IS THE WHALE A FISH? 121 



offender, either buyer or seller, should pay the gauger and 

 inspector, as a penalty, twenty-five dollars. Obviously, this 

 provided a strong incentive for the gauger and inspector to be 

 diligent in pursuing his duty. Now the exact standing of the 

 whale among the various creatures that inhabit the deep 

 sea has from very early times caused a certain confusion 

 of phrase, which to a less extent persists to this very day. 

 Men of science long since classed the whale as a mammal, 

 but seafaring men have persisted in calling it a fish. 

 The general term ''whale fishery," right or wrong, is firmly 

 established by popular usage during hundreds of years, and 

 appears in the title of a recent and excellent book published by a 

 doctor of science and of philosophy, the superintendent of the 

 Lancashire and Western Sea Fisheries. But usage clashed with 

 science, and theology with mere scholarship, when James 

 Maurice brought action against Samuel Judd, on December 30 

 and 31, 1818, in the Mayor's Court of the City of New York, 

 basing his suit on the legislative act of March 31st, to decide 

 legally and for ever whether or not a whale is a fish. 



It appears that on September 14, 1818, five and a half months 

 after the act had become a law, Samuel Judd bought of John W. 

 Russell of New York, three casks of sperm oil, ungauged, unin- 

 spected, unbranded, and uncertified, for which James Maurice, 

 appointed gauger and inspector in New York City, with 

 commendable diligence attempted to collect the forfeit of 

 twenty-five dollars a cask, or seventy-five dollars in all. This 

 sum Samuel Judd stubbornly refused to pay, insisting that a 

 whale was not a fish, that sperm oil was not fish oil, and, hence, 

 that his three casks were not subject to the act; so Mr. Maurice 

 brought suit, and the case came to trial before a jury of twelve 

 men, upon whom devolved the grave responsibility of deciding 

 for all time that much-debated question. 



Let the names of those jurors not be forgotten; their medita- 

 tions and conclusions deserve the enduring reverence of poster- 

 ity. They were Elijah Curtis, William S. Hick, Augustus Craft, 

 Samuel Dodge, Robert Wiley, Garret Banta, Isaac Underbill, 

 George Niven, William Cruikshanks, Robert Blake, William 



