Sympathy for the Railroad: Francis Wharton and the Anxiety of the Postbellum Corporation

In an article for the fledgling Southern Law Review in 1876, Francis Wharton – full-time legal scholar and part-time Episcopal priest – added an excursus on the blame for locomotive-caused fires to the eight-hundred-plus pages he had published on negligence just two years before. After framing a railroad-friendly hypothetical in the article’s first page, Wharton flew with it, through the deaths of Pope Clement XV and Napoleon’s prisoners at Jaffa and the whiskey ring scandal raging in St. Louis, to craft a theory of causation that placed the blame on the human rather than the person. “We are accustomed to look with apathy at the ruin of great corporations,” Wharton opined, “and to say ‘well enough, they have no souls, they can bear it without pain, for they have nothing in them by which pain can be felt.’” In Wharton’s vision of the corporation, however, damage to the corporation causes pain to humans: to the “widows and orphans” holding stock, or the employees of the railroad, or the towns dependent on “the road” for commerce. How, Wharton asks, can we judge the corporation using the “common law of morals”? In this paper, I contextualize Wharton’s excursus on liability and negligence within postbellum U.S. corporate personhood doctrine, illustrating how it anticipates upcoming shifts in the meanings placed upon the corporation. Established as a dominant form of enterprise organization, but not yet benefiting from the post-Pembina protections of the Fourteenth Amendment, the corporate person at the moment of Wharton’s writing was at once a profoundly unsettling concept and a rare source of consistency in an uncertain moment. Tracing Wharton’s anxiety about causation, I argue, helps us understand an essential early moment in corporate theory, while the questions he raises inform 21st century concerns over the nature of the corporate mind.