May 102014


Before I get into a discussion of tomatoes I would like to wish this blog a very HAPPY BIRTHDAY. On 10 May 2013, I wrote my first post which you can find here:

You will note that my posts were very short in the early days, and it took me a few months to hit my stride. Now that I am into a new year I want to reassure you all that for the most part there will not be any repeats. Once in a while I might approach the same topic from a different angle, particularly if I am stuck for choice. Every day of the year has multiple feasts, birthdays, events and so forth associated with it. But I choose my daily topic very carefully, and I filter out a great many topics. For example, I try not to celebrate famous battles, unless they have transformed into national holidays and the like. I also try to avoid tyrants and other infamous types, although I make exceptions. Add to the mix the fact that I like to have a great deal of variety; I don’t want to post a succession of saints’ days or focus on one region of the globe for extended periods. And, course, the subject has to interest me. It all makes my labors challenging. On this day, in particular, I would especially welcome comments on how I am doing so far. Now . . . tomatoes.


On this date in 1893 in the case of Nix v. Hedden the Supreme Court of the United States handed down the decision that, under U.S. customs regulations, the tomato should be classified as a vegetable rather than a fruit. The Court’s unanimous opinion held that the Tariff Act of 1883 used the ordinary meaning of the words “fruit” and “vegetable,” instead of the technical botanical meaning. The Tariff Act of 3 March, 1883 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 enlarged ovary, together with its seeds, of a flowering plant. However, the tomato has a much lower sugar content than other edible fruits, and is therefore not as sweet. Because it is typically served as part of a salad or cooked in the main course of a meal, rather than as dessert, it is considered a vegetable for most culinary uses. One exception is that tomatoes are treated as a fruit in home canning practices; they are acidic enough to process in a water bath rather than a pressure cooker as vegetables require. Tomatoes are not the only food source with this ambiguity: green beans, eggplants, cucumbers, and squashes of all kinds (such as zucchini and pumpkins) are all botanically fruits, yet cooked as vegetables.

At the trial, the plaintiffs’ counsel, after reading in evidence definitions of the words ‘fruit’ and ‘vegetables’ from Webster’s Dictionary, Worcester’s Dictionary, and the Imperial Dictionary, called two witnesses, who had been in the business of selling fruit and vegetables for 30 years, and asked them, after hearing these definitions, to say whether these words had “any special meaning in trade or commerce, different from those read.”

During testimony, one witness testified that in regard to the dictionary definition:

[the dictionary] does not classify all things there, but they are correct as far as they go. It does not take all kinds of fruit or vegetables; it takes a portion of them. I think the words ‘fruit’ and ‘vegetable’ have the same meaning in trade today that they had on March 1, 1883. I understand that the term ‘fruit’ is applied in trade only to such plants or parts of plants as contain the seeds. There are more vegetables than those in the enumeration given in Webster’s Dictionary under the term ‘vegetable,’ as ‘cabbage, cauliflower, turnips, potatoes, peas, beans, and the like,’ probably covered by the words ‘and the like.’

Another witness testified: “I don’t think the term ‘fruit’ or the term ‘vegetables’ had, in March 1883, and prior thereto, any special meaning in trade and commerce in this country different from that which I have read here from the dictionaries.”

Both the plaintiffs’ counsel and the defendant’s counsel made use of the dictionaries. The plaintiffs’ counsel read in evidence from the same dictionaries the definitions of the word tomato, while the defendant’s counsel then read in evidence from Webster’s Dictionary the definitions of the words pea, eggplant, cucumber, squash, and pepper. Countering this, the plaintiff then read in evidence from Webster’s and Worcester’s dictionaries the definitions of potato, turnip, parsnip, cauliflower, cabbage, carrot and bean.

The court unanimously decided in favor of the defense and found that the tomato should be classified under the customs regulations as a vegetable, based on the ways in which it is used, and the popular perception to this end. Justice Horace Gray, writing the opinion for the Court, stated that:

The passages cited from the dictionaries define the word ‘fruit’ as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are ‘fruit,’ as distinguished from ‘vegetables,’ in common speech, or within the meaning of the tariff act.

Justice Gray, citing several Supreme Court cases (Brown v. Piper, 91 U.S. 37, 42, and Jones v. U.S., 137 U.S. 202, 216) stated that when words have acquired no special meaning in trade or commerce, the ordinary meaning must be used by the court. In this case dictionaries cannot be admitted as evidence, but only as aids to the memory and understanding of the court. Gray acknowledged that botanically, tomatoes are classified as a “fruit of the vine.” Nevertheless, they are seen as vegetables because they are usually eaten as a main course instead of being eaten as a dessert. In making his decision, Justice Gray mentioned another case where it had been claimed that beans were seeds — Justice Bradley, in Robertson v. Salomon, 130 U.S. 412, 414, similarly found that though a bean is botanically a seed, in common parlance a bean is seen as a vegetable. While on the subject, Gray clarified the status of the cucumber, squash, pea, and bean.

Nix has been cited in three Supreme Court decisions as a precedent for court interpretation of common meanings, especially dictionary definitions. (Sonn v. Maggone, 159 U.S. 417 (1895); Saltonstall v. Wiebusch & Hilger, 156 U.S. 601 (1895); and Cadwalder v. Zeh, 151 U.S. 171 (1894)). Additionally, in JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990), a case unrelated to Nix aside from the shared focus on tomatoes, a judge wrote the following paragraph citing the case:

In common parlance tomatoes are vegetables, as the Supreme Court observed long ago, see Nix v. Hedden 149 U.S. 304, 307, 13 S.Ct. 881, 882, 37 L.Ed. 745 (1893), although botanically speaking they are actually a fruit. 26 Encyclopedia Americana 832 (Int’l. ed. 1981). Regardless of classification, people have been enjoying tomatoes for centuries, even Mr. Pickwick, as Dickens relates, ate his chops in ‘tomata’ sauce.

In 2005, supporters in the New Jersey legislature cited Nix as a basis for a bill designating the tomato as the official state vegetable. Arkansas, to be safe, designates the South Arkansas Vine Ripe Pink Tomato as the state fruit AND the state vegetable.


The word “tomato” comes from the Spanish tomate, which in turn comes from the Nahuatl word tomatotl. It first appeared in print in 1595. Because the tomato is a member of the (deadly) nightshade family, tomatoes were erroneously thought to be poisonous by Europeans who were suspicious of their bright, shiny fruit. Native versions were small, like cherry tomatoes, and most likely yellow rather than red. The tomato is native to western South America and Central America. Aztecs and other peoples in Mesoamerica used the fruit in their cooking. The exact date of domestication is unknown, but by 500 BCE, it was already being cultivated in southern Mexico and probably other areas. The large, lumpy tomato, a mutation from a smoother, smaller fruit, originated in Mesoamerica, and is probably the direct ancestor of some modern cultivated tomatoes.

Spanish conquistador Hernán Cortés is probably the first person to have taken the small yellow tomato to Europe after he captured the Aztec city of Tenochtitlan, now Mexico City, in 1521, although Christopher Columbus may have taken them back as early as 1493. The earliest discussion of the tomato in European literature appeared in an herbal written in 1544 by Pietro Andrea Mattioli, an Italian physician and botanist, who suggested that a new type of eggplant had been brought to Italy that was blood red or golden color when mature and could be divided into segments and eaten like an eggplant—that is, cooked and seasoned with salt, black pepper, and oil. However it wasn’t until ten years later that tomatoes were named in print by Mattioli as pomi d’oro, or “golden apple.”


The poor taste and lack of sugar in modern garden and commercial tomato varieties resulted from breeding tomatoes to ripen uniformly red. This change occurred after discovery of a variety in the mid-20th century that ripened uniformly. This was widely cross-bred to produce red fruit without the typical green ring around the stem on uncross-bred varieties. Prior to general introduction of this trait, most tomatoes produced more sugar during ripening, and were sweeter and more flavorful.

New World cultigens transformed Old World cuisine immeasurably, and arguably the tomato, because of its versatility, had the greatest impact of them all. Imagine southern Italian cooking without the tomato, for example. Think of all of the tomato’s uses as juice, paste, cooked, and raw – Bloody Mary, gazpacho, ketchup, chutneys . . . If you are stuck for a party game try reciting the alphabet naming foods using tomatoes.

You may notice that in my recipes I often specify canned tomatoes for stews and sauces. This is a special case where a canned product is to be preferred over the fresh or frozen version. Fresh tomatoes do not provide the richness that canned ones do in most instances. This is not to say that you cannot use fresh ones, but the taste will be different. When I make chili, for example, I use either fresh or canned depending on what I have on hand. Both are good, but I prefer the version made with canned. I am not entirely sure why canned (commercial or homemade) tomatoes have this effect, but I suspect it is because they are double cooked – once in the cooking process, and second in the dish – thus giving time for the flavors to develop.

I had to think long and hard before selecting a recipe for today. I’ve created my own gazpacho sorbet which is really refreshing as a starter for a summer meal which I really like, and I thought might be a winner. But in the end I decided to thwart the findings of Nix v Hedden and give you a recipe for tomatoes used in a dessert. Chefs have experimented with using tomatoes in sweet dishes for some time. You’ll find recipes for tomato ice creams, sorbets, and granitas, for example. However, the flavor of red tomatoes is not especially conducive to heavy sweetening, and a large number of such recipes incorporate other fruits, such as plums or strawberries (botanically NOT a fruit!), to add flavor. Green tomatoes are a different matter. They can easily be incorporated into cooked dessert dishes as in the traditional Southern green tomato pie. This pie is no more than a standard apple pie recipe replacing the apples with green tomatoes. Gardeners are always trying to figure out uses for end of season green tomatoes and often end up pickling or frying them. Here’s your chance to widen your horizons. You can use your favorite apple pie recipe. Here is just one example from North Carolina. You will find an excellent recipe for the pastry under my Hints tab.


Green Tomato Pie


1 ½ cups sugar
5 tbsps all purpose flour
2 tsps ground cinnamon
pinch salt
3 cups thinly sliced green tomatoes
1 tbsp cider vinegar
pastry for double-crust pie (9 inches)
1 tablespoon butter
1 egg, beaten


Mix the sugar, flour, cinnamon, and salt in a large bowl. Add the tomatoes and vinegar, and toss so that the tomatoes are evenly coated.

Line a pie plate with a bottom crust. Add the filling and dot it evenly with butter.

Roll out the remaining pastry and cut it into strips to make a lattice top crust (or you can simply top the pie with a regular crust).

Brush the crust with egg, and bake in a 350°/175°C oven for 1 hour.

Cool on a wire rack to room temperature.

Serve chilled or at room temperature.