Exploring the Status of Blacks in 17th Century Virginia
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Dec 10, 2024
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The Cases of Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenth-Century VirginiaAuthor(s): Warren M. BillingsSource: The William and Mary Quarterly,Vol. 30, No. 3 (Jul., 1973), pp. 467-474Published by: Omohundro Institute of Early American History and CultureStable URL: http://www.jstor.org/stable/1918485Accessed: 25-04-2018 18:27 UTCJSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a widerange of content in a trusted digital archive. We use information technology and tools to increase productivity andfacilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available athttp://about.jstor.org/termsOmohundro Institute of Early American History and Cultureis collaborating withJSTOR to digitize, preserve and extend access to The William and Mary QuarterlyThis content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
The Cases of Fernando and Elizabeth Key:A Note on the Status of Blacks inSeventeenth-Century VirginiaWarren M. Billings*ROFESSOR Alden T. Vaughan's recent note' on the blacks whoarrived in Virginia between i6i9 and i630 has once again calledattention to the origins of chattel slavery and racial prejudice inAmerica. Using the few scraps of evidence which have survivedfrom that decade, Vaughan suggests that the initial period of contact hadprofound implications for the development of white attitudes toward theblacks. As he admits, however, these bits and pieces of information serveonly to tantalize the investigator; they do not, for example, reveal clearlyhow a black's conversion to Christianity affected his status. A pair ofcourt cases involving two blacks, a man known only as Fernando2 andElizabeth Key,3 sheds some light on the status of Christian blacks and onhow that status deteriorated as a result of hardening white attitudes. Inaddition, they provide a few hints as to how some of the first laws definingslavery in Virginia came to be adopted by the General Assembly.Of Fernando nothing is known except that he was "a slave for hislife time, who sued for his freedom in the Lower Norfolk County Court*Mr. Billings is a member of the Department of History, Louisiana State Uni-versity in New Orleans. He wishes to thank his colleague, David R. Johnson, forhis suggestions and comments about the preparation of this note.'Alden T. Vaughan, "Blacks in Virginia: A Note on the First Decade," Wil-liam and Mary Quarterly, 3d Ser., XXIX (1972), 469-478.2Lower Norfolk County Order Book, i666-i675, fol. 17. All citations to thecounty records are to the microfilm copies at the Virginia State Library, Richmond.3Northunmberland County Record Book, i652-1658, fols. 66, 67, 85; Northumber-land County Record Book, i658-i660, fol. 28; Northumberland County Order Book,i652-1665, fols. 40, 46, 49. Copies of the records of both cases will appear, alongwith other documents relating to blacks, in Warren M. Billings, ed., The Old Do-minion in the Seventeenth-Century: A Documentary History of Virginia, z6o6-i68pto be published by the Institute of Early American History and Culture.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
468 WILLIAM AND MARY QUARTERLYduring its August i667 sitting. Claiming that he "was a Christian andhad been several yeares in England," Fernando contended that he oughtto serve no longer than an English bondsman. As proof of his conversionhe offered in evidence several papers, which the clerk noted were written"in Portugell or some other language which the Court could not under-stand." Declaring that no cause for action existed, the justices dismissedthe suit. Fernando appealed the decision to the General Court, but un-fortunately no record of the high court's disposition of the case has sur-vived.The record for Elizabeth Key is fuller. She was the bastard daughterof Thomas Key4 and an unnamed slave woman.a In 1636, when Elizabethwas five or six years old, Key bound her to Humphrey Higginson6 for aperiod of nine years. Sometime between i636 and i655 she passed into thepossession of Colonel John Mottrom I, a Northumberland County justice ofthe peace, who died in i655. As a result of Mottrom's death, ElizabethKey, through her attorney, William Greensted,7 in January I655/6brought suit for her freedom before the Northumberland County Court.Greensted based his arguments upon three grounds: Elizabeth Key'sfather was a free man, and by common law children inherited theirfather's condition; she had been baptized, implying that a Christiancould not be held for life; and she had been sold to Higginson for aperiod of nine years, which had long since elapsed. Although the juryfound in her favor, one of the overseers of the Mottrom estate, ThomasSpeke,8 appealed the verdict to the General Court, which ruled ElizabethKey a slave.' Greensted had a final avenue of appeal: he petitioned the4 Key (d. i636?) lived at Blunt Point, near modern-day Newport News, Va.,and was a burgess for Denbigh in the General Assembly of i62/g30. H. R. Mc-Ilwaine, ed., Journals of the House of Burgesses of Virginia, 1619-1658/59 (Rich.mond, Va., 1915), Xi.5 It is significant, perhaps, that the depositions refer to Elizabeth Key'smother as a slave. Since Elizabeth Key was born circa i630, the reference to hermother's status suggests that some blacks were already being held as slaves by theend of the x62os.8 Higginson was a member of the Council of State. McIlwaine, ed., Jours., Houseof Burgesses, 82. He was also Elizabeth Key's godfather.7 Greensted was a Northumberland County planter, whose name appears in aheadright sued out by Mottrom in Aug. T650. Nell Marion Nugent, comp., Cava-liers and Pioneers: Abstracts of Virginia Land Patents and Grants, 1623-1800 (Rich-mond, Va., 1934), 198.8Speke (d. i659) was a justice of the peace and burgess for NorthumberlandCounty.9 "Selections from Conway Robinson's Notes and Excerpts from the Records ofThis content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
CASES OF FERNANDO AND ELIZABETH KEY 469General Assembly for a hearing,10 and the Assembly appointed a com-mittee of burgesses to investigate the matter. On the basis of the burgesses'report, concurring with the findings of the Northumberland court,the Assembly remanded the case to the Northumberland justices forretrial. In the interval between the Assembly's order and the countycourt's reaffirmation of its original verdict, another of the overseersof Mottrom's estate, George Colclough," obtained from Gov. EdwardDigges an order for a rehearing before the General Court.'2 Colcloughapparently declined to pursue the matter further, for in July i656 Green-sted obtained an order for a nonsuit against Colclough and WilliamPresly,13 the third overseer of the Mottrom estate. The last known recordof Elizabeth Key is the entry into the Northumberland County OrderBook of the banns of her marriage to Greensted.Both the Key suit and Fernando's case are significant because of whatthey suggest. First, the cases support the idea that a nexus existed be-tween an African's religion and his status as a laborer in Virginia. Con-version to Christianity evidently conferred upon blacks a rank higherthan that of slave. If an African retained his native religion, in all likeli-hood he stayed a slave, but if he converted or were born into slavery andbaptized, his conversion or baptism could provide grounds for his releaseColonial Virginia," in H. R. McIlwaine, ed., Minutes of the Council and GeneralCourt of Colonial Virginia, 1622-1632, 1670-1676 (Richmond, Va., I924), 504. Thebulk of the General Court records were destroyed in i865, so the notes which Rob-inson had made just before the Civil War are the only guide to many of the Court'sdeliberations. Robinson did not mention Elizabeth Key by name, noting only "amulatto held to be a slave and appeal taken." It is almost beyond doubt that theunnamed mulatto was Elizabeth Key. Greensted appealed the case to the nextregular session of the General Court. That session would have been in Marchi655/6 at the same time the General Assembly met. McIlwaine, ed., fours., Houseof Burgesses, 95.10 Until the administration of Governor Thomas, Lord Culpeper, the GeneralAssembly had authority to hear appears from the General Court. Philip AlexanderBruce, Institutional History of Virginia in the Seventeenth Century: An Inquiry intothe Religious, Moral, Educational, Legal, Military, and Political Condition of thePeople, I (New York, 1910), 690-696.11 Colclough (d. i622) was a justice of the peace and burgess for Northumber-land; he subsequently married Mottrom's widow, Ursula.12 Digges (d. Mar. i674/5) was a member of the Council of State from YorkCounty and one of the Interregnum governors of Virginia.13 Presly (d. Jan. i656) was a justice of the peace and burgess for Northumber-land County.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
470 WILLIAM AND MARY QUARTERLYfrom life servitude. This is the inferensuccessful plea that her baptism entitled Elizabeth Key to freedom. Thesame inference is also implicit in Fernando's suit. Fernando believedthat he had proof of his conversion, which, if accepted by the court, shouldalter his status to that of an English servant. That he lost the case isimmaterial. Fernando's belief that his religion affected his status is theimportant fact.These deductions are buttressed by other evidence. The presence of thetwo cases suggests the strong possibility of the existence of similar onesthat were lost in the destruction of great quantities of Virginia's seven-teenth-century legal records over the last three hundred years.14 Cer-tainly the existence of other suits like Fernando's and Elizabeth Key's maybe surmised from the fact that in September i667 the General Assemblyenacted a law which declared that the "conferring of baptisme dothnot alter the condition of the person as to his bondage or Freedome.""5It is highly unlikely that the Assembly would have needed to outlaw suitswhich seldom occurred. Quite to the contrary, as the act's preamblemakes clear, long-standing doubt about the effect of baptism upon theblack's status had moved the Assembly to action. Furthermore, theproximity in time of the statute's adoption to Fernando's case suggests adesire to rid the courts of such troublesome litigation in the future.Conversion may also have conferred certain rights upon blacks. Oneof these, as Vaughan has implied,16 was the right to be treated as a servantif a black were Christianized before coming to Virginia. Another wasobviously the right to sue in court. Although the Key and Fernando casesare the only known instances where religion was a matter at issue,they are not the only examples of blacks seeking to obtain their libertyor a change in status through the courts. At least four other cases are4Of the 23 counties which the General Assembly erected between i634 andi692, only six have virtually intact records, five have no surviving records, and theremaining twelve have records which range from a few fragments to fairly com.plete runs for brief intervals. Not only have these local records suffered frightfuldamage, but the archives of the colony's provincial government for the period beforei68o have been largely destroyed.15William Waller Hening, ed., The Statutes at Large; Being a Collection ofAll the Laws of Virginia, from the First Session of the Legislature in the Year 1619,II (Richmond, Va., 1823), 260."16Vaughan, "Blacks in Virginia," WMQ, 3d Ser., XXIX (1972), 478.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
CASES OF FERNANO AND ELIZABETH KEY 47Iknown to exist; in each one the litigant bears a Christian name.'7 So doall of the identifiable free blacks and black indentured servants, as wellas those who purchased their freedom or had it given them by theirmasters.'8The adoption of the i667 baptism law signals a deterioration of theserights as a result of a change in white Virginians' attitudes toward con-verted blacks-a change which began to occur in the i66os. At the timeElizabeth Key escaped slavery the number of blacks living in Virginiawas small in relation to the colony's entire population.'9 Awareness oftheir presence was slight, and the blacks presented no serious problemsfor those Englishmen who employed black labor. Consequently the En-glish, who displayed a prejudiced hostility towards all Africans, were morelikely to follow their kinder instincts by treating the few immigrantChristian blacks as servants or by occasionally releasing slaves who hadconverted. A decade later, when Fernando brought his case to trial, thesituation had altered. A rising black population probably increased thefrequency of similar court actions, and, more important, the planters werebeginning to look upon slavery as a viable alternative to indenturedservitude.As long as local justices of the peace recognized baptism as a reasonfor changing a black's status from slave to servant or as a basis for releas-tr Charles City County Order Book, 1655-i665, fols. 604-605; H. R. McIlwaine,ed., Journals of the House of Burgesses, 1659/60-1693 (Richmond, Va., 1914),34-35; McIlwaine, ed., Minutes of the Council, 354; Northampton County OrderBook, I655-I688, fol. io.18See, for example, Northampton County Order Book, i664-i674, fols. 53,220-22I; Accomack County Order Book, i673-i676, fol. 3I; Charles City CountyOrder Book, i677-1679, fol. 2i6; Middlesex County Order Book, I680-I694, fol. 371;Middlesex County Order Book, i673-i680, fol. 126; Surry County Deeds andWills, i657-i672, fol. 349. See also the transcript of the York County Order Book,i657-i662, fol. 45, Va. State Library." I base this conclusion upon a count of blacks listed in headrights recordedin the archives of Lower Norfolk, Northumberland, and York counties. That countreveals a total of 30 blacks in the headrights registered between i637 and1655 and a total of I05 blacks for the period i656 to i667. Since the time when made these computations, Wesley Frank Craven has published the results of hisanalysis of Virginia's land records. According to his calculations, between i635 andx6g5 a total of 311 blacks were imported into the colony, and from I656 to T667 atotal of 732 arrived in Virginia. See Craven, White, Red, and Black: The Seven-teenth-Century Virginian (Charlottesville, Va., 1971), 85-86. These statistics arerather more suggestive than definitive.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
472 WILLIAM AND MARY QUARTERLYing him outright, and as long as unfavsuch matters could be appealed, there such lawsuits nor assurances that a planter could retain his slaves. Nomatter how the courts decided these cases, the planter sustained losses oftime and money. If he lost, he had to pay costs; if he won, the slave couldnot make restitution. The only way to protect a planter's investmentand prevent further troublesome litigation was to outlaw its basis. Out-lawing baptism as a determinant of status removed an avenue of escapefor slaves. The General Assembly's action also reveals a hardening offeeling among the English.This willingness to substitute harsher treatment for more gentlehandling is evidenced by the Englishman's increasing intolerance to-ward the mulatto. Elizabeth Key's fate suggests a customary practice insome courts of freeing from slavery mulattoes who could prove Englishpaternity. Judges who ruled favorably in these cases evidently restedtheir decision upon the common law dictum that a child inherited his orher father's condition.20 As the General Court's unfavorable ruling inElizabeth Key's suit indicates, not all of Virginia's magistrates agreedwith that construction. Conceivably justices could interpret common lawas inapplicable to mulattoes.The contradictory interpretation of the law as it concerned a mulatto'sstatus testified to the lack of provision in the English legal system forcoping with the emergence of slavery in Virginia. Moreover, conflictingopinions in the Key case attested to the equivocal definition of slaveryin Virginia's law. Were mulattoes Christians or heathens, servants orslaves, Africans or Englishmen? As long as uncertainty existed aboutthe condition of the children of slave women and free men, the planterwho owned them remained liable to lengthy and costly court action. Baptiz-ing these children only enhanced the probability of a suit. The obviousremedy was a statutory prohibition of claims like those advanced byElizabeth Key's attorney.In December i662, because "some doubts have arisen whether childrengot by any Englishman upon a negro woman should be slave or free,"the General Assembly made a mulatto's freedom or servitude conditionalupon the mother's status. As a further discouragement to miscegenousrelations, the law also provided that if "any christian shall committ Forni-20Henry Swinburne, A briefe Treatise of Testaments and last wiles, 3d ed.rev. (London, 1635), 75.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
CASES OF FERNANDO AND ELIZABETH KEY 473cation with a negro man or woman, hee or shedouble the Fines imposed by the former act.'"2'The act's preamble demonstrates that litigationcase had caused the Assembly to rectify the incolegal use- of the word slave. There was more amere desire to give slavery a clearer meaning in was an attempt to formulate a practical method omulattoes, but the law also carried a deeper intraces separate. To make good that intention ththan normal fine for interracial fornication aperpetual bondage for the casual offspring ofwomen.Writing a seldom used civil law doctrine, partus sequitur ventrum,into the statute indicates the depth of the lawmakers' desire to preventmiscegenation. Its application to mulattoes also shows how the legislatorswished to adapt their legal heritage to a new situation.22 Reared on thetradition of stare decisis, they searched the common law for precedents,but found none because common law had not anticipated the existence ofmulattoes. So they ransacked their knowledge of the civil law and dis-covered a useful definition of status, which satisfied the yearning toremain faithful to tradition while resolving a problem for which traditionafforded no remedies.Winthrop D. Jordan has characterized slavery as the product of "anunthinking decision,"23 but the evidence presented here leads to a dif-ferent conclusion. It shows that while white prejudice and hostility hadalways relegated the blacks to the lowest ranks of colonial society, theEnglish had once allowed some of them a few legal routes to escape theirbondage. Their religion and their paternity were of crucial importancefor determining which blacks should become servants. Once whiteVirginians perceived free blacks and miscegenation as serious threats tothe public weal and to their own private interests, they moved to circum-21 Hening, ed., Statutes at Large, II, 170.22 Swinburne, for example, clearly stated that the dictum was contrary to the"Lawes of the Realme." Swinburne, Treatise of Testaments, 76. See also G. R. Elton,ed., The Tudor Constitution: Documents and Commentary (Cambridge, I962), 152-153, and A. K. R. Kirafly, ed., Potter's Historical Introduction to English Law andIts Institutions (London, 1958), 631.637.28 Winthrop D. Jordan, White over Black: American Attitudes toward the Ne-gro, 1550-1812 (Chapel Hill, N. C., i968), Ch. II.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms
474 WILLIAM AND MARY QUARTERLYscribe the African bondsmen's approachi667 were deliberately calculated to undlaborers by denying them access to the courts. These statutes broke withtradition, thereby freeing Virginia lawmakers from the past's restraininginfluences. But the laws also became the precedents for future legislationthat governed an emerging slave system.What the Fernando and Elizabeth Key cases reveal is significant,but not conclusive. The evidence they contain affords an answer to thequestion of how conversion affected the black man's status, but it is anincomplete explanation. There is a hint that some black servants and slaveshad once enjoyed certain rights, but these rights began to deteriorate inthe i66os. The evidence further suggests that the drive to give slaverystatutory definition accelerated after i66o, but again the reasons for thischange are unclear. Finally, linking the two cases with the acts of i662and i667 invites the possibility of further study. A detailed comparisonof all the known lawsuits involving blacks with the slave laws might tellus more about the process by which the English systematically degradedand enslaved the blacks during the seventeenth century.2'2'At a future date I hope to publish the results of such a comparison.This content downloaded from 136.152.208.89 on Wed, 25 Apr 2018 18:27:24 UTCAll use subject to http://about.jstor.org/terms