Chapter 91.00: CHAPTER 89. Fast-Fish and Loose-Fish.

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CHAPTER 89. Fast-Fish and Loose-Fish.
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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?