Rare moment mulatto woman successfully sues for her freedom and that of her son in 1655

Elizabeth Key based her claim for freedom on several factors. One was the fact that her father, Thomas Key, was English, and a member of the Virginia House of Burgesses. English common law stated that one’s legal status as free or enslaved followed that of the father. In other words, a child inherited the status of its father.

Secondly, Elizabeth had been in indentured servitude for ten years longer than she should have, and this violated the contract her father made for her to be indentured for a certain period. Also, Elizabeth argued in her case that she had been baptized as a child and was a practicing Christian. A practicing Christian could not be enslaved at the time.

Elizabeth would win freedom for herself and her son in the colony of Virginia on July 21, 1656. She became one of the first women of African descent in the North American colonies to sue for her freedom and win.

Elizabeth had been born in 1630, in Warwick County Virginia, some 11 years after the first Africans arrived in the colony. Her mother Martha was an enslaved African woman while her father, Thomas, was a White planter. Since Thomas was married to another woman who lived in a different county, his child with Martha was considered “illegitimate”. The colony demanded that all illegitimate children be indentured for a period of apprenticeship until they “came of age” and could start working to support themselves, according to a report by BlackPast.

Thomas arranged for his daughter Elizabeth to be baptized in the Church of England before placing her in the custody of a wealthy tobacco planter, Humphrey Higginson, for a nine-year indenture. Thomas died not too long after. His daughter Elizabeth’s indenture was transferred to a White settler in Northumberland County, Virginia, known as John Mottram. Elizabeth was 10 years old at the time.

In 1650, Mottram paid for the passage of some young English White indentured servants to his plantation. William Grinstead, a 16-year-old who was among those servants, started a relationship with Elizabeth and the two had a son, named John. They were not allowed to get married because William had not served his indenture. Elizabeth, who should have also been set free in 1645 per the arrangement made by her father, was still held in indentured status.

In 1655 when Mottram died, the overseers of his estate classified Elizabeth in the estate inventory as a negro rather than a servant, saying that she and her son belonged to Mottram’s estate or were the property of his estate. According to Taunya Lovell Banks in the book, As If She Were Free, “to the overseers the term negro implied a permanently or perpetually unfree person, an inheritable condition. In contrast, the term servant implied someone born free who voluntarily relinquished her freedom for a definite period. Thus, Key’s classification raised serious questions about her legal status and the status of at least one of her two children.”

By this time, William was now free from his indenture and practicing law. He represented Elizabeth and their son as they sued for freedom from the Mottrams in court. Elizabeth lost her case in appeals court, but she petitioned the General Assembly to look into her case. A committee that was formed to investigate ruled in favor of Elizabeth, determining that she was free based on her father’s status and the fact that she was a baptized Christian.

“It appears to us that she is the daughter of Thomas Key by several Evidence. […] That by the Common Law the Child of a Woman slave begot by a freeman ought to be free. That she hath been long since Christened […] For these Reasons we conceive the said Elizabeth ought to be free and that her last Master should give her Corn and Clothes and give her satisfaction for the time she hath served longer than She ought to have done,” an excerpt from the committee’s report stated.

Thanks to this report by the committee, Elizabeth and her son won their freedom in a lower court in 1656. William legally married her that same year and the two had a second son before William died in 1661. Elizabeth remarried a widower, but he also died. She and her sons, John and William Grinstead II, inherited five hundred acres of land after the death of her second husband. Elizabeth continued to live in freedom with her sons but passed away on January 20, 1665.

History says that after she successfully petitioned for her freedom, conditions for enslaved people and free Blacks got worse. In fact, her successful suit rather alerted officials to codify laws in connection to racial slavery. The Virginia Assembly declared in 1660 that beginning from that year, all Blacks held in indentured servitude would be considered enslaved for life.

Christians could also now be enslaved while the legal status of a child followed its mother rather than its father. By the early 18th century, Virginia had become a slave society as the British slave trade increased to North America.