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Citation: 72 U.S. L. Rev. 195 1938

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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Statute had been repealed by Sec- profound and scholarly jurist, an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, i5i; 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.

72

UNITED STATES LAW REVIEW

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).