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

In March of 1818 the New York State legislature passed a law to ensure the quality of fish oils, then commonly used in the leather and tanning industries. The law provided for teams of inspectors to certify the quality and amount of oil, as well as to collect a tax of twenty cents per cask. It also stipulated that a fine of twenty-five dollars per cask be levied on any buyer of uninspected fish oil. In July of 1818, Samuel Judd, proprietor of the New- York Spermacetti Oil and Candle Factory, bought three casks of uninspected whale oil. James Maurice, inspector of fish oils, began proceedings to collect the fine. The case reached the New York Court of Common Pleas in October. Judd readily admitted to not paying the tax, which he felt was not owed because a whale was warm-blooded, breathed air, and gave birth to live young. A whale, in fact, was “no more a fish than a man,” or so maintained Samuel Latham Mitchell, physician, naturalist, and key witness for the defense (p. 59). The trial lasted three days. The jury deliberated for fifteen minutes, and found for the plaintiff.

Today of course no one believes a whale is a fish. Yet in the early nineteenth century, when the Linnaean system of classification was relatively new, such distinctions between fish and mammals were not so obvious, not to the general public. In Trying Leviathan, D. Graham Burnett attempts to link this obscure trial with larger ideas that were then rippling through society and the world of science. This is at once a strength—obscurity connected to something larger in the social-cultural-political maelstrom makes the story more captivating than it would have been on its own—and a weakness, since a few of these claims seem stronger than the evidence will allow. For example, Burnett would have us believe that Maurice v. Judd “represents a telling episode in the history of science in the early Republic” (p. 5), but if that is the case, why is the story so little-known? He also insists that “race, gender, and class were at stake” (p. 10) in the courtroom, a claim he does not quite substantiate. Nevertheless, his recounting of how the trial was actually “a showdown between two powerful groups . . . a clique of oil merchants and chandlers . . . and a consortium of tanner-financiers” (p. 164), who used a debate over taxonomy as a means to a commercial end, is both elegant and convincing.

Less than a month after the initial verdict, the original statute was amended to exclude from inspection “sperm or whale oil,” the legislature, in essence, adopting the position of the city’s whale-productmerchants that their oil was “pure in nature” and not “messy and impure” like fish oil (pp. 187, 188). Legally speaking, then, a whale was not a fish. Truth won out, but not because of science. Truth won because it was allied with a particular set of interests that managed to carry the day. Throughout this brief book, Burnett does a wonderful job re-creating the trial and the trial atmosphere. There is a parade of colorful witnesses—whalemen, lawyers, philosophers, merchants, and manufacturers—a few of them brandishing drawings and anatomical reports. The various parties to the case are carefully and artfully delineated, and Burnett never loses sight of his central concern, that earlynineteenth- century New York—and by extension America—was in a period of transition in its understanding of the natural world and man’s place within it. And while even today the intricacies of the Linnaean system of classification remain difficult for most nonspecialists to grasp, Trying Leviathan is explicated so clearly that no reader will come away empty-handed. Footnotes notwithstanding, this is a book with broad...