Nancy Randolph and Richard Randolph Trial: 1793

Richard Randolph retained John Marshall, then 37 years old, and destined less than a decade later to begin his tenure as the most celebrated of all chief justices of the U.S. Supreme Court, as his counsel. Marshall was distant kin of the Randolphs and a close friend of St. George Tucker. It was also decided to enlist the help of the legendary leader of the revolution and former diplomat, Patrick Henry. As the well known story goes, when initially offered a fee of 250 guineas, Henry declined the case on the grounds of ill health, but when the offer was doubled, he decided he was well enough to travel. As an attorney, Henry was known for his skill in cross-examining witnesses. Marshall already had a reputation for his ability to analyze evidence and to present forceful logical arguments for whatever position he was defending.

There are no extant official records of the trial; the proceedings have been reconstructed from notes taken, particularly the "Notes of Evidence" in the papers of John Marshall. The trial was held before a panel of 16 "gentlemen justices," but not all necessarily sympathetic to the Randolphs—among them were members of other prominent Virginia families with whom the Randolphs had long-standing feuds. Under Virginia law Richard and Nancy Randolph could not be required to testify, nor could slaves appear as witnesses, although Mary Harrison had seen two young female slaves in Nancy's bedroom when she had taken in the laudanum. Randolph and Mary Harrison testified to their involvement on the night of October 1-2 and the events they were aware of. But under cross-examination by Patrick Henry, Randolph Harrison asserted that he had not entertained "any suspicion of criminal correspondence" between his guests. Mary Harrison told the court that she had no suspicions of Nancy until after she heard the rumors, and even then she considered the probability of a birth or miscarriage having occurred to be low.

An incident in Patrick Henry's cross-examination of an aunt, Mary Page, has been frequently retold as an example of his skill in undermining what might have been strong evidence. Mary Page had apparently suspected that Nancy was pregnant for some time before the night in question. Henry asked her to describe the circumstances which had caused this suspicion, eventually bringing her to the point of describing how she had found the opportunity to observe Nancy, undressed, through a crack in a locked door, and had concluded that she looked pregnant. Henry is then said to have leaned toward the witness and asked, "Madam, which eye did you peep with?" As laughter erupted in the crowded courtroom Henry turned to the panel of justices and boomed, "Great God, deliver us from eavesdroppers!"

John Marshall delivered the closing statement for the defense. He did not attempt to dispute any of the facts presented by the witnesses. He pointed out that there had been no proof that a baby had been born that night, much less that it had been killed. All of the other circumstances were open to an innocent interpretation. If relatives had observed expressions of fondness between Richard and Nancy, was this not quite natural? She was his wife's sister, she had been obliged to leave her own home, and her suitor, Theodorick, had died. If the two had been engaged in an adulterous relationship, would they not have been careful not to appear fond of each other before other family members? If Mary Page had observed a change in Nancy's size that was due to pregnancy as early as May, would it not have been obvious to all that she was pregnant by the end of September? Nancy had procured a medication believed to have the possible side effect of inducing an abortion, but if the other testimony is correct, this was at a time when she was near delivery, so there would have been no point to using it for that purpose. Marshall concluded that although "the friends of Miss Randolph cannot deny that there is some foundation on which suspicion may build," at the same time her enemies could not deny that "every circumstance may be accounted for, without imputing guilt to her. In this situation candor will not condemn or exclude from society a person who may be only unfortunate." The justices accepted this argument. There was insufficient evidence for a conviction and the pair were freed, apparently to the jubilation of the community which had been so ready to condemn them.

Only three years, later Richard Randolph was suddenly taken ill with a high fever, became delirious, and died. Nancy continued to live with her sister for some years, but in 1809 she married one of America's Founding Fathers, Gouverneur Morris. Among his many distinctions, he had been personally responsible for the drafting of large parts of the American Constitution, as a member of the constitutional convention in Philadelphia in 1787. It was a happy marriage and they had a son in 1813. The following year John Randolph of Roanoke, known as Jack, the younger brother of Richard and Theodorick, who after a distinguished political career had become embittered and rancorous, chose to revive the old accusations against Nancy, along with others, in a letter addressed to her, but intended for her husband. Nancy chose to reply, and in a letter that she was careful to circulate to Jack Randolph's political enemies, she said that she had indeed given birth that October night in 1792 at Glenlyvar, but the baby had not been killed; it was born dead. The father, she said, was not Richard, but Theodorick, whom she had intended to marry, and whom she considered as her husband "in the presence of… God…" The baby had been conceived, she indicated delicately, just a few days before Theodorick's death. Her claim, however, has not been universally accepted as true, and there are still those who believe it is more likely that the original allegations were wellfounded.