Steilen on the Josiah Philips Attainder and the Institutional Structure of the American Revolution

Matthew J. Steilen, State University of New York (SUNY), Buffalo, Law School, is publishing The Josiah Philips Attainder and the Institutional Structure of the American Revolution in Critical Analysis of Law. Here is the abstract.

This is a study of the Case of Josiah Philips, a militant loyalist who led a terror campaign at the opening of the Revolutionary War and was attainted by an act of the Virginia General Assembly in 1778. In his edition of Blackstone’s Commentaries, St. George Tucker asserted that judges on Virginia’s General Court had refused to enforce the attainder. It has long been thought that Tucker’s claim was false, since Philips was captured before the end of the grace period in the act of attainder. Here I return to the Philips sources from a new perspective, reinvigorate Tucker’s claims, and show how the case continues to be of interest. As I read it, the case is centrally concerned with a constitutional dispute over the role of the general assembly during wartime. In particular, Philips's treatment by the Virginia General Assembly exposed a disagreement about the proper scope of residual judicial powers in a republican assembly. Thomas Jefferson saw the assembly as the proper institutional repository of summary legal processes in wartime, deriving from the king’s obligation to do justice and to cure failures in judicial forms of process. Jefferson was opposed by, among others, Edmund Randolph, who was concerned about the corrupting effect of summary procedures in the assembly on ordinary forms of civil justice, as well as resulting violations of the rights of prisoners under the customary law of war. Although we cannot know for certain, there are reasons to suspect that Virginia judges refused to enforce the provision of the act of attainder requiring that Philips be tried for treason in a court of law if he surrendered before the end of the grace period. Judges might have rejected an 'indictment' framed in the assembly by means of a bill of attainder, on grounds that the defendant had not been given an opportunity to appear and defend himself before the bill passed. This was a classic objection against bills of attainder.

The full text is not available for download from SSRN.