Francis Wharton's Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought

Abstract

Francis Wharton was one of the Gilded Age's most productive legal scholars. Over a lifetime filled with accomplishment, he wrote comprehensive, well-received treatises on medical jurisprudence, criminal law and procedure, criminal and civil evidence, homicide, agency, negligence, contracts, domicile, conflict of law, and international law. He also wrote books on legal history and legal philosophy. Although Wharton's treatises are still in use, Wharton himself has fallen into obscurity. This neglect is unfortunate because Wharton was fairly representative of an important, but little recognized, strand of nineteenth-century classical legal thought. Based upon studies of Christopher Columbus Langdell, classical legal thought is believed to have posited a radical separation between law and morals. The thesis of this Article is that Wharton's jurisprudence was an intriguing mixture of classicism, evangelical Protestantism, and non-Darwinian evolutionary theory. The thesis of this article is also that in blending law and morals, Wharton was more typical of classical scholars than the more widely studied Langdell.