Whales on trial

D. Graham Burnett ’93 has put the dramas played out in two New York City courtrooms to good use. In his 2002 book, A Trial by Jury, he describes serving as the foreman of a jury that took four days to decide a manslaughter case. The Princeton associate professor of history says the experience made him ponder “the role of courts in the production of knowledge,” and, more broadly, how society creates and agrees upon it. That issue is central to the academic discipline of the history of science, Burnett’s specialty, and it’s at the core of his new book, Trying Leviathan: The Nineteenth-Century Case That Put the Whale on Trial and Challenged the Order of Nature, published by Princeton University Press in December.

Trying Leviathan explores the 1818 trial in Maurice v. Judd, which centered on the question of whether whales are fish. The issue may seem arcane, but newspapers from Maine to Arkansas reported on the case, which pitted the prevailing biblical view of nature against the new European ideas about natural order that derived from Linnaean taxonomy, a method of classifying living things by genus and species developed in the 18th century. The grouping of whales with mammals rather than fish contradicted the biblical book of Genesis.

Burnett’s book offers a fascinating glimpse of early 19th-century New York, a place where cutting-edge science intersected with both polite society and popular entertainment, and the selling of whale oil was big business. The study also shows a world where, as Burnett puts it, science was “sent to the wings” when it got in the way of a religiously based outlook or powerful economic interests.

The defendant in the case, whale-oil merchant Samuel Judd, had refused to pay the fee for his wares to undergo the inspection that a New York State law required of all “fish oil.” Judd claimed that whales weren’t fish, but the inspector, James Maurice, wanted the fees, and the leather tanners who used whale oil in the production of their wares wanted it inspected.

Maurice v. Judd put not only science but also whaling and commerce on trial. Several merchants offered their views on the production, uses, and classification of oil. A veteran whaling captain, named Preserved Fish, testified that his observations of the animals led him to believe that they weren’t fish. And the plaintiff’s lawyer, William Sampson, sparred with Samuel Mitchill, the defense’s star witness and a preeminent American expert on taxonomy, who fared so badly in trying to explain why whales are mammals that he walked into the courtroom as one of New York’s leading intellectuals and exited it “a laughingstock,” writes Burnett. In the end, the jury ruled that whales were fish, but in response whale oil magnates lobbied the New York state legislature to reverse the jury’s holding by passing a law exempting whale oil from mandatory government inspection.

Entertaining as these vivid sketches are, they also undergird one of the book’s major themes: the tension between popular opinion and scientific expertise in the United States. “That question never leaves us,” Burnett says.