From Rite to Right: How Holy Days Became a Natural Right in Medieval England by Justin Scott Kirkland, B.A. a Thesis in History

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From Rite to Right: How Holy Days Became a Natural Right in Medieval England

Justin Scott Kirkland, B.A.

A Thesis

History

Submitted to the Graduate Faculty of Texas Tech University in Partial Fulfillment of the Requirements for the Degree of

Master of Arts

Approved

Dr. John Howe Chair of Committee

Dr. Abigail Swingen

Dr. Bruce Brasington

Dominick Casadonte Interim Dean of the Graduate School

Texas Tech University, Justin Scott Kirkland, May 2013

Acknowledgements

Thanks be to Almighty God for all His guidance and blessings. This thesis is dedicated to my father, mother, and sister who have always been caring and supportive. I must acknowledge the influence of all the teachers I have had throughout my life for imparting me with the knowledge and skills that have culminated in this thesis.

I am indebted to several people that have allowed me to construct this thesis. I would first like to express my deep gratitude to the chair of my committee, Dr. John Howe. He has been an integral part in the construction of this thesis, from suggesting the topic of holidays as rights to teaching me much about medieval history. It must be noted that he has been of great assistance with the Latin translations that are used in this thesis. When my meager ability at translating medieval Latin passages resulted in line after line of nonsense, Dr. Howe was willing to expend much time and energy translating various primary sources, and for that I am grateful. Of course, I take full responsibility for any mistakes in the translation.

I am also grateful for the tremendous assistance Dr. Abigail Swingen has provided. She has always been a source of support ever since I was an undergraduate in her Tudor-Stuart England class, willing to read and reread my (overly long) writing sample for graduate school when she did not have to. During the writing of this thesis, she was also willing to read chapter after chapter (all of which were also overly long) and offer very helpful suggestions even though the topic was before her era of expertise. She has kindly and patiently assisted me as an undergraduate and graduate student, and I am deeply appreciative for having her as a professor.

I must also thank Dr. Bruce Brasington of West Texas A&M University for his assistance with this project. He agreed to be on the committee of a random grad student at a different university, was forced to read a long thesis, and then travelled two hours to Lubbock for the thesis defense. He has provided insightful suggestions that have had a direct impact on the final form this thesis has taken. It was validating to know that an expert in the field of medieval canon law did not find my thesis dealing with legal history completely objectionable.

Texas Tech University, Justin Scott Kirkland, May 2013

I would also like to thank the Helen Jones Foundation and the Department of History at Texas Tech University for graciously bestowing a Helen Jones Foundation fellowship upon me. I was able to study abroad in 2013 at Manchester Metropolitan University in England due to generous amounts of funding from the Department of History and Study Abroad Office at Texas Tech. With their support I was able to consult sources at the British National Archives (London), the John Rylands Library (The University of Manchester), the Borthwick Institute for Archives (The University of York), and York Minster Library. I must also extend thanks to my fellow graduate students in the department for camaraderie and good times over the past three years.

Justin Scott Kirkland Lubbock, Texas April 6, 2013 Feast of Pope St. Sixtus I

Quid enim prodest homini, si mundum universum lucretur, animae vero suae detrimentum patiatur? —Matthaeum XVI:XXVI

Non est diuturna possessio, in quam gladio inducimur: beneficiorum gratia sempiterna est. —Quintus Curtius Rufus Historiae Alexandri Magni VIII.VIII.XI

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Texas Tech University, Justin Scott Kirkland, May 2013

Table of Contents

Acknowledgements………………………………………………………………………ii

Abstract…………………………………………………………………………………..vi

I. Introduction……………………………………………………………………………1 Historiography of Medieval Natural Rights Theories…………………………….4 Historiography of Medieval Feasts………………………………………………11 The Significance of Feasts……………………………………………………….16 The Medieval Concept of Work…………………………………………………19 Discussion of Sources……………………………………………………………23 Chapter Layout and Citation Styles……………………………………………...25

II Christianity, Anglo-Saxon England, and Feasts………………………………….28 Christianity in England and the Anglo-Saxon Church…………....………………..28 From Pagan to Christian Feasts………………………………………………….30 Folklaw and Anglo-Saxon Legal Institutions...... ……………………………32 Anglo-Saxon Feast Laws………………………………………………………...35 Trends……………………………………………………………………………53 Conclusion……………………………………………………………………….57

III. Post-Conquest Feast Laws and Jurisdiction……………………………………..59 The Anglo-Norman Church……………………………………………………...61 The Decretum of Gratian and Canon Law……………………………………….72 The English Common Law………………………………………………………77 The Thirteenth Century Sabbatarian Movement…………………………………81 Conclusion……………………………………………………………………….90

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IV The Natural Law Basis of Holy Days……………………………………………..94 Feasts and the Cycles of Nature…………………………………………………94 The Legal Basis for Keeping Holy Days………………………………………...97 Conflation of Sabbath Non-Sabbath Feasts…………………………………….104 The Purpose of Feasts in Natural Law………………………………………….108 Hallow Thine Holy Day………………………………………………………...117 Conclusion……………………………………………………………………...123

V. Holy Days as Rights………………………………………………………………..124 Servile Work……………………………………………………………………126 Violations of Servile Work Restrictions…………………………………...... 129

Quia Necessitas Non Habet Legem: Necessity and Feasts……………………..148 Servile Work Exceptions and Banquets………………………………………...153 Economic Policies………………………………………………………………157 The Right to Feasts: From Custom or Nature?.………………………………...164 The Question of Renunciation………………………………………………….173 Conclusion……………………………………………………………………...184

VI. Epilogue……………………………………………………………………………185 Why Holy Days Were Not Explicitly Called Natural Rights…………………..188 The Significance of the Medieval Right to Holy Days…………………………191 The Influence of the Right to Holy Days on History…………………………...194 The Modern Conception of the Right to Holy Days……………………………200

Bibliography…………………………………………………………………………...202

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Abstract This thesis explores medieval English holy days using the theoretical framework

of medieval natural rights established by Brian Tierney, R. H. Helmholz, and Kenneth

Pennington. It suggests that holy days were invented as natural rights in the Middle Ages based on evidence from summae and from prosecutions of feast nonobservance by ecclesiastical courts. The right allowed all people in society to observe holy days by abstaining from servile work. This had great implications on social relations in medieval society because it limited the power masters had over their servants.

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Chapter I Introduction

Statute §51.911 of the Texas Education Code states: “An institution of higher

education shall excuse a student from attending classes or other required activities,

including examinations, for the observance of a religious holy day, including travel for

that purpose. A student whose absence is excused under this subsection may not be

penalized for that absence and shall be allowed to take an examination or complete an

assignment from which the student is excused within a reasonable time after the

absence.”1

This law affirms that college students in the state of Texas have an overriding right to participate in any holy days of their religion, even if they occur during days upon which their university is in session. Essentially, it allows students to “cut class” without penalty to observe holy days. This law is not some newly fabricated initiative by

Christian conservatives, but actually reflects an idea originating in the Middle Ages. In fact, several components in the way this Texas law is framed derive from ways medieval writers wrote about the right to festivals (feriae). The law does not explicitly declare that there is a right to holy days, though that is essentially what it assumes, similar to the way in which medieval writers tended to refrain from directly calling holy days a natural right

(ius naturale), even though they recognized and treated them as such. The law further refrains from listing all the holy days which students may acceptably observe. An individual’s religion establishes what days are legitimate holy days; in the same way that

1 Texas Education Code, §51.911. Vernon’s Texas Codes Annotated: Education Code, Sections 30.001 to 51 (St. Paul, MN: Thomson West, 2006), 800-801.

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the medieval Church dictated which ones were holy. The Texan law does not claim to

establish the human right to observe holy days, but merely extends legal protection to a

religious right which inheres in each individual.

The right to holy days is also protected by the United Nations. Article 24 of The

Universal Declaration of Human Rights adopted December 10, 1948 declares, “Everyone

has the right to rest and leisure, including reasonable limitation of working hours and

periodic holidays with pay.”2 At the heart of both the Texas law and UN declaration is a

recognition that each individual has a right to observe certain days without participating

in everyday activities. Medieval writers believed that one of the purposes of holy days

was to provide a respite from work, a concept expressed by the United Nations article.

The only real difference between these two pieces of legislation is that the United Nations

article does not limit itself to holy days, though it clearly was designed with religious

holy days in mind, but attempts to go further by using the word “holiday” (which itself is

derived from the word “holy day”). While there are visible and significant differences

between Texas laws and United Nations declarations, on the issue of holidays both

entities are in rare agreement thanks to the common origin of the right in the Middle

Ages.

This present study attempts to shed light on that common origin. Its purpose it

not to survey the evolution of feasts from the Roman Empire to modern times, though that would be an interesting, albeit lengthy, study in itself. Rather, it is about the transformation of holy days from a mere rite or ritual in the Early Middle Ages (ca. 476-

2 United Nations General Assembly, The Universal Declaration of Human Rights, Res. 217 A (III), (December 10, 1948), Article 24, in The Impact of the Universal Declaration of Human Rights, United Nations Department of Social Affairs (New York: United Nations Publications, 1951), 36-41.

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1000) to a natural right of people by the end of the High Middle Ages (ca. 1000-1300).

This study primarily explores the development of the right to holy days in England,

though sources from other parts of Europe are utilized as well when they shed light on the

English development. The availability of medieval English sources from the Early

Middle Ages to the Reformation allows the development of holy days to be traced in

great detail. Furthermore, the creation of the Church of England in the sixteenth century both continued and changed attitudes toward holidays. The study applies the theoretical

framework of the invention of medieval natural rights, elucidated by scholars such as

Brian Tierney and R. H. Helmholz, to various types of medieval sources about holy days.

Throughout this study the terms “holy days,” “holidays,” “festivals,” and “feasts”

will be utilized interchangeably to refer to those days set apart from other days of the year

through their special association with a specific holy person or event which makes them

something more than ordinary days. It is important to note that although the term “feast” also connotes a grandiose meal or banquet, this study primarily deals with holy days, not with their associated celebrations. The Latin terms “feriae” (festivals), “festa” (feasts), and “festa ferianda” (major holy days which all people ought to observe with cessation of labor and attendance at church) will occasionally be utilized in lieu of their English equivalents.

It must be emphasized that this study primarily deals with the major feasts of the

Christian year. This is due to the fact that if there was a right to feasts, it would be especially concerned with the major feasts. It was in the thirteenth century that lists of

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feasts were created which categorized them according to importance.3 Generally, three

types of feasts were differentiated. The minor feasts which were not observed by everyone with all due solemnities were classified as “festa simplex” (simple feasts) and

“festa semiduplex” (semi-double feasts). The major feasts at the apex of the lists were classified as “festa duplex” (double feasts) since they were to be observed by all with the most solemnities. This study will not necessarily focus on a specific list of days labeled festa duplex, but will instead refer to some of the basic feasts which were common to the vast majority of lists, such as Christmas, Easter, Whitsun (Pentecost), the feasts of the

Virgin Mary, the feasts the Apostles, and feast of St. Peter and St. Paul. This study is not intended to discuss these major feasts in specific detail, but rather to discuss rights to

celebrate major feasts.

Historiography of Medieval Natural Rights Theories

The right to observe holy days originated in the Middle Ages, like the right to

freedom in marriage, welfare, and a fair trial. Although implicit in Christian doctrine, it

became more explicit in Western Christendom with the development of legal science and

canon law in the late twelfth and thirteenth centuries. While many are under the false

impression that natural rights were only a development of the early modern era, such as

Leo Strauss who argued a modern theory of individual rights first emerged in seventeenth

century England,4 a tremendous amount of scholarly research in recent decades has

3 C. R. Cheney, “Rules for the Observance of Feast-Days in Medieval England,” Bulletin of the Institute of Historical Research 34, no. 90 (November 1961): 117-147. 4 Leo Strauss, Natural Rights and History (Chicago: University of Chicago Press, 1953), 182-183. Strauss differentiates between a classical natural right, which emerged in the philosophical tradition of ancient Greece, and a modern natural right which emerged in the seventeenth century. According to Strauss, classical natural rights are derived from natural duties instead of directly from natural law as Hobbes and Locke argued. This difference between the two mainly lies in the fact that modern natural rights theories

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proven that the concept of natural rights actually emerged in the Middle Ages. Thus, in

order to fully understand the theoretical framework upon which the right to holy days, or

feasts, is based, it is necessary to provide a historiography of recent influential

scholarship on medieval rights.5

The origin of the concept of natural rights has been a topic of scholarly research

and debate for well over a century. In the late nineteenth century some scholars identifited Protestantism as the force behind natural rights.6 In the twentieth and twenty- first centuries others found earlier antecedents. Odon Lottin concentrated on natural law, natural right, and natural reason in the philosophy of St. Thomas Aquinas (1225-1274).7

Drawing upon Thomistic natural law and rights, Jacques Maritain constructed a good

introduction to the topic of natural law and the differences between it and the law of

nations and positive (statutory) law.8 Michel Villey is generally credited by scholars

today for inspiring discussion about the medieval origins of western rights held by the

individual. He believed that William of Ockham (ca. 1288-1347) was the first writer to

enunciate a theory of rights, primarily based upon the metaphysical conceptions of

place the individual’s rights before society, an unfathomable concept to the ancients who emphasized society over individuals. For a discussion about individual rights in antiquity, see Fred D. Miller, Jr., “Origins of Rights in Ancient Political Thought,” in The Cambridge Companion to Ancient Greek Political Thought, ed. Stephen Salkever (Cambridge, UK: Cambridge University Press, 2009), 301-330. For the argument that natural rights originated in antiquity and can be seen in Aristotle’s writings, see Fred D. Miller, Jr., Nature, Justice, and Rights in Aristotle’s Politics (Oxford, UK: Clarendon Press, 1995), 87-139. 5 For an extremely good historiography of medieval rights, see Charles J. Reid, Jr., “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” Boston College Law Review 33, no. 1 (December 1991): 37-92. 6 David G. Ritchie, Natural Rights: A Criticism of Some Political and Ethical Conceptions (London: Swan Sonnenschein & Co., 1895). 7 Odon Lottin, “Natural Law & Natural Right & Natural Reason,” Philosophy Today 3 (1959): 10-18. 8 Jacques Maritain, The Rights of Man and Natural Law, trans. Doris C. Anson (New York: C. Scribner’s Sons, 1943).

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nominalism and voluntarism.9 Historian Richard Tuck suggested that the first theory of

rights was developed by the Roman law scholars of the twelfth century, was partially

altered by the canon law lawyers of the thirteenth century, and was widely accepted in the

form popularized by Jean Gerson (1363-1429) up until the spread of Protestantism and

humanism in the early sixteenth century.10 John Finnis explored the concept of natural

law to reach the conclusion that natural law directs man to attaining his well-being, which

greatly shaped human laws.11 Annabel Brett concentrated on documenting the

transformation of the subjective sense of natural law and its transmission from medieval scholastics to sixteenth century “Neo-scholastic” Spaniards through analyzing the early language of rights.12

Undoubtedly, the most influential medievalist to explore the topic of medieval

rights was Brian Tierney who established a school of thought which dominates modern

scholarship. Tierney has vehemently argued that the concept of natural rights, somewhat

resembling today’s human rights, originated in the medieval Christian West. Instead of

arguing that a single man, such as William of Ockham or Jean Gerson, was responsible

for the development of the first natural rights theory, Tierney argues instead that

medieval jurists, particularly the Decretists writing in the twelfth century, invented the

theory without drawing on the works of Aristotle. With the rise of legal science across

Western Europe, their theory quickly entered western political thought where it had a

9 See Reid, Jr., “Canonistic Contribution,” 51-57. 10 Richard Tuck, Natural Rights Theories: Their Origin and Development (New York: Cambridge University Press, 1979), 1-31. Gerson’s natural rights theory had a profound effect on later scholastics: see for example Jussi Varkemaa, Conrad Summenhart’s Theory of Individual Rights (Boston, MA: Brill, 2012). 11 John Finnis, Natural Law and Natural Rights (Oxford, UK: Clarendon Press, 1980). 12 Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (New York: Cambridge University Press, 1997).

6 Texas Tech University, Justin Scott Kirkland, May 2013 profound effect, ultimately influencing later writers such as Hugo Grotius (1583-1645),

Thomas Hobbes (1588-1649), and John Locke (1632-1704).13 He believes that the first articulated theories concerning natural rights were formulated by canonists reflecting on the rights of an individual in a corporate community and derived from their conceptions of individuals as beings endowed with reason capable of discerning what is moral and immoral.14

Central to Tierney’s argument is the role of canonists in defining what is a

“right,” which resulted in great confusion. For instance, in Gratian’s Decretum (ca.

1140) the Latin terms ius (law/right) was used in reference to objective law, while ius naturale (natural law) was used to mean divine commands revealed through Scripture and accessible through reason.15 Commentators on the Decretum in the Ordinary Gloss, however, tended to use ius to mean a body of law and what it permitted, in essence a right of an individual.16 Therefore, ius could mean either an objective or subjective right, though the subjective sense of the term eventually came to be its primary meaning.17

With the subjective sense of ius the primary meaning ascribed to the term, many

13 Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Atlanta, GA: Scholars Press, 1997), 43, 78, 80, 131-132. 14 Tierney, Idea of Natural Rights, 70-77. See also Brian Tierney, “Religion and Rights: A Medieval Perspective,” Journal of Law and Religion 5, no. 1 (1987): 163-175; Brian Tierney, “Religious Rights: An Historical Perspective,” in Religious Human Rights in Global Perspective: Volume 1, Religious Perspectives, ed. John Witte, Jr. and Johan D. van der Vyver (Boston, MA: M. Nijhoff Publishers, 1996), 17-45; Brian Tierney, “Natural Law and Natural Rights: Old Problems and Recent Approaches,” The Review of Politics 64, no. 3 (Summer 2002): 389-406; Brian Tierney, “The Idea of Natural Rights-Origins and Persistence,” Northwestern University Journal of International Human Rights 2 (Spring 2004), Brian Tierney, “Dominion of Self and Natural Rights Before Locke and After,” in Transformations in Medieval and Early-Modern Rights Discourse, ed. Virpi Mäkinen and Petter Korkman (Dordrecht, The Netherlands: Springer, 2006), 173-203. 15 Tierney, Idea of Natural Rights, 61-62. 16 Tierney, Idea of Natural Rights, 62-62. 17 Tierney, Idea of Natural Rights, 64. For a discussion of the many definitions ascribed to natural law by medieval scholastics, see M. B. Crowe, “Natural Law Terminology in the Late 12th and Early 13th Centuries,” Tijdschrift voor Filosofie 39, no. 3 (September 1977): 409-420.

7 Texas Tech University, Justin Scott Kirkland, May 2013 canonists adopted the definition of ius naturale as a certain subjective force inherent in the individual.18 After the rapid spread of the Decretum in the twelfth century, increasingly canonists began to use the term ius naturale instead of lex naturale (natural law), indicating not only the profound effect of Gratian’s work, but also that the old, plain concept of natural law (represented by lex naturale) was being supplanted by the concept of a more powerful force residing in each individual, a meaning identified with ius. By

1200 the canonists had established a language to express natural rights theories, and by

1300 they were defending specific rights on the basis of natural law.19

It is important to note that while many today would call the right to observe holy days a human right, there is a fundamental distinction which can be made between human rights and natural rights. Today, human rights are not necessarily considered to be rights bestowed by natural law, but ideals recognized by a state or institution, and therefore subject to change. Natural rights, on the other hand, are considered to be rights based in nature and therefore immutable. Thus, technically there is a subtle difference between modern human rights and natural rights. Though natural law has been expunged from modern human rights theories, most modern human rights were initially conceived as natural rights, such as the right to holy days.20

Importantly, in the Middle Ages some rights were also duties.21 One of Tierney’s most influential studies concerned the writings of the Augustinian philosopher Henry of

18 Tierney, Idea of Natural Rights, 63-64. 19 Tierney, Idea of Natural Rights, 69-70. 20 See Peter Jones, Rights (New York: St. Martin’s Press, 1994), 72-87. 21 Max Radin, “Natural Law and Natural Rights,” The Yale Law Journal 59, no. 2 (January 1950): 217-220; Finnis, Natural Law, 297-350; Tierney, Idea of Natural Rights, 79; Francis Oakley, Natural Law, Laws of

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Ghent (ca. 1217-1293). According to Tierney’s interpretation, Henry supported the notion that self-preservation was both a right and duty of all men.22 Henry illustrated his point by hypothesizing that a poor person in danger of starving to death had the duty to survive, even if he was forced to steal food, because attaining the necessities of life was more important than abiding by the law.23 Allowing oneself to starve to death when food was available was not only an unpleasant way to die, but also was tantamount to suicide.

Henry expounded on this concept with the abstract example of a criminal condemned to death. While a judge had a right to the body of a criminal, meaning that the judge had the authority to order his execution, even criminals who had engaged in illicit activities had a duty to escape from capital punishment because their right/duty to survive superseded human law.24 It would be a sin to allow oneself to be executed without at least attempting to escape. While the duty of each individual to God to continue living trumped what was licit under human law, the individual was still under human law and therefore liable to punishment by temporal authorities. It was through the formulation of this theory that Henry of Ghent made an important contribution to natural rights theories by exploring the class of rights which were also duties and furthering the medieval understanding of individual rights.

The school of thought established by Tierney is also subscribed to by other preeminent historians. Harold Berman, whose “textbook” about the development of canon law and legal science in the twelfth and thirteenth centuries is impressive in the

Nature, Natural Rights: Continuity and Discontinuity in the History of Ideas (New York: Continuum, 2005), 92-93. 22 Tierney, Idea of Natural Rights, 83. 23 Tierney, Idea of Natural Rights, 83. 24 Tierney, Idea of Natural Rights, 85.

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amount of information it surveys, supported Tierney’s perspective.25 R. H. Helmholz, whose main area of expertise is in medieval English canon law, has written many articles affirming the development of natural rights by twelfth century jurists and has further explored some of the specific rights identified by medieval writers, especially the right to freedom in marriage.26 Kenneth Pennington, a disciple of Tierney and a renowned scholar of medieval canon law, has continued the research of his mentor and written several articles and books which attest to the importance of medieval canonists in creating the first natural rights theory.27

While this thesis primarily draws on Tierney’s school of thought for its central theoretical framework, the development of its argument was also greatly influenced by other modern scholars, such as Jean Porter. Though Porter is a “Christian ethicist” and not a historian proper, she has contributed to the scholarship of natural law in the Middle

Ages with her studies of twelfth century scholastics—medieval intellectuals akin to the philosophers of Ancient Greece.28 The twelfth century was the first time Christian

25 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983). 26 R. H. Helmholz, “The Development of Law in Classical and Early Medieval Europe: The Bible in the Service of the Canon Law,” Chicago-Kent Law Review 70 (1995): 1557-1581; R. H. Helmholz, “Natural Human Rights: The Perspective of the Ius Commune,” Catholic University Law Review 52 (Winter 2003): 301-325. 27 Kenneth Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Los Angeles: University of California Press, 1993); Kenneth Pennington, “Sovereignty and Right in Medieval and Early Modern Jurisprudence: Law and Norms without a State,” in Rethinking the State in the Age of Globalisation: Catholic Thought and Contemporary Political Theory, ed. Heinz- Gerhard Justenhoven and James Turner (Münster, Germany: LIT Verlag, 2003), 117-141. For a collection of his articles and lectures, see Kenneth Pennington, “Ken Pennington: The Catholic University of America,” http://faculty.cua.edu/pennington/ (accessed September 6, 2012). 28 Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (Grand Rapids, MI: Wm. Eerdmans Publishing Co., 1999), 51. See also Jean Porter, “Contested Categories: Reason, Nature, and Natural Order in Medieval Accounts of the Natural Law,” The Journal of Religious Ethics 24, no. 2 (Fall 1996): 207-232; Jean Porter, “From Natural Law to Human Rights: Or, Why Rights Talk Matters,” Journal of Law and Religion 14, no. 1 (1999-2000): 77-96; Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids, MI: Wm. Eerdmans Publishing Co., 2010).

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scholars set about reconciling Scripture with philosophy to explain the origin of the world

in a natural sense, leading theologians to equate nature and reason because they saw

nature as an expression of the mind of God.29 Scholastics believed that moral norms

could be discovered through analysis of nature, reason, and Scripture.30 They ascribed

several different definitions to natural law, but basically emphasized the traditional

distinction between what predated human society, and thus was natural, and what was established by man, such as customs and enactments.31 If a human custom was found to

express natural law, then that custom was thereby justified by natural law.32 While divine law was defined as God’s law revealed through Scripture, natural law was considered by many scholastics to be partially contained in divine law.33 God, the author

of both, would not have contradicted himself.

Historiography of Medieval Feasts

The historiography of medieval feasts has a rich scholarship.34 One of the most

informative and in-depth studies of feasts from a legal point of view, which has been largely forgotten by modern historians, is a mid-nineteenth century work by Edward

Vansittart Neale.35 Neale painstakingly traced the origins of feasts from pagan Rome to

his own time. In the common nineteenth century manner of writing descriptive history,

29 Porter, Natural and Divine Law, 72, 82. 30 Porter, Natural and Divine Law, 121. 31 Porter, Natural and Divine Law, 77. 32 Porter, Natural and Divine Law, 79. 33 Porter, Natural and Divine Law, 132. 34 For a detailed survey of “festival studies” across various academic disciplines, see Donald Getz, “The Nature and Scope of Festival Studies,” International Journal of Event Management Research 5, no. 1 (2010): 1-47. See also Josef Pieper, In Tune With the World: A Theory of Festivity, trans. Richard and Clara Winston (Chicago: Franciscan Herald Press, 1973). 35 Edward Vansittart Neale, Feasts and Fasts: An Essay on the Rise, Progress, and Present State of the Laws Relating to Sundays and Other Holidays, and Days of Fasting with Notices of the Origin of those Days, and of the Sittings and Vacations of the Courts (London: John Murray, 1845).

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he focused on describing English feast and fast laws comprehensively, rather than

making an explicit historical argument. He provided some historical context with the

feast and fast canons established by Constantine and the Early Church, before

concentrating on England, surveying the vast amount of laws and canons from the Anglo-

Saxons to the mid-nineteenth century.

The quintessential academic work on the topic is the 1940 doctoral dissertation

and book Discussion of Holidays in the Late Middle Ages by Edith Cooperrider

Rodgers.36 Though only one hundred and twenty pages, Rodgers’s book is an amazing

synthesis of medieval sources and general analysis of medieval peoples’ attitudes towards

feasts in Western Europe from 1200 to the Reformation. Rodgers’s study focuses on how

the ideals behind holiday observance were often not met in reality, leading some

prominent members of medieval society to support reform measures such as curtailing

the number of holidays. Naturally, with the rise of the Protestant Reformation, the calls

for reform increased and were implemented in places such as England.

C. R. Cheney compiled and commented on fifteen lists of festa ferianda from the

thirteenth and fourteenth centuries that range from memoranda to local legislation and

include some of questionable authenticity, though he did not scrutinize to what degree the

rules from the lists were obeyed or interpreted.37 He noted that the custom regarding abstaining from labor on festa ferianda varied across time and localities, that rules emanating from secular institutions such as guilds often differed from ecclesiastical rules, and that various medieval writers deplored the laity’s frequent misuse of Sundays and

36 Edith Cooperrider Rodgers, Discussion of Holidays in the Later Middle Ages (New York: Columbia University Press, 1940). 37 C. R. Cheney, “Rules for the Observance of Feast-Days,” 117-118.

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holidays for profane activities.38 According to Cheney, canonists and theologians clearly held that festa ferianda lists were flexible, and they distinguished between minor and

major feasts along with licit and illicit labors while allowing labor during feasts if the

work was done out of charity or necessity. Only in the fourteenth century was there a

movement by ecclesiastics to establish festa ferianda for entire provinces.

In the 1970s historian Barbara Harvey explored work in relation to festa ferianda

from Anglo-Saxon times to later medieval England. She argued that church feasts were

customs strengthened by popular usage, with laws and canons being of only secondary

importance since they were prone to change.39 Harvey divided medieval England into

three different periods based upon labor supply and conditions. The first period ended in eleventh century England when all of English wealth was in land with laborers toiling under conditions of maximum immobility and respecting customary arrangements.

During this period Harvey suggests that because boon work could be adjusted to fit the liturgical calendar, there was almost complete abstention from servile work on feasts.

The second period lasted from the eleventh to the mid-fourteenth and was distinguished by the growth of urban areas which created new epicenters of social instability when wage labor became preferred over all other labor arrangements. According to Harvey, this period saw a dramatic decline in workers abstaining from servile work on festa ferianda, even though many probably desisted from intensive husbandry and from agricultural tasks such as sowing and reaping. In the thirteenth century, the work week

38 C. R. Cheney, “Rules for the Observance of Feast-Days,” 117-118. See also C. R. Cheney, A Handbook of Dates for Students of British History, Revised Edition (Cambridge, UK: Cambridge University Press, 2000), 59-63. 39 Barbara Harvey, “Work and Festa Ferianda in Medieval England,” Journal of Ecclesiastical History 23, no. 4 (October 1972), 289.

Texas Tech University, Justin Scott Kirkland, May 2013

usually extended from Monday to Friday, with most workers only having to work three

days or less during the week and freed from work on all feast days. The last period

lasting from 1348/1349 until the latter half of the fifteenth century was marked by a labor

shortage. While she laments the fact that sources for this period are not as detailed as for

previous periods, Harvey still puts forth the notion that laborers worked on festa ferianda

more often at the beginning of the era than previously, though the old customs of

abstaining from servile work eventually reappeared.

A brief analysis of feasts is also included in Athene Reiss’s work, The Sunday

Christ: Sabbatarianism in English Medieval Wall Painting, which has some relevance to

feasts. It is mainly a study of the medieval icons of the Sunday Christ, a genre which

tended to portray Christ with crucifixion wounds surrounded by various trade tools and

objects that were associated with sin such as hammers and playing cards. One of the

genre’s main purposes was to encourage people to observe holy days in the correct

manner and refrain from prohibited activities by showing that working or engaging in

sinful activities on holy days hurt their savior, Christ.40

Eamon Duffy and Ronald Hutton have both conducted extensive research into

feasts. Hutton has published multiple works which explore the development of the

customs of particular English feasts in the medieval and Tudor eras.41 Duffy’s most

important contribution to the field, his book called The Stripping of the Altars:

40 Athene Reiss, The Sunday Christ: Sabbatarianism in English Medieval Wall Painting (Oxford, UK: British Archaeological Reports, 2000), 11, 52. 41 Ronald Hutton, The Rise and Fall of Merry England: The Ritual Year, 1400-1700 (New York: Oxford University Press, 1994); Ronald Hutton, The Stations of the Sun: A History of the Ritual Year in Britain (New York: Oxford University Press, 1996); Ronald Hutton, “Seasonal Festivity in Late Medieval England: Some Further Reflections,” The English Historical Review 120, no. 485 (February 2005): 66-79.

14 Texas Tech University, Justin Scott Kirkland, May 2013

Traditional Religion in England, c. 1400-c.1580, provides a good understanding of how

some feasts from the Late Middle Ages (ca. 1300-1500) were stripped of their age-old customs during the Tudor era.42 It provides a useful analysis of religious belief and

practice for the time period, and has become an important part of modern research in the

field.

A very useful survey of Anglo-Saxon feast laws is found in Dorothy Haines’s

2010 book of translations for a series of documents which circulated in Anglo-Saxon

England encouraging solemn observance of Sundays and other holy days. Haines notes

that the Anglo-Saxon feast laws initially were greatly influenced by Germanic and

Carolingian law codes, but did not adopt their detailed proscriptions. Overall, Haines’s study does a good job of analyzing the Anglo-Saxon feast laws and putting them into

context.43

Of course, England was not the only place which celebrated festivals, as evident

in Diana Webb’s study of patron saints’ feasts in medieval Italian city-states. Though

Webb’s study is mainly concerned with showing how patron saints’ feasts were used by

powerful Italian city-states to exact tribute and demonstrations of subservience from

surrounding weaker communities while allowing civic leaders and confraternities the

opportunity to show-off, it also allows for comparisons to be made between feasts with

England. Webb inadvertently shows that the development of feast prohibitions and

legislation in the High Middle Ages was basically the same in both places and occurred at

42 Eamon Duffy, The Stripping of the Altars: Traditional Religion in England, c. 1400-c.1580 (New Haven, CT: Yale University Press, 1992). 43 Dorothy Haines, Sunday Observance and the Sunday Letter in Anglo-Saxon England (Cambridge, UK: D. S. Brewer, 2010).

15 Texas Tech University, Justin Scott Kirkland, May 2013

roughly similar times. Thus, Webb’s work suggests that English feast laws were not that

different from European ones.44

While these scholarly works are only a part of the historiography of medieval

feasts in general—there are a large number of works which focus on specific medieval

feasts—there has been no attention devoted to exploring the possibility that feasts were

considered a right. Altogether, this is not too surprising. There is much unexplored

territory in the rather new field of medieval rights and it is easy to understand how

holidays could be overlooked by academics more interested in the question of voting

rights or marriage. Upon closer examination, however, it becomes apparent that feasts

deserve to be classified as one of the medieval rights. None of these scholars seems to

have noticed this because they were not looking for evidence about it.

The Significance of Feasts

There are multiple sociological reasons behind the establishment of holy days.

The foremost reason religions ordain feasts is to allot a specific time to believers to

engage solely in worship.45 Worship underlies most of the other concepts that give feasts

significance. Another one of the main reasons behind holy days is that they

commemorate something sacred, such as saints or events of historical and symbolic

importance to a religion. Commemoration of certain holy times induces the laity to get

into a spiritual frame of mind instead of being preoccupied with temporal concerns.

44 Diana Webb, Patrons and Defenders: The Saints in the Italian City-States (New York: Tauris Academic Studies, 1996), 17, 95-124. 45 Hutton Webster, Rest Days: A Study in Early Law and Morality (New York: The Macmillan Company, 1916), 85.

16 Texas Tech University, Justin Scott Kirkland, May 2013

Making a communal display of fidelity to God and the saints also serves to increase the

likelihood of divine assistance in times of crisis and to avert God’s wrath.

Worship has always been a significant part of religions. To the medieval

Christian, faith in the sacrifice of Christ and worship of God were integral components of

life. Worship to express faith is conducted in various ways such as hymn singing and praying. Through prayer and other sacred acts of piety, the devout are able to come into contact with Christ and the saints, forming an interior metaphysical sacred space.46 Holy

days play a vital role in religious traditions because they set aside time for communal

worship and prayer. They encourage people to tear themselves away from the ordinary

temporal world in which they live by providing a time to contemplate the metaphysical

and sacred. Most religions consider worship to have not just an immaterial effect, but

also to dictate the well-being of an individual or community. In most religions the favor

or ire of deities and other supernatural beings, and subsequently the blessings and curses

bestowed upon their followers, is closely associated with worship and feasts. While a

feast with the proper rites would generally be considered as pleasing to the supernatural

honoree, and likely to increase divine blessings, a lackluster feast without the proper

religious rites might bring curses upon the impious people. Since holy days are

intimately bound to worship, they are of central importance in most religious traditions.

Feasts explicitly commemorate people and events.47 Believers are reminded of

the contribution made to the religion by the particular person or event honored which

46 Augustine Thompson, Cities of God: The Religion of the Italian Communes, 1125-1325 (University Park, PA: The Pennsylvania State University Press, 2005), 348. 47 F. G. Holweck, “Ecclesiastical Feasts,” in The Catholic Encyclopedia, ed. Charles G. Herbermann, 15 vols. (New York: The Encyclopedia Press, 1913), http://www.newadvent.org/cathen/06021b.htm (accessed

17 Texas Tech University, Justin Scott Kirkland, May 2013 helps them feel closer to long past saints and events.48 The medieval Church’s commemorations helped instill among lay believers a collective memory concerning the history of their own faith, which was especially important in medieval Christianity as most Christians were illiterate and uneducated. While Saint Peter and Saint Paul may have lived centuries ago, commemorating them on their feast day (June 29) was a means to honor their contribution to Christianity while making their lives more relevant to individual believers. By commemorating a saint, the adherents of a religion are reminded of what makes the saint so special, while being simultaneously encouraged to aspire to live their own lives in a righteous manner.49 Implicit in the commemoration of saints is the evocation of death. Just as a renowned saint of great virtue had lived and died, so too would you. This is especially the case in reference to Christian saints since canonization to sainthood is the assertion by the Church that a certain person is in heaven, which is only achievable with death, and the commemoration of a saint occurs on the anniversary of his or her death.50 By forcing people to reflect on the issue of death and the afterlife,

October 20, 2011). G. W. MacRae, “Feasts, Religious,” in New Catholic Encyclopedia, The Catholic University of America, 16 vols. (London: McGraw-Hill Book Company, 1967), 5:865-868. 48 Catherine Bell, Ritual: Perspectives and Dimensions (New York: Oxford University Press, 1997), 102- 108; Catherine Bell, Ritual Theory, Ritual Practice (New York: Oxford University Press, 1992), 187-193; Stephen Borgehammar, “A Monastic Conception of the Liturgical Year,” in The Liturgy of the Medieval Church, ed. Thomas J. Heffernan and E. Ann Matter (Kalamazoo, MI: Medieval Institute Publications, Western Michigan University, 2001), 13; Augustine Thompson, Cities of God, 273. 49 Thomas J. Heffernan, “The Liturgy and the Literature of Saints’ Lives,” in The Liturgy of the Medieval Church, 77, 105. This feature is seen in many of the homilies composed by Ælfric of Eynsham (ca. 955- 1010). In the homily about St. Stephen he emphasized principles that people should apply in their own lives, recounting how Stephen had prayed to God to forgive his murderers, “Verily the church of God would not have had Paul as a teacher, if the holy martyr Stephen had not thus prayed…My brethren, let us in some degree imitate so great a teacher’s faith, and so great a martyr’s love.” See Ælfric of Eynsham, “The Passion of the Blessed Stephen Protomartyr,” in The Homilies of the Anglo-Saxon Church. The First Part, Containing the Sermones Catholici, or Homilies of Aelfric, vol. I, ed. Benjamin Thorpe, The Ælfric Society (London: Johnson Reprint Corporation, 1971), 53. 50 As Ælfric explained about saints’ feasts in another homily, “we celebrate as their birthtide their last day…The day is memorable to the servants of God which sends his saints, after victory won, to eternal joy from all afflictions, and which is their true birth; not tearful as the first, but exulting in eternal life.” See Ælfric of Eynsham, “The Nativity of St. John the Baptist,” in Homilies, I, ed. Thorpe, 354-355.

18 Texas Tech University, Justin Scott Kirkland, May 2013 some people undoubtedly could be scared into living the rest of their lives in a more upright manner by forcing them to realize that their lives after death were far more important than their temporal lives, because the afterlife was forever.

Sociological reasons behind the significance of holy days go beyond worship and commemoration. Holy days also play a vital role in helping to alleviate stress and physical exhaustion, while concurrently encouraging fellowship and socialization.

However, these are issues that are best dealt with in connection with other matters and contexts which are brought up in the course of this thesis.

The Medieval Concept of Work

The medieval concept of work was of tremendous importance in the development of the right to observe holy days. Prohibitions concerning servile work on holy days were central to the development of the right. Modern scholars have postulated a wide range of ideas concerning how medieval people viewed work. Some have argued medieval people saw it as a noble activity,51 while others have argued that work retained a negative connotation throughout the Middle Ages.52 This section will briefly survey

51 Lynn White, Jr., “Cultural Climates and Technological Advance in the Middle Ages,” Viator 2 (1971): 171-201; Jacques Le Goff, Time, Work, & Culture in the Middle Ages, trans. Arthur Goldhammer (Chicago: University of Chicago Press, 1980), 43-52; Herbert Applebaum, The Concept of Work: Ancient, Medieval, and Modern (Albany, NY: State University of New York Press, 1992), 177-318; Patricia Ranft, The Theology of Work: Peter Damian and the Medieval Religious Movement (New York: Palgrave Books, 2006). 52 George Ovitt, Jr., “The Cultural Context of Western Technology: Early Christian Attitudes toward Manual Labor,” Technology and Culture 27, no. 3 (July 1986): 477-500; George Ovitt, Jr., The Restoration of Perfection: Labor and Technology in Medieval Culture (New Brunswick, NJ: Rutgers University Press, 1987); Birgit van den Hoven, Work in Ancient and Medieval Thought: Ancient Philosophers, Medieval Monks and Theologians and Their Concept of Work, Occupations, and Technology (Amsterdam, Netherlands: J. C. Gieben, 1996); Michael Uebel and Kellie Robertson, “Introduction: Conceptualizing Labor in the Middle Ages,” in The Middle Ages at Work: Practicing Labor in Late Medieval England, ed. Michael Uebel and Kellie Robertson (New York: Palgrave Macmillan, 2004), 1-15; Christopher Dyer, An Age of Transition?: Economy and Society in England in the Later Middle Ages (New York: Oxford

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how medieval people conceived of work, especially in regards to whether it had a

positive or negative connotation, in order to help illuminate why servile work on holy

days was prohibited.

Work, particularly manual labor, was generally viewed by Classical writers in a

negative light, and such opinions regarding work were largely accepted by medieval

people, with some alterations.53 The necessity of man to toil away throughout life just to survive reflected the sinful state of mankind inflicted when Adam and Eve were expelled

from the Garden of Eden.54 Monasticism developed the view that work, though a punishment, was actually good because it prevented sloth and idleness which tended to lead to sin.55 The Rule of Benedict, composed around 530 by St. Benedict of Nursia (ca.

480-543) as a managerial guide for the monastery of Monte Cassino stated, “Idleness is

the soul’s enemy, so therefore at determined times the brothers ought to be occupied with

manual labor…For if they live by the work of their hands, then they are true monks, as

were our Fathers and the Apostles.”56

While the Rule of Benedict found some spiritual benefits in work, labor was still

mainly viewed by the elite as an undesirable activity whose redeeming features lay in

generating life’s necessities and God’s rewards after death.57 In fact, as historian George

University Press, 2005), 211-241; Nicola Masciandaro, The Voice of the Hammer: The Meaning of Work in Middle English Literature (Notre Dame, IN: University of Notre Dame, 2007). 53 van den Hoven, 254. For a good historiography of the development of the concept of work across the ages, see Catharina Lis and Josef Ehmer, “Introduction: Historical Studies in Perceptions of Work,” in The Idea of Work in Europe from Antiquity to Modern Times, ed. Catharina Lis and Josef Ehmer (Burlington, VT: Ashgate, 2009), 1-30. 54 Ovitt, Jr., Restoration of Perfection, 137. 55 White, Jr., “Cultural Climates and Technological Advance,” 187, 191-197. 56 Benedict of Nursia, Benedict’s Rule: A Translation and Commentary RB 48.1, 8, ed. Terrence G. Kardong (Collegeville, MN: The Liturgical Press, 1996), 381-401. 57 van den Hoven, 157-158.

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Ovitt Jr. has shown, though monks publicly extolled the virtues of manual labor, by the

late twelfth century monastic houses were increasingly outsourcing a large portion of

their labor duties to wage laborers and conversi.58 It appears that throughout the educated elite of medieval society there was the pervasive belief that physical labor was a distasteful plebian activity more suited to ignorant peasants, with the exception of holy days when they too could put down their instruments of toil and engage in contemplation of the divine.59

During the twelfth century some medieval writers came to believe work had some

beneficial properties not only for individuals but also for the larger community.60 The

tripartite division of society into those who fight, those who pray, and those who work,

helped give some degree of validation and respect to work since it was manual workers

whose labors produced food and other goods that allowed the other two groups of society

to fulfill their duties.61 Manual laborers and merchants were no longer seen as

insurmountable hindrances to living a holy life, as demonstrated by several lay saints in

the Italian communes, such as St. Theobald of Alba (d. 1150) and St. Zita of Lucca (d.

1278).62 Nevertheless, perspectives on work still remained largely negative. Medieval

writers may have lauded the work of peasants, but they were not too eager to join in.

58 Ovitt Jr., Restoration of Perfection, 145-150. 59 Keith Thomas, “Work and Leisure,” Past & Present, no. 29 (December 1964): 50-66; Masciandaro, Voice of the Hammer, 32-33. 60 Ranft, Theology of Work, 191; Gerhard Jaritz, “Visual Representation of Late Medieval Work: Patterns of Context, People and Action,” in Idea of Work in Europe, ed. Lis and Ehmer, 135. 61 Ranft, Theology of Work, 75. 62 André Vauchez, The Laity in the Middle Ages: Religious Beliefs and Devotional Practices, trans. Margery J. Schneider (Notre Dame, IN: University of Notre Dame Press, 1993), 64-67, 265-266. For the life of St. Zita of Lucca, see Saints and Cities in Medieval Italy, ed. Diana Webb (Manchester, UK: Manchester University Press, 2007), 169-170.

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Unsurprisingly, this disdain of manual labor was not limited to the continent and

is evident in the vocabulary of Late Medieval England. There were five primary words in

used in Late Medieval England to mean “work/labor” (trauvail, labour, swink, werk, and

craft). Trauvail and labour both had negative connotations closely associated with the

idea of suffering through physical endeavor.63 One of the most commonly utilized terms for talking about work as a necessity of mankind in Middle English was trauvail. The discussion of the Third Commandment in the anonymous Middle English canonistic

work Dives and Pauper (ca. 1405-1410) clearly demonstrates the negative association of laboring through heavy utilization of the word trauvail.64 This is further evidence that,

unsurprisingly, English writers in the Later Middle Ages tended to view the daily manual

labors of peasants negatively. It also appears that the illiterate did not view labor as a

good thing. Negative attitudes towards work throughout the peasantry are suggested by

the infinite numbers of manorial court cases in which it was alleged that tenants failed to

render requisite work obligations to their lord.65 Apparently, peasants were not particularly impressed by the redeeming features of work which some scholastics lauded in the Late Middle Ages.

The overall result of labor’s negative connotation made it incompatible with holy days because man was supposed to get a taste of what heaven would be like on such days.

63 Masciandaro, Voice of the Hammer,14-17. 64 Dives and Pauper: Volume I: Part 1 Section 3.8, ed. Priscilla Heath Barnum, Early English Text Society, vol. 275 (London: Oxford University Press, 1976), 278-280. See also Dives and Pauper: Volume I, Part 2, ed. Priscilla Heath Barnum, Early English Text Society, vol. 280 (London: Oxford University Press, 1980); Dives and Pauper: Volume II, ed. Priscilla Heath Barnum, Early English Text Society, vol. 323 (London: Oxford University Press, 2004). 65 See The Court Rolls of Walsham le Willows, 1303-1350, ed. Ray Lock, Suffolk Records Society, vol. 41 (Woodbridge, UK: The Boydell Press, 1998); The Court Rolls of Walsham le Willows, 1351-1399, ed. Ray Lock, Suffolk Records Society, vol. 45 (Woodbridge, UK: The Boydell Press, 2002).

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There was no place for labor on feasts. This facet of holy days had great implications on

servile work and helped allow feasts come to be considered a right, which will be

examined in Chapter V.

Discussion of Sources

The primary sources used in this study of feasts as rights are largely legal sources

because the argument itself is based on a legal concept. For the Anglo-Saxon period, due

to a lack of other types of sources, the laws published by kings and canons from various

English synods will be heavily utilized. From the Norman Conquest to the thirteenth

century, various types of sources will be used due to the limited amount of legislation

from this period which pertains to feasts, including early treatises upon the common law

such as Ranulf de Glanville, Henry de Bracton, and Britton. Sources such as the

Domesday Book, the “unofficial” laws of Henry I, and the Decretals of Gregory IX will play a significant part in trying to document what authority feast regulations fell under.

However, summae, treatises or compendiums that attempt to explain a wide range of subjects like modern encyclopedias, are the most lucrative primary sources because they provide direct insight into how medieval scholastics viewed particular issues. It was not until the thirteenth century that a significant amount of legal summae, specifically those by canonists, began discussing feasts in depth and portraying them as rights. Due to the limited amount of extant English canonical summae, it has been necessary to rely on sources from the Continent, though every effort has been made to ensure that these

European sources were either known internationally or had some connection to England.

The canonistic summae paint a picture of how medieval intellectuals viewed

feasts better than most other medieval sources. Ecclesiastical cases involving feasts tend

23 Texas Tech University, Justin Scott Kirkland, May 2013

to record little more information than the name of offenders and how they violated a holy

day. Though the official collection of decrees from papal synods, such as the Decretals

of Gregory IX (1234) and the Liber Sextus Decretalium (1294) compiled by Boniface

VIII (r. 1294-1303), contain information relevant to feasts, they are not nearly as useful.

The importance of the summae lies in the fact that medieval canonists tended to question, comment on, and play with various aspects of a topic, occasionally leading to rather odd digressions. Feasts were no different from other topics summae dealt with in this regard,

thereby making them bountiful repertoires of information. Here concepts of ius naturale

were formulated, creating the idea of natural rights. Thus, if feasts were considered a

natural right, it would be expected that their status would be found first in canonist

summae.

There is a vast amount of extant medieval summae to choose from as sources.

The most important summa utilized in this study, which exerted a major influence upon

the issue of feriae in canon law, was composed by Henry of Susa (ca. 1200-1271), more

commonly known as Hostiensis due to his time as Bishop of Ostia (r. 1262-1271).66 His treatise on the canon law was so influential that it came to be known as the Summa Aurea

(Golden Summa) by later canonists who cited him profusely in their own treatises,

especially when writing about feriae. Some of the other major summae utilized in this

study are the summae of Raymond of Peñafort (the compiler of the Decretals of Gregory

IX), Alexander of Hales, St. Thomas Aquinas, and Joannes Andreae. Summae of minor

66 For a biography of Hostiensis, see Kenneth Pennington, "Henricus de Segusio (Hostiensis)," in Popes, Canonists, and Texts 1150-1550, ed. Kenneth Pennington (Aldershot, UK: Variorum, 1993), 1-12. For brief biographies of other important canonists, see Brundage, Medieval Canon Law, 206-230.

24 Texas Tech University, Justin Scott Kirkland, May 2013

historical cited importance in this study include those of Monaldus and Angelo Carletti di

Chivasso.

Liturgical treatises by Bishop William Durand of Mende and by John Beleth, in

addition to hagiographies, have also provided important further evidence. Works by Jean

Gerson, Nicholas of Clémanges, Robert Grosseteste, and several other eminent writers have further supplemented the pool of primary sources this study has utilized. Fifteenth century English books, particularly Dives and Pauper and The Lay Folks Catechism, have proven helpful in documenting popular sentiment. In addition, from the mid- fourteenth century onwards, laws propagated by the king and parliament regarding feasts were created, and are useful in documenting the official position of the government.

While a good deal of this study looks at medieval intellectual thought, by no means is it a purely intellectual history. It is an attempt to uncover whether there was a medieval right to holy days which not only existed in discussions of the metaphysical by intellectuals, but also in the larger society where it was implemented. So, this study utilizes sources other than intellectual treatises that ascertain how feasts were regarded in society itself, including court cases and custumals.

Chapter Layout and Citation Styles

The format of this study is fairly straightforward. Chapter II begins by briefly

setting the context in which Christianity in England developed, including an overview of

Anglo-Saxon legal institutions and the concept of “folklaw,” taking special care to

explain why none of the Anglo-Saxon laws should be misconstrued as recognizing feasts

as a natural right. Then it analyzes Anglo-Saxon laws and synodal canons regarding

25 Texas Tech University, Justin Scott Kirkland, May 2013 feasts to demonstrate the evolution laws underwent, with the last section summarizing the legal trends pertaining to feasts which had occurred by the end of the Anglo-Saxon era.

Chapter III traces the jurisdiction of feast laws during the Anglo-Norman period, from the Conquest to the early thirteenth century. The first half of the chapter looks at whether feast laws were considered a part of common law or whether they were left to the ecclesiastical courts to administer. The last half describes the rise of sabbatarianism at the beginning of the thirteenth century, a force which was to have a tremendous effect on holy days.

Chapters IV and V argue that feasts became a natural right. Chapter IV focuses on explaining the legal basis upon which the right to feasts originated, beginning with a brief discussion of the close association between days and nature. It also contains a section which discusses the recurrent usage of possessive pronouns in conjunction with holy days in Middle English works, a grammatical feature indicative of right. Chapter V is the central chapter in this thesis which focuses on sources from the thirteenth century onwards to prove that there was a medieval right to feasts.

Because of the different citation styles used, some explanation is needed. Canon law has several unique citation styles, however only the modern styles are used in this study.67 The Decretum uses its own unique citation style. The first component of citations for the Decretum is Pars, followed by the Distinctio or Causa, and then smaller subdivisions of quaestio, capitulum, or dictum. So, “D. 3 de cons. c. 1” refers to Pars III

(called Tractatus de consecratione), Distinctio 3, and capitulum 1. Citations that utilize

67 For detailed explanations of canon law citation styles, see James A. Brundage, Medieval Canon Law (New York: Longman, 1995), 190-202.

26 Texas Tech University, Justin Scott Kirkland, May 2013

“X” refer to the Decretals of Gregory IX and are followed by the numbers for book, title,

and chapter. However, unlike the Decretum, the citation style for the Decretals uses only numbers. So, “X 2.9.1-5” refers to Liber II, Titulus IX, Capitula 1-5.

English statutes have their own unique citation style which contain: an

abbreviated name of the monarch under which it was issued, the regnal year in which the

legislation was issued (which comes before the name), and usually a chapter of the

specific statute. This citation style is based upon the format of the Statutes of the Realm,

which lists legislation according to each monarch’s regnal years. In addition to that

citation style, this study also includes reference to the volume and page numbers of the

Statutes of the Realm. For instance, the citation “1 Statutes of the Realm, 101-102” refers to volume one and pages 101-102. This style is not used for Anglo-Saxon laws, which are generally cited according to king, followed by the number of the law code if the particular king issued multiple law codes, and the specific number of the law. Also

included is the page and the number of the law assigned by a specific sourcebook. The

number of the law may differ in various sourcebooks due to lack of consensus upon how

to divide Anglo-Saxon laws. See footnote 131 on page 46 for further explanation about

some of the citation styles used for certain Anglo-Saxon laws in this thesis.

Texas Tech University, Justin Scott Kirkland, May 2013

Chapter II Christianity, Anglo-Saxon England, and Feasts

This chapter will survey the legal status of feasts in Anglo-Saxon England. Feasts

became increasing important in laws from the late ninth to early eleventh centuries, even

though they remained little more than customary rites enshrined in written law.

Nevertheless, by the end of the Anglo-Saxon period feast laws had grown in complexity,

and the last series of Anglo-Saxon laws issued around 1018 conflated the Sabbath with

non-Sabbath feasts by prohibiting trade, legal matters, and servile work on holy days.

These trends developed in English law largely under the influence of the Church, and

ultimately contributed to the invention of the natural right to holy days in the twelfth and

thirteenth centuries.

Christianity in England and the Anglo-Saxon Church

Christianity in Britain survived the invasions of Saxons, Angles, and Jutes, albeit

as a minority religion, even though pagan Germanic tribes came to dominate southern

England.68 The 597 A.D. mission to England undertaken by St. Augustine of Canterbury

(d. 604), who is traditionally considered to be the founder of the English Church, directly

led to the Roman version of Christianity becoming dominant. Augustine converted King

Æthelberht of Kent (ca. 560-616) from paganism to Christianity and helped spread the

religion into Kent, Essex, and East Anglia. The second phase of conversion was from

616-625, and progress was shaky since it could be dissipated with the ascension to power

68 Charles Thomas, Christianity in Roman Britain To AD 500 (Berkeley, CA: University of California Press, 1981), 352-355; Peter Hunter Blair, Roman Britain and Early England: 55B.C.-A.D. 871 (Edinburgh, UK: Thomas Nelson and Sons, 1963), 222-224.

28 Texas Tech University, Justin Scott Kirkland, May 2013

of hostile pagan kings. The third phase from 625-642 was marked by great and sustained

expansion of Christianity as King Eadbald of Kent (r. 616-640) converted, along with the

East Anglian and West Saxon courts, leading to missionary efforts in Northumbria. In

the fourth phase from 653-664 the East Saxon, Middle Anglian, and Mercian rulers

converted to Christianity. The fifth and final phase was from 664-680s, and a period

when Sussex, the Isle of Wright, and the rest of the English kings converted, thereby

nominally making their peoples Christian.69 While the kings of England may have

publicly converted to Christianity as early as the seventh century, many of their people

continued to practice paganism long afterwards.70 At the end of the seventh century there was still a pagan tradition strong enough to lead King Wihtred of Kent (r. 690-725) to prohibit “offerings to devils.”71 This reality forced Christian missionaries to continue

efforts to spread the Christian message throughout the island, bringing the newly

imported Christian religion into direct conflict with traditional pagan beliefs.

The English Church was so far away from papal oversight that it developed

considerable autonomy over its own affairs. It could have looked for theological

guidance to the Celtic Church, much closer in proximity and culture, instead of to Rome.

However, it made a conscientious effort to reject overtures from the Christian Celts and

align itself with the Roman Church at the Council of Cloveshoo in 747, thereby adopting many of the liturgical practices and canons advocated by the pope.72 Thus, the English

69 Blair, Roman Britain and Early England, 9. 70 William A. Cheney, “Paganism to Christianity in Anglo-Saxon England,” The Harvard Theological Review 53, no. 3 (July 1960): 197-217, 198. 71 Wihtred, 13; “The Laws of Wihtred,” in The Laws of the Earliest English Kings, ed. F. L. Attenborough (Cambridge, UK: Cambridge University Press, 1922), 27. 72 “Canons of Cloveshoo,” in Documents Illustrative of English Church History, ed. Henry Gee and William John Hardy (New York: Macmillan and Co., 1896), 23.

29 Texas Tech University, Justin Scott Kirkland, May 2013

Church sought to copy the example set by the Roman Church, including its fasts and

feasts. Of course, the fact that England was separated from Rome by the English

Channel and hundreds of miles led to significant variations in ecclesiastical practices.73

From Pagan to Christian Feasts

Although some assumptions can be made about Anglo-Saxon religion, its pagan

beliefs and religious rites are largely unknown to historians because there was no written

religious tradition in England prior to the spread of Christianity. Anglo-Saxon paganism

was related to the Germanic tribal paganism on the continent and likely consisted of

similar seasonal festivals.74 There would have been feasts designed to worship the gods

and celebrate important events such as the beginning of spring, days of harvest, and

midwinter. Pagan feasts were times to conduct sacred rituals and praise the gods in the hope of retaining their good favor and blessings, especially to ensure a good harvest next year.75 Sacrifices were probably offered to the gods to secure their favor. Days of

celebration would have included the whole community and been organized around the

cycle of agricultural labor, occurring during times when there was little to do, such as after the crops had been harvested or in the middle of winter. Seasonal feasts tended to focus primarily on food due to its role in sustaining life.76 Since pagan feasts were

organized around the four seasons which were constant, they were carried on by a long

73 R. H. Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, The Oxford History of the Laws of England, vol. I (New York: Oxford University Press, 2004), 5-6. See also Robert Brentano, Two Churches: England and Italy in the Thirteenth Century (Princeton, NJ: Princeton University Press, 1968). 74 Gale R. Owen, Rites and Religions of the Anglo-Saxons (Totowa, NJ: Barnes & Noble Books, 1981), 48; Ronald Hutton, The Pagan Religions of the Ancient British Isles: Their Nature and Legacy (New York: Blackwell Publishing, 1991), 271-272. 75 Bell, Ritual: Perspectives and Dimensions, 103; Joachim Wach, Sociology of Religion (Chicago: University of Chicago Press, 1944), 265-268. 76 E. O. James, Seasonal Feasts and Festivals (New York: Barnes & Noble, 1961), 15.

30 Texas Tech University, Justin Scott Kirkland, May 2013

line of successive generations, becoming customary days of worship and celebration.

Instead of working on these special days, celebrants likely consumed great amounts of

alcohol, sang songs, danced, and participated in games, while maintaining the local

customary rites associated with the particular feast being celebrated.77

Christianity came into lands and communities of northern Europe as a foreign

influence with doctrines that were incompatible with the preexisting folklaw precepts of

the pagan peoples. Thus, when people became Christian, they had to change their

customs in order to make them compatible with Christian teachings. This included

customary pagan feasts. Conversion to Christianity might have meant the end of

traditional feasts, which would have been a very hard thing because it would have

violated the rites and ancestral traditions that tribal peoples respect. The change would be less severe if local feasts could be replaced by Christian celebrations. Pagan feasts were recognized by Pope Gregory I (r. 590-604) as an important part of the culture of newly converted peoples and accommodated to some extent in the calendar of Christian feasts.78 In a letter reported by the venerable Bede (673-735) to be from Gregory to

Archbishop Mellitus of Canterbury (r. 619-624), the pope directed that “because they

[pagan Anglo-Saxons] are in the habit of slaughtering much cattle as sacrifices to devils, some solemnity ought to be given them in exchange for this. So on the day of the dedication or the festivals of the holy martyrs…let them celebrate the solemnity with religious feasts…let them slaughter animals for their own food to the praise of God…It is

77 Madeline Pelner Cosman, “Feasts and Festivals, European,” in Dictionary of the Middle Ages, ed. Joseph Strayer, 13 vols. (New York: Charles Scribner’s Sons, 1985), 5:33-38. 78 Ann Hagen, Anglo-Saxon Food and Drink: Production, Processing, Distribution and Consumption (Hockwold cum Wilton, UK: Anglo-Saxon Books, 2006), 410.

Texas Tech University, Justin Scott Kirkland, May 2013 doubtless impossible to cut out everything at once from their stubborn minds.”79 It was on the basis of policies such as this one that many pagan symbols and customs were adapted to fit Christianity, including the reconsecration of pagan temples as Christian churches, reworking of magic spells into prayers, and refitting of pagan symbols and objects into Christian ornaments.80 This seems to have also occurred with feasts, as it has been suggested that the use of evergreens at Christmas harkens back to pagan midwinter celebrations while the feast of St. John the Baptist on June 24th is a continuance of the pagan observance of Midsummer.81

Folklaw and Anglo-Saxon Legal Institutions

Kingship had always been an important concept to the Anglo-Saxons. During pagan times kings (though it might be more accurate to call them chiefs) were considered to be the descendants of gods, specifically the god Woden.82 Their alleged divine descent allowed them to lay claim to divine powers associated with the secular power given to

79 Bede, Bede’s Ecclesiastical History of the English People Book I.xxx, ed. B. Colgrave and R. A. B. Mynors (London: Oxford University Press, 1969), 106-109. 80 Henry Mayr-Harting, The Coming of Christianity to Anglo-Saxon England (University Park, PA: The Pennsylvania State University, 1991), 220; William A. Chaney, The Cult of Kingship in Anglo-Saxon England: The Transition from Paganism to Christianity (Berkeley, CA: University of California Press, 1970), 199-200; Frank Barlow, The English Church, 1000-1066: A Constitutional History (Hamden, CT: Archon Books, 1963), 176. 81 Owen, Rites and Religions, 48. For a knowledgeable essay about the influence of Roman paganism on Christmas, see Gary Forsythe, “The Non-Christian Origin of Christmas,” in Time in Roman Religion: One Thousand Years of Religious History (New York: Routledge, 2012), 113-161. While Christianity undeniably adopted some aspects of pagan religion and feasts, to what extent is contested. Scholars Charles Read Baskervill and John Blair believe that many medieval feast customs developed from pagan religious rites. John Blair writes, “When a traditional society with participatory rituals faces destruction of its underlying belief-system, one response is to identify enthusiastically with the new religion’s rituals and…incorporate them. So, paradoxically, Christian rites and festivals can become the main vehicle for transmitting pre-Christian ones.” Ronald Hutton disagrees, noting that though some holidays, such as Christmas, do have pagan origins, most English holidays arose in the Christian era and are Christian holidays. See Charles Read Baskervill, “Dramatic Aspects of Medieval Folk Festivals in England,” Studies in Philology 17, no. 1 (January 1920): 19-87; John Blair, The Church in Anglo-Saxon Society (New York: Oxford University Press, 2005), 176; Hutton, The Stations of the Sun, 8. 82 William A. Chaney, Cult of Kingship, 7, 11-12; Bryce Dale Lyon, A Constitutional and Legal History of Medieval England (New York: Norton, 1980), 36.

32 Texas Tech University, Justin Scott Kirkland, May 2013

them as leaders.83 Christian kings began claiming the right to rule by the will of God,

thereby retaining a claim to divine power which they invoked through events such as

Christian coronation.84 As Christian kings they had a duty to preserve peace in their

lands, protect the Church, and ensure justice.85

No king in Anglo-Saxon England had a true legal system. Rather, the basis of law for the Anglo-Saxons was folklaw. Folklaw, or folkright, was the customary law of

the Germanic tribes, including the Anglo-Saxons, and was primarily concerned with

reparations or bot, which victims and their kindred were due from offenders. It was

considered to be the juridical will of the people and acted as a mechanism for mediating

disputes and grievances in order to avoid familial feuds and bloodshed.86 Individual communities defined their own form of folklaw based on time honored customs and enforced it through their leading men, allowing enormous variety in the local folklaws.87

With localities in charge of their own folklaw, the main duty of rulers was only to follow

up on folkright breaches, outlawry, and outbreaks of excessive violence.88 The king

could not change the folklaw because it belonged solely to the folk in each community.89

English folklaw was unwritten until King Æthelbert of Kent (r. 560/585-616) was

83 Lyon, Constitutional and Legal History, 39. 84 Lyon, Constitutional and Legal History, 39. For the evolution of conceptions concerning the religious and political nature of kingship in the Middle Ages from a Christ-centered kingship to a law-centered kingship to a polity-centered kingship, see Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press, 1957). 85 Lyon, Constitutional and Legal History, 40. 86 Harold J. Berman, “The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe,” The University of Chicago Law Review 45, no. 3 (Spring 1978): 589. 87 F. W. Maitland, The Constitutional History of England: A Course of Lectures Delivered by F. W. Maitland, ed. H. A. L. Fisher (Cambridge, UK: Cambridge University Press, 1968), 3-4. 88 J. E. A. Joliffe, The Constitutional History of Medieval England, from the English Settlement to 1485 (London: A. and C. Black, 1937), 45. 89 Joliffe, Constitutional History of Medieval England, 45.

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inspired by Christianity to write down some laws at the beginning of the seventh century.90 Even at the end of the Anglo-Saxon era, folklaw remained largely unwritten.

Anglo-Saxon England had only three main types of courts. The hundred court

tried the “ordinary cases of ordinary people.”91 The county court was for some of the

more important people in society. The Witan tried only the elite. Ecclesiastical cases

were heard in the county and Witan courts. The Anglo-Saxon kings had an extremely

close relationship with their clergymen and, at their insistence, attempted to encourage

Christian morality. One Anglo-Saxon law enjoined bishops and aldermen to attend the county court to put God’s law and the world’s law into practice.92 With such a close

relationship between the king and the Church, there was no clear differentiation between

secular and ecclesiastical jurisdictions.93 Ecclesiastical canons were published together

with royal laws, and canonical offenses were subject to secular penalties.94 When a fine was assessed in a court for an offence that infringed upon secular and ecclesiastical laws, such as laboring during feasts, the fine was shared by the king and the Church.95

However, the courts were weak and had trouble forcing people to accept their authority

and decisions, severely curtailing the effectiveness of laws.96

90 Maitland, The Constitutional History of England, 2. 91 M. M. Knappen, Constitutional and Legal History of England (Hamden, CT: Archon Books, 1964), 55- 56. 92 Edgar, I.7; “King Edgar’s Laws Ecclesiastical,” in A Collection of the Laws and Canons of the Church of England, From its First Foundation to the Conquest, and from the Conquest to the Reign of King Henry VIII, vol. I, ed. John Johnson and John Baron (Oxford, UK: John Henry Parker, 1851), 411. 93 Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I: Volume I, Second Edition (Cambridge, UK: Cambridge University Press, 1923), 40. 94 Barlow, The English Church, 1000-1066, 139-140, 145. 95 Lyon, Constitutional and Legal History, 92. 96 Pollock and Maitland, The History of English Law Before the Time of Edward I: Volume I, 49.

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Anglo-Saxon Feast Laws

Anglo-Saxon laws that dealt with feasts are important sources for understanding

later medieval feast laws. This section will trace the evolution of Anglo-Saxon feast laws

in chronological order while including some important English ecclesiastical canons

which were sources of inspiration to the kings.97 Careful analysis of these laws and

canons reveals the emergence of certain trends which would continue to exert influence

on later medieval laws and canons. It is important to note that most of the concepts

behind these laws were not innovations made by Anglo-Saxon kings but had been drawn

from previous canons about feasts established by the Church of Rome. The Roman

Church emphasized that its canons were based upon a sound scriptural reading of the

Third Commandment (Exodus 20:10), of course, that was only partly true as many of the

Roman ecclesiastical canons drew on customs from pagan Rome, such as holiday

abstention from work and legal cases.98

The main theme in Anglo-Saxon feast laws was prohibition. The vast majority of

Anglo-Saxon laws were specifically concerned with prohibiting certain ordinary activities on holy days. This is not unexpected. Secular and sacred worlds are inherently opposite and must be kept separate from each other or lose significance.99 Thus,

interdictions are created to prevent the negative consequences that would accompany the

97 For a good survey which places the Anglo-Saxon kings in historical context, see D. P. Kirby, The Earliest English Kings (London: Unwin Hyman, 1991). 98 A. H. Lewis, A Critical History of Sunday Legislation from 321-1888 A.D. (New York: D. Appleton and Company, 1888), 18-40; Geraldine Herbert-Brown, Ovid and the Fasti: An Historical Study (Oxford, UK: Clarendon Press, 1994), 16-19; Adolf Berger, Encyclopedic Dictionary of Roman Law, Transactions of the American Philosophical Society, New Series, vol. 43, part 2 (Philadelphia, PA: The American Philosophical Society, 1953), s.v. “Feriae (dies festi).” 99 Émile Durkheim, The Elementary Forms of the Religious Life: A Study in Religious Sociology, trans. Joseph Ward Swain (Glencoe, IL: The Free Press, 1947), 301; Bell, Ritual Theory, Ritual Practice, 74.

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blurring of sacred and secular. Because feasts are holy times they must be clearly

separated from mundane activities.100 For example, because labor is considered as a

secular pursuit, especially since its primary function is to provide necessities needed for

daily life, it should be avoided during holy times.101 To distinguish between holy and mundane activities does not mean that medieval people saw time as being either secular or sacred—they saw all time as sacred—but the distinction signifies that some times were holier than others.102 This sociological principle is based upon the concept that, as God is

sacred and holy, man may not approach God unless he is as free as possible from the

profane aura of everyday activities. During holy times he should do something not

profane, such as rest. The sociological requirement to abstain from some activities on

holy days, in order to make a day truly holy, significantly influenced the composition of

ecclesiastical and Anglo-Saxon feast laws.

The legal history of Anglo-Saxon England is quite mysterious because few legal

codes and records have survived. However, neither the laws of Æthelbert I (r. 560/585-

616) nor the laws of Hlothhere (r. 673-685) and Eadric of Kent (r. 685-686) from the

680s, which are the two earliest surviving sets of Anglo-Saxon laws, contain a law that

deals with holy days.103 The earliest known surviving laws from Anglo-Saxon England

that explicitly deal with the observation of holy days are from King Ine of Wessex (r.

688-726) which date to around 693 and state:

If a slave works on Sunday by his lord's command, he shall become free, and the lord shall pay a fine of 30 shillings. If, however, the slave works without the

100 Webster, Rest Days, 87; Durkheim, Elementary Forms, 306; Peter Burke, Popular Culture in Early Modern Europe (London: Temple Smith, 1978), 178. 101 Durkheim, Elementary Forms, 307. 102 See Le Goff, Time, Work & Culture, 43-44, 49; Duffy, Stripping of the Altars, 14-15. 103 See “The Laws of Æthelberht,” and “The Laws of Hlothhere and Eadric,” in Laws of the Earliest English Kings, 18-23.

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cognizance of his master, he shall undergo the lash or pay the fine in lieu thereof. If, however, a freeman works on that day, except by his lord’s command, he shall be reduced to slavery, or [pay a fine of] 60 shillings. A priest shall pay a double fine.104

Historian Patrick Wormald characterizes Ine’s laws as “feud-centered,” but notes that, by emphasizing punishment, they seem to have some Roman law influence.105 The

law demonstrates that by the late seventh century Christian ideas regarding the sanctity of

the Sabbath had made their way to England and were influential enough to move a ruler

to seek to have sacred days recognized by abstention from work. What is particularly

notable about this law is the way in which it prescribes punishment for masters who force

their slaves and servants to work on the Sabbath. Slaves forced to volate the law become

freemen and are owed thirty shillings, while slaves who work on their own accord merely

owe some unspecified fee to their master. Freemen who violate the law lose their

freedom or sixty shillings to their lord. It seems likely that the lord is susceptible to

greater penalties, loss of a slave and a fine, because the wording of the Third

Commandment was directed towards masters.106 This is not only an acknowledgement

that the precept embodied in the Third Commandment, upon which sabbatarian laws are

based, was primarily directed to lords, but also a sign that the elite of society were

expected to follow the law more closely than other social groups. The authoritative

position of lords was not absolute but limited by canonical prohibitions. They were

considered to know better than to make their servants work, and therefore assigned

104 Ine, 5.§1-2; “The Laws of Ine,” in Laws of the Earliest English Kings, 36. 105 Patrick Wormald, The Making of the English Law: King Alfred to the Twelfth Century, Volume I: Legislation and Its Limits (Malden, MA: Blackwell Publishers, 1999), 105. This is not to suggest that Roman law exerted great influence over Anglo-Saxon laws. Most scholars agree that there is very little trace of Roman law in Anglo-Saxon laws. See Ralph V. Turner, “Roman Law in England before the Time of Bracton,” Journal of British Studies 15, no. 1 (Autumn 1975): 1-2. 106 Exodus 20:10: “Thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates.”

Texas Tech University, Justin Scott Kirkland, May 2013

harsher punishments than freemen. Clergymen were assigned more severe penalties than

lords because of their authoritative position in the Church.

The next set of laws that pertain to holy days are from Wihtred of Kent (r. 690-

725). The laws date to around 695 and maintain that the Sabbath is a holy day where

work is prohibited:

If a servant, contrary to his lord’s command, does servile work between sunset on Saturday evening and sunset on Sunday evening, he shall pay 80 sceattas to his lord. If a servant makes a journey of his own [on horseback] on that day, he shall pay 6 shillings compensation to his lord or undergo the lash. If a freeman works during the forbidden time, he shall forfeit his healsfang, and the man who informs against him shall have half the fine, and [the profit arising from] the labour.107

As Wormald has pointed out, Wihtred’s laws are more elaborate and indicate that

laws were not only being recoded but also being legislated in writing by the end of the

seventh century.108 Wihtred specifically defined the Sabbath as a time when work was

not to be done, between sunset on Saturday and sunset on Sunday. Unlike Ine’s laws,

Wihtred did not address what should happen to lords who forced their servants or slaves

to work on the Sabbath. It seems that Wihtred expected them to observe the Sabbath and

not to force their servants to work, making a law regarding their punishment unnecessary.

This could be the case since Anglo-Saxon kings were considered to be speaking for the leading men of their domains, and the introduction of the document noted that “the notables, with the consent of all, drew up these decrees.”109 The lack of a law regarding

the punishment for lords might mean that an agreement existed among the leading men of communities across Kent to prevent their servants from working on the Sabbath, which would fit quite nicely with the democratic nature of the Witan and folklaw in Anglo-

107 Wihtred 9-11; “The Laws of Wihtred,” in Laws of the Earliest English Kings, 27. 108 Wormald, Making of the English Law, 102-103. 109 “The Laws of Wihtred,” in Laws of the Earliest English Kings, 25.

38 Texas Tech University, Justin Scott Kirkland, May 2013

Saxon England. It would also suggest that community leaders took responsibility for

ensuring that Church holy days were observed.

Surprisingly, it was not till the synod of Cloveshoo in 747 that the English Church

produced its first known canons concerning feasts, several decades after Ine and Wihtred

produced their feast laws. The synod was led by Archbishop Cuthbert of Canterbury (r.

740-760) and included representatives from the Mercians, West Saxons, East Angles and

other Anglo-Saxon peoples. According to the preface of the text from the meeting, the

synod sought to “settle the unity of the Church, and the state of Christianity.”110 The

canons about feasts state:

It is determined by the thirteenth decree, that the holy festivals of our Lord's Incarnation be uniformly observed…[with] the celebration of masses…And that the nativities of the saints, throughout the circle of the whole year, be venerably kept on the same day, according to the martyrology of the said Roman Church…In the fourteenth place it is ordained, that the Lord's day be celebrated by all, with due veneration, and wholly dedicated to divine service. And let all abbots and priests, on that most sacred day…instruct the servants subject to them, from the oracles of Holy Scripture, in the rules of religious conversation and of good living. It is also decreed that on that day and the great festivals, the priests of God do often invite the people to meet in the church, to hear the word of God.111

These canons demonstrate a very strong movement to observe not only the

Sabbath but also holy days kept by the Church in Rome, indicating just how strong of a

will there was to model the English Church after the Roman Church.112 The synod

basically attempted to treat feast days in a manner very similar to the Sabbath by

prohibiting work, travel, and business matters while urging the laity to attend mass at

church, though it did not assess penalties for working on holy days. An enormous

110 “Canons of Cloveshoo,” in Documents Illustrative of English Church History, 16. 111 “Canons of Cloveshoo,” Chapters 13, 14, 17, Documents Illustrative of English Church History, 21-23. 112 Nicholas Howe, “Rome: Capital of Anglo-Saxon England,” Journal of Medieval and Early Modern Studies 34 (2004): 142-172.

39 Texas Tech University, Justin Scott Kirkland, May 2013

difference separates the laws set forth by Ine and Wihtred from the complexity of the

mandates from the synod of Cloveshoo. This is not unexpected because the church was

far more experienced and advanced in formulating legal precepts than seventh century

Anglo-Saxon kings were, leading the kings to follow the example set by synodal canons

in addition to the laws of their predecessors. Alfred the Great (r. 871-899) admitted that

his laws largely drew on preexisting sources.113

The first known instance of an English law pertaining to the observation of holy

days apart from the Sabbath is found amid the laws of Alfred the Great, dating to around

887. During the two centuries between Wihtred and Alfred, only King Offa of Mercia (r.

757-796) is mentioned as having created a set of laws in the late eighth century, and his

laws are lost. This makes Alfred’s laws an extremely important marker for the evolution

Anglo-Saxon laws. Alfred’s laws mandate that certain holy times be observed by a

cessation from labor. They state:

The following days shall be granted [as holidays] to all free men, though not to slaves and hired labourers: twelve days at Christmas and the day on which Christ overcame the devil; the anniversary of St Gregory; seven days before Easter and seven days after; one day at the festival of St Peter and St Paul; and in autumn, the full week before St Mary’s mass; and one day at the celebration of All Saints. The four Wednesdays in the Ember weeks shall be granted [as holidays] to all slaves whose chief desire is to sell anything which has been given to them in God’s name, or which they are able to acquire by their labour in any portions of time at their disposal.114

The wording of the law indicates that Alfred, through the law, grants the holidays

to free men. In other words, freemen are given these holidays not exactly from God or

113 “The Laws of Alfred,” in Laws of the Earliest English Kings, 63: “Now I, King Alfred, have collected these laws, and have given orders for copies to be made of many of those which our predecessors observed and which I myself approved of…For I have not dared to presume to set down in writing many of my own.” 114 Alfred, 43; “The Laws of Alfred,” in Laws of the Earliest English Kings, 84-87.

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the Church, but from the king through his God-given power. Because the king is a quasi-

temporal entity who can renounce his grants, this law is clearly not evidence of a natural

right, or really any type of right, to holy days. It is notable that slaves are not granted all

of the holy days that freemen are. The law identifies 37 holy days for freemen, yet only 4

for slaves. Clearly the observance of holy days is not for all members of society equally.

The law is not very sophisticated in the way it grants holidays to various social classes. It

does not have any consequences for masters who make their slaves work on one of their

holy days. One of the most interesting facets of this law is that it gives permission to

slaves to conduct secular business on their four holidays such as selling their possessions,

business that would eventually become illicit in Anglo-Saxon England at the insistence of

the Church.115 Of special note is the fact that the law mentions the major feasts of

Christmas and Easter, while also including feasts for St. Gregory, St. Peter and St. Paul,

St. Mary, and All Saints. This is the first list of feasts that were to be legally celebrated

across the kingdom. Only four different feasts besides Christmas and Easter are

mentioned, a great contrast to the much longer feast lists that later developed.

The next feast law was issued by King Æthelstan (r. 924-939) around 925. It was simpler than Alfred’s and simply stated, “Let there be no marketing on Sundays: let the offender forfeit the value of the goods, and pay thirty shillings.”116 This short law is the

first Anglo-Saxon law to explicitly target markets in an attempt to stop secular economic

activities on the Sabbath. It is evidence of a reversal in attitude concerning commerce

from the days of Alfred when trade, at least by slaves, was allowed on holy days. It

115 Neale, Feasts and Fasts, 106. 116 Æthelstan, I.6; “King Ethelstan’s Laws Ecclesiastical,” in A Collection of the Laws and Canons, I, 334.

41 Texas Tech University, Justin Scott Kirkland, May 2013

appears that a negative view of mercantile activities and the belief that such activities

should not occur on holy days took had taken root, resulting in this law.117 Wormald

characterizes Æthelstan’s laws as reflecting greater ambitions concerning the formulation

of legal principles in conjunction with more technical legal wording of legal

statements.118

Archbishop Odo of Canterbury (r. 941-985), who held office during the reigns of

Æthelstan, Edmund (r.939-946), and Eadred (r. 946-955), created a set of canons around

943 that provide a better example of the English church’s position regarding the

observation of holy days. One particular canon states, “the Lord's day, and the festivals

of saints, ye are to take care that ye observe with all caution, [by ceasing] from all secular

work. Consent to no vain superstitions; nor worship the creature more than the Creator,

with magical illusions.”119

This canon is very clear that during saints’ feasts and the Sabbath no one should

engage in any secular work. Essentially, it implies that the feasts of saints are equal to

the holiness of the Sabbath and should be observed in a similar manner.120 By its

command to abstain from worshipping beings other than God, it hints that some pagan

traditions continued into the tenth century and became associated with Christian holy

days. In any event, this canon does not designate a punishment for those who engage in

secular work upon holy days, unlike the laws previously established by Alfred and

Æthelstan.

117 A negative view of commerce dominated throughout much of the Middle Ages due largely to the Church. See Diana Wood, Medieval Economic Thought (Cambridge, UK: Cambridge University Press, 2002), 2-3; James Davis, Medieval Market Morality: Life, Law and Ethics in the English Marketplace, 1200-1500 (New York: Cambridge University Press, 2012), 121-123, 184-186. 118 Wormald, Making of the English Law, 304. 119 Odo, “Odo’s Canons,” Chapter 9 in A Collection of the Laws and Canons, I, 362. 120 Barbara Harvey, “Work and Festa Ferianda,” 290.

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King Edgar reigned from 959-975 and published his own set of laws, likely near

the beginning of his reign. One law includes the provision: “Let every Sunday be kept in

a festival manner from the noon-tide on Saturday till Monday morning light, under the

penalty which the doom-book mentions; and every other mass-day as commanded.”121

In the nineteenth century Edward Neale analyzed this law and concluded that

“though the abstinence from labour or trading is not expressly mentioned, it can scarcely be doubted that this mode of celebration was to be included.”122 His analysis is likely

correct because in the mid-tenth century the canons of Odo treated non-Sabbath holy

days, deeming them just as holy as the Sabbath. Though the law primarily deals with the

Sabbath and fasts, it includes the statement “every other mass-day as commanded,” which seems to be an afterthought due to the fact that the statement is so short and does not specifically use the word “feasts.” Presumably, this statement refers to feasts since on those days a special mass was held. The law seems be constructed in a way that relies more on custom to dictate which days are “mass-days” and define what “festival manner” entails. Altogether, this is a further example of the role of custom in folklaw. One notable facet of this law is the way it specifies the time of Sunday observance as extending from Saturday noon to Monday sunrise. Though the law largely appears to rehash previous laws, this one innovation appears to have no precedent.123

One source that provides insight into the relationship between individuals and

feast days is a penitential canon written around 963 that John Johnson, the editor and

121 Edgar, I.5; “King Edgar’s Laws Ecclesiastical,” in A Collection of the Laws and Canons, I, 410. 122 Neale, Feasts and Fasts, 108. 123 Dorothy Haines, Sunday Observance, 22.

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translator, attributes to Archbishop Dunstan of Canterbury (r. 988-990).124 Penitential

canons are not the same as canons established by a synod—they were originally intended

for monastic communities and only later entered into unofficial collections to guide

priests in assessing penances to sinners—but they are still helpful in understanding law

because they could apply to all Christians.125 The canon states:

Wrong is never allowed at any time: yet a man should also especially guard himself on festival and fasting days: and as a man is of greater power and quality, so he ought to make deeper satisfaction, both to God and the world, for wrong done; therefore the mighty and the mean man, the healthy and the sickly, ought not to have the same burden; and therefore a man is to judge with moderation, and discreetly to distinguish.126

The holiness of feast days is clear in this passage because it declares people

should take special care to avoid committing sins. Though the canon does not specify

whether laboring on holy days is sinful, it does emphasize the need to judge the specific conditions of individuals when designating penances. Instead of encouraging uniformity in the penances meted out to holy day offenders, the canon advocates a case-by-case approach.

A pastoral letter probably written by the respected abbot Ælfric of Eynsham (ca.

955-1010) to clergymen at the behest of Bishop Wulfsige III of Sherborne (r. 993-1002) provides more insight on why certain holy days were to be kept sacred and free from work.127 The letter is a series of directives to the clergy and written as though Wulfsige

himself is the author, with the exception of the beginning where Ælfric directly addresses

124 John Johnson, A Collection of the Laws and Canons, I, 426. 125 Berman, Law and Revolution, 69. 126 “Penitential Canons of Confession,” Chapter 3 in A Collection of the Laws and Canons, I, 428. 127 Numerous historians have confused Ælfric of Eynsham with other Ælfrics, including Archbishop Ælfric of Canterbury (r. 992-1005) and Archbishop Ælfric of York (r. 1023-1041, 1042-1051). See Christopher A. Jones, Ælfric’s Letter to the Monks of Eynsham (Cambridge, UK: Cambridge University Press, 1998), 5, 92-102.

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Wulfstan. Ælfric of Eynsham was a strong proponent of proper feast observance and

worked in conjunction with the like-minded and powerful Archbishop Wulfstan of York

(r. 1002-1023) to try to achieve their common goals. They were responsible for greatly

accelerating the development of feast legislation in the late tenth and early eleventh

centuries.128 One of the directives in Ælfric’s order states that:

The mass-priest shall tell to the people on Sundays and festivals the meaning of the gospel in English…that they may know the faith and observe their Christianity…We command you priests, that you command all the people who belong to you…that the first four Easter days be freed from all servile work, because at that season all the world was freed from captivity to the devil. And every Sunday shall be observed as a festival from Saturday noon till dawn on Monday; and the festival of every mass-day which was appointed and enjoined as a festival in the days of our royal lord’s ancestors and of our predecessors…Now you have definitely heard what you have to do and what you have to abstain from. If you act contrary to this, we cannot help it and we will be guiltless in God’s judgment.129

The significance of this statement is enormous. It cites the fact that servile work

should cease on four holy days around Easter because they commemorate the crucifixion

of Christ on Easter that released men from damnation, which is essentially the whole

theme of Christianity. In addition to observing the Sabbath, the canon also forces the

observation of other feasts. It appears that Ælfric readily accepted them on the basis that

they were already preordained by ancient custom. Also notable is Ælfric’s admission that

he does not have the temporal means to ensure that these canons are kept by the clergy

but he believes that God will take care of transgressors. This admission supports the

view that Anglo-Saxon government had little centralization and was forced to rely on

localities to implement the laws and canons put forth by authorities.

128 Dorothy Haines, Sunday Observance, 32. 129 Ælfric of Eynsham, “Ælfric’s Pastoral Letter for Wulfsige III, Bishop of Sherborne,” in Councils & Synods with Other Documents Relating to the English Church: Volume I: A.D. 871-1204, Part I: 871-1066, ed. D. Whitelock, M. Brett, and C. N. L. Brooke (Oxford, UK: Clarendon Press, 1981), 208-209, 224-226.

45 Texas Tech University, Justin Scott Kirkland, May 2013

The Council of Eanham in 1009, near the end of the reign of King Æthelred II the

Unready (r. 978-1016), set forth some canons that appear to have been greatly influenced by Archbishop Wulfstan of York (r. 1002-1023).130 The canons order:

Let feasts and fasts be duly observed. Let Sunday be strictly observed, as becomes that festival, and let men carefully desist from trafficking and county courts, and huntingbouts and worldly works on that holy-day…Let other feasts and fasts be diligently kept by all, in that manner that they do who keep them best. Also the ember-days, and [other] fasts, as St. Gregory himself commanded the English nation. And let men fast every Friday, except it be a feast. And let ordeal and oaths and marriage be always forbidden on high festival days, and on the solemn ember-days…And it is also fit that there be common peace and concord to all Christian men on these holy tides, and that all law-suits be put far away. If a man be indebted to another upon security given, or by way of satisfaction [for wrong done] in any worldly thing, let him duly pay it either before or after…But now we will charge the servants of God…that they duly pay God's rights every year, and solemnly observe feasts and fasts, and desist from marketings and county courts on Sundays…And this is in earnest right law.131

These canons reaffirm the previously established legal traditions of prohibiting

men from engaging in secular affairs such as attending markets or county courts on holy

feast days, and even explicitly prohibit men from hunting. They also emphasize that on

holy days many legal activities are forbidden, such as marriage and lawsuits, unlike in

Edgar’s laws. There is undeniably more complexity and development here in the degree

of prohibiting legal activities during feasts than is seen in the legal prohibitions from

Edgar’s laws half a century earlier. They categorize the Sabbath as a festival, parallel to

130 Wormald, Making of English Law, 332. 131 Æthelred, VI.22-25, 43; “Laws Ecclesiastical and Canons at Eanham,” in A Collection of the Laws and Canons, I, 486-487 [15-18], 490 [30]. Note that because of popular usage, the citation for Æthelred’s laws is based upon the citation style found in Ancient Laws and Institutes of England; Comprising Laws Enacted Under the Anglo-Saxon Kings from Æthelbirht to Cnut, with an English Translation of the Saxon; The Laws Called Edward the Confessor’s; The Laws of William the Conqueror, and Those Ascribed to Henry the First: Also, Monumenta Ecclesiastica Anglicana, from the Seventh to the Tenth Century; and the Ancient Latin Version of the Anglo-Saxon Laws. With a Compendious Glossary, ed. Benjamin Thorpe (London: G. Eyre and A. Spottiswoode, 1840). The translation by Johnson is quoted because it is of clearer quality. Whenever there is a discrepancy in the numbering of laws between Thorpe and Johnson, the numbers assigned by Thorpe are given first in the citation while the numbers assigned by Johnson are given second and in brackets beside the page numbers on which they can be found.

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other non-Sabbath major feasts. This illustrates just how far perceptions concerning the

status of feasts in relation to the Sabbath had developed by the late tenth and early

eleventh century, demonstrating that “festivals” had now come to include both the

Sabbath and feasts.

While Æthelred helped promote the idea that activities ranging from business

transactions to legal affairs were forbidden on feasts, he did permit business transactions

around Michaelmas (September 29), which was not unusual as this was the customary

day when debts were repaid. One of his laws permits servants to abstain from work

around the feast but does not mandate that they do so: “And let every servant be excused

from labour these three days, that he may the better perform his fast; [or] let him work

what he will for himself. These are the three days, Monday, Tuesday, and Wednesday

next before the feast of St. Michael.”132 It is significant that the law allows servants to decide whether they will rest or work on the three days before Michaelmas, which is a departure from the previous trend of laws expressly stating what laborers are not to do on holy days. Servants are treated as conscientious individuals capable of making their own choices over whether to engage in secular or spiritual pursuits. Wormald notes that prior to Wulfstan exerting his influence over the construction of laws, the most noticeable feature of Æthelred’s laws was their more secular character in regards to the previous

Anglo-Saxon laws.133 The creation of more laws concerning holy days by the kings

132 Æthelred, VIII.2; “King Ethelred’s Laws Ecclesiastical,” in A Collection of the Laws and Canons, I, 496 [2]. 133 Wormald, Making of English Law, 328.

47 Texas Tech University, Justin Scott Kirkland, May 2013

Wulfstan advised (Æthelred and Cnut) has led some scholars to suggest that the proper

observance of holy days was his special concern.134

Wulfstan tried to demarcate proper feast observance not only through synodal

canons but also by forging a source purporting to be canons made during King Edgar’s

rule.135 Though these false canons do not date to Edgar’s lifetime, they are worthy of discussion because they still shed immense insight into Wulfstan’s ideals concerning feast observance. They state:

And that men on holy-days forbear heathenish songs, and diabolical sports. And that men abstain on the Sunday from markets, and county courts…And that there be no violent strife between men on festival or fasting days. And that on festival and fasting days, oaths and ordeal be forborne. And that every man abstain from his wife on festival and established fasting days… That all priests be uniform as to the feasts and fasts, and all bid them in the same manner, that they may not misinform the people.”136

The ideals expressed in these “canons” go far beyond any previous regulations

regarding illicit activities on holy days and demonstrate an attempt to remedy certain

issues viewed by Wulfstan as unholy problems. Based on these laws it appears that

entertainment often took place on feasts, such as sports and the singing of raunchy

secular songs—likely accompanied by inebriation which might explain the occurrence of

fights. In fact, historian John Blair has suggested that the prohibitions in canons and law

codes against songs and “diabolical” sports on feasts offer evidence that sports such as

horse races and the singing of vulgar songs were pagan customs that, to the dismay of clergymen, had survived the conversion of the kings and people of England.137 One

134 Dorothy Haines, Sunday Observance, 22-23. 135 Dorothy Haines, Sunday Observance, 24. 136 “Canons Made in King Edgar’s Reign,” in A Collection of the Laws and Canons, I, 416-417 [18-19, 23- 25], 421 [48]. 137 John Blair, Church, 176.

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important feature of these laws is the prohibition of county courts and legally related

activities such as oaths and ordeals, suggesting that legal activities still occurred on feasts

regardless of whether it was a holy day or not. This is significant because the abstention

from work was applied to secular institutions as well as people. Also relevant is the

attempt to mandate that priests follow a uniform calendar celebrated with uniform

customs so that they will not misinform the people. This confirms that in the mid-

eleventh century local religious rites and calendars still varied significantly despite attempts to standardize them through legislation. Though the “canons” in this source were forged, they still may have been given some potency by Wulfstan himself since he was in a position of power.

Wulfstan’s historical forgeries did not stop with Edgar’s “canons.” Modern research has also indicated that another source, traditionally called “The Laws of Edward and Guthrum” because it alleges to be legislation that Alfred, Edward the Elder (r. 899-

924), and Guthrum (d. 890?) agreed upon, was actually composed by Wulfstan.138 There

are significant differences on the issue of feast work between Alfred’s laws and this

source, suggesting it is neither from Alfred nor his son Edward the Elder. In fact, based

upon the way which it treats festivals, it fits better with the feast legislation of the late

tenth and early eleventh centuries. The source says about feasts:

If a mass priest misdirects the people with regard to a festival or a fast, he shall pay 30 shillings in an English district, and 3 half-marks in a Danish district…If a freeman works during a church festival, he shall be reduced to slavery, or pay a fine or lahslit. A slave shall undergo the lash or pay the fine in lieu thereof. If a slave is compelled to work by his lord during a church festival, he [the lord] shall pay lahslit within the Danelagh, and a fine in an English district…Trial by ordeal

138 Dorothy Whitelock, “Wulfstan and the So-Called Laws of Edward and Guthrum,” The English Historical Review 56, no. 221 (January 1941): 1-21.

49 Texas Tech University, Justin Scott Kirkland, May 2013

and [the rendering of] oaths are forbidden during festivals…He who breaks this [decree] shall pay lahslit in a Danish district, and a fine in an English district. If it can be so contrived, no capital offender shall ever be put to death during the feast of Sunday, but he shall be arrested and kept in custody until the feast is over.139

Apparently Wulfstan was attempting to establish that there was a law to refrain

from work during holy times that threatened violators with rather harsh penalties.

Freemen could lose their freedom and social status simply by working on the wrong day.

However, as a law this source is still underdeveloped since it does not specify the amount

of the fine. There is a clear desire to have festivals celebrated on the correct days in the

proper way, as demonstrated by the institution of a fine against priests who misinform

their congregation about a feast or fast. These “laws” also introduce important

“precedents” in regards to justice, fake though they may be. Ordeals and oaths, widely

used by the Germanic peoples in settling the guilt of a person accused of a crime, are

forbidden on holy days. It seems as though the pagan Roman taboo of holding court on

sacred days was applied and translated to fit Germanic society, undoubtedly at the behest

of clergymen. The hiatus on institutions and actions related to justice even extended to

the executions of murderers. Of special note is the differentiation made between English

lands and the Danelaw, lands where the law of the Danes dominated.

The last set of royal Anglo-Saxon laws was issued during the reign of Cnut (r.

1018-1035). These laws provide a glimpse into the great transformation of legal thought

in England that had occurred over the past few centuries. Wormald characterizes the

laws of Cnut as one of the most sophisticated pieces of legislation from post-Roman

Europe, an attempt to codify the laws created by earlier kings while correcting their

139 Edward and Guthrum, 3.§1, 7.§1-2, 9; “The Laws of Edward and Guthrum,” in Laws of the Earliest English Kings, 103-105, 107.

50 Texas Tech University, Justin Scott Kirkland, May 2013

failings.140 Cnut’s laws were more comprehensive than the laws of his predecessors and

tried to support the English Church’s enforcement of morality through legal means.141

The first set of laws states about festivals:

And let every man very diligently preserve God’s rights, as there is occasion. Let feasts and fasts be observed, every Sunday feast from Saturday noon till Monday morning light; and every other festival, as is enjoined. We strictly forbid Sunday's market, and county court also, unless in case of great necessity. And let huntings and all worldly works be diligently forborne on the holydays…And we forbid ordeal and oaths on festivals, and ember, and Lent, and solemn fasting days…And wise men have chosen St. Edward's [Edward the martyr] mass-day to be kept as a festival all over England, on the fifteenth of the kalends of April, and St. Dunstan's mass-day on the fourteenth of the kalends of June: and let there be common peace and unity on these holy tides to all Christian men, as right is, and let all hypocrisy be far away. And if one have given security, or owe a man satisfaction upon any temporal account, let him pay it before or after.142

In this set of laws festivals continue to be treated in the same manner as Sabbath

days. Secular business transactions and legal affairs are strictly forbidden, but Cnut

creates a loophole in the prohibition by allowing them to operate on holy days if there is

“great necessity.” Previous laws prohibit all markets and legal matters and make no

exceptions for necessity. This loophole suggests that while it is still the belief of authorities that secular affairs should be prohibited on holy days, they are willing to be more flexible and take a common-sense stance on the issue when there is a desperate need. Another interesting facet of these laws is the prohibition of “worldly works” on holy days. This prohibition is remarkable because it explicitly bans worldly works, thereby envisioning holy days as times of sacred works, non-holy days as times of secular

works. The law also emphasizes that all should observe holy days, not just freemen or

140 Wormald, Making of English Law, 362, 349, 363. 141 Wormald, Making of English Law, 363, 365. 142 Cnut, I.14-15, 17; “King Cnute’s Laws Ecclesiastical [A. D. 1017],” in A Collection of the Laws and Canons, I, 507-508.

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slaves. An interesting component of one of the laws is the observance of the feasts of St.

Edward and St. Dunstan, both Anglo-Saxons, because the feasts have been chosen by

“wise men.” This statement clearly indicates that the observance of these two feasts in

Cnut’s first set of laws follows a tradition established by other authorities, presumably the

high clergy. Thus Cnut continues the tradition of establishing laws largely influenced by

the Church, laws that essentially copied preexisting canons.

Cnut followed his first set of laws with another set later in his reign, which treats

feasts in the same manner as the first set of laws, but expounds on some issues. It states:

What is contrary to right is allowed at no time; yet a man ought to guard himself especially at holy times and places, and the greater his authority is, or the higher order he is of, the deeper satisfaction shall he make for the wrong, both in regard to God and to the world. And let satisfaction be always diligently sought for toward God by the canon book, and toward man by the secular law…If a freeman work on a festival day, let him make satisfaction by the pillory, and especially let him diligently make satisfaction with God, as he is enjoined. If the slave work, let him forfeit his hide, or a compensation for it in money, in proportion to the fact. If the lord force the slave to work on the festival, let him forfeit the slave, and let [the slave] be free. And let the lord pay a fine among the Danes, a mulet among the English, in proportion to the fact; or else let him make his purgation.143

Cnut’s second set of laws shows the influence penitentials had on feast laws. The

admonishment to always refrain from wrong, but especially on feasts, is strikingly similar

to the previously discussed penitential canon statement that “wrong is never allowed at

any time: yet a man should also especially guard himself on festival and fasting days .”

While the penitential did not discuss laboring on a feast, Cnut’s second set of laws does

and even specifies the punishments for laboring on a feast. If a slave freely chooses to

work during feasts, he is required either to “forfeit his hide” or pay compensation; if his

master forced him to work, then he is to be freed. This punishment, built upon the

143 Cnut, II.38, 45; “King Cnute’s Laws Ecclesiastical [A. D. 1018],” in A Collection of the Laws and Canons, I, 513, 516.

52 Texas Tech University, Justin Scott Kirkland, May 2013 punishment assigned by Ine for working on the Sabbath, demonstrates that despite the increasing complexity of laws over the last few centuries, at their core they are still very much Anglo-Saxon folklaws, records of customs rather than intricate policies. The other notable component in these laws is the reference to wrongdoers making amends to God according to canons and amends to society according to the secular law. This seems to be one of the earliest indications in Anglo-Saxon England of a distinction being made between canon and secular laws. The division of laws into sacred or secular categories is significant because it provides evidence that thought concerning different jurisdictions was developing, though it was certainly in the early stages. Also notable is the distinction made between Danes and Englishmen concerning the amends lords must make for forcing their slaves to labor on a feast day, further evidence that this law is still a type of folklaw because it treats peoples with different customs and folklaws differently.

Trends

By the late ninth and tenth centuries, Christianity was the dominant religion of the

Anglo-Saxons. This period is especially interesting because from Alfred to Cnut each

English king issued his own set of laws, each more technical and complex than the previous ones. By analyzing feast laws compiled during the Anglo-Saxon era, in conjunction with other primary sources, some trends become readily apparent. The church took the lead in making canons, which served as a roadmap for Anglo-Saxon kings when they produced their own sets of laws. Also, the status of feasts rose over time, giving rise to prohibitions against secular activities ranging from labor to business and legal affairs.

53 Texas Tech University, Justin Scott Kirkland, May 2013

The two oldest surviving English codes demonstrate that from the beginning of

English legal history the Sabbath was considered to have a sacred status of such special

importance that authorities considered it necessary to enshrine its observance in written

law, whereas the non-Sabbath holy days apparently were not considered important

enough to be included in the earliest laws. This changed by the mid-tenth century when

canons and laws concerning the observation of feasts were connected with the Sabbath.

These particular canons and laws spoke about the Sabbath and feasts in similar ways.144

The inclusion of the saints’ feasts when discussing the prohibition of work during the

Sabbath indicates that by the mid-tenth century non-Sabbath holy days had become equal, or almost equal, to the sanctity of the Sabbath, at least when it came to prohibitions.145

The second trend that emerged was the application of feast laws to all social

classes in regards to the prohibition of work on holy days. While the first written Anglo-

Saxon laws, including Ine’s laws, do not even mention non-Sabbath holy days, from the late tenth or early eleventh centuries onwards holidays were treated as sacred days that should be spent engaging in spiritual activities instead of mundane secular work, as witnessed by the writings of Ӕlfric and forgeries of Wulfstan. Wulfstan’s forged treaty between Edward and Guthrum only ordered freemen and slaves to abstain from labor on holy days, with some rather harsh punishments for offenders, but not all men. However,

144 See “Odo’s Canons,” in A Collection of the Laws and Canons, I, 362: “[on] the Lord's day, and the festivals of saints, ye are to take care that ye observe with all caution, [by ceasing] from all secular work.” 145 Barbara Harvey identified the perception at the end of the ninth century that feasts were equivalent to the Sabbath in terms of mandating rest. However, based upon the analysis of Anglo-Saxon legal documents which do not provide real solid evidence for the emergence of the trend prior to Odo’s canons, it seems more appropriate to place the emergence of this trend in the mid-tenth century. See Barbara Harvey, “Work and Festa Ferianda,” 290.

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from the mid-tenth century onwards feast laws treated different social classes similarly, except in the laws of Cnut. It appears that, eventually, all classes of the laity were expected to refrain from labor on holy days, at least in principle. In actuality, though, some domestic duties of slaves and servants probably continued regardless.

Another trend was toward prohibiting secular commercial business on feast days, specifically activities involving trade. Though Alfred permitted slaves to conduct secular business on holidays, by the end of the tenth century related commercial activities such as markets were explicitly banned by legislation. They came to be considered problematic because they kept people from devoting themselves wholly to spiritual endeavors. Of course, festivals were prime times for merchants to ply their wares due to the crowds of people coming together to worship and socialize. Thus, despite the prohibitions against them, markets continued to be held on holy days.

Legal matters, such as holding county court or carrying out ordeals, were increasingly prohibited on feasts. This potentially indicates that in tenth century England legal affairs were identified as having an essentially secular nature incompatible with sacred days. Legal matters must have been becoming more important in Anglo-Saxon

England since authorities came to believe that it was necessary to introduce legislation about them.

One of the most important trends relating to the development of Anglo-Saxon laws was the insertion of canons into the laws established by kings. It is no coincidence that the 747 Council of Cloveshoo called for the laity to abstain from work on holy days and from Alfred onwards labor was prohibited on holy days. The Church had far more

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developed legal precepts that inspired Anglo-Saxons kings to copy them. Furthermore, kings and clergymen worked together to form canons and laws, so it is no surprise that throughout the Anglo-Saxon era the laws published by kings were based on canons. This relationship of kings copying the more advanced canon laws is extremely important to note because it demonstrates the powerful influence canon law had over non- ecclesiastical laws, influence that would continue into the Norman era.

The most important trend which emerged in the Anglo-Saxon feast laws was

harsher penalties for masters who made their servants work on holy days. This trend

arose as a result of the early Church fathers’ understanding that the Third Commandment

was primarily directed towards masters. This understanding was enshrined in various

doctrinal works and canons, and eventually accepted by Anglo-Saxon clergymen and kings who made it a part of their laws as well. Ine was the first king to include a provision concerning the Sabbath in his laws, and the provision was later applied to other festival days in the second set of laws from Cnut. The right to holy days would not become an actual right until subjective rights were created in the twelfth and thirteenth centuries, but even in the Anglo-Saxon era holy day laws were clearly developing in this direction. Punishing masters who made their servants work on holy days more than the freemen or servants who did would become a way in which authorities acknowledged the right of individuals to observe holy days. The later laws sought to prevent masters from infringing upon the rights of their servants and to punish those that did. The extra penalties assigned to the master were for unjustly encroaching upon the rights of his servants.

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Conclusion

Despite the great transformations that occurred in the realm of Anglo-Saxon law from the seventh through early eleventh centuries, feasts remained customary religious rites throughout the period and continued to be rites well into the Norman era of English history. The laws of Cnut, even though they were the most comprehensive set of laws in the history of Anglo-Saxon England, were still laws of a folklaw legal system. There was no real articulation of overarching legal principles in any part of the Anglo-Saxon period that would approach the sophistication of the canon law and common law legal systems, nor were there legal institutions separated from other social institutions or a professional class of judges and lawyers.146 Canon law historian R. H. Helmholz summed up the

canons established during the Anglo-Saxon era, “Laws with an ostensibly religious

character abounded, but government of the church by law did not.”147 The tribal and

customary characteristics of the folklaw remained in place as the primary legal system of

localities until some legal innovation began taking place in the late eleventh century.148

The fact that the Anglo-Saxons still relied on folklaw meant that in a legal sense feasts

were still little more than customary rites at the time of the Norman Conquest.

Despite the legal accomplishments of each king from Alfred to Cnut, from Cnut to William the Conqueror no English king produced another set of laws. There is a set of laws purportedly from Edward the Confessor (r. 1042-1066), but scholars across

146 Berman, “Background of the Western Legal Tradition,” 587; Helmholz, Canon Law and Ecclesiastical Jurisdiction, 1. 147 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 1. 148 Berman, Law and Revolution, 68. For the argument that there was a transformation in cognitive thinking by 1100 from a folklaw mentality to a more legalistic mentality, see Charles M. Radding, “Evolution of Medieval Mentalities: A Cognitive–Structural Approach,” The American Historical Review 83, no. 3 (June 1978): 577-597.

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centuries have questioned the genuineness of the document and it seems probable that it

is a fake.149 This lacuna in the legal history of England has drawn the ire and disdain of

many legal historians throughout the years. Historians Frederic W. Maitland and Francis

C. Montague contemptuously hypothesized, “Had Canute’s successors been his equals in

vigour and wisdom, perhaps the change might have been consummated peacefully, and

by means of written laws which we might now be reading. As it was, there came to the

throne the holy but imbecile Edward.”150 The next major development in the area of

English law did not occur until 1070, after the Normans had conquered England.

149 See John Johnson, “Supposed Laws Ecclesiastical of King Edward the Confessor: Preface,” I, 521; Bruce R. O’Brien, God’s Peace and King’s Peace: The Laws of Edward the Confessor (Philadelphia: University of Pennsylvania Press, 1999). 150 Frederic W. Maitland and Francis C. Montague, A Sketch of English Legal History, ed. James F. Colby (New York: G. P. Putnam’s Sons, 1915), 10.

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Chapter III Post-Conquest Feast Laws and Jurisdiction

This chapter will attempt to trace how feast laws developed in Norman England.

The central question is which court had primary jurisdiction over feasts from the

Conquest in 1066 to the thirteenth century because the jurisdiction of feast cases would

inevitably affect how feast laws were implemented. Several different types of law courts

emerged during this time, operating with different types of law. For example, there were

manor courts held by landlords primarily dealing with issues of villein tenancy and labor

requirements,151 borough and hundred courts implementing local laws, royal common

law courts,152 merchant courts utilizing an international merchant law,153 and

ecclesiastical courts operating under canon law.154 Complicating matters is the fact that

litigants were allowed great freedom in choosing which court to file cases, allowing

plaintiffs to cherry-pick the court in which to file based upon which venue would be most

likely to render a favorable verdict.155 More cases were filed in royal courts during this

era because they offered peasants the fairest chance for legal success.156 The latter part

of this chapter explores the sabbatarian movement of the thirteenth century, which began

151 For descriptions of manor courts, see Berman, Law and Revolution, 316-332; Mark Bailey, The English Manor: c. 1200-c. 1500 (Manchester, UK: Manchester University Press, 2002), 167-176. 152 For common law, see John Hudson, The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta (New York: Longman, 1996), 24-34. 153 For merchant law, see Berman, Law and Revolution, 333-346. 154 See Helmholz, Canon Law and Ecclesiastical Jurisdiction. 155 David Millon, “Ecclesiastical Jurisdiction in Medieval England,” University of Illinois Law Review 621 (1984): 635-636. 156 Zvi Razi and Richard M. Smith, “The Origins of the English Manorial Court Rolls as a Written Record: A Puzzle,” in Medieval Society and the Manor Court, ed. Zvi Razi and Richard Smith (Oxford, UK: Clarendon Press, 1996), 43-50; R. H. Helmholz, The Spirit of Classical Canon Law (Atlanta, GA: The University of Georgia Press, 1996), 116-118.

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as a popular movement and was extremely important in making feast laws more

prominent. Without this movement, feriae may not have become a natural right.

It was not until the twelfth and thirteenth centuries that ecclesiastical jurisdiction

in England came into its own, only after other legislation had been enacted to more

explicitly define what issues were under ecclesiastical jurisdiction, such as Circumspecte

Agatis in 1286 by Edward I (r. 1272-1307), though it did not mention feasts.157 By 1300

English ecclesiastical jurisdiction was firmly established along general subject-matter

lines, including cases involving observance of feasts which was not encroached on by

royal courts (unlike other types of English courts), and diocesan courts where the canon

law was being put into practice.158 Thus, the Anglo-Norman period was the formative

era for court jurisdictions, which was to have an extremely important and long-lived

impact on the development of feast jurisdiction. The evidence suggests that by the end of

the twelfth century ecclesiastical courts had jurisdiction over cases in which the main

point of contention was nonobservance of feasts.159 Of course, there is a caveat to this

statement because in the Middle Ages jurisdictions were often murky and overlapping.

However, it seems that feast cases should have normally fallen under ecclesiastical

jurisdiction and been resolved in ecclesiastical courts. This is what probably happened

since there are a noticeable lack of feast cases in common law court records.

157 13 Edw. I. Circumspecte Agatis, in The Statutes of the Realm, 9 vols. (London: George Eyre and Andrew Strahan, 1810-1825), 1 Statutes of the Realm, 101-102. 158 R. H. Helmholz, “Crime, Compurgation and the Courts of the Medieval Church,” in Canon Law and the Law of England (London: The Hambledon Press, 1987), 126-127; Helmholz, Canon Law and Ecclesiastical Jurisdiction, 143-145. 159 Court records indicate that some cases involving feasts, such as holding a market during a holy day, did come before non-ecclesiastical courts, but the main point of contention was over issues other than feast nonobservance.

60 Texas Tech University, Justin Scott Kirkland, May 2013

The Anglo-Norman Church

In contrast to the long Anglo-Saxon tradition of written law, the early Anglo-

Norman legal tradition remains quite obscure.160 Not until Henry II (r. 1154-1189) did

England have a great administrator who significantly contributed to the development of the English common law.161 As a result, the historical record during the Anglo-Norman

era is largely devoid of royal laws relating to the observance of feasts. Nevertheless, the

Anglo-Norman kings did issue some important legislation that helped place feasts under

ecclesiastical rather than royal jurisdiction.

After securing his position as king of England, William the Conqueror (r. 1066-

1087) reformed the Anglo-Saxon Church along the lines of the Norman Church, thereby

altering the fundamental nature of the relationship between church and state. The

Norman rulers were more competent and energetic in administrative affairs than their

Anglo-Saxon predecessors.162 They transformed the internal structure and dominant

culture of the English Church by implementing a more unified and hierarchical structure

under the Archbishop of Canterbury.163 Bishops and abbots trained on the Continent

replaced high Anglo-Saxon clergymen and made European thought more influential.

Despite the Norman political and cultural dominance of the elite in England, William did

not make a conscientious attempt to replace English law with Norman law, though he did

160 Maitland, Constitutional History of England, 6-7, 9; Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 64-65. 161 Maitland, Constitutional History of England, 10. 162 Knappen, Constitutional and Legal History, 81-82; William Stubbs, The Constitutional History of England: In its Origin and Development, Vol. I, Fifth Edition (Oxford, UK: Clarendon Press, 1891), 313- 312. 163 Frank Barlow, The English Church, 1066-1154: A History of the Anglo-Norman Church (New York: Longman, 1979), 34-44. See also Christopher Harper-Bill, The Anglo-Norman Church, ed. Judith Loades, Headstart History Papers (Bangor, UK: Headstart History, 1992).

61 Texas Tech University, Justin Scott Kirkland, May 2013

issue some fascinating proclamations that turned out to be extremely important in

deciding how English law would evolve.164

T he Anglo-Saxon and Anglo-Norman kings had different relationships with the

Church. Anglo-Saxon kings had a largely harmonious and equal relationship with the

Church and relied on secular authorities to enforce its canons.165 The Norman duke,

however, had come into more conflict with the Norman Church, and interevened in

ecclesiastical legal proceedings because he believed the ecclesiastical judges were too

lenient in assigning legal penalties.166 Thus, the Norman government and Church, like

many places on the Continent, functioned more as two institutions than as one.167

Furthermore, William was sympathetic towards the Gregorian reform movement, and accepted some of its main reforms.168 Therefore the Norman Conquest of England meant

a much starker differentiation between the English Church and royal government than

had existed previously, consequentially allowing for more conflict to arise between the

two institutions. It must be stressed that even though there was greater separation between ecclesiastical and secular institutions after the Conquest, they still worked together quite closely. For example, it appears that ecclesiastical councils and royal courts were held at the same time, presumably to allow for greater cooperation.169

164 Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 79-80, 84, 88. 165 Barlow, English Church, 1066-1154, 152-153, 233-234, 255. 166 Barlow, English Church, 1066-1154, 146. 167 Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 74-75. 168 Knappen, Constitutional and Legal History, 107; Stubbs, Constitutional History of England: In its Origin and Development, Vol. I, 304-312. 169 Margaret Gibson, Lanfranc of Bec (Oxford, UK: Clarendon Press, 1978), 141; Barlow, English Church, 1066-1154, 35.

62 Texas Tech University, Justin Scott Kirkland, May 2013

William also had significant influence over ecclesiastical matters and expected the

Archbishop of Canterbury to pry into local affairs on his behalf.170

Much of the Anglo-Saxon Church was transformed after the 1066 Conquest,

including the Anglo-Saxon higher clergy. William appointed Lanfranc of Pavia

Archbishop of Canterbury (r. 1070-1089), marking the end of Anglo-Saxon dominance

over the English Church and the beginning of a less insular relationship with Europe.171

Lanfranc influenced by many ideas that were exerting great influence upon continental

affairs, particularly those associated with the Gregorian reform movement. He was from

Pavia, an intellectual center of law in north Italy, and was interested in law and in unifying the English Church under the papacy.172 Though the early Anglo-Saxon Church

had sought to emulate the Church of Rome, its location as an island on the fringes of

Europe allowed insular traditions to arise that drew the disdain of the Normans and their clergymen at a time when ecclesiastical uniformity was in vogue.173 As Archbishop,

Lanfranc successfully demanded that the Archbishop of York profess written obedience

to his office, despite the fact that there was no precedent to support such a claim. This

allowed him to claim jurisdiction over the entire English Church and unify it in a

hierarchical structure.174 Lanfranc also instituted several regulations concerning worship

in order to bring the English Church into closer conformity with Roman practice, such as

encouraging students to get a Latin education in French schools and importing several

170 Gibson, Lanfranc, 151. 171 See Gibson, Lanfranc, especially chapters 6-7. 172 See also H. E. J. Cowdrey, “Pope Gregory VII and the Liturgy,” Journal of Theological Studies 55 (2004): 55-83. 173 Barlow, English Church, 1066-1154, 279-280. 174 Gibson, Lanfranc, 117-120; Barlow, English Church, 1066-1154, 33.

Texas Tech University, Justin Scott Kirkland, May 2013 books from Europe.175 Furthermore, he redesigned the calendar and purged many feasts of the old obscure Anglo-Saxon saints, making it more similar to the calendar followed by the Church in Rome.176 Included in this dissemination of European culture was the constantly growing interest in the study of canonistic legal principles. Over time this would bring the gradually developing English legal system into contact with the rapidly dynamic growth of canon law and significantly influence the course of English law.177

European culture and ideas continued to be influential with the appointment of the

Northern Italian-born St. Anselm of Bec as Archbishop of Canterbury (r. 1093-1109), following the end of Lanfranc’s tenure.178

Though he implemented significant changes to the English Church, government, and society, William the Conqueror did not intend to discard all old Anglo-Saxon laws in favor of new Norman ones.179 However, he did issue a relatively short set of laws for his new subjects. One of his most important statutes reaffirmed that the laws in existence during the time of Edward the Confessor were still in effect.180 The acceptance of most

175 See Gibson, Lanfranc, 177-179. 176 Jay Rubenstein, “Liturgy Against History: The Competing Visions of Lanfranc and Eadmer of Canterbury,” Speculum 74, no. 2 (April 1999): 284-294; R. W. Southern, Saint Anselm: A Portrait in a Landscape (New York: Cambridge University Press, 1990), 310-322. Though Richard W. Pfaff has argued that there is no evidence to support the claim that Lanfranc doubted the validity of many Anglo-Saxon saints and systematically purged their feasts from the calendar, it seems more likely that he did, as evidenced by the fact that the Constitutions of Lanfranc do not include St. Dunstan’s feast. See Richard W. Pfaff, “Lanfranc’s Supposed Purge of the Anglo-Saxon Calendar,” in Warriors and Churchmen in the High Middle Ages: Essays Presented to Karl Leyser, ed. Timothy Reuter (London: Hambledon Press, 1992), 95- 108. 177 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 73-74; Turner, “Roman Law in England,” 2-3. 178 For the premier biography of Anselm of Bec, see Southern, Saint Anselm. 179 Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 88; Maitland and Montague, Sketch of English Legal History, 27; Hudson, Formation of the English Common Law, 17-18. 180 William I, 7; “Statutes of William the Conqueror,” in Select Historical Documents of the Middle Ages, ed. Ernest F. Henderson (London: George Bell and Sons, 1903), 7: “This also I command and will, that all shall hold and keep the law of Edward the king with regard to all their possessions, those provisions being added which I have made for the utility of the English people.”

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of Anglo-Saxon law by the Normans meant that the Conquest did not completely disturb

the development of the Anglo-Saxon legal system, but rather added some Norman

influences in order to form what would eventually become the common law.181 In fact,

legal historian Harold Berman has suggested that the Conquest may have actually helped

spur the development of the common law by increasing the influx of written works and

ideas about canon law into England, because canon law served as a template for the

establishment of secular law codes in the eleventh and twelfth centuries.182

The most important legal policy William established likely was the division of

spiritual and temporal courts in the 1070s. While some historians have questioned the

historicity of The Ordinance Separating the Spiritual and Temporal Courts, there does

not seem to be much hard evidence to suggest that the document is not legitimate.183 The

ordinance stated:

in a common council and by the advice of the archbishops and bishops, and abbots, and of all the princes of my kingdom, I have decided that…no bishop or archdeacon shall any longer hold, in the hundred court, pleas pertaining to the episcopal laws, nor shall they bring before the judgment of secular men any case which pertains to the rule of souls; but whoever shall be summoned, according to the episcopal laws…shall perform his law before God and his bishop…according to the canons and the episcopal laws. But if any one…shall scorn or be unwilling to come before the judgment seat of the bishop…the power and justice of the king or the sheriff shall be called in…This also I forbid and by my authority interdict, that any sheriff, or prevost, or minister of the king, or any layman concern himself in the matter of laws which pertain to the bishop…judgment shall be passed in no place except within the episcopal see.184

181 Hudson, Formation of the English Common Law, 18. 182 Berman, Law and Revolution, 274. 183 For the argument questioning the historicity of this document, see M. Brett, The English Church Under Henry I (New York: Oxford University Press, 1975), 150-152. For an argument that analyzes the significance of the policies established by the ordinance see Colin Morris, “William I and the Church Courts,” The English Historical Review 82, no. 324 (July 1967): 449-463. 184 “Ordinance of William I Separating the Spiritual and Temporal Courts,” in Select Historical Documents, 9.

65 Texas Tech University, Justin Scott Kirkland, May 2013

In the early twentieth century, legal historian A. M. Chambers understood the

ordinance to mean that “William I drew a line between spiritual and temporal

jurisdiction.”185 However, historian Colin Morris later posited that it was more of an attempt by Gregorian reformers to “restore” to the bishop jurisdiction over spiritual affairs, which had been under the hundred courts.186 Pope Gregory VII (r. 1073-1085)

claimed the Church should have authority over its own affairs, free from lay interference,

including the right of jurisdiction over spiritual matters. The document mentions that it

was designed with the input of clergymen, who likely were the main group pushing for

affirmation that the bishops had jurisdiction over spiritual affairs. Therefore, according

to Morris, the ordinance is Hildebrandian, and not an innovation. In any event, it placed

spiritual cases outside of the jurisdiction of the hundred court. Notably, the shire court,

which was presided over by laymen and clergymen, was not mentioned in the ordinance

and may have been allowed to deal with ecclesiastical cases with the participation of

clergymen.187 The main importance of this act was that it established a precedent that

later generations would build upon to eventually create a real and significant division

between spiritual and temporal jurisdictions and courts.188

185 A. M. Chambers, A Constitutional History of England (New York: The Macmillan Company, 1909), 268. 186 Morris, “William I and the Church Courts,” 458, 462. 187 Morris, “William I and the Church Courts,” 460; Helmholz, Canon Law and Ecclesiastical Jurisdiction, 109. 188 For other modern historiographical debates on the relevance of this source, see Barlow, English Church, 1066-1154, 274-276; Helmholz, Canon Law and Ecclesiastical Jurisdiction, 108-111. Barlow takes the position that reformers influenced by canonical thought viewed the old Anglo-Saxon system with disdain because they saw it as too confusing, so they sought to define jurisdictions along stricter lines, resulting in this ordinance. Helmholz emphasizes that the importance of the ordinance was its divisions of jurisdiction on the basis of the type of offense committed, instead of whether the offender was clergy or laity, which was mainly how the classical canon law determined jurisdiction. Another key point he raises is the support promised by the king if ecclesiastical jurisdiction was not capable of enforcement, an idea which later became engrained in canon law.

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The ordinance is especially relevant to feasts because they are ultimately spiritual.

After the creation of this ordinance, cases involving feasts should have come before the

bishop’s court or possibly a shire court, but definitely not the hundred court.

Unfortunately, no evidence verifying such an assertion can be found. The ordinance also

confirms that spiritual cases were to be governed by canon law, not secular law. When

the common law began to emerge later on, feasts probably remained governed by canon law because jurisdiction had been left to ecclesiastical courts for several decades.

The effects of restoring the right of the bishop to preside over feast transgressions is evidenced in a letter composed about 1109 by Archbishop Anselm to Bishop Ralph

Luffa of Chichester (r. 1091-1123) regarding the arrest of Anselm’s “people,” men employed by the archbishop’s office, for breaking a feast day. Anselm asserted, “I have heard that your archdeacon has arrested my people as a penalty for the breaking of a feast day…Neither he nor anybody else has power over my people. Therefore I instruct you that these hostages should be left in peace and that you should render me justice for your archdeacon…I give you thanks that you asked me to punish our men, lest anybody should take bad example from them.”189

Anselm was upset that his jurisdiction had been wrongly appropriated by an

archdeacon because he was convinced that the archbishop was supposed to be the only

ecclesiastical entity in England with jurisdiction over his own men, regardless of the

place where the offense occurred or the particulars of the infraction.190 Based on the fact

189 Anselm, Letter 469, The Letters of Saint Anselm of Canterbury, vol. III, ed. Walter Frölich, Cistercian Studies Series, no. 142 (Kalamazoo, MI: Cistercian Publications, 1994), 262-263. 190 For the role of archdeacons in assisting bishops with adminidstrative duties, see Brian Kemp, “Archdeacons and Parish Churches in England in the Twelfth Century,” in Law and Government in

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that Anselm’s main objection was that the transgressors were his “people,” it appears that

Ralph Luffa would have had rightful jurisdiction over the offenders if they had not been

the archbishop’s men. This letter seems to be one of the earliest English examples that

the nonobservance of feasts was being prosecuted by ecclesiastical officials, by both local

authorities in Chichester and by the archbishop. Also of note is the fact that Anselm

mentioned that his men would be punished so as to not provide a bad example to others,

thereby demonstrating that the punishment of infractions was a means to encourage

people to observe feasts.

One of the most useful records for tracking the jurisdiction of feast infractions is

found in the Domesday Book. This survey, completed in 1086 under William I, contains

various records of property ownership, such as land surveys and obligations. It also

contains other bits of information, including local customs and privileges. One particular

record is a statement from Bishop Robert de Limesey of Chester (r. 1085-1117) about customary dues belonging to him within the city. The bishop stated,

The Bishop of Chester has these customs in the city itself: if any free man works on a holy day, the bishop has 8s for it, but from a slave or female slave breaking a holy day the bishop has 4s. If a merchant coming to the city and bearing a bale [of goods] opens it without leave of the bishop’s officer from Saturday noon to Monday, or on any other feast-day, the bishop has for it 4s as forfeiture. If a man of the bishop finds any man loading within the territory of the city, the bishop has for it as forfeiture 4s or 2 oxen.191 The bishop claims his office had a customary right to the fines levied against feast

offenders. The basis for this custom probably harkens back to the Anglo-Saxon era. This

Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. George Garnett and John Hudson (Cambridge, UK: Cambridge University Press, 1994), 341-365. 191 Domesday Book: A Complete Translation, Folio 263: Cheshire, ed. Ann Williams and G. H. Martin, Alecto Historical Editions (New York: Penguin Books, 1992), 717.

68 Texas Tech University, Justin Scott Kirkland, May 2013

record assumes a consensus on what days are holy days because it does not provide a list.

A list of holy days would not be too absurd to expect, considering the Domesday Book

records a wide array of data and is extremely specific in some instances. Thus, its

absence suggests that it is taken for granted that everyone, at least the locals of Chester, already knew which days were holy and theoretically free from labor. The statement also shows that there was still a difference in the punishment for working assigned to freemen and to slaves (villeins).192 However, it seems that the penalties were not as draconian as

in the “laws” of Edward and Guthrum since now freemen only paid 8 shillings and slaves

paid 4 shillings, compared to potential enslavement in the earlier laws if the offender was

a freeman or lashes if a slave.193 Absent from the statement is whether court proceedings

are prohibited on holy days. While it is possible that court matters might have been

permitted on holy days, it is also very possible that the matter was not deemed important

enough to mention because it was already well-known, similar to how holy days were not

defined, or it might not have been mentioned because courts were not held very often.

Also of note in the record is the fact that merchants were forbidden to conduct

commercial activities on Sundays and holy days, as expected, but it seems to have been possible for them to trade lawfully simply by getting permission from the bishop’s office.

The law’s provision to allow some mercantile activities on holy days is unexpected. The Anglo-Saxon laws clearly prohibited all commercial activities on holy

192 It is uncertain from this passage whether the slaves themselves or their masters were to be fined for violating a holy day, since villeins probably would not have worked on a holy day without the “encouragement” of their master and many would not have had 4 shillings to pay the fine. However, because the fine for slaves is half that of the fine for freemen, it seems reasonable to assume that the difference is due to the fact that slaves themselves were to be fined instead of their master. 193 Edward and Guthrum, 7.1; “The Laws of Edward and Guthrum,” in Laws of the Earliest English Kings, 107.

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days without any exceptions. The change suggests that there might have been a local

amendment to the laws created by the Anglo-Saxon kings, and that localities had some

influence in dictating how and to what degree they would implement feast laws.194

Chester seems to follow the basic outline of the Anglo-Saxon laws, except for providing merchants the opportunity to receive special permission to sell goods on otherwise forbidden days. The bishop claimed that he had authority over violations “within the city,” thereby demonstrating there were geographical limits to his jurisdiction, which does not seemed to have extended outside of Chester. This is quite interesting considering that the bishop was supposed to have authority over his entire diocese, not just his cathedral city. Of course, most commerce, licit and illicit, would have occurred in towns and cities, and thus the bishop may have been focusing mainly on trade inside the city because that was where most of it occurred. Overall, this record demonstrates that in the late eleventh century, and likely since Anglo-Saxon times, canons and laws regarding feasts were primarily dealt with as local matters, with localities largely drawing on the canons and laws created by Anglo-Saxon synods and kings while making their own individual adjustments.

Just a few decades after the Domesday book was created, appeared the Leges

Henrici Primi (The Laws of Henry the First). This collection provides great insight into how feasts were dealt with legally during the early twelfth century. Historian L. J.

Downer has examined this source which purports to present the laws in existence during

194 C. R. Cheney, “Rules for the Observance of Feast-Days,” 117, notes that local customs seem to have played such a role with feast observance.

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the reign of King Henry I (r. 1100-1135), dating it to around 1116-1118.195 The Leges

Henrici Primi are not an official set of laws produced by Henry I, but they still provide

useful information. These laws have substantial Anglo-Saxon remnants and provide

evidence of principles of lordship developing at the time.196 According to Downer, the

laws show that local courts, especially the hundred and county courts, were thriving in

the early twelfth century, at a time when royal courts already had exclusive rights of jurisdiction over certain matters.197 Downer suggests the author was an uninfluential

clergyman whose work is far less organized than the textbook on English law created by

Rannulf de Glanvill half a century later, though there is some evidence that indicates the

author was actually from northern France and familiar with canon law.198 Regarding

feasts, the Leges Henrici Primi says,

[c. 11] Concerning ecclesiastical pleas belonging to the king. There are certain other pleas being pleas in the jurisdiction of the Christian faith in which the king has a share in the following way:…If a freeman works on church festival days, he shall pay his healsfang in compensation and in particular he shall diligently make amends to God…All compensation payable shall be divided equally between Christ and the king in every case where lawful observance in accordance with the bishop’s decree is denied to God’s law, and the penalty must be enforced by the secular authority…Indeed secular justice and compulsion are necessary in the cases of both ecclesiastical laws and secular ordinances, because many people cannot otherwise be recalled from their evil-doing and many are unwilling to dispose themselves to the worship of God. [c. 62] Concerning the observance of the proper time for establishing one’s case in court…on festivals and Ember days…and on the eve of the festivals of the holy Apostles there is no proper time for establishing one’s case in court, that is, for swearing an oath (except of fealty to one’s lord or in support of an agreed

195 L. J. Downer, “Introduction,” in Leges Henrici Primi, ed. L. J. Downer (London: Oxford University Press, 1972), 3, 36. 196 Downer, “Introduction,” 6-7. 197 Downer, “Introduction,” 7. 198 Downer, “Introduction,” 10, 37; Bruce C. Brasington, “Canon Law in the Leges Henrici Primi,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 123 (2006): 299.

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settlement)...or [for] any other judicial ordeals. Anyone who is a debtor shall pay the amount before the festival or defer payment.199 These statements indicate that in English law it is still illegal for freemen to work

on feast days and those who did had to pay compensation for their actions and make

penance to satisfy God. The fines seem to be divided between the Church and the king.

Feasts are discussed in the chapter that deals with ecclesiastical pleas falling under the

jurisdiction of the king, perhaps because people would ignore ecclesiastical canons unless

they were compelled by some authority to pay attention. Such a distinction, assuming

that the author of the laws is accurate, indicates that in the early twelfth century a case

involving nonobservance of a feast would come before a non-ecclesiastical court, presumably a royal court, because feast cases are listed as ecclesiastical pleas that

“belong” to the king. There is the possibility that the king is trying to claim ecclesiastical authority, thereby resulting in this distinction. However, if Downer is correct in his conclusion that the author was a clergyman, then it seems unlikely that the distinction

would have been accepted as legitimate and included in the treatise. Overall, like the

Anglo-Saxon feast laws, the Leges Henrici Primi prohibits legal affairs, the settlement of

debts, and secular business affairs on feasts.

The Decretum of Gratian and Canon Law

While the common law was gradually developing in England, important

developments were occurring in canon law which were to have a great influence on feast

laws. When a canon law teacher in Bologna named Gratian (flourished ca. 1140)

published his canon law textbook Concordia discordantium canonum (A Harmony of

199 Leges Henrici Primi, Chapters 11.1, 10, 15-16 and 62.1-2, ed. Downer, 111, 113, 115, 201.

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Discordant Canons), the Decretum, as it came to known, marked the turning point in the

study of canon law.200 Gratian’s Decretum profoundly influenced all of western

Christendom and greatly accelerated the development of western legal science. It

allowed canon law to emerge as the most advanced legal system in western Europe,

thereby serving as a template for secular legal systems.201 The Decretum caused

ecclesiastical courts to regularly consult ordines iudicarii (judicial commands) in order to

establish fair legal procedure in court cases and curtail corruption. Overall, legal disputes

came to be conducted on a higher scholarly level than ever before and often cited texts

from Roman law and canon law.202

Gratian was certainly not the first canonist to attempt to create a resource that

would try and make sense of all the canons established by Scripture, synods, Church

fathers, and popes.203 However, what caused the Decretum to become the most popular

canonistic work was the way it organized sources. It was constructed to highlight the

contradictions among different texts, which Gratian then tried to reconcile, seeking a

single meaning behind the texts. Gratian’s division of topics into dialectical arguments

set his textbook apart from other canon law collections and made it the primary textbook

200 Recent scholarship has discovered that there was actually at least two versions of the Decretum. For centuries the second version was considered to be the only version. The second version subsumed almost all of the first and may have been the work of multiple men. See Anders Winroth, The Making of Gratian’s Decretum (New York: Cambridge University Press, 2000), 122-145, 175-196. 201 Berman, Law and Revolution, 273; Brundage, Medieval Canon Law, 178-179. 202 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 126, 128. See also Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 111-135. 203 See Kathleen G. Cushing, Papacy and Law in the Gregorian Revolution: Canonistic Work of Anselm of Lucca (New York: Oxford University Press, 1998), chapters 1-3; Martin Brett, “Finding the Law: The Sources of Canonical Authority before Gratian,” in Law Before Gratian: Law in Western Europe c. 500- 1100, ed. Per Andersen, Mia Münster-Swendsen, and Helle Vogt, Proceedings of the Third Carlsberg Academy Conference on Medieval Legal History 2006 (Copenhagen, Denmark: DJØF Publishing 2007), 51-72.

73 Texas Tech University, Justin Scott Kirkland, May 2013 for canon law students.204 So momentous was the Decretum that its creation has traditionally been considered to mark the beginning of the so-called “classical period of canon law,” lasting from 1140 to 1375.205 Though during Gratian’s lifetime most laws were unlegislated customs, the Decretum contributed to the development of the belief that custom was only binding if it conformed to reason and conscience.206 The Decretum dealt with various aspects of public and private life along with liturgy.207 Most importantly for this study, it addressed feasts.

Medieval England may have been insular in many aspects, but its insularity did not include complete ignorance of developments in Roman law and canon law, including the Decretum.208 Though it is commonly believed by scholars that the Decretum was circulating in England by the late 1150s, and John of Salisbury (ca. 1115-1180) is known to have had a copy, there was still substantial ignorance of some of its principles.209

Before the end of the century classical canon law had certainly established itself in

England and several Anglo-Norman canonists, such as Honorius (d. after 1203) and John of Tynemouth (d. 1221?), had garnered a reputation as experts fully aware of

204 Brundage, Medieval Canon Law, 47-49. 205 Brundage, Medieval Canon Law, 48. 206 Berman, Law and Revolution, 145; D. 1 c.5; Gratian, Gratian: The Treatise on Laws (Decretum DD. 1- 20) with the Ordinary Gloss, trans. Augustine Thompson and James Gordley, Studies in Medieval and Early Modern Canon Law, 2 (Washington, D. C.: The Catholic University of America Press, 1993), 5-6. As the Ordinary Gloss explains, “custom…will be obeyed like an ordinance, as long as it is rational, congruent with religion, consistent with discipline, and helpful to salvation.” 207 For a discussion about the Church’s attempt to regulate the private life of the laity in the early twelfth century through new legal procedures and institutions, see Bruce C. Brasington, “Private Life in Canon Law Collections Attributed to Bishop Ivo of Chartres,” in Law and Private Life in the Middle Ages, ed. Per Andersen, Mia Münster-Swendsen, and Helle Vogt, Proceedings of the Sixth Carlsberg Academy Conference on Medieval Legal History 2009 (Copenhagen, Denmark: DJØF Publishing, 2011), 158-160. 208 Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 117. 209 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 79; Charles Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London: The Athlone Press, 1963), 66-151.

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developments in Europe.210 By the 1230s English bishops and their officials had

become very familiar with the Decretum, perhaps too familiar inasmuch as England sent

a disproportionate share of cases to the papal curia.211

Because recent scholarship has confirmed the influence of the Decretum in

England, it is requisite to explore how it treats feasts, since it would form the basis for church doctrine concerning feasts for the next several centuries. The Decretum contains

a decree purportedly from the Council of Lugdunum (Lyons) which states:

It should be declared, so that they might know the time of festivals throughout the year, that is each Sunday from evening through to evening…The days of festival throughout the year are these: the nativity of the Lord, [the feast] of St. Stephen, of St. John the Evangelist, of the [Holy] Innocents, of St. Sylvester, of the Octave of the Epiphany of the Lord, the Purification of Holy Mary, holy Easter with all of Holy Week, the three Rogation days, the Ascension of the Lord, the holy days of Pentecost, [the feast] of St. John the Baptist, of the 12 Apostles, and especially of Sts. Peter and Paul, who have illuminated the world with their preaching, [the feast] of St. Lawrence, the Assumption of Holy Mary, the Nativity of Holy Mary, the Dedication of a certain Oratory of St. Michael the Archangel , and [the feasts] of All Saints, and of St. Martin, and those feasts, which individual bishop with their people might celebrate in their own episcopal lands, which are indicated [as feasts] only for their neighbors dwelling around, not generally for everyone. The remaining feasts throughout the year are not required to be celebrated, nor are they generally prohibited.212

210 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 79, 128-129. See also Stephen Kuttner and Eleanor Rathbone, “Anglo-Norman Canonists of the Twelfth Century: An Introductory Study,” Traditio 7 (1949-1951): 321-323. 211 Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 115. 212 D. 3 de cons. c. 1: Tempora feriandi in missa sunt laicis annuncianda. Item ex Concilio Lugdunensi. I. Pars. Pronunciandum est, ut sciant tempora feriandi per annum, id est: omnem dominicam a uespera usque ad uesperam, ne a Iudaismo capiantur. Feriandi uero per annum isti sunt dies: Natalis Domini, S. Stephani, S. Iohannis Euangelistae, Innocentium, S. Siluestri, Octauae Domini Theophaniae, Purificatio S. Mariae, sanctum Pasca cum tota hebdomada, Rogationes tribus diebus, Ascensio Domini, sancti dies Pentecostes, S. Iohannis Baptistae, duodecim Apostolorum, et maxime sanctorum Petri et Pauli, qui mundum sua predicatione illuminauerunt, S. Laurentii, Asumptio S. Mariae, Natiuitas S. Mariae, Dedicatio, S. Michaelis Archangeli, Dedicatio cuiuscumque oratorii, et omnium sanctorum, et S. Martini, et illae festiuitates, quas singuli episcopi in suis episcopiis cum populo collaudauerint, que uicinis tantum circummorantibus

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The source used in Gratian’s Decretum is also found in the Capitulary of Bishop

Haito of Basel (r. 805-823) and the decretums of Bishop Burchard of Worms (r. 1000-

1025) and Bishop Ivo of Chartres (r. 1090-1115).213 However, because this source has not been found in extant decrees from any of the Lyons councils, its provenance is uncertain.214 Gratian’s list seems to demarcate thirty-six feast days, comprised of twenty- seven individual feasts (counting each of the Rogation days as an individual feast and omitting Sundays).215 These twenty-seven feasts are only intended to serve as a base for the calendar of saints, with the option to add other feasts left to the discretion of archbishops and bishops on a more limited and localized scale. Of special note is the inclusion of Sunday in this list of feriae. Its presence at the beginning of the decree serves to accentuate its importance and subtly distinguishes it from the rest of the festivals. Yet, it should be remembered that the Decretum compiled decrees and other ecclesiastical sources which predate the twelfth century. While the Christian Sabbath may have been differentiated to some degree from festivals at the Council of Lyons, all evidence indicates that well before the time of Gratian Sundays were merging with the indicendae sunt, non generaliter omnibus. Reliquae uero festiuitates per annum non sunt cogendae ad feriandum, nec prohibendae. Indictum uero ieiunium quando fuerit denunciatum, ab omnibus obseruetur. 213 Haito of Basel, “Capitulare, Haito von Basel” Chapter VIII in Capitula Episcoporum, vol. 1, ed. Peter Brommer, Monumenta Germaniae Historica (Hannover, Germany: Hahnsche Buchhandlung, 1984), 212; Burchard of Worms, Decretorum Libri XX Book 2.77, ed. J. P. Migne, Patrologia Latina, vol. 140 (1880), 640. http://www.documentacatholicaomnia.eu/04z/z_1000- 1025__Burchardus_Wortatiensis_Episcopus__Decretorum_Libri_Viginti__MLT.pdf.html (accessed April 17, 2013); Ivo of Chartres, Decretum Book 4.14, ed. Bruce Brasington, Martin Brett, and Przemyslaw Nowak (2009), 5. http://project.knowledgeforge.net/ivo/decretum/ivodec_4_1p4.pdf (accessed April 17, 2013). See also Carolus Sebastianus Berardus, “Appendix I: De Canonibus Concilii Lugdunensis nomine a Gratiano relatis,” in Gratiani Canones, vol. I, ed. Carolus Sebastianus Berardus (Turin, Italy: Ex Typographia Regia, 1752), 448-449. 214 The provenance is complicated because there were several councils that met in Lyons—six met between 511 and 768—and some of them are attested to only by the fragments of a few canons. Additionally, there were many false decrees from “pseudo-councils.” See Gregory I. Halfond, The Archaeology of Frankish Church Councils, AD 511-768 (Boston, MA: Brill, 2010), 31, 169, 180-182, 223-261. 215 On how to calculate the total amount of days covered by the feasts, see Rodgers, Discussion of Holidays, 9-10.

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rest of the major feasts of the year. Thus, it seems that despite the subtle differentiation

made between Sundays and the other festivals in this source, canon law scholars,

including Gratian, would have not drawn a sharp distinction between them.

There are some differences between this list and a list of Anglo-Saxon feasts up to

the time of Cnut, such as the feasts of St. Dunstan, St. Edward the Martyr, St. Gregory,

St. Augustine the Archbishop and Confessor, and multiple days for Christmas. Also, the

list does not include twelve days for Christmas, as Alfred the Great did, but does include

a whole week at Easter, whereas the most days granted for Easter in English sources

seems to be four days, as per Ælfric’s pastoral letter. Nevertheless, the tremendous

influence the Decretum had on canon law throughout Western Europe means that this

source is important. The inclusion of feriae as a topic in the Decretals of Gregory IX

almost certainly results from the Decretum.216 Additionally, the way the Decretum listed

these universal feasts likely inspired people in the thirteenth century to make lists of

diocesan feasts.

The English Common Law

While the Decretum was profoundly changing the study and utilization of canon

law, as well as western legal systems overall, in England Henry II (r. 1154-1189)

implemented legal reforms that also profoundly changed the direction of English law and greatly extended royal power. Henry II has traditionally been cited as the founder of the common law due to his legal innovations, even though he did not plan out all his reforms

216 Decretals of Gregory IX, Liber II, Titulus IX: De Feriis, Cap. III: X 2.9.1-5.

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in advance but conducted them on a case-by-case basis.217 He perceived the reign of his

maternal grandfather, Henry I (r. 1100-1135), as an age of peace and justice and wanted

to return the state of the realm back to its “former glory,” just as Henry I had sought to

recreate the justice and law of Edward the Confessor.218 Of course, the reforms that

Henry II instituted which were supposed to restore the legal system and justice of Henry

I’s reign actually did more to separate the systems of law and justice in the two

periods.219 During his reign, Henry II and his advisors established a central royal court

that heard civil cases and a system of regular judicial visitations by itinerant judges,

helping to bring royal justice to localities and connecting the central court with the local

courts. His officials created a coherent national body of custom that determined legal

verdicts and began to integrate diverse local courts into one legal system for all of

England.220

The legal innovations of Henry II resulted in the first common law treatise, The

Treatise on the Laws and Customs of the Kingdom of England, produced around 1188

under the chief justiciar Ranulf de Glanville (d. 1190?).221 The treatise was quite popular

among members of the royal court and was used and commented upon by legal

217 J. C. Holt, Magna Carta, Second Edition (Cambridge, UK: Cambridge University Press, 1992), 40-49. For the opposing argument that Henry II and his advisors were deliberate in their legal reforms, see Paul Brand, “ʻMultis Vigiliis Excogitatam et Inventam’: Henry II and the Creation of the English Common Law,” in The Making of the Common Law, ed. Paul Brand (London: The Hambledon Press, 1992), 77-102. 218 Hudson, Formation of the English Common Law, 144-145. 219 As Pollock and Maitland wrote, “The reign of Henry II is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king…in theory there was no change in the law; and yet very surely the whole law of England was being changed both in form and substance.” Pollock and Maitland, History of English Law Before the Time of Edward I: Volume I, 136. 220 Paul Brand, “ʻMultis Vigiliis Excogitatam et Inventam’,” 101-102; Ralph V. Turner, “Roman Law in England.” 221 Ranulf de Glanville, The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, ed. G. D. G. Hall (London: Thomas Nelson, 1965). For a discussion of what is known and suspected about the mysterious life and career of Glanville, see Josiah Cox Russell, “Ranulf de Glanville,” Speculum 45, no. 1 (January 1970): 69-79.

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scholars.222 It sought to provide a general outline of the operation of the legal system

developing in the royal courts.223 While its publication may have been a milestone in the

development of the common law, its relevance to feasts is limited, as it does not mention any under the common law. This is presumably because feasts were considered to be

under the jurisdiction of canon law. Thus, the last known evidence that nonobservance of

feasts was under the king’s jurisdiction is found in the Leges Henrici Primi. Assuming

that the author of the Leges Henrici Primi was correct in placing feast violations under

the chapter of ecclesiastical pleas that belonged to the king, then ecclesiastical courts may

have acquired complete jurisdiction sometime between its publication around 1117 and

Glanville’s treatise in 1188.

An extensive legal treatise called De legibus et consuetudinibus Angliae (On the

Laws and Customs of England) which sought to explain the rationale behind the common

law was produced in 1220s and 1230s.224 Though originally believed to have been

composed by justice Henry de Bracton (d. 1268), recent scholarship has dispelled such a

notion and suggested that it was created over multiple decades by several men

knowledgeable about the common law.225 Nowhere in De legibus et consuetudinibus

Angliae is there an explicit discussion of feasts, despite the fact that it treats a plethora of other legal issues. Based upon this glaring absence, it seems that feasts were not under the jurisdiction of common law, which is not too surprising considering that Glanville

222 Hudson, Formation of the English Common Law, 150-153. 223 Berman, Law and Revolution, 457. 224 Henry de Bracton, Bracton On the Laws and Customs of England, ed. George E. Woodbine, trans. Samuel E. Thorne, 4 vols. (Cambridge, MA: The Belknap Press of Harvard University Press, 1968). 225 Paul R. Hyams, Kings, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Centuries (Oxford, UK: Clarendon Press, 1980), 82-88; Paul Brand, “The Date and Authorship of Bracton: A Response,” Journal of Legal History 31, no. 3 (December 2010): 217-244.

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also ignored them. The absence of feasts in De legibus et consuetudinibus Angliae serves

to further support the theory that transgressions pertaining to the observance of feasts

were accepted by legal authorities as falling under the sole jurisdiction of ecclesiastical

courts as early as the late twelfth and early thirteenth centuries.

It appears that the only time the English royal courts interfered in cases involving

feast violations was when there appeared to be a gross injustice by ecclesiastical officials

or courts. In 1286 the dean of Norwich Henry Sampson (r. 1278-1297) and his subdean

John de Berstrete were condemned by a Norfolk eyre jury for levying an “unjust” toll of

two shillings on those bringing fowl into the city to sell during a holy day upon the basis

that there was no precedent for the toll. The eyre also condemned Sampson and Berstrete

for taking a “haliday tol” from brewers, butchers, fish merchants, and those bringing other goods into the city on feast days—which the bishop of Chester had claimed as a customary right in the Domesday Book. The eyre handed down the same judgment for all three cases, ordering that “because customs of this kind are injurious and…[a] detriment of all the people, henceforth any toll of this kind is not to be taken.” 226 When

the archdeacon later harassed a man and his two sons for selling victuals to reapers and

other workers on a holy day during harvest time until they gave him five shillings, the eyre again stepped in, declaring that the archdeacon had acted unjustly and ordering him to be taken into custody and forced to repay the five shillings.227 Importantly, the royal

courts only considered and acted upon the issue of injustice, a serious matter that fell

226 Select Cases from the King’s Courts, 1272-1307 Case 3.1: In Re the Dean and Subdean of Norwich, ed. David Millon, The Selden Society, vol. 126 (London: The Selden Society, 2009), 72. 227 Select Cases from the King’s Courts, 1272-1307 Case 3.3: Gilbert Hakum v. Subdean of Norwich, ed. Millon, 73.

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under royal court jurisdiction, while completely ignoring the original issue of feast

violations.228 Presumably, this was because the royal courts recognized that they did not

have jurisdiction over feast violations.

The Thirteenth Century Sabbatarian Movement

In 1200 an outspoken monk from the Benedictine abbey of St. Germer de Flaye,

identified as Eustace of Flaye by chroniclers, arrived in southeast England preaching a

sabbatarian message. His sermons mainly attacked commerce on the Sabbath and

markets held in holy places. Historian J. L. Cate extensively studied Eustace and the

movement he jumpstarted, noting that in 1200 the opposition of some high clergymen in

England nullified much of his influence in creating a substantial reform movement.229

However, in 1201 Eustace returned to England and achieved more substantial results. On his second trip he carried with him a document reported to be a letter that had fallen from heaven onto the altar of St. Simeon of Golgatha and taken by the patriarch of Jerusalem, also known as the “Epistle on Sunday.” Roger of Hoveden (d. 1201?) included a copy of the letter in his annals, providing great insight into what may have influenced people to support a reform movement. The letter declares:

I am the Lord, who commanded you to observe the holy day of the Lord, and ye have not kept it, and have not repented of your sins…Once more it is my will, that no one, from the ninth hour on Saturday until sunrise on Monday, shall do any work except that which is good. And if any person shall do so, he shall with penance make amends for the same…This I do say unto you; for the Lord’s holy day, you shall die the death, and for the other festivals of my Saints which you

228 Hudson, Formation of the English Common Law, 27-28. 229 J. L. Cate, “The English Mission of Eustace of Flay (1200-1201),” in Études d’histoire dédiées a la mémoire de Henri Pirenne: Par ses anciens élèves (Brussels, Belgium: Nouvelle Société d’Éditions, 1937), 73.

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have not kept: I will send unto you beasts that have the heads of lions, the hair of women, the tails of camels, and they shall be so ravenous that they shall devour your flesh…By my right hand I swear unto you, that if you do not observe the Lord’s day, and the festivals of my Saints, I will send unto you the pagan nations, that they may slay you.230

The provenance of this letter can be traced back to the sixth century. Although it

was condemned by many high clergymen throughout the ages as a forgery, it circulated

widely nonetheless. Even Archbishop Wulfstan quoted it in two sermons.231 That

Eustace could utilize this letter more effectively suggests that by the thirteenth century

many people believed others were not properly observing holy days, thus convincing

them that reform, and the reform movement itself, was necessary. The letter is largely concerned with upholding the sanctity of the Sabbath, and its treatment of festivals of the saints seems to be an afterthought because nothing is said about laboring on those days.

Though the Sabbath was the main focus of Eustace’s sermons, the feasts of the saints played an important role as well. Roger of Hoveden mentions that Eustace was welcomed in York and absolved the people of their prior sins under the condition that “in the future they would pay due reverence to the Lord’s Day and the other festivals of the

Saints, doing therein no servile work, and that on the Lord’s Day they would hold no market of things on sale, but devoutly attend to good works and prayer.”232

The sermons of Eustace, in conjunction with the aforementioned letter,

contributed to the development of a reform movement but were not its cause. Reformist

230 Roger of Hoveden, The Annals of Roger de Hoveden. Comprising the History of England and of Other Countries of Europe, from A.D. 732 to A.D. 1201, Vol. II: A.D. 1181 to A.D. 1201, trans. Henry T. Riley (London: H. G. Bohn, 1853), 527-528. 231 Kenneth L. Parker, The English Sabbath: A Study of Doctrine and Discipline from the Reformation to the Civil War (New York: Cambridge University Press, 1988), 9-10. For examples of the circulation of this “Sunday Letter” in Anglo-Saxon England, see Dorothy Haines, Sunday Observance, 36-198. 232 Roger of Hoveden, Annals, trans. Riley, 528.

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sentiment must already have been present for Eustace to have received so much support

so quickly.233 In medieval villages there were always individuals with agendas. While a

charismatic individual may have convinced some people to support his movement, his

message would have had to have drawn on issues that already concerned his audience in

order for it to resonate with them in the way Eustace’s movement did. Though historical

tradition holds that the movement led by Eustace disappeared after his return to St.

Germer de Flay, it actually did not. Roger of Hoveden, who was sympathetic towards the

reform movement, began the fallacy by blaming the movement’s demise on the

opposition of the high clergy and “bad” King John (r. 1200-1217).234 Since he likely died in 1201, he was not able to see the movement’s reemergence several years later.

Cate accepted Roger of Hoveden’s view of the movement’s demise, but differed on the cause, asserting that clergymen were split on the issue while John was only passively opposed. Cate instead posited that the movement fell apart because Eustace’s definition of the Sabbath as the “the ninth hour” on Saturday to sunrise on Monday was a radical

position only taken by strict sabbatarians.235 Contrary to both of these opinions, the

movement did not die after Eustace’s departure. Rather, it went underground until 1218,

when it reemerged with new energy on the political stage. The movement became less

visible after Eustace left England because there were far more important issues emerging

at the time. The reign of John (r. 1200-1217) was characterized by political, economic,

233 For another possible example that “learned theory followed rather than led popular enthusiasms,” in the medieval Church, see John Howe, Church Reform and Social Change in Eleventh-Century Italy (Philadelphia, PA: University of Pennsylvania Press, 1997), 60-63, 116-122. 234 Roger of Hoveden, Annals, trans. Riley, 529-520. 235 Cate, “English Mission of Eustace of Flay,” 83-84.

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and religious upheavals which were simply more pressing issues than feasts.236 The reappearance of the sabbatarian reform movement in 1218 was due to the return of political stability and a new hope the regency government of Henry III (r. 1217-1272) would be more understanding and adopt a sabbatarian policy. Notably, the goals of the movement in 1218, removal of markets from holy days and holy spaces, were the same goals of the 1201 movement, indicating that these two movements separated by less than twenty years were really one protracted movement.237

The effects of this thirteenth century sabbatarian movement were limited. The movement’s influence in 1201 did cause the crown to allow market-holders whose charters were for Sunday markets to transfer their markets to weekdays, but it found far more success after its reemergence in 1218.238 In 1218 the reform movement in England and France was embraced and led by the papacy and clergy, even though Gregory IX (r.

1227-1241) was the only pope to issue an act dealing with holy day abuses in this period, unlike Innocent III (r. 1198-1216) or Honorius III (r. 1216-1227).239 However, the sabbatarian movement did result in attempts by authorities to construct a more ordered

236 Ralph V. Turner, Magna Carta: Through the Ages (New York: Pearson-Longman, 2003), 30; Holt, Magna Carta, 188-236. 237 James Lea Cate, “The Church and Market Reform in England During the Reign of Henry III,” in Medieval and Historiographical Essays in Honor of James Westfall Thompson, ed. James Lea Cate and Eugene N. Anderson (Chicago: The University of Chicago Press, 1938), 29-30. 238 Cate, “English Mission of Eustace of Flay,” 80-81. See also Herbert Thurston, “The Mediæval Sunday,” The Nineteenth Century 46, (1899): 36-44. 239 According to Cate, the observance of holy days was officially enshrined in canon law by the Decretals of Gregory IX in 1230 under the justification that such prohibitions were necessary because secular pursuits tended to interfere with mass, not due to a taboo regarding the sacred nature of the day. However, Cate’s view that these canonical prohibitions were not the result of a taboo is clearly incorrect, as demonstrated by the fact that engaging in secular activities on holy days is a taboo evident in the Anglo-Saxon holy day laws. Cate also says that thirteenth century summae compilers, such as Thomas Aquinas and Alexander of Hales, justified observance of holy days in human law, as opposed to divine law. As will be shown in the next chapter, this view is wrong because medieval scholastics perceived holy days had a sacred nature to them and justified their observance in divine and natural law. See Cate, “Church and Market Reform,” 29- 31, 33-34.

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calendar and “drive home the lesson” that certain holy days ought to be free from

labor.240 The movement exerted the most influence in provincial and diocesan synods

under the direction of papal legates, resulting in the creation of many more canons

dealing with feasts. 241 During the reign of Henry III the English Church adopted a strict

policy against the profanation of holy times and places by commercial activities, a

position it had not really taken since the Conquest. For example, Bishop Robert

Grosseteste of Lincoln (r. 1235-1253) found holy day commerce to be quite common in

his diocese and embarked upon a program to curb such violations.242 Henry III, however,

continued to grant market charters in sacred places, though, contrary to his regal Anglo-

Norman predecessors, he stopped granting charters for Sunday markets. During his reign

there was a crackdown on Sunday markets operating without the appropriate license, no

new Sunday markets were chartered, and preexisting chartered Sunday markets were

allowed to become weekday markets without penalty. In fact it seems that the holders of

Sunday market charters were given incentives by the crown to switch to weekdays,

though such a policy was probably due to the papacy’s sway over the royal government

rather than an attempt to satisfy the calls of reform from bishops or popular reformers.243

Despite the movement’s influence, there still remained some Sunday markets that

continued operating into the reign of Edward I (r. 1272-1307), many operated by

240 Barbara Harvey, “Work and Festa Ferianda,” 293. 241 Interestingly, the movement’s popular support appears to have ebbed by 1224 before significant numbers of ecclesiastical constitutions by bishops concerning holy day prohibitions were written, potentially signifying that the movement originated outside the episcopacy and exhausted itself or satisfied most of its objectives amongst the people before receiving the support of the bishops through legislation, then becoming a largely elitist movement. See Cate, “Church and Market Reform,” 45-46. 242 Cate, “Church and Market Reform,” 41-42. 243 Cate suggests that during the regency government of Henry III, Bishop Peter des Roches of Winchester (r. 1205-1238), who had great influence in the government, was likely encouraged by the papacy to curtail Sunday markets. See Cate, “Church and Market Reform,” 55.

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clergymen.244 Though overall the reform movement had a great impact on markets, it

had far less effect in causing changes to be made to fairs. Fairs tended to be held during

times that usually violated at least one feast day and Sunday, however it seems that no

changes were instituted to the times when they were held, thus they continued to violate

holy day commerce prohibitions.245

In conjunction with the feast list in the Decretum, the sabbatarian reform

movement of the thirteenth century inspired clergymen to create lists of officially

recognized feasts on the diocesan level. Authorities realized that it might be beneficial to

have a record of feasts if people were going to be held legally responsible for observing

them. In the thirteenth century the dioceses of Worcester, Salisbury, London, Norwich,

and Exeter all produced such lists. Another was created for the estates of the Canterbury cathedral priory.246 These lists of feasts provided the clergy of a particular diocese a

reference for instructing parishioners. At Sunday mass the feasts for the upcoming week

would be read aloud to the congregation with instructions on how to properly observe

them, such as abstention from labor. These lists helped provide more uniformity of

observance across a diocese, which was not necessarily an issue for the major feasts since

the vast majority of people knew how to properly observe Christmas and Easter, but was

useful for minor feasts, such as the feast of St. Agnes, where localities might have

differing standards. Lists of feasts and liturgical calendars essentially promoted

community above individuality by creating routines and schedules when everyone in the

244 Cate, “Church and Market Reform,” 46. 245 Cate, “Church and Market Reform,” 46-47. 246 C. R. Cheney, “Rules for the Observance of Feast-Days,” 123-130. This movement to create lists of feriae was not limited to England. Italian city-states also produced their own lists. See Webb, Patrons and Defenders, 107-108.

Texas Tech University, Justin Scott Kirkland, May 2013 community should be either working or worshipping, depending the day.247 Overall, these lists helped dioceses organize and rank feasts, and were part of the bureaucratization of the medieval Church.

Lists of feasts were not the only innovation of the thirteenth century. Historian

Barbara Harvey asserts that there were important changes to villein labor in the thirteenth century that had an impact on how feasts were observed.248 Prior to the thirteenth century it appears villein boon work was adjusted to avoid feasts, so if a feast fell on a boon work day the villein might fulfill his obligation by working on the day before or after the feast. During the thirteenth century it seems that landlords did not demand villeins work on festa ferianda. Generally, regardless of region, villeins were absolved from labor services during the three great feasts of Christmas, Easter, or Whitsun and also on other festa ferianda. Apart from these three feasts, the specifics of how a villein who owed labor services on the same day of the week that a feast fell on would be obliged to compensate the lord differed from manor to manor, ranging from working on a different day to providing monetary compensation. Harvey is careful to point out that whether the villein would be expected to provide compensation to the lord for the feast or not, the status of the feast was recognized, indicating that some feasts transcended traditional secular obligations.

The influence of the thirteenth century sabbatical movement can clearly be seen with thirteenth century feast lists and the policies kings John and Henry III pursued regarding charters for markets. However, this movement may have also promoted

247 Edward Muir, Ritual in Early Modern Europe (New York: Cambridge University Press, 1997), 56. 248 Barbara Harvey, “Work and Festa Ferianda,” 297-298.

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discussion in common law treatises written in the late thirteenth century regarding when it was proper to hold court sessions. Legal matters had been banned on holy days by laws and canons during the Anglo-Saxon period, but Bracton did not discuss feasts at all, including whether or not court proceedings could be held on them. In fact, court records possibly indicate that in the first half of the thirteenth century several common law courts, such as the Common Bench, King’s Bench, and General Eyre, occasionally conducted legal business on Sundays, though the Common Bench and King’s Bench had stopped by the late thirteenth century.249 If this interpretation of the court records is

accurate, then the reversal in policy may be related to the sabbatarian movement and may

also explain why later legal treatises discussed holy days.

In the late thirteenth or early fourteenth century there appeared an English legal treatise composed in French called Summa de legibus Anglie que vocatur Bretone

(Summa about the Laws of England that is Called Britton). It was designed to provide an overview of the state of common law during the reign of Edward I. Britton, as it was called, explained that when trials of the assize fell on a feast, the trial could be postponed until another day.250 It appears that Britton is the first common law treatise to discuss

holy days. Another common treatise written about the same time as Britton called Fleta

had mentioned that pleas were not supposed to be held on Sundays, but it had not said

249 See Paul Brand, “Lawyers’ Time in England in the later Middle Ages,” in Time in the Medieval World, ed. Chris Humphrey and W. M. Ormrod (Rochester, NY: York Medieval Press, 2001), 80-83. Interestingly, in the fifteenth century the King’s Bench gradually seems to have allowed plaintiffs to submit bills for litigation on holy days, possibly in an attempt to attract business from the Court of Chancery. See Susanne Jenks, “Bill Litigation and the Observance of Sundays and Major Festivals in the Court of the King’s Bench in the Fifteenth Century,” Law and History Review 22, no. 3 (Autumn 2004): 636. 250 Britton: An English Translation and Notes Book 2.21.2, trans. Francis Morgan Nichols (Washington, D. C.: John Byrne & Co., 1901), 277-278: “Sometimes the day is delayed on account of the season; for all seasons are not fit. For it is forbidden in the Canon by holy Church upon pain of excommunication…on solemn festivals of the Saints.”

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anything regarding other feasts.251 Britton includes Ember and Rogation days along with

the feasts of the Saints as some of the days whose solemnity prevents court from being

held. Britton notes that holding court on such days is prohibited by canons so that “all

these seasons be set apart for prayer, and for appeasing of quarrels and reconciling those

who are at variance, and for gathering the fruits of the earth which are to be the food of

man.”252 Based upon this statement, it seems that agricultural labors may licitly occur on

feasts. Of course, this treatise is primarily concerned with detailing issues regarding

trials, not in explaining what canon law permitted during feasts, so the statement about

agricultural labors must be put into context. As will be shown later, canonists widely

accepted that there were some special and limited instances in which agricultural labors

could licitly occur on feasts, generally due to necessity, and this seems to be what Britton

is referring to. The treatise also mentions that courts are occasionally permitted on feasts

through special dispensations from high clergymen, so long as there is reasonable cause

for making an exception, providing further evidence that the royal government deferred

to the Church’s jurisdiction over feasts.

Britton’s discussion of feasts demonstrates that the prohibition of legal

proceedings on feasts was still in effect around 1300 and was accepted by common law.

Such evidence indicates that even during the reigns of John and Henry III canon law

determined the days royal courts could be held on since feasts were delineated in canon

251 Fleta Book 2.35, vol II, ed. H. G. Richardson and G. O. Sayles, The Selden Society, vol. 72 (London: The Selden Society, 1955), 137. See also N. Denholm-Young, The English Historical Review 58, no. 229 (January 1943): 1-12. 252 Britton 2.21.2, trans. Nichols, 277.

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law, not common law.253 Basically, the ecclesiastical calendar of feasts was adopted by the common law court system in deciding what days it would be acceptable to hold court.

Such an occurrence of common law adopting canon law concepts is not unprecedented.

Harold Berman published a lengthy study of the ways royal legal systems in Europe drew

upon the more-advanced canon law system in the twelfth and thirteenth centuries.254

Historian Sam Worby also demonstrated in his study of legal kinship in thirteenth century

England that the common law adopted canonical terms and concepts of kinship because it

was more advanced.255 This seems to be the case in determining on which days court

could occur, though to a lesser extent than in the case of kinship since only one facet of

feasts was adopted by common law.

Conclusion

Overall, the thirteenth century marked a turning point in how feasts were

conceived, as many began to apply theories concerning natural rights to feasts. The

concept of natural rights was a product of Gratian’s Decretum that emerged in the twelfth

century, but its concepts do not appear to have been applied to feasts until at least the

thirteenth century. This is not entirely unexpected, as, prior to the thirteenth century,

feasts do not seem to have been an issue of immediate concern to either papal or

governmental authorities. No Anglo-Norman ruler of England published an official law

or decree that even dealt with feasts (the Leges Henrici Primi did discuss feasts, but it

was an unofficial legal treatise), in contrast to the Anglo-Saxon kings who included at

253 Neale, Feasts and Fasts, 63-64. This was also the case in the Italian city-states, see Webb, Patrons and Defenders, 124. 254 See Berman, Law and Revolution. 255 Sam Worby, Law and Kinship in Thirteenth-Century England (Woodbridge, UK: The Boydell Press, 2010).

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least one law regarding feasts in almost every set of laws published from Alfred the Great

onwards. The absence of feast legislation from an age that saw the emergence of the state and a tremendous growth in bureaucracy, especially in the area of royal government, probably stemmed from the fact that both ecclesiastical and temporal authorities had more important concerns than creating legislation about feast observance. Feasts were simply not seen as an issue of immediate concern. Both Glanville and Bracton neglected

feasts. Though feasts might have been considered to be part of ecclesiastical jurisdiction

when one or both of these treatises was created, it would still seem logical that they

would at least mention observance of feasts as an issue under ecclesiastical jurisdiction,

yet they did not.

It should come as no surprise that the sabbatarian movement in the early thirteenth century helped increase the attention officials devoted to feasts. Observance of

Sundays and feasts were two related issues which, as demonstrated in the letter copied by

Roger of Hoveden, tended to be discussed together. There was, however, a substantial difference between the two that impacted how people reacted to them. In the sabbatarian movement of thirteenth century, people seem to have been primarily concerned with observance of the Sabbath while feasts remained a secondary concern. However, the movement provoked a discussion of feasts amongst the high clergy and had real effects.

The creation of diocesan lists of feasts was apparently motivated by such a discussion, along with the inclusion of feast canons in synod constitutions and prosecutions of individuals who broke laws concerning the observance of feasts (though, admittedly, there are substantially more extant written records from the thirteenth century onwards which helps account for some of the discrepancy, but not all).

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Despite the English Church becoming more active on the issue of feasts in the

thirteenth century, feasts were neglected by royal authorities and statutes until a 1354 act

which prohibited wool from being traded on holy days.256 It seems that until the mid-

fourteenth century crisis of the Black Plague, English kings were content to have

ecclesiastical officials and courts deal with feasts. This is remarkable because there

seems to be no royal legislation or written agreement with the Church that ever

specifically assigned feasts to the sole jurisdiction of ecclesiastical courts. In 1286

Circumspecte Agatis declared that spiritual matters, such as tithes and adultery, were

under the sole jurisdiction of ecclesiastical courts, but did not explicitly mention feasts.

The absence of feasts in the statute could potentially be explained by the fact that feast cases had long been accepted as falling under the purview of ecclesiastical courts, and so there was no need to further reiterate it. In 1275 the First Statute of Westminster was enacted and established the limit of legal memory (essentially a statute of limitations for legal actions) as the coronation of Richard I (r. 1189-1199), September 3, 1189.257 Thus,

the reason Circumspecte Agatis may not have dealt with feasts was because they were

considered to be under ecclesiastical jurisdiction before the limit of legal memory, or they

just were not deemed an important enough issue to warrant inclusion. In any event,

feasts appear to have been firmly in the realm of ecclesiastical jurisdiction from the

thirteenth century until the mid-sixteenth century.

As shall be demonstrated in the following chapter, in the thirteenth century natural rights concepts began to be applied to feasts. The status of feasts as natural rights

256 28 Edw. III. c. 14; 1 Statutes of the Realm, 349. 257 3 Edw. I. c. 39; 1 Statutes of the Realm, 36.

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emerged as an issue important enough to be addressed by authorities because Western

society, from Rome to England, was becoming increasingly legalistic. Authorities were

forced to apply legal-thinking to every issue that could become the subject of dispute in a

court of law. More pressing issues that needed to be addressed in the emerging legal

systems were dealt with in later half of the twelfth century, postponing issues that were considered to be of lesser importance to the peace and management of kingdoms until the thirteenth century. This was the case with feasts, on both ecclesiastical and governmental fronts.

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Chapter IV The Natural Law Basis of Holy Days All natural rights are grounded in law. This is true in the case of holy days.

There was little interest in the legal basis for celebrating feasts prior to the “canon law

revolution,” largely because legal science was an undeveloped field. However, after the

formation of a more sophisticated canon law legal system in the late twelfth and early

thirteenth centuries, canonists were compelled to legally justify the ius commune of the

Church. This caused them to ground the Sabbath in divine and natural law, which had

implications for feasts since they were conflated with the Sabbath. This chapter begins

by summarizing the apparent relationship between annual feasts and natural cycles

because this relationship induced people to associate holy days with nature. The rest of

the chapter will explore the legal basis for the Christian Sabbath before examining the

close relationship between the Sabbath and the other major feasts and what that entailed

from the legalistic perspective of canonists.

Feasts and the Cycles of Nature

The division of time into days is based on the rotation of the earth. Medieval

people understood that days, including holy days, were connected to nature. It was only

“natural” to associate days, themselves connected to natural cycles, with the law of

nature. Long before the Middle Ages this association was recognized by prehistoric man

and later by the classical writers so greatly esteemed by the scholastics.258 Because day

and night, along with the cycles of the year, were unquestioningly accepted as a part of

258 David Cressy, Bonfires and Bells: National Memory and the Protestant Calendar in Elizabethan and Stuart England (Los Angeles: University of California Press, 1989), 1-3.

94 Texas Tech University, Justin Scott Kirkland, May 2013 nature, annual feasts were as well.259 This connection between holy days and nature is evident in various medieval sources through the inclusion of topics clearly related to nature in discussions dedicated to feasts, such as careful explanations in summae that the names of the days of the week were derived from the planets, not directly from pagan gods.260

The fact that medieval clergymen were so careful in calculating the date of Easter every year since it was a movable feast attests to the importance assigned to insuring they celebrated feasts on the correct day because the mathematical formula was quite complicated.261 Bede connected the feast of Easter to natural phenomena. One of the reasons he cited for celebrating Easter according to the liturgical calendar of the Roman

Church was its relation to the phases of the moon, stating: “[Easter should] be celebrated in the third week of the moon, since this very shift of phases of the moon at this time teaches the contemplative powers of the mind to exchange earthly things for heavenly

259 Stephen Borgehammar, “A Monastic Conception of the Liturgical Year,” in The Liturgy of the Medieval Church, 13, 20. 260 Hostiensis, Henrici à Segusio Cardinalis Hostiensis, Aurea Summa Book II.IX: De Feriis, ed. Nicholas Svperantii and Martin Abbatis (Coloniae: Lazari Zetzneri, 1612), 453: Septem enim sunt planetae & septem dies in hebdomada, nam dies Dominicus a Sole denominatur, dies Lunae a Luna, dies Martis a Marte, dies Mercurii a Mercurio, dies Jovis a Jove, dies Venetis a Venere, dies Sabbathi a Saturno. William Durand, Guillelmi Duranti Rationale Divinorum Officiorum: VII-VIII Book 7.1.9, ed. A. Davril, T. M. Thibodeau, and B. –G. Guyot, Corpus Christianorum: Continuatio Mediaevalis, 140B (Turnholt, Belgium: Brepols, 2000), 13: Gentiles…denominant dies a planetis…Nempe uulgus ideo sic eos denominabat quia, solem, lunam, martem, et alios planetas a quibus dies denominabant, deos esse credebant. In ancient Greece and Rome, each of the seven known planets was associated with a specific day of the week, from which the name of each weekday was derived. See Willy Rordorf, Sunday: The History of the Day of Rest and Worship in the Earliest Centuries of the Christian Church, trans. A. A. Graham (London: SCM Press, 1968), 24-42. 261 See C. R. Cheney, Handbook of Dates, 4-8. For a discussion about the widespread acceptance of astrology in the Middle Ages, see Theodore Otto Wedel, The Mediӕval Attitude Toward Astrology Particularly in England (New Haven, CT: Yale University Press, 1920), 60-89.

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glory.”262 Hostiensis (ca. 1200-1271) also closely connected the weekly feast of the

Lord, Sunday, with nature through the declaration that “The day of the Sun is reckoned

by nature, namely the day of the Lord.”263 The major feasts of St. John the Baptist (June

24) and Christmas had a relationship with natural cycles inasmuch as they took place

during Midsummer and Midwinter. People saw significance in the occurrence of

Christmas around the longest night of the year, and interpreted it as a sign of the light

Christ brought into the world at his birth in midwinter since the days became increasingly

longer after Christmas.264 A disproportionate amount of the major universal feasts fell

during relatively slow periods of the agricultural cycle. The longest feast of the year, the

twelve days of Christmas, occurred in the middle of winter when there was little work to

do, while few double feasts fell in August when harvests occurred. Essentially, the

liturgical calendar was tied to seasonal cycles which encouraged people to associate holy

days with natural law.265 Even an ignorant peasant unversed in the metaphysical aspects

of natural law would have recognized the connection between feasts and seasonal cycles

of nature because the vast majority of society was directly involved in agriculture. If

feasts were determined by nature, then logically they were part of its laws.

262 Bede, “On Times,” Chapter 15, in Bede On the Nature of Things and On Times, trans. Calvin B. Kendall and Faith Wallis, Translated Texts for Historians, vol. 56 (Liverpool, UK: Liverpool University Press, 2010), 117. 263 Hostiensis, Aurea Summa II.IX, ed. Svperantii and Abbatis, 453: dies Solis connumerantur, id est dies Dominicus. 264 Thomas J. Talley, The Origins of the Liturgical Year (New York: Pueblo Publishing Company, 1986), 85-112; Duffy, 14-18. 265 Muir, Ritual in Early Modern Europe, 58, 66.

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Because God had created the cycle of day and night after creating the heavens and

the earth, medieval people saw holy days as a part of divine law and the law of nature.266

The universality of the major holy days of the liturgical year certainly supported such a

view. When it was Easter in Rome it was Easter in Canterbury and the rest of the world,

even if the Greeks “wrongly” celebrated it on a different Sunday.

The Legal Basis for Keeping Holy Days

What was the legal basis for ordaining and observing holy days? Since feasts

were a part of the canon law, they had to have a legal rationale. While the major holy

days, particularly the Sabbath, have traditionally been viewed by modern scholars as a

part of divine law, they were really part of both divine and natural law. Divine law, the

precepts of God revealed through the Bible, was not a separate law system apart from

natural law, but just the written portion of natural law intended to ensure that, because human reason was not foolproof, everyone would fully know the most important precepts issued by God.267 To most canonists in the High Middle Ages it made perfect sense to

view divine law as the written portion of natural law. After all, the time in which they lived was an age when unwritten customary laws were being codified and consulted as a

266 Genesis 1:3-5: “And God said, Let there be light: and there was light. And God saw the light, that it was good: and God divided the light from darkness. And God called the light Day, and the darkness he called Night. And the evening and the morning were the first day.” 267 Porter, Natural and Divine Law, 136. Early Church fathers, including St. Justin the Martyr (ca. 100- 165), St. Clement of Alexandra (?-ca. 215), St. Irenaeus of Lyons (ca. 135-?), St. Ambrose of Milan (ca. 340-397), and St. Augustine of Hippo (354-386), considered the Decalogue to be a summation of natural law. See James McEvoy, “Robert Grosseteste on the Ten Commandments,” Recherches de théologie ancienne et médiévale 58 (1991): 182. Thomas Aquinas (1225-1274) explained this pitfall, “with regard to the other moral precepts, which are like conclusions drawn from the universal principles of the natural law, the reason of many men went astray, to the extent of judging to be lawful, things that are evil in themselves. Hence there was need for the authority of the Divine law to rescue man from both these defects…in order to remove the manifold errors to which reason is liable.” See Thomas Aquinas, The Summa Theologica of St. Thomas Aquinas, vol. 1, trans. Fathers of the English Dominican Province (New York: Benzinger Brothers, 1947), I-II 99.2.

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legal reference to solve disputes. They fully appreciated that, in the case of folklaw, the

act of writing did not make the law, it merely recorded a law whose power derived from

its customary nature.268 This kind of thinking was applied by the canonists to Scripture

in order to understand the relation between divine and natural law, as well as what that

meant for the legitimacy of different subjects. Prior to the mid-twelfth century, there had

been relatively little scholastic interest in natural law, but with the inclusion of natural

law in the Decretum it became a hot topic with intellectuals. The sudden interest in

natural law had a direct impact upon the legal basis of holy days from the thirteenth

century onwards.

Late medieval scholastics based the legitimacy of holy days in general in both

divine law and natural law. It was clear to all medieval scholars that observing the

Sabbath was part of divine law because God had directly commanded it in the Hebrew

Scriptures and had observed it Himself during the week of creation. However, beginning

in the thirteenth century several notable medieval scholastics from both theological and

canonist backgrounds also realized the commandment to observe holy days had a

concurrent basis in natural law.269 The existence of the Sabbath as a part of divine and

natural law was rooted its dual nature as ceremonial and moral. As a ceremonial precept

the holy days of the Old Testament, not just the Sabbath, had lost their binding power

with the coming of Christ. However, as a moral precept that directed man to his proper

268 Brundage, Medieval Canon Law, 157, states that Hostiensis was of this mindset. He “saw the divine law contained in the Scriptures as an extension of rational natural law.” 269 Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law (Grand Rapids, MI: W. B. Eerdmans Publishing Co., 2005), 12, 220, 246-249. See also Bruce C. Brasington, “Require in Prologo: The Decretists and Ivo of Chartres’ Prologue,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 118 (2001): 84-124.

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end, holy days were a part of the immutable natural law, and thus remained relevant to

Christians.270 As St. Thomas Aquinas (1225-1274) explained, “The precept of the

Sabbath observance is moral in one respect, in so far as it commands man to give some

time to the things of God…In this respect it is placed among the precepts of the

decalogue: but not as to the fixing of the time, in which respect it is a ceremonial

precept.”271 The moral precept component of holy days caused most medieval

scholastics to accept that Christians still had a natural law imperative to observe them.

The noted English theologian Alexander of Hales (ca. 1185-1245), who became

the first Franciscan to hold a chair at the University of Paris, based the power of the Third

Commandment in both divine and natural law. He stated, “First it is obvious that moral

law is from the law of nature (lege naturali), I declare the Decalogue to be moral,

following Augustine; however the precept of natural law is all and always the same among all people…and always the same…truly through the dictate of natural law (legis

naturalis) it is able to be held since it is freedom from service (vacandum) for God.”272

Alexander viewed the Third Commandment as moral law, and thereby grounded in

natural law. By doing so, he was able to maintain that even though Christians might not

be obliged to keep the Sabbath based on the now superseded Hebrew Bible’s Third

270 Thomas Aquinas, Summa Theologica, I-II 100.4. Thomas Aquinas, Summa Theologica, I-II 100.1: “all the moral precepts of the Law belong to the law of nature.” 271 Thomas Aquinas, Summa Theologica, I-II 100.3. For the argument that Aquinas believed even God could not grant dispensations for the commandments of the first table of the Decalogue, see Patrick Lee, “Permanence of the Ten Commandments: St. Thomas and His Modern Commentators,” Theological Studies 42, (1981): 422-443. 272 Alexander of Hales, Doctoris Irrefragabilis Alexandri de Hales Ordinis Minorum Summa Theologica seu sic ab Origine Dicta “Summa Fratris Alexandri” vol. 4, book 3, Pars II, Tract. II, Sect. I, Quaest. II, Tit. III, c. 2, ed. Pacifici M. Perantoni (Quaracchi, Italy: Typographia Collegii S. Bonaventurae, 1948), 492-493: Primum patet, quia morale est de lege naturali, dico morale Decalogi, sicut vult dicere Augustinus; praeceptum autem legis naturalis idem est apud omnes et semper idem…postquam enim per dictamen legis naturalis haberi potest quod vacandum est Deo aliquando, per Legem scriptam debet determinari quando vacandum est Deo.

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Commandment, the Sabbath still must be kept because it was a part of natural law and,

therefore, had not been abrogated by the coming of Christ. He later stated in a more

direct manner, “The precept about the Sabbath according to what was the moral law of

nature, always was implicit natural law (lege naturali) and afterwards explicit in the written Law.”273 Alexander’s connection of the Sabbath with divine and natural law

especially relates to feasts because his discussion of feasts was intermixed with his

commentary on the Third Commandment.

Alexander of Hales was not the only English scholastic to base the rationale for

the Christian Sabbath and other holy days in natural law. Bishop Robert Grosseteste of

Lincoln (r. 1235-1253) wrote a treatise entitled On the Cessation of the Laws (ca. 1230-

1235) in which he explained that since the coming of Christ the laws of the Old

Testament were no longer in effect.274 Just like Alexander of Hales, he reached the

conclusion that the literal force of the Third Commandment was absolved but because it

also had a moral component which was perpetually binding, Christians had a moral

imperative to hallow the Christian Sabbath.275 He said specifically about the Third

Commandment, “because the signification of the Sabbath is commonly useful, because

the supremely good God always does what is best in the ordering of the universe, and

because there is very little reason when it comes to the supreme order that the effect be

273 Alexander of Hales, Summa Theologica Pars II, Tract. II, Sect. I, Quaest. II, Tit. III, c. 3, a. 1, ed. Perantoni, 495: Praeceptum de sabbato, secundum quod erat morale naturae, semper fuit in lege naturali implicitum et postmodum in Lege scripta explicitum. 274 See McEvoy, “Robert Grosseteste on the Ten Commandments,” 167-205. 275 Robert Grosseteste, On the Cessation of the Laws Book 1.5.1, trans. Stephen M. Hildebrand, The Fathers of the Church: Mediaeval Continuation, vol. 13 (Washington, D.C.: The Catholic University of America Press, 2012), 45: “The whole collection…of the first kind of commandments [i.e. the first four commandments of the Ten Commandments], that is, of actions that are intrinsically just and therefore commanded, is the natural law…it naturally suits any rational creature to carry it out with actions that accord with the kind of thing it is.”

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made better, it seems necessary that the sign value of the Sabbath never be made

void.”276 He believed the moral component of the Sabbath was instituted for two

reasons: to allow people to rest their bodies and to abstain from sin, which was partially

caused by the fact that servile work was sinful.277 Grosseteste believed that there was

something intrinsically good about the Sabbath for all men regardless of time, which

made it immutable and thus a part of natural law.

The Third Commandment was grounded in natural law not only by English

scholastics, but also by European theologians and canonists. Though theologians were

not as well-versed in legal science as jurists, they still had a good understanding about the

relationship between natural law and the Decalogue. Thomas Aquinas considered the

Decalogue to be an explicit statement of some natural law precepts and specifically

discussed the Third Commandment in relation to its importance for Christians,

demonstrating that its precept was a part of natural law because it could have no

relevance to Christians otherwise.278 The influential Franciscan theologian St.

Bonaventure (1221-1274) agreed and declared that the Ten Commandments had to be

written down because natural law had been obscured by man’s sin.279 Even the

276 Robert Grosseteste, On the Cessation of the Laws 1.2.3, trans. Hildebrand, 45. 277 Robert Grosseteste, On the Cessation of the Laws 1.10.4, trans. Hildebrand, 82-83. 278 Porter, Nature as Reason, 270-271; Joseph A. M. Quigley, “The Changing Concept of Servile Work,” Proceedings of the Twelfth Annual Convention of the Catholic Society of America (1958): 278, http://ejournals.bc.edu/ojs/index.php/ctsa/article/view/2441/2074 (accessed January 9, 2013); R. J. Bauckham, “Sabbath and Sunday in the Medieval Church in the West,” in From Sabbath to Lord’s Day: A Biblical, Historical, and Theological Investigation, ed. D. A. Carson (Grand Rapids, MI: Zondervan Publishing House, 1982), 305-306; Thomas Aquinas, “Explanation of the Ten Commandments: The Third Commandment,” in The Catechetical Instructions of St. Thomas Aquinas, trans. Joseph B. Collins (New York: Joseph F. Wagner, 1939), 81: “as the Jews celebrated the Sabbath, so do we Christians observe the Sunday and all principal feasts.” 279 Bonaventure, Doctoris Seraphici S. Bonaventurae S. R. E. Episcopi Cardinalis Opera Omnia vol. III, Dist. XXXVII, Art. I, Quaest. III, ed. Collegium S. Bonaventura (Quaracchi, Italy: Typographia Collegii S.

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conciliarist Jean Gerson (1363-1429), who lobbied for the reduction of some minor

holidays because they were more often observed with sin and laziness than piety, justified

the Sabbath in natural law.280 Though he was trained as a theologian and not as a

canonist, Gerson had a strong grasp of canon law and legal science, likely because he was

chancellor at the University of Paris which was renowned as a school of canon law.281 In

a letter entitled De Vita spirituali animae he wrote, “this is clearly established in the ten

commandments of divine law (juris) which are also simultaneously natural law principles and so followed now just as in the past.”282 In his commentary about the Third

Commandment, he said, “this Precept is moral law and written on the human heart, just

as the other Mandates or Precepts of The Decalogue because nature dictates a person

sometimes ought to be free for rest, oration and divine praise.”283

The most important group which attributed the Third Commandment to natural

law was the jurists. Jurists were the ones trained in legal science who were developing

the concept of natural rights through their work on natural law. If the theory that the

Sabbath was grounded in natural law met the legal standards of canonists and was

accepted by them, then it must have been widely accepted. In fact, jurists did assume that

the moral precept to observe the Sabbath was based in natural law. Just like Aquinas, the

Bonaventurae, 1887), 819: Obligatio mandatorum Decalogi radicaliter sequitur legem naturae, sed quantum ad explicationem et distinctionem sequitur legem scriptam. 280 Rodgers, Discussion of Holidays, 81-82. 281 Tierney, Idea of Natural Rights, 210-211. It is worth noting that Gerson was one of a long line of scholastics who attributed a meaning of “subjective right” to the term ius. 282 Jean Gerson, Œuvres Complètes, vol. III, ed. Glorieux (Tournai, Belgium: Desclée & Co., 1962), 142: Hoc liquido constat in decem praeceptis juris divini quae et simul sunt naturalis juris principia prout in prioribus jam habitum est. 283 Jean Gerson, Joannes Gersonii Omnia Opera vol. I, Pars III, Tractatus I, Tractatus II, ed. Henricus de Hassia, et. al. (Antwerp, Belgium: Sumptibus Societatis, 1706), 247: morale est hoc Praeceptum & scriptum in corde humano, sicut alia Decalogi Mandata seu Praecepta: natura enim dictat esse vacandum aliquando quieti, & orationi & divinae laudi.

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decretist Rufinus (d. 1192) acknowledged the Decalogue as an explicit statement of what

was morally right, thereby making the Third Commandment a part of natural law.284 The

canonist Bishop William Durand of Mende (ca. 1230-1296), whose masterpiece

Rationale Divinorum Officiorum (The Rationale of the Divine Office) was his attempt to

compile sources explaining the liturgy of the Church, also grounded the Sabbath in natural law. Durand believed that the first four commandments of the Decalogue could be uncovered by man without knowledge of the Bible because they were a part of natural law and therefore already known in the human heart.285 It seems that there was a fairly widespread consensus amongst medieval thinkers that the precept enunciated in the Third

Commandment was also found in natural law.

Yet some dissenting voices were far less comfortable with the assertion by their contemporaries that any part of the Third Commandment was still binding on Christians.

Bishop Reginald Pecock of Chichester (ca. 1395-1460) emphatically decried the relevance of the Third Commandment to Christians.286 The influential Franciscan

theologian John Duns Scotus (ca. 1265-1308), though finding the first two

commandments of the Decalogue to be grounded in natural law, came to the inconclusive

284 Porter, Nature as Reason, 268. 285 William Durand, The Rationale Divinorum Officiorum of William Durand of Mende: A New Translation of the Prologue and Book One 1.2.4, trans. Timothy M. Thibodeau (New York: Columbia University Press, 2007), 27: “We read in Exodus [cf. Ex 40] that the Testimony, that is the tablets on which the Testament was written, was placed in the Ark of the Covenant…one can say that the Testimony exists wherever it is has been placed, and this can be proven when the Scriptures revive the natural law in the heart of man, upon which it has already been written.” 286 Reginald Pecock, The Donet, ed. Elsie Vaughn Hitchcock, Early English Text Society, vol. 156 (London: Oxford University Press, 1921), 148: “Al what was bede in þe iij comaundement of þe seid tablis was forto in eche weke halowe þe satirdaie. but so it is þat forto in eche weke halewe þe satirdaie is ceesid, and bindeþ not…Wherfore no þing in þe seid iij comaundement abidiþ and bindiþ.”

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conclusion that the third commandment might be a part of natural law.287 Despite

dissenting arguments from a few, most preeminent scholastics readily accepted that due

to the multiple levels on which the Third Commandment operated, its moral imperative

was relevant to Christians since it was grounded in the unchanging natural law.

Conflation of Sabbath and Non-Sabbath Feasts

Grounding the Sabbath in natural law had implications for non-Sabbath feasts as

well. Though not explicitly included in the Ten Commandments, God had decreed in the

Old Testament that certain feasts, such as Passover, should be celebrated by the Jews.288

Biblical feasts could be treated in the same manner as the Sabbath if they too had

ceremonial and moral components.289 The canonistic work Dives and Pauper clearly

connected the feasts mandated by God in the Old Testament and the Christian feasts

which arose out of events in the New Testament, explaining the force of the Christian

feasts the same way as the force of the Sabbath.290

Many scholastics tended to write about feasts in their discussions of the Sabbath,

such as Alexander of Hales, Raymond of Peñafort, and the anonymous author of Dives

287 John Duns Scotus, “The Decalogue and the Law of Nature,” in Duns Scotus on the Will & Morality, trans. Allan Bernard Volter, ed. William A. Frank (Washington, D. C.: The Catholic University Press of America, 1997), 204: “We admit that the first two commandments belong strictly to the law of nature…[but] there is some doubt about the third commandment.” See also Hannes Mӧhle, “Scotus’s Theory of Natural Law,” in The Cambridge Companion to Duns Scotus, ed. Thomas Williams (New York: Cambridge University Press, 2003), 312-323. 288 Exodus 23:14-17; Exodus: 34:18-23; Leviticus 23: 1-44; Deuteronomy 16: 1-16; Numbers 28-29. 289 The legal confluence of non-Sabbatical feasts with the Sabbath which began in the Anglo-Saxon period in England continued into the High Middle Ages. Though Athene Reiss, Sunday Christ, 31, states that from the twelfth century onwards holy days and the Third Commandment were interdependent, the conflation evident in the Late Middle Ages clearly began during the Anglo-Saxon period, as previously demonstrated in Chapter II. 290 Dives and Pauper 3.4, ed. Barnum, 270-272.

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and Pauper.291 William Durand discussed Sundays and feast days associated with the

Christ in his sixth book, but placed the main discussion of saints’ feasts in his seventh

book.292 The Sabbath and non-Sabbatical feasts also merge in common phrases used by

writers. One such phrase found in numerous medieval summae is dies Dominici et alii

festi (Sundays and other feasts).293 The structure of the phrase makes Sundays parallel to

other types of feasts. It was natural to the scholastics to discuss dominici Dei and festi/feriae together because they were essentially the same thing. Even though some feasts were dedicated to the saints, their ultimate purposes were identical to the purpose of the Sabbath: to provide a time for all to rest from their daily labors and worship God.

As Dives and Pauper states, “All the feasts of the new law are the days and the Sabbaths of our Lord, for all it are of himself, in himself, or else of himself in his saints.”294 In

essence, the main differences distinguishing major saints’ feasts from Sundays was that

Sundays occurred every seventh day while feasts were often variable and featured different sermons and liturgical rites.

The confluence of Sabbath and non-Sabbath feasts is further attested to in some discussions of the Third Commandment. Bernard of Clairvaux (1090-1153) declared in

291 Alexander of Hales, Summa Theologica Pars II, Tract. II, Sect. I, Quaest. II, Tit. III, c. 5, a. 2, ed. Perantoni, 502-503; Raymond of Peñafort, Summa Sancti Raymundi de Peniafort Ordinis Prӕdicatorum cum Glossis Joannis de Friburgo, Second Edition, Book 1.12: De Feriis, et Festis, et Diebus Jejuniorum (Avignon, France: Franç. Mallard, Joan. Delorme, Jos. Car. Chastanier, 1715), 153-163; Dives and Pauper 3, ed. Barnum, 263-303. The Decretals of Gregory IX also discussed the Sabbath with other feasts: X 2.9.1-5. 292 William Durand, Rationale Divinorum Officiorum: V-VI, ed. A. Davril and T. M. Thibodeau, Corpus Christianorum: Continuatio Mediaevalis, CXL A (Turnholt, Belgium: Brepols, 1998), 120-583; William Durand, Guillelmi Duranti Rationale Divinorum Officiorum: VII-VIII, ed. Davril, Thibodeau, and Guyot, 9- 130. 293 The phrase has some subtle variations, aliae feriae is used by some sources, but this means the same thing. Raymond of Peñafort, Summa 1.12.§7, 162; Alexander of Hales, Summa Theologica Pars II, Tract. II, Sect. I, Quaest. II, Tit. III, ed. Perantoni, 490. 294 Dives and Pauper 3.10.10-12, ed. Barnum, 281: Alle þe festis of þe new lawe arn þe dayys & þe Sabatis of our lord, for alle it arn of hymself, in hymself, or ellys of hymself in his sentis.

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the twelfth century that “special devotion to God is offered in observance of the holy

solemnities of the saints, whence the third commandment sets forth, Observe the day of

the Sabbath: that is, occupy yourself in the sacred feasts so that through present rest you

may learn to hope for eternal rest.”295 Confluence is also evident in the Middle English

work Speculum Christiani (ca. 1360s-1370s), whose extensive popularity is attested to by

the existence of several extant manuscripts and its distinction as one of the first books

published in England sometime between 1478 and 1480.296 In its explanation of the

Third Commandment it states, “Have mind that thou hallow the holy-day. In this

commandment is bade the worship of God to be had religiously.”297 Later under a

chapter described as a list of the “synnys of dedis” was listed “Mispendinge of halidays”

without any differentiation being made between the Sabbath and other holy days.298 A

purely literal interpretation of this text would suggest that the Third Commandment

mandates that all holy days, not just the Sabbath, be hallowed by each individual. The

popular Lay Folks Catechism, translated into Middle English with the approval of

Archbishop John Thoresby of York (r. 1352-1373), also blurred the distinction between the Sabbath and holy days, saying about the Third Commandment, “The third is, that we shall hold and hallow the holiday, The Sunday, and all other that falls to the year that are

295 Bernard of Clairvaux, “In Antiphonam Salve Regina, Sermones IV: Sermo IV,” in Sancti Bernardi Abbatis Clarӕ-Vallensis Opera Omnia, vol. II, Fourth Edition, ed. D. Joannis Mabillon (Paris: Apud Gaume Fratres Bibliopolas, 1839), 1461: Porro speciale obsequium Deo praebetur in observantia sanctarum solemnitatum: unde tertium praeceptum contexitur, Observa diem Sabbati: quod est, In sacris feriis te exerce, quatenus per requiem praesentem discas sperare aeternam. 296 Speculum Christiani: A Middle English Religious Treatise of the 14th Century, ed. Gustaf Holmstedt, Early English Text Society, vol. 182 (London: Oxford University Press, 1933), xv-xvi. 297 Speculum Christiani, ed. Holmstedt, 20: The therde commaundmente: Haue mynde that thou halow the haly-day. In this commaundment es boden the worschip of god to [be] had religiosly. 298 Speculum Christiani, ed. Holmstedt, 86-87, 91.

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ordained to hallow through holy kirk.”299 It seems that in the mid-fourteenth century,

though people surely knew there were subtle differences between normal Sundays and

other feasts, they considered both types of holy days remarkably similar, if not basically

the same. This conflation also meant that the major feasts seemed to share the same

natural law precepts as the Sabbath and were just as powerful. The Franciscan St.

Bernardino of Siena (1380-1444), memorable for his virulently anti-Semitic rants, even

declared that the major feasts were just as binding as the Sabbath, stating in a sermon

about the Sabbath and feasts, “We are obliged to observe the other solemnities of the

Saints that holy Church proclaimed should be celebrated, recalling the struggles and the

martyrdoms of those saints.”300

Overall, the conflation of the Sabbath with feasts had a tremendous influence on

the legal basis of holy days. While this conflation did occur prior to the twelfth century,

as witnessed in the Anglo-Saxon laws, it was not until the emergence of Western legal

science after Gratian that the ramifications of this conflation were fully realized. It led

canonists to identify the legal basis of feasts as natural law because the Sabbath was

based in natural law.

299 The Lay Folks' Catechism, Or the English and Latin Versions of Archbishop Thoresby's Instruction for the People: Together with a Wycliffite Adaptation of the Same, and the Corresponding Canons of the Council of Lambeth T.187-190, ed. Thomas Frederick Simmons and Henry Edward Nolloth, Early English Text Society, vol.118 (London: Kegan Paul, Trench, Trϋbner & Co., 1901), 38: The third is, that we sal hald and halowe our haliday, The Sononday, and all othir that falles to the yhere That er ordayned to halowe thurgh halikirk. For more examples from Middle English works, see The Book of Vices and Virtues, ed. W. Nelson Francis, Early English Text Society, vol. 217 (London: Oxford University Press, 1942), 2-3. 300 Bernardino of Siena, “Sermo X: De observantia Sabbathi,” in Sancti Bernardini Senensis Ordinis Seraphici Minorum Quadragesimale De Evangelio Ӕterno, Charitatis, & aliarum virtutum encomia continens, necnon eruditissimos tractatus De Usura, vol. II, ed. Joannes de la Haye Parisini (Venice, Italy: Andreӕ Poletti, 1745), 54, col. I-II: Ceteras vero solemnitates Sanctorum quas statuit sancta Ecclesia celebrandas observare etiam obligamur, eorum certamina recolentes, ac martyria eorum.

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The Purpose of Feasts in Natural Law

The association between the Sabbath and feasts was not the only component responsible for causing feasts to be considered a part of natural law. Medieval people recognized the universality of feasts inasmuch all peoples, even the Jews and pagans, had them. The remnants of pagan festivals and seasonal celebrations could be seen all around and were often incorporated into the Christian calendar as Christian feasts. While in the

High and Late Middle Ages, paganism was far less common and the feasts of its adherents less visible, scholastics still knew that the pagans had celebrated feasts, especially with the twelfth century rediscovery of classical works such as the Politics of

Aristotle (384-322 B.C.).301 Scholastics were also familiar with Jewish feasts, such as

Passover and Pentecost, and naturally compared those feasts with Christian ones.302 The

301 The quintessential work on the revival of classical learning in the twelfth century is Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge, MA: Harvard University Press, 1927). Haskins’ theory was updated and expanded fifty years later by several distinguished scholars in Robert L. Benson and Giles Constable, eds., Renaissance and Renewal in the Twelfth Century (London: Oxford University Press, 1982). For some classical works that mention feasts, see Plutarch, Plutarch’s Lives I: Theseus and Romulus, Lycurgus and Numa, Solon and Publicola, trans. Bernadotte Perrin, The Loeb Classical Library (New York: G. P. Putnam’s Sons, 1914), 157-159, 369-375; Tacitus, The Histories: Books IV-V, The Annals: Books I-III Book 5.4 trans. John Jackson, The Loeb Classical Library (Cambridge, MA: Harvard University Press, 1998), 180-181; Ovid, Fasti, ed. A. J. Boyle and R. D. Woodard (New York: Penguin Books, 2000); Macrobius, The Saturnalia Book I, trans. Percival Vaughan Davies (New York: Columbia University Press, 1969), 26-158; Tertullian, “Ad Nationes” Book I.XIII, in The Writings of Tertullian: Vol. I, ed. Alexander Roberts and James Donaldson, Ante-Nicene Christian Library: Translations of the Writings of the Fathers Down to A.D. 325, vol. 11 (Edinburgh, Scotland: T. & T. Clark, 1869), 449-450; Origen, Origen: Contra Celsum Book 8.21-23, ed. Henry Chadwick (New York: Cambridge University Press, 1980), 467-469; Augustine of Hippo, The City of God Against the Pagans: Volume I, Books I-III Book 2.26-27, trans. George E. McCracken, The Loeb Classical Library (Cambridge, MA: Harvard University Press, 1957), 249-257. Even Bede compared pagan Anglo-Saxon feasts and Christian feasts, such as Modranecht and Christmas: Bede, Bede: The Reckoning of Time, trans. Faith Wallis (Liverpool, UK: Liverpool University Press, 1999), 53-54. The humanists Desiderius Erasmus (ca. 1467-1536) and Polydore Vergil (ca. 1470- 1555) both made the association by comparing Christian and pagan feasts, such as Shrove Tuesday with the Bacchanalia. See: Desiderius Erasmus, In Praise of Folly (London: Reeves & Turner, 1876), 82; Polydore Vergil, De Rerum Inventoribus Book 5.2, trans. John Langley (New York: Agathynian Club, 1868), 152. 302 Eviatar Zerubavel, “The Language of Time: Toward A Semiotics of Temporality,” The Sociological Quarterly 28, no. 3 [Conceptions of Temporality in Sociological Theory] (Autumn 1987): 349-352; Thomas Aquinas, Summa Theologica, I-II 102.4; William Durand, Rationale Divinorum Officiorum: V-VI

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fact that non-Christians had feasts meant that feasts were universal to all peoples. While

the specific qualities of individual feasts could vary substantially, such as what a feast

commemorated or celebrated, the fact that feasts were widely celebrated across time,

distance, and culture indicated to scholastics that there was some concept behind feasts

which applied to all mankind. Essentially, since feasts were common to all peoples, in an

Aristotelian sense there was something “natural” to them. There had to be some common

force which compelled peoples to celebrate holy days. Since one of the definitions

ascribed to ius naturale was the ability to cause man to follow its precepts, even without

the divine enlightenment available through Scripture, natural law was able to explain the

presence of feasts amongst non-Christians.303 The pagan Roman geographer Strabo (ca.

64 B.C.-24 A.D.) recognized that feasts were natural to human nature, explaining, “Now

this is common both to the Greeks and to the barbarians, to perform their sacred rites in

connection with the relaxation of a festival, these rites being performed sometimes with

religious frenzy, sometimes without it…And it is in accordance with the dictates of

nature that this should be so.”304 Because twelfth century scholastics considered natural

law to be composed of universal principles that were applicable to all peoples, feasts

appeared to be a part of natural law due to their universality.305 The theologian Peter

6.1.15-19, ed. Davril, and Thibodeau, 125-127. Medieval Christian writers tended to view God’s command to the Jews to observe these feasts as a foreshadowing of the coming of the Messiah. See Dives and Pauper, 3.4, ed. Barnum, 270-272; Robert Grosseteste, 1.10.11, trans. Hildebrand, 85: “In Isaiah, in fact, the Lord shows that…the New Moon and the Sabbath and other festivals must end…The Lord, therefore, fixed an end to corporeal acts of this sort, but he did not fix an end to the spiritual things that they signified.” 303 D. 1 c.7; Gratian: The Treatise on Laws (Decretum DD. 1-20) with the Ordinary Gloss, 6: “Natural law is common to all nations because it exists everywhere through natural instinct.” See also Tierney, Idea of Natural Rights, 62-64. 304 Strabo, The Geography of Strabo vol. V, Book 10.3.9, trans. Horace Leonard Jones (Cambridge, MA: Harvard University Press, 1954), 92-93. 305 See Porter, Divine and Natural Law, 145.

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Comestor (d. 1178) even suggested that the Sabbath had been a feast observed by all

nations.306

If feasts have universality they must meet an intrinsic human need, thereby

participating in natural law.307 The fact that so many of the Church’s precepts

concerning feasts were influenced by the customs of pagan Roman religion forced

medieval scholastics to recognize that feasts fulfilled multiple needs. Medieval

intellectuals certainly could not accept that many of the regulations concerning holy days

were taken solely from pagan customs. Doing so would be tantamount to sacrilegiously

saying there were some pagan elements in Christian feasts. St. Augustine of Hippo (354-

430) provided an influential explanation to the conundrum when commenting on a

passage from Seneca (ca. 4 B.C.-65 A.D.), “Along with other superstitions of the civil

theology Seneca also censures the sacred institutions of the Jews, especially the

Sabbath…because by introducing one day of rest in every seven they lose in idleness

almost a seventh of their life…he says: ‘Meanwhile the customs of this accursed race have gained such influence that they are now received throughout all the world. The vanquished have given laws to the victors.’ He shows his surprise as he says this, not knowing what was being wrought by the providence of God.”308 The scholastics

attributed the commonalties between pagan and Christian feasts to natural law which

fulfilled intrinsic needs in every individual. What human needs did feasts fulfill? There

306 Peter Comestor, Petri Comestoris Scolastica Historia: Liber Genesis Chapter XI, ed. Agneta Sylwan, Corpus Christianorum: Continuatio Mediaevalis, CXCI (Turnholt, Belgium: Brepols, 2005), 25: Semper enim ab aliquibus nationibus ante legem dicitur sabbatum fuisse obseruatum. 307 Lottin, “Natural Law,” 11: “Natural law is nothing else than this invitation of the being to perfect itself fully in attaining its end.” 308 Augustine of Hippo, The City of God Against the Pagans: Volume II, Books IV-VII Book 6.9, trans. William M. Green, The Loeb Classical Library (Cambridge, MA: Harvard University Press, 1963), 360- 361.

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was the obvious spiritual component of feasts involving worship and the sacraments.

However, there were also physical, mental, and communal benefits of feasts.

What role did worship and the sacraments play in relation to feasts? Aquinas,

discussing the ceremonial component of feasts, maintained, “the ceremonial precepts are

determinations of the moral precepts whereby man is directed to God…Now man is

directed to God by the worship due to Him…The Divine worship includes not only

sacrifices and the like, which seem to be directed to God immediately, but also those

things whereby His worshippers are duly prepared to worship Him.”309 Clearly, feasts were understood to be sacred times primarily ordained for the worship of God with singing hymns and praying. Through prayer the devout were able to come into contact with Christ and the saints.310 Though God had commanded mankind to observe specific

holy days by worshipping him, it was assumed that worship itself benefited not only God

but also the worshipper.311 As Jesus had said, “The Sabbath was made for man, not man

for the Sabbath.”312 The Lord could be a God of terrible vengeance but also a loving God

that wanted the best for his children. Worship was a means of temporarily reconciling

man with God, as had been the state of things before the Fall, thereby temporarily making

things as they should be. It was also a time set aside for people to trek to church and

partake in the sacraments of the Christian faith, things which were necessary for eternal

309 Thomas Aquinas, Summa Theologica, I-II 100.1. 310 Augustine Thompson, Cities of God, 348. 311 Thomas Aquinas, “Explanation of the Ten Commandments,” trans. Collins, 85: “Christians…ought to come together on the Sabbath to hear sermons and participate in the services of the Church…These two practices are good for the soul of the sinner, because they change his heart for the better.” 312 Mark 2:27. This statement from Scripture was interpreted to mean that though God was due reverence on holy days, the primary purpose of holy days was for the benefit of man.

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life.313 Jesus referred to this need when he said “Whoso eateth my flesh, and drinketh my

blood, hath eternal life; and I will raise him up at the last day. For my flesh is meat

indeed, and my blood is drink indeed. He that eateth my flesh, and drinketh my blood,

dwelleth in me, and I in him.”314 Since spiritual sustenance and refreshment was only

available by partaking in the preordained religious rites and rituals, rites such as

communion (the ritualized eating and drinking of Christ’s body and blood) which mainly

took place in church, required the physical presence of the faithful in church. Thus,

partaking in the mass was considered to literally provide nourishment to fulfill the

primary need of man, everlasting life only available through Christ.

This doctrine, still part of the modern Church’s dogma, was acknowledged by

scholastics in the Middle Ages. The influential theologian Hugh of Saint Victor (1096-

1141) wrote about the sacraments, “The institutions of the sacraments, therefore, in so far

as pertains to God the author, is of dispensation but, in so far as pertains to obedient man,

is of necessity since it is…not within man’s power to attain salvation without these.”315

Hugh emphasized the necessity of partaking in the sacraments to attain everlasting life in

heaven through the metaphor of the human race as sick and needing the application of

medicine.316 Without partaking in the sacraments of the faith, man would not receive the

gift of eternal life. The plurality of religions and gods medieval scholastics saw in pagan

313 See Matias Augé, “The Liturgical Year in the Roman Rite,” in Liturgical Time and Space, ed. Anscar J. Chupungco, Handbook for Liturgical Studies, vol. V (Collegeville, MN: The Liturgical Press, 2000), 196- 197. 314 John 6: 54-56. 315 Hugh of Saint Victor, On the Sacraments of the Christian Faith (De Sacramentis) Book 1.9.5, ed. Roy J. Deferrari, The Mediaeval Academy of America, no. 58 (Cambridge, MA: The Mediaeval Academy of America, 1951), 160-161. 316 Hugh of Saint Victor, On the Sacraments 1.9.5, ed. Deferrari, 163: “the sacraments of God are spiritual medicines which are applied without to bodies through visible species but within heal souls through invisible truth. Indeed the institution of these, in so far as pertains to the one giving the precept, is of dispensation but the reception, in so far as pertains to the one obeying, is of necessity.”

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works underlined the necessity of the spirit to find spiritual healing through partaking in

religious sacraments.

Of course, according to medieval Christians, the pagans were living in the dark

and their attempts to find a cure for their spiritual ills failed. This was one of the pitfalls

of relying on natural law without having divine revelation. Though natural law had

caused the pagans to search for the cure for the spiritual needs, their reasoning was not

enlightened by Christ, and it failed them. Aquinas explained their mistakes, “The

dispositive cause of idolatry was, on the part of man, a defect of nature, either through

ignorance in his intellect, or disorder in his affections.”317 Aquinas did not see the

attempt of the pagans to find spiritual fulfillment as an error, just their idolatrous

conclusions.

The role of using feasts as ordained times when people were given the

opportunity to fulfill their spiritual needs was succinctly articulated by Thomas Aquinas.

He maintained that “man always tends downwards towards earthly things unless he takes

means to raise himself above them. It is indeed necessary to have a certain time to do

this…And some, in order to avoid being entirely apart from God, find it necessary to

have a fixed day.”318 This concept informed many of the medieval Church’s decisions

pertaining to feasts. When Archbishop Simon Mepham of Canterbury (r. 1328-1333)

decided to ordain Good Friday as a solemn feast of the English Church, he cited the

“health of man’s soul.”319 Apparently, Mepham believed Good Friday would be

317 Thomas Aquinas, Summa Theologica, II-II.94.4; Robert Jared Staudt, Religion as a Virtue: Thomas Aquinas on Worship Through Justice, Law, and Charity (PhD diss., Ave Maria University, 2008), 129-132. 318 Thomas Aquinas, “Explanation of the Ten Commandments,” trans. Collins, 81. 319 William Lyndwood, Lyndwood’s Provinciale: The Text of the Canons Therein Contained, Reprinted from the Translation Made in 1534 Book 2.3.1, ed. J. V. Bullard and H. Chamber Bell (London: The Faith Press, 1929), 38: “According to our mind and desire, which moveth us to look unto the health of man’s

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spiritually beneficial to individuals because it would provide a time for them to fulfill a spiritual need.320

Spiritual health was not the only need that feasts met. They were also important for physical and mental health. Specific days given over solely to the sacred allowed individuals to escape the drudgery of everyday life.321 Whether in the medieval or modern era, work leads to stress in human beings. This was especially so in the Middle

Ages. Some estimates of medieval work habits suggest that people worked from dawn till dusk, up to sixteen hours per day in summer and eight hours in winter.322 Agricultural labor was the main occupation of laymen, and the physicality of it greatly taxed workers’ bodies, especially during the planting and harvesting seasons. Another factor that impacted ancient and medieval laborers was low caloric intake, which could adversely affect the amount of work a laborer was capable of doing.323 The overall effect of engaging in physically challenging agricultural labor was physical exhaustion. Feasts soul, we make our beginning at the very fountains of the Saviour. And therefore we establish and ordain that Holy Friday…shall be kept solemnly after the manner and custom of the Church.” For the Latin gloss by the English canonist William Lyndwood (ca. 1375-1446), see William Lyndwood, Provinciale, (seu Constitvtiones Angliӕ,) Continens Constitutiones Provinciales quatuordecim Archiepiscoporum Cantuariensium, viz. à Stephano Langtono ad Henricum Chichleium; cum Summariis atque eruditis Annotationibus, summà accuratione denuo revisum atque impressum. Cui adjiciuntur Constitutiones Legatinӕ D. Othonis, et D. Othoboni, Cardinalium, & Sedis Apostolicӕ in Anglia Legatorum, Cum Profundissimis Annotationibus Johannis de Athona, Canonici Lincolniensis Lib. II, Tit. 3, Cap. 1: De Feriis (Oxford, UK: H. Hall Academiӕ Typographus, 1679), 99-101. For a brief analysis of Mepham’s constitutions, see Roy Martin Haines, “The Career of Simon Mepham, Archbishop of Canterbury, 1328- 33,” The English Historical Review 112, no. 447 (June 1997): 568-570. 320 William Lyndwood also included another canon from Mepham in the Provinciale that ordained the feast for the Conception of the Virgin Mary, “[so that it] may increase devotion and health in all people, which have in their hearts spiritual joys.” William Lyndwood, Provinciale, 2.3.2, ed. Bullard and Bell, 39; Latin version: Lib. II, Tit. 3, Cap. II, 101. 321 Webster, Rest Days, 85-86; Durkheim, Elementary Forms, 382-383. 322 Juliet B. Schor, The Overworked American: The Unexpected Decline of Leisure (New York: Basic Books, 1991), 44-46. Medieval agricultural workers may have spent much of the day in the fields, however the pace of work was not nearly as fast as emerged in the Early Modern Era. See Keith Thomas, “Work and Leisure,” Past & Present, no. 29 (December 1964): 50-66; Mavis E. Mate, “Work and Leisure,” in A Social History of England, 1200-1500, ed. Rosemary Horrox and W. Mark Ormrod (New York: Cambridge University Press, 2006), 276-292. 323 Schor, Overworked American, 46.

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provided opportunities to relieve stress while allowing the body to recuperate from work.

One popular way to alleviate stress was entertainment. Eventually, the Church itself

staged theatrical dramas on feast days in order to teach biblical events and doctrinal

points in forms accessible to the laity, while concurrently offering alternatives to

activities of a decidedly unreligious nature.324 Thus, feasts bestow mental and physical

benefits upon individuals.325

Another functional aspect of feasts was the community fellowship they provided.

Modern sociological studies have confirmed what Aristotle noticed over two millennia

ago, that “man is sociable by nature,” and social interaction fulfills an intrinsic need of

humans.326 For most of human history, the vast majority of people lived in rural areas.

Families were largely isolated from each other and had limited opportunities to engage in

social contact. Feasts created times that encouraged people to come together at their

local temples or churches and socialize. Apart from mere socialization was the

fellowship and common cultural identity that feasts fostered when people across the

countryside came together to engage in sacred activities, such as worshiping a god or the

God. Masses of people coming together at sacred sites during feasts created feelings of

togetherness and spiritual community because the attendees, often of different social

classes, were there for the same reason and engaged in the same sacred acts.327 Public

324 For a justification of plays on holy days, see Dives and Pauper 3.17.11-24, ed. Barnum, 293. 325 For analysis into the positive benefits of engaging in leisure activities and refraining from mundane work, see Seppo E. Iso-Ahola, “A Psychological Analysis of Leisure and Health,” in Work, Leisure and Well-Being, ed. John T. Halworth (New York: Routledge, 1997), 131-144. 326 Aristotle, “Nicomachean Ethics,” trans. W. D. Ross and J. O. Urmson, in The Complete Works of Aristotle: The Revised Oxford Translation, vol. 2, ed. Jonathan Barnes, Bollingen Series, vol. 71 (Princeton, NJ: Princeton University Press, 1984), [1097b]; Aristotle, “Politics,” trans. B. Jowett, in The Complete Works of Aristotle, [1253a]: “A social instinct is implanted in all men by nature.” 327 Wach, Sociology of Religion, 35-44; Catherine Bell, Ritual Theory, Ritual Practice, 125; Dom Gregory Dix, The Shape of the Liturgy (London: Dacre Press, 1960), 333-396; John Bossy, “The Mass as a Social

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worship reinforced the private faith of individuals. By coming together for a specific

sacred purpose, congregants publicly demonstrated their piety. Through attending church

and worshipping together, the local medieval community symbolized the larger united

community of Christians and constructed a sharp cultural distinction between them and

pagans. This was an especially important function in the Early Middle Ages as

Christians were under seemingly constant attack from pagan marauders such as Vikings.

Even Christian holiday prohibitions had a universality, which was to be expected

considering the various religious traditions incorporated into Christianity. However, the

medieval scholastics who hesitated to conclude that Christianity had incorporated

elements from other religions, primarily Judaism and Roman paganism, into its practices,

looked to explain such features as a result of natural law. As demonstrated earlier in this

chapter, this was one of the reasons scholastics grounded the Third Commandment in natural law. The scholastics were forced to do the same thing with Christian holy day prohibitions because laws against commerce, holding court trials, and doing servile work were found in other religions as well. Judaism had these prohibitions enshrined in the

Hebrew Bible, but classical works proved Roman pagan religions had them as well. The famous Roman lawyer and politician Cicero (ca. 106-43 B.C.) mentioned prohibitions against commerce, lawsuits, and servile works in De Legibus (About the Laws).328 The

compulsive need of medieval theologians to differentiate between the holy day

Institution 1200-1700,” Past & Present, no. 100 (August 1983): 29-61; Peter Brown, The Cult of the Saints: Its Rise and Function in Latin Christianity (Chicago: The University of Chicago Press, 1981), 97- 105. 328 Cicero, “The Laws” Book 2.19-20, in The Republic and The Laws, trans. Niall Rudd (New York: Oxford University Press, 1998), 128-129. See also Berger, Encyclopedic Dictionary of Roman Law, s.v. “Feriae (dies festi).”

116 Texas Tech University, Justin Scott Kirkland, May 2013

prohibitions of Christianity and other religions led Archbishop of Canterbury Simon

Peckham (r. 1279-1292) at the synod of Lambeth in 1281 to declare about the Sabbath

and other holy days, “the manner of spending these days is not to be taken from the

superstition of the Jews, but from canonical Institutes.”329 These prohibitions were

viewed as necessary because they directed people to fulfill their natural spiritual, mental,

and physical needs in a correct manner pleasing to God and his saints.

The multidimensional role of feasts in fulfilling spiritual, physical, mental, and

communal needs in individuals was recognized in Classical Greece and Rome, medieval

Europe, and the modern world. In modern terms, these aspects of feasts would be

classified as components fulfilling sociological or psychological needs. In the

terminology of pre-modern Europe, they were components of natural law. While these

components had the potential to create a theological minefield in the medieval intellectual

sphere, natural law offered a means to explain the existence of such commonalities

without creating much controversy. From the twelfth century onwards, the medieval

scholastics were engrossed with the concept of natural law and used it to explain the

commonalities between Christian and pagan feasts.

Hallow Thine Holy Day

Nowhere is evidence that holy days were considered a right of every Christian

more obvious than in the actual wording of Middle English sentences about holy days.

329 Simon Peckham, “Archbishop Peckham’s Constitutions at Lambeth,” in A Collection of the Laws and Canons of the Church of England, From its First Foundation to the Conquest, and from the Conquest to the Reign of King Henry VIII, vol. II, ed. John Johnson and John Baron (Oxford, UK: John Henry Parker, 1851), 284. The reason “canonical Institutes” are cited in this statement instead of natural law is because the canons concerning holy days were considered to be in accordance with natural and divine law. By following these canons, a person could not go astray of natural or divine law.

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Multiple Middle English works use a second-person possessive pronoun in discussions

about holy days, ranging from your to þine and þy.330 This was a systematic pattern used

throughout England which imagines holy days as things that can be, and are, possessed by individuals. It does not seem to be an inadvertent grammatical usage by English writers, but a consequence of widespread acceptance that individuals had a right to

“their” holy days.

William Caxton (ca. 1422-1491) translated and published a folk story called

Reynard the Fox in 1481. One of the lines which was about holidays he translated as:

“sayd Grymbert to his eme, Eme, see now forthon that ye doo good werkis, rede your psalmes, goo to chirche, faste and kepe your halydayes.”331 John Audelay (ca. fifteenth

century) composed a poem which encouraged the reader to “Loue ȝour God ouer al

thyng…In clannes [cleanliness] kepe ȝoure haleday.”332 William Langland (ca. 1325-

1390) also portrayed holy days as something belonging to individuals when he wrote,

“hold wel þyn haliday.”333 Most importantly, the anonymous author of Dives and

Pauper followed the same pattern, indicating that at least some English scholastics

acquainted with canonist texts readily accepted the portrayal of holy days as a possesion.

Throughout his discussion about the Third Commandment, he repeatedly uses possessive

330 For numerous citations of some of these works and the etymology of the word “holiday,” see J. A. Simpson and E. S. C. Weiner eds., The Oxford English Dictionary, Second Edition (New York: Oxford University Press, 1989), s.v. “Holiday.” See also Sherman M. Kuhn and John Reidy eds., Middle English Dictionary (Ann Arbor, MI: The University of Michigan Press, 1998), s.v. “Hali-dai.”; Francis Henry Stratmann and Henry Bradley eds., A Middle-English Dictionary: Containing Words Used by English Writers from the Twelfth to the Fifteenth Century (London: Oxford University Press, 1891), s.v. “hali-dai.” 331 William Caxton, The History of Reynard the Fox, ed. Edward Arber, The English Scholar’s Library of Old and Modern Works (Westminster, UK: Archibald Constable and Co., 1895), 28. 332 John Audelay, The Poems of John Audelay, ed. Ella Keats Whiting, Early English Text Society, vol. 184 (London: Oxford University Press, 1931), [1.143, 146]. 333 William Langland, Piers The Plowman: A Parallel-Text Edition of the A, B, C and Z Versions vol. I, Second Edition, Texts C.VII.225, A.VI.66, B.V.579, ed. A. V. C. Schmidt (Kalamazoo, MI: Medieval Institute Publications, 2011), 256-257.

118 Texas Tech University, Justin Scott Kirkland, May 2013 pronouns with holy days. One of the best examples is found in Chapter V, in which the character Pauper encourages Dives to “put away al rancor and heavy heart, else þine hallowing and þine Sabbath is not pleasant to God.”334 Though the author of Dives and

Pauper may not have been a certified canonist, he still was well-versed with legal concepts and should have recognized the implications of using possessive pronouns in relation to holy days. Even some English ecclesiastical court records written in Latin used the third person possessive pronouns in feast cases, strongly suggesting that the usage of possessive pronouns was not a Middle English grammatical convention without significance. For example, in 1462/1463 William Tailor was cited because “non servat sabbata sua” (he does not serve his Sabbath).335

The grammatical usage of possessive pronouns with “halydays,” as holy days were often spelled in Middle English, is not only found in original written works but also in Middle English quotations of the Third Commandment.336 Robert Mannyng of Brunne

(fl. 1330) translated it as, “The þredde comaundement: Þou shalt kepe þyn halyday. The

þredde comaundement yn oure lay Hys: holde weyl þyn holyday.”337 The Speculum

334 Dives and Pauper 3.5.23-24, ed. Barnum, 273. 335 Lower Ecclesiastical Jurisdiction in Late-Medieval England: The Courts of the Dean and Chapter of Lincoln, 1336-1349, and the Deanery of Wisbech, 1458-1484, ed. L. R. Poos, Records of Social and Economic History, New Series, vol. 32 (New York: The British Academy, 2001), 475: Item quod Willelmus Tailor non servat sabbata sua. 336 Interestingly, the usage of possessive pronouns in Middle English texts about the Third Commandment appears to be an English invention, as it does not seem to have been common for Latin works to use possessive pronouns with holy days, apart from a few ecclesiastical court records. For example, Exodus 20:8 in the medieval Latin Bible with the Ordinary Gloss and gloss of Nicholas of Lyra (ca. 1270-1349) says “Memento vt diem sabbathi sanctifices.” Conspicuously absent is the presence of a possessive pronoun such as tuus or vester. See Bibliorum Sacrorum Glossa Ordinaria Primum Quidem a Strabo Fulgensi Collecta: Nunc Vero Novis Patrum, cum Graecorum Tum Latinorum Explicationibus Locupletata: cum Postilla Nicolai Lyrani nec non Additionibus Pauli Burgensis, ac Mathiae Thoryngi Replicis, ed. Franciscus Fevardentius (Venice, Italy: Ioannem Dadraeum & Iacobum de Cuilly, 1603), 671- 673. 337 Robert Mannyng of Brunne, Handlyng Synne Lines 800-802, ed. Idelle Sullens (Binghamton, NY: Medieval & Renaissance Texts & Studies, 1983), 23.

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Christiani stated, “Thyne holy day kepe thou wele soo.”338 Even radical groups such as

the Lollards followed the same grammatical convention. John Wycliffe’s (ca. 1330-

1384) version of the Lay-Folks Catechism included a possessive pronoun in its discussion

of the Third Commandment, saying, “Kepe þy holyday in clene lyf. with alle þy meyne.

and þy wyf…Be-thynk the to kepe þy holyday.”339 His translation of Exodus 20:9 stated,

“Haue a mynde to halwe thin holy day.”340 Cursor Mundi (The Cursor of the World), an

extremely long Northumbrian poem written around 1300, related that the Third

Commandment said, “Hald þou wel þin halidai.”341 The importance of using second

person possessive pronouns in translations of the Third Commandment is great. It

demonstrates that Middle English writers were not interpreting the commandment in a

way that would suggest the Sabbath was conceived of as being solely possessed by God.

Rather, these sources portray God as acknowledging that the Sabbath and other holy days

were the possession of all Christians.

The Middle English grammatical convention of using second-person pronouns in

relation to holy days is the clearest evidence that individuals had a right to holy days.

Middle English writers, writing in a language more Germanic than Modern English, did

not hesitate to use definite articles like þe (the). They could have used þe instead of a

possessive pronoun when discussing holy days. But they did not, an indication that

writers recognized there was some special relationship between an individual and holy

338 Speculum Christiani, ed. Holmstedt, 20. 339 Lay Folks' Catechism, L.604-607, ed. Simmons and Nolloth, 39. 340 Exodus 20:9 in The Holy Bible, Containing The Old and New Testaments, with the Apocryphal Books, in the Earliest English Versions Made from the Latin Vulgate by John Wycliffe and His Followers, vol. I, ed. Josiah Forshall and Frederic Madden (Oxford, UK: Oxford University Press, 1850), 238. 341 Cursor Mundi: (The Cursor O the World), Part II, Line 6473, ed. Richard Morris, Early English Text Society, vol. 59 (London: by N. Trϋbner & Co., 1875), 374-375. There are four manuscripts of this poem published, and all four versions use a second person possessive pronoun in this line.

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days which a possessive pronoun conveyed better than a definite article. Some of these

writers may have used the possessive pronoun unconsciously, but surely there were many

who knew what they were doing and why. The possessive pronoun was, and still is, used

to denote possession by some entity. Thus, the use of a possessive pronoun in

conjunction with holy days conveys the sense that holy days belonged to an individual.

Notably, none of the primary sources previously cited in this section is used in a context

which would suggest that the possessive pronoun was referring to God, the Holy Spirit,

Christ or the pope. This indicates that the pronoun refers to individuals.

The famous Festial by John Mirk (fl. 1382-1414), which contains a sermon for

each feast of the year, also repeatedly presents holy days as possessed by individuals and

utilizes different grammatical language than that found in the phrase hold wel þyn

holyday. For example, Mirk began the sermon for St. Andrew by saying “Gode men, ȝe

schul haue sech a day Seynt Andrewes Day.”342 The first remark in the sermon for the

feast of St. Nicholas was “Seche a day ȝe schal haue Seynt Nicholas day.”343 In fact, this

was how Mirk began several sermons for other feasts (minus the “Seynt Nicholas” part),

including the Conception of Mary, St. Thomas the Apostle, and Conversion of St.

Paul.344 Mirk was not alone in beginning his sermons with the phrase. Another sermon

collection for feasts from the fifteenth century, called the Speculum Sacerdotale (The

Priestly Mirror), repeatedly used the same phrase at the start of sermons about saints’

342 John Mirk, John Mirk’s Festial: Edited from British Library MS Cotton Claudius A.II, Volume I, Sermon 2.2 ed. Susan Powell, Early English Text Society, vol. 334 (London: Oxford University Press, 2009), 17. See also John Mirk, John Mirk’s Festial: Edited from British Library MS Cotton Claudius A.II, Volume II, ed. Susan Powell, Early English Text Society, vol. 335 (London: Oxford University Press, 2011). 343 John Mirk, Festial I, Sermon 3.2, ed. Powell, 12. 344 John Mirk, Festial I, Sermons 4.2, 5.2, 13.2, ed. Powell, 17, 20, 23.

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feasts.345 The phrase ȝe schul haue is key in communicating that the holy day is

possessed or “had” by each individual. It portrays holy days as things that individuals

possess, akin to the term hold wel þyn holyday. The usage of two different Middle

English grammatical terms portraying holy days as a possession of individuals is strong

evidence of the obvious conclusion that holy days were considered to be something

individuals possessed. And, if holy days were possessed by individuals, they would have

bequeathed a set of rights to the holder because all things which can be possessed

naturally provide certain rights.346 These rights are nothing else but the right to observe

holy days.

The characterization of holy days as something individuals possessed is key

evidence for the existence of the right to holy days. Natural rights are, by definition,

inherent possessions of individuals. The possessory feature of holy days which is

exhibited in these texts means that individuals had control over their holy days. In lieu of

the fact that an individual would have had to do nothing to take possession of “their” holy

days (other than be a Christian and wait for a holy day to arrive), this possessory feature

of holy days must be inherent in each individual. Otherwise, there would be no way to

possess holy days since there would be no way to acquire them.347 Thus, medieval

345 Speculum Sacerdotale, ed. Edward H. Weatherly, Early English Text Society, vol. 200 (London: Oxford University Press, 1936), 5, 143, 192. 346 Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I: Volume II, Second Edition (Cambridge, UK: Cambridge University Press, 1923), 75. 347 This view of the right to holy days as inhering in individuals is not without a place for God. In the Middle Ages, God was seen as the giver of everything, including natural rights and feasts. Theoretically, God still was the owner of holy days along with the rights they bestowed and could take them away (dies dominici were, after all, “the days of the Lord”), but it seems this hypothetical situation was not really a sticking-point to medieval writers. As Brian Tierney noted, “In principle…the ideas of divine ownership and of self-ownership are not inherently contradictory. For centuries before Locke it had been taken for granted that different parties could have property rights in the same thing.” See Tierney, “Dominion of Self,” 177.

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English scholastics acknowledged the existence of a natural right to holy days by using

the second person possessive pronoun with holy days.

Conclusion

The process of feasts becoming a natural right began when twelfth and thirteenth

century scholastics grounded the Sabbath in natural and divine law. Much of the

background for holy days transitioning into a natural right was already established long

before the process began. There was already some conflation with the Sabbath and feasts

during the Anglo-Saxon era. Passages of Scripture and ancient texts pertaining to feasts

could be interpreted in a manner that would make feasts a natural right. However, there

were very few scholars during that period who concerned themselves with natural law.

Furthermore, the conception of natural rights had not yet emerged due to the lack of a

well-developed legal science. The lack of these two features hindered the emergence of feasts as a natural right until the thirteenth century.

Once scholastics in the thirteenth century, influenced by legal science and ideas

about natural law, invented the concept of natural rights, holy days were treated as natural

rights. This was not too surprising because holy day prohibitions, particularly those

concerning servile work, were predisposed to interpretation as natural rights. With the

new interest in natural law and subsequent creation of natural rights, holy days were

legally grounded in natural law due to their conflation with the Sabbath. Many of the

precepts ingrained in natural law were interpreted as natural rights, including holy days.

The main difference between other natural rights and the right to observe holy

days was the length of feriae discourses. Holy days did not receive the same amount of

123 Texas Tech University, Justin Scott Kirkland, May 2013 attention that other rights did. This was primarily due to two reasons. First, holy days had never received much attention from writers. Not until the start of the thirteenth century and the movement by Eustace of Flaye was there much of an interest in holy days, and this continued to be the case. However, the thirteenth century sabbatarian movement did cause more scholastics to discuss holy days, which was important. The second reason was due to aspects of holy days which made them conducive to being considered natural rights. With the connection between holy days and natural law so apparent, medieval scholastics saw little need to demonstrate it in their summae. They had more important issues concerning the balance of power to address, such as the right to a trial.

The next chapter will argue that holy days emerged as a natural right in the thirteenth and fourteenth centuries. It will explore the status of feasts from the thirteenth century to the Reformation in order to demonstrate how feasts were both considered to be a natural right and treated as such. Whereas this chapter has explored the legal basis of feasts in order to reveal how they were considered to be grounded in natural law, the succeeding chapter will explore the implications and manifestations of holy days being based in natural law.

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Chapter V Holy Days as Natural Rights

Because feasts were considered to be grounded in natural and divine law, were they considered a natural right? Did an individual have the right to partake in feasts just because he or she was human? To prove so, it would be expected that evidence would indicate an individual could be excused from everyday obligations on feast days, those responsible for infringing upon the right of individuals to observe feasts could be penalized, and consistent affirmations in ecclesiastical and royal governmental policies that all could observe feasts.

Suspension of servile work is the central issue in determining whether feasts were a right. Medieval writers, in tracts about feasts, discussed servile work more than any other topic. Scholastics recognized that it directly related to the right to feasts. If people could not abstain from servile work, they could not celebrate feasts properly. By looking at feast legislation post-1200, violations of the laws prohibiting servile work, and exceptions to the laws, it becomes evident that feasts were a right of all Christians in

Western Christendom. The next question to examine is the economic policies of both

Church and state in England, especially after the Black Death which reached England in

1348-1350. The turbulent economic conditions of the era offer the best test of whether the right to feasts was an entrenched principle or just a mere academic theory. In other words, did the right continue after the Black Death despite extreme labor shortages? If it appears that feasts were considered a right, then it is necessary to determine whether this right was bestowed by nature itself or by custom. If it was custom, then it would not

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have the permanency of a natural right, and some features of feasts could be arbitrarily changed.

Servile Work

Both canon law and English royal law prohibited labor, specifically servile work,

on holy days so that all Christians, including peasants, could pursue sacred rather than

everyday activities. While laws regarding work on feasts had been produced by multiple

Anglo-Saxon kings, they were more closely related to customs than to the actual laws of

a legal system. The folklaw of the Anglo-Saxons lacked the administrative machinery to

ensure enforcement in the localities and an intellectual rationale to explain these laws and

their implications.348 The feast laws from the thirteenth century onwards could be

imposed through a formal legal system of courts, thereby giving them unique

characteristics and power not seen before. The power behind these new laws limited the

authority of masters over workers.

While feast laws prohibited most work on holy days, they tended to focus

specifically on servile labor, a concept used by canonists to cover the work peasants did,

a wide variety of labors from agricultural to mechanical.349 Servile work was specifically

highlighted by canonists because it implied that a worker was serving his better, a master

or lord. The problem with this on a holy day was that holy days were supposed to be

348 For the difference between folklaw and the later medieval legal systems, see Harold Berman, “The Origins of Western Legal Science,” Harvard Law Review 90, no. 5 (March 1977): 894-943; Harold Berman, “Background of the Western Legal Tradition,” 553-597. 349 Rodgers, Discussion of Holidays, 33. Notably, even the modern church does not have a clear definition of what “servile work” is, apart from its general sense. Most medieval theologians may have agreed that servile work was generally the type of work that peasants did, but they were in disagreement when it came to classifying which specific activities were servile works. See Quigley, “Changing Concept,” 145-155.

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given over to God, to be dutifully observed by serving the divine commands of the Lord.

It would violate natural and divine law if servants served a mortal lord on a day dedicated

to serving the Lord (in both cases lordship was normally expressed by the Latin term

Dominus). It would be blasphemy to serve man rather than God.350 Another problem

with servile work was its connection with the sinfulness of man. Adam and Eve did not

have to do any work in the Garden of Eden because God provided for all their needs. It

was only after the Fall that man was forced to labor to sustain himself. 351 Thus, servile

work’s association with sin could taint the holiness of feasts. One of the purposes of

feasts was to try to temporarily and imperfectly restore the original and proper

relationship of man to God in order to give the faithful a taste of life in heaven.

Inasmuch as servile work was a consequence of original sin, and would not occur in heaven, it detracted from the spiritual experience of the holy day.

The solution to these hazards was to specifically prohibit servile work on holy

days. The thirteenth and fourteenth century scholastics were certainly not the first to

identify the theological problem presented by servile work on a holy day, but they were

some of the first to utilize legal science to justify canonical prohibitions, prompting the

creation of new feast legislation.352 The contribution of the thirteenth and fourteenth

350 Webster, Rest Days, 85-87. Notably, when the Early Church fathers encouraged the faithful to abstain from opus servile on holy days, they were actually referring to sinful acts and not physical labors. In their view people who sinned on holy days were serving sin as if it was their master. Opus Servile was not associated with physical labors till the sixth century, but when it was, it essentially transformed Sunday into a Christian Sabbath. See L. L. McReavy, “Servile Work: The Evolution of the Present Sunday Law,” The Clergy Review 9 (1935): 269-284. 351 Genesis 3:18-19, 23: “thou shalt eat the herb of the field; in the sweat of thy face shalt thou eat bread, till thou return to the ground…Therefore the Lord God sent him forth from the garden of Eden, to till the ground from whence he was taken.” 352 Richard O’Sullivan, “Natural Law and Common Law,” Transactions of the Grotius Society 31, Problems of Public and Private International Law, Transactions for the Year 1945 (1945), 117-119; Bauckham, “Sabbath and Sunday,” 303-304.

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century canonists in ensuring that the issue of servile work was addressed in legislation

was of even greater importance to canon law and other emerging legal systems than the

feast laws from the Early Middle Ages. Feasts would have remained a neglected issue

had canonists not deemed holy days and servile work important enough to be included in

canon law. In fact, the role of servile work in feast laws during the thirteenth and

fourteenth centuries can not be overemphasized. Had abstention from servile work not

been a part of feast laws, then feasts probably would not have become a right. These

prohibitions created a legal situation in which the occurrence of a feast allowed everyone

in society to get out of their normal duties and obligations. If the right to feasts was to

exist, then masters could not be allowed to impose servile work.

English synods in the late thirteenth and fourteenth centuries followed canonists

in prohibiting servile work on feasts. This might be expected. The rise of canon law

increased the number of canon law scholars produced by the universities of Bologna and

Paris, as well as by the English canon law centers of Oxford, Exeter, Lincoln, and

Northampton.353 The production of more scholars with a canon law education,

compounded by a need for canonists in an increasingly legalistic society, caused Church

administrative offices to become rife with canonists.354 As they filled vacant

ecclesiastical offices, a trend which was looked upon disapprovingly by pure theologians

who dismissed the study of canon law as too practical, they increasingly shaped papal

policies. In fact, most popes after the mid-thirteenth century were canon lawyers. The

English Church followed this trend. English canonists increasingly filled ecclesiastical

353 Kuttner and Rathbone, “Anglo-Norman Canonists of the Twelfth Century,” 321-323. 354James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago: Chicago University Press, 2008), 344-348.

128 Texas Tech University, Justin Scott Kirkland, May 2013 offices, accumulated political power, and influenced synodal legislation and policies.355

Late twelfth and early thirteenth century synods initially lagged behind canon lawyers in expressly prohibiting servile work during feasts, but English synods in the mid-thirteenth century began explicitly prohibiting servile work on feasts, and soon the admonition became quite regular. The synodal canons emphasized that the primary reason behind the prohibition was to allow all members of society, from the greatest to the least, the opportunity to attend Church and receive spiritual fulfillment, thereby following the logic espoused by canonists across Western Europe.356 The issue of servile work was so important that it was heresy to believe that it was permissible to work on “Sundays and other festivals introduced by the Church.”357

Violations of Servile Work Restrictions

During the thirteenth and fourteenth centuries both canonists and the high clergy frowned upon servile work on feasts. However, they lacked an effective legal system capable of reaching into the localities of a diocese to ensure that their canons and exhortations were actually followed. Technically, peasants, as well as everyone else, still had a right to feasts, but unless there was a reliable system in place to ensure that lords

355 James A. Brundage, “The Managerial Revolution in the English Church,” in Magna Carta and the England of King John, ed. Janet S. Loengard (New York: Boydell Press, 2010), 83-98. 356 As a canon from the synod of Exeter (1287) stated, “we, according to the spirit, keep the Lord’s day free from manual works, that the Christian people assembling in the churches, may both hear the divine commands and learn the rule of life; and since their various secular employments do not allow the parishoners to attend the divine offices on other days, by so much more is every one bound more carefully to be present on these days, that when they have labored for the material bread which perisheth on six days, on the seventh they may be refreshed with the spiritual food which perisheth not—the word of preaching.” Quoted in Neale, Feasts and Fasts, 119-120. 357 Heresy Trials in the Diocese of Norwich, 1428-31, ed. Norman P. Tanner, Camden Fourth Series, vol. 20 (London: Offices of the Royal Historical Society, 1977), 61: “Johannes Godesell se tenuisse et affirmasse quod est licitum…exercere et facere quecumque opera servilia…diebus Dominicis et aliis festivis inductis per Ecclesiam.” See also pages 15-16, 33, 49-50, 53, 57, 64, 67, 71, 74, 76-77, 86, 95, 108, 111, 116, 121, 127, 131, 135, 153, 165, 170, 177, 179, 185, 194, 199.

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who made their peasants work on feasts would face punitive measures, peasants might

have a hard time obeying the commands of the Church. In the thirteenth century villein

violations of servile work prohibitions would have been overwhelmingly committed at

the behest of the lord, though that may have changed in the mid-fourteenth when more

peasants were in a better position to hire-out their services for compensation.358 A lack

of extant records prior to 1350 makes it impossible to compare quantitatively.

Nevertheless, as Dives and Pauper noted, “For without their [lord’s] will their servant

nor beast shall commonly do no servile work.”359 In the thirteenth and first half of the

fourteenth centuries the traditional manorial economy still dominated England, despite the great growth of towns and the gradual trend of commutation whereby lords leased land for money rather than collecting customary dues from villeins.360 Thus, the vast

majority of people still lived under the control of lords to whom they owed fealty and

customary dues. Peasants who were not wage laborers almost certainly did not receive

much benefit from working on feasts and, considering they preferred almost any other

activity over working, probably would not give up a day of leisure and entertainment

unless they had been coerced. Yet fortuitously for them, legal systems which had been

developing over the past few centuries increasingly provided some protection against

coercion to work on feasts. The thirteenth century witnessed the establishment of a

judicial system by bishops for the implementation of canon law, which was of particular

358 Thurston, “The Mediæval Sunday,” 44. For examples of French authorities taking advantage of their position over peasants and forcing them to work on holy days, see Ch.-V. Langlois, “Doléances recueilies par les enquêteurs de Saint Louis et des derniers capétiens directs,” Revue Historique 92, no. 1 (1906): 26- 27. 359 Dives and Pauper 3.17.10-11, ed. Barnum, 293: For withoutyn her wil her seruant ne her beste schal don comely no seruyle wark. 360 J. L. Bolton, Medieval English Economy, 1150-1500 (London: J. M. Dent & Sons, 1980), 185-187.

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importance because the ecclesiastical courts appear to have had sole jurisdiction over feast infractions in England.361

Evidence suggests that a significant number of people violated the numerous prohibitions against laboring on feast days. While few legal records survive from the twelfth and thirteenth centuries that would help illuminate these violations, information is available through other means. Ecclesiastical court records prior to the sixteenth century prove that at least some of those guilty of laboring during holy times were prosecuted— the most common holy day case involved working during mass—and some even reveal a concentrated attempt by church authorities to prosecute people who worked on holy days.362 Based upon analysis of several ecclesiastical court records from various English dioceses, it appears that in the fifteenth and early sixteenth centuries cases involving violations of holy day regulations were brought before the courts more often than any other type of case except sexual offences.363 Courts even tried to crack down on butchers

361 See Chapter III; Helmholz, Canon Law and Ecclesiastical Jurisdiction, 135. 362 Dave Postles, “Some Ambiguities of Late Medieval Religion in England,” E-seminars in history, Institute of Historical Research, (1998), http:www.history.ac.uk/resources/e-seminars/postles-paper (accessed September 13, 2012); “Visitation Returns of the Diocese of Hereford in 1397. I,” ed. A. T. Bannister, The English Historical Review 44, no. 174 (April 1929): 281; “Visitation Returns of the Diocese of Hereford in 1397 Continued,” ed. A. T. Bannister, The English Historical Review 44, no. 175 (April 1929): 445-446, 448-449; “Visitation Returns of the Diocese of Hereford in 1397. Part III,” ed. A. T. Bannister, The English Historical Review 45, no. 177 (January 1930): 92, 100; “Visitation Returns of the Diocese of Hereford in 1397 (Continued),” ed. A. T. Bannister, The English Historical Review 45, no. 179 (July 1930): 446, 448, 454, 459-460, 462. 363 Brian L. Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (London: Oxford University Press, 1952), 79-92; Margaret Harvey, Lay Religious Life in Late Medieval Durham (Woodbridge, UK: The Boydell Press, 2006), 71. For some statistics regarding the types of offences most commonly seen in a few select dioceses (Ely, Chichester, and Chester) and deaneries (Doncaster, Frodsham, Sudbury, and Crewkerne and Dunster) of post-reformation England, see the appendix tables in Parker, 220-221, and Ronald A. Marchant, The Church Under the Law: Justice, Administration and Discipline in the Diocese of York, 1560-1640 (Cambridge, UK: Cambridge University Press, 1969), 159, 217-220. See also Marjorie Keniston McIntosh, Controlling Misbehavior in England, 1370-1600 (New York: Cambridge University Press, 1998), 77, 104-105.

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Texas Tech University, Justin Scott Kirkland, May 2013 and barbers for irreverently plying their trades.364 According to historian Brian

Woodcock, in 1474 the consistory court of Canterbury heard a total of 158 cases. Out of those 158 cases, 11 were for individuals not attending Church at the prescribed times and another 11 were for trading on Sunday.365 The records of St. Oswald’s Church in

Durham indicate that in 1436-1437 there were 39 sexual cases and only 8 cases of working on feasts.366 In the London ecclesiastical courts, nonobservance cases decreased after the fifteenth century, with 18 cases of feast nonobservance in 1485 and 1493 each, 8 cases in 1502, and a total of 4 cases for 1512-1514.367 Clearly, across English dioceses there were many who refused to heed the ban on servile work during feasts and many ecclesiastical courts that were willing to prosecute them.368

364 Woodcock, Medieval Ecclesiastical Courts, 79; Memorials of London and London Life, in the XIIIth, XIVth, and XVth Centuries. Being A Series of Extracts, Local, Social, and Political, from the Early Archives of the City of London. A.D. 1276-1419, ed. Henry Thomas Riley (London: Longmans, Green, and Co., 1868), 593-594. 365 Woodcock, Medieval Ecclesiastical Courts, 79. 366 Margaret Harvey, Lay Religious Life, 71. 367 Richard M. Wunderli, London Church Courts and Society on the Eve of Reformation (Cambridge, MA: The Mediaeval Academy of America, 1981), 122-123. 368 For more published court cases of holy day infractions, see Depositions and Other Ecclesiastical Proceedings from the Courts of Durham, Extending from 1311 to the Reign of Elizabeth, ed. James Raine, The Surtees Society, vol. 21 (London: J. B. Nichols and Son, 1845), 27-28, 29, 30, 32, 33, 35; Registrum Hamonis Hethe: Diocesis Roffensis, A.D. 1319-1352, vol. I, ed. Charles Johnson, The Canterbury and York Society, vol. 48 (Oxford, UK: Oxford University Press, 1948), 464; “Some Early Visitation Rolls Preserved at Canterbury: II,” ed. C. Eveleigh Woodruff, Archӕologica Cantiana: Being Transactions of the Archӕological Society of Kent 33 (1918): 84; Lower Ecclesiastical Jurisdiction, ed. Poos, 64, 147, 173, 176, 195, 270, 274-276, 282, 287, 314-316, 322, 327, 329, 331-333, 335, 348, 380, 382, 385, 387-388, 403, 405, 418, 454, 459, 467-468, 471, 475, 485, 488, 501, 509, 531, 536, 543, 557; “Fifteenth-Century Visitation Records of the Deanery of Wisbech,” ed. W. M. Palmer, Proceedings of the Cambridge Antiquarian Society 39, (1940): 74-75; Visitations and Memorials of Southwell Minster, ed. Arthur Francis Leach, The Camden Society, New Series, vol. 48 (Westminster, UK: Nichols and Sons, 1891), 22, 35, 49, 51, 53; Acts of the Chapter of the Collegiate Church of SS. Peter and Wilfrid, Ripon, A.D. 1452 to A.D. 1506, ed. J. T. Fowler, The Surtees Society, vol. 64 (Durham, UK: Andrews & Co., 1875), 21, 134, 149; Precedents and Proceedings in Criminal Causes, Extending from the Year 1475 to 1640; Extracted from Act-Books of Ecclesiastical Courts in the Diocese of London, Illustrative of the Discipline of the Church of England, ed. William Hale (London: Francis & John Rivington, 1847), 5-6, 45-46, 53, 83, 87, 164, 165; The Courts of the Archdeaconry of Buckingham, 1483-1523, ed. E. M. Elvey, Buckinghamshire Record Society, no. 19 (Aylesbury, UK: Buckinghamshire Record Society, 1975), 5, 7, 76, 109, 128, 161, 163, 175, 179, 221, 267, 269, 288-289, 309; “Fragment of Folio M.S. of Archdeaconry Courts of Buckinghamshire, 1491-1495. Part I,” ed. F. W. Ragg, Records of Buckinghamshire 11, no. 1 (1919): 35, 37-38; “Fragment of Folio MS. of Archdeaconry Courts of Buckinghamshire, 1491-1495. Article II,” ed. F.

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Though ecclesiastical courts seem to have been keen on prosecuting violations of work restrictions on feasts, ex officio case records from the archdeaconry courts—the

English ecclesiastical courts that retained primary jurisdiction over these types of infractions—do not generally contain much additional information. The court transcripts usually have nothing more than the names of the violators with their transgression, and most feast cases seem to indicate that no legal argument was made in response to the charges, thereby greatly limiting the information they offer.369 For example, the feast cases in the Hereford Returns from 1397 generally follow the template: “John Phylippes absents himself from the above [church], and he commonly is working Sundays and festivals.”370 The suggestion has been made that because it is very rare to find evidence in which the punishments are recorded, most defendants were either absolved or admonished to observe the holy days properly.371 Though admonishment by an ecclesiastical court may not seem serious, being accused of laboring on a holy day was

W. Ragg, Records of Buckinghamshire 11, no. 2 (1920): 70, 74; “Bishop Goldwell’s Visitation of Norwich in 1492,” in The Church in Late Medieval Norwich, 1370-1532, ed. Norman P. Tanner, Studies and Texts, 66 (Toronto, Canada: Pontifical Institute of Medieval Studies, 1984), 9-10, 180, 183, 185-187; Act Book of the Ecclesiastical Court of Whalley, 1510-1538, ed. Alice M. Cooke, The Chetham Society, vol. 44 (Manchester, UK: The Chetham Society, 1901), 7, 12, 16,23, 24, 47, 54-55, 58, 65, 90-91, 97-98, 99, 107, 110, 167, 172, 178; Kentish Visitations of Archbishop William Warham and His Deputies, 1511-1512, ed. K. L. Wood-Legh, Kent Records, vol. 24 (Maidstone, UK: Kent Archaeological Society, 1984), 73, 75, 118, 147-148; Visitations in the Diocese of Lincoln: 1517-1531, Volume I, ed. A. Hamilton Thompson, The Lincoln Record Society, vol. 33 (Hereford, UK: The Hereford Times Limited, 1940), 4, 60, 62, 75, 77; Visitations in the Diocese of Lincoln: 1517-1531, Volume II, ed. A. Hamilton Thompson, The Lincoln Record Society, vol. 35 (Hereford, UK: The Hereford Times Limited, 1944), 12, 36; John Foxe, The Acts and Muniments of John Foxe: A New and Complete Edition: With a Preliminary Dissertation by the Rev. George Townsend, vol. 4, ed. Stephen Reed Cattley (London: R. B. Seeley and W. Burnside, 1837), 232, 405-406; “Church Discipline in the Sixteenth Century, As Shown by Extracts from the Bishop of Chester’s MS Visitation Books for the Deanery of Manchester,” ed. William Fergusson Irvine, Transactions of the Lancashire and Cheshire Antiquarian Society 13 (1895), 62. For a collection of Scottish cases see Ecclesiastical Records: Selections from the Minutes of The Synod of Fife. 1611-1687, ed. Charles Baxter, The Abbotsford Club (Edinburgh, Scotland: T. Constable, 1837), 17-18, 31, 42, 58, 108, 111-112. 369 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 385. 370 Bannister, “Visitation Returns of the Diocese of Hereford in 1397 (Continued),” (July 1930): 446: Pennbrugge…Item quod Johannes Phylippes absentat se ut supra, et est communis operarius diebus dominicis et festis. For more examples see Ibid, 445-446 and 448. 371 Wunderli, London Church Courts, 122-123; Martin Ingram, Church Courts, Sex and Marriage in England, 1570-1640 (New York: Cambridge University Press, 1987), 99.

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not taken lightly, as demonstrated by a 1276 defamation case against Jacob le Mercer who falsely accused several men from Southampton of cutting hay on a Sunday.372 The most that can be definitively said is that the sentences doled out by the courts were not as harsh as the punishments prescribed by some Anglo-Saxon laws.

Other, possibly more insightful, sources are hagiographical accounts. They provide not only evidence of people violating prohibitions regarding holy days but also information that would not necessarily be included in court records, such as how other people reacted to individuals working on feasts. Eadmer (1064?-1128?), writing his

Miracles of St. Dunstan in the eleventh and twelfth centuries, mentioned two stories of individuals violating the prohibition against working on a feast. He explains that he included both stories “because they are similar to some extent and occurred on the same day in order to demonstrate the solemnity of such a great day.” According to the first story, in the town of Sapperton on the feast of St. Dunstan (May 19) in an undisclosed year, one man proceeded to till his field. When other people of the community chided him for working on the feast, the man dismissed their attempts to convince him, saying,

“What? Ought I to interrupt my ploughing on account of Dunstan of Sapperton? You are foolish to think that you can persuade me to do so.” As he continued to mutter under his breath, one of his eyes fell from his eye socket onto the ground, just as an unyoked cow walking next to the plough fell into a fit of madness and ran at the yoked oxen but was fortuitously killed by the crowd which had witnessed the event. At mass on the Sunday before the feast, the parish priest had instructed the parishioners to observe the holy day

372 The Rolls of Highworth Hundred, 1275-1287: Part I, ed. Brenda Farr, Wiltshire Archaeological and Natural History Society, vol. 21 (Trowbridge Wilts, UK: Wiltshire Archaeological and Natural History Society, 1966), 73.

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Texas Tech University, Justin Scott Kirkland, May 2013 and “abstain from all manual labor,” so the man clearly knew that his actions were wrong. The second story recounts an event at the town of Burgh the following year, also on St. Dunstan’s feast, where seven ploughs were tilling a field. The man in charge of leading the oxen took a break and sat on his plough. While resting, he was abruptly thrown several feet into the air by an unseen force. After he crashed back to earth, the oxen snapped their yokes and frantically ran into the woods, some never to be found.373

Based upon the fact that in the first story the community tried to convince the man to cease from laboring, it seems that the feast prohibitions against labor were well-known and observed amongst the laity. Of course, in the second story seven people engaged in labor on the feast, which would initially appear to indicate that such labor was not too uncommon. The explanation for this discrepancy in the stories may lie in the fact that the church in Sapperton was consecrated in honor of St. Dunstan. Thus, the feast of St.

Dunstan would be a major holy day for the parish which most parishioners would dutifully observe. In Burgh the feast was likely not as major and thereby not so solemnly observed, though Eadmer clearly believed that it should have been. A central feature found in both of these stories is the physical punishment that divine forces meted out to the transgressors. Eadmer suggests that the injuries sustained by those illicitly laboring was divine retribution. The moral of these stories is that laboring on a day as holy as St.

373 Eadmer of Canterbury, “Miracula S. Dunstani” Chapter 27 in Eadmer of Canterbury: Lives and Miracles of Saints Oda, Dunstan, and Oswald, ed. and trans. Andrew J. Turner and Bernard J. Muir (Oxford, UK: Clarendon Press, 2006), 206-209. Though these two stories are undated, they must have occurred between 988 (the year of Dunstan’s death) and 1128 (the latest possible year of Eadmer’s death). Since St. Dunstan was not consecrated till 1029, which is also around the time Cnut issued his set of laws that mandated St. Dunstan’s feast be observed (though on the fourteenth of the kalends of June, instead of its traditional date of May 19), it seems likely that these stories are from either the eleventh or early twelfth centuries.

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Dunstan’s feast is not only impious and contrary to divine and ecclesiastical injunctions

but also hazardous to one’s physical health.

Further examples of people working on holy days exist in the annals of Roger of

Hoveden. After the tale of Eustace of Flaye and the “Epistle on Sunday,” Roger of

Hoveden also included several brief undated morality tales of people working past

Saturday evening in violation of holy day prohibitions. A carpenter and a weaver performed their crafts after the ninth hour of Saturday, the point at which labor was prohibited, and both were stricken with paralysis, and additionally the weaver lost her voice. Two more stories concern bread that was made after the ninth hour of Saturday bleeding, and a woman trying to bake dough after the permitted time but failing miserably. Meanwhile, another woman who refrained from baking dough Saturday night found it had been divinely turned into bread.374 Just like Eadmer’s two tales, the stories

told by Roger of Hoveden illustrate how laboring on holy days risks divine retribution,

which may be quite severe.375

While these stories indicate that work on holy days was perceived as bad (and

dangerous), they do not provide insight into how temporal authorities treated violators in

374 Roger of Hoveden, Annals, trans. Riley, 526-530. 375 Interestingly, two of the tales told by Roger of Hoveden resulted in physical injury, while two others resulted in bread bleeding. This could be an indication that these two sets of miracle stories are from different eras. Benedicta Ward has argued that before 1100 miracles often involved vengeance, like the first set of stories from Roger of Hoveden and the two stories related by Eadmer. Miracle stories after 1100 increasingly were about miracles of healing. Thus, the stories about bread bleeding could be an example of Later Middle Ages miracle stories of bleeding statues whose holiness and life (holy objects were considered to be eternally alive) were physically demonstrated through bleeding. See Benedicta Ward, Miracles and the Medieval Mind: Theory, Record and Event, 1000-1215 (Philadelphia, PA: University of Pennsylvania Press, 1987); Caroline Walker Bynum, Christian Materiality: An Essay on Religion in Late Medieval Europe (New York: Zone Books, 2011), 257. For more stories of divine punishment, see E. Cobham Brewer, A Dictionary of Miracles: Imitative, Realistic, and Dogmatic (Detroit, MI: Gale Research Company, 1966), 234, 280-281, 324-325.

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Texas Tech University, Justin Scott Kirkland, May 2013 the real world. For that, ecclesiastical court cases are the best sources available. A right to holy days requires courts to uphold and protect the right of individuals to observe them. The key issue at stake is whether masters who made their servants work on holy days could face retribution. Even without any evidence that masters were held accountable for making their servants work on holy days, the right could still have existed. However, if there is evidence that ecclesiastical courts prosecuted masters who made their servants work on holy days, then it would provide strong evidence that all individuals had a right to holy days.

The willingness of ecclesiastical authorities—namely archdeacons because in

England’s large dioceses they were charged with enforcing ecclesiastical regulations in their districts—to undertake prosecutions of lords who forced their villeins to work on holy days is hinted at in a Berkshire Letter-Book from around the 1290s or early 1300s.

The record is a letter to the archdeacon of Berkshire about an event witnessed by its author, Roger de Marlowe, the priest of Harwell (r. 1292-1310). Marlowe says that,

It is my duty to tell your discretion that last Sunday…the Bishop of Winchester’s harvester in Harwell, summoned or caused to be summoned all the tenants of the said Bishop in the said vill, ordering them to come to the park of the said Bishop immediately after nine o’clock to cart hay…this seemed to me unbearable, so I immediately sent Sir Thomas my colleague, chaplain of the parish, to prevent such work upon that day, but they would not listen to him or desist from their work. So I warned them three or four times to stop and afterwards threatened them with excommunication if they went on, but I labored in vain, for the said H…answered me mockingly that he was going to cart the hay whether I liked it or not, nor would he cease work, or permit others to cease, for my threats or warnings…I therefore, being somewhat disturbed…had them summoned separately to appear before you in your chapter…to hear and receive the sentence which your discretion should declare according to justice. Wherefore, I beg your discretion to give them a suitable sentence, punishing them so that others may not be tempted by the lightness of their sentence to follow their example, and let the

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harvester receive punishment for habitually working on holy days and encouraging others to do the same. He is a powerful man.376

This letter demonstrates the multiple ways in which feasts were viewed as a right.

First, it shows a level of local policing. The complainant was neither one of the villeins

forced to labor nor the archdeacon. Even though Marlowe was a priest, and therefore

tasked with commanding his parishioners to abstain from servile work on holy days as

per synodal canons, technically it was not his duty to ensure that violators were punished.

The mere fact that he was willing to expend time and energy trying to persuade the

villeins to stop their work, and then afterwards write to the archdeacon about the matter,

demonstrates that servile work violations were no small affair. Unfortunately, there is no

indication whether the Bishop of Winchester knew that his foreman ordered the villeins

to work on the Sabbath, so it is unknown whether the bishop had sanctioned his actions.

However, it would not be altogether unsurprising if he did know or even mandated it

because some ecclesiastical estates were operated ruthlessly.

The letter also underscores the great amount of power a foreman could have over

the villeins of the estate. They continued working despite Marlowe’s threats of

excommunication and the prospect of eternal damnation. It seems best to understand

their actions in terms of the tremendous power of the foreman rather than a lack of piety.

It is also notable that the parish chaplain, Sir Thomas, at first seems to have appealed

directly to the peasants instead of the foreman. Based upon the mention that the peasants

would not listen to Sir Thomas, it seems as though Marlowe was attempting to convey

the notion that Sir Thomas did not initially threaten them to stop working, but tried a

376 Roger de Marlowe, “A Berkshire Letter-Book,” trans. Rosalind T. Hill, The Berkshire Archaeological Journal 41 (1937): 23.

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Texas Tech University, Justin Scott Kirkland, May 2013 much more amicable method to compel them to stop. He may have informed the peasants that they did not have to heed the orders of the foreman to work on a holy day.

Regardless of what Sir Thomas initially said to the peasants, the account suggests that they might have had the prerogative to refuse the orders of their master to do servile works on holy days. Even though the foreman made it exceedingly clear that he was not going to stop ordering the peasants to work, Sir Thomas and Marlowe repeatedly tried to convince them to stop working. By directly appealing to the peasants, they acknowledged the free will of the peasants to choose whether to continue working or to stop.

Finally, Marlowe seems to indicate that the foreman should be punished more than the villeins not only because he habitually works on holy days, just as the villeins do, but also because he encourages others to desecrate the days by working, infringing upon their right. Unfortunately, no known extant records pertain to the result of this letter, so there is no way to discover whether these transgressors were punished or whether the foreman was reprimanded more than the villeins. Considering how serious excommunication was, in conjunction with the fact that feast offenders do not appear to have been assigned excessively harsh penalties, it is likely that neither the peasants nor foreman were excommunicated as Marlowe threatened. Regardless of whatever the outcome might have been, Marlowe’s letter demonstrates that those with authority over villeins were liable for punitive damages in an ecclesiastical court for making their subordinates work on holy days.

While servants might be held legally accountable for violating holy day transgressions even if they were following orders, there are also examples which

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demonstrate that sometimes the master alone bore full legal responsibility. Archbishop

Eudes Rigaud of Rouen (r. 1248-1276), a Franciscan who was one of the first disciples of

Alexander of Hales and especially concerned with enforcing canon law, discovered some

peasants ploughing a field on the feast of St. Matthew (September 21) in 1260. He

ordered “the horses of the ploughs led away to Meulan, because they [the owners] had

thus irreverently presumed to labor on the feast of so great a Saint…[the owners] came to

us and, pledging their faith, promised to obey our will in this matter.”377 In 1264 he also

found a cart belonging to a man named Eudes of Duclair being drawn by three horses on

a Sunday and imposed a fine of ten shillings, presumably against Eudes of Duclair.378

These incidents demonstrate that there were some cases in the thirteenth century in which

masters were held solely responsible for their servants working on feasts.

Apart from the fact that ecclesiastical officials sometimes took different stances

on issues, and these incidents occurred in Normandy rather than England, there is an

important difference between these stories which could account for the Norman peasants

not being punished while the English peasants seemingly were. The Norman peasants

seem to have readily stopped working at the command of Eudes, but the peasants

mentioned in Marlowe’s letter did not stop working after being commanded to by the

parish chaplain. By ignoring the command from the clergyman to stop working, the

English peasants went from being coerced servants doing work under an unjust order to

servants who had freely and knowingly chosen to violate the canon law, thereby making

themselves legally accountable in their own right. They could not claim ignorance of

377 Eudes of Rouen, The Register of Eudes of Rouen, trans. Sydney M. Brown, ed. Jeremiah F. O’Sullivan (New York: Columbia University Press, 1964), 425-426. 378 Eudes of Rouen, Register, trans. Brown, 571.

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their right to abstain from work on holy days because they had just been informed of it by

Sir Thomas. Presumably, if they had stopped working when admonished, they would not

have faced the possibility of being brought before the archdeacon’s court.

Multiple scholastic works suggest that peasants who worked under the command

of their masters were absolved from blame. Both Bernardino of Siena and Dives and

Pauper absolve servants who work on holy days at the bidding of their masters from sin

and guilt, and instead place the blame solely on the masters. Bernardino of Siena states,

“However if they [masters] ordered it [servile work] without just cause…all the guilt belongs to the ones ordering, and not to the ones obeying.”379 Dives and Pauper declares

about servants, “If they travail and do their master’s bidding principally for dread and

obedience that they owe to their sovereign and not for covetousness nor for any other evil

cause…then they are excused, for, as the holy writ saith, God loveth more obedience than

sacrilege. But beware the sovereign that compels his servant to travail on the Sunday or

any great feast without great need, for to the sovereigns is hallowing of the holy days

principally bade.”380

The most important facet common to both of these sources is the decisive role

coercion plays. Bernardino depicts the lord as sinning when he orders his servants to

work, not once they begin working. This suggests that the guilt of the lord is primarily

based upon the coercive quality of an order instead of the action of his servants working

379 Bernardino of Siena, “Sermo X,” ed. Parisini, 57, col. II: Si autem sine justa causa id praecipiant…tota culpa est praecipientis, & non obedientis. 380 Dives and Pauper 3.17.3-10, ed. Barnum, 292-293: Ӡif þei trauaylyn & don her maystrys byddynge principaly for dred & for obedience þat þey owyn to her souereyn & nout for couetyse ne for non oþir euyl cause…þan þey arn excusyd, for, / as holy writ seith, God louyth mor obedience þan sacrifice. But war þe souereyn þat compellyth his seruant to trauaylyn in þe Sonday or ony grete feste withoutyn gret nede, for to þe souereynys is halwyng of þe halyday principaly bodyn.

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because all orders are inherently coercive. Likewise, Dives and Pauper utilizes language

that suggests coercion on the part of the master, such as dred and compellyth, further

indicating that the master is guilty because he encroached upon the rights of his servants.

Thus, it seems absolution is granted to servants because they were coerced. Though

servants had the right to observe holy days, their rights could still be impinged upon by

others, particularly their lords. It is this reality, which limited all medieval natural rights,

that absolves the servants from guilt. They may have had a right to holy days, but they

could not be fully blamed for having their rights illegally infringed upon. It was not their

fault they were prevented from exerting their rights.381

Another notable feature of the passage from Dives and Pauper is its usage as a

vehicle to simultaneously “warn and inform” because it states that the Third

Commandment is “principally” bidden to lords, a view shared by many medieval writers

based upon the wording of Exodus 20:10.382 The interpretation of this scriptural passage

by medieval scholars suggests that the commandment was viewed as a warning mainly

directed at the group (the lords) who were most likely to violate the holy day rights of

others (the servants), while also simultaneously informing servants of their rights. This is

remarkable because it is similar to how rights have been presented for centuries in

western society. For instance, the rights enumerated in both the Magna Carta and

381 Geoffrey Chaucer also affixes guilt to masters for making their servants work, saying “you must understand that a man may have to endure four kinds of external grievances…The fourth such grievance is the imposition of outrageous tasks…when a man forces his servants into oppressive labor, or makes them work much past their time, as for example on holy days, a great sin is done.” Geoffrey Chaucer, “The Parson’s Tale,” in The Canterbury Tales, trans. Burton Raffel, (New York: The Modern Library, 2008), 567-568. 382 Dives and Pauper 3.17.9-10, ed. Barnum, 293; Exodus 20:10: “thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates.”

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American Bill of Rights are principally directed at the entity most likely to infringe upon

the rights of individuals, the government, and serve to inform people of the rights that

they have.383 And though the consequences of a lord violating holy day rights is unclear,

it seems safe to assume that the author was mainly referring to divine retribution, though he could have concurrently meant retribution from peasants for their rights being violated or retribution from the ecclesiastical courts.384 What might be the reason(s) for divine

retribution? Certainly there was an offense committed by interfering with the worship of

God, but there was also an offense against God and man by infringing upon the natural rights of the faithful to holy days. After all, God, the just judge of all, had given individuals the right out of love and mercy, and therefore would be terribly upset if the strong deprived the meek of their God-given right.385

Notably, both Bernardino and Dives and Pauper neglect to mention whether

servants must do the bidding of their master on a holy day if it contravenes the ban on

servile work. In fact, they avoid the issue by simply noting that masters should heed the

commandment and not force their servants to do unnecessary servile work. There was

the general consensus in the Middle Ages that servants were supposed to obey their lords.

However, there were also some extenuating circumstances which prohibited servants

from following the commands of their betters, especially when they were contrary to

383 Regarding medieval feasts, this attempt to inform peasants of their rights went an extra step with the canonical duty of the church priest to notify the congregation of the week’s upcoming festivals at Sunday mass. 384 The retribution promised in the “Epistle on Sunday” for violating holy days was from God (see Chapter II), therefore it makes sense that Dives and Pauper would be referring to divine retribution for the same offenses. 385 This belief undoubtedly had an effect on why feast laws were intensified instead of relaxed during the hard times following the outbreak of the bubonic plague. If the plague was God’s terrible vengeance upon man for his damnable offenses, then perhaps to appease God the feast laws were one of the things which needed to be followed better.

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Texas Tech University, Justin Scott Kirkland, May 2013 some type of law, whether divine, natural, or human. Servants could not licitly murder another person simply because their lord ordered them to do so because that would violate divine law, natural law, and human law. In other words, even in a master-servant relationship the servant could be morally and legally obliged to disobey an order that would involve committing serious sins and crimes.386 Did this apply to feasts? Edith

Cooperrider Rodgers, the foremost scholar in the twentieth century on medieval feasts, believed that servants could refuse to obey the unreasonable orders of their masters to work on holy days, and there is some corroborating evidence.387 The Dominican friar

John Bromyard (d. 1352?) reasoned that a servant on “the days of God are bound to the servitude of God…Therefore, reason says, that because they are held in servitude…by two lords for different days…one of those lords does not have that servant…for the day…nor is the servant bound to obey him.”388 One possibility for the silence of both

Bernardino and Dives and Pauper is that they did not want to support the position that peasants had the right to refuse orders during a time of enormous social tension between

386 Tierney, “Religious Rights: An Historical Perspective,” 24-25; Rosemary Horrox, “Service,” in Fifteenth-Century Attitudes: Perceptions of Society in Late Medieval England, ed. Rosemary Horrox (New York: Cambridge University Press, 1994), 76. 387 Rodgers, Discussion of Holidays, 34. An interesting statement relevant to this question was made by Thomas Aquinas in his discussion about the Third Commandment. Aquinas, who also declared that servants could licitly engage in servile work on holy days in order to comply with the commands of their superiors, said “Now, servile work is bodily work; whereas “free work” (i.e., non-servile work) is done by the mind, for instance, the exercise of the intellect and such like. And one can not be servilely bound to do this kind of work.” This vagueness of Aquinas’s meaning by this statement is confounding. Which type of work, servile work or “free work,” was he referring to in the second sentence? If he meant servile work, then this could be a statement affirming the right to holy days. See Thomas Aquinas, “Explanation of the Ten Commandments,” trans. Collins, 82. 388 John Bromyard, Summa Praedicantium, vol. I (Venice, Italy: Apud Dominicum Nicolinum, 1586), 282, col. 3: Ex secundo puncto considerare debereut, quod persones subditorum plus Deo tenentur, quam eis, & ita obligantur pro diebus Dei ad Dei seruitium. Ratio ergo dictat, quod qui tenentur in aliqua seruitute duobus dominis pro diuersis diebus, quod unus illorum dominorum non habet seruum illum a seruitute alterius domini pro die sibi debito retrahere, nec seruus tenetur ei obedire. Bromyard’s comments were likely inspired by Matthew 6:24: “No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye can not serve God and mammon.”

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assertive peasants and lords. It also seems that they could not have taken the position that

servants should blindly follow the holy day orders of their lords because that would allow

all types of “I was just following orders” defenses. Silence on the issue was probably the

easiest path to take.

Even in governmental legislation, which was produced by men who were masters

themselves, there was concern about servants being coerced to do servile tasks on holy

days. A statute created under Henry VI (r. 1422-1461, 1470-1471) ordered fairs and

markets to stop occurring on feasts, citing the withdrawal of servants from mass by their

corrupted masters as one of the reasons for the legislation.389 Similar to Dives and

Pauper and Bernardino, the law does not blame servants for working at the behest of

their masters. However, it departs from solely blaming the master by extending primary

blame to markets and fairs because they were seen as the root cause behind the corruption of masters. The general lack of concern with the welfare of peasants during this period, marked by multiple laws which attempted to keep workers’ wages low, makes it appear far likelier that the sudden concern by the government over whether servants were coerced into working on holy days was an issue involving rights more than anything else.

After all, the barons and bishops in parliament tended to be concerned more about rights, mainly their own, than the actual treatment of servants.

389 27 Hen. VI. c. 5; 2 Statutes of the Realm, 351-352: “Considering the abominable injuries and offences done to Almighty God, and to his Saints…because of fairs and markets upon the high and principal feasts…for great earthly covetise, the people is [more willingly] vexed, and in bodily labour [foiled]…they did nothing remember the horrible defiling of their souls in buying and selling…and [so] specially withdrawing themselves and their servants from divine service: the foresaid Lord King…and by authority of the same parliament, hath ordained, that all manner of fairs and markets in the said principal feasts and Sundays…shall clearly cease from all shewing of any goods or merchandises.”

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On July 14, 1468 William Mannyng of Emneth in the diocese of Wisbech was

charged with carrying peat on the feast of St. Ӕtheldrede (June 23) and punished by

being suspended from attending church.390 Mannyng’s case would have been like most

other feast nonobservance cases, except that two cases after Mannyng’s, John Awsten

was cited for causing his servant, one William Mannyng, to labor, probably on the feast

of St. Ӕtheldrede.391 The court record notes that Awsten appeared before the

ecclesiastical court on November 22nd, but does not include his response to the allegations or whether he was punished. It is possible that these two records refer to two different William Mannyngs since there is a dominus Willelmus Mannyng mentioned throughout the Wisbech court records as a juror, but it seems unlikely that a prestigious lord would carry peat. It is probable that the servant William Mannyng was ordered to carry peat on the feast of St. Ӕtheldrede by his master John Awsten and was cited for the offense. Since other records from the Wisbech ecclesiastical court mention whether the

accused appeared before the court, it is possible that Mannyng did not appear to answer

the allegation, and was punished for his absence in court. At the very least, Awsten’s

case demonstrates that even in the fifteenth century masters continued to be held liable by

ecclesiastical courts for causing their servants to work on holy days.

In 1518 Lincolnshire, William, the servant of John Holtby, was cited for

“spredinge muke” on a Sunday.392 While there is no indication that either William or his

master were punished by the ecclesiastical court, this case still is relevant in documenting

390 Lower Ecclesiastical Jurisdiction, ed. Poos, 403: Willelmus Mannyng' non servat sabbata vehendo terriscidias, videlicet turvys, in festo Sancte Etheldrede ultimo preterito. Suspensus ut supra. 391 Lower Ecclesiastical Jurisdiction, ed. Poos, 403: Joannes Awsten’ causabat servientem suum Willelmum Mannyng laborare ut supra. Comparuit xxijdo die Novembris. 392 Visitations in the Diocese of Lincoln: 1517-1531, Volume I, ed. Thompson, 77: Willelmus seruiens Johannis Holtby occupauit se in le spredinge muke quodam die dominico post meridiem.

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The wording of the case record draws special attention to the fact that John Holtby is

William’s master. This was possibly an attempt to embarrass Holtby into ensuring that he did not allow or order his servant William to work on any future holy days. Though the record uses a singular verb, it certainly appears that the court was admonishing both men. The court may have refrained from directly charging Holtby with commanding

William to work on the Sabbath because it did not have evidence that Holtby was behind

William’s actions, and was forced to indirectly admonish him. Regardless, the court seems to hold Holtby responsible to some degree for his servant’s transgression, whether from lack of oversight or as the instigator.

All of these accounts show churchmen reprimanding authority figures who made people work on holy days. In the account about Archbishop Eudes the masters were the only ones in trouble, while Marlowe’s letter advocated that the foreman receive more punishment than the peasants. Despite the time and place differences between these sources, they agree about how to assign blame for holy day infractions.393 This consensus was driven by the widespread acknowledgement that every Christian had a right to properly observe holy days, which included a break from servile work. The reason masters were assigned more blame than their servants, and frequently sole blame, was because they also committed the offense of encroaching upon the rights of others, which was particularly unacceptable to ecclesiastical authorities. Essentially, ecclesiastical authorities were using the courts to defend the right of every individual, including servants, to holy days. Notably, there seems to be an absence of court records

393 Thurston, “The Mediæval Sunday,” 36-50, 43-44.

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in which servants were prosecuted for refusing to comply with the orders of their masters

to work on holy days, suggesting that masters had no legal means to punish their servants

who refused their orders.394 The reluctance of courts to do so was possibly a result of

their recognition that everyone had a right to holy days.

Quia Necessitas Non Habet Legem: Necessity and Feasts It has been shown that servile works were prohibited on feasts. But most laws

admit exceptions, and feasts laws were no different. Servile works were allowed if they

were deemed necessary because of extenuating circumstances, provided that these circumstances did not arise out one’s own fault.395 Real necessity brought about by

forces outside of human control was always a valid excuse. Jesus had established this in

Scripture.396 A decretal to the archdiocese of Trier included in the Decretals of Gregory

IX noted about holy days, “we, to whom the government of the Church has been committed for the welfare of all, ought to allow to the faithful of Christ those things which necessity requires so that if in servile work there is no sinful action…the merciful custom of the apostolic see allows it.”397 Raymond of Peñafort (ca. 1180-1275)

presented the question of whether labor could licitly occur on feasts without any sin or

crime being committed when enemies were threatening destruction. He wrote, “What if

necessity requires either to plough or to gather fruit on Sundays and other Feasts, because

394 Rodgers, Discussion of Holidays, 34. 395 Dives and Pauper 3.7.2-7, ed. Barnum, 276: For man & woman schulde so be þinkyn hem aforn in þe wokeday and so ordeynyn her occupaciouns þat hem schulde nout nedyn to brekyn þe halyday. For ӡif a man nedith to brekyn þe halyday & þat nede come of hys owyn folye & of mysgouernance aforn, he is nout excusid be þat nede. 396 Matthew 12:1-14. 397 X 2.9.3: † nos tamen, quibus ab omnium provisore ecclesiae regimen est commissum, super his, quae necessitas exigit, Christi fidelibus tenemur commode providere, ut, si quando eos non servili operi id est actioni peccati, sed necessaria victui et vestitui quaerendo forte intendere contigerit, volumus, ut, eis apostolicae sedis providentia misericordia consueta subveniat.

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of the danger of enemies who in some other days might capture or kill them? It seems

clear enough that then the Church is able to allow them to—who have a just war, and are forced to work by such great necessity on Sundays, and other Feasts, even in the major solemnities of the year—if a major need for food requires, to acquire the necessary sustenance.”398 There really was no argument amongst canonists or theologians that a

feast could be abrogated to allow necessary servile works if reason dictated it, because of the universally accepted maxim “necessity does not have law” (quia necessitas non habet legem).399 Nevertheless, there were some restrictions to this maxim when it came to

feasts.

Food was, naturally, at the top of the list when it came to deciding what

circumstances warranted disregarding feast laws. Starvation was a much-feared reality in

the thirteenth and early fourteenth centuries due to overpopulation and multiple bad

harvests, which caused numerous canonists to stress that, if needed, food could be licitly

obtained on holy days. In fact, a decretal in the Decretals of Pope Gregory IX explicitly

stated that the necessity of food took priority over holy days, “Because of the need for

food it is allowed on festival days in honor of God to devote [oneself] to servile work

especially when time is of the essence.”400 Hostiensis noted some of the instances which were exempt due to necessity, such as “those things which pertain to agriculture, either to

398 Raymond of Peñafort, Summa 1.12.§7, 162-163: Quid si urgeat necessitas, vel arare, vel fructus colligere in diebus Dominicis, & aliis Festis, propter periculum hostium, qui in aliis diebus caperent, vel occiderent eos? Satis videtur quod tunc possit Ecclesia indulgere illis, qui justum habent bellum, & qui tanta cessitate arctantur operari in diebus Dominicis, & aliis Festis, praeterquam in majoribus anni solemnitatibus; & etiam tunc, si major appareret necessitas ad victum suum, & sustentationem necessariam acquirendam. 399 Raymond of Peñafort, Summa 1.12.§7, 163. This maxim essentially means “that which is necessary is legal.” 400 X 2.9.3: Propter necessitatem alimentorum licet diebus feriatis in honorem Dei operi servili intendere, maxime circa rem tempore perituram.

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pruning vines, or the cutting of them…and the reason for this is lest the moment may be

lost which had been given by celestial provision…And generally, whenever necessity or

piety requires, these days are not for celebrating.”401 Because some crops, such as

grapes, could only be harvested at specific times, it was necessary and permissible to

harvest them during holy days to prevent them from needlessly rotting in the fields.

Vine-dressing and grape-harvesting times were also limited by the fact that there were

only a few weeks in the year when grapes could be pruned or harvested without seriously

damaging the plant. Injuring the plant would diminish its productivity and food stocks

overall, possibly causing some people to go hungry. The holy day exceptions concerning

food were eventually adopted by English statutory law under Henry VI when he

prohibited goods from being shown in markets on feasts but allowed victuals to be

sold.402

Since the poor of society constantly teetered on the brink of disaster during the

Middle Ages and a bad harvest would inevitably hit them the hardest, they were given

special consideration in canons concerning holy days. Charitable works that helped the

poor were always allowed and encouraged by church officials,403 however it was not

401 Hostiensis, Summa Aurea II.IX, ed. Svperantii and Abbatis, 453: Item ea quae pertinent ad agriculturam, vel putationem vinearum, vel fossuram earum…& est ratio, ne modico memento pereat commoditas coelesti provisione concesso ut ibi…Et generaliter quandocunque necessitas, vel pietas exigit, non sunt feriandi hi dies. 402 4. Hen. VI. c. 5; 2 Statutes of the Realm, 351-352: “all manner of fairs and markets in the said principal feasts and Sundays…shall clearly cease from all shewing of any goods or merchandises necessary victual only except.” 403 As Bishop Theodulf of Orléans (ca. 790-821) stated in his Capitula, “by good works ye may provide wherewithal to help the poor and indigent, and such men as have not ability to work.” See Theodulf of Orléans, “Theodulf’s Capitula,” in A Collection of the Laws and Canons, I, 454.

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really until the thirteenth and fourteenth century that such provisions were officially enshrined in canon law and synodal legislation.404

The initial rationale for allowing people to engage in labor activities on feasts for the benefit of unfortunate persons was grounded in Scripture. Because the Son of God had worked miracles on holy days for unfortunate individuals, such as restoring the crippled hand of a man and giving a blind man sight,405 it was not only acceptable but strongly encouraged for people to follow Christ’s example and lend aid to their needy neighbors.406 These verses justified doing what could be considered as servile work for the poor because such deeds were considered to be done for Christ, with noble and virtuous spiritual motives.407 Dives and Pauper even cited charity as one of the reasons

God had commanded the Sabbath be hallowed: “why God bade the seventh day be hallowed?...for fulfilling of the six deeds of mercy which Christ names in the gospel.”408

Overall, this scripturally-based doctrine of charity for the poor led ecclesiastical and lay authorities to implement policies that promoted Christian compassion.409 Simon

404 Barbara Harvey, “Work and Festa Ferianda,” 289-291. 405 Matthew 12: 10-14; Mark 3: 1-6; John 9:1-16. 406 Middle English Sermons, ed. Woodburn O. Ross, Early English Text Society, vol. 209 (London: Oxford University Press, 1940), 20: Oure Lorde Ihesu…techeþ noþinge to vs in þe gospell of þis daye…saue oon; and þat is þis: it is lefull, he seis, to euery Cristen man to do good spirituall werkes on þe halydaye. 407 Matthew 25: 34-40: As Jesus had stated, “For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me…Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.” 408 Dives and Pauper 3.1.44, 66-67, ed. Barnum, 265: why God bad þe seueþe day ben halwyd?...for fulfellynge of þe sexe dedis of mercy whyche Crist nemelith in þe gospel. Dives and Pauper, 3.6.19-23, ed. Barnum, 275: Men schuldyn on þe halyday seruyn God with herte, mouth & wark…in wark also of dedys of elmesse, in pes-makynge and cordyng of neyӡebouris. 409 The best work concerning the duty of the church to protect the poor and provide them with charity is Brian Tierney, Medieval Poor Law: A Sketch of Canonical Theory and Its Application in England (Berkeley, CA: University of California Press, 1959). See also Brian Tierney, “The Decretists and the ‘Deserving Poor’,” Comparative Studies in Society and History 1, no. 4 (June 1959): 360-373; Helmholz, Spirit of the Canon Law, 116-144. For a more recent works about the concept of charity and its adoption by medieval scholastics and institutions see Virpi Mäkinen, “Rights and Duties in Late Scholastic

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Mepham, immediately after prohibiting servile works on Good Friday in his

constitutions, included the clause, “Yet we do not hereby lay any law upon the poor; nor

forbid the rich to yield their customary assistance to the poor in tilling their lands for

charity's sake.”410 This canon not only demonstrates acknowledgement by church

authorities that strict observation of feasts could harm the poorest, but also that the rich

were encouraged to help their less unfortunate neighbors on feasts.

The policy of the Church to encourage the rich to aid the poor on feasts also

supports the theory that individuals had a right to feasts. If it is accepted that a subjective

right is an acknowledged sphere of free will where individuals are able to act however

they wish (within reason and the limitations established by other rights), and a right is

able to be waived at the discretion of an individual, then the exceptions provided for

charitable deeds confirm that feasts were a right. These canonical exceptions attest to the

fact that individuals had the right to choose whether to work for the benefit of the poor or

to abstain from working altogether. Individuals were not prevented from working on

feasts, just from engaging in servile works that profited themselves or a temporal lord

(and were presumably mandated by the lord). Even though holy days were primarily

intended to provide individuals with the time to attend mass and worship God by

abstaining from their usual activities, charitable works for the unfortunate of society were

encouraged on feasts because they edified and pleased God. It is important to note that

the rich were not mandated by ecclesiastical canons to render aid to the poor by helping

Discussion on Extreme Necessity,” in Transformations in Medieval and Early-Modern Rights, 37-62; James William Brodman, Charity & Religion in Medieval Europe (Washington, D.C.: The Catholic University of America Press, 2009). 410 Simon Mepham, “Archbishop Mepham’s Constitutions” Chapter 1, in A Collection of the Laws and Canons, II, 346.

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them on feasts, though local customs may have required it, but allowed to make their own

decision on the matter. Even the poor were given the right to decide whether necessity

required them to work on a feast or refrain from work and observe the day with the rest of

the community.411 Dives and Pauper urged the peasants to consult wise men of the

church to determine whether their situation was dire enough to work on a holy day, but

noted that ultimately the choice lay with the individual.412 Presumably, Mepham’s canon allowed poor individuals the discretion to decide whether their access to necessities, such as food, required working on a feast. However, the canon did not mandate that the poor only work if their survival was in imminent danger. Thus, proper implementation of the canon required impoverished individuals to decide whether to work or not.

Servile Work Exceptions and Banquets While servile work was generally forbidden on holy days by almost all synods

and canon law treatises from the thirteenth century onwards, sometimes people were

forced to work on holy days. In fact, some work, clearly servile in nature, occurred

during holy times. At first glance this problem seems to undermine the whole assertion

that feasts were a right. How could feasts be a human right when some individuals were

apparently forced to work habitually during such holy times? There is on closer

examination a satisfactory explanation to most of the conundrum. Though servile work

may have been explicitly prohibited by multiple canons, there were some occupations

411 For the importance of conscience in dictating actions, see John T. Noonan, Jr., “Principled or Pragmatic Foundations for the Freedom of Conscience?” Journal of Law and Religion 5, no. 1 (1987): 203-212; Robert Somerville, “Canon Law, Inspired Law, and Papal Authority,” in Netiʻot Ledavid: Jubilee Volume for David Weiss Halivni, ed. Yaakov Elman, Ephraim Bezalel Halivni, and Zvi Arie Steinfeld (Jerusalem, Israel: Orhot Press, 2004), 119-134. 412 Dives and Pauper 3.16.49-51, ed. Barnum, 292: ȝif þe nede be gret & opyn, her owyn conscience owith for to excusyn hem for þey mon warkyn þan be auctorite of þe lawe.

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which tended to occur regardless of holy days. The most obvious example is found in the

kitchens of the aristocracy with the cooks. Cooks did not receive a respite from their

labors on feasts as often as their fellow servile workers.413 They can be seen in records

doing their jobs even during the high holy season of Christmas when many lords held a

customary Christmas banquet for their villeins.414 Apart from cooks, there were other

servants who worked on holy days by serving food and keeping watch to prevent

disorder. Minstrels and other entertainers also worked during holidays.

Technically, the banquet was held for the enjoyment of everybody invited, thus

the cook and minstrels were doing a service for the entire community. Even though

scholars have increasingly emphasized the eleventh through the thirteenth centuries and

the two centuries preceding it as a time when a new type of individualism emerged,

generally the welfare of the community still took precedence over individuals.415 As the

historian R. H. Helmholz wrote regarding the right to vote in the Middle Ages,

“Individual rights, even the rights of great antiquity, had to yield to the institutional needs

of the church and to the right ordering of society.”416 There was certainly a need for

cooks and servants at banquets. The lord did not have the skills to prepare food (nor

would his guests have wanted him to do so since amateur cooking would probably be

413 Bridget Ann Henisch, The Medieval Cook (Rochester, NY: Boydell Press, 2009), 134-163. 414 G. G. Coulton, The Medieval Village (Cambridge, UK: Cambridge University Press, 1931), 28-29. 415 Colin Morris, The Discovery of the Individual: 1050-1200 (New York: Harper & Row, 1972); Caroline Walker Bynum, “Did the Twelfth Century Discover the Individual?” in Jesus as Mother: Studies in the Spirituality of the High Middle Ages (Los Angeles: University of California Press, 1982), 85, 87-88, 90, 106-107; John F. Benton, “Consciousness of Self and Perceptions of Individuality,” in Renaissance and Renewal, 263-295; Susan R. Kramer and Caroline W. Bynum, “Revisiting the Twelfth-Century Individual: The Inner Self and the Christian Community,” in Das Eigene und das Ganze: Zum Individuellen im mittelalterlichen Religiosentum, ed. Gert Melville and Markus Schuerer (Münster, Germany: LIT Verlag, 2002), 57-85; Virpi Mӓkinen and Heikki Pihlajamӓki, “The Individualization of Crime in Medieval Canon Law,” Journal of the History of Ideas 65, no. 4 (October 2004): 526; William Caferro, Contesting the Renaissance (Malden, MA: Wiley-Blackwell, 2011), 31-60. 416 Helmholz, “Natural Human Rights,” 5.

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unappetizing and a health hazard). Attendant servants would also have to be on duty

because they would have been needed to serve the food to the lord and his guests, some

of whom may have been their fellow servants. Because the skills of cooks and attendant

servants were a necessity at banquets, they could not abstain from servile work for the

good of the community, and this reasoning allowed them to practice their trade on holy

days without censure.417

There was also a need to prevent social disturbances, causing a few servants to be

tasked with standing guard during banquets on holy days. Communal banquets were the

perfect times for thieves and other miscreants to wreak havoc in the community since

there were fewer people around to catch them in the act. If a few servants were

designated to watch over the community, criminals would hesitate before engaging in

crimes.418 But criminals were not the only reason watchmen were needed during holiday

banquets since guests who were too festive might be inclined to create disturbances. One

of the complaints made by Archbishop Simon Islip of Canterbury (r. 1349-1366) was that holy days were often times of drunkenness and fighting.419

Minstrels and other entertainers also worked during banquets. However, they do

not seem to have been consistently prosecuted for violating feast prohibitions even

though, admittedly, their type of work was not as necessary as the work of cooks. Their

work presumably provided a positive benefit for the larger community. Holy day

417 Rodgers, Discussion of Holidays, 40-41. 418 Memorials of London, ed. Riley, 419-420. 419 Simon Islip, “Archbishop Islep’s Constitution [A. D. 1359],” in A Collection of the Laws and Canons, II, 417-419: “we are clearly, to our heart’s grief, informed that a detestable, nay damnable perverseness has prevailed…meetings of men who neglect their churches, various tumults, and other occasions of evil are committed, revels of drunkenness, and many other dishonest doings are practised, from whence quarrels and scolds, threats and blows, and sometimes murder proceeds, on the Lord’s day.”

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entertainment was acceptable as far as the Church and canonists were concerned, just so

long as the entertainment was proper and not excessively vulgar or sinful.420 In fact, the

Church even sponsored biblical dramas on holy days, despite the fact that actors had to

work for the amusement of the people.421 Therefore, it seems entertainment could be

suitable for holy occasions because it delighted audiences and reinforced Christian

doctrine, simultaneously serving fellow men and God. In practice, however, the

entertainment at banquets seems to have been far less religiously themed than would be

acceptable, and the performers were likely compensated for their service.422 This reality of bawdy secular songs and vulgar performances was likely the cause behind condemnations of holy day entertainment, not just a general disdain for holy day entertainment.423 These two facts should have been enough to draw the ire of

ecclesiastical officials but it seems that they did not pursue these infractions in court,

probably because of the positive effect entertainment had on the community and because

they recognized attempts to limit parties and carnivals often had only limited success.

While servile work may have been banned on holy days, exceptions to the rule for

specific types of work emerged on the grounds of practical necessity or communal

benefit. Cooks, attendant servants, and watchmen needed to work part of a holy day to

allow customary banquets to occur without impediment or disruption. Entertainers,

though not needed per se, were allowed to operate because of the positive effects

420 Dives and Pauper 3.17.14-16, ed. Barnum, 293: Steraclis, pleyys & dauncis þat arn don principaly for deuocioun & honest merthe…arn leful. 421 See Clifford Davidson, Festivals and Plays in Late Medieval Britain (Burlington, VT: Ashgate, 2007). 422 John Southworth, The English Medieval Minstrel (Wolfeboro, NH: The Boydell Press, 1989), 6, 61. See also Sir Gawain and the Green Knight Part 1.37-135, trans. Joseph Glaser (Indianapolis, IN: Hackett Publishing Company, 2011), 4-8. 423 Robert Mannyng of Brunne, Handlyng Synne Lines 984-986, ed. Sullens, 27.

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entertainment had on the community. Thus, necessity and the interest of the community

limit servile work prohibitions and, consequentially, the right to holy days.

Economic Policies The power of the right to feasts continued to exert influence throughout the

fourteenth and fifteenth centuries. From the mid-eleventh century to the thirteenth

century, the English royal government had been willing to allow the Church complete

control over feasts. Despite some vaguely supportive policies of kings John and Henry

III, there still was not any real feast policy established by the royal government. In the

mid-fourteenth century, however, the king and parliament began to issue legislation

pertaining to feasts. This sudden concern occurred as English society and economy were

teetering on the brink of destruction due to the decimation of the population from the

Black Death.424 Royal policy towards feasts was not very original. In fact, the kings

simply adopted the platform of the Church and produced legislation which reinforced

preexisting canons.425 Nevertheless, they established legal precedents for the royal

government to support the Church’s feast canons with its own statutory laws. The new

legislation differed from that in Anglo-Saxon England because by the mid-fourteenth

century there was a strong government with administrative machinery to enforce laws.

424 James Massachaele, “The Renaissance Depression Debate: The View From England,” The History Teacher 27, no. 4 (August 1994): 406-407: Massachaele says that the death rates for England are accepted as at least a third of the population, but some studies suggest that it may have been as high as 45 percent. See Christiane Klapisch-Zuber, “Plague and Family Life,” in The New Cambridge History: Volume VI c. 1300-c. 1415, ed. Michael Jones (Cambridge, UK: Cambridge University Press, 2000), 132. 425 For a discussion about how the primary goal of governmental policy was to maintain the status quo, see Robert C. Palmer, English Law in the Age of Black Death, 1348-1381: A Transformation of Governance and Law (Chapel Hill, NC: The University of North Carolina Press, 1993). See also Samuel Cohn, “After the Black Death: Labour Legislation and Attitudes Towards Labour in Late-Medieval Western Europe,” The Economic History Review, New Series 60, no. 3 (August 2007): 457-485.

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The first piece of holiday legislation produced by the medieval royal government

since Cnut came was issued by Edward III (r. 1327-1377) and the 1354 parliament, which

prohibited the “shewing of Wools” on Sundays and solemn feasts.426 It was not designed

to validate the sanctity of holy days as times which should be free from commerce, but a

piece of a much larger governmental policy to exercise control over the wool industry. In

fact, it suggests that the restrictions of the Church on markets and fairs during feasts were

not consistently observed, because if no goods were being traded during feasts, there should have been no need to restrict the sale of just one particular type of good.

While the 1354 legislation marked the beginnings of the development of the royal government’s policy towards feasts, the most important and informative event was the royal government’s unexpected policy whilst the plague raged. The first labor laws were attempts by parliament to stop peasants from demanding higher wages for their labor and leaving their demesnes to look for better work.427 The statutes basically ordered all

servants and laborers to accept employment for the customary low wages.428 The labor

shortage caused by the plague threatened the English economy and society, thereby

leading the royal government, composed of the elite whose livelihoods were directly tied

to paying workers low wages, to try and legislate its way out of this economic crisis. Of

course, the medieval government was not very effective in controlling the economy, but

it certainly tried.429

426 28 Edw. III. c. 14; 1 Statutes of the Realm, 349: “It is accorded and established, That shewing of Wools shall be made at the Staple every Day of the Week, except the Sunday and solemn Feasts of the Year.” 427 See the Ordinance of Labourers of 1349; Elaine Clark, “Medieval Labor Law and English Local Courts,” The American Journal of Legal History 27, no. 4 (October 1983): 330-353. 428 Clark, “Medieval Labor Law,” 331. 429 Bolton, Medieval English Economy, 329.

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Based upon the fear-driven attempts of the English king and parliament to try and keep the peasantry from demanding higher wages, it would be logical to expect feast prohibitions concerning servile work to be suspended or ignored by parliamentary decree.

After all, crops were rotting in the fields, whether because of a real labor shortage or simply because of a “strike.” However, no legislation was issued by the king or parliament to make it legal to work on feasts. Despite many lords facing the serious prospect of financial ruin, a prospect which many did fall prey to, they refused to pass legislation making it legal to work on feasts. Undoubtedly, the canon law would have been interpreted as allowing crops in danger of rotting to be harvested on feasts since this was a necessity, but it still would be expected that the government would issue legislation explicitly affirming that agricultural works should continue, regardless of the calendar, especially since its primary response to the plague was to maintain the status quo concerning food production and services.430 In fact, there is no evidence that the king or

parliament even considered issuing such a law. They seemed to have started out with the

same assumption made by Walter of Henley (fl. thirteenth century) that there were only

forty-four weeks of the year which were “woorkable.”431 This surprising absence of

evidence could be attributed to a low survival rate for fourteenth century records or a lack

of medieval parliamentary recording-keeping. But it could also be evidence that feasts

were considered a right that the royal government could not abrogate through legislation

430 Palmer, English Law, 17; Bolton, 214; Barbara Harvey, “Work and Festa Ferianda,” 289-308, 308. 431 In his estate treatise intended for lords, Walter of Henley did not suggest there was any way around the eight weeks of the year when work could not be done: “Yowe knowe well, that in the yeare theare be 52 weekes; nowe take out eight of theise weekes for holydayes and for suche other lettes and soe theare remayne 44 weekes woorkable.” Walter of Henley, “Husbandry” Chapter 30, in Walter of Henley and other Treatises on Estate Management and Accounting, ed. Dorothea Oschinsky (Oxford, UK: Clarendon Press, 1971), 315. It is debated whether Walter of Henley included Sundays in his calculations, or whether his eight weeks comprise only non-Sabbath holy days. For an overview of this debate, see Rodgers, Discussion of Holidays, 14.

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because it did not have the authority to do so, despite dire economic circumstances.

Based upon the usual harsh treatment of peasants by their lords, it seems rather unlikely

that the elite would have been worried about having peasants violate custom by making

them work on feasts. With some peasants fleeing their demesnes looking for better

wages and treatment, and others refusing to work, the obvious solution for the lord would

have been to demand more productivity from the peasants who were too sheepish to flee

or go on strike. The easiest way to increase the productivity of the peasants would have

been to force them to work on holidays. However, neither the Church nor government

pursued such a policy.

Prohibition of servile work was such an integral part of feasts that it remained a

part of the canons issued by English synods even after the first outbreak of the Black

Death in 1348-1349. Simon Islip issued a canon in 1362 which reaffirmed the mandate

to abstain from servile work on feasts, even while acknowledging that some types of

labor were beneficial to the “commonwealth.”432 Though the population decline was

tempered by the fact that England had been overpopulated since the late thirteenth

century, the plague still wreaked havoc on the availability of labor.433 Lords across the

realm faced a labor shortage which threatened financial ruin, forcing them to change the

way in which they administered their estates, yet Islip was not only steadfast in his

resolve to preserve the prohibition of servile work but even expanded it. It seems that

432 Simon Islip, “Archbishop Islep’s Constitutions [A. D. 1362],” in A Collection of the Laws and Canons, II, 425-426: “To prevent superstitions, evil inventions, and frauds of covenant servants, and to lessen the occasion of them, and that the memories of the saints which require a cessation from labour may be had in due veneration, according to the original Institution of the Church, with the advice of our brethren, we have thought fit to set down in these presents the feasts on which all people in our province of Canterbury must regularly abstain even from such works as are profitable to the Commonwealth.” 433 Bolton, Medieval English Economy, 72.

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previously works for the commonwealth were allowed on feasts because of their positive benefits for society as a whole, but now even such beneficial works were banned.434

Only those absolutely necessary or those done out of charity for “miserable persons”

(miserables personnes) were allowed.

Governmental legislation issued in the late fourteenth and fifteenth centuries followed the Church’s canons in prohibiting servile work on feasts.435 Instead of rolling back holidays to increase productivity, the king and parliament adopted the stance of the

Church and propagated more laws restricting labor and trade. The Statute of Labourers in 1360-61 simply stated “no Labourer, [Servant,] nor Artificer shall take no Manner of

Wages the festival days.”436 While this was not an overly technical law, its importance was in reestablishing a legal precedent, claiming the royal government had jurisdiction over feasts for the first time since the unofficial laws of Henry I. The Statute of

Labourers was followed by similar laws of increasingly complexity in 1402 from Henry

IV (r. 1399-1413) and in 1427 from Henry VI (r. 1422-1461, 1470-1471).437 The

434 One type of work that had apparently been deemed “profitable” to the commonwealth was that of the Lower Exchequer. It seems to have at least maintained a skeleton staff during most holidays in the 1320s and 1330s. See J. F. Willard, “The Observance of Holidays and Vacations by the Lower Exchequer, 1327- 1336,” The University of Colorado Studies 22, no. 4 (June 1935): 286-287. 435 This could be connected to the “collegial governance” that developed between the royal government and clergymen after the Black Death. See Palmer, English Law, 52, 54. Italian city-states also issued similar statutes: see Webb, Patrons and Defenders, 106-124. 436 34. Edw. III. c. 10; 1 Statues of the Realm, 367. 437 4. Hen. IV. c. 14; 2 Statues of the Realm, 137: “It is ordained and established, That no Labourer [be retained to work] by the Week, nor that no Labourers, Carpenters, Masons, Tilers, Plaisterers, Daubers, Coverers of Houses, nor none other Labourers, shall take any Hire for the Holy-days…upon the Pain that such labourer…that taketh contrary to this Statute, shall pay to the King for every time that he so doth the contrary.” 6 Hen. VI. c. 3; 1 Statutes of the Realm, 234: “Provided always, That if any Man be retained by the Week for Husbandry or other Labour, that he take nothing for the Festival Days in such Week the Half Days [of] the Evens of such Feasts: And that every Proclamation so to be made be holden as a Thing ordained by Statute. And if any Servant, Artificer, or Workman do the contrary of such Proclamation so to be made, and be thereof attainted at the King's Suit, he shall forfeit to the King every Time the Value of his Wages; and if he have not whereof to make Gree to the King, he shall have Imprisonment of Forty Days…

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primary motive behind issuing the laws was likely to prevent a custom of some trades such as carpenters and masons, whereby the artisans were paid wages for every other feast, even though they did not work on feasts.438 Even if this was the motivation behind

the laws, it should not overshadow the fact that it still inhibited all wage laborers from

working on a feast since they would not receive any pay. Presumably, if a laborer

worked on a holy day out of the goodness of his heart and not for any covetous reason

like wages, then he was not breaking the law. This presumption would be acceptable under canon law because without receiving compensation for completed work it would be a work of charity. Of course, few laborers likely did their works out of charity to lords, but that is another matter. Importantly, the 1402 and 1427 laws also mandated that the

king receive the fees for workers who transgressed the law. Unlike the Leges Henrici

Primi, these laws did not divide the fee between the crown and Church, but seems to have

intended for the king to keep the entire fee.

Even though these periods were characterized by a labor shortage which was

having an adverse effect on the financial situations of the great lords, parliament,

composed of these same great lords, not only refrained from limiting feast restrictions,

but instead promulgated multiple laws which attempted to induce a cessation of wage

labor on feasts. Respect for feasts was based upon their status as a right. If feasts had

been solely a custom, then they would not have been as protected as they were. Customs,

though highly esteemed throughout the Middle Ages, were losing some influence by the

the Justices of Peace, Mayors, and Bailiffs aforesaid…shall have Power and Authority to hear and determine such Offences… and thereupon to make and award Writs of Capias.” 438 L. F. Salzman, Building in England: Down to 1450: A Documentary History (London: Oxford University Press, 1967), 65-67.

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Later Middle Ages, as demonstrated by the willingness of lords to resort to commutation instead of continuing to accept customary dues from villeins when commutation was more profitable. Notably, though the 1402 and 1427 laws technically gave the common law courts jurisdiction to prosecute infractions, seemingly without rejecting the right of the ecclesiastical courts over feast jurisdiction, fifteenth century court records indicate that the ecclesiastical courts retained de facto jurisdiction over feast cases.

Based upon the labor shortages elicited by the Black Death and the emergence of a commercial mentality, from a practical standpoint the Church and the government should have curtailed prohibitions on work and trade on feasts. It made perfect economic sense to drop labor and commerce prohibitions, as doing so would have helped alleviate some of the immediate problems the realm was facing. Across the Channel in France,

Jean Gerson vainly implored the Church to eliminate some of the lesser feasts to allow laborers to improve their lot by working more.439 Yet instead of responding as might be expected, or at least be silent on the issue, both institutions issued more prohibitive feast legislation.440 They possibly did this because feasts were a right.441 Natural rights can

439 Jean Gerson, Joannes Gersonii Omnia Opera, vol. III, Second Edition, ed. Henrici de Hassia, et. al. (The Hague, Netherlands: Apud Petrum de Hondt, 1728), 1358: Non quod multiplicationem Festivitatum apud vulgus, quod de labore manuum vivere habet, suadeamus; esset utinam apud tales hujusmodi numerus Festivitatum minor, sicut in reformatione hic in Concilio notatum est: “Not that we seek the multiplication of feasts among the crowd which has to live by manual labor, rather a smaller number of feasts of this type is a reform that ought to be taken up in council.” 440 Continued respect for the right to feasts was not only seen in ecclesiastical and governmental policies. Guilds also tended to adopt similar holy day policies, and many guilds included more feasts in their regulations than just those found in the list from the Decretals of Gregory IX. See Steven A. Epstein, Wage Labor & Guilds in Medieval Europe (Chapel Hill, NC: University of North Carolina Press, 1991), 68-69, 161-163, 173-174. 441 One alluring explanation for the stance of parliament is that the elites were more idealistic and “progressive,” in a manner similar to the Progressives of the late nineteenth and early twentieth centuries. Just as the Progressives in America were mostly idealistic elites who led the fight for political rights that were not seemingly aligned with their own personal interests—such as the sixteenth, seventeenth, eighteenth and nineteenth amendments—the medieval elites in parliament may have acted similarly with the right to holy days. After all, it was medieval elites who were responsible for the content of the Magna

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not be tossed aside or retracted based upon the immediate situation because doing so

would violate something sacred while simultaneously challenging the design of the

cosmos. Since rights could also simultaneously exist as duties in the Middle Ages, to

curtail feast prohibitions might not only lead to social unrest but also challenge the right

of the faithful to worship God, as well as the right of God to be worshipped by the

faithful. God certainly would not appreciate that, nor would he be willing to show mercy

by ending the problems the people were facing. So instead of seeking to remedy the

immediate situation through economic means, the people of England looked towards God

and the saints for aid, and that meant respecting the right of all Christians to observe the

holy days delineated by the Church and even confirming the right in human statutory law.

The Right to Feasts: From Custom or Nature?

Feasts were natural rights based in natural law, but were also customs, at least in

part. Different local feasts were anchored in specific geographical and ecclesiastical

contexts, as modern scholarship has emphasized. However, the universal feasts of the

Church transcended mere custom to become something more. Historically, religious

feasts had always been grounded more in the “supernatural” than in custom, as their

accompanying religious rites suggest. This was true in both pagan Rome and medieval

Carta. They saw themselves as the defenders of the rights, and so it is certainly possible that they strengthened feast laws in order to ensure the right was protected in English law. It might have been the minor lords, less idealistic than the major lords in power, who wanted a softening of feast prohibitions. (Special thanks to Dr. Howe for pointing out this parallel). For other medieval examples of elites being “progressive,” see John Howe, “The Nobility’s Reform of the Medieval Church,” The American Historical Review 93, no. 2 (April 1988): 317-339.

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Christendom.442 The “extra-customary” character of the major feasts is evident in the

gradated lists of feasts that appeared in the thirteenth century. Custumals also serve to

further show that the three main feasts of Christmas, Easter, and Whitsun were more than

just customs.

Many people in the Middle Ages used the term consuetudo (often translated as

custom) when discussing the feasts of the Church. Archbishop Islip stated in his

constitutions, “though the custom of festivals was introduced in honour to the saints; yet

by the levity of men what was instituted out of reverent regard to the elect of God has

been turned to their reproach.”443 Peasants commonly identified things as customs when

seeking to defend them in legal courts, but that fact should not be taken as proof that they

viewed those things as arbitrary customs. It is likely that they appealed to custom

because they understood that legal concept far better than the complex legal term ius

naturale. While it may seem as though intellectuals should have known the legal

ramifications of calling holy days customs instead of natural rights, it must be

remembered that they did not treat the major holy days as customs which could be

abrogated but as days closely connected to God and the saints. Intellectuals such as Islip

probably used consuetudo in relation to feasts to refer to ecclesiastical cycles and their

celebrations, not as a description of their legal basis.444

442 For discussions of pagan Rome religious feasts and their supernatural nature, see Gary Forsythe, “Preliminary Examination of the Roman Calendar,” 1-18, and “The After Days and Other Curiosities,” 19- 39, in Time in Roman Religion: One Thousand Years of Religious History. 443 Simon Islip, “Archbishop Islep’s Constitutions [A. D. 1362],” in A Collection of the Laws and Canons, II, 425-426. 444 See David Ibbetson, “Custom in Medieval Law,” in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, ed. Amanda Perreau-Saussine and James Bernard Murphy (New York: Cambridge University Press, 2007), 151-175; John G. H. Hudson, “Introduction: Customs, Laws, and the Interpretation of Medieval Law,” in Custom: The Development and Use of a Legal Concept in the Middle Ages, ed. Per Andersen and Mia Münster-Swendsen, Proceedings of the Fifth Carlsberg Academy

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The most obvious reason why feasts were more natural law than custom

(consuetudo) is evident in the definition of custom. Gratian said of custom, “Custom is a sort of law established by usages and recognized as ordinance when ordinance is lacking.”445 Since there were ordinances concerning feasts, in this respect feasts could

not be said to be customs. Furthermore, in thirteenth century common law contexts

consuetudo generally referred to a procedural rule which applied only to a specific jurisdiction, not to the whole of England or Christendom.446 In essence, the legal sense

of custom meant something that was specific to a locality and not generally applicable to

a much larger area. The lists of feasts included in council decrees of the Roman Church,

such as the Council of Lyons decree included in the Decretum, were intended to be

implemented across all of Christendom. Thus, because of the universal character of the

major feasts of the Christian calendar, those feasts could not be considered mere customs.

This distinction between universal and local feasts is assumed by medieval treatises upon

feasts. In the beginning of his treatise Summa de Ecclesiasticis Officiis (Summa about

the Ecclesiastical Office), John Beleth (fl. 1160-1164) notes that some feasts were

celebrated by universal decree while others were from local custom.447

Conference on Medieval Legal History 2008 (Copenhagen, Denmark: DJØF Publishing, 2009), 1-16; Dominique Bauer, “Custom in Canon Law and the Expansion of Legal Reality,” in Custom, ed. Andersen and Münster-Swendsen, 107-121. For the suggestion that peasants and manorial courts understood custom and customary law as fluid and ambiguous concepts, see Lloyd Bonfield, “The Nature of Customary Law in the Manor Courts of Medieval England,” Comparative Studies in Society and History 31, no. 3 (July 1989): 529, 531-534. For the many meanings of consuetudo, see Oxford Latin Dictionary, Volume I: A-Libero (Oxford, UK: The Clarendon Press, 1968), s.v. “consuetudo.” R. E. Latham and D. R. Howlett, eds., Dictionary of Medieval Latin from British Sources, Volume I: A-L, The British Academy (Oxford, UK: Oxford University Press, 1997), s.v. “consuetudo.” 445 D. 1 c.5; Gratian, Gratian: The Treatise on Laws (Decretum DD. 1-20) with the Ordinary Gloss, 5. 446 Paul Brand, “Law and Custom in the English Thirteenth Century Common Law,” in Custom, ed. Andersen and Münster-Swendsen, 18. 447 John Beleth, Iohannis Beleth Summa De Ecclesiasticus Officiis Chapter 5 a-b.1-10, ed. Heriberto Douteil, Corpus Christianorum: Continuatio Mediaevalis, vol. 41A (Turnholt, Belgium: Brepols, 1976), 15-

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The status of feasts as a natural right was also witnessed in the power which feasts

had over other natural rights. The right to secure the necessities of life—food and drink—did trump feasts, yet the right to marry was limited by feasts. A decretal from

Clement III (r. 1187-1191), included in the Decretals of Gregory IX, discouraged marriages from occurring three weeks before the feast of St. John the Baptist.448 Legal

trials, which criminals had a natural right to, also could not occur during feasts.449 In the

realm of legal science, the powers ascribed to feasts over other natural rights could only

be from a type of legal source which was either more powerful or equally as powerful as

the source of those natural rights. Since the rights of marriage and a fair trial were widely

considered to be engrained in natural law,450 which outranked man-made customary and

statutory law, the right to holy days must have been based in natural law, and thus a

natural right.

A further indication that feasts were considered to be natural rights is found in the

different gradations of feasts that emerged in thirteenth-century synodal documents and

liturgical books. Attaching different levels of importance to feasts was no novel concept:

Lanfranc had done a similar thing in his monastic constitutions in the eleventh century.451

The difference with thirteenth century lists lay in the fact that they were being propagated in synods and liturgical books meant for all members of a particular diocese. Feast

16: “Some of the feasts some are general, some particular. General feasts are generally celebrated in by all…Particular feasts are celebrated in one province only…or in one bishopric or in one village or in one parish.”: Festorum quedam sunt generalia, quedam particularia. Generalia sunt, que generaliter ab omnibus celebrantur…Festa particularia sunt, que in una prouincia tantum coluntur…uel in uno episcopatu uel in una uilla uel in una parochia. 448 X 2.9.4: statuta canonica declarent nuptias tribus septimanis ante festum Nativitatis B. Ioannis Baptistae minime celebrari debere. 449 X 2.9.1. 450 Helmholz, “Natural Human Rights,” 301-325. 451 See Lanfranc, The Monastic Constitutions of Lanfranc Chapter 62-73, trans. Dom David Knowles (New York: Oxford University Press, 2002), 83-97.

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gradations could vary considerably based upon each locality, diocese, and time of

creation. In classifying each feast into different gradations, clerks meant to rank feasts

based upon how important they were and how they should be observed, though the lists

had some flexibility in their interpretation.452 While all feasts might be holy, some were

holier than others. Such a differentiation is important to the study of natural rights in the

medieval era because it suggests that different feasts had different rights associated with

them which could apply to all of society or only a part. While primary feasts, such as

Christmas, might be everyone’s right, and were generally associated with complete

abstention from all types of work, other feasts might allow a respite from labor to women

only.453 Thus, because not every feast was to be observed by everyone and some were

limited in scope, not every feast could be considered to be based in natural law—at best

minor feasts could be considered a widespread genre in lists. However, for the major

universal feasts of the year, which this study is focused on, the lists of feasts agree that

they were to be observed by everyone with all due reverence and rites.

Custumals are another type of medieval source which portray feasts as a right.

Custumals were documents created to record the customs of a manor, and some included

information about the rents and services each tenant on the manor owed. They were

inspired by the growth of common law in the thirteenth and fourteenth centuries to codify

the relationship between lords and peasants by elucidating the series of rights and duties

452 C. R. Cheney, “Rules for the Observance of Feast-Days,” 118. 453 For example, a Diocese of Hereford missal dating from 1348-1362 listed all the feasts to be observed in the diocese and noted, “These feasts are holidays from the works of women. The day of St. Benedict, St. Leonard the abbot, the day of St. Agnes, the day of St. Margaret the virgin, the day of St. Agatha, the day of St. Luke, the day of St. Cecilia.” See “Diocese of Hereford” List 12, in C. R. Cheney, “Rules for the Observance of Feast-Days,” 144: Ista festa ferianda sunt ab operibus mulierum. Dies sancti Benedicti, dies sancti Leonardi abbatis, dies sante Agnetis, dies sancte Margarete virginis, dies sancte Agathe, dies sancte Lucie, dies sancte Cecilie.

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between the lord and tenants on his manor, such as how many days in the week tenants

were obligated to render labor services and what goods or livestock they owed as rent.454

Their increasing use may also reflect the increasing desperation of landlords who

urgently wanted to maximize revenues during the economic chaos of the fourteenth

century. Custumals have relevance for the right to observe holy days because many

contain statements concerning feasts. 455 Some include lists of the feasts on which tenant

services were suspended while others simply refer to “red-letter days,” feasts whose

special status was indicated in red in the rubrics of liturgical books. 456 Yet the common

denominator with these custumals is that they confirm that tenants, regardless of social

class, did not have to render services on “red-letter days.” They acknowledged the rights of villeins to observe holy days and attempted to ensure that these rights would be dutifully respected, not only for when they were compiled but also the future (whether the lords always actually respected the right of their villeins is another matter). While it might seem logical to consider the inclusion of feasts in custumals as an indication of

their customary nature, this would be shortsighted. Canon law was the legal source in

which these “red-letter days” were based, not custom. The dependency of custumals on the Church is witnessed with the usage of the ecclesiastical term “red-letter days” which allowed for a certain degree of flexibility in interpreting custumals should the Church

454 Bailey, English Manor, 16. 455 See “The Customs of the Episcopal Manor of Taunton, Somerset,” in The Medieval Customs of the Manors of Taunton and Bradford on Tone, ed. T. J. Hunt, Somerset Record Society, vol. 66 (Frome, UK: Butler & Tanner LTD., 1962), 31-32, 65-66, 80. See also custumals from Cacham (1-12), Selseye (13-32), Aldyngebourne (33-41), Amberle (42-63), Rakham (64-66), Ferryngge (71-78), Prestone (79-86), and Stretham (104-125) in Thirteen Custumals of the Sussex Manors of the Bishop of Chichester, and Other Documents from Libri P. and C. of the Episcopal Manuscripts, ed. W. D. Peckham, Sussex Record Society, vol. 31 (Cambridge, UK: W. Heffer and Sons Ltd., 1925). For a discussion of holy days and custumals, see George Caspar Homans, English Villagers of the Thirteenth Century (New York: Russell & Russell, 1960), 272-275, 353-381. 456 “Survey of Hartest,” and “A Works Account From Thaxted,” in English Manor, 48-49, 53, 55-57, 158- 159.

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declare new feasts later on. And, since the Church believed the legal basis for holy days

was natural law, the “red-letter days” of the custumals implicitly assume this too.

One particular record from Westminster Abbey provides insight into how

peasants might respond to infringement of their right to holy days. Abbot Richard de

Kedyngton (r. 1308-1315) whose duties included overseeing the abbey’s estates,

apparently realized the economic impact of feasts and denied villeins any remittance from

work services on account of a feast.457 The initial response by the villeins to this policy

is unknown. However, the policy seems to have generated great resentment against the

abbot. Though Kedyngton did not make an exception for even the major feasts of the

year, his successor William de Curtlington (r. 1315-1333) eventually relaxed this policy

to allow villeins two days work remittance at Christmas, Easter, and Whitsun. The

abrupt softening of this policy might have been triggered by villein unrest and pangs of

conscience on the part of Curtlington because he knew he was trampling on the rights of

his villeins. This is illustrated by a 1321 incident in which Curtlington offered to wipe

out outstanding money payments due on each manor stemming from work on the days in

dispute.458 His offer was met with mixed response, as villeins on one manor accepted

while the villeins from the manor of Todenham had an adverse response. The reeve of

457 Barbara Harvey, Westminster Abbey and its Estates in the Middle Ages (Oxford, UK: The Clarendon Press, 1977), 229-231. 458 Barbara Harvey, whose extensive research into the Westminster Abbey archives makes her the foremost expert on the administration of Westminster Abbey’s estates in the Middle Ages, calls the proposal by Curtlington a “peace-offering.” If Harvey’s description is correct, as it seems to be, then this is an indication that the villeins were very upset that they were being prevented from observing holy days by the abbot.

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Todenham, a man named Henry Melksop, refused to show gratitude and was “surly”

towards Curtlington, resulting in the offer being withdrawn.459

This incident demonstrates just how significant feasts could be to peasants.

Curtlington’s offer would have clear financial benefits for the villeins. However, villeins

of Todenham apparently were insulted by it. One possible reason for their misbehavior is that they were upset that their right to observe holy days was being violated. Acceptance of Curtlington’s offer would wipe-out outstanding debts, but perhaps would also have meant that the villeins would be abandoning the claim that the holy days were theirs to begin with. Essentially, Todenham’s villeins may have been taking a stand on principle.

In lieu of the fact that the policy to deny work remittance on feasts had been in effect for several years, it certainly appears that the villeins believed they were entitled to refrain

from work on feasts and deeply resented having to do otherwise. Based upon the length

of time which had elapsed while this policy was in effect, there is also the possibility that

the villeins believed their right to holy days derived from something other than custom.

After all, some variation of the policy had been in effect for at least six years in 1321.

Would the villeins claim a customary right that had not been a custom for six years?

Perhaps, but the actions of Melksop are more understandable if the villeins had

considered their right to holy days to be a natural right not undermined by lapses in

observance as customary rights are. The villeins may have not fully understood all the

intricacies of natural law or even have used the term “natural law,” but they still seem to

459 Westminster Abbey Library, Westminster Abbey Muniment (WAM) 8356. Harvey, Westminster Abbey and its Estates, 231.

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Texas Tech University, Justin Scott Kirkland, May 2013 have believed that they had a right to holy days that was more than custom.460 It is possible that at least part of the scholastic ideas about the relationship between the right to holy days and natural law had trickled down into popular society, which would not be unexpected since elite culture frequently spread to the rest of society. Furthermore, prosecutions of masters for making their servants work on holy days would not go unnoticed by villeins, undoubtedly influencing the way they saw holy days.461

Yet customary aspects of feasts are evident in the particulars of local observance.

Although ecclesiastical decrees were quite explicit concerning which feasts were to be universally observed, they allowed a great deal of latitude to localities concerning how to celebrate feasts, such as whether to hold parades or give gifts. Thus, local variations or customs were allowed to flourish, as long as they were not in violation of the general prohibitions, like servile work, or considered to be of an “unchristian” nature, such as the

Feast of Fools.462 An obvious illustration of the customary side of holy days is the feast decreed to the dedication of the parish church. This general feast was allotted in the decrees of the Roman Church, thereby giving it a universal basis apart from custom, yet

460 For a few observations about how knowledgeable peasants were concerning law, see Paul R. Hyams, “What did Edwardian Villagers Understand by ‘Law’?” in Medieval Society, 88-99; Lloyd Bonfield, “What Did English Villagers Mean by ‘Customary Law’?” in Medieval Society, 110, 113-114. 461 This is illustrated by a 1584 Oxford case in which a Tobias Yates and his wife were summoned for failing to attend mass on multiple occasions. Tobias admitted that he sometimes missed mass, but defended his absence by explaining he was “called to gentlemen to looke vpon woorck, but never willfullie doeth forbeare the church.” Apparently the court was unimpressed with his defense since there is no evidence that the “gentlemen” who engaged his labor services were brought in for questioning, suggesting that Yates attempted to manipulate the court and avoid amercement by referencing the “gentlemen” who called upon him for work since canon law theory maintained that the master who forced his servants to work was entirely responsible. Unfortunately for Yates, it seems likely that he was hired laborer, and thereby a free man without a clear master, since he indicated that he had worked on holy days for multiple “gentlemen.” See The Archdeacon’s Court: Liber Actorum, 1584, vol. II, ed. E. R. Brinkworth, The Oxfordshire Record Society, vol. 24 (Oxford, UK: Bergess & Son, 1946), 167. 462 For the argument that, despite the misguided objections of clergymen, the Feast of Fools was not really blasphemous and unchristian, see Max Harris, Sacred Folly: A New History of the Feast of Fools (Ithaca, NY: Cornell University Press, 2011).

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the very nature of the feast presupposed local variation and custom. Local customs were

given great influence over the specifics of the feast, from the saint chosen as the patron of

the church to the date and particular observances of the feast. Thus, feasts could

simultaneously have both universal and customary qualities. However, the only way in

which a feast could be a natural right was through its universal quality because natural

law, unlike custom, applied to more than just a single locality. Thus, if the right to feasts

emanated from custom, then the decrees issued by the Roman Church would not make

general prohibitions concerning things like servile work or how long a feast day lasts but

leave those issues to the discretion of localities. Since that is not what the primary

sources show, the right to feasts did not truly emanate from custom.

The Question of Renunciation

Canonists did not believe that major feasts could be permanently renounced by

any temporal authority without just cause. This was very important. If a major feast

could be renounced by a temporal authority, or even by the pope, then a person would not

really have a natural right to that feast.463 An individual’s legal right to the holy days

would be at the pleasure of the promulgator of the law. However, since canonists

anchored the major feasts in natural law, no temporal authority had legitimate power to

renounce them.

Since not all feasts were based in natural law, the question of which ones could be renounced raised a serious question about the limits of the power of temporal authorities.

The canonists generally distinguished between three types of feasts. The first class of

463 Frederic William Maitland, Roman Canon Law in the Church of England: Six Essays (London: Methuen & Co., 1898), 11-12.

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festivals was called solemnes (solemn) and considered to be introduced for the reverence

of God (ob reverentiam Dei). This is the class which included all of the major religious feasts, those considered to be grounded in natural law. The second class was feriae rusticae (country/customary festivals) and said to be introduced for the necessity of laborers. These seem to have been customary feasts which fell around sowing or harvest times to allow agricultural workers a brief rest. The third class was feriae repentine

(sudden festivals) which were established by the prince (princeps) and referred to events such as coronations.

Canonists were in common agreement that the first category of feasts could not be renounced. Johannes Andreae (ca. 1270-1348), a canonist at the Bologna school who had as tremendous an impact on canon law as Hostiensis, said of the first type of feasts,

“Solemn festivals are those which were introduced for the reverence of God and the

saints, so that they are days of feast which the people are accustomed to

celebrate…Therefore legal entities are not able to renounce them.”464 Both Monaldus of

Justinianople (d. 1332), a Franciscan canonist and Archbishop of Benevento, and Angelo

Carletti di Chivasso (1411-1495), a Franciscan canonist from Milan also known as

Angelo Clavasio, concurred that the first class of feasts could not be renounced.465 The

464 Johannes Andreae, Ordo Iudiciarius, ed. Gregorius Samutholanus (Venice, Italy: Sub Signo Pauonis, 1573), 21: Solennes ferie sunt, que introductae sunt ob reuerentiam Dei & sanctorum, vt sunt dies festi quos populus solet celebrare…Quia his feriis partes non possunt renunciare. 465 Monaldus, Summa perutilis atque aurea vemerabilis viri fratris Monaldi in vtroque iure tam ciuili: quamque canonico fundata, ed. Petrus Baleti (Lyons, France: Petrum Baleti, 1516), fo. LXXVI, col. II: “Other festivals are said solemn to the honor of God others by human necessity are introduced first for reverence of days in which it has to be ceased by all from servile work nor ought cases to be deliberated. Because they are not able to renounce these parts unless necessity or compassion may implore it nor judement ought to be made on these.”: Ferie alie dicuntur solemnes ob honorem die aliae ab necessitatem hominum prime introdunctur ad reuerentiam dierum in quibus cessandus est ab omni opere seruili nec cause agitari debent. Quia hiis partes renunciare non possunt nisi necessitas vel pietas id exposeat nec in hiis sententia feri debit.

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opinions of these canonists appears to have been based upon a decretal from Gregory IX

and its gloss which cited a case where the pope declared that legal cases could not be

decided during a holy day, even with the consent of both parties involved.466 The gloss

on the decretal was very clear that there was no temporal power which could abolish a

major holy day, saying, “festivals introduced for the reverence of God, no one is able to

renounce, unless necessity or piety indicates otherwise.”467 Though none of the canonists

specifically stated these feasts were grounded in ius naturale, it appears that they

believed they were since nobody could renounce them. Monaldus was silent on whether

the third class of feasts could be renounced, but Carletti and Andreae agreed that it could,

because the source of these feasts was the prince, who was a temporal authority able to

make or unmake human law (though not natural or divine law).

There was, however, some disagreement as to whether the second class of feasts

could be renounced. Andreae and a glossator of De Feriis in the Decretals of Gregory IX

believed that they could be renounced, while Monaldus and Carletti believed that they

could not. Their differing conclusions seem to have been based upon differing

interpretations of the legal basis for feriae rusticae.468 Andreae clearly believed that they

were grounded in human law (hominum ius), just as the third class was. As such, they

were considered to be from man instead of God and therefore able to be renounced since

Angelo Carletti di Chivasso (Angelo Clavasio), Summa Angelica de Casibus Conscientialibus, ed. Iacobi Ungarelli (Venice, Italy: Iacobus Ungarelli, 1569), 260, col. IV: “Whether parties are able to renounce the said festivals. Respon. To the first and second no, to the third yes”: Vtrum partes possint renunciare dictis feriis. Respon. quod primis & secundis non tertiis sic. 466 X. 2.9.5. See the gloss in Decretales Gregorii Papae IX. Suae integritati una cum glossis restitutae, ed. Pope Gregory XIII (Rome: In aedibus Populi Romani, 1582), 598-599. 467 See the gloss in Decretales Gregorii Papae IX. Suae Integritati una cum Glossis Restitutae, 598-599: ferijs introductis ob reuerentiam Dei, nullus potest renunciare, nisi necessitas vel pietas aliud inducat. Item necessitas vel pietas non est sub lege. 468 The difference may have also arisen from the fact that Andreae was primarily focused on festivals in relation to court trials, whereas Monaldus and Carletti took a more general approach in their discussions and dealt with a variety of issues, including servile work and judicial proceedings.

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human law could be renounced by the authority that created it. As a decretal issued by

Gregory IX declared, “legal parties can renounce feasts introduced by the desire of

man.”469 Though it is not certain, it seems that Monaldus and Carletti based their

positions on the second class of feasts upon the role that necessity played. As has been

demonstrated previously in this chapter, individuals had a right based in natural law to

fulfill their necessities. Thus, it seems that the conclusions of Monaldus and Carletti

differed from Andreae’s conclusion about the second class of feasts because they were

struck by the necessity of these feasts. Nevertheless, since feasts based in human law

were able to be renounced, the first class of feasts must have been grounded in a higher

law which no temporal authority could abrogate, such as natural law, in order to explain

their inability to be renounced.

As has been demonstrated, most canonists readily accepted that there were solemn

feasts of the calendar, celebrated ob reverentiam Dei, which were based in natural law.

However, insight into how feasts were decreed by God is ascertainable from other

sources, such as hagiography. As seen in a dream from the life of Juliana of Mont-

Cornillon (1193-1258), “There appeared to her the full moon in its splendour, yet with a

little breach in its spherical body…Then Christ revealed to her that the moon was the

present Church, while the breach in the moon symbolised the absence of a feast [Corpus

Christi] which he still desired his faithful upon earth to celebrate…and commanded her

that she herself should inaugurate this feast and be the first to tell the world it should be

instituted.”470 Clearly, God had a list of certain feasts, undoubtedly the major ones,

469 X. 2.9.5: feriis tamen introductis favore hominum partes renunciare possunt. 470 The Life of Juliana of Mont-Cornillon, ed. Barbara Newman (Toronto, Canada: Peregrina Publishing Co., 1999), 83-84.

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which he wanted the temporal church to acknowledge, ordain, and celebrate. John

Bromyard and the fifteenth century Speculum Sacerdotale also indicated God had certain

feasts which he wanted to be celebrated.471 It was logical for medieval people to accept

that God had a list of feasts he wanted celebrated because the ancients had believed their

pagan gods also wanted certain feasts observed. The canon law did the same thing with

Christian feasts. The Church’s list of red-letter days was binding upon Christians

because it was God’s will and there was no other choice but to accept it. As such, only

God had the authority to make changes to the major solemn feasts since they were

decreed by him. In this frame of thought, the militant church, or the temporal church,

was not the originator of particular holy days, but only the institution which transmitted

what God wanted in terms of feasts.472 This concept fits with the medieval concept of the

pope as “Vicar of Christ” who was only running Church matters until the return of Christ

to his proper place as head of the Church.

The ability to renounce some feasts became an important issue in the late

fourteenth century and remained so throughout the Reformation. Some individuals, such

as Jean Gerson,473 Nicholas of Clémanges (ca. 1363-1437),474 and William Durand the

471 John Bromyard, Summa Praedicantium, vol. I, 279, col. 2: Ad quae dignet tenenda multiplex, nos obligat ratio. Quarum prima ex parte accipitur diuinae voluntatis, qua sicut Deus voluit templa, ecclesias, & decimas, & huiusmodi, sibi dedicari, & in eis, & ab eis honorari, & laudari. Ita voluit sibi, & suis sanctis aliqua tempora, & dies dedicare, vt in eis laudaretur, & honoraretur. Speculum Sacerdotale, ed. Weatherly, 2: [Priests] ben ordeyned openly to schewe, and for to declare schortly some myracles that perteyneth vn-to the festes that the peple of God may be lyghtenyd with vnto the knowlige of sothfastness. For more hagiographical accounts indicating that God wanted certain feasts to be observed, including several for the Blessed Virgin Mary, see Ward, Miracles and the Medieval Mind, 158-160. 472 Psalms 117:24: “This is theday the Lord hath made.” See also William Durand, Guillelmi Duranti Rationale Divinorum Officiorum: VII-VIII 7.1.17, ed. Davril, Thibodeau, and Guyot, 15-16: Sollempnes uero seu festiui dies sunt in quibus a quolibet opera seruili…abstinendum est et diuinis laudibus insistendum…Celebritas uero uocatur quia non ibi terrena sed solum celestia aguntur. 473 Rodgers, Discussion of Holidays, 92-93.

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Younger (ca. 1266-1330),475 complained that since people frequently spent holy days

involved in sinful activities rather than pious observation, making those days more

injurious to their souls and grievous to God than normal days, it would simply be better

to reduce the number of holidays because that would actually make God and the saints

less angry. However, none of them sought to get rid of all feasts or even any of the major

ones. They did not doubt that God had decreed that the major feasts be observed, but

they were skeptical about whether some of the minor local feasts were really divinely

ordained, blaming them for degrading the piety of the people on the high holy days.

Essentially, they believed there had been an excessive accumulation of a number of feasts

over time which had surpassed the natural requirement needed by individuals. Just as

excessive eating or drinking was harmful to the physical well-being of an individual,

having too many festivals was harmful to the spirit because it tended to lead to idleness

and sin.476 Therefore, according to the theory of the holiday reformers, decreasing the

number of festa ferianda would do much to alleviate the desecration of holy days because

it would help restore the proper balance between pious rest and labor.477 Of course, the

Church refused to act, likely because it did not want to become entangled in trying to

distinguish which feasts—particularly those categorized as secondary or tertiary feasts

since the primary ones were untouchable—should be observed and which ones should be

474 Nicholas of Clémanges, “De nouis celebritatibus non instituendis,” in Nicolai de Clemangiis Catalavnensis, Archidiaconi Baiocensis, Omnia Opera, ed. Iohannes Martini Lydius (Leiden, Netherlands: Iohannem Balduinum, 1613), 143-160. 475 William Durand the Younger, Tractatus de Modo Generalis Concilii Celebrandi, Per Guillelmum Durandum, Episcopum Mimatensem Iussu Clementis Quinti Summi Pontificis Editus, & Concilio Viennensi Oblatus (Paris: Franciscum Clousier, 1671), 180-185. 476 This balance between idleness and rest was a constant theme in medieval writings. It is notably similar to the stance of many Greek philosophers, such as Aristotle, in regard to the balance between deficiency and excess. See Aristotle, “Nicomachean Ethics,” [1104a1]. 477 Rodgers, Discussion of Holidays, 81-86.

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Texas Tech University, Justin Scott Kirkland, May 2013 renounced at the risk of not only alienating God and his saints but also the people.478 In fact, in the Late Middle Ages, not only did the Church refuse to renounce some minor feasts, but it actually expanded the number of holy days, even adding Corpus Christi as a universal feast.479 In late medieval England the feasts of the Transfiguration, the

Visitation, the Name of Jesus, St. George, and St. Anne all became major holy days.480

Unsurprisingly, these were popular decisions with the people. Not only were the laity receiving more days off from work, but their right to holy days was expanded with each new double feast.

In England, it was not until Henry VIII (r. 1509-1547) that the policy of the church and government towards feasts was fundamentally altered, largely due to the influence of Protestant ideas and changing economic realities.481 Even before the Act of

Supremacy was issued in 1534 to officially break English ties with the Church of Rome, there had been an attempt to decrease the number of feasts.482 In 1536 Henry,

478 The Council of Constance (1414-1418) noted the need for reform of holy days, but adopted no new legislation or policy. See Council of Constance, “Pars XII. Reformatorii in Concilio Constantiensi Decretales de Ecclesiastici Status Reformatione,” in Rerum Concilii Oecumenici Constantiensis de Universali Ecclesiasticæ Disciplinæ Reformatione, vol. I, ed. Hermannus von der Hardt (Frankfurt, Germany: Officina Christiani Genschii, 1697), 733-736. 479 Miri Rubin, Corpus Christi: The Eucharist in Late Medieval Culture (New York: Cambridge University Press, 1992). 480 R. W. Pfaff, New Liturgical Feasts in Later Medieval England (London: Oxford University Press, 1970); Richard W. Pfaff, The Liturgy in Medieval England: A History (New York: Cambridge University Press, 2009), 437-438. 481 By the early sixteenth century, economic development in England made it untenable to continue following the old medieval calendar with all its feasts. As a result of the rationalization of the economy during the late medieval depression, new conceptions of time appeared, along with emphasis on keeping only the Sabbath as a holy day. See Christopher Hill, Society and Puritanism in Pre-Revolutionary England (New York: Schocken Books, 1964, 146-148; E. P. Thompson, “Time, Work-Discipline, and Industrial Capitalism,” Past & Present, no. 38 (December 1967): 56-97; David Harris Sacks, “The Demise of the Martyrs: The Feasts of St. Clement and St. Katherine in Bristol, 1400-1600,” Social History 11, no. 2 (May 1986): 141-169; David Harris Sacks, The Widening Gate: Bristol and the Atlantic Economy, 1450- 1700 (Berkeley, CA: University of California Press, 1993). 482 A document likely from the royal court, though alleging it was issued at the insistence of the Commons, urged the king to curtail the current number of holidays because “many great, abominable, and execrable

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simultaneously the king and the head of the Church of England, officially renounced all

feasts which were not festa ferianda as well as some which were, citing them for:

increasing participation in sinful activities, superstition, and being “prejudicial to the

common weal.”483 While Henry’s actions may first appear to be a complete rejection of

the right to feasts, it is not entirely so. Since Henry believed he was a “true” Catholic and

“Defender of the Faith,” he needed a legitimate basis to renounce feasts and found it in

calling the renounced feasts a “holy-day instituted by man.” Even a king could not

legitimately renounce something which God had ordained, but he could legitimately

renounce something made by man. The feasts which survived the abrogation did so

because they were recognized by Henry as the only holy days which people had a right

to, those divinely instituted in Scripture.484 As he explained in a letter, “considering the

manifold inconveniences, which was ensued and daily do ensue to our subjects by the

great superfluity of holydays; we have…abolished such as be neither canonical nor meet

to be suffered in a commonwealth.”485

The “Henrician religious revolution,” including the dissolution of the monasteries

in addition to the abrogation of holy days, infuriated most of the people, with the

vices, idle and wanton sports, be used and exercised…[on] holy days.” According to the document, fewer holidays would cause the remaining holidays to be “more devoutly, religiously, and reverently observed, to the laud of Almighty God.” See “The Petition of the Commons, A.D. 1532,” in Documents Illustrative of English Church History, 145, 150-151. Though the editors date the petition to 1532, according to Neale, Feasts and Fasts, 177, and Rodgers, Discussion of Holidays, 117, it is from 1536. 483 “The King’s Injunctions, Restricting the Number of Holy-Days,” in John Foxe, The Acts and Muniments of John Foxe: A New and Complete Edition: With a Preliminary Dissertation by the Rev. George Townsend, vol. V, ed. Stephen Reed Cattley (London: R. B. Seeley and W. Burnside, 1838), 164-165. 484 The good intentions of Henry are evident in a later act in which he noted that St. Luke, St. Mark, and St. Mary Magdalene had been wrongly renounced as their names were found “many tymes mentioned in playne and manifest Scripture,” which was a big step for Henry considering his enormous ego. Concilia Magnae Britanniae et Hiberniae, ab Anno MCCCL. ad Annum MDXLV, vol. III. Edited by David Wilkins (London: R. Gosling, F. Gyles, T. Woodward, and C. Davis, 1737), 859-860. 485 Concilia, III, ed. Wilkins, 824.

180 Texas Tech University, Justin Scott Kirkland, May 2013 exception of radical Protestants, and provoked several great rebellions. This resulted in popular uprisings across the realm but especially in the north, such as the 1536

Pilgrimage of Grace in York, and Bigod’s rebellion in Cumberland and Westmorland.

The abrogation of holy days was one of the issues that played a major role in provoking the uprisings, especially in Lincolnshire.486 Not only did the rebels object to the attack on traditional religion and to the interference of the royal government into their communities, but they also realized that it was a direct assault on their holy days.487

The strongest evidence is found in the multitude of sources which show that regions just outside the immediate reach of royal forces continued to observe the traditional feasts which Henry had tried to end.488 A transcript of a conversation between

486 Duffy, Stripping of the Altars, 394-396. The priest of Byrchforde in Lincolnshire, Nicholas Leche, was afraid the “commons” would slay him if he preached that they could work on the former holy days. See Lincolnshire Rebels in the Tower, no. 70 in Letters and Papers, Foreign and Domestic, Henry VIII, Volume 12 Part 1: January-May 1537, ed. James Gairdner, Institute of Historical Research (1890). http://www.british-history.ac.uk/report.aspx?compid=103352 (accessed July 21, 2012). 487 See Ethan H. Shagan, Popular Politics and the English Reformation (Cambridge, UK: Cambridge University Press, 2003), 55-59. As Muriel C. McClendon said about the continued observance of St. George’s feast in Reformation England, “the persistence of Saint George represented practically everything except the continuation of tradition.” See Muriel C. McClendon, “A Moveable Feast: Saint George’s Day Celebrations and Religious Change in Early Modern England,” Journal of British Studies 38, no. 1 (January 1999): 27. There is clear evidence that at least some of the rebels believed that the holy days were theirs, as witnessed by the usage of possessive pronouns in relation to holy days. For instance, one record states that a diocese in Cornwall wished to have a banner made which would depict the “commonality” kneeling and praying to Christ that “it would please the King's grace that they might have their holidays.” See Sir Will Godolghan to Cromwell, no. 1001 in Letters and Papers, Foreign and Domestic, Henry VIII, Volume 12 Part 1: January-May 1537, ed. James Gairdner, Institute of Historical Research (1890). http://www.british-history.ac.uk/report.aspx?compid=103372 (accessed July 21, 2012). For a discussion about the usage of possessive pronouns with holy days, see Chapter III. 488 Cranmer wrote in a letter to Cromwell, “Since coming from London into Kent has found the people very obstinate to observe their holidays lately abrogated, and perceiving that their curates animated them thereto.” See Cranmer [to Cromwell], no. 592 in Letters and Papers, Foreign and Domestic, Henry VIII, Volume 12 Part 2: June-December 1537, ed. James Gairdner, Institute of Historical Research (1891). http://www.british-history.ac.uk/report.aspx?compid=75711 (accessed July 21, 2012). The priest of the town of Rye, William Enold, “caused a great disturbance at Rye by railing "upon many honest men there, calling them heretics…boasting "that their old fashions should still flourish"; keeping "high and holy in the Church certain idell holy days lately abrogated," as St. Anne, the Transfiguration of our Lord, and the feast of the Name of Jesu; some of them as though they had been the highest days in the year, with solemn ringing, singing, procession, decking of the church… saying "that they that have the New Testament in their hands have a sword," and are clean out of the right way.” See

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John Tutton and Thomas Poole further indicates that commoners believed they had a right to holy days. Initially, Tutton called Poole a heretic for laboring on the abrogated feast of St. Mark, then “Poole replied that it was the King's commandment, and Tutton said he was not bound to keep the King's commandment, if it were naught as that was, adding that lord Cromwell was a stark heretic and all his witholders…Tutton said: ‘Shall

I obey the King's commandment, an it be naught? Marry, I will not. Marry, many things be done by his Council which I reckon he knoweth little of…there is a sort that ruleth the

King of whom I trust to see a day, and that they shall have less authority than they have.’”489 Apparently, Tutton vehemently believed that the source behind the commandment, whether the council or the king, did not have the authority to propagate such a law, and so no one was legally bound to follow it. This view indicates that some commoners believed they had a right to holy days which neither the king nor the archbishop of Canterbury could abrogate.490

Another record, from Norfolk, further attests to the fact that people believed they had a right to feasts which the proclamation from the king and his advisors was unable to

Thomas Legh, LI.D., to Cromwell, no. 505 in Letters and Papers, Foreign and Domestic, Henry VIII, Volume 12 Part 2: June-December 1537, ed. James Gairdner, Institute of Historical Research (1891). http://www.british-history.ac.uk/report.aspx?compid=75710 (accessed July 21, 2012). 489 In a theme repeatedly demonstrated throughout the early modern period in England, the disaffected people blamed the king’s evil advisors (namely Cromwell in this instance), not the king himself, for the objectionable policies. See Thomas Clerk to Cromwell, no. 567 in Letters and Papers, Foreign and Domestic, Henry VIII, Volume 12 Part 1: January-May 1537, ed. James Gairdner, Institute of Historical Research (1890). http://www.british-history.ac.uk/report.aspx?compid=103362 (accessed July 21, 2012). 490 Shagan, Popular Politics, 55. In a letter, the Bishop of Exeter John Veysy (r. 1519-1551, 1553-1554) complained of adherence by fisherman and shoesmiths, as well as general laborers, to the holidays which had been abrogated by the king. See Concilia, III, ed. Wilkins, 846. People continued to cling to traditional feasts into the seventeenth century. In 1633 Bishop William Piers of Bath and Wells (r. 1632-1670) composed a letter to Archbishop William Laud of Canterbury (r. 1633-1645) detailing the sentiments of the people of Somerset: “I find also that the people generally would by no means have these feasts taken away…they said they would endure this judge’s penalties rather than they would leave off their feast days.” William Piers, “Bishop Piers’s Report on Somerset Parish Feasts, 1633,” in Religion & Society in Early Modern England: A Sourcebook, ed. David Cressy and Lori Anne Ferrell (New York: Routledge, 1996), 150.

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touch. According to the record, Harry Jervys admitted before the justices that he had said

that “he wished the Yorkshire men had prospered that the suppressed holydays might

have been restored.”491 The wording of this statement, specifically the phrase “the

suppressed holydays,” reveals that Jervys believed that the law had not abolished some of

the holy days, just suppressed them. In other words, the holy days and canons

accompanying them, including the prohibition of servile work, were still in existence,

even if celebrating them was against the unjust man-made statutory law of Henry VIII.

Throughout the sixteenth and seventeenth centuries Protestants continued their assault on holy days, particularly the “superstitious” saints’ feasts, while elevating respect for the Sabbath to a new level.492 However, as has been demonstrated by historian

Kenneth L. Parker, the sabbatarianism of the Protestants was really nothing other than a

continuation of the sabbatarianism movement which Eustace of Flaye epitomized.493 The major difference between medieval and reformation sabbatarianism was the emphasis of the literal reading of scripture by Protestants and their rejection of the validity of any other holy days not evident in the New Testament. Most Protestants did not dispute that there was a right to holy days (primarily the Sabbath), they just believed that there was only a natural right to “real” holidays, which excluded the unfounded “superstitious” saints’ feasts. They basically appropriated the arguments used by medieval writers for

491 Sedition in Norfolk, no. 150 in Letters and Papers, Foreign and Domestic, Henry VIII, Volume 12 Part 2: June-December 1537, ed. James Gairdner, Institute of Historical Research (1891). http://www.british- history.ac.uk/report.aspx?compid=75702 (accessed July 21, 2012). 492 Peter Burke, “Festivals,” in The Oxford Encyclopedia of the Reformation, ed. Hans J. Hillerbrand, 13 vols. (Oxford, UK: Oxford University Press, 1996), 2: 103-106; C. John Sommerville, The Secularization of Early Modern England: From Religious Culture to Religious Faith (New York: Oxford University Press, 1992), 33-43; John H. Primus, “The Dedham Sabbath Debate: More Light on English Sabbatarianism,” The Sixteenth Century Journal 17, no. 1 (Spring 1986): 87-102; Richard L. Greaves, “The Origins of English Sabbatarian Thought,” The Sixteenth Century Journal 12, no. 3 (Autumn 1981): 19-34. 493 Parker was not the first scholar to make this argument. See also Coulton, Medieval Village, 254-255.

183 Texas Tech University, Justin Scott Kirkland, May 2013 holy days, applied the arguments to defend the right to the Sabbath, and emphasized the

Sabbath at the expense of other holy days. The right to holy days was not invalidated in the early modern era, its scope was merely diminished with the loss of the abrogated holy days.

Conclusion While modern scholars have tended to overlook the medieval right to feasts, it did exist and had tremendous implications for every single Christian in Western

Christendom. The key component in understanding the right to feasts is the prohibition of servile work. Without the servile work prohibition to get peasants out of their normal everyday obligations to their lords, there could be no right to feasts. Though the canons concerning feasts were frequently violated, and there were a substantial number of lords who forced their villeins to work on holy days, a right to feasts did exist, nevertheless.

Just because some authorities infringed upon the rights of their peasants does not mean that the rights did not exist. In the modern world there are numerous examples of dictators in underdeveloped countries blatantly infringing upon the rights of their subjects, yet very few, if any, would argue that those people do not have any human rights just because their rights are not being respected.

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Chapter VI Epilogue

In an 1880 academic journal, Leonard Bacon wrote an article in strong defense of

the institution of the Sabbath.494 The most interesting point of Bacon’s argument was his

uncompromising assertion that the Sabbath was a right of every individual, saying, “one

day consecrated to rest from labor…[is] in the interest of workingmen…That rest is for

them. It is their privilege. He who, under any pretense, or by inducement, would deprive

them of it, is their enemy…whether by a divine ordinance or by a beneficial and

immemorial usage [it] is really their right.”495 In most respects, Bacon’s composition

could have served as an unintentional summary of medieval ideas concerning holy days.

Holy days were considered a natural right in the High Middle Ages. Their

characterization as a natural right was entirely dependent upon the acceptance of the idea

of natural rights, which only happened fully with the development of western legal

science in the twelfth and thirteenth centuries. The right to holy days was basically the

right of all (or at least most) in society to observe without impediment the holy days

appointed by God and ordained by the Church. The essential components which made

this into a right were the ability to refrain from servile work ordered by an authority

figure and to not be tried in a court of law on a holy day. Prohibiting executions on holy

days meant that though the condemned prisoners might be facing a date with the

executioner, they would still be allowed to observe a holy day because the execution

494 Leonard Bacon, “The Observance of the Sabbath,” The North American Review 131, no. 287 (October 1880): 323-324. 495 Bacon, “Observance of the Sabbath,” 327.

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could not occur on that day. Prohibition of servile work on feasts allowed both free and

unfree the ability to refrain from daily works and participate in the divine mass, while

attempting to prevent coercion by the powerful.

Holy days were uniquely suited to characterization as a natural right due to the

canons of the Church. The Early Church largely drew on pagan Roman religious

tradition in propagating decrees instructing the faithful on how to properly observe feasts,

creating canons which directed the trajectory of the feast policies pursued by the

medieval Church. Secular commercial business, legal matters, and servile work were all

activities generally held as taboo during pagan Roman feasts. Just as the Early Church

incorporated pagan feast aspects into Christian feasts, Anglo-Saxon kings drew upon

preexisting Roman Church decrees for their feast legislation. Under the idealized

legislation of the Early Church and Anglo-Saxons, it is easy to see how holy days could

easily become recognized as a right. An individual was guaranteed the ability to observe

holy days, while masters who made their servants work were to be punished. Yet though

these laws may appear to be evidence of the right to holy days in the Early Middle Ages,

they are not. Before the jurists and canonists began studying and emphasizing natural

rights in the twelfth century, these regulations really had no meaning for the majority of

society. Neither the Early Church nor the Anglo-Saxon kings had an effective legal system to ensure that people were allowed to observe holy days. Furthermore, these regulations could simply not emerge as rights until the advent of the idea of natural rights, which only occurred in the late twelfth and thirteenth centuries.

With the development of legal science in the twelfth and thirteenth centuries, the right to observe feasts emerged in the summae of jurists. For the first time, legal theories

186 Texas Tech University, Justin Scott Kirkland, May 2013

and concepts were applied to feasts and a complex legal rationale for their observance

was formulated. The issues of feast renunciation, marriage, and necessity were discussed

as a result of this new conceptualization of holy days. Due to the popularity of natural

law at the time, scholastics attributed the legal basis of holy days to the law of nature.

Not only were holy days susceptible to being considered a right due to their connection

with ius naturale, but the preexisting regulations concerning abstention from servile work and court trials encouraged scholastics to see holy days as a right applying to everyone.

The formation of a real legal system during the twelfth and thirteenth centuries

also played a significant role in the development of the right to holy days, as an

increasingly complicated system of courts could protect rights. In England it seems as if the ecclesiastical court system came to have sole jurisdiction over feast infractions, though this may also have been the case in many other places across Europe.

Ecclesiastical authorities not only sought to ensure that people properly observed the holy days, but they also attempted to protect the rights of all, including the peasants, by going after masters who made their servants work. Authorities demonstrated a willingness to pursue cases against powerful lords because they recognized that the main issue at stake

was whether everyone had a right to holy days. By pursuing cases against lords, they

affirmed this to be so. The extra punishment assigned to convicted lords, in comparison

to the punishment assigned to offenders from the rest of society, was due to the

infringement of their servants’ right to abstain from work on a holy day.

While the laity may have been largely ignorant of the complex legal theorems

formulated by the scholastics, they still had some conception that even the lowliest

among them had a right to holy days. The willingness of ecclesiastical authorities to go

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after coercive lords would not have gone unnoticed. Most laymen may have not had a

good understanding of natural law and natural rights, but nevertheless they believed that

they had a right to feasts which they sought to protect and exert. The fervor of the

peasants witnessed in the accounts from Westminster Abbey certainly suggests that they

were acting to protect their right to holy days. Further evidence is seen in the multiple

accounts that show attempts by peasants to have authorities recognize days surrounding

certain feasts, even though there really was little legal basis for such policies.496 The peasants knew they had a right to feasts and wanted to be able to exert their right on more days, amounting to an expansion of their rights.

Why Holy Days Were Not Explicitly Called Natural Rights

The tendency to overlook the status of holy days as natural rights is not a new

phenomenon. Just as modern writers have written very little about the status of holy days

as natural rights, so did medieval writers. It seems few primary sources explicitly state

holy days were natural rights. This brings up the question: if few medieval sources

explicitly state holy days were natural rights, then why should they be considered natural

rights? The answer lies in the traditional treatment of holy days in early medieval

sources.

As has been demonstrated in the second chapter of this academic study, holy day

regulations created in Late Antiquity (ca. 2nd-8th centuries) and the Early Middle Ages

496 Court Rolls of the Abbey of Ramsey and of the Honor of Clare, ed, W. O. Ault (New Haven, CT: Yale University Press, 1928), 210: Omnes custumarii de Wystowe et Rauele supersedebant arrare domino in septimana proxima post Natuitatem beate Marie et dicunt se non debuisse arrare in illa septimana et inde ponunt se in registro et si super hoc conuicti fuerint ponunt se in misericordia, plegius alter alterius. Ideo preceptum est querere registrum citra proximam curiam.

188 Texas Tech University, Justin Scott Kirkland, May 2013 were especially conducive to being configured into rights, once the idea of natural rights took hold. However, the sources produced in this era did not touch upon the topic of natural rights in conjunction with holy days because there was no concept of natural rights yet. In fact, the early medieval writers were far less concerned with natural law than their successors. With such a lengthy written tradition about feasts predating the development of natural rights theories, the later medieval scholastics continued to write about holy days in much of the same manner as did their intellectual forefathers. Thus, ius naturale (natural right), because it was not to be found in early medieval sources about holy days, was not usually explicitly stated in discussions about feriae. The later medieval jurists also considered holy days to be a natural right which was so obvious that it did not need to be explained. Everybody clearly had a right to observe holy days because the law of nature said they did. Such a conclusion was not only ascertainable through reason, but also through divinely inspired canons and Scripture. Furthermore, until the Protestant Reformation there was no serious challenge about whether the right existed. Masters may have infringed upon the rights of their servants but they do not seem to have questioned the legitimacy of the right in court, possibly because it would have been futile.

Another reason which caused medieval writers to refrain from explicitly identifying holy days as natural rights was the lack of concern with feasts. The issue of holy days repeatedly took a backseat to issues of greater immediate concern. The Anglo-

Saxon kings may have placed special emphasis on the issue of holy days in their legislation, but the Anglo-Norman kings were far more concerned with other issues, such as building an administrative bureaucracy in England and fighting Scotland and France.

189 Texas Tech University, Justin Scott Kirkland, May 2013

Their negligence of the issue of feasts seems to have allowed the ecclesiastical courts to

gain sole jurisdiction over such offenses, an extremely rare instance of English kings

ceding jurisdictional power to ecclesiastical authorities without a huge fight. This lack of

concern was not only limited to secular governmental officials, but pervaded society until

the start of the thirteenth century and the arrival of Eustace of Flaye. It was no accident

that a sudden interest in feasts and their observance emerged in the early thirteenth

century, for this was a time when legal science was developing at breakneck speed and a

legally-conscious public began to demand the expansion and acknowledgement of their

rights and liberties by authorities.497 Holy days drew the attention of medieval people

from the thirteenth century onwards because they were a natural right.

Nonetheless, holy days still received far less attention than other natural rights,

like the right to freedom in marriage and right to due legal procedure before punishment.

This was partially due to the long period when feasts had received little attention from

scholastics. It was also due to fact that it simply was not deemed as important as some of the other natural rights; rightfully so, as some of the other natural rights had the potential to wreak enormous havoc upon society if they were not properly observed. Violating the rights of marriage and due trial could, and did, have serious consequences which impacted society.

The acknowledgement of the right to holy days seems to have found expression in

some of the customs associated with certain feasts. The main custom which could have

expressed this acknowledgement by all of society was the temporary suspension of social

497 Turner, Magna Carta, 21; R. I. Moore, The First European Revolution, c. 970-1215 (Malden, MA: Blackwell, 2000).

190 Texas Tech University, Justin Scott Kirkland, May 2013 roles. This often included the “turning upside-down” of normal society whereby the lower classes would switch roles with their superiors, allowing them the opportunity to demand some sort of symbolic tribute or gift from the leading members of the community.498 This has typically been viewed as a custom which served to demonstrate the unity of the community. However, it is possible that it also symbolized public acknowledgement by civil authorities that even the unfree of society had a right to holy days which could not be abrogated by their lords. This acknowledgement could have been symbolically acted out by the acquiescence of customary tribute from the elites to their lessers at their demand.

The Significance of the Medieval Right to Holy Days

The existence of the right to holy days alters the modern perception of the medieval society in some fundamental ways. While histories of the Middle Ages often harp on the clashes between English rulers and the Church, on the subject of feasts there seems to have been a mutual understanding between both parties that the Church had domain over holy days. This definitely seems to have been the case concerning the

498 This was a custom of St. Katherine’s feast in medieval Bristol. Interestingly, St. Katherine was traditionally associated with guarding the Christian community against unjust authorities. See David Harris Sacks, Widening Gate, 140-147; David Harris Sacks, “Demise of the Martyrs,” 152. In some communities this involved the custom of appointing a “boy-bishop” on the feast of St. Nicholas, whereby a boy acted as a bishop, carrying out priestly duties and ruling over his superiors. See Duffy, Stripping of the Altars, 13-14. This was akin to the custom called the “lords of misrule,” which involved electing a person from the lower classes to preside over Christmas as “king.” See Charles Phythian-Adams, “Ceremony and the Citizen: The Communal Year at Coventry, 1450-1550,” in Crisis and Order in English Towns, 1500-1700: Essays in Urban History, ed. Peter Clark and Paul Slack (London: Routledge & Kegan Paul, 1972), 67-69; Charles Phythian-Adams, “Ritual Constructions of Society,” in A Social History of England, 380-382; Hutton, Stations of the Sun, 95-111; Chris Humphrey, The Politics of Carnival: Festive Misrule in Medieval England (Manchester, UK: Manchester University Press, 2001). These feast customs are relevant to the right. In the words of the French Revolution historian Lynn Hunt, “Political symbols and rituals [including festivals] were not metaphors of power; they were the means and ends of power itself.” Lynn Hunt, Politics, Culture, and Class in the French Revolution (Berkeley, CA: University of California Press, 1984), 54. See also Mervyn James, “Ritual, Drama and Social Body in the Late Medieval English Town,” Past & Present, no. 98 (February 1983): 8-9, 12, 19-20.

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jurisdiction of feast infractions. The noticeable lack of evidence that royal courts ever

heard cases for feast nonobservance strongly suggests that civil authorities were content

to let ecclesiastical courts have free reign over the issue even though there was precedent

to make the argument that Church and state should share the jurisdiction and any

resulting profits from court fees.499 Overall, this suggests that the many kings and

government advisors who came and went throughout the centuries were not completely

power hungry.

The fact that there are multiple records of masters who found themselves before

an ecclesiastical court for making their servants work on a holy day challenges the view

that medieval masters had absolute power over their servants, since they were apparently

expected to respect certain rights of their dependents. Thus, there was a bit more balance

in power when it came to relations between servant and master. Unfortunately for many

medieval servants, there were masters who did not hesitate to violate feast work

prohibitions. Like human rights today, there was a difference between the idealized

world that should have been and the world as it was. In reality whether servants received

breaks from normal labor obligations on all the proper holy days largely depended upon

their master. A good pious master would likely respect the rights of his servants while a

harsh master might scoff at such a notion. However, even a servant under the harshest of

masters would have likely been able to observe some holy days of the year without

working, especially on the major holy days, since masters who resisted faced possible

community hostility and legal consequences.

499 The Leges Henrici Primi was one source which indicated royal and ecclesiastical courts shared jurisdiction and amercements over feast infractions.

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In the Middle Ages, the Church theoretically accepted the role as defender of

oppressed servants, although sometimes there was room for improvement even on

ecclesiastical estates. Medieval servants did not have too many strategies at their

disposal to force overbearing masters to acknowledge their right to holy days other than

organize a strike or uprising. In an era when social unrest was widely disapproved of by

the elite, the ecclesiastical courts played an important role by giving some recourse to servants whose rights had been ignored by their masters. In its prosecution of feast violations, the Church was primarily trying to ensure that even the weak of society were allowed to observe their rights given to them by God and engrained in natural law. After all, Jesus had said that “the Sabbath is made for man and not man for the Sabbath.”500

The role of the Church in relation to feasts was to designate the feasts God wished for his

adherents to celebrate and ensure that the right was not violated by overbearing masters.

Overall, the most important facet that the right illuminates is the agency and

power common people had in the Middle Ages. Their lot in life was hard, but holy days

provided them a much needed break from their mundane work obligations. The right to

holy days favored the servant over the master because it limited the master’s power and

authority while providing the servant with temporary freedom. As such, it is no surprise

that the sabbatarian movement of the thirteenth century originated as a populist

movement. When many high clergymen embraced the movement, they demonstrated

that the voice of common people was an influential force that had to be taken into

account. This was an instance when the “vulgar people” had a direct bearing on English

ecclesiastical and governmental policies, but it may have not been the only one. There is

500 Mark 2:27.

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the distinct possibility that the idea people had a right to holy days—but not necessarily a

natural right—arose from court cases involving peasants. Case law had a tremendous

influence on juristic thought, and cases involving masters who made their servants work

on a holy day may have encouraged jurists to understand holy days as a right of all,

especially if courts tended rule against masters. When courts punished masters they were

acknowledging and protecting the right of servants to observe holy days, whether or not

that was originally their intent. Servants must have felt empowered when their masters

were punished for illicitly making them work because they were actually empowered.

The Influence of the Right to Holy Days on History

The right to holy days exerted influence upon the course of history. The right

found itself between the powerful and weak of society. Because the right to holy days was, obviously, a right that enfranchised the lower orders of society against the demands of the powerful, it was a constant source of contention between servants and lords who resented a limitation to their power. While modern scholars have overlooked the history of the right to holy days, largely because they are not aware of its emergence in the

Middle Ages, social contention over the right explains how certain historical events transpired. As has been suggested in Chapter Five, disagreement between Henry VIII and peasants over the extent of the right, primarily concerning which holy days the right extended to, was one of the main motives behind the outbreak of revolts.501 However,

this occurrence was not the only historical instance over which the right exerted a strong

influence. If viewed with the right to holy days in mind, it becomes readily apparent that

the right was behind several historical events.

501 See pages 179-182.

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The conception of holy days as a right of all, found in the natural law created by

God, made the issue of feasts a powerful political subject capable of escalating minor

disagreements over labor duties into major power struggles because rights were involved.

This came to fruition with the protestant attack on saints’ days. It was not only in

England that the common people realized their right to holy days was under attack from

overzealous Protestants. According to a contemporary chronicler, in 1524 the countess of

Lupfen in Swabia ordered that her tenants gather strawberries, cherries, and snail shells

on a holy day, leading to a revolt by peasants.502 Historians have rightfully questioned

whether being forced to labor on a holy day was the impetus for the revolt.503 However,

they seem to have overlooked the larger issue at stake. If the peasants believed they had

a right to refrain from servile works on feasts, as this study has suggested, then the

ensuing peasant revolt was not primarily caused by a peasant dislike of gathering berries,

cherries, and snails. Rather, it was a desperate response to a systemic attack on their right

to holy days, akin to the English revolts.

Post-Reformation English ecclesiastical courts continued to target masters by

often fining those who forced their servants to engage in servile work on holy days,

perhaps alleviating some of the tension between peasants and lords in a world with fewer

feasts. Based upon statistics from Norwich’s archdeaconry courts, it seems that during

the sixteenth century there was a growing demand to enforce proper observance of holy

502 Valerius Anshelm, “The End of the Rebellion in the Black Forest: Report of the Bernese Chronicler,” in The German Peasants’ War: A History in Documents, ed. Tom Scott and Bob Scribner (London: Humanities Press International, 1991), 301-303. 503 Henry C. Vedder, The Reformation in Germany (New York: The Macmillan Company, 1914), 236-237; Rodgers, Discussion of Holidays, 95.

195

Texas Tech University, Justin Scott Kirkland, May 2013 days, and this extended to violations by masters.504 A 1593 Norwich ecclesiastical court charged James Parnell for “setting his primus comonly to K[?] and work on his holy dais.”505 While in 1633 York one Christian Gill, was cited for “causeing all the Towne of

Mounckton, upon St. Luke’s day, when the people should have bene at prayers, to goe to drive the Moore to bring in his profit.-He said it was the custom.”506 Notably, none of the people forced to work were cited in any of these court records, verifying that they did not receive any official punishment for their actions. Though these cases were separated by three centuries and a major religious schism from Marlowe’s letter, they demonstrate that the medieval legal theory of assigning guilt to masters for coercing servants to work on holy days was still alive and had been accepted by Protestants.507

504 In 1532-1533 there were 19 cases brought for non-observance of holy days but none for working during mass. In 1538-1539 there were 2 for non-observance and 5 for working. In 1549-1550 there were 0 for non-observance and 3 for working. In 1551-1552 there were 6 for non-observance and 1 for working. In 1560-1561 there were 21 for non-observance and 1 for working. In 1569-1570 there were 7 for nonobservance and 33 for working. See Ralph Houlbrooke, Church Courts and the People During the English Reformation: 1520-1570 (Oxford, UK: Oxford University Press, 1979), 278-281. Overall, this data fits the theory postulated by Martin Ingram that from 1570-1640 ecclesiastical courts gradually attempted to improve religious observance, and saw limited success. See Ingram, 98-109. 505 Norfolk Record Office, Records of the Archdeaconry of Norwich (ANW), 1455-1975: ANW 2 Visitation Act Books, 1566-1809; [ANW/2/31, fo. 17v]: “James Parnell [is] no[ted] for setting his primus comonly to K[?] and work on his holy dais.” It appears likely that “K[?]” was a place, perhaps a village or town. 506 “Extracts from Visitation Books at York,” ed. Robert H. Skaife, The Yorkshire Archæological Journal 15 (1900): 234. 507 See E. R. Brinkworth, “The Study and Use of Archdeacons’ Court Records: Illustrated from the Oxford Records (1566-1759),” Transactions of the Royal Historical Society, Fourth Series 25 (1943): 104-105. Parnell’s case is not the only late sixteenth century visitation case which resulted in the master being reprimanded. In 1566 Gavin Lemyng was cited for causing “certen laborers to mowe his barley…upon the Sabothe daie in harvest laste” and then made his situation worse by mockingly asking the vicar when he was served process “whether the same came frome our soveraigne Ladie the quenes majestie or frome our holie father the pope meaning…L. archebushoppe [of York].” See “Extracts from the Act Books of the Archdeacon of Nottingham,” ed. R. F. B. Hodgkinson, Transactions of the Thoroton Society 30 (1926): 12- 13. For two seventeenth century cases, see pages 14-15. In the Oxford diocese during the year 1584 Richard Dunte, the warden of Henlie, was brought before the archdeacon for “settinge men on worke upon his howse on St. Peter’s daye” while Richard Price of Ducklington admitted to occasionally riding his horse, “either by himsellffe or [with] some of his servantes but not continuallye.” The Archdeacon’s Court: Liber Actorum, 1584, vol. I, ed. E. R. Brinkworth, The Oxfordshire Record Society, vol. 23 (Oxford, UK: Bergess & Son, 1946 ), 54; Archdeacon’s Court, vol. II, ed. Brinkworth, 154.

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A seventeenth century controversy over the ability of servants to refuse to do the bidding of their masters on the Sabbath further illuminates the right to holy days.

Richard Byfield (ca. 1598-1664) and Edward Brerewood (ca. 1565-1613) got into a dispute over whether a servant had the prerogative to disobey the orders of the master to work on a Sunday.508 Richard Byfield argued that the Third Commandment was given as much to servants as their masters, thereby allowing them to refuse orders to work on

Sunday, while Brerewood argued that the Commandment only applied to masters, and so the only duty of servants was to follow the order of their masters.509 This dispute was basically over whether the right to holy days existed, and both authors heavily drew upon medieval thought about holy days to construct their arguments. The argument expounded by Byfield blatantly affirmed that the right to holy days existed for all, as he said of servants, “As thy servant, he is not thine in thy workes or servile workes that day, but the

Lords freeman…they are not void of liberty to refuse such workes on that day.”510

Brerewood argued that because servants had a duty to obey the orders of their masters even on holy days, bad masters who ordered their servants to work on holy days were

In 1592 Walter Jobson of Pocklington, Yorkshire was cited because his “tailor servantes wrought vpon Sondaie in the service tyme.” See “Some Elizabethan Visitations of the Churches Belonging to the Peculiar of the Dean of York,” ed. T. M. Fallow, The Yorkshire Archӕological Journal 18 (1905): 224. In 1594 six individuals in Somerset were each fined for making their “folks” work upon holy days. Bishop Still’s Visitation 1594 and the ‘Smale Book’ of the Clerk of the Peace for Somerset 1593-4, ed. Derek Shorrocks, Somerset Record Society, vol. 84 (Bristol, UK: J. W. Arrowsmith Ltd, 1998), 121-123. In the same year William Drew of Newton in the diocese of Ely asked for the forgiveness of God and the community for making his servant “carrie a sheeperacke to the pasture on the Sabboth daie.” See “Some Elizabethan Penances in the Diocese of Ely,” ed. Hubert Hall, Transactions of the Royal Historical Society, Third Series 1 (1907): 266-267. 508 Hill, Society and Puritanism, 145-148. 509 Richard Byfield, The Doctrine of the Sabbath Vindicated (London: Felix Kyngston, 1631), http://eebo.chadwyck.com/search/full_rec?SOURCE=pgthumbs.cfg&ACTION=ByID&ID=99842857&FI LE=../session/1351190814_21287&SEARCHSCREEN=CITATIONS&SEARCHCONFIG=var_spell.cfg& DISPLAY=AUTHOR (accessed October 25, 2012). 510 Edward Brerewood, A Learned Treatise of the Sabaoth (Oxford, UK: Iohn Lichfield, 1636), 6, 42: http://eebo.chadwyck.com/search/full_rec?SOURCE=pgthumbs.cfg&ACTION=ByID&ID=99842132&FI LE=../session/1351188898_14860&SEARCHSCREEN=CITATIONS&SEARCHCONFIG=var_spell.cfg& DISPLAY=AUTHOR (accessed October 25, 2012).

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solely guilty of sin. Both of these arguments which utilized natural law were based upon

the acceptance of the right to holy days that had been recognized in medieval thought. It

appears that medieval servants could refuse to obey the commands of their masters on

holy days (Byfield’s position), and those coerced into working by their masters were not

guilty of blame (Brerewood’s position). Thus, by accentuating different components of

the medieval right to holy days, the two men reached different conclusions.

James VI and I (r. Scotland: 1567-1625, England: 1603-1625) attempted to use

the right to holy days as a political tool. Entrenched in incessant fighting with the House

of Commons, James saw the issue of holy days as an opportunity to portray himself as a

protector of rights and to undermine the political power of those Members of Parliament

(MPs) obsessed with legal rights and liberties. Unsurprisingly, many of the most virulent

MPs were staunch Protestants with backgrounds in the common law. It was this type of

people who had been decrying the “superstitious” saints’ feasts in favor of a radical

Sabbatarianist stance. Thus, James issued the Declaration of Sport, also known as the

Book of Sport, in 1618 in an attempt to curry the favor of the conservatives and

moderates who saw the radical Protestants as a threat to their right to holy days, thereby

aligning the Stuart dynasty with the policy of protecting the right to holy days.511 The

Book of Sport ordered that people be allowed to engage in any lawful activity on holy days despite the objections of Papists and Puritans, seeking to impose uniformity across

511 Leah S. Marcus, The Politics of Mirth: Jonson, Herrick, Milton, Marvell, and the Defense of Old Holiday Pastimes (Chicago: University of Chicago Press, 1986), 7-8; Parker, English Sabbath, 139-160; James VI and I, The Kings Maiesties Declaration to His Subiects, Concerning lawfull Sports to be used (New York: Da Capo Press, 1970), 3-4: “The report of this growing amendment amongst them made us the more sorry, when with our own ears we heard the general complaint of our people, that they were barred from all lawful recreations and exercise upon the Sunday's afternoon, after the ending of all divine service.”

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the realm by defining the proper limits of activities within the Church of England.512

Notably, the declaration also explicitly charged judges and other judicial officers with the

responsibility of ensuring no one interfered with the “liberty” of individuals to partake in

pastimes on feasts.513 This was not an innovative way of protecting the right to holy days

(or at least trying to), but a continuation of the medieval concern with punishing masters

who encroached upon the rights of their servants. James was not merely motivated by

politics to protect the right to holy days, but also had a desire to defend the rights of his

subjects from attack. Protecting the rights of one’s subjects was one of the hallmarks of a

good ruler, and may have helped motivate him to issue the declaration. James certainly

believed that a good ruler was supposed to govern his subjects as a loving father would,

and that included protecting the rights and liberties of his individual subjects.514

The right also exerted influence in the nineteenth century. After several centuries

of holidays being curtailed by the overzealous Protestant “bourgeoisie,” by the nineteenth

century only three holidays remained of the 40+ from the list of Gratian, at the lobbying

of Sir John Lubbock (1834-1913) social progressives in Victorian England passed

legislation increasing the number of holidays.515 Admittedly, the new holidays were not

512 Marcus, Politics of Mirth, 111-113. 513 James VI and I, The Kings Maiesties Declaration to His Subiects, 5, 8: “no lawfull Recreation shall bee barred to Our good People, which shall not tend to the breach of Our aforesaid Lawes, and Canons of Our Church…Our pleasure likewise is, that they to whom it belongeth in office, shall present and sharply punish all such, as in abuse of this our liberty, will use these exercises before the end of all divine services for that day.” 514 See James VI and I, “The Trew Law of Free Monarchies,” in Early Modern Europe: Crisis of Authority, ed. Eric Cochrane, Charles M. Gray, and Mark A. Kishlansky, vol. 6 of University of Chicago Readings in Western Civilization, ed. John W. Boyer and Julius Kirshner (Chicago: The University of Chicago Press, 1987), 201-221. 515 Mark Patton, Science, Politics and Business in the Work of Sir John Lubbock: A Man of Universal Mind (Burlington, VT: Ashgate, 2007), 97-103. These new holidays were called “Bank Holidays” and included Easter Monday, May Day, the last Monday in August, and Boxing Day (St. Stephen’s Day). Because Good Friday and Christmas were considered to have been immemorial observances, they were a part of the

199 Texas Tech University, Justin Scott Kirkland, May 2013 a return to the medieval holy days, there was still far fewer Victorian holidays than medieval feasts and they were neither of a particularly religious nature nor grounded in natural law, yet the new law validated the right to holy days by expanding the number of days on which the right could be exerted. It was no coincidence that the number of holidays was expanded during a time when there was great interest in rights, such as women’s suffrage in England. The Victorian working classes celebrated the passage of the law not only because they had more days off from work, but also because their right to holy days was expanded, and getting more rights always tends to be quite popular.

While the right to observe holy days played a significant role in these historical events, these are not the only historical events which the right influenced. These are merely a few examples which demonstrate how the right influenced the course of history in various centuries and places in Western Europe, while suggesting how the right could be applied to explain other parts of history.

The Modern Conception of the Right to Holy Days

Natural law and natural rights remained veritable concepts into the early modern era. The American Declaration of Independence and French Declaration of Man were both inspired by natural rights. However, in the modern era natural law has diminished in stature to become a neglected concept outside the world of academia and scholastic theology. Neither statute §51.911 of the Texas Education Code nor Article 24 of The

Universal Declaration of Human Rights, which both are based upon the assumption that

common law, hence the name “common law holidays,” and did not have to be specified in statutory law to be observed. Even the grinchy Ebenezer Scrooge let his workers have Christmas. See the literary classic Charles Dickens, A Christmas Carol (New York: Tor Books, 1990), 12.

200 Texas Tech University, Justin Scott Kirkland, May 2013

each individual has a right to holy days, are considered to be directly based in natural

law. Rather, the legitimate basis of these laws is in the authority of the institution

responsible for their propagation, i.e. the State of Texas and United Nations. In this

manner, these modern laws are not natural rights proper, but human rights based in ideals

and positive (man-made) laws. Whereas the canons of the medieval church were mainly divinely inspired positive law expressions of natural law precepts, these modern laws are positive law expressions of human ideals.

Nevertheless, both of these laws, which enunciate the ideal that humans have a right to observe holy days, are the modern-day manifestations of a medieval natural right firmly based in natural law, the right to holy days. The ideals which these laws derive from were directly created from the natural right to holy days. The train of logic in the pre-modern era was this: people ought to be able to observe holy days because they had a right to observe them, as established by the law of nature. The popular modern ideal of this concept accepted the conclusion but ignored the premise of the argument. This is what happened to many other natural rights. Still, the medieval natural right to observe holy days has been inherited by us today, making it one of the more impressive natural rights to emerge in the Middle Ages.

201 Texas Tech University, Justin Scott Kirkland, May 2013

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