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A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 
 
 BY 
 
 John Bassett Moore. 
 
 The illustrious editor of the work now given to the public was denied 
 the privilege of seeing more than a fragment of it in print. He died 
 at the moment when he had finished its preparation for the press, and 
 before the proofs of the first volume, as it now stands, had been com- 
 pleted : and it fell to others to supervise the work of publication. This 
 duty was imposed by resolution of Congress upon the present writer, 
 as literary executor of the deceased* editor, and has been discharged 
 strictly withiu the scope of the authority conferred by the resolution. 
 With the exception of clerical ctfm^ffons ifWhe fetation of authorities 
 and in the noting of references, no departures Hiave been made from 
 the editor's manuscript, and it may be said that the work appears as 
 he left it. 
 
 As the editor, up to the very hour of his death, was busily engaged 
 upon this his last great task, as if he were trying securely to adjust 
 the capstone upon the monument of legal and historical works which 
 his genius and industry had created, it is appropriate that a place 
 should be given here to a brief account of his life and labors. 
 
 Francis Wharton was born in the city of Philadelphia, in the State 
 of Pennsylvania, on the 7th of March, 1820. On his paternal side, he 
 came of a race of men which has given many eminent names to the 
 commerce, the polities, and the bar of his native State. En the early 
 days of the commonwealth his family belonged to the Society of Friends. 
 But his father, Thomas Isaac Wharton, whose mother was Margaret 
 Rawle, the bearer of a patronymic distinguished in the legal annals of 
 the country, left that religious sect early in life to become a captain of 
 infantry in the war of 1812. At the close of the conflict he entered 
 upon the practice of law in Philadelphia, and soon afterwards married 
 Arabella, second daughter of John Griffith, a merchant of that city, 
 son of the Attorney-General of New. Jersey of the same name, and 
 brother of William Griffith, a judge of the circuit court of the United 
 States, and author of several legal treatises.* This lady is said to have 
 been distinguished for great loveliness of character, a fine poetic fancy, 
 and a rare power of felicitous expression. 
 
 As a lawyer, Thomas Isaac Wharton was remarkably successful, but 
 he also exhibited strong literary instincts. In his earlier days he con- 
 
 * Memoir of Dr. Francis Wharton: Philadelphia, 1891. 
 194A 1 1 
 
2 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 
 
 tributed to tin- "Portfolio*' under Dennie's management, and was sub- 
 sequently one of the editors of the "Analectic Magazine." Later, 
 when la- had devoted himself more Btrictly to legal studies, he, in con- 
 nection with others, was employed upon the preparation of a dratt of a 
 code of the civil statutes of Pennsylvania, lie was also the editor of 
 the first edition of Wharton's (Penna.) Digest, and of the six volumes 
 of Wharton's Repoi i-. 
 
 At the age of seventeen Francis Wharton was entered as a student at 
 5fale College. In L839 he was graduated ; and he then returned to Phila- 
 delphia, and became a student of law in his father's office. In 1843 he 
 was admitted to the bar. While a student of law he w rote constantly for 
 the periodicals of the day, and contributed many articles to •• Hunt's 
 .Merchants' Magazine." This literary habit clung to him after he had 
 entered niton the practice of his profession, though his success al the bar 
 was rapid. He edited fora time the •• North American and United States 
 Gazette," and subsequently, while still engaged in the practice of the 
 law. the •• Episcopal Recorder." Be also participated in political affairs 
 as a strenuous supporter of the Democratic party, ami when John Iv. 
 Kane was Attorney ( reueral of Pennsylvania was one of his assistants. 
 It was in this position that he was first led to write on the criminal law 
 and to the composition of practical legal teatises. 
 
 In IS VI there came a turning point in Ins career. Two years pre- 
 viously he had married Miss Sydney Paul, daughter of Comegys Paul. 
 of Philadelphia, and her death in September, L854, resulting in the 
 breaking up of his home, seems to have quickened and confirmed the 
 inclination he had long exhibited for charitable and religious occu pa 
 
 tions. It is said that while a student of law he desired to become a 
 clergyman, but was dissuaded by his father. Put twelve years after 
 his admission to the bar he finally abandoned the active duties of a 
 legal practitioner, and became a teacher chiefly on theological topics. 
 In 1856 In- made a tour through the West, distributing Bibles ami 
 tracts, and during this journey visited Kenyon College connected with 
 which is a theological seminary), at Gam bier, Ohio. Here he vas 
 induced to accept a professorship, and while he lectured on English 
 history and literature and on constitutional law. he entered de*plj into 
 the religions life of the place and delivered discourses on theological 
 Subjects. A part of these maj he found in a book entitled ••Modern 
 Theism," which contains a series of lectures delivered by him to the 
 students on •• Modern Infidelity." 
 
 In 1859 Dr. Wharton paid his first visit to Europe, and after his 
 return was married. on December l'T, I860, to the daughter of Lewis p. 
 
 Ashurst, of Philadelphia. In 1862 he fulfilled his lon.u-cherished de- 
 sire to enter the ministry of the Episcopal ( liurch. He was ordained a 
 
 deacon at Cleveland, Ohio, and a month later received priest's orders. 
 
 The first parish to which lie was called was that of St. Paul's, at P.rook- 
 line, Mass.. whithei he went in 1863. After six years of successful 
 
A. BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 6 
 
 • 
 
 labor in tin's place lie went to Europe for a second time, and while there 
 completed his work on the "Conflict of Laws." which bore evidence of 
 a reviving interest in purely legal studies, which he had never entirely 
 abandoned. Fiom this period on he devoted more and more of his time 
 to the composition of works on legal topics. 
 
 On his return from Europe Dr. Wharton, finding that an old affection 
 of the throat incapacitated him from preaching, resigned his parish and 
 accepted a professorship in the Seminary of the Episcopal Church at 
 Cambridge, where he lectured, among other things, on Ecclesiastical 
 Polity and Canon Law. At the same time he delivered lectures at the 
 Boston University on the Conflict of Laws. While thus busily engaged 
 as a teacher he produced in rapid succession works on Negligence, 
 Agency, and Evidence. But the stress of his many occupations and the 
 sedentary mode of life wdch they necessitated were too wearing, and 
 the physical weakness, especially in the throat and heart, which they 
 engendered, compelled him in 1881 to give up lecturing and go again to 
 Europe. He remained abroad till the spring of 1883, when he returned 
 to the United States and established his home in his native city of 
 Philadelphia, intending to devote himself for the future to his legal 
 publications. This plan, however, was soon altogether changed. 
 
 Early in the year 1885 Dr. Wharton was invited to take the post of 
 Examiner of Claims, or Solicitor, for the Department of State, at Wash- 
 ington. After due reflection he accepted the position, and late in March 
 entered upon the performance of its duties. 
 
 It would be difficult to conceive of greater fitness of p'erson for 
 place than that of Dr. Wharton for the office to which he was called. 
 Although he left the. bar for the church early in life, the impress of his 
 legal training remained and his predileciou for the law never forsook 
 him. Whatever might be the subject that occupied his attention, it 
 was to its legal aspects that he was especially attracted. His mind 
 was singularly versatile, and his sympathies were broad and easily 
 touched. He possessed, besides, a strong vein of sentiment, which not 
 infrequently had a controlling effect upon his conduct. He was fond 
 of poetry, and sought diversion and recreation in works of fiction. 
 Endowed with, such generous tastes and faculties, technical disputa- 
 tions were little to his liking. The narrow view of a question never 
 appealed to him. It was in the discussion and application of broad 
 and general principles that he found his greatest delight, and it was 
 in the natural development of this liberal disposition that the lawyer 
 became the eminent and accomplished student of jurisprudence. 
 
 In addition to his knowledge of law, Dr. Wharton possessed an ex- 
 tensive acquaintance with history, lie was accustomed to say that 
 Englishmen knew less than Americans of English history, and if he 
 was to be taken as an example of his countrymen his observation was 
 certainly correct. His knowledge of the history of England was singu- 
 larly thorough and minute. It was not confined to the leading iuci- 
 
4 A BRli:r 8KET< II OF THE LIFE OF FRANCIS WHARTON. 
 
 dents which are stated in the formal histories, but extended to the lives, 
 tlit- Letters, and the minor accounts of men ana women. With the ex- 
 ception of the history of tin- United States, he knew more thoroughly 
 that of England than of any other country : but he was also a diligent 
 stndenl of history, both ancient and modern, in the most general sense. 
 What he lead he was enabled to retain by the po -not' an unusual 
 
 memory. He made few notes and kept no common place hooks, and 
 did not burden his mind with useless dates and facts. Bis memory 
 was philosophical rather than circumstantial. If questioned in respect 
 to a particular circumstance, he often expressed an inability to answer. 
 l>ut, if called upon to consider a particular subject, he was ablej with 
 a rapidity ami completeness seldom witnessed, to draw from the stores of 
 his memory a copious supply of historical illustrations and analogies. 
 
 The labors of Dr. Wharton in history and jurisprudence and his 
 fondness for the discussion of general principles led him to the study 
 of international law. and prepared the way for his eminence as a pub- 
 licist. Ilis first important achievement in this field is found in his 
 treatise on tiie "Conflict of Laws," or "Private International Law," 
 which includes a comparative view of Anglo-American, Roman, Ger- 
 nian. and French jurisprudence. Concerning this work, an intelligent 
 and discriminating critic in the '•Southern Law Review" expressed the 
 
 opinion that upon it would rest its author's Lasting and solid fa 
 
 There is reason to believe that Dr. Wharton shared this opinion, for he 
 took an evident pride in the book, and often referred to the criticism in 
 the •• Southern Law Review" as one of the most appreciative and sat- 
 isfactory ever written upon any of his works In 1885 appeared his 
 "Commentaries on Law," which embrace chapters on international 
 law, both public and private. 
 
 Such was the preparation of Dr. Wharton for the discharge of his 
 new duties. Learned both in history and in jurisprudence, and with a 
 wide ami established reputation as a publicist, he was able to speak as 
 one having authority, lie was not compelled to search for principles 
 and precedents; he had already reduced them to possession, and it 
 was only necessary for him to apply them. The value of such a prepa- 
 ration can be estimated only when we consider the distinctive charac- 
 ter of international Law as a branch of jurisprudence. The average 
 practitioner, trained in the strict school of the common law and accus- 
 tomed to the technical disputat ions of the ordinary judicial courts, finds 
 himself, when called upon to deal with matters involving international 
 law. confronted with a new type of questious, in the solution of which 
 his previous education affords him little assistance. In reality one of 
 his first tasks will he to rid his mind, so tar as he may be able, of its 
 prep08SeSSion for technical reasoning. The books which he has been 
 accustomed to consult, witli a view to obtain a ••case in point." can no 
 
 longei be accepted as guides. Even if he should find in the courts of 
 lbs own country a decision upon the question which he has under con- 
 
A BRIEF SKETCH OF THE LIFE OF FRANCIS. WHARTON. 5 
 
 sideration, he would then be required to ascertain whether that decision 
 had been accepted as being in accordance with the principles of inter- 
 national law; for in such matters one nation is not bound to accept as 
 conclusive the decisions of the courts of another. He would then find 
 it necessary to embark upon the study of history and the works of pub- 
 licists, and to apply with such guides the principles of reason and jus- 
 tice. Although in this department of learning the United States can 
 claim such distinguished names as those of Wneaton, Story, Kent, 
 Lawrence, Field, and Wharton, the study of international law has for 
 the most part been neglected in this country. When the subject is 
 taught in the schools, the course of instruction is usually confined to a 
 few lectures of a more or less perfunctory character, and perhaps to a 
 few lessons from text-books which deal with the most elementary doc- 
 trines. No attempt is made to trace the history of the subject, and the 
 remarkable contribution of the Government of the United States to its 
 progressive development is almost wholly overlooked. A gentleman 
 not long since in the diplomatic service of the United States recently 
 told the writer that one of the most distinguished publicists of Europe 
 declared to him that he found more to interest and instruct him in the 
 annual volume of the Foreign Relations of the United States than in any 
 other current publication on international subjects. This, he said, was 
 due to the freedom aud originality with which questions were treated; 
 a circumstance in large measure attributable to the unique position of 
 the United States in the family of nations. 
 
 Dr. Wharton entered upon the discharge of his duties in the Depart- 
 ment of State with all his accustomed energy and enthusiasm, and for a 
 time fouud ample occupation in the daily work of his office. Coming 
 into the place soon after a change of administration, he was required 
 to give opinions upon a large number of complaints which had in the 
 interval been submitted to the Department with a view to their diplo- 
 matic presentation to foreigu governments. This influx of claims 
 attends every change of admiuistration without reference to its polit- 
 ical character. The principle of res judicata, though not infreipiently 
 invoked, is not applied with the same strictness in the executive depart- 
 ments as in the courts ; and each suitor whose claim may have been 
 the subject of an adverse decision finds room to hope that in the change 
 of the head of the department his complaint may receive favorable con- 
 sideration. In the first year of his official life Dr. Wharton gave for- 
 mal written opinions upon 221 claims involving various questions of 
 law. But his labors were not in the mean time restricted to the exami- 
 nation of claims. Questions of international policy were also the sub- 
 ject of his consideration. In the spring of 1885 the Colombian Gov- 
 ernment, with a view to suppress an insurrection which had arisen in 
 that country, issued two decrees of great importance to foreigu nations. 
 By the first of these decrees, certain ports then in the possession of 
 the insurgents were declared to be closed to foreigu commerce ; and the 
 
6 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON 
 
 penalties and forfeitures affixed by Colombian law to smuggling were 
 denouuced against the goods which might be impoi ted intoor exported 
 from those ports, and against tin- vessels which might engage in trade 
 with tilt-in. By the second decree it was declared that the. vessels 
 which, u in let the flag of Colombia, wen- then employed by the insur- 
 gents in hostile foreign commerce with that porl did not belong to the 
 Colombian Government, and had no right to tly the Colombian flag; 
 and for these reasons they wnc declared to be beyond the pah' of inter- 
 national law, and their repression by the aimed tore- of friendly pow- 
 ers was invited. These decrees raised two questions, on which Dr. 
 Wharton always held and expressed very decided views — the rights of 
 neutrals and the international status of insurgents. The United States 
 refused to t real the decrees as sustainable on principles of international 
 law. The right of a government t» (dose, by a decree, ports not in its 
 possession, not actually blockaded, was denied. At the same time the 
 Colombian minister was informed that the United States would not 
 treat the vessels of the insurgents as pirates. It is not improper to 
 say that Dr. Wharton materially contributed, by his learningaud skill, 
 to the argument made by the United States on that occasion. 
 
 Before the close of his first year in the Department of State Dr. 
 Wharton began the compilation of a digest of the opinions and deci- 
 sions of executive and judicial officers of the United States on ques- 
 tions of international law, with legal and historical notes. The work 
 being too large and scarcely popular enough in character to be under- 
 taken by a private publisher, its printing was provided lor by a reso- 
 lution of Congress. An intelligent critic has recently observed that if Dr. 
 Wharton hail done nothing else during his industrious life for the sci- 
 ence of jurisprudence, the '•International Law Digest" would, quite 
 apart from his labors in the field of criminal law and of the COUflict of 
 laws, he his enduring monumeut. Such defects as tin* work poss< - 
 are inherent in its character. It was drawn not only from published 
 documents, but also from the unpublished records of the Department 
 of State, beginning at the origin of the Government. In dealing with 
 the latter it was necessary, owing to the number of subjects treated 
 and the voluminous character of the discussions, to omit a great deal, 
 and to select such parts as were deemed illustrative Of the doctiines 
 
 most consistently maintained. Such a process of selection necessarily 
 reflects in some degree an editor's personal bias. I'-ut the "Interna- 
 tional Law Digest" remains a monument to its compiler's learning aud 
 industry, and is full of interest and instruction. The first edition was 
 soon distributed, and in 1887, by direction of Congress, a second edition 
 
 was printed. 
 
 After the publication of this work Dr. Wharton undertook the labor 
 of editing the ••Diplomatic Correspondence of the American devolu- 
 tion." Provision for printing was again made by Cougr ss, and he 
 
 worked at his new task incessantly up to the date of his death. Only 
 
A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 7 
 
 a few days before that event he received and corrected some proofs of 
 the first volume. 
 
 This brief outline of the life of Dr. Wharton during - the period of less 
 than four years which he spent in the Dep irtment of State presents a 
 record of unusual character. The activity of his mind was incessant, 
 and he wrote with rapidity; but, with all his learning and all his facility, 
 it would have been impossible to accomplish in the short space of four 
 years the immense and varied tasks he undertook, if, in addition to his 
 other ipialities, he had not possessed tbat of untiring industry. " Dogged 
 industry"' was the term which he liked to apply to his habit of labor. 
 His capacity for work seemed to be almost unlimited, and he was never 
 idle. He rose early in the morning, usually about 6 o'clock, and imme- 
 diately resumed his tasks. His labors the days could not be said to 
 divide ; for he gave few hours to sleep, seldom more than five, and often 
 less, and the first hours of the morning generally found him still at work. 
 Sometimes he went out early to walk, in order to refresh himself for the 
 day's labor; and this was about the only physical exercise he took. He 
 usually reached his office before 9 o'clock, and then worked through 
 the day without intermission. He not only worked constantly, but also 
 eagerly, in order to accomplish as soon as possible tli3 task he had set. 
 He possessed in the highest degree vivacity of intellect. This quality 
 imparted to the severest labor keen aud apparent pleasure, and contrib- 
 uted to sustain his exertions. He was also able to perceive at a glance 
 any pertiuency in what he read to the subject under consideration. In 
 this way he was able to read with great rapidity. He possessed little 
 fondness for books for their own sake. They were merely his instru- 
 ments. He valued them solely for what he could obtain from them, 
 aud, after extracting what suited his purpose, put them aside. He was 
 not what we style a book lover. Hence, as he lived for the most part 
 in close proximity to large public libraries, he collected few books, and 
 his private library, which was c miparatively sin ill, was not selected 
 with reference to his work. His quickness of perception and his abil- 
 ity to appreciate at its relative value whatever came under his notice 
 enable! him to employ with unusual ease the labors of others. More- 
 over, he understood so thoroughly and so comprehensively the subjects 
 on which he wr*ote, that, in directing aud utilizing the labors of others. 
 he was able to give to each thing its proper place and its appropriate 
 effect. Thus he was not compelled to complete one branch of an argu- 
 ment before he proceeded to another. Keeping the whole in his mind, 
 he was able to pass from one part to another, and, where vacant places 
 were left, to till them up as his collection of materials was completed. 
 
 Dr. Wharton's capacity for productive Labor can not be more forcibly 
 shown than by an enumeration of his principal works. His first repu- 
 tation as a legal author was made by his writiugson criminal law. His 
 works on this subject are four in number, and comprise treatises on 
 "Criminal Law,'' " Criminal Pleading and Practice," and "Criminal 
 
8 A BRIEF SKETCH OF THE LIFE OF FEANCIS WHARTON. 
 
 Evidence," and two volumes of" Precedents of Indictments and Pleas." 
 The treatise od "Criminal Law " embraces two volumes, and is now in 
 its imiili edition : that on " Criminal Pleading and Practice," in one vol- 
 ume, has passed through an equal nnmber of editions; that on "Crim- 
 inal Evidence" is in two volumes, and is also in its ninth edition. 
 The "Precedents of Indictments and Pleas," in two volumes, has 
 reached a fourth edition. In conjunction with Dr. Stille he wrote a 
 work on " Medical Jurisprudence," which is also in its fourth edition. 
 I If next wrote a commentary on "Agency and Agents," in one volume ; 
 then a treatise on the ,i Law of Negligence," which is also in one volume, 
 and lias reached a second edition. Following these came his work on 
 the "Conflict of Laws." also in its second edition: a commentary on 
 the "Law of Evidence," in two volumes, now in its third edition: a 
 work on "Contracts," in two volumes; and "Commentaries on Law." in 
 one volume. Besides these practical treatises, he published a volume of 
 " State Trials." a work full of historical interest, with notes written in a 
 peculiarly charming style, which appeared in 1849, when the author was 
 twenty nine years of age. The "International Law Digest," to which 
 reference has already been made. comprises three volumes, and the " Dip- 
 lomatic Correspondence of the Revolution," now appears in six volura 
 In order to appreciate the extraordinary facility with which this large 
 number of voluminous works was prepared, it must he remembered that 
 for some years his labors as a writer of treatises on law were suspended, 
 and that all through his life he was a constant contributor to periodicals. 
 An attempt having been made to describe ami explain in a general 
 way the extent of Dr. Warton's achievements as a publicist, it will he 
 interesting to consider more in detail the qualities of his mind, his 
 habits of thought, and the distinguishing traits of his character. Such 
 a combination of faculties as he possessed is seldom witnessed, and it 
 was only after seeing him at his daily tasks that one could appreciate 
 the richness and variety of his mental endowments. Refer* nee has 
 already been made to the quickness and breadth of his comprehension, 
 to his capacity for labor, and to the exceptional character of his 
 memory. It is only by this combination of faculties that we can ac- 
 count for the extent of his acquisitions. No industry, however con- 
 stant, could have enabled him to accomplish so much if lie had not 
 possessed extraordinary mental powers. His works show the extent 
 of 1 1 is erudition. It was in his treatise on the Conflict of Laws, or Pri- 
 vate International Law. that he attempted to CO\ er the w idesl field of 
 legal investigation. If his acquirements had been wanting either in 
 a n i pi i tm I e or in thoroughness, the defect would then have been revealed. 
 I'.ut none of his works was ever received with more instant recognition 
 or with higher approval, not only by the public, but also by scholars 
 ami jurists. It did more than any other of his publications to extend 
 his reputation abroad, and no doubt materially contributed to form 
 that high estimate of his learning and abilities which induced the Lni- 
 
A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 9 
 
 versity of Edinburgh to confer upon him the degree of Doctor of Laws, 
 and the Institute of International Law to enroll him as one of its mem- 
 bers. For when those honors were conferred upon him the "Interna- 
 tional Law Digest" had not been written. 
 
 Dr. Wharton also possessed powers of imagination of a high order. 
 It is this that distinguishes the narrow logician from the creative 
 thinker. Voltaire said of Dr. Clark that he was a mere reasoning ma- 
 chine. This could never have been said of Dr. Wharton, lie did not, 
 indeed, possess that highest type of imagination which has enabled a 
 few men in different ages to create distinctive systems of thought, and 
 to connect their names with new social, political, or legal theories. He 
 made no professsion of originality in this rare sense. He was always 
 ready to avow his obligations to others, and was wont to disclaim any 
 originality of thought. He declared himself to be especially indebted 
 to German writers, whose language he understood and whose works he 
 carefully studied. But he was never the victim of logic. He sought 
 to discover aud apply principles, and not merely to find reasons to 
 justify other men's conclusions. He studied and comprehended ques- 
 tions in their wider relations, and not singly aud apart. He was es- 
 pecially quick to perceive analogies and reasoned much in that way. 
 This imparted to his discussion of various topics unusual breadth aud 
 suggestiveness aud exceptional harmoniousness of view. 
 
 With his great fondness for history, and his extensive learning, it is 
 not strange that Dr. Wharton should have dealt much in precedents, 
 but he was never the slave of authority. Stare decisis was not a 
 rule whose limitative force he felt himself bound to acknowledge. "So 
 it hath been decided" was not enough to silence his objections. That 
 he diligently searched the books for opinions aud precedents in order 
 to ascertain what had been determined the wealth of his citations 
 amply shows. He always knew the latest cases. But he never held 
 himself to be precluded from criticising and disapproving what he 
 cited, no matter how high the tribunal from which the expressions 
 came. 
 
 Though Dr. Wharton often dissented from the authorities he cited, 
 his opposition was never factious, nor the result of a fondness for dis- 
 putation. Controversies of a personal character he sedulously avoided, 
 esteeming it a sign of weakness rather than of strength to seek to win 
 a cause by abuse of an adversary. Where he found himself in opposi- 
 tion to the courts, it was because their actions did not square with what 
 he believed to be the reason, the justice, and the philosophy of the mat- 
 ter. When of this conviction, he did not hesitate to dissent and protest. 
 The amplitude of his comprehension enabled him to work out a system 
 of principles in law, politics, and theology with singular clearness aud 
 consistency. To those principles he was devotedly attached ; and he 
 was always ready to maintain them. The basal principle of his system 
 was that of liberty, and it gave color aud direction to all his thoughts. 
 
10 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 
 
 There was nothing that appealed to him so Btrougly as the efforts of 
 men and of natious to work out the problem of self government. He 
 never could forget that it was by the exercise of the right of revolution 
 that the people of the United states attained their independence and 
 
 assumed a place among tin* nations of tin- earth. The annals of oar 
 early history, the struggles, the vicissitudes, ami the triumphs of the 
 makers of the Republic were always the subjects of his especial study 
 
 and admiration, and to the exposition of the events of that period, and 
 of the causes and course of the conflict, he devoted the last hours of his 
 life, it is often mentioned as the reproach of scholars and men of let- 
 ters that in the contemplation of abstract themes they lose sight of and 
 cease to appreciate the generous motives which operate upon the con- 
 duct of peoples in their Struggles for freedom, in the critical study of 
 the acts and character of individuals they become oblivions of their sac- 
 rifices and patriotic exertions. It was not so with Dr. Wharton. He 
 had no sympathy with that spirit of detraction which seeks to belittle 
 the beginnings of American history. He was intensely patriotic and 
 intensely American. It was his especial delight to dwell upon the sim- 
 ple life and the simple manners of our Revolutionary period. He was 
 beyond that narrow conception which confounds simplicity with bar- 
 barism. It is the tendency of society in every age to consider itself as 
 the best exponent of civilization, and to regard its forms and ceremo- 
 nies as the embodiment and the test of progress and refinement. This 
 delusion Dr. Wharton did not share. He was sensitive to the conven- 
 tionalities of life, but lit 1 was able to look beneath its shows and osten- 
 tation, and estimate its purpose and value. He felt contempt for igno- 
 rance and detested bad manners, and neither pretense nor display could 
 conceal them from him or shield them from the shafts of his ridicule. 
 On the other hand, he thought that simplicity of life imparted dignity 
 to character and enhanced the effect of greatness. 
 
 It has already been observed that the fundamental principle of Dr. 
 Wharton's .system of thought was liberty. He ad vocated this princi- 
 ple as the beneficent source of all true progress. He believed in free 
 thought, free government, and fneseas. His views on all these sub- 
 jects arc fully expounded in his " Commentaries on Law.*' In law. as 
 governing individual action, he belonged to what be terms the progress- 
 ive division of the historical school. " holding that the law of a nation 
 18 the product of its conscience and need at each particular era." He 
 was equal!} opposed to the analytical school, of which Bentham and 
 Austin are the chief exponents, which looks to the final settlement of 
 law by a code founded upon the doctrines of utility, ami to the theo- 
 cratic school, which claims for its rules jure dioino sanction. In opposi- 
 tion to these schools he accepted the arguments Of Hooker ill his great 
 
 work on " Ecclesiastical Polity." This work, as Dr. Wharton observed, 
 is unfortunately chiefly known by a single passage containing a sonor- 
 ous eulogium on law. Almost the only point on which he agreed with 
 
A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 11 
 
 Austin was in thinking that this passage is somewhat rhetorical. Dr. 
 Wharton was accustomed to say that it was the least valuable sen- 
 tence in the wonderful production in which it is found. According to' 
 Hooker, divine law, when applied to men in their mutable relations, and 
 not definitive of dogmatic theology, is also mutable. Much more so r 
 then, must this be true of human law, which is necessarily formulated 
 for the government of men under particular conditions. Referring in 
 his "Commentaries on Law "' to Hooker's argument against the theo- 
 cratic views of the extreme Puritans, Dr. Wharton says: " Two points 
 were taken iu the reply of this illustrious thinker, points equally fatal 
 to any system of absolute law : (a) Reason aud revelation, he main- 
 tained, including in revelation whatever law claims jure divino sanction, 
 have coordinate authority ; reason has to verify the credentials of rev- 
 elation, then to define its meaning, then to determine its applicability. 
 (b) Whatever concerns man in his mutable relations must of itself be 
 mutable ; the boat tosses with the wave on which it reposes, the plas- 
 ter takes the mold of the face on which it is impressed." These views, 
 which are practicable only when reason is left free, Dr. Wharton fully 
 adopted. 
 
 But in order that men may be able to work out their destiny in 
 accordance with the dictates of reason there must be free government. 
 On this ground Dr. Wharton advocated the widest liberty of individual 
 action compatible with social order. Law must, he held, in order to be 
 effective, be the emanation of the conscience and needs of the people; 
 but he also maintained that it should impose as little restraint as possi- 
 ble upon the freedom of action of the individual. He was a disciple of 
 Jefferson, and fully accepted the doctrine of laissez /aire. He rejected 
 the notion that a majority of the people, because they possess the power 
 to rule, have also the right to mold the opinions, and form and regulate 
 the lives of the rest of the community. 
 
 In international law Dr. Wharton was a strenuous advocate of liberal 
 principles, and in his exposition of the policy of the United States he 
 laid especial stress upon the importance of preserving the rights of 
 neutrals. Whenever he found a decision either of the executive or of 
 the judiciiry which seemed to him to be unduly restrictive of those 
 rights he never faded to combat it. There was one case in particular, 
 arising out of the civil war in the United States, whose authority he 
 never neglected an opportunity to controvert. This was the case of the 
 Springbok, in which the Supreme Court of the United States condemned 
 a cargo bound for a neutral (British) port on the ground that it was 
 intended to be transshipped at that port and forwarded on another ves- 
 sel to a port then under blockade. Bis most thorough and exhaustive 
 discussion of this case is found in the "International Law Digest." 
 The decision of the Supreme Court not having beeu accepted by the 
 British Government as being in conformity with the principles of inter- 
 national law, it was brought for examination before the British- Ameri- 
 
12 A BRIEF SKETCH OF THE LIKE OF FRANCIS WHARTON. 
 
 can Claims Commission, organized under the treaty of Washington. 
 That tribunal affirmed the correctness of the Supreme Court'* decision, 
 notwithstanding the able and convincing arguments against it. Among; 
 these Mr. Whartou was wont to refer with especial admiration to that 
 submitted to the Commission by his lifelong friend Mr. Evarts, an 
 argument full of learning and logic, and well worthy the study of any- 
 one who desires to comprehend the principles involved. 
 
 It is not a little remarkable that the last published expression of Dr. 
 Wharton's views on law ami government should have contained a pro- 
 test against the doctrine laid down by the Supreme Court and accepted 
 bj the Commission in the ease of the Springbok. In December, L888j 
 the editor of "The Independent" addressed a letter to a number of 
 eminent men, requesting suggestions as to what changes were needed 
 in the Constitution of the United State- in order to bring- it " into closer 
 sympathy with the present status of political thought." Dr. Wharton 
 was one of the persons thus addressed, and his reply was published.) 
 under the title of " Patches on the Constitution," only a little more 
 than a month before his death. It contains the most comprehensive 
 expression to be found in so small a compass of his opinions on law. pol- 
 itics, and government, and is in every respect so characteristic, both in 
 substance and in style, that with the consent of the editor of "The 
 Independent" it is republished as an appendix to this sketch. 
 
 It is proper that something should besaid in regard to Dr. Wharton's 
 style. In a review of his "Commentary on the Law of Contracts" a 
 writer in the English "Law Times" said : 
 
 In certain aspects this is a peculiar law book. It is written with more attention 
 to reasonable elegance of style than legal writers usually practise. Full of 
 
 learning and research, il is not wearisome i<> read. Matter is never made the slave 
 of form: but, at t he same time, the author avoids those awkward ami by no means 
 perspicuous attempts at expression, such as "ami which," or " that that," which 
 disfigure our text-books and judgments. Lastly, in incidental sentences it will be 
 found that, in estimating the value of principles, the author employs a native orig- 
 inality guided rather than expelled by the process of Legal training. 
 
 It is a distinctive feature of Dr. Wharton's books that, in addition 
 to their convenience and authority as works of reference, they possess 
 
 a peculiar literary charm. This is due in large measure to the freshness 
 Of his thought and the force and vivacity Of his forms of expression. 
 
 His tendency was to be diffuse rather than concise. Be wrote with 
 
 BUCh facility, and could so easily command words in which to convey 
 his thoughts, that he was little given to condensation ; but with all the 
 learning which his works display he never gives the reader the im- 
 pression that his erudition was a burden to him. He read understand- 
 ingly, and wrote with a view- to elucidate the propositions which he 
 wishe.i to establish. He never consciously or unconsciously sought to 
 impress his views by the employment of thai ragueand nebulous style 
 of argument h\ which the reader is sometimes led to mistake mysterious 
 and intangible generalizations for profundity of thought. If he ever 
 
A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 13 
 
 indulged in speculations which could not be reduced to a definite state- 
 ment, he nev.er attempted to utter them. He often referred iu a humor- 
 ous strain to the mystical productions of writers whose ideas, he said r 
 seemed to have been absorbed by an " inverted perspiration." Dr. 
 Wharton always endeavored to be perspicuous. Occasionally his 
 sentences are somewhat involved and complex: in construction, but they 
 are never obscure. They give the impression of having been thrown 
 out fresh from the writer's mind iu the vividness and energy of rapid 
 composition. He was much given to the employment of a colloquial 
 or dramatic form of expression, in which the argument is put into the 
 mouth of a person who is supposed to bespeaking in an inartificial and 
 familiar way upon the proposition under discussion. Another and con- 
 stant quality of Dr. Wharton's style is the subdivision of his argument 
 into separate parts, each one of which is pursued aud exhausted by 
 itself. The reasons advanced in each part are generally stated in the 
 same distinctive and orderly way. This method he always employed 
 iu his books, and the habit clung to him even iu his briefer discussions 
 and in his purely historical writings. This analytical method of state- 
 ment imparted clearness as well as a certain didactic quality to his 
 style. It was by the employment of a multitude of reasons, rather than 
 by the selectiou and repetition of a single aud overwhelming argument,. 
 that he sought to establish his proposition. It was the quick succession 
 of blows, rather than the single ponderous shock, that overcame the 
 antagonist. 
 
 It is often the fvite of writers who contribute iu no small degree to 
 mold opinion to be little known except iu their books. The life of an 
 industrious writer of treatises on law is necessarily spent more or less 
 in seclusion. He must have time not only for thought, but also for re- 
 search. Unlike the author of descriptions of life aud manners, who 
 acquires his knowledge by contact with men, the writer on law must 
 gleau the books for his materials. His writings have little circulation 
 among the mass of the people, and his labors do not reach the popular 
 imagination ; hence his personality is generally little inquired about 
 and little known. Dr. Wharton, in large measure, escaped this fate. 
 He was fond of social intercourse. He especially delighted iu the 
 society of young men, whose hopeful views and unchilled enthusiasm 
 found a ready response in his own ardent and progressive temper. In 
 mind and in thought he never grew old. In his studies and in his 
 writings he possessed all the energy and vivacity of youth. These 
 traits he carried with him into social life. Wherever a few persons 
 were gathered together for social diversion, and Dr. Wharton made 
 one of them, he was the life of the company. He led in the conversa- 
 tion, and was always sparkling, suggestive, and full of humor. He 
 was a master of playful irony. It required a quick and sympathetic 
 perception to follow and appreciate him, but even those who could 
 thoroughly do neither could not fail to catch the contagion of his lively 
 aud spirited manner. At such times his countenance was peculiarly 
 
14 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON*. 
 
 bright and expressive, and his eyes gave anticipatory dashes of the 
 thoughts he was about to utter. Bis humor was of a rare .quality, and 
 was turbulent and irrepressible. There were few subjects so serious 
 that In- could not perceive in them a humorous aspect. One would 
 scarcely look lor such things in a work on criminal law: hut in his 
 treatises on that subject we find, under the title of "Diversity of 
 Knowledge among Judges," a disquisition on the intoxicant quality of 
 liquors, in which the cases and decisions are discussed both upon prin- 
 ciple and upon authority, but with a liveliness and bumorousness of 
 manner quite unexpected and entertaining. In the « International Law 
 Digest" we find entertain men 1 and instruction peculiarly combined in 
 the chapter on official aud social intercourse of diplomatic agents. 
 The humorous passages found in his serious writiugs very well illus- 
 trate Dr. Wharton's manner in general conversation, and show the 
 ease with which be could apprehend and state arguments. 
 
 Early in iss!) Dr. Wharton's physical powers began perceptibly to 
 fail. The affection of the throat with which he had for a long time 
 been troubled to the serious impairment of his voice, assumed an 
 aggravated form, rendering his breathing labored and difficult and the 
 efforl to speak injurious. He was fully conscious of the critical features 
 of his condition; but of all those who were concerned in his welfare he 
 himself exhibited the least anxiety. lie was always reticent as to his 
 feelings, and rarely referred to the personal incidents of his life: but 
 be was, besides, not afraid to look to the end. By the 1st of February 
 his malady had made such rapid progress thai it was thought advisable 
 that he should £0 to Philadelphia in order that he might undergo ex- 
 amination at the hands of consulting specialists. On the morning of 
 the day on which he undertook the journey he came to his office as 
 usual, in order to look over his correspondence and dispose of any 
 business that might require attention. Although fully aware of his 
 danger, he exhibited no sign of despondency, but rather a quiet deter- 
 mination to face the worst that might come without faltering. The 
 lesiilt of t he consultation held in Philadelphia was communicated to 
 the writer in a letter 80 illustrative of the t cm per and disposition of the 
 sufferer thai it is reproduced in this place: 
 
 I'iiii adelphia, February 1. 1-- 
 Deab Mr. Moori : I bare been undergoing a thorough examination bj a con- 
 sulting committee of specialists to-day, and they coincide in saying thai there are 
 oritioa] Eeal ares in m* case which can only be mel i>> my being confined t < > my honse 
 and chamber for two weeks under a specific treatment. Now , as the disease is purely 
 local, it will greatlj amuse me it" yon will Bend, as usual, any papers which I can 
 repoii upon. 1 will consider this a particular favor. I will also l.r very glad to see 
 yon, inn | am positively ordered nol to eaj a word, bo do nol come unless there is 
 something yon can explain to me better by talking than writing. Now be bum to 
 Bend to me any questions thai oome op, just as you did before. Please show this 
 note to Mr. Bayard, with my love. I write this in Philadelphia, expecting to return 
 to-night. 
 
 Evei 5 ours, 
 
 F. W. 
 
A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 15 
 
 Following this letter was a postscript, requesting that a gentleman 
 who was assisting him in the correction of some proof sheets would call 
 upon him at his house immediately after his arrival from Philadelphia. 
 
 After his return from Philadelphia Dr. Wharton never left his 
 chamber. The treatment under which he was placed required elose 
 confinement and absolute abstention from attempts to speak. For a 
 time it seemed to afford relief, and he was encouraged to hope that he 
 might be out again. It had been suggested that it might be necessary 
 to perform a surgical operation, and the prospect that this might be 
 avoided tended to dissipate his apprehensions. On the 9th of Febru- 
 ary Dr. Wharton wrote as follows : 
 
 Dkar Mr. Moore: Please send down to my carriage a Congressional Register, 
 giving a List of congressmen aud our foreign consuls; also twenty or thirty sheets 
 of foolscap Department paper; also my mail, aud anything else you may have for 
 me. I am getting decidedly better The Salisbury-Sackville paper is excellent. 
 The assumption that it is for Eugland to determine how far she will interfere in our 
 politics, aud that by international law she is to be the exclusive arbiter of this, is 
 intolerable. 
 
 My lips are sealed, but I cau listen, read, and write all the better. 
 
 The document referred to as the "Salisbury-Sackville paper" was 
 the communication which Mr. Bayard, on January 30, 18S9, addressed 
 to Mr. Phelps, United States Minister at London, in reply to the note 
 of Lord Salisbury in the Sackville case, iu which his Lordship assumed 
 the position that the Government of the United States, instead of dis- 
 missing Lord Sackville from the post of British .Minister at Washing- 
 ton, was bound to submit the complaints against him to the judgment 
 of his Government, iu order that it might decide whether they were of 
 such a character as to require his removal. Dr. Wharton's brief note 
 discloses the activity with which he continued to work ; aud his obser- 
 vations on the Sackville case show that his interest in current public 
 questions had not abated, and that he was still capable of expressing 
 his views with vigor and clearness. 
 
 About the middle of February the symptoms of Dr. Wharton's dis- 
 ease became more unfavorable. He began to experience greater diffi- 
 culty in respiration, and the necessity of a surgical operation again be- 
 came imminent. The tone of his communications lost its hopefulness, 
 but he continued steadily at work, chiefly upon the "Diplomatic Cor- 
 respondence of the Revolution." In a little book entitled the "Silence 
 of Scripture," published in 1807, when he was rector of St. Paul's 
 Church, in Brookline, Mass., he uttered the following thought: "The 
 oars of Providence are muffled. We know not our hour; and hence 
 we are to labor as if we were to live for ever, aud trust as if we were 
 to die to night." As we look upon his last days, and observe the unos- 
 tentatious heroism of his conduct, those words, spoken twenty years 
 before, seem prophetic of his end. A few days prior to his decease the 
 dreaded operation was performed in order to save him from strangula- 
 tion ; but, while the shock weakened his vital forces, he uttered no 
 
16 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 
 
 complaint and gave no sign of mental distress. Ee continued at work 
 on some proofs <>[ the present publication, and his corrections betray 
 do evidence of disturbance of thought. He was laboring as if he were 
 " to live for ever," and trusting as if be wen- •• to die to-night." Prom 
 tin- calmness of his demeanor one might suppose that he had long lived 
 in the presence of death and had ceased to dread its near approach. 
 The lofty purpose, the dauntless resolution, and the abiding faith which 
 had borne him through the vicissitudes of a life of unremitting effort 
 were never shown with greater clearness than in these last moments. 
 In the presence oi death the* secret of his life was revealed. 
 
 Late at night on the 20th of February, L889, Dr. Wharton made the 
 first confession of physical weakness which he uttered during his ill- 
 ness, lie asked for nourishment and expressed a desire for repose. 
 Then in brief sentences, written on slips of paper — for he could not 
 speak — he bade good night to those who were watching by his bed- 
 side and begged them to retire to rest. Soon after midnight on the 
 following morning, as he lay apparently asleep, he was observed to 
 turn his head. He gave no sign of anguish, but at that moment lie 
 ceased to breathe. 
 
 On the reception of the news of his death the Secretary of State 
 issued the following order : 
 
 Department or Sta ik. 
 
 Washington, February21, 1889, 
 
 Dr. Francis Wharton, the Solicitor of this Department, died early this morning in 
 this city, and his funeral ceremonies will take place on Saturday next, the 23d 
 instant, at 2 o'clock p. in., at his late residence, No. 2013 Hillyer Place. 
 
 Such officers of this Department as may desire to attend the funeral will not be 
 required to be present at the Department alter the lionr of 1 p. m. on that day. 
 
 In makiug tins announcement the Secretary of state desires a No to place upon the 
 files of the Department a mark of recognition of the public loss sustained by the 
 death of Dr. Wharton, whose eminence asajurist and remarkable attainments as a 
 scholar are attested by his writings, and have enrolled his name among the d 
 renowned publicists of our time. 
 
 His hooks upon the law remain a monument to his sound learning, wide research, 
 and untiring industry. 
 
 Within the circle of those permitted to enjoj his personal companionship his 
 memory will he cherished as a beloved associate, an honorable gentleman, and a 
 sincere ( 'liristian. 
 
 T. F. Bayard. 
 
 The funeral of Dr. Wharton took place on the 23d of February, and 
 was at i ended by a large cumber of his friends. He was buried in 
 
 Rock Clerk ( etiieiei \ . 1 1 i',i r 1 1 te c i l y i >f Wash i n o-t on. He left to survive 
 
 him a widow and two daughters. To attempt to describe the life of a 
 man in the nearest and tenderesl of social relations always savors of 
 desecration. Prom these no hand should seek to remove the veil with 
 which all sensitive natures wish to shield their domestic life from the 
 eye of prurient curiosity. The remembrance of kindness, sympathy, 
 
 and devotion 18 the appropriate treasure of those upon whom they are 
 
 bestowed. 
 
"patches" on the constitution. 17 
 
 It is in keeping with Dr. Wharton's life that no studied tribute to 
 his character should follow the account of his death and burial. As 
 with him the end of existence was the end of labor, so we may permit 
 the simple recital of what he accomplished to stand as his most fitting 
 eulogy. 
 
 October 10, J 891. 
 
 [The Independent, January 10, 1889.] 
 
 "PATCHES" ON THE CONSTITUTION. 
 By Francis Wharton, LL. D. 
 
 Swift, in the u Tale of a Tub," likened the Christian record to three 
 coats which a father left to his three sons with these injunctions : 
 " Now you are to understand that these coats have two virtues con- 
 tained in them ; one is, with good wearing they will last yon fresh and 
 sound as long as you lire ; the other is, that they will grow in the same 
 proportion as your bodies, lengthening and widening of themselves so as to 
 always fit." It so happened, however, that the oldest of the sons, con- 
 ceiving that the control of the coats belonged to him, proceeded 
 to cover them with patches of whatever finery the fashion of each 
 succeeding season might make popular, destroying thereby not 
 merely the excellence of their appearance, but their durability and 
 elasticity. They could not be durable if they should have their sub- 
 stance subjected to the fastening ou and then the tearing off of succes- 
 sive layers of stuff. Tbey could not be elastic, so as to grow with the 
 body of the wearer, if they were stiffened and clogged by these heavy 
 superincumbent brocades. 
 
 Swift's coat, as he thus describes it, is a symbol not merely of the 
 scriptural records, but of all systems which are the products of perma- 
 nent natural and social conditions. If they are such products, they 
 represent in simplicity these conditions, lasting as long as they last, 
 growing as they grow, and so enduring and adapting themselves 
 because of their very simplicity. Chief among systems of this charac- 
 ter is the Constitution of the United States, which is the emanation of 
 such conditions of the people of the United States as are permanent. 
 It provides for the coexistence of Federal and State sovereignties. It 
 provides for the coordination of executive, judiciary, and legislature. 
 It gives the National Government, it gives each department of that 
 Government, certain clearly defined powers, reserving to States and 
 people all powers which are not so assigned. In this way it provides, 
 jn case it should not be overlaid with a superstructure of artificial con- 
 struction, impairing at once its durability and its elasticity, a system 
 of government which, instead of being swept away by new social o r 
 194a 2 
 
18 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 
 
 economical developments, receives such developments under its own 
 shelter as pan of a harmonious and yet progressive whole. 
 
 Bui the 'Jonstitution of the Tinted States, durable and flexible as it 
 is itself, lias had its durability threatened and its elasticity diminished 
 by factors not unlike those which Swift allegorized in the "Tale of a 
 Tub."* The most potent and mischieV0U8 of these factors was the ter- 
 roristic hyper conservatism called forth by the French Revolution. 
 Among men of conservative tendencies, among men who distrusted 
 democracy on principle, there was a stroDg feeling that a general 
 assault on vested rights was at hand, and that they must protect these 
 rights by all available means. 
 
 In England, the school that was thus generated was led by Castle- 
 reagh, by Perceval, by Eldon, followed by the mass of the aristocracy 
 trembling lor their privileges, ami by the great body of squires and 
 country gentlemen who were incensed at whatever might disturb their 
 bovine mastery of their own particular fields. By these classes both 
 Houses of Parliament were dominated. 
 
 The accession to power in 1801 of the Democratic party prevented 
 the parallel reaction which had begun in America from affecting the 
 executive and legislative departments. But extreme conservatives 
 despaired of the capacity of the Constitution as a barrier to resist the 
 torrent of Jacobinism by which they thought civilization, religion, 
 morality threatened. By Hamilton the fabric was spoken of as " frail 
 and worthless;** by Gouverneur Morris its failure was lamented, but 
 he thought could scarcely be averted. All that could be done would be 
 to prop it up by buttresses and strengthen it by exterior walls, which 
 might make it a fortress in which privileges could be protected, instead 
 of a temple in which liberty was to reign by maintaining the full and 
 harmonious play of State and Federal rights, and by securing to the 
 people the undisturbed enjoyment of business facilities and of political 
 privileges within the respective orbits of state and of nation. 
 
 There was one great and courageous statesman and judge, however, 
 who shared the convictions of Hamilton and Morris without sharing 
 their despair, and who, in his position as chief justice of the United 
 States from 1S01 to IS'55, aided by an unbroken ascendency over his 
 associates, was able to impose on the Constitution constructions which 
 were designed to protect existing institutions and to repel Jacobinical 
 assaults, but which tend to deprive it of much of that elasticity and 
 comprehensiveness on which its durability as well as its utility depend. 
 
 Marshall's great moral and intellectual gifts, as well as his capacity as 
 a chief Of conservatism in its then supreme conflict with liberalism can 
 be best measured by comparing him with l'.ldon, who led the same 
 forces in England. Eldon had nothing to do with politics in his court, 
 which, as an equity tribunal, excluded such considerations; but he 
 had a great deal to do with them in the cabinet, in which, as Lord 
 Chancellor, he held a leading position. Marshall had nothing to do 
 
"patches" on the constitution. 19 
 
 with politics off the bench, but on the bench he dealt with them in the 
 broadest and most effective way, as a Large part of the business of his 
 court consisted in settling questions of high constitutional law. Both 
 were men of great political courage ; yet Eldon, while prompt and bold 
 in the cabinet, was singularly hesitating and procrastinating on the 
 bench, while Marshall, when in court, never doubted his conclusions, 
 announcing them promptly and emphatically, and with a clearness and 
 simplicity in singular contrast with the turgidity and involution of 
 Eldon's style. Both were consummate managers of men, but EhJon's 
 management was that of the supple courtier, Marshall's that of the 
 majestic chief. Eldon was a tactician, maneuvering for present van- 
 tage ground; Marshall a strategist, planning campaigns whose field 
 should be an empire and whose duratiou an era. Eldon's powers were 
 weakened by his jobbery, his greed, his avarice; Marshall's grandeur 
 was enhanced by his homely simplicity of life, his scorn of jobbery, his 
 indifference to wealth, showing in his own person how little accumu- 
 lated hoards of money have to do with greatness of the highest type. 
 Both were great lawyers ; but while Eldon was far more proficient in 
 the delicate and intricate departments of equity, Marshall surpassed 
 him in the application of common sense to the molding of common law. 
 Eldon's court of chancery, as such, is now swept away, though many 
 of the cardinal doctrines laid down by him in equity are accepted as 
 part of the dominant law of England ; and one of the reasons why his 
 court, as such, fell uuder the ban was the discredit cast on it by his 
 procrastination, his irresolution, and the enormous expense his system 
 of patronage imposed on suitors. Marshall's court is now the strongest 
 and most influential tribunal in the world; and this is, in a large meas- 
 ure, due to the matchless diguicy he imparted to it, and the strong, 
 plain, ready sense which his example set for its judgments. And in 
 their political achievements the contrast is still more marked. The 
 result of Eldon's political labors — the black acts, the repressive and 
 bloody legislation as a whole, which his resolute voice had so large a 
 part in forcing through — are now utterly vanished. But the construc- 
 tions Marshall imposed on the Constitution still remain in greater or 
 less vigor. It has been a great misfortune for the couutry that some of 
 these constructions have served, like the tags and patches on Swift's 
 coat, to impair seriously the comprehensive simplicity and the paucity 
 of limitation which adapt that great document, as it stands in the 
 original text, to each stage of business or economical development as 
 it arrives. Some of the more damaging of the restrictive "patches" 
 thus imposed I now proceed to consider. 
 
 1. Purchase and sale of negotiable paper, loaning money on such 
 paper or on other assets, purchase of goods to meet advances at home 
 or abroad, are matters which can be best arranged and adjusted by the 
 cop petition of private interests, and which are, therefore, not within 
 the scope of the Constitution of the United States, and can not be 
 
20 A BRIEF SKETCH OF THE LIFE OF FRANCIS WHARTON. 
 
 brought within its operation without destroying that very capacity of 
 adaptation to successive epochs which gives it permanency and com- 
 prehensiveness. In May, 1781, as a war measure — the war being then 
 at its heighl and the Treasury insolvent — Congress chartered the first 
 national bank, under the title of the Bank of North America. In Feb- 
 ruary, L791, when the country had scarcely emerged from the turmoil 
 of tin- war, when collisions with Prance and with Spain were threatened, 
 and when Britain still refused to fulfill the stipulations of the treaty of 
 peace, ;i charter was -ranted to the first Bank of the United Stat.-, 
 with power to discount commercial paper ami to issue exchange on 
 deposits of assets. In February, 1816, a charter to the same eflfoc t was 
 again granted, as a measure of Government relief, in the suspension of 
 hanking operations which the war of L812 precipitated. This charter, 
 if sustainable at all, was sustainable, as were those of 1781 and 1791, 
 on the ground that a Government bank was necessary to restore to its 
 normal state the currency which the prior war had deranged. But in 
 February, 1819, when credit was restored, trade returned to its natural 
 channel, and the country entering upon a full course of enterprise call- 
 ing for unfettered business activity, the Supreme Court of the United 
 States, Chief Justice Marshall delivering the opinion, held that, not as 
 a war measure, but as a permanent system of government. Congress 
 could constitutionally put in operation a bank whose functions would 
 include the buying and selling of commercial paper and the issuing of 
 exchange on deposits of all kinds, speculative as well as actual. Of 
 this construction that by which, many years afterwards, it was held 
 within the constitutional power of Congress to force purchasers of goods 
 to take irredeemable paper money in payment, and even to turn gold 
 contracts into paper contracts, was a natural outcome. <* 
 
 2. The determination to protect existing institutions from the sup- 
 posed enmity of democracy, culminated in the Dartmouth College case, 
 decided in the same term as that which affirmed the constitutionality 
 of the Bank of the United States. Dartmouth College was then exist- 
 in- under a royal charter, which the legislature of New Hampshire 
 undertook to amend. The Supreme Court held that such amendment 
 was inoperative, because a college corporation is a "private" and not 
 a " public" corporation, and because charters of private corporations 
 are contracts, which, under the Constitution of the United States, a 
 State can not lawfully impair. The reasoning of t he court brought not 
 merely colleges, but banks, insurance companies, and common carriers, 
 when incorporated, under the head of "private" corporations, so that 
 privileges and immunities and monopolies once granted to them could 
 not be withdrawn. If that decision had remained operative, a charter 
 giving a Stage corporation the exclusive perpetual right tocon\e\ paS- 
 Bengers from point to point would have shut out any other carriers <>r 
 any other met hod of carriage forever from the route : a charter empow- 
 ering them to fix their own rates would make those rates unassailable j 
 
''patches" on the constitution. 21 
 
 a charter giving the owners of a particular reservoir the exclusive right 
 to supply a city with water would prevent any other water supply, no 
 matter how inadequate such a reservoir should prove. Had this 
 "patch" been unalterably worked into the texture of the Constitution, 
 its life would have been short. "If you persist in your supposed con- 
 scientious conviction that you must veto all bills removing religious 
 tests, your majesty's crown," so the Duke of 'VYellington substantially 
 told George IV, "must fall." The majesty of the Constitution would 
 have been subjected to a like fate if it was held to contain provisions 
 which made perpetual every monopoly, no matter how odious, that had 
 been created in the past. 
 
 3. By the law of nations, as construed by the Continental Congress, 
 and in the sense in which the term was used in the Constitution of the 
 United States, freedom of the sea is secured to neutral merchant ships 
 with certain well-defined restrictions. They can not, without peril, 
 after notice, enter a blockaded belligerent port, and they are liable to 
 confiscation if they attempt such entrance. They are subject to be 
 searched at sea for contraband, and such contraband can be confiscated 
 if found on board; but the term contraband is limited to munitions 
 of war destiued for belligerent use. Outside of these bounds they are 
 entitled to traverse the high seas without molestation, and they can 
 become carriers for belligerents and for belligerent property, the rule 
 being that free ships make free goods. Over and over again Congress, 
 during the Revolution, affirmed these positions, and a solemn adhesion 
 was given by it to the armed neutrality, which adopted them as the 
 basis of its existence. It was with no slight exultation at the prospect 
 of prosperity that such a system would bring to American shipping 
 that Franklin expatiated on the benignity and wisdom of a policy which 
 discouraged belligerency and encouraged peace, and which would give 
 the hardy seafaring population of America the control of the carrying 
 trade of the world. 
 
 But other views were promulgated by England when engaged in her 
 struggle with Xapoleon. Her great enemy had from time to time the 
 mastery of the continent of Europe ; she must sink unless she obtained 
 the undisputed mastery of the seas. Then there emanated from her 
 courts a series of judgments greatly extending belligerent privileges 
 and greatly diminishing neutral rights. Merely constructive blockades 
 were sanctioned, and, under what was called the doctrine of continuous 
 voyages, it was held that if goods were designed (a question as to 
 which prizie courts leaned naturally against neutrals) for blockade-run- 
 ning, they could be seized at any point on the road, though they were 
 to be transshipped at an intermediate port. Contraband was swollen 
 so as to include whatever was of value to the belligerent for whose use 
 it was supposed to be intended. So far from free ships making free 
 goods, enemy's goods were held open to seizure under neutral flags, 
 and neutral ships could be searched for them, and the question of bellig- 
 
22 A BRIEF SKETCB OF THE LIFE OF FRANCIS WHARTON. 
 
 erent ownership was. like all other disputed questions, to be left, when 
 the seizure was by a British cruiser, to a British prize court, the fees of 
 whose officers depended in a large measure on making good the capture, 
 and whose prepossessions wereall in favor of strengthening belligerent 
 power iu favor of Britain, then in a struggle almost for national ex- 
 istence. 
 
 We must not look too harshly on the tendency of the SupremeCourt 
 of the United States to sustain, though sometimes in faltering tone-, 
 those modifications of the law of nations which came across the Atlantic 
 under the great name of Lord Stowell, clothed in the fascinating diction 
 of which that judge was a master, and appealing to the community of 
 feeling which made Americans as well as Englishmen look with aversion 
 at the unscrupulous ambition of Napoleon, which aimed at the subjuga- 
 tion of all civilization to his own rapacious will. England, to many 
 minds, seemed the only bulwark against this lawless Csesarism on the 
 one side and an equally lawless Jacobinism on the other side; and 
 much as we may be amazed, considering what went before and what 
 came after, at the devotion shown by leading Federalists to England 
 in those dark days, we must be content to acknowledge that this devo- 
 tion was at that juncture felt by some of the purest and noblest men 
 our country has ever produced. It was not strange then that our 
 SupremeCourt should then have receded from the revolutionary doctrine 
 of free seas, and should have in a measure sustained the destructive 
 views introduced by English courts for the purpose of preserving from 
 destruction British maritime supremacy, and with it the cause <>t revo- 
 lution itself. Nor was it strange that when we ourselves became bellig- 
 erents we Should accept these doctrines, perilous as they are to neutral 
 maritime rights, as settled law. But it is ground for profound grief as 
 well as amazement that as late as December, L866, the Supreme Court 
 of the United States, in the famous case of the Springbok, should have 
 held that it was good ground to confiscate the cargo of a neutral mer- 
 chant ship; that the ship, at the time of search and seizure, was on 
 the way to an intermediate neutral port for transshipment to a blockaded 
 port of the enemy, thoueh the seizure was made a thousand miles oft* 
 from the port of final destination. 
 
 When this ruling was made, the civil war. b\ the judgment of the 
 Supreme Court, had been dosed for nearly a year. We were at peace 
 with all the world. Our merchant shippiug.it is true, was driven from 
 the seas, hut there was every prospect, on the basis of international 
 law, as the Constitution meant it. of our old maritime strength being 
 renewed, (hir future had neutrality almost indelibly Stamped on it, 
 while the future of the Old World was marked by war. which made 
 each sovereignty an armed camp and tilled each -rear port with swift 
 cruisers, ready, in case of^unlUiAWo pounce, not merely on an enemy, 
 
 but on neutrals who mucTiL TjS 1 ^ 1 "* to do :u,v «' :m '. vin - trade on the 
 
 high seas. With such a*p9<TspeVT before us we deliberately gave away 
 
"patches" on the constitution. 23 
 
 tbe opportunity of covering the seas with our merchant service. No 
 wonder the English law officers chuckled with delight at such a sur- 
 render on our part, and declined, before the mixed commission after 
 constituted, to impeach the Springbok ruling. It made England, al- 
 ready dominant on the seas, master not only of her shipping, but of 
 ours. It would enable her, next time she goes to war with a European 
 foe, to cut matters short, and in addition to blockading her enemy's 
 ports of entrance, to blockade our ports of exit, and to say : " You are 
 the feeders of the enemy — from you come the grain and other staples 
 which nourish him — in addition to enlarging the list of contraband so 
 as to comprehend most stores, I now, in conformity with your own 
 law, as propounded in the Springbok case, blockade your ports, so as to 
 keep your ships from carrying out anything the enemy might use. 
 You blockaded my neutral port of Nassau; I blockade your neutral 
 port of New York." It is not strange that American shipping should 
 lauguish when under such a ban as this. 
 
 Such are among the "patches" which have been woven into our 
 constitutional coat by its guardians, and which, so far as they are per- 
 manent, take from it the property which originally belonged to it of 
 growing with our growth. One of these patches, that imposed by the 
 Dartmouth College decision, has been substantially got rid of, partly 
 by overruling by the court itself, partly by constitutional amendments 
 in most States, which preclude granting charters without reservation of 
 power of amendment. The "patch" which assumed to the Federal 
 Government the power to sell exchauge, to create illusory currency, and 
 to absorb banking privileges has been removed, so far as it sanctioned 
 a national government bank, by popular action ; but it remains in its 
 worst feature in the legal-tender ruling, by which it is held that Con- 
 gress can, as a permanent peace system, force the reception of irredeem- 
 able paper in payment of debts, old as well as new. And the Springbok 
 ruling, while repudiated by the executive branch of the Government, 
 still remains unassailed in the records of the judiciary. 
 
 The Constitution itself requires no amendment ; but what is required 
 is the removal from it of the " patches," impairing its symmetry, its 
 comprehensiveness, its elasticy, and its durability, which have been 
 imposed on it by the judiciary. 
 
 Department of State, Washington, D. G. 
 
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