Key’s mother’s name is not preserved in the surviving documents, but it is known that she was of African birth or descent and that an English planter, Thomas Key, claimed ownership of her. Depositions taken when Elizabeth Key sued for her freedom proved that he was her father and had been fined for impregnating her mother. His surname occasionally appeared in the records as Kay or Kaye, suggesting its pronunciation. She was known when young as Elizabeth, Bess, or Black Bess, and was born about 1630 or 1632, probably on the north side of the James River near its mouth. Her father resided there late in the 1620s and in 1630 when he was a burgess for Denby (later a part of Warwick County and still later of the city of Newport News) in the General Assembly.
In the autumn of 1636 when Thomas Key and his wife were preparing to return to England, he transferred Elizabeth to Humphrey Higginson, later a member of the governor’s Council, for a period of nine years. Key specified that Higginson treat her well and that if Higginson returned to England before the end of the term of service, he must take the girl with him and allow her to have her freedom, or that if Higginson died before the end of the nine years, the girl would become free. Higginson promised to treat Elizabeth as if she were his own child.
Thomas Key died shortly thereafter, even before he left Virginia. In spite of the terms of the agreement, Elizabeth evidently remained in constant service from then until the winter of 1655–1656, long beyond the specified nine years. By then and through a series of events that are not documented, she passed from Higginson’s service (he moved to England) into that of John Mottrom, a prominent and relatively prosperous planter in Northumberland County, near the mouth of the Potomac River. By the summer of 1655 she and William Grinsted, who may have been one of Mottrom’s whitefor a time, had a son and another child who died in infancy.
Mottrom died in 1655. The inventory of his estate, taken on July 4 of that year, separately identified six servants and five “Negroes.” That the men who compiled the inventory listed the two classes of laborers separately suggests that they regarded the “Negroes” as essentially different in status from the other servants, probably as enslaved for life. How Mottrom regarded them is not known. The estate inventory included “Elizabeth the Negro woman & her sonne.”
Suit, Appeals, and Freedom
Elizabeth sued the administrators of Mottrom’s estate to obtain her freedom. She had to rely on the assistance of a local planter or perhaps the county clerk to prepare the necessary legal documents, obtain and verify a copy of the 1636 agreement between Thomas Key and Humphrey Higginson, take the depositions that established her parentage and age, and present her case to the county court. One of the court records identified Grinsted as her attorney. What that meant was that he was her attorney in fact, not an attorney at law. It was an important distinction. An attorney in fact was an agent who acted for a person, either with or without a formal power of attorney. Women, minors, and other dependent people often required the assistance of free adult men to represent their legal interests in court. That was what Grinsted did. An attorney in fact need not even be educated, much less trained in the law, and references to Grinsted in the county records suggest that he was then in his early twenties and not literate.
On January 20, 1656, a Northumberland County jury decided that Elizabeth should be free. The administrators of Mottrom’s estate appealed the verdict to the governor and members of the Council of State, who comprised the Quarter Court, also called the General Court, which was colony’s only court of appeal. The court heard the case on March 12, 1656. The court’s records for the period are lost and the reasons for its decision are not known, but it is clear that the court ruled against her.
The legal issues involved were important and in this particular instance somewhat complicated. Under the English common law doctrine of partus sequitur partem, a father’s status determined that of a newborn child. Thomas Key was free, so his daughter should have been born free. Under another principle of English common law, Englishmen could not hold Christians in slavery, an important point because Elizabeth had been baptized and was a member of the Church of England.
She appealed the court’s decision to the General Assembly that first met on March 10, 1656. At that time and for almost another quarter century thereafter, the General Assembly had authority to hear and rule on appeals from judgments of the General Court. The General Assembly’s original records for the period are also lost, but some of its papers relating to her case were subsequently copied into the Northumberland County record books. In the surviving texts, she was for the first time identified as Elizabeth Key.
The assembly referred the evidence to a committee of burgesses, who concluded that the Northumberland County jury had been correct and that “by the Common Law the Child of a Woman slave begott by a free-man ought to bee free.” That appeared to confirm the enslaved status of Elizabeth Key’s mother and that Elizabeth Key had been held in slavery, not as a servant for a limited specified time. The committee also noted that she had been christened, that Higginson had been her godfather, and that “by report shee is able to give a very good account of her fayth.” The committee of burgesses therefore determined that under all the existing rules of law, even without any clear parliamentary or Virginia statutes and in spite of the General Court’s verdict, she was entitled to her freedom and to her father’s surname. The burgesses also stated that she was entitled to compensation for the time that she had been a servant or slave beyond the nine years specified in the agreement of 1636. Nevertheless, because nobody appeared at the assembly to argue the estate’s side of the case, the burgesses recommended that the case be sent back to the county court.
Early in the summer of 1656, one of the administrators of Mottrom’s estate asked the governor to order the county court not to act until the General Court could again consider the case, and the governor complied, but the county court acted, anyway, perhaps before it received the governor’s directive. On July 21, 1656, the justices of the peace in Northumberland County ruled that Elizabeth Key be free, that she be paid from Mottrom’s estate the customary freedom allowance of corn and clothing that an indentured servant received at the end of his or her service, and also that she receive compensation for the additional years of her service as the burgesses had recommended. By those acts, the county court freed her from slavery according to the common law and also from any lesser service according to the law of master and servant as understood and administered in Virginia.
On that very same day William Grinsted (also spelled Greensted and Grimstead in the records) and Elizabeth Key posted their banns and declared their intention to marry, and one of the administrators of Mottrom’s estate later signed over to Grinsted all the estate’s claim of ownership of Elizabeth Key or her labor. By that act the estate relinquished all claim to her as a slave or to her labor as a servant.
The legal issue of her freedom being settled, few additional occasions occurred for county officials to record information about her. By the summer of 1660 Elizabeth Key Grinsted had another son and a daughter named Elizabeth. Her husband later died, and she may have married a second time. The will of John Parse (or Pearce), recorded in Northumberland County on May 20, 1667, indicates that he had married the widow Elizabeth Key Grinsted and suggests that she was dead by then. Parse bequeathed 300 acres of land as well as livestock and household items to his underage daughter Elizabeth Parse and 500 acres of land and other livestock to John Grimstead and William Grimstead, whom he identified as his sons and also as his sons-in-law. Elizabeth Key’s sons who were then living were named John Grimstead and William Grimstead. By the legal usages of the time, the phrase son-in-law embraced many more people than a daughter’s husband and often meant a male who occupied the legal relationship of a son, what in the twenty-first century would be called a stepson. It would have been within that meaning of the phrase that Parse described the sons of his wife as his own sons or sons-in-law.
In time, the county’s officials forgot or chose to ignore Elizabeth Key Grinsted Parse’s origins as the illegitimate daughter of an English man and an enslaved African woman. Early in 1685 the county court ordered that two of her grandsons be bound out to learn a trade, which was commonplace for white children but not for people of African birth or descent. A year later their father—her son—served on a jury, indicating that the county court no longer regarded him as part African but as a white man and a loyal subject of the king.
Elizabeth Key’s successful suit to secure her freedom was probably responsible directly or in part for the General Assembly’s passage in 1662 of an act to reverse the English Common Law doctrine of partus sequitur partem and replace it with partus sequitur ventrem, making the status of the infant depend on that of the mother. The law also increased the penalties for fornication between men and women of different races. Thereafter, at the time of their birth the children of white male Virginians and enslaved female laborers legally became somebody’s slave property for life. In 1667 the assembly also changed the law to specify that conversion of an enslaved person to Christianity did not confer freedom on that person. The new laws were two among several instances in which the needs of Virginiaplanters for laborers and the practical consequences of managing enslaved workers led seventeenth-century legislators and judges to modify or reverse ancient rules of English law for the benefit of the planters.
The unforeseen and unfortunate consequences of Elizabeth Key’s freedom suit were innovations in Virginia law that influenced legal codes elsewhere in the English North American colonies and that doomed hundreds or thousands of descendants of European men and women to lifetime slavery along with thousands of men and women of African birth or descent and an increasingly large population of mixed-race men, women, and children.