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The newly minted statue in the new American Indian. Museum in the nation=s capital depicts only three figures,. Meriwether Lewis, William Clark and Sacajawea ...

The University of Iowa College of Law University of Iowa Legal Studies Research Paper Number 05-23

October, 2005

The Role of Captives in the Rule of Capture Lea VanderVelde College of Law, University of Iowa

An index to the working papers in the University of Iowa Legal Studies Research Paper Series is located at: www.law.uiowa.edu/faculty/workingpapers.php This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract= 819345

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The Role of Captives and the Rule of Capture Lea VanderVelde, Josephine Witte Professor of Law and Global Scholar, University of Iowa College of Law

The newly minted statue in the new American Indian Museum in the nation=s capital depicts only three figures, Meriwether Lewis, William Clark and Sacajawea. The encounter symbolizes two sides of the American national character: white settlement and 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, the slave of Clark, who by the famed explorers= own accounts played critical roles in aiding the expedition in such a manner that they were able to return to tell the tale, is not depicted in the classic icon, newly cast to celebrate the national museum. Various sculptures of the heroic explorers placed around the nation are no different. Compositions include Lewis and Clark alone, Lewis and Clark with dog, and Lewis and Clark with Sacagawea.1 York is rarely present in the statuary, usually standing alone, representing the afterthought of compensatory history. Sandy Levinson would say that our public historical art tells us a lot about ourselves.2 But this essay is not about our public art, it is about meaning, legitimation, and functional result. The new statue suggests that York=s contributions are still overlooked in the nation=s story of [email protected] and origin. Not only was York denied the reputational fame that he undoubtedly deserved, the tragic outcome of York=s real life suggests that the 1. locations of statues: Lewis & Clark alone, (Seaside, Ore.; Clarksville, In.) With dog (Sioux City, Ia; St. Charles, Mo; Legion of Valor Veterans Museum,) With Sacagawea (Charlottesville, Va.); with Dog and Slave York (Great Falls, Mont.) With Sacagawea and York (Kansas City, Mo.) York alone (Louisville, Ky.) 2. Sanford Levinson, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES (1998).

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captive utilized in the American master plan of conquest and manifest destiny could not legally even insist upon his own independence as a result of his extraordinary deeds. This symposium on the law of capture in celebration of the 200th anniversary of the Lewis and Clark expedition allows us the opportunity to consider the role of captives in the rule of capture in a time and at a place of a particularly important story of origin. The rule of capture plays a special role in American exploration and expansion because it fixes the legitimacy of original title to property. The rule of capture patrols the boundary of the interplay of property, work, and liberty. The capture rule sets the perimeter around what has been captured and operates so as to withdraw that delineated benefit from the pubic domain and convey it instead to the captor as private property. Implicitly, the capture rule determines what can be captured, who can be a captor, and what the appropriate means of capture are wherever it is applied. What entities are subject to the capture rule implicates philosophical and practical questions of propriety and commodifiability. Each new species of capture, whether fuzzy leukecytes, stem cells, songs, breath patterns, lands, or navigable waters, must be deemed open for capture to be subject to the rule.3 Of these related questions, however, I focus on instrumentalities and the important question of whether human beings can be instrumentalities of other persons. Implicit in any sort of resource law regime is the question of whether the instrumentalities used in the capture are appropriate means. The rule of capture has been applied to a wide variety of natural resources, as this conference demonstrates.4 Fish and frogs cannot legitimately be captured by hurling a bomb into the stream to kill them, notwithstanding the humorous, enterprising actions of the Triplets of Belleville.5 All natural resource legal systems develop corollary rules, which designate the instrumentalities which are appropriate 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. Thus, in many jurisdictions, salmon cannot be taken by 3. Id. at _____ 4. List participants and natural resource topics. 5. Consumers of frogs legs, the animated (and syncopated) sisters of song capture their daily fare by blowing up local ponds and collecting the dead frogs.

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wheels or nets; forestry, grass, ferae naturae, and water all have their own resource-specific limitations.6 A captor=s use of illegitimate instrumentalities will cause the captor to either forfeit the claim altogether or will limit the scope of his claim to what could have been taken had appropriate means been utilized.

6. Anderson v. Beech Aircraft Corporation, 699 P.2d 1023 (Kan. 1985) ; Cline v. American Aggregates Corporation, 474 N.E. 2d 324 (1984).Dean Lueck, THE RULE OF FIRST POSSESSION AND THE DESIGN OF THE LAW, Journal of Law & Economics 393 October, 1995

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Even the famous case of Pierson v. Post, that exemplar of property law known for introducing the rule of capture to first year property law students, can be seen as a question of instrumentality: whether the efficient instrumentality of shooting by a marksman should overcome the more traditional, but cumbersome instrumentality of dogs running a fox to its death with hounds.7 New technologies sometimes allow one person to collect too much of a limited resource that is supposed to be open for the benefit of all. New technological means of increasing the efficiency of capture inevitably give rise to legal challenges that the new means are not just unsporting, but downright unfair by taking too much of the resource.8 In addition, the competitive advantage of these new technologies means that the threshold is often higher for entry into competitive appropriation of the resource, or that people utilizing the older technologies to support their subsistence can be outmaneuvered in competition and practically denied access to the resource. The approval of instrumentalities thus mediates the competition between potential captors by declaring some means permissable and others banned. In later stages of resource management schemes, appropriate instrumentalities are determined by regulation. But in frontier settings, or cases of first impression, they are determined by judicial recognition. The selection of appropriate instrumentalities does one further important task. It sets proportionality limits on the amount of the resource captured. Thus, those instrumentalities which are 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 some overkill solution to the capture problem that is likely to overharvest the resource or waste it for others. This is quite the inverse of the way that the rule of capture is traditionally portrayed. Instead of Ayou can eat what you kill,@ it is instead Ayou can kill as much as you will [email protected] As I wish to demonstrate later in the essy, this rationale is part of Locke=s original rhetorical justification for the capture rule. 7. Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805) cited in Casner, Leach, French, Korngold, and VanderVelde, CASES AND TEXT ON PROPERTY (5th ed. 2004). 8. See dissent of Pierson v. Post. 5

But suppose that capture is done with the use of something other than the captor=s bare hands, his objects, or his animals. What if the instrumentality employed is not nets, traps, guns, or hounds and horses, but instead other potential competitors for the crown of capture? What if people -- other human beings acting in the role of servants, agents, slaves, or employees of some dominant master out to take all -- are the instrumentality by which he does so? When a capture is completed by a servant, when should that capture be declared a private property of the master and when of the actual person who establishes the perimeter around the wild thing? When and why should the master be able to deputize others to capture in his name? More importantly, 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 his extending his reach over other free or wild things? Certainly, if instrumentalities impose limits on a captor=s reach, that captor, who has expanded his reach by the extent of his own control over other human beings, has virtually no limit to the amount of a resource that he or she can capture and control. Suppose that captive persons are employed to accomplish these ends? Clearly this implicates whether human beings can appropriately be the subject of capture. Can they be subject to capture in totality or9 even partially? Even a partial captivity involves a limit set upon human freedom and a deprivation of some range of liberties. We naively presume that the government in the land of the free and the home of the brave offered fresh opportunities to all. Suppose that we come to realize that enslavement is embedded in all of the stages of conquest, and all the earliest acts of capture from whence legitimate title is said to date? Does that not further de-legitimate our story of origin and the explanation of why we as a nation prevailed, which is, after all, one of the purposes of stories of origin 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. Both the title of our lands, the scope of our lawful jurisdiction, and the purity of the deeds that brought us to the present state are implicated by York=s presence in the Corps of discovery that travelled through Western lands and the philosophical articulation of the capture rule which came to apply to those lands.

9. Richard White, THE MIDDLE GROUND: INDIANS, EMPIRES, AND REPUBLICS IN THE GREAT LAKES REGION, 1650-1815 (1991). 6

Philosophical grounding: 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 Athe [email protected] I call the Frontier an imaginary place because recent, more realistic, historical accounts describe the long period of contact in a middle ground. The idea of the [email protected] in American law in delineating the geographical realm of American expansion is as potent as the idea of [email protected] in the West as explained by Edward Said.10 The frontier is open, for settlement, for capture, for domination. AManifest [email protected] made it a national imperative.

10. Compare Edward Said, ON ORIENTALISM and Patricia Nelson Limerick, LEGACY OF CONQUEST: THE UNBROKEN PAST OF THE AMERICAN WEST (1987). 7

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 the three phases of western colonization: discovery, conquest, and settlement.11 The capture rule is a key mechanism in converting the Frontier to the more settled norm. 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 Arule of [email protected] transforms the frontier into the settled part of the polity appropriately through the acts of appropriation. The function of capture unmistakably parallels the field of its domain: Conquest. The conqueror sovereign gets to decide who can be a captor and what kinds of means and other people can be employed to that end. The capture rule legitimates and articulates the grounds on which conquest dispossesses others. It makes the actions of conquest and dispossession proper: property in the captor. Consider the rhetorical work that the word [email protected] carries as embedded in arguments of [email protected] Consider [email protected] versus [email protected] and [email protected] as a verb versus appropriate as an adjective. I mean this comparison of terms in the similar sense that Noam Chomsky has recently dissected the resonating meanings of [email protected] and [email protected] The capture rule serves all those marvelous objectives of convenience that we extol in bright-line property rules, that as between multiple captors, it identifies a single one, the dominant captor, for preeminence of right. AFirst in time, first in [email protected] is a convenient [email protected] and decision rule since there is almost always only one chronological first.13 Similarly, in most cases of conquest, there is only one sovereign,

11. Patricia Limerick maintains that the frontier closes when tourism is introduced. Patricia Nelson Limerick, LEGACY OF CONQUEST: THE UNBROKEN PAST OF THE AMERICAN WEST (1987) 12. Noam Chomsky lecture at Michigan Law School. 13. 8

who will prevail in conquest, an equally convenient outcome providing a neat legal solution. 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, and goes further by resolving all struggles over property by assigning all property to the highest class of men, the Brahman.14 AA Brahmana may confidently seize the goods of his Sudra slave; for, as that slave can have no property, his master may take his [email protected] 15 But the portent of invoking this ancient rule is ambiguous: does this ancient rule legitimate the mastery concept as universal, or does it instead relegate it to the realm of barbarity from which we wish to create a progressive departure and new beginning on the frontier? The servant, the slave, the apprentice, and the agent, all exercise their efforts of labor for the benefit of the capture pay-offs of others, those others who are their masters.16 When the capture takes place in the wilderness, it seems to be a very special case of respondeat superior 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 wilderness where the employer has no greater claim as a tenant of the commons than does the employee? Should that status as servant necessarily preclude their ability ever to extend their efforts for capture on behalf of themselves? Is the servant always the instrumentality of property acquisition and never the receiver him or herself? What does the presence of a captive slave, sometimes rescuing the expedition and yet, never achieving his freedom as a result mean to the legitimacy of law of conquest, the law of property, and the Arule of [email protected] Once captive, never freed.

14.. AWhatever exists in the world is, the property of the Brahmana; on account of the excellence of his origin The Brahmana is, indeed, entitled to [email protected] THE LAWS OF MANU, (Wendy Doniger, trans. Penguin 1991)Laws of Manu, Section 100. Section 416. 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. 15.Laws of Manu, section 417. 16. Blackstone, Master and Servant 9

What does it mean that York accompanied Lewis and Clark in one of our key stories of origin? We traditionally expunge him, and others like him, from our history, except when we make great compensatory strides of show to re-include him. What does his existence mean to the legitimating legends that we tell ourselves about the propriety of how American West became part of the American polity? As commemorations of first events occasion reflection, it=s time to explore the role of captives first, in terms of philosophical grounding, second, in actual historical experience, and finally, in practical economic consequences for distributional ends. A. The Philosophical Grounding For all Blackstone=s influence in disseminating the common laws to the west, it is Blackstone=s pre-cursor, John Locke, who was the architect of the capture rule for American purposes.17 John Locke is said to be the originator of the labor theory of property and he provided its philosophical grounding.18 In his expansive treatise on the propriety of government, John Locke simultaneously constructed the ethical propriety of conquest and of slavery. In Locke=s treatment of the rule of capture, conquest, and slavery lies an eerily anomalous argument. By legitimating conquest and slavery, Locke effectively paved the way for the claim that European descendent settlers were the only appropriate people to establish a claim of legitimacy 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 Second Treatise on Government19 expunges the Native American territorial claim as it simultaneously allows the settler=s servant to expand the reach that 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 been the laborer.

17. Blackstone in a saddlebag. Casner, Leach, French, Korngold, and VanderVelde, CASES AND TEXT ON PROPERTY (5th ed. 2004). 18. 19. 10

Locke seemingly bypassed or ignored the implicit contradiction that slaves who labor, hence perform the meretricious 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. These limits which were swept away when the rule was applied in the west. Captors vis Original Inhabitants Locke invokes the claim of Native Americans at the outset of his discussion of the rule of capture. He writes: The fruit, meat or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, or 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.20 (emphasis added.) In Locke=s words, the Awild [email protected] who Aknows no enclosure,@ 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. By knowing no enclosure, Locke positions the Indian as having not even a territorial claim. The Indian is a drifter with claims only to the food that nourishes him at the time that he gathers it.

20.John Locke=s SECOND TREATISE ON GOVERNMENT, section 25. [Catlin Slide of Indians tracking buffalo]. 11

In this respect the U.S. government took a slightly more respectful position towards 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. Whether the American government=s insistence upon [email protected] 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. In fact, there was considerable conflict between tribes and settlement outposts all across the moving frontier whenever the settlement people 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 span of diary, 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.21 In 1833, for example, a trader named Joseph Brown erected a fence and cabin in an area along the upper Mississippi then known as the Olive Grove. 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 because they knew the deer to come down to the river there to drink.22 Brown viewed himself as the first appropriator of the site, but the Mdeketowan tribe did not. They viewed Brown as the interloper. Similarly, a few years later, the same Dakota tribe complained to the Indian agent that the Faribault family had cut down all the oak trees in a grove of trees at another site. Groves of trees were rare on the prairie, but the oaks were useful to the tribe primarily as a source of acorns, bitter food to be sure. Acorns could tide them over in the depth of winter when other food sources were scarce.23

21. Lawrence Taliaferro diary held at the Minnesota Historical Society. 22. Lawrence Taliaferro Diaries. 23. 12

According to Locke, the Awild [email protected] is a taker of acorns or other foods only from the point of their first gathering. Selecting this point for property ownership to attach produces the effect of levelling the playing field between 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. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. When did they begin to be his? When he digested? Or when he ate? Or when he boiled? Or when he brought them home? Or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could.24 Both Locke, the English philosopher, and Joseph Brown, the settler, did not pause to consider that the Indians= claim may date from an earlier point of usage, such as the first time that the tribe established a pattern of gathering acorns from the trees or tracking deer at the river. This discursive rationale persuades settlers to ignore what might have been legitimate claims of Native American tribes that they had fished, hunted, among the hunter gatherers or built their lodges and planted their gardens routinely each appropriate season at specific spots well before the newcomers.25

24. Section 28. 25. On June 10, 1834, a delegation of local Sioux approached the St. Peters Indian Agency. The men complained that a white man, a Mr. Joseph Brown, was building a cabin at the Olive Grove along the south bend of the river. This site had long been a favored one by the tribe. It was a natural landing, sloping gently toward the river. It was sheltered by trees and well-adapted for the tribes= lodges as a camping ground when they went to fish. Mr. Brown had also recognized the desirable location. Viewing it as unclaimed (by any other white man), Brown had started fence it in for himself. The Indians complained that the man was scaring off the deer that were accustomed to come down to the water there. The tribe wanted him removed. AIf he is not removed,@ the delegation spokesman maintained, Ahe will cut our timber to sell to steamboats as he has already done for some [email protected] U.S. Indian Agent Taliaferro 13

Thus, although unquestionably first in time of use, the Indians= land claim doesn=t precede and prevail over those of white settlers because the Awild [email protected] did not enclose it such as to deprive others. If Indians don=t have land claims, then their claims to specific resources don=t derive from ratione soli or from their prior usage. 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 say, riparians do. Historical patterns of repeated usage hence, count for nothing in a Afirst in time, first in [email protected] sort of claim. Moreover, the fact that Indians may have harvested acorns from lands now enclosed by the Faribault family gives them no ancient right from time immemorial, because their presence is seen as impermanent and transitory, and none of the settlement people remember the Indians= ancient pattern of usage, having only arrived in the area without memory. The memory of a conquered people=s usage of a resource doesn=t count in legitimating a resource claim. The Captor and his Servant

promised the Indians that he=d look into the matter. And so, he sent Joseph Brown notice to remove trading post from the Olive Grove by November. Lawrence Taliaferro diary for June 10, 1834. 14

Just as John Locke=s Second Treatise on Government extinguishes the Indian claim to pre-emption, it allows the settlers= servant to expand the reach of the master. Hence, as between the three types of claimants to unclaimed wilderness land, animals, resources, and profits, Locke gives one kind of captor the preferred claim to ownership, regardless of whose labor is expended in the task. 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. 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. Locke skates over the possible distinction that natural resource reduced to possession by servants becomes the property of masters by burying the possibility between grass eaten by a horse (horses again) and ore dug by the master himself. (The weakest persuasive example in any series is usually listed in the middle. It thus adds to the cumulative effect but escapes scrutiny.) Locke writes:

Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged (sic) in any place, where I have a right to them in common with others: become my property, without the assignation or consent of any body.26 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 one=s 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.

26. [Show slide of turf cutter] 15

Throughout this passage, by repeated reference point, Locke emphasizes that the food one gathers is one=s own because of its proximity to consumption and nourishment. A[B]efore it can do him any good for the support of his life,@ AHe that is nourished . . . has certainly appropriated them to [email protected] Awhen he digested? or when he ate? or when he boiled? or when he brought them home [email protected] AThe grass my horse has bit . . [email protected] AOr else children or servants could not cut the meat which their father or master had provided for them in common . . . [email protected] are hunger appeals. As responding to hunger seems an obvious concession, a humane imperative, who 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. These captors are not justified in the 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. Or holding their fellow tenants in their control by their legal dominion over the means of survival. Implicit in the persuasive elements of Locke=s choosing, chosen to justify the ethical propriety or common sense of the rule of capture is the limit of proportionality to personal need. By adding servants and slaves to the equation the clarity of the proportionality limits become clouded. Captive Peoples in aid of Captors So what does Locke say about slavery? In the person of the slave, one sees someone who is subject to conquest as well as captivity. What are the philosophical implications of the contributions of slaves like York, to discovery, given the rule of capture? According to Locke, true slaves were but living ghosts, people who may as well have been dead from conquest wars themselves. According to Locke, a man could not voluntarily become a slave. He could not sign away his freedom to enter slavery. Entering slavery was not possible as a voluntary act, any more than committing suicide was deemed to be a legal act. 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 16

under the absolute, arbitrary power of another, to take away his life when he pleases. Nobody can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it.27 Instead, the slave only became a slave by being spared death. AIndeed, [H]aving 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 outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.28 The legitimately held slave is no victim in Locke=s account, but so significantly at fault so as to have forfeited life itself. As a result, life enslaved, though horrible, seems the better, more charitable option of the conqueror, who thus is performing an act of grace by sparing the slave from death rather than of oppression by the enslavement. 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 deserving of enslavement. Locke continues: This is the perfect condition of slavery, which is nothing else but Athe 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

27.Of Slavery sec 23. 28. Id. 17

agreement, pass over to another that which he hath not in himself, a power over his own life.29 Buried in this long sentence is the word, Alawful,@ utilized to legitimate the conquest. Slavery=s continued lawfulness appears to derive from the continued state of war between captive and his or her lawful conqueror.

29.Sec. 24. 18

This condition, 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 the U.S. One feature that marked the captivity of almost all American slaves, including York, was their ability to be passed from hand to hand by gift, sale or inheritance. Yet selling a slave did not resemble Athe state of war [email protected] How could a lawful conqueror maintain the legitimacy that a state of war continues if he has the right to sell the slave? Furthermore, Locke=s liberating power of compact between conqueror and captive slave does not seem to be something to which he believed slaves to be entitled in his other famous works. In the AFundamental Constitution for the [email protected] drafted 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.30 Lest there be any doubt of a slave=s place, Locke follows up with: AEvery freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion or religion [email protected] 31 Nor does Locke explain why the state of war is allowed to continue once a slave=s obedience is attained. Why should another man, a [email protected] conqueror have the right of enslaving power over a person=s life that the person himself cannot command. Although Locke distinguishes freemen servants from slaves, he notes that slaves too are another sort of servants.32 This class of servants who @we call slaves, who being captives taking in a just war,

30.He writes: it 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. Id. at 107. 31. Id. at 110. 32.Sec 85. Master and servant are names as old has history, but given to those of far different condition; for a freeman 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: 19

are by the right of nature subjected to the absolute dominion an arbitrary power of their [email protected] 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. 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 among 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 hence incapable of property holding. Furthermore, jumping far ahead in the historical chronology, the tragedy of the Dred Scott case, with which I continue to be fascinated, is that it reinforced the ability of frontier conquistadors to utilize the instrumentalities of slaves to conquer and capture more than they could by their own efforts. To the extent that Dred Scott is a question of westward expansion for the American nation, it is a matter of extending the reach of masters to compete more favorably among themselves and with the Native Americans, depending upon how many slaves they could control. 1. A Slave=s Role in the Corps of Discovery The existence and lives of enslaved explorers, like York, detail the role of captives in [email protected] by military actors as part of settlement people=s advance wave. York=s contributions to the mission and his subsequent treatment33 come from accounts from Lewis= and Clark=s

33. York By James J. Holmberg /www.foundersofamerica.org/york1.htmlBetts, Robert B, In Search Of York: The Slave Who Went to the Pacific With Lewis & Clark. 1st edition Boulder, CO: Colorado Associated University Press, c1985. Reprinted with a new epilogue by James J. Holmberg. Boulder: University Press of Colorado: Lewis & Clark Trail Heritage Foundation, c2000. 20

own writings. AUndaunted [email protected] may be a phrase that describes York at least as aptly as it does his masters, yet it is rarely applied to him.34 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.35 Moreover, most men who were commissioned to explore on behalf of the U.S. government simultaneously held appointments as military officers. Accordingly, these explorers simply followed the pattern of other officers entitled to valets.36 York, an enslaved man of William Clark, accompanied the famous Corps of Discovery in its epic journey to the Pacific and back, 1803-06. The son of a Clark family slave, he grew up as the companion and body servant to William Clark.37 During Clark=s travels, York would naturally have accompanied him as his [email protected] When Clark was

James J. Holmberg, ed., DEAR BROTHER: LETTERS OF WILLIAM CLARK TO JONATHAN CLARK, (Yale University Press, 2002); James J. Holmberg, "I Wish You to See & Know All." We Proceeded On 18 (November 1992): 4-12. Maureen Graham, The Hidden Relationship of William Clark and York. http://www.pbs.org/lewisandclark/archive/idx_jou.html July 1, 2003. Meriwether Lewis & William Clark, The History of the Lewis and Clark Expedition(Elliott Coues, ed., 3 Vols., Dover Publications, Inc.) (1893) 34. Stephen Ambrose, Undaunted Courage (19 35.James Thompson was one such enslaved man who served Joseph Nicollet and John Fremont in the exploration of the upper reaches of the Mississippi river much as York served Clark and Lewis. 36. See Lea VanderVelde, Slaves in Free Territory (unpublished ms). 37. Stephen Ambrose, at 118. From the Clark=s father=s will we learn that York was the son of AOld [email protected] and [email protected] 38. William Clark traveled seeking to bring into order the financial affairs of his older brother, George Rogers Clark, a hero of the American Revolution. 21

commissioned to undertake the first extensive American discovery of the Louisiana purchase, York was one of the two dozen participants.39

Having an accompanying servant was characteristic of gentleman of that era. Jefferson Davis also kept a Abody [email protected] to attend to him throughout his life. 39.AThe 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; an interpreter and hunter; and a black servant [York] belonging to Captain Clark. All these, except the last, were enlisted as privates during the expedition, and three sergeants appointed from among them by the [email protected] 22

York=s compelled service to his master probably seemed natural to Clark, who was accustomed to being accompanied by a manservant when he travelled. 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 stage coach travel might have. Traveling over unknown terrain placed York on a more level playing field with 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. His distinctive physical appearance as a black man appears to have influenced Indian tribes to approach the travellers with friendly curiosity rather than hostility that might be feared by intruders in Indian territory. York assumed a much higher presence in the travel party=s diaries as the troop spent more and more days away from the slavery reenforcing 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 and yet both hailing from the same cultural background, York=s humanity is shown in much higher light. (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.)40 York=s personal concern for William Clark and others of the party was noted when they were caught in a flash flood.41 York=s trip to see the ocean was noted in the journey=s log,42 and he voted in the group decision upon which direction to go.43 There was almost a reciprocity developing between master and slave as fellow travellers engaging the same overwhelming obstacle when the log disclosed that York was out

40. Consider Tom Hanks= developing relationship with a volleyball to salve his loneliness in the movie, [email protected] 41.June 29, 1805. 42. Nov 18, 1805. 43.Nov 24, 1805. 23

hunting and Clark patiently waited for him to complete his hunt before proceeding home.44 His presence also had an effect on the Indian tribes through whose territory the expedition traveled. Early in the expedition, York was noticed.

44.Dec 7, 1805 24

AThe 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.A45 York cannily appeared willing to play the subservient, domesticated fool in order to intimidate the Indians for the larger benefit of the travelling party. After that first encounter with an Indian tribe, word of his presence seemed to precede the expedition to other tribes changing the tone of an encounter that could have been hostile into one sparked by curiosity of the indigenous group at home in their surroundings who outnumbered the travellers. 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 Awho was black and had short curling [email protected] The Indians expressed great eagerness to see such a curiosity.46 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 leader.47 One tribe of Indians were sufficiently impressed with York=s presence to offer him an Indian woman as other members of the party enjoyed the favors of Arikara women.48 What=s more, though technically a captive 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 45.10-9-1804. Meriwether Lewis & William Clark, THE HISTORY OF THE LEWIS AND CLARK EXPEDITION VOL. 1, p.158-159 (Elliott Coues, ed., Dover Publications, Inc.) (1893) 46. Ambrose at 276. 47.May 28, 1806: June 2, 1806: York is sent on a trading voyage with McNeal 48. Ambrose at 180. 25

belonging to his master. In a letter of May 1805, York=s master is sending buffalo robes from Fort Mandan to Louisville as gifts. He notes that in the package, ATwo others York tells me that he has put up in the third box as marked Afor his wife & Ben [another of William Clark=s slaves, possibly York=s son]. The men who accompanied the Corps of Discovery were promised Aa great Reward for this expedition, when we [email protected] Returning from the territory to the United States brought a rough landing for York, however. Whatever quasi-independent, autonomous existence York had negotiated for himself or subconsciously managed to attain in the wild evaporated rapidly when the Corps of Discovery returned home. By 1808, York was back performing strictly domestic chores again for William Clark=s St. Louis household. Appropriate to his resumed domestic role, York was noted as working for Clark pruning in his garden.50 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. His master, William 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. I shall send York with Nancy, and permit 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 returning 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. 51

49. Letter of Ordway to his parents when setting out on the expedition quoted in Ambrose at 131. 50.July 21,1808 51.11-9-1808. 26

Indicative of his view of York, after providing instructions for the disposal of York, Clark=s next passage in the letter refers to his horses. 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, Clark, clearly acting the master, writes: ... 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 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 B 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.52

52.12-10-1808 27

5-28-1809 York brought my horse, he 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. 8-26-1809 - Since I confined York he has been a gadd (sic) fellow to work; I have become displeased with him and shall hire or sell him, on the 5th 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 him or sell him. I can=t sell negroes here for money. York=s persistant desire for freedom made him an uneasy slave and unpopular person among other free persons in the community. William Clark recieved a letter from his brother stating: how you mean to dispose of York is another matter -- I don=t like him nor does any other person in this country and, was it not for this friendship for you I believe he wd. Have been roughly used when he was up last.53 What became of York? Although William Clark later claimed that he had emancipated the man,54 there is no clear evidence of this fact. There is no mention of York being emancipated in the St. Louis court records which contain other manumissions by other St. Louis masters during this period. At Clark=s death the estate contained some fourteen slaves in all, including one by the same name as the slave man to whom York had sent a buffalo robe.55 York was not listed as a legacy, but he 53.Sept. 3, 1809. Mo His Box 3. 54.William Clark later told Washington Irving that he had emancipated York 55. 9-3-38 Estate of William Clark: 11 slaves named, 14 in all. Son, Meriweather Lewis Clark: {age 29} 3 slaves Cloe (African), BEN, and ANTHONY valued at $1100 Son, William Preston Clark: {age 26} 3 slaves, NANCY (Nancy York?), HENRY and SON ALEXANDER (son of Nancy) valued at $1150. Son, Jefferson Kearney Clark: {age 14}my negro girl, ROSETTA (daughter of Nancy York) and all my plate 28

very well might have been dead by that time. York seems to simply have disappeared.

Son, Geo. R. H. Clark: {age 22} 7 slaves: ALLEN LEWIS, LETTY and child, EMILY and children. 29

As stories of origin frame legitimate historical beginnings, so too, close re-examination of stories of origin 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 efforts. Yet despite York=s important contributions to the mission, his heroism was not recognized by the grateful country or his successful master on their return. Whereas other members of the Corps of Discovery recieved medals, land grants, government positions, and additional solicitudes, York=s contribution did not even merit his release from bondage upon his return. 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 when he returned home. In fact, the wilderness experience itself had leveled the playing field between master and slave in some ways and increased the slave=s subjectivity as more than a mere instrumentality of his master. 2. Slaves= Role in the process of Conquest AGuns, Germs, Steel,@56 the title of Jared Diamond=s interesting and popular book, identified the key instrumentalities of conquest across the globe. Diamond himself had initially included horses in the title list, but he could well also have added slaves.57 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 conquistadors horses in the new world. What marvel was this new being 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.58 The Americans did 56. Jared Diamond, GUNS, GERMS, AND STEEL (1997). 57. Id. at 76, 87. 58.Yet African American slaves played a minor role in the Dragoons. The show power of slaves, evidenced by the various tribes= reactions to York was institutionalized with the military unit of the Dragoons, which patrolled the prairie, the area then known as the 30

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. The threat that 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 the expedient of 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. 3. Slaves= Role in the Settlement phase

Great American Desert, in a show of strength. Slaves among the Dragoons. Document Henry Dodge. 31

The role of captives in discovery and conquest inevitably carried over into the settlement phase as well. The varied and contested role of slaves in the settlement phase of the frontier is beyond this article=s scope.59 Suffice it to say, slaves frequently settled lands, not only in the South and East, but also in the North and West on behalf of their owners= homesteading interests rather than themselves.60 Military men at the outposts ordered slaves to be brought to them from regional slave markets or acquired them there before they left for the frontier. What does it mean that pioneers wanted slaves to settle the west? The presence of a desire for slavery in the expansion of the frontier line is present even in the Illinois territorial records.61 Even the Indians wanted slaves. Indians recognized the usefulness of slaves to American military officers and major Indian traders, As they occasionally adopted European traits for modeling, they sought to acquire the privilege of slaveholding too . In the diary of Lawrence Taliaferro, Indian agent to the Dakota people in 1830's,62 the Indians thought sufficiently well of the advantages of slaves that they wanted to have some of them too. The post of treaty blacksmith and treaty farmer were always difficult to fill by white persons because the Dakota wanted their treaty farmers, to farm for them, rather than to teach them to farm. So was the frontier a place of freedom for slaves? Could slaves stay on the Frontier to retain their freedom. The answer is mixed. 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. James Thompson, for example, was brought as a slave to Fort Snelling in what would become Minnesota. The very skilled, black man had was the sutler=s slave and he was later was sold to a captain at the fort.

59. See instead ASlaves in Free [email protected] 60. Juliet E. K. Walker, FREE FRANK: A BLACK PIONEER ON THE ANTEBELLUM FRONTIER (1995). 61.The evidence: Letters in Putnam museum. Ft. Snelling demand for slaves. Debate in Illinois over slavery. 62. Lawrence Taliaferro was stationed at Fort Snelling, now St. Paul, Minnesota. 32

For a man enslaved, Jim Thompson had managed a remarkably independent existence. Although he lived at Ft. Snelling, he wasn=t confined to life within the fort=s stone walls. With a fair degree of freedom of movement to range about the area, he had even taken a Sioux wife and they had a couple children. He often took up odd jobs for other masters to support his family. He=d even built office furniture for the Indian Agency. Not only was he handy at carpentry, he was equally adept at the wilderness survival skills of hunting, fishing, and navigating canoes, and his physical strength and skill too had impressed even the Indians. With his master=s military transfer, however, the large Black man, who was still legally enslaved, was removed to a place where his Sioux wife and children could not accompany him. It was neither safe for them to be in Prairie du Chien, nor permissible. As Dakota tribesmen they could be at risk in traditional Sac and Fox territory. More importantly, his wife and children would be stripped of the protection and help of their larger kinship network. Separated from his family, he made plans to find a way back. When he did return, he did so as a free man. 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 a former slave with these varied survival skills could remain in the territory. Some slaves had those skills, some did not. Some freed slaves were 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. Others encountered the closing of territorial and western state doors to freedmen.63 Although the series of land acts did not preclude freed men from staking claims, state laws frequently prevented persons of color from entering the state without a $1000. bond. Although the West was putatively open for settlement, so-called free states required even free Blacks to have papers and often to post a large bond upon entering. Federal homestead laws would permit Blacks to cultivate a claim on the lands the government opened for settlement, but the state laws wouldn=t necessarily permit them to enter. 63. 33

What does this all mean for the role of captives in the rule of capture? The rule 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, domestics, could extend and expand the reach of those who master them, of those who have dominion over them. The rule of capture need not intrinsically entail the subordination of some men to the control and profit of others, but it was historically applied to this end and it was expressed philosophically in those terms. The point is that the rule of capture not lull us into according powerful captors more reach than is prudent.

34

Today we speak comfortably, even peaceably, of captive human beings in the marketplace: ACaptive markets,@ Acaptive client bases,@ Acaptive customers and consumers,@ are terms used to advertise business opportunities. We describe these phenomena as if we don=t understand that the very power that exists for the advantageous position of captor is a recognized reduction of liberty in the subservient who is captured.

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