The Journal of Negro History, Volume 3, 1918

And now comes Austin Wiley and deposes as follows:

The statement made by me in the preamble to this indenture refering to the age of the Indian boy "Smoky" and the manner in which I obtained him are true to the best of my knowledge and belief

    Austin Wiley

Sworn to and subscribed before me on this 14th day of August A.D. 1860

    A. J. Houstis
    County Judge of Humboldt County.

    Before the Hon. Benjamin Hayes,
    Judge of the District Court of

    the 1st Judicial District, State
    of California, County of Los Angeles.[47 - This court record was obtained by Mr. W. N. Work.]

In the matter of Hannah and her children, Ann (and Mary, child of Ann), Lawrence, Nathaniel, Jane, Charles, Marion, Martha and an infant boy two weeks old, and of Biddy and her children Ellen, Ann and Harriet, on petition for Habeas Corpus.

Now on this nineteenth day of January in the year of our Lord, one thousand eight hundred and fifty-six, the said persons above named are brought before me, in the custody of the Sheriff of said County, all except the said Hannah and infant boy two weeks old, (who are satisfactorily shown to be too infirm to be brought before me,) and except Lawrence (who is necessarily occupied in waiting on his said Mother, Hannah) and Charles (who is absent in San Bernardino County, but within the said Judicial District:) and said Robert Smith, Claimant also appears with his Attorney, Alonzo Thomas, Esq. And after hearing and duly considering the said petition for Habeas Corpus and the return of said Claimant thereto and all the proofs and allegations of the said parties and all the proceedings previously had herein, it appearing satisfactorily to the judge here, that all the said persons so suing in this case, to-wit: Hannah and her said children and Biddy and her said Children are persons of color, and that Charles, aged now six years, was born in the Territory of Utah of the United States, and Marion (aged four years,) Martha (aged two years) Mary, daughter of the said Ann and aged two years and the said infant boy aged two weeks, were born in the State of California and that the said Hannah, Ann, Lawrence, Nathaniel, Jane and Charles, as well as the said Biddy, Ellen, Ann and Harriet, have resided with the said Robert Smith for more than four years and since some time in the year of our Lord one thousand eight hundred and fifty-one, in the State of California; and it further appearing that the said Robert Smith left and removed from the State of Mississippi more than eight years ago with the intention of not returning thereto, but of establishing himself as a resident in Utah Territory, and more than four years ago left and removed from said Utah Territory, with the intention of residing and establishing himself in the State of California and has so resided in said last mentioned State since some time in the year of our Lord one thousand eight hundred and fifty-one. And it further appearing by satisfactory proof to the Judge here, that all the said persons of color are entitled to their freedom and are free and cannot be held in slavery or involuntary servitude, it is therefore adjudged that they are entitled to their freedom, and are free forever. And it further appearing to the satisfaction of the Judge here that the said Robert Smith intends and is about to remove from the state of California, where slavery does not exist, to the state of Texas, where slavery of Negroes and persons of color does exist and is established by the municipal laws, and intends to remove said before mentioned persons of color to his own use, without the free will and consent of all or any of the said persons of color, whereby their liberty will be greatly jeopardized, and there is good reason to apprehend and believe that they may be sold into slavery or involuntary servitude, and the said Robert Smith is persuading and enticing and seducing, said persons of color to go out of the State of California and to be taken and removed therefrom with the false promise held out to them that they will be as free in the State of Texas as in the State of California. And it further appearing that none of said persons of color can read and write, and are almost entirely ignorant of the laws of the State of California, as well as those of the State of Texas, and of their rights, and that the said Robert Smith from his past relations to them as members of his family, possesses and exercises over them an undue influence in respect to the matter of their said removal insomuch that they have been in duress and not in possession and exercise of their free will so as to give a binding consent to any engagement or arrangement with him. And it further appearing that the said Hannah, is aged thirty-four years, and her daughter, Ann, seventeen years, and all her other children, to-wit: Lawrence, (aged from twelve to thirteen years) Nathaniel (aged from ten to eleven years), Jane, (aged eight years) Charles (aged six years) Marion (aged four years) Martha, (aged two years) and said infant boy of Hannah aged two weeks, as well as Mary (aged two years), daughter of said Ann, are under the age of fourteen years and so under the laws of the State of California are not competent to choose a Guardian for themselves; and it further appearing that the said Biddy is aged thirty-eight years, and the said Ellen is aged seventeen years, and the other children of said Biddy, to-wit: Ann (aged from twelve to thirteen) and Harriet (aged eight years) are under the age of fourteen years, and so by the laws of the State of California are not competent to choose a Guardian for themselves. It further appearing that the said infant boy two weeks of age of Hannah is of tender age and must be kept with his said mother Hannah, the same is accordingly ordered, and said infant boy is entrusted to his said mother hereby, and is ordered to appear with him before the Judge here at the Court House in the City of Los Angeles on next Monday January 1, 1856 at 10 o'clock A.M. of said day if her health shall so permit and if not, as soon thereafter as may be practicable of which the Sheriff of Los Angeles is hereby notified to notify her the said Hannah and whereof the said Robert Smith, being now in the Court has notice, it appearing that she resides in his house and is under his control. And the said Mary, child of Ann appearing to be of tender age, is entrusted to the said Ann to be brought before the Judge here at the time and place aforesaid to be dealt with according to law of which the said Ann and the said Robert Smith have notice here, and the said Martha being of tender years is entrusted to the said Ann, her sister, to be brought before the Judge here at the time and place aforesaid to be dealt with according to law of which the said Ann and the said Robert Smith here have notice and the said Hannah and Ann are appointed Special Guardians respectively of the children so hereby entrusted to them, and notified that it is their duty to obey all lawful orders of the Judge here or of some competent Court touching the premises. And the further hearing of this case as to the said Hannah and infant boy and her child, Lawrence and her children Charles and Mary and Martha is adjourned until said last mentioned time at the Court House of the City of Los Angeles, and it is further ordered that the said Nathaniel (aged from ten to twelve years) Jane (aged eight years) Marion (aged four years) all children of said Hannah, and said child Ann (aged from twelve to thirteen years) and Harriet (aged eight years) are committed to the custody of the Sheriff of Los Angeles County, David W. Alexander, Esq., as especial Guardian until the further order of the Judge here or of other Judge or Court of competent Jurisdiction to appoint General Guardians of aforesaid Children last mentioned, and the said Sheriff will leave in full liberty and discharge the said Biddy and her child Ellen (aged Seventeen years) and the said Ann only being required to obey the said order herinbefore made to appear before the Judge here in manner and form as aforesaid. And it further appearing that the said Charles is absent in San Bernardino County, within said Judicial District. It is ordered that Robert Clift, Esq. Sheriff of said County be and he is hereby appointed Special Guardian of said Charles and as such duly authorized and required to take said Charles in his custody and him safely keep in such manner that said Charles shall not be removed out of the State of California, but shall abide the further order of the Judge here or other Judge or Court of competent Jurisdiction touching his Guardianship. And it is further ordered and adjudged that all the costs accrued in the case up to the present date and in executing the present order of the Judge here as to the production of the said Hannah and her said infant two weeks old and said Lawrence, Martha and Mary before the Judge here as aforesaid shall be paid by the Said Robert Smith.

Given under my hand as Judge of the first Judicial District of the State of California on this 19th day of January, A. D. 1856, at the City of Los Angeles.

    Benjamin Hayes,
    District Judge.

On this 19th day of January appears the said Robert Smith by his attorney, Alonzo Thomas, Esq., and moves the Judge hereto the costs in this case which is taken under advisement until Monday next at 10 o'clock, A.M.

    Benjamin Hayes,
    District Judge.

On this Monday, January 21st, 1856 the said Smith and the said parties so ordered to appear as aforesaid do not appear and this cause is continued until tomorrow at 10 o'clock, A.M.

    Benjamin Hayes,
    District Judge.

THOMAS JEFFERSON'S THOUGHTS ON THE NEGRO

I

Jefferson, like a number of liberal-minded men of his time, execrated the slave trade and as the following extracts will show held it as a grievance against the British.

During the regal government we had, at one time, obtained a law which imposed such a duty on the importation of slaves as amounted nearly in a prohibition, when one inconsiderate assembly, placed under a peculiarity of circumstance, repealed the law. This repeal met a joyful sanction from the then reigning sovereign, and no devices, no expedients which could ever be attempted by subsequent assemblies (and they seldom met without attempting them) could succeed in getting the royal assent to a renewal of the duty. In the very first session held under the republican government, the assembly passed a law for the perpetual prohibition of the importation of slaves. This will, in some measure, stop the increase of this great political and moral evil, while the minds of our citizens may be ripening for a complete emancipation of human nature.[48 - Ford edition of Jefferson's Writings, III, p. 102.]

The abolition of domestic slavery is the great object of desire in those Colonies, where it was, unhappily, introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa. Yet our repeated attempts to effect this by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his Majesty's negative: Thus preferring the immediate advantages of a few British corsairs to the lasting interests of the American States, and to the rights of human nature, deeply wounded by this infamous practice.[49 - "Rights of British America," Ford edition of Jefferson's Writings, I, p. 440.]

With the same thought as that of the views expressed above Jefferson incorporated into the original Declaration of Independence an indictment of George III as promoting the ruin of the colonies in encouraging the slave trade. He said:

He (George III) has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of Infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished dye, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he has obtruded them; thus paying off former crimes committed against the Liberties of one people, with crimes which he urges them to commit against the lives of another.[50 - "This clause," says Jefferson, in his Autobiography (I, p. 19), "was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, still wished to continue it. Our northern brethren, also, I believe, felt a little tender under those censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others."]

II

Influenced by the struggle for the rights of man, Jefferson seriously advocated freeing the Negroes, that they too might work out their own destiny on foreign soil. He did not think that it would be wise to leave the freedmen in this country controlled by white men by whom he believed they should not be assimilated.[51 - "Their amalgamation with the other color," said he, "produces a degradation to which no lover of excellence in the human character can innocently consent."—Ford edition of Jefferson's Writings, IX, p. 478.] The first time he had an opportunity, therefore, he made an effort in this direction. This was the case of his work in connection with the committee appointed to revise the laws of Virginia, the report of which he prepared.

Jefferson said:

The bill reported by the revisers of the whole (Virginia) code does not itself contain the proposition to emancipate all slaves born after the passing the act; but an amendment containing it was prepared, to be offered to the Legislature whenever the bill should be taken up, and further directing, that they should continue with their parents to a certain age, then to be brought up, at the public expense, to tillage, arts or sciences, according to their geniuses, till the females should be eighteen, and the males twenty-one years of age, when they should be colonized to such place as the circumstances of the time should render most proper, sending them out with arms, implements of household and of the handicraft arts; seeds, pairs of the useful domestic animals, &c., to declare them a free and independent people, and extend to them our alliance and protection, till they shall have acquired strength; and to send vessels at the same time to other parts of the world for an equal number of white inhabitants; to induce them to migrate hither, proper encouragements were to be proposed.[52 - Ford edition of Jefferson's Writings, III, p. 243.]

Discussing the serious difficulties of the problem, he compared that of the Romans with the situation in the colonies:

This unfortunate difference of color, and perhaps of faculty, is a powerful obstacle to the emancipation of these people. Many of their advocates, while they wish to vindicate the liberty of human nature, are anxious also to preserve its dignity and beauty. Some of these, embarrassed by the question; "What further is to be done with them?" join themselves in opposition with those who are actuated by sordid avarice only. Among the Romans emancipation required but one effort. The slave, when made free, might mix with, without straining the blood of his master. But with us a second is necessary, unknown to history. When freed, he is to be removed beyond the reach of mixture.[53 - Ibid., III, p. 250.]

Writing to John Lynch in 1811, Jeff arson gave his ideas as to the possibility of successful African colonization.

You ask my opinion on the proposition of Mrs. Mifflin, to take measures for procuring, on the coast of Africa, an establishment to which the people of color of these States might, from time to time be colonized, under the auspices of different governments. Having long ago made up my mind on this subject, I have no hesitation in saying that I have ever thought it the most desirable measure which could be adopted, for gradually drawing off this part of our population, most advantageously for themselves as well as for us. Going from a country possessing all the useful arts, they might be the means of transplanting them among the inhabitants of Africa, and would thus carry back to the country of their origin, the seeds of civilization which might render their sojournment and sufferings here a blessing in the end to that country.[54 - Ford edition of Jefferson's Writings, IX, p. 303.]

Nothing is more to be wished than that the United States would themselves undertake to make such an establishment on the coast of Africa. Exclusive of motives of humanity, the commercial advantages to be derived from it might repay all its expenses. But for this, the national mind is not yet prepared. It may perhaps be doubted whether many of these people would voluntarily consent to such an exchange of situation, and very certain that few of those advanced to a certain age in habits of slavery, would be capable of self-government. This should not, however, discourage the experiment, not the early trial of it.[55 - Ibid., IX, p. 304.]

I received in the first year of my coming into the administration of the General Government, a letter from the Governor of Virginia (Colonel Monroe), consulting me, at the request of the Legislature of the State, on the means of procuring some such asylum, to which these people might be occasionally sent. I proposed to him the establishment of Sierra Leone, in which a private company in England had already colonized a number of negroes and particularly the fugitives from these States during the Revolutionary War; and at the same time suggested, if this could be obtained, some of the Portuguese possessions in South America, as next most desirable. The subsequent Legislature approving these ideas, I wrote, the ensuing year, 1802, to Mr. King, our Minister in London, to endeavor to negotiate with the Sierra Leone company a reception of such of these people as might be colonized thither. He opened a correspondence with Mr. Wedderbourne and Mr. Thornton, secretaries of the company, on the subject, and, in 1803, I received through Mr. King the result, which was that the colony was going on, but in a languishing condition; that the funds of the company were likely to fail, as they received no returns of profit to keep them up; that they were, therefore, in treaty with their government to take the establishment off their hands; but that in no event should they be willing to receive more of these people from the United States, as it was exactly that portion of their settlers which had gone from hence, which, by their idleness and turbulence, had kept the settlement in constant danger of dissolution, which could not have been prevented but for the aid of the maroon negroes from the West Indies, who were more industrious and orderly than the others, and supported the authority of the government and its laws … The effort which I made with Portugal, to obtain an establishment for them within their claims in South America, proved also abortive.[56 - Ford edition of Jefferson's Writings, IX, p. 303.]

In this extract Jefferson goes a step further in presenting a scheme for financing the project, giving even the exact amount which he thought would suffice.

In the disposition of these unfortunate people, there are two rational objects to be distinctly kept in view. First. The establishment of a colony on the coast of Africa, which may introduce among the aborigines the arts of cultivated life and the blessings of civilization and science. By doing this, we may make to them some retribution for the long course of injuries we have been committing on their population. And considering that these blessings will descend to the nati natorum et qui nascentur ab illis, we shall in the long run have rendered them perhaps more good than evil. To fulfil this object, the colony of Sierra Leone promises well, and that of Mesurado adds to our prospect of success. Under this view the Colonization Society is to be considered as a missionary society, having in view, however, objects more humane, more justifiable, and less aggressive on the peace of other nations than the others of that appelation. The second object, and the most interesting to us, as coming home to our physical and moral characters, to our happiness and safety, is to provide an asylum to which we can, by degrees, send the whole of that population from among us, and establish them under our patronage and protection, as a separate, free and independent people, in some country and climate friendly to human life and happiness. That any place on the coast of Africa should answer the latter purpose, I have ever deemed entirely impossible. And without repeating the other arguments which have been urged by others, I will appeal to figures only, which admit no controversy.[57 - Ford edition of Jefferson's Writings, X, p. 290.]

There is, I think, a way in which (the removal of the slaves to another country) can be done; that is by emancipating the after-born, leaving them, on due compensation, with their mothers, until their services are worth their maintenance, and then putting them to industrious occupations until a proper age for deportation. This was the result of my reflections on the subject five and forty years ago, and I have never yet been able to conceive any other practicable plan. It was sketched in the Notes of Virginia. The estimated value of the new-born infant is so low (say twelve dollars and fifty cents) that it would probably be yielded by the owner gratis, and would thus reduce the six hundred millions of dollars, the first head of expense, to thirty-seven millions and a half; leaving only the expenses of nourishment while with the mother, and of transportation.[58 - Transcriber's Note: Missing footnote text in original.]

From what fund are these expenses to be furnished? Why not from that of the lands which have been ceded by the very States now needing this relief? And ceded on no consideration, for the most part, but that of the general good of the whole. These cessions already constitute one-fourth of the States of the Union. It may be said that these lands have been sold; are not the property of the citizens composing these States; and the money long ago received and expended. But an equivalent of lands in the territories since acquired may be appropriated to that object, or so much, at least, as may be sufficient; and the object, although more important to the slave States, is highly so to the others also, if they were serious in their arguments on the Missouri question. The slave States, too, if more interested, would also contribute more by their gratutious liberation, thus taking on themselves alone the first and heaviest item of expense.[59 - Ibid., X, p. 291.]

As the proper place for the colonization of emancipated blacks seemed quite a problem, almost any seemingly desirable place was recommended. Santo Domingo proved to be attractive after the bloody scenes of the revolution had passed away.

In the plan sketched in the Notes on Virginia, no particular place of asylum was specified; because it was thought possible that in the revolutionary state of America, then commenced, events might open to us some one within practicable distance. This has now happened. Santo Domingo has become independent, and with a population of that color only; and if the public papers are to be credited, their Chief offers to pay their passage, to receive them as free citizens, and to provide them employment. This leaves, then, for the general confederacy, no expense but that of nurture with the mother for a few years, and would call, of course, for a very moderate appropriation of the vacant lands.... In this way no violation of private right is proposed.[60 - Ford edition of Jefferson's Writings, X, p. 292.]

III

In his Notes on Virginia Jefferson discusses all of the phases of slavery as they appeared to him at that time. He took up the justification of the institution of slavery among the Romans, the enslavement of the Indian and the Negroes, the cause of the increase in slaves, and the effects of the same on both the masters and the enslaved.[61 - To General Chastellux, who had proposed to publish in a French scientific paper certain extracts from Jefferson's Notes on Virginia, he wrote the following in 1785:The strictures on slavery (in the Notes on Virginia) … I do not wish to have made public, at least till I know whether their publication would do most harm or good. It is possible, that in my own country, these strictures might produce an irritation, which would indispose the people towards (one of) the two great objects I have in view; that is, the emancipation of their slaves.—Ford edition of the Writings of Jefferson, III, p. 71.]

An inhuman practice once prevailed in this country, of making slaves of the Indians. This practice commenced with the Spaniards with the first discovery of America.[62 - Ford edition of Jefferson's Writings, III, p. 154.]

Under the mild treatment our slaves experience, and their wholesome, though coarse food, this blot in our country increase as fast, or faster than the whites.[63 - Ibid., III, p. 192.]

We know that among the Romans, about the Augustan age especially, the condition of their slaves was much more deplorable than that of the blacks on the continent of America. The two sexes were confined in separate apartments, because to raise a child cost the master more than to buy one. Cato, for a very restricted indulgence to his slaves in this particular, took from them a certain price. But in this country the slaves multiply as fast as the free inhabitants.... The same Cato, on a principle of economy, always sold his sick and superannuated slaves. He gives it as a standing precept to a master visiting his farm, to sell his old oxen, old wagons, old tools, old and diseased servants, and everything else become useless.... The American slaves cannot enumerate this among the injuries and insults they receive. It was the common practice to expose in the island Æsculapius, in the Tiber, diseased slaves whose cure was likely to become tedious. The Emperor Claudius, by an edict, gave freedom to such of them as should recover, and first declared that if any person chose to kill rather than expose them, it should be deemed homicide. The exposing them is a crime of which no instance has existed with us; and were it to be followed by death, it would be punished capitally. We are told of a certain Vedius Pollio, who, in the presence of Augustus, would have given a slave as food to his fish for having broken a glass. With the Romans, the regular method of taking the evidence of their slaves was under torture. Here it has been thought better never to resort to their evidence. When a master was murdered, all his slaves, in the same house, or within hearing, were condemned to death. Here punishment falls on the guilty only, and as precise proof is required against his as against a freeman. Yet notwithstanding these and other discouraging circumstances among the Romans, their slaves were often their rarest artists. They excelled, too, in science, insomuch as to be usually employed as tutors to their master's children. Epictetus, Terence, and Phoedrus, were slaves. But they were of the race of whites. It is not their condition then, but nature which has produced the distinction. Whether further observation will or will not verify the conjecture, that nature has been less bountiful to them in the endowments of the head, I believe that in those of the heart she will be found to have done them justice.[64 - Ford edition of Jefferson's Writings, II, p. 247.]

That disposition to theft with which they have been branded, must be ascribed to their situation, and not to any depravity of the moral sense. The man in whose favor no laws of property exist, probably feels himself less bound to respect those made in favor of others. When arguing for ourselves, we lay it down as a fundamental, that laws, to be just, must give a reciprocation of right; that, without this, they are mere arbitrary rules of conduct, founded in force, and not in conscience; and it is a problem which I give to the master to solve, whether the religious precepts against the violation of property were not framed for him as well as his slave? And whether the slave may not as justifiably take a little from one who has taken all from him, as he may slay one who would slay him? That a change in the relations in which a man is placed should change his ideas of moral right or wrong, is neither new, nor peculiar to the color of the blacks. Homer tells us it was so two thousand six hundred years ago.[65 - Ford edition of Jefferson's Writings, II, p. 249.]

The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him. From his cradle to his grave he is learning to do what he sees others do. If a parent could find no motive either in his philanthropy or his self-love, for restraining the intemperance of passion towards his slave, it should always be a sufficient one that his child is present. But, generally, it is not sufficient. The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to the worst of passions, and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped by it with odious peculiarities. The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. And with what execrations should the statesman be loaded, who, permitting one-half the citizens thus to trample on the rights of the other, transforms those into despots, and these into enemies, destroys the morals of the one part, and the amor patriae of the other. For if a slave can have a country in this world, it must be any other in preference to that in which he is born to live and labor for another; in which he must lock up the faculties of his nature, contribute as far as depends on his inhuman race, or entail his own miserable condition on the endless generations proceeding from him.[66 - Ibid., III, p. 266.]

Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that God is just; that his justice cannot sleep forever; that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation is among possible events; that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest.[67 - Transcriber's Note: Missing footnote text in original.]

With the morals of the people, their industry also is destroyed. For in a warm climate, no man will labor for himself who can make another labor for him. This is so true that of the proprietors of slaves a very small proportion indeed are ever seen to labor.[68 - Transcriber's Note: Missing footnote text in original.]