During the early 17th century… children born in British colonies had British subjecthood at birth. This was provided for by the English common law tradition of jus soli that conferred British subjecthood upon children born within English colonies. The same was true for the North American colonies during colonial times. However, while foreigners could become “naturalized subjects”… it was a process totally administered and controlled by the British government, not the colony. The colonial legislative assembly had no authority in the conferring of subjecthood to colonists during colonial times and this later became an issue when the colonies banded together for independence in 1776.
History supports, relying upon common law tradition the biracial Elizabeth Key was the first woman of African ancestry in the North American colonies to bring a freedom lawsuit and win. She won freedom for herself and her infant son, John Grinstead II, in the colony of Virginia on July 21, 1656. Key was born in 1630 in Warwick County Virginia… only eleven years after the first Africans arrived in Virginia. She was the product of a racially mixed parentage… her mother was African and her father a white Englishman, Thomas Key. Slavery was prohibited in colonial Virginia, not recognized by law and thus she was a freeborn Englishwoman by law.
Born in England, Thomas had come to the colony of Virginia in 1616. Thomas became an early tobacco planter and eventually elected to Virginia’s House of Burgesses… its colonial assembly. Thomas fathered Elizabeth with an indentured African servant in 1630. The child was illegitimate since Thomas was not married to the mother. Around 1636, in a civic case at Blunt Point court… Thomas was charged with fathering the mixed-race Elizabeth. Initially, Thomas denied paternity… claimed an unidentified “Turk” was Elizabeth’s father… but the colonial court rejected his denial and relied upon a witness who testified to his paternity and Thomas was adjudged the child’s father and forced by the colony to claim and take responsibility for Elizabeth. He later arranged for her to be baptized in the Church of England.
Then sometime before his death in 1636, Thomas placed Elizabeth in the custody of Humphrey Higginson by a nine-year indenture. Higginson, a wealthy planter who owned several plantations was expected to act as her guardian until Elizabeth reached the age of 15… considered the “coming of age” for girls. Thomas intended Higginson to act as Elizabeth’s guardian, but the latter did not keep his commitment to take the girl with him if he returned to England. Instead, he transferred (or sold) her indenture to Col. John Mottram, a justice of the peace who lived in Northumberland County. Then in 1640 or so… Mottram moved to the undeveloped county, taking Elizabeth at age 10 with him as a servant.
Then in 1650, Mottram paid for passage for a group of 20 young white English indentured servants to his plantation. To encourage development, the Crown awarded Virginia colonists headrights of 50 acres of land for each person they transported to the colony. Each indentured person would serve for six years to pay for the passage from England. One of these servants was William Grinstead, who was a 16-year old lawyer. Mottram soon recognized the young man’s value as a lawyer and during this period… Grinstead and Elizabeth began a relationship and had a son together, whom they named John. They were prohibited from marrying while Grinstead was serving his indenture. Elizabeth’s future was uncertain.
In 1655… after Mottram died… his heirs designated and classified Elizabeth and her infant son, John as Negroes, and part of the property assets of the estate. With Grinstead acting as her lawyer, Elizabeth sued the estate over her status and her case hinged on several key arguments. Firstly, the fact that her father was English, and that according to English law one’s legal status as free or in bondage followed the father. Secondly, Elizabeth had been an indentured servant ten years past her term. Elizabeth’s father had stipulated that she was to be set free when she was fifteen. Thirdly, Elizabeth argued that she had been baptized and was a practicing Christian. Nonetheless, Elizabeth lost her case in court… but then she petitioned Virginia’s House of Burgesses to look into her case. A committee was formed to investigate, and they ruled in favor of Elizabeth, based upon her father’s status and baptism. The Committee’s Report provided in part the following:
It appears to us that she is the daughter of Thomas Key by several Evidence. […] That by the Common Law the Child of a Woman slave begot by a freeman ought to be free. That she hath been long since Christened […] For these Reasons we conceive the said Elizabeth ought to be free and that her last Master should give her Corn and Clothes and give her satisfaction for the time she hath served longer than She ought to have done.
With the Committee’s Report, Elizabeth and her son won their freedom in a lower court on July 21, 1656. The court said that according to longstanding English common law, the legal status of the father determined the status of the child: partus sequitur patrem and that Elizabeth’s father was a free Englishman and she was a practicing Christian. Further, the court ordered the Mottram estate to compensate Elizabeth with corn and clothes for her ten lost years.
Subsequently, in the year 1660, Virginia’s House of Burgesses, in direct response to the verdict in the Elizabeth Key case enacted a colonial statute declaring that from this date forward… all people with African ancestry held in indentured servitude would be considered enslaved for life. The prohibition against enslaving Christians was later removed in 1667, eleven years after Virginia’s House of Burgesses played a pivotal role in Elizabeth’s victory in colonial court.
Further, then two years later in 1662, Virginia’s House of Burgesses enacted a colonial statute called partus sequitur ventrem that purported to change English common law by declaring that the legal status of a child born in the colony followed its mother… rather than father. Neither Virginia’s 1660 or 1662 colonial statutes ever became “positive law” since the colonial assembly lacked plenary authority to enact a law authorizing slavery or to change the patrilineal descent system to a matrilineal one within the colony. Further, Virginia’s assembly committed a crime under the Sedition Act of 1661 because they failed to secure the King’s permission unto their slave statutes and laws. Also, such “statutes and laws” were legal nullities as the Royal Assent by Commission Act of 1541 required colonial assemblies to secure the Kings’ permission and was provided for in each colonial charter.
Virginia’s House of Burgesses did not secure the King’s assent… even though they operated under a bicameral legislative structure. Nonetheless, Virginia’s governor Berkeley failed to veto either colonial statute and with his affirmative cooperation and assistance… these colonial statutes operated extralegally in Virginia. Those who benefitted from the exploitation of Virginia’s black colonists and Africans by way of these laws paid Berkeley to look the other way. Such slave laws and practices became endemic throughout the North American colonies and beyond. Decidedly, Berkeley and other colonial governors within the North American colonies engaged in racketeering, graft, and public corruption.
Virginia’s colonial slave statutes were amended in 1691… to condemn mixed-race children of free white women to serve as indentured servants for a period of 30 years and the white mother was subjected to a fine of 15-pound sterling. Additionally, for having a mixed-race child, the white mother was subject to 5 years of indentured servitude… if she failed to pay the ascribed fine within a month of the birth. Targeted at black and mixed-race children born in colonial Virginia… as well as white women these colonial statutes are the foundation of racial and gender discrimination laws here in North America. However, as these colonial statutes were only passed by Virginia’s House of Burgesses in derogation of English law and Virginia’s colonial charter… they failed to ever become positive law. But because of colonial tyranny, public corruption, and colonial structural racism… they functioned as if they were properly enacted colonial slave statutes throughout the North American colonies. And such being the case, racism and sexism share a common corrupt origin… partus sequitur ventrem.
English law prohibited slavery in British territories. Virginia’s colonial charter specially denied any grant of authority to its legislative assembly to enact laws repugnant to England common law or English law. The colony of Virginia did not have plenary authority to enact positive laws. Virginia’s House of Burgesses, in all instances were legally required to secure the assent of England’s King on all colonial statutes. Virginia’s House of Burgesses’ 1660 and 1662 colonial statutes operated extralegally and became endemic due to colonial tyranny, graft, and corruption during colonial times.