The Josiah Philips Attainder and the Institutional Structure of the American Revolution
46 Pages Posted: 11 Feb 2016 Last revised: 27 Jul 2017
Date Written: 2016
This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker’s claim. This Article draws on period sources to establish what we know about Philips’ activities and to argue for the case’s continuing importance. In particular, the Philips case is a rich illustration of wartime justice and the development of a doctrine of separation of powers. Edmund Randolph, Attorney General and then Governor of Virginia (and the first Attorney General of the United States), regarded Philips’ fate as evidence of the danger of a legislative power to summarily convict for treason. Another Virginia Governor, Patrick Henry, thought such a power essential in a legislature and argued that Philips had received his due as a bandit under principles of international law. It was this suggestion that may have led St. George Tucker to describe Virginia judges as refusing to enforce the act, since there were difficult legal questions about Philips’s status under international law. The Article explores these questions in some detail, and concludes by connecting them to broader changes in American understandings of legislative power and its relation to law.
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