Elizabeth Key and Her History-Changing Lawsuit

Elizabeth Key (1630 - after 1665) is a key figure in the history of American enslavement. She won her freedom in a lawsuit in 17^th century colonial Virginia, and her lawsuit may have inspired laws making enslavement hereditary.

Heritage

Elizabeth Key was born in 1630, in Warwick County, Virginia. Her mother was a an enslaved woman from Africa who is unnamed in the record. Her father was an English planter living in Virginia, Thomas Key, who arrived in Virginia before 1616. He served in the Virginia House of Burgesses, the colonial legislature.

Accepting Paternity

In 1636, a civil case was brought against Thomas Key, alleging that he had fathered Elizabeth. Such suits were common to get a father to accept responsibility to support a child born out of marriage, or to ensure that the father would help to get the child an apprenticeship. Key first denied paternity of the child; he claimed that she was fathered by a non-Christian, which could have affected her enslavement status. He then accepted paternity and had her baptized as a Christian.

Transfer to Higginson

At about the same time, he was planning to go to England—perhaps the suit was filed to ensure that he accepted paternity before he left—and he placed the 6-year-old Elizabeth with Humphrey Higginson, who was her godfather. Key specified a term of indenture of nine years, which would bring her to the age of 15, a common time for indenture terms or apprentice terms to expire. In the agreement, he specified that after 9 years, Higginson was to take Elizabeth with him, give her a “portion,” and then free her to make her own way in the world.

Also included in the instructions was that Higginson treat her like a daughter; as later testimony put it, “use her more Respectfully than a Common servant or slave.”

Key then sailed for England, where he died later that year.

Colonel Mottram

When Elizabeth was about ten years old, Higginson transferred her to a Colonel John Mottram, a justice of the peace—and he then moved to what is now Northumberland County, Virginia, becoming the first European settler there. He founded a plantation he called Coan Hall.

Read More

Biography of Elizabeth Proctor

By Jone Johnson Lewis

About 1650, Col. Mottram arranged for 20 indentured servants to be brought from England. One of those was William Grinstead, a young lawyer who indentured himself to pay for his passage and work that off during the term of indenture. Grinstead did legal work for Mottram. He also met and fell in love with Elizabeth Key, still held as a bond servant to Mottram, though it was by that time 5 or more years beyond the term of the original agreement between Key and Higginson. Even though Virginia law at that time forbid indentured servants from marrying, having sexual relations, or having children, a son, John, was born to Elizabeth Key and William Grinstead.

Filing Suit for Freedom

In 1655, Mottram died. Those settling the estate assumed that Elizabeth and her son John were enslaved for life. Elizabeth and William filed suit in court to recognize both Elizabeth and her son as already free. At the time, the legal situation was ambiguous, with some tradition assuming all Black people were enslaved no matter the status of their parents, and other tradition assuming English common law where bondage status followed that of the father. Some other cases held that Black Christians could not be enslaved for life. The law was especially ambiguous if only one parent was an English subject.

The suit was based on two factors: first, that her father was a free Englishman, and under English common law whether one was free or in bondage followed the status of the father; and second, that she had been “long since Christened” and was a practicing Christian.

A number of people testified. One resurrected that old claim that Elizabeth’s father was non-Christian, which would have meant neither parent was an English subject. But other witnesses testified that from a very early time, it was common knowledge that Elizabeth’s father was Thomas Key. The key witness was an 80-year-old former servant of Key, Elizabeth Newman. The record also showed that she had been called Black Bess or Black Besse.

The court found in her favor and granted her freedom, but an appeal court found that she was not free because she was Black.

General Assembly and Retrial

Then Grinstead filed a petition for Key with the Virginia General Assembly. The Assembly formed a committee to investigate the facts, and found “That by the Common Law the Child of a Woman slave begot by a freeman ought to be free” and also noted that she had been christened and was “able to give a very good account of her fayth.” The Assembly returned the case to a lower court.

There, on July 21, 1656, the court found that Elizabeth Key and her son John were in fact free persons. The court also required that the Mottram estate give her “Corn Clothes and Satisfaction” for her having served many years beyond the end of her term of service. The court formally “transferred” to Grinstead “a maid servant”. That same day, a marriage ceremony was performed and recorded for Elizabeth and William.

Life in Freedom

Elizabeth had a second son by Grinstead, named William Grinstead II. (Neither son’s birth date is recorded.) Grinstead died in 1661, after only five years of marriage. Elizabeth then married another English settler named John Parse or Pearce. When he died, he left 500 acres to Elizabeth and her sons, which allowed them to live out their lives in peace.

There are many descendants of Elizabeth and William Grinstead, including a number of famous people (including actor Johnny Depp).

Later Laws

Before the case, there was, as outlined above, some ambiguity in the legal status of the child of a woman who was in bondage and a free father. The assumption of the Mottram estate that Elizabeth and John were enslaved for life was not without precedent. But the idea that all people of African descent were permanently in bondage was not universal. Some wills and agreements by enslavers specified terms of service for enslaved African people, and also specified land or other goods to be granted at the end of the term of service to aid in their new life as fully free persons.

Key’s suit won her freedom and established the precedence of the English common law about a child born to a free English father. In response, Virginia and other states passed laws to override the common law’s assumptions. Enslavement in America became more solidly a race-based and hereditary system.

Virginia passed these laws:

• 1660: the term of indentured servitude was limited to five years—for servants from a Christian country
• 1662: a child’s status as free or bond (enslaved) was to follow the mother’s status, contrary to English common law
• 1667: being a Christian did not alter status of bondage
• 1670: prohibited Africans from importing any bonded laborers from anywhere (Africa or England included)
• 1681: children of a European mother and an African father were to be in bondage to age 30

Maryland passed the following laws:

• 1661: a law was passed making all Black people in the colony enslaved, and all Black babies enslaved from birth, no matter the status of its parents
• 1664: a new law outlawed marriages between European or English women and Black men

Also known as: Elizabeth Key Grinstead; due to spelling variations common at the time, last name was variously Key, Keye, Kay and Kaye; married name was variously Grinstead, Greensted, Grimstead, and other spellings; final married name was Parse or Pearce

Background, Family

• Mother: not named
• Father: Thomas Key (or Keye or Kay or Kaye)

Marriages, Children

• first husband: William Grinstead (or Greensted or Grimstead or other spellings) (married July 21, 1656; indentured servant and lawyer)
• children: John Grinstead and William Grinstead II
• second husband: John Parce or Pearce (married about 1661)