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)

second report of conference committee

Friday, Jan. 9, 1778.

Mr. Jefferson reported from the Committee, appointed to prepare reasons to be offered to the Senate, at the conference to be desired of them on the subject of the last conference; that the committee had accordingly prepared, what they thought would be proper to be offered at the said conference; and he read the same in his place, and afterwards delivered it in at the clerk’s table, where the same was read, and is as followeth, viz:

Reasons, to be offered at the conference to be desired of the Senate, in answer to their reasons delivered at the last conference:

The House of Delegates, not being satisfied with the reasons urged by the Senate, in support of their amendments to the resolution for allowing Thomas Johnson the sum of 15£ 5s. 6d., have desired this second conference to shew the insufficiency of the said reasons, and to propose that some expedient may be adopted by the two Houses, for reconciling their difference of opinion.

The resemblance between the constituent parts of our legislature, and that of Great Britain, is supposed by the Senate, so faint, that no ground remains for those jealousies, which have prompted the Commons of Great Britain against their House of Lords. This might have been, and doubtless was, urged, at the time our constitution was formed, as a reason why the Senate and Delegates should have equal powers of money bills. But the argument having been overruled, and the powers of the Senate, as to this point, being fixed, by the constitution, on the same restricted footing, with those of the Lords in the British legislature, it is conceived not to be the proper question of this day, whether the resemblance between them, in general, be faint or strong, well or ill-grounded, but, whether the constitution has not made them, to resemble in this point.

Had those who framed the constitution, as soon as they had completed that work, been asked, man by man, what a money bill was, it is supposed that man by man, they would have referred for answer to the well known laws and usages of Parliament, or, would have formed their answer, on the Parliamentary idea of that term. Its import, at this day, must be the same as it was then. And it would be unreasonable, now, to send us to seek its definition in the subsequent proceedings of that body, as it would have been for them, at that day, to have referred us to such proceedings before they had come into existence. The meaning of the term, must be supposed complete, at the time they use it; and to be sought for, in those resources only, which existed at the time. Constructions, which do not result from the words of the legislator, but lie hidden in his breast, till called forth, ex post facto, by subsequent occasions, are dangerous, and not to be justified by ordinary emergencies.

Nor do we, by this, set up the Parliament of England, as the expositor of our constitution, but the law of Parliament, as it existed, and was evidenced by usage, at the time the term in question was inserted in our instrument of government; a law coeval with the common law itself, and no more liable, as adopted by us, to subsequent change, from that body, than their common or statute law, which we have in like manner adopted. To suppose this branch of law, not existing in our code, would shake the foundation of our whole legal system; since every legislative proposition which has been passed or rejected since the first establishment of a legislature in this country, has been determined to be law, or not law, by the forms of Parliamentary proceeding.

With as little justice may it be said, that this is referring for the definition of a term, to multiplied disputes, which have for ages agitated the Parliament of England, and which no time will decide; that it is proving what is clear, by what is very obscure; and unsettling what is fixed: since we conceive that researches into Parliamentary history, will decisively shew, that their practice in this matter has been clear, fixed, and ancient; and, that for ages past, it has produced no agitation, unless we call by that name some groundless assertions of the Lords in the course of the last century. Yet, these assertions they departed from in practice, at the very time they advanced them: and at all times after, they stand contradicted by the declarations of the Commons, and the constant usage of both Houses; which, agreeing together, are supposed to form the strongest evidence what the law of Parliament is on this point.

To prove this right, as uniformly claimed and exercised by the Commons, and assented to in practice by the Lords, the Delegates will subjoin some proceedings of Parliament, in addition to the passage cited by the Senate.

That a bill, for raising money by way of taxes, is a money bill, is admitted by the Senate, and need not therefore be proved.

That bills, for raising money by rates, and impositions on merchandise, are also considered as money bills, will appear, on recurring to the Parliamentary proceedings of 1671, in which it is affirmed, “that there is a fundamental right in the House of Commons alone, in bills of rates and impositions on merchandise, as to the matter, the measure, and the time;” and also, by their declaration of 1689, “that the Commons have always taken it for their undoubted privilege (of which they have been tender and jealous) that, in all aids given to the King by the Commons, the rate or tax ought not to be any way altered by the Lords,” which is supposed to be the passage cited by the Senate, as of the year 1671.

That bills, for applying forfeitures in aid of the public revenue are not amendable by the Lords, appears by the proceedings of 1700, on the bill “for applying Irish forfeitures to the use of the public,” to which the Lords were not permitted to make any amendments.

The right of levying money, in whatever way, being thus exercised by the Commons, as their exclusive office, it follows, as a necessary consequence, that they may also exclusively direct its application. “Cujus est dare, ejus est disponere,” is an elementary principle, both of law and of reason: That he who gives, may direct the application of the gift: or, in other words, may dispose of it: that if he may give absolutely, he may also carve out the conditions, limitations, purposes, and measure of the gift, seems as evidently true, as, that the greater power contains the lesser.

Parliamentary usage, has accordingly, approved this reasoning.

In July, 1678, the Commons resolved, “that it is their undoubted and sole right, to direct, limit, and appoint, in all aids and supplies granted to the King, the ends, purposes, considerations, limitations, and qualifications, of such grants; which ought not to be changed by the House of Lords.”

In December of the same year, the Commons having directed the payment of money, and the Lords proposed an amendment thereto, the former declared “that their Lordships never before changed any such disposition made on a supply granted by the Commons.”

In 1701, the Lords having amended a bill, “for stating and examining the public accounts,” by inserting a clause for allowing a particular debt, the Commons disagreed to the amendment; and declared for a reason, “that the disposition, as well as granting, of money by act of Parliament, hath ever been in the House of Commons; and, that the amendment relating to the disposal of money, does entrench upon that right.” And, to a bill of the same nature, the year following, the Lords having proposed an amendment, and declared “That their right in granting, limiting, and disposing public aids, being the main hinge of the controversy, they thought it of the highest concern that it should be cleared and settled.” They then go on to prove the usage, by precedents, and declarations, and, from these conclude, “That the limitation, disposition, and manner of account, belong only to them.”

In reply, the Lords said, “They declined all arguments concerning the rights of the Commons in granting, limiting and disposing public aids; and, therefore, forbore to answer any arguments of that kind”; but proceeded to insist that the business then depending was of quite another nature. And, at some subsequent conferences between the two Houses, during the same session, it was repeatedly declared, “That the Lords could not supply any deficiency, or apply any surplusage of the public money, and in case any should be found.” And this declaration does not appear to have been contradicted by the Lords, either then or at any time after.

The precedents are supposed to prove, not only that the disposal or application of public money is, equally with the raising of it, the exclusive office of the Commons, but also, that it makes no difference whether it be of money then actually in the treasury, or yet to be raised on the people; nor whether the raising and disposing be in the same or in separate bills.

Though the precedents referred to by the Senate, in the proceedings of the Council and House of Burgesses, in the years 1771, 1772, and 1773, (the first of which, however, we suppose to be mistaken for 1772) might perhaps be well accounted for from their particular nature, from the history of the times, or from other causes; and though the delegates might produce, from the same records, proofs, much more decisive in their favor, yet they decline resting the matter on that bottom: because, they are of opinion, that the present determination ought not to be influenced by the practice of those who have themselves only copied from the same original. Their practice, and our opinions, must be proved by the same common rule,—the law and practice of Parliament. Their acknowledgment of the rule, proves their submission to it, and that their practice should be tried by the law, and not the law by their practice.

How dangerous it is to appeal to other authorities from the Parliamentary records, the true text of decision, will appear also by examining the whole passage, of which a part only was cited from the Commentaries of Judge Blackstone; a writer, celebrated indeed; but, whether most for his attachment to the prerogatives of the crown, or to the rights of the people, would be worthy of consideration, where the question is on one of those rights, which have been of the greatest value to the people—the right of giving and disposing of their own money. That writer, after the definition cited from his book by the Senate, goes on to quote a passage from Judge Hale’s treatise on the jurisdiction of Parliament, which is to be found more at large in Broke’s Abridgement, under the title “Parliament, Pl. 4:” there it appears to be a saying of Kerbie, a clerk of the Parliament, who lays down in express terms, or by direct implication, these following positions, as of the law of Parliament:—

1st. That the Lords may amend a bill for granting aids.

2nd. That, if the amendment be by shortening the duration of the grant, they need not return the bill to the Commons for their concurrence.

3rd. That the King may alter a bill.

Broke indeed adds a quere to the case; but that Judge Blackstone, disapproved of it, cannot be inferred from his words. It is therefore submitted to the consideration of the Senate, whether they would set up as an arbiter of Parliamentary law, a writer who can cite or refer to such positions, whether condemning them, in decisive and unequivocal terms; for that part of his book, too, which the Senate quote and rely on, he cites no authority whatever. Are we then to take it upon his affirmation, when contradicted by the uniform current of Parliamentary usage? But, waiving further examination of the legality of his opinion, it suffices to observe, as a full answer to it, that the judges of the common law can take no cognizance of the law of Parliament. It can never come judicially in question before them. Their sayings or opinions on the subject, must be ever extra-judicial; and they have accordingly always disclaimed a right to give judgment on them. Definitions therefore, of Parliamentary law, by any other court, by a member of court, or by a private individual, must be rejected as inauthoritative in a Parliamentary disquisition.

For these reasons, the delegates still think, that the Senate have no authority to amend the vote in question. But open to conviction, if it can be shown they are wrong, and actuated by a strong desire to promote the public service, as well as to preserve the Constitution entire, they propose to the Senate, if they should still adhere to their former opinions, that a select committee may be appointed by each House, to meet together in full conference, and endeavor to define the office of the two Houses in bills, clauses, and votes, relating to money, and that such definition, if approved by both Houses, may be confirmed by act of Assembly.

draft of a bill giving certain powers to the executive1

v. s. a.

[Jan. 13, 1778.]

Whereas the present war between America & Great Britain was undertaken for defence of the common rights of the American states, & it is therefore just that each of them, when in danger, should be aided by the joint exertions of all; and as on any invasion of this Commonwealth in particular, we should hope for, & expect, necessary aids of militia from our neighboring sister states, so it is incumbent on us to yield the same assistance to them, under the like circumstances; & the laws heretofore empowering the Governor & council to send aids of militia to such states, will expire at the end of this present session of assembly.

Be it therefore enacted by the General assembly that on the invasion of any adjacent or neighboring state, & application from Congress, or from the legislative or executive powers of such state for aids of militia, it shall be lawful for the Governor, with the advice of the council of state, to order to their assistance such corps of the militia from any of the counties of this commonwealth as the exigence of the case may require or admit; having regard in such orders to the convenience & vicinity of such counties to the place invaded, their internal security & the imminence of the danger: and moreover to appoint such general, field & staff officers as may be requisite to command, attend, & provide for the same; to have them furnished with necessaries for travelling & camp uses, & such arms, ammunition and accoutrements as may be called for if the same can be procured & spared from this Commonwealth.

And to answer the expenses hereof in the first instance, the Governor is empowered to draw for any sums of money necessary to carry these purposes into effect on the Treasurer for this commonwealth, who is hereby authorized to pay the same out of any public money in his hands, keeping a separate & distinct account thereof, in order that the same may be reimbursed to the Commonwealth.

Such militia while on duty shall be subject to the Continental rules & articles of discipline & government, save only that all courtsmartial, whether general or regimental, which shall be holden on any of them, shall consist of their own officers only.

This act shall be in force until the end of the next session of General assembly & no longer.

draft of bill designating places for holding courts of chancery and general court1

[Jan. 20, 1778.]

Whereas by the acts constituting the High court of Chancery & General court, the said courts are to be holden at such place as the legislature shall direct, & no place hath as yet been appointed for that purpose:

Be it therefore enacted by the General assembly that for the term of one year after the end of this present session of assembly, & from thence to the end of the session next ensuing, the said courts shall be holden in the Capitol in the city of Williamsburgh.

And be it further enacted that it shall be lawful for the said High court of Chancery to appoint from time to time their own Serjeant at arms who shall be attendant on the sd court to perform the duties of his office; for which he shall receive such fees as shall be allowed by law.

a bill granting free pardon to certain offenders1

v. s. a.

[May 14, 1778.]

Whereas the American Congress by their resolution passed on the 23d day of April last past, reciting that persuasion & influence, the example of the deluded or wicked, the fear of danger or the calamities of war, may have induced some of the subjects of these states to join, aid, or abet the British forces in America, and who, tho’ now desirous of returning to their country, may be deterred by the fear of punishment: and that the people of these states are ever more ready to reclaim than to abandon, to mitigate than to increase the horrors of war, to pardon than to punish offenders: did recommend to the legislatures of the several states to pass laws, or to the executive authority of each state, if invested with sufficient power, to issue proclamations, offering pardon, with such exceptions, and under such limitations and restrictions, as they shall think expedient, to such of their inhabitants or subjects, as have levied war against any of these states, or adhered to, aided or abetted the enemy, and shall surrender themselves to any civil or military officer of any of these states, & shall return to the state to which they may belong before the 10th day of June next: and did further recommend to the good & faithful citizens of these states to receive such returning penitents with compassion and mercy, & to forgive & bury in oblivion their past failings and transgressions.

Be it therefore enacted by the General assembly that full and free pardon is hereby granted to all such persons without any exception who shall surrender themselves as aforesaid, and shall take the oath of fidelity to this Commonwealth within one month after their return thereto.

a bill for the speedy recovery of debts due the united states1

v. s. a.

[May 19, 1778.]

Whereas divers persons receiving money of the United States of America for publick uses, apply it to different purposes, and when called on refuse or neglect to repay the same; others enter into contracts for supplying the army & navy of the United states with provision and other necessaries, & fail or refuse to comply therewith; and whereas in like cases respecting this commonwealth in particular, speedy remedy was given by an act of general assembly passed in the year 1777, intitled “an act to establish a mode for the speedy and summary recovery of such sums of money as are or may become due, & for enforcing all contracts entered into with government” and it is expedient that the same speedy remedy be given in like cases respecting the United states: Be it therefore enacted by the general assembly that where in any case a remedy is by the sd act given to this commonwealth, or any of its agents or contractors, in a like case the same remedy shall be given to the United States, their agents & contractors; and where by the sd act such proceedings are directed to be instituted by the Treasurer in the name of the Governor for the time being, in a like case respecting the United states the proceedings shall be instituted by their deputy paymaster general within this commonwealth and in the name of the President of Congress for the time being.

draft of a bill for providing a supply for the public exigencies1

v. s. a.

[May 20, 1778.]

3.

Whereas in order to carry into effect the several acts passed at this present session of General assembly for raising a regiment of horse, for raising a battalion of infantry for garrison duty, for raising volunteers to join the grand army

4.10.14.

And as it will be necessary to make a further emission of treasury notes and to provide for the redemption thereof; be it enacted by the General assembly that it shall be lawful for the Treasurer to issue treasury notes in dollars or parts of a dollar for any sum which may be requisite for the purposes aforesaid in addition to the sums issuable by former acts of assembly, so as the sd sum to be issued by authority of this act do not exceed hundred thousand dollars. And he shall cause the sd to be engraved & printed in such manner & on such paper as he shall judge most likely to secure the same from being counterfeited, and shall appoint proper persons to overlook the press, & to number and sign the notes upon the best terms on which he can procure them. and whereas there is reason to believe that the taxes imposed by an act passed at the last session of General assembly for raising a supply of money for publick exigencies will be more than sufficient to answer the purposes expressed in the sd act; be it further enacted that after the taxes which shall be levied by authority of the sd act shall have effected the purposes to which they are appropriated by the sd act, so much of what shall remain as shall be sufficient for the redemption of the notes to be issued by authority of this present act, shall be applied to that purpose, and if so much as shall be sufficient shall not remain, further provision shall be made by law for making good the deficiency and redeeming the whole before the first day of December which shall be in the year of our lord 1785.

Amendments to the supply of exigencies

3. For recruiting the Continental army & other purposes therein mentioned.

4. Insert the resolutions of the 29th May, 1778, for making good the losses of certain sufferers in the town of Norfolk.

10. Fill up the blank with the word “six.”

14. × [Inclosure]

× If any person shall counterfeit any of the treasury notes issued by authority of this act, or shall be accessory thereto, or shall pass any such counterfeited note knowing the same to be counterfeit, he shall on conviction thereof suffer death without benefit of clergy.

a bill to amend an act intitled “an act for raising a supply of money for public exigencies”1

[May 21, 1778.]

Whereas, by an act of the last session of the General Assembly entitled an act for raising a supply of money for public exigencies it was enacted that a tax or rate of ten shillings for every hundred pounds value should be paid among other things upon all slaves by the owner or proprietor; and that the value of such slaves should be estimated by assessors to be appointed in every hundred: and it hath been already seen that such valuation will be very unequal, slaves of the same value being estimated at three or four times more in some places than in others, insomuch that the sd tax on this particular is like to be very heavy on some citizens of this commonwealth and light on others which is unequal and unjust and it is believed that if one certain rate by the head be fixed on, all slaves bearing the same proportion to their average value as the said pound rate bore to their respective values, it will be more equal in the whole, it being supposed that in most parcels of slaves there will be nearly the same proportion of valuable & of indifferent.

Be it therefore enacted by the General assembly that as well for the present as the remaining years of the term during which the sd act is to continue in force a tax of fifteen shillings by the head shall be paid on all slaves of whatever age or sex, in lieu of the sd rate of ten shillings in every hundred pounds value; and in like manner the double of the sd tax by those who by the sd act were to pay a double rate. And when the assessors shall have noted therein the number of slaves for which they shall have assessed a pound rate on the proprietor the commissioners shall extend against such proprietor the tax aforesd in lieu of the pound rate on the sd slaves extended by the assessors; and where they shall not have so noted the number of slaves they shall be required by the sd Commissioners forthwith to do it. And if any person shall have paid such pound rate before notice of this act if the same were greater than the tax hereby imposed he may require the sheriff to refund the difference or overplus and on failure may recover the same before any justice if the sum be under twenty-five shillings, and if it amount to that sum then on motion before any court giving such sheriff ten days notice thereof: and if the pound rate so paid were less than the tax hereby imposed, then the sheriff shall collect the difference or deficiency in like manner as by the sd act he was authorized to collect the sd pound rate. And doubts having arisen where slaves are hired whether the sd pound rate should be paid by the owner or hirer, and as a like doubt may arise as to the tax hereby imposed, it is declared that the sd tax is paiable by the owner, unless otherwise settled by contract between the parties.

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.

to richard henry lee1

Williamsburg, June 5, 1778.

Dear Sir,

—I am now to acknowledge the receipt of two of your favors, during the session of Assembly, but there being little to communicate to you, and that, being a busy time with me, has prevented my doing it sooner. The Assembly rose on Monday last; their only act which can shortly aid our army, was one for raising a regiment of horse, which, I think, will be raised as fast as it can be accoutred. Another act they passed, will also produce aid to our army, I hope, but it will be some [delay?] first; it was for giving great encouragement to soldiers, and appointing recruiting officers all over the country, to attend all publick places. By a third act, they foolishly repeated the experiment of raising volunteers; the first attempt was pardonable, because its ill-success could not be foreseen; the second is worse than ridiculous, because it may deceive our friends; I am satisfied there will not be a company raised. I wish Congress would commute a good part of the infantry required from us, for an equivalent force in horse. This service opens us a new fund of young men, who have not yet stepped forth; I mean those whose indolence or education, has unfitted them for foot service; this may be worth your thinking of. We passed the bill of pardon, recommended by Congress, but the Senate rejected it. Your letter, about enlarging your powers over the confederation, was not proceeded on, because the nature of the enlargement was not chalked out by you so intelligibly as enabled the house to do anything, unless they had given a carteblanche. Indeed, I believe, that, had the alterations proposed been specified unless they had been mere form indeed, it might have been difficult to obtain their consent. A Frenchman arrived here a week ago, with a vast cargo of woolens, made and unmade, stockings, shoes, &c. fit for the army, fifty thousand weight of powder, and other articles; the master had once sold the whole cargo, to the governor and council, for 5s 3p the livre, first cost; but, on suggestions from some of our forestallers, and those from Maryland, he flew off. Our bay is clear of the enemy. Nothing new here. I set out for Albemarle, within a day or two. Mr. Harvie will be with you in about three weeks. My complements to your brethren of the delegation, and am, dear sir, Your friend and servant,

to —

j. mss.

Williamsburg in Virginia, June 8, 1778.

Sir,

—Your letter of Sep. 15. 1777 from Paris comes safe to hand. We have not however had the pleasure of seeing Mr. De Cenis, the bearer of it in this country, as he joined the army in Pennsylvania as soon as he arrived. I should have taken particular pleasure in serving him on your recommendation. From the kind anxiety expressed in your letter as well as from other sources of information we discover that our enemies have filled Europe with Thrasonic accounts of victories they had never won and conquests they were fated never to make. While these accounts alarmed our friends in Europe they afforded us diversion. We have long been out of all fear for the event of the war. I enclose you a list of the killed, wounded, and captives of the enemy from the commencement of hostilities at Lexington in April, 1775, until November, 1777, since which there has been no event of any consequence. This is the best history of the war which can be brought within the compass of a letter. I believe the account to be near the truth, tho’ it is difficult to get at the numbers lost by an enemy with absolute precision. Many of the articles have been communicated to us from England as taken from the official returns made by their General. I wish it were in my power to send you as just an account of our loss. But this cannot be done without an application to the war office which being in another county is at this time out of my reach. I think that upon the whole it has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy. If there could have been a doubt before as to the event of the war it is now totally removed by the interposition of France, & the generous alliance she has entered into with us. Tho’ much of my time is employed in the councils of America I have yet a little leisure to indulge my fondness for philosophical studies. I could wish to correspond with you on subjects of that kind. It might not be unacceptable to you to be informed for instance of the true power of our climate as discoverable from the thermometer, from the force & direction of the winds, the quantity of rain, the plants which grow without shelter in winter &c. On the other hand we should be much pleased with cotemporary observations on the same particulars in your country, which will give us a comparative view of the two climates. Farenheit’s thermometer is the only one in use with us, I make my daily observations as early as possible in the morning & again about 4 o’clock in the afternoon, these generally showing the maxima of cold & heat in the course of 24 hours. I wish I could gratify your Botanical taste; but I am acquainted with nothing more than the first principles of that science; yet myself & my friends may furnish you with any Botanical subjects which this country affords, and are not to be had with you; and I shall take pleasure in procuring them when pointed out by you. The greatest difficulty will be the means of conveyance during the continuance of the war.

If there is a gratification which I envy any people in this world, it is to your country its music. This is the favorite passion of my soul, & fortune has cast my lot in a country where it is in a state of deplorable barbarism. From the line of life in which we conjecture you to be, I have for some time lost the hope of seeing you here. Should the event prove so, I shall ask your assistance in procuring a substitute, who may be a proficient in singing, & on the Harpsichord. I should be contented to receive such an one two or three years hence, when it is hoped he may come more safely and find here a greater plenty of those useful things which commerce alone can furnish. The bounds of an American fortune will not admit the indulgence of a domestic band of musicians, yet I have thought that a passion for music might be reconciled with that economy which we are obliged to observe. I retain for instance among my domestic servants a gardener (Ortolans), a weaver (Tessitore di lino e lin), a cabinet maker (Stipeltaio) and a stone cutter (Scalpellino laborante in piano) to which I would add a vigneron. In a country where like yours music is cultivated and practised by every class of men I suppose there might be found persons of those trades who could perform on the French horn, clarinet or hautboy & bassoon, so that one might have a band of two French horns, two clarinets, & hautboys & a bassoon, without enlarging their domestic expenses. A certainty of employment for a half dozen years, and at the end of that time to find them if they choose a conveyance to their own country might induce them to come here on reasonable wages. Without meaning to give you trouble, perhaps it might be practicable for you in [your] ordinary intercourse with your people, to find out such men disposed to come to America. Sobriety and good nature would be desirable parts of their characters. If you think such a plan practicable, and will be so kind as to inform me what will be necessary to be done on my part I will take care that it shall be done. The necessary expenses, when informed of them, I can remit before they are wanting, to any port in France, with which country alone we have safe correspondence. I am Sir with much esteem your humble servant.

resolutions concerning peace with england1

j. mss.

[June ?, 1778.]

Resolved unanimously that a proposition from the Enemy to all or any of these United States for Peace or truce separate from their Allies is insidious and inadmissable.

Resolved unanimously that a proposition from the enemy for treating with any Assembly or Body of men in America other than the Congress of these United States is insidious and inadmissable.

Resolved unanimously that this Assembly will not listen to any Proposition nor suffer any Negotiation inconsistent with their National Faith and federal union.

Resolved unanimously that this assembly will exert the utmost Power of the State to carry on the War with vigour and effect until Peace shall be obtained in a manner consistent with our National Faith and Federal Union.

to rev. samuel henley1

Williamsburgh, June 9, 1778.

Reverend Sir,

—Mr. Madison I believe informed you by letter written some time ago that one of your boxes of books left in his care burst open in removing it from the college to the president’s house for greater security. This accident discovered them to be in a state of ruin. They had contracted a dampness & stuck together in large blocks, insomuch that they could not sometimes be separated without tearing the cover. I happened to be in town & was of opinion with Mr. Madison that it was necessary to overhaul them and give them air. Indeed we both thought—I think it would be for your interest to have them sold, as books are now in considerable demand here, and, packed as they are in boxes, they must sustain injury. There are many of them which I would be glad to take myself at their stirling cost and would remit you the money by the way of France. That cost might be fixed either by note from yourself, informing me what they cost you, or by the estimate of anybody here in whom you trust. Upon a presumption that you could not but approve of the proposal to have them disposed of & the money remitted, for the reasons before given & others which you may apprehend but would be improper for me to explain, I have taken the liberty of laying apart many of them for myself, leaving with Mr. Madison a catalogue of them, and ready to return them to him if you shall direct it. I shall be glad of your answer as soon as possible, and will gladly serve you in the care of any interest you may have left here. The reasons are obvious which restrain this letter to matters of business. As soon as the obstacles to friendly correspondence are removed I shall be glad at all times to hear from you. I am Reverend Sir

Your friend & servant

to david rittenhouse1

Monticello in Albemarle, Virginia, July 19. 1778.

Dear Sir,

—I sincerely congratulate you on the recovery of Philadelphia, and wish it may be found uninjured by the enemy—how far the interests of literature may have suffered by the injury or removal of the Orrery (as it is miscalled) the publick libraries, your papers & implements, are doubts which still excite anxiety. We were much disappointed in Virginia generally on the day of the great eclipse, which proved to be cloudy. In Williamsburgh, where it was total, I understand only the beginning was seen. At this place which is in Lat. 38°-8′ and Longitude West from Williamsburgh about 1°-45′ as is conjectured, eleven digits only were supposed to be covered, as it was not seen at all till the moon had advanced nearly one third over the sun’s disc. Afterwards it was seen at intervals through the whole. The egress particularly was visible. It proved however of little use to me for want of a time piece that could be depended on; which circumstance, together with the subsequent restoration of Philadelphia to you, has induced me to trouble you with this letter to remind you of your kind promise of making me an accurate clock; which being intended for astronomical purposes only, I would have divested of all apparatus for striking or for any other purpose, which by increasing it’s complication might disturb it’s accuracy. A companion to it, for keeping seconds, and which might be moved easily, would greatly add to it’s value. The theodolite, for which I spoke to you also, I can now dispense with, having since purchased a most excellent one.

Writing to a philosopher, I may hope to be pardoned for intruding some thoughts of my own tho’ they relate to him personally. Your time for two years past has, I believe, been principally employed in the civil government of your country. Tho’ I have been aware of the authority our cause would acquire with the world from it’s being known that yourself & Doct^r. Franklin were zealous friends to it and am myself duly impressed with a sense of the arduousness of government, and the obligation those are under who are able to conduct it, yet I am also satisfied there is an order of geniusses above that obligation, & therefore exempted from it, nobody can conceive that nature ever intended to throw away a Newton upon the occupations of a crown. It would have been a prodigality for which even the conduct of providence might have been arraigned, had he been by birth annexed to what was so far below him. Cooperating with nature in her ordinary economy we should dispose of and employ the geniusses of men according to their several orders and degrees. I doubt not there are in your country many persons equal to the task of conducting government: but you should consider that the world has but one Ryttenhouse, & that it never had one before. The amazing mechanical representation of the solar system which you conceived & executed, has never been surpassed by any but the work of which it is a copy. Are those powers then, which being intended for the erudition of the world are, like air and light, the world’s common property, to be taken from their proper pursuit to do the commonplace drudgery of governing a single state, a work which may be executed by men of an ordinary stature, such as are always & everywhere to be found? Without having ascended mount Sinai for inspiration, I can pronounce that the precept, in the decalogue of the vulgar, that they shall not make to themselves “the likeness of anything that is in the heavens above” is reversed for you, and that you will fulfill the highest purposes of your creation by employing yourself in the perpetual breach of that inhibition. For my own country in particular you must remember something like a promise that it should be adorned with one of them. The taking of your city by the enemy has hitherto prevented the proposition from being made & approved by our legislature. The zeal of a true whig in science must excuse the hazarding these free thoughts, which flow from a desire of promoting the diffusion of knowledge & of your fame, and from one who can assure you truly that he is with much sincerity & esteem Your most obed^t. & most humble serv^t.

P. S. If you can spare as much time as to give me notice of the receipt of this, & what hope I may form of my clocks, it will oblige me. If sent to Fredericksburgh it will come safe to hand.

a bill for giving the members of the assembly an adequate allowance1

v. s. a.

[Dec. 12, 1778.]

Whereas it is just that members of General assembly, delegated by the people to transact for them the legislative business, should, while attending that business, have their reasonable sustenance defrayed, dedicating to the public service their time and labors freely & without account: and it is also expedient that the public councils should not be deprived of the aid of good & able men, who might be deterred from entering into them by the insufficiency of their private fortunes to be the extraordinary expences they must necessarily incur:

And it being inconsistent with the principles of civil liberty, & contrary to the natural rights of the other members of the society, that any body of men therein should have authority to enlarge their own powers, prerogatives, or emoluments without restraint the sd General assembly cannot at their own will increase the allowance which their members are to draw from the public treasury for their expences while in assembly; but to enable them so to do an application to the body of the people has become necessary:

And such application having been accordingly made to the freeholders of the several counties, & they having thereupon consented that the sd allowance shall be enlarged, and authorised & instructed their members to enlarge the same for themselves & the members of all future assemblies, to pounds of nett tobacco by the day for attendance on assembly, & to lbs of like tobacco for every mile they must necessarily travel going to or from the same, together with their ferriages, to be paid in money out of the public treasury at such rate as shall be estimated by the court of appeals at their session next before the meeting of every session of assembly, governing themselves in the said estimate by the worth of the sd tobacco, & the competence of the same to defray the necessary expences of travelling & attendance:

Be it therefore enacted by the General assembly by express authority & instruction from the body of the people that the allowance to the several members of the present & of all future assemblies shall be of pounds of tobacco by the day for attendance on the sd assemblies, lbs of the like tobacco for every mile they must necessarily travel going to or from the same, together with their ferriages; to be paid to them in money out of the public treasury at such rate as shall be estimated by the court of appeals at their session next before the meeting of each respective session of assembly, governing themselves in the said estimate by the worth of the sd tobacco & the competence of the same to defray the necessary expences of travelling & attendance.

[1 ]Reported by William Fleming, Jan. 13, 1778, and read the first time. Read the second time and committed to the Committee of the Whole, Jan. 14th. Passed on Jan. 22d. Printed from the draft in Jefferson’s handwriting.

[1 ]In drawing the bills establishing these two courts, the place of holding had been purposely omitted, as the “western” party hoped to remove them, with the capitol, to Richmond. This was therefore merely a temporary measure.

[1 ]On May 13th, leave was given to Jefferson, Page, Lawson, and Meriwether Smith to prepare this bill, which was introduced by Jefferson, and read for the first and second times on May 14th. It was read for the third time and passed by the House of Delegates on May 18th, but was thrown out in the Senate. It is printed from the draft in Jefferson’s handwriting.

[1 ]On May 18th, the House of Delegates adopted a resolution for the preparation of this bill, and appointed Carter, Parker, and Jefferson to prepare it. It was introduced by Parker, May 19th, when it was read for the first time. It was adopted May 21st. This is printed from the original in Jefferson’s handwriting, the act as adopted being in Hening, ix., 462.

[1 ]A committee was appointed May 16, 1778, to prepare this bill; and it was reported by Carter to the House of Delegates May 20th, and read for a first time. The next day R. C. Nicholas and John Page were given permission to bring in a new bill, in the shape of an amendment to this, which they did the following day, and the second bill was accepted and passed on May 23d. This is the first bill and is taken from the draft in Jefferson’s handwriting.

[1 ]On May 21st, Nicholas and Page were appointed to prepare this bill, which they introduced on the same day, and it was read for the first time. On May 22d, it was read for a second time and committed to a committee of the whole house. They reported it back, with amendments, on May 26th, and it was adopted May 29th. This is printed from the draft in Jefferson’s handwriting. The bill as passed is in the Session Acts for 1778, and Hening, ix., 456.

[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.”

[1 ]From Lee’s Life of R. H. Lee, ii., 187.

[1 ]This is endorsed in the handwriting of Edmund Pendleton: “Virginia v. Comr: Carlton [Carlisle] Caveat agt Treaty—I believe, but am not certain, these were the work of Mr. Jefferson in Spring 1778.” No such resolutions appear on the Journal of the House of Delegates.

[1 ]From a copy courteously furnished by Hon. John Boyd Thacher, of Albany.

[1 ]From the original in the possession of the Historical Society of Pennsylvania.

[1 ]Dec. 8th, Jefferson, Nelson, G. Mason, T. Mason, Nicholas, and Page were ordered to prepare this bill, and G. Mason introduced it Dec. 12th. It was read for the second time on Dec. 14th, and ordered engrossed and printed on Dec. 18th. It was not adopted. This is printed from the draft in Jefferson’s handwriting.