The role of captives and the rule of capture.

• Author: VanderVelde, Lea
• Position: The Rule of Capture and Its Consequences

1. INTRODUCTION II. THE RULE OF CAPTURE III. PHILOSOPHICAL GROUNDING OF THE RULE OF CAPTURE IN THE WEST A. Locke's Philosophy Shapes Capture in the West B. Captors Versus Original Inhabitants C. The Captor and His Servant D. Captive Peoples in Aid of Captors E. Captive People in Discovery IV. A SLAVE'S ROLE IN THE CORPS OF DISCOVERY A. York's Role During the Expedition B. York and Clark's Relationship Upon Return V. SLAVES' ROLE IN THE PROCESS OF CONQUEST VI. SLAVES' ROLE IN THE SETTLEMENT PHASE VII. CONCLUSION I. INTRODUCTION

   The newly minted statue in the new American Indian Museum in the nation's capital depicts only three figures: Meriwether Lewis, William Clark and Sacagawea. The historical encounter symbolizes an important part of the American national character: European settlers' interaction with Native American cultures. Absent from the grouping is a person of a very different heritage and status, who was present on the famous voyage of discovery as a significant member of the team--a character without whom the venture would have perished into yet another doomed quest. York, Clark's slave, who by the famed explorers' own accounts played a critical role in ensuring the expedition returned to tell the tale, is not depicted in the newly cast icon to celebrate the national museum. In this bicentennial year of the Corps of Discovery, it is appropriate to reconsider his contributors and his fate.

   Various sculptures of the heroic explorers placed around the nation differ slightly. Compositions include Lewis and Clark alone, Lewis and Clark with a dog, and Lewis and Clark with Sacagawea. (1) When York is present, he is usually standing alone, representing an afterthought of compensatory history. Although this public historical art reveals much about American biases, (2) this essay is not about our public art--it is about meaning, legitimation, and the functional consequences of our methods, practices, and laws of capture, conquest, and exploration.

   The new museum's statue suggests that York's contributions are still overlooked in the nation's story of "discovery." Not only was York denied the reputational fame, both during his life and after death, that he undoubtedly deserved, but the tragic outcome of York's life suggests that this captive, utilized in the American master plan of conquest and manifest destiny, could not even insist upon his own independence as a result of his extraordinary deeds. This symposium on the law of capture in celebration of the two hundredth anniversary of the Lewis and Clark expedition allows us the opportunity to consider the role of captives in the rule of capture in the Northwest, where much of the story of American exploration is set. The rule of capture played a central role in American exploration and expansion because it fixed the legitimacy of original title to property.

   The rule of capture is a priority of dominion, though dominion is always implicitly delimited by the instrumentalities used to acquire the resource or keep it in place. Locke, and later Blackstone, included the likelihood that other people--the servants, slaves, hands, or domestics--could extend and expand the reach of their master, who had dominion over them. The rule of capture need not intrinsically entail the subordination of some people to the control and profit of others, but it was historically applied to this end, and it was expressed philosophically in those very terms. By questioning the underlying assumptions of the rule of capture, we can investigate and consider whether, historically, captors were given more reach than was prudent by denying parallel liberties to persons in their thrall.

   York's pivotal role in the success of the Corps of Discovery provides a vehicle to interrogate the legitimacy of the law of conquest, the law of property, and the rule of capture. We traditionally expunge York, and others like him, from our history until we make compensatory strides to re-include them. York's very presence confuses the legitimating legends we tell about the propriety of how the American West became part of the American polity. As commemorations of first events occasion reflection, it is time to explore the role of captives in three different ways. First, in terms of philosophical grounding, second, in actual historical experience, and finally, in practical economic consequences for distributional ends.

2. THE RULE OF CAPTURE

   The rule of capture patrols the boundaries between property, work, and liberty. The capture rule sets the perimeter around what has been captured, withdraws it from the public domain, and conveys it to the captor as private property. (3) Implicitly, the capture rule defines what can be captured, who can be a captor, and the appropriate means of capture. What entities are subject to the capture rule implicates philosophical and practical questions of propriety and commodifiability. Each new species of property subject to capture, whether fuzzy leukocytes, stem cells, songs, breath patterns, lands, or navigable waters, must be deemed open for capture to be subject to the rule. Of these related questions, however, I focus on instrumentalities and the important question of whether human beings can be instrumentalities of another's capture claim.

   Implicit in any sort of resource law regime is the question of whether the instrumentalities used in the capture of the resource are appropriate means. As the conference demonstrates, the rule of capture has been applied to a wide variety of natural resources. (4) Fish and frogs cannot legitimately be captured by hurling a bomb into a stream to kill them--notwithstanding the humorous, enterprising actions in the Triplets of Belleville. (5) All natural resource legal systems develop corollary rules that limit capture. These rules designate appropriate instrumentalities of capture so that the resource can be captured without polluting the source, unfairly hampering other potential captors, or destroying the renewability of the stock or flow. For example, in many jurisdictions, salmon cannot be taken by wheels or nets. Similarly, timber, grass, ferae naturae, and water all have their own subject-specific limitations about what means of capture are appropriate. (6) A captor's use of illegitimate instrumentalities will cause the captor either to forfeit the claim altogether or to limit the scope of his or her claim to what could have been taken had appropriate means been utilized. (7)

   The famous case of Pierson v. Post, (8) that exemplar of property law known for introducing the rule of capture to first year law students, can be seen as a question of instrumentality: whether the efficient instrumentality of knifing a fox trapped in a well should overcome the more traditional, but cumbersome, instrumentality of running a fox to death with hounds. (9) New technologies sometimes allow one person to collect too much of a limited resource intended for the benefit of all. New technological means that increase the efficiency of capture inevitably give rise to legal challenges of the new means as not just unsporting, but downright unfair. (10) In addition, the competitive advantage of these new technologies means that the threshold is often higher for entry into competitive appropriation of the resource. People utilizing the older technologies for their subsistence can often be outmaneuvered in competition and practically foreclosed from harvesting the resource.

   The approval of instrumentalities thus mediates the competition between potential captors by declaring some means permissible and others banned. In later stages of resource management schemes, appropriate instrumentalities are determined by regulation. (11) But in frontier settings, or cases of first impression, they are determined by judicial recognition. (12)

   The selection of appropriate instrumentalities performs another important task. It sets proportionality limits on the amount of the resource captured. Thus, those instrumentalities deemed legitimate under the law of capture (or sometimes the law of unfair competition) create a proportionality limit on private claims against the commons. One can take for one's own as much as one can acquire by legitimate means, but not by utilizing a solution to the capture problem that is likely to overharvest the resource or waste it for others. This statement of the rule of capture is the inverse of the way the rule is traditionally portrayed. Instead of "you can eat what you kill," the instrumentality-limiting rule becomes "you can kill as much as you will eat." As I wish to demonstrate later in the essay, this rationale is part of Locke's original rhetorical justification that should have qualified the ethical reach of the capture rule. (13)

   If capture is done with something other than the captor's bare hands, such as his tools, or his animals, Locke's justification is less applicable. (14) FreSher, if the instrumentality employed is not nets, traps, guns, or hounds and horses, but instead other potential competitors for the crown of capture, Locke's legitimation argument for acquisition becomes even blurrier. When a capture is completed by a man's servant, property theorists should question whether that capture be declared private property of the master or of the person who established the perimeter around the wild thing. Furthermore, when and why should the master be able to deputize others to capture from the commons in his name? More importantly, as this essay explores, in the case of the American history of slavery and frontier, when should the master's captive hold on human beings themselves be the basis for extending his reach over other free or wild things? Certainly, if instrumentalities impose limits on a captor's reach, the captor who can expand his reach by controlling other human beings has virtually no limit to the amount of a resource that he or she can capture and come to control.

   When captive persons are employed...