The Case of Josiah Phillips The chairman of the committee to which the bill was referred says :— The use of Josiah Phillips I find strangely represented by Judge Tucker and Mr. Edmund Randolph, and very negligently vindicated by Mr. Henry . . . Judge Tucker, instead of a definition of the functions of bills of attainder, has given a just diatribe against their abuse.
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It seems strange that Mr. Randolph, who surely to some extent acquiesced
in the act of attainder, certainly sufii ciently, as he says, "to bring him to a fair trial” (meaning Phillips), should after wards have been so severe in censuring
this Act of the Assembly; and in his reference, in the debate, to the case,
[Giving a definition and proceeding with:] The court refused to pass sentence of execution pursuant to the directions of the Act.
In this manner, it was made to appear that the Assembly had transcended its powers, if we are to believe the state
"without being confronted with his accusers and witnesses, without the privi lege of calling for evidence in his behalf, he was sentenced to death, and after wards actually executed," Mr. Attorney General must have been unduly anxious
ments of Judge Tucker and Mr. Ran
for a debate with Mr. Henry or, to use a
dolph, when, as a matter of fact, Phillips was never tried under the attainder at
modern phrase, “he was playing to the
all but only for robbery, as subse quent newspaper reports of the times
will disclose. Mr. Randolph's supposed utterances with reference to this case are excused
gallery.” I take it to be the former. One can hardly believe that in the then enlightened state of the law in Virginia, even at that early period, at whose bar were practising some of the
most profound lawyers of the colonies,
by his charitable critic under the guise
and whose Assembly was composed of
of the indulgence accorded orators when pressed by powerful adversaries in the ardor of conflict, losing sight of a close adherence to facts, permitting their imagination to be distorted and colored by the views of the moment. His critic continues :—
as cultivated men as could be found in
He [Randolph] was Attorney-General at the time, and told me himself the first time
I saw him after the trial of Phillips, 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 forget 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 approved, bemuse the first object of the act of attainder was to bring him to a fair trial. Whether Mr. Randolph was right in
any succeeding generations, there could have occurred such a mockery of justice as Mr. Randolph would have us believe. If there had been such, why did the Attorney-General propose and permit it?
But if he only meant that Phillips had not the advantages of confrontation and
evidence in his behalf on the passage of the bill of attainder, how absurd to charge the Assembly with the omission to confront Phillips with his witnesses, when he was standing out in arms, and
in defiance of their authority, and their sentence was to take efiect only ori his own refusal to come in and be con fronted. Mr. Randolph must have known that the prisoner was tried and
executed under the common law; and yet, according to his own words in his
this information to me, or, when in the debate with Mr. Henry, he represents this atrocious
debate with Mr. Henry, he rests his defense on a justification of the Act of
offender as sentenced and executed under the act of attainder, let the record of the case decide.
attainder, only. At last, to eliminate any doubt with
