I hope it’s not a metaphor for the current situation

I have to consider this a rather dispiriting story:

In 1818, a whale oil dealer refused to pay a fish-product fine on whale oil, because a whale isn’t a fish. The inspector insisted on the tax, and a spirited court and public battle played out.

It’s dispiriting because you’d think the weight of scientific evidence (and if you prefer it, the testimony of no less an authority than Aristotle) would have settled this case easily, but no…the whale lost and was declared a fish.


  1. Carlie says

    Heh. I was just about to bring up the tomatoes. Now, now, PZ, I’m almost always with you, but there’s enough to get upset about at the moment in the world. Just because a tax law was written poorly and someone almost managed to weasel their way around it in the early 1800s and whales got misclassified in the process is no reason to get your tentacles in a twist. Obviously the law should have been changed to read “all marine products”, but instead they reclassified the whale, because it was about taxes, not taxonomy. The whale by any other name still smelled as, um, lucrative.

  2. Olorin says

    There are two kinds of presumptions in the law. The ordinary kind merely shifts the burden of proof to the party against whom the presumption is made. For example, we presume criminal defendants innocent until proven guilty.

    But the “conclusive presumption” is made for policy purposes, and cannot be rebutted with mere facts. For example, a child less than a certain age is conclusively presumed unable to consent to sex. I suspect that, for the purpose of the statute, a whale was conclusively presumed to be a fish. That is, the statute was intended to tax products harvested from the sea, so whales were presumed to be included in the category of fish.

    So, you see, law is not as strange as biology after all.

  3. says

    It’s the issue of intent that matters, as noted in other posts.

    And it’s also true that different things can be classified differently depending on the circumstances. The tomato tends still to be considered a vegetable, as do cucumbers and squashes (which you rarely hear are fruits, as they are botanically). There’s nothing actually wrong with calling these fruits “vegetables” for food classification.

    Whales, however, are not considered to be fish in any context, really, so I suspect that subsequent laws did take that fact into account, as they ought to do.

    Glen D

  4. iGollum says

    “the whale lost”

    Seems to me that you’ve got the most dispiriting element of the story right there: the whale was going to lose either way.

  5. says

    Ok, you think calling a whale a fish is wrong, wait till you hear this.
    In the 16th century, the first Europeans who saw a Capybara took note of the scale-like skin on the legs, adapted to wading for food.
    Because of this, the Capybara was officially classified as a fish by the Catholic church, in a dispensation that remains until this day, specifically so those early Europeans and modern catholics can it giant guinea pig meat on Fridays during Lent.
    Yup, the world’s largest rodent is not a mammal, but a fish, made an entire day earlier than its close relatives the guinea pigs.

  6. Gregory Kusnick says

    In the small California town where I lived in the 80s, there was an incident involving a woman who raised rabbits for food, because her husband couldn’t digest beef or pork. The city busted her for violating a city ordinance against breeding animals in a residential zone. But what about all those people raising chickens in their backyards? she wanted to know. That’s different, the court ruled, because chickens are not animals.

  7. says

    The “is a whale a fish” jury declared a whale is a fish, but the NY legislature got it right and voted that a whale is not a fish. So the truth did win.

  8. BicycleRepairMan says

    “Seems to me that you’ve got the most dispiriting element of the story right there: the whale was going to lose either way. ”

    Actually, the whale won, because you had to pay fines for whales as well, had the whale oil dealer gotten his way, whaling might have gone up.

  9. skyotter says

    it’s the same logic that got cannibis classified as a Class 1 narcotic when the demonstrable facts say otherwise

  10. Anon says

    Different categories are used for different purposes; if the fish-oil tax was intended to raise revenue from pretty much anything that was pulled out of the sea, then it makes sense for the whale to be, legally, a fish, and the biological truth of the matter is secondary. Laws are not always created de novo, but sometimes evolve; it is sometimes easier to re-define a whale as a fish than it is to open the fish-oil laws to another round of debate, lobbying, and other such chaos.

    Similarly, cephalopods were not animals until 2005, it turns out. Well, “animals” in the sense of “deserving the protections, under the European Food Safety Authority, entitled to sentient beings”. Again, much easier to re-define organisms to fit an existing law, than to rework the entire law. From the Opinion of the Scientific Panel on Animal Health and Welfare:

    There is evidence that cephalopods have adrenal and pain systems, a relatively complex brain similar to many vertebrates, significant cognitive ability including good learning ability and memory retention especially in octopuses, individual temperaments, elaborate signalling and communication systems, especially in cuttlefish and squid that can show rapid emotional colour changes, may live in social groups and have complex social relationships. Nautiloids have many characters similar to those of other cephalopods, they can track other individuals, live for a long time and are active pelagic animals. The largest of decapod crustaceans are complex in behaviour and appear to have some degree of awareness. They have a pain system and considerable learning ability. As a consequence of this evidence, it is concluded that cyclostomes, all Cephalopoda and decapod crustaceans fall into the same category of animals as those that are at present protected.

    Salticid spiders, free-swimming tunicates, social insects and amphioxus got a “close, but no cigar” ruling.


  11. shiftlessbum says

    Am I the only one to think that P.Z. wasn’t making a commentary on the oddities of legal systems but was instead drawing parallels with today and attempts in the early 19th century to employ the idiocy of religious sentiment instead of reason to inform us about the world around us? It wasn’t so much the law that got PZ’s (and my) attention, but the fact that conflict between biblical nonsense and reason became a issue. The legal issues were (in my mind) secondary; the case was a battle between religion and reason and there are (sadly) echos of that today.


  12. SEF says

    The whale had already lost by being made into oil. :-(

    Everything else was merely adding insult to fatal injury.

  13. says

    “Pigs is Pigs”, as the famous short story has it.

    And the law isn’t science; when you sneer at lawyers for reaching conclusions that work in their domain of knowledge but aren’t “scientific” you’re halfway to succumbing to engineer’s disease.

  14. dustbubble says

    Oh, we’re well used to this sort of jiggery-pokery, over here on the right-hand edge of the map. Mere science is powerless, and counts for naught, in the face of a bureaucracy hell-bent on revenues.
    As in this almost legendary case

    For the purposes of the European Union’s “Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption” carrots can be defined as a fruit as well as a vegetable. This is because carrot jam is a Portuguese delicacy.

    The point being that having introduced the law that thou shalt not suffer jams to be devised from aught but fruit, had no compunction in bending the facts to fit when this turned out to be not quite the case, since bureaucracies are never in error.

  15. Dread Polack says

    Reminds me of a story about a court ruling the X-men “non-humans” so they could be taxed as toys, not dolls. People joked about how it put to rest the mutant controversy.

  16. says

    I remember reading Moby Dick in high school and being miffed by Melville’s conclusion (or is it merely Ishmael’s conclusion?) that the whale is a fish. From Chapter 32:

    The uncertain, unsettled condition of this science of Cetology is in the very vestibule attested by the fact, that in some quarters it still remains a moot point whether a whale be a fish. In his System of Nature, A.D. 1776, Linnaeus declares, “I hereby separate the whales from the fish.” But of my own knowledge, I know that down to the year 1850, sharks and shad, alewives and herring, against Linnaeus’s express edict, were still found dividing the possession of the same seas with the Leviathan.

    The grounds upon which Linnaeus would fain have banished the whales from the waters, he states as follows: “On account of their warm bilocular heart, their lungs, their moveable eyelids, their hollow ears, penem intrantem feminam mammis lactantem,” and finally, “ex lege naturae jure meritoque.” I submitted all this to my friends Simeon Macey and Charley Coffin, of Nantucket, both messmates of mine in a certain voyage, and they united in the opinion that the reasons set forth were altogether insufficient. Charley profanely hinted they were humbug.

    Be it known that, waiving all argument, I take the good old fashioned ground that the whale is a fish, and call upon holy Jonah to back me.

    You want authoritative knowledge? Look no further than your messmates and the good old Bible. (Ishmael would make a perfectly good science advisor to the current federal administration.)

  17. Graculus says

    Because of this, the Capybara was officially classified as a fish by the Catholic church, in a dispensation that remains until this day, specifically so those early Europeans and modern catholics can it giant guinea pig meat on Fridays during Lent.

    The Catholic Church had already declared beaver, or at least the tails, to be “fish” for the purposes of fasts, so it wasn’t a big stretch. However, they also declared muskrat to be a fish.

  18. Erp says

    Don’t forget that what we still call fish cover a wide range of classes. It is not a neat biological category.

  19. Moses says

    Happened with tomatoes (a fruit) too. In the Tomato decision the Court recognized that, yes, the tomato was a fruit, but the fruit was predominantly considered to be a “vegetable” under the common use of the terms “fruit” and “vegetable.”

    Wikipedia does a good job in summarizing the verdict:

    Nix v. Hedden, 149 U.S. 304 (1893)[1], was a case in which the United States Supreme Court addressed whether a tomato was classified as a fruit or a vegetable under the Tariff Act of March 3, 1883, which required a tax to be paid on imported vegetables, but not fruit. The case was filed as an action by John Nix, John W. Nix, George W. Nix, and Frank W. Nix against Edward L. Hedden, collector of the port of New York, to recover back duties paid under protest. Botanically a tomato is a fruit. The court, however, unanimously ruled in favor of the defendant, that the Tariff Act used the ordinary meaning of the words “fruit” and “vegetable”–where a tomato is classified as a vegetable–not the technical botanical meaning.

    The point is that the Court is not necessarily showing scientific illiteracy. Rather the critics of the case are showing their legal illiteracy to the rationale and principles of the law and precedent behind the decision.

  20. BaldApe says

    Erp said:
    “Don’t forget that what we still call fish cover a wide range of classes. It is not a neat biological category.”

    Right. Sharks are considered “fish,” but are more distantly related to bony fish than whales are.

    Just saying…

  21. Mike from Ottawa says

    Regina V. Ojibway

    August, 1965.
    BLUE, J. — This is an appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act, R.S.O., 1960, c.724, s.2. The facts are not in dispute. Fred Ojibway, an Indian, was riding his pony through Queen’s Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused’s misfortune was further heightened by the circumstance of his pony breaking its right foreleg. In accord with Indian custom, the accused then shot the pony to relieve it of its awkwardness.

    The accused was then charged with having breached the Small Birds Act, s.2 of which states:

    2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.

    The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.

    In light of the definition section my course is quite clear. Section 1 defines “bird” as “a two legged animal covered with feathers”. There can be no doubt that this case is covered by this section.

    Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

    Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.

    Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offence at all. I believe counsel now sees his mistake.

    Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no concern to this court.

    Counsel relied on the decision in Re Chicadee, where he contends that in similar circumstances the accused was acquitted. however, this is a horse of a different colour A close reading of that case indicates that the animal in question there was not a small bird, but, in fact, a midget of a much larger species. Therefore, that case is inapplicable to our facts.

    Counsel finally submits that the word “small” in the title Small Birds Act refers not to “Birds” but to “Act”, making it The Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, R.S.O. 1960, c. 725, is just as small. If pressed, I need only refer to the Small Loans Act R.S.O. 1960, c. 727 which is twice as large as the Large Birds Act.

    It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals with feathers as well. Counsel submits that having regard to the purpose of the statute only small animals “naturally covered” with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase “naturally covered” would have been expressly inserted just as ‘Long’ was inserted in the Longshoreman’s Act.

    Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and a fortiori, a pony with feathers on its back is a small bird.

    Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?

    Appeal allowed

    Reported by: H. Pomerantz

  22. Mike from Ottawa says

    While I was joking (somewhat) in #27, the clade that includes all the organisms we consider “fish” includes not only our good selves, but [drumroll] – Whales! So, phylogentically, whales are indeed fish!

    With the Bible having anticipated science and being wiser in the nature of whales than PZ, I expect him now to admit defeat and convert to the Christian, Jewish or Muslim denomination of his choice. :-)

    Tip of the hat to Gould for his essay ‘What, If Anything, Is a Zebra?’ and Jennie Clack for her ‘Gaining Ground’ (wonderful book) which convinced me I’m a sarcopterygian.

  23. arachnophilia says

    @zeno (#20):

    that “jonah” argument is so wonderfully gymnastic, that it warrants an explanation.

    see, the book of jonah describes him being eaten by a “fish.” not a whale. though there likely isn’t a word in biblical hebrew for “whale,” ishmael rather ironically uses the word from the bible that would become the MODERN hebrew word meaning “whale” several sentances above: leviathan.

    but the problem is that “everyone knows” jonah was swallowed by a whale. enough that some translations will even render “whale” in reference to what ate jonah. continuing the theme of irony, when jesus refers to jonah in matthew 12, he uses the greek word ketos which i’m sure you can recognize as the root of the word “cetacean,” ie: whale. though the greek likely didn’t mean that at the time, did it? the term was only coined about a hundred years before moby dick was penned.

    so, the hebrew — doesn’t mean whale. the greek — doesn’t mean whale. but oddly, that doesn’t mean the author of jonah wasn’t describing a whale. afterall, people thought they were fish until the 1700’s, and so fish (or even water-dragon, leviathan) would have been apppropriate.

    but the idea that it’s a whale in the first place, instead of say a basking shark, or some other large fish, comes out of anachronism and misunderstanding. if you can try to make some sense of that, be my guest. but it’s circular in about three different ways. it assumes the bible is right, then assumes it’s wrong. it assumes anachronistic uses of words that are themselves based on the bible. and it assumes that whales are fish.

  24. says

    I can’t cite an aythoritative source, but my father told me that in the 50′ in France that the “Végétaline” margarine was authorised to include in its formula a proportion of whale oil, it being “vegetable oil” because unsaturated.

    Ha! Whale’s no fish! Whale’s a vegetable!
    now, for the *real* question: is tomato a fish…?

  25. says

    Because of this, the Capybara was officially classified as a fish by the Catholic church, in a dispensation that remains until this day, specifically so those early Europeans and modern catholics can it giant guinea pig meat on Fridays during Lent.

    The Catholic Church had already declared beaver, or at least the tails, to be “fish” for the purposes of fasts, so it wasn’t a big stretch. However, they also declared muskrat to be a fish.

    The same wonder-working organisation also declared the whale to be a fish and thus edible on Fridays thereby starting the European whale fishing industry in the midle ages.

  26. Phil says

    Just finished Trying Leviathan. In short it is smart and very good and I would recommend it to anyone interested in the kinds of issues raised in these comments. Strangely this year also brought us the very fine- Leviathan A History of American Whaling (by Dolin). Sort of like that time the two meteors are smashing into the earth movies came out back to back.

  27. dNorrisM says

    You cannot have animals in a hair salon, but fish are not animals, so you can have live fish in your salon. So a Catholic hairstylist can plead religious discriminiation if tha Authorities don’t like a Capybara running around on the floor.

    (Also bacteria are considered plants!)

  28. David Marjanović, OM says

    (Also bacteria are considered plants!)

    Haven’t been for 50 years. Except in Austrian biology schoolbooks.

  29. David Marjanović, OM says

    (Also bacteria are considered plants!)

    Haven’t been for 50 years. Except in Austrian biology schoolbooks.

  30. says

    “the wale lost and was declared a fish”. Sometimes you can’t win even when you’re completely right… That often happens on this planet inhabited with irrational and gullible creatures called ‘Homo sapiens’ ;-)

  31. Pyre says

    Right, carrots are fruits, tomatoes are vegetables, whales and beavers and muskrats are fish, horses are birds, and “chickens are not animals” — which makes them, what, fruits or vegetables?

    Is this concatenative? May we argue that horses are not “animals” as well, h∈b∈-a? And settle down to a nice vegetarian (or fruitarian) horsemeat dinner?

  32. Pyre says

    pesté, the HTML character “isin” was not right for this.

    I should have typed “sub”, thus: h⊂b⊂-a

  33. says

    Cheers. I’m the author of the new book that tells the story of this 1818 whale-a-fish trial (“Trying Leviathan,” Princeton University Press, 2007), and a friend sent me a link to this chain of comments on the case, “Maurice vs. Judd.” It is great to see everything that people have to say on the topic. I am assuming that none of you has read the book — since it just came out; and that most of you are too busy to get to it. So I thought I’d just explain quickly that the book is a history of science: P.Z.’s original post (that one would hope that the “weight of scientific evidence” would make the case an easy one) sort of misses the point (with all due respect, since I wouldn’t be a historian of science if I didn’t love science, and scientists); the point is that science has changed over time. While zoologists in the eighteenth century knew the same sort of stuff that Aristotle knew (indeed, they knew much more about anatomy and physiology), there were still deep debates about the best taxonomic categories, and the best means for assigning membership in those categories. The term “mammal,” for instance, was relatively new, and it had strange and unseemly overtones (it derives from the term for breast, of course, which we no longer really hear in the term — people then did hear it, and many thought it odd to reconfigure the order of nature around the nipple). My whole book is an effort to show the complex ways that scientific ideas develop and change. There is also plenty of stuff in there about “Moby-Dick” and so forth, and some stuff about what happens when science gets tangled up with politics and religion. But basically the book is a history of the development of systematics and comparative anatomy — told from a quirky point of view.

    Anyway, happy holidays to everyone…