DOI: 10.7910/dvn/2folka
title: Replication Data for: The Law of Heredity--Whistelo, Whiteness and Whales

description: This Article reveals the impact of an early New York case upon science and law, raising questions about heredity that spurred evidentiary progress from visual resemblance, through blood groups, to DNA paternity testing. In the Jeffersonian republic, a dark-skinned man was charged with reputedly fathering the infant daughter of a mixed-race woman. However, to most witnesses this light-skinned child appeared to be the offspring of a White man. The trial of Commissioners of the Alms-House, vs Alexander Whistelo, a Black man, being a Remarkable Case of Bastardy (1808) became a cause célèbre in both law and medicine for its forensic debate on proving paternity long before modern discoveries. This famous courtroom drama raised puzzling questions about the inheritance of asserted racial characteristics. Over a dozen leading physicians offered their expert medical testimony. A decade later the same protagonists resumed their struggles over taxonomies in science and law in another epic conflict, Is a Whale a Fish? An Accurate Report of the Case of James Maurice against Samuel Judd (1818). Long overlooked in law review literature, these early cases jointly open a startling window displaying the complex influences of law upon the course of scientific inquiry. This Article argues that one enduring legacy of the Whistelo trial was the admission of exclusionary blood group testing to disprove paternity more than a century later. Furthermore, such challenging legal conflicts over parentage and heredity guided scientific researchers towards the discovery of the human genome by the late twentieth century. With DNA-based paternity testing now conclusive and ubiquitous, humankind owes a substantial debt to the illegitimate infant whose parentage was tried in the Whistelo case.

“The wisely curious rack their brain,
 To solve this problem—all in vain!”
William Sampson
description: After all the evidence was in, and the lawyers had made all their closing arguments, this paternity case was decided by the judges, without any jury. Of the 16 physicians (Anthon, Borrowe, De Witt, Hosack, Jay, Kissam, Miller, Mitchill, Moore, Osborne, Pascalis, Post, Seaman, Secor, Tillary, Williamson) who offered their opinions in the Whistelo case: 
14 (87.5%) concluded that Alexander Whistelo was not the father, and that the real father was more likely to be a White man (Anthon, Borrowe, De Witt, Hosack, Jay, Kissam, Moore, Osborne, Pascalis, Post, Seaman, Secor, Tillary, Williamson); 1 (6.25%) concluded that Whistelo was the more likely father (Mitchill); and 1 (6.25%) was undecided (Miller). 
8 (50%) reached their impossibility conclusion based on a law of nature (Anthon, De Witt, Hosack, Jay, Moore, Osborne, Tillary, Williamson); 3 (18.75%) based their improbability conclusion on a general rule that allowed exceptions (Kissam, Post, Secor); 2 (12.5%) reached opposing conclusions seemingly relying on both a law of nature and a general rule (Mitchill, Pascalis); and the remaining 3 (18.75%) did not specify (Borrowe, Miller, Seaman). 
1 (6.25%) chose the theory of monogenesis over polygenesis (Mitchill); the remaining 15 (93.75%) made no mention of either monogenesis or polygenesis. 
3 (18.75%) rejected as implausible the theory of maternal imagination (Hosack, Jay, Pascalis); 1 (6.25%) embraced that theory (Mitchill); the remaining 12 (75%) made no mention of maternal imagination. 
3 (18.75%) dismissed albinism as an explanation for the infant’s skin color (Hosack, Mitchill, Osborne); the remaining 13 (81.25%) made no mention of albinism. 
1 (6.25%) dismissed vitiligo as an explanation for the infant’s skin color (Mitchill); the remaining 15 (93.75%) made no mention of vitiligo. 
This expert testimony might be considered reflective of Mid-Atlantic American elite medical opinion just before the War of 1812; it shows that polygenic theory has not yet permeated the medical profession and academy. 
 Before the War of 1812, these New York physicians more likely harbored the dominant Enlightenment environmental ideas about racial differences, instead of the emerging, often polygenic, biological racial science that will gain influence closer to the Civil War. Elaborating their above conclusions, of the 16 physicians in the Whistelo case:
2 (12.5%) offered detailed descriptions of different racial categories (Mitchill) and attributes (Mitchill, Pascalis) when reaching opposing conclusions regarding Whistelo’s paternity; the remaining 14 (87.5%) did not offer detailed descriptions of racial categories or attributes when concluding against Whistelo’s paternity. 
12 (75%) identified skin color as distinguishing between Black and White infants (Borrowe, De Witt, Hosack, Jay, Kissam, Miller, Mitchill, Osborne, Pascalis, Post, Seaman, Secor); the remaining 4 (25%) made no mention of skin color (Anthon, Moore, Tillary, Williamson). 
3 (18.75%) testified that skin color is usually a shade between the parents in equal degrees (Mitchill, Post, Secor); the remaining 13 (81.25%) made no mention of this general observation. 
2 (12.5%) testified that a Black infant’s skin grows darker after birth up to one year (Kissam, Secor); the remaining 14 (87.5%) made no mention of skin growing darker during infancy. 
7 (43.75%) identified hair texture as distinguishing between Black and White infants (Anthon, Hosack, Jay, Miller, Mitchill, Osborne, Pascalis); the remaining 9 (56.25%) made no mention of hair texture (Borrowe, De Witt, Kissam, Moore, Post, Seaman, Secor, Tillary, Williamson). 
3 (18.75%) identified the shape of facial features including lips and nose as distinguishing between Black and White infants (Hosack, Miller, Pascalis); the remaining 13 (81.25%) made no mention of facial features. 
1 (6.25%) identified a more forward setting of the ankle with resulting longer heel as distinguishing between Black and White infants (Pascalis); the remaining 15 (93.75%) made no mention of the setting of the ankle or heel. 
All the above sworn evidence comes directly from Sampson’s published pamphlet trial report. 

[WILLIAM SAMPSON], THE COMMISSIONERS OF THE ALMS-HOUSE, VS. ALEXANDER WHISTELO A BLACK MAN; BEING A REMARKABLE CASE OF BASTARDY, TRIED AND ADJUDGED BY THE MAYOR, RECORDER, AND SEVERAL ALDERMEN, OF THE CITY OF NEW-YORK, UNDER THE ACT PASSED 6TH MARCH, 1801, FOR THE RELIEF OF CITIES AND TOWNS FROM THE MAINTENANCE OF BASTARD CHILDREN (New York 1808).