Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature

In 2008, on a hike to History Rock in Hyalite Canyon just south of Bozeman, Montana, I noticed a rock in the trail. I said to my friend who was with me that the shape of it looked like a whale, and she replied that it could also look like a fish. I thought that little exchange ironic considering that I was near finishing D. Graham Burnett's _Trying Leviathan_ (Princeton, 2007), a book that revolves around a historical investigation of the question, "Is a Whale a Fish?" It took me a while to read this interesting (but densely erudite!) book - mostly 10 to 15 minutes during my lunch break everyday working at my campus library. If given the time, however, I probably could have polished it off in a few weeks, but time is always limited, and I am not as prolific a reader as I would like to be. So, that said, I am happy to finally post my review of Burnett's book about _The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature_ (this is its subtitle). In _Trying Leviathan_, Burnett, a historian of science at Princeton University and author of _Masters of All They Surveyed: Exploration, Geography, and a British El Dorado_ (UCP, 2000), explores a little known New York trial from 1818, _Maurice v. Judd_, in which a fish oil inspector (James Maurice) brought a candle maker and oil merchant (Samuel Judd) to court over his refusal to pay fees on whale oil (a law stated that fish oil had to be inspected for quality and purity). Maurice was represented by lawyers William Sampson and John Anthon, who desired to keep the trial about commercial regulation and away from, in Burnett's words, the "muddy matters of taxonomy" (p. 17). Judd, whose defense included the testimony of the well-respected New York naturalist Samuel Mitchell, was represented by Robert Bogardus and William M. Price, who thought differently - they saw this as a taxonomic issue, and were willing to get dirty in the muddy matters (this case is also mentioned in the endnotes of Eric Jay Dolin's _Leviathan: The History of Whaling in America_ (W.W. Norton, 2007), pp. 384-385). What results is a splendid examination of questions about taxonomic systems, epistemology of natural historical knowledge, semantics, literary references, authority of various classes of New York citizens, and the relationship between science and society. Although the trial centers on the question of whether whale oil is fish oil, and hence if whales are fish, Burnett strives to look deeper into the reasons why the trial came to court at all, and what it meant beyond the straight science of taxonomy; he writes in his introduction: "It is perhaps cliché to assert that all taxonomy is politics, or to insist that epistemological problems are always problems of social order; _Maurice v. Judd_ provides a striking occasion to test the viability (as well as the limits) of such sweeping claims" (p. 10). Burnett organizes his book around three reasons why this case is important to stu

Graham Burnett has taken an obscure 19th century court case (Maurice v. Judd) and evaluated the case in an unusual light - not on the technical merits of the case but on something much more expansive. The premise of the case was that a merchant in 19th century New York, Samuel Judd, was fined by the fish oil inspector (Maurice) for having 3 kegs of uninspected whale oil. Judd proclaimed that the oil was not subject to inspection under the law because it was from a whale, not a fish. The technical merits of the case were simply to determine whether or not the whale oil was subject to the law and thus obliged to be inspected. Burnett, however, has evaluated scientific knowledge in the 19th century to determine whether or not the law was created in conformance with contemporary understandings of whether or not a whale was a fish or not. Starting with biblical interpretations, and proceeding through the understandings of "common" New Yorkers, evaluations of natural historians, and seamen, Burnett demonstrates that this case did indeed demonstrate that the standard understanding in 19th century New York was, despite some views to the contrary, that a whale was indeed a fish. The book is well written and quite enjoyable. The only reason I gave the book 4 stars instead of 5 is because of the epilogue/conclusion - I felt that they did not flow nearly as well with the standard subject matter as the rest of the book. I consider this to be more of a scientific history crossed with an intellectual history of a group of people - a fascinating approach and quite a diversion from the standard histories of the period.

Just as schoolchildren now so easily learn that the Earth goes around the Sun, they easily learn that whales are not fish but air-breathing mammals. So it all seems so obvious, except that everything that lived in the sea was for millennia obviously a fish, and it took a while for us to get the classification right. When we did get it right, let's say starting with the 1758 classification system published by Carl Linnaeus, we didn't all get it right immediately, and it took a while for our education system to catch up. It also took a while for our legal system to do so. In _Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature_ (Princeton University Press), historian D. Graham Burnett has brought back a legal battle that some might regard as fully worthy of being forgotten. After all, it had to do with the classification of whale oil, an important article of trade at the time of the 1818 trial, but not at all part of our world today. Nonetheless, the trial at the time was a sensation which interested New Yorkers not just over financial issues. It was a confrontation over natural history between the type of folk taxonomy people found in the Bible and the then-controversial scientific classification proposed by biologists. Although Burnett is not writing for the purpose of comparison with current events, readers will be reminded of the current clashes between Biblical literalists and scientific instruction; and if you regard scientists as the good guys, in this case, the good guys didn't win. Whales were extraordinary creatures, to be sure, but for most people, even whalemen, they remained fish. Burnett says "the Genesical division of animals into those that fly, those that swim, and those that creep was pervasive and tenacious." One of the lawyers in the trial covered in this book indeed said, "We shall rely on the sacred volume as conclusive." Scientific taxonomic systems were subject to change and rearrangement; this is, we know, one of the strengths of science, to change models when more data become available, but during the trial, lawyers were able to make such rearrangements seem arbitrary or capricious, while the Bible's taxonomy was eternal. The trial, _Maurice v. Judd_, was based on the question of whether whale oil was fish oil. There was a New York state inspector of fish oils, the plaintiff James Maurice, who was quite interested in inspecting (and being paid for inspecting) barrels of whale oil, and Samuel Judd who dealt in spermaceti oil who did not want to pay for such testing. The star witness, physician and professor of natural history Samuel Latham Mitchill. When he declared, "As a man of science, I can say positively, that a whale is no more a fish than a man," he was calling upon ideas that would be more fully examined thirty years later with the publication of _On the Origin of Species_, and hinting that there was no sacred gap between animals