decisis at the state level gradually overcame the prevailing nineteenth century conservative judicial formalism in the United States, while formalism prevails in England to this day. American judges eventually became more amenable to the urging of legal realists that judges look to the substantive and policy reasons behind precedents and reject or revise doctrines that caused unfair results.90 Thus, the story of the modern growth of Mansfield’s moral obligation ideas must focus on developments in American caselaw.

INITIAL AMERICAN RECEPTION MIXED

With the formation of the American republic, ‘‘reception’’ clauses in state constitutions provided for the continued application of that English law which had been ‘‘adopted, used and approved’’ prior to the onset of the Revolution.91 By 1776, the moral obligation principle had been recognized as an English common law notion. Holt’s waiver of statute of limitations and adult ratification precedents92 were accepted, and the core of Mansfield’s moral obligation ideas had been suggested, including his open-ended language in Atkins v. Hill (1775)93 and the cases upholding a widow’s ratification of her void contract made while married (1774)94 and a father’s promise to pay for maintenance provided to his bastard child (1763).95 Moreover, Pillans v. Van Mierop (1765)96 was officially English law, since it would not be rejected by the House of Lords until 1778.97 Indeed, a smattering of American cases took Pillans v. Van Mierop seriously in permitting a written contract to act as a substitute for consideration,98 but this heterodoxy was soon squelched.99 Nonetheless, the broad, equitable verbiage of Atkins v. Hill, and its cousin Hawkes v. Saunders,100 were cited with approval in the United States by a determined minority during the nineteenth century.101

American state courts readily accepted Holt’s and Mansfield’s moral obligation precedents for waivers of statutory bars, as statutes of limitations102 and bankruptcy,103 and for ratifications of voidable obligations due to infancy104 and other reasons.105 As to those English moral obligation precedents disapproved of by Lord Denman,106 because they went beyond the waiver and ratification precedents to enforce promises to pay for prior unrequested benefits, the nineteenth century American reception was mixed. Some state courts would follow precedents at variance with the restrictive Reporters’ Note to Wennall v. Adney (1802),107 but whether they were followers of Mansfield and Ellenborough or they followed Kenyon, Denman and Parke in opposing further development of the moral obligation principle, there is no denying that English decisions, rendered both before and after the War of Independence, carried weight in nineteenth century American caselaw. The American position on whether or not the moral obligation principle should be restricted to the scope of the waiver and ratification precedents was scattered and inconsistent

throughout much of the nineteenth century; however, the claim of American treatise writers during the second half of the century that near unanimous support existed for Denman’s position108 was plainly inaccurate, as will be seen in the next two chapters.

Throughout the nineteenth century, disagreement existed in the United States over whether the moral obligation spin on the doctrine of consideration should be contained within the waiver and ratification precedents, as urged by Denman and the Reporters of Wennall v. Adney, or whether extensions should be permitted along the lines of Mansfield’s equitable notions regarding obligations to pay for benefits received under the complementary grounds of the moral obligation principle and quasicontract. Mansfield’s ideas about moral obligation and quasi-contract fell on more fertile soil in the United States, where mature doctrines of a moral obligation principle and restitution would blossom. Most American courts would not, however, break free of the Wennall Note during the nineteenth century as a majority adhered to English doctrine. Massachusetts became a leader in this conservatism by rendering its earliermentioned influential decision in Mills v. Wyman (1825).109 Although growth of the moral obligation principle seemed impeded, that didn’t mean that opposition to extensions of moral obligation could be counted as unanimous, since New York and Pennsylvania courts contemporaneously led a minority position in support of the growth of moral obligation.110

By trumpeting Mills v. Wyman as the definitive American position opposed to moral obligation, some treatise writers111 did, however, contribute to slowing the development of the moral obligation principle. Ironically, the Mills v. Wyman facts even fell outside the boundaries of binding moral obligation in the most liberal early nineteenth century American and English cases. The father in Mills v. Wyman had no legal obligation to pay for the costs of medical care given to his indigent adult son, and the father’s promise to pay was not for the promisor’s personal benefit.112 Even today, the father would not be bound under American law since he received no direct benefit himself. A trio of nineteenth century contract law writers from Harvard denied the growth of moral obligation in favor of a strict common law paradigm of bargain and consideration. Parsons wrote in 1855:

[The widow’s ratification case] Lee v. Muggeridge is clearly wrong, and inconsistent with many subsequent cases in England and this country, where the doctrine is now almost universally recognized, whatever it may have been in some earlier cases, that a mere moral obligation is not sufficient to support an express promise. Thus [the decision in] Mills v. Wyman.113

Langdell, formerly Parsons’ research assistant in writing the above contract treatise, included Mills v. Wyman as a leading case in his pedagogi-

cally innovative 1871 casebook.114 Williston, who edited later editions of Parsons’ treatise, wrote in its eighth edition in 1893: ‘‘In this country the doctrine that a moral obligation would support a promise seems never to have been generally accepted. A leading case is Mills v. Wyman.’’115 On the preceding page, in referring to the Note to Wennall v. Adney, Williston wrote: ‘‘At the present time, it may be doubted whether even this statement of the law does not concede too much.’’116 Williston repeated Parsons’ 1855 quote of Baron Parke: ‘‘a mere moral consideration is nothing.’’117

The overkill of promoting a decision like Mills v. Wyman, with facts which even today would not qualify under the moral obligation principle, as the leading case opposing the moral obligation principle furthered these treatise writers’ interest in containing the unpredictability of moral obligation during an individualistic entrepreneurial age. However, treatise writers of the common law have never had the degree of influence on judicial decision-making that their academic counterparts enjoy in civil law countries. Those American judges sympathetic to the moral obligation principle quietly went about extending the suggestions found in earlier precedents. Ultimately, realist judges would follow Mansfield’s lead in fashioning an independent ground of promissory restitution liability based on the American moral obligation principle.