Our Mutual Friends Tom and Alison send along an article about Rabbi Jacob Rafael, one of the experts consulted by Henry’s commission on his annulment from Katherine.
So I thought I’d use this opportunity to talk a little (a lot) about Jews, Henry, and levirate marriage.
Not to blow your mind, but almost no one in Europe or England liked the Jews very much up until [it’s still happening]. Edward I gave the Jews in England less than four months to gather up their little things (but not their homes) and go. (Edward was mired in a very poor economy, and one of his policies that he hoped would boost the situation was to ban lending money on interest. Lending money to Gentiles* was one of the ways Jews were able to make a living, and when this policy went through, it not only hurt the Jews in England; it also didn’t help the economy either. As so often happens, when one is faced with the choice of accepting responsibility or blaming a Jew, Edward did the Christian thing and blamed the Jews.)
[* Halachic law (i.e., Jewish law) forbids Jews from lending money with interest to other Jews, but does not prohibit Jews lending money to those outside their religion with interest.]
This didn’t mean that there were no Jews ever again in England. It did mean that those Jews who stayed got really good at “code-switching.”* Code-switching is a thing minority and marginalized communities do: you have a way of speaking among your own group, and you have a completely different way of speaking, and being, in mixed company. It…’s not great? Think of how much effort it takes to just be yourself. Now, add to that an entire roster of other people you have to be depending on the situation.
[* This email is already very long, so I won’t go into a lot of detail about marranos, conversos, and crypto-Jews except to say that in my Christian communities, Jews were required to profess public Christianity while practicing their religion in secret.]
When we jump to Henry VIII, we do so with only a small population of Jews in England, and no visible rabbis to speak of. (Because that’s one way to get arrested and other terrible things.) And Henry’s main argument for annulling his marriage is that, because he married his brother’s widow, he is committing incest. Ironically, Henry has to go to the Torah for this.
Because there are no public rabbis in England, Henry has to first turn to an Englishman, Robert Wakefield, who was the crown’s chief Hebraist. And this is an uncomfortable piece of religious sociology that’s important to make explicit: Most of Christianity is anti-semitic. But Christianity needs the Torah especially, if not the Tanakh, to bolster its messianic claims for Jesus.* (By the way, for my non-Jews in the audience: it’s a best practice to not call the Old Testament the Old Testament. That’s a bit of a microaggression, because for Jews living today, the books in the Old Testament aren’t old at all, and certainly haven’t been appended with anything new. You can instead say, “The Jewish Bible;” or “The Tanakh,” if you want to mean the entirety of Jewish scripture; or “The Torah,” if you just mean the first five books: Genesis, Exodus, Leviticus, Numbers, Deuteronomy.) So while England wasn’t especially keen on Jews being Jews in their country, Henry needed Leviticus to make his religious argument for the annulment. And he starts by asking Christian scholars of Hebrew, like our friend Robert Wakefield, mentioned above, to confirm that Henry has his ducks in a row.
[* In the first minutes of what would become Christianity, Christianity can uneasily be called an “offshoot” of Judaism. It’s not a different form of Judaism; but among the first Christians were Jews who believed the messianic claims of Jesus, and Jesus’s followers. An interesting modern analogue is Mormonism and Christianity. By and large, conservative Christianity does not count Mormonism among the Family of Christ. Mormonism did exactly what the Christians did: Mormons took Christian scripture, with its messianic Jesus, and embroidered the edges and cross-stitched the middle so that Mormons believe in Jesus, but a Jesus who visited the Americas. There’s also an entire component of the Mormon faith that believes in planets for adherents of the faith and that’s really all I can comfortably say because Mormonism is not my lane.]
The question at stake is: Did Henry commit incest with his brother’s wife by marrying her? The Pope had to give a special dispensation to allow the marriage, so there were at least some qualms about the nature of the marriage. But they were married nonetheless. And now, Henry doesn’t want to be, so he needs to contradict the Pope.
Like a lot of religious writing, the question of what to do with your brother’s wife when he has died and you are still left is…complicated. And a little contradictory.
Deuteronomy 25:5-6 describes Levirate Marriage:
“When brothers reside together, and one of them dies and has no son, the wife of the deceased shall not be married outside the family to a stranger. Her husband’s brother shall go in to her, taking her in marriage, and performing the duty of a husband’s brother to her, and the firstborn whom she bears shall succeed to the name of the deceased brother, so that his name may not be blotted out of Israel.” [NRSV]Deuteronomy 25:5-6 (NRSV)
It also describes what can happen if the surviving brother does not want to marry his brother’s widow. Deuteronomy 25:7-10:
But if the man has no desire to marry his brother’s widow, then his brother’s widow shall go up to the elders at the gate and say, “My husband’s brother refuses to perpetuate his brother’s name in Israel; he will not perform the duty of a husband’s brother to me.” Then the elders of his town shall summon him and speak to him. If he persists, saying, “I have no desire to marry her,” then his brother’s wife shall go up to him in the presence of the elders, pull his sandal off his foot, spit in his face, and declare, “This is what is done to the man who does not build up his brother’s house.” Throughout Israel his family shall be known as “the house of him whose sandal was pulled off.” [NRSV]Deuteronomy 25:7-10 (NRSV)
When Pope Clement VII was permitting Henry’s marriage to Arthur’s widow, Katherine, he was doing so under the rules of Levirate Marriage. We’ll look more at this in a bit.
But there are also some Torah passages that contradict — or seem to contradict — what’s said in Deuteronomy. If we look at Leviticus 18:16, we find this:
You shall not uncover the nakedness of your brother’s wife; it is your brother’s nakedness. [NRSV]Leviticus 18:16 (NRSV)
And Leviticus 18:20 says this:
You shall not have sexual relations with your kinsman’s wife, and defile yourself with her. [NRSV]Leviticus 18:20 (NRSV)
So initially, when Henry was married to Katherine, it was through the lens of a Deuteronomical Levirate union. And later, when Henry wanted to annul his marriage to Katherine, it was through a Levitical lens: what Henry and Katherine did was a sin (unconsciously, since neither would have knowingly sinned in the eyes of God [insert a Henry-directed eye-roll here]), and that sin was being punished by God reproductively. (Which is one of the many fun ways God interacts with humans in the Tanakh: he’s very hands-on when it comes to women’s fertility.)
In Wolf Hall, Henry says:
‘I do not want to hear the word dispensation,’ Henry says. ‘I do not want to hear you mention what you call my marriage. The Pope has no power to make incest licit. I am no more Katherine’s husband than you are.’Wolf Hall, Part 5, “Anna Regina”
Let’s look at the verses the Pope used to make Henry’s marriage to Katherine legal in the eyes of Christendom.
“When brothers reside together, and one of them dies and has no son, the wife of the deceased shall not be married outside the family to a stranger. Her husband’s brother shall go in to her, taking her in marriage, and performing the duty of a husband’s brother to her, and the firstborn whom she bears shall succeed to the name of the deceased brother, so that his name may not be blotted out of Israel.”Deuteronomy 25:5-6 (NRSV)
1) Did the brothers, Henry and Arthur, reside together? Yes.
2) Did one of them die? Yes.
3) Did Arthur die leaving no son? Yes.
So this means, per Deuteronomy, that Katherine cannot be married outside the family to a stranger.
4) Did Henry take Katherine in marriage? Yes. (But it took a while, and at one point Henry VII thought of marrying Katherine.)
5) Did Henry perform the duty of a husband’s brother? Boy did they try.
And this is where the Pope’s case gets a little flimsy. These Deuteronomical laws were written at a time before the Western concept of kings and monarchs were in practice at all. Henry isn’t just a brother; he’s the heir apparent to the throne of England. Any children he has would, under English custom and English law, be his own children, and would be eligible for the English throne.
But Deuteronomy sees Levitical marriage as a way to carry on the line/name of the deceased brother. And when we try to line up Levirate marriage with English dynastic rules, the first child born of Katherine and Henry would, in the eyes of the rabbis, be Arthur’s, and should have Arthur’s name, and, if we’re going to get deep into the grit, Henry would then only be Regent until that child came of age.
The first child Katherine and Henry had was a son, Henry, Duke of Cornwall. He was born on 1 January and died, 52 days later, on 22 February. The child isn’t named for Arthur. The only surviving child of Henry and Katherine is Mary I. (She, as you’ll soon notice using context clues, is also not named Arthur. Or Arthurina.)
Who got it wrong? Well, everyone. The Pope, the cardinals, and Henry. The marriage was not a Levirate marriage. Henry’s marriage, which rested on verses in Deuteronomy, should not have been allowed.
But the arguments from Leviticus that Henry hoped to absolve him of his mistake — the ones that prohibit seeing the wife of one’s brother or kinsman naked — aren’t solid ones either. There are arguments that these are prohibitions against adultery while the brother or kinsman is still alive. And Arthur, as we know, was dead.
(Like all religion, you will find as many people agreeing with my position as you will find people not agreeing. It’s fine.)
What Henry wants is an answer to his appeal to authority — in this case, God: either the God of the Jews or the Christian God. And what he repeatedly gets are answers that seem more like platitudes than structurally sound defenses for the position he wants to take.
So he makes his own religion. And everything went back to normal and no one suffered.*
[* Nothing went back to normal and so many people suffered.]