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The role of captives and the rule of capture.

 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
 A. York's Role During the Expedition
 B. York and Clark's Relationship Upon Return


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

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

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

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

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


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

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

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

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

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

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

When captive persons are employed 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 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 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 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.


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. Both conquest and the rule of capture are allowed to run free in that historically imaginary 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 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 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 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 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 the mastery concept as universal, or does it instead relegate it to the realm of barbarity from which we wish to depart and begin anew progressively on the frontier?

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, 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, 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

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, 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. (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 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 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. (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 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 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 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 Locke's philosophy, the "wild Indian" is a taker 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 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, because their presence is seen as impermanent 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 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 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 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, 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 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 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, (49) the chartering constitution of the Carolina colony which Locke helped draft in 1669, Locke is remarkably solicitous 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." (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.

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 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, (55) with which I continue to be fascinated, is that it reinforced the ability of frontier conquistadors 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 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 to William Clark. (61) During Clark's travels, conventionally York would have accompanied him as his "manservant." (62) Thus, when Clark was commissioned to undertake the first extensive American discovery of the Louisiana Purchase, 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, and pack for his master as a slave accompanying a master's stagecoach 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. (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 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. 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 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 and Sulky, 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 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 the man, there is no clear evidence of this fact. (83) York's possible manumission 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 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.


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 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 with armed slaves during the Nat 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)


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" 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 in the same way they occasionally adopted other traits of the settlers. This is chronicled in the diary of Lawrence Taliaferro, 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 was brought as a slave to Fort Snelling in what would become Minnesota and achieved eventual freedom, but it was a very circuitous 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 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 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. 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)


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, 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. 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; Clarksville, Indiana); with dog (Sioux City, Iowa; St. Charles, Missouri; Legion of Valor Veterans Museum); with Sacagawea (Charlottesville, Virginia); with dog and slave York (Great Falls, Montana); with Sacagawea and York (Kansas City, Missouri); York alone (Louisville, Kentucky).

(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 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 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); 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. 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 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" rule in overreaching contracts--when contracts overreach, 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. 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 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 to describe broad judicial limits on the capture of common resources by a "disorganized public").

(13) See infra 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).

(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, The Middle Ground: Indians, Empires, and Republics in the 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. 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, 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 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 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 has recently dissected the resonating meanings of "illegal" and "illegitimate." See Noam Chomsky, Institute Professor, Professor of Linguistics, Massachusetts Institute of Technology, Illegal but Legitimate: A Dubious Doctrine for the Times, Lecture at the University of Michigan Law School (Oct. 28, 2004), available at

(21) See Jesse Dukeminier & James E. Krier, Property 3 (5th ed. 2002) (quoting the maxim of Roman law "Qui prior est tempore potior est jure" to mean "Who is first in point of time is stronger in right").

(22) The Laws of Manu 196 (Wendy Doniger 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, 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 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, 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 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 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 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, art. 3, JCC 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 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 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, 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 Region 33 (Bureau of American Ethnology, Thirty-Third annual Report to the Secretary of the Smithsonian Institution, 1911) (discussing Native American use of acorns as food in times of necessity), available at

(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...."


(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 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.


(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.


(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 at 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 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, 60 U.S. (19 How.) 393 (1856) (holding Dred Scott 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, (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, ed., Dover Publications, Inc. 1893) [hereinafter Lewis & Clark Journals] (chronicling Lewis and Clark's expedition from the Mississippi River to the Pacific Ocean and back); William Clark, Dear Brother: Letters of William Clark to Jonathan Clark (James J. Holmberg, ed., Yale University 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, 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 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 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, 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, 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 his loneliness in the movie Castaway. 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 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 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 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 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 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 (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).


(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 Transactions Series 3 (1963-64) (describing Thompson's experiences in Minnesota), available at

(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).


* [C] Lea VanderVelde, 2005. Lea VanderVelde is the Josephine Witte Professor of Law and Global Scholar for the University of Iowa. 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
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