Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia

The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals June 2015 Dangerous Woman: Elizabeth Key's Freedom Suit Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia Taunya Lovell Banks Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Construction Law Commons, and the Law and Gender Commons Recommended Citation Banks, Taunya Lovell (2008) "Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia," Akron Law Review: Vol. 41 : Iss. 3 , Article 5. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol41/iss3/5 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Banks: Subjecthood and Racialized Identity in Colonial Virginia BANKS_FINAL 3/23/2009 2:57 PM DANGEROUS WOMAN: ELIZABETH KEY’S FREEDOM SUIT – SUBJECTHOOD AND RACIALIZED IDENTITY IN SEVENTEENTH CENTURY COLONIAL VIRGINIA Taunya Lovell Banks ∗ I. II. III. IV. V. VI. Introduction ....................................................................... 799 English Subjecthood in the Sixteenth and Early Seventeen Century ............................................................. 804 Elizabeth’s Legal Theories ................................................ 809 A. Introduction.................................................................. 809 B. Status of the Child Follows the Father (partus sequitur partem) .......................................................... 812 C. Indentured Servant versus Slave .................................. 820 D. Christianity as a Marker of Free Status ....................... 824 Reflections on the Disposition of Elizabeth’s Case........... 827 Life After Slavery .............................................................. 833 Coda ................................................................................... 836 I. INTRODUCTION Elizabeth Key, an Afro-Anglo woman, was born around 1630 in the Virginia Colony. Twenty-five years later she sued for her freedom after the overseers of her late master’s estate classified her and her infant son as negroes (Africans or descendants of Africans) rather than as an indentured servant with a free-born child. 1 Unwilling to accept ∗ Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law. The author would like to thank my colleague David Bogen for his helpful suggestions on earlier versions of this draft, Rennard Strickland for his support of this project, Sue McCarthy and Maxine Grosshans for their research assistance. 1. The extant court documents reporting Elizabeth Key’s case are reprinted in THE OLD 799 Published by IdeaExchange@UAkron, 2008 1 Akron Law Review, Vol. 41 [2008], Iss. 3, Art. 5 BANKS_FINAL 800 3/23/2009 2:57 PM AKRON LAW REVIEW [41:799 permanent servitude, Elizabeth sued for their freedom, and after protracted litigation she and her son were set free. A few historians and legal scholars mention her case in passing as proof that by the mid seventeenth century people of African ancestry were held as slaves in Virginia. 2 Only feminist historian Kathleen Brown even mentions that Elizabeth’s lawsuit involved not only her freedom, but that of her son. 3 To the rest of the historians she was simply a slave, her gender, son and mixed ancestry were irrelevant. None looked closely at the significance of her three interlinking legal arguments: (1) that she was a practicing Christian; (2) who was the daughter of a free Englishman; (3) who bound her out as an indentured servant for nine years which period had expired. Arguably Elizabeth’s pleadings might be an early example of what Kenji Yoshino characterizes as “covering,” downplaying aspects of one’s identity. 4 In crafting her legal argument around her father’s ancestry and subjecthood Elizabeth downplayed the African ancestry of her enslaved mother. Her argument also might be an example of “racial performance” where the extent one does things that English women and men did during the period becomes an important determinant of one’s legal status. 5 But as I explain in this article other cases decided during this period suggest otherwise. DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY OF VIRGINIA, 1606-1689 165-69 (Warren M. Billings ed., 1975)[hereinafter OLD DOMINION]. 2. The most complete scholarly discussion of Elizabeth Key’s freedom suit is found in Warren M. Billings, The Case of Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenth-Century Virginia, 30 WM. & MARY Q. 467 (1973) (discussing Key's case along with a later suit filed by an African male, Fernando, and focusing on their claim that persons of African descent who were Christians were free not slaves) [hereinafter Billings, The Cases of Fernando and Elizabeth]; Warren M. Billings, The Law of Servants and Slaves in Seventeenth-Century Virginia, 99 VA. MAG. HIST. & BIOGRAPHY 45, 55-57 (1991) (discussing the mulatto aspects of the suit). Other scholars refer to Elizabeth’s case for more limited reasons. See A. LEON HIGGINBOTHAM, IN THE MATTER OF COLOR 44 (1978); Jung Kim, Comment, Nguyen v. INS: The Weakening of Equal Protection in the Face of Plenary Power, 24 WOMEN’S RTS. L. REP. 43, 60 (2002); William M. Wiecek, The Origins of the Law of Slavery In British North America, 17 CARDOZO L. REV. 1711, 1755 n.157 (1996); Thomas Ingersoll, “Release Us Out of This Cruell Bondegg”: An Appeal From Virginia in 1723, 51 WM. & MARY Q. 777, 778 n.6 (1994). 3. Kathleen Mary Brown, Gender and the Genesis of a Race and Class System in Virginia, 1630-175 (May 29, 1990) (unpublished Ph.D. dissertation, Univ. of Wisconsin) (on file with University of Wisconsin-Madison Library, University of Wisconsin). 4. Kenji Yoshino, Covering, 111 YALE L.J. 769, 772 (2002). 5. For a discussion of this concept as it relates to slavery see Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109, 113 n.8, 163-64 (1998). See also John Tehranian, Note, Performing Whiteness: Naturalization http://ideaexchange.uakron.edu/akronlawreview/vol41/iss3/5 2 Banks: Subjecthood and Racialized Identity in Colonial Virginia BANKS_FINAL 2008] 3/23/2009 2:57 PM SUBJECTHOOD AND RACIALIZED IDENTITY IN COLONIAL VIRGINIA 801 Instead I argue that Elizabeth’s case and the Virginia colonial authorities reaction to it can better be explained by looking at evolving notions of subjecthood in seventeenth century England. But (...truncated)