William Sampson

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19th Century American Whaling

Image Gallery from the Plough Boy Anthology of 19th Century American Whaling.

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The Collected Works of William Hussey Macy

The Seizure of the Whaleship George Howland of New Bedford, by Convicts at Charles Island, Galapagos, March 1852

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Ashley's Glossary of
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Is a Whale a Fish?









Counsellor at Law.

Who says a Whale's a Bird? ....SHERIDAN.

101 Greenwich-street.

Southern District of New-York, ss:

      BE IT REMEMBERED, that on the tenth day of April, in the forty-third year of the Independence of the United States of America, C. S. Van Winkle, of the said district, hath deposited in this office the title of a book, the right whereof he claims as proprietor, in the words and figures following, to wit:

      "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 whales a bird.' – Sheridan."

      In conformity to the act of Congress of the United States, entitled "An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned;" and also, to an act, entitled, "An act supplementary to an act, entitled, an act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."

Clerk of the Southern District of New-York.,


      I do not find it any where set down when this writing of prefaces first came in; for though Solomon says, that of writing of books there is no end, yet of this, which is at the beginning of books; he says nothing; and, indeed, considering how few advance themselves, or their works, in the opinion of the reader, by these insipid essays, it were as well the thing had never been invented.

      It has been likened to the making of a bow, which is an ordinary civility; but every man has not the gift to perform that act of courtesy with so much grace as to avoid the censure of criticism; and many, therefore, omit it altogether, and yet pass tolerably well through life.

      I did intend to follow this course, because it seemed the most simple, and best comporting with my design; which was, to send down to posterity a plain and veridique history of the proceedings in the case between James Maurice and Samuel Judd, touching three barrels of oil; and the grave and sententious debates that grew out of the same, without any additions or interpolations whatever, but according to, and in, the exact order in which they were delivered.

      But now, when my book is concluded, and set up in types, and ready to be struck off, my printer informs


me, that he is waiting for some of what he calls prefatory matter. This coming, in its etymology, from prae and fari, means, as I take it, the matter which is first uttered, and not that which is last thought of and it being none of the principles of my life or actions to mislead the smallest child, I would have broken through this tyrannous custom altogether, but this I am told would be as unceremonious as to walk in without knocking. I was then inclined to have this matter put according to the truth at the end of my report, but this could not be, by reason that my printer had allotted four blank pages in the fore part to be filled up out of my poor stock of invention; I not knowing, and he as little caring, what that matter then in embryo might be. Nor do I know yet, though the pen is in my hand, whether it is to be discourse, narration, apology, or argument, having no felicity of imagination, being from my childhood simple and of few words, and little caring to talk when I had nothing to say.

      I am told, also, that it is the usual course of authors to reserve the writing of their prefaces till the work is concluded because, as they often change the plan upon which they set out, they cannot, till their imaginations have done fermenting, be sure of their end; but when all is finished, they can with more safety accommodate their preliminary discourse to the matter as it stands, and so have the better reputation for consistency and constancy.

      I should cheerfully follow the beaten track, without. any affectation of novelty; but when I observe all these proemes, however varied with the titles of advertisement, notice, preface, introduction, &c. breathing the same sickly accents of doleance, claiming indulgence


for the author's many failures, which nobody compelled him to, and pardon for the contrite sinner who, for the good of mankind, composed his work amidst the stormy tempest of his own weighty and busy affairs, which nobody cares for I cannot follow such examples, for in this lowliness there is most apparent vanity, and though such may humble themselves, it does not follow that they are the more exalted, for of all they have written, their apology is the most inexcusable.

      Again; it is said that a preface is to apprise the reader of what he is to expect in the work; but why should not the work be its own interpreter? This, however, comes the nearest to the matter in hand, since the beings and things which are treated of in the course of this report, are many of them of a terrific nature, and such as, coming suddenly, and by surprise, upon the gentle reader, might greatly alarm him: such are worms of four acres, and some of a mile and a half in length, and for aught appearing, of little less breadth; with all manner of monsters of the sea and land that were ever known to this generation or to those who lived in the earliest ages, brought together, as if it were the gathering into the ark. Besides, great whales, and monsters, floating on the surface of the watery deep, which breathe air uncommingled with water, yet make their abode upon the waves.

      But if I am to say truly what moved me to write, it was this: that I had often noted, and long observed, how grievously truth was disfigured and obscured by loose rumours and running reports, and how that tattling gossip, common fame, eager to scatter news without waiting to hear the true facts of any case, would snatch up scraps and fragments quite out of the rule


and reason of the matter, and then with her brazen trumpet she raises so many echoes, that when truth comes after with her slow but majestic step, there are none can hear her sweet and melodious accents, by reason of the din. To what else can it be owing, that the philosophers of the new school have flown to arms, and already brandish their pens in deadly defiance of the Knickerbockers. I have, therefore, as the friend of peace and universal toleration, made out a fair and full statement of all that was said or acted on this memorable case, as well worthy of recordation as any of the events of our own or former times, by which those who take part in the agitations it has stirred up would do well to govern themselves, that whatever opinions they maintain, they may at least be formed upon true premises; and so, returning many thanks to the professional gentlemen who favoured me with their notes, and particularly to Joseph D. Fay, Esq. for his accurate and ample minutes, and wishing to my kind reader both profit and delight, I commit my little work into his hands.



City Of New-York, ss.

      James Maurice, plaintiff in this suit, complains of Samuel Judd, defendant in this suit, in custody, &c. of a plea, that he render to the said plaintiff the sum of seventy-five dollars, lawful money of the state of New-York, which to him he owes, and from him unjustly detains. For that the said defendant, heretofore, to wit, on the first day of July, in the year of our Lord 1818, at the city, and in the county of New-York, and after the 31st day of March, 1818, did buy of one John W. Russell, in the city of New-York, three casks of fish oil; the said three casks of fish oil, at the time of the said purchase by the same defendant, not having been gauged, inspected, and branded, according to law, contrary to the form of the statute in such case made and provided; whereby, and by force of the statute in such case made and provided, the defendant forfeited, for his said offence, the sum of seventy-five dollars, being twenty-five dollars for each of said three casks so sold by the said defendant as aforesaid; and whereby, and by force of the statute in such case made and provided, an action hath accrued to the said plaintiff, to demand, and have of the said defendant, the said sum of seventy-five dollars so forfeited as aforesaid, and above demanded. Yet the said defendant, although often requested so to do, hath not as yet paid the said sum of seventy-five dollars above demanded, nor any part thereof, to the said plaintiff, but he to do this hath hitherto wholly refused, and still doth refuse, and therefore the said plaintiff brings suit, &c.   John Anthon, Attorney.

      The defendant pleaded the general issue, and the cause was noticed for trial at the November Term.

Jurors ballotted and sworn.


TRIAL, &c.

      Mr. Anthon opened the case to the jury as follows:

      Gentlemen of the Jury, this is a case in which a great deal of science, and, perhaps, much of left-handed 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 practised 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. I shall now beg your particular attention to the reading of this statute, before I


proceed to detail to you the facts on which your verdict is expected.

      Mr. Anthon here read the statute, which is as follows:

An act authorizing the appointment of gaugers and inspectors of fish oils, passed March 31, 1818.

      I. Be it enacted by the people of the state of New-York, represented in senate and assembly, That the person administering the government of this state, by and with the advice and consent of the council of appointment, shall, from time to time, appoint one person for the city of New-York, whose powers shall extend to, and include the village of Brooklyn; one person for the city of Albany; and one person for the city of Troy, whose powers shall extend to, and include Lansingburgh and Waterford, to be gaugers and inspectors of fish oil.

      II. And be it further enacted, That each person so appointed, shall, before he enters on the duties of his office, take the following oath or affirmation, (as his conscience may dictate,) before any officer in the place, for which he is appointed, legally authorized to administer oaths, to wit: "I do solemnly swear or affirm, (as the case may be,) that I will faithfully and impartially, to the best of my judgment and skill, perform and execute the office and duty of a gauger and inspector of oils, according to law; and that I will not, directly or indirectly, by myself or any other person for me, buy or sell any fish oil, during the time I may continue gauger and inspector of the same, on my own account, or for account of others, nor will I receive any profit or emolument arising in any manner or way from fish oil, during the term aforesaid, other than the legal fees of my office, so help me God."

      III. And be it further enacted, That it shall be the duty of each person appointed, by virtue of this act, to provide himself with proper instruments for gauging and inspecting oil, and whenever called on to gauge and inspect any parcel of fish oil, within the place for which he was appointed, it shall also be his duty to inquire diligently, and seek out any parcels of fish oil within his district, and gauge and inspect the same, and brand legibly on the head of each cask he may so gauge and inspect, his own name,


and the name of the place for which he was appointed; also the whole number of gallons the same shall gauge, and separately from each other the quantity of water, the quantity of sediment, as well as the quantity of pure oil he shall find therein, and shall make, subscribe, and deliver to the owner or holder of such parcel of oil so gauged and inspected, a certificate, exhibiting in separate columns the quantity of each of the aforesaid enumerated ingredients the whole parcel shall contain; for all of which gauging, inspecting, branding and certifying aforesaid, he shall receive from the owner or holder of the oil so gauged and inspected, twenty cents for each cask, be the same small or large, the one half of which shall always thereafter be chargeable upon the purchaser of the same.

      IV. And be it further enacted, That it shall be the duty of all persons owning or holding fish oil, to put the same in a convenient position for gauging and inspecting, whenever thereto required by an authorized gauger and inspector.

      V. And be it further enacted, That any person or persons who shall counterfeit, alter or change any of the brands or marks aforesaid, on any cask of oil so branded or marked, or who shall mix, or in any manner adulterate any cask of oil so branded or marked, or who shall buy, sell or barter any oil within the districts or places aforesaid, except the same shall have been gauged, inspected, and branded according to law, or who shall ship, export, or otherwise convey, or cause to be conveyed, any oil out of, or from the districts or places aforesaid, except the same shall have been gauged, inspected and branded according to law, such person or persons, so offending, shall forfeit and pay the sum of twenty-five dollars for each cask, the brands or marks of which shall be so counterfeited, altered or changed, or which shall be so bought, sold or bartered, or which shall be so shipped, exported, or otherwise conveyed, contrary to the true intent and meaning of this act: Provided, nevertheless, that nothing herein contained shall be construed to prevent any person or persons from buying or selling oil by measures legally sealed.

      VI. And be it further enacted, That it shall be the duty of any person or persons who shall use, or otherwise empty the contents of any cask of fish oil, immediately to efface the gauger's and inspector's marks or brand; from the same, under the penalty of twenty-five dollars.


      VII. And be it further enacted, That any forfeitures arising by virtue of this act, may be sued for, and recovered by action of debt, with costs of suit, in any court having cognizance of the same, to the sole use and behoof of any person who shall sue therefor.

      This law, it is apparent, 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 question. 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 deportment, and his readiness to extend freely to others the knowledge he has laboriously acquired. I have had the honour 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 naturalists 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 honour, 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 common 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 tne visionary theories of modern times. My learned friend, with whom I have the honour to be associated, has now arrayed before you ponderous volumes of recondite learning, and the wisdom of the ancients will be powerfully inyoked 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.

      [Mr. Anthon here read 1 ch. Gen. v. 26, 27, 28. "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.

      " 28. 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. Russel three casks of sperm oil, which oil, at the time of the purchase by the defendant, had not been duly inspected. After proving these simple facts, we shall leave the opening of all the learning of the case to our opponents.

      Mr. Richard Ellis, the first witness for the plaintiff, testified, that he bad served a summons, from a Justices' Court, upon the defendant, and that it was to answer the plaintiff in an action brought for the same cause as that now on trial, and that he informed him what the nature and subject of the action was. Mr. Judd did not deny that he had bought the three casks of oil of Mr. Russel, and that it was uninspected, bct insisted that he had incurred no penalty, because it was not fish, but whale oil. The oil was bought from Mr. W. Russell. Witness thinks it was Mr. J. W. Russell. The action was dropped below, and a new one brought here.

      Cross-examined by General Bogardus. – Did he tell you he bought that particular parcel of oil from Mr. Russell.

      A. He did.

      Q. When did he tell you he purchased it?

      A. He did not fix the time, the place, nor the circumstances. Witness had this conversation with defendant when he went to him touching the discontinuance of the action, and thereupon tendered him a dollar of costs, which he refused. There was something said of Mr. Anthon's fee, which was disputed, but the action was nevertheless discontinued, and removed to this court.

      Re-examined by Mr. Anthon. – Witness told Mr. Judd, distinctly, that the action was brought for the penalty under the new statute, and that he had a warrant likewise against Mr. Russell for the same oil. And that all this was since the passing of the act.


      Again cross-exainined by General Bogardus. – Witness said he had himself seen the act, and the section under which that action was brought; Mr. Anthon had shown it to him in his office. He could not, however, recollect the precise date of it.

      Here the plaintiff's counsel proposed to rest for the present, that the defendant might open their case, and the nature of their defence, to the jury.

      Mr. Price then rose, and demanded whether the plaintiff meant to offer no more testimony, as he would, in that case, call no witnesses for the defendant.

      Some conversation passed touching the object of the counsel, and whether he meant to move the court for a nonsuit. The defendant's counsel stating it to be their desire to sum up to the jury upon the testimony of the plaintiff above, and to have a verdict to bar any further proceedings. Mr. Anthon observed, that, if that was the case, he would give the jury some further information. That he had supposed it understood, that the question was to be tried fully upon its merits, and not like a game of brag. He would not, however, be stumped, and begged the counsel to wait till he should have a little more evidence to observe upon.

      Mr. Russell was then called and sworn for the plaintiff – He admitted, that he had sold the three casks of spermaceti oil to the defendant on the 14th of September last, and that it was not inspected. He said that spermaceti oil was the oil of a whale, but was not what was called fish oil.

      Question by the Recorder. – Was it within the city and county of New-York?

      A. It was.

      The date of the passage of the law was now referred to, which was March 31, 1818.

      Cross-examined by General Bogardus. – Amongst merchants, sperm oil, whale oil, and fish oil, are known as distinct articles of commerce and according to the general term of the dealers, and the usual mode of speaking, fish oil does not include, or imply, whale oil. No merchant under an order for fish oil would ever think of delivering sperm oil. There is no such trade in this city as that of whale oil. The vessels belong generally to the eastward, and come into Sag Harbour with their cargoes. Witness never knew but two ship come into New-York, and


as the law applies only to Albany, New-York, and Troy, he does not think it can apply to whale oil, these not being ports used in that trade. He had never heard of a whale ship in Albany, nor had he known of more than three coming into New-York in 15 or 20 years. There is an oil called elephant oil, which is of a superior quality to whale oil, and is sometimes used instead of it as a substitute. The various kinds of oil take their names from the animals that produce them, as sperm oil, whale oil, and fish or liver oil. That called winter-strained oil is the best; the finest quality is from the head of the spermaceti whale.

      Examined by Anthon. – The sea elephant is no whale, and its oil is called elephant oil. Witness had once seen a whale along side of the wharf, but does not know whether it is, properly speaking, a fish or not. There has been whale oil in Albany, though no whale ships. Witness has dealt in oils for 15 years. Tanners and curriers only use whale oil when they cannot get fish oil.

      Q. Do you know from what fish that oil comes which you distinguish by the name of fish oil?

      A. It comes from the livers of various fish, as cod, haddock, and several others. Sperm oil comes both from the head and the body of the sperm whale. The oil is expressed from the body and the head, and leaves the substance from which candles are made.

      Q. Did you ever see a sea elephant?

      A. I did not.

      Q. Do you understand it to be accounted as a whale or a fish?

      A. I do not know the nature of it.

      Q. Do you know how many kinds of whales there are?

      A. I do not.

      Q. Is the oil of a whale the oil of a fish?

      A. I cannot say.

      Q. Have you not heard of whale oil being sold in Albany?

      A. Certainly, there has been whale oil at Albany, both sold and used there.

      Witness again examined by General Bogardus. – Described the manner in which the spermaceti oil was prepared, and the process it undergoes in the manufacture after its arrival. It is gauged also. Never heard of any frauds committed in whale oil, nor any complaints of any. The complaints were of frauds in


the fish oil. You cannot mix water with whale oil no more than fire. Witness had never seen any sediment, nor water, nor adulteration, in whale oil. Admits that water might be put into the cask, and by that means a fraud committed. The running in the gauging rod would not detect fraud, if there were such; that must be discovered by inspection.

      Captain Preserved Fish called and sworn on behalf of the defendant. Has been acquainted with the commerce in oils for thirty-three years, and was ten years a whaler, and has been master of a vessel in the whale fishery. Is of the firm of Fish & Grinnell, and sells both spermaceti, whale, and fish, oils; these are the names by which the oils are known in commerce. So much so that no person who wanted whale oil, ever made an application for fish oil. Witness could be under no mistake as to this, it was the universal understanding of all merchants; all the price currents will show it. The fish oil comes from cod, haddock, pollock, sharks, mackarel, and all kinds of fish. The shark is very productive; its liver will produce several gallons of oil. The livers are taken out and thrown together into a barrel, where they melt into oil. There is always a sediment on this; it is not boiled as the whale is, but merely left to the operation of the sun, so that there is some water and mucilage in all fish oil, and pieces of membrane and sheds of fibres, and for that reason it would boil over as water does. It will nevertheless burn in the lamp. But as to the sperm oil, the whole of it is from the sperm whale. That called winter strained is the finer part of the manufacture, and that proceeding from the head is the finest. This is called the spermaceti whale. There is another called the right whale, from which comes whale oil; and the humpback whale, which makes humpback whale oil.

      The oil of the whales and porpoises is boiled intensely on board the vessels when it is taken. It is rendered so hot that a drop of moisture will fly off; if you spit on it, it will fly as from hot iron, and if you throw any water it will boil off it, and run over the deck. But the liver oil is only dried by the sun, except sometimes in the fall of the year, when the sun has not power enough. The sperm oil is in the summer strained under a wooden screw in canvass bags, and afterwards undergoes another pressure, making it a cheese, after which it requires no more straining, but is very valuable for the manufacture of candles.


      The fish oil is sometimes called liver oil, but mostly and commonly fish oil; and nine tenths of the whale oil is brought into Sag Harbour alone – very little into this port. There are one or two ships only out of this port, belonging to Mr. Hazard. Elephant and seal oil comes from animals caught on the land, and which cannot be come at in the water.

      The court intimating a desire to know how that last-mentioned production was classed or considered, the counsel for the plaintiff admitted that elephant oil or seal oil were not fish oils. The universal understanding, and no instance to the contrary, is, for whale oil to be so quoted, that is, distinguished from fish oil. The witness further stated that the whale had no one character of a fish, except its living in the water. Whales must breathe the atmospheric air; they may live half or three quarters of an hour under water, but must then come up to breathe the air again. They would drown in the water, as much as a man would, if they were tied or kept by any means under water.

      Cross-examined by Sampson. – You admit, Captain Fish, that the whale has one character of a fish, that of living and moving in the water. Has it not a smooth skin, and a naked body. Mr. Sampson proceeded to interrogate him us to the characters displayed by the whale, which it had in common with other fishes, and distinct from quadrupeds and terrestrial animals. Instancing its having no neck, its smooth skin, naked body, oily surface, the corpus mucosum, fins, and neither hands nor feet. The witness, with respect to the fins, observed, that they were not strictly fins, but were often called arms, (or what you please,) on each side; however, he admitted, that the whalers called them fins. Being asked if its shape did not resemble fish, and whether an engraved drawing, presented to him by Mr. Sampson, was a fair representation, the witness did not admit the resemblance.

      Q. Has it no resemblance?

      A. Very little.

      Q. If the whale be not like that, can you say any thing to which it is more like.

      A. It is very like itself; its tail differs from all other fish. The tail is flat, and it swims like a man.

      Q. A man swims, as I have observed, by the impulse of his legs and feet is there no difference then? If it has arms, has it also legs and feet?


      A. The arms resemble the arms of a man more than the fins of a fish.

      Q. Having arms, we would naturally look for the hands – has it any hands?

      Witness seemed to incline to the affirmative.

      Q. If so, could it do as I do now, (taking a pinch of snuff.) Can it breath with its mouth under water?

      A. It can, but not with its nose under water.

      Q. Do you profess to understand the interior structure of these animals. Have they shoulder blades? Have they the joints and bones which belong to the upper limbs of a man? The counsel then enumerated the Scapula, humerus, radius, ulna, carpus, postcarpus, phalanges, &c. &c.; and asked the witness if he was acquainted with those terms; and pointing to the different parts, asked if the structure of the whale's fins was conformable to it.

      A. I have never dissected any of them.

      Q. I can very well perceive it Mr. Fish. You then maintain that they have hands.

      A. I do not.

      Q,. Then you give up the hands, legs, and feet, but still stand out for the arms.

      No answer.

      Q. Do these animals ever come upon dry land?

      A. They do not.

      Q. Is the horizontal tail peculiar to those whales that you describe? Have not the porpoises the same?

      A. They have their tail in the same direction.

      Q. Is the porpoise then a fish?

      A. No more than a man is a fish.

      Q. Please, then, to tell us what it

      A. A porpoise is a porpoise; they are all of the order of mammalia.

      Q. From what philosopher do you borrow this classification, and this term of the mammalia?

      A. I have my information from the Encyclopedia.

      Q. If so, give me leave to inquire a little about that order, as you call it. Is not the monkey one of it?

      A. I do not know; you know more, perhaps, about monkeys than I do.


      Q. I am not at all so sure of that, but think I can learn a good deal from you. What do you understand by mammalia. Why are they called mammalia?

      A. They are called mammalia because they breathe as men do. Man is of that order; he breathes the air, but cannot breathe it under water as fish do. The fish, therefore, has cold blood. A whale's blood is as warm as a man's; just about the same temperature.

      Thomas Hazard, on the part of the defendant, stated, that he was a number of years, near thirty years, in the whaling business. The oils take their names from the animals that yield them. They distinguish the oil by the creature that produces it. One particular kind of oil is called fish oil, which comes from the liver of fishes, and is therefore sometimes called liver oil. There is, also, elephant oil, spermaceti oil, and whale oil. And these names are so determined by usage, that when asked for fish oil, at a time that he had whale oil in abundance, he has answered that he had none. All merchants acknowledge these distinctions. And the distinction between meal and flour is not more known than that between whale and fish oil, or between wheat and buck wheat. If any one were to order fish oil, and I were to answer by sending him whale oil, it would be the same as if he had ordered sugar and I had sent molasses.

      Witness had heard of frauds committed in the fish oil, and much complaint upon that subject. That kind of oil was liable to have water in it, never having been exposed to the action of fire; and the liver oil has been generally sold by the barrel without being gauged, and frauds thereby practised, there being not only sediment, and sometimes water, but other extraneous substances. The other oils were sold by the gauge. Witness, however, admitted, that he had known a ship to bring home some barrel with water in them, which was, probably, through carelessness in filling the oil into barrels, where there had been water. Knew of one half cask that had water in it, but upon discovery the error was rectified, and heard of another, but never more.

      Fraud may to practised in whale oil also, by water in the vessel, or by other mixture, or adulteration, but that can be done just as well after inspection as before.


      By the Recorder. – Is there any such security, then, as to whale oil, as renders it unnecessary to look into it, and see whether it is pure before it is bought and paid for?

      A. We generally look at it for ourselves. But the whale oil requires none of the duties of the inspector; nor does the act provide any test for the goodness of the oil; it only speaks of the water or sediment that may be in it; fraud could not happen but by accident or design.

      Anthon here requested of the court that no comments of the witness, that went to explain away the statute, might be received, particularly since both Mr. Fish and Mr. Hazard had an interest opposed to the full operation of the law.

      One of the jurors here inquired, whether there was any thing in the nature of the subject that guaranteed against the adulteration or mixture of the whale oil.

      The witness admitted that it might be mixed if the dealer chose to commit a fraud, or one were practised without the merchant's knowledge.

      Being asked if he had any whale oil of his own inspected by the plaintiff, he answered, that he has had no such oil since the law passed, but he has had forty or fifty barrels of spermaceti inspected, which he submitted to for fear of being sued, being threatened by the inspector with suits. All the dealers in the article, as well as the witness himself, and other people, have that feeling on the subject, and think the law never meant, but was improperly applied to, whale oil. Never knew any thing called fish oil that came from any other part of the fish but the liver.

      Being asked by what name the oil from the porpoise was distinguished, he answered, that with the exception of the liver, it was called simply porpoise oil.

      He was lately told by a learned friend, that a whale was not a fish; this was new to him. But he does not believe the legislature meant to include whale oil more than olive oil, or any of the oils sent off to the different sea ports from Sag Harbour. Does not know whether any oil is made from the liver of the whale, nor whether it has a liver.

      To the question by Mr. Sampson, whether the whale ships that came into Sag Harbour, did not sometimes, when the whales were scarce, or not to be had, make up their cargoes with liver


oil, and whatever they could procure, he answered, that, in such case, they never refuse porpoise, or, indeed, any kind of oil, to make up a cargo.

      Mr. Preserved Fish was recalled, and said he was not interested in as much as a gallon of oil, further than for burning in his own family, nor did he expect to be. And some words of explanation took place as to the flounder, and other flat fish, which have the tail in a horizontal position, as showing that this character is not quite peculiar to the whale, so as to distinguish it from fish. This, he answered, by observing that these fish swam on their sides, but that the tail was not transverse with respect to the body, but would be perpendicular like that of other fish, if the fish swam perpendicularly, as the others did; but as these fish swam on their side, the tail was in the same position; if they were to swim on their edge, then the tail would appear perpendicular.

      Mr. Peter Sharpe was now sworn for the defendant, and the plaintiff's counsel called upon the defendant's counsel to state the evidence which he intended to offer by this witness. From the statement of General Bogardus, it appeared that he was called to give an account of the intentions and views of the legislature in passing the bill, Mr. Sharpe having been a member of the assembly, and chairman of the committee to whom it was referred to report upon it.

      A discussion arose upon this point, and his honour, the Recorder, directed that the witness should not state the motives of the legislature.

      Witness observed that he did not know what actuated other members of the legislature, he could only answer for himself, and what actuated him. This knowledge originated in the communications he received requiring him to act in furtherance of the law.

      This was objected to by the plaintiff's counsel, on the ground, that it was explaining a statute by parol, and putting to the jury, as a matter of fact, the construction of a statute, which should be out of the words of it.

      General Bogardus here read from 1st Blackstone's Commentaries, page 59, &c. the following passage on the construction of statutes:

      "The fairest and most rational method to interpret the will of


the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

      "1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprise only certain of her lineal descendants.

      2. "If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

      3. " As to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope


were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

      "4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted, 'that whoever drew blood in the streets should be punished with the utmost severity,' was held, after a long debate, not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

      "5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation."

      The Recorder. – What the witness may happen to know as a member of the community, he may state, but not what he knows as a member of the legislature.

      Witness then proceeded to state, that a difference had been made between whale and fish oil, and great complaints as to such oils by tradesmen and artizans; that it had been sold with water, sediment, blocks of wood, and other matters mixed with or added to it, and all sold by the barrel; it was also said, that the barrels were made purposely with heads thick toward the centre. Witness had conversed particularly with Mr. Lee upon the subject, who was well acquainted with it, and was the person with


whom the law originated. He also received letters from him on the subject while the bill was in progress. In fine, all the knowledge he has is what he obtained from such conversations and correspondence about the time of the origin and pendency of that bill. The act is, according to its title, "For gauging and inspecting of fish oils" He is not sufficiently conversant with the nature of the trade or the material, to say, what the application should be, nor has he bestowed any attention upon the question, so as to be able to say, whether a whale is a fish, or what else it should be called.

      Mr. Price, adverting to what the witness had said touching the title of the act, remarked, that although the title says fish oils, the clause which enacts the penalty says, fish oil, in the singular.

      The counsel for the plaintiff answered, that they meant to observe upon that in due time.

      Doctor Mitchill was now called on as a witness on the part of the defendant, but it being between three and four o'clock, the court adjourned till half past four.

      At the hour appointed, the court and jury being assembled, some delay took place, by reason of Doctor Mitchill's absence; about five o'clock he appeared, and after making his apology in very handsome terms, complimented the court upon its punctuality. The learned gentleman was sworn and examined.

      Dr. Mitchill, examined by General Bogardus, began by stating, that among men of business, manufacturers and artists, and those who prepare the oils, the whale and fish oil are understood to be perfectly distinct. There are two sets of men, those who catch the animals, and those who prepare the produce when it comes here for market and consumption. The first know them to be distinct, knowing the animals which produce them, and the latter know them to be different in their nature, their economy and uses. They are different in the nature of things. Another class is, that of the men of science, who understand the distinction upon principles of science, as now digested, perfectly understood, and past all question, the facts being all arranged and posted up to this day, and as far as human discoveries have gone, and human research penetrated, it is received as an incontestible fact in zoology, that a whale is no fish.

      New-York is a point into which much information centres. Men departing from this point, circumnavigate the globe, voyaging


from the arctic to the antarctic regions. From this class of my fellow citizens, much of the information I possess on this subject has been derived; and 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 now-a-days, but lawyers and politicians.

      Here the examination in chief of the witness ended, and he was invited by his Honour the Recorder to take a chair, which he accepted, and sat down near the table, where the counsel for the plaintiff had arranged a great number of learned works as authorities on their side of the question.

      Cross-examined by Sampson. Doctor, you have mentioned three classes of men, fishermen, artizans, and men of science. There is a much larger class, those who neither fish, manufacture, nor philosophize; have you ever thought it worth while to pay attention to their opinion?

      A. The great bulk of mankind that speak English, would call a whale a fish, and they would say the same of a crab or a clam, and with them I would not dispute the question. If I was to go into the market amongst my Long-Island friends, I would not debate the question whether the lobster were a fish or a crustaceous animal, or whether a clam were a shell fish or a mollusca. The legislature, to the honour of our democracy, consists of all classes of men. It is one of the felicities of our form of government, that all classes are represented.

      Q. You have heard the testimony of Mr. Sharpe, who is, doubtless, a well chosen representative of the democracy; he was about to tell you –––

      Mr. Price here protested against any allusion to the words of Mr. Sharpe, as to the opinions of the legislature, the more especially, since Mr. Sharpe was not allowed to speak to the point on his examination.

      Mr. Sampson then requested the witness to state the characters which distinguished the whale from fish.

      A. I have no objection, if it be required of me, to give it in extenso. The learned counsel who opened the cause, seemed to understand the characters which distinguish the whale. We will now contrast those tharacters with the characters peculiar to fish. A fish is an inhabitant of the water that breathes by gills, and not by lungs, and does not come to the surface to breathe the atmospheric air, which is superincumbent upon the watery deep. Fish


take in the air commingled with water, through their gills, in the proportion the Creator has thought suitable to their nature and economy. From its breathing the air commingled with water, the fish is cold blooded, and feels cold to the touch, and is little, if at all, warmer than the element in which it lives; nor can it ever become warmer during its life. The greatest exercise cannot warm it as it does us. The whale, on the contrary, is a hot-blooded animal, like ourselves.

      Question by his Honour the Recorder. The first distinctive character then is, doctor, that all fish breathe through the gills air commingled with water, and that the whale breathes by lungs the atmospheric air?

      A. Yes, sir, such is the economy of Providence. Again; the cetaceous tribe called whales, (a broad generic term, taking in the whole family,) suckle their young; the females of fish do not give suck. The cetaceous order are mammiferous, and suckle their young by their teats.

      Q. Pray, doctor, may I ask you for the etymological meaning of the term cetaceous? Is it not from the Greek.

      A. Theologically and scholastically speaking, the word means whales and all their tribe. It means, in its most extended use, all huge and large inhabitants of the deep.

      Q. It comes, I think, from the Greek verb [word in Greek].

      A. It does, because it lies like a huge floating rock.

      Q. This Greek verb expresses that action, which is called in English, lying, a word of double meaning, (philologically speaking;) the difficulty is, how to apply it to the philosophy of floating rocks, which is of some novelty, and smells of the modern school?


      A. You should do as Sir Joshua Reynolds did, wear a trumpet at your ear, and then I should not be cut short or interrupted. I was going to say, that this great animal, lying at the top of the water, resembled a large floating mass.

      Q. Permit me then, Doctor, with due respect, to ask this question; admitting that [word in Greek] means jaceo, and jaceo means to lye like a great mass; where is the authority that this great mass must needs be a whale; and, again, that this great whale may not be a fish?

      A. If I must give you an authority, I will refer you to Saint Jerome's Latin vulgate of the Bible, in the first chapter of Genesis.


And may it please the court, now that I am on the subject, I will give an account of the fifth day's work of the creation, and show from thence that the formation of whales was a distinct exertion of the creative power from the creation of fishes. In the first chapter of Genesis, we are told, that God created fish, and afterwards that he created great whales.

      The counsel begged the witness to take the Bible in his hand, and read the verse or verses in that chapter on which he founded that exposition. Upon which the witness read the 20th and 21st verses.

      Q. I do not find, doctor, that the word fish is there used as having been created before or after the great whales?

      A. The word fish may not be used, but the inference is obvious.

      Q. Your conclusion, however, is not so obvious to my sense, but that there will be room enough for comment when it comes to my turn.

      The Court. – Then you think, sir, that on the fifth day these large cetaceous animals were formed by a distinct exertion of Divine power, and were of a distinct formation?

      A. I do. It was a distinct creation by the Almighty power after he had created the other marine animals, although all were made on the same day. I mean to say, that from this it may be implied, that the cete was a distinct creature, and so the able writer of that chapter has described it; and a great man he was. He knew the difference between a whale and a fish. It is a luminous text, and displays great learning, and throws great light upon this subject. The author is not minute in his relation till he comes to the creation of man; then he is precise and particular. The whole account is an immortal composition. The learned counsel, if he disputes this, will be driven to maintain that all fish are great whales; for if he cannot find the creation of fish in the 20th verse, he will not find it in the succeeding one, where nothing is said of fish, but where the creation of whales is distinctly and positively expressed.

      The leaned witness then proceeded to enumerate the characteristic differences. Fish are oviparous with very few exceptions. They lay eggs, which are impregnated and hatched out of the body of the female. Their mode of propagation is delicately and classically expressed by the poetical phrase castum


amorem piscium. The male fish is called the milter, the female the spawner, but they have no external organs of generation; the male has no penis intrans, nor is the female formed for lascivious embraces.

      The learned witness then described, with great felicity, the modest retirement of the gravid female into shallow waters, genially warmed with the sun-beams, preparing the nidus and cradle for her young by the movement of her tail, and there depositing her eggs; the male following and bedewing the ova with the fecundating fluid.

      There are some other animals that have the same mode of propagation, some few of the reptile order; but they, as well as the fish, clearly differ from the cetaceous kind. (See Rees' Cyclop. Fish, generation of. Contra, Goldsmith, v. 5. p. 22.)

      The next character of fish is the perpendicularity of the tail, a topic learnedly discussed by Mr. Fish, the witness, whom the court and jury have heard speak upon that subject. He has stated correctly and truly, that all fish have perpendicular tails, and are thereby to be distinguished from the cetaceous animals, which have them in a transverse position. The reason why the flounder family, of which the halibut is the chief, have the tails apparently flat, is, that they swim on one side; but they are, in their organization, fish, and have a fin which balances their tail.

      Q. Is it known, sir, what the motive of that family is for following so odd a humour? It is, perhaps, out of pride to look like whales; or is it a law of their nature, by which they are compelled to that action?

      A. It is an extraordinary provision, and a constant law of their nature. But if they could go upon their edge, as Mr. Fish has shown, they would have their tails in the same position as all the rest of the finny tribe called fish.

      Q. They would, nevertheless, if they took the fancy to play the antic in that manner, astonish the other natives of the deep, as they would present two sides of two different colours, a white and a brown; as Captain Fish might say, the starboard side white, and the larboard side mud colour. And how would their eyes appear. Would they not have a little of a squint?

      A. It is true the two eyes would be on the one side.

      Q. Then the white side would see nothing, and some designing fish would take them by the blind side?


      A. The eyes are not quite in the middle.

      Q. It seems to me, that the peculiarities of this creature would warrant an enterprizing zoologist to create a new class, or order at least; there seems nothing wanting but a Greek term?

      A. We have a name already for them, they are called Pleuronectes.

      Q. Doubtless, from their swimming on their sides?

      The witness proceeded. The next distinguishing character is a vital mark; it is the structure of the heart: fish have but one ventricle and one auricle; but the cetaceous tribe have the heart double, like men and quadrupeds, and, as a consequence of this, alternate respiration.

      The next is, that while the liver of fish is of so remarkable a texture, that upon exposure to air it dissolves into oil, instead of rapidly putrefying as the liver of quadrupeds does, this organ in the whale does not undergo this change into oil, but speedily exhibits a foul mass of corruption.

      Fishes livers, when thrown by the sailors on the deck, change into grease, and are used as an article of profit. The sound or swimming bladder of the cod, makes an excellent article of diet; and with this and the tongue, the good Calvinists of New England furnish their Catholic brethren of the south of Europe, with provision for their meagre days, and in return, procure their brandies, fruits, and wines. The liver, under atmospheric influence, goes into oil, and the frauds in that species of oil were the true ground and foundation of the inspection law.

      To a question by Mr. Anthon, whether the whale's liver might not produce oil? Witness answered, that he had never heard of oil from a whale's liver, more than from a bullock's liver; and then proceeded to the next character, and to show that fish have fins with rays, which the whales have not.

      Q. Fins, then, are common to both. You have, I think, classed the fishes of New-York in your late valuable works, by those members. Is not this, then, rather a point of agreement than of difference?

      A. The fins of the whale are of a peculiar structure.

      Q. Mr. Fish has described them as resembling hands and arms; are we to take this at the letter; if so, they will have the same bones and articulations as human creatures in their superior extremities?


      A. All those are found in the cetaceous animal.

      Q. If, then, they are provided with hands and arms, it is natural to expect fingers and thumbs. How is it as to the carpus, metacarpus, and phalanges; are they present; if so, could they use them for ordinary purposes, as to thread a needle, or do this? (taking a pinch of snuff.)

      The witness, after some consideration, observed, that these extremities were covered with a membrane or web.

      Q. Like people that wear mittens. No wonder they are awkward, and all their fingers like thumbs, as the saying goes.

      A. Their arms are, nevertheless, pretty fully developed, and in one of the cetaceous kind called the manati, so much so as to enable it to take its baby in its arms and carry it on shore, thus, (using a significant gesture.) The females of this family wear whiskers.

      Q. She is then sometimes a wet nurse and sometimes a dry nurse, or an amphibious nurse; in zoology, the whiskered lady.

      A. There are, according to modern naturalists, two kinds of cetaceous animals, one which grazes, and the other which lives altogether in the deep.

      Q. May I be bold to ask, sir, whom we are to understand by the modern naturalists?

      A. I should say, principally, the French school; and for instances I would give you Cuvier and La Marck.

      Q. It appears to me, that much of the difference between the ancients and moderns consists in the latter giving new names to old things. Your description of the manati seems to justify Berosus, the Chaldean antiquary, who lived in the time of Alexander the Great, as you know, in what he relates of Oannes, who came daily out of the Red Sea with a man's head under his fish's head, man's legs under his fish's tail, and man's hands under his fins, which might mean no more than the intelligence of the being, the coalition of his posterior extremities in the tail, and the confinement of his fingers and thumbs by the web or membrane. The only difficulty is, how such a cetaceous person could teach astrology and icthyology, or use letters.

      A. I must differ from the counsel and his authorities upon the subject of Oannes. I consider him to have been an Indian philosopher who came by the Red Sea, and taught philosophy, and


that he was neither a manati nor a whale, but that in landing he got wet.*

      Counsel. Yet Berosus, in the Greek versions, is made to call him [two words in Greek], (an irrational animal,) a term ill applied to any professor of philosophy, either wet or dry. Your opinion that he came from the Indias is strengthened, I must confess, by recurrence to the Syriac word [text in Arabic] which, as may be seen by Sir Isaac Newton's Chronology, means foreigner or traveller. I shall, for more certainty, doctor, write the word under your inspection, (which be did with the witness' approbation.) There were, you know, various names, if not different persons – Oannes, Anedotes, and Euhannes; and Hallodius calls this same person Oes, and says he was a man dressed in fish's skin. The root [word in Greek] is found in all those words, as if he had proceeded from the primogenial egg. Abydenus makes a second Annedotes, resembling the first, appear in the reign of Amilacus of Sephar, or Pantabibla; Apollodorus brings him under Amenon, forty sari later; Polyhister has not escaped censure for bringing him too soon.

      The witness not dissenting, the counsel inquired of him as to the respective periods of time contained in the Sari, Neri, and Sosi. (See Syncell, p. 17. Abyden apud eundem, p. 32. Amianus Pandorus apud Syncell, 35. Whist. Theory, b. 2. p. 144. Scaliger in Graec. Euseb. p. 406.)

      Q. Have any other works of Oannes reached posterity, except that one on Cosmogony, and that other on Political Economy?

      A. I know of no other.

      Counsel. – It is likely, then, that he was neither a demi god, as some say, nor a monster, as others would have it, but that the truth lay between, and that he was a philosopher.

      The witness nodded assent.

      Counsel. – In his Cosmogony he mentions sea monsters, (doubtless not considering himself one,) which were kept by a governess called Omoroka, till Belus cut her in two, and made sky of her head, and earth of her more material part.

      * Shakspeare seems to have borrowed his Caliban from this Chaldean type, when he makes Stephano discover his friend Trinculo, under the monster's gabardine, and exclaim, "if any be Trinculo's legs, these be they."


      Witness. – Go on, sir, I am all attention.

      Counsel. – This Bel, I take it, was their Jupiter; this allegory meant the cutting the darkness in the midst, dividing the earth from the sky and the waters, and reducing the world to order.

      Witness. – Proceed, sir.

      Counsel. – So far, allowing for superstition, the Chaldeans agreed with the Hebrews. This word, [word in Chaldean] or thalitutho, (in the Chaldean,) moisture, resembles so much the Greek thalassa, the sea, as to make some suspect interpolation.

      To this the witness made no positive answer.

      Counsel. – Have you present in your recollection, Doctor, the ninth book of Pliny's Historia Mundi, wherein he treats of the strange creatures in the Indian seas, or De Belluis in Indico Mari Repertis.

      Witness. – I have looked into Pliny, but I cannot trust to my memory.

      Counsel. – Does it not appear from the writings of Pliny, that he knew the nature of the whale as well as the philosophers of this day?

      Witness. – I do not think he did.

      Counsel. As to its mode of breathing and organs of respiration?

      Witness. – I think any body might know that.

      Counsel. – Yet neither he, nor Aristotle, nor any other of the ancients, ever inferred from thence that the whale was not a fish.

      Witness. – Very possibly; they were not so fully informed.

      Counsel. – I do not find that the modern philosophers agree as respects the system of Linnaeus; almost every one rejects some part, and substitutes or adds something of his own.

      Witness. – They are, then, the more like lawyers, if they do not agree. But a whale has been known not to be a fish since the writing of the book of Genesis, which is 4004 years plus 1818; and, now-a-days, it is no where denied, except in courts of justice and halls of legislature.

      Counsel. – I am sorry, Doctor, to be obliged to differ, and to deny that position.

      Witness. – No doubt you are bound to do so, sir. That is your side of the question.

      Counsel. – I think the Greeks, and those conversant with the


Greek language, and who have expounded it, are of my side, and that the word [word in Greek], which you say means a great monster that lies upon the deep, means a whale fish.

      Witness. – You should have brought your Scapula with you.

      Counsel. – Is not Schrevelius a good authority for the meaning of a Greek word?

      Witness. – Very good; what does he say?

      The counsel then referred to the word [word in Greek], in the Lexicon, and its derivative, [word in Greek], where the former word is rendered in Latin, by balaena, (whale,) and the latter, "locus ubi hi pisces capiuntur." (The place where these fish are taken, or whale fishery.)

      Witness. – Well, I give you my reading. The word comes from [word in Greek] jaceo, (I lie,) and means, accordingly, any great floating mass of matter, appearing as a rock does above water. The compiler may have adopted whale fishery, being a word in common use, to avoid greater error or misunderstanding; but we understand the business of whales as much better than the Greeks, as we do that of political economy.

      Counsel. – If that be so, the gentlemen opposed to us had better petition the legislature for a law, declaring that a whale is not a fish, any thing in Aristotle, Pliny, the voice of the multitude, or in the Scripture, to the contrary notwithstanding.

      Witness. – We must follow such course till there is a better.

      Counsel. – You have referred, Doctor, to Moses; do you find any thing there to justify this class mammalia, as separating whales from fish?

      Witness. – No, sir, Linnaeus first understood classification.

      Counsel. – Aristotle reduced all animals to two classes, those with, and those without blood; and Pliny's divisions were homo, terrestria, aquatilia, and insecta; neither making the distinction you contend for.

      Witness. – I must now appeal to the court, whether I am to be chatechised and questioned like a college candidate.

      Counsel. – I am sorry the learned witness should think this appeal necessary. No man can have more respect and deference for his learning, and other qualities, than I have; but am upon duty like a sentinel, bound to challenge every witness, and not let King nor Kayser pass, till he advance the parol, and give the countersign. The Doctor, I am sure, will pardon me.


      The Recorder. – In courts of justice, the freedom of speech, and latitude of inquiry, is not the privilege of the individual, but of the community; and has, therefore, been always pretty liberally allowed. And though a witness of superior learning, or skill, is called to speak as to matters of opinion, the other party is permitted to inquire into the grounds of that opinion. The great and merited standing of the witness, and his high character for learning and wisdom, may justify the anxiety of the counsel; and such a witness loses nothing of his dignity in submitting to the common course.

      Witness. – Then, may it please the court, I am here like a thirsty soul, ready to drink of the knowledge that flows so copiously from so many learned sources.

      Counsel. – This is kind and encouraging, sir. But it is for me to be thankful for the instruction I receive. Linnaeus's classes are, I think, Mammalia, aves, pisces, amphibia, insecta, and vermes.

      Witness. – They are so.

      Counsel. – Indulge me a little further. The mammalia, or those having mammae, or teats, are subdivided into seven orders. Primates, bruta, ferae, glires, pecora, belluae, and cetae.

      Witness. – It is even so.

      Counsel. – The first of these orders, called primates, contains four genera: homo, simia, lemur, and vespertilio; that is, man, monkey, macauco, and bat. Is not this the arrangement of Linnaeus?

      Witness. – The learned counsel is right.

      Counsel. – Now, is not man strangely mated or matched, when the whale and porpoise are his second cousins, and the monkey and the bat his germans? Other gentlemen may choose their company, I am determined to cut the connection.

      The counsel then inquired of the witness, whether many creatures had not been discovered since Linnaeus wrote; as, the mammoth, known only by its fossil remains; the camel leopard, long thought fabulous; to which might be added, the sea serpent, and a novel creature of no small importance in the scheme, the modern Hyppocentaur, or Kentucky-man, with others, that had they been known, might have served as connecting links, and prevented such grotesque associations and abrupt transitions; and, also, touching the forced and incongruous grouping of


animals every way dissimilar, in the same order; as, in the order ferae, or wild beasts, the lion, the seal, the hedgehog, and the mole; in that of belluae, the rhinoceros and the pig; the great elephant, and the little ant-eater, all together in the order called bruta. With other instances of the like kind, touching which, the learned witness admitted the correctness of the counsel's statements.

      Counsel. – There is a creature of which you have treated, I think, in your first number of the new series of your Medical Repository, called the Kraken. Are we to give faith to Pantoppidan in what he says of its being a saepia or cuttlefish, of a mile and a half in diameter? Pliny, in his treatise de belluis in Indico mari, mentions such a fish, but only gives it four acres of extent, yet his relation has been thought marvellous and fabulous; what are we to believe?

      Witness. – That, Sir, is the most prodigious monster of the ocean. The whale feeds upon him.

      Counsel. – That is surprising, and against the usual course; the greater fish commonly devour the smaller. I should think the whale could merely nibble at him.

      Witness. – A hungry whale has been known to bite off one of his huge paws, or tentacula, as large as the mast of a ship, and make a meal of it.

      Q. – This was not one of the edendate, or toothless whales?

      A. – It was a large sperm whale.

      Counsel. – If I have not forgot what I once read in your Medical Repository touching this animal, it amounts to this: That in the first six editions of Linneaus's systema naturae, it was placed amongst the mollusca, till Bomare and Banks rejected it altogether as fabulous. That Ulisses Aldrovandus, and Ambrosinus, were, if I recollect your very phrase, awed to silence, but that Mumfort came forward with proofs of its existence.

      The Witness confirmed this quotation as substantially correct.

      Counsel. – The only thing I shall now request from your indulgence, is to know to what class, order, and genus, this prodigious creature properly belongs, according to the modern classification; if it be the same that Pliny described as being four acres in extent, quaternum jugerum, and is the same as the kraken, which is said to be a cuttle fish, and which Linneaus classes with the worms, vermes.


      Witness. – There is a little fish that comes to our market, called the squid, which avoids its pursuers by shedding a black liquid, and so concealing itself; that is one of the same species.

      Counsel. – But this great animal is of the class of vermes or worms?

      Some objection was made to this minute kind of inquiry; to which the counsel replied, that possibly his curiosity might have carried him too far, for that a worm of four acres was enough to surprise any one; it made his hair stand on end but to think of it; the more so, as the great worm is the name by which the poet Dante designates the devil.

      Some of the by-standers were here seized with an impulse of laughter, which communicated itself to the rest, and for a moment interrupted the progress of the examination; but the authority of the court, and the voice of the crier, having commanded silence, and all being again reverently ordered and composed,

      The Counsel proceeded to inquire as to the following points: whether the kraken had not been variously classed, first with the vermes or worms, consequently, with the oyster; secondly, with the crustacea, and whether the latter would not necessarily associate it with the lobster, the scorpion, the pediculus or louse, and likewise with the flea.

      Witness. – The lobster, in the new zoology, is a crustaceous, and the oyster a molluscous animal.

      The witness was proceeding, when Mr. Price rose, and protested against this mode of examining a witness of Doctor Mitchill's high standing and dignity of character, by questions so minute and trifling, and without any bearing upon the subject. He hoped the counsel would not be permitted to sport and play with a person so respectable and estimable, in a manner both useless and oppressive. Mr. Sampson replied, that if his questions were useless or trifling, they could not be more gratuitous than an argument in support of the personal dignity of Doctor Mitchill, a man not so easily oppressed: one armed at all points, whose knowledge and promptness rendered him more powerful to oppress, if he were so disposed, than vulnerable to attack; insomuch, that nothing could depreciate him but the idea that his dignity required to be bolstered, and was not able to take care of itself. I know Doctor Mitchill well, added the counsel, which is no more than to say, I honour and esteem


him. He has favoured me with his friendship, and never entered my door but with pleasure and instruction in his train. To assail the weak is cowardice and cruelty: it is because he is confessedly a great man, that I stand upon the qui vive. The manner in which he has treated the law and the lawyers, considering his might and his weight, makes it as much self defence, as it would be to try to turn an elephant out of your garden where he would trample every thing under his feet. All that great men do is great; among other things, they make great mistakes, and their mistakes are more dangerous, as their sway is great. And their opinions are the fittest to be opposed or collated with each other. If I can show the errors of Linnaeus by the testimony of Doctor Mitchill, and so reconcile to the scriptures, to the common law, to common sense, common speech, and the common consent of mankind, this modern philosophy, it is, I think, as useful an investigation as can be undertaken. If this may not be done, it were better so much of that philosophy as is in defiance of all these, should be critically examined into. At all events, the defence of Doctor Mitchill's respectability, must ever be a work of supererogation.

      The witness then observed, with great urbanity, that he had listened with admiration, and wondered how the counsel had been able to add to so much legal lore so great a body of science. He added, that, generally speaking, the latest works of science were the best, as embodying the information of all predecessors, and leading to a correct summary of all prior information; and he that would at this day trust to the classical authors on zoology, would do as ill as one who, pursuing the longitude, would trust to Kepler, and the mathematicians that preceded Lord Napier, to the exclusion of those who enjoyed the invention of his tables of logarithms, and the other great improvements in the exact sciences. The difficulties of classification are great, requiring judgment, research, patience, and acumen. The necessities and difficulties are alike known to scientific men, and these difficulties are not aided by obscure references to the obsolete and antiquated doctrines of Aristotle, Pliny, Oannes, or Sanconiathon. The labours of necessary classification are to be painfully pursued, and lead to infinite, and sometimes to microscopic researches, even amongst insects filthy to the touch, and disgusting to the sense.


Without methodical claaification, and appropriate nomenclature, the study of the vast variety of nature's productions would be barren and impracticable. The great Linneaus knew this, and, like a second creator, brought order out of chaos. His system is not perfect, neither can it be said to have been abolished, any more than the altering this hall by shifting the benches, or changing the doors, would be the destruction of the fabric.

      C.[sic] Doctor, I respectfully and thankfully take my leave; you are now solutus legibus.

      The witness bowed respectfully to the court, and retired.

      Amongst the crowd were seen a number of persons in the garb of fishermen, whom curiosity had drawn into court, to hear the subject of their occupation discussed by lawyers and doctors. One of these, dressed in a garment called a pea jacket, was now pointed out to the plaintiff's counsel, and called up, sworn, and examined.

      James Reeves had made three whaling voyages, and had seen the spermaceti whale fished and cut up.

      Formerly, in my days, he continued, there were three places from which whale ships sailed, Hudson, Halifax and Nantucket.

      When we hailed vessels, we asked what luck or what success; the answer was, one, two, or three hundred barrels, and sometimes one, or two, or three fish. The oil was named from the fish, as black fish, humpback, and whale oil. The spermaceti oil was called spermaceti. I never heard any distinction between fish oil and whale oil, as talked of here to day, but always thought that fish oil included them all. The sperm oil was called from the sperm whale, the whale oil from the right whale, and black fish oil from the black fish, a small whale which yields about three barrels; this last kind of oil has the nearest resemblance to the spermaceti.

      This witness also stated as a fact, within his own knowledge, that the dog fish brought forth its young alive; and that he had seen it pup in a boat. And the word was common, that the whale calved, and the fish pupped.

      Question by Anthon. Is the dog fish a whale, or like a whale?

      A. Not the least; it keeps to the ground, and does not come up to breathe like the whale.

      Q. How does it carry its tail, upright or flat?

      A. Its tail stands up and down; it breathes under the water.


      The witness was of opinion, that the whale did breathe under water. There is a hump, or hole in the back of the head, where the water lodges till the animal comes up to empty it by spouting it out.

      On cross-examination, Mr. Reeves said, that if he were asked for fish oil, his answer would be, what kind of fish oil do you want?

      Before this afternoon, I should have said, that whale oil was fish oil; and even after this trial, I think I should still ask the question. Yesterday, I am sure, if you had sent to me for fish oil, I should not have thought of any distinction except the spermaceti, which is distinguished, because it costs the most.

      The Recorder. Then before this trial you would not have given spermaceti for fish oil, and now you would have doubts.

      A. It's no wonder if any man should have his doubts; I never had any before; I as much thought a whale was a fish from its swimming in the water, as that I was a man from living out of it.

      Gideon Lee was next called as a witness on the part of the plaintiff.

      Q. What is your profession?

      A. I hardly know by what name to call it. I deal in hides, skins, leather, oil, &c.; am interested in several tanneries, and carry on the currying business.

      Q. What kind of oil do you deal in, and use in your business?

      A. Principally liver oil, but in the absence of this, as was the case during the late war, the curriers used every kind of oil drawn from marine animals, and I have known them to use not only animal, but vegetable oils; still, we greatly prefer the cod liver oil?

      Q. Have you discovered extensive frauds in these oils?

      A. I have discovered extensive adulterations and mixtures, such as water, tar, dirt, foots, or dregs; I would not call them all frauds, some might have been the result of accident.

      Q. Are these adulterations easy to be detected, and do they extend to all kinds of fish oils; do all require inspection?

      A. It is very difficuit to detect them; oils are frequently offered for sale in the vessels which bring them to market; and in some cases we can only examine a few casks of the uppermost tier, and these are sometimes bunged up in such a manner with long bungs, that we are unable to extract them with the ordinary


instruments used; besides, several kinds of oil are so condensed or congealed in the cold season, that the inspector with all his means and implements for gauging and examining finds it difficult to determine the quantity of extraneous matter. I remember of having purchased a parcel of liver oil, one barrel of which contained but two gallons of oil, the residue water; and some years ago, I purchased a parcel of whale oil of the plaintiff, (who then acted as a broker, and had not examined it,) one cask of which contained not more than two or three gallons of oil, the residue of its contents being foots or sediment. I have not dealt much in the different kinds of whale oil, but should say that it was much less adulterated than the liver oil; however, I conceive, that all kinds of oi1 require inspection.

      Q. By what names do you distinguish these marine oils?

      A. We use the general term, fish, to comprehend them all; a less general phrase is whale oil; of this there are several species, as sperm, humpback, common whale, &c. We have also sea elephant oil and porpoise oil. Another class of fish yield oil from the livers only, such are the cod, haddock, pollock, &c.; this we call liver oil; there is also dog and manhaden oil; sometimes we use the phrase, shore oil; this is a mixture of different oils taken on our coasts; and I have heard the fishermen apply the term, ground fish, to such as grovel on the bottom, in contradistinction to those fish that rise to the surface of the water for the purpose of breathing.

      Q. Who do you mean by we?

      A. I mean we, plain men, who carry on the substantial business of this great world, and however naturalists have made other distinctions and classifications for other purposes, we disregard them. In the course of our common pursuits we call all marine animals fish, and land animals quadrupeds.

      Q, You have heard the testimony as to the commercial terms or names of oil, how do you understand them?

      A. I have; I was in court this morning, and finding that my testimony in this particular would contradict that of some worthy and respectable citizens.

      Defendant's counsel. – You do not mean to say, "contradict?"

      A. I do mean to say, that my testimony will be directly opposed to theirs: finding such must be the case, and to remove the possibility of mistake on my part, I returned some, and caused


my clerks to examine the papers of several years' transactions in oils, such as entries, receipts, invoices, bills of lading, and bills of parcels, and we have not been able, in any one instance, to find the phrase, fish oil, used; nor do I find it in any correspondence, price-current, or circular, domestic or foreign, applied to carriers' oil, or used in any case as a specific term; but I do find it in some of these used in a general sense, that is, embracing all kinds of oils drawn from marine animals; and to support myself I have brought these documents into court.

      (Witness then laid on the table a parcel of letters, invoices, and bills of lading, also printed price-currents, or circulars, from Liverpool, London, Bourdeaux, Amsterdam, Baltimore, Boston, and New-York, all of which agreed essentially with his testimony.)

      Q. Did you draft the bill under which this prosecution was brought?

      A. I did.

      Q. In what sense did you use the phrase, fish oils, at that time?

      (Defendant's counsel objected to this kind of evidence, which objection was sustained by the court.)

      Cross-examined.. – Your dealing appears to have been limited to one house?

      A. In Boston they are so limited, and that house is probably the largest dealer in America; but I have purchased elsewhere, and of various persons. I should judge as many as ten parcels a year during the twelve years I have done business in this city.

      Q. You speak of adulterations; have you ever discovered any in sperm oil?

      A. I have known such.

      Q. You say it is difficult for the buyer to detect these adulterations; are you not as liable to be deceived in many other kinds of goods as in oils?

      A. No; there are few articles so difficult to examine. If I were obliged to examine personally all the oil I buy, I would not deal in the article. The inspector has implements to facilitate his examination, and his time is worth less than mine,

      Q. Suppose you had an order for fish oil, would you send whale oil?


      A. I would first try to ascertain what kind of fish oil was wanted.

      Q. You would not put up whale or sperm oil then?

      A. That would depend on a variety of circumstances.

      Q. I wish your direct, unqualified answer; suppose your correspondent orders 50 barrels of fish oil, would you not send him curriers' oil?

      A. If he were a currier, or I was aware that he knew I seldom dealt in any other than liver oil, I presume I should send such.

      Q. You would not send him sperm oil?

      A. Under such circumstances I should not be likely to do so.

      Q. Suppose I should contract with you to deliver me a quantity of fish oil at a stipulated price, would you deliver sperm oil?

      A. I would deliver you the very cheapest kind of fish oil that I could find in market, presuming you understood your business.

      Q. Then you would not deliver sperm oil? I thought not.

      A. Certainly not, sperm oil generally bears the highest price of all.

      Q, Have you not in your applications to a certain house in this city, for currier's oil, frequently asked for fish oil?

      A. I presume not.

      Q. I wish you to pause a little and reflect?

      A. It is possible I may have made such a blunder, but I am not apt to do so.

      (Witness called again.)

      Cross-examined. – Are you not an eastern man?

      A. No.

      Q. I thought you came from Massachusetts?

      A. I did.

      Q. So then you are a Massachusetts man, and not an eastern man?

      A. Such is the fact; I am a northern man, having come from a place called Worthington, 53 miles from Albany.

      Mr. Jacob Lorillard, a witness for the plaintiff, stated that he had been a tanner for about 14 or 15 years, that the best oil for dressing leather was from the livers of cod fish, most frequently called liver oil. Other oil is, on many occasions, used; often the oil used is made up of various kinds of fish. Sometimes we use whale oil, sometimes elephant oil, but all are called fish oil.


He could not say what meaning he would give to a letter ordering fish oil, without some specification. He has not dealt so much in whale oil as to know of all, or any great part of the deceptions that have been practised; but from what he does know, thinks it very desirable that it should be inspected.

      The manheddan oil is made from the body of the fish. The term, fish oil, is too general to be applied to liver oil distinctly, though it may have been oftener applied to such oil than to that of whales. With respect to himself, individually, if he ordered fish oil in general, he would have no right to complain of receiving liver oil, as well, because the term used, as his known manner of dealing, would warrant the seller in supposing that intention, but his mode of dealing would not be his only reason for thinking it right, the generality of the term would also have its weight. The manhaden oil is made of the body, not the liver of the animal, and yet it is called fish oil.

      Before this afternoon, witness had never understood that the term fish oil was mentioned in any price current to distinguish cod liver oil. But hearing it testified in court that European price currents made a distinction between fish oil and whale oil, appropriating the term fish oil to cod liver oil only, he went home and searched considerably, but could not find one where such distinction was to be found.

      Witness here produced, and read, a price current of London in confirmation. Being asked whether he entirely agreed with Mr. Lee, that fish oil embraced every species of marine oil, he answered he did, and considered that the understanding of the trade.

      Mr. Israel Corse, also a tanner, had heard the testimony of the former witnesses, and confirmed it by his testimony. He stated, that he himself had been imposed upon, by whale oil sold to him with water in the barrels. He believed that the eastern people made some distinctions about fish oils, but not that he ever heard of till lately. Nor was it known, he believed, to the southward, or any where but to the eastward. He once found one barrel eleven gallons of clear water.

      Witness was asked whether it was not in the power of any one to detect such a deception by sounding; he answered that it was not, for the rod would be greasy by passing through the oil on the surface and resist the water below, so that it would appear


when pulled up as if it had only passed through oil. He also described the instrument used by the inspector, which was a rod enclosed in a sheath. Though he believed any dealer in New-York would rather send him liver oil, under his order for fish oil; yet, if it was a stranger knowing nothing of his trade, or business, he supposes he would be as likely to send whale, as any other oil.

      They have different names for the fish when they go into particulars, but fish oil, in the general sense, embraces the whole of the marine oils.

      Ralph Duncan was called for the defendant, to prove a declaration of the plaintiff, that one day when the plaintiff was inspecting some barrels of whale oil, some person tapped him on the shoulder, and asked him if he had been inspecting fish oil, and he answered, no; but afterwards, looking up and correcting himself, said, yes. This witness said he was a gauger, and that before this act all fish oil was gauged, but never whale oil; he further stated, that he knew very little about oils, having only assisted Mr. Maurice, the plaintiff, about two months. The above transaction was about two months after the law passed. The gauging had nothing to do with the frauds. He was asked, also, as to the distinction in the name of liver and whale oil, and said, the merchants who brought the oil made some such distinction, but they were mostly eastern men. He knows nothing of oils himself, is but a book-keeper.

      Mr. Fish was here recalled, and insisted on the point, that the distinction was always made, and common. He said, that in cold weather there was a thickness like a sediment in all kinds of oil, but that it melted or dissolved with warmth. Witness is an eastern man, but has been twenty years in New-York. He has submitted to have his oils inspected, though much dissatisfied with the law, because he did not like to stand alone in resisting.

      Mr. Hazard was asked whether he was not an eastern man; he said he had followed the business of whale oil twenty-seven years to the eastward, and three here.

      Mr. William Hall, tanner, for defendant, said, that he always made a distinction between fish oil and sperm oil. The whale, or sperm, is called train or body oil,

      Thomas Brooks, for the plaintiff, never had bought whale oil. If he was to send for fish oil, a merchant would know what to


send him, because it was known, from the trade he followed, what article was most suitable. Different people have different ideas, but if he was to send to an entire stranger for fish oil, he might very fairly send him whale oil. He confirmed the other witnesses of the plaintiff, as to the general understanding of the trade.

      Mr. Hugh M'Cormick. – Fish oil means all sorts of marine oil; he has been twenty years a tanner, and has known of deceptions and frauds in whale oil, and thinks it requires inspection to put an end to them.

      On cross-examination – he said he had never purchased much whale oil; could not say how much, or if more than 20 barrrels in four years; but he had found sediment and mixtures of worthless unmerchantable matters in it, and water. He also said, that the whale oil may be used for leather when mixed with other fish oil.

      Mr. Losee Van Ostrand, a leather dealer and currier, said he considered the word, fish oil, as meaning every kind of marine oil.

      If no liver to be had, they used the others, whale and all mixed together; strained oil is called fish oil; there is a difference made between cod liver oil, and fish oil of other fishes' livers, but the general word, fish oil, embraces all.

      Mr. Borden Chase deals in the commission line in oil and candles; has known water in casks of whale oil; it might possibly be by accident, and not fraud; never knew any of it in sperm oil. The plaintiff had inspected some of his oils, and considered the whale oil as distinct from fish oil; had lived seven years to the eastward.

      Wm. D. Morgan, for the plaintiff. – An assistant to the plaintiff; testified to the frauds committed in the sales of oil; one vessel which he inspected contained 110 gallons, 93 of which were occupied with water, the remainder only with oil.

      He inspected another for Stephen Hattaway, when there was a deception of like nature, and in many others found water from three to five gallons, and upwards.

      Cross-examined. – He was asked whether it was not the fish oil barrels only contained this sediment or mixture; that when the liver oil is clear of adulteration there is very little sediment at the bottom. At the time that Mr. Morris commenced his inspection, one out of every five or six casks had water in it; but


since that time the water had grown scarce. Witness explained the instrument used by the inspector called a trier.

      Mr. Comstock, for the defendant. – Was well acquainted with the article for 20 years. Commercial men conversant with the trade always make the distinction between whale and fish oil. The experience of the tanners does not extend beyond what they themselves use in their particular business.

      Yesterday a gentleman applied to him, wanting fish oil for the European market; witness told him he had none, but told him that if either sperm, or hump-back, or right whale oil, would do, he could serve him, but the person said that would not do, it was fish oil he wanted; has resided nine years in this city, but formerly lived at Nantucket, where they are more acquainted with whale than fish oil.

      Thursday, December 31st. The court being assembled pursuant to adjournment, and the jury being called, and answering to their names, Mr. Sampson stated, that he had many books to refer to, some were authorities of law, others works of science. It was, he supposed, the right of the defendant's counsel before summing up, to know what they were, and to what points they were to be cited. But as many of them would be no otherwise read or referred to, than as part of his speech in summing up, and only so much of them as the arguments of the opposite counsel might render necessary, he submitted to the court, and the counsel themselves, whether he should take up time by reading them in advance.

      The defendant's counsel insisted upon it as their right to be apprised of whatever was to be used as authority against them, and his Honour the Recorder intimating an opinion to that effect, Mr. Sampson said he would cheerfully comply, as a controversy of this nature could not be managed with too much candour and mutual concession.

      To show that the ancients were acquainted with the economy of the whale, and other cetaceous animals, he referred to the ninth book of Pliny's Historia Mundi, and specifically to the following chapters.

      Touching their bony skeleton, and that certain of them go ashore to graze, chap. 3. and 7.

      Touching their spouting columns of water as high as the masts of a ship, ch. 4. and ch. 6.


      That they breathed, and had no gills, but lungs, and particularly their spiracula, or air holes, in the skulls, ch. 7.

      As to their being viviparous, and suckling their young, ch. 8., observing, that in quoting Pliny, he quoted all the ancients, he being the classical epitomist of Aristotle, Theophrastus, Pythagorus, Apollodorus, Hippocrates, and the whole of the medical writers, and philosophical poets, who preceded him.

      To prove, that as Linnaeus had overturned the systems of Artedi and his predecessors, so the names of the sectarians who have since founded other systems, or new modelled his, would fill a catalogue, he referred to the article classification, in Rees' Cyclopaedia; and to show, that professed naturalists still call a whale a fish, he cited the same work under the word fishing, compiled from the best authors, the article whale or Greenland fishery. "This huge fish is chiefly caught in the North Sea." "The first persons employed in this fishery, seem to have been the Norwegians; for we find that King Alfred received information from Oether, a Norwegian, in 887 or 890, that the Norwegians were employed in this fishing. 'Several men stand upon the fish with iron calkers' spurs to prevent their slipping, and when all the blubber is cut from the belly of the fish, it is turned on one side,' &c."

      And under the subdivision "fishing, the art or act of catching fish." "Fishing is distinguished with regard to its object, into that performed in salt water, and that in fresh. The first practised for whales and other sea fish, &c.

      That this was the commonly received opinion, he referred to several of the most respectable compilers for the use of schools, and the instruction of youth, and principally to Bigland's Letters on Natural History, where it is said, "fishes are generally divided into the cetaceous, or whale kind," see p. 372., and pages 374. 376, to the same effect.

      And Goldsmith's Animated Nature, vol. 5. ch. 1. p. 2. "Our philosophers hitherto, have been employed in increasing their catalogues, and the reader, instead of observations or facts, is presented with a long list of names, that disgust him with their barren superfluity, and to see the language of science increasing, when there is nothing to repay the tax upon his memory." And to the second chapter of this volume, which he devotes to the "cetaceous fish called whales."


      The sentiments of that great master genius, Buffon, as to the evils of burthensome nomenclatures, and tiresome minutiae, are known to every one, and may be found in the introduction to his Natural History.

      And he referred to the writings of Pennant generally, to show, that he followed Ray and Willoughby, and rejected the classification of Linnaeus, as Linnaeus had overturned the system of Artedi.

      To prove that the common and statute laws of England, recognized the whale not only as a fish, but a most especial fish, and by pre-eminence a royal fish, and by the name of royal fish, dedicated it to the king and queen by several moieties, as part of their respective royal revenue in a peculiar manner, he referred to Plowd. Com. folio 315, 316, where, in a case between Elizabeth and the Earl of Northumberland, the queen claimed a mine of copper, gold, and silver, in the earl's land, a a royalty amongst the things belonging jure coronae to the king, as part of his royal revenue, and amongst other items, is enumerated this royal fish.*

      And also to Fleta, to show the peculiar allotment of the sturgeon and the whale, as being royal fish.

      Cap. 45. De Sturgione aliter, observitur quod res illem integrum habebit propter privilegium regale.

      Cap. 46. De Balaeni. De balaena vero sufficit si rex habeat corpus et regina caudam.

      He also referred to the aurum reginum of William Prynne, 127. to show, that this was so at the common law before the statute de prerogativa regis.

      And he observed, that for the rest, to avoid tediousness, whatever he had occasion to refer to, should be taken as matter of gene-

      * Et le commen ley, q est foundue sur reason, appropre toutes choses al persons apt, base choses al persons base, choses pluis digne al parsons pluis digne: Et choses pluis excellent al persons pluis excellent, et pur ceo que ore et argent sont choses pluis excellent que le soile ad, Le ley ad, & per reason doit appropre eur al person pluis excellent, & ceo est le roy. Et seblablement il fait pur le ewe, car les choses de value que le mere ou ewe rende, sont les pisches deins ceo, et de pisches que sount deyns le mere en Engleterre, s. les braches del mere ou ewe deins le terre, deux sont pluis excellent que auters, cestassauoir, Sturgions & Baleines, Et pur lour excellency le commen ley ad appropre eux al roy que est person pluis excellent, come appiert per le dyst treatyce de Praerogatiua Regis, cap 11. que dit, Rex habebit Balenas et Sturgiones captos in mari, vel abili infra Regnum.


ral notoriety, to avail as it might. Perhaps he should not find it necessary to resort to any others, or even to these already quoted.*

      Mr. PRICE then summed up the evidence as follows:

      Gentlemen of the Jury, This action is brought by the plaintiff to recover a debt from the defendant, who never owed him any thing; to recover a penalty where no offence has been committed. Doctor Mitchill has aptly classed the community, and described the composition of the legislature, which being a representation of the whole community, could not, of course, contain any great number of men acquainted with this branch of commerce.

      Mr. Gideon Lee was known to have drafted this bill, and to be a respectable and intelligent individual, and it was taken pretty much upon his credit, and, of course, little opposition or difficulty to the passing of it.

      Mr. Sharpe's explanation of the motives and intentions of the legislature in passing the law, and of the objects it was meant to embrace, were opposed by the plaintiff's counsel, although he was the person who could best have informed you upon that subject, having been the chairman of the committee to whom it was referred, and who reported on the bill.

      This may serve to show you, gentlemen, the fears and wishes of the counsel, and how anxious they were to suppress the evidence that would have best enlighted your jddgments.

      Liver oil was the only subject of the frauds practised or complained of, and it was that alone in which Mr. Lee dealt, and in which he was conversant, and in which we can suppose him to have taken so much interest. He was a tanner and currier, and in drawing up the bill must have had principally, if not altogether, in view that article almost exclusively employed in his particular business. The statute on which this suit is founded, imposes a tax upon commerce, of which freedom is the life, and which never should be subjected to any unnecessary or vexatious restraints. All laws tending to clog or fetter commerce should be construed with extreme strictness, as being against common rights and national policy; and as no proof of the appointment of this inspector was offered to you, you ought not to aid by intendment, a hard and oppressive action. I say no proof, because the only proof that the plaintiff in this suit was a public inspector,

      * See note (1) at end.


or that there was any public inspector appointed, is Mr. Russell's answer, that the oil which he sold, and upon the non-inspection of which this action is founded, was not inspected by the public inspector. But for all legal purposes, if the fact is not proved, it does not exist; and if there were no inspector, there could be no default, and no penalty for the not submitting to inspection.

      At all events, there is too much doubt and ambiguity to justify a finding upon this evidence, and in construing the law itself: so that it will be much the safer course to find here for the defendant, and send the plaintiff back to the legislature, to have its sense declared or explained.

      We have, however, upon the grounds of reason and science, given you the most convincing and authoritative evidence of what the legislature must have intended, since all legislative acts must be construed according to sound reason. And to whom could you apply with more safety, on a subject connected with science, than Dr. Mitchill; a man abounding in all useful knowledge; one of those luminaries of the present age, who, to use his own language, has stood upon the shoulders of those that went before him; who gathers his information from the scriptures no less than from all other ancient and modern authority, and out of the abundance of this knowledge, and the fulness of his conviction, solemnly swears that a whale is not a fish.

      Mr. Price then read from Goldsmith's Animated Nature, vol. 5. p. 26. "As on land, there are some orders of animals that seem formed to command the rest, with greater powers and more various instincts; so, in the ocean, there are fishes which seem formed upon a nobler plan than others, and that, to their fishy form, join the appetites and conformation of quadrupeds. These are all of the cetaceous kind, and so much raised above their fellows of the deep, in their appetites and instincts, that almost all our modern naturalists have fairly excluded them from the finny tribes, and will have them called, not fishes, but great beasts of the ocean; with them, it would be as improper to say, men go to Greenland fishing for whale, as it would, to say that a sportsman goes to Blackwall a fowling for mackerel. Yet, notwithstanding philosophers, men will always have their own way of talking, and for my own part, I think them here in the right. A different formation of the lungs, stomach, and intestines; a


different manner of breathing, or propagating, are not sufficient to counterbalance the great obvious analogy which these animals bear to the whole finny tribe. They are shaped as other fishes, they swim with fins, they are entirely naked, without hair, they live in the water, though they come up to breathe, they are only seen in the depths of the ocean, and never come upon shore but when forced thither. These seem sufficient to plead in favour of the general denomination, and acquit mankind of error in ranking them with their lower companions of the deep, but still they are as many degrees raised above other fishes, in their nature, as they are in general in their size. This tribe is composed of the whale and its varieties; of the cachalot, the dolphin, the grampus, and the porpoise. All these resemble quadrupeds in their internal structure, and in some of their appetites and affections. Like quadrupeds, they have lungs, a midriff, a stomach, intestines, liver, spleen, bladder, and parts of generation. Their heart, also, resembles that of quadrupeds, with its partitions closed up as in them, and driving red and warm blood in circulation through the body; in short, every internal part bears a most striking similitude; and to keep these parts warm the whole kind are also covered, between the skin and the muscles, with a thick coat of fat, or blubber, which like the bacon fat of a hog, keeps out the cold, renders their muscles glib and pliant, and probably, makes them light in swimming."

      This passage, gentlemen, shows you how men of science and letters agree as to the structure and properties of the whale kind. Goldsmith, with all indulgence to the popular opinion, still confirms the accounts given of these extraordinary creatures, as delivered to you by Doctor Mitchill. And the counsel well knew that all men of science were of one mind, or why did they not produce other learned men to oppose his opinions. Doctor Mitchell, gentlemen is a man whose reputation is too justly merited, and too deeply rooted, to be shaken by any attack. He is the first man of his age, and country; many great authorities, antient and modern, have been cited, but he, in himself, is greater than them all.

      Added to this evidence of the man most eminent in science, what has been the testimony of the practical men who have been examined on one side and the other. All the plaintiff's witnesses are leather dealers or curriers, who seldom ever make


use of the oil of any whale, and never, perhaps, of the spermaceti; whilst those on our side, are extensive dealers in whale oil, and, necessarily, know every fact connected with their own branch of trade.

      Mr. Fish, who was master of a vessel, whom you all know, is opposed by a Mr. Reeves, who had made, as he says, three voyages as a whaler. In which can you best place your confidence.

      Mr. Hazard tells you there is no more affinity between whale and fish oil, than between indian meal and wheat flour.

      Mr. Comstock, a wholesale dealer in the article in question, tells you, that no longer ago than yesterday, a gentleman asked him for fish oil, and having no other than whale oil, he told him he had none.

      Mr. Chase, who was called by the plaintiff, also tells you that this distinction is acknowledged.

      Did they, who obtained this law, mean to entrap the dealers by using an ambiguous term, and when it was passed giving it a construction that was never expected nor intended, and which is only pretended to be within the knowledge of curriers and tanners, but entirely disowned by the commercial world? And if they have not convinced you by the strength of their testimony, gentlemen, I trust they will gain nothing by illiberal allusions, and by fixing on respectable and honourable citizens, the contemptuos epithet of yankees; for I can tell the gentlemen, that these same yankees are amongst the most enterprising, spirited, and useful of our citizens, and stand too high to be injured in their estimation by such undeserved appellations.

      Should you not be able to agree with naturalists in one branch of the evidence in this cause, and decide that a whale is, in common acceptation of the community, considered to be a fish, there remains still a very important question, on the just decision of which the defendant will, I think, be entitled to your verdict. Is whale oil bought and sold and consumed under the appellation of fish oil? Should the distinction between these oils, sworn to by the defendant's witness, be regarded by you as correct and generally acknowledged in the community, the weight of evidence affords no ground to believe that there would be any great utility in classing whale oil among the mischiefs intended to be corrected or prevented by the act for the inspection of fish oil.


      General Bogardus began, by observing, that the discussions which had occupied so much time would have been better suited to the New-York forum than to a court of justice. Juries had nothing to do with questions of science, nor if they had, was much dependence to be put in the evidence of naturalists, whose opinions and systems are daily changing, as the authors of them mount upon the shoulders one of the other. And although we have examined Dr. Mitchill as a witness in the cause, yet, gentlemen, I did not call him as one upon whose testimony I meant to place the defence of my client, but rather, because it was proposed as a matter of amusement, and I consented, considering that it would be interesting to curiosity to hear what he would say upon a question of so much novelty in a court of justice.

      But, gentlemen, at the same time, it will be well understood by you, as it is well known by the judge who presides, that juries have nothing to do with questions of science, which can only serve to perplex them; much less are the theories of scientific men to be taken as the law of the land, seeing how little philosophers are agreed amongst themselves; for ancient or modern, you never could bring twelve of them, if empanneled as a jury, to be unanimous on any one speculative point.

      But I cannot, gentlemen, imagine what has brought together such a crowd of persons as have assembled in this room during the whole of the trial; for though there may be some little novelty in the question about the nature of the whale, yet it is not so mighty a matter as that the good people might not stay in their own houses while it was debated. One would suppose somebody had sent about handbills to invite the public to hear speeches. And when I see the great display of books and learning, by one of the counsel in particular, it makes me fear that his learning will be greater than his pay.

      The question, whether a whale is a fish, or what else it may be, has nothing to do with the issue you are trying, nor with the law under which the plaintiff is seeking to recover a penalty, or to make the defendant his debtor; for the action is not for the purpose of remunerating him for any injury the defendant has done him, or to be paid for any thing he has sold or lent to him, but to get money out of his pocket which he never worked for, or earned in any way.


This action is brought, gentlemen, under a statute; and that statute is to be expounded so as to give effect to the intentions of the legislature. And surely it never entered into the heads of the legislature to ask whether a whale was a fish; nor was such a thing mentioned, nor even alluded to in the application for the law, or the correspondence touching it, or during its progress.

      The questions for you, gentlemen, are clearly these two:

      1. Whether sperm oil was intended by the legislature to be made liable to inspection.

      2. If so, whether the defendant has so violated the law as to have incurred its penalties.

      As to the first, before you decide in the affirmative, you must have strong grounds of certainty and conviction; whereas, if your minds are in doubt or suspense as to the application of the law, your safer course is, to find for the defendant, and leave the parties where they were before the action was brought, when neither of them was indebted to the other for any thing.

      And, as to the second question, not only must penal acts be construed strictly, but in point of fact, all cases under them must be fully made out, and the plaintiff held to strict proof. Now, here has been no proof that the plaintiff was an inspector under this law at the time of the three casks of oil; nor is there any competent evidence that he is so even now, nor that any other person is, or was. That should have been first made out; for if there was no inspector, the law would never inflict a penalty for not submitting to inspection: the law does not compel impossible things. Then why should you, upon uncertain testimony, take money out of the pocket of a respectable commercial man, to put it into the hands of a greedy office holder, who never worked for, or earned it by any honourable industry, nor has any meritorious claim to it whatever.

      The position taken on the other side, that if a whale be a fish, whale oil is of course to be called fish oil, is not true. Words are used sometimes in a large and general sense, and none is used more figuratively than the term, fish, or fishery. Thus, it is common to say, fishing for an anchor, fishing for a dead body, where a person has been drowned, or for a cable that has been parted and gone to the bottom. In another sense, we say, fishing a mast which has been cracked or sprung. So, that the terms


cited from the English or Irish statutes, or the antiquated books of the common law, will not serve the counsel's turn; nor will he get any thing by showing how the whale was in old times divided by the head and tail between the king and queen. This old common law is not always common sense; we go more by common sense than they did in those times; and you will use your privilege in giving your verdict to common sense rather than uncommon learning. You will easily see that this law was only intended to prevent some fraud that existed, and where none existed, it could have no application. It can have none in this case, for there were no frauds in the article of sperm oil, nor indeed in any whale oil. The evidence, or the weight of the evidence, goes to show that these frauds were only in the fish or liver oil, and as they only called for inspection, to them only can the law be applied.

      The counsel then put a variety of hypothetical cases, to illustrate his position, that the law should be administered with a liberal view, and not loosely applied to things never meant to be affected by it: as suppose, he said, that there were an ordinance of our corporation, establishing an inspection of fish, so as to prevent the sale of tainted, stale, or unwholesome fish, would you apply this to crabs and oysters, and encourage a greedy inspector to vex and torment the poor negroes that furnish our market with oysters, crabs, or clams? and yet these are generally called fish. So, if there was a law to inspect fowl feathers, would you, because geese are a kind of fowl, apply that to the feathers of geese, or would you not confine it to what is more evidently meant; you would certainly take the restricted sense in a penal action, which is always the safest construction, and leave it to the legislature to extend it further, if such was the intent, or the case required it. Or would you, because an ostrich was a bird, and so a fowl, suppose the inspector had a right to inspect the feathers of the military, or the plumes of the ladies?

      The counsel here humourously instanced a general, when doing the honours of a parade day, and conducting the ladies who came to be spectators; and figured the inspector stopping them on their way, till he had examined the feather in the general's hat, and the ornaments of the ladies' heads, and this for the sake of raising a revenue for a very useless office holder.

      He then read from Blackstone's Commentaries, to the same


effect as he had previously urged it to the court, to show, that it was the rational meaning, and not the mere words of a statute, that were to govern its construction.

      Now apply these rules to the case in hand: Here is a covetous officer, not contented with the legitimate profits which the act allows him, but grasping at all the varieties of oils, and taxing a branch of the commerce of the country, to feed his own cupidity.

      It is certainly much better, gentlemen of the jury, that your verdict should stay his hand till the legislature, since the matter is drawn in question, shall have an opportunity to declare its own meaning, and say to what extent he is permitted to invade the common rights. The legislators will have an opportunity of reconsidering the subject, and receiving ample information; and it will be then time enough to find, that one man is the debtor of another who never lent him any thing, or sold him any thing, or received any thing from him, that could be the consideration of a debt, or who was bound to him by no contract express or implied. The legislature will, then, no doubt, take the evidence of men who understand this commerce, or from Doctor Mitchill, if they think it necessary to call for such scientific information as he is qualified to give them.

      He then observed upon the preamble of the law, and the tariff of the United States, in nothing of which, there was, he said, any thing inconsistent with the distinction taken by the defendant, and proved by his witnesses, that sperm and whale oil were distinct from, and never to be confounded with fish oil.

      He then observed to the jury, that as he had detained them long enough at so late an hour, he would make but a few brief observations on the testimony given in the course of the trial. He contrasted the different degrees of interest, respectability, consistency, and grounds of knowledge of the various witnesses.

      Tanners, he said, could not be considered as competent judges of an article which they very seldom used; but the merchants who traded largely in it, could not be ignorant of its nature and description, and what concerned it, and how it was considered in the commrercial world.

      He was surprised, indeed, as to the testimony of Mr. Lorillard, whom he took to be a sensible discreet man; but he could not put much reliance on Mr. Lee, when the gentleman says, that he is not from the eastward, but from Massachusetts, and his evidence,


or his knowledge, could not be fairly put in opposition to that of Mr. Fish, whose dealings had been exclusive, and whose knowledge was practical; Mr. Hazard waa a witness of great credit and extensive dealing also, whereas Mr. Lee, it appears, though he talks much of his correspondence, and produces it before you, has only dealt with one house, and is a dealer in leather merely, and does not employ whale or sperm oil in the course of his business.

      The plaintiff's counsel here observed, that they relied upon the price currents produced by Mr. Lee, so far as they went to prove that there was no such distinction known in the various ports from which they issued.

      General Bogardus then passed on to the testimony of Mr. Reeves, who had been opposed to Mr. Fish. He was but a common whaler who had made but three voyages, whereas Mr. Fish had been so many years master of a vessel in the trade. It appeared, however, he said, from the testimony of Reeves himself, that such a distinction was known as that contended for by him.

      This being denied by the plaintiff's counsel, that witness was called up again, and repeated what he had before said: viz. that there were three kinds of oil: sperm, whale, and liver, or ground fish, oil; that he had been acquainted chiefly with the whale oil, and never heard but that it was fish oil.

      The counsel also inferred from the provisions of the law appointing inspectors in New-York, Albany, and Hudson, and none at Sag Harbour, where the whale oil was principally brought in, that the legislature could not have intended the inspection to extend to whale or sperm oil. And strongly pressed the propriety of finding for the defendant, and leaving the plaintiff and his witnesses to apply for an explanatory law if they had any confidence in such an application.

      Mr. Anthon. Gentlemen of the Jury – I shall trouble you with a few remarks on the law and evidence in this cause, the wit and learning belonging to it I shall leave to my learned associate.

      Our opponents gave early intimation of their consciousness of the imbecility of their defence, by resorting at the very outset to legal technicalities, by which they hoped to avoid a contest on the merits; and although driven from these holds,


and compelled to produce their strength before you, they still manifest their alarm, by calling for your verdict on the last desperate formal objection that remains to them.

      We are told, that there is no evidence that any inspector was ever appointed under this law, and that, consequently, there could be no default in the defendant in purchasing uninspected oil. Although this proposition has been thus gravely put before you, is it a legitimate. question in this cause? Has not this trial proceeded throughout on that as an admitted fact? But independent of this manifest admission, the defendant himself has furnished us with ample proof. The testimony of Mr. Davis, who describes Mr. Maurice in the act of inspecting oils, shortly after the passing of the law, and entrapped for the moment, by the question artfully put to him, whether he was inspecting fish oil? The admissions of Mr. Fish and Mr. Hazard, that through fear of the penalties of the law, they have submitted to have their oils inspected from time to time, afford abundant proof of an inspector in the active exercise of his office; we are not bound to produce his commission, as the court will charge you.

      Driven, therefore, from this last forlorn hope, the defendant is compelled, reluctantly indeed, to meet us on the substantial merits of the cause.

      In deciding this controversy, gentlemen, I must request you to bear in mind, its strong discriminating feature. It is a struggle between the vendors on the one side, and the purchasers on the other, the latter insisting on inspection for their protection, and the former wishing to avoid it for their own interest; this fact will fully account for all collisions in the testimony in this cause, and if carefully attended to, will enable you to solve all its difficulties. We have conducted this cause, on our part, with perfect good humour, which has not certainly heen manifested by our opponents; but as temper is at once the evidence and prerogative of acknowledged defeat, we are bound to bear with it, and even to answer its querulousness. We are told in this spirit, that the plaintiff is an avaricious and greedy inspector; we reply, that we can discover nothing in him but a faithful public servant, duly executing the trust reposed in him. We are told, that he is seeking in this suit, to obtain money he has never worked for; we reply, that this, if allowed to have any weight with a jury, would go to repeal all penal provisions in our statute book. Our


opponents next attempt to alarm you, and gain your sympathies in their favour by alleging, that we charge the defendant with fraud; the suggestion is entirely their own, and we have throughout disclaimed it.

      These matters, then, being disposed of, let us return to the cause.

      It has been fully proved, that the defendant, in the month of September last, purchased from Mr. Russel, three casks of sperm oil, which oil, at the time of the purchase, had not been inspected.

      If the oil, therefore, contained in those casks, was fish oil, the penalty of the law attaches to the defendant, and, consequently, in order to escape the penalty, he must either convince you, that the oil of a whale is not the oil of a fish, or that whale oil is not fish oil in a commercial acceptation, both of which he has attempted, but has unquestionably failed in both.

      As to the opinions and classifications of modern naturalists on the subject, they are undoubtedly against us as far as their evidence has been heard. And if this statute is to be interpreted in this way, we should be bound to surrender our common sense, and say with Doctor Mitchill, that a whale is not a fish, and that whale oil is, consequently, not fish oil. But, gentleman, such a construction of a statute would be in opposition to the well established rules of the common law. Statutes being enacted to regulate the conduct of the whole community, the words of the statute are to be interpreted according to their common usage and acceptation. Applying this plain rule to this case, all refined theories are at once put to flight, and the words "fish oils" must be considered as embracing the oil of the whale, as well as that of any other fish.

      On this branch of the subject, as my learned colleague will have much to say, and as I am desirous to give him full possession of the field, I shall content myself with giving one practical illustration of the absurdities into which the interpretation of statutes, according to the opinions and classifications of naturalists, would inevitably lead us.

      The whale is elevated to the same class with man, because he breathes the vital air through lungs, and has, in common with man, the various peculiarities which have been enumerated in the progress of this trial. The monkey possessing them also, in a still more eminent degree, is also classed with us; he is, in truth, in


the language of naturalists, no more a brute, than a whale is a fish: he is, in short, in form and structure a man.

      We have a statute, which declares that every freeman shall be entitled to a vote at our public elections; let us suppose, then, that at some one of those arduous struggles, where every thing in the shape of man has been by the zeal of politicians urged to the hustings, that the learned Doctor had appeared, leading forward with all due gravity to the polls an orang outang, or man of the woods, would the stranger's vote be received, although the Doctor should learnedly and eloquently urge his claims, as he has those of the whale on the present occasion? He breathes the vital air, the Doctor might say, through lungs; he moves erect, &c. has warm blood; the female brings forth her young alive, and rears the bantling at her breasts. The inspectors would say, in reply to all the eloquence and learning of the Doctor, as we do in the case of the whale, all this indeed is very strange and curious, but still, Doctor, it is a monkey in common acceptation, however naturalists may choose to hail and class him as a brother.

      As to the common acceptation of the term, fish oil, we have offered you the most satisfactory testimony. We have produced and examined before you Mr. Gideon Lee, a gentleman of great respectability and intelligence, the very man too, who penned the law in controversy; he tells you he is a tanner and currier; that this class of artisans use every kind of oil in their business; that they prefer the cod liver oil, but use whale oil when that cannot be procured; that they had been imposed upon and cheated in every species of oil they had used, and that this law was passed for their protection; he also tells you, that he was anxious to use a term sufficiently broad to cover all marine oils, and with that very view, introduced the term, "fish oil," into the statute; and this general sense, he says, is the common acceptation of the term. The counsel who first addressed you in behalf of the defendant, has attempted to expose Mr. Lee and his testimony to ridicule. I am thoroughly acquainted with all the devices of that gentleman. He was eminent at the bar when I first entered its precincts, and as good fortune followed in his steps, and he had obtained respectability and wealth by his professional efforts, his movements naturally fixed my attention, and the secret springs which opened to him the avenues to success, have been, to my judgment, frequently developed. On this occasion he has at-


tempted one of them, but I trust the sterling merit of Mr. Lee will baffle his efforts. With peculiar adroitness he singles out the most powerful witness of his antagonist, and employs all his power of raillery, sarcasm, and ridicule, against him, that he may weaken his influence over the minds of the jury. It is enough in this case, gentlemen, for the interest of my client, and it is a full performance of my duty to the witness, who is entitled to the protection of the counsel who produces him, to have exposed to view the masked battery of our opponents.

      This witness is confirmed in all his statements by Mr. Jacob Lorillard, a gentleman of equal respectability and intelligence, who expressly states, that he considers every species of marine oil embraced under the term, fish oil, and that this is the common acceptation of the term.

      Israel Corse, Thomas Brooks, William Hall, and Losee Van Nostrand, all respectable tanners and curriers, have been produced on our part, confirming the testimony of these gentlemen, and forming a body of testimony bearing on the very point in controversy, too powerful to be resisted.

      The vendors of oil, who have been examined by our opponents, have drawn a distinction between fish oil and whale oil, and would have us to understand that fish oil embraces exclusively the cod liver oil, and such like oils extracted from the livers of fish, and that this is the common commercial acceptation of the words. It very speedily became manifest, that all these gentlemen were of eastern origin, and were giving to us the acceptation of the words in the eastern states only. When this became apparent, the question was reiterated on our part to every witness, who maintained that opinion, whether he was not from the eastward, and the invariable affirmative demonstrated the force of our inquiry.

      The counsel for the defendant here upbraid us with having called respectable gentlemen by the vulgar epithet of yankees. That term was never heard in this cause until used by our opponents in their address to you; neither vulgarity of epithet, nor angry feeling, have been manifested by us in this cause. We are indebted to our opponents for both. We respect this class of our fellow citizens as much as they can, but we are not, therefore, willing that they shall dictate to us the meaning of words, especially when the whole commercial world is arrayed against them.


      In opposition to this novel distinction, we have produced to you the price currents of London, Liverpool, Bordeaux, and Baltimore, and it is not to be found in any of them; on the contrary, you have seen in some of them the term, "fish oil," applied in the very same sense in which it is used in this statute. We have, therefore, the common acceptation of the terms, and also the acceptation of the whole commercial world, in opposition to a mere provincial usage, and it certainly can require no refined deductions of reason to teach you which ought to prevail.

      There is another rule of construction which we have also applied to the interpretation of this statute, an inquiry into the mischief intended to be prevented; and have fully proved that frauds have been practised in every species of whale oil, and those too of the grossest nature. We have proved to you that in a vessel of 110 gallons, 96 gallons of water have been detected, and that in a variety of others the water has varied from 3 to 5 gallons. When a matter is thus proved to be fully within the mischief intended to be prevented by a statute, it is the strongest possible evidence that it was the intention of the legislature to embrace it within its provisions.

      Here Mr. Anthon commented particularly on the title of the statute, in which the term "fish oils" is used, as conclusive evidence that more was intended by the act, than mere fish oil, in the limited sense contended for by the defendant; and cited the opinion of Mr. Justice Washington, (2 Cranch's Reports, 400.) in support of his position, drawn from the title of the act. He also commented at large on the wording of the sections of the statute, in connection with the testimony, and concluded as follows:

      Gentlemen – This case is now with you; it is for you to dispose of it according to the testimony before you. The counsel for the defendant desire you to decline the decision, and thus to send back the statute to the legislature for their interpretation. You cannot safely follow their advice; you have an oath on record, which you would thereby violate. You are sworn to decide between these parties, according to the evidence – and the evidence is decidedly with the plaintiff.

      Mr. Sampson. Gentlemen of the Jury – Curious and novel as is the subject of this trial, and much as it challenges of observation, I fear, at this late hour, I can offer nothing so agreeable to


you as retirement and repose. I shall, therefore, leave much unsaid of what, under less disadvantageous circumstances, might not have been thought from the purpose. The evidence has been so perspicuously commented upon by my learned colleague, that I shall be readily excused from going over the same ground, as nothing is more tedious to a jury, nor less profitable to a client, than repetitions by one counsel of what another has said.

      The result seems to be this – that, though the witnesses on the one side and the other, hold opposite opinions, yet the character of none has been impeached; all that can affect the credit of any, is that bias which the law recognises as a principle of human nature whenever interest usurps over the judgment. And when our adversaries show, that their witnesses are wholesale vendors of whale oils, and ours only casual purchasers, they show in which scale the weight of interest preponderates; and prove every thing for us.

      As to the evidence touching the meaning of the legislature, I had great doubts whether it was admissible; but as the counsel for the defendant introduced it, we have rebutted it, I think, successfully. We have produced Mr. Lee, a competent and most intelligent witness; he drew the bill, and tells you with what view the act was solicited from the legislature, what mischiefs it was intended to remedy; and that the term, "fish oils," was used as the most certain to embrace all marine oils, and that of whales, amongst the rest, without any possibility of doubt or equivocation.

      And to show the general understanding of the commercial world, price currents, bills of lading, bills of parcels, and correspondences, both foreign and domestic, have been produced, to which nothing has been opposed, unless the particular phraseology of a small section of the union shall control the general acceptation of words.

      My learned colleague has been accused of illiberality, because he directed his inquiries to this point, and has been charged with calling the witnesses of the defendant Yankees. Certainly, if the word Yankee be a reproach, he is not answerable, for he never once uttered it. Mr. Anthon has too much good sense, if good manners did not restrain him, not to know that a counsel never gains a point by the use of national or local reflection, but at the expense of his own character. The opposite counsel paid


the worst compliment to their own witness, first, by introducing the word Yankee, if it be a term of reproach in their apprehension; and, secondly, by supposing it to be such; for my part, I have often heard it echoed as a word of triumph – and who has not joined in the chorus of Yankee doodle. Sure I am of one thing, that though the witnesses on the other side may be interested in the event of this trial, they will still have the good sense to acknowledge that my friend has done nothing but his duty, and on other occasions they will endeavour, when they want an able advocate, to engage him on their side. Nor will it more avail the counsel to exhibit these gentlemen from the eastward in the light of martyrs; for if they have any good quality, and I think they have many, they possess, in a peculiar degree, that good sense that takes care of itself, and are better made to figure in any other character than that of victims. And truly, the oppression they suffer by this law, is not much. Before it passed, they paid twelve cents a cask for gauging; and now they pay ten cents for both gauging and inspection – Buyer and seller each paying ten cents.

      Having said so much for my associate counsel, respect for those opposed to us requires that I should give some answer to their arguments. Luckily for me, they have neutralised each other. As some times it happens in an unconcerted night attack, they have fired into each others mouths. The one clung with affectionate zeal to the great Icthyologist, as determined to stand or fall with him who was the pride of science, the honour of his country, the glory of the age, light of the universe, and so on, and so on, still kindling as he spake, till it went nigh to weeping with me, so like it sounded to a funeral oration. For, though I would not deprive that great man of his rank amongst the constellations, yet, let it not offend him, if I wish his apotheosis deferred for a time; for were he suddenly snatched from among us, there is none in this sublunary sphere to fill his place. Not only in the regions of science would there be a void and vacancy, but man, woman, and child, would miss him in his walks; and fish, flesh, and fowl, mourn for their historian.

      Happily for all, it was but a false alarm. He is yet in the body, yet hale and vivacious; so that if his eloquent panegyrist does not keep from such strong emotions, from the night air, and other accidents that shorten life, the Doctor may live to repay the


compliment, and sing his dirge in return. But I hope that day is also far distant.

      The other counsel, who affected so little respect for science, did not turn his back, however, upon science, whilst science kept her face toward him; but no sooner did he find that all the philosophy was in the pentateuch, than he tacked about, for as he could not persuade himself, so he knew he could not persuade the jury, that Moses classed whales with men and four footed beasts. If he had not studied comparative anatomy, he had learned to dissect men's thoughts, and he saw, with the glance of a practised eye, that the joke would not take. So shifting his course with the sudden shift of the wind, he cries, what's this? What is all this? What have we to do with all this learning? What have juries to do with questions of science? What need have we of Doctor Mitchill? but recollecting that he had subpoenaed Doctor Mitchill, and postponed the trial because of the absence of Doctor Mitchill, he slants off by saying, "I only consented to his coming, because it was proposed for the sake of amusement, as people like to hear him talk." Very good! and very true! and people have heard him talk. We all love the Doctor, and every body likes to hear him talk. And it needed no handbills to collect the crowd that has filled this court during the whole trial. The rumour of such a paradox, to be maintained by such a disputant, was enough, if the living had no curiosity, to bring the dead out of their graves. And let me say, that this crowd is a better prognostic of an enlightened community, and indicative of a higher moral sense and sentiment, than those that sometimes waste days and nights at trials where the only interest is in the lewdness of the story. And the counsel should have remembered, that making sport with men of might, is playing with edged tools. He should have recollected, that when the Philistines brought Sampson up to make them sport, the sport he made them, was to pull the house about their ears.

      It was not "what have we to do with science," when the flag was first unfurled, and the trumpets flourished so loud, as who should say, here comes the great leviathan whom the arrow cannot make free, the spear, the dart, nor the halbergeon; out of whose nostrils goeth smoke, as out of a seething pot or a cauldron; like the king of the children of pride that beholdeth all things; and when my presumption was arraigned for


inquiring into the grounds of his opinions, as though they were omnipotent.

      Canst thou open the doors of his face, it was said, or worda to that effect – Canst thou play with him as with a bird, or bind him for the maidens? who shall put a hook in his nose, or go to him with a double bridle.

      It reminded me of one of whom I never thought to speak again, and of whom you, gentlemen of the jury, never, I presume, did hear before.

      Micky M'Donnell was a man, if compared to Doctor Mitchill, of very little learning. But in a country where philosophy is taught by the bailiff and tythe proctor, and consists in the simple practical observances of hungry stomach, and bare feet, as in the realms of the blind, one eye makes a king; so there, a lofty stature, and corresponding energies of body and mind, and a knowledge of the Gaelic tongue, had acquired for the individual, blessed with such gifts, an ascendancy so high, that in his parish, and the two adjoining, his word was as an estoppel of record to all mankind. Chancellor or judge might err, but a decree once promulgated in this simple formula, "se beal Mhihill fein duirt e," Mickey's own mouth said it, in a moment all was hushed.

      If we must have a Mickey's mouth here too, none so worthy as that which has spoken; yet still it is an opinion, that fire will not melt out of me, that a whale resembles a fish more than a man.

      I labour under another difficulty; perhaps, it is a prejudice of education; but I was bred up in the faith, that a counsellor of the laws was not ex concesso to be so ignorant of all liberal learning, as to be spoon-fed by doctors of medicine, with ill concocted Greek, such as Greek babies would spit out; but, on the other hand, that not only his own dignity, but the dignity and efficacy of the laws, depended upon his competency to push every necessary inquiry, whenever opinion, in matter of science, became evidence; and, I trust, the counsel who interrupted me, will, upon reflection, bear me good will for vindicating the common privilege of the counsel, the client, and the community.

      The other gentlemen, in slighting philosophy, wrongs himself; for he made more ingenious distinctions out of his native abundance, and extempore, and in a few minutes, than would have cost Linnaeus years of painful toil. The arrangement of ladies, ostriches, fowls, geese, and Generals, or, as we may say, the feathered tribe, by


their plumage, was very felicitous, and if his arguments were not of much weight in the cause, they were still feathers (which is something) in a soldier's cap. His association of fish, crabs, and oysters, though not according to the modern French school, was also ingeniously curious, and proves, that he never wants resources, and will not, in any case, go out like a snuff.

      His observations upon the allotment by the learned Prynne, of the whale's tail to the queen's majesty, to furnish her royal wardrobe with whale bone, I feel in their full force; and am much troubled for an answer. That whales do not now wear whalebone in their tails, is as true, as that ladies have left of hooped petticoats, and gentleman taken to wearing stays.* But whether the whales do this out of malice, or whether modern zoologists have made the alteration, is the thing to be inquired into; unless there be a third way of accounting for it, to which I am not the less inclined, from what I have heard in this cause; that very learned men may be very much mistaken. At all events, Prynne's aurum reginum, or queen's gold, go as far to prove a whale to be a fish, as the princess Sophia, and the heirs of her body, do to make it flesh, and I leave the one as a set-off against the other.

      Upon the authorities with which we had entrenched ourselves against the threatened invasion, the General remarked, in his own peculiar way, that he feared our pains would exceed our pay. I must there, also, admit, that there is much truth. Learning is not the commodity that comes to the best market, and if there be virtue in it, it must be its own reward. We, however, knew the sway of a great name, and that he who has to encounter the authority of Doctor Mitchill, backed by his ready elocution, cannot make himself too sure. Therefore it was, that we formed alliances with the Syrians, Greeks, and Chaldeans. Had certain opinions of Aristotle, before they became articles of faith, been brought to the test of common sense, and that great man had been called as a witness in the Heliaia, or other Athenian courts, and had some Crito, Phocion, or Isocrates, used the privilege of cross-examination, the schools would not have been

      * By stat. 9 and 10 W. 3. c. 23. any person importing whale bone, other than in fins, forfeits one half.

      By 4 and 5 Anne, c. 12. s. 6. any dealing in whale bone, other than in fins regularly imported, to forfeit 30 pounds.


occupied till our own times, with the unprofitable doctrines of form, privation, and matter, categories, sophisms, and syllogisms. Nor would it have been held impious amongst Christians, to impugn his heathenish dogmas. The same might be said of many other vanities, as the elixir of life, and the philosopher's stone, and all the subtleties of the Gnostics, Sciolists, Satyrists and Soothsayers. And remember, that if Aristotle was aggrandized by a pupil who made the world tributary to his researches, Mitchill, great in himself, holds a sway over public opinion no less despotic. Who but one conscious of his terrible power would have planted himself in the attitude of proud defiance, like a castle on a cliff, and proclaimed in the face of a court and jury what he did, on that ever memorable moment, when he declared, upon the faith of modern zoologists, that a whale was no more a fish than a man! and that none but lawyers and politicians would now a days suppose it so. What would the learned Doctor say, were I to enter his lecture room, and inform the youth of his class, that his opinions were sophisticated, and refer them to the venerable sages of the law; to King Brutus, Queen Marcia, and the long and royal lines of British, Saxon, and Kentish lawgivers, Inas, Alfreds, and Edwards. What figure would the names of Blumenbach, Cuvier, or Lamark cut, opposed to Howel Dha, Dumwallo, Malmutius, and Blegradibus Lauguaridus, all of whom held the whale, as it was, and is, by the common law, a fish.

      The learned witness could not steer clear of much uncertainty when speaking of the sea cow, that goes ashore with its baby to graze, he called it one of the cetaceous tribe; though Linnaeus ranks it in the order of the bruta, or brutish beasts. And so unsteady is the footing of those who stand upon each others shoulders, that I fear this cumulative series will not gain strength by numbers, and if the most learned are uppermost, there is danger of the column becoming top heavy. It was in this manner the giants tried to climb, but their pride got a fall, and I fear this new philosophical ladder will scarcely reach where Jacob's did. Upon the whole, it would be well when the books are next posted, and the balance struck, to add, by way of precaution, "errors excepted."

      There is another difficulty. Every day brings to light some new and important creature: as the mammoth, known only by fossil remains; others long thought fabulous, revived and reinstated, as the camel-leopard, and the, syren, or mermaid;*

      * See note (2) at the end.


the sea serpent, proved to exist by oaths, that strongest of human proof, by which men's lives are judged; the hyppocentaur, or Kentucky man, so celebrated on the banks of the Mississippi, worthy by its importance of a class or order for itself. (a)

      Had the existence of these creatures been known, or admitted, they might have been connecting links to prevent such abrupt transitions and grotesque associations; and as they are too important to be left out, the ranks must open to receive them as they respectively arrive, and the order of the parade be still changing.

      And what virtue is there in the scalpel of the anatomist, or in his blow-pipe, that he should have the sole privilege of new-creating, and nicknaming God's creatures. Why may not the school of Boerhaave found a system of zoology upon the elementa medicinae physica mathematicae, and class according to the animal functions, explained by mechanical causes and mathematical demonstrations.

      The craniologist, craniosophist, cranionomist, or craniogonist, after Gall and Spurzheim, may by the nervous streaks on the ganglion of the brain, and their circumvolutions on the hemispheres, and the protrusions by the organs of the mental faculties of the parallel lamina of the skull, as they indicate murder, robbery, love, courage, or constancy, class and arrange all living things. An amative class will take in hogs, frogs, and snails, and be called the Abelard and Elouisas. A pugnacious class will take in General Jackson, the game-cock, and the sword fish; unless the last of these be held by nearer ties to the class of the prudes and platonists, by the character of castus amor. Doves and dolphins will be of the Penelope class, and so of the rest.

      The geometricians will have pantometrical zoology, classing by points, lines, surfaces, and solids, the genders of curves, ratios of affections, motions, and positions. There will be the straight, crooked, and perpendicular families, the equilateral, curvilateral, and multicrural: The cycloid, trapezoid, and rhomboid orders, so that by comparing the angle of the bee's knee with the inclination of the cat's tail, there will be no danger of

      (a) When these formidable beings first appeared to the ancient French settlers, they named them sacres Kaintucks, and they are still so called by many.


mistake. And with the aid of a Gunter's scale, a logarithmic table, and a theodolite, you may distinguish a maiden from a bat.

      I do not say, there ever will be such systems, and if there. were, I think they would be of little value, for those who attempt to follow nature into the secret recesses where she loves to retire, find themselves in a labyrinth to which they have no clue, waste themselves in unavailing toil, and sink subdued by efforts to which their powers are inadequate. Hence, those grave mistakes of the learned, who are neither lawyers nor politicians, nor sitting in halls of legislature, but who judging of nature by their narrow views, would subject her to arbitrary regulations. Hence, those trembling lines, traced with a feeble hand; those limits which nature disavows, and boundaries which she disowns. Hence, those ephemeral systems which efface each other, succeeding like the ocean's waves, of which the inventor has only this benefit, that his errors are concealed under the protecting cloud of mystical jargon, and like to those who have the receipt of fern seed, he walks unseen. Nor is he who makes microscopic researches the best qualified,to judge or testify for the rays of the intellect, being concentrated upon one point, are apt to leave all else in darkness, and unnoticed.

      The most learned, besides, are not always the most sure footed witnesses. Learning is a heavy burthen, and men will stagger under it. It is not so easy to run with the gates of Gaza on one's back.

      The worst effect of all, however, is, that instead of inviting to the study of nature, and laying open the door of the most enchanting science, these systems rob it of its attractions, and are as forbidding as the hundred tongued scare-crow of the Hesperian fruit. But I return to the learned witness.

      There was a demigod of old, a great icthyologist, for he kept the flocks of Neptune. He knew almost every thing, and was consulted upon all great occasions, by kings and people. He was called Proteus, and could, if not disposed to answer categorically, use all shapes, shifts, and transitions. It was so with the learned witness in this cause; you saw that he eluded our inquiries; how he flew from the arctic to the antarctic circle; from Davis's straights to the straights of Magellan; and, like Puck, the fairy, put a girdle round the earth in forty minutes. But I, remembering the moral, held fast till he solved every doubt, referring to the autho-


rity of Moses; and as this part of our subject will not admit of levity, I now beg your serious attention.

      In the first chapter of Genesis is related, with simple brevity, the daily progress of the creation. We there find the style of narration by the inspired writer to be this: First, to announce the will of the creator touching each distinct act; and then, in terms as distinct, the execution of it. Thus: let there be light – and there was light; let there be a firmament – and God created the firmament; let the waters be gathered together, and the dry land appear – and then follows the formation of the earth; let the earth bring forth grass, &c. – and the earth brought forth, &c.; let there be lights in the firmament – and then God made two great lights. In like manner, the history proceeds, till the 20th and 21st verses, which relates the fifth day's work. Thus, we find in the Sacred history of the creation, one homogeneous ray of light, and in the corruptions of the heathen poets and mythologists the same ray, altered as it were by prismatic refraction, exhibiting a show of various colours, but wanting the purity of the original.

      The Counsel then read the 20th verse:

      "And God said, let the waters bring forth abundantly, the moving creature that hath life, and fowl that may fly above the earth in the open firmament of heaven."

      This is evidently, as in all the preceding instances, the enumeration of the intent of the Almighty, to create the finny and the feathered tribes, and the execution of that purpose is related in the succeeding verse, where the whale is put, not as a distinct creature, but as the great type of all fish.

      "And God created great whales, and every living creature that moveth, which the waters brought forth abundantly after their kind, and the winged fowl after their kind."

      Now, the witness thinks, that he finds the creation of fish by implication in the former of these two verses, and that of whales distinct from fish in the latter, for otherwise, he thinks, the fish would have been twice created.

      This savours a little of incogitancy, and wants the precision that usually marks the opinions of Doctor Mitchill. For as the creation of fish is at least as strongly implied in the latter, as the former verse, it would follow that whales were created once, and fish twice.


      But scriptural authority does not stop there. In the book of Jonah, ch. 1. v. 17. it is said, "the Lord prepared a great fish," and that Jonah was in the belly of the fish three days and three nights; and the Gospel of St. Matthew, ch. 12, v. 40. says, that "as the prophet Jonah was three days and three nights in the whale's belly," &c. showing that the great fish was no other than a whale! So, the common law, which is founded upon the law of God and revelation, has always considered it; so nine tenths of all that speak English consider it. What equivalent does this philosophy then offer, for the surrender of faith, law, and vernacular speech? I am no canter, nor was it I that pressed holy writ into the argument of the cause; but I should beg of the Doctor, if it can be at all dispensed with, to let us remain as we were before the second creation, for I do not think it becoming for the lords of the creation to be ranked with porpoises and hogs. Not that mammalia sounds so badly, nor is primas an ill name; but bimanus and guadrimanus are too much to be endured, however it may be that man, monkey, and bat, all agree in the number of incisor teeth, and pectoral mammae. Figure to yourselves, gentlemen, a beautiful woman in the act of nursing her first child, her eyes beaming with tenderness and love, and grace and beauty in her form and attitude; and now imagine me a Borneo bat, clinging torpidly in some filthy hole, by the hooks which terminate its hinder extremities, its head downwards, its ugly brood sucking to its dugs, and reconcile, if you can, this fantastical association to decency or reason. What is there in common between the beings made after God's image, excelling all in beauty, and that which, still conscious of its hideous aspect, and nothing elated by its new brevet, will not venture abroad till the blessed sun has withdrawn his light, and evening has cast her friendly veil over its unseemliness.

      I may, perhaps, be speaking too irreverently, perhaps ignorantly, of what the learned commend; but still, I think, the onus lies on the advocates of this new philosophy to show to what good it tends. If it be to elevate the brutes, it is well contrived; but if it is for the benefit of the human kind, let them show what its virtue is. If it makes us better, happier, or wiser, diminishes our toils, lessens our sorrows, or exalts our hopes, it is worthy of our gratitude and praise.


      But if it be said that these arrangements assist man in acquiring knowledge of subordinate creatures, I will ask how this can be, since we find the whale and dolphin in an order called cetaceous, by reason of their inhabiting the sea, having a double heart, lungs, and warm blood, and yet we find others of these same cetacea, as the seal and the sea cow, associated, the one with the predaceous beasts of the forest, and the other with those called brutes, as the elephant and armadillo, where no one would think of looking for them, and that by so insignificant a relation as their teeth. And as man is related to monkeys by the same members, I should like to be informed whether he might not loose his cast by the loss of his front teeth, and in such case, whether the dentist could restore him; the maxim of law being that a prescriptive right once suspended is gone forever.

      Yes, gentlemen of the jury, in the same order with man, they place the monkey, ape, and baboon; all equally related, and differing from the lord of the creation only as they differ from each other. To do them justice, however, they have discovered a way by which a man may be distinguished from his class-fellows, and that is, by his thumbs. He has a great toe upon his hind foot, where they, it seems, to assist them in climbing, have a thumb. He then has but two hands, and they have four, or, to speak learnedly, he is bimanus, and they are quadrimanus. As it was long before the workings of genius brought this discovery to the world's light, it is wonderful how these brothers were known apart before the days of Linnaeus. But now, the rule is this, and if you follow it, you will be quite safe. A man is an ape minus two thumbs, and a baboon minus two thumbs and a tail. And, e converso, a baboon is a man plus two thumbs and a tail, and a monkey is a man plus two thumbs; or thus, a man with an extra pair of thumbs would be an ape, and with those, and the addition of a tail, would be a baboon. If I had not known this to be philosophy, I should have supposed it was the black art. It is enough to give bad dreams. There is a story of a poor man who was so infected with this philosophy, that he became hypochondriac, and seeing a bat flyiug about, stuck his thumbs and great toes through the corners of his blanket and went out of the window to take a few turns through the air with his cousin vespertilio. You can conceive how it ended, he died a victim of the Linnaean system, leaving a wife and children to deplore his


untimely loss. Again, what is more grotesque than associating the kraken, which is a mile and a half big, with the oyster, in the class of worms; or crabs and lobsters with fleas and lice? yet so much do these systems mislead, that Sir Joseph Banks boiled his fleas to see if they would turn red. What more violent than to class man with whales, upon the ground of some casual conformities, since, notwithstanding the bony skeleton, double heart, warm blood, and alternate breathing, there are scarcely two things, even physically speaking, so unlike; its form, attitude, covering, manner of moving, and being, declaring it to be of the finny tribe; yet you have heard one of the greatest men of the age, and one as good as he is great, declare, upon the solemnity of his oath, that a whale was no more a fish than a man. If he had said, even, that it was half a fish, I should have been less unhappy, because, from the midriff down, it has no one of the character of man or quadruped, so that all the power of philosophy, with "oxen and wain-ropes" to boot, can never get it more than half out of the water. And the other characters relied on are very uncertain, since we find from that practical witness, Mr. Reeves, that the dog fish is also viviparous, the word being, that the whale calves, and the dog pups; and it is well known, that the blenny and the eel bring forth their young alive.

      It is worth remarking, that Pliny, the most learned of the heathens, agrees with Moses, in placing man at the head of the creation, where God placed him; classing the rest under the obvious divisions of terrestrial, aquatic, amphibious, birds, and insects; a classification that unsophisticated reason will assent to as long as the book of nature lies open, and man is not too proud to read in it. It was so the masterly genius of the great Buffon viewed these contrivances, rescued science from pedantry, brought light from darkness, and grouped families by family likeness. So, Goldsmith after him, the child of sense and taste, the exquisite interpreter of nature; for though he could appreciate the efforts of Linnaeus, the vivid instinct of his own mind pointed out to him how much industry may be wasted in laborious trifling.

      If wit consists in seeing resemblances, and judgment in perceiving differences, I think those men discover more wit than wisdom, who catch at such slight resemblances, and overlook such glaring dissimilitudes.


      There are few things, indeed, animate or inanimate, in which fancy cannot find resemblance; a facile imagination finds forms in the clouds, and figures in the fire; but take away the quality of life, and there is less similarity between a man and a whale, than between a whale and a whistle: Your imagination will supply the rest. My allotted hour is out, and I therefore conclude, that, as the law stands, we have proved every thing to entitle us to your verdict, and that none of the grounds of defence taken are maintainable. If there be any reason why the law should be altered or amended, it concerns the legislature, and the griefs of the parties must be carried there. It is for our opponents to set forth the motives for legislative interposition; and, I think, they must show some better reasons than they have been able to do upon this trial, or they will equally fail there.

      His Honour, the Recorder, then charged the jury to the following effect:

      He first noticed the objection to the want of evidence, that the plaintiff was appointed, or that any person was appointed inspector of oils under the act, and that no penalty could attach for selling or buying without inspection, if there were no person to do the duty of inspector. But he observed, that this point was sufficiently made out by the evidence of Mr. Duncan and Mr. Hazard. The production and proof of his commission, he held unnecessary, as it was not an instrument through which the plaintiff made any title or justification. He instanced the case of Mr. Gilbert, who was convicted as a lottery manager, without other proof, than that he acted as such de facto.

      The fact of selling being proved by the admissions of the defendant, to Mr. Ellis, and not at all denied, the broad question remains, has the defendant incurred the penalty under the act.

      He, then, after reading the fifth section, observed, that in construing statutes, a court and jury must be guided by the spirit rather than the letter. The term "any oils," in this section, would, if taken at the letter, embrace every kind of oil, and even vegetable oil, but from the context and the letter, we must narrow it down to fish oil. The proof is, that the oil in question was called spermaceti, and that it is extracted from an animal called the spermaceti whale, and there comes the question –is that whale a fish? For the defendant it is contended,


      1st. That the whale is not a fish.

      2d. If so, the oil of the whale cannot be fish oil.

      3d. That the legislature did not intend, that spermaceti or whale oil should be inspected, but used the word fish oil in a different sense.

      To come at the true application of the law to the fact, the counsel has taken various courses. They have called our attention,

      1st. To the theories of naturalists.

      2dly. To the popular acceptation of the terms used.

      3dly. To the common and statute law.

      Between the most eminent zoologists, ancient and modern, there is much disagreement, and even the moderns are not in accordance with each other: You have heard the opinions of Doctor Goldsmith, amongst others, who, after reciting the distinguishing characters of the whale, still yields to the popular belief, that a whale is a fish; but you have also heard the testimony, upon oath, of our learned fellow-citizen, who tells you, with great seriousness, that a whale is no more a fish than a man.

      It is, however, admitted, that the great mass of mankind, and as Doctor Mitchill says, of those that speak English, do call it a fish.

      As to the legal sense, there is not much doubt. Treatises on common law, and the ancient English statutes, treat of it as a fish, and our national congress, in legislating on the subject, likewise adopts the popular meaning. There is much plausibility in the arguments applied to the subject in these various points of view; and you must decide amongst these conflicting opinions, either adopting the opinions of the naturalists, of the mass of mankind, or of the common law.

      But the subject has been also presented to our consideration in another important view, that is, as to the commercial sense. As to this, it is contended, that fish oils were never used in commerce as applying to any thing but the oils which proceed from the livers of fish, and on this point also, very respectable witnesses have been opposed in opinion to each other. Those for the defendant, have testified, that if an order was given for fish oil, they would no more think of sending whale oil, than they would on an order for sugar, send molasses; that when whale oil is call-


ed for, it is particularly demanded by some of the names which distinguish one kind from another, as sperm oil, &c.

      If these opinions are correct, it would lead us to think, that the legislature did not intend to include whale oil under the term fish oils.

      But, on the other hand, many respectable witnesses swear, that in commerce, it means all manner of marine oil, including the oil of whales of every species; and they have supported their opinion by producing price currents of various countries; then you must judge to which of these opinions you will yield your assent, it being entirely a matter of fact.

      The mischief, to remedy which a statute is enacted, is one of the rules for its construction. Testimony has been given to throw light upon the subject also, in this pretty important point of view. But here we find the same diversity of opinion among the witnesses; some saying that there were no frauds in whale oil requiring inspection; whilst others swear to actual frauds committed and detected. There is much difficulty in coming to a conclusion. We must expound the law according to the intent of the legislature, as near as we can find it; but sometimes the object to which the law is to apply, is expressed by terms, the meaning of which is not defined in any book of law, nor to be ascertained except by the testimony of witnesses conversant with the particular subject, whether it belong to science, art, or commerce; and so it was understood by the defendant's counsel, when they called the learned Dr. Mitchill.

      If, then, you are of opinion with the naturalists, that a whale is not a fish, or if you think that, in the commercial sense, fish oil does not mean whale oil, you may then find for the defendant, as he will not have incurred the penalty given by this statute. You may also, if you doubt, this being a penal act, and against the common right of the citizen, which is to deal in all commodities not noxious, or restrained or prohibited by law, find against the plaintiff.

      The Jury then retired, and returned in about a quarter of an hour with a verdict for the plaintiff, for the three penalties demanded in his declaration.


      The defendant, being dissatisfied with this verdict, moved for a new trial, in January term; which motion was argued by General Bogardus for the defendant, and by Sampson and Anthon for the plaintiff; and his honour the Recorder being informed that the legislature, then in session, had been petitioned for an amendment of the law, delayed his opinion, intending to grant a new trial, if the sense of the legislature should make it appear that the statute had been incorrectly construed. But the legislature having passed a new act, which is hereto subjoined, his honour refused a new trial. It would seem that, by amending the law, the legislature had conceived it to bear the sense contended for by the plaintiff, viz. that whale oil was subject to inspection.

An act to amend an act, entitled, "An act authorizing the appointment of gaugers and inspecters of fish oils." Passed February 5, 1819.

      Be it enacted by the people of the State of New-York, represented in senate and assembly, that from and after the passing of this act, liver oil, commonly called fish oil, shall be inspected agreeably to the provisions of the act passed March 31, 1818, and hereby amended; and that all other oils shall be exempt from inspection, any thing in the act hereby amended to the contrary notwithstanding.

      State of New-York,}
          Secretary's office,}

      I certify the preceding to be a true copy of an original act of the legislature of the state on file in this office.

Archibald Campbell,     
Deptuty Secretary.

February 17, 1819.

      After the passing of this act, the plaintiff deeming his office of too little value or importance, immediately resigned it.



NOTE (1.)

      However naturalists may doubt of the reality of mermen, or mermaids, if we may believe particular writers, there seems testimony enough to establish it. In the year 1187, as Larrey relates, such a monster was fished up in the county of Suffolk, and kept by the governor for six months. It bore so near a conformity with man, that nothing seemed wanting to it besides speech. One day it took the opportunity of making its escape, and plunged into the sea, and was never more heard of. Hist. d'Angleterre, p. i. p. 403.

      In the year 1430, we are told, that after a huge tempest which broke down the dykes in Holland, and made way for the sea into the meadows, &c. some girls, of the town of Edam, in West Friesland, going in a boat to milk their cows, perceived a mermaid embarrassed in the mud with a very little water. They took it into their boat, and brought it with them to Edam, dressed it in women's apparel, and taught it to spin. It fed like one them, but could never be brought to offer at speech. Some time after it was brought to Haerlem, where it lived for some years, though still showing an inclination to the water. Parival relates that they had given it some notions of a deity, and that it made its reverences very devoutly whenever it passed by a crucifix. (Delices d'Hollande.) In the year 1560, near the island of Manar, on the western coast of the island of Ceylon, some fishermen are said to have brought up at one draught of a net, seven mermen and maids; of which several Jesuits, and among the rest, F. Hen. Henriques, and Dimas Bosquez, physician to the viceroy of Goa, are said to have been witnesses. And it is added, that the physicians, who examined them with a great deal of care, and made dissections thereof, asserted, that all the parts, both internal and external, were found perfectly conformable to those of men. See the Hist. de la Compagne de Jesus, p. i. tom. iv. No. 267, where the relation is given at length.

      We have another account, as well attested, of a merman, near the great rock called Diamond, on the coast of Martinico. The persons who saw it gave in a precise description of it before a notary: they affirmed, that they saw it wipe its hands over its face, and even heard it blow its nose.

      Another creature of the same species, was caught in the Baltic, in the year 1531, and sent as a present to Sigismund, king of Poland, with whom it lived three days, and was seen by all the court. And another very young one was taken near Rocca de Sintra, as related by Damian Goes.

      The king of Portugal, and the grand master of the order of St. James, are said to have had a suit at law, to determine which party these monsters belonged to. See Pontoppidan's Nat. Hist. of Norway, vol. ii. p. 186, &c.

      Mr. Thomas Gunston of Newington Butts, whip and harness maker, had a mermaid in 1803, which he exhibited to his great honour, at two pence a head, though he might have obtained three hundred guineas for it, of which the Rev. Timothy Brownloe bears testimony.


NOTE (2.)

      Lib. ix. c. iii. De Bellius in Indico Mari repertis. – Pliny relates upon the authority of Alexander's lieutenants, that the Gedrosi, an Indian tribe, made gate posts of the jaws of whales, and roofed their houses with their bones.

      And c. iv. (Quae in quoque oceano maxima) – he mentions the sword fish and the whale as inhabitants of the Indian sea, and the spermaceti whale as frequenting the Gallic sea, and spouting higher than the mast of a ship.

      And in this same chapter, that they were found on the coast of Spain. (in Gaditano Oceano.)

      In c. vi. (De Balaenis et Orcis) – he is more particular, and states that they are seen in winter in the straights of the Mediterranean sea, and describes them as resorting during the summer to quiet and retired bays, and greatly delighting in such retreats. And he relates a very remarkable story of a whale beiug_discovered in the port of Ostia, and of an engagement which took place between it and the emperor Claudius, who went out against it with his praetorian guards, the Roman people enjoying the spectacle as seen from the shore, with very full details of the stratagems used by the imperial party to prevent its escape, by spreading nets, and other contrivances; and how, being driven ashore, it remained fixed, resembling an inverted ship, till finally the soldiers killed it with javelins and lances, but not till it had sunk one of the gallies by spouting water upon it. Pliny affirms that he was one of the spectators, and saw this thing with his own eyes.

      Cap. vii. (an Spirant Pisces an dormiant) – In this chapter he shows that whales have no gills, and breathe through lungs; he also minutely describes the orifices in their skulls through which they spout.

      Cap. viii. (De Delphinis). – After mentioning that dolphins pair; that they bring forth their young at the end of ten months gestation, and suckle them like quadrupeds: he enters particularly into the manners of the dolphin tribe, and relates a number of curious and amusing particulars; as their love of music, vocal and instrumental, their fondness for human society, their understanding in human speech, at least in the Latin tongue.

      When the boys jokingly called them flatnose, (Simo,) they understood railery so well, thatinstead of taking offence, as churls would do, they would come playfully on shore and eat from the hand. He also relates, that there grew up such a friendship between one of these affectionate animals and a school boy, that every fine day he carried the boy on his back to Puteoli,* where he went to school, and waited to bring him back in the same manner; and this story he says he would have been ashamed to have told, but that he had the authority of the letters of Maecenas, Flavius, and others of senatorial dignity.

      He tells also of one, who after having many times carried a stripling on his back, took him out into the deep on a stormy day, when the waves rose so high that he was washed off and drowned, to the utter disconsolation of the fish, who for thirty years after shunned all human society, and never ceased to repine and lament for his lost friend.

      Dr. Shaw mentions a manati, called by the inhabitants of the country, on account of its gentle nature, "maium," which, at the time of the arrival of the Spaniards, was kept by a prince of Hispaniola in a lake adjoining to his residence: it hated the Spaniards, but would offer itself to its Indian favourites, and carry over the lake ten at a time, singing and playing on its back,

      The reporter has summarily translated and condensed these anecdotes for the information of the English reader. The learned are referred to the original works which may be found in the library of the New-York hospital.

      * In the bay of Naples.

William Sampson, 1764–1836

See William Sampson in Wikipedia.


      Transcription of this publication included the following changes from the original:

  • Greek & other non-roman words not transcribed.


Author: Sampson, William, 1764–1836.
Title: 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.
Publisher: New-York, C. S. Van Winkle, 1819.
Description: 81 pages.

Last updated by Tom Tyler, Denver, CO, USA, September 16, 2018.