CHAPTER 89
Fast-Fish and Loose-Fish
The allusion to the waifs 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 recognized symbol
of possession; so long as the party wailing 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 doorplate
for a waif; what is that but a Fast-Fish? What is the ruinous discount which
Mordecai, the broker, gets from the 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 pounds 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 wailing 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?
