D. Graham Burnett. Trying Leviathan. the Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature. xiv + 304 pp., figs. biblio., index. Princeton: Princeton University Press, 2007. $29.95 (cloth).

On 1 July 1818, Samuel Judd landed on the wrong side of the law. He purchased three casks of uninspected whale oil from John Russell, violating a New York statute that required all fish oil to be inspected before sale. When James Maurice, fish oil inspector, learned of the sale, he took Judd to court. Thus began Maurice v. Judd, a three-day trial that unfolded in the Mayor’s Court in mid-winter 1818.

Whaling ships and oil casks, New Bedford MA, 1870

Fish oil, let’s be honest, doesn’t fire the imagination, and Maurice v. Judd will never carry the gravitas of other iconic American trials such as Brown v. Board or Roe v. Wade. But as Trying Leviathan shows, the case has a number of hidden gems, each carefully quarried by D. Graham Burnett. Had Judd denied buying the casks, or alternatively, agreed to pay the $75 dollar fine, things would have turned out differently. As it was, he took a novel approach to his defense, arguing that the law had been misapplied; the casks in question did not contain fish oil, but whale oil. By framing his case in this way, Judd transformed what would have been a quotidian commercial dispute to a public debate over modern taxonomy, namely: “Is the whale a fish?”

Samuel Latham Mitchill

Judd’s clever defense allows Burnett to use Maurice v. Judd as a perch from which to view the taxonomic landscape of early 19^th century America. Ranging over this landscape was Dr. Samuel Mitchill, physician, commissioner, assemblyman, and congressman, who entered the courtroom prepared to defend the status of whales as mammals. Mitchill was every lawyer’s dream of an expert witness: well-known (see above) and well-respected, especially as a lecturer in natural history at the College of Physicians and Surgeons. But Mitchill’s day in court did not go smoothly, and he was forced to acknowledge serious disputes among philosophers over taxonomic classification. Maurice’s attorneys picked off Mitchill’s arguments, but didn’t stop there, taking aim at Mitchill himself as well as what he represented: gentleman-philosophers who had lost touch with common sense. As Burnett tells it, the drubbing of Mitchell signaled a broader standoff between the public and its men of science. Maurice’s lawyers “went after the cultural authority of the sciences in general and natural history in particular.” (75) No longer was this a case about casks of oil, he claims, but “the proper place of science and men of science in the Republic…”(75).

Yes, well, this hurls the argument a bit further than the sling permits. It’s hard not to love trials because they provide the spark of controversy so useful in historical analysis. Whether these sparks represent the brushfires of a broader culture, however, remains to be seen; the artificial, polemical nature of the American court, much like American politics, sometimes draws lines where, say, smudges are more appropriate.  Indeed, a key contribution of Trying Leviathan is in showing that Maurice v. Judd cannot be reduced to the binary opposition of Men of Science v. Everyone Else. Burnett is at his best in showing that the whale, common to Americans of many stripes, was not, in fact, common at all. Men of science, the general public, whalers, and commercial men all understood Leviathan differently, gathering their knowledge of it in different ways. The writings of Linneaus and Georges Cuvier may have inspired a generation of taxonomists to cast the Whale out of Fishes, but ordinary Americans still hewed closely to a Biblical taxonomy that classified animals into flyers, crawlers, and swimmers. Whalemen, on the other hand, were experts in a “superficial natural history” (125) of their prey, a phrase Burnett uses literally, rather than pejoratively, to mean a knowledge of the outer parts. They, more than anyone else, could identify whales at a distance from blow pattern, fin shape, fluke, or splash. Their knowledge extended to the outer layers of the whale, from black skin to the thick blanket of fat that they collected for the tryworks. What lay beneath this blanket, however, remained mysterious. The meaty parts of the whale were not valuable, and the animal, once disrobed of its blubbery coat, soon sank to the bottom. But this was exactly the part of the whale that Mitchill and other taxonomists (inspired by the excavating impulse of Cuvier) found so interesting.

Historians of science may feel satisfied at this point, having seen views of the whale from the street, the wharf, and the lecture hall. But Burnett is not quite done, taking the reader into the marketplace, too, where vendors and purveyors understood this creature in their own peculiar way. Commercial men attended themselves to the specific qualities of whale oil, a commodity that, whatever rung the whale occupied in God’s Ladder of Creation, was not fish oil. Whale oil, a clean substance with few impurities, was rendered by trying blubber in pots aboard ship. Fish oil, on the other hand, was nasty, impure stuff, a stinking emulsion of oil, blood, scum, and other fishy matter used primarily in tanning. This commercial taxonomy of the whale might seem a rather narrow, arcane bit of information to end on, but Burnett is right to pursue it; the commercial distinction between whale and fish proved crucial in determining Maurice v. Judd (for the plaintiff) and brought about subsequent changes in New York law (for the defendant).

Burnett’s only misstep in Trying Leviathan is overstating Maurice v. Judd’s relevance to a series of historiographic debates. The book concludes, rather deliriously: “Is the whale a fish? Is science social? Is philosophy historical? The precedent question is always this: What stories must be forgotten to answer these questions?” These are good, if stratospheric questions, but ones that Burnett’s analysis of Maurice v. Judd cannot answer and that divert the reader from his greatest accomplishment: the creation of a new map of the whale in American culture, one textured by close-readings and breadth of scale, engraved with love and a sense of wit.

Thanks to the University of Chicago Press for permission to publish this review. It will appear in an upcoming issue of Isis.