The Fish That Wasn’t


“I take the good old-fashioned ground that the whale is a fish, and call upon holy Jonah to back me,” Herman Melville wrote in Moby-Dick, disregarding the irksome detail that whales, like mammals, have warm blood and lungs. Melville had, after all, spent enough time at sea to heed conventional wisdom, which equated all swimming things with the scaly tribe.

As D. Graham Burnett notes in his curious new history, Trying Leviathan, “[t]he vast majority of Americans not only assumed that a whale was a fish, but were surprised to learn that the question could be debated.” In fact, that debate would become deeply contentious with the 1818 trial of Samuel Judd, owner of the New-York Spermaceti Oil & Candle Factory. Ordered by an inspector, James Maurice, to pay a fine on three barrels of whale oil, Judd protested that whales were not fish and therefore not subject to the fees levied on fish products. Burnett, who has written on exploration and intellectual history and now teaches at Princeton, sees the pitched legal battle over the $75 in question as a pivotal moment in the expanding conversation about the role of science in the infant republic, as well as a harbinger of the vitriol that would become commonplace in the American courtroom.

As would be the case with the Scopes Monkey Trial of 1925—the landmark prosecution of a Tennessee teacher who dared to bring evolution into his classroom—Maurice v. Judd was closer to a violent clash of cultural notions than a spirited scientific debate. Judd’s defense was stacked with New York’s intelligentsia, schooled in the revolutionary taxonomy of Linnaeus and disdainful of bumpkins who, ignorant of modern science, harbored convictions that would keep America a backward nation.

Maurice’s camp consisted of traditionalists who chastised “the evils of burdensome nomenclatures,” reminding that the Bible left little ambiguity about the place of whales in the natural order. His lawyer endlessly derided taxonomy as a fanciful hobby that, beyond its strange treatment of the whale, would disturbingly “rank mankind with apes, monkeys, maucaucos and bats.” Burnett also espies racial fearmongering here: If the law that placed humans before animals were upset, would the established hierarchy of white men over black follow suit?

The jury was ultimately persuaded that Judd should pay taxes on his whale oil, but reason prevailed when the state legislature decreed that whales were mammals. Burnett describes the trial with the keen eye of an informed courtroom observer, but he writes in a dense, academic tone that precludes him from teasing out the relevance of Maurice v. Judd to contemporary America, where opponents of stem-cell research and abortion traffic much more readily in religious polemic than scientific fact.