July 21st in (Feminist) History

screenshot2012-02-18at1-26-55pmOn this day in 1565, Elizabeth Key Grinstead became one of the first black women in the U.S. colonies to sue for freedom from slavery and win; not only for herself but for her infant son. She was born in Virginia in 1630; her mother was a black slave, but her father was Thomas Key, a white Englishman and planter who was also a member of the Virginia House of Burgesses. His paternity was officially confirmed in 1636, when Thomas Key was brought to court and charged with fathering Elizabeth. This was often done at the time to force fathers to pay for their illegitimate children.

Thomas originally denied paternity but witnesses testified and eventually he was declared the father. He had Elizabeth baptized in the Church of England, and then put her in the custody of a man named Humphrey Higginson. The custody was actually a 9-year indenture, and the original agreement was that by the time it finished she would be 15 and “of age”, and as such would be considered freed. What happened instead was that Higginson either transferred or sold her indenture to another man, Col. John Mottram, who took her to the undeveloped Northumberland County. Her father having died in 1936, there was no one to enforce the agreement on her behalf. Little is known about her life from this time except that she lived on Mottram’s plantation and began a relationship with William Grinstead, a 16-year old young lawyer who was also an indentured servant. (It was popular at the time to pay for passage to the colonies by becoming an indentured servant for a length of time.) Because of their statuses as indentured servants, they could not marry.

Trouble came after the birth of their son, John. Shortly after his birth, Mottram died and the overseers declared both Elizabeth and her son as “Negroes”. This meant that because they were black, they were basically slaves and part of the estate assets. With William as her attorney, Elizabeth sued the estate with the claim that she was in fact a free woman, with a freeborn son. At the time of the case she was 25 years old, which meant that she had actually been a servant for 19 years– well beyond the original 9 year indenture agreement. More important to the idea of social status at the time, though, was “English subjecthood”, because children who were born to English parents outside of the country became England subjects at birth, or could become naturalized subjects. This wasn’t so easy, however, when only one of the parents were British.

In her case, Elizabeth played up the fact that her father had been an English subject, and had witnesses testify that Thomas Kaye had been her father. Based on the proven paternity and common law, the Court gave Elizabeth her freedom. However, Mottram’s estate appealed the decision and the General Court overturned it, ruling Elizabeth was a slave because of her mother. Elizabeth didn’t give up, however. With the help of William again, the case went on to the Virginia General Assembly, where a committee sent it back to the courts for a retrial.

In the end, she won on three counts, including English common law (her father’s status), her father’s wishes, and  her own status as a practicing Christian; other cases had shown that black Christians could not be kept in servitude for their entire lives. The court not only declared her and her son free, but also ordered Mottram’s estate to give Elizabeth corn and clothing as compensation for the years she had lost. Once William was no longer indentured they married. It was one of the few recorded interracial marriages of the seventeenth century. A large number of their known descendants exist, the most well-known of which is Johnny Depp; Elizabeth was his eighth great-grandmother. (Frankly I imagine she’d be disappointed.)

Unfortunately, rather than sparking change for the better, Elizabeth’s case lead to a law being passed in Virginia (and other English colonies and later American states) stating that the status of children was determined by that of their mother, not their father. This meant that the large number of children born to slave mothers from their white owners would not be able to take the same route that Elizabeth had to earn their freedom; at least, not until the abolishing of slavery over 200 years later.

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