John Marshall: Definer of a Nation

Introduction

The Inauguration of 1801

Marshall, Jefferson, and the Transfer of Power

Marshall’s preeminence was due to the fact that he was John Marshall.

—Charles Evans Hughes, 1928

JOHN MARSHALL was the fourth Chief Justice of the United States. Appointed by President Adams during the waning days of his term in 1801, Marshall served as chief justice for thirty-five years. His tenure spanned the terms of five presidents: Jefferson, Madison, Monroe, John Quincy Adams, and Andrew Jackson. Under his leadership, the Supreme Court became a dominant force in American life. The broad powers of the federal government, the authoritative role of the Court, and a legal environment conducive to the growth of the American economy stem from the decisions that flowed from Marshall’s pen.

More important, the Marshall Court established the ground rules of American government. The Constitution reflected the will of the people, not the states, said Marshall, and the people made it supreme. That Federalist concept provided the basis for the constitutional decisions of the Marshall era. It was bitterly contested at the time; in many respects it lay at the root of the Civil War. But Marshall’s view ultimately prevailed. If George Washington founded the country, John Marshall defined it.

Marshall also established the independence of the judiciary and enhanced its moral authority. Traditionally, justices of high tribunals have written their own opinions, announcing them individually. Under Marshall’s leadership, the U.S. Supreme Court initiated the practice of delivering a single opinion of the Court. For the first ten years of his tenure, these were announced by the chief justice himself. That gave the decisions an aura of finality separate opinions could not supply. After 1811, when Joseph Story joined the bench, decisions were parceled out among the justices, but there was always a clearly labeled opinion of the Court, with Marshall delivering the most critical.

A list of Marshall’s great decisions reads like the ABCs of American constitutional law. Judicial review—the authority of the Supreme Court to declare acts of Congress and the executive unconstitutional—traces to his landmark opinion in Marbury v. Madison.¹ The implied powers of the national government evolved from the decision in McCulloch v. Maryland.² In the leading cases of Martin v. Hunter’s Lessee³ and Cohens v. Virginia,⁴ the Marshall Court established its jurisdiction over state courts when a federal issue was at stake. The sanctity of contractual arrangements, a concept that underlies the growth of modern business, found expression in Fletcher v. Peck⁵ and the famous Dartmouth College case.⁶ Perhaps even more significant, in Gibbons v. Ogden,⁷ Marshall struck down state efforts to restrain competition and thereby helped to fashion the seamless web of commerce that characterizes the American economy.

Above all, Marshall asserted the authority of the Supreme Court to interpret the Constitution. Today that authority is taken for granted, but it was not universally recognized in 1801. Constitutions are political documents. They define the way a nation is governed. The central issue of whether they were justiciable in courts of law was problematic. The English tradition held that the great constitutional documents of British history were purely political statements that lay in the realm of Parliament to interpret, not the courts. Jefferson subscribed to that view⁸; so did Jackson,⁹ and even Abraham Lincoln doubted the authority of the Supreme Court to resolve fundamental constitutional issues in the course of ordinary litigation.¹⁰

As chief justice, Marshall took the opposite position. Beginning with Marbury v. Madison, he consistently held that the Constitution was law. It not only established the political basis of American society, but it was also an important legal document that could be interpreted by the courts. And in matters of law, the decision of the Supreme Court was final.¹¹ The idea that the Constitution was law, subject to the Court’s jurisdiction, was a far-reaching concept. By definition, it established the authority of the Supreme Court as a constitutional body.¹²

Marshall’s path was not an easy one, and initially the Court seemed an unlikely competitor for national power. Its early years were marked by rapidly changing personnel. John Jay, the first chief justice, resigned after six years to become governor of New York. John Rutledge of South Carolina, who replaced Jay, served for one term on the Court but failed to win senatorial confirmation. Oliver Ellsworth, the third chief justice, afflicted with the gravel and the gout,¹³ resigned because of ill health in December 1800. During this period, the nature of the Court’s authority was vague and its caseload was light. With a few important exceptions, the early Supreme Court rarely decided a constitutional issue.¹⁴ Its appellate jurisdiction was defined by Congress; it had no regular meeting place; and its term was limited to one month a year.¹⁵

Marshall overcame these difficulties and asserted the Court’s authority. Not surprisingly, his decisions were occasionally unpopular. Some of the most important were taken in the face of hostile chief executives—especially when Jefferson and Jackson were in the White House. Marshall successfully deflected Jefferson’s efforts to curtail the judiciary,¹⁶ but he was less successful in dealing with Andrew Jackson, with whom he fought an ongoing battle over the treaty rights of the Cherokee Indians.¹⁷

Many of the Marshall Court’s decisions dealt with recalcitrant state governments. Others protected the vested rights of property against a flood of public and private debt. Those decisions invariably were greeted by adverse public reaction. In the few slave cases to come before the Court,¹⁸ Marshall applied the laws of property. Much to the discomfiture of his fellow Virginians, however, his dicta became increasingly hostile.¹⁹ The holdings went one way, but Marshall restated his aversion to slavery in his commentary.²⁰

Despite the criticism that rained down on some of his decisions, Marshall endured. The power of the national government grew, the role of the judiciary expanded, and the opinions of the Marshall Court withstood the test of time. Perhaps it is not surprising that in the wake of his great constitutional holdings, Marshall’s personal qualities have been forgotten. His life has been obscured by his achievements. Albert Beveridge, his most distinguished biographer, lamented that less was known of Marshall than of any other great American: Such exalted encomium has been paid him, that … he has become a kind of mythical being, endowed with virtues and wisdom not of this earth. He appears to us as a gigantic figure looming, indistinctly, out of the mists of the past.²¹

That is unfortunate. Marshall’s exceptional influence over his prickly and strong-minded colleagues on the Court—there was seldom a dissent while he was chief justice—gives some hint of the warmth of his personality as well as the clarity of his intellect. He was a naturally gifted leader: humorous, low-key, unpretentious, as outgoing as many of his contemporaries were austere. Throughout his life Marshall entertained generously, was a weekend regular at Richmond’s famous Quoits Club, and always enjoyed bending an elbow with friends and associates. House Speaker Theodore Sedgwick noted that Marshall was attached to pleasures, with convivial habits strongly fixed. He is indolent, therefore, [but] when aroused, has strong reasoning powers; they are indeed almost unequalled.²² Another contemporary, William Wirt, one of America’s greatest advocates before the Supreme Court, said of Marshall that his countenance has a faithful expression of great good humor and hilarity; while his black eyes—that unerring index—possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within.²³ And Massachusetts senator Charles Sumner, who knew Marshall in his later years, spoke of him as a model of simplicity … ready to laugh; to joke and be joked with.²⁴

Joseph Story, Marshall’s longtime colleague, said of him:

The first impression of a stranger, upon introduction to him, was generally that of disappointment. It seemed hardly credible that such simplicity should be the accompaniment of such acknowledged greatness.

Meet him on a stagecoach, as a stranger, and travel with him a whole day and you would only be struck by his readiness to administer to the accommodations of others and his anxiety to appropriate the least to himself. Be with him, the unknown guest at an inn, and he seemed adjusted to the very scene, partaking of the warm welcome of its comforts, whenever found; and if not found, resigning himself without complaint to the meanest arrangements. You would never suspect, in either case, that he was a great man; far less that he was the Chief Justice of the United States.²⁵

Marshall’s political creed was conservative. Like Washington and Adams, he was skeptical of direct democracy and preferred the checks and balances imposed by the Constitution. But Marshall was not reactionary. He believed strongly in representative government, vigorously defended a free press, and recoiled instinctively from the aristocratic pretensions of some of his fellow Federalists. Above all, Marshall was an ardent nationalist. He supported the United States at a time when most people’s loyalties ran to their state. His hero was George Washington. (In his early years as chief justice, Marshall wrote an imposing five-volume biography of Washington, which remained the definitive account of the first president’s life for over thirty years.)²⁶ In fact, support for Washington was a litmus test for Marshall. His long-standing animosity toward his kinsman Thomas Jefferson—Marshall and Jefferson were second cousins—traced in part to Jefferson’s partisan criticism of Washington in the late 1790s.

Marshall’s nationalism was rooted in his experience during the Revolutionary War. In 1775, at the age of twenty, he joined the army in the fight for American independence. First with the Culpeper minutemen, and then with the 11th Virginia regiment, he fought at Great Bridge, Brandywine, Germantown, and Monmouth. He was with Washington at Valley Forge and was present at the capture of Stony Point. Toward the end of his life, Marshall acknowledged how important those years had been. I was confirmed in the habit of considering America as my country and Congress as my government. I had imbibed these sentiments so thoroughly that they constituted a part of my being.²⁷ The result was that Marshall became an American before he had a chance to become a Virginian.

Nevertheless, Marshall’s roots in Virginia ran deep. The eldest of fifteen children, he was born in a simple wooden cabin at the foot of the Blue Ridge Mountains. Like many who were reared in that punishing environment, Marshall’s health was robust. Until his late seventies, he regularly walked six miles a day—usually at the quickstep of the Revolutionary War’s light infantry. Months before his death, at the age of eighty, the chief justice was still pitching quoits in Richmond on Saturday afternoons, occasionally tipsy from the Quoits Club’s powerful rum punch.

Curious as it may seem, Marshall had no significant judicial experience at the time he was appointed chief justice. But he was one of America’s most accomplished lawyers.²⁸ He had been among the first students to complete the legal curriculum prescribed by Chancellor George Wythe at the College of William and Mary,²⁹ and within ten years of his admission to the bar in 1780, he was recognized as Virginia’s leading appellate advocate.³⁰ A contemporary who watched Marshall in action wrote that he is superior to every other orator at the Bar … in his most surprising talent of placing his case in that point of view suited to the purpose he aims at, throwing a blazing light upon it, and keeping the attention of his hearers fixed upon the object to which he originally directed it.³¹ This rare ability to go to the heart of an issue was also noted by Federalist leader Rufus King, who, after hearing Marshall plead a case before the Supreme Court, said, His head is the best organized of anyone I have known.³²

Marshall entered politics reluctantly. He had a thriving practice and was speculating heavily in Virginia land titles. Unlike Washington and Jefferson, or Madison and Monroe for that matter, Marshall was not independently wealthy. When he became active in politics following Shays’s Rebellion in 1786, it was because he believed that the nation was imperiled. Marshall responded to the threat, speaking out vigorously against the insurrection, and the following spring he was elected to the Virginia assembly. There he supported the subsequent efforts of Washington and Madison at the constitutional convention in Philadelphia, and later he was to map the strategy by which the Virginia legislature submitted the Constitution stripped of crippling amendments to a state ratifying convention.

Once the Constitution had been adopted and the new national government put in place, Marshall returned to private practice. He became the Federalist leader in Virginia but declined Washington’s offer to become U.S. attorney for the state. In 1793, still in private practice, Marshall was elected brigadier general by the Virginia legislature and placed in command of the second brigade of the state militia. Given the unsettled conditions at the time, this was far more than an honorary posting. Two years later Washington invited him into his cabinet as attorney general but Marshall declined. In 1796 he refused appointment as minister to France. The following year he was induced by President Adams to join Charles Cotesworth Pinckney and Elbridge Gerry on a special mission to Paris—a desperate effort to restore cordial ties with revolutionary France. The mission turned out badly from the standpoint of Franco-American relations, but it established Marshall’s national reputation. When Talleyrand’s representatives (X, Y, and Z) tried to extract a bribe for the French foreign minister, Marshall broke off negotiations and issued a blistering report. He returned to the United States in triumph.³³

After the XYZ affair, Marshall resumed his law practice in Richmond. In 1798 President Adams offered him a seat on the Supreme Court. Marshall declined. The following year, yielding to the importunings of George Washington,³⁴ he ran for Congress from Richmond—then a hotbed of Jeffersonian democracy. At a crucial juncture in the campaign, Marshall was endorsed by Patrick Henry, the stormy petrel of Virginia populism. Despite their political differences, Marshall and Henry were warm friends, and Henry’s support turned the tide in Marshall’s favor. Tell Marshall that I love him, wrote Henry to an acquaintance in Richmond, because he acted [in Paris] as a republican, as an American.³⁵

During his one year in Congress, Marshall emerged as the leader of the administration’s dwindling forces. We can do nothing without him, Speaker Sedgwick wrote to Rufus King in December 1799.³⁶ Marshall successfully defended President Adams against charges that he had usurped judicial authority,³⁷ and at the same time thwarted right-wing Federalist attempts to enact a disputed elections bill that would have given the party the final authority to determine the electoral vote for president.

By this time it was obvious that Marshall was not a doctrinaire Federalist. The key to his politics lay in his nationalism, not his partisanship. He openly criticized the alien and sedition acts of 1798 as useless legislation calculated to create unnecessary discontents and jealousies at a time when our very existence as a nation may depend on our union.³⁸ In January 1800, when Jefferson’s supporters sought to repeal the Sedition Act, Marshall voted with them. The repeal carried the House 50–48, and Marshall’s vote was decisive. For that reason, many Federalists³⁹ suspected him of being too close to the Republicans, while the Republicans distrusted his ties to Washington and Adams.⁴⁰ Those ties were close, but they were bonds of patriotism, not party. Marshall admired Adams’s biting intellect, and no one in public life was closer to Washington. When the first president died suddenly in December 1799, the messenger from Mount Vernon sought out Marshall to announce the news, and it was Marshall who delivered the nation’s eulogy.

After Washington’s death, the Federalists self-destructed. Adams attempted to follow Washington’s moderate policies but came under increasing fire from both the left and the right. Jefferson and the Republicans pressed the president for an alliance with France against England, while Hamilton’s supporters urged an alliance with England and war against France. Adams was caught in the middle. His neutral course—which ultimately proved correct—had few defenders other than Marshall, who soon became indispensable to the president. It should not be surprising therefore that when Adams purged his cabinet of the Federalist war faction in the spring of 1800, he first nominated Marshall to be secretary of war, which Marshall declined, and then secretary of state, which he accepted.

Marshall served as secretary of state for ten months.⁴¹ When the capital moved from Philadelphia to Washington in June, Adams departed to spend the summer in Massachusetts and left Marshall in charge. From July through October 1800, Marshall was America’s de facto chief executive. He is actually a state conservator, wrote Secretary of the Treasury Oliver Wolcott. His value ought to be estimated not only by the good he does, but by the mischief he has prevented.⁴² Marshall used the opportunity to improve relations with both England and France, and his instructions to the American ministers in London⁴³ and Paris⁴⁴ set United States foreign policy on the course of nonalignment that it would follow for almost a century. That had been George Washington’s policy, and Marshall forcefully restated it.

Marshall took no part in the election of 1800 except to offer encouragement to Adams and his running mate, Charles Cotesworth Pinckney of South Carolina, and to lament the decline of national spirit. There is a tide in the affairs of nations, of parties, and of individuals, he wrote to Congressman Harrison Gray Otis of Massachusetts in August. I fear that real Americanism is on the ebb.⁴⁵

Three months later, with Jefferson’s victory looming, Marshall blamed Federalist miscues for the party’s demise. Writing to Judge Richard Peters in Pennsylvania, he said without bitterness that, however the election may terminate, good men ought still to continue their endeavors for the public happiness. I pray devoutly (which is no very common practice with me) that the future administration may do as little harm as the present and the past.⁴⁶ Above all, the outgoing and naturally friendly Marshall deplored the personal vindictiveness that had crept into the campaign. No one regrets more than I do, he wrote in mid-November, that intolerant and persecuting spirit which allows no worth out of its own pale, and breaks off all social intercourse as a penalty on an honest avowal of honest opinions.⁴⁷

Marshall sensed that a fundamental political change was at hand. In fact, with the possible exception of 1860, the election of 1800 proved to be the most significant in American history. It marked the introduction of political parties into presidential campaigns and the collapse of the electoral system designed by the Framers of the Constitution. It also ushered in a decisive shift in power. The Federalists were turned out, and the Republicans led by Thomas Jefferson were installed in the White House and Congress.

One cannot understand Marshall without an appreciation of his relationship with Thomas Jefferson, just as one cannot understand his tenure as chief justice except in the context of the exceptional circumstances that brought both men to power in 1801. By then, Marshall had become the nation’s most prominent Federalist and the unquestioned leader of the party’s moderate wing. Jefferson, at the head of the victorious Republican Party, enjoyed even greater national standing. In the tangled events of late 1800—the sudden resignation of a chief justice, an unexpected deadlock in the electoral college, and an unprecedented transfer of power—Marshall and Jefferson emerged as the central players in a drama that tested the nation’s survival.

The Federalists had dominated national politics since 1789. Washington had served two terms as president, and Adams one. But by 1800 the party was badly split between its ultra-conservative faction, led by Hamilton, and the more moderate elements, behind Adams and Marshall. Generally, the Federalists favored a strong central government, were ill-disposed toward states rights, and distrusted direct democracy. They emphasized the vested rights of property, trembled at the thought of popular uprisings, and had taken the lead in framing the Constitution as a bulwark against what many saw as a rising tide of anarchy in various states. The Federalists had successfully arrested the revolutionary thrust of the 1780s and provided the United States with the necessary stability to find its footing. But by 1800 their mandate had worn thin.

The Republicans, by contrast, emphasized majority rule. They deplored the checks and balances built into the federal system and sought to employ their power at the ballot box on behalf of the many—particularly the many who were deeply in debt—against the less numerous class of creditors and the entrenched wealth they represented. Until the election of 1800, Republican strength was concentrated in the various state legislatures. Not surprisingly, the party stressed the authority of the states, favored the yeoman virtues of agrarian society, and tended to be more egalitarian than the Federalists. The extreme wing of the Federalists saw Jefferson’s party as a rabble bent on seizing power to foment revolution, while the more radical of Jefferson’s supporters viewed the Federalists as dedicated monarchists determined to eradicate representative government.

Those perceptions were sharpened by the ideas of the French Revolution, which figured prominently in the presidential campaign. Jefferson and the Republicans were depicted as agents of the Revolution and the Terror that had accompanied it. For their part, the Federalists were painted as lackeys of the English crown. Neither view was correct. Both parties were deeply committed to the liberal principles of 1776 and to the continued existence of the United States as a free country. Their differences were matters of degree. The Federalists feared national fragmentation, while the Republicans worried about growing centralization. Each party saw the other as a threat to representative government, and as the rhetoric of the campaign escalated, the areas of common understanding receded behind a torrent of invective.

By the late autumn of 1800, it was apparent that Adams had lost and that Jefferson and his running mate, Aaron Burr of New York, would be elected. Under the electoral system designed by the Framers—a system deliberately put in place to thwart the growth of political parties—each member of the electoral college voted for two persons for president, the only stipulation being that one of those persons must be from a different state from that of the elector.⁴⁸ There was no distinction between voting for president and voting for vice president. Each elector simply wrote two names on his ballot. When the ballots were tabulated, the person with the largest number of votes became president, while the person with the second largest number was elected vice president. The system was designed to be nonpartisan but had already run into difficulty. In 1796 John Adams had received the largest number of electoral votes and became president, while his principal opponent, Thomas Jefferson, had the second largest number and became vice president.

The formula for mixed government worked poorly, and in 1800 the system simply collapsed. For the first time, each of the parties nominated two candidates. The Federalists backed Adams for president and Pinckney for vice president; the Republicans ran Jefferson and Burr. When the electors met in their respective state capitals, all but one of the Federalist electors voted for Adams and Pinckney,⁴⁹ while each of the Republicans cast his votes for Jefferson and Burr. As before, no distinction was made as to who was to be president, who vice president. As a result, Jefferson and Burr each received seventy-three votes; Adams garnered sixty-five; Pinckney, sixty-four; and John Jay one. To the nation’s surprise, Thomas Jefferson and Aaron Burr, who had begun the campaign as running mates, found themselves in a dead heat for president.

The Constitution, whose Framers had not anticipated such an event,* provided that in case of a tie in the electoral college, the House of Representatives would choose between the two candidates, each state delegation casting one vote. In hindsight, it may seem curious that Burr, the vice presidential nominee of the Republicans, did not defer to Jefferson. Indeed, Burr had not actively sought the presidency. But when the White House beckoned, he saw his opportunity and stayed in the race. The lame-duck House of Representatives was controlled by the Federalists, and for many of them, Jefferson was anathema. Given the choice between Jefferson and Burr, most preferred Burr, public sentiment to the contrary notwithstanding.

On December 18, 1800, Marshall, in his capacity as secretary of state, wrote the unhappy news of the election to Pinckney in South Carolina:

According to our present intelligence Mr. Jefferson and Mr. Burr have an equal number of votes and of consequence the House of Representatives must choose between them. It is extremely uncertain on whom the choice will fall. Having myself no voice in the election, and in fact scarcely any wish concerning it, I do not intermeddle with it, but I hear what is said by others, and witness the anxiety of parties.⁵⁰

Marshall added, almost as an afterthought, that Chief Justice Oliver Ellsworth had resigned and that Adams had nominated John Jay to replace him.⁵¹ Should Jay decline, as seemed likely, Marshall thought Adams would choose the senior associate justice, William Cushing of Massachusetts, then sixty-eight. I shall return to Richmond on the 3d. of March [1801] to recommence practice as a lawyer. If my present wish can succeed so far as respects myself, I shall never again fill any political station whatever.⁵²

Ten days later Marshall repeated those sentiments to his wife’s brother-in-law, Edward Carrington. He said that while he had hoped to be back in Richmond in February, he would probably have to remain in Washington until March 3, the last day of Adams’s term. As for the presidential election, Marshall told Carrington that the outcome is extremely doubtful, adding I take no part, and feel no interest in the decision. I consider it as a choice of evils and I really am uncertain which would be the greatest.⁵³ Marshall went on to say that it appeared that Burr might win. It is not believed that he would weaken the vital parts of the Constitution, nor is it believed that he has any undue foreign attachments. These opinions incline many who greatly disapprove of him yet to prefer him to the other gentleman who is offered to their choice. I have only to wish that the best for our common country may be done, but I really do not know what that best is.⁵⁴

The other gentleman to whom Marshall referred was Thomas Jefferson, and the reference to foreign attachments pertained to Jefferson’s sympathy for France. Marshall’s long-standing aversion to Jefferson was deeply held and cordially reciprocated. It was a character flaw that Marshall and Jefferson shared equally; a flaw that was captured by the historian Henry Adams who, when speaking of Marshall, wrote that this great man nourished one weakness. Pure in life; broad in mind, and the despair of bench and bar for the unswerving certainty of his legal method; almost idolized by those who stood nearest him … this excellent and amiable man clung to one rooted prejudice: he detested Thomas Jefferson.… No argument or entreaty affected his conviction that Jefferson was not an honest man.⁵⁵

Marshall almost invariably retained the friendship of his political opponents, partly as a result of his experience as a trial lawyer, where the cut-and-thrust of the courtroom rarely affected personal relations. More important, Marshall was strenuously convivial and did not make enemies easily. He and James Madison were good friends; Monroe had been close since childhood; and he even enjoyed the company of the abrasive John Randolph. The redoubtable Patrick Henry, the most radical of the great Virginians, remained a friend and admirer. Jefferson was the exception.

Marshall’s animosity toward the man he sometimes called the great lama of the mountain stemmed from childhood and family heritage and was reinforced by numerous personal encounters over the years. Both Jefferson and Marshall traced their maternal descent to Virginia’s illustrious Randolphs. But Marshall’s grandmother, Mary Randolph Keith, had been disowned by the family, while Jefferson’s ancestors flourished within the fold. Exactly what impact that had on Marshall is unclear, but it certainly set the stage for the subsequent hostility. Albert Beveridge claimed that the animosity sprang from Marshall’s bitter experience with Washington at Valley Forge during the bleak winter of 1778. Jefferson was not there. He did not serve in the Continental Army, nor did he share the hardships of war. According to Beveridge, Marshall considered Jefferson a shirker—a fault he never forgave.⁵⁶

Whatever the cause, Marshall’s animus was likely reinforced by his in-laws. His mother-in-law, Rebecca Burwell Ambler, had been Jefferson’s first fiancée, and she and her family spoke freely of Jefferson’s foibles, often in Marshall’s presence.⁵⁷ But above all, Marshall thought that Jefferson was untrustworthy. If George Washington never told a lie, Marshall believed that Jefferson rarely told the truth. His personal dislike for Jefferson ultimately contributed to his own political skepticism. Looking back many years later, Marshall said, I have never believed firmly in [Mr. Jefferson’s] infallibility. I have never thought him a particularly wise, sound and practical statesman [and] I have not changed this mode of thinking.⁵⁸

Jefferson, for his part, thought Marshall was a hypocrite. The admittedly partisan Henry Adams suggested that Jefferson’s repugnance for Marshall was tinged with a deeper feeling, bordering at times on fear. Whether the feeling was fear or not, Jefferson certainly acknowledged Marshall’s ability, although one would be hard put to say that he respected it. He told Joseph Story that when conversing with Marshall, I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me if it were daylight or not, I’d reply, ‘Sir, I don’t know, I can’t tell.’⁵⁹

Jefferson’s hostility reflected sharp political differences. Unlike Marshall, Jefferson found it difficult to maintain cordial relations with his opponents, and of those opponents Marshall was often the most formidable.⁶⁰ The depth of Jefferson’s feeling is best revealed in a letter to Pennsylvania’s Albert Gallatin, in which he wrote that Marshall’s inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim.⁶¹

The animosity Marshall and Jefferson shared is ironic because in many ways they were very much alike. Both were gifted with exceptional intelligence and both were exceedingly able politicians. They shared the same Virginia heritage, had strong fathers and accomplished mothers (though Jefferson’s mother died young), and both were trained as lawyers. They each rejected organized religion (Jefferson more outspokenly), and neither seemed to care a whit about his clothes or personal appearance. Far more significant, both were quintessentially American: Jefferson, the inspired author of the Declaration of Independence; Marshall, the staunch defender of the Constitution. Jefferson, the slaveholder, leaned toward democracy and equality. Marshall, who came to reject slavery, favored republican government, with built-in checks and balances to buffer majority will.

In the final analysis, they had more in common with each other than either cared to admit. Yet it is also true that the contrasts that fueled their rivalry abounded. An exemplary aristocrat who advocated democracy, Jefferson was never comfortable associating with the common man. Marshall, who distrusted democracy, never lost the common touch. Jefferson opposed an energetic central government as a danger to individual liberty; Marshall saw the government in Washington as the keystone of national well-being. Jefferson identified with Virginia; Marshall, with the United States. Jefferson favored agriculture and advocated the virtues of rural life; Marshall, an avid farmer himself, was more attuned to the needs of commerce and industry. Jefferson was partial to France. Marshall, like Washington, leaned toward Britain. In some respects the differences involved the classic tension between the man of ideas and the man of affairs. Jefferson was at his best when articulating a philosophy of government; Marshall, when applying one. Each exemplified their respective persuasions; each represented an important tendency in American political traditions; yet neither was prepared to accommodate the idiosyncrasies of the other.

Ironically, in the winter of 1800–1801, with the race for president deadlocked, Marshall found himself in a pivotal position. Of all the Federalists, he had been tainted least by the party’s defeat. He was recognized as the heir to Washington’s mantle of moderation and for the past two years had been the administration’s most effective spokesman. Having weathered the fire of the High Federalists, he was, with Adams’s defeat, now widely regarded as the party’s leader. His support for either Burr or Jefferson would be crucial.

On December 26, 1800, Alexander Hamilton, Jefferson’s old nemesis, wrote Marshall to express his opposition to Burr and to suggest that Jefferson be elected.⁶² If there be a man in the world I ought to hate it is Jefferson, wrote Hamilton.⁶³ With Burr I have always been personally well. But the public goal must be paramount to every private consideration. Burr was a hopeless bankrupt, Hamilton said, "the Catiline of America⁶⁴ who has no principle public or private.… Disgrace abroad [and] ruin at home are the probable fruits of his elevation."⁶⁵

Hamilton was less than honest about his relations with Burr. They were bitter rivals in New York and detested each other. Marshall and Jefferson harbored a mutual dislike, but it paled beside the hatred these two men shared. Nevertheless, Marshall, who did not know Burr, was moved by Hamilton’s plea. The day after receiving the letter, Marshall replied candidly to his former comrade-in-arms: To Mr. Jefferson … I have felt almost insuperable objections. His foreign prejudices seem to me totally to unfit him for the chief magistracy of a nation which cannot indulge those prejudices without sustaining deep and permanent injury.⁶⁶ Moreover, in addition to this solid and immovable objection Mr. Jefferson appears to me to be a man who will embody himself with the House of Representatives. By weakening the office of President he will increase his personal power. He will diminish his responsibility, sap the fundamental principles of government and become the leader of that party which is about to constitute the majority of the legislature. Marshall’s concern related to Jefferson’s well-known preference for legislative rather than presidential government, fearing it would lead to a parliamentary system, which he strongly opposed.

But Marshall’s most serious objection pertained to Jefferson’s character and what he believed had been his shabby treatment of George Washington. The Morals of the Author of the letter to Mazzei cannot be pure, he told Hamilton.* Marshall said that with these impressions concerning Mr. Jefferson I was in some degree disposed to view with less apprehension any other character, and to consider the alternative now offered us as a circumstance not to be entirely neglected.⁶⁷

Nevertheless, Marshall respected Hamilton’s judgment. Your representation of Mr. Burr with whom I am totally unacquainted shows that from him still greater danger than even from Mr. Jefferson may be apprehended. Such a man as you describe is more to be feared and may do more immediate if not greater mischief. As a result, Marshall told Hamilton that he would remain neutral. He would not back Burr, but I cannot bring myself to aid Mr. Jefferson.⁶⁸

There were rumors that in the event of a deadlock in the House of Representatives (the votes of nine of the sixteen states were required for election), the Federalists would try to retain the presidency temporarily.⁶⁹ Some mentioned John Jay as an interim choice;⁷⁰ others mentioned Marshall.⁷¹ But Marshall took no part in the matter and did his best to discourage such speculation. The Federalists had lost, and it was now a choice between two evils.⁷²

Talk of denying the presidency to the Republicans was idle gossip. A more pressing problem for the Federalists was the replacement of Oliver Ellsworth as chief justice. John Jay, as expected, declined the offer.⁷³ But Jay’s letter did not arrive in Washington until mid-January,⁷⁴ and his delay in replying forced Adams’s hand. Congress had before it a Federalist measure to revise the judiciary that would reduce the size of the Supreme Court from six justices to five.⁷⁵ If Adams delayed naming a replacement until the bill was passed, Ellsworth’s resignation in itself would reduce the size of the Court, and the incoming Republican president would name the next chief justice. That left Adams almost no time to find a replacement.

Reflecting on the episode years later, Marshall said, When I waited on the President with Mr. Jay’s letter declining the appointment he said thoughtfully, ‘Who shall I nominate now?’ I replied that I could not tell.… After a moment’s hesitation he said, ‘I believe I must nominate you.’ I had never before heard myself named for the office and had not even thought of it. I was pleased as well as surprised, and bowed in silence. Next day I was nominated.⁷⁶

There is no evidence that Adams had planned to name Marshall, or that he had calculated the move beforehand. Instead, the available information suggests that the pace of events forced the choice.⁷⁷ Adams simply could not afford to delay naming a new chief justice if the Federalists were to retain control of the Court. Marshall was at hand, he was prepared to accept the post, and his personal loyalty to the president had been demonstrated time and again over the past year.⁷⁸ By choosing Marshall, the petulant Adams was also demonstrating the power he still retained as president. Most Federalists had assumed the nod would go to William Cushing, who had served on the Court since its inception in 1789, or to the next senior justice, William Paterson of New Jersey. Paterson especially had strong support among the Hamiltonian wing of the party. Yet Adams knew that Marshall’s standing was unassailable and that the Senate ultimately would have to go along.⁷⁹

Marshall was nonetheless a bitter pill for the High Federalists, and it was they, not the Republicans, who delayed his confirmation. Led by Senator Jonathan Dayton of New Jersey—who wrote that Marshall’s nomination was greeted with grief, astonishment, and almost indignation⁸⁰—the slim (17–15) Federalist majority in the Senate pressed Adams for a full week to withdraw Marshall’s name and submit Paterson’s instead. When Adams refused, they reluctantly acquiesced, and on January 27, 1801, John Marshall was confirmed unanimously as Chief Justice of the United States.⁸¹ Two days later the Senate began consideration of the judiciary bill, and passed it the following week.⁸²

Senator Dayton continued to fulminate against Adams’s derangement of intellect, explaining that the Federalists thought it advisable to confirm Mr. Marshall lest another not so well qualified, and most disgusting to the Bench, should be substituted.⁸³ The Senate’s fifteen Republicans, remembering Marshall’s past support in Congress and his general moderation, supported the new chief justice enthusiastically.⁸⁴ Even Thomas Jefferson, who as vice president presided over the Senate, made no public or private comment, apparently content with Adams’s choice.

John Marshall was forty-five years old and in the full vigor of life. I was unfeignedly gratified at the appointment, he told Justice Story many years later.⁸⁵ Marshall, not having anticipated his selection, brought with him no judicial agenda except to preserve the United States. A quarter of a century later, John Adams, then near death, and perhaps forgetting the accidental nature of his original choice, wrote that the proudest act of my life was the gift of John Marshall to the people of the United States, going on to describe Marshall as a chief justice equal to Coke or Hale, Holt or Mansfield, the greatest figures of English jurisprudence.⁸⁶

Although the issue of the new chief justice was now settled, Jefferson still faced an uncertain path to the White House. On February 11 the electoral votes were officially counted and the deadlock announced; the House of Representatives then commenced its constitutional task of choosing the next president. While the Federalists commanded a numerical majority in the House, the voting would be by state and Republicans controlled more state delegations. The congressmen balloted nineteen times on February 11 and a total of thirty-five times during the next five days. Republicans voted down the line for Jefferson; Federalists supported Burr. Each ballot showed the same result: eight states for Jefferson, six for Burr, and two state delegations split evenly and therefore abstaining. Jefferson was one state shy of the majority required for election. On the thirty-sixth ballot, the Federalists admitted defeat. Congressman James A. Bayard of Delaware, who was that state’s sole representative and thus controlled its vote, told the party’s caucus that it was clear Burr could not win and there was no point in continuing to support him. Delaware, he said, would abstain on the next ballot.⁸⁷ The Federalists in Vermont and Maryland, the two states that had been equally divided, also abstained, leaving only the Republicans voting. That gave those states to Jefferson. The result was that Jefferson gained a majority of ten states. One state, Delaware, abstained, and the five states that were controlled by the High Federalists held out for Burr to the bitter end.

Jefferson’s thirty-sixth ballot victory came on February 17. The inauguration of the president was set by statute for March 4.⁸⁸ That left exactly two weeks for an orderly transition, assuming that the charged political climate would permit one. Exuberant Republicans flocked to Washington, Jefferson kept his own counsel as to his future plans, and the outgoing Federalists consolidated their hold on the judiciary. Adams appointed sixteen circuit judges authorized by the new judiciary act and set about filling forty-two relatively minor justice of the peace positions in the District of Columbia—a move further designed to insure stable law enforcement (at least in Federalist eyes) in the nation’s capital.⁸⁹

The High Federalists, still unreconciled, feared the worst. By contrast, Marshall, who at Adams’s request continued to serve as secretary of state for the remainder of the term,* offered a mixed assessment. Writing to Rufus King, then American minister in London, Marshall urged him to defer any negotiations with the crown until he heard from the new administration. What the conduct of Mr. Jefferson will be with respect to foreign powers is uncertain. Among those who have supported him are men who on this subject differ widely from each other. The most intelligent among them are in my opinion desirous of preserving peace with Britain but there is a mass of violence and passion in the party which seems to me disposed to press on to war. My private conjecture is that the government will use all its means to excite the resentment and hate of the people against England without designing to proceed to actual hostilities.

Marshall was less optimistic about Jefferson’s domestic policies and repeated his fear that the president-elect would seek to strengthen the state governments at the expense of … the Union and to transfer as much as possible the powers remaining with the general government to the House of Representatives.⁹⁰

Despite their personal dislike, Marshall and Jefferson each did their best to facilitate the transition. Jefferson undoubtedly found it easier to deal with the even-tempered Marshall than with the irascible Adams—who would become the first president to boycott his successor’s swearing-in*—and Marshall, for his part, had no reason not to cooperate. The preservation of the Union, which was Marshall’s primary aim, depended on an orderly transfer of power. In addition, both shared the view that the intemperate rhetoric of the campaign had gotten out of control and that it was time to restore a more civil discourse. When Jefferson informed Marshall that as vice president he had no secretary to help him prepare his messages to Congress,⁹¹ Marshall immediately assigned the chief clerk of the State Department to the president-elect. More significantly, Jefferson asked Marshall to remain as acting secretary of state until James Madison arrived in Washington, which would not be until several days after the inauguration.⁹²

Marshall and Jefferson both recognized the enormous significance of the upcoming inauguration and its symbolic importance for the country’s future. If handled properly, it would provide a unique testament to the ability of a free people to change their government peacefully. The fear of impending violence was palpable, but the inauguration offered an opportunity for the nation to rally round the new president. With that in mind, Jefferson wrote to Marshall on March 2 to request that he administer the oath of office. From the text of Jefferson’s letter, it is not clear whether he was addressing Marshall as secretary of state or chief justice. But that is immaterial. What is more important is that Marshall’s presence as the Federalist leader would consummate the changeover. Jefferson said that he intended to take the oath at noon on March 4 in the Senate chamber and promised to be punctual. He asked Marshall to determine the precise wording of the oath that was required.

Marshall replied that afternoon. I shall with much pleasure attend to administer the oath of Office, he told Jefferson, and shall make a point of being punctual. Marshall said that the State Department’s records furnish no information respecting the oaths which have been heretofore taken. That prescribed in the Constitution seems to me to be the only one which is [appropriate].⁹³

The tension between Marshall and Jefferson yielded to the needs of the nation. On the morning of the inauguration, Marshall began a letter to his old friend in South Carolina, Charles Cotesworth Pinckney. Marshall wanted to thank Pinckney for the congratulations he had written on Marshall’s appointment as chief justice and to apprise him of the mood in Washington.

Today the new political year commences, wrote Marshall. The new order of things begins. Mr. Adams I believe left the city at 4 o’clock in the morning and Mr. Jefferson will be inaugurated at 12. There are some appearances which surprise me. I wish however more than I hope that the public prosperity and happiness may sustain no diminution under democratic guidance.

Marshall then penned a sentence—one of the most misquoted he ever wrote—summarizing his benign judgment of the new president. In Marshall’s words, The democrats are divided into speculative theorists and absolute terrorists: With the latter I am not disposed to class Mr. Jefferson.⁹⁴ In his 1916 biography of Marshall, Beveridge inexplicably omitted the word not from this passage, thus giving it the very opposite meaning that Marshall intended.⁹⁵ The result was to overstate Marshall’s fear of Jefferson and to charge him with a partisanship he did not embrace. Beveridge’s false depiction of Marshall’s attitude was accepted by a generation of scholars and writers. As a consequence, Marshall was painted far more conservatively than he deserved to be. The High Federalists might have considered Jefferson an absolute terrorist, but John Marshall certainly did not.*

Marshall also told Pinckney that if Jefferson aligned himself with the terrorists, it is not difficult to foresee that much calamity is in store for our country—if he does not [so align himself] they will soon become his enemies and calumniators.⁹⁶ At that point Marshall broke off the letter to attend the inauguration. He arrived at the newly completed Senate chamber well before Jefferson and took his seat alongside Aaron Burr, who had just been sworn in as vice president. Jefferson arrived promptly at noon. His meeting with Marshall on the podium was a dramatic moment in what history has recorded as one of America’s most memorable inaugurations.

Perhaps even more than Marshall, Jefferson was determined to establish the precedent of orderly change, and his inaugural address represents one of the greatest statements ever made about the government of a free society.⁹⁷ Seeking to restore national harmony, he appealed to the moderate Federalists and attempted to disarm the irreconcilables. He generously praised Washington—our first and greatest revolutionary character whose preeminent services entitled him to the first place in the country’s love—and modestly asked indulgence for his own errors. It was almost as if he were addressing Marshall directly. Then, in one of the most striking passages, the new president defined the essence of democratic government. While the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable. The minority possess their equal rights, which equal laws must protect, and to violate would be oppression. He added, in those often-quoted words, "We are all republicans; we are all federalists. If there be any among us who wish to destroy this union, or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." Marshall rose to administer the oath, and the ceremony ended.

The years ahead would place these two great statesmen on a collision course. But for the moment, they shared a common purpose. The change of power had been peacefully accomplished. When Marshall returned to his rooms, he finished his letter to Pinckney. I have administered the oath to the President, he wrote. You will before this reaches you see his inauguration speech. It is in the general well judged and conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.⁹⁸

*   *   *

This book deals with the life of John Marshall. As Chief Justice of the United States for thirty-five years, Marshall transformed the Constitution from a compact among the states into a charter of national life and created a political role for the Supreme Court at the very center of the nation’s development. Marshall was a great man in an era that brought forth great men. And the conflicts among them—sometimes petty, often partisan, and occasionally of far-reaching significance—helped the nation to mature and prosper.

Marshall was a man of simple tastes and uncomplicated outlook. Careless of dress, indolent of manner, and a friend to all who approached, he possessed the best-organized mind of his generation. A shrewd politician, a moderate republican, a federalist by principle but a democrat in his daily contacts, Marshall was a patriot and a nationalist. He believed deeply in the United States and carried that faith with him to the grave.

Jefferson and John Adams died on July 4, 1826—the fiftieth anniversary of the Declaration of Independence. Marshall, after a brief illness, died on July 6, 1835. He had gone to Philadelphia that summer for medical treatment, but to no avail. His final words, according to Justice Story, were a prayer for the Union.⁹⁹

On July 8, 1835, as Marshall’s funeral cortege made its way through the city, the muffled bells of Philadelphia reverberated their mournful message. As fate would have it, July 8 marked the anniversary of that date in 1776 when Philadelphia’s bells had first rung out to celebrate American independence.¹⁰⁰ And then, on that day in 1835, again as if by fate, the greatest of the bells, the Liberty Bell in Independence Hall, went silent. It had cracked while tolling the death of the great chief justice. It was never to ring again.

1

Marshall’s Virginia Heritage

The events of my life are too unimportant, and have too little interest for any person not of my immediate family, to render them worth communicating or preserving.¹

WITH THOSE MODEST WORDS John Marshall commenced a terse autobiographical sketch for his old friend and colleague Joseph Story. The year was 1827, and Marshall was seventy-two. Story had requested the information for a review he was writing of Marshall’s History of the Colonies, which had recently been republished.² Marshall told Story that he had difficulty recounting the events of his life since the mere act of detailing exhibits the appearance of attaching consequence to them.… If I conquer [that difficulty] now, it is because the request is made by a partial and highly valued friend.³

The chief justice thereupon provided Story with a succinct survey of his early life:

I was born on the 24th of September 1755 in the county of Fauquier, at that time one of the frontier counties of Virginia. My Father possessed scarcely any fortune, and had received a very limited education;—but was a man to whom nature had been bountiful, and who had assiduously improved her gifts. He superintended my education, and gave me an early taste for history and poetry. At the age of twelve I had transcribed Pope’s Essay on Man, with some of his Moral Essays.

There being no grammar school in that part of the country in which my Father resided I was sent, at fourteen, about one hundred miles from home, to be placed under the tuition of Mr. Campbell, a clergyman of great respectability. I remained with him one year, after which I was brought home and placed under the care of a Scotch gentleman who was just introduced into the parish as Pastor, and who resided in my Father’s family. He remained in the family one year, at the expiration of which time I had commenced reading Horace and Livy. I continued my studies with no other aid than my Dictionary. My Father superintended the English part of my education, and to his care I am indebted for anything valuable which I may have acquired in my youth. He was my only intelligent companion; and was both a watchful parent and an affectionate friend. The young men within my reach were entirely uncultivated; and the time I passed with them was devoted to hardy athletic exercises.⁴

With those sparse words John Marshall sketched the broad outline of his upbringing. In September 1755 when Marshall was born, Fauquier county, at the foot of the Blue Ridge Mountains, was perched at the frontier and lightly settled.⁵ Its pioneer inhabitants were nervous and apprehensive that autumn. Two months before, 5,000 red-coated regulars, the largest force Britain had ever deployed in the colonies, had been ambushed by the French and Indians on the banks of the Monongahela. Major General Edward Braddock, the British commander in chief in North America, had been killed and his command annihilated.⁶ The panic flight of the few survivors shattered the myth of English invincibility. If Wolfe’s victory over Montcalm on the Plains of Abraham consolidated the British hold on Canada, Braddock’s defeat at the hands of the Indians convinced the American colonists they must fend for themselves.

George Washington, then twenty-three years old, led the Virginia rangers who served with Braddock. He saw firsthand the magnitude of Brad-dock’s defeat, as did the other young Virginians who accompanied him. One Virginian who did not join the campaign was Washington’s close friend Thomas Marshall, the future chief justice’s father.⁷ Washington and Thomas Marshall had been raised as neighbors in tidewater’s Westmoreland county and briefly attended school together in Washington parish. Both were surveyors by profession and had worked together mapping the vast expanse of Virginia’s northern neck to chart the way for future settlement. Like Washington, the elder Marshall was an officer in the Virginia militia, but with his wife expecting their first child, he remained at home that summer in the tiny community of Germantown, a settlement of less than a dozen dwellings, all of which disappeared when the frontier moved westward.⁸

John Marshall’s parents were typical of many young couples in colonial America. His paternal ancestors were Welsh artisans who came to Virginia sometime in the late seventeenth or early eighteenth century. His father was the son of another John Marshall, a small planter who struggled to make a living on two hundred acres of low, marshy land cut from the wilderness along a minor tributary of the Potomac. That John Marshall was known to his prosperous neighbors as John of the forest, a pejorative term used by tidewater aristocracy to describe someone less affluent who lived in the woods.⁹ In 1722 he married Elizabeth Markham, the younger daughter of a prosperous merchant from Alexandria, Virginia,¹⁰ and together they had six children, Thomas being the eldest. Nothing definite is known about the parents of John of the forest, and all efforts to chart the chief justice’s paternal heritage beyond the second generation have ended in genealogical quicksand. Marshall himself never traced his parentage beyond his grandfather.¹¹

By contrast, the chief justice’s maternal ancestors came from the remnants of English gentry and Scottish nobility who settled Virginia’s great plantations. My mother was named Mary Keith, wrote Marshall. She was the daughter of a clergyman, of the name of Keith, who migrated from Scotland and intermarried with a Miss Randolph of James River.¹² Marshall’s summary was as delicate as it was precise. His maternal grandmother, the Miss Randolph of James River, was Mary Isham Randolph, the granddaughter of William Randolph of Turkey Island and Mary Isham of Bermuda Hundred—colonial grandees sometimes referred to as the Adam and Eve of Virginia. Their descendants include not only Marshall, but Thomas Jefferson, Robert E. Lee, and numerous generations of Randolphs.¹³

The Ishams and the Randolphs were among the first English settlers to arrive in Virginia.¹⁴ The first Randolph, a merchant by the name of Henry, went to Jamestown in 1635. His business flourished, and in 1659 Henry was named clerk of the House of Burgesses. William Randolph, his nephew, arrived a few years later, and trained as a lawyer. He succeeded his uncle as the burgesses’s clerk and eventually became attorney general of the colony. In 1680, he married Mary Isham, the much sought after daughter of Henry Isham, one of tidewater Virginia’s largest landowners and the social arbiter of the families living on the south bank of the James River.

The Randolph-Isham union proved remarkably fertile. There were nine children and thirty-seven grandchildren. Each of the children married well, and the family holdings multiplied. One son, Richard of Curles,* married Jane Bolling, a great-granddaughter of Pocahontas. Another, Sir John Randolph, a distinguished lawyer and scholar, was knighted by George II in 1732, the only Virginian to be given such a rank in the colonial period.¹⁵ A third son, Isham Randolph, who came into possession of the vast Dungeness plantation, was the grandfather of Thomas Jefferson. The descendants of William, the eldest son, intermarried with the Blands and the Lees, spawning additional dynasties. Thomas, the second son of the original William Randolph and Mary Isham, married the wealthy Judith Fleming of New Kent county,¹⁶ and established one of the James River’s most famous plantations at Tuckahoe. It was from the Tuckahoe Randolphs that Marshall was descended.

In the early 1730s Mary Isham Randolph, the eldest daughter of Thomas and Judith of Tuckahoe, then a young girl of sixteen or seventeen, fell in love and eloped with a slave overseer from her uncle Isham’s Dungeness plantation—an Irishman by the name of Enoch Arden.¹⁷ The two were married secretly and had a child. Eventually they were discovered to be living on remote Elk Island in the James River. According to family chroniclers, the enraged Randolphs descended on the island, killed Arden and the baby, and took Mary back to Tuckahoe. The tragic loss of her husband and child shattered Mary’s sanity.¹⁸

Under careful family supervision, Mary recovered gradually, only to fall in love with yet another man deemed objectionable by the Randolphs. This time the object of Mary’s affection was the Reverend James Keith. Keith was the minister of Henrico parish, one of the largest and most important parishes in Virginia.¹⁹ It included not only Tuckahoe and other Randolph plantations on the James but the rapidly growing town of Richmond as well. A refugee from the abortive 1719 Jacobite uprising in Scotland, the Reverend Keith was particularly effective in the pulpit. He was a bachelor, but he was seventeen years older than Mary and, like much of the Anglican clergy in colonial Virginia, enjoyed a reputation for licentiousness.²⁰ Mary and James had an affair and appear to have been discovered in flagrante delicto. The Randolphs, who held two seats on the vestry of Henrico parish,