Puritan Revolution and the Law of Contracts (original) (raw)

2005, Texas Wesleyan Law Review

The revolutionary political, economic, and religious changes in England from the time of Henry VIII through the execution of Charles I accompanied the creation of the modern law of contracts. Most legal historians have ignored the impact of the Protestant Reformation and the rise of Puritanism on the development of the common law. Only a few historians have considered the influence of Puritanism on the law but have come to conflicting conclusions. This paper considers the question of Puritanism's impact on three aspects of the common law of contracts: the rise of the writ of assumpsit, the rationalization of the doctrine of consideration, and the independence of promissory conditions. The Authors conclude that Puritan theology was irrelevant to assumpsit and consideration but could have influenced the framework of analysis of the application of virtually absolute liability in Paradine v. Jane. 1 Second, the Puritan emphasis on discipline-personal, social, and ecclesiastical-represents an independent source of influence on the development of the common law of contracts. The disciplined life grew in cultural significance with the Reformation and the subsequent process of confessionalization. Of the three confessional traditions arising from the Reformation, the Reformed, which included the Puritans, implemented discipline to the greatest extent. The Puritan tools of discipline-self-examination, literacy, catechizing, and local ecclesiastical implementation-proved effective. The emerging modern state valued a disciplined citizenry and eventually co-opted the social gains produced by Puritanism. The particular forms of Puritan theology and discipline were contributing factors to the English Civil War. The Civil War both precipitated the monopolization of judicial power in the common law courts and exacerbated the need for the imposition of social order from above. These factors also underlay the decision in Paradine v. Jane. 2 Thus, the Authors believe that Puritan social practice influenced the common law of contracts. 6. See generally CHRISTOPHER HILL, SOCIETY AND PURITANISM IN PRE-REVOLUTIONARY ENGLAND 99-117 (St. Martin's Press 1997) (1958) [hereinafter HILL, SOCIETY AND PURITANISM] (devoting a chapter to the problem of labor and industry during this period). 7. See generally R. H. Britnell, The English Economy and the Government, 1450-1550, in THE END OF THE MIDDLE AGES? 89 (1998) (discussing slow development of the English economy until the 1540s and the sale of monastic estates). 8. Steady-state ecclesiology must be distinguished from Henry's position on the monasteries. Henry made no change to the formal structure of the Church of England except to substitute himself as its civil head. See, e.g., A.G. DICKENS, THE EN-GLISH REFORMATION 333-35 (1964). 9. As noted by Spitz: [In 1540 Henry] present[ed] to Parliament ... the Six Articles Act. It was truly Henry's own, for he revised the initial draft himself and sat in on the debate in the House of Lords. The Six Articles reverted to (1) a Catholic definition of transubstantiation in the sacrament; (2) celibacy of the clergy as a divine order; (3) the binding character of the oaths of regular clergy; (4) communion under one kind; (5) the appropriateness and necessity of private masses; and (6) private confession. SPITZ, supra note 4, at 267. 10. See id. at 278 ("Elizabeth had an exclusively Protestant council, men theologically more Protestant than she and some even favorable to Puritanism."). [Vol. 11 PURITAN REVOLUTION posed. A hierarchical Church rooted in the Middle Ages and centered on the administration of grace through the sacraments was (nearly) replaced by a Church (or churches) focused on self-governance, preaching, and-most importantly-discipline. That the political and religious changes discussed above were subsequently partially reversed should not obscure the long-term significance of these areas of transformation. The Restoration of Charles II in 1660 did not re-establish a king with political powers like those of his Tudor and Stuart ancestors. A new constitutional order was confirmed. Even re-establishment of the Church of England restored an ecclesial body in which tempered Puritan religious ideas had become commonplace. With respect to legal and economic changes, the Restoration only accelerated what had preceded it. Articulation of a relationship between legal, political, economic, and religious changes in early modern English history is not new. Puritan apologists of the seventeenth century were quick to read the hand of divine Providence in at least the constitutional changes of this era. Yet, with the Restoration, what had been the hand of God was considered to have been a great rebellion and formally ignored as "nonhistory."' 1 Over two hundred years later, the early twentieth century sociologist Max Weber suggested there was a close relationship between England's nascent capitalism and developing Puritan theology. 2 A few decades later, R.H. Tawney gave priority of place to material changes in the means of production and asserted that it was economic changes, exemplified by capitalism, which transformed the epiphenomenum of religion as well as public and private law. 3 With respect to the role of religion in history, some in contemporary academic circles still exhibit the attitude that law professor Stephen Carter describes as the trivialization of religious belief. 4 This trivialization may carry over to the subjects of historical research so that religious motives are downplayed in favor of geo-political or economic factors. Other contemporary historians exhibit a finely nuanced approach, acknowledging the simultaneous reciprocal interplay of multiple factors for changes in law and religion. 1 5 Religion, then, is one of 11. Thus, the Protectorate of Oliver Cromwell became the "interregnum," and Charles II was deemed to have ascended the throne in 1649 at the death of his father.