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🎤051 Moby Full Text Ch89

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

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-General1 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 Pandects2 and the By-laws of the Chinese Society for the Suppression of Meddling with other People’s Business.3 Yes; these laws might be engraven on a Queen Anne’s farthing,4 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-Littleton5 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-trover6 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. Erskine7 was counsel for the defendants; Lord Ellenborough8 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.9 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,10 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,11 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 lb. 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,12 is poor Ireland, but a Fast-Fish? What to that apostolic lancer, Brother Jonathan,13 is Texas but a Fast-Fish?14 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?15 What Greece to the Turk?16 What India to England? What at last will Mexico be to the United States?17 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?

FOOTNOTES

Footnotes

  1. States-General: The Dutch parliament, formally the Staten-Generaal, the governing body of the Dutch Republic (and still the name of the Netherlands’ parliament today). The Netherlands was the dominant whaling nation of the 17th century, and its 1695 whaling code was the only attempt by any government to formally codify whale-fishery law before the American fishermen developed their own unwritten customs. ↩

  2. Justinian’s Pandects: The Digest or Pandects, compiled by order of the Byzantine Emperor Justinian I (r. 527–565 CE) and completed in 533 CE — a massive 50-book distillation of centuries of Roman juristic writings, covering property, contracts, obligations, inheritance, and family law. It forms the core of the Corpus Juris Civilis and remains the foundation of civil law systems across Europe and Latin America to this day. Melville’s joke: the two-sentence whaling code — “A Fast-Fish belongs to the party fast to it. A Loose-Fish is fair game” — surpasses this entire edifice of Western legal thought for “terse comprehensiveness.” ↩

  3. The By-laws of the Chinese Society for the Suppression of Meddling with other People’s Business: An entirely invented organization — pure Melville deadpan. There is no such society. The joke lands because the name sounds plausible enough that readers pause for a moment before realizing they’ve been had. ↩

  4. Queen Anne’s farthing: A farthing (one-quarter of a penny) minted during the reign of Queen Anne (r. 1702–1714). The farthings of her reign were particularly small and thin, making them proverbial for tininess. By Melville’s time “Queen Anne’s farthing” was standard idiom for something vanishingly small — the whaling code could be engraved on it and still have room. ↩

  5. Coke-upon-Littleton: Coke upon Littleton — Sir Edward Coke’s massive, authoritative commentary (1628) on Sir Thomas Littleton’s 15th-century treatise on property law. Together they formed the foundational text of English common law for nearly two centuries. “The Coke-upon-Littleton of the fist” means: the definitive legal authority, settled by punching. This is one of Melville’s better throwaway lines. ↩

  6. Whale-trover: Trover is a common law action for the recovery of the value of personal property that has been wrongfully converted by another party — essentially a civil lawsuit for stolen goods. “Whale-trover” is Melville’s term for applying this standard property-law framework to a disputed whale. MEL confirms that Melville drew the details of this case directly from an appendix to Volume 2 of William Scoresby’s Account of the Arctic Regions (1820) — Scoresby was a real whaling captain and naturalist who documented actual legal disputes from the Northern fishery. ↩

  7. Mr. Erskine: Thomas Erskine, 1st Baron Erskine (1750–1823), the most celebrated British barrister of his era, famous for his wit, eloquence, and willingness to take difficult or unpopular cases. He successfully defended defendants in several famous treason and seditious libel trials in the 1790s. His courtroom analogies were legendarily clever — the whale/abandoned-wife parallel described here is entirely in character. He later served briefly as Lord Chancellor. ↩

  8. Lord Ellenborough: Edward Law, 1st Baron Ellenborough (1750–1818), Chief Justice of the King’s Bench from 1802 until his death — the highest common law judge in England. MEL notes he favored governmental authority. His ruling here — the boat goes back to the plaintiffs (abandoned under duress), but the whale and equipment belong to whoever caught it (Loose-Fish at time of capture) — is a model of strict property logic applied without much sentiment. ↩

  9. Crim. con.: Abbreviation for criminal conversation — the legal term in English common law for adultery, specifically the civil action a husband could bring against the man who had seduced his wife. Despite the anodyne legal name, the damages could be substantial. The action was abolished in England in 1857. Melville’s use of it here — analogizing the abandoned wife to an abandoned whale, both becoming “Loose-Fish” available for re-capture — is both funny and quietly savage about the legal status of women as property. ↩

  10. The Temple of the Philistines: A reference to Judges 16:23–30 — the story of Samson, blinded and imprisoned by the Philistines, who is brought to their temple to be mocked. He asks to lean against the two central pillars, prays for strength, and brings the whole structure down on himself and three thousand Philistines. Melville’s point: the entire elaborate edifice of law, for all its ornamental complexity, rests on just two pillars — Fast-Fish and Loose-Fish. Pull them out and everything collapses. ↩

  11. Mordecai: Melville uses a Jewish name for his predatory moneylender — an uncomfortable deployment of an antisemitic stereotype that was common in 19th-century literature. Worth flagging for your listeners: this is one of several places in Melville where the period’s casual prejudices surface in the text. ↩

  12. John Bull: The personification of England — the blunt, beef-eating, bulldog-tenacious national character, equivalent to America’s Uncle Sam. The image was established by John Arbuthnot’s 1712 political satire and remained current throughout the 19th century. Melville is being pointed: England’s claim on Ireland is a Fast-Fish — held by power and possession, regardless of how it came to be held. ↩

  13. Brother Jonathan: The American national personification that preceded and was eventually displaced by Uncle Sam. Where Uncle Sam is lean and formal, Brother Jonathan was depicted as shrewd, practical, and slightly rustic — the Yankee trader. In Melville’s time both figures were in use; “Brother Jonathan” was particularly associated with New England commercial culture. ↩

  14. Texas but a Fast-Fish: Texas had been annexed by the United States in 1845, just six years before Moby-Dick was published — after years of conflict with Mexico, who never recognized Texan independence. The annexation was bitterly controversial and directly triggered the Mexican-American War (1846–1848). Melville is being acutely political: Texas was seized, waifed, and held. His next line — “What at last will Mexico be to the United States?” — implies the answer is obvious and grim. This is one of the most pointed political moments in the novel. ↩

  15. Poland to the Czar: Poland had been partitioned out of existence in 1795 between Russia, Prussia, and Austria. The Russian Empire’s portion — the largest — was administered with increasing repression through the 19th century. The Polish uprisings of 1830–31 and 1863 were crushed by Russian forces. For Melville’s readers, “Poland to the Czar” was a live symbol of imperial possession by brute force. ↩

  16. Greece to the Turk: The Greek War of Independence (1821–1829) — Greece’s successful revolt against four centuries of Ottoman rule — was one of the great romantic causes of the early 19th century, attracting European volunteers including Lord Byron. Melville is listing recent or ongoing examples of the Fast-Fish/Loose-Fish principle in action: Poland (still occupied), Greece (recently freed), India (very much occupied), Texas (just annexed). ↩

  17. What at last will Mexico be to the United States?: Written in the immediate aftermath of the Mexican-American War (1846–1848), in which the United States seized roughly half of Mexico’s territory — what is now California, Nevada, Utah, Arizona, New Mexico, and parts of Colorado and Wyoming. The Treaty of Guadalupe Hidalgo (1848) formalized the transfer. Melville is not celebrating this. The question “what at last will Mexico be?” reads as a dark prediction that the process is not finished — and a moral indictment of possession-as-law. ↩

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