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- 15490
- extracted_at
- 2026-01-18T02:42:20.410Z
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- structure-extraction-lambda
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- 15430
- text
- 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.
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