Mary Aggie, like the much better known Dred Scott of the next century, was an otherwise obscure African American who earned a place in history as the central figure in an important legal case. The place and date of her birth and the names of her parents are not recorded. She was probably the enslaved adult named Mary Aggy who was living in Williamsburg in 1717 as the property of Susanna Allen, but all that is known with certainty about the court principal named Mary Aggie relates to two cases heard in Virginia courts between 1728 and 1731 and to a law the General Assembly enacted in 1732. The paucity of personal data about Mary Aggie stands in sharp contrast to her significant role in changing Virginia’s statute law with respect to the rights of convicted felons, including women and all African Americans, Indians, and persons of mixed-race ancestry.
Of Aggie’s first case in the General Court late in the 1720s, by which time she was at least twenty-one years old, we know only that she sued for her freedom from slavery, that “she was examined touching her Faith of which she gave a tolerable Account,” in the words of Lieutenant Governor William Gooch, and that her bid for freedom failed. She had, however, established her belief in Christianity to the satisfaction of Gooch, the presiding judge at the trial.
The other case involving Aggie is better documented and had further-reaching significance. On November 7, 1730, Aggie was indicted, tried, and convicted by a court of oyer and terminer in York County for stealing three sheets valued at forty shillings from the house of her owner Annie Sullivan, a Williamsburg tavern keeper. Ordinarily the court would have sentenced Aggie to death or some severe corporal punishment, but Aggie’s was not a routine case. Gooch had sent an attorney to observe the trial and to secure for her, if she were convicted, the benefit of clergy to which Gooch thought she would have been entitled if she had not been enslaved. Under English law dating from the Middle Ages, benefit of clergy was a privilege entitling ostensibly literate persons to escape death or the most serious penalty of the law on a first conviction for all but a specified few of the many capital offenses. Learning from the attending lawyer that the York County justices might deny Aggie’s plea for benefit of clergy, Gooch arranged for her case to be called up to the General Court. As Gooch explained to the bishop of London, he had resolved “to have this Matter argued in the most public manner by our best Lawyers, as a thing of great consequence, by which all the Courts in the Country for the Future should govern themselves, not doubting but it would be carried in favour of the Christian though a black one.” Four of the five attorneys whom Gooch asked to prepare legal briefs later argued that Mary Aggie had the right to plead benefit of clergy, but when the lieutenant governor, as presiding judge of the General Court, put the question in April 1731, the bench was divided, six to six.
Gooch ordered the case referred to the attorney general and solicitor general in England for a final ruling, but on May 6, 1731, Gooch and the Council, sitting in executive session, pardoned Mary Aggie “upon condition that she be transported out of this Colony to Some other of his Majesties plantations there to be sold as a Slave.” Gooch had saved Aggie’s life, but the deadlock in the General Court left unanswered the question of whether women and slaves were entitled in Virginia to plead benefit of clergy in mitigation of a first capital conviction. To settle that question, the General Assembly, making circumstantial but unmistakable references to both of Aggie’s cases in the General Court, passed a sweeping law on July 1, 1732, that allowed virtually everyone to plead benefit of clergy except in certain cases in which such pleas were not allowed under English or Virginia statutes. Although the act explicitly extended benefit of clergy “to any Negro, mulatto or Indian whatsoever,” it added to the number of felonies for which those persons could not plead benefit of clergy. The new law also allowed courts to inflict other corporal punishments, and it denied to all Indians and persons of African descent the right to give testimony in court except “upon the trial of a slave, for a capital offence.” What the statute granted in some clauses in the names of mercy and justice, it took away in others for the protection of the institution of slavery and the property of slaveholders. Nonetheless, as a result of the actions of Mary Aggie, William Gooch, and the General Assembly, for more than sixty years all Virginians enjoyed the right to plead benefit of clergy on first conviction. Even after benefit of clergy began to disappear from Virginia law in 1796, Virginia slaves retained some limited rights to make the plea until its use was abolished in 1849.
No known source indicates whether Mary Aggie learned of the important consequences of her trials, nor does the record disclose to which colony she was sent to be sold or tell when or where she died.
