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In seventeenth century Virginia, labor was most frequently provided by either slaves or indentured servants. Indentured servants were generally English—that is, people who were subject to English common law—who had agreed to complete a set period of labor. While the indentured servant had relatively few rights, when the contracted period had been completed, the servant was then free.

Slaves were people who were not considered to be subject to English common law, that is, aliens who were not Christian. In colonial Virginia slaves were either American Indians or Africans (including persons of African descent who had been born in the Americas). Since neither of these groups were Christian, the law and any rights bestowed by the law did not apply to them.

The American Indians whom the early English colonists encountered in Virginia tended to be matrilineal: each person belonged to the mother’s family and inherited their tribal status through the mother. This baffled the English who were, and still are, strongly patrilineal. Under English law, it was the father, not the mother, who was important in determining the status of the child.

Sometime prior to 1630, Thomas Key, a prominent English planter, engaged in sexual relations with one of his African slaves. Whether or not the woman entered this sexual relationship willingly or was raped was not important at this time: as a non-Christian, foreign-born slave she had no rights under English law and was considered Key’s property. In 1630, she gave birth to his daughter who was named Elizabeth.

In 1636, Thomas Key was charged with fathering the bastard child Elizabeth and brought before the court. While he initially denied paternity, there were witnesses who testified to his paternity and, as a result, he took responsibility for the girl. He arranged for her baptism in the Church of England. Her paternity plus the fact of having been baptized as a Christian gave her status under English common law.

Before Key died in 1636, he placed his six-year-old daughter Elizabeth Key into the custody of Humphrey Higginson, a wealthy planter, for a nine-year indenture. It was common at this time for illegitimate children to be indentured until they came of age. It was anticipated that when she became 15 she would be free and would either marry or begin working for wages.

While Higginson had agreed to act as Elizabeth Key’s guardian and to take her with him if he returned to England, Higginson did not keep his commitment. Instead he transferred (or perhaps sold) his indenture to Colonel John Mottram. About 1640, Mottram moved to Northumberland County and took Elizabeth, his ten-year-old servant, with him.

Ten years later, Mottram paid the passage of 20 young Englishmen to Virginia where they became his indentured servants. The English Crown rewarded Mottram with a grant of 50 acres of land for each one of these young men. Each of the men was required to serve Mottram for six years in order to pay for their passage to Virginia.

Among Mottram’s new indentured servants was William Grinstead (some sources indicate Greenstead) who was a 16-year-old lawyer. It is likely that he learned law as the younger son of an attorney. Under English law, only the eldest son inherited from the father and thus it was common for younger sons to come to the Americas as indentured servants.

Mottram quickly realized that Grinstead would be a great asset to his estate, called Coan Hall. The young man began to represent Coan Hall in legal matters and during this time began a relationship with Elizabeth Key who was still a servant.  The couple had a son, whom they named John, but they could  not marry as an indentured servant was not allowed to be married.

Mottram died in 1655 and Elizabeth Key and her son John were classified as Negros, which meant that they were considered slaves. As slaves they were a part of the property assets of the estate and could be sold. However, Elizabeth Key, with William Grinstead acting as her attorney, sued the estate. In her suit, she claimed that she was a free woman, an indentured servant with a freeborn son. At this time, she was 25-years-old and had served as an indentured servant for 19 years, 10 years longer than the original agreement. Her father was English, her son’s father was English, and she was Christian.

In Court, a series of witnesses testified regarding Thomas Key’s paternity of Elizabeth. The court ruled that the paternity had been proved and by common law the Court granted Elizabeth Key her freedom. Mottram’s estate, however, appealed the decision. The General Court overruled the lower court and ruled that Elizabeth was a slave because of her mother’s status as an African slave.

Elizabeth Key did not give up her fight. Through Grinstead, she took her case to the Virginia General Assembly. A committee was appointed to investigate and subsequently sent the case back to the courts for retrial. One of the factors that may have influenced the General Assembly was the reputation of her father and his desires for his acknowledged daughter to be free.

Under English common law, the status of the father determined the status of the child. Elizabeth Key’s father was a free Englishman. Furthermore, she was a practicing Christian and other court cases held that black Christians could not be held in servitude for life. The Court ordered Mottram’s estate to compensate Elizabeth Key for the additional years she had served as indentured servant. Her son John was also declared to be free.

Elizabeth Key and William Grinstead could not marry until he had completed his indenture. In 1656 they married in one of the few recorded seventeenth century marriages between an Englishman and a free woman of African descent. The couple had two more sons before he died in 1661.

Sometime later Elizabeth Key Grinstead married John Parse (some sources indicate Pearce), a widow. Upon his death, Elizabeth and her sons inherited 500 acres which secured her future.

In response to Elizabeth Key’s suit for freedom, the Virginia House of Burgesses in 1662 passed a colonial law which required Negro women’s children to take the status of the mother. Under this law, the English fathers did not have to acknowledge their children who had black slave mothers and these children could provide additional slave labor. In the era that followed more slaves were born into slavery than were imported from Africa.

Originally posted to History for Kossacks on Mon Dec 30, 2013 at 09:14 AM PST.

Also republished by Feminism, Pro-Feminism, Womanism: Feminist Issues, Ideas, & Activism, Invisible People, RaceGender DiscrimiNATION, Black Kos community, and Virginia Kos.

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