The Online Library of Liberty

A project of Liberty Fund, Inc.

• Correspondence and Miscellaneous Writings 1760–1774 Continued
• 1771 - to Thomas Adams 1
• To James Ogilvie 1
• “ Inscription For an African Slave ” 1
• Agreement With John Randolph 2
• To Inglis and Long, Merchants At Portsmouth 1
• To Thomas Adams 1
• To Robert Skipwith
• Argument In Godwin Et Al. Vs. Lunan 1
• 1772 - to Messrs. Inglis and Long, Merchants At Portsmouth 1
• 1773 - to Chas. Mcpherson 1
• To William Fleming 1
• Advertisement In “virginia Gazette”
• Advertisement In “virginia Gazette”
• Advertisement In “virginia Gazette”
• 1774 - Notice of Fast 1
• Resolution of Albemarle County 2
• Proposed Arms For the United States 1
• A Summary View of the Rights of British America. Set Forth In Some Resolutions
• “ Defects In the Association ” 1
• To Archibald Cary and Benjamin Harrison
• 1775 - Motion In Convention of Virginia 1
• Draft of a Resolution of the Virginia Convention 1
• To Dr. William Small 1
• Address to Governor Dunmore From the House of Burgesses 1
• To Francis Eppes 1
• To Francis Eppes 1
• Drafts of Declaration On Taking Up Arms 1
• First Draft
• Second Draft
• Draft of Report On Lord North’s Motion 2
• To John Randolph 1
• To Francis Eppes 1
• To Francis Eppes 1
• To John Page 1
• To Francis Eppes 2
• To Francis Eppes 1
• To John Randolph 2
• Declaration Concerning Ethan Allen 1
• To John Page 1
• Report to Congress On Congress Committee 1
• 1776 - to Thomas Nelson 1
• Report of Committee On Canadian Affairs 1
• Proposed Constitution For Virginia 1
• First Draft
• Fair Copy
• Report On Cedars Cartel 1
• Report On Canadian Affairs 1
• To William Fleming 1
• Declaration of Independence 1
• First Draft
• Reported Draft
• Engrossed Copy
• To Richard Henry Lee 1
• To George Wythe 1
• Notes of Rules For Continental Congress. 1
• To Edmund Pendleton 2
• Resolution For Rotation of Members of Continental Congress 1
• To Francis Eppes 1
• To the Pennsylvania Convention 1
• Notes On Virginia-pennsylvania Boundary
• To the Governor of Virginia 1 (patrick Henry)
• To Col. Fielding Lewis
• To John Page 2
• To Francis Eppes 1
• To John Page 1
• To Francis Eppes 1
• To — 1
• To John Page 1
• Resolution to Encourage Desertions of Hessian Officers 1
• Resolutions On Peace Propositions 1
• To the President of the Continental Congress 1 (john Hancock)
• Notes On Religion 1
• Draft of Bill to Abolish Entails. 1
• Amendments to Bill to Abolish Entails 1
• Draft of a Bill to Remove Seat of Government 1
• Draft of a Bill For Raising Six Additional Battalions of Infantry On the Continental Establishment 1
• Draft of a Bill Establishing County Courts 1
• Draft of a Bill For Altering Rates of Copper Coin 1
• Report On Upshur 2
• A Bill For the Trial of Offences Committed Out of This Commonwealth.
• Draft of a Bill For Suspending Executions For Debt 1
• 1777 - Draft of a Bill For Providing Against Invasions and Insurrections 1
• Draft of a Bill For Regulating the Appointment of Delegates to General Congress 1
• To John Adams 1
• To Benjamin Franklin 1
• To John Adams
• First Report of Conference Committee 1
• 1778 - Second Report of Conference Committee
• Draft of a Bill Giving Certain Powers to the Executive 1
• Draft of Bill Designating Places For Holding Courts of Chancery and General Court 1
• A Bill Granting Free Pardon to Certain Offenders 1
• A Bill For the Speedy Recovery of Debts Due the United States 1
• Draft of a Bill For Providing a Supply For the Public Exigencies 1
• A Bill to Amend an Act Intitled “an Act For Raising a Supply of Money For Public Exigencies” 1
• Draft of Bill of Attainder Against Josiah Philips 1
• To Richard Henry Lee 1
• To —
• Resolutions Concerning Peace With England 1
• To Rev. Samuel Henley 1
• To David Rittenhouse 1
• A Bill For Giving the Members of the Assembly an Adequate Allowance 1
• 1779 - to George Wythe
• To the Governor of Virginia. (patrick Henry)
• To Richard Henry Lee 1
• To Gabriel Jones 1
• A Bill Concerning Escheats and Forfeitures From British Subjects 2
• Speech to General Assembly 1
• To John Page 1
• To William Fleming 1
• To Theodorick Bland, Jr. 1
• To Richard Henry Lee 1
• To Theodorick Bland, Jr. 1
• Report of the Revisors
• A Bill For Withholding British Property (chapter Xxxvi 1 )
• A Bill Concerning Slaves (chapter Li 1 )
• A Bill For Proportioning Crimes and Punishments (chapter Lxiv 1 )
• A Bill For the More General Diffusion of Knowledge (chapter Lxxix)
• A Bill For the Amending the Constitution of the College of William and Mary (chapter Lxxx)
• A Bill For Establishing a Public Library (chapter Lxxxi)
• A Bill For Establishing Religious Freedom 1 (chapter Lxxxii)
• To General Washington
• To the President of Congress (john Jay)
• Proclamation Concerning Escheats
• To General Baron De Riedesel 1
• To General Washington
• To the Governor of Canada (sir Guy Carleton)
• To Col. William Fleming 1
• To the County Lieutenant of Hampshire 1
• To the President of Congress (john Jay)
• To General Washington
• To General Washington
• To General Washington
• To Colonel George Mathews 1
• To the Speaker of the House of Delegates (benjamin Harrison)
• To the Speaker of the House of Delegates (benjamin Harrison)
• To the Speaker of the House of Delegates (benjamin Harrison)
• To the French Minister 1 ( Chevalier De La Luzerne )
• To the Governor of North Carolina 1 ( Richard Caswell )
• To the President of Congress (samuel Huntington)
• To General Washington
• Proclamation Laying Embargo
• To the President of Congress (samuel Huntington)
• To General Washington
• To the Speaker of the House of Delegates (benjamin Harrison)
• To the President of Congress (samuel Huntington)

draft of bill of attainder against josiah philips1

v. s. a.

[May 28, 1778.]

Whereas a certain Josiah Philips, labourer, of the parish of Lynhaven and county of Princess Anne together with divers other inhabitants of the counties of Princess Anne & 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 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 law, would leave the said good people for a long time exposed to murder & devastation.

Be it therefore enacted by the General Assembly that if the said Josiah Philips his associates and confederates shall not on or before the 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 to their trials for the treasons, murders & 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 & disabilities prescribed by the law against those convicted & attainted of High-treason: and that execution of this sentence of attainder shall be done by order of the General Court to be entered so 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 sd 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 lord at which time the sd murders & devastations were begun, a petty jury shall be summoned & 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 his associates or confederates at any time after the sd day of 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 be dealt with according to law.

Provided that the person so slain be in arms at the time or endeavoring to escape being taken.

[1 ]This bill, printed from the draft in Jefferson’s handwriting, was introduced and read for the first time May 28th; read a second time and passed on the next day. It was a violation of article 8 of the Virginia Declaration of Rights and was afterwards cited by Edmund Randolph (Debates, Virginia Convention of 1788, Elliot, iii., 66) 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.” To this Henry replied (Elliot, iii., 140): “The honorable member has given you an elaborate account of what he judges tyrannical legislation, and an ex post facto law, (in the case of Josiah Philips). He has misrepresented the facts. That man was not executed by a tyrannical stroke of power. Nor was he a Socrates. He was a fugitive murderer and an outlaw—a man who commanded an infamous banditti, and at a time when the war was at the most perilous stage. He committed the most cruel and shocking barbarities. He was an enemy to the human name. Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He 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 outlaw, 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.”

Jefferson’s attention was first called to these statements in reading the proof sheets of Girardin’s History of Virginia. He at once wrote to Girardin (March 12, 1815):

“I return the three Cativers, 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 Josiah 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 definition of the functions of bills of attainder, has given a diatribe against their abuse. The occasion and proper office of a bill of attainder is thus: 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 time 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 vengence by a successful 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 direction 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 color 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 and 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 forgot which and 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 approves, 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 his 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 the fact.

“After the particular strictures I will proceed to propose, 1st, that the word ‘substantially,’ page 92, l. 8., be changed for ‘which has been charged with’ (subjoining a note of reference. 1. Tucker’s Blackst. Append., 292. Debates of Virginia Convention).

“2. That the whole of the quotations from Tucker, Randolph and Henry, be struck out, and instead of the text beginning page 92 l. 12, with the words ‘bills of attainder, &c.,’ to the words ‘so often merited,’ page 95 l. 4, be inserted the following, to-wit:

“‘This was passed on the following occasion. A certain Joshua Philips, laborer of the parish of Lynhaven, in the county of Princess Anne, a man of daring and ferocious disposition, associating with other individuals of a similar cast, spread terror and desolation through 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 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 the 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 fastness 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, 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 successfully 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 role of its 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 pirate 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 county. 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 and 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 Lord 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, over-ruled 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 although 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 over-ruled, 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, &c., &c.”