Bill to Attaint Josiah Philips and Others
[28 May 1778]
Whereas a certain Josiah1 Philips labourer of the parish of Lynhaven2 and county of Princess Anne together with divers others3 inhabitants of the counties of Princess Anne and Norfolk and citizens of this commonwealth contrary to their fidelity associating and confederating together have levied war against this Commonwealth, within the same, committing murders, burning houses, wasting farms and doing other acts of hostility in the said counties of Princess Anne, and Norfolk, and still continue to exercise the same enormities on the good people of this commonwealth: and whereas the delays which would attend the proceeding to outlaw the said offenders according to the usual forms and procedures of the courts of law4 would leave the said good people for a long time exposed to murder and devastation. Be it therefore enacted by the General assembly that if the said Josiah Philips his associates and confederates shall not on or before the5 day of June in this present year render themselves to the Governor or to some member of the privy council, judge of the General court, justice of the peace or commissioned officer of the regular troops, navy, or militia of this commonwealth in order to6 their trials for the treasons, murders and other felonies by them committed, that then such of them the said Josiah Philips his associates and confederates as shall not so render him or themselves, shall stand and be convicted and attainted of high treason, and shall suffer the pains of death, and incur all forfeitures, penalties and disabilities prescribed by the law against those convicted and attainted of High-treason: and that execution of this sentence of attainder shall be done by order of the General court to be entered as soon as may be conveniently after notice that any of the said offenders are in custody of the keeper of the public gaol. And if any person committed to the custody of the keeper of the public gaol as an associate or confederate of the said Josiah Philips shall alledge that he hath not been of his associates or confederates at any time after the day of in the year of our lord7 at which time the said murders and devastations were begun, a petty jury shall be summoned and charged according to the forms of the law to try in presence of the said court the fact so alledged; and if it be found against the defendant, execution of this act shall be done as before directed.
And that the good people of this commonwealth may not in the mean time be subject to the unrestrained hostilities of the said insurgents, be it further enacted that from and after the passing of this act it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates at any time after the said day of8 aforesaid and shall not have previously rendered him or themselves to any of the officers civil or military before described, or otherwise to take and deliver them to justice to be9 dealt with10 according to law provided that the person so slain be in arms at the time or endeavoring to escape being taken.
Dft (Vi); in TJ’s hand. Endorsed by him: “A Bill to attaint Philips & others unless they render themselves to justice within a certain time.” Docketed by Edmund Randolph: “May 28. 1778. read the first time. May 29. 1778. read 2d. time & to be engd. Examined.” The Act as adopted has the same title and precisely the same wording as the Bill except for the words supplied in the blank spaces left by TJ (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 463–4). The deleted parts, indicated in notes below, tend to prove that this draft of the Bill is TJ’s original composition, not a fair copy such as he usually employed in reporting a bill.
The background of this extraordinary case is to be found in the following: Henry, Henry, i, 611–13; Elliot’s Debates, iii, 66, 140, 193, 223, 236, 274, 298, 450; W. P. Trent, “The Case of Josiah Philips,” Amer. Hist. Rev., i (1895–1896), p. 444–54. Ford (ii, 149) states that this Bill “was a violation of article 8 of the Virginia Declaration of Rights and was afterwards cited by Edmund Randolph … as such, in the following words: ‘There is one example of this violation in Virginia, of a most striking and shocking nature,—an example so horrid that, if I conceived my country would passively permit a repetition of it, dear as it is to me, I would seek means of expatriating myself from it. A man who was then a citizen, was deprived of his life thus: from a mere reliance on general reports, a gentleman in the House of Delegates informed the house that a certain man (Josiah Philips) had committed several crimes, and was running at large perpetrating other crimes. He therefore moved leave to attaint him; he obtained that leave instantly; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than these vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling evidence on his behalf, he was sentenced to death, and was afterwards actually executed.’” Also, St. George Tucker asserted that the judges of the General Court refused to apply the Act of attainder and that Philips was “put upon his trial, according to the ordinary course of law” (Tucker, ed., Blackstone, i , Appendix, p. 293). TJ was in France when Randolph produced his amalgam of errors, and may not have seen the speech until 1815. On 27 July 1814 William Wirt wrote TJ asking what he knew about the case and merely referring to the fact that “Mr. Henry was much censured by Mr. Ed. Randolph, in the convention of 1788”; TJ replied that the censure of Henry was without foundation; that he remembered the case; and that “Philips was a mere robber, who availing himself of the troubles of the times, collected a banditti, retired to the Dismal swamp, and from thence sallied forth, plundering and maltreating the neighboring inhabitants, and covering himself, without authority, under the name of a British subject. Mr. Henry, then Governor, communicated the case to me. We both thought the best proceeding would be by bill of attainder, unless he delivered himself up for trial within a given time. Philips was afterwards taken; and Mr. Randolph being attorney General and apprehending he would plead that he was a British subject, taken in arms, in support of his lawful sovereign, and as a prisoner of war entitled to the protection of the law of nations, he thought the safest proceeding would be to indict him at Common law as a felon and robber. Against this I believe Philips urged the same plea; but was overruled and found guilty” (TJ to Wirt, 14 Aug. 1814).
The next year, however, TJ answered Randolph’s charges much more fully, though he attributed his errors to the zeal of an orator who “in the ardor of conflict, [loses sight] of the rigorous accuracies of fact” (TJ to Girardin, 12 Mch. 1815). In this same letter TJ said that Randolph’s decision to try Philips at common law was “a course which every one approved, because the first object of the act of attainder was to bring him to fair trial.” TJ rewrote that part of Girardin’s history so as to coincide with his memory of the proceedings on this Bill, and Girardin published TJ’s revision (Burk-Girardin, Hist. of Va., iv, 305–6). TJ did not, however, recall the ironic fact that Randolph himself, as clerk of the House, had docketed the Bill, though he repeated the account he had given Wirt of Randolph’s decision not to make use of the Act.
While there is no clause in the Virginia Declaration of Rights or the Constitution of 1776 specifically prohibiting the legislature from passing bills of attainder, as, for example, there is in the Federal Constitution (Art. i, sect. 9), Coke and others had condemned such bills long before the American Revolution (C. H. McIlwain, The High Court of Parliament, 1910, p. 225). Yet to find such a bill proposed and drafted by TJ and enacted into law under his leadership is, to say the least, surprising. It is far more so to find him, so late as 1815, speaking of the “proper office of a bill of attainder.” Yet, so far as such a Bill could be justified in terms of the principles of a republic, his distinction between proper and improper use accords with the nature of the Act of Attainder of 1778: “When a person, charged with a crime, withdraws from justice, or resists it by force, either in his own or a foreign country, no other means of bringing him to trial or punishment being practicable, a special act is passed by the legislature, adapted to the particular case. This prescribes to him a sufficient term to appear and submit to a trial by his peers; declares that his refusal to appear shall be taken as a confession of guilt, as in the ordinary case of an offender at the bar refusing to plead, and pronounces the sentence which would have been rendered on his confession or conviction in a court of law. No doubt that these acts of attainder have been abused in England as instruments of vengeance by a successful over a defeated party. But what institution is insusceptible of abuse in wicked hands?” (TJ to Girardin, 12 Mch. 1815). The Bill that TJ drew, though it was indeed an attainder limited by the condition that Philips surrender himself before a certain date to be tried according to regular judicial procedure, nevertheless was an assumption by the legislature that (1) Philips was a common criminal and was not acting under a British commission, and (2) that the legislature could of right make such a distinction affecting the life and liberty of an individual. Since this was assuming to the legislature a power over the rights of an individual usually regarded as belonging within the province of the judiciary and under protection of established legal procedures, the least that can be said about the Bill of Attainder of 1778 is that it was an extreme violation of TJ’s belief in the principle of the separation of powers of government.
There is no doubt that Josiah Philips had been duly charged with crime, had withdrawn from justice, had resisted it by force, and had continued from 1775 to 1778 in his course of pillage and terrorism. On 20 June 1777 the council authorized the governor to issue a proclamation offering a reward for the capture of Philips and two other leaders of a group of “evil disposed persons, to the number of ten, or twelve, [who] have conspired together, to foment a Dangerous Insurrection”; Patrick Henry issued the proclamation the same day. On 3 Jan. 1778 the council authorized the governor to issue a warrant for £55 “for the purpose of rewarding sundry persons for apprehending Josiah Philips who was outlawed by the Governor the 20th June last as a Traitor to the State.” Apparently Philips, after being captured, must have effected his escape, for on 1 May 1778 the council received word from Col. Muter that “the noted Traitor has again made an Insurrection in Princess Anne County at the head of fifty Men.” The council authorized the governor to call out 100 of the militia from Nansemond, to offer a reward of $500 for apprehending Philips dead or alive, and to divide any booty among the captors of the traitor. By 27 May, however, Governor Henry laid before the council a letter he had received from Col. John Wilson saying that the militia was ineffective and recommending “the Removal of such Families as are in League with the Insurgents as a Step … absolutely necessary”; the council advised Henry to send this letter to the Assembly and to order out a company of regular troops (Va. Council Jour. description begins Journals of the Council of the State of Virginia, ed. H. R. McIlwaine description ends , i, 435; ii, 58, 127, 140). According to TJ’s letter to Wirt of 14 Aug. 1814, Henry consulted TJ before laying Wilson’s letter before the council and both agreed upon a bill of attainder; Trent (p. 446) asserts that TJ had probably instigated the letter which Henry transmitted to the House. The last may be so, but TJ was probably mistaken in recalling that he and Henry had agreed upon a bill of attainder. For what Henry asked the legislature to consider was Wilson’s proposal about the removal of some families: “thinking that the Executive power is not competent to such a purpose, I must beg leave to submit the whole matter to the general Assembly, who are the only Judges how far the methods of proceeding directed by Law, are to be dispended with on this occasion” (Official Letters description begins Official Letters of the Governors of the State of Virginia, ed. H. R. McIlwaine description ends , i, 282–3). (During the preceding year, on a threatened invasion, the governor and council had authorized the militia “to remove and restrain, during the imminence of the danger … certain persons whose affections to the American cause were suspected,” and the legislature had subsequently passed an Act of Indemnification for this use of executive power, indicating that Henry must have felt that on such a matter he did lack power; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 373–4). Henry’s letter of 27 May was laid before the House on the same day, together with Wilson’s letter; the House immediately resolved itself into the committee of the whole and debated the matter. On 28 May the committee of the whole again discussed the problem of the insurgents and agreed upon the following resolution: “Information being received that a certain Philips, with divers others, his associates and confederates, have levied war against this Commonwealth within the counties of Norfolk and Princess Anne, committing murders, burning houses, wasting farms, and doing other acts of enormity, in defiance of the officers of justice, Resolved, that it is the opinion of this committee, that if the said Philips, his associates and confederates, do not render themselves to some officer, civil or military, within this Commonwealth, on or before the day of June in this present year, such of them as fail so to do ought to be attainted of high treason; and that in the meantime, and before such render, it shall be lawful for any person, with or without orders, to pursue and slay, or otherwise to take and deliver to justice the said Philips, his associates and confederates.” (Trent, p. 447, asserts that “the report of the committee of the whole has been found in Jefferson’s own handwriting”; no such MS has been located, but in all probability TJ did draw the resolution just quoted, since its language in all respects is so similar to that used in the Bill.) TJ was appointed chairman of a committee of three to draft the Bill; he reported it the same day, when it was read the first time. On 29 May it was read the second time; on 30 May it passed the third reading; TJ carried it to the Senate and the Senate approved it the same day (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1778, 1827 edn., p. 20, 22, 23, 24, 28, 33).
Philips and some of his confederates were apprehended before the time limit set by the Act of Attainder had expired. “Last Tuesday the noted Josiah Philips, and James Hodges, were safely lodged in the publick jail by the sheriff of Princess Anne. They were taken the 4th instant, at night, in Norfolk county, with three others of the gang, who are soon expected here likewise” (Va. Gaz. description begins Virginia Gazette (Williamsburg, 1751–1780, and Richmond, 1780–1781). Abbreviations for publishers of the several newspapers of this name, frequently published concurrently, include the following: C & D (Clarkson & Davis), D & H (Dixon & Hunter), D &N (Dixon & Nicolson), P & D (Purdie & Dixon). In all other cases the publisher’s name is not abbreviated. description ends [Purdie], 19 June 1778). Their fate is recorded in the following newspaper account: “On Friday the 16th commenced, and continued to the 21st, the trial of sundry prisoners from the publick jail, when Josiah Philips, James Hodges, Robert Hodges, and Henry M’Clellan, from Princess Anne for robbing the publick waggons (and who were accused of murder, treason, and sundry other outrages) were capitally convicted” (Va. Gaz. description begins Virginia Gazette (Williamsburg, 1751–1780, and Richmond, 1780–1781). Abbreviations for publishers of the several newspapers of this name, frequently published concurrently, include the following: C & D (Clarkson & Davis), D & H (Dixon & Hunter), D &N (Dixon & Nicolson), P & D (Purdie & Dixon). In all other cases the publisher’s name is not abbreviated. description ends [Purdie], 30 Oct. 1778). They were executed on the gallows near Williamsburg on 23 Nov. 1778 (Va. Gaz. description begins Virginia Gazette (Williamsburg, 1751–1780, and Richmond, 1780–1781). Abbreviations for publishers of the several newspapers of this name, frequently published concurrently, include the following: C & D (Clarkson & Davis), D & H (Dixon & Hunter), D &N (Dixon & Nicolson), P & D (Purdie & Dixon). In all other cases the publisher’s name is not abbreviated. description ends [D & H description begins Virginia Gazette (Williamsburg, 1751–1780, and Richmond, 1780–1781). Abbreviations for publishers of the several newspapers of this name, frequently published concurrently, include the following: C & D (Clarkson & Davis), D & H (Dixon & Hunter), D &N (Dixon & Nicolson), P & D (Purdie & Dixon). In all other cases the publisher’s name is not abbreviated. description ends ], 4 Dec. 1778).
1. Both in the report of the committee of the whole and in the Bill, here and elsewhere, TJ left blank spaces for Philips’ given name. “Josiah” is filled in here and elsewhere in the Bill in Randolph’s hand.
2. Lynhaven is in Randolph’s hand.
3. TJ deleted the following at this point: “citizens of this commonwealth associating and confederating themselves together, have again.”
4. Philips had, of course, been outlawed by executive proclamation in 1777. See above.
5. The Act reads: “last day of June.” Since the Act was passed 30 May, this meant that Philips and his associates had only one month in which to deliver themselves up to justice or be attainted of treason.
6. The Act agrees with the reading of the Bill at this point, though possibly TJ, in the haste of drafting, omitted the word “stand.”
7. The Act reads: “first day of July in the year … one thousand seven hundred and seventy seven.”
8. The Act reads: “first day of July.”
9. The word “executed” is deleted in MS.
10. The words “as before directed by this act” are deleted and the phrase “according to law” interlined.