The 1677 Statute of Frauds: History We Neglect at Our Peril

Have you ever signed a document disposing of something valuable, like a house or your estate? Did you find you needed to get it witnessed, and that the witnesses couldn’t be family members, and had to put their addresses on the document too? Then it may surprise you to learn that you are following legal precepts established by a long dead Welshman; this one, in fact:

(h/t Wikipedia)

Sir Leoline Jenkins (hat tip Wikipedia)

whose tomb is at Jesus College, Oxford; oddly, no more than ten minutes’ amble from where I am sitting, carving out this post. I like the way his “Llewellyn” has been semi-Englished to “Leoline”. Right now, he is probably spinning, at a fair clip, for he is the originator of the Statute of Frauds.

Here, via British History Online, is what the Statute of Frauds is for, in its original language:

For prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury Bee it enacted by the Kings most excellent Majestie by and with the advice and consent of the Lords Spirituall and Temporall and the Commons in this present Parlyament assembled and by the authoritie of the same That from and after the fower and twentyeth day of June which shall be in the yeare of our Lord one thousand six hundred seaventy and seaven All Leases Estates Interests of Freehold or Termes of yeares or any uncertaine Interest of in to or out of any Messuages Mannours Lands Tenements or Hereditaments made or created by Livery and Seisin onely or by Parole and not putt in Writeing and signed by the parties soe makeing or creating the same or their Agents thereunto lawfully authorized by Writeing, shall have the force and effect of Leases or Estates at Will onely and shall not either in Law or Equity be deemed or taken to have any other or greater force or effect, Any consideration for makeing any such Parole Leases or Estates or any former Law or Usage to the contrary notwithstanding.

As you see, the density of legalese hasn’t changed much since those days, though the spelling is different.

The “fraudulent Practices” that the Statute was designed to prevent grew up in the aftermath of the English Civil War, perhaps as various grudges were settled, or just as a kind of looting. Says this case notes specialist:

Our seventeenth century forebears, it seems, had realised the truth in the old adage that an oral contract was not worth the paper it was written on. The usual courtroom dramas about who had said what had gained an unsavoury edge in that some people were lying through their teeth in the witness box in order to support spurious agreements said to have been made orally. Parliament intervened and created five classes of contract for which a signed written record was required for the agreement to be enforced.

Actually, “unsavoury” is putting it mildly. This Canadian source (the Canadians inherited the Statute of Frauds, just as the US did – some version or other of it will tend to crop up in State laws) puts it thus:

By the middle of the 17th Century, the common laws courts were rather overworked with all the petitions to consider, that had been placed before them. One problem developed, and that was the professional witness. This witness would be someone with status in the community and their testimony would usually be accorded more weight than the average person.

Commercial activities were increasing at an exponential rate. There were lots of court cases, lots of witnesses and a lot of very good liars. In fact, witnesses might be offered a stake in the outcome of a case if their evidence were “truly favoured by the court”.

So, many cases simply came down to “one man’s word against another”. Really, this wasn’t entirely fair. From an historical perspective, there were landlords reclaiming vast ownership of properties, rather unfairly with a substantial coincidence in terms of similar facts and testimony.

Consequently, Charles II delegated the drafting of the Act to a loyal friend Sir Leo Jenkins who created the solution to the problem. Parliament enacted the Statute of Frauds and Perjuries in 1677. It was designed to prevent fraud. It did this, by insisting that certain contracts had to be in writing. These would be contracts that involved matters of considerable importance. Did John sell his farm to Peter? Yes, if Peter can produce a deed or a contract, and no, if the only evidence offered is the testimony of William who apparently overheard the two talking about the farm at a local pub.

In other words, perjury and corrupt process were the order of the day: some testimony was weighted more heavily than others, and money changed hands to help it happen. Unjust, and bad for business, too, as the courts got clogged up and commerce got entangled in disputes (sound familiar yet?). So stuff got put in writing. And, with the assistance of the contract law formulated in the Statute of Frauds modern capitalism takes off – by 1692 we have our central bank; by 1720 we have our first giant Bubble.

Naturally enough, the decidedly capitalist Founding Fathers inherit and retain the same legal infrastructure after 1776.

Now consider the impact of MERS (might as well be word of mouth), robosigners (corrupt process), dubious affidavits (perjury), neglect of the paper trail (sheer anarchy), and Florida courts that systematically favour some testimony (that of banks) over that of other participants in the foreclosure process.

We have been here before: that is the UK, pre-1677. Your servicers, robo-signers and the rest of the merry crew of crooks are set fair to unwind a third of a millennium’s worth of contract legislation that is key to the functioning of your economic system.

That is infrastructure neglect on an heroic scale, and it is why Sir Leoline Jenkins is no doubt spinning in his grave.

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44 comments

  1. Ina Deaver

    There are many lessons we keep having to learn over and over again: important things tossed aside out of criminal avarice or expedience. To me, the worst is the Geneva Conventions, which we so cavalierly undermined a few years ago. The blood of so many, the destruction of an entire continent, went into that agreement.

    Nasty, brutish and short. We’re headed there.

  2. AR

    Anyone else notice the new term for the new homeless now in vogue by the authorities? Vagrants. Similar to MINUSTAH calling people they are about to shoot (dissidents) ‘Bandits.’ Depersonalization.

    Sometimes I think we got our humanity from the Neanderthals, those of us with empathy.

    Fracking is so much easier if you can get the property owner’s mortgage servicer to ease them off the land.

    1. Frank

      According to the Salt Lake Tribune:

      “The lingering recession has taken a toll on Utah’s youngest residents, leading to a 48 percent increase in the number of homeless school-age children since 2008, according to state data released Wednesday.

      Nearly 12,000 children were homeless in January 2010, meaning their families had lost their homes and were typically staying with friends or relatives, officials said at the annual Homeless Summit in downtown Salt Lake City.”

      This trend is spreading all over the country, and of course children are especially vulnerable to being mistreated while living in the close proximity of a homeless shelter.

      Yet nationwide there are very few homeless shelters exclusively for children. Unlike guaranteeing that banksters continue to receive their multi-million dollar bonuses at all costs, keeping homeless kids safe and away from potential predators is simply not a priority.

      And, as if that isn’t enough, people working with homeless kids report that the ones who are still attending school while living in homeless shelters are subjected to taunts and abuse from their classmates. Apparently for the crime of being poor, and the stigma attached to this.

      1. readerOfTeaLeaves

        Unlike guaranteeing that banksters continue to receive their multi-million dollar bonuses at all costs, keeping homeless kids safe and away from potential predators is simply not a priority.

        And, as if that isn’t enough, people working with homeless kids report that the ones who are still attending school while living in homeless shelters are subjected to taunts and abuse from their classmates. Apparently for the crime of being poor, and the stigma attached to this.

        Perhaps it’s time for a re-release of “A Clockwork Orange”, with the public requirement that all elected, appointed, and judicial officials must see it by Valentine’s Day, and then have discussion seminars along the lines of:
        “Where do you think the Droogs came from? What do you think their childhoods were like? If we don’t want to create a generation of Droogs, what must we do now?

        1. Frank

          Good idea, as I doubt many of our public officials have even heard of Anthony Burgess or the Kubrick film based on his novel.

          Unfortunately, they’d probably miss the entire point of the film and, instead of being revolted, might find all that brutality and violence entertaining.

  3. aet

    The “securitization” of equitable obligations is legally impossible, and thus our troubles today.

    Equitable obligations are too dependent upon specific properties and persons to be capable of “securitization’. That’s the way I see the legal theory, anyhow.

    1. aet

      “Equitable obligations” = duties ( which bring with them rights to the counter-party) arising under a mortgage

    1. zephyrum

      I believe the attribution is Samuel Goldwyn, as in MGM. The movie business is undoubtedly a fine environment for teaching the importance of written contracts.

  4. Jim the Skeptic

    Thanks Yves, this is great, history and law all in one post!

    Our government and our judges forget why we have certain laws. This should be required reading for all of them.

      1. LeakTheBankInfoJulian

        I could and DO think of worse things when I continue to find the fraud within the documents these scoundrels file onto our courts.

        They deserve the punishments that were enacted within the torture chambers of the Dark Ages.

  5. Agitated Homeless

    The first thought that comes to mind is of the pro se folks: make sure you get the appropriate docs notarized. The bank that sent the debt collectors to come to get your house may offer this service. : )

  6. indio007

    Land conveyances are so important that they aren’t even governed by contracts. The conveyance is done by solemn covenant. That’s why when you look at a deed of trust you will see a /s next to the signature. That means imports “seal”.

    A promissory note isn’t a contract either. It is a chose in action in the form of a confession of judgment.

  7. davidgmills

    A couple of years ago I made a statute of frauds argument in a suit I filed to prevent paperless voting.

    Same exact problem. No auditable paper trail. The voter is at the mercy of the computer programmer. Might as well be a blind man taking a sighted person into the voting booth and having the sighted person vote for the blind man.

    We don’t seem to learn the lesson of having a paper record or an agreement on paper.

    Of course, now money is no longer on paper either. It is nothing more than a bunch of computer digits. Wait till the shit hits the fan with this system. Maybe it already has.

    1. Paul Repstock

      David G…The technology is available to make ‘paperless’ auditable. I understand your need for verification, but a paper ballot is no guarantee of authenticity.

      The bulk of the opposition I have seen comes from those who really don’t want individual participation in decision making. After all, if we had an easy access to voting (without the huge costs of campains and elections), then we would have much less need for the immense governing structures???

      To me the key to Democracy comes in making people earn their “right to vote”. An entitlement to vote based solely on accident of birth is foolish and may yeild foolish results.

  8. AR

    attmepter left this comment at Tao’s blog on 12/6, in response to Tao’s admission of unfamiliarity with “the mythology behind the New World Order threat”:

    As for the New World Order stuff, it seems clear to me that corporatism intends to replace civil society and law with WTO-style administrative rule, not just on the globalization level but as a replacement for sovereign governments as well.

    The basic forms of government and law, and the facade of society, may be maintained (that’s what neoliberalism as a political strategy is all about), but they’ll have no more reality than under any other totalitarian regime.

    Maintaining the facade of basic forms of government to hide the lawlessness of corporate, supranational, crony, predatory capitalism, explains the use of robo-signing as merely a way of disguising the real play: equity-stripping and property theft, using the courts as henchmen.

    Gonzalo Lira wrote of this endgame back on 6/18/10 in ‘Corporate Entities As Modern-Day Street Gangs’ http://gonzalolira.blogspot.com

  9. F. Beard

    The 17th century was interesting: Rembrandt painted then and the BOE (1694) and the first common stock company (1602), the Dutch East Indies Co., were founded.

    Of course, the BOE was an invention from Hell but the common stock company is one of man’s greatest inventions.

    Re the Statue of Frauds:

    If honesty is the basis for a sound economy then why do we tolerate government backed fractional (fictional) reserve banking?

    1. Paul Repstock

      If Honesty is the basis for anything: then why are there no penalties for lying???

      Every crime is based on a lie.

    2. ohioralph

      F. Beard, nice to see your use of “fictional reserve banking.” Possibly, the addition of legal tender currency or fiat money should be added to this terminology.

      1. F. Beard

        Possibly, the addition of legal tender currency or fiat money should be added to this terminology. ohioralph

        Actually, fiat is the only money form government should use since government IS force. However, government money should only be legal tender for government debts, not private ones. Conversely, no private money form, be it gold, silver or my toenail clippings should be acceptable for government debts.

        1. davidgmills

          Governments shouldn’t have debt. If you could print money, would you borrow it from a bank? Of course not. Governments ought to print money for whatever they need it for. So why do governments borrow instead? Because the bankers buy off the government and convince the governments to borrow rather than print what they need.

    1. Paul Repstock

      LOL…And just think..If I remember correctly Nancy Pelozi was the sole dissenting voice in the original vote for the Partiot Act (Obviously just window dressing). On that day I knew the American experiment was in big trouble.

      A democratic vote involving 3 or more people which results in a unnanmous vote, is a “Black Swan” event.

        1. Paul Repstock

          Thanks Keenan. In spite of looking foolish from bad memory and lack of knowlege, I feel a bit better that the vote was not as bad as I recalled.

  10. readerOfTeaLeaves

    …made or created by Livery and Seisin onely or by Parole and not putt in Writeing and signed by the parties soe makeing or creating the same or their Agents thereunto lawfully authorized by Writeing, shall have the force and effect of Leases or Estates at Will onely and shall not either in Law or Equity be deemed or taken to have any other or greater force or effect, Any consideration for makeing any such Parole Leases or Estates or any former Law or Usage to the contrary notwithstanding….

    …the Statute of Frauds and Perjuries in 1677. It was designed to prevent fraud. It did this, by insisting that certain contracts had to be in writing. These would be contracts that involved matters of considerable importance. Did John sell his farm to Peter? Yes, if Peter can produce a deed or a contract, and no, if the only evidence offered is the testimony of William who apparently overheard the two talking about the farm at a local pub….

    Shakespeare had died about 50 years earlier (d. 1616), and among his best loved plays is “Much Ado About Nothing”. The comic foil is Dogberry — (a master of the malaprop, who unwittingly solves the main crime in the story). Upon hauling in the ‘villainous’ man to be jailed by the judge, Dogberry vehemently insists that the judge, “Write it down, that I am an ass!”

    Dogberry is an ‘officer of the law’, yet he is illiterate, fulminating, and obnoxious — all qualities quite apparent to the judge (who IS literate). In Dogberry, we see a glimpse of the period of time prior to widespread public education (which is, after all, primarily a late-19th century development with deep roots in the Protestant Reformation).

    The point being, that The Written Word was believed to have a power more fearsome and permanent than the spoken word, and was even in that era the tool of ministers, princes, regents, and scholiasts.

    Dogberry would only have been able to ‘make his mark’, but the act and significance of ‘making an X’ would probably have put the fear of God (or, worse yet, the Devil) into him.

    The robo-signers, alas, are a form of contemporary fraud. But also strikingly illiterate given modern information structures.

  11. Ray L Phenicie

    The following ideas, in conjunction with the ideas outlined in the above posts, are designed to show that we have now moved outside of the Rule of Law, if indeed we were ever securely inside it. A quick tour through American history would show various times, in the widest sense, stages of anarchy where this society was brought from full flaming boil to a controlled simmer by a series of revolutions; we are at the doorstep of another revolutionary time.

    1. Civil War and Reconstruction-the major question surrounding this time was to prove-‘What place will the freed slave have in American Society?’ Not one in 10,000 persons had the intellectual ability to frame that question let alone answer it. Thaddeus Stevens was one of those few and was not well liked for asking it repeatedly and giving answers. The 14th amendment was one such attempt to provide a legal framework for giving an answer, but Jim Crow, Racism, Ku Klux Klanism, the establishment of ‘40 acres and mule’ sharecropper society, all of these and kindred forces destroyed American society from within. Today, none of us have any shred of civil rights remaining, and as a result of the spread of that cancer can take part in the formation of a totalitarian state. Needless to say, what appeared to the casual observers of the late 19th century as an innocuous denial of the right of ‘Negroes’ to form contracts is now grown full fledged into the worst of evils, denial of the rule of law for everyone who is not privy to the wizards and seers of political power.

    2. Industrialization and the rise of Corporate power-here the major question,-again largely unframed and only partially and weakly answered is, “How will a limited, representative democracy comprising large pluralities of many vested interests, control and direct the capitalist engine so the output will be distributed along lines of fairness and justice?” Again, one example will serve to illustrate-the formation of the railroad industry. As an example of an economic and cultural sector, none will serve finer to show a series of businesses that were riddled with day to day corrupt, fraudulent and unsafe practices. Practices were engaged in on a regular practice that killed thousands of people over the course of 75 years of development from around 1830 to 1892 when J. Pierpont Morgan forced a redraw of the railroad lines. Leave it to baron of the Gilded Age to bring order out of chaos! The major issue here was fraud again, the railroad baronss lied about most everything touching them and wrecked havoc with land contracts; they lied about the total sum amount of their assets, they broke promises on a daily basis given to municipal boosters causing whole cities to go bust, they lied to their workers about funds for pensions. Again, a warrior in this field, who struggled mightily to protect the rights of the average person living outside the gates of power, Eugene V. Debs, ended up being vilified by American society and official histories for many years, died a forgotten and broken hero of industrialized class warfare.

    3. Industrial pollution and urban sprawl destroy the American environment-in 1959 Rachel Carson, another heroic person who was to be virtually stoned by her critics inside of industry, wrote her prophetic book entitled ‘Silent Spring’. It put into words of scientific credibility the anecdotes and dialogues about environmental poisons that were killing hundreds of thousands in a deluge of deadly cancers. In response, commercial enterprises hired professional witnesses to testify in legal battles and to propagandize about the benevolent nature of plastics, nuclear energy, insecticides, herbicides, automobiles, asphalt, parking lots, food preservatives, chemical fertilizers, bioengineering seeds, nuclear warfare and the so called war on terror. Quite a list! Flash Back ! 1955! Try to find the truth about the dangers of above ground nuclear testing- which was prove to be the single most deadly source of pollution ever designed-and try to count how many times the government hid all of the written evidence from the time of the first test in 1947 until 1982.
    This is a bit rushed-more later.

  12. rd

    One or more cases related to the numerous problems with the mortgage system are going to have to end up in front of The Supremes.

    It will be interesting to see if the “Original Intenters” view this type of jurisprudence in play at the time the Constitution was written to be relevant and of authority.

  13. Sundog

    Sorry for skipping earlier comments, but agree with RS on the scale of the problem: decline of the West’s soft power.

  14. matthew slaughter

    i don’t think that robo-signers are crooks.

    they have a choice, get fired or sign documents you are told by your well educated experienced boss that it is legal to sign because of corporate resolutions.

    what do you want the robo signers to do? say ‘i refuse to sign’? then they have to explain to their dependents why they, who had maybe a high school diploma or GED, thought they knew the law better than their MBA managers with 20 years experience.

    then they would be out on the street and/or on welfare like all the people whose unemployment has run out.

    1. matthew slaughter

      furthermore, all of the supposed admirers of heroic dissent will be nowhere to be found when the clerk says ‘i refuse’ and is on the street. when that ex-clerk is begging on the sidewalk of whole foods he will reminded by the good people not to stray onto private property, and to get a haircut and a bath before he has the temerity to ask them for money, which they have of course earned without dipping any portion of their pure souls into the muddy waters of reality.

  15. Jardinero1

    Anarchy is the absence of a single coercive power, referred to as the state. You are mistaken when you say: “neglect of the paper trail (sheer anarchy)”. Perhaps you meant chaos which is the absence of order or broken.

    As an anarchist I am a little peeved when speakers and writers use the word anarchy when they wish to describe a system that is chaotic or broken. Anarchy is highly ordered. Markets for goods and services are anarchic. All ecologies are anarchic. Tribal societies are anarchic. Most of human history could be characterized as anarchic. Yet there is no absence of order in any of those cases.

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