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Abstract

After a brief discussion of English subjecthood in seventeen century England and the American colonies I explore the legal theories advanced in Elizabeth Key’s freedom suit to determine whether the factors considered by the judging parties continue to have validity in contemporary America. I conclude that treating Elizabeth’s claim only as a challenge to slavery is problematic because seventeenth century English judges, unfamiliar with modern slavery, were uncertain about the applicable common law principles to apply. Villeinage – English serfdom – was an imperfect analogy to African slavery; and even if villeinage principles were applied to Elizabeth’s case the outcome would have been unclear. In exploring why the Virginia General Assembly agreed to consider Elizabeth’s claim, I argue it was influenced by evolving notions of English subjecthood stemming from Calvin’s Case decided two years after the founding of the Virginia Colony as well as the uncertain status of Africans and their descendants in England.

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