The Statute of Frauds: Original Drafts and Amendments, Lecture notes of Law

Download The Statute of Frauds: Original Drafts and Amendments and more Lecture notes Law in PDF only on Docsity! University of Pennsylvania Law Review And American Law Register FOUNDED 1852 Published Monthly, Except July, August and September, by the University of Pennsyl- vania Law School, at No. 8 West King St., Lancaster, Pa., and 34th and Chestnut Streets, Philadelphia. Pa. VOLUME 61 MARCH, 1913 NUMBER 5 THE ORIGINAL DRAFTS OF THE STATUTE OF FRAUDS (29 Car. II c. 3) AND THEIR AUTHORS BY CRAWFORD D. HENING The judicial interpretations of the Statute of Frauds would fill many volumes. It is strange that in the many years of con- troversy as to its meaning no one has sought to interpret the statute by examining the bills which were tentatively introduced and modified by successive rejection of parts and by insertion of new provisions. Rejected language tends to show what the egislature did not mean. Later additions tend to explain or Isupplement the original draft. Again, the authorship of the statute is obviously of some importance in connection with its interpretation. If the statute was the work of some careless or unskilled draftsman, we would be justified in interpreting his words by the aid of Doctor Johnson's Dictionary and by an appeal to the lay- man's conception of the good and useful to be attained by a given interpretation of the language. If, on the other hand, the contrary, be true and the statute was drawn after careful reflection and deliberation by experienced lawyers, we are justified in. giving to their language any technical (283) UNIVERSITY OF PEN.VSYLV'AN4 LAW REVIEW legal meaning which then would have properly attached to it; and further, we should ascertain their intention by filling in as a back- ground to the statute those general principles of law current at the Restoration. Naturally, in the absence of accessible proof of authorship, both the technical and the non-technical interpretation has al- ternately found judicial favor. Those familiar with the decision of Wain v. Warlers, 5 East xo, will recall how Chief Justice Holt once based a famous technical interpretation of the statute upon the assertion that its author was Chief Justice Hale. On another occasion Lord Mansfield announced a non-technical in- terpretation of another section to be correct because, (as he very hastiiy and unadvisedly concluded,) "the act was introduced into Parliament in the common way and not upon any reference to the judges." Wyndham v. Chetwynd, i Burr. 418. Tradition has always ascribed the authorship of the statute to some four or five different and distinguished judges. As, how- ever, its pedigree has never been more accurately determined than by tradition supplemented by the Journal of the House of Lords, an exainination of the original manuscripts was made by the writer in the hope of settling the question of authorship. In the following pages I have endeavored to present all the evidence obtainable as to the different bills which were introduced in Parliament and their amendments in Committee, together with all the proof of authorship accessible in public records. In searching for this evidence I may properly say that I was directed aright and chiefly assisted by the Ninth Report of the Historical Manuscripts Commission, wherein the manuscripts of the House of Lords are most carefully calendared by the late Mr. E. Fairfax Taylor and by Mr. Felix Skene.1 My thanks are especially due to Mr. Cuthbert Headlam, one of the Clerks of the House of Lords, for the opportunity to in- spect, take copies of, and to photograph the original manuscripts, which are now in the Victoria Tower. I Ninth Report of The Royal Commission on Historical Manuscripts. Part II Report and Appendix. Presented to both Houses of Parliament by Command of Her Majesty. London: Printed by Eyre and Spottiswoode, Printers to the Queen's Most Excellent Majesty. Fot her Majesty's Stationery Office, 1883. Price, 5 S, 2 d. THE ORIGINAL DRA FTS OF THE STATUTE OF FRAUDS 287 AND BEE ITT FURTHER ENACTED by the Authority aforesaid That from and after the Day of itt shall and may bee Lawful for every Sheriffe or other officer to whom any writt or Precept is or shall be directed at the Suite of any person or persons of for and upon any Judgement Statute or Recognizance hereafter to bee made or had, to doe make and deliver execution unto the partie in that behalfe suing of all such lands and tenements as any other person or persons bee in any manner of wise Seized or hereafter Shall be seized in Trust for him only against whom Execution is soe sued Like as the Sheriffs or other officer might or ought to have done if the said partie against whom Execution hereafter shall bee soe sued had beene solely seized of such Lands and Tene- ments of such Estate as they bee seized of in Trust for him att the time of the Said Execution sued. AND IF ANY CESTUY QUE TRUST here- after shall dye leaveing A Trust in fee simple to de- scend to his Heire There and in every such case Such Trust Shall be deemed and taken And is hereby declared to bee Assets by descent and the Heire Shall bee lyable to and chargeable with the obliga- tion of his Auncestor for and by reason of Such Assetts as fully and amply as hee might or ought to have been if the Land itselfe and the Inheritance thereof had descended to him in possession in like manner as the Trust descended. Any Law Cus- tome or usage to the Contrary in any wise notwith- standing. The above bill is endorsed as follows (the first line being in the same hand as the interlineations): "An Act for Prevention of Frauds and Perjurys." "ima vice lecta 16 Febr: 1673 "2da vice lecta 2o Febr: 1673 "and committed." The portions above underscored show the interlineations in the handwriting of Lord Nottingham-hereinafter described and photographically reproduced. This bill of 1673 above transcribed was read for a second time on Feb. 2oth, 1673, at a session of the Lords, there being present, among other notables, "Ds. Finch, Ds. Custos Magni Sigilli."2 2 Lords' Journal. UNIVERSITY OF PENNSYLVANIA LAW REVIEW The bill was then referred to a committee of 45 peers-spiritual and temporal--of which Earl Shaftsbury was chairman. "Their Lordships or any Five; to meet Tomorrow at three of the clock in the Afternoon in the Prince's Lodgings: and to adjourn as they shall think fit."' This committee never took any action; but merely met and adjourned., THE AUTHORSHIP OF THE BILL OF 1673 A photographic reproduction of a part of the first page of the bill of 1673 is here given, marked Exhibit No. I. It vill be seen that the body of this bill is written by an ex- pert and graceful scrivener. The interlineations show a striking resemblance to the handwriting of the Lord Keeper Finch, after- wards the first Earl of Nottingham. The two gentlemen who calendared these manuscripts for the Historical Manuscripts Commission expressed the opinion that, "This draft is apparen!'y in the careful handwriting of Lord Keeper Finch; the corrections upon it are undoubtedly in his hand."s By comparing these interlineations (in Exhibit No. I) with the letter of the Lord Keeper Finch' written to his brother in 1673 (Exhibit No. 2) Lords" Journal. 4 In tile Ninth Report of the Royal Commission on Historical Manuscripts. Part II, Appendix, p. 45, London, 1884, the facts are thus summarized: "174. Feb. x6. Frauds and Perjuries Bill.-Draft of an Act for preven- tion of frauds and perjuries. The text of this draft is given under No. 202 when it was first dealt with in Committee, on its revival in April 1675. (Read i a this day, and dropped with the Session after Commitment. L. T. XII, 638, 645. The title wrongly given in the Journal on first reading is the preamble of the draft. This draft is apparently in the careful handwriting of Lord Keeper Finch; the corrections upon it are undoubtedly in his hand. He was not included however .n the committee, of which E. Shaftesbury was Chairman. Nothing was done by this Committee beyond a formal meeting for adjournment. Com. Book 21 Feb.)." 'Historical Ms. Comm: Appendix to Ninth Report, p. 45, par. x74. 'Sir Heneage Finch, Member of the Inner Temple in 1638; called to the bar in 1645. "In 1670, he succeeded to the office of Attorney-general which he held for three years and a half; and on the removal of Lord Shaftesbury from the Chancellorship, the Great Seal was on November 9, 1673, placed in his hands, where it remained till his death, a period of nine years. Two months after his advancement, he was raised to the peerage as Baron Finch of Daventry. For two years he was distinguished by the title of lord keeper only, but at the end of that time, on Dec. i9, 1675, he was constituted lord high Chancellor, and in 1681 he was further honored with the Earldom of Nottingham."-Foss, JPiographical Dictionary of the Judges of England, pp. 252, 253. TlE ORIGINAL DRAFTS OF THE STATUTE OF FRAUDS 289 the conclusion that Lord Nottingham wrote the interlineations seems irresistible. The documentary evidence thus conclusively corroborates the express statement of Lord Nottingham in Ash v. Abdy, 3 Swanst. 664 (1667): "And I said that I had some 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 the Civilians." A further examination of the documentary evidence pre- served in the archives of the Lords enables us to ascertain with precision how far the title of Lord Nottingham to the authorship of the final enactment of 1677 is a joint title shared with "the Judges and the Civilians." GENERAL OBSERVATIONS CONCERNING THE LORDS' BILL OF 1673 The more striking points of contrast between this bill of 1673 and the final enactment of 1677 may be thus summarized: i. Like the statute, the bill of 1673 was directed against "all leases, estates, interests or terms of years of in to or out of any messuages, manors, lands, etc. made or created by parol and not put into writing by direction of the parties thereunto:" and made them "leases or estates at will only." But there was no provision in the bill of 1673 that the persons creating the estate ,or lease must sign and no provision for execution by agents of such parties. 2. The bill of 1673 proposed that all agreements should be in writing or be unenforceable in certain actions beyond a certain maximum of damages to be afterwards inserted in the bill; with the proviso that the act should not extend to "Contracts or agree- ments for wares sold or money lent or upon any Quantum Meruil or any other Assumpsits or promises which are created by-the con- struction or operation of law." There was no provision that the writing must be signed by either of the contracting parties. The draftsman of this bill was satisfied if a "Memorandum, note or memorial in writing shall be taken by the direction of the parties thereunto." UNIVERSITY OF PENNSYLVANIA LAW REVIEW Die Martis 2o* Aprilis 1675 E. Ayllsbury L. Chief Justice Pedues If a Deed be in writing it is understood to be under hand and Seale. If there be a Note in writing it will prevent Per- jury. That It be putt in writing in the presence of the Parties. A Copyhold Estate in the Eye of the Law is but an Estate at Will. x Sh3l After (the) Insert (twentieth) and after (of) Reade (February which shall be in the yeare of our Lord x675) 121. After (writeing) Leave out (by direction of) and Reade (and Signed by) and Instead of (thereunto) Reade (or their Agents thereunto lawfully authorized by writing) x6 1 After (notwithstanding) Insert (Except never- theless all Leases not exceeding the term of three years from the making thereof, whereupon the Rent reserved to the Landlord during such Terme shall amount unto two third parts at the least of the full improved value of the thing demised). 2 Sh. 31 After (writeing) Read (Signed by the Partie or Parties soo assigning granting or surrendering the Same or their Agents thereunto lawfully authorized by writing) The 2d enacting clause is reade and the Judges appointed to offer some amendments to it the next meeting. Adj. to Thursday at 90 Die Jovis 220 Aprilis 1675 E. Aylisbury The Bill is proceded in by Paragraphs Perjuries Leave out from the word (that) to the word 2 Sh. 41 (And) in the 4th I of the 3d Sh, and instead thereof Reade (from and after the said twentieth day of THE ORIGINAL DRAFTS OF THE STATUTE OF FRAUDS 293 February noe Action shall be brought whereby to charge an Executor or Administrator upon any spec- iall promise to answere damages out of his own es- tate, or whereby to charge the Defendant upon any speciall promise to answere for the debt, default, or miscarriages of another person or to charge any per- son upon an Agreement made in Consideration of Marriage or upon any Contract or Sale of Lands tenements or Hereditaments or any interest concerning them, or upon any agreement that is not to be per- formed within the space of one yeare from the making thereof, unlesse the Agreement upon which such Action shall be brought or some memorandum or note thereof shall be in writing and signed by the Party to be charged therewith or some other person there- unto by him lawfully authorized). 3 Sb. 4 The Clauses concerning Wills postponed to (And Moreover) in the iith 1 and the Judges to offer Amendments. 141 After (Sd) Read (20th Day of February) 15 1 Leave out (by Paroll or) 16 1 After (Will) Read (or) and after (Codicill) leave out (or Instrument) and after (writing) reade (or other writeing declaring the same or by burning can- ceiling tearing or obliterating ye same by the testa- tor himselfe or in his presence or by his directions and consent). 181 After (Will) Reade (or) and after (codicill) leave out (or Instrument) and after (writeing) reade (or other writeing of the Devisor Signed in the presence of 3 or more witnesses declaring the same); after (be) reade (burnt cancelled torn or obliterated by the testator or his directions in manner aforesaid or unless the same be) • th 3 1 After (the) Reade (Sd. 2oth day of February) 41 Instead of (by Paroll) Reade (of any Lands Tenements or Hereditaments shall be manifested and proved by some writing Signed by the Party who is UNIVERSITY OF PENNSYLVANIA LAW REVIEW by Law Enabled to declare Such trust or by his last will in writing or else They) After (effect) Reade the Provisoe beginning at the 8th line. And after ye Sd Provisoe Reade ye words in ye 5th 6th & 7th as amended. Instead of (by Paroll) Reade (Shall be in writing signed by the Party granting or assigning the Same or by such last will or else) 201 After (Law) Add (or be transferred or ex- tinguished by the Act or operation of Law) 15 Fill the blanke with (aforesaid 2oth day of February) 5 Sh. 4 . Leave out (and) and after (tenements) Reade (Rectories Tythes Rents and other Hereditaments) 6 L After (seised) Reade (or possessed) Leave out (only) and after (seised) Reade (or possessed) 9 1. Leave out (Solely) and after (Lands) leave out (and) and after (Tenements) Reade (Rectories Tythes Rents and other Hereditaments) 6 L After (the) leave out (Land itselfe and the In- heritance thereof) and Reade (Estates in Law) The Judges to offer further Additions at the next meeting. Adj to Tuesday at 9* Die Jovis 29 Aprilis 1675 E. Aylisbury The L. C. Just North proposes instead of the Fruds & clause concerning Wills which was postponed the Perjuries clause fol., which was agreed to. a Sh. 5 1. After (the) leave out to ye words (And More- over) in the Iith line and Reade (Sd 2oth day of February All devises and Bequests of any Lands Tenements or Hereditaments devisable Either by force of the Statute of Wills or by this Statute or by force of the Custome of Kent or the custome of any Burrough or any other particular Custome shall be in writing and signed by the 'Party soo devising the same or any other person in his presence or by his TIHE ORIGINAL DRAFTS OF THE STATUTE OF FRAUDS 297 Lord Chief Justice North" presented these following clauses, the writer offers a photographic copy of the first page of this docu- ment, showing interlineations in the hand of the Lord Chief Jus- tice. (Exhibit No. 3). When these interlineations are compared with the standard of the Lord Chief Justice North's writing (Ex- hibit No. 6) the authorship of this document is settled beyond con- troversy. Throughout the entire document all the interlineations, printed as below indicated, are in the hand of the Chief Justice. This document is marked (A) and is so referred to at the conclusion of the Bill of 1675, as part thereof. "CLAUSES OFFERED BY THE LORD CHIEF JUSTICE NORTH TO BE ADDED TO THE BILL CONCERNING PERJURIES AND AGREED TO." "And for the Amendment of the Law in the partic- ulars following Be it further Enacted by the authority aforesaid that from henceforth any estate per autor N-ye shall be devisable by a will in writing Signed by the party so devising the Same or by some other person in his presence & by his expresse directions & attested & 1 Francis North, born Oct. 22, 1637. On Nov. 7, 1655, he was entered in the Middle Temple. 1671 made Solicitor-general and knighted. Attorney- general, Nov. 12, 1673, and retained his seat in Parliament. Jan. 23, 1675, made Chief Justice of the Common Pleas. "For four years he enjoyed the quiet of a judicial life unbroken by the anxieties of politics." "Sir Francis was made Lord Keeper on Dec. 20, 1682. . . . in less than a year after his appointment he was called to the peerage by the title of Baron Guilford on Sept. 27, 1683."- Foss, Biographical Dictionary, pp. 484, 485. Of Sir Francis North and Sir Matthew Hale, Foss asserts "It appears that each had such a violent dislike to the other as was likely to lead to frequent contentions." Sir Francis" biography has been written by his brother, Roger North, and by Henry Roscoe, in his "Lives of Eminent British Lawyers, "also by Lord Campbell. His brother, Hon. Roger North, Esq., in this biography says of the Lord Keeper: "He had a great hand in the Statute of Frauds and Perjuries, of which the Lord Nottingham said that every line was worth a subsidy. But, at that Time, the Lord Chief Justice Hales had the Pre-eminence, and was chief in the fixing that Law: Although the urging part lay upon him, and I have reason to think it had the first Spring from his Lordship's Motion. For I find in some Notes of his and Hints of Amendments in the Law, every one of those Points which were there taken care of."--Life of Lord Keeper Guilford, p. 1O9, London, MDCCXLII. The book contains a fine steel engraving of Lord Guilford. D. Loggan ad zvium delin. G. Verluc sculp. UNI IV'ERSI T Y OF PENNS YL VA NIA LA W RE VIEW subscribed in v0 presence of _ye devisor by three or more witnesses 2 i n_.-,,;;--manner-asn-estte-i-fee-simple is y %';rt,- nf thp Statite of ills made in the Rei.gneef Such ing H.y tile Eightl of fan'u& ..... t... and if no A be made devise A thereof the same Shall be chargeable in the hands of the heire if it Shall come to him by reason of a Special occupancy as assets by descent as in case of Lands in fee Simple, and in case there bee noe special o:cupant thereof it shall goe to ye executors or adminis- trators of the party yt had the estate thereoff by virtue And of the Grant and Shall be assets in their hands. A WHEREAS it hath been found mischievous that Judg- mt- in the King's Courts att Westmr doe many times relate to the first day of the Terme whereof they are (or filing ye Bayl) entered or to the day of ye Return of the Originall A and bind the Defendts to Lands from yt time although in truth they were acknowledged or Suffered and Signed in the Vaccadon time after ye said Termes whereby many times purchasers find themselves agrieved- BE IT ENACTED by the authority aforesaid that from and after the said twentieth day of February any Judge or officer of any of his Mats Courts of Westmr that Shall signe any Judgmts shall at the signing of the (without fee for doing ye same) Same A Sett down the day of the month and year of his Soo doing upon ye paper Book Dockett or Record which hee shall Signe which day of the month and year Shall bee also Entred upon the Margent of the Roll of ye Record where the said Judgment shall be entred AND BE IT ENACTED that Such Judgmts as against purchasers bona fide for valuable 12 The underscored words are evidently in the handwriting of Lord Chief Justice North as are also all the interlineations in this document. THE ORIGINAL DRAFTS OF THE STATUTE OF FRAUDS 299 Consideradon of Lands tenements or Hereditaments- endevored to bee charged thereby Shall in Construction of Law be Judgmts only from such time as they shall be soe Signed and Shall not relate to the first day of the Terme whereof they are entered or the day of the (or filing ye Bayl) return of the Originall any Law Usage Or CourseA of any Court to the Contrary Notwithstanding. And bee it further Enacted that from and after ye Said 2oth day of February noe writt of fieri facias or other Writt of execution shall bind the property or the Goods of the person against whome such writt of Execudon is sued forth but from the time yt such Writt shall bee delivered to the Sheriffe Under Sheriffe or Coroners to be executed and for the better manifesta.on of the Said time ye Sheriffe Under Sheriffe and Coroners their deputies and Agents Shall upon the receipt of any such (without fee for doing the Same) Writt endorse upon the back thereof the day of theA month and year whereon he recd the Same. And be it further enacted that from and after the Sd 20th day of February noe Contract for -the Sale of any goods wares or merchandizes for the price of ten pounds or upwards shall be allowed to bee good, except the buyer Shall accept part of the goods soe sold, and actually re- ceive the Same or give something in earnest to bind the bargain or in part of paymt or yt Some note or memor- andum in writing of the Said bargain be made and Signed by the parties to bee charged by such Contract or their Agents thereunto Lawfully authorized. And bee it further enacted that the day of the month and year of the enrollmt of all Recognizances shall be sett down in the margent of the Roll where ye Sd Recog- nizances are Enrolled, and that from and after the Said 20th day of February no Recognizances shall bind lands any A tenements or hereditaments in the hands of any purchaser bona fide and for valuable consideracon but UNIVERSITY OF PENNSYLVANIA LAW REVIEW thereof were committed to writing within three days after the making of the said will. And be it further enacted that no letters testa- mentary or probate of any nuncupat;ve will shall pass the seal of any Court until fourteen daysi' after the decease of the Testator be fully expired nor shall any nuncupative will be at any time received to be ptoved unless process have first issued to call in the widow or next of kin to the deceased to the end they may contest the same if they please. And be it further enacted that no will in writing conzerning any goods or chattels or personal estate shall be revoked16 nor shall any clause devise or bequest theiein be altered or changed by any words or will by word of mouth only, except the same be in the life of the testator committed to writing and after the writing thereof read unto the testator and allowed by him & proved 7 to be so done by three witnesses at the least. Provided always that notwithstanding this act any soldier being in actual military service or any marriner or Seaman being at sea may dispose of his movables wages or personal estate as he or they might have done before the making of this act. And it is hereby declared that nothing in this act shall extend to alter or change the jurisdiction or right of probate of wills concerning personal estates, but that the Prerogative Court of the Archbishop of Canterbury and other Ecclesiastical Courts and other Courts having right to the probate of such wills shall retain the samei8 as they had before in every respect Subject nevertheless to the Rules and directions of this act. And for the explaining one act of this present Parli- ament entitled an act for the better settling of In- testates Estates Be it declared by the authority aforesaid, 14 In 1676, the words were interpolated, "till fourteen days at the least." 15 "Kindred" substituted for "kin" in 1676 bill. 16 Altered to "repealed" in bill of x676. 17 The words & proved are in North's hand. Is In bill of 1676. the words "right and power" were here interpolated. TIlE ORIGIXAL DRAFTS OF TIlE STATUTE OF FRAUDS 303 that"' the said Act nor anything therein contained shall be construed to extend to the estate of feme couverts that shall die Intestate but their husbands may demand and have administration of their Rights Credits and other personal estate and recover and enjoy the same as they might have done before the making of the said Act. FINAL DRAFT OF THE LORDS' BILL OF 1675 AS REPORTED BY THE COMMITTEE AND AS IT PASSED THE LORDS MAY 12, 1675 The various proposed changes referred to .in the Committee Book were incorporated, by the person who kept that book, into the text of the bill. In order to show all these changes and ad- ditions (to which we must also understand were added clauses offered by Lord Chief Justice North and by Sir Lionel Jenkins, as modified by the Justice and Committee) the following amended draft of the bill of 1675, as reported to the Lords, is next presented -the main text being that of the bill of 1675, the cancelled por- tions being the parts omitted by the Committee and the under- scored words and clauses being those added by the Committee.2 I have indicated by bracketed references in the margin the places (by sheet and line) corresponding to those marked in the draft of the bill and referred to in the margin of the Committee Book so that the reader can follow the changes made by the Com- mittee. "For prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury and Subornation of perjury. Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and the Commons in this present Par- 19 In bill of Oct. 14, 1675, the word "neither" was added. 2 0 A printed copy of this amended draft of the bill of x675 is to be found in the Ninth Report of the Royal Commission on Historical Manuscripts, Part II, Appendix and Index, p. 48. I have here reproduced this amended draft as it appears in the Report of the Royal Commission with the arrangcment of type adopted by the Commis- sion, and as thus described by them: "The original text including the expunged portions is the bill of z673-4 re- copied. The additions now made in Committee are shown by italics, the omis- sions by the expunged type." UNIVERSITY OF PENNSYLVANIA LA W REVIEW liament assembled, and by the authority of the Same. I Sh. 8 il That from and after the Twentieth day of February which shall be in the year of our Lord 1675 all Leases Is I] Estates, Interests of Freehold or terms of years, -or [l0 ii any uncertain interest of, in, to or out of any Mes- suages, Manors, Lands, Tenements, or Heredita- [1111 ments made or created by Livery and Seisin only or 1z I by Parole, and not put into writing by--direction of----he ---Pa-ties--thereunt, and signed by the parties so making or creating the Same or their Agents thereunto lawfully authorized by writing, shall have the force and effect of Leases or Estates at will only, and shall not, either in Law or Equity, be deemed or taken to have any other or greater force or effect, any consideration for making Such Parole Leases, or f16 11 Estates, or any former law or usage to the contrary notwithstanding. Except nevertheless all leases, not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two thirds part at the least of the full improved value of the thing 117 ii demised. And moreover no Leases, Estates, Interests, either of Freehold, or terms of years, or any uncertain interest,"' of, in, to, or out of any Messuages, Manors, Lands, Tenements, or Hereditaments shall at any 2 Sh. 2 Ij time hereafter be assigned, transferred-, granted or sur- 2 Sh. 3 i rendered, unless it be by deed or note in writing, signed by the party or parties so assigning granting, or sur- rendering the Same, or their agents thereunto lawfully authorized by writing, or by Act and operation of Law. "And be it further enacted by the authority afore- i2 Sh. 4 31 said that, in -all,-Actions-upon-the ase,- tins--of debt--oro the-personal-actioh, l1 -J1 fm-1 1 and-after the- day--of -shall-be-commenced-tpo n a Not being copyhold or customary. interest in the Act § iii. This was an amendment made in x676-7 TIlE ORIGINAL DRA FTS OF TIE STA TUTE OF FRA UDS 307 Signed in the presence of three or more witnesses, declaring the Same, any former law or usage to the contrary notwithstanding. "And be it further enacted by the authority afore- [4 Sh. 3 i said that, from and after the Said twentieth day of February, all declarations or creations of Trusts or rI '1 Confidences by Parole of any lands, tenements or hereditaments shall be manifested and proved by some writing, Signed by the party who is by law en- abled to declare Such Trust, or by his last will in [4 sn. 5 ii writing, or else they shall be utterly void and of no effect. And where any trust or confidence is or shafl be a deu and declared in-writing be it further Enacted [7 11 that all grants and assignments of Such any Trust or Confidence by Parole Shall be in writing, Signed by the party granting or assigning the Same, or by such last Will or else shall likewise be utterly void and of no effect. [8 13 Provided always that where any conveyance Shall be made of any lands or tenements, by which a trust or confidence Shall or may arise or result by [10 11 the implication or construction of law, or be trans- ferred or extinguished by the act or operation of law, then and in every Such case such trust or confidence Shall-be of the like force and effect as the Same would have been if this Statute had not been made, anything hereinbefore contained to the contrary notwith- standing. "And be it further enacted by the authority [15 11 aforesaid that, from and after the aforesaid twentieth day of February, it shall and may be lawful for every Sheriff or other Officer, to whom any writ or precept is or shall be directed, at the suit of any person or persons, of, for, or upon an Judgment, Statute, or Recognizance hereafter to be made or had, to do, make, and deliver execution unto the party in that [5 Sh. 4 1i behalf Suing, of all such lands, anri tenements, rec- 308 UNIVERSITY OF PENNSYLVANIA LA IV REVIEW tories, titles, rents, and other hereditaments as any other person or persons be in any manner of wise t6 11 Seised or possessed or hereafter shall be seised or possessed, in tru. f. i. .y against whom Execu- tion is sG sued, like as the Sheriff or other officer might or ought to have done if the Said party, against tg ii whom Execution hereafter Shall be so sued, 4iad-been solely seised of such lands -and tenements, rectories, titles, rents, and other hereditaments of such estate as they be Seised of, in trust for him, at the time of the Said Execution sued "And if any cestuy que trust hereafter shall die leaving a trust in fee-simple to descend to his heir, there, and in every such case, Such trust shall be deemed and taken, and is hereby declared, to be as- sets by descent, and the heir shall be liable to, and chargeable with, the obligation of his ancestor for and by reason of such assets, as fully and amply as he fie i0 might or ought to have been if the land itself and the inhcritancc thr-f Estate in law had descended to him in possession, in like manner as the Trust de- scended, any law, custom, or usage to the contrary in any wise notwithstanding t s After all the above proposals and suggestions for modifica- tions had been made by Lord Chief Justice North, by his associate justices and by Sir Leoline Jenkins, they were adopted by the Committee; then the Clerk of the Committee (or whoever wrote the entries in the Committee Book) prepared a paper (which also is now extant among the archives of the Lords in the Victoria Tower) entitled "Amendments to the Bill for the Prevention of " The words in the act which follow here were inserted in the final Bili of 17 Feb. 1676-7 (No. 336). " The proviso (§xi of the Act) which follows here, was inserted in the final Bill of 17 Feb., 1676-7. The draft has reference to two notes, (A) and (B). NOTE-(A) is the draft of Clauses offered by Lord North and interlined by him. (B) is the modification of the Jenkins' proposals and extended in the handwriting of some clerk and interlined in one place by Lord North. TIE ORIGINAL DRAFTS OF TIlE STATUTE OF FRAUDS 309 Frauds and Perjuries." This document incorporated all the amendments referred to in the Committee Book. This revised draft is of importance on the question of authorship because after completion interlineations were made which are evidently in the handwriting of Lord Chief Justice North. The reader will find a photographic reproduction of part of the second page of this re- vised draft in Exhibit No. 4; which on comparison with the stand- ard of the handwriting of the Chief Justice (Exhibit No. 6) appears to be by the same hand. This document I have not transcribed as the substance of it appears in the above reprint from the report of the Historical Manuscripts Commission. At a session of the Lords held on May ioth 1675-present "Ds. Finch, Ds. Custos Magni Sigilli "-"The Earl of Ailesbury reported, 'That the Committee appointed to consider of the Bill for Prevention of Frauds and Perjuries have met several Times; and have, upon the Advice of the Judges made several Amend- ments therein, which are offered to the Consideration of the House.' "Then the Said Amendments were read twice, and Agreed to; and the Bill is ordered to be engrossed, with the said Amend- ments." On May 12, 1675 at a session of the Lords-present Ds. Finch Ds. Custos Sigilli-the following entry on the Journal was made: "Hodie 3 a vice lecta est Billa. 'An Act for Prevention of Frauds and Perjuries.' "The Question being put: 'Whether this Bill shall pass as a Law?' "It was resolved in the Affirmative. "A Message was sent to the House of Commons, by Mr. Attorney-General and Sir Andrewe Hacket: To deliver the Bill for Prevention of Frauds and Perjuries and to desire their con- currence therein." The bill was never committed by the House and, owing to the facE that Parliament was shortly afterwards prorogued, the bill never reached a second reading. Late in the same year, 1675, Viz, on Oct. 14, effort was made UNI VERSITY OF PENNS YL VA NL4 LAW RE VIEW execution shall accordingly be held and enjoyed free and discharged from all incumbrances of such person or persons as shall be soo seized or possessed in trust for ye person against whome such execution shall be sued, in sec. x, 11. 9-12, and the words 'till fourteen days at the least,' in sec. xx., 1. 2." Attention should be particularly called to a proviso offered by Lord Chief Justice North on March 2, 1676, agreed to by the Committee, and reported. This proviso ultimately became with- out any alteration section xi of the statute. It is written entirely in the handwriting of Lord North and a photographic copy is given in Exhibit No. 5. The Historical Manuscripts CommissionO thus succinctly contrasts the bill as it came from this Committee with the words of the Statute itself: "As amended in the Lords' Committee it is identical with the Act 29 Car. II. C. 3., except that the words 'Where the estate thereby bequeathed shall exceed the value of twenty pounds,' and 'or where he or she shall hath been resident for the space of ten days or more next before the making of such will' in see. xviii are wanting in the Draft, which moreover has 'three days' instead of 'six days' in sec. xix." In the House of Lords, the Lord Chancellor (Finch) being present, on the 6th day of March, 1676, the Earl of Dorset re- ported, "That the Committee for the Bill for preventing Frauds and Perjuries have met several times; and are of opinion that the said bill is fit to be engrossed with some Amendments."I s This was agreed to. In the Lords on the seventh of March (the Lord Chancellor being present) the bill was read for the third time and passed!' The above as amended in the Lords' Committee was sent to the Commons March 7, I677Y The bill was referred in the Commons to a Committee of over fifty members "and all the members of this House that are of the Long Robe." "Appendix to 9th Report, p. 69. 21 Lords' Journals XIII, p. 62. 'Lords' Journals, XIII, p. 63. "7 Journal of the House of Commons, Mar. 7, z676. THE ORIGINAL DRAFTS OF TE STATUTE OF FRAUDS 313 The Committee Records of the House of Commons perished in the fire that destroyed the Houses of Parliament so that nothing can be ascertained of the discussion of the bill by that Comn,;ttee. Scarcely any changes,' however, were made in the Lords' Bill by the House of Commons. On April 12, 1677 the bill "with a few amendments" was re- turned to the Lords in precisely the form in which four days later it was enacted into a law. The Lords immediately agreed to the "few amendments" of the Commons.* Nothing was now lacking but the Royal assent. The oft-quoted remark of Lord Nottingham that every line was worth a subsidy is not merely a rhetorical estimate of the great worth of the statute, but seems to refer specifically to the passage of two bills on the same day, but prior to the Statute of Frauds-the first being a subsidy bill for a royal navy and the second being a taxation measure. Those two bills form Chapters I and II of the Act of 29, Car. II and Chapter III is the Statute of Frauds. The Journal of the Lords gives this narrative: Die Lunae 60 die Aprilis, post meridiem. "Then the House was adjourned during pleasure and the peers robed themselves. The House being resumed and His Majesty Sitting in His Royal Throne, adorned with his Regal Ornaments (the Peers being also in their Robes): the Gentleman Usher of the Black Rod was commanded to signify to the House of Commons His Majesty's Pleasure 'That they come up presently and attend him, with their Speaker.' "Who being come; the Speaker (after a Short Speech) humbly presented his Majesty with two bills, which being received at the bar by the Clerk of the Parliament and brought to the Table, the Clerk of the Crown read the Titles of them as follows: "z. An Act for raising the Sum of Five Hundred Eighty four thousand-nine hundred and Seventy-Eight Pounds, Two Shillings, and Two pence Half penny for the speedy building of Thirty Ships of war. "2. An Act for an additional excise upon Beer, Ale, and other Liquors for Three Years." 3 See the Report of the Historical Manuscripts Commission, appendix to 9th Report, p. 69 . 3 9Journals of the Lords, XIII, p. izz. UNIVERSITY OF PENNSYLVANIA LAV REVIEW "To which two bills the Clerk of the Parliaments pronounced the Royal Assent in these words, "Le Roy remerciant ses bons Subjects, accepte leur Benevolence et ainsi le veult." In the same manner other Public Bills were passed; as, "I. An Act fer Prevention of Frauds and Perjuries. "6. An Act for taking away the writ de Haertico Comburendo. "7. An Act for erecting a Judicature to determine Differences touching Houses burnt and demolished by the late dreadful Fire in Southwarke. "8. An Act for the better observation of the Lord's day corn- only called Sunday. "To these the Royal Assent was pronounced in these words: 'Le Roy le veult.' ' IV CONCLUSION AS TO THE AUTHORSHIP OF VARIOUS SECTIONS OF THE STATUTE Section 1. Probably originally drawn and certainly interlined and after corrections introduced by Lord Nottingham supra p. 286. II. Drafted in Committee of Lords April 20, 1675 with assistance of Lord Chief Justice North. (See Com- mittee Book of Lords eo die supra p. 292). III. Lord Nottingham drew this entire section in his own hand and interlined it in the Lord's Bill of 1673. See Exhibit No. I and the draft of said bill supra p. 285. IV. Drafted in Committee of Lords April 22, 1675 with assistance of Lord Chief Justice North, and other justices of the Common Pleas. (See Committee Book of Lords eo die supra pp. 292-293). V. Drawn by Lord Chief Justice North with his own hand as appears from his interlineation of the Amended Draft'of the Bill of 1675. (See Exhibit No. 4-) VI. The original scheme was that of Lord Nottingham (See draft of Lords' Bill of 1673 supra p. 286), changed in Committee of Lords on April 29, 1675. See supra p. 294. '0 XIII, Lords' Journals, pp. 120-121.