_ 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 forthing, 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 honourable 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 L100,000 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 L100,000 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? _