Should We Abolish the Statute of Frauds.pdf

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Should We Abolish the Statute of Frauds? By

ROBERT

THAT of the law doour notBritish regardbrethren the Statute of

E.

IRETON

tion 4 of the Sale of Goods Act passed in 1893, aforementioned. Therefore, not much remains of the original Section 4 of the Statute, and that little, together with Section 4 of the Sale of Goods Act, is now in danger of extinction. The Law Revision Committee, appointed by Lord Chancellor Sankey

Frauds as" the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights," I is persuasively evident from a recent report of the Law Revision Committee to the Lord High Chancellor of Great Britain, which, in turn, was in January, 1934, and reporting to presented by that dignitary to Par- his successor, Viscount Hailsham, liament, in May, 1937. Briefly, this is one of notable distinction. Its report recommends the repeal of chairman is Lord Wright, the Master Section 4 of the Statute, of Section 3 of the Rolls, and with him are Lord of the Mercantile Law Amendment, Justice Romer, Mr. Justice Swift, i856, which enacted that a special Mr. Justice Goddard, Mr. Justice promise to answer for the debt, de- Porter, Hon. Cyril Asquith, K. C., fault, or miscarriage of another per- Professor A. L. Goodhart, H. C. son, being in writing and signed, Gutteridge, Esq., H. C. Haldane, should not be invalid to charge the Esq., A. D. McNair, Esq., W. E. signer by reason only that the con- Mortimer, Esq., Sir Terence O'Consideration did not appear in writing, nor, K. C., Sir Claud Schuster, and of Section 4 of the Sale of Goods *K. C., and A. F. Topham, K. C. Act, 1893. Many American lawyers made the The provision relating to sales of acquaintance of Lord Wright, either land or any interest therein had been at the Harvard Tercentenary, in eliminated from Section 4 of the Cambridge, in August a year ago, Statute proper by repeal, but was or at the sessions of the American reenacted in a modified form by Bar Association, in Boston, about Section 4o of the Law of Property the same time, at both of which he Act of 1925; while Section 17 of the was a distinguished guest. He is a Statute had been repealed by Sec- profound and scholarly jurist, an EDITORS' NOTE. -The author of this article is a professor of law in the University of Detroit; during the year 1937-38 he is spending a sabbatical leave of absence as a member'of the faculty of the New York Law School. An officer in the World War, Professor Ireton after the Armistice taught in the College of Law of the A. E. F. University at Beaune, France, and then gave courses for two years in constitutional and international

law in the General Army School at Coblenz, while serving as headquarters trial judge advocate and assistant judge advocate to the American forces in Germany. He subsequently was an American advisor to the Inter-Allied Rhineland High Commission and later practiced law at Paris, where he was elected to membership in the Soci&6 de Legislation Compar&. I Kent, Commentaries, vol. 2, p. 494, notej.

72 UNITED STATES LAW REVIEW eloquent speaker and a man of real,

charm. In our own country, the name of another member of the

Committee is especially familiar, that of Arthur L. Goodhart, an American and a graduate of Yale, Editor of the Law uarterly Review, and Professor of Jurisprudence in the University of Oxford. His writings on jurisprudence, his penetrating analysis and constructive criticisms of modern theories of law - in brief, his sound legal philosophy give him a conspicuous position among contemporary legal luminaries. Of the remaining members of the Committee it need only be stated that they represent the bench and bar of Great Britain and were nominated because of their recognized fitness to deal adequately with the work entrusted to them. Other important legal problems were submitted to them for investigation and report, and among these the doctrine of Consideration and of jus quaesitum tertio. Their views and recommendations thereon are broad and convincing. If they are adopted, it is, perhaps, no exaggeration to say that another forward step in the law's resistless onward march will be achieved. II The single purpose of this paper. is to deal with the action recommended by the Committee with respect to the Statute of Frauds, and if I may 2.29 Charles II, c. 3. Concerning the date of the Statute the authority appears to be conflicting. The date best authenticated would appear to be August 16, 1677, new style. See Costigan, "The Date and Authorship of the Statute of Frauds," 26 Harv. L. Rev. 329, 334 (1913); 3 Halsbury's Complete Statutes of England (1929) 583; i5 id. 216, 234, 235; 17 id. 614, 646 (1930). Atone time the belief was current that it was enacted in 1676. See Schouler, "The Authorship of the Statute of Frauds," iS Am. L. Rev. 442 (1884); Impor-

be permitted, to supplement the Committee's recommendations. The enactment is an anachronism that should long since have been eliminated from the body of English and American law. It has proved to be ambiguous, archaic, arbitrary, uneven, unwieldy, unnecessary and unjust. Adopted two hundred and sixty years ago, in the year 1677,' when the common law was undergoing many changes and was on the threshold of a real consolidation and improvement, when court procedure was a more or less deranged attempt to administer justice and to determine questions of private right, the Statute may have had some justification in its design to prevent fraud and perjury. But whatever reasons led to its passage in the seventeenth century, the resistless and progressive march of time and events up to the present has swept from view their last vestige. Let us briefly refer to some of the probable motives for its enactment. In the first place, in i677, the English lawyer knew little, if anything, about rules of evidence and less about the examination of a witness in open court.' The jury was an enigma to the judge and to counsel, and its proper function was neither. defined nor limited. It did hear what the witnesses said - hearsay included - and it may have reached a verdict on such a basis. But it is undeniable that, only a short while tant English Statutes, 65 (1 880); 2 Stat. L. 785 (1735); 3 Stat. L. 385 (1763); Note, ioo Cent. L. J7. 171 (1927); Chaffee and Simpson, Cas. Eq. (1935) cb. VII, n. 3, 105o, i°5i; Hening, "The Original Drafts of the Statute of Frauds (29 Char. II c. 3) and Their Authors," 61 U. Pa. L. Rev. 283 (1913); Hawkins, "Where, Why and When Was the Statute of Frauds Enacted?" 54 Am. L. Rev. 867 (1920). a Thayer, Preliminary rreatise on Evidence (1898), p. i8o.

THE STATUTE OF FRAUDS earlier, it was itself the witness as well as the trier, accustomed to decide matters out of its own knowledge, and, at the date of the Statute, there was no definite restriction on its reaching a verdict in the ancient manner, although it then sat in court and no longer traveled about the county on a tour of investigation. Indeed, it was conceded at that time that the jury could reach a verdict and decide a dispute on matters 4 known to it privately. It was a full half-century after the adoption of the Statute before an English lawyer ever read or saw a treatise on the law of evidence. Not until 1726, when Chief Baron Gilbert's little book I on that subject made its bow, did the profession learn the rudiments of that great branch of remedial law. And it took almost another century to develop the early rules into a real science and make them an indispensable factor in the adjustment of disputes and the orderly trial of causes. As late as 1794, in the trial of Warren Hastings before the House of Lords, the eloquent Edmund Burke figuratively made mincemeat of the rules of evidence, saying that he did not know what they meant. He admitted that something had been written on the subject, but it was very general, very abstract, and comprised in so small a compass that a parrot he had known might get the rules by rote in one half-hour and repeat them in five minutes.' Professor Wigmore tells us that between I79o and 1815 there were more rulings on evidence than in 7all the prior reports of two centuries. We must also take into consideration a second contributing factor to 4 Thayer, 4 Harv. Law Reu. 91 (189o).

The Law of Eidence (London, 17-26). 6 Select Cases on Evidence (1913), Intro. 4, citing Lord's Journal,Feb. 25, 1794.

the passage of the Statute - the disability under which parties to a suit lay at that time and for almost two centuries thereafter, by which, on the ground of interest, they were prevented from testifying in their own cause.8 It is probable that, in the condition of society then prevalent in Great Britain, when partisanship was a dominant characteristic, mental and moral conceptions were distorted by feeling, giving, in turn, a color to a narrative or recital not wholly warranted by fact. A general recognition of this tendency may have led to the belief that the welfare of the body politic, as well as the security of the rights of property, demanded the enactment of some such measure as our historic Statute. But, be that as it may, with the flight of almost three centuries there has come great moral awakening and intellectual improvement. Despite this result, it is possible that partisanship and bias may still be noted, but scarcely in a degree to warrant the retention of an enactment adopted to meet the social and moral conditions of an earlier and admittedly inferior period. The antiquated jury system, functioning at the time of the Statute's origin, has been remoulded and recast. The jury's particular sphere of action and authority is clearly laid down. The party to the suit, with his servant or relative, may testify. And the rules of evidence are a relatively consistent whole - if consistency may ever be predicated of a singularly artificial and technical invention, which has no parallel in that other great body of jurisprudence, the Civil Law. Nor, for that matter, Id. 8

Intro. s.

It was not until the year 1843 that this disqualification was removed by Act of Parliament, 6-7 Victoria c. 85.

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has the Statute. Its provisions are as unknown to the modern civil law of the Continent as they were to Justinian, and have never had place in the law of Scotland.9 III Finally, the unsettled doctrine of the law of contract throughout the seventeenth century in England was unquestionably another inducement for the enactment of the Statute. Courts were far from clear during that period as to the true nature of the action known as assumpsit. Was it, they asked, to be regarded as a delictal or as a contractual action? When first established, in or about i5oo, it came as an outgrowth of the well-known and relatively ancient action of trespass on the case. That action had then been a feature of the common law for more than two hundred years 10 and was wholly a delictalaction. In 1602, the judges of the King's Bench and those of the Common Pleas were divided as to the form of action proper for the recovery of damages for breach of a simple contract, the former insisting that an action on the case (the origin of assumpsit) was the only remedy, and the latter holding a contrary opinion. The question was then submitted to all the justices of England, whereupon a decision was reached that either an action of debt or an action on the case would lie, at the election of the plaintiff.1 Later, in the same century, assumpsit was held to be a contractual action.2 Even during the eighteenth century the distinction between tort

9Report of Committee, ii, s. 4; see supra note i. 10It owed its origin to Statute of Westminster II, 13 Edward I, c. '24 (1285), known as the Statute in consimili casu. 11Slade's Case (16o02), 4 Coke 9 2b. 11Wheatley v. Low (1624), Cro. Jac. 668;

and contract was neither clearly perceived nor fixed by the courts." Blackstone was not able to explain it. He deals with the subject of contract at one place under the caption, "Rights of Things," 14 and at another under "Private Wrongs." 16 Again, he refers to it as a chose in action or species of property." In the early nineteenth century another English writer emphasized the importance of determining whether a private injury is a "tort without contract, or a mere breach of contract, or of what other precise nature." 17 From these references it would seem that the juristic mind was in evident confusion on this issue for more than fifty years before the adoption of the Statute and for a century and a half thereafter. One basic difficulty lay in the fact that the forerunner of assumpsit was a special kind of action on the case for deceit. This gave it a delictal aspect, based on the malfeasance or misfeasance of a defendant, for doing something which occasioned loss. At that time a broken informal promise was not actionable. Gradually, however, a remedy for such default was found by basing the action on the nonfeasance of a defendant, who, by failing or refusing to do something which he had "assumed" or undertaken to do, caused injury or loss. Thereupon, the action took on a contractual aspect because of this "assumption," or promise, by the defendant, and, to give this promise a standing, a motive or cause or reason had to be advanced, which Winfield, Tort and Contract (93I) 45. "3Winfield, op. cit. 29. 14 -2 Commentaries396-7. 163 id. 154. 16Ibid. See supra note 14. 17Chitty, Practiceof the Law (2d ed., 1834) 1,1213.

THE STATUTE OF FRAUDS IV Whatever may be said of the The further development of the merits of the Statute, it is conceded doctrine of consideration, as the to have been a source of endless sine qua non for enforcement of a litigation, on either side of the Atsimple or parol contract, both before lantic, and, needless to add, of and after the Statute's passage, has conflict among the decisions, to such indeed occasioned strange results. an extent that it is more than diffiAlmost a century after the enact- cult to rationalize them, and pracment of the Statute of Frauds, the tically impossible to reconcile them. illustrious Mansfield held that con- That this follows, in great part, from sideration was only one of several the ambiguous language of the modes for supplying evidence of the Statute is not open to question: for, promisor's intention to bind himself, were its terms even reasonably lucid, and that if the terms of a contract we should not have to contend with were reduced to writing by reason of such remarkable divergencies in commercial custom, or in obedience judicial interpretation as to its to statutory requirement, such evi- meaning. What mental anguish, by dence dispensed with the need of bench and bar, has been endured in consideration! 19 And n6w the fat an endeavor to ascertain the meanwas in the fire again. All the fictitious ing of "note or memorandum," to reasoning earlier adopted to make say what the content must be, assumpsit a remedy for a breach of a whether all or some of the terms of simple contract went by the board, the contract, and, if the latter only, and the efforts to that end seemed which of them, in discovering the wasted. But the House of Lords was conditions under which the "memoheard from later,20 and, in its pro- randum" may be evolved from sevnouncement, completely shattered eral writings or documents. When Mansfield's theory and reestab- must it be in existence? How must it lished the principle of consideration. be signed - by full signature, iniIt may be fairly inferred, then, tials, rubber stamp, letter-press, that the law of contract, before and mark, or what? or, if signed by an long after 1700, was only imper- agent, must he exhibit a written fectly understood; that the doctrine authorization? Will an oral acceptof consideration, for almost another ance of a written offer suffice? Is a century, was even less so; and that sealed and delivered but unsigned no satisfactory explanation was ever document within the Statute? These given why assumpsit - the greatest embarrassing and intricate problems are illustrative, but by no means remedial action at common law should have worn a dual aspect for exhaustive, of the almost countless centuries. To attempt to regulate issues raised by the Statute for our the whole field of contract, in such judiciary throughout its long suscircumstances, by such a measure as tained course, resulting doubtless in the Statute of Frauds, was an under- their bewilderment and perhaps also taking fraught with inauspicious con- in "vexation of spirit." 21 With reference to the classificasequences, from which there has been no escape in almost three centuries. tions under Section 4, every expericame to be known as the "consideration." 18

to 8 Holdsworth, History of English Law, 7. 11Pillans v. Van Mierop (1765), 3 Burr. i663.

20 Rann v. Hughes 0778), 7 T. R. 35o n.

21Smith, Law of Contract 0847), 39; Report.of Committee 8 n.

72 UNITED STATES LAW REVIEW enced lawyer knows that they have

nothing in common, lack relevancy, legal cohesion, or relationship, and bear the impress of arbitrary selec-

tion. In common justice it may be asked, "Why a written memorandum in these specifically listed cases and not in every other kind of con-

tract?" To make a personal representative, on his promise to answer in damages out of his own estate, liable only if he signed a written memorandum was rather far-fetched, at the time the Statute was enacted, because, unless a residuary legatee was named, the personal representative took the residue beneficially, and he frequently entered into such

contracts. The requirement of a writing to prove a guaranty under the Statute, while the very similar contract of indemnity may be enforced without such corroboration, is another evidence of an artificial, not to say unreal, distinction in the law of contract, perpetuated by the Statute. The insistence of the Statute on the production of a written memorandum in cases of agreements not to

be performed within a year is its real archaic feature. Such a requirement has all the earmarks of a by-gone age. If a contract could be performed within one year, let us say within fifty-one weeks, the Statute had no application; but if it embraced a

period of fifty-three weeks for its completion, a writing was necessary, or - non-enforcement! What an arbitrary assumption on the part of the framers of the Statute, that human memory could withstand a strain of

fifty-two weeks, but must break down under one of fifty-three weeks! And the folly of the provision is patent, when one reflects that em-

phasis is placed on the period of the 22Philpott v. Wallet (1683), 3 Lev. 65.

contract's performance - not on the period elapsing between the fact of the contract's making and the proof of that fact in a court of law. From this it follows that a contract made orally, to be performed within less than a year, and broken, may be enforced four or five years later, if not barred by a statute of limitations, when it must be assumed, under the Statute, all recollection of its terms has faded. Rational thinkers, seemingly, should be inclined to regard, as the true criterion of the recollection of a witness, the interval between the making of the contract and the date on which he is called to prove it. But not so the Statute. As to the'scope of the requirement of Section 4 relating to agreements in consideration of marriage, the construction is undeniably artificial and labored. Indeed, in the beginning, the Statute was supposed to refer to the marriage contract itself,z2 and there is nothing illogical in the contention that that was a reasonable inference. But, by force of socalled judicial reasoning, this belief was negatived and a new and narrow construction given the phrase, by which it was restricted solely to agreements to make marriage settlements, or the like. View this ancient enactment from any angle, and the conclusion is inescapable that it lacks compactness, uses different words in different sections to express the same subject matter, 23 and is, comprehensively considered, a legislative contribution to the common law of definitely little value. V Even the origin of the Statute is obscure, for its authorship is not 213Brown,

Statute of Frauds (1895), ix.

THE STATUTE OF FRAUDS

definitely known. Although the names of certain leading jurists have been coupled at different times with this questionable honor, we are left in doubt as to their actual or real connection with the measure. By one authority Lord Hale is said to have fashioned it.24 Another avers that Lord Hale and Sir Lionel Jenkins were its originators." Comes the great Mansfield to question both of these claims, pointing out that the Statute was not passed until after the death of Hale.2" Mansfield's view is, in turn, stoutly negatived and disproved by a modern investigator.2" To add to the confusion, Lord Nottingham tells us that it had its

minds of varying degrees of literary excellence and precision. This would readily account for the use of different words, in different places, for the same subject matter, to which 2 attention has been earlier invited.

VI Lord Wright's Committee are of the opinion that the provisions of the Statute are illogical and have outlived the conditions which generated and in some degree justified them, that they operate in an illogical and often one-sided and haphazard fashion over a field arbitrarily chosen, and that, on the whole, they promote rather than 33 rise from him, 28 while Sir Francis restrain dishonesty. In this last2 North is another suggested author. " mentioned particular one of the In this state of the record, it is evi- main weaknesses of the Statute, it is dent, the real author is unknown. A pointed out, is the advantage open learned writer asserts that the Statute to the unscrupulous who exploit the4 "was never regularly engrossed with absence of the legal requirement. Hence, contemporary opinion, we a view to its enactment." 30 As to the actual date of the Stat- are informed, is almost unanimous in ute's passage there is confusion.3 condemning the Statute and 5favorSome claim that it was passed in ing its amendment or repeal. The Committee have not hesi1676, while others maintain that the to recommend its repeal, and tated year was 1677. Certain it is, whatdallied with a suggestion not have its ever that fixture, and whoever author may have been, it had a sort for its amendment. "'Extirpate it of precarious existence from its first root and branch!" might be a paraexposure until its final adoption. It phrase of the finding, and in that was a legal waif around the Parlia- forthright and uncompromising recment from 1664 to 1676or 1677, and, ommendation, there is an echo of of Merton 36 and for this reason, may have been, and the stalwarts 37 probably was, the result of different Runnymede and of the spirit of 214Lord Ellenborough in Wain v. Warters (18o4), 5 East 10, 17. 25Lord Chief Baron Gilbert in Whitchurch v. Whitchurch (1722), Gilb. Eq. 168, I71. 26Windham v. Chetwynd (1757), 1 Bur. 104 21 Supra note 2, Schouler op. cit. 28Ash v. Abdy (1678), 3 Swanst. 664. 29 North, Life of Guilford (ist ed., 1742) 419. 30 Supra note 23. 31Supra note 2. 12Supra note 23. 33Report of Committee, ii, § 14.

34 Ibid.

- Id. 6, § 8. 38Assembly of nobles who resisted the plea of the prelates that marriage should be held to legitimate a child born out of wedlock, with the stern reply: "We will not have the laws of England changed." Thus was enacted the statute known at first as the Provisions of Merton. Maitland and Montague, A Sketch of English Legal History (915), 79, 80. 81The barons at Runnymede, 1215, forcing the usurper, King John, to recognize their demands in Magna Charta. Maitland and Montague, op. cit. 78, 79.

72 UNITED STATES LAW REVIEW Hampden.18 A seeming parallel to their action may be found in Britain's practical abolition of trial by jury a few years ago, 9 despite its permanent retention over centuries as a part of England's legal equipment and the pride of her people in its solidarity, which led them to give it the glorified designation, "The palladium of English liberties, the bulwark of the English Constitution." Reverence for tradition and for past glories is a characteristic of the British nation. This, however, is a sensible trait, marked by an extraordinary reserve, seldom demonstrated, and never a brake upon action when that is necessary, be the price what it may. Never in its history can it be said of this Statute that it was a popular or highly serviceable measure, while, on the other hand, its condemnation has been frequent and unsparing. There have, of course, been some who have spoken a good word for it. Among these was Lord Kenyon, who pronounced it one of the wisest laws ever enacted, and lamented that exceptions were ever introduced through construction.4" Lord Nottingham, perhaps owing to his avowed authorship of the measure, used to declare that every line of it was worth a subsidy,4 an observation which, later, led to the rejoinder, "every line has cost one." 42 Chief Justice Best, who had a great respect for "a written statement" relevant to a matter in dispute, and as Immortalized in Gray's Elegy, John Hampden, by his refusal to pay ship-money, precipitated the Civil War. Fearless and outspoken champion of popular rights against the encroachments of Charles I. Born in 1594, he was mortally wounded at the battle of Chalgrove Field and died in 1643. See 3 How. St. Tr. 825 (1637). 39Act of Parliament, July 28, I933. 40 Chaplin v. Rogers (i 8oo), i East 192,194; Chater v. Beckett (1797), 7 T. R. 2oI, 2o4.

held no high opinion of parol testimony, favored it.4 Reference was made to it by Judge Wright, of the New York Court of Appeals, as "this meritorious law." " As stated in the opening paragraph of this paper, the statute is referred to in Kent's Commentaries as one which carried its influence through the whole body of our civil jurisprudence, and was, in many respects, the most comprehensive, salutary and important legislative regulation on record affecting the security of private rights.4 John Prentiss Bishop held the Statute in high esteem. "Just one hundred years prior to the Declaration of our National Independence," said he, "the Parliament of the Mother Country enacted the most important statute ever promulgated in either country, relating to civil affairs. It is 29 Car. 2, c. 3, A.D. 1676, entitled 'An Act for Prevention of Frauds and Perjuries.' After a lapse of over two hundred years, during which its influence has been constantly present in every avenue of business, it is still in force in England." 46 In 1766, after almost a century's trial, Mr. Justice Wilmot denounced the Statute as a mischievous measure. "Had the Statute of Frauds been always carried into execution according to the letter," he asserted, "it would have done ten times more mischief than it has done good, by protecting, rather than preventing, frauds." 41 Our eminent jurist was 41Supra note

21.

42 1d.

43Strother v. Barr (1928), 5 Bing. 136. 41Shindler v. Houston (1848), a N. Y. 261,

273. 45Supra note i. 40Commentaries on the Law of Contracts

(1887), 497. 4 Simon v. Metivier (766), i Win. BI. 599, 6oi; Report of Committee 6, § 8.

THE STATUTE OF FRAUDS referring to the mitigation of the Statute's asperities, by the doctrine of past performance, and by the strained construction of its various parts, for instance, that relating to agreements in consideration of marriage. Past performance, however, never operated to take any of the several classes of contracts covered by Section 4,except that relating to contracts for the sales of land, out of the Statute, and since contracts for the sale of land or any interest therein are now regulated in England by a special act, 48 and are no longer covered by the Statute of Frauds, the Committee's report does not discuss or refer to them. Nor is it the writer's purpose to discuss, or to criticize, the requirement for a writing or memorandum in such cases. "I shall rejoice," declared Lord Chief Justice Campbell, "when Section 17 is gone. In my opinion, it does much more harm than good. It promotes fraud, rather than prevents it, and it introduces distinctions which, I must confess, are not productive of justice." 41 This view was recorded in i85, almost a century after Wilmot's denunciation, and a century and three quarters after the measure's enactment. Seemingly, time had but increased the disfavor with which it was viewed. Most of its defects were summarized by Mr. Justice Stephen, more than fifty years ago, when he wrote: "It sins against several of what ought to be the well recognized rules of all rational legislation. In the first place it establishes a highly artificial rule about a very simple matter. In the second place it is a relic of the times when the evidence on such subjects was excluded on a principle now ex48 Report

of Committee 4, § 4.

41Marvin v. Wallis (18S6), 6 E. & B. 726. 80 1 Law Ouar.Rev. 1 (1885).

51Id. p. S.

ploded. In the third place it is, as the multitude of cases decided upon it clearly shows, obscure in reference to

the subject to which it relates." 10 This clear-thinking and keenly analytical jurist had for some years labored jointly with Sir Frederick Pollock to draft a code which should embody Section 17 and bring order

out of the existing chaos among the decisions interpreting it. When the work was completed, he said: "And now, having cooked my dish with all possible care, I can only recommend that it should be thrown out of the window - that the seventeenth section should be repealed, and the cases upon it consigned to oblivion." 1 These excerpts may well express his estimate of both Sections 4 and 17, but he made a further observation, which would apply to

Section 4, when he pithily said: "In the vast majority of cases its opera-

tion is simply to enable a man to break a promise with impunity,because he did not write it down

with sufficient formality." 11 Lord St. Leonards disliked the measure, and predicted that the Lord Chancellor who should succeed in having the Statute of Frauds repealed would have as much cause to

congratulate himself on his work as had Lord Nottingham when it was first enacted. And he expressed the

hope that its repeal was near at

hand.53 The Scottish writer, Bell, ex-

pressed his doubt of the superior policy or safety of the strict rule of evidence required by the Statute." Our own Judge Bronson, in 184o, repeating an opinion current in Westminster Hall seventy years earlier, said that the Statute had not been explained at a less expense than 52

1d. p. 6 .

43 Law Quar. Rev. 1, 3 (1927). " Contract of Sale (1844), 63. See note i supra.

72 UNITED STATES LAW REVIEW one hundred thousand pounds sterling. 5 But at a much earlier date, Chancellor Kent thought that the same undertaking had cost "a million and upwards." 11 Professor Holdsworth regards the Statute as an antiquated and unnecessary measure, quite out of place amid thechanged legal and commercial conditions of today. 7 Professor Thayer looked upon it as a strange and very un-English piece of legislation, as a very extraordinary enactment to have been passed by an Englishspeaking community." And Professor Jenks shares the accepted view, that it has been more productive of fraud and perjury than repressive.5" Originally the Statute contained twenty-five sections, dealing with a great variety of subjects - wills, declarations of trust, conveyances, leases, and contracts. That only two of its sections are of consequence anywhere, today, shows what time and erosion have done to the ancient measure. The passing from notice of the other twenty-three sections is, perhaps, the strongest argument for consigning to oblivion those that remain and, along with them, as urged by Mr. Justice Stephen, the caselaw to which they gave rise. While America, because of its forty-eight constituent, independent, sovereign units, may never hope to achieve

from a single group, or committee, results such as will undoubtedly follow the recommendations of the Committee herein discussed, our legal writers can express their views on legal doctrines in need of revision or repeal, and, with reference to the Statute itself, they have done so. Its anachronistic features and its potential possibilities for fraud, through shutting out the truth as readily as it ever shut out perjury, have been vigorously exposed." The measure is obsolete. It is a relic of that period of the law's development when there were no established rules of proof, when witnesses were under disabilities, when juries might still act on matters extra-judicially made known to or discovered by them, when new trials were infrequent or largely unknown, and when the law of contracts was in its formative stage. The measure should be transferred from the statute books to the law's limb6 of forgotten things. Granted, for argument's sake, that it has, on many occasions, prevented perjury, what of the countless cases outside the Statute in which complaint on that score has never been voiced? Time and long experience may be safely trusted to prove a thing's merit or demerit. As to the Statute, these judicious monitors have spoken.

55Downs v. Ross (1840), 23 Wend. (N. Y.) 270, 272. f Kent, Commentaries, vol. 2, p. 403, note

i8o, 430.

a; id., p. 5I1, note d. 61History of English Law (1927), vol. 6, p.

396.

58Preliminary rreatise on Evidence (1898), 50Trhe Book of English Law (1929), 405. 60Burdick, "A Statute to Promote Fraud," 16 Col. Law Rev. 273 (1916); Willis,. "The Statute of Frauds - A Legal Anachronism," 3 Ind. Law 7ni. 427 (1928).