Scales of Justice
On this date, Samuel Latham Mitchill appeared in the packed chambers of the Mayor’s Court in New York City Hall as the star witness in the case of James Maurice v. Samuel Judd, a dispute arising under a New York State statute that obliged purveyors of “fish oils” to ensure that their casks had been inspected.
The facts of the case today seem boring. On March 31, 1818, the New York State Legislature passed a law to ensure the quality of fish oils, which were widely used in the tanning and preservation of leather at the time. The law called for a corps of inspectors to “seek out any parcels of fish oil” and to certify the amount of water, sediment, and pure oil each cask contained. It also stipulated that a fine of twenty-five dollars per cask be levied on any buyer of uninspected fish oil. Three months later, a certain Mr. Samuel Judd, owner of the New-York Spermaceti Oil & Candle Factory at 52 Broadway, bought three casks of “fish oil” that had not been “gauged, inspected, and branded, according to law.” Judd claimed he didn’t have to pay the required fine because he had purchased spermaceti, or whale oil, so James Maurice, a city inspector of fish oil, began proceedings to collect the fine.
Judd’s view reflected an intellectual quandary of his time: If a whale is a fish, then why is its tail horizontal rather than vertical? Why do whales not have scales? Why are whales warm-blooded, not cold-blooded like fish? Why do whales breathe air (that whales could drown was a proven fact by then), and give birth (and nurse their young with milk) rather than lay eggs? Why were whales so much smarter than lesser fish? (Apart from the challenge of their size was the challenge of their brains — whaling is hunting, not mere fishing.) And, perhaps most importantly, why did the insides of whales — which were known in the most minute detail as a simple commercial matter — resemble not the lesser fishes but rather cows and pigs?
A New York whaleman’s drawing of a sperm whale, ca. 1810.
However, to many zoologists of the time (but not all), the inside of a whale would have been totally irrelevant. [Interestingly, Linnaeus himself had said whales were fish in the 9th edition of the Systema Naturae, but formally separated them in the 10th edition, published only two years later in 1758.] In terms of what today is known as taxonomy, shape and environment were the categorical bases for grouping animals, not internal anatomy. Whales looked like fish (tails and blowholes notwithstanding) and lived where fish lived. The 1817 edition of a leading English dictionary defined fish simply as “an animal that lived exclusively in water”. Even Genesis clearly delineated creation by environment: “fish of the sea” (so, as a matter of elementary Judeo-Christian theology, oysters and crabs are “fish”), “fowl of the air” (bats?), and “every creeping thing that creepeth upon the earth.” Again, whales don’t creepeth upon the earth, so the notion that they are “animals” was fundamentally un-Christian and even bordered on blasphemy. Therefore, whales are fish.
Image of a whale being flensed, from a book called Medieval Life and People. It has a fish face. It has a fish backbone and tail (bending from side to side rather than flexing up and down). But it has breasts.
Nevertheless, by 1818 zoologists had generally conceded that their field was far from complete and that debate and dissent about proper taxonomic classification was not only permissible but inevitable — especially as new species of just about everything kept being discovered. Moreover, the leading naturalists — particularly Samuel Latham Mitchill, a retired politician who also happened to be the preeminent authority on the fishes of New York and the founder of what would become the New York Academy of Sciences — aimed to convert taxonomy to a science of dissection: that species should be grouped together by how they looked on the inside rather than on the outside. Mitchill presented the Linnaean argument from anatomy: whales breathe air and have lungs, not gills; they have four-chambered hearts, like horses but unlike fish; their fins contain bones that are exact analogs of the hands and arms of apes and people; they even have eyelids that move. He famously remarked that “a whale is no more a fish than a man.”
Yet William Sampson, the lead prosecutor, challenged Mitchill at every turn, using arguments that have echoes in recent debates about Darwinian evolution. Was it not true, Sampson asked, that there was wide disagreement among scholars as to exactly how various animals should be classified? And what were common folk to make of the unlikely associations Linnaean taxonomy called upon them to make? Quoting Sampson:
Now, is not man strangely mated or matched when the whale and the porpoise are his second cousins, and the monkey and the bat his germans [close relations]? Other gentlemen may choose their company, [but] I am determined to cut the connection.
So what happened? After some wrangling about whether statutory interpretation should even be a question left to the lay jurors of a municipal trial court (a debate we sometimes have to this day), the judge charged the jury which, after only 15 minutes of deliberation, announced a verdict for the plaintiff. [However, 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.]
More than a century before Scopes, science was put on trial, and was convicted.
- D. Graham Burnett, Trying Leviathan: The Nineteenth Century New York Court Case that Put the Whale on Trial and Challenged the Order of Nature (Princeton University Press, 2007).
- Eric Jay Dolin, Leviathan: The History of Whaling in America (W.W. Norton, 2007) pp. 384-385.