Thar She Blows! 19th-Century Court Case Harpoons a Whale of a Story

By D. Graham Burnett
Princeton University Press, 266 pages, $29.95

In the 10th edition of Systema Naturae, published in 1758, Carl Linnaeus, the king of the classifying sciences, declared that “by good right and just title, according to the law of nature,” a whale was a mammal and not a fish. Although they reside in the ocean, Linnaeus observed, whales breathe through lungs, are warm-blooded, give birth to live young, and suckle their offspring. Systematic taxonomists fell into line and by the end of the century the nonfish whale had been incorporated into the naturalist’s world.

For most people, however, a whale remained a fish. Ishmael would speak for them at midcentury in Moby Dick, as he dismissed learned commentary on cetology, called on Jonah and seamen with callused hands for support and declared the whale a spouting fish with a horizontal tail. In 1818, the old salts had their day in Mayor’s Court in Manhattan. Maurice v. Judd pivoted on whether whale oil was fish oil and therefore subject to New York State inspection. Plaintiff James Maurice—the state inspector—argued that whale oil was fish oil; defendant Samuel Judd—the candle maker and oil merchant—begged to differ. According to Princeton historian D. Graham Burnett, the trial showcased a confrontation between folk taxonomies, buttressed by the Bible, and scientific expertise—over nothing less than the order of nature.

In Trying Leviathan, Mr. Burnett brilliantly deconstructs the controversy. To tease out the “many strands of argument,” he uses four “actor’s categories”—philosopher-naturalists; fishermen-whalers; merchants and manufacturers; and “ordinary” New Yorkers, who had no direct stake in the outcome. At once bewitching and bookish, with a Dickensian cast of characters (including a sea captain named Preserved Fish), Trying Leviathan bristles with insights about the relationships between popular belief, democracy, science and the law that resonate with contemporary controversies over Darwinism and intelligent design. Mr. Burnett brings new meaning to Herman Melville’s aphorism: “When Leviathan is the text, the case is altered.”

Arguing that the early 19th century was not a taxonomic calm before the Darwinian storm, Mr. Burnett demonstrates that the authority of science was uncertain, fragmented and challenged. Resistance was especially intense when naturalists used comparative anatomy against outward appearances and common-sense classifications.

William Sampson, the lawyer representing inspector James Maurice, carved up the contested terrain with sophisticated and sophistical arguments. Lampooning scientists who arrogated to themselves “the sole privilege of new-creating and nicknaming God’s creatures,” Sampson attacked the “forced and incongruous groupings of animals every way dissimilar, in the same order.” Because whales lacked hair and feet and lived in the water, he pointed out, some naturalists refused to classify them as mammals, retaining the traditional tripartite categories of creatures who fly, swim and creep. Sampson used the openness of science to new hypotheses to discredit science. The “perpetual pageant of rearrangement,” he suggested, rendered classification little more than an ever-changing game of king of the hill.

Sampson and his co-counsel, John Anthon, also took naturalists to task for elevating brutes—whales, dolphins and porpoises—to kinship with human beings. At the very moment when New Yorkers were debating whether to extend the franchise to African-Americans, Mr. Burnett observes, Anthon played the race card.


THE STAR WITNESS for Judd, arguing the case for whale-as-mammal, was the eminent physician, politician and professor of natural history, Samuel Latham Mitchill. John Anthon harpooned him with a pointed analogy aimed straight at racial prejudice. Would Mitchill also claim that an “orang outang” was a freeman, entitled to vote? “He breathes the vital air, the Doctor might say, through lungs; he moves erect, & has warm blood; the female brings forth her young alive, and rears the bantling at her breast.” Anthon could confidently predict the ordinary New Yorker’s bemused response: “All this indeed is very strange and curious, but still, Doctor, it is a monkey in common acceptation, however naturalists may choose to hail and class him a brother.”

Most tellingly, the lawyers for the plaintiff emphasized that statutes are designed to regulate the conduct of the whole community. In framing and interpreting them, legislators and jurors relied on popular knowledge (of the whale-is-fish variety). And so they should. Likening naturalists to the leviathans they anatomized, Sampson thundered that the citizens of a democracy should not be “spoon-fed by doctors of medicine, with ill-concocted Greek, such as Greek babies would spit out.”

Samuel Judd never stood a chance of proving that a whale is not a fish. As Sampson skewered the scientists, Judd’s lawyers shifted their ground: Even if a whale is a fish, they argued, whale and fish oil are no more the same than sugar and molasses. Customers know the difference—and don’t give a fig about taxonomy. They also asked the jury to ignore the contemptuous epithets directed against their witnesses merely because they were Massachusetts men—and not New Yorkers.

It was too little, too late. After deliberating for 15 minutes, the jury announced a verdict for the plaintiff. “Pray sir, how goes it with whale oil now?” the New York Evening Post asked. “Is it oil of fish, or of flesh, or of red herring?” Within a month, the New York State Legislature essentially overturned the verdict by exempting whale oil from inspection—in the eyes of the law, the whale would no longer count as a fish.

But as Mr. Burnett notes in his conclusion, the courtroom drama staged by Sampson and Anthon—“the one that pitches society against science (or vice versa)”—is played out again and again, throughout our history, as laymen and experts separate and come together in disorderly and disturbing debates about the order of nature.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He can be reached at Thar She Blows! 19th-Century Court Case Harpoons a Whale of a Story