Antecedents: Parliamentary Attainder in England and Empire

Legal proceedings in the English Parliament leave a long trail in books. Under Edward I there developed a practice of curing injustice by hearing private petitions in Parliament.Footnote ²³ Bills, which in this period were imperfectly distinguished from petitions, could also be presented in Parliament, where they, too, functioned to cure residual injustice, so that “if redress could not be obtained by a writ, the injured party could claim the right to go to the king or to the king's representatives and ask for redress in their presence.”Footnote ²⁴ Complaining by petition or bill was less formal than proceeding by writ original in the common law courts. Plaintiffs had merely to show, in piteous language, that they had suffered some trespass or loss that the law could not remedy. Not uncommonly, the wrongdoer was the king's own officer or commissioner. The prayer worked to align the petitioner with the King, who had sworn to do justice and keep the peace.

Turning to high politics (another, sometimes indistinguishable, aspect of Parliament's business), there were similar ideas at work. Country lords opposed to Richard II lodged an “appeal” in Parliament against his courtiers for traitorously corrupting him. What, precisely, an “appeal of treason” was, we are not entirely certain (they may not have been, either); but possibly it was meant to invoke a much older, non-common law proceeding, the “appeal of felony,” a kind of private criminal suit heard in the ancient local courts. Most of the courtiers fled and did not appear in Parliament to defend themselves, but the “lords appellant” insisted that the appeal proceed to judgment nonetheless. Common-law courts generally did not condemn the absent, but under the less restrictive “laws and course of Parliament,” the lords said, judgment could be entered against the absent for notorious offenses.Footnote ²⁵ “Notorious” offenses were particularly heinous and publicly known, and the principle that they could be prosecuted in absentia was familiar to students of military and canon law. By asserting it in Parliament, the lords staked out a summary jurisdiction over state crimes that could not be punished in ordinary courts.Footnote ²⁶

The “bill of attainder” was a natural successor to these constitutional traditions. It expressed the fifteenth century view that in Parliament, the king's power was at its greatest, assembled with all his lords and the common of the realm, and that in such an august assembly he might do justice where other courts, and even his council, could not. Over time, writers theorized this by describing the “King's high court of Parliament.”Footnote ²⁷ A high court could correct failures of justice caused by the limits of inferior courts. And a high court could concern itself with high politics: matters involving over-mighty or ungovernable subjects, in which injustice might be too costly to the realm to leave unaddressed. Proceeding by bill (or, similarly, by “common petition”) allowed for Parliament to perform these functions: reciting what was known; calling the defendant (if need be); and resolving the matter by judgment, ordinance, or act.Footnote ²⁸ In this way, parliamentary attainder took its place beside military courts, the King's Council, justices of the peace and, somewhat later, the Star Chamber, as a summary legal jurisdiction employed to manage issues of security, domestic peace, and police.Footnote ²⁹

The idea that Parliament was a “high court” proved to have remarkable staying power, or, at least, to reappear when it most seemed useful and right. Legal and political texts describe Parliament as a “high court” well past the English Reformation, when most historians would regard Parliament as a proper lawmaking body with a permanent place in the English constitution.Footnote ³⁰ Seventy years after the Reformation, common lawyers invoked the idea of Parliament as a high court to check abusive monopolies granted by King James. If exploiting royal monopolies for private gain was, as they believed, illegal, then to adjudicate the grievance in Parliament it became essential to show that “parliament was not just a legislature; it was also a court and a council.”Footnote ³¹ Thus we see the growth of a number of now-familiar quasi-judicial parliamentary powers, including powers to summon men and gather papers for investigations, to imprison for contempt, and to impeach patentees and even ministers for abusing their powers.Footnote ³² Bills of attainder also found use. Although bills in Parliament were by then used to pass legislation, the bill power could also be used for adjudication, and members acknowledged the ambiguity.Footnote ³³ Less appreciated was the exact relationship that these parliamentary proceedings bore to the common law. Which body of law was superior? Parliamentarians sought to limit the king's prerogative where it trenched on common law rights, but then refused such limits in derogation of the House of Commons’ power to interrogate and imprison. This inconsistency was not lost on the victims, who pointed out the tension between the House of Commons’ assertion that its power to arrest for contempt was unreviewable on a writ of habeas corpus, and Paragraph V of the Petition of Right, which complained of just this practice by the king.Footnote ³⁴ Bills of attainder triggered a similar difficulty, a point that Coke clearly struggles with in his discussion of parliamentary attainder in the Institutes.Footnote ³⁵

Violent civil conflict was thus governed by a host of overlapping legal regimes, and the management of conflicts among these regimes was part of a collective project of “constitution-making.”Footnote ³⁶ In England, this project resulted in a decline and then abandonment of attainder for treason over the 150 years between the Civil War and the end of the eighteenth century. Impeachments, too, eventually ceased. The causes of this development are complex, but two events stand out. First, a cultural embrace of the common law in the seventeenth century made the disastrous attainders of Thomas Wentworth, Earl of Strafford, and Sir John Fenwick appear as exercises of “absolute” or “mere” legislative power, rather than as summary legal power. Their executions seemed to contemporaries best explained by politics in the council and the House of Commons.Footnote ³⁷ Non-capital prosecutions by bill did persist, but these were increasingly distinguished by different names, such as the “bill of pains and penalties.”Footnote ³⁸ An act of attainder was last used to condemn someone to death in 1746, following the Jacobite rising, and then only against those who had fled or were in open rebellion.Footnote ³⁹ Second, in the early eighteenth century, King's Bench found success in using prerogative writs such as mandamus, certiorari, and habeas corpus to police and manage the conflicts among different English jurisdictions, including the special commissions and similar bodies that were growing into agencies of a modern administrative state. The court thereby put itself at the center of English government.Footnote ⁴⁰ In contrast, the supervisory and remedial authority of the Parliament crystalized as a power to constitute courts and delegate legal power, which it used to confer significant discretion on the council in matters of security and police. Parliament might make new jurisdictions, or prevent bail by suspending the writ of habeas corpus, but only the House of Lords could directly exercise legal power.Footnote ⁴¹

Beyond the realm of England, however, in the provinces of the North American Empire, the story looks somewhat different. It is well known that early American assemblies possessed powers of judicature. These powers were not thought anachronistic or left to lie fallow; lower houses, in particular, regarded judicature as fortifying the colonial assembly's claims to the privileges and status of the great English Parliament.Footnote ⁴² In Virginia, the General Assembly both exercised original jurisdiction in serious criminal matters and acted as a court of last resort.Footnote ⁴³ Its upper house, the Council of State, was also the colony's highest ordinary court, and councilors amassed perhaps the colony's greatest collection of law books at Williamsburg.Footnote ⁴⁴ In conducting itself judicially, the council employed bill proceeding rather than the more formal proceeding by original writ, and pleading was handled liberally.Footnote ⁴⁵ Records suggest that this was by choice rather than ignorance, as the language implies some familiarity with the “laws and course of Parliament.” Thus, for example, William Tiballs and Henry Gee were brought before the council for being “notorious actors, aydors and assistors in the late rebellion,” and banished without a trial.Footnote ⁴⁶ Occasionally, the full General Assembly (Council and House of Burgesses together) condemned traitors by enactment. For leading a rebellion of planters against Governor William Berkeley, Nathanial Bacon and his “notorious confederates” were “adjudged to be convicted and attainted of high treason” “by vertue of this act”—a mixture of judicial and legislative terminology that could have been cut straight from the Parliament rolls of medieval England.Footnote ⁴⁷

These practices change significantly in the eighteenth century. Lower houses and bicameral assemblies lost much of their jurisdiction, which was delegated to courts of common pleas, quarter sessions, and assizes.Footnote ⁴⁸ In Virginia, the British Privy Council replaced the colonial General Assembly as the court of last resort, although the legislature's upper house, the Council of State, did remain the highest ordinary court.Footnote ⁴⁹ Where legislative legal powers grew, they tended to assume a different form. Some colonial assemblies exercised legal power by superintending courts of law, overturning their judgments, and “restoring” litigants thought to have suffered injustice.Footnote ⁵⁰ Perhaps the most important legal legislative power in the eighteenth century was the power of the purse. The core of that power, claimed by the Virginia House of Burgesses, was initiating revenue bills. But control over the purse could entail much else besides: evaluating and paying claims against the government of the colony, indemnifying officers for exceeding the bounds of their power, and demanding an accounting of expenditures from government. Assemblies also asserted powers to appropriate tax monies and to audit government accounts, and (in most colonies, although not in Virginia) occasionally defunded the salaries of unpopular officers, including royal governors.Footnote ⁵¹ In these ways, attending to the purse involved “legislative adjudication,” as Christine Desan has aptly described it.Footnote ⁵²

A second development important in Virginia was the rise of the county justice of the peace, around whom an oppositional, “country” mentality crystalized in the first decades of the eighteenth century. This became perhaps the colony's most important judgeship. Elite planters used the office to solidify local control over the production and sale of tobacco, the accompanying system of credit and debt, religious conformance, parish management, family, and morality. Most gentleman justices were planters and not practicing lawyers, although a significant number attended one of the English Inns of Court.Footnote ⁵³ They coveted law books (there was one in every planter's home, even if there was not a Bible), but it was country justice manuals that they prized most, rather than the professional lawyers’ Coke on Littleton. A Virginian, George Webb, even wrote a manual for justices of the peace, The Office and Authority of a Justice of the Peace (1736), which circulated widely alongside several English manuals. Webb declared that his manual “avoided all references to Laws and Law-Books” beyond those strictly necessary, and that “a true Judgement” was formed by adapting “General Rules and Maxims” to a particular case.Footnote ⁵⁴ Common law writs and rules of pleading were employed in civil actions before the justices, empaneled as a “county court,” but the boundary between their legal and equitable jurisdictions was sometimes unclear and “the ease of moving from law to equity guaranteed a kind of informality.” In sum, concludes William Nelson, “Power was exercised by local elites, who often possessed some training in the law and who ruled as they thought best.”Footnote ⁵⁵

Together, these developments left the legislature's power to condemn by bill somewhat uncertain at the time of the imperial crisis. Lawyers were likely to have heard of attainder, but there was no clear, shared sense of how to fit this ancient jurisdiction alongside its local, provincial, and imperial competitors.Footnote ⁵⁶ As Daniel Hulsebosch, Lisa Ford, and others have shown, violent conflict, particularly on the frontier and at sea, required settlers, traders, indigenous peoples, and imperial administrators to manipulate the overlapping claims of customary law, admiralty, and the common law. In the Virginia Tidewater, too, imperial and local legal regimes could overlap to upset the expectations of the gentry and the people they kept as slaves. A justice of the peace faced with a runaway slave, alleged to have a committed an offense during a time of war, had first to settle on the law, a decision that could mean the difference between a sentence of whipping, hard labor, exile, death, transfer to another court, or “release” to the patriarchal discipline of the master.Footnote ⁵⁷

Understanding how Virginians tried to answer these questions requires a sense of the cases in which the questions were presented. We are searching for how men thought about those cases, how they approached them, and how they conceived of the problems and the people involved. What did Virginia gentlemen see when they looked at Josiah Philips and his gang? To what body of law did their perceptions point?

Discontent and the Opening of War in the Tidewater

Josiah Philips was a laborer who lived in Lynnhaven Parish, in Princess Anne County, an area now part of Virginia Beach. In the late summer of 1775 he came to the attention of the volunteer militia companies then lingering in the heat at Williamsburg. George Gilmer, Thomas Jefferson's close friend and commander of a volunteer company from Albemarle County, recorded the observation in his diary, which he used to document the companies’ activities and their officers’ correspondence with the Third Virginia Convention, then in session. “It is certain,” Gilmer wrote, “that one Phillips commands an Ignorant disorderly mob who are in direct opposition to our plan.”Footnote ⁵⁸ What “plan” he meant is not immediately clear.Footnote ⁵⁹ Two days later, the clerk of the convention, John Tazewell, entered the officers’ minutes in the Convention Proceedings. Tazewell described Philips as opposed “the measures of this Country,” that is, Virginia. But which ones?Footnote ⁶⁰

At the time, the Third Convention was occupied largely with military preparations. In late July it had provided for raising two regiments of regulars and 8,000 militiamen, to be paid for their service in paper notes. The law exempted men from militia duty if they owned four or more slaves, and gentlemen accepting an officer's commission drew pay more than ten times that of the enlisted, causing a resentment that Woody Holton has described as “emerging class consciousness.”Footnote ⁶¹ In early spring, the Second Virginia Convention had recommended that county committees “collect from their constituents, so much money, as will be sufficient,” to purchase gunpowder, lead and flint, a levy to be apportioned “as the committee shall judge requisite.”Footnote ⁶² This measure, too, caused discontent. Why shouldn't wealthy officers provide the muskets and powder? Alexander Miller thought it unfair, and announced the planter class “would take every half-bitt they had” to “mak[e] gentlemen of themselves.” As a loyalist later explained, describing the hundreds who lined up to swear loyalty to the king after the British victory at Kemp's Landing, “poor people blame these men [i.e., patriots] for obliging them to take up arms.”Footnote ⁶³ To hear such views expressed in public, in open defiance of the convention and the county committees, caused Virginia's great men worry. Writing to Edmund Pendleton about such a case, John Richards could hardly believe it. “[O]ur cause is too good to be prejudiced by any person of his Insignificancy.” The man had always been “very Industrious, Quiet & saying little to any person.”Footnote ⁶⁴

The continental agreement to stop the importation of British goods was meeting increased resistance as well. In Virginia, implementation fell to the gentlemen of the revolutionary county committees, and Lingley tells us that the Norfolk County Committee was dutifully “industrious” in enforcing the rules. Yet the weight of the policy was unevenly borne. Banning imports hurt the county's merchants, who were unable to conduct much of their business. Some understandably expressed a desire for Virginia to remain neutral in the dispute or even for the colonies to acquiesce.Footnote ⁶⁵ Landless farmers, laborers, pilots, and mechanics also saw their incomes decline, and, lacking cash reserves, struggled to pay their rent. This was a significant population: the landless comprised over half the population in Princess Anne. Landlords (including George Washington and Richard Henry Lee) fixed rents at certain quantities of gold or silver coin, though their tenants could pay only in depreciating paper notes.Footnote ⁶⁶ In August, the provincial convention elevated non-importation to a full embargo, and by autumn, the British naval blockade of the Chesapeake made it difficult even to smuggle in necessities. Insurrection threatened in several counties for lack of salt.Footnote ⁶⁷ Perhaps we should imagine, then, Josiah Philips reciting these complaints at the head of an agitated crowd of laborers and merchants’ employees in Williamsburg. Or, better yet, drifting into the Norfolk docks on a British tender, as Lord Dunmore's agents reportedly did, whispering to “the fishermen and all the lower class of people” that “those who advised them to take up arms” were in truth “their greatest enemies.”Footnote ⁶⁸ We cannot be certain, but stress was great, and many ordinary men publicly despaired about the direction of affairs. As William Axtead told his neighbors,

Sometime later, George Mason would insist that “[t]here was never an idler or falser notion than that which the British ministry have imposed upon the nation, that this great Revolution has been the work of a faction, of a junto of ambitious men, against the sense of the people of America.” Nothing, Mason insisted, “has been done without [their] approbation”—although he quickly added praise for “the cordial manner in which they have cooperated,” not sensing the tension. But even if Mason was blind to it, the British certainly saw a divergence between the interests of the great planters and the landless classes, and Lord Dunmore advised the ministry to exploit it.Footnote ⁷⁰ It would be natural, then, for Dunmore to have employed a man like Josiah Philips, who could convincingly describe how the costs of revolution had fallen unfairly on the poor. Dunmore felt comfortable using such men. He reputedly commissioned a Williamsburg stocking maker, Adam Allen, to be his agent in “secret service,” and tasked him with stealing the colony's Great Seal from the patriot-controlled capitol.Footnote ⁷¹ Philips, too, later claimed to have a commission from Dunmore to recruit, although there is no supporting evidence of it in public records.Footnote ⁷²

Consistent with this picture were reports that Philips associated with escaped slaves: Will, who was “distinguished for [his] ferocity,” “negro Sandy,” Bob, and probably others.Footnote ⁷³ Recruiting slaves was an important part of Lord Dunmore's strategy in Norfolk in the fall of 1775. It culminated in his Proclamation of November 15, 1775, in which the governor declared all those “indented servants, Negroes, or others … free, that are able and willing to bear arms” in the King's service.Footnote ⁷⁴ Between 800 and 1500 slaves fled to Dunmore. Some served as soldiers in a unit that Dunmore called the “Ethiopian Regiment,” but others worked as spies or ship pilots.Footnote ⁷⁵ Philips may have recruited some of the men who fled, or they may have fled on their own and found him rather than Dunmore. In some communities, slaves expressed a significant emotional attachment to the king, whom they believed intended to emancipate them, and perhaps Philips delivered this message.Footnote ⁷⁶ Escaped slaves may have joined Philips to avoid being recaptured and sent to work in the lead mines in the far western part of the state, or even court martialed and executed.Footnote ⁷⁷ Legislative records show, as well, that jailed slaves occasionally escaped their confines and collected with other “outlyers” in swamps or highlands.Footnote ⁷⁸ Later in his career, Philips would hide away in the Great Dismal Swamp on the southern borders of Norfolk and Princess Anne Counties.Footnote ⁷⁹ At the time, thousands of men and women lived there, including maroons, runaway indentured white servants, Tuscarora Indians long separated from their tribe, and “the Scratch Hall folk, tawny skinned and neither white nor black.” It is possible that Philips recruited “swampers” from these communities as well.Footnote ⁸⁰

Whether or not Philips recruited escaped slaves to his gang, from plantations or the swamps, he surely knew the effect their presence had on the imaginations of gentlemen planters. Maybe Will, Sandy and Bob did as well. The planter class suffered from a “permanent undercurrent of fear,” in which every event seemed ominously to portend a bloody rising of the colony's 180,000 slaves. Three years before Philips got his start, in 1772, Chief Justice Mansfield of the King's Bench had concluded in Somerset v. Stewart that slavery had no basis in natural law or common law, implying that it depended on the local law of Virginia. The decision “caused a sensation in the colonies,” and Virginia planters in particular “anticipated a ripening into bloody rebellion.”Footnote ⁸¹ When Lord Dunmore seized gunpowder from the colonial magazine at Williamsburg in late April 1775, recalled Edmund Randolph, “it was believed … that he designed, by disarming the people, to weaken the means of opposing an insurrection of the slaves,” a policy Randolph described as “assassination.”Footnote ⁸² A day later, Dunmore remarked to a local physician working in the governor's palace that if his senior officers were injured in the tumult over the seizure, he would “declare freedom to the slaves & reduce the City of Wmsburg to ashes.”Footnote ⁸³ The comment was rash, but the threat was clearly on his mind as he groped about for a way to seize the initiative. Virginia gentry were scared; the week of the seizure saw “more rumors of slave plots … than during any previous week in Virginia history”—a remarkable fact in a society habituated to rumor-mongering.Footnote ⁸⁴ Dunmore understood that Virginians’ fear of insurrection was more than an abstract concern for property. Wealthy planters in particular “felt threatened by black Virginians in a personal, intimate manner.”Footnote ⁸⁵ The day after the British Victory at Kemp's Landing, in mid-October 1775, one woman recalled “an ugly looking negro man, dressed up in a full suit of British regimentals, and armed with a gun, came in upon us,” asking for Virginia militiamen in “a saucy tone.” Memory had knit together her revulsion at the man's appearance, his violent invasion of the home, and the British army.Footnote ⁸⁶

So how did Virginia's gentleman patriarchs see Josiah Philips? They saw him at the head of an “Ignorant disorderly mob” of poor, landless men. These were simple men. They lacked the independence and liberality characteristic of gentlemen. The laboring poor were in constant need, readily manipulated, and lacking in virtue and self-control, defects of character all plainly exhibited by their mobbing against convention policies.Footnote ⁸⁷ Gentlemen saw Philips with escaped slaves, too, or at least they heard the tales. This they would have found deeply threatening. Escaped slaves might foment insurrection among those still on their plantations. Slaves, and especially black men, posed a constant threat of domestic invasion and a sanguine, intimate violence described as “lust.”Footnote ⁸⁸ The violent slave became, in Robert Parkinson's formulation, a “proxy” for the common enemy, a status that justified the use of exemplary violence.Footnote ⁸⁹ Even poor whites should understand the danger, planters thought. As Archibald Cary groused in a letter to another leading Virginian, “Men of all ranks resent the pointing a dagger to their Throats, thru the hands of their Slaves.”Footnote ⁹⁰

Disorder and Attainder

Move forward now several months. Philips disappears from the record for the moment, but likely he was busy stirring the pot, perhaps for Lord Dunmore. For the people of Norfolk and Princess Anne, patriot or loyal, the first months of 1776 were hard ones. On January 1, the borough of Norfolk was burned, largely by Virginia regulars.Footnote ⁹¹ A week later, “sundry Inhabitants of Princess Anne and Norfolk Counties” composed a petition for the Fourth Provincial Convention in Williamsburg. Among the signers was Thomas Newton Sr., a Norfolk physician and merchant, and John Wilson, a former Burgess who would later serve as Norfolk County Lieutenant (head of the militia), as well as other leading gentlemen. Both men were from the area's long-established, leading families.Footnote ⁹² They reminded the convention that they had supported its revolutionary measures, only to suffer under British occupation after the battle of Kemp's Landing. The presence of British soldiers had forced the men to “abandon…our aged Parents, our Wives, our Children, & Families … to the Mercy of insidious Neighbours, the lawless plundering Soldier, & and the more savage Slave.” The language of the plea spoke directly to the gentlemen who filled the convention. The anxiety, frustration, and shame of exposing one's dependents to abuse by “lawless” soldiers and “savage” black intruders would have been palpable; it was a basic failure of patriarchal duty.Footnote ⁹³ Indeed, the petitioners continued, “Our Plantations have been ravaged, our Wives & Children stripped almost to Nakedness, our very Bed-Chambers invaded, at the silent Hour of Midnight, by Ruffians with drawn Daggers and & Bayonets; our Houses not only robbed … but wantonly reduced by Fire to Ashes; our Persons treated with every Indignity that elated Insolence & Cruelty could suggest.”

For the moment, British withdrawal had brought “a State of Safety,” but it was temporary, and surely chaos would return with the redcoats. Before that happened, the petitioners insisted, those “suspected” of disaffection should be interrogated, and men who aided or fought with the British removed “to some distant part of the Colony.” And although the convention had offered to pardon slaves who left Lord Dunmore's service, the petitioners did not “feel ourselves safe even at present, while they are suffered to go at large,” and requested instead that slaves be “confined until an Opportunity offers to transport them to some of the West India Islands.”Footnote ⁹⁴

The petition presented a dire picture, but provincial leadership was still hoping for rapprochement and no action was taken. Several months later, Major General Charles Lee of the continental army took up the cause again and framed it as a military imperative. Writing to the Committee of Safety, the state's wartime executive, Lee wrote that his field officers thought it “difficult, if not impossible, to secure and preserve the Province” if the many “dangerously dispos'd” remained in Norfolk. They endangered not just the “preservation & being of the Province, [but that] of the whole Continent.” Such men should be removed inland, and to guarantee their good behavior the committee should take “their Wives and Children … as hostages.”Footnote ⁹⁵ Lee therefore joined Dunmore in exploiting for military advantage the domestic instability of the revolutionary household.Footnote ⁹⁶ The request was excessive, as was typical for Lee, but the situation worried the committee nonetheless. It had learned from another source of “a constant Intercourse” between the British fleet and disaffected Americans near the coast, and feared the provisions and intelligence flowing to the British would leave patriotic residents continually “exposed to the Depredations of the Enemy.” In light of Lee's warning, the committee now ordered all individuals residing within the front lines “be immediately removed” into the interior and their slaves confined “at some secure place.”Footnote ⁹⁷ When locals objected, the order was relaxed to allow “friends or neutrals” “to remain at their habitations.”Footnote ⁹⁸ For his part, Lee thought the compromise inadequate, and “threatened to demolish the houses of several well-known loyalists in Portsmouth” as an example to the rest.Footnote ⁹⁹

All the while, traditional government in Princess Anne and Norfolk largely ceased to function. The Norfolk County Court had heard no civil suits since July 1774, though it continued to handle some administrative and criminal matters. Its courthouse was destroyed when the city burned, and court convened only three times between October 1775 and July 1777. After July it resumed its monthly meetings in a private home.Footnote ¹⁰⁰ The Norfolk Borough Hustings Court, whose jurisdiction was similar to that of the county court, did not hold a recorded meeting for 3 years after February 1775. In Princess Anne, the gentlemen justices met only twice between August 1775 and July 1776. Even when the justices met, however, the court could do little to enforce warrants and orders against the disaffected, because execution of its process depended, ultimately, on the militia, which was “inoperative.”Footnote ¹⁰¹ At bottom, both the county court system and the local committees of safety relied on the cooperation of residents, and the people of Princess Anne and Norfolk were divided and fearful. Richard Beeman has argued that the ability of a county government “to serve the particular legal needs of nearly all the citizenry at the local level” was crucial in dampening disaffection in Virginia's southwest. The counties of the southeast were, in contrast, largely ungoverned during this period, and so it was that in the spring of 1776 “[l]oyalist banditti freely raided” in both Norfolk and Princess Anne. The raids abated when Dunmore left the area in late May, but increased again in 1777 and continued through much of the war.Footnote ¹⁰²

It is in this context that Josiah Philips reappears in the record, now graduated to leading a “conspiracy” rather than a mob. In June 1777 there is an entry in the Journal of the Virginia Council of State, describing a letter from Norfolk County Lieutenant John Wilson—whose petition to the convention we examined above—complaining of “sundry evil disposed persons, to the number of ten, or twelve,” who “have conspired together, to foment a Dangerous Insurrection in the said County, and at present are lurking in secret places threatening and doing actual mischief to the peaceable and well affected Inhabitants.” The party was led by “Levy Sikes, Josiah Phillips, and John Ashley.” That theirs was a conspiracy to foment insurrection suggests a political motivation. Still, the conspiracy was likely not yet a great danger to the state, because Wilson requested a relatively small reward, $150, for capturing the principals, whom, he said, were “to be dealt with according to Law,” that is, by ordinary process of referral to the General Court for jury trial. This was enough; apparently Philips was captured. The following January, the council approved payment of an award to “sundry persons for apprehending Josiah Philips,” with ₤10 to “a free Mulatto for inform^g where the said Philips was.”Footnote ¹⁰³

Philips soon escaped. We don't know how, but escapes by loyalist prisoners were not uncommon when they had assistance. Several months later, on May 1, 1778, Governor Patrick Henry received a letter from County Lieutenant George Muter “informing him that Phillips the noted Traitor has again made an Insurrection in Princess Anne County at the head of fifty Men,” and requesting 150 of the Nansemond militia to march against them. Muter requested, as well, that a significant reward of $500 be offered for Philips's apprehension, “dead or alive,” and that anyone participating be permitted a share in “the Booty taken from the said Insurgents.”Footnote ¹⁰⁴ At approximately the same time, hearing “of ravages committed by Philips and his notorious gang,” Lieutenant John Wilson called up men from four companies of the Norfolk militia, whose full force was “upward of two hundred.” Ten men answered. Wilson “compelled twenty others into duty,” placing them under the command of Captain Josiah Wilson, but a quarter of the force deserted the first night. Someone likely informed Philips of the mission, and the insurgents “were either taken to their secret places in the swamp, or concealed by their friends,” so that “no intelligence could be obtained.” The next day, Captain Wilson went to the house of a neighbor on some business. As he approached, he “was fired on by four men concealed in the house” and mortally wounded. Lieutenant Wilson wrote to the governor. Just as he had done 2 years earlier in the petition to the provincial convention, he now asked for a mass removal. Unless “the relations and friends of those villains” were removed from Norfolk, Wilson insisted, there could be no “peace and security.”Footnote ¹⁰⁵

Within several months, the Philips gang would be broken up. Governor Henry agreed to offer a substantial award for Philips's capture and to order additional militia into the area—steps similar to those Congress had taken in response to the murder of a militia captain in Bladen County, North Carolina, the year before.Footnote ¹⁰⁶ Yet Henry thought “the executive power … not competent” to satisfy Wilson's principal request, the mass removal of families “in league with the insurgents.” According to Henry, the assembly were “the only judges [of] how far the methods of proceeding directed by law are to be dispensed with on this occasion.”Footnote ¹⁰⁷ Henry forwarded Wilson's letter to the House of Delegates on May 27, approximately a week after Wilson wrote, and the House took up the matter the next day. After deliberating for “some time” on a number of issues, the House concluded that Josiah Philips had “levied war” against Virginia, “committing murders, burning houses, wasting farms, and doing other acts of enormity.” What evidence the delegates had before them, in addition to the letter, we do not know; Philips's conduct may have been widely known or merely rumored. The House resolved that Philips be attainted of treason and referred the matter to a select committee for drafting. This committee was led by Jefferson and included John Tyler Sr., a county-court lawyer, future Anti-Federalist, and General Court judge.Footnote ¹⁰⁸

Perhaps Jefferson had already drafted a bill; years later, he would recall Henry approaching him immediately upon receiving Wilson's letter. In a study of the early Virginia executive, Emory Evans observed that it was not uncommon for governors to consult with members of the House, although it was usually through the speaker. Here there was clearly a sense that time was of the essence. Jefferson's committee reported a bill later the same day. It added robbery to the committee's charges of treason and murder, and gave Philips and his unnamed “associates and confederates” an opportunity to surrender and claim a trial. If Philips failed to surrender by the deadline, he would “suffer the pains of death,” the “sentence of attainder” to be executed upon his capture “by order of the General court … as soon as may be conveniently.” Associates might still claim a trial on the question of their affiliation with Philips, but the caveat made for tenuous insurance; after the grace period it would be lawful for “any person” to “pursue and slay” a gang member. No objections to the bill are recorded. It was signed into law on June 1, a week after the House had taken up the matter. Philips had until to June 30 to surrender.Footnote ¹⁰⁹

The Place of Legislative Attainder in the Republican Legal Mind

If the status of legislative attainder was uncertain at the time of the imperial crisis, why did Jefferson turn to it so quickly? Years later, Jefferson would recall that, upon learning of Captain Josiah Wilson's murder, both he and Henry had “thought the best proceeding would be by bill of attainder, unless he delivered himself up for trial within a given time.” Why?Footnote ¹¹⁰

With Jefferson, at least, no explanation would be complete that failed to take stock of the writings he obsessively consumed, and with which he sought to craft an enlightened, republican persona. An examination of these sources shows that Jefferson was familiar with bills of attainder by the time he served in the House of Delegates. Indeed, Jefferson's study of “the laws and course of Parliament” began early in his legal career. A letter to John Page written in 1766, when Jefferson was only 23 years old, expresses annoyance at the informality of proceedings in the Maryland legislature, using the peevish language of an initiate. By then Jefferson had been clerking in George Wythe's law office for 4 years, which would have been plenty of time to develop these prejudices, as well as some real expertise. In 1769, Wythe became clerk of the House of Burgesses and made his own study of parliamentary law, which Jefferson may have consulted, but Jefferson wrote later that he had “at an early period of life, read a good deal on the subject, and commonplaced what I read.” Sometime in the late 1760s, Jefferson began to assemble a “Parliamentary Pocket-Book,” commonplacing major parliamentary texts. The Parliamentary Pocket-Book contained several entries on attainder, including Coke's remark in the Fourth Part of the Institutes that Parliament had attainted Thomas Cromwell “without [his] being called to answer,” but that such a practice, although lawful, ought to be forgotten.Footnote ¹¹¹

Early Pocket-Book entries were drawn primarily from the Modus Tenendi Parliamentum, a fourteenth century text, and George Petyt's seventeeth century Lex Parliamentaria, but Jefferson also had access to other sources from which he would have constructed his view of “the occasion and proper office of the bill of attainder.”Footnote ¹¹² In addition to the Fourth Part of the Institutes and Lex Parliamentaria, Jefferson ordered William Petyt's Jus Parliamentarium in October 1769, in preparation for his service in the colonial House of Burgesses, although the text may have been lost in the Shadwell fire.Footnote ¹¹³ Jefferson acquired another important volume in 1773 or thereabouts, Of the Judicature in Parliaments (1681), a tract traditionally attributed (erroneously) to John Selden, the English lawyer, member of Parliament and antiquarian. Judicature in Parliaments describes a number of English legislative prosecutions and proffers some limits on its jurisdiction.Footnote ¹¹⁴ Probably more important than any of these law books, however, were two histories: History of the Rebellion (1720), by Edward Hyde, earl of Clarendon, and John Rushworth's Historical Collections of Private Passages of State (1721), the first of which Jefferson had read by 1771.Footnote ¹¹⁵ Both volumes contain parliamentary speeches made during the attainder of Thomas Wentworth, earl of Strafford, describing what were thought to be signal limits on the legal powers of Parliament.Footnote ¹¹⁶ One historian has concluded that Jefferson tended to prefer such “historical and political accounts of law,” as evidenced in his patterns of commonplacing, which engage the sources more deeply than Jefferson did “legal reporting.”Footnote ¹¹⁷ The great library of the Virginia Council of State, assuming it was still intact in 1778, held all these volumes as well. Recent bibliographic scholarship reveals that Jefferson relied on this library to guide him as the imperial crisis unfolded; it was, Jefferson wrote, “with the help … of Rushworth, whom we rummaged over for the revolutionary precedents & forms,” that he, Patrick Henry and others had drafted a resolution in response to the Coercive Acts.Footnote ¹¹⁸ Jefferson's flight to histories, precedents, and forms bears out Trevor Colbourn's observation, made years ago, that Jefferson treated Whiggish history as a vital source of experience, from which one could draw an understanding of the logic of contemporary events.Footnote ¹¹⁹

In constructing Jefferson's views of attainder, one should also consider the account given in John Hatsell's influential tract, Precedents of Proceedings in the House of Commons, although Jefferson did not acquire the text until 1785. Jefferson repeatedly praised Hatsell and professed to rely heavily on it in preparing a manual of procedure for the United States Senate.Footnote ¹²⁰ The treatise contained many entries on attainder, listing individuals who had been attainted by Parliament and on what grounds. These proceedings had been aimed at “persons concerned in raising traitorous and tumultuous insurrections,” particularly where it was impossible for “justice [to be] obtained by a regular trial in a court of criminal jurisdiction.” Although bills of attainder had also been used to oppress, Hatsell disagreed with Blackstone that “proceeding by Bill is in no case expedient or proper,” because it was not preferable that “the highest and most daring criminals against the State should escape with impunity, … rather than that their crimes should be brought to the consideration of Parliament.” Attainder in Parliament was justified “in cases of absolute necessity, … where, from the magnitude of the crime, or the imminent danger to the state, it would be a greater public mischief to suffer the offense to go unpunished, than even to overstep the common boundaries of the law.” Writing in 1815, Jefferson described the “proper office” of bills of attainder in precisely these terms, although his personal copy of Hatsell was by then packed in a book box for shipment to Congress, to which it had just been sold.Footnote ¹²¹

Jefferson was uniquely well read, but there is evidence that Patrick Henry also viewed legislative attainder in this light. Henry is not known for his erudition, and famously claimed to have prepared for his bar examination by reading the First Part of the Institutes and the Laws of Virginia over the course of a single month. The picture is likely overdrawn.Footnote ¹²² Wherever they came from, however, by 1776 Henry held strong views about the function of bills of attainder. According to Edmund Randolph's History of Virginia, it was Henry who succeeded in removing a prohibition of legislative attainder from a draft of the Virginia's first state constitution, painting “a terrifying picture of some towering public offender against whom ordinary laws would be impotent” and thereby “saving that dread power from being expressly proscribed.” Henry's attack was part of a larger effort by Virginia radicals to enhance the capacity of government to provide security by passing acts that functioned as judgments. Thus, against the draft's proposed ban of ex post facto laws, Thomas Ludwell Lee argued that retroactive lawmaking might be required by “the law of necessity—the exigencies of life,” such as “when the safety of the State absolutely requires [it].” As one commentator described it, the radicals’ aim was to give “martial law constitutional sanction,” although the problem might also be described as setting proper boundaries between the common law and other, summary forms of legal proceeding, a task familiar to gentlemen raised in an empire of legal plurality.Footnote ¹²³ Much later, Henry would insist that this boundary could be demarcated using principles taken from natural law and the law of nations. Under these principles, Henry maintained, pirates and bandits lost their right to common law proceedings by having renounced government altogether. As the bandit, in effect, had waived his right to a jury trial, it was lawful to condemn him by the summary procedures used in the legislature for notorious offenses. Notably, Henry had long been interested in the law of nations and was well read in the publicist tradition.Footnote ¹²⁴

The influence of natural law and the law of nations on Henry's thinking was only strengthened by the transition to republican government. Bills of attainder fit naturally in a republican assembly. The gentlemen justices who presided over criminal trials in the county courts also sat in the assembly, comprising nearly half the members of the House of Delegates.Footnote ¹²⁵ Some of these men had English legal training, as has been mentioned. Nearly all of them took pains to distinguish their learning from that of the professional lawyers in Williamsburg. Gentlemen judged by what planter Landon Carter called “good reason and experience,” not the “Mechanical” knowledge of professionals, whose learning, he gibed, amounted to “knowing from whom to Copy Properly.”Footnote ¹²⁶ When Virginia's great men, whom the evangelical minister Devereux Jarratt called “beings of a superior order,” were gathered in assembly, they embodied “the corporate integrity of colony communities.”Footnote ¹²⁷ This was the place where the gentlemen fathers of the colonial family could decide together, as peers, how best to preserve the peace and safety of the colonial household. That such matters were appropriate for an assembly was precisely why the Virginia Constitution had not banned bills of attainder or ex post facto laws. Just as gentlemen justices did in the county courts, delegates in the House would decide on the proper form of law by drawing on their experience, reason, common sense, and basic principles of natural law and positive law.Footnote ¹²⁸

Jefferson did not share the country justices’ disdain for law books and precedents, of course, but his view of the legal powers of a republican assembly was similar to theirs. Normally, he thought, insurrections should be dealt with by exposing their agents “to the pains of the law.”Footnote ¹²⁹ In extraordinary circumstances, however, where courts of law could not operate effectively, Jefferson agreed that there was a residual power to do justice by some other means. Ancient precedents made this clear. If, strictly speaking, such a power had formerly been the prerogative of the king, under republican government it should be vested in the elected assembly, along with other royal prerogatives relating to security and justice.Footnote ¹³⁰ Acts of attainder were a natural, republican expression of the residual duty to do justice in extraordinary circumstances.Footnote ¹³¹ To Jefferson's eye, the learning and refinement of his circle of friends in the House, under the guidance of professional lawyers sitting there, ensured that the body would proceed with moderation, prudence, and self-control, as these were the virtues that distinguished a natural aristocracy.Footnote ¹³²

We should conclude, I think, that Jefferson and Henry were familiar with precedents for legislative attainder, and that these precedents were not diminished in their minds by Virginia's transition to republican government, but, in fact, had been enhanced. We should conclude, as well, that Jefferson and Henry believed precedent to support the use of attainder against Philips. Norfolk and Princess Anne were on the verge of lawlessness. Banditti including escaped slaves had invaded the homes of the gentlemen justices and their peers. They now struck directly at the military force directed by those same gentlemen. If delegates failed to address the murder of a militia captain from a great family such as the Wilsons, they would risk losing the cooperation of other men of ability and property, and the entire structure of the military and civil governance could collapse. Calling on these distant precedents, they hoped to direct the force of the community itself against the gang, reaffirming the leadership of great men and preserving the peace of their households against a deeply set fear of black violence. The audience for their argument was the men of the assembly, and in particular the House of Delegates, whose primacy in doing justice and maintaining security they recognized and supported.Footnote ¹³³

The Breakup of the Gang

As it turned out, however, an act of attainder was not necessary to preserve security in Norfolk and Princess Anne. The act passed against Philips almost certainly had no effect at all. What worked against Philips were the conventional institutions of civil government in wartime Virginia: the militias and the county courts. Extraordinary forms of law had been unnecessary.

The act of attainder was reported in Purdie's Virginia Gazette on June 5, 4 days after it passed. One day earlier, however, on June 4, Philips and an associate, James Hodges, were captured at night by a volunteer militia company led by Captain Amos Weeks. How this came about is unclear; another man affiliated with the gang, Henry M'Clelen, had been arrested several weeks earlier and may have provided intelligence. A week later, on June 11, 1778, Philips, Hodges, Cornelius Land (who had been sought since May), and Caleb Moore and Henry Burgess, two others likely associated with the gang, were all brought before the Princess Anne County Court for examination, where they faced a mass of county residents who had appeared to testify about their behavior. The charge was “feloniously robbing the Continent of America of sundry goods,” including linen, bunting, buttons, hats and muskets—a haul suggestive of a continental army supply—and robbing another man of lead and powder. Witnesses were called, Philips and Hodges “heard in their defense,” and the matter concluded, the county court binding the two men over to the General Court for charges of robbery, as was the usual practice for capital crimes. No mention was made of the bill of attainder. Its publication in the Gazette had occupied but one line, and the justices may not have known of it.Footnote ¹³⁴

The Norfolk County Court was busy as well. Two weeks later, on June 30, 1778, Wilson Pinkerton was charged in the death of Captain Josiah Wilson. Testimony was taken and Pinkerton was bound over for trial in a court of oyer and terminer to be held in Williamsburg. His testimony may have produced intelligence, or an effort to shift the blame, and further arrests were imminent. On July 16, Mason Miller and Robert Hodges appeared in court, Robert being a brother of James Hodges, who had been examined by the court in Princess Anne. Notably, Hodges and Miller's charge, “treason, murder and robbery,” was now suggestive of the language of the act of attainder. The men were transferred to the General Court for trial. Later the same day, Thornton Miller was brought before the justices, charged with “High Treason, Murder, and Robbery,” and bound over on all three charges.Footnote ¹³⁵

In the first days of August, two escaped slaves, “negro Sandy” and “Bob,” were brought to the Norfolk County Court bar and also charged with treason and murder. Whose murder they are alleged to have committed the clerk's record does not say, but Sandy had belonged to Josiah Wilson, the murdered militia captain, and a charge of treason may have hinged on a belief that he had conspired in his master's death.Footnote ¹³⁶ As recorded by the clerk, both Sandy and Bob testified that they were “in no wise guilty,” but the language is formulaic and the substance of their defense is not revealed. Sitting as a court of oyer and terminer, the justices could try slaves without a jury, and both Sandy and Bob were convicted and sentenced to be executed at the end of the week. After sentencing Bob, the gentlemen justices added an order “that the Sheriff do hang up the Body of the said Bob, after it is Dead, at some Place near that of Execution, to wit where Sandy, belonging to Josiah Wilson, is to be hung up, that is where they shall be most conspicuous, and least offensive, and there leave it to remain.”Footnote ¹³⁷ The intent of the punishment, which one exhaustive study describes as “severe and unusual for Norfolk,” was surely to use Sandy and Bob's decaying bodies to terrorize other slaves. The special criminal jurisdiction that the county court possessed over slaves—a jurisdiction it did not possess over the cases of free banditti—empowered the gentlemen justices to use the court to quiet their own fears about slave insurrection.Footnote ¹³⁸

The next day Jesse Phillpot was brought before the justices, charged with treason and murder, heard in his defense, and bound over for trial in Williamsburg. Phillpot was simultaneously being sued in a civil action on a writ of trespass in Princess Anne, in which the plaintiff described him as working with two black men, “Will … and the other Negro,” robbing multiple houses in the course of one night. This was the ‘ferocious’ Will, later accused of “aiding and abetting Josiah Phillips,” and who “struck such terror into the inhabitants of Norfolk and Princess Anne” that County Lieutenant John Wilson had personally offered a ₤100 reward to whomever “should put him to death.” The reward went to Zadock Dailey, who had deserted his company of Virginia regulars but now earned a pardon and ₤100 for killing Will. Phillpot, for his part, was tried in Williamsburg in March 1779, along with Pinkerton, Miller, and Thornton, who were all found guilty and sentenced to death.Footnote ¹³⁹ Yet Phillpot, at least, was never executed. He died peacefully several years later in Princess Anne, wealthy enough to own two slaves. The result, although surprising, was not unheard of in counties like Princess Anne and Norfolk, where “local dynamics of loyalism” (combined with a limited capacity to imprison people) made it possible even for men charged with treason to return to the community. The Virginia Gazette never reported the execution of Pinkerton, Miller, and Thornton; perhaps they, too, were pardoned or escaped.Footnote ¹⁴⁰ We read of no redemption for Sandy or Bob.Footnote ¹⁴¹

Put under heavy guard, Philips waited for 3 months in a Williamsburg jail to be tried on charges of felony robbery. In October 1778, he was indicted on charges of feloniously robbing some hats and twine. The magnificence of his crimes was now dwindling in the record. The Virginia Gazette reported that Philips had allegedly “robb[ed] the publick waggons,” although it added, parenthetically, sensing that a reminder was needed, that the man had earlier been “accused of murder, treason, and sundry other outrages.” The jury found him guilty. Philips, Robert Hodges, James Hodges, and Henry M'Clelen were sentenced to death and executed by hanging in December 1778.Footnote ¹⁴²

Disorder lived on for some time in Princess Anne and Norfolk. Nearly 2 years after Philips's execution, in September 1781, County Lieutenant Thomas Newton wrote Governor Nelson that Princess Anne “has neither civil nor military law in it,” so that “Murder is committed & no notice is taken of it.” Some of Philips's associates had managed to evade capture and continued to launch raids from the Great Dismal Swamp. Newton reported that “a few desperate fellows go about on the sea Coasts and large Swamps and do mischiefs in the nights.” Over time, however, Newton was able to use the militia effectively against the bandits, who were captured and charged in the county courts. A letter to the governor 1 year later was more hopeful. There were “[m]any refugees out in the Swamps … anxious to come in,” he thought. A few of Philips's old comrades, “Levi Sikes & Robt. Stewart,” were unlikely to reform, but if the others were pardoned, “the whole nest would be broken up.”Footnote ¹⁴³

Consequents: Professionalization and the Fall of Legislative Law

If the act attainting Philips of treason was experienced by the gentlemen of the General Assembly as an exercise of that body's extraordinary legal power, how did it come to stand, 10 years later, for a tyrannical violation of rights? What accounts for the difference between experience and memory?

Speaking to the convention considering a proposed federal Constitution in 1788, Virginia Governor Edmund Randolph recalled the Philips affair, describing how “a man had been deprived of his life” in a rushed proceeding, in which “vague reports” of his “committing several crimes” and “running at large” were brought to the House floor and a legislator had drawn “from his pocket a bill ready written” to attaint him. Philips was “sentenced to death,” Randolph announced, “without being confronted with his accuser and witness; without the privilege of calling for evidence.” Missing from Randolph's account was Philips the “laborer”; missing was the banditti of escaped slaves; murder and arson had become “several crimes”; and the legislature's deliberations had become a reliance on “vague reports.” Omitted entirely was Philips's jury trial on charges of robbery.Footnote ¹⁴⁴ Where did this view of the case come from?Footnote ¹⁴⁵

Randolph was probably not being dishonest. As he knew, a number of men in the audience were familiar with the case, in one way or another, and might have advanced their cause by exposing his dishonesty. For Randolph to have taken such a risk would have been reckless. Jefferson himself, whose view of Randolph was typically lukewarm, did not think he had been lying.Footnote ¹⁴⁶ Nor was Randolph misinformed; he had been personally involved in bringing Philips to justice, both as clerk of the House of Delegates when the bill of attainder was passed, and, later, as state attorney general when Philips was prosecuted. Although it is possible that Randolph's memory failed (and, we must assume, that other delegates who knew of the case were unable or unwilling to correct him), it seems more likely that his perspective on the event had changed. Patrick Henry had set the agenda at the ratifying convention by arguing that the proposed federal Constitution would deprive Virginians of the liberty that they had enjoyed under their own constitution. Henry had no faith that the “rope-dancing, chain rattling, ridiculous ideal checks” Madison had implanted in the federal Constitution would constrain its government. In reality, an energetic, superior national government would overwhelm the states and then absorb them.Footnote ¹⁴⁷ Randolph's strategy was to insist, against Henry, that Virginians’ liberty was already at risk. Virginians were insecure, he argued, even under the state's venerable Declaration of Rights, because “a man” had been “sentenced to death” by the General Assembly, acting merely on “vague reports” that he committed “several crimes” and was now “running at large.” A federal Constitution would secure liberty in Virginia by prohibiting these proceedings.Footnote ¹⁴⁸

Of course, Randolph enhanced the rhetorical value of the case by failing to describe Philips or his gang of escaped slaves. But as we know, he was wise to omit these facts, because they almost surely would have obscured his key point: that the gang never really posed a serious danger to the state. If Philips was so dangerous, then why had he been caught by a voluntary militia company? What need had there been, really, for the legislature's extraordinary intervention? The same skepticism is apparent in Randolph's account of the case in his History of Virginia, written in 1810 or thereabouts. If Philips's crimes were so heinous and widely known—if they were, in short, legally “notorious”—then why was he convicted of robbing twine and some felt hats? And if petty robbery could be transformed on the House floor into a brigandage so great it that threatened civil government itself, what offense could not? The success of ordinary law and ordinary executive power gave the legal arguments on which Jefferson and Henry had relied a kind of sophistic quality. Pivoting between extraordinary and ordinary forms of law produced an impression of the legislature's arbitrary discretion, just as it did when local justices of the peace pivoted from law to equity in an effort to resolve a case before them. And where there was arbitrary discretion, passion and interest tended to corrupt the exercise of power. For delegates at the convention hearing this exchange, the concerns they knew from the long-running public debate over reform of the county courts must have seemed, in a flash, to apply to the General Assembly as well.Footnote ¹⁴⁹

A worry had been growing about the character of the men seated in the House of Delegates. As early as 1781, Jefferson was prepared to admit that its members were neither a natural aristocracy nor under the influence of elite lawyers to the degree that he had expected they would be. Because no one could resist “proceedings [in] the form of an act of assembly,” he conceded, the House had, “in many instances, decided rights which should have been left to judiciary controversy.” Jefferson had been wrong, then, to think assembled bodies of leading men the safest repository of a power to settle boundaries between ordinary and extraordinary forms of law. His 1783 draft of a state constitution accordingly banned bills of attainder outright. Other Virginia elites saw the problem as well. Writing in 1786, Ralph Wormeley worried about “[t]he crude state of politics in this country.”Footnote ¹⁵⁰ A short time later, preparing for an opening address at the constitutional convention in Philadelphia, James Madison devoted the keenest of his complaints in “Vices of the Political System of the U.S.” to the vicissitudes, injustice, and low character of the state assemblies. Madison had just finished serving in the Virginia House of Delegates, where he had been struggling to push through a reform of the state's court system.Footnote ¹⁵¹

The movement to reform the county courts was tied up with clashing conceptions of the practice of law in Virginia, conceptions we have been tracing throughout this article. According to Alan McKinley Smith, “the single factor most essential to the development of a legal profession in Virginia was, of course, the court system.” This was because institutional and cultural boundaries separated lawyers practicing in the state's different courts. In 1748, the General Assembly had barred attorneys practicing before the central General Court from also practicing in the county courts, acting on petition from one of the counties, but the principal effect was to “create a legal elite” in Williamsburg. There the state's “philosophical lawyers” embraced a movement toward liberal education that had distinguished elite English barristers. But others had little patience for these embellishments. Writing from Bermuda, St. George Tucker's father, Henry, could not understand why his son insisted on taking courses in natural philosophy, moral philosophy, and mathematics, “an Academical education” unnecessary for the practice of law (and expensive, given William & Mary's tuition).Footnote ¹⁵² Justices of the peace largely shared this attitude and resisted efforts by the elite to export its methods to their courts. In 1779, gentleman justices sitting in the House of Delegates had fought off a bill that would have required them to purchase law books with fees levied from litigants. The ideology of “country” opposition still had currency, and from this perspective the professionalization and centralization of the law was a source of corruption and a threat to liberty; liberty that Virginia gentlemen had long preserved by independently administering justice in the counties according to common sense, experience, and basic legal maxims. Eventually, reformers settled on a plan that had judges from the central courts riding circuit throughout the state, with the hope of improving the quality and speed of local justice and gradually displacing county proceedings. The leading proposals for reform in the 1780s therefore called for assize courts or district courts staffed by General Court, admiralty and chancery judges, possessed of a jurisdiction that trenched deeply on the county court. (Tucker himself would soon ride circuit as a General Court judge.)Footnote ¹⁵³ The aim was to create “the machinery … to assure a rational, systematic law.” Were gentlemen justices who sat as members of the House of Delegates to enjoy a power to interfere with proceedings before these courts, however it would have precisely the opposite effect.Footnote ¹⁵⁴

With the argument for legislative jurisdiction over Philips stripped away, what remained of the case was simply interference in the judicial process. Henry and Jefferson were unbothered because they continued to credit the argument that justified the attainder: the Philips gang had threatened government itself. At least initially, Jefferson was comfortable with extraordinary legislative jurisdiction in cases in which it was necessary to protect the state, as the assembly would comprise the state's greatest men and act under the guidance of lawyers sitting there. But to others, less impressed by Philips and perhaps by the assembly as well, the interference was intolerable. St. George Tucker, a lawyer by training but a gentleman planter only by marriage, used his edition of Blackstone's Commentaries to fume about acts of attainder. They were, he wrote, “state-engines of oppression in the last resort,” characterized by a “want of legal forms, legal evidence, and every other barrier which the laws provide against tyranny and injustice in ordinary cases.” Ordinary cases, Tucker thought, adjudicated in courts of law, would be decided according to legal forms that gave forensics a greater precision. The movement to professionalize the practice of law drew strength from a number of sources, but a desire to render law more scientific and thereby narrow judicial discretion was repeated and found an audience among lawyers and merchants in Williamsburg and Richmond. Blackstone's Commentaries, with its rational, “institutional” methodology and clear legal principles, was their preferred law book.Footnote ¹⁵⁵

To secure the benefits of professionalized law required a means of insulating courts from arbitrary interference by the assembly. A superior national government, whose Constitution forbade state bills of attainder and ex post facto laws, was one such mechanism. Another was a judicially enforceable boundary between the assembly and courts of law. Once legal proceedings in the assembly were stripped of their lawyerly defenses, they took on the appearance of an abuse of lawmaking power, of arbitrary or factional expressions of will. St. George Tucker again pointed the way. Josiah Philips, he wrote, had been saved by the brave refusal of judges of the General Court to execute the sentence of death mandated by the act of attainder. The court “refused to pass the sentence,” insisting instead that Philips “be put upon his trial, according to the ordinary course of law.” The episode was, he thought, “decisive proof of the separation of powers, and of the independency of the judiciary.” At the time Tucker was writing, judicial independence was “in the air,” as judges sitting on the state's constitutionally established courts sought to defend their jurisdiction from what they argued were unconstitutional legislative alterations.Footnote ¹⁵⁶

Tucker claimed that the General Court had invalidated the act of attainder by judicial review. Commentators have long expressed skepticism that the General Court did in fact refuse to comply, because Philips was captured before the end of the attainder's grace period and therefore could not have been, consistent with its terms, executed on its sentence.Footnote ¹⁵⁷ Yet we can still account for much of Tucker's view if we attenuate, slightly, his version of events; perhaps, in informal conversation with Attorney General Randolph, judges expressed skepticism that Philips's crimes could legally constitute treason, as the act of attainder alleged.Footnote ¹⁵⁸ Whether or not Tucker was correct about the details, his framing of the case prepared law students to envision a new role for courts of law: policing the boundaries between “legislative” and “judicial” functions. In drawing that line, courts and lawyers would now decide when a matter was appropriately resolved by the ordinary course of law and when it was fit for determination in the legislative or executive branches.Footnote ¹⁵⁹ Judges would construct a doctrine that kept each branch in its proper sphere, preserving for themselves a class of decisions that required “due process.” The old vision of plural regimes of law, including an extraordinary body of legislative law for doing justice in cases of civil conflict, was giving way to a judicial doctrine of separation of powers.

* * *

These changes did not occur solely in Virginia, although they occurred at different rates in different places, and were forced even to retreat in some states by the advance of Jeffersonian Republicans in the state legislature.Footnote ¹⁶⁰ But, generally speaking, the “cosmopolitan elites” who defended loyalists from charges of treason during the Revolution and who led efforts to reclaim their property afterwards, and who emerged as some of the most vigorous public advocates of the practice of judicial review, also placed bills of attainder and ex post facto laws at the center of their persuasive efforts. The federal Constitution's prohibition of bills of attainder was, wrote Alexander Hamilton as Publius, one of those “specific exceptions to legislative authority” that could “be preserved in practice no other way than through the medium of the courts.” Bills of attainder, observed James Wilson in his Lectures on Law, were simply “legislative verdicts.” They were arbitrary exercises of legislative power. No trace remained in either commentary of the legislature's authority to adjudicate notorious cases, despite the revolutionary practices of both Hamilton's New York and Wilson's Pennsylvania, whose governments together attainted hundreds of American loyalists and British subjects.Footnote ¹⁶¹ By 1795, William Paterson of New Jersey (whose state had also confiscated the land of loyalists during the Revolution), now a justice of the United States Supreme Court, rejected the argument of counsel in Vanhorne's Lessee v. Dorrance that legislatures had a power “on certain emergencies” to seize the lands of one person and vest them in another. To Paterson's mind, this sort of thing had to be done in court. In court, “proofs and allegations” would be heard by a jury; but in the legislature, wrote Paterson, “[t]he proprietor stands afar off, a solitary and unprotected member of the community, and is stript off his property, without his consent, without a hearing, without notice, [and] without his participation, or the intervention of a jury.” One can almost imagine Philips, “standing afar off,” hiding somewhere in the Great Dismal Swamp, unaware that his life was at stake in the Virginia House of Delegates.Footnote ¹⁶²

If Philips appeared too early to benefit from an emerging practice of judicial review and separation of powers, there was no such temporal irony for Will, Sandy, and Bob. Slave fear, and the domestic law of slavery that justices applied to enslaved persons, would of course remain intact in Virginia for many years to come.Footnote ¹⁶³ And on this front there was little help from “cosmopolitans” such as St. George Tucker, who, while professing to detest slavery and employing judicial review to check the actions of Virginia planters sitting in the General Assembly, eventually sided with these same men on the subject of slavery, on the grounds, in the words of one historian, that “blacks were incapable of freedom and happiest under the benign rule of their paternalistic masters.”Footnote ¹⁶⁴ Enslaved men and women were excepted even from the benefits of Virginia's constitutional law. Writing in 1806, Judge Tucker of the Virginia Court of Appeals squinted at the soaring language of the state's Declaration of Rights that “freedom is the birth-right of every human being,” remarking that it had been “notoriously framed with a cautious eye to this subject, and was meant to embrace the case of free citizens, or aliens only; and not by a side wind … to give freedom to those very people whom we have been compelled from imperious circumstances to retain, generally, in the same state of bondage that they were in at the revolution.” For judgment of Tucker on this point we can quote his own words, written a decade earlier in his Dissertation on Slavery, concerning just such an about-face: “[T]hat a people who have declared, ‘That all men are by nature equally free and independent,’ and have made this declaration the first article in the foundation of their government, should in defiance of so sacred a truth, recognized by themselves in so solemn a manner, … tolerate a practice incompatible therewith, is evidence of the weakness and inconsistency of human nature.”Footnote ¹⁶⁵

A cruel legal plurality lived on for the enslaved.Footnote ¹⁶⁶