122 WHALING 



Wilmerding, and Robert McConbrey. Messrs. Anthon and 

 Samson appeared for the plaintiff; Mr. Price and General 

 Bogardus for the defendant. 



There is reason to suspect that these great men did not re- 

 gard the case with quite the seriousness worthy of so grave a 

 question and one so long contested ; certainly the audience, which 

 packed the courtroom to the doors, was now and then impelled 

 to smile. Indeed, it is recorded that these impulses were so 

 violent that the officers of the court found it difficult to restore 

 order! 



Mr. Anthon, representing the plaintiff and opening the case 

 to the jury, anticipated the leading contention and the chief 

 witness for the defence, one Doctor Mitchell, when he declared 

 that the statute was to be interpreted by common and popular 

 usage, not by the learned distinctions of naturalists. "We 

 shall on this subject," he said, ''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 be- 

 tween the fish and the rest of the marine creation. Again; it 

 is worthy of remark, that if the whale, by reason of his peculiari- 

 ties, is to be removed from the finny tribe, the porpoise puts in 



