A BILL TO AMEND AN ACT INTITLED "AN ACT FOR RAISING A SUPPLY OF MONEY FOR PUBLIC

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

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.

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 PHILIPS.1

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 Com

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

monwealth, 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

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.

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

"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 privi

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

lege 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 AttorneyGeneral 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, 1. 8., be changed for which has been charged with' (subjoining a note of reference. 1. Tucker's Blackst. Append., 292. Debates of Virginia Convention).