The Role of Captives in the Rule of Capture

35 Pages Posted: 4 Oct 2005

Abstract

This article makes two important comments about how the Rule of Capture as a distributional measure excludes certain groups.

First, The Rule of Capture as formulated by John Locke effectively shut out two kinds of co-claimants from the commons of North America: free original inhabitants and men and women who were in the service of others, even when these people were indispensable to the act of capture. Though the Capture rule resonates as an ethically based distributional principle, its three ethical premises are not carried through when applied to the commons of North America. The three premises are: 1. first in time, first in right; 2. the deservedness of the laboring person who capture the resource; and 3. hunger as a human condition shared by all. The article demonstrates how Native Americans are excluded in Locke's formulation though they have strong claims of first in time, and servants and slaves are excluded despite having strong claims to deservedness as the laboring person who actually does the capturing of the resource. Hence, Locke's formulation as an apologist for conquest and domination appears to have the instrumental and anti-democratic objective of delegitimating the claims of these two groups of peoples to the commons.

Second, using the example of York, William Clark's slave and companion in the Corps of Discovery, the article demonstrates how historical practices operated to continue the subordination of slaves utilized in various phases of conquest. Slaves, like York, were instrumentally used to advance American efforts at Conquest and later settlement. An examination of Lewis and Clark's accounts of York show that these masters treated him with respect and almost partnership while in the wilderness and on Indian lands during the voyage of discovery only to relegate him to slavery in several of its worst treatments when the successful mission returned. Having seen the West, having survived the wilderness travel and aided in the mission's success, York was disappointed in his hopes and expectation of winning freedom for his heroic efforts upon returning to civilization. His treatment was completely at odds with the treatment of every other member of the troupe who were showered with laurels of increased recognition, status, and material gain.

Keywords: Commons, slavery, Locke, Indians, Native Americans, capture, legal history

JEL Classification: B15, D2, K11

Suggested Citation

VanderVelde, Lea S., The Role of Captives in the Rule of Capture. Environmental Law, Vol. 35, 2005, U Iowa Legal Studies Research Paper No. 05-23, Available at SSRN: https://ssrn.com/abstract=819345

Lea S. VanderVelde (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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