Wolsey entered warmly into the project, but most of the bishops whom he consulted were not anxious to assist him; and what was still more serious Fisher, the learned and saintly Bishop of Rochester, declared himself from the beginning a determined opponent. The capture of Rome by imperial troops (1527) made it imperative that the terms of the French alliance should be completed at once, and Cardinal Wolsey set out for Paris as the representative of England. While Wolsey was absent in France arranging the terms of the alliance, Anne Boleyn took occasion to warn Henry that his great minister was unreliable, that in his heart he was opposed to the separation, and that without his knowledge or consent negotiations should be opened directly with the Roman court. An agent was dispatched to Rome and succeeded in securing an interview with Clement VII., after the latter had made his escape from Rome to Orvieto (December 1527). It was contended on behalf of the king that the dispensation granted by Julius II. was null and void. In proof of this it was contended: that in the Bull it had been stated that Henry desired to marry Catharine, and that the marriage was necessary for preserving peace between England and Spain, both of which statements, it was alleged, were false; that at the time the disposition was granted Henry was only twelve years of age and therefore incapable of accepting it; that several persons mentioned in the Bull, as for example, Queen Isabella and Henry VII., had died before the marriage took place; and lastly that when Henry reached the age of puberty he had protested against the marriage, thereby renouncing for himself the favours granted in the Bull of dispensation.[5] Later on it was contended, by those who favoured the separation, that the dispensation was issued by the Pope on the supposition that the marriage between Arthur and Catharine had not been consummated, and that therefore, since this condition was not verified, the dispensation was invalid. But here they were faced with the difficulty that the great weight of evidence favoured the view that the marriage had not been consummated; that in any case the dispensation was ample enough to cover both the impediment of affinity and public honesty; and that, whatever might be said against the Bull of dispensation, no such objection could be urged against the brief said to have been forwarded by the Pope to the court of Spain.[6] As the English agents had been instructed to seek not merely the appointment of a commission to declare the invalidity of the dispensation, and consequently of the marriage, but also for a dispensation which would permit the king to marry a woman related to him in the first degree of affinity, whether the affinity had been contracted by a lawful or unlawful connexion, it was thought prudent not to lay stress on the argument that marriage with the deceased brother's wife was prohibited by the divine law, and that, therefore, the Pope could not grant a dispensation such as had been issued by Julius II. At a later date great stress was laid upon this argument.
Clement VII., while not unwilling to grant the dispensation requested,[7] did not think it consistent with his own honour or that of the king, to grant the commission according to the terms drawn up for him in England. A new embassy, consisting of Edward Foxe, and Dr.
Stephen Gardiner, Wolsey's secretary, was dispatched, and arrived at Orvieto in March 1528. The victorious progress of the French armies in Italy (1527-28), by relieving Clement VII. from the pressure of the imperial party, favoured the petition of Henry VIII. Arguments drawn from canon law and from theology were driven home by Gardiner with a fluency and wealth of knowledge that astonished the papal advisers, and when arguments failed, recourse was had to threats of an appeal to a general council, and of the complete separation of England from the Holy See. The decretal commission demanded by the English ambassadors was, however, refused; but, in its place, a decree was issued empowering Cardinal Wolsey and Cardinal Campeggio to try the case in England and to pronounce a verdict in accordance with the evidence submitted to them. As this fell very far short of what had been demanded by the English envoys, new demands were made for a more ample authority for the commission, and in view of the danger that threatened the Catholic Church in England, Clement VII. yielded so far as to promise that he would not revoke the jurisdiction of those whom he had entrusted with the trial of the case (July 1528).[8]
Meanwhile news of what was in contemplation was noised abroad. Many of the English merchants, fearing that hostility to the empire would lead to an interruption of their trade especially with the Netherlands, detested the new foreign policy of the king, while the great body of the people were so strongly on the side of Catharine that were a verdict to be given against her a popular rebellion seemed inevitable.