A small slip of paper on display in the Library of Virginia’s latest exhibition You Have No Right: Law and Justice in Virginia, running 24 September 2012-18 May 2013, was of immense importance to twelve people. It discloses, even though it does not state the fact in so many words, that on 2 May 1772 they gained their freedom after being held in slavery since each of them was born. The piece of paper and the fates of those Virginians illuminates a disturbing and little-known part of Virginia’s history, the enslavement of American Indians.

The paper came into the possession of the Library of Virginia in 1988 when it acquired a copy of volume two of John Tracy Atkyns, Reports of Cases Argued and Determined in the High Court of Chancery in the Time of Lord Chancellor Hardwicke . . . (London, 1765–1768) that had once been in the library of the colonial government in Williamsburg. One of the librarians in the cataloguing section showed it to me, knowing of my interest in that library. When she lifted it from her desk to hand it to me, a piece of paper that had been slipped between leaves in the middle of the volume fell out and fluttered to the floor. We were surprised, and I was even more surprised when I saw what it was. It was a 1780s or 1790s copy of the judgment in Robyn v. Hardiway (or Robin, or Hardaway), an unusually important case decided in the General Court of Virginia. The librarian and I presented the judgment to the archivists who added it to the meager surviving records of the colonial General Court.

The court case had two parts. First, attorneys argued about whether a 1682 law that allowed for the lifetime enslavement of Indians imported from other colonies had been repealed in 1684, 1691, or 1705. For decades Virginia’s courts had assumed that the 1684 invalidated the 1682 law, and “under that persuasion,” one of the attorneys informed the court, “hundreds of the descendants of Indians have obtained their freedom, on actions brought in this court.” The court concluded the first part of the case by deciding that the 1682 law had remained in effect until 1705.  This decision enlarged the number of residents of Virginia who could not hope to gain their freedom by claiming to be descendants of Indian women illegally enslaved between 1684 and 1705.

A jury trial then established that the twelve people were descendants of an Indian woman who had been illegally enslaved. The jury awarded Robin, Hannah, Daniel, Cuffie, Isham, Moses, Peter, Judy, Autry, Silvia, Davy, and Ned, all of unstated age, one shilling in damages. Each received one penny, but each also received freedom.

Some excellent 21^st-century scholarship demonstrates that English-speaking Virginians enslaved many more Indian residents of Virginia in the 17^th century than earlier historians believed and that the enslavement may very well have taken place in spite of the laws or in the absence of laws governing the enslavement of Indians. Because almost all of the records of the colonial General Court burned in the fire that destroyed the state court house and much of the business district of Richmond in April 1865, the specific record of the outcome of the important 1772 freedom suit naming the persons freed is especially rare and valuable.

It was critically important that the twelve plaintiffs were descendants of “Indian women,” not of Indian men. In 1662 the Virginia General Assembly had passed a law that arose from a case that Elizabeth Key filed in the Northumberland County Court. She was the daughter of Thomas Key, a white man who had been a burgess in the 1630s, and one of his enslaved female laborers of African origin or descent. Elizabeth Key claimed her freedom as the daughter of a free man and won her case, but the assembly then changed the law. The act of 1662 explained that because “some doubts have arrisen whether children got by any Englishman upon a negro woman should be slave or ffree” it declared “that all children borne in this country shalbe held bound or free only according to the condition of the mother.”

Two other pieces of paper on exhibition in You Have No Right demonstrate that descendants of enslaved Indian women continued to file freedom suits in Virginia courts well into the 19^th century. In May 1820, after seven years of tedious and delayed proceedings in the courts of Wythe and Powhatan Counties, Rachel Findlay won her freedom for the second time. When she was a girl in 1773, one year after the General Court issued its judgment in Robyn v. Hardiway, the court ruled that she and her family, too, were entitled to their freedom as descendants of an illegally enslaved Indian woman. But her owner, who lived in the part of Cumberland County that in 1777 became Powhatan County, sold rather than freed her. She lived in slavery in far-away Wythe County for forty years until learning in 1813 that she should have been freed in 1773.

When the Powhatan County Court finally issued its ruling in the May 1820 judgment Rachel vs. John Draper, Sr. that Rachel Findlay was a free person, she was an old woman with thirty or forty descendants, all of whom had lived all of their lives in slavery and should have always lived free. It is not known whether any or all of her children and grandchildren and perhaps great grandchildren ever learned that they, too, should have been living in freedom and not in slavery since their births or whether any of them actually became free as a result of her persistent pursuit of her law suit. A court judgment was not self-enforcing, especially for a group of people like Rachel Findlay’s descendants who probably lived in wide dispersion, perhaps some of them outside of Virginia. Some of them may have lived the remainder of their lives in slavery, too, as she did for forty-seven years.

About the time that Rachel Findlay won her freedom for the second time, members of the Evans family lost a freedom suit in Lynchburg in Charles Evans, etc. vs. Lewis B. Allen, 1821-033. Their story is truly tragic. In preparation for their case, members of the family or perhaps their court-appointed attorney compiled and submitted to the court a genealogical chart that demonstrated how the family members were related to one another. That sheet of paper is also on display in the Library of Virginia’s exhibition and together with other evidence might have persuaded a court that they were entitled to their freedom. However, their attorney, former Congressman Christopher Henderson Clark, had a stroke sometime in 1820 and failed to appear in court on behalf of his clients. As a consequence of the case not being presented when scheduled, the court dismissed it in 1821, leaving all of the people and the descendants of the females stuck in slavery for the remainder of their lives.

Slavery and the laws that created and protected it were cruel and unjust. Adding to the cruelty and injustice were the many unpredictable factors, like the illness of an attorney, that could prevent people from presenting their cases in court, or like the sale of Rachel before she could become free. It is now clear that colonial Virginians enslaved more Indians than historians once knew about, and it is evident that many more people had been illegally enslaved than historians once believed. Men, women, and children of African, American Indian, and also of European and mixed ancestry like Elizabeth Key fell victim to the system of slavery that sustained Virginia’s economy and society from the early years of the colonial period to the end of the American Civil War.

It is also now convenient for the first time to do thorough research on some of the freedom suits that people filed after the American Revolution. People who filed suits seeking freedom and alleging illegal enslavement often sought justice through local courts of chancery. The record of each surviving court case contains unique personal stories about the enslavement of one or more Virginians and the conditions under which they lived and how they attempted to gain their freedom. As part of the Library of Virginia’s project to preserve and make available to researchers the records of the commonwealth’s local chancery courts, archivists at the library have to date digitized thousands of case files containing several million pages of documents, including more than one hundred freedom suits. They are processing and digitizing more every day. The records of the cases that have been digitized can be viewed online in the Chancery Records Index.

Clerks of court did not know or use the surnames of the people who filed freedom suits, so to identify freedom suits it is necessary to search for chancery causes in which the style, or title, of the case does not include a surname. In the search field for the surname for the plaintiff(s), simply enter a tilde ~ which will return a list of cases in which the surname of the plaintiff is not part of the official name of the case.

-Brent Tarter, Founding Editor of the Dictionary of Virginia Biography

“In the time worn and musty old folios long since filed away in our public offices, there is many a fact recorded that has occured [sic] under the personal observation of no one now living; and which if placed within the reach of the public, would go farther to give us a knowledge of the manners, customs, and character of the pioneers of Augusta County than all the histories that have been written on our native state.”

These words were written by a young lawyer who was researching court records filed in the Augusta County courthouse in the early 1830’s. He was amazed by the amount of history found in the old court papers. He discovered stories about the first settlers of western Virginia and the many obstacles they encountered in their efforts to start a new life in an untamed wilderness. He read about events that happened during the French and Indian War and Revolutionary War. The young lawyer came across suits in which the litigants talked about their migration down the Shenandoah Valley from western Pennsylvania to Kentucky, Tennessee, and Georgia. Mesmerized by what he was reading, the young lawyer wanted to make his discoveries in the court records available to the public, and so, he wrote a letter to the editor of an unidentified newspaper requesting a weekly column in which he would share the history of Augusta County using records found in the courthouse.

The latest digital images of the Augusta County chancery causes now available on the Chancery Records Index cover the years 1747-1818 and include the court records the young lawyer came across 180 years earlier. And just like the young lawyer, the Library of Virginia is placing within the reach of the public the stories of the pioneers of western Virginia.

Why are the early Augusta County chancery records so rich with the history of western Virginia? Staunton was the site of a Superior Court of Chancery that existed from 1802 to 1832. The Superior Courts of Chancery were created by an act of the General Assembly passed on 23 January 1802. In order to expedite the hearing of chancery suits, the High Court of Chancery was abolished and the state was divided into three chancery districts with a Superior Court of Chancery for each district. For this reason these courts were sometimes called “District Courts of Chancery.” Suits heard in these courts were typically cases appealed from the local courts. A transcript of the suit from the local court was commonly filed with the appeal. Litigants could bypass the local courts and file their suits in the chancery district court directly. The Superior Court of Chancery in Staunton heard on average over a hundred suits per year – 210 in 1811 alone. Of the three original Superior Courts of Chancery – Staunton, Richmond (City), and Williamsburg – only the records of the Staunton district remain.

From 1802 to 1812, the Staunton district consisted of localities found in the western half of the Commonwealth including the ones in present-day West Virginia: Augusta, Bath, Berkeley, Botetourt, Brooke, Frederick, Grayson, Greenbrier, Hampshire, Hardy, Harrison, Jefferson, Kanawha, Lee, Monongalia, Monroe, Montgomery, Ohio, Pendleton, Randolph, Rockbridge, Rockingham, Russell, Shenandoah, Tazewell, Washington, Wood, and Wythe counties. In 1812, the General Assembly created additional Superior Courts of Chancery which reduced the number of localities in the Staunton district to the following: Albemarle, Amherst, Augusta, Bath, Botetourt, Cabell, Greenbrier, Kanawha, Mason, Monroe, Nelson, Pendleton, Rockbridge, and Rockingham counties. Consequently, the Augusta County chancery causes are a tremendous resource for historical and genealogical researchers of West Virginia and western Virginia localities that experienced substantial loss of their pre-Civil War era loose records such as Russell County, Washington County, Lee County, and Botetourt Counties. (For more information on the counties and cities with missing records see the Lost Records Localities research note.)

Chancery causes from the Superior Court of Chancery period are a rich primary source for a variety of historical topics. Many suits document violent encounters between the first settlers and Native Americans, the original inhabitants of the region. In James Maxwell vs. Thomas Pickens, etc., 1810-031, James Maxwell wrote that during his twelve years’ residence in the county he “encountered death in a thousand shapes” and that his family were “almost continually exposed to the cruelty of the merciless Savages” and two of his daughters “fell a sacrifice to their barbarity during his residence” while he was “engaged abroad in defending his country.”

Transcript of letter to a newspaper editor

There are a multitude of land ownership and boundary disputes that contain exhibits such as deeds, land surveys, and plats. One suit involved the disputed boundary between North Carolina and Virginia and references the Fry-Jefferson survey of the state border. (See Colonel William Robinson vs. Colonel Arthur Campbell, 1807-067, image number 61.) One will also find in these suits the names of African Americans brought to western Virginia as slaves. Chancery cause 1812-042, William McMechen & James P. Heath vs. John H. Hyde etc., involves a dispute over the ownership of a large number of slaves in Rockbridge County. A bill of sale for 31 of the slaves is an exhibit in the suit and lists the names of the slaves, family relationships (husband, wife, children), occupations, and the appraised monetary value of each slave (image numbers 36 and 37). One will also read about women suing to defend their property rights (1805-041, Elizabeth Russell vs. John Doyell etc.), the establishment of schools (1805-090,  Trustees of Washington Academy vs. Robert Gold), and one suit related to an attempt to invent a steam-powered boat (1803-089, James McMeechen vs Exr. of James Rumsey.)

This latest addition of Augusta County chancery causes covering the time period from 1747 through 1818 joins the 1867-1912 causes already available. These cases are representative of the over 10,000 found in the Augusta County Chancery Causes collection that document the rich heritage of Augusta County and western Virginia. This scanning project is funded by the Circuit Court Records Preservation Program and a $150,000 grant from the National Historical Publications and Records Commission (NHPRC).

-Greg Crawford, Local Records Coordinator

The Library of Virginia is pleased to announce that the first digital images, covering the years 1816-1857, from the Scott County chancery causes digitization project have been added to the Chancery Records Index. The Scott County chancery index covers the years 1816 through 1942 (bulk 1816-1912). The records will be scanned through 1912.

The following are a few suits of interest found in the newly added Scott County chancery digital images. In suits 1828-001, Madison Hill vs. Heirs of Joseph Johnson, and 1830-017, Joseph Jones & wife vs. Thomas M. Carter, one will find references to confrontations between Native Americans and the early settlers of Scott  County. Chancery causes 1831-009, 1832-009, 1837-001, and 1852-004 concern a free African American mother’s determined effort to liberate her two children from slavery.

Additional Scott County chancery images will be available in the coming months. Stay tuned for future Out of the Box posts on this valuable and interesting collection of historic Virginia court records.

The Circuit Court Records Preservation Program (CCRP), funded through a $1.50 of the clerk’s recordation fee, is committed to efforts, like the Scott County chancery causes digitization project, that preserve and make accessible permanent circuit court records. Unfortunately, the downturn in the real estate market and the General Assembly’s diversion of CCRP funds have negatively impacted the CCRP’s budget in recent years and slowed the pace of digital chancery projects. The projects remain a high priority for the agency and it is hoped that the initiative can be resumed in full when the economy and the agency’s budget situation improve.

November is Native American Heritage Month, a month set aside to recognize the significant contributions the first Americans made to the establishment and growth of the United States. Here at the Library of Virginia we have documents that tell the story of the Gingaskin Tribe. In 1641, the Accomac Indians, an Algonquin-speaking tribe located on the Eastern shore and part of the group collectively referred to as Powhatan Indians, became known as the Gingaskins when they accepted a patent from the English government for the remaining 1,500 acres of their ancestral lands on the ocean side of Northampton County. Various legal and boundary struggles with their English neighbors over the years reduced the lands reserved for the Gingaskins to 650 acres, which was patented again in 1680.

Over the years, Indian lands were often leased to outsiders by the state and county governments in order to help support Gingaskin members, most of whom chose to maintain a traditional lifestyle and not farm the lands. Great concern was exhibited by white neighbors about the Gingaskins intermarrying with free negroes and charges were made in petitions to the General Assembly in 1784 and 1787 that there were no more “real” Indians left on the reservation and therefore the land should be given to whites who could better protect it, by which they meant farm it in the traditional English way.

Beginning in 1792, the General Assembly had required the Northampton County court to appoint trustees to manage the reservation lands and settle any disputes that arose.  The trustees of the Gingaskin reservation, never very enthusiastic about their duties, convinced (or forced) the remaining members to accept a division of the land among themselves in 1812.  The General Assembly passed a law in 1813 to eliminate the Gingaskin reservation and divide the land between the official members, deeding the divided plots to individuals in the same way as anyone else in Virginia would own land. This was the first instance of termination or legal allotment of reservation lands and detribalization of its owners in United States history. Three-fourths of individual Gingaskin owners retained their lands until 1831 when most were forced out following the Nat Turner insurrection.

For more information about the history of the Gingaskins and other Indians of eastern Virginia, see Dr. Helen C. Rountree’s book Pocahontas’s People: The Powhatan Indians of Virginia Through Four Centuries (Norman, OK: University of Oklahoma Press, 1990). The Library of Virginia’s holdings include Northampton County land records relating to the Gingaskin lands, 1785-1815, (Barcode 1168316) and Legislative Petitions of the General Assembly, 1776-1865, (Accession 36121) concerning the division and selling of the Gingaskin lands dated 26 November 1784 and 10 October 1787.

 -Sarah Nerney, Senior Local Records Archivist