The Role of Captives and the Rule of Capture

Lea S. VanderVelde

This article makes two important comments about how the Rule of Capture, as a distributional measure, excludes certain groups. The cautionary message of both comments is that capture rules must be critically analyzed for their indirect effects on human liberty. 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 they 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 captures the resource, and 3) hunger as a human condition shared by all. This article demonstrates how Native Americans are excluded in Locke's formulation though they have strong claims of first in time, and how servants and slaves are excluded despite having strong claims to deservedness as the laboring people who actually captured 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.

The Role of Captives and the Rule of Capture

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