In reply to Jon (who knows more about this than anyone I know save perhaps Brent, and certainly more than do I!):
The issue is less "what actually happened in 1777-1778?" and more "what did statesmen in 1788--including Randolph and Henry, who were major participants in the whole thing back in 1777-1778--think had happened, when they tried to reconstruct it during the debates of 1788?"
What I find remarkable about the debates in 1788 is that *both* Henry and Randolph remembered the Bill of Attainder, and not the fact that it never actually was applied against Phillips!
Which makes it plausible that Madison also understood Phillips to have been executed under the Bill of Attainder, and not at the conclusion of a proper judicial process.
Of course, I think the whole thing is moot, since from the context of Madison's letter to Jefferson, it seems much more likely that John's initial reply is correct--whatever else Madison may have been thinking about, he clearly was thinking about the proposed religious assessment, since he mentions it directly in the very next sentence.
What a great topic to be discussing in this forum!
Well wishes to all,
Kevin
___________________________
Kevin R. Hardwick
Professor
Department of History, MSC 8001
James Madison University
Harrisonburg, Virginia 22807
________________________________
From: Discussion of research and writing about Virginia history <[log in to unmask]> on behalf of Jon Kukla <[log in to unmask]>
Sent: Tuesday, February 19, 2019 1:52:12 PM
To: [log in to unmask]
Subject: Re: Madison on VA Declaration of Rights
Here's a quick summary of the Philips case (from my Patrick Henry: Champion
of Liberty p 331). -- which became the subject of confusion and inaccurate
memories etc early in June 1788 at the Virginia Convention.
[During the Revolutionary War], with initial encouragement from Governor
Dunmore, Josiah Philips of Princess Anne County, near Norfolk, had led a
band of “insurgents” and “evil-disposed persons” in a series of thefts,
murders, and “atrocious actions” that terrorized the southeastern corner of
Virginia during the early years of the revolutionary war. Governor Henry
and his council offered a $250 reward in 1777 for the capture of Philips
and two lieutenants and later doubled the reward. Early in 1778 the
assembly targeted Philips with a bill of attainder – a legislative act
inflicting punishment upon a person without a judicial trial. Prepared by
Thomas Jefferson, the bill of attainder declared Josiah Philips guilty of
“high treason,” sentenced him to “suffer the pains of death,” and declared
him an outlaw subject to being lawfully captured or killed by any person.
Once Philips was taken into custody, however, Henry, Jefferson, and
Attorney General Edmund Randolph consigned the prisoner to the General
Court, where Philips was convicted in a jury trial and then executed at the
gallows near Williamsburg on November 23, 1778. In short, Josiah Philips
was hanged in accord with a judicial verdict not a legislative act of
attainder."
Back in 1776 both Mason's draft and the committee draft of the Virginia
Declaration of Rights had a clause proscribing in general terms certain
kinds of legislation - i.e,. it described without using the terms
themselves both ex post facto laws and bills of attainder. Henry objected
(as I describe at p 231) and the clause was deleted from the final text of
the Virginia Declaration of Rights. So strictly speaking, the 1778
decision to enact a bill of attainder did NOT contradict the Declaration of
Rights.
--
Jon Kukla
________________
On Tue, Feb 19, 2019 at 1:37 PM John RAGOSTA <[log in to unmask]> wrote:
> Both Kevin and Brent mention the bill of attainder case. This came up when
> Randolph used it as an excuse to attack Henry, but both Henry and Jefferson
> thought that this was not a particularly compelling case of a rights
> violation. I would be surprised if this was motivating Madison, but
> possible....
>
> Historian, Robert H. Smith International Center for Jefferson Studies at
> MonticelloFellow,Virginia Humanities
>
>
> > On February 19, 2019 at 12:12 PM "Tarter, Brent" <
> [log in to unmask]> wrote:
> >
> >
> > The General Assembly's attempt to pass a bill of attainder against Josiah
> > Philips during the Revolutionary War came up in the Virginia Ratification
> > Convention in June 1788. More than a few people regarded it as
> > unconstitutional. Some of the debates, if memory serves me correctly,
> gave
> > inaccurate accounts of that episode.
> >
> > Brent Tarter
> > [log in to unmask]
> >
> > On Tue, Feb 19, 2019 at 11:39 AM John RAGOSTA <[log in to unmask]>
> wrote:
> >
> > > Among the things that Madison was referring to was the effort in
> 1784-85
> > > to adopt a General Assessment to support religion. While this was not
> > > finally adopted, a resolution was approved in the House of Delegates,
> and
> > > it was only defeated through extraordinary efforts by Madison,
> religious
> > > dissenters, and others. Madison would also likely have listed the
> > > incorporation of the Episcopal Church in the same period, but as I have
> > > discussed elsewhere, this was more complicated.
> > >
> > > John Ragosta
> > >
> > > Historian, Robert H. Smith International Center for Jefferson Studies
> at
> > > Monticello
> > > Fellow,Virginia Humanities
> > >
> > >
> > > > On February 19, 2019 at 10:38 AM Leslie Katz <[log in to unmask]>
> wrote:
> > > >
> > > >
> > > > I've discovered that James Madison wrote in 1788 that the VA
> Declaration
> > > > of Rights had been "violated in every instance where it has been
> opposed
> > > > to a popular current." I've tried to find a discussion of the
> particular
> > > > instances that Madison had in mind when he made that statement, but
> > > > haven't been successful.
> > > >
> > > > I'd be grateful for any information as to such a discussion.
> > > >
> > > > Thank you,
> > > >
> > > >
> > > > Leslie Katz
> > > >
> > > >
> > > > --
> > > >
> > > > Leslie Katz
> > > >
> > > > email: lesliek [at] mymts [dot] net
> > > >
> > > > Please visit https://urldefense.proofpoint.com/v2/url?u=http-3A__ssrn.com_author-3D1164057&d=DwIFaQ&c=eLbWYnpnzycBCgmb7vCI4uqNEB9RSjOdn_5nBEmmeq0&r=7vfW5CeANJ0VLfuivlArSQ&m=Vhp3cWoLkyhqgQ51QoV3duAFiw_k4Jkb6UCbYGLTJO4&s=2CecHgg8epbZnz8nIZCcWj2dPiDGOeXksSA7Y4ktkdU&e= to find hyperlinks
> > > >
> > > > to papers that I’ve written on literary and legal topics
> > > >
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