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Page 440


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.


Page 441

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


Page 442
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

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 plaintiffs afterwards took
the fish; ergo, the aforesaid articles were theirs.


Page 443

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.


Page 444

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?