Chapter Chapter 89 · Fast-Fish and Loose-Fish.

The allusion to the waif and waif-poles in the last chapter but one,

necessitates some account of the laws and regulations of the whale

fishery, of which the waif may be deemed the grand symbol and badge.

It frequently happens that when several ships are cruising in company,

a whale may be struck by one vessel, then escape, and be finally killed

and captured by another vessel; and herein are indirectly comprised

many minor contingencies, all partaking of this one grand feature. For

example,—after a weary and perilous chase and capture of a whale, the

body may get loose from the ship by reason of a violent storm; and

drifting far away to leeward, be retaken by a second whaler, who, in a

calm, snugly tows it alongside, without risk of life or line. Thus the

most vexatious and violent disputes would often arise between the

fishermen, were there not some written or unwritten, universal,

undisputed law applicable to all cases.

Perhaps the only formal whaling code authorized by legislative

enactment, was that of Holland. It was decreed by the States-General in

A.D. 1695. But though no other nation has ever had any written whaling

law, yet the American fishermen have been their own legislators and

lawyers in this matter. They have provided a system which for terse

comprehensiveness surpasses Justinian’s Pandects and the By-laws of the

Chinese Society for the Suppression of Meddling with other People’s

Business. Yes; these laws might be engraven on a Queen Anne’s farthing,

or the barb of a harpoon, and worn round the neck, so small are they.

I. A Fast-Fish belongs to the party fast to it.

II. A Loose-Fish is fair game for anybody who can soonest catch it.

But what plays the mischief with this masterly code is the admirable

brevity of it, which necessitates a vast volume of commentaries to

expound it.

First: What is a Fast-Fish? Alive or dead a fish is technically fast,

when it is connected with an occupied ship or boat, by any medium at

all controllable by the occupant or occupants,—a mast, an oar, a

nine-inch cable, a telegraph wire, or a strand of cobweb, it is all the

same. Likewise a fish is technically fast when it bears a waif, or any

other recognised symbol of possession; so long as the party waifing it

plainly evince their ability at any time to take it alongside, as well

as their intention so to do.

These are scientific commentaries; but the commentaries of the whalemen

themselves sometimes consist in hard words and harder knocks—the

Coke-upon-Littleton of the fist. True, among the more upright and

honorable whalemen allowances are always made for peculiar cases, where

it would be an outrageous moral injustice for one party to claim

possession of a whale previously chased or killed by another party. But

others are by no means so scrupulous.

Some fifty years ago there was a curious case of whale-trover litigated

in England, wherein the plaintiffs set forth that after a hard chase of

a whale in the Northern seas; and when indeed they (the plaintiffs) had

succeeded in harpooning the fish; they were at last, through peril of

their lives, obliged to forsake not only their lines, but their boat

itself. Ultimately the defendants (the crew of another ship) came up

with the whale, struck, killed, seized, and finally appropriated it

before the very eyes of the plaintiffs. And when those defendants were

remonstrated with, their captain snapped his fingers in the plaintiffs’

teeth, and assured them that by way of doxology to the deed he had

done, he would now retain their line, harpoons, and boat, which had

remained attached to the whale at the time of the seizure. Wherefore

the plaintiffs now sued for the recovery of the value of their whale,

line, harpoons, and boat.

Mr. Erskine was counsel for the defendants; Lord Ellenborough was the

judge. In the course of the defence, the witty Erskine went on to

illustrate his position, by alluding to a recent crim. con. case,

wherein a gentleman, after in vain trying to bridle his wife’s

viciousness, had at last abandoned her upon the seas of life; but in

the course of years, repenting of that step, he instituted an action to

recover possession of her. Erskine was on the other side; and he then

supported it by saying, that though the gentleman had originally

harpooned the lady, and had once had her fast, and only by reason of

the great stress of her plunging viciousness, had at last abandoned

her; yet abandon her he did, so that she became a loose-fish; and

therefore when a subsequent gentleman re-harpooned her, the lady then

became that subsequent gentleman’s property, along with whatever

harpoon might have been found sticking in her.

Now in the present case Erskine contended that the examples of the

whale and the lady were reciprocally illustrative of each other.

These pleadings, and the counter pleadings, being duly heard, the very

learned judge in set terms decided, to wit,—That as for the boat, he

awarded it to the plaintiffs, because they had merely abandoned it to

save their lives; but that with regard to the controverted whale,

harpoons, and line, they belonged to the defendants; the whale, because

it was a Loose-Fish at the time of the final capture; and the harpoons

and line because when the fish made off with them, it (the fish)

acquired a property in those articles; and hence anybody who afterwards

took the fish had a right to them. Now the defendants afterwards took

the fish; ergo, the aforesaid articles were theirs.

A common man looking at this decision of the very learned Judge, might

possibly object to it. But ploughed up to the primary rock of the

matter, the two great principles laid down in the twin whaling laws

previously quoted, and applied and elucidated by Lord Ellenborough in

the above cited case; these two laws touching Fast-Fish and Loose-Fish,

I say, will, on reflection, be found the fundamentals of all human

jurisprudence; for notwithstanding its complicated tracery of

sculpture, the Temple of the Law, like the Temple of the Philistines,

has but two props to stand on.

Is it not a saying in every one’s mouth, Possession is half of the law:

that is, regardless of how the thing came into possession? But often

possession is the whole of the law. What are the sinews and souls of

Russian serfs and Republican slaves but Fast-Fish, whereof possession

is the whole of the law? What to the rapacious landlord is the widow’s

last mite but a Fast-Fish? What is yonder undetected villain’s marble

mansion with a door-plate for a waif; what is that but a Fast-Fish?

What is the ruinous discount which Mordecai, the broker, gets from poor

Woebegone, the bankrupt, on a loan to keep Woebegone’s family from

starvation; what is that ruinous discount but a Fast-Fish? What is the

Archbishop of Savesoul’s income of £100,000 seized from the scant bread

and cheese of hundreds of thousands of broken-backed laborers (all sure

of heaven without any of Savesoul’s help) what is that globular

£100,000 but a Fast-Fish? What are the Duke of Dunder’s hereditary

towns and hamlets but Fast-Fish? What to that redoubted harpooneer,

John Bull, is poor Ireland, but a Fast-Fish? What to that apostolic

lancer, Brother Jonathan, is Texas but a Fast-Fish? And concerning all

these, is not Possession the whole of the law?

But if the doctrine of Fast-Fish be pretty generally applicable, the

kindred doctrine of Loose-Fish is still more widely so. That is

internationally and universally applicable.

What was America in 1492 but a Loose-Fish, in which Columbus struck the

Spanish standard by way of waifing it for his royal master and

mistress? What was Poland to the Czar? What Greece to the Turk? What

India to England? What at last will Mexico be to the United States? All

Loose-Fish.

What are the Rights of Man and the Liberties of the World but

Loose-Fish? What all men’s minds and opinions but Loose-Fish? What is

the principle of religious belief in them but a Loose-Fish? What to the

ostentatious smuggling verbalists are the thoughts of thinkers but

Loose-Fish? What is the great globe itself but a Loose-Fish? And what

are you, reader, but a Loose-Fish and a Fast-Fish, too?