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The role of captives and the rule of capture.

  I. 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 American Indian
 or Native American or Amerindian or indigenous American

Any member of the various aboriginal peoples of the Western Hemisphere, with the exception of the Eskimos (Inuit) and the Aleuts.
 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 bi·cen·ten·ni·al  
adj.
1. Happening once every 200 years.

2. Lasting for 200 years.

3. Relating to a 200th anniversary.

n.
A 200th anniversary or its celebration. Also called bicentenary.
 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 manifest destiny, belief held by many Americans in the 1840s that the United States was destined to expand across the continent, by force, as used against Native Americans, if necessary. , 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 Lewis and Clark expedition, 1803–6, U.S. expedition that explored the territory of the Louisiana Purchase and the country beyond as far as the Pacific Ocean.  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 de·lim·it   also de·lim·i·tate
tr.v. de·lim·it·ed also de·lim·i·tat·ed, de·lim·it·ing also de·lim·i·tat·ing, de·lim·its also de·lim·i·tates
To establish the limits or boundaries of; demarcate.
 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 To destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information—including criminal records—in files, computers, or other depositories.  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.

II. 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 stem cells, unspecialized human or animal cells that can produce mature specialized body cells and at the same time replicate themselves. Embryonic stem cells are derived from a blastocyst (the blastula typical of placental mammals; see embryo), which is very young , songs, breath patterns, lands, or navigable waters Waters that provide a channel for commerce and transportation of people and goods.

Under U.S. law, bodies of water are distinguished according to their use. The distinction is particularly important in the case of so-called navigable waters, which are used for business or
, 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 Adj. 1. implicit in - in the nature of something though not readily apparent; "shortcomings inherent in our approach"; "an underlying meaning"
underlying, inherent
 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 [Latin, Of a wild nature or disposition.]

Animals that are wild by nature are called ferae naturae, and possession is a means of acquiring title to such animals.
, 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 Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264[1] (N.Y. 1805)[2], is a famous Supreme Court of New York case about a disagreement over a dead fox. , (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 Instrumentality

Notes issued by a federal agency whose obligations are guaranteed by the full-faith-and-credit of the government, even though the agency's responsibilities are not necessarily those of the US government.
: 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 dep·u·tize  
tr. & intr.v. dep·u·tized, dep·u·tiz·ing, dep·u·tiz·es
To appoint or serve as a deputy.



dep
 others to capture from the commons in his name? More importantly, as this essay explores, in the case of the American history of slavery The history of slavery covers many different forms of human exploitation across many cultures and throughout human history. Slavery, generally defined, refers to the systematic exploitation of labor for work and services without consent and/or the possession of other persons as  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 to accomplish these ends, the question arises whether human beings can appropriately be the subject of capture. If so, are human beings subject to capture partially or in totality? Even partial captivity involves a limit set upon human freedom and a deprivation of some range of liberties. If we assume enslavement en·slave  
tr.v. en·slaved, en·slav·ing, en·slaves
To make into or as if into a slave.



en·slavement n.
 is embedded in all the stages of conquest and all the earliest acts of capture from whence legitimate title is said to date, does that not further delegitimate our story of origin, and question whether we as a nation prevailed rightfully? After all, one purpose of stories of origin is to function as legitimating legends. Stories of origin determine the propriety of states much as they do the starting point Noun 1. starting point - earliest limiting point
terminus a quo

commencement, get-go, offset, outset, showtime, starting time, beginning, start, kickoff, first - the time at which something is supposed to begin; "they got an early start"; "she knew from the
 of legal title to things formerly deemed to belong to the commons. (15) The title to our lands, the scope of our lawful jurisdiction, and the purity of the deeds that brought us to the present state of sovereignty are implicated im·pli·cate  
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly: evidence that implicates others in the plot.

2.
 by York's presence in the Corps of Discovery as it traveled through western lands and the philosophical articulation of the capture rule which came to apply to those lands.

III. PHILOSOPHICAL GROUNDING OF THE RULE OF CAPTURE IN THE WEST

The philosophical framing of the rule of capture hides the ball of legitimacy. By focusing on the act and moment of capture, the rule begs the question of whether the resource was actually a commons open to privatization privatization: see nationalization.
privatization

Transfer of government services or assets to the private sector. State-owned assets may be sold to private owners, or statutory restrictions on competition between privately and publicly owned
. Both conquest and the rule of capture are allowed to run free in that historically imaginary place Noun 1. imaginary place - a place that exists only in imagination; a place said to exist in fictional or religious writings
fictitious place, mythical place
 known as "the frontier." (16) The frontier is open: for settlement, for capture, for domination. "Manifest destiny" made it a national imperative. (17)

The colonization of any frontier can be seen as comprising three phases: discovery, conquest, and settlement. Although we tend to regard the frontier as a fresh domain in which to exercise a variety of liberties, slaves and slavery seem to have been present, and played significant functional roles, in each of these three phases of American western colonization. (18) The capture rule is a key mechanism in converting the frontier to the more settled norm. (19) In some ways, the capture rule is that rule of gonzo gon·zo  
adj. Slang
1. Using an exaggerated, highly subjective style, especially in journalism: "a hyperkinetic, gonzo version of Graham Greene" New Yorker.

2.
 frontierism (property) that makes self-interested acquisition proper. It appeals to the Hunter S. Thompson in all of us.

The "rule of capture" transforms the frontier into the settled part of the polity through acts of appropriation. The function of capture unmistakably parallels the field of its domain: conquest. The conquering sovereign decides who can be a captor and what means--including other humans as instruments--can be employed to that end. The capture rule articulates and legitimizes the grounds on which conquest dispossesses others. It makes the actions of conquest and dispossession The wrongful, nonconsensual ouster or removal of a person from his or her property by trick, compulsion, or misuse of the law, whereby the violator obtains actual occupation of the land. Dispossession encompasses intrusion, disseisin, or deforcement.  proper: property in the captor. The rhetorical work of the word "proper" is embedded in arguments of "property." Compare "proprietary" to "propriety," and "appropriate," the verb to "appropriate," the adjective. (20)

The capture rule serves all those marvelous objectives of convenience that we extol ex·tol also ex·toll  
tr.v. ex·tolled also ex·tolled, ex·tol·ling also ex·toll·ing, ex·tols also ex·tolls
To praise highly; exalt. See Synonyms at praise.
 in bright-line property rules. Between multiple captors, the rule identifies a single one, the first captor, for pre-eminence of right. "First in time, first in right" is a convenient "singulator" and decision rule since there is almost always only one chronological first. (21) Similarly, in most cases of conquest, there is only one dominant sovereign who will prevail in conquest. Convenient outcomes provide neat legal solutions.

It may seem axiomatic ax·i·o·mat·ic   also ax·i·o·mat·i·cal
adj.
Of, relating to, or resembling an axiom; self-evident: "It's axiomatic in politics that voters won't throw out a presidential incumbent unless they think his challenger will
 then that the captive cannot be a captor. Certainly this was true in very ancient sources. The Hindu Laws of Manu make clear that the slave acquires only for a master. (22) Further, "[a] priest may with confidence take away any possession from a servant; for since nothing at all can belong to him as his own, his property can be taken away by his master." (23) But the portent of invoking this ancient rule is ambiguous: does this ancient rule legitimize le·git·i·mize  
tr.v. le·git·i·mized, le·git·i·miz·ing, le·git·i·miz·es
To legitimate.



le·git
 the mastery concept as universal, or does it instead relegate rel·e·gate  
tr.v. rel·e·gat·ed, rel·e·gat·ing, rel·e·gates
1. To assign to an obscure place, position, or condition.

2. To assign to a particular class or category; classify. See Synonyms at commit.
 it to the realm of barbarity from which we wish to depart and begin anew progressively on the frontier On the Frontier: A Melodrama in Two Acts, by W. H. Auden and Christopher Isherwood, was the third and last play in the Auden-Isherwood collaboration, first published in 1938. ?

The servant, the slave, the apprentice, and the agent all exercise their efforts of labor for the benefit of their masters. (24) Yet, when the capture takes place in the wilderness, it seems to be a very special case of respondeat superior [Latin, Let the master answer.] A common-law doctrine that makes an employer liable for the actions of an employee when the actions take place within the scope of employment.

The common-law doctrine of respondeat superior
, if at all, because the commons is supposed to be exactly that: held in common with other beings. Respondeat superior would award the employer the fruits of the employee's labor on his farm or in his factory, but why should that be the case in the unowned wilderness, where the employer has no greater claim as a tenant of the commons than does the employee? Should a person's status as servant necessarily forever preclude the ability to extend their efforts for capture on their own behalf?. Is the servant always the instrumentality of property acquisition and never the receiver of acquired property?

A. Locke's Philosophy Shapes Capture in the West

It was Blackstone's precursor, John Locke, who was the architect of the capture rule for American purposes. (25) John Locke, said to be the originator of the labor theory of property The labor theory of property is a natural law theory that holds that property originally comes about by the exertion of labor upon natural resources. (This is not to be confused with a labor theory of value). , provided its philosophical grounding. (26) In his expansive treatise on the propriety of government) John Locke also constructed the ethical propriety of conquest and of slavery. (27) In Locke's treatment of the rule of capture, conquest, and slavery lies an eerily anomalous argument. By legitimizing conquest and slavery, Locke effectively paved the way for the claim that European descendent settlers were the only people appropriate to establish a legitimate claim to land and resources on the continent. He did this despite using a rule that resonates with the priority of first use as well as the priority of labor to justify its legitimacy. Written in 1690, John Locke's The Treatises of Government (28) expunges the Native American territorial claim and simultaneously allows the settlers servant to expand the reach the settler could otherwise attain as a single householder. With this two-sided wedge, Locke effectively negates the claims of other peoples, Native Americans, who could be said to be prior users, as well as the claims of slaves or servants, who could claim to have actually performed the labor. (29)

Locke seemingly bypassed or ignored the implicit contradiction that slaves who labor, and hence perform the meritorious work which justifies the award of ownership, could not by their labor accrue any benefit. But Locke's consideration of slavery did include some limiting conditions. (30) These limiting conditions were swept away when the rule was later applied in the American West.

B. Captors Versus Original Inhabitants
:This article is about the video game. For Inhabitants of housing, see Residency
Inhabitants is an independently developed commercial puzzle game created by S+F Software. Details
The game is based loosely on the concepts from SameGame.
 

Locke invokes the claim of Native Americans at the outset of his discussion of the rule of capture. He writes:</p> <pre> The Fruit, or Venison venison (vĕn`ĭzən) [O.Fr.,=hunting], term formerly applied to the flesh of any wild beast or game hunted and used for food but now restricted to the flesh of members of the deer family. , which nourishes the wild Indian, who knows no Inclosure, and is still a Tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his Life. (31) </pre> <p>Thus, in Locke's words, the "wild Indian" who "knows no Inclosure," cannot be an original appropriator who needs to be acknowledged or reckoned with. Knowing no enclosure, the wild Indian has no claim to ratione soli Ratione soli is a Latin phrase meaning "according to the soil." In property law, it is a justification for assigning property rights to landowners over resources found on their own land. References . (32) Locke positions the Indian as lacking even a territorial claim because the Indian knows no enclosure. In Locke's script, the Indian is a drifter with claims only to the food that nourishes him at the moment he gathers it.

In this respect, the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  legislature took a slightly more respectful position toward Indian territorial claims by insisting that the government pursue a practice of treaty negotiation to induce tribes to relinquish their territorial claims before the land would be opened for legal title settlement. (33) Whether the American government's insistence upon "treating" with the Indian tribes was a matter of constitutional limitation or pragmatic conflict resolution, the American government recognized that tribes did hold specific territorial claims to sites and resources. (34)

In fact, there was considerable conflict between tribes and settlement outposts all across the moving frontier whenever the settlers alighted to seize the same ideal locations on resources, rivers, and bluffs that the Northern Indians had used for regular annual hunting and gathering practices. Reading Indian Agent Noun 1. Indian agent - a representative of the federal government to American Indian tribes (especially on Indian reservations)
federal agent, agent - any agent or representative of a federal agency or bureau
 Lawrence Taliaferro's eighteen year diary, (35) one comes to the conclusion that newly-arriving white settlers routinely selected as their best sites those sites that had been used and recognized as particularly desirable and advantageous for generations by the local tribespeople tribes·peo·ple  
pl.n.
1. The people of one's own tribe.

2. An aboriginal people living in tribes: the tribespeople of the Kalahari Desert. 
. (36) For example, in 1833, a trader named Joseph Brown erected a fence and cabin in an area along the upper Mississippi then known as the Olive Grove Olive Grove was Sheffield Wednesday F.C.'s first permanent football ground, home to the club for just over a decade at the end of the 19th Century. It was located near Queens Road in the centre of Sheffield.  or Oliver's Grove. (37) The resident Mdeketowan Dakota tribe complained that Brown's cabin and enclosure at that particular spot were scaring away the deer from a place that the tribe regularly hunted. The cabin stood where the deer normally watered. Brown viewed himself as the first appropriator of the site, but the Mdeketowan tribe did not--they viewed Brown as the interloper. U.S. Indian Agent Taliaferro promised the Indians that he'd look into the matter. Eventually, he sent Joseph Brown notice to remove the trading post trading post

See post.
 from the site by November. (38)

Similarly, a few years later, the same Dakota tribe complained to Taliaferro that the Faribault family had cut down all the oak trees in a grove "In a Grove" (藪の中)  of trees at another site. (39) Groves of trees were rare on the prairie and these oaks were useful to the tribe primarily as a source of acorns. The bitter acorns could tide them over in the depth of winter when other food sources were scarce. (40)

According to according to
prep.
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

3.
 Locke's philosophy, the "wild Indian" is a taker tak·er  
n.
One that takes or takes up something, such as a wager or purchase: There were no takers on the bets.


taker
Noun
 of acorns or other foods only from the moment of their first gathering. (41) Selecting this point for property ownership to attach equalizes the claims of the "wild Indian," who was there first and by priority of time should have some superior claim, and any latecomers, by reducing the Indians' claim to only the specific cache of acorns gathered. In Locke's framing of the rule, the latecomers and the "wild Indian" both take from the point of gathering. The race for priority starts all over again, until someone encloses the grove. Neither Locke nor the typical American settler considered that the Indians' claims may have dated from an earlier point of usage, such as the first time the tribe established a pattern of gathering acorns from the grove of trees or tracking deer at the site on the river. This discursive rationale of Locke counseled Americans to ignore what might have been legitimate claims of Native American tribes that they had fished, hunted, or built their lodges and planted their gardens routinely each appropriate season at specific locations well before the newcomers' arrival.

Thus, according to Locke, although unquestionably un·ques·tion·a·ble  
adj.
Beyond question or doubt. See Synonyms at authentic.



un·question·a·bil
 first in time of use, the Indians' land claim does not prevail over those of white settlers because the "wild Indian" did not enclose it so as to deny access to others. If Indians do not have land claims, then their claims to specific resources do not derive from ratione soli or from their routine prior usage of those resources. Their usage is limited to the acorns they gathered at the time that they gathered them. They established no claim in a continuing flow of the resource, as compared to riparians who did establish a claim to a continued flow. Historical patterns of repeated usage count for nothing in a "first in time, first in right" property allocation scheme. Moreover, the fact that Indians may have harvested acorns from lands now enclosed by the settlers gave them no ancient right from time immemorial time immemorial
n. pl. times immemorial
1. Time long past, beyond memory or record. Also called time out of mind.

2. Law Time antedating legal records.

Noun 1.
, because their presence is seen as impermanent im·per·ma·nent  
adj.
Not lasting or durable; not permanent.



im·perma·nence, im·per
 and transitory, and none of the settlers remember the Indians' ancient pattern of usage, having only recently arrived in the area. On this theory, the memory of a conquered people's resource usage does not count in legitimating a resource claim.

C. The Captor and His Servant

Locke's labor theory ignores the issue of whose labor is expended in the task. Just as Locke's theory extinguishes the Indian claim to first use, it allows the settlers' servant to expand the reach of the master. Hence, as between the three types of claimants--frontiersmen, slaves, and indigenous peoples--to unclaimed wilderness land, animals, resources, and profits, Locke gives one kind of captor the preferred claim to ownership. Though the Indians' taking possession of foodstuffs foodstuffs nplcomestibles mpl

foodstuffs npldenrées fpl alimentaires

foodstuffs food npl
 renders it his so that it can support his life, the master of other men can eat from the labor of his servants.

Still, it is the labor that turns the trick in Locke's analysis. Locke explains his labor theory:</p> <pre> That labour put a distinction between them and common. That added something to them more than Nature, the common Mother of all, had done; and so they became his private right.... The labour that was mine, removing them out of that common state they were in, hath fixed my Property in them. (42) </pre> <p>However, Locke skates over the possible distinction that a natural resource reduced to possession by servants becomes the property of masters by burying the possibility between grass eaten by a horse and ore dug by the master himself, when he continues:</p>

<pre> Thus the Grass my Horse has hit; the Turfs my Servant has cut; and the Ore I have digg'd in anyplace where I have a right to them in common with others, become my Property, without the assignation ASSIGNATION, Scotch law. The ceding or yielding a thing to another of which intimation must be made.  or consent of any body ... And the taking ... does not depend on the express consent of all the Commoners.... By making an explicit

consent of every Commoner, necessary to any ones appropriating to

himself any part of what is given in common, Children or Servants

could not cut the Meat which their Father or Master had provided for them in common, without assigning to every one his peculiar

part. (43) </pre> <p>Throughout this passage, Locke emphasizes by repeated reference that the food one gathers is one's own because of its proximity to consumption and nourishment. (44)

Locke implies that since responding to hunger seems an obvious concession, or a humane imperative, no one can begrudge be·grudge  
tr.v. be·grudged, be·grudg·ing, be·grudg·es
1. To envy the possession or enjoyment of: She begrudged him his youth. See Synonyms at envy.

2.
 the horse his grass, the Indians their acorns, or the children and servants their meat. But the language of satisfying hunger intrinsically speaks of both personal need, as the justification, and the proportionality of the limits of personal need, as the measure. Satisfying hunger approaches an upper limit on the claim. These captors are not justified in terms of being acquisitive gatherers seeking to take advantage of their fellow tenants in common by quickly claiming all the goods and selling them back to their fellow tenants. The captors also are not justified in holding their fellow tenants in their control by their legal dominion over the others' means of survival. Implicit in the persuasive elements of Locke's choosing, which he chose to justify the ethical propriety or common sense of the rule of capture, is the limit of proportionality to personal need. Yet by adding servants and slaves to the equation, the clarity of the proportionality limits becomes clouded.

D. Captive Peoples in Aid of Captors

In the person of the slave, one sees an individual who is subject to conquest as well as captivity. The contributions of slaves like York to discovery of the West call into question the ethical implications of the rule of capture. According to Locke, slaves were people who may as well have been dead from conquest wars themselves. This is because entering slavery could not be possible as a legal, voluntary act, any more than committing suicide was deemed to be a legal act. (45) A person could never sign away his freedom to enter slavery. Instead, the slave only became a slave by being spared death at the hands of the conqueror and new master. (46) The legitimately held slave is no victim in Locke's account, but so significantly at fault as to have forfeited life itself. As a result, life enslaved Enslaved may refer to:
  • Slavery, the socio-economic condition of being owned and worked by and for someone else
  • Submissive (BDSM), people playing the 'slave' part in BDSM
  • Enslaved (band), a progressive black metal/Viking metal band from Haugesund, Norway
, though horrible, seems the better, more charitable option offered by the conqueror, who thus is performing an act of grace by sparing the slave from death. These are hard words to apply in America to a population of hereditable hereditable
Adjective

same as heritable
 slaves, the children of captives, born to slaves who can hardly be said to have participated in a continued act of war punishable by enslavement.

Locke continues his explanation of slavery as conquest by introducing the condition precedent condition precedent n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the  that slavery resulted from a just war:</p>

<pre> This is the perfect condition of Slavery, which is nothing else but the State of War continued, between a lawful Conqueror, and a Captive. For, if once Compact enter between them, and make an agreement for a limited Power on the one side, and Obedience on the other, the State of War and Slavery ceases, as long as the Compact endures. For, as has been said, no Man can, by agreement, pass over to another that which he hath not in himself, a Power over his own Life. (47) </pre> <p>Buried in this long sentence is the word, "lawful," utilized to legitimate the conquest. Slavery's lawfulness, for Locke, appears to have derived from the continual state of war between a captive and his or her lawful/conqueror.

This philosophical condition precedent, that a lawful state of slavery derives from the state of war between a lawful conqueror in a just war, was not honored in any form in United States law. One feature that marked the captivity of almost all American slaves, including York, was their ability to be passed from person to person by gift, sale, or inheritance. (48) Yet selling a slave did not resemble "the state of war continued." The ability to sell a slave as a commodity undermines the very legitimacy of a conqueror to claim a continued state of war.

Furthermore, Locke's liberating power of compact between conqueror and captive to end slavery does not seem to be something to which he believed American slaves were entitled in his other famous works. In the Fundamental Constitutions of Carolina The Fundamental Constitutions of Carolina were adopted in March 1669 by the eight Lords Proprietor of Carolina, which included most of the land in between what is now Virginia and Florida. , (49) the chartering constitution of the Carolina colony which Locke helped draft in 1669, Locke is remarkably solicitous so·lic·i·tous  
adj.
1.
a. Anxious or concerned: a solicitous parent.

b. Expressing care or concern: made solicitous inquiries about our family.
 of a slave's liberty of religion, but far less so of a slave's interest in liberty itself. (50) Lest there be any doubt of a slave's place, Locke explains: "Every freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion or religion soever so·ev·er  
adv.
At all; in any way: "Space to breathe, how short soever" Ben Jonson. 
." (51)

Locke also fails to explain why the state of war is allowed to continue as transferable personal dominance once a slave's obedience is attained. He does not show why another man, a "lawful" conqueror or even a successor in interest to a lawful conqueror, could have the right of enslaving power over a person's life that the person himself could not command. The rationale of the bilateral power relationship implodes in the triangulation triangulation: see geodesy.


The use of two known coordinates to determine the location of a third. Used by ship captains for centuries to navigate on the high seas, triangulation is employed in GPS receivers to pinpoint their current location on earth.
.

Moreover, although Locke distinguishes freemen servants from slaves, he notes that slaves are another sort of servants. (52) This class of servants whom "we call Slaves, who being Captives taken in a just War, are by the Right of Nature subjected to the Absolute Dominion and Arbitrary Power of their Masters." (53)</p> <pre> These Men having, as I say, forfeited their Lives, and with it their Liberties, and lost their Estates; and being in the State of Slavery, not capable of any Property, cannot in that state be considered as any part of Civil Society; the chief end whereof where·of  
conj.
1. Of what: I know whereof I speak.

2.
a. Of which: ancient pottery whereof many examples are lost.

b. Of whom.
 is the preservation of Property. (54) </pre> <p>E. Captive People in Discovery

As for the domain of the wilderness, or the commons of which we are all tenants, Locke's formulation presupposes the questions of who is included among the tenants, and who is included in the class of possible captors. The conqueror defines those classifications and categories by being able to construct which wars are just, which conquerors are lawful, and hence, which persons are appropriately captives and incapable of holding property.

Furthermore, jumping far ahead in the historical chronology, the tragedy of the Dred Scott case Dred Scott Case, argued before the U.S. Supreme Court in 1856–57. It involved the then bitterly contested issue of the status of slavery in the federal territories. In 1834, Dred Scott, a black slave, personal servant to Dr. John Emerson, a U.S. , (55) with which I continue to be fascinated, is that it reinforced the ability of frontier conquistadors See also
  • conquistador
  • Spanish colonization of the Americas
  • Encomienda
: Top - 0–9 A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

A
  • Jeronimo de Aliaga
  • Diego de Almagro
  • Pedro de Alvarado
 to utilize slaves as instrumentalities to conquer and capture more than they could by their own efforts. As it relates to westward expansion, the Dred Scott decision Dred Scott decision
 formally Dred Scott v. Sandford

1857 ruling of the Supreme Court of the United States that made slavery legal in all U.S. territories.
 is a matter of extending the reach of masters to compete more favorably among themselves and against the Native Americans, depending upon how many slaves they could control.

IV. A Slave's Role in the Corps of Discovery

The lives of enslaved explorers, like York, detail the role of captives in "discovery" by military actors as part of settlement people's advance wave. York's contributions to the mission and his subsequent treatment (56) come from accounts from Lewis and Clark's own writings. (57) "Undaunted courage" may be a phrase that describes York at least as aptly as it does his masters, yet it is rarely applied to him. (58)

Yet, York was hardly an anomaly. As most exploring American men stemmed from the class of slave-holding men, there were "Yorks" to be found in exploring expeditions all across the frontier. (59) Moreover, most men who were commissioned to explore on behalf of the U.S. government simultaneously held appointments as military officers. Accordingly, these explorers following the pattern of other officers were entitled to valets or slaves by military regulations. (60)

A. York's Role During the Expedition

York, an enslaved man of William Clark, accompanied the famous Corps of Discovery in its epic journey to the Pacific and back from 1803 to 1806. The son of a Clark family slave, he grew up as the companion and body servant Noun 1. body servant - a valet or personal maid
servant, retainer - a person working in the service of another (especially in the household)

gentleman's gentleman, valet, valet de chambre, gentleman, man - a manservant who acts as a personal attendant to his
 to William Clark. (61) During Clark's travels, conventionally York would have accompanied him as his "manservant man·ser·vant  
n. pl. men·ser·vants
A male servant, especially a valet.


manservant
Noun

pl menservants a male servant, esp. a valet

Noun 1.
." (62) Thus, when Clark was commissioned to undertake the first extensive American discovery of the Louisiana Purchase Louisiana Purchase, 1803, American acquisition from France of the formerly Spanish region of Louisiana. Reasons for the Purchase


The revelation in 1801 of the secret agreement of 1800, whereby Spain retroceded Louisiana to France, aroused
, York was one of the two dozen participants. (63)

York's compelled service to his master probably seemed natural to Clark, who was accustomed to being accompanied by a manservant when he traveled. (64) The voyage west, however, called for York to do much more than cook, launder Launder

To move illegally acquired cash through financial systems so that it appears to be legally acquired.
, and pack for his master as a slave accompanying a master's stagecoach stagecoach, heavy, closed vehicle on wheels, usually drawn by horses, formerly used to transport passengers and goods overland. Throughout the Middle Ages and until about the end of the 18th cent.  travel might have. Traveling over unknown terrain placed York on the same level as his master by raising the survival needs of both master and slave and hence lessening the social distance between them. York's physical prowess, stronger than most of the men on the team, was needed to propel the boats upstream. In addition, York's distinctive physical appearance as a black man appears to have influenced Indian tribes to approach the travelers with friendly curiosity rather than hostility. (65)

York assumed a much higher presence in the travel party's diaries as the troop spent more and more days away from the slavery reinforcing influence of civilization. As the trip progressed, York's role in the troop appeared to take on a more subjective, human quality. Far from the reinforcing hierarchy of colonial settler society, York's humanity is shown with much greater sensitivity by his master. (66)

There was almost a reciprocity developing between master and slave as fellow travelers engaging the same overwhelming obstacles. York's personal concern for William Clark and others of the party was noted when they were caught in a flash flood. (67) York's trip to see the ocean was noted in the journey's log, (68) and he voted in the group decision upon where to establish the winter quarters the quarters of troops during the winter; a winter residence or station.

See also: Winter
. (69)

York's presence also improved relations with the Indian tribes when the expedition traveled through their lands. (70) York cannily appeared willing to play the subservient, domesticated do·mes·ti·cate  
tr.v. do·mes·ti·cat·ed, do·mes·ti·cat·ing, do·mes·ti·cates
1. To cause to feel comfortable at home; make domestic.

2. To adopt or make fit for domestic use or life.

3.
a.
 fool In order to intimidate the Indians for the larger benefit of the traveling party. After their first encounter with an Indian tribe, word of York's presence seemed to precede the expedition to other tribes. For the outnumbered travelers, this changed the tone of an encounter that could have been hostile into one sparked by curiosity of the indigenous peoples The term indigenous peoples has no universal, standard or fixed definition, but can be used about any ethnic group who inhabit the geographic region with which they have the earliest historical connection. . Lewis played upon York's unique personal attraction to the Indians at one point when the company was separated and at some risk, by promising the Shoshones that there was a man with the other party "who was black and had short curling hair." (71) Lewis' promise seemed to ease the tension as "[t]he Indians expressed great eagerness to see such a curiosity." (72)

Later, York's responsibility to make arrangements on behalf of the group was noted when he was sent to trade with the Indians several times, a role which further blurred the boundaries between servant and master. (73) On one occasion, when the expedition encountered the Arikara Indians, the tribe was sufficiently impressed with York to offer him an Indian woman while other members of the party enjoyed the favors of other Arikara women. (74)

Further, though technically a captive, a slave among the party, York took to hunting buffalo hides on the expedition to bring back as his own gifts for his wife and friends. Thus, in the wilderness context, everything that York captured was not automatically regarded as belonging to his master. In a letter of May 1805, Clark is sending buffalo robes from Fort Mandan Fort Mandan was the name of the encampment at which the Lewis and Clark Expedition wintered in 1804-1805. The encampment was located on the Missouri River approximately twelve miles from Washburn, North Dakota, though the precise location is not known for certain and may be under  to Louisville as gifts, including a box from York to his wife and his friend, Ben. (75)

B. York and Clark's Relationship Upon Return

Whatever quasi-independent, autonomous existence York had negotiated for himself, or, unconscious to his masters, managed to attain in the wild, evaporated rapidly when the Corps of Discovery returned home. The men who accompanied the Corps of Discovery were promised "a great Reward for [the] expedition, when [they] Return[ed]." (76) Returning from the territory to the United States brought a rough landing for York, however. By 1808, York was back to performing strictly domestic chores for William Clark's St. Louis household. Appropriate to his resumed domestic role, York was noted as working for Clark cutting wood and pruning his garden. (77) Because York and his wife were owned by different masters, they had been separated when York was taken from Kentucky to live with his master in St. Louis, despite his desire to remain with his wife. York repeatedly requested his freedom.

In response, Clark had become increasingly irritated with York's attitude. By early November, he relented enough to allow York to visit his wife, but the rift between the two men is obvious. Clark refused to release York, allow him to hire himself out, or sell him to someone closer to his wife's master. In a letter, Clark also made clear there would be severe consequences if York's behavior did not return to Clark's expectations. (78) After detailing instructions for York's treatment, Clark's next passage refers to his horses, perhaps indicative of York's place in Clark's mind. (79)

The relationship between the fellow travelers, who had traversed the continent together depending upon each other for their mutual survival and success, deteriorated from there into symptoms of the worst forms of enslavement. By December of 1808, Clark, clearly acting the slave master, writes:</p> <pre> I did wish to do well by him--but as he has got Such a notion about freedom and his immense Services, that I do not expect he will be of much Service to me again; I do not think with him, that his Services has [sic] been So great (or my Situation would permit me to liberate him). I must request you to do for me as Circumstances may to you, appear best, or necessary and will ratify what you may do--he could if he would be of Service to me and Save me money, but I do not expect much from him as long as he has a wife in Kentucky. (80) </pre> <p>Six months later, Clark writes:</p> <pre> [York] is here but of very little Service to me, insolent in·so·lent  
adj.
1. Presumptuous and insulting in manner or speech; arrogant.

2. Audaciously rude or disrespectful; impertinent.
 and Sulky sulky

horse-drawn, ultra-lightweight, single-seater, two-wheeled vehicle used by Standardbreds in races. Called also bike, gig.
, I gave him a Severe trouncing the other Day and he has much mended since. Could he be hired for anything at or near Louisville, I think if he was hired there a while to a Severe master he would See the difference and do better. (81) </pre> <p>Finally, in August, Clark decides to end his relationship with York:</p> <pre> Since I confined York he has been a gadd fellow to work; I have become displeased dis·please  
v. dis·pleased, dis·pleas·ing, dis·pleas·es

v.tr.
To cause annoyance or vexation to.

v.intr.
To cause annoyance or displeasure.
 with him and Shall hire or Sell him, on the 5 of next month I [shall] Set him off in a boat to wheeling as a hand, on his return to the falls I wish much to hire or Sell him--I cant Sell negroes here for money.... (82) </pre> <p>Clearly, York's persistent desire for freedom made him an uneasy slave and unpopular person among other free persons in the community.

What became of York? Although William Clark later claimed that he had emancipated e·man·ci·pate  
tr.v. e·man·ci·pat·ed, e·man·ci·pat·ing, e·man·ci·pates
1. To free from bondage, oppression, or restraint; liberate.

2.
 the man, there is no clear evidence of this fact. (83) York's possible manumission MANUMISSION, contracts. The agreement by which the owner or master of a slave sets him free and at liberty; the written instrument which contains this agreement is also called a manumission.
     2.
 is not mentioned in the St. Louis court records that contain other manumissions by other St. Louis masters during this period. (84) At Clark's death the estate contained some fourteen slaves in "all, including one by the name of Ben--the same name as the slave man to whom York had sent a buffalo robe. (85) York was not listed as a legacy, but he very well might have been dead by that time. York seems to have simply disappeared. (86)

As stories of origin, like that of the Corps of Discovery, frame legitimate historical beginnings, close reexamination re·ex·am·ine also re-ex·am·ine  
tr.v. re·ex·am·ined, re·ex·am·in·ing, re·ex·am·ines
1. To examine again or anew; review.

2. Law To question (a witness) again after cross-examination.
 of these stories also raises questions about the legitimacy of historical beginnings and the purpose of the myth. Clark's heroism as discoverer of a vast new continent was attained by relying upon York's strength, efforts, and person. Yet despite York's important contributions to the mission, his heroism was not recognized by the grateful country or regarded as noble duty by his successful master on their return. Whereas other members of the Corps of Discovery received medals, land grants, government positions, and additional solicitudes, (87) York's contribution did not even merit his release from bondage. Moreover, his experience of testing himself against the wilderness side-by-side with his master and living for a time free from the surrounding societal signals to remain in his place as a slave made it difficult for him to return to a situation of submission. In fact, the wilderness experience itself had leveled the experimental field between master and slave in some ways and increased the slave's subjectivity as more than a mere instrumentality of his master.

V. SLAVES' ROLE IN THE PROCESS OF CONQUEST

Guns, Germs, and Steel, the title of Jared Diamond's interesting and popular book, identified the key instrumentalities of conquest across the globe. (88) Diamond considered including horses in the title list. (89) In my opinion, he could also have added slaves because much like guns, germs, and steel, African slaves were instrumentalities of expansion to greater or lesser degrees in all three phases of settlement of the American continent. Even the way that the Indians reacted to York, as part of the exploring party, parallels Diamond's description of Indian reactions to conquistadors' horses in the new world. (90) Both slaves and horses caused the natives to marvel at these new beings who answered to the command of the head explorer.

Although there is evidence that the American government did enlist slaves to fight in some colonial battles and later enlisted Buffalo Soldiers buffalo soldiers, name given to the African-American U.S. army regiments commissioned by Congress to patrol the American West after the Civil War. Consisting of two infantry and two cavalry regiments, they were the first such units chartered in peacetime.  in the West, the historical experience suggests that direct use of slaves to battle Indian peoples was relatively rare. (91) The Americans did not send waves of slaves into battle in any Indian war. This is not surprising, given the American experience American Experience (sometimes abbreviated AmEx) is a television program airing on the PBS network in the United States. The program airs documentaries about important or interesting events and people in American history, many of which have won impressive  with armed slaves during the Nat Turner Noun 1. Nat Turner - United States slave and insurrectionist who in 1831 led a rebellion of slaves in Virginia; he was captured and executed (1800-1831)
Turner
 uprising and the First and Second Seminole wars, when escaped slaves joined forces with the Seminole Indians. (92) The threat that armed slaves would join the enemy or turn on their masters made the idea of arming slaves to battle the Indians a much riskier proposition than simply denying slaves access to guns and weaponry. Indeed, much was made of the later enlistment of black troops on the Union side in the Civil War as if the idea were a cultural anomaly to previous American war policy. (93)

VI. SLAVES' ROLE IN THE SETTLEMENT PHASE

The role of captives in discovery and conquest carried over into the settlement phase as well. I have written extensively on the varied and contested role of slaves in the settlement phase of the frontier. (94) Suffice it to say, slaves frequently helped settle lands in all parts of the expanding country on behalf of their owners before the Civil War. (95) A desire for slavery in the expansion of the frontier line is present in the Illinois territorial records. (96) Military men at the outposts ordered slaves to be brought to them from regional slave markets or acquired slaves at the markets before leaving for the frontier. Although the West was putatively open for settlement, even so-called "free states those of the United States before the Civil War, in which slavery had ceased to exist, or had never existed.
- Abbott.

See also: Free
" required "free blacks" to have papers and often to post a large bond upon entering. Federal homestead laws did not prohibit blacks from cultivating a claim on the lands, but state laws often would not permit these same free citizens to enter the state's boundary. (97)

Even Indians wanted slaves. Indians recognized the usefulness of slaves to American military officers and major Indian traders. Indians sought the privilege of slaveholding slave·hold·er  
n.
One who owns or holds slaves.



slaveholding adj.
 in the same way they occasionally adopted other traits of the settlers. This is chronicled in the diary of Lawrence Taliaferro Lawrence Taliaferro was an agent at Fort Snelling, Minnesota from 1820 through 1839. He partnered with Colonel Josiah Snelling to ensure peace and safety for the frontier outpost. , Indian agent to the Dakota people in 1830s. (98) Taliaferro notes the Indians thought highly enough of the advantages of slavery that they wanted to own slaves as well. (99) The posts of treaty blacksmith and treaty farmer were always difficult to fill with white persons because the Dakota wanted their treaty farmers to farm for them rather than to teach them to farm. (100)

The results are mixed on whether the frontier was a place of relative freedom for slaves. Some slave men by their comparatively strong set of survival skills found it possible to live among the Indians and to negotiate some independence for themselves. For example, James Thompson James (or Jim) Thompson is the name of:
  • Floyd James Thompson (1933 – 2002), America's longest-held POW; spent almost 9 years in POW camps in Vietnam
  • James Thompson (clockmaker) (1776-1825) maker of longcase clocks
 was brought as a slave to Fort Snelling Fort Snelling, on a bluff above the junction of the Mississippi and Minnesota rivers, SE Minn.; est. 1820. It served as a regional protective barrier and as a nucleus for settlement. Minneapolis grew on the fort reservation in the mid-1800s.  in what would become Minnesota and achieved eventual freedom, but it was a very circuitous cir·cu·i·tous  
adj.
Being or taking a roundabout, lengthy course: took a circuitous route to avoid the accident site.
 process. (101) This very skilled black man had been the sutler's slave and he was later was sold to a captain at the fort. (102) For a man enslaved, James Thompson managed a remarkably independent existence. Although he lived at Ft. Snelling, he was not confined to life within the fort's stone walls. With a fair degree of freedom of movement to range about the area, he even took a Sioux wife and they had children. (103) He often took up odd jobs odd jobs nplchapuzas fpl

odd jobs nplpetits travaux divers

odd jobs odd npl
 for other masters to support his family. (104) Thompson even built office furniture for the Indian Agency. (105) Not only was he handy at carpentry, he was also adept at the wilderness survival skills of hunting, fishing, and navigating canoes. His physical strength and skill also had impressed even the Indians. (106)

Later, Thompson's military master was transferred to Prairie du Chien, more than two hundred miles from Fort Snelling, in present day Wisconsin. Thompson, still legally enslaved, had to accompany him. Because it was neither permissible nor safe for them in Prairie du Chien, Thompson's wife and children remained behind. As Dakota tribesmen, they could be at risk in traditional Sac and Fox Sac and Fox, closely related Native Americans of the Algonquian branch of the Algonquian-Wakashan linguistic stock (see Native American languages). Sac and Fox culture was of the Eastern Woodlands area with some Plains-area traits (see under Natives, North American).  territory. More importantly, Thompson's wife and children would have been stripped of the protection and help of their large kinship network. Separated from his family, Thompson made plans to find a way back to the Fort Snelling area. When Thompson did return to the area, he did so as a free man. (107) Jim, the Freedman, found work building new houses in what would become St. Paul St. Paul

as a missionary he fearlessly confronts the “perils of waters, of robbers, in the city, in the wilderness.” [N.T.: II Cor. 11:26]

See : Bravery
. He could always feed his family by fishing if he needed to. In hard times, he could fall back upon the help of his wife's Dakota kinship.

Only former slaves with these varied survival skills could remain safely in the territory. Some slaves had those skills; some did not. Some freed slaves were also able to become self-supporting pioneers. Free Frank, for example, followed the homesteader's path to stake out a farm in illinois, from which he earned the income to buy members of his family from bondage. (108)

VII. CONCLUSION

Having considered Locke's references to captives in formulating the rule of capture and York's experience as a captive in the Corps of Discovery, I end on a cautionary note. Today we speak comfortably, even peaceably peace·a·ble  
adj.
1. Inclined or disposed to peace; promoting calm: They met in a peaceable spirit.

2. Peaceful; undisturbed.
, of captive human beings in the marketplace: "captive markets," "captive client bases," and "captive bases" are terms used to advertise business opportunities. We describe these phenomena as if we do not understand that the very power that exists for the advantageous position of captor is a recognized reduction of liberty in the subservient who is subject to the consequence of capture. Capture rules must always be interrogated for their indirect effects on human liberty. Often celebrated, the rule of capture does not necessarily assure human flourishing unless it also assures human liberty and autonomy and freedom from hunger Established in 1946, Freedom from Hunger is recognized for fighting hunger with innovative self-help programs. An international development organization working in seventeen countries across the globe, Freedom from Hunger is a nonprofit, nongovernmental, nonsectarian organization . Remembering York and his and others' treatment in American history refreshes this image of the capture of the New World.

(1) Locations of statues: Lewis and Clark alone (Seaside, Oregon Seaside is a city in Clatsop County, Oregon, United States. The name Seaside came from a summer resort built by the railroad magnate Ben Holladay in the 1870s, Seaside House, located a mile south of the business center. The population was 5,900 at the 2000 census. ; Clarksville, Indiana Clarksville is a town in Clark County, Indiana, along the Ohio River. The population was 21,400 at the 2000 United States Census. Geography
Clarksville is located at  (38.311885, -85.767265)GR1.
); with dog (Sioux City, Iowa <noinclude></noinclude>

Sioux City (IPA: [su: 'sɪti]) is a city located in northwest Iowa in the United States. As of the 2000 census, the city had a total population of 85,013.
; St. Charles, Missouri; Legion of Valor valor

a rodenticide no longer marketed because of toxicity in horses causing dehydration, abdominal pain, hindlimb weakness, inappetence, fishy smell in urine. Called also N-3-pyridyl methyl N1-p-nitrophenyl urea.
 Veterans Museum); with Sacagawea (Charlottesville, Virginia Charlottesville is an independent city located within the confines of Albemarle County in the Commonwealth of Virginia, United States, and named after Princess Sophia Charlotte of Mecklenburg-Strelitz, the wife of King George III of the United Kingdom. ); with dog and slave York (Great Falls, Montana Great Falls is a city located in Cascade County, Montana, United States. As of the 2000 census, the city had a total population of 56,690. It is the county seat of Cascade CountyGR6 ); with Sacagawea and York (Kansas City, Missouri Kansas City is the largest city in the state of Missouri. It encompasses parts of Jackson, Clay, Cass, and Platte counties and is the anchor city of the Kansas City Metropolitan Area, the second largest in Missouri, which includes counties in both Missouri and Kansas. ); York alone (Louisville, Kentucky

“Louisville” redirects here. For other uses, see Louisville (disambiguation).
).

(2) See generally SANFORD LEVINSON, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES 3-5, 38-74 (1998) (discussing the political nature of public artwork and the cultural division over representations of heroic figures and focusing primarily on monuments to Civil War heroes in the North and the South).

(3) A. JAMES CASNER ET AL., CASES AND TEXT ON PROPERTY 60-61 (5th ed. 2004).

(4) The Lewis and Clark Expedition Bicentennial Conference regarding "The Rule of Capture and Its Consequences" was held April 7 and 8, 2005 at Lewis and Clark College Clark College: see Atlanta Univ. Center.  in Portland, Oregon. Topics included the rule of capture in regard to wildlife and the state ownership doctrine, the economics of capture, the capture of ground water, the spiritual values of "capturing" wilderness, western grazing and the capture of range resources, road building on public lands, and the capture of oil, gas, and minerals.

(5) Consumers of frog legs, the animated and syncopated syn·co·pate  
tr.v. syn·co·pat·ed, syn·co·pat·ing, syn·co·pates
1. Grammar To shorten (a word) by syncope.

2. Music To modify (rhythm) by syncopation.
 sisters of song capture their daily fare by blowing up local ponds and collecting the dead frogs. THE TRIPLETS OF BELLEVILLE (Sony Pictures Classics: Columbia TriStar Home Entertainment 2004).

(6) See, e.g., Anderson v. Beech Aircraft Corp., 699 P.2d 1023, 1028-1031 (Kan. 1985) (describing rules for capture and storage of natural gas, as compared to wild animals WILD ANIMALS. Animals in a state of nature; animals ferae naturae. Vide Animals; Ferae naturae. ); Cline v. American Aggregates Corp., 474 N.E.2d 324, 327 (Ohio 1984) (outlining limitations on capture of groudwater); Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J.L. & ECON ECON Economics (course)
ECON Economy (minimum cost speed schedule)
ECON Centre for Economic Analysis
ECON Eastern Coalition of Nations (Star Trek) 
. 393, 416-30 (1995) (noting limitations on capture rules for minerals, wild game, oil and gas, water, etc.).

(7) See, e.g., Harris v. Brooks, 283 S.W.2d 129, 133 (Ark. 1955) (outlining the reasonable use theory of riparian riparian adj. referring to the banks of a river or stream. (See: riparian rights)  water law which restricts the capture and use of water to means that do not injure adjacent users). Ironically, this result mirrors the "blue pencil blue pencil
Noun

deletion or alteration of the contents of a book or other work

Verb

blue-pencil, [-cilling, -cilled] or US [-ciling,
" rule in overreaching Exploiting a situation through Fraud or Unconscionable conduct.  contracts--when contracts overreach overreach

the error in a fast gait when the toe of a hindhoof of a horse strikes and injures the back of the pastern of the leg on the same side.


overreach boot
, courts can "blue pencil" out the overreaching language. See Brian Kingsley Krumm, Covenants Not to Compete: Time for Legislative and Judicial Reform in Tennessee, 35 U. MEM (MicroElectroMechanical) See MEMS. . L. REV. 447, 471-73 (2005) (discussing the blue pencil rule as a method for courts to modify contracts with unreasonable restrictions against competition).

(8) 3 Cai 175 (N.Y. Sup. Ct. 1805).

(9) Id at 180 (holding that pursuit gives no property right in a wild animal and that a property right arises only upon "actual dominion" over the animal); CASNER ET AL., supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 3, at 38 (discussing Pierson v. Post).

(10) Pierson, 3 Cal. at 181 (Livingston, J., dissenting) (suggesting the case should have been "submitted to the arbitration of sportsmen" where a "precedent [would be] set, interfering with no usage or custom which the experience of ages has sanctioned").

(11) See Lueck, supra note 6, at 405-06 (discussing the development of limits to the rule of capture as a necessity for preventing the waste of resources).

(12) See id at 422-23 (using the public trust doctrine public trust doctrine n. the principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest.  to describe broad judicial limits on the capture of common resources by a "disorganized dis·or·gan·ize  
tr.v. dis·or·gan·ized, dis·or·gan·iz·ing, dis·or·gan·iz·es
To destroy the organization, systematic arrangement, or unity of.
 public").

(13) See infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.


infra prep.
 Part III.A.

(14) See infra Part III.C.

(15) See Pollard v. Hagen, 44 U.S. 212, 223 (1845) (holding that sovereignty over lands owned by the United States in trust for the establishment of new states passed to the new states as they were admitted into statehood state·hood  
n.
The status of being a state, especially of the United States, rather than being a territory or dependency.
).

(16) I call "the frontier" an imaginary place because recent, more realistic, historical accounts describe the long period of contact in a middle ground. See Richard White Richard White is the name of:
  • Richard White (c.1537–1584), Welsh Roman Catholic martyr, poet and saint better known as Saint Richard Gwyn
  • Richard Grant White (1822–1885), American Shakespearean scholar
  • Richard Crawford White (1923–1998), U.S.
, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region The Great Lakes region can refer to:
  • Great Lakes region (North America)
  • African Great Lakes region
, 1650-1815, at 50 (1991) (detailing the rise and fall of a "middle ground" reached between the incoming European colonists and the native Indians of the Great Lakes region during fur trades). The idea of the "frontier" in American law in delineating the geographical realm of American expansion is as potent as the idea of "oriental" in the West as explained by Edward Said Edward Wadie Saïd, Arabic: إدوارد وديع سعيد, . Compare Edward Said, On Orientalism 5 (1978) ("[A]s much as the West itself, the Orient is an idea that has a history and a tradition of thought, imagery, and vocabulary that have given it reality and presence in and for the West."), with Patricia Nelson Limerick Patricia Nelson Limerick (born May 17 1951) is an American historian, considered to be one of the leading historians of the American West. She was born and raised in Banning, California.

Limerick received a B.A.
, Legacy Of Conquest: The Unbroken Past Of The American West 18-23 (1987) (characterizing the settlement of the West as deriving from economic motivations rather than a desire to pursue romantic notions of western mythology embodied in stereotypes promulgated prom·ul·gate  
tr.v. prom·ul·gat·ed, prom·ul·gat·ing, prom·ul·gates
1. To make known (a decree, for example) by public declaration; announce officially. See Synonyms at announce.

2.
 by television, paintings, and novels).

(17) See Anders Stephanson, Manifest Destiny: American Expansion and the Empire Of Right xi-xii (1995). "Manifest Destiny" originally described the notion that Providence demanded westward expansion of the United States. Id But its meaning was expanded by Woodrow Wilson "when he wanted to accentuate the providentially prov·i·den·tial  
adj.
1. Of or resulting from divine providence.

2. Happening as if through divine intervention; opportune. See Synonyms at happy.
 assigned role of the United States to lead the world to new and better things." Id.

(18) See infra Parts IV, V, and VI (discussing the roles of slaves and slavery in the discovery, conquest, and settlement of the American West).

(19) Patricia Limerick maintains that the frontier closes when tourism is introduced. LIMERICK, supra note 16, at 25.

(20) I mean this comparison of terms in the similar sense that Noam Chomsky Noun 1. Noam Chomsky - United States linguist whose theory of generative grammar redefined the field of linguistics (born 1928)
A. Noam Chomsky, Chomsky
 has recently dissected the resonating meanings of "illegal" and "illegitimate." See Noam Chomsky, Institute Professor, Professor of Linguistics, Massachusetts Institute of Technology Massachusetts Institute of Technology, at Cambridge; coeducational; chartered 1861, opened 1865 in Boston, moved 1916. It has long been recognized as an outstanding technological institute and its Sloan School of Management has notable programs in business, , Illegal but Legitimate: A Dubious Doctrine for the Times, Lecture at the University of Michigan Law School The University of Michigan Law School, located in Ann Arbor, is a unit of the University of Michigan. The Law School, founded in 1859, currently has an enrollment of approximately 1,200 students, most of whom are earning the degrees of Juris Doctor (J.D.) or Master of Laws (LLM).  (Oct. 28, 2004), available athttp://www.edinburgh.ac.uk/explore/video/win_chomsky.html.

(21) See Jesse Dukeminier Jesse Dukeminier (born in West Point, Mississippi, August 12, 1925 - April 20, 2003) was a professor of law for 40 years at the University of California, Los Angeles, and authored or co-authored a significant number of articles and textbooks in the areas of property law, wills,  & James E. Krier James E. Krier is the Earl Warren DeLano Professor of Law at the University Of Michigan and the father of performer, Andrew W.K.. His teaching and research interests are primarily in the fields of property, contracts, and law and economics, and he teaches or has taught courses on , Property 3 (5th ed. 2002) (quoting the maxim of Roman law "Qui prior est tempore Qui prior est tempore, potior est jure. He who is first or before in time, is stronger in right. Co. Litt. 14 a; 1 Story, Eq. Jur. Sec. 64 d; Story Bailm. Sec. 312; 1 Bouv. Inst. n. 952; 4 Bouv. Inst. n. 3728.  potior est jure" to mean "Who is first in point of time is stronger in right").

(22) The Laws of Manu 196 (Wendy Doniger Wendy Doniger (born November 20 1940) is an American professor of religion, active in international religious studies since 1973. Much of her work is focused on translating, interpreting and comparing elements of Hinduism through modern contexts of gender, sexuality and identity.  trans., Penguin 1991) ("A wife, a son, and a slave, these three are declared to have no property; the wealth which they earn is acquired for him to whom they belong.").

(23) Id.

(24) William Blackstone Sir William Blackstone (originally pronounced Blexstun) (10 July 1723 – 14 February 1780) was an English jurist and professor who produced the historical and analytic treatise on the common law called Commentaries on the Laws of England , 1 Comments Aries* 410, *422-25.

(25) See Casner et al., supra note 3, at 38-39 (discussing Locke's labor theory as one of the sources of the American capture rule).

(26) Id; see also Richard Schlatter, Private Property: The History of an Idea 155 (1951) ("[I]t was Locke who first stated the theory in its developed form as a part of the philosophy of natural right and he alone was recognized as its discoveror...."). For Locke's theory of property in his own words, see John Locke, Two Treatises of Government 288 (Peter Laslett Peter Laslett (18 December 1915 - 8 November 2001) was an English historian. Biography
Born as Thomas Peter Ruffell Laslett and educated at the Watford Grammar School for Boys, Peter Laslett studied history at St John's College, Cambridge in 1935 and graduated with
 ed., Cambridge Univ. Press 1988) (1690) ("Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property." (emphasis in original)).

(27) Locke, supra note 26, at 283-85.

(28) Id. at 27.

(29) See, e.g., Johnson v. M'Intosh Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)[1], was a case in which the Supreme Court of the United States held that private citizens could not purchase lands directly from Native Americans. , 21 U.S. (8 Wheat.) 543, 587 (1823) ("[The United States] hold, and assert in themselves, the title by which [this country] was acquired. They maintain, as all others have maintained, that discovery have exclusive fight to extinguish the Indian title of occupancy, either by purchase or by conquest...."); Daniel W. Bromley, Private Propetty and the Public Interest" Land in the American Idea, in Land In The American West: Private Claims and the Common Good 23, 26 (William G. Robbins & James C. Foster James Clifford Foster is the chairman and chief executive officer of Charles River Laboratories, Inc., an international company that works on the drug discovery and development process.  eds., 2000) ("Locke believed that humans, especially Europeans, were endowed with a special obligation to take possession of God's commons. [Through] the act of conquest and "improvement" [the Europeans] converted the commons into the conqueror's individual (private) property.").

(30) Locke, supra note 26, at 284.

(31) Id. at 287.

(32) Meaning "by reason of the soil." Black's Law Dictionary Black's Law Dictionary is the law dictionary for the law of the United States. It was founded by Henry Campbell Black. It has been cited as legal authority in many Supreme Court cases (see Secondary authority).  1291 (8th ed. 2004); see also Casner et al., Supra note 3, at 44-45 (presenting the theory of ratione soli as the source of constructive possession constructive possession n. when a person does not have actual possession, but has the power to control an asset, he/she has constructive possession. Having the key to a safe deposit box, for example, gives one constructive possession. (See: constructive)  by a landowner of the wild animals on his property).

(33) See, e.g., Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly 226 (1994) ("[T]he Indian right of occupancy to much of that land [west of the Mississippi] was recognized by the president, Congress, and the courts. The Indian title had to be extinguished by formal treaties."); Proclamation of the Continental Congress, September 22, 1783, reprinted Documents Of United States Indian Policy (Francis Paul Prucha ed., 3rd ed. 2000) ("[The United States] hereby prohibits all persons from making settlements on lands inhabited by Indians ... without the express authority and directions of the United States in Congress assembled."); Northwest Ordinance Northwest Ordinance: see Ordinance of 1787. , art. 3, JCC JCC Jewish Community Center
JCC Jackson Community College
JCC Jefferson Community College
JCC Joint Consultative Committee
JCC Jamestown Community College (Olean and Jamestown, New York)
JCC Johnston Community College
 32:340-41 (July 13, 1787) ("The utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed....").

(34) Prucha, supra note 33, at 226; see also Bethany R. Berger, "Power Over This Unfortunate Race": Race, Politics, and Indian Law Indian law

Legal practices and institutions of India. Indian law draws on a number of sources, beginning with the customs of the ancient Vedas and later accretions of Hindu law, which largely concern social matters such as marriage and succession.
 in United States v. Rogers, 45 WM. & MARY L. REV. 1957, 2003 (discussing responses of different branches of American government to growing interactions with Indian tribes).

(35) Lawrence Taliaferro, Diary of Lawrence Taliaferro (held at the Minnesota Historical Society The Minnesota Historical Society is a private, non-profit educational and cultural instutution dedicated to preserving the history of the state of Minnesota. It was founded by the territorial legislature in 1849 and is named in the Minnesota Constitution.  in St. Paul, Minnesota, copy on file with author). The author would like to thank the Minnesota Historical Society for their graciousness in allowing access to this historical resource.

(36) Id. at June 10, 1834; Telephone interview with Thomas Shaw Thomas Shaw is the name of several notable people
  • Thomas Shaw, 1st Baron Craigmyle, (1850-1937) Scottish politician and judge
  • Thomas Shaw (Medal of Honor recipient), American Indian Wars soldier
  • Thomas Shaw (politician), Secretary of State in 1920s
, Assistant Site Manager and Historian, Historic Fort Snelling, in St. Paul, Minn. (Nov. 4, 2005) [hereinafter Shaw Interview] (Mr. Shaw is the curator of the Taliaferro diary project and an expert on its content.).

(37) Nancy Goodman & Robert Goodman, Joseph R. Brown: Adventurer on the Minnesota Frontier 1820-1849, at 114-17 (1996).

(38) Id at 118.

(39) Taliaferro, supra note 35 at June 22, 1838; Id. at June 25, 1838; Shaw Interview, supra note

(40) See Melvin Randolph Gilmore, Uses of Plants By The Indians of the Missouri River Missouri River

River, central U.S. The longest tributary of the Mississippi River, it rises in the Rocky Mountains of southwestern Montana. It flows east to central North Dakota and south across South Dakota, forming sections of the South Dakota–Nebraska boundary, the
 Region 33 (Bureau of American Ethnology The Bureau of American Ethnology (originally, Bureau of Ethnology) was established in 1879 by an act of Congress for the purpose of transferring archives, records and materials relating to the Indians of North America from the Interior Department to the Smithsonian Institution. , Thirty-Third annual Report to the Secretary of the Smithsonian Institution Smithsonian Institution, research and education center, at Washington, D.C.; founded 1846 under terms of the will of James Smithson of London, who in 1829 bequeathed his fortune to the United States to create an establishment for the "increase and diffusion of , 1911) (discussing Native American use of acorns as food in times of necessity), available at http://www.swsbm.com/Ethnobotany/MissouriValley-Gilmore-1.pdf.

(41) Locke, supra note 25, at 288.

(42) Id. at 288-89 (emphasis in original).

(43) Id. at 288-89 (emphasis added). The weakest persuasive example in any series is usually listed in the middle. It thus adds to the cumulative effect but escapes scrutiny.

(44) Id. at 286-89. Locke repeatedly refers to hunger.

* "[B]efore it can do him any good for the support of his Life."

* "He that is nourished ... has certainly appropriated them to himself."

* "When he digested? Or when he ate? Or when he boiled? Or when he brought them home?"

* "The Grass my Horse has bit...."

* "Children or Servants could not cut the Meat which their Father or Master had provided for them in common...."

Id.

(45) Id. at 284.

This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely joined with a Man's Preservation, that he cannot part with it, but by what forfeits his Preservation and Life together. For a Man, not having the Power of his own Life, cannot, by Compact, or his own Consent, enslave en·slave  
tr.v. en·slaved, en·slav·ing, en·slaves
To make into or as if into a slave.



en·slavement n.
 himself to any one, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life when he pleases. No body can give more Power than he has himself; and he that cannot take away his own Life, cannot give another power over it.

Id.

(46) Id

Indeed having, by his fault, forfeited his own Life, by some Act that deserves Death; he, to whom he has forfeited it, may (when he has him in his Power) delay to take it, and make use of him to his own Service, and he does him no injury by it. For, whenever he finds the hardship of his Slavery out-weigh the value of his Life, 'tis in his Power, by resisting the Will of his Master, to draw on himself the Death he desires.

Id.

(47) Id at 284-85 (emphasis added).

(48) See, e.g., Durham v. Dunkly, 27 Va. (6 Rand.) 135 (1828) (outlining possibilities under Virginia state law for the transfer of slaves via gifts, sale, or inheritance). The case includes citations to several relevant Virginia statutes which regulated this process.

(49) The Fundamental Constitutions of Carolina (1669), available athttp://www.yale.edu/ lawweb/avalon/states/nc05.htm#2.

(50) Id. [section] 107.</p> <pre> [I]t shall be lawful for slaves ... to enter themselves, and be of what church or profession any of them shall think best, and, therefore, be as fully members as any freeman. But yet no slave shall hereby be exempted from that civil dominion his master hath over him, but be in all things in the same state and condition he was In before. </pre> <p>Id.

(51) Id. [section] 110.

(52) LOCKE, supra note 26, at 322. "Master and Servant An archaic generic legal phrase that is used to describe the relationship arising between an employer and an employee.

A servant is anyone who works for another individual, the master, with or without pay.
 are names as old as History, but given to those of far different condition; for a Free-man makes himself a Servant to another, by selling him for a certain time, the Service he undertakes to do, in exchange for Wages he is to receive." Id.

(53) Id.

(54) Id.

(55) Dred Scott v. Sandford In Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857), the U.S. Supreme Court faced the divisive issue of Slavery. Chief Justice roger b. taney, a former slaveholder, authored the Court's opinion, holding that the U.S. , 60 U.S. (19 How.) 393 (1856) (holding Dred Scott Dred Scott

decision majority ruling by Supreme Court that a slave is property and not a U.S. citizen (1857). [Am. Hist.: Payton, 203]

See : Injustice
 was not a citizen of the United States and therefore acquired no title to freedom when he was taken, by his owner, to Illinois).

(56) See, e.g., James J. Holmberg, Founders of America!, York of the Lewis and Clark and York Expedition, http://www.foundersofamerica.org/yorkl.html (last visited Nov. 20, 2005) (describing York's participation in the Lewis and Clark expedition and his life upon returning from the journey); Robert B. Betts, In Search of York: The Slave Who Went to the Pacific with Lewis & Clark (1985) (detailing York's role in the Lewis and Clark expedition and seeking to expose the impact of racial prejudice on historical interpretation).

(57) Meriwether Lewis & William Clark, The History of the Lewis and Clark Expedition (Elliott Coues Elliott Coues (September 9, 1842 - December 25, 1899) was an American army surgeon, historian, ornithologist and author.

Coues (pronounced Cows) was born in Portsmouth, New Hampshire. He graduated at Columbian University, Washington, D.C.
, ed., Dover Publications, Inc. 1893) [hereinafter Lewis & Clark Journals] (chronicling Lewis and Clark's expedition from the Mississippi River Mississippi River

River, central U.S. It rises at Lake Itasca in Minnesota and flows south, meeting its major tributaries, the Missouri and the Ohio rivers, about halfway along its journey to the Gulf of Mexico.
 to the Pacific Ocean and back); William Clark, Dear Brother: Letters of William Clark to Jonathan Clark (James J. Holmberg, ed., Yale University Yale University, at New Haven, Conn.; coeducational. Chartered as a collegiate school for men in 1701 largely as a result of the efforts of James Pierpont, it opened at Killingworth (now Clinton) in 1702, moved (1707) to Saybrook (now Old Saybrook), and in 1716 was  Press 2002) [hereinafter DEAR BROTHER] (detailing letters sent from William Clark to his brother, Jonathan, before, during, and after the Lewis and Clark expedition).

(58) Stephen Ambrose Stephen Edward Ambrose (January 10, 1936 – October 13, 2002) was an American historian and biographer of U.S. Presidents Dwight Eisenhower and Richard M. Nixon. He received his Ph.D. in 1960 from the University of Wisconsin-Madison. , Undaunted Courage 474 (1996) (citing a description of Meriwether Lewis penned by Thomas Jefferson where Jefferson referred to Lewis as possessing "courage undaunted").

(59) For example, much as York served Clark, James Thompson was an enslaved man who served Joseph Nicollet Joseph Nicolas Nicollet (July 24, 1786–September 11, 1843), also known as Jean-Nicolas Nicollet, was a French geographer and mathematician known for mapping the Upper Mississippi River basin during the 1830s.

Nicollet was born in Cluses, Savoy, France.
 and John Fremont in the exploration of the upper reaches of the Mississippi river. See United States Government Pay Records for 1839 (copy on file with author from the United States National Archives and Record Administration) (detailing John Fremont's engagement by the United States government on an expedition to map the upper Mississippi and Missouri rivers. Fremont was entitled to draw wages for a servant and listed James Thompson as his servant.).

(60) See Lea VanderVelde, Slaves in Free Territory (unpublished manuscript, on file with author) (detailing the holding of former slaves in servitude servitude

In property law, a right by which property owned by one person is subject to a specified use or enjoyment by another. Servitudes allow people to create stable long-term arrangements for a wide variety of purposes, including shared land uses; maintaining the
 in the Northwest Territory, despite the Ordinance of 1787 which banned slavery).

(61) Ambrose, supra note 58, at 118 (stating that Clark's fathers will demonstrates that York was the son of "Old York" and "Rose.").

(62) Having an accompanying servant was characteristic of gentleman of that era. For example, Jefferson Davis also kept a "body servant" to attend to him throughout his life. William J. Cooper, Jr., Jefferson Davis, American 49 (2000).

(63) 1 Lewis & Clark Journals, supra note 57, at 2.</p> <pre> The party consisted of [the two officers]; nine young men from Kentucky; 14 soldiers of the United States Army United States Army

Major branch of the U.S. military forces, charged with preserving peace and security and defending the nation. The first regular U.S. fighting force, the Continental Army, was organized by the Continental Congress on June 14, 1775, to supplement local
, who had volunteered their services; two French watermen [Cruzatte, Labiche]; an interpreter and hunter [Drewyer]; and a black servant [York] belonging to Captain Clark. All these, except the last, were enlisted to serve as privates during the expedition, and three sergeants [Floyd, Ordway, Pryor, were] appointed from among them by the captains. </pre> <p>Id.

(64) William Clark traveled earlier in his life seeking to bring into order the financial affairs of his older brother, George Rogers Clark George Rogers Clark (November 19, 1752 – February 13, 1818) was a soldier from Virginia and the preeminent American military officer on the northwestern frontier during the American Revolutionary War. , a hero of the American Revolution. AMBROSE, supra note 58, at 98.

(65) See Betts, Supra note 56, at 57 ("York's blackness served the expedition as a passport to western tribes who were so curious to see such a strange creature, and so impressed after they had, they greeted the white visitors more cordially than they might otherwise have done.").

(66) Yet cynically and sadly, this may have been true for Lewis's dog as well in the way that animals and even inanimate objects from home can become personified. Consider Tom Hanks' developing relationship with a volleyball to salve salve (sav) ointment.

salve
n.
An analgesic or medicinal ointment.



salve v.


salve

ointment.
 his loneliness in the movie Castaway Castaway
Arden, Enoch

shipwrecked sailor; lost for eleven years. [Br. Lit.: “Enoch Arden” in Benét, 316]

Bligh, Captain

commander of H.M.S. Bounty who was cast adrift by mutinous crew. [Am. Lit.
. CASTAWAY (Twentieth Century Fox 2000).

(67) 2 LEWIS & CLARK JOURNALS, supra note 57, at 395 (June 29, 1805).

(68) Id. at 712 n.31 (Nov. 18, 1805).

(69) Id. at 720 n.2 (Nov. 24, 1805).

(70) See 1 LEWIS & CLARK JOURNALS, supra note 57, at 159 (Oct. 9, 1804) (explaining the typical reaction of Indians to York).</p> <pre>

The object which appeared to astonish a·ston·ish  
tr.v. as·ton·ished, as·ton·ish·ing, as·ton·ish·es
To fill with sudden wonder or amazement. See Synonyms at surprise.
 the Indians most was Captain

Clark's servant, York, a remarkably stout, strong negro. They had

never seen a being of that color, and therefore flocked round him to examine the extraordinary monster. By way of amusement he told them that he had once been a wild animal, and caught and tamed by his master, and to convince them showed them feats of strength Feats of Strength are acts strongmen exhibit to showcase their great strength. They often require immense hand and finger strength, as well as core musculature. Modern feats of strength are usually performed strongman competitions, fitness exhibitions, evangelical presentations,  which,

added to his looks, made him more terrible than we wished him to be. </pre> <p>(71) AMBROSE, supra note 58, at 276.

(72) Id.

(73) 3 LEWIS & CLARK JOURNALS, supra note 57, at 1031 (June 2, 1806).

(74) AMBROSE, supra note 58, at 180.

(75) DEAR BROTHER, supra note 57, at 86 (citing reproduced letter sent from Fort Mandan dated April, 1805). Ben was another of William Clark's slaves and possibly York's son. Id. at 99100.

(76) See AMBROSE, supra note 58, at 131 (quoting letter of Ordway to his parents when setting out on the expedition).

(77) DEAR BROTHER, supra note 57, at 144 (citing reproduced letter dated July 21, 1808).

(78) Id. at 160 (quoting reproduced letter dated Nov. 9, 1808).</p>

<pre> I Shall Send york with nancy, and promit him to Stay a few weeks with his wife. he wishes to Stay there altogether and hire himself which I have refused, he prefers being Sold to return[ing] here, he is Serviceable to me at this place, and I am determined not to Sell him, to gratify grat·i·fy  
tr.v. grat·i·fied, grat·i·fy·ing, grat·i·fies
1. To please or satisfy: His achievement gratified his father. See Synonyms at please.

2.
 him and have directed him to return in John H. Clark's Boat if he Sends goods to this place, this fall. If any attempt is made by York to run off, or refuse to perform his duty as a Slave, I wish him Sent to New Orleans and Sold, or hired out to Some Severe master until he thinks better of Such Conduct. I do not wish him to know by determination if he conducts [himself]

well. This choice I must request you to make if his Conduct deserves

Severity. </pre> <p>Id.

(79) Id; see also id at 164 n.6 (editorial remarks discussing how Clark treated York no different than any other piece of property).

(80) Id at 183-84 (citing reproduced letter dated Dec. 10, 1808).

(81) Id. at 201 (citing reproduced letter dated May 28, 1809).

(82) Id. at 210 (citing reproduced letter dated August 26, 1809). At this time, Clark did not sell York, but instead was able to hire him out. Id. at 212 n.5.

(83) BETTS, supra note 56, at 119. William Clark later told Washington Irving that he had emancipated York, but many theories exist about the actual outcome of York and Clark's relationship. See id. at 118-143 (detailing possible outcomes of York's saga); see also DEAR BROTHER, supra note 57, at 98-99 (summarizing various stories of York's life).

(84) BETTS, supra note 56, at 123 (stating that while no official record of York's manumission has been found.

(85) Probate File of William Clark (1838), available at http://www.sos.mo.gov/archives/stlprobate/results.asp? PartyName=clark&radSearch=BEG&Year=1838&YearEnd=&hSearch=name.

(86) BETTS, supra note 56, at 129. Washington Irving's notes suggest York died of cholera in Tennessee while attempting to return to Clark's enslavement. However, no official date can be fixed to York's death. Id.

(87) See AMBROSE, supra note 58, at 401 (noting Meriwether Lewis's recommendation that his party members receive such compensation).

(88) JARED DIAMOND, GUNS, GERMS, AND STEEL (1997) (examining factors leading to European power in the development of world affairs).

(89) See id. at 76, 87 (detailing the importance of horses to the Spanish conquest of the Incas).

(90) Id. at 76-77 (outlining the reaction of the Incas to Pizarro's horses).

(91) See generally MACHAEL LEE LANNING, THE AFRICAN-AMERICAN SOLDIER: FROM CRISPUS ATTUCKS TO COLIN POWELL (1997) (discussing roles of African-American soldiers throughout American history).

(92) Id. at 26-27. See generally JOHN MISSALL & MARY LOU LOU Louisville (Kentucky)
LOU Hello You (email slang)
LOU Ley Orgánica de Universidades
LOU Letter of Understanding
LOU Loss of Use
LOU Limited Official Use
LOU Letter of Undertaking
 MISSALL, THE SEMINOLE WARS: AMERICA'S LONGEST INDIAN CONFLICT (2004) (outlining the history of the Seminole Wars and including several examples of the role escaped slaves took in prolonging the war by working with the Indians).

(93) See LANNING, supra note 91, at 30-43 (detailing the initial reluctance and eventual acceptance of black troops in the Union's Civil War effort). See generally JOSEPH T. WILSON, THE BLACK PHALANX phalanx, ancient Greek formation of infantry. The soldiers were arrayed in rows (8 or 16), with arms at the ready, making a solid block that could sweep bristling through the more dispersed ranks of the enemy.  (1968) (outlining the role of black soldiers from 1775-1812 and during the Civil War).

(94) See generally VanderVelde, supra note 60.

(95) Id. See generally Juliet E. K. WALKER, FREE Frank: A BLACK PIONEER ON THE ANTEBELLUM FRONTIER (1983) (chronicling the exploits of the dynamic Free Frank).

(96) JAMES n. DAVIS, FRONTIER ILLINOIS 117 (1998).

(97) See, e.g., WALKER, supra note 95, at 67-68 (discussing impact of Illinois law which required a black person to post a $1,000 security bond and a certificate of good character in the county where he or she intended to reside).

(98) Taliaferro, supra note 35, at June 16, 1839; See also Shaw Interview, supra note 36. At this time, Lawrence Taliaferro was stationed near Fort Snelling, now St. Paul, Minn. Id.

(99) Id.

(100) SAMUEL W. POND JR., TWO VOLUNTEER MISSIONARIES AMONG THE DAKOTA; OR, THE STORY OF THE LABORS OF SAMUEL W. AND GIDEON H. POND (1893) (discussing the work of missionaries in teaching farming techniques to the Dakota).

(101) See T.M. NEWSON, PEN PICTURES OF ST. PAUL, MINNESOTA AND BIOGRAPHICAL SKETCHES OF OLD SETTLERS 9 (1886) (providing a biography of James Thompson); see also Dr. Earl Spangler, The Negro in Minnesota: 1800-1865, MHS (1) (Message Handling Service) An earlier messaging system from Novell that supported multiple operating systems and other messaging protocols, including SMTP, SNADS and X.400. It used the SMF-71 messaging format.  Transactions Series 3 (1963-64) (describing Thompson's experiences in Minnesota), available at http://www.mhs.mb.ca/docs/transactions/3/negroinminnesota.shtml.

(102) NEWSON, supra note 101, at 9.

(103) Id. at 12.

(104) Id. at 11.

(105) Id. at 9.

(106) Id. at 10; see also Spangler, supra note 101 (detailing physical characteristics of Thompson).

(107) NEWSON, supra note 101 at 9.

(108) See WALKER, supra note 95, at 71-74 (chronicling Free Frank's journey from Kentucky to Illinois).

LEA VANDERVELDE *

* [C] Lea VanderVelde, 2005. Lea VanderVelde is the Josephine Witte Professor of Law and Global Scholar for the University of Iowa Not to be confused with Iowa State University.
The first faculty offered instruction at the University in March 1855 to students in the Old Mechanics Building, situated where Seashore Hall is now. In September 1855, the student body numbered 124, of which, 41 were women.
. She is a scholar of 19th century American Legal History, Property Law, and Labor and Employment Law. She has written on local zoning practices, the 18th Amendment, free labor, race and gender. She is currently interested in the relationship between property and liberty and their legal protections. Professor VanderVelde is also one of the authors of Casner, Leach, French, Komgold, and VanderVelde, Cases and Text on Property (5th ed. 2004).
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Title Annotation:The Rule of Capture and Its Consequences
Author:VanderVelde, Lea
Publication:Environmental Law
Date:Sep 22, 2005
Words:11937
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