D. Graham Burnett

In Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature, D. Graham Burnett examines James Maurice v. Samuel Judd (1818), a three-day trial in which Judd, an oil merchant, argued that Maurice, the inspector, did not have the authority to collect his fee on fish oil since whale oil came from a whale, not a fish. Burnett argues that the case affords "a valuable opportunity to contribute to a growing revisionist literature that has called into question a dominant narrative in the history of science - a narrative that considers the late eighteenth and early nineteenth centuries the 'golden age' of classificatory sciences" (pg. 194). According to Burnett, from the perspective of those claiming lay expertise in the natural world, "the early nineteenth century looked less like a taxonomic calm before the Darwinian storm..., and more like an era of instability and change, when established orders were under siege and taxonomic expertise various and hotly contested" (pg. 194). The laypeople struck back at the threat they perceived from the social and political elites, deciding after a three-day trial that whales were fish. Burnett writes, "The verdict, by these lights, struck a blow for plain folk everywhere" (pg. 179). These same conflicts parallel the issues modern American society currently faces. As Burnett argues, "the case provides...a compelling example of the perennially reciprocal constitution of natural and social orders" (pg. 146). Burnett draws upon a wide breadth of background, including the backgrounds of the principals in the trial, various writings about whales and marine life from the period, and sources examining the social changes occurring in turn of the century Manhattan. Burnett offers a fascinating look at this period, but loses focus at times. Despite this, the volume is required reading for anyone interested in the history of science.… (more)

A history of the court case where the crucial question was: Is a whale a fish or a mammal? The author gives a great deal of detail, spinning out the history of taxonomy and whaling to set a background for a case that in the end was a dispute between two powerful business groups, both determined to win, and not caring if they made a total fool out of science in the process. This case included a bit of everything: anti-intellectualism, capitalism, government regulators, science, history, and the common man. For people who believe that the anti-science mood in this country is recent, cases like this demonstrate that the roots of anti-intellectualism and anti-science go deep in America. In the end, though, science had the last laugh, as almost no one would insist a whale is a fish today. Decent reading; a bit pedantic.… (more)

Trials are a "retelling, in a string of words . . . a distressing distortion of the cluttered thickness of things as they happen."

Burnett is a Princeton history professor who writes of his experience as the foreman of a jury for a murder trial. He became foreman, when the original foreman just disappeared, just before the deliberations were to begin. Burnett considered the experience "the most intense sixty-six hours [hours of jury deliberation; the entire experience lasted seventeen days] of my life."

The case itself was not famous, albeit with some sensational aspects involving rape, transvestitism, and male prostitution, but it's a fascinating story of intense clashes between personalities in the jury room and an honest recollection of how a jury came to its conclusion. The various personalities on the jury come to life, and Burnett soon realizes that his stereotypical assumptions about some of them are drastically wrong. He comes across as somewhat stuffy and aloof, making a fetish of bringing his own food to eat (apples, nuts, etc.), rather than be stuck eating the restaurant food (which he admits doesn't look too bad) and reading in a corner - "Academics cultivate a certain pomposity, most of them" - rather than socializing - something I can easily relate to. He assumed he would not be chosen for the jury: "I promised to give any healthy prosecutor hives. I brought along a copy of The New York Review of Books just in case."

The jury is beset by frustration almost from the beginning. The judge's instructions are maddeningly unclear or confusing. The jurors have the choice of finding the accused guilty of first degree murder, second degree murder, or a variety of manslaughter charges, depending on their perception of his intent. And what of self-defense? Did they need to decide whether a murder had been committed first? Each time they send a question out to the judge, they learn that the entire courtroom must be reassembled, taking considerable time, and this colors their willingness to ask questions.

The truth can be elusive. "We associate truth with knowledge, with seeing things fully and clearly, but it is more correct to say that access to truth always depends on a very precise admixture of knowledge and ignorance." The jury puzzles over what they might not be allowed to see. The Simpson trial is a good example of the audience knowing much more about the evidence and assorted witnesses than the jury, which was excluded from the room often. In this case, the jury is deliberately not permitted to learn about the background of the defendant or others related to the case, information the jury would have liked to have. Searching for the truth haunts Burnett. "I realize now that for me - humanist, an academic, a poetaster - the primary aim of sustained thinking and talking had always been, in a way, more thinking and talking. Cycles of reading, interpreting, and discussing were always exactly that: cycles. One never 'solved' a poem, one read it, and then read it again - each reading emerging from earlier efforts and preparing the mind for future readings."

The trial, contrarily, demanded a solution and Burnett's account of the intense deliberations of the jurors recalls Twelve Angry Men.

The jury, in its inability to reach a verdict, quickly begins to debate the very nature of what constitutes justice. Adelle, one of the jurors, another academic, said on the third day of deliberations, after a contentious second day, "We've been told that we have to uphold the law. But I don't understand what allegiance I should have to the law itself. Doesn't the whole authority of the law rest on its claim to be our system of justice? So, if the law isn't just, how can it have any force?" Burnett "sensed that people were starting to perceive the law as overly clumsy, somehow that it was a blunt tool - and that the higher principle, justice, had cast a kind of spell in the room." In this case, the "dictates of justice demanded that we circumvent the law."

Ultimately, what the jurors came to realize was that the burden of proof for the prosecution is very high because the power of the state is so strong. The jurors themselves had been subject to this power. They had been refused the right to go home [ they were refused phone calls home, were forced to stay in a moth-eaten motel and were refused the ability to have a a prescription refilled, ultimately sending one of the jurors to a hospital], sent "men with guns to watch you take a piss, it [the state] could deny you access to a lawyer [one of the jurors wanted to know her rights as a juror], it could embarrass you in public [the judge upbraided Burnett in public for standing at slow moments to exercise a bad leg] and force you to reply meekly, it could, ultimately, send you to jail - all this without even accusing you of a crime."… (more)