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Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature
In Moby-Dick , Ishmael declares, "Be it known that, waiving all argument, I take the good old fashioned ground that a whale is a fish, and call upon holy Jonah to back me." Few readers today know just how much argument Ishmael is waiving aside. In fact, Melville's antihero here takes sides in one of the great controversies of the early nineteenth century--one that ultimately had to be resolved in the courts of New York City. In Trying Leviathan , D. Graham Burnett recovers the strange story of Maurice v. Judd, an 1818 trial that pitted the new sciences of taxonomy against the then-popular--and biblically sanctioned--view that the whale was a fish. The immediate dispute was whether whale oil was fish oil and therefore subject to state inspection. But the trial fueled a sensational public debate in which nothing less than the order of nature--and how we know it--was at stake. Burnett vividly recreates the trial, during which a parade of experts--pea-coated whalemen, pompous philosophers, Jacobin lawyers--took the witness stand, brandishing books, drawings, and anatomical reports, and telling tall tales from whaling voyages. Falling in the middle of the century between Linnaeus and Darwin, the trial dramatized a revolutionary period that saw radical transformations in the understanding of the natural world. Out went comfortable biblical categories, and in came new sorting methods based on the minutiae of interior anatomy--and louche details about the sexual behaviors of God's creatures.
When leviathan breached in New York in 1818, this strange beast churned both the natural and social orders--and not everyone would survive.
When leviathan breached in New York in 1818, this strange beast churned both the natural and social orders--and not everyone would survive.
304 pages, Hardcover
First published October 22, 2007
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Displaying 1 - 17 of 17 reviews
September 14, 2025
Is a whale a fish?
Surely not. We know otherwise now. The whale is a mammal, is a mammal, is a mammal. We're taught that, after all. So that must be right. No?
There was not that certainty long ago, in 1818, in a New York Mayor's Court, where the case of Maurice v. Judd unfolded.
A New York statute at the time required that "fish oil" be gauged, inspected and certified. The process included an inspector's fee. Samuel Judd was a purveyor of, among other things, whale oil. He didn't think his product needed a "fish oil" inspection. James Maurice, the inspector, believed he did. And Maurice wanted his FEE. So Maurice sued Judd. A simple matter you'd think. But not when the crux of the case was this: Is a whale a fish?
The plaintiff's point was that "fish" meant, grossly, "creatures from the water". The defendant countered that the whale "breathes the vital air through lungs, that he has warm blood, that the whale copulates more humano, that the female brings forth her young alive and nourishes them at her breasts. Oh, and that "the tail is flat".
Natural scientists testified as experts, and they seemed to prove the case for the defendant, but not so much after the privilege of cross-examination. Seamen, too, were called, including the delightfully named Captain Preserved Fish! They couldn't agree. We watched the interplay between "bookish cetology" and the perspective of the "practical whaler." Both sides resorted to Scripture, and the plaintiff's lawyer urged them, regardless, to just use your common sense.
The point was made that if you sought to buy "fish oil" but instead received "whale oil", you would be disappointed by the heftier expense of the product as well as its intended use:
Common oil from a whale was thus very much like the grease from a cow or pig, putting aside the nettlesome issue of whether the creature with no legs counted as a quadruped. At the spigot end of copper kettles, whales and cattle looked more similar than different.
The jury deliberated a mere fifteen minutes. I won't tell you its verdict.
Other reviewers have complained about the sometimes clunky nature of the narrative, and I can't disagree with that. Yet, I think I was helped in my appreciation by focusing on the legal and language issues at play and not so much on the role of the case on the dialogue of natural history.
In any event, in thinking about the ostensible simplicity of the question - Is the whale a fish? - I kept mulling that fundamental American standard: All men are created equal. We accept, now, that "all men" means "everybody", regardless of gender or race. But it was clearly not always so, not in the beginning with the cobbled-together legislative intent; and not a century later, when Chief Justice Taney wrote that only white men could be men. And even now, what does equal mean. Does it suggest opportunity, or outcome? We have never, and will never, agree on that.
What is a whale? What is a man? And what does it mean when we both come up for air?
_____ _____ _____ _____
And I would be remiss if, reviewing a book about whales, I did not include a link to the funniest four minutes ever shown on television: Is that a Titlelist?
Surely not. We know otherwise now. The whale is a mammal, is a mammal, is a mammal. We're taught that, after all. So that must be right. No?
There was not that certainty long ago, in 1818, in a New York Mayor's Court, where the case of Maurice v. Judd unfolded.
A New York statute at the time required that "fish oil" be gauged, inspected and certified. The process included an inspector's fee. Samuel Judd was a purveyor of, among other things, whale oil. He didn't think his product needed a "fish oil" inspection. James Maurice, the inspector, believed he did. And Maurice wanted his FEE. So Maurice sued Judd. A simple matter you'd think. But not when the crux of the case was this: Is a whale a fish?
The plaintiff's point was that "fish" meant, grossly, "creatures from the water". The defendant countered that the whale "breathes the vital air through lungs, that he has warm blood, that the whale copulates more humano, that the female brings forth her young alive and nourishes them at her breasts. Oh, and that "the tail is flat".
Natural scientists testified as experts, and they seemed to prove the case for the defendant, but not so much after the privilege of cross-examination. Seamen, too, were called, including the delightfully named Captain Preserved Fish! They couldn't agree. We watched the interplay between "bookish cetology" and the perspective of the "practical whaler." Both sides resorted to Scripture, and the plaintiff's lawyer urged them, regardless, to just use your common sense.
The point was made that if you sought to buy "fish oil" but instead received "whale oil", you would be disappointed by the heftier expense of the product as well as its intended use:
Common oil from a whale was thus very much like the grease from a cow or pig, putting aside the nettlesome issue of whether the creature with no legs counted as a quadruped. At the spigot end of copper kettles, whales and cattle looked more similar than different.
The jury deliberated a mere fifteen minutes. I won't tell you its verdict.
Other reviewers have complained about the sometimes clunky nature of the narrative, and I can't disagree with that. Yet, I think I was helped in my appreciation by focusing on the legal and language issues at play and not so much on the role of the case on the dialogue of natural history.
In any event, in thinking about the ostensible simplicity of the question - Is the whale a fish? - I kept mulling that fundamental American standard: All men are created equal. We accept, now, that "all men" means "everybody", regardless of gender or race. But it was clearly not always so, not in the beginning with the cobbled-together legislative intent; and not a century later, when Chief Justice Taney wrote that only white men could be men. And even now, what does equal mean. Does it suggest opportunity, or outcome? We have never, and will never, agree on that.
What is a whale? What is a man? And what does it mean when we both come up for air?
_____ _____ _____ _____
And I would be remiss if, reviewing a book about whales, I did not include a link to the funniest four minutes ever shown on television: Is that a Titlelist?
March 8, 2011
Just an amazing book that uses an 1818 court case, Maurice v. Judd, to look at everything from science to law to economy in the early American Republic.
Unlike other books of this type the case is not merely a framing device used reiterate a bunch of interesting factoids, but rather a central and essential part of the story, and eminently fascinating in its own right. It centered on the question of whether a "whale" was a "fish" for the purpose of an inspection tax on importers of "fish oil." Burnett shows that this debate elicited testimony from respected naturalists like Samuel Latham Mitchill as well as ship captains like Preserved Fish (his real name!) and even tanning executives (who used fish oil for hides) like Gideon Lee. When Burnett goes into the backgrounds of these testimonies, he explores the deep and complex meaning of these men's occupations, as well as the mysteries of their respective trades and their implications for science and the wider society.
Of course I brought my continual fascination with Moby Dick to this, and the author is clearly as infatuated with that book as one would expect. More surprising though, Burnett here demonstrates some of those same qualities that made Moby Dick so wonderful: a genuine and catholic interest in even the minutiae of his story, a penchant for apt abstraction, and an abiding sense of the humor of it all. I can't recommend it enough.
Unlike other books of this type the case is not merely a framing device used reiterate a bunch of interesting factoids, but rather a central and essential part of the story, and eminently fascinating in its own right. It centered on the question of whether a "whale" was a "fish" for the purpose of an inspection tax on importers of "fish oil." Burnett shows that this debate elicited testimony from respected naturalists like Samuel Latham Mitchill as well as ship captains like Preserved Fish (his real name!) and even tanning executives (who used fish oil for hides) like Gideon Lee. When Burnett goes into the backgrounds of these testimonies, he explores the deep and complex meaning of these men's occupations, as well as the mysteries of their respective trades and their implications for science and the wider society.
Of course I brought my continual fascination with Moby Dick to this, and the author is clearly as infatuated with that book as one would expect. More surprising though, Burnett here demonstrates some of those same qualities that made Moby Dick so wonderful: a genuine and catholic interest in even the minutiae of his story, a penchant for apt abstraction, and an abiding sense of the humor of it all. I can't recommend it enough.
February 3, 2021
My main issue with this book is that the title seems misleading, and the author claims that this is putting science on trial, when really it isn't. This is a case of one man who used to be a whaler getting a job of inspecting fish oil. Instead of doing his job normally, he gets a little power hungry and annoys formal rivals by claiming whale oil is fish oil. And after some back and forth situations the whalers get together and file a suit, because he's hurting their profits.
It's really just a case about a poorly defined law (specifying fish oil but apparently not defining it) and a man using that to his advantage. The attorneys really turned it into a spectacle of trying to prove that scientifically a whale isn't a fish, but that was more of a red herring than anything.
It was an okay read. I would have liked it to be a little bit tighter in the scope. For instance, we had to learn about one single witness, his history in the tanning industry, and why he was mad as he testified. I don't really care, you could tell me in a sentence that he was notable in the tanning industry and I'd be happy. But I am sure more scholarly readers would argue that they needed to show their research, which they did.
So a well researched book with a slightly disappointing delivery for me. Still worth the read if you want to know what people in the general populace thought about whales, tons of information on that. It just doesn't really have a lot to do with the actual trial.
It's really just a case about a poorly defined law (specifying fish oil but apparently not defining it) and a man using that to his advantage. The attorneys really turned it into a spectacle of trying to prove that scientifically a whale isn't a fish, but that was more of a red herring than anything.
It was an okay read. I would have liked it to be a little bit tighter in the scope. For instance, we had to learn about one single witness, his history in the tanning industry, and why he was mad as he testified. I don't really care, you could tell me in a sentence that he was notable in the tanning industry and I'd be happy. But I am sure more scholarly readers would argue that they needed to show their research, which they did.
So a well researched book with a slightly disappointing delivery for me. Still worth the read if you want to know what people in the general populace thought about whales, tons of information on that. It just doesn't really have a lot to do with the actual trial.
October 6, 2021
3.5 stars
February 28, 2023
The court case itself was interesting, but the author's writing style was not. So much bloat.
June 28, 2025
Oddly inefficient
September 18, 2012
This book is everything I want in a history text. Finding an obscure but fascinating piece and expanding it to highlight broad societal trends during the period. In this case the book highlights a case where taxonomy had direct fiscal implications. Drawing on whether a whale was a fish or not, this book highlights how four different groups of people; naturalists, whalers and captains, merchants, and everyone else viewed the taxonomy and natural history of cetations. While the stories themselves were fascinating, the book's greatest value was highlighting how opponents of science have used almost the same narratives for almost 200 to counter act expert witnesses. In this case the prosecution equated debate within the scientific community with broad disagreement among scientists as to the validity of a set of facts. The parallels between taxonomy in the 18th century and evolution and climate change in the 21st century were eerie. Sadly, however this nuance was not fleshed out in the text to the degree that I would like to. The author missed an important way to show how his scholarship of the past can inform debates in the present. That being said this book was incredibly enjoyable and I highly recommend it
November 20, 2009
Except for being nonfiction, this was sort of like reading Moby Dick, but not quite as long. It is the story of how the legal system in 1818 takes on the new science of taxonomy to challenge the view of the whale as fish. Burnett looks upon the trial in great detail, examining the views of whalers, philosophers, lawyers, and the common (?) man.
Held a half century before Darwin and a century before the Scopes Trial, Maurice v. Judd reminds us that science is not static, nor is human nature.
Lots of details so that, like Moby, the story does not flow along smoothly but has digressions and side trails.
Held a half century before Darwin and a century before the Scopes Trial, Maurice v. Judd reminds us that science is not static, nor is human nature.
Lots of details so that, like Moby, the story does not flow along smoothly but has digressions and side trails.
April 5, 2010
Fascinating trial narrative: in early 19th century New York, a commercial lawsuit pits popular against scientific opinion: is a whale a fish? The writing didn't engage me quite as much as I expected, but the research is thorough and the book works well as history of science.
Read
September 13, 2007Speaking for us in January, hopefully...
triedtoread
May 11, 2008can't get into it
January 2, 2009
I would have given this book four stars had it not been for the author's trying (ha ha) practice of inserting puns and jokes in the text. They were a little too clever, and a bit distracting.
July 27, 2016
Brilliant.
Want to read
July 28, 2011Must read this, but it's FIFTY BUCKS in hardcover. Anyone have a used copy they want to part with?
August 8, 2011
A little too dry for my taste. Best chapter was the one describing the opinions of whalers and sailors.
October 24, 2009
I didn't make it through this book.
Read
June 18, 2015The footnotes. Oh god, the footnotes.
Displaying 1 - 17 of 17 reviews