THE ACTION OF JAMES MAURICE AGAINST SAMUEL JUDD, FOR A PENALTY, NEW YORK CITY, 1818. THE NARRATIVE. Is a whale a "fish"? This was the question that for many days engaged the attention of a court and jury, a distinguished array of counsel and a crowded court room, in the City of New York in the first quarter of the nineteenth century. The New York Legislature had passed a law requiring all "fish oil" sold in the state to be first inspected and branded, with a penalty for any one who should buy or sell any oil that was not so inspected and branded. The defendant was sued for the penalty and his plea was that the uninspected and unbranded oil that he admitted having purchased was not "fish oil," but was whale oil. And to show that a whale was not a fish, the defendant brought a number of witnesses, captains of whaling ships from New Bedford and other Massachusetts ports, the seat of the whaling trade, and dealers in oils in several states, who deposed that they never regarded the whale as a fish and never considered fish oil to mean or include whale oil. But their star witness was Doctor Samuel L. Mitchill, the leading scientific man of his day in America; a professor in Columbia College, and a man of affairs, who had represented his state in the United States Senate. He unhesitatingly declared that a whale was no more a fish than a man, and added that nobody thought it was but lawyers and politicians. All that the state had to present in reply were the opinions of merchants in New York, who said that no matter what the Yankees in the East thought, in this city everybody called a whale a fish and called whale oil fish oil. And the jury, being all New York men themselves, rejected the opinions of the celebrated naturalist, and the Massachusetts captains, and found in accordance with local sentiment and local ideas, that a whale was a fish and that whale oil was fish oil. THE TRIAL.1 In the Mayor's Court, New York City, December, 1818. December 31. The declaration claimed the sum of seventy-five dollars against the defendant, for buying of one John W. Russell in the City of New York on March 31, 1818, three casks of fish oil, which had not been gauged, inspected and branded according to law. The statute which required this of all fish oil sold in the state gave the official gaugers (the plaintiff Maurice being one of them) a penalty of twenty-five dollars for every barrel of the oil not so inspected and branded which any person should buy, sell, barter, ship or convey. The Defendant pleaded that the oil in question was not fish oil, but was whale oil. The following jurors were ballotted for and sworn: Elijah Curtis, William S. Hick, Augustus Craft, Samuel Dodge, Robert Wiley, Garret Banta, Isaac Underhill, George Niven, William Cruikshanks, Robert Blake, William Wilmerding, Robert McCoubrey. Mr. Anthon and Mr. Sampson, for the Plaintiff. Mr. Price and General Bogardus, for the Defendant. 1 Bibliography. *"Is a Whale a Fish? An Accurate Report of the Case of James Maurice against Samuel Judd, tried in the Mayor's Court of the City of New York, on the 30th and 31st of December, 1818; wherein the Above Problem is discussed Theologically, Scholastically and Historically. By William Sampson, Counsellor at Law. Who says a Whale's a Bird?-Sheridan. New York. Printed and Published by C. S. Van Winkle, 101 Greenwich street. 1819." 2 See 1 Am. St. Tr. 361. 3 See 2 Am. St. Tr. 541. 4 See 1. Am. St. Tr. 63. Mr. Anthon. Gentlemen of the Jury: This is a case in which a great deal of science, and, perhaps, much of lefthanded wisdom, may be displayed before you. Although from the crowded audience, it is apparent that much amusement is expected from the novel discussions which will necessarily occur in the cause; it still, independent of this matter, involves a grave question, and one of considerable importance to the public. In all well-ordered communities, where an attempt to deviate from the plain path of honest dealing is detected, the Legislature interferes, and restrains such wanderings by penal statutes. Previous to the passing of the law on which this suit is founded, it had been discovered that great impositions and frauds were practiced in the sale of all kinds of oil; to guard against such practices, the State Legislature, at their last session, passed an act bringing all fish oils under inspection. While a law is under discussion in the Legislature, all persons falling within its provisions have ample opportunity to be heard on the subject, by petition and otherwise; but when enacted, complaint is in vain in a court of justice, whose duty it is to enforce it. The policy of this law, therefore, which is, as we understand, contested by our opponents, is not, at this time, a fit subject of discussion, and if it was, we trust we should find no difficulty in supporting it. The statute which you are called upon to enforce against the defendant is, in its nature, remedial, being directed against existing frauds; it must, therefore (as the Court will direct you), receive a liberal interpretation to reach the evil. This law is a wise law; its object eventually is, to uphold our commercial character, by guarding articles of trade from the contamination of fraud, and in this the character and interest of the nation is essentially concerned. One of the great questions necessarily arising in the cause will be, what is "fish oil"; whether the oil of a whale is the oil of a fish, and, consequently, whether a whale is a fish? According to the common understanding and acceptation of men, it would seem, that this could hardly admit of a ques tion. It has, however, remained for the great lights of the present age to draw it into serious, grave discussion, and to exclude the whale from the family of fish. It is fortunate, therefore, for the plaintiff in this cause, that this statute is not to be interpreted according to the refined and learned opinions of naturalists, but that its terms are to receive an interpretation according to their common and popular usage. If, therefore, on this question, naturalists decide against us, and proclaim a whale no fish, we have our appeal to the common sense of a jury to set them right. We shall on this subject be opposed by the eloquence and great learning of a witness, who will be produced before you with much triumph, by the counsel for the defendant, as their great bulwark. This gentleman, we admit, is an ornament to his country, and adorns the science which he possesses, by the amenity of his department and his readiness to extend freely to others the knowledge he has laboriously acquired. I have had the honor and good fortune to enjoy his instructions as his pupil, and from esteem and regard for him must always feel inclined to receive his opinions with great deference and respect. This learned gentleman will tell you that a whale is not a fish, and I am well aware of the grounds on which he will rest that opinion; he will tell you that he 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 when brought forth; all these and the like peculiarities we admit to be true, but still the whale remains a fish, until nauralists can show him existing on dry land, and destroy in him the plain discriminating feature between the fish and the rest of the marine creation. Again, it is worthy of remark, that if the whale, by reason of his peculiarities, is to be removed from the finny tribe, the porpoise puts in an equal claim to this distinguished honor, in as much as he enjoys, in common with the whale, all the peculiarities we have just noted. Many of us may not have seen a whale, and might, as to it, be led astray by the learning of philosophers; but the porpoise is an inhabitant of our own waters, we can judge of his claim for ourselves; and as the porpoise is as much and no more a fish than a whale, in the acceptation of naturalists, we shall all have the demonstration of our own senses to keep us right on this great question. While we, however, rely ultimately on the decision of com mon sense, we shall not abandon to our adversaries the field of learning. We shall call to our aid the great fathers of natural science, to combat the visionary theories of modern times. My learned friend, with whom I have the honor to be associated, has now arrayed before you ponderous volumes of recondite learning, and the wisdom of the ancients will be powerfully invoked by him in support of the conclusions of common sense. But, gentlemen, independent of all that learning can urge on this subject, we shall rely on the sacred volume as conclusive. From it we learn that the great division of all created things, fixed by the Deity himself, and which naturalists may mar, but cannot mend, is, the birds of the air, the beasts of the field, and the fish of the sea. In the first chapter of Genesis it is said: "26. And God said, let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth. 27. So God created man in his own image, in the image of God created he him; male and female created he them. 23. And God blessed them, and God said unto them, Be fruitful and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth." With such auxiliaries, therefore, we stand forth the advocates of the ancient empire of the whale, which, although fearfully shaken by the efforts of naturalists, we trust will be established by your verdict. The facts in this cause, gentlemen, are comprised in a very narrow compass, which we shall now proceed to lay before you. We shall bring the defendant fully within the law, by proving that after the passing of the statute which has been read to you, he purchased from Mr. Russell three casks of sperm oil, which oil, at the time of the purchase by the de |