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 should 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 had committed several crimes, and was running at large perpetrating other crimes; he, therefore, moved for leave to attaint him; he obtained that leave instantly … Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the spirit of freedom? This, sir, has made the deepest impression in my heart, and I cannot contemplate it without horror.
On this date in 1778, attainted Revolutionary War-era outlaw Josiah Phillips was hanged in Virginia.
Contrary to Randolph’s recollection, the execution took place according to a regular jury verdict convicting Philips for stealing 28 hats and five pounds of twine — felony theft by the Bloody Code inherited from England.
Even so, it was the Act of Attainder voted unanimously by the Virginia legislature that stuck in the popular memory, so much so that even the likes of Randolph, a lawyer by trade and later the first Attorney General of the independent United States, misstated* it as the proximate cause of Phillips’s execution.
Another inheritance from the mother country, Acts of Attainder — wherein the legislature declares some party guilty of a crime and declares punishment without benefit of trial — were going right out of style in the twilight of the 18th century. The eventual U.S. Constitution would flatly abolish the practice; Britain herself has not enacted one since 1798.
So it comes as some surprise to see that Phillips was outlawed** at the instigation of no less a person than old Mr. Inalienable Rights himself, Thomas Jefferson. Jefferson’s Bill of Attainder gave Philips and his band a June 1778 deadline to turn themselves in voluntarily, or else they
shall stand and be convicted and attainted of high treason, and shall suffer the pains of death, and incur all forfeitures, penalties and disabilities prescribed by the law against those convicted and attainted of High-treason: and that execution of this sentence of attainder shall be done by order of the General court to be entered as soon as may be conveniently after notice that any of the said offenders are in custody of the keeper of the public gaol …
And that the good people of this commonwealth may not in the mean time be subject to the unrestrained hostilities of the said insurgents, be it further enacted that from and after the passing of this act it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates at any time.
Now in fairness, Josiah Phillips was no ordinary hat-thief, regardless of what the charge-sheet read. He was a Tory marauder who led a gang of outlaws/guerrillas/terrorists who lurked in the Dismal Swamp and had just weeks before repelled a Commonwealth militia dispatched by Governor Patrick Henry.
For Henry, who sought the attainder, and for Jefferson the Phillips band looked like a clear security threat. “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 and devastation,” in the words of the attainder. And indeed, the rebellious colonies — ultra-patriotic Pennsylvania especially — had had regular recourse to Acts of Attainder against Tory loyalists over the span of the American Revolution. (Actual executions under attainders were extremely rare.)
However, the inconsistency of such an instrument long associated with monarchical tyranny with its author’s more usual Rights of Man fulminations had Jefferson still defending the Phillips attainder as late as 1815.
Whatever might have best suited Josiah Phillips, the last word on the matter in American jurisprudence has belonged to the overwhelming sentiment of his fellow-Founders … like James Madison, whose Federalist no. 44 flatly avers that Bills of Attainder “are contrary to the first principles of the social compact, and to every principle of sound legislation.”
* Randolph himself, as Virginia’s attorney general, made the call not to use the attainder against Phillips because of Randolph’s own discomfort with it. But his “misremembering” was convenient to a later interest in excoriating Patrick Henry.
** Arguably contravening Virginia’s existing 1776 Declaration of Rights. “In all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.”