Elizabeth Key

Virginia’s hereditary slave law of partus sequitur ventrem was a criminal scheme that divested colonial-born black individuals of their well-established common-law liberty rights and their ethnic British identity. It deemed black individuals to be slaves at birth and imposed lifetime bondage on these colonial-born black Englishmen based upon the status of the mother.

This scheme was furthered by the corruption of colonial government and Virginia’s House of Burgesses, the lower House of its bicameral legislature, that enacted a slave law in 1660 and then, in 1662, purported to pass the hereditary slave law of partus sequitur ventrem. However, Virginia’s colonial assembly had no legislative authority to enact a positive law to legalize slavery within the American colonies or to ignore the colony of Virginia’s bicameral legislative and constitutional safeguard, which mandated that the King of England had to approve this hereditary slave law passed by Virginia’s colonial assembly.

Elizabeth Key is the individual behind Virginia’s hereditary slave law of partus sequitur ventrem. Key was born in 1630 in Warwick County, Virginia, to an indentured African woman. Her white father, Thomas Key, was born in England, and he came to Virginia in 1616 and was considered a pioneer tobacco planter. He was elected to Virginia’s legislative assembly, the House of Burgesses, representing Warwick County.
The wealthy Key denied paternity of Elizabeth, a court proceeding followed, and he was ordered to take responsibility for her. The elder Key took responsibility for Elizabeth and arranged for her baptism in the Church of England. Under English law, fathers were legally obligated to care for their children, even if they were illegitimate. In 1636, Key decided to move back to England, and he arranged for Elizabeth’s godfather, Humphrey Higginson, to be her guardian for nine years. He stipulated that Higginson should treat Elizabeth like a family member and grant her freedom at fifteen. But Higginson did not keep his commitment to Elizabeth after Key died later that year. Instead, Higginson sold Elizabeth to Colonel John Mottram, for whom she was required to serve the balance of her nine-year term before being released from bondage.

Mottram took Elizabeth to Northumberland County, and while there, she had a son with a young white lawyer named William Grinstead, an indentured servant himself. After Mottram died in 1655, Elizabeth sued for her freedom after her late master’s estate executors classified her and her infant son as “Negroes” and part of Mottram estate’s property assets. Elizabeth was unwilling to accept permanent servitude, so she petitioned the colonial court for her freedom, as she had already served as an indentured servant for over nineteen years.

Elizabeth claimed she was a free-born English individual as the father’s position defined their children’s status under England’s common law doctrine of partus sequtur patrem. She argued that as her white father was a free-born Englishman, she could not be born into slavery. English law was unambiguous, and Elizabeth was granted her freedom, along with her son.

Reacting to the ruling in the Key case, Virginia’s colonial assembly pretended to enact a slavery law in 1660 without securing the King’s permission, and then in 1662, purported to pass the hereditary slave law of partus sequitur ventrem that imposed lifetime bondage on colonial-born individuals based upon the legal status of the mother. However, Virginia’s slave laws were null and void from the outset because the King did not provide the required assent to either colonial law, as mandated by the colonial charter.

The lower House violated English law by attempting to alter the long-standing English common law tradition of partus sequitur patrem, which determined that the status of a child followed that of the father. Moreover, the King of England himself ascended to the British throne due to this principle.

Further, Virginia’s colonial assembly’s slave legislation contravened its colonial charter and violated common law, which did not recognize slavery. Moreover, England’s Court of the King’s Bench in the Somerset case declared slavery in the Kingdom could only be lawfully established by “positive law,” which meant only Parliament, not any lesser legislative body within the Kingdom, had the authority to authorize slavery in colonial America.

Subsequently, the English Bill of Rights, passed by Parliament in 1689, established fundamental constitutional principles and legal protections that undermined colonial hereditary slave laws within the American colonies, including parliamentary sovereignty and constitutional protections for all Englishmen, such as the prohibition of cruel and unusual punishment, the right to habeas corpus and the right to petition England’s monarch.