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Puritan Revolution and the Law of Contracts

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Puritan Revolution and the Law of Contracts Campbell University School of Law Scholarly Repository @ Campbell University School of Law Scholarly Works Faculty Scholarship 2005 Puritan Revolution and the Law of Contracts C. Scott Pryor Campbell University School of Law, [email protected] Glenn M. Hoshauer Follow this and additional works at: https://scholarship.law.campbell.edu/fac_sw Recommended Citation C. Scott Pryor & Glenn M. Hoshauer, Puritan Revolution and the Law of Contracts, 11 Tex. Wesleyan L. Rev. 291 (2005). Available at: https://scholarship.law.campbell.edu/fac_sw/112 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Scholarly Repository @ Campbell University School of Law. PURITAN REVOLUTION AND THE LAW OF CONTRACTS C. Scott Pryort and Glenn M. Hoshauertt ARTICLE ABSTRACT 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 ig- nored 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 conclu- sions. This paper considers the question of Puritanism's impact on three as- pects 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 irrel- evant to assumpsit and consideration but could have influenced the frame- work of analysis of the application of virtually absolute liability in Paradine v. Jane. 1 Second, the Puritan emphasis on discipline-personal,social, and ecclesias- tical-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 arisingfrom 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 particularforms of Puritan theology and disci- pline were contributingfactors 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 Au- thors believe that Puritan social practice influenced the common law of contracts. I. INTRODUCTION .......................................... 292 t Associate Professor of Law, Regent University School of Law. J.D. 1980, Uni- versity of Wisconsin Law School. M.A. 1997, Reformed Theological Seminary. Those to whom thanks are due are legion. In particular, I would like to thank Regent Uni- versity School of Law for the research grant that helped make this Article possible and Texas Wesleyan School of Law for co-sponsoring the conference marking the 150th anniversary of Hadley v. Baxendale where I presented an initial draft and re- ceived many encouraging comments. On a personal level, I must thank Professors Joseph Perillo and Val Ricks, as well as the Hon. L. J. Priestley, Q.C., for their useful insights and Professor Craig Stern for his invaluable assistance with translations from Latin. William Magee's research assistance was helpful. Special thanks, however, must go to Professor Harold Berman, whose work inspired this project and whose willingness to discuss my conclusions, even where they differed from his, exemplifies the spirit of Christian humility. tt B.A. 1991, Grove City College. M.Div. 1995, Gordon-Conwell Theological Seminary. J.D. (anticipated 2005) Regent University Law School. 1. 82 Eng. Rep. 519 (K.B. 1647). 2. Id. TEXAS WESLEYAN LAW REVIEW [Vol. 11 II. STATECRAFT AND ECONOMICS IN REFORMATION ENGLAND .................................................. 299 A. Dominium Politicum et Regale to Royal Rule ....... 299 B. Royal Rule to the Execution of the King ............ 304 C. England's First Industrial Revolution and the Rise of Capitalism .......................................... 305 III. GOD AND MAN IN PURITANISM: COVENANT AND LIFE ... .................................................... 308 A. A Primer on Puritanism ............................ 308 1. Definition and General Characteristics ......... 308 2. Three Formal Standards ........................ 312 3. Three Core Beliefs ............................. 313 a. The PuritanStandard of Authority .......... 313 b. The PuritanStandard for Morality .......... 314 c. Puritan Promise Keeping .................... 315 B. Covenant in Puritan Theology ...................... 320 1. Introduction to Covenant Theology ............. 320 2. The Relationship Between the Covenant of Grace and Predestination ....................... 321 a. The PsychologicalAnswer of Perry Miller .. 322 b. The Theological Answer of John Von Rohr ................................... 326 C. Discipline in Puritan Living ......................... 330 1. Internalization .................................. 331 2. A Mark of the True Church .................... 332 3. Implications for Society, the Law, and the State ............................................ 335 IV. INDEBITATUS ASSUMPSIT, CONSIDERATION, AND CONDITIONS .. ............................................ 339 A. History of Analysis ................................. 339 B. Indebitatus Assumpsit ............................... 341 C. Consideration ....................................... 345 D. Mutuality and Independence ........................ 349 1. Substantive Origins of Absolute Liability ....... 351 2. Procedural Reasons for Absolute Liability ..... 353 3. The R61e of Rolle .............................. 355 V. CONCLUSION .............................................. 359 I. INTRODUCTION England experienced significant changes in at least four areas dur- ing the century before the execution of Charles I in 1649. Notable changes occurred in the common law of contracts, England's political topography, its principal mode of economic activity, and its religious 2005] PURITAN REVOLUTION landscape. With respect to the law of contracts,3 three subjects of transformation stand out as most significant: development of a new form of action to vindicate contract claims, the creation and rationali- zation of a new doctrine of consideration, and the ever-increasing treatment of promises as absolute obligations. From early in the six- teenth century, the writ of assumpsit increased in usefulness until it became a commonplace writ for contract cases by the early years of the next century. In the 1530s, a knowledgeable observer might have confused consideration for civil law causa. Within a few years, the contours of consideration in assumpsit had changed from a tool for redress for injury to the promisee to vindication of the promisor's ex- pectation. So, too, a party's duty to perform a promise, which might have been discharged for several reasons in the sixteenth century, was virtually absolute one hundred years later. Second, radical political change marked the era beginning with Henry VIII and ending with the execution of his distant nephew, Charles I. Following the turmoil of the fifteenth century, the strong Tudor monarchs actively pressed for the expansion of the royal pre- rogative.4 The nobility, still greatly reduced from the War of the Roses, was in no position to oppose Tudor aggrandizement. For over half of the sixteenth century, a population anxious for political stabil- ity acquiesced. A constitutional crisis began to grow during the latter years of the reign of Elizabeth and reached crisis proportions during the Stuart monarchy. The end of this study will see the complete re- versal of Henry's efforts. Rather than a strong King-in-Parliament, there will exist a Parliament without a king-a constitutional revolu- tion. The ideological resources for England's constitutional revolu- tion came from a working combination of Puritans with their ecclesiology and covenant theology together with the common law- yers with their ancient law.5 3. Reference to generic contracts for this period in English history bears the risk of ambiguity. The historically correct referent of the writ of debt sur contract is too narrow to capture my intent, and the modern concept of contracts is anachronistic. For purposes of my introduction, and with a nod to the Restatement (Second) of Contracts, I intend "contract" to mean those claims cognizable at common law for failure to keep one's promise. See RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981) ("A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty."). 4. See LEWIS W. SPITZ, THE PROTESTANT REFORMATION 1517-1559, at 249 (1985) ("England had emerged from the ruinous civil War of the Roses only a few years before, thanks to the strong arm of Henry VII."). 5. "In appealing to precedents that limited the arbitrary power of the king, the Puritans could
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