" /2/ I may also refer to the cases of capture,
some of which will be cited again. In the Greenland
whale-fishery, by the English custom, if the first striker lost
his hold on the fish, and it was then killed by another, the
first had no claim; but he had the whole if he kept fast to the
whale until it was struck by the other, although it then broke
from the first harpoon. By the custom in the Gallipagos, on the
other hand, the first striker had half the whale, although
control of the line was lost. /3/ Each of these customs has been
sustained and acted on by the English courts, and Judge Lowell
has decided in accordance with still a third, which gives the
whale to the vessel whose iron first remains in it, provided
claim be made before cutting in. /4/ The ground as put by Lord
Mansfield is simply that, were it not for such customs, there
must be a sort of warfare perpetually subsisting between the
adventurers. /5/ If courts adopt different rules on similar
facts, according to the point at which men will fight in the
[213] several cases, it tends, so far as it goes, to shake an a
priori theory of the matter.
Those who see in the history of law the formal expression of the
development of society will be apt to think that the proximate
ground of law must be empirical, even when that ground is the
fact that a certain ideal or theory of government is generally
entertained.
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