Elizabeth Key Grinstead
Elizabeth Key Grinstead (1630 – after 1665) was one of the first persons of African ancestry in the North American colonies to sue for freedom from slavery and win. Elizabeth Key won her freedom and that of her infant son John Grinstead on July 21, 1656 in the colony of Virginia. She sued based on the fact that her father was an Englishman and that she was a baptized Christian. Based on these two factors, her English attorney and common-law husband William Grinstead argued successfully that she should be freed. The lawsuit in 1655 was one of the earliest "freedom suits" by a person of African ancestry in the English colonies.
In response to Key's suit and other challenges, in 1662 the Virginia House of Burgesses passed a law establishing that children born in the colony would have a status follow the social status of the mother, "bond or free". This was in contrast to English common law for English subjects, in which children followed the social status of their father. The new principle came from Roman law and was known as partus sequitur ventrem, also called partus. The legislation hardened the boundaries of slavery by ensuring that all children of women slaves, regardless of paternity and proportion of European ancestry, would be born into slavery unless explicitly freed.
Early life and education
Elizabeth Key or Kaye was born in 1630 in Warwick County, Virginia to a black slave mother. Her father was Thomas Key, a white Englishman and planter, and a member of the Virginia House of Burgesses, who represented Warwick County (today's Newport News). His white wife lived across the James River in Isle of Wight County, where she owned considerable property. Born in England, the Keys were considered pioneer planters as they had come to Virginia before 1616, remained for more than three years, paid their own passage, and survived the Indian massacre of 1622.
In a civic case at Blunt Point court about 1636, Thomas Key was charged with fathering the bastard mixed-race child Elizabeth, which he at first denied. Complaints about illegitimate children were brought to court in order to force fathers to support them, including arranging for apprenticeships so that they could learn skills. Key first said an unidentified "Turk" was the father of the girl, but the Court relied on witnesses who testified to his paternity. Key took responsibility for Elizabeth, arranging for her baptism in the established Church of England. Sometime before his death in 1636, Key put the six-year-old Elizabeth Key in the custody of Humphrey Higginson by a nine-year indenture. Higginson, a wealthy planter, was expected to act as her guardian until Elizabeth Key reached the age of 15, considered the "coming of age" for girls. They frequently married that young or started work for wages. At that time, Elizabeth Key would be free.
During this period in early Virginia, both African and English servants were likely to be indentured for a period of years, usually to pay off passage to the Americas. The colony required illegitimate children to be indentured for a period of apprenticeship until they "came of age" and could be expected to support themselves. It was common for indentured servants to earn their freedom. Working-class people of different ethnicities lived, worked, ate, and played together as equals, and many married or formed unions during the colonial period.
Key intended Higginson to act as Elizabeth's guardian, but the latter did not keep his commitment to take the girl with him if he returned to England. Instead, he transferred (or sold) her indenture to Col. John Mottram, Northumberland County's first settler. About 1640, Mottram moved to the undeveloped county, taking Elizabeth at age 10 with him as a servant.
There is little record of Key's next 15 years. About 1650 Mottram paid for passage for a group of 20 young Englishmen, white indentured servants, to Coan Hall, his plantation in Northumberland County. To encourage development, the Crown awarded Virginia colonists headrights of 50 acres (200,000 m2) of land for each person they transported to the colony, who were generally indentured servants. Each indentured person would serve for six years to pay for the passage from England.
Among the group was 16-year-old William Grinstead (also spelled Greenstead), a young lawyer. Although Grinstead's parents are not known, he may have learned law as the younger son of an attorney. Under English common law of primogeniture, only the eldest son could inherit the father's real property, so many younger sons crossed the Atlantic to seek their lives and fortunes in the American colonies.
Recognizing Grinstead's value, Mottram used the young man for representation in legal matters for Coan Hall. During this period, Grinstead and Elizabeth Key began a relationship and had a son together, whom they named John. They were prohibited from marrying while Grinstead was serving his indenture. Elizabeth Key's future was uncertain.
After Mottram died in 1655, the overseers of his estate classified Elizabeth Key and her infant son, John, as Negroes (and essentially as slaves and part of the property assets of the estate). With William Grinstead acting as her attorney, she sued the estate over her status, claiming she was a free woman, an indentured servant who had served past her term and who had a freeborn son.
At 25, Elizabeth had been a servant for a total of 19 years, having served 15 years with Mottram. According to Taunya Lovell Banks in the Akron Law Review (2008), at that time "English subjecthood" rather than "citizenship" was more important for determining social status in the colony and in England. In the early 17th century,
"children born to English parents outside the country became English subjects at birth, others could become naturalized subjects" (although there was no process at the time in the colonies). What was unsettled was the status of children if only one of the parents was an English subject, as foreigners (including Africans) were not considered subjects. Because non-whites came to be denied civil rights as foreigners, mixed-race people seeking freedom often had to stress their English ancestry (and later, European).
Elizabeth had served as a servant ten years beyond the terms of her indenture. In trying to establish whether Key's father was a free English man, the Court relied on the testimony of witnesses who knew the people in the case.
Nicholas Jurnew, 53, testified in 1655 that he had "heard a flying report [rumor] at Yorke that Elizabeth a Negro Servant to the Estate of Col. John Mottrom (deceased) was the Childe of Mr. Kaye but... Mr. Kaye said that a Turke of Capt. Mathewes was Father to the Girle." If the Court had believed his testimony, it would have influenced the outcome, as in 1655, the English colonists would not have considered a Turk a free English subject or a Christian.
"The most persuasive evidence" came from Elizabeth Newman, 80 and a former servant of Mottram, who testified that
"it was a common Fame in Virginia that Elizabeth a Molletto (sic mulatto), now (e) servant to the Estate of Col. John Mottrom, deceased, was the Daughter of Mr. Kaye; and the said Kaye was brought to Blunt-Point Court and there fined for getting his Negro woman with Childe, which said Negroe was the Mother of the said Molletto, and the said fine was for getting the Negro with Childe which Childe was the said Elizabeth."
Similar testimony was asserted by other witnesses.
Believing Thomas Key's paternity proved, by common law the Court granted Elizabeth Key her freedom. Mottram's estate appealed the decision to the General Court, which overturned it and ruled that Elizabeth was a slave because of her mother's status as Negro.
Through Grinstead, Elizabeth Key took the case to the Virginia General Assembly, which appointed a committee to investigate. They sent the case back to the courts for retrial. Elizabeth Key finally won her freedom on three counts: the most important was that, by English common law, the status of the father determined the status of the child. Her father was a free Englishman, and she was a practicing Christian. Other cases had demonstrated that black Christians could not be held in servitude for life. The Assembly may also have been influenced by the reputation of her father Thomas Key and wanted to carry out his wishes for his acknowledged daughter. In addition, the father of her mixed-race child (three-quarters white) was an English subject. The court ordered Mottram's estate to compensate Key with corn and clothes for her lost years.
Although Elizabeth Key won her court battle for freedom for her and her son John, she and Grinstead could not marry until he completed his indenture in 1656. Theirs was one of the few recorded marriages in the seventeenth century between an Englishman and a free woman of African descent. They had two sons together before William Grinstead died early in 1661.
The widow Elizabeth Grinstead later remarried, to the widower John Parse (Pearce). Upon his death, she and her sons John and William Grinstead II inherited 500 acres (2.0 km2), helping to secure their future. This property enabled Elizabeth Grinstead and her sons to get on in the world.
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As a result of the Elizabeth Key freedom suit (and similar challenges), in December 1662 the Virginia House of Burgesses passed a colonial law to clarify the status of children of women of African descent. It required Negro women’s children to take the status of the mother, whether bond or free, using the principle of partus sequitur ventrum. The statute was a departure from the English tradition in which a child of English subjects received his or her social status from his or her father. Some historians believe the law was based mostly in the economic demands of a colony that was short on labor; the law enabled slaveholders to control the children of women slaves as laborers. But it also freed the English fathers from acknowledging the children as theirs, providing financial support, or arranging for apprenticeships, as they were required to do in England, or emancipating them. Some white fathers did take an interest in their mixed-race children and passed on social capital, such as education or land; many others abandoned them.
Other English colonies (and later American states) passed similar laws, which defined all children born to slave mothers as slaves. If they had free white fathers, as many did under the power conditions of the time, the fathers had to take separate legal action to free their children. In the early 19th century, following slave rebellions in which free blacks played a part, the legislatures of the South made such manumissions more difficult, requiring an act of legislature for each manumission. They also imposed legal restrictions on the rights of free people of color.
After the American Revolutionary War, the new constitution gave southern states a benefit, counting slaves as 3/5 persons in figuring apportionment for Congressional seats. Northern states generally abolished slavery in the early 19th century, sometimes on a gradual basis. Northern territories (such as the Northwest Territory) and new states admitted to the Union in the northern latitudes prohibited slavery. States settled by Southerners, such as Kentucky, Tennessee, Arkansas, and Missouri, and those of the Deep South, authorized slavery. Only in 1865 did the 13th Amendment to the Constitution end slavery in the South and across the United States.
- Taunya Lovell Banks, "Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia", 41 Akron Law Review 799 (2008), Digital Commons Law, University of Maryland Law School, accessed 21 Apr 2009
- Hardcastle, "Black History shines new light on 'color'", Dayton Daily News, Dayton, Ohio, 30 January 2003, accessed 5 January 2011
- Paul Heinegg, Free African Americans of North Carolina, Virginia, and South Carolina from the colonial period to about 1820, Volume 2 (Google eBook), Baltimore, Maryland: Genealogical Publishing Com, 2005, accessed 7 January 2011
- Mario de Valdes y Cocom, "The Blurred Racial Lines of Famous Families: Greenstead, Grinsted, Grimsted, etc.", PBS Front Line, WGBH, 1995-2011, (See link to descendants at bottom of web page), accessed 4 January 2011
- "Unmasking The Lone Ranger’s Leading Men: Finding the Real Life Heroes in Hammer and Depp’s Family Trees". Ancestry.com. Retrieved July 14, 2013.