This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
The title of the statute which forms the subject of this work states it to be "An Act for Prevention of Frauds and Perjuries." In the recital, however, its object is expressed somewhat differently, as the "prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury." The latter phraseology is clearly the more accurate; for the statute does not aim directly to suppress fraud and perjury by imposing any new punishment in cases where they are proved to have been committed, but makes provision for excluding in certain cases such modes of proof as experience had shown to be peculiarly liable to corruption. And again, it would be a narrow view of the statute, at least as interpreted at the present day, to limit its application to cases where there is in fact more or less danger of perjury or subornation of perjury. The purest character and the highest degree of credibility on the part of the witnesses by whom a transaction, for the proof of which this statute requires written evidence, is sought to be made out, or the most overwhelming preponderance in their number, are entirely unavailing to withdraw a case from its reach. Indeed the real object and scope of the statute would seem to extend far beyond all questions of the integrity of witnesses, and to comprehend the exclusion of merely oral testimony in certain classes of transactions, as at best of an uncertain and deceptive character. In estimating the value of this enactment, therefore, the important question is not whether the statute has in its practical working let in as much perjury as it has excluded.
for no strictness of legislation can bar out from a court of justice the man who deliberately purposes to commit perjury; but it is whether, in the average of large experience since the statute was enacted, the requisition of written testimony in certain cases has not materially served to secure the property of men against illegal and groundless claims. That it has done so will scarcely be disputed, and to the profound practical wisdom with which it was conceived to this end the most enlightened judges and jurists have at all times borne emphatic testimony.
Nevertheless it cannot be said to have been judically administered with a firm hand and in a consistent spirit. Within a few years after its enactment, and before the generation of its framers had passed away, we find the courts admitting exceptions and distinctions as to its application, and forcing upon it constructions tending to restrict its beneficial operation. In later days there has been evinced, on the whole, a disposition to return to a closer interpretation of its provisions; but even now there are doctrines, too firmly settled by precedent to be overthrown, which, from their very inconsistency with the spirit of the statute, lead continually to great embarrassment in its administration.
It must, however, be admitted that much of the difficulty which has been found to attend the exposition of the statute is due to the style in which it is framed. The professional reader who carefully examines it from beginning to end will find such obscurity of arrangement and such inexact and inconsistent phraseology, as to conclude that safe and rational rules for its construction can hardly be rested upon its literal expressions, but that it must be read, as far as may be, by the light of that broad and wise policy in which it was manifestly conceived. And this suggests a few words upon the authorship of the statute, with which these introductory observations may fitly close.
In a decision of the Court of Queen's Bench which has perhaps given rise to more discussion than any other which has ever passed upon the statute, that of Wain v. Warlters, where it was determined that the written memorandum required by the fourth section must show the consideration of the agreement, Lord Ellenborough rested his judgment (in which his brother judges concurred) in great part upon the etymological force of the word "agreement;" remarking, in vindication of that rule of construction, that the statute was said to have been drawn by Lord Hale, "one of the greatest judges who ever sate in Westminster Hall, who was as competent to express as he was able to conceive the provisions best calculated for carrying into effect the purposes of that law."1 Lord Chief Baron Gilbert says that the statute was prepared by Lord Hale and Sir Lionel Jenkins.2 But Lord Mansfield considered it scarcely probable that it was drawn by Lord Hale, as "it was not passed till after his death, and was brought in in the common way and not upon any reference to the judges." 3 This coincides with what is the most distinct evidence we seem to have upon the subject, the direct statement of Lord Nottingham, who says, "I have reason to know the meaning of this law, for it had its first rise from me, who brought in the bill into the Lords' House, though it afterwards received some additions and improvements from the judges and civilians."4 It would seem, therefore, that after its original proposition in Parliament by Lord Nottingham, Lord Hale and Sir Lionel Jenkins had it under consideration and revision, and that it was finally passed, as it was left by them, in an informal shape. Lord Hale was not then alive, and the statute itself affords strong internal evidence, as for instance in its want of compactness and in the use of different words in different places to express the same subject-matter, that it was never regularly engrossed with a view to its enactment.
1 5 East, 16. See this Treatise, § 302. 3 1 Burr. 418.
2 Gilb. Eq. 171. 4 3 Swanst. 664.