Over 40 years before the publication of Charles Darwin’s On the Origin of Species, a case came before the Mayor’s Court in New York City where the issue was whether a whale was a fish. The science of taxonomy was just emerging, and there was much public interest throughout the United States in the evidence presented in this case. The New York State Legislature had enacted legislation to protect the public from contaminated oil by requiring that all fish oil sold in New York be gauged, inspected and branded. The law allowed the fish oil inspectors to impose a penalty of $25 per barrel on those who failed to comply. Samuel Judd purchased three barrels of whale oil that had not been inspected, and James Maurice, a fish oil inspector, sought to collect the penalty from him. Judd pleaded that the barrels contained whale oil, not fish oil, and so were not subject to the fish oil legislation. At trial, in the Mayor’s Court with Recorder Richard Riker presiding, Maurice was represented by Mr. William Sampson and Mr. Anthon, while Mr. Price and General Bogardus were counsel to Judd.
Plaintiff's attorneys presented evidence that the term "fish oil" was commonly understood to include whale oil, and cited scripture in support of this usage. Samuel L. Mitchill, a former U.S. Senator from New York, and a Professor of Natural History and Chemistry at Columbia University testified for the defendant. Dr Mitchill stated that "as a man of science, I can say positively, that a whale is no more a fish than a man; nobody pretends to the contrary nowadays except politicians and lawyers."
The jury deliberated for 15 minutes and returned a verdict in favor of Mr. Maurice, the fish oil inspector. Mr. Judd, dissatisfied with the verdict, moved for a new trial. By then, the Legislature was in session and the Recorder, knowing that a new fish oil bill was pending, delayed his decision on the motion. The new enactment limited the inspection to fish liver oil, and the Recorder took the view that this implicitly confirmed that the earlier legislation covered whale oil. Accordingly, he refused to grant Judd’s motion for a new trial.
James Maurice resigned his position as fish oil inspector because he considered that the position under the new law had too little value or importance.
William Sampson. 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. This pamphlet appeared in bookshops in the summer of 1819.
The Historical Society of the New York Courts 140 Grand Street, Suite 701 White Plains, NY 10601 914.824.5864