To Louis H. Girardin
Monticello Mar. 12. 15.
Th: Jefferson to mr Girardin
I return the three Cahiers, which I have perused with the usual satisfaction. you will find a few pencilled notes, merely verbal.
But in one place I have taken a greater liberty than I ever took before, or ever indeed had occasion to take. it is in the case of Josiah1 Philips, which I find strangely represented by judge Tucker and mr Edmund Randolph, and very negligently vindicated by mr Henry. that case is personally known to me, because I was of the legislature at the time, was one of those consulted by mr Henry, and had my share in the passage of the bill. I never before saw the observations of those gentlemen, which you quote on this case, and will now therefore briefly make some strictures on them.
Judge Tucker, instead of a definition2 of the functions of bills of attainder, has given a diatribe against their abuse. the occasion and proper3 office of a bill of attainder is this. 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 succesful over a defeated party. but what institution is insusceptible of abuse in wicked hands?
Again the judge says, ‘the court refused to pass sentence of execution pursuant to the directions of the act.’ the court could not refuse this, because it was never proposed to them; and my authority for this assertion shall be presently given.
For the perversion of a fact so intimately known to himself mr Randolph can be excused only by our indulgence for orators who, pressed by a powerful adversary, lose sight, in the ardor of conflict, of the rigorous accuracies of fact, and permit their imagination to distort and colour them to the views of the moment. he was Attorney General at the time, and told me himself, the first time I saw him after the trial of Philips, that when taken & delivered up to justice, he had thought it best to make no use of the act of attainder, and to take no measure under it; that he had indicted him at the Common law either for murder or robbery (I forget which & whether for both) that he was tried on this indictment in the ordinary way, found guilty by the jury, sentenced and executed under the common law; a course which every one approved, because the first object of the act of attainder was to bring him to fair trial. whether mr Randolph was right in this information to me, or when in the debate with mr Henry, he represents this atrocious offender as sentenced and executed under the act of attainder, let the record of the case decide.
‘without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and afterwards actually executed.’ I appeal to the universe to produce one single instance from the first establishment of government in this state to the present day, where, in a trial at bar, a criminal has been refused confrontation with his accusers and witnesses, or denied the privilege of calling for evidence in his behalf. had it been done in this case, I would have asked of the Attorney General why he proposed or permitted it? but, without having seen the record, I will venture, on the character of our courts, to deny that it was done. but if mr Randolph meant only that Philips had not these advantages on the passage of the bill of Attainder, how idle to charge the legislature with omitting to confront the culprit with his witnesses, when he was standing out in arms, and in defiance of their authority, and their sentence was to take effect only on his own refusal to come in and be confronted. we must either therefore consider this as a mere hyperbolism of imagination in the heat of debate, or what I should rather believe, a defective statement by the Reporter of mr Randolph’s argument. I suspect this last the rather because this point in the charge of mr Randolph is equally omitted in the defence of mr Henry. this gentleman must have known that Philips was tried and executed under the Common law, and yet, according to this report, he rests his defence on a justification of the attainder only. but all who knew mr Henry know that when at ease in argument, he was sometimes careless, not giving himself the trouble of ransacking either his memory or imagination for all the topics of his subject, or his audience that of hearing them. no man on earth knew better when he had said enough for his hearers.
Mr Randolph charges us with having read the bill three times in the same day. I do not remember the fact, nor whether this was enforced on us by the urgency of the ravages of Philips, or of the time at which the bill was introduced. I have some idea it was at or near the close of the session. the journals, which I have not, will ascertain this fact.
After these particular strictures I will proceed to propose 1. that the word ‘substantially’ pa. 92. l. 6 be changed for ‘which has been* charged with’ [subjoining a note of reference *1. Tucker’s Blackst. Append. 292. Debates of Virginia convent.]
2. that the whole of the quotations from Tucker, Randolph and Henry be struck out, and instead of the text beginning pa. 92. l. 12. with the words ‘Bills of attainder’4 Etc to the words ‘so often merited’ pa. 95. l. 4. be inserted the following, to wit.5
‘this was passed on the following occasion. A certain Josiah Philips, laborer, of the parish of Lynhaven in the county of Princess Anne, a man of daring & ferocious disposition, associating with other individuals of a similar cast, spread terror and desolation thro’ the lower country, committing murders, burning houses, wasting farms, and perpetrating other enormities, at the bare mention of which humanity shudders. every effort to apprehend him had proved abortive. strong in the number of his ruffian associates, or where force would have failed resorting to stratagem and ambush; striking the deadly blow, or applying the fatal torch at the midnight hour and in those places which their insulated situation left almost unprotected, he retired with impunity to his secret haunts, reeking with blood, and loaded with plunder. [so far the text of mr Girardin is preserved.] the inhabitants of the counties which were the theatre of his crimes, never secure a moment by day or by night, in their fields or their beds, sent representations of their distresses to the governor, claiming the public protection. he consulted with some members of the legislature, then sitting, on the best method of proceeding against this atrocious offender. too powerful to be arrested by the sheriff and his posse comitatus, it was not doubted but an armed force might be sent to hunt and destroy him and his accomplices, in their morasses and fastnesses wherever found. but the proceeding concluded to be most consonant with the forms and principles of our government, was that the legislature should pass an act giving him a reasonable but limited day to surrender himself to justice, and to submit to a trial by his peers, according to the laws of the land;6 to consider a refusal as a confession of guilt, and, divesting him as an Outlaw of the character of citizen, to pass on him the sentence prescribed by the law; and, the public officer being defied, to make every one his deputy, and especially those whose safety hourly depended on his destruction. the case was laid before the legislature, the proofs were ample, his outrages as notorious as those of the public enemy, and well known to the members of both houses from those counties. no one pretended then that the perpetrator of crimes who could succesfully resist the officers of justice, should be protected in the continuance of them by the privileges of his citizenship, and that baffling ordinary process, nothing extraordinary could be rightfully adopted to protect the citizens against him. no one doubted that society had a right to erase from the roll of it’s members any one who rendered his own existence inconsistent with theirs, to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary. an enemy in lawful war putting to death, in cold blood, the prisoner he has taken, authorizes retaliation, which would be inflicted with peculiar justice on the individual guilty of the deed, were it to happen that he should be taken. and could the murders and robberies of a pyrate or Outlaw entitle him to more tenderness? they passed the law therefore, and without opposition. he did not come in before the day prescribed, continued his lawless outrages, was afterwards taken in arms, but delivered over to the ordinary justice of the country. the Attorney General for the Commonwealth, the immediate agent of the government, waiving all appeal to the act of attainder, indicted him at the Common law as a murderer & robber. he was arraigned on that indictment in the usual forms, before a jury of his vicinage, and no use whatever made of the act of attainder in any part of the proceedings. he pleaded that he was a British subject, authorized to bear arms by a Commission from Ld Dunmore, that he was therefore a mere prisoner of war, and under the protection of the law of nations. the court being of opinion that a commission from an enemy could not protect a citizen in deeds of murder and robbery, overruled his plea; he was found guilty by his jury, sentenced by the court, and executed by the ordinary officer of justice and all according to the forms and rules of the Common law.’
I recommend an examination of the records for ascertaining the facts of this case; for altho’ my memory assures me of the leading ones, I am not so certain in my recollection of the details. I am not sure of the character of the particular crimes committed by Philips, or charged in his indictment, whether his plea of alien enemy was formally put in and overruled, what were the specific provisions of the act of attainder, the urgency which caused it to be read three times in one day, if the fact were so Etc.
RC (PPAmP: Thomas Jefferson Papers); brackets in original; addressed: “Mr Girardin Glenmore.” PoC (DLC). Tr (MHi); posthumous copy. Extract, not found, enclosed in TJ to William Wirt, 12 May 1815. Enclosure: manuscript, not found, of a portion of Burk, Jones, and Girardin, History of Virginia, vol. 4.
For an extended discussion of the 1778 case of josiah philips and TJ’s draft of the bill of attainder against him and his associates, see PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 37 vols. description ends , 2:189–93. TJ thought the matter was strangely represented by St. George Tucker in his edition of Blackstone’s Commentaries (Philadelphia, 1803; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 1807), 1:292–3, and by Edmund Randolph in a 6 June 1788 speech before the Virginia ratification convention (Merrill Jensen, John P. Kaminski, and others, eds., The Documentary History of the Ratification of the Constitution [1976– ], 9:972; see also Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 3011).
Patrick Henry, who had been Virginia’s governor in 1778, very negligently vindicated the government’s case in his 7 June 1788 rebuttal to Randolph at the convention: “He [Philips] was not executed according to those beautiful legal ceremonies which are pointed out by the laws, in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods; but, Sir, the occasion warranted the measure. A pirate, an out-law, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations” (Jensen, Ratification, 9:1038). without being confronted … afterwards actually executed comes from Randolph’s convention speech. With only minor variations, Girardin did replace the quotations from tucker, randolph and henry with the text supplied by TJ (Burk, Jones, and Girardin, History of Virginia, 4:305–6).
1. Tr: “Joseph.”
2. Reworked from “the definitions.”
3. Word interlined.
4. Omitted closing quotation mark editorially supplied.
5. TJ began a new page at this point.
6. Tr adds “to refuse” in front of the semicolon.
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