Leviticus is adultery, then why the specification about it being a brother's wife(why not anybody's wife?)- also, why the phrase "they shall be childless"? Usually, when one is committing adultery, they do not want children from the adulterous union anyway. This context implies that the man is not just committing adultery with the wife, but is actually taking her to be his own wife.

I do think you are right that Henry really just wanted an excuse for a divorce, and I agree that your interpretation would still resolve the difficulty, but it would leave too many points unanswered. The solution I propose is the one adopted by some of the most eminent fathers and theologians and the one that the Pope Clement did in fact use in Henry's case. Thus Leviticus is seen to be forbidding a man to marry his brother's wife under any circumstances - whether she was a widow or not - with one important exception: if that brother had died without issue. This interpretation has the benefit of being true to the context of each Scripture, does not rob Leviticus of its binding nature but gives full room for a man to fulfill the obligation of Deuteronomy. Thus, Deuteronomy can be seen as the one exception to the general rule laid out in Leviticus.

Thanks for all the questions and the interest in this issue!