Elizabeth Key Grinstead, the Freedom Suit, and Colonial Virginia

Elizabeth Key Grinstead Elizabeth Key Grinstead

In the very early days of the Virginia Colony, slavery was not a hardened racial caste system as it later came to be. Most people of all races arrived as indentures, and blacks enjoyed some rights to contest their status in a court of law. One woman who did this and won her freedom was Elizabeth Key Grinstead. In 1656, at the age of 25, Grinstead won her freedom from her master.

There were two main arguments that won Grinstead's freedom. First of all, that she was the mixed-race child of of a black mother and a white planter, and thus inherited her father's condition of servitude under English common law. Secondly, that she had been indentured but for nine years only, and that this term had long since expired.

Grinstead's father, Thomas Key, had been a member of the Virginia House of Burgesses. He had been forced to declare his paternity of Elizabeth in a 1636 case. He indentured his daughter out for nine years and died shortly thereafter. By the arrangement of indenture, Elizabeth Key should have been freed in 1645. In this era of the 1630s and 40s, both blacks and whites commonly served indentures and lived and worked in close proximity. There was nothing unusual about Elizabeth's particular situation. However, her terms were not honored as specified, and her indenture was transferred to a John Mottram, who moved inland and paid little attention to her date of release. She met and would eventually marry William Grinstead, an English lawyer, during this period. It was William Grinstead who would represent his (common-law) wife in court during the 1650s. The Virginia Assembly ruled that since she was the daughter of a free man, and since she had clearly served her term of indenture, that she was therefore to be considered a free woman, with compensation awarded for the additional ten years she was held in servitude.

Unfortunately, cases like Grinstead's led to a change of Virginia law. In 1662 the Virginia House of Burgesses made all status of servitude dependent upon the status of the mother. Since basically all mixed-race individuals had black mothers, this condemned all of them into servitude, even if their father happened to be a free man or a wealthy planter. The text of the law now read, "Whereas some doubts have arisen whether children got by any Englishman upon a Negro woman should be slave or free, be it therefore enacted and declared by this present Grand Assembly, that all children born in this country shall be held bond or free only according to the condition of the mother;"

Tying the status of a person to the status of their mother provided the most perverse of incentives to the slaveholder. For if he violated his own female slaves and thus produced offspring, such offspring would be a direct addition to his capital stock. It is impossible to know how often this occurred, but there were certainly proven incidents, as well as the classification of "mulattos", "quadroons", and "octaroons" that would have been irrelevant if such violations were isolated incidents. One well known case was that of Thomas Jefferson who fathered at least one, and probably many, children with his slave Sally Hemings. Hemings herself was of mixed-race, and her mother was also a mixed-race slave who had children with a Virginia planter.

Tying the status of a child to the status of its mother overturned a precedent of English common law, which was unusual in the colonies. In most areas of colonial law (and in the United States thereafter), the English common law provided the final word on an issue unless explicitly overridden by American statute. Lawyers and scholars generally appealed to the common law as a good in its own right and argued that their circumstances most closely matched the precedents laid out. The fact that Virginia's legislature would override a precedent of common law demonstrates the importance of this issue to the early white elite of that colony.

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