POLITICALLY speaking, there were two phases in the Revolution in Virginia-the external and the internal conflict. In the first place, all patriots saw that suppression of pro-English feeling was a policy essential to the success of the Revolution; toleration of loyalism was impossible. They were, therefore, entirely united on the question of the war and treated British sympathizers as alien enemies, while at the same time they were themselves divided into conservative and liberal factions on the issue of the Revolution as a political and social development. There was always a large latent element of opposition to the Revolution, which failed to become formidable because of unfavorable circumstances. The county committees early in the contest had prevented the formation of a Tory party by promptly repressing loyalists and driving them from the country. The convention and Committee of Safety more or less warmly cooperated in this work, and the executive created by the new constitution, the council, found that the enforcement of the laws against Toryism was one of its most important labors. In fact, the government had to contend with discontent, malingering, and actual disaffection until the very end of the war.
The executive council took up its task on July 22, 1776. Its duties were much the same as those of the Committee of Safety, though its powers were circumscribed by the written constitution. The council, indeed, was the successor of the colonial council in administration without the judicial and legislative functions of that body. Theoretically the council advised, actually it ruled through the Revolutionary period; the governor acted as the presiding head of a board rather than as an independent functionary. When Patrick Henry was absent, John Page, the lieutenant-governor, took his place without any apparent difference in the running of the governmental machine.
Page and the other councilors formed an experienced and cautious group of advisers, with whom, at first thought, it might have seemed somewhat difficult for Henry to work in harmony. But the fast-taming radical managed to go well in harness with his associates and gave Virginia a fairly capable if uninspired administration. It is needless to go into the general work of the council in any detail, because that was just what ordinarily falls to the lot of an ill-regulated government in war-time. The colonial administration was singularly inefficient and slovenly and the constitution had done nothing to improve matters. The council at first handled military and naval affairs, but later war and navy boards were created by the legislature to relieve the pressure. The only result was that administration became thoroughly disjointed and conflicting.
Among the first problems that faced the councilors on assuming office were the loyalist cases handed on by the Committee of Safety. They heard the appeal of a Tory, Maurice Wheler, from the verdict of Lancaster court, which had pronounced him as "being inimical." They concluded that there was "no reason to approve of the Verdict given," but in the absence of part of the evidence referred the case back to Lancaster for retrial.<a href="#1" class="toolTip" title="Footnote: 1
Council Journal (1776-77), 23."> Like the Committee of Safety, the council was moderate in its policy towards Tories.<a href="#2" class="toolTip" title="Footnote: 2
In fact, the council rather liberally interpreted the laws intended to rid the country of loyalists or keep them in proper subjection; it preferred mild measures. In some cases suspects confined in prison were given their freedom on condition of leaving the State. In other cases, like that of Edward Murfield, who had been sent from Norfolk to Williamsburg under suspicion of disaffection, the accused were discharged on taking a pledge not to assist the enemy.<a href="#3" class="toolTip" title="Footnote: 3
Ibid., 61."> James Walker, Joshua Hopkins, and John Carmont, imprisoned in the public jail at Williamsburg, were released on giving security to stand trial in their respective local courts.<a href="#4" class="toolTip" title="Footnote: 4
Ibid., 36."> Hopkins's trial by the Princess Anne court resulted in a conviction of disaffection, and the council confirmed this decision, but because of the prisoner's age and infirmity allowed him his liberty on giving security for good behavior.<a href="#5" class="toolTip" title="Footnote: 5
Ibid., 97."> It extended protection to the unfortunate Tory, Ralph Wormeley, Jr., who claimed that he had been disturbed by a mob while living on parole on his father's estate in Frederick. The council offered him a guard, and finally the assembly, in May, 1778, released Wormeley from his bond and allowed him to go home.<a href="#6" class="toolTip" title="Footnote: 6
Journal, House of Delegates (May, 1778), 29.">
More serious cases of disaffection also frequently received lenient treatment. John Goodrich, who was rightly considered dangerous, was sent to jail in the inland village of Charlottesville in the company of another loyalist, Andrew McCann, but three other prisoners sent at the same time to Charlottesville were allowed the range of the town limits, as were George Oldener and Charles Henley,<a href="#7" class="toolTip" title="Footnote: 7
Council Journal (1776-77), 27."> convicted of giving intelligence to the enemy and confined at first in the New London jail.<a href="#8" class="toolTip" title="Footnote: 8
Legislative Petitions. Princess Anne."> The council, in general, preferred to relieve Tories from actual confinement and allowed the Augusta county lieutenant to use his discretion in paroling prisoners at Staunton.
That some degree of rigor was necessary in guarding the more dangerous loyalists was illustrated by the Goodriches. Bartlett Goodrich and John Cunningham had been convicted by the Northampton court of violation of the Association; on their appeal the council confirmed the decision and put the prisoners on parole at New London. Goodrich and Cunningham broke their pledge not to go beyond the town limits and were sent to Amherst jail, together with James Parker, who refused to give parole. In August, 1777, John Goodrich, the elder, escaped from Albemarle jail in the company of three other Tory fellow prisoners. The council offered rewards for them and they were soon captured, owing to the difficulty of reaching the seaboard from the far interior. The council sent Goodrich to confinement in Bedford and the others to Will iamsburg.<a href="#9" class="toolTip" title="Footnote: 9
Council Journal (1777-78), 123."> Goodrich complained to the council in October, 1777, that he had been kept in rigid imprisonment for eighteen months, "loaded with irons too heavy for mortal to bear, and exposed to daily insults and reproaches from a people, that he is forced to say are insensible to the feelings of humanity or delicacy. However reprehensible the conduct of your petitioner may be, yet he begs leave to affirm that it has been greatly aggravated by popular report and prejudice." He asked to be permitted to live on parole on one of the plantations allotted for the support of his family.<a href="#10" class="toolTip" title="Footnote: 10
Journal, House of Delegates (October, 1777), 23.">
This Tory family suffered great hardships. The commissioners appointed to manage John Goodrich's estate allowed Margaret Goodrich, in July, 1775, one hundred and fifty acres of land in Nansemond and five hundred acres in Isle of Wight, with the growing crops and forty pounds for slave hire.<a href="#11" class="toolTip" title="Footnote: 11
Council Journal (1776-77), 96."> In October, 1778, Margaret Goodrich reported to the assembly that her allowance was entirely insufficient, since her slaves had been sent to the lead mines and the money granted her was barely sufficient to hire one slave, making it necessary for her to borrow money in order to clothe her children. In the latter years of the war, the Goodriches, as we have seen, were able to retaliate for their sufferings; Bartlett Goodrich proved especially annoying as a privateer. In July, 1778, the council directed the navy board to assist several persons anxious to fit out vessels to cruise against the Goodriches, and Congress sent two ships to lie in wait for them off the Virginia Capes.
Many loyalists underwent examination by the council in the summer of 1776, but thereafter their number lessened, as most persons at all openly disaffected passed into exile in some distant part of the State or left the country. The penalties attending indiscretion taught caution to remaining malcontents. At the same time the attitude of the government towards loyalists grew harsher: it had acted hitherto with comparative mildness, but a change came in the latter part of 1776 with the great reverses suffered by the American army in the North. It had become evident that the States were engaged in a long and exceedingly doubtful struggle, and no place remained for the openly disloyal or passively disaffected. The time had come for forcing all men to make a definite choice of sides. The first session of the general assembly, in October, 1776, witnessed the increase of penalties for disaffection and the passage of an act against treason, which was defined as levying war against the Commonwealth and aiding and comforting its enemies.<a href="#12" class="toolTip" title="Footnote: 12
Herring, ix, 168."> The penalty was death without benefit of clergy and forfeiture of property; the general assembly alone had the pardoning power. The law went on to provide heavy punishments for lesser degrees of disloyalty. Maintenance by publication, word or act of the authority of king or Parliament, was forbidden under pain of fine and imprisonment, not to exceed £ 20,000 and the term of five years.
The government also aimed a final blow at the one genuine class of loyalists in the community, now greatly reduced in number, it is true, but not yet entirely weeded out. The House of Delegates, on December 18, 1776, passed a resolution for the expulsion of the remaining British merchants and directed the council to carry the order into effect. The banished included all natives of Great Britain who had been in partnership with British merchants or acting as their agents at the time Parliament passed the act restraining American trade, with the exception of those who had shown attachment to America or had families in the country. Exiles found in the State after a certain time were to be considered prisoners of war; county courts were required to furnish lists of British subjects within their jurisdictions.<a href="#13" class="toolTip" title="Footnote: 13
Journal, House of Delegates (October, 1776), 103"> The council enforced this drastic measure with moderation; the county courts reported names and it decided whether the resolution applied in their cases. Reports began to come in from the counties in March, 1777. Sometimes the council was stern, as in the cases of James Sterling and James Dunlop, whom it decided were "within the description of persons who are to depart the State unless they can make appear their uniform attachment to the American cause."<a href="#14" class="toolTip" title="Footnote: 14
Council Journal (1776-1777), 355."> But Archibald Gowan and John Dyer, two unfortunates presented by Hanover court as Britons, asked for an extension of time to make preparations for departure and received ample space.<a href="#15" class="toolTip" title="Footnote: 15
Ibid, 342, 399"> Again, when Halifax court presented several men for expulsion, the council decided that they had not been British agents on January 1, 1776, and so were not subject to exile.<a href="#16" class="toolTip" title="Footnote: 16
Ibid, 384"> The Henrico court examined James Buchanan as one of the proscribed, but the council overlooked his partnership with British merchants and adjudged him friendly to the American cause. Yet it was careful to see that orders of expulsion were carried out. It advised the governor, on March 26, 1777, to issue a proclamation to the county-lieutenants ordering them to arrest "denounced" loyalists whose time for removal had expired and send them to the two detention places for the disaffected decided on.<a href="#17" class="toolTip" title="Footnote: 17
Ibid, 384."> Thereupon some of the remaining Britons were carried to these points, though the government did not incline to act rigorously, for it allowed John Miller to go from one town to another and finally to the Augusta Warm Springs for medical treatment. Another prisoner in a detention point, Archibald Bryce, received permission to live in Chesterfield on parole not to leave the county.<a href="#18" class="toolTip" title="Footnote: 18
Council Journal (1777-78), 256.">
Banishment of persons for such technical reasons as those set forth in the December resolution naturally worked a good deal of hardship, sometimes affecting people innocent enough in spirit if guilty by the letter. A case of this kind was that of John Fisher, of Halifax,<a href="#19" class="toolTip" title="Footnote: 19
Legislative Petitions. Halifax."> who had lived in Virginia for more than twenty years, and who, while not engaged in business after 1775, the Halifax court, nevertheless, considered an exile because of debts due his firm from a time as far back as 1765. The council allowed him to live at home on parole and the assembly agreed to his becoming a citizen. It is evident from the records that a considerable number of individuals suffered banishment at this time. In one instance more than eighty Britons, under the leadership of Andrew Johnson, appealed to the council for leave to buy a ship and sail to England. The government willingly acceded and Johnson and his associates secured the vessel, which proved to be slow in arriving. When the Albion was finally ready to go, in May, 1777, the British fleet in the Chesapeake objected to her sailing from a Virginia port. After further delay, the assembly, in June, 1777, granted the Albion passengers permission to leave in British warships or any other craft.<a href="#20" class="toolTip" title="Footnote: 20
Council Journal (177677), 356, 415.">
Public opinion was less lenient to loyalists than the council. A petition came to the assembly from Mecklenberg asking for the expulsion of all British merchants and agents, married or unmarried, and for severe punishments for refusal to take the paper currency in payment of debts.<a href="#21" class="toolTip" title="Footnote: 21
Legislative Petitions."> The assembly, at the May, 1777, session, took a further step for weeding out loyalism by requiring males over sixteen years of age to take an oath of allegiance to "the Commonwealth of Virginia as a free and independent state." It became the duty of county courts under this act to tender the oath and keep accounts of persons swearing and refusing. Non-jurors were to suffer disarming, the loss of the rights of office-holding, voting, serving on juries, suing for debts and acquiring land, and besides were to pay double taxes. The oath was generally administered and taken throughout the State, though with exceptions, and innocent people frequently got into trouble on that account. All through 1778 there was complaint from unfortunates who had inadvertently failed to take the oath and found themselves mulcted in double taxes. The law was so inefficiently advertised in thinly settled communities that many individuals did not take the oath in time because they had never heard of it. Apparently few refused to swear because of actual disaffection.
The case of Joshua Tinsley is fairly typical of the hardships caused by the law. An old man, keeping close at home, he had failed to take the oath because of an impression that the magistrates who tendered it would visit each man's house for that purpose, instead of merely attending militia musters, as they did. On account of this mistake, Tinsley found his tax bill multiplied from £ 3.10.9 1/2 to Mecklenberg (B2781). £ 7.1.7<a href="#22" class="toolTip" title="Footnote: 22
Legislative Petitions. Essex (A5349).">. In some counties where justices were scarce, the inhabitants occasionally had difficulty in finding means to take the oath, and there were accidental non-jurors everywhere. So many people incurred the penalty of double taxation from ignorance of the law that a supplementary act was passed extending the time limit for swearing, but even this did not remedy the trouble.<a href="#23" class="toolTip" title="Footnote: 23
Ibid, Prince William"> Generally speaking, the magistrates seem to have been careless in enforcing the law and in some cases actually negligent of duty. The assembly afterwards increased the punishment for nonjuring to triple taxation, with the date, May 1, 1779, as the final day of grace. This provision increased the distress of innocent non-jurors without reaching the few remaining Tories, who managed to evade the oath despite every effort of the government.
Many patriots suffered for purely technical reasons. Joseph Holt, of Charlotte, was fined triple taxes, though he had served in the Continental army; he had taken the oath a few days after the time expired.<a href="#24" class="toolTip" title="Footnote: 24
Ibid. Charlotte (A3993)."> John Nelson, of Charlotte, came to take the oath before a magistrate, who had no form, but told him that willingness to subscribe was sufficient. Nelson accordingly went home satisfied, only to discover later that he was subject to triple taxation. In the fall of 1779 the assembly found it expedient to grant relief to the large number of accidental non-jurors writhing under their fines. The extra tax penalty was repealed, and people who had paid it and who were also good Americans were to be reimbursed out of their future taxes.<a href="#25" class="toolTip" title="Footnote: 25
Hening, x, 194.">
While the assembly by various acts and tests drove out of Virginia the class not in sympathy with revolution, it by no means succeeded in suppressing the spirit of disaffection. It was, indeed, wise mercilessness to expel the Scotchmen who might have acted otherwise as the nucleus of a hostile faction, but such a policy could not prevent the spread of discontent among the native population, part of which, though nominally patriotic, had no enthusiasm for the cause. By the summer of 1777 the early zeal had pretty well cooled everywhere, and the length and expense of the war were having their effect on the faint-hearted, who murmured against the heavy taxes. In July it was reported to the council that emissaries of the enemy, sometimes in the guise of commissary officers, were going around offering extravagant prices for commodities, in order to depreciate the currency, and discouraging the people by injurious reports of the condition of Washington's army.<a href="#26" class="toolTip" title="Footnote: 26
Council Journal (1777-78), 37."> On the Eastern Shore, cut off from the mainland and open to British raids, many of the negroes had run away to the enemy and some of the white inhabitants were suspected of treasonably aiding them. To remedy this the council advised the removal of suspects from the Eastern Shore to the interior of the State, and it further directed the Norfolk and Princess Anne authorities to send the disaffected from those counties to Williamsburg except such as might be prosecuted at home under the treason law. Disaffected or criminal inhabitants assisted the enemy's privateers in plundering along the Chesapeake shores. In September, 1777, Captain Barron, of the Virginia navy, captured one Dunbar, of Gloucester, who had made himself notorious as a freebooter.<a href="#27" class="toolTip" title="Footnote: 37
Virginia Gazette, Octobers, 1777."> The council was driven in August, 1777, under the immediate fear of an English invasion, to take further steps against the disaffected. It issued an order to militia commanders at all stations to require persons refusing to take the oath of allegiance, or "suspected of evil designs," to remove ten miles from any camp, garrison, or place where the enemy might be. The order affected a good many people, and the assembly, at its meeting in the fall, fearing that the executive had acted unconstitutionally, passed a special act of immunity. As the expected invasion failed to materialize, the council rescinded the order and permitted those who had been driven from their homes to return on giving parole. At the same time a number of persons arrested on the Eastern Shore and sent to Williamsburg were released on taking the oath.
Cases of disaffection continued to be fairly numerous in 1778. Edward Ker, a justice of Accomac County, was removed from his office on the charge of being inimical, and William Montague, of Lancaster, was refused a commission as justice on similar grounds.<a href="#28" class="toolTip" title="Footnote: 28
Council Journal (1777-78), 217."> One Yerby, a Lancaster militia captain, had the audacity to deliver a French vessel to British warships in the Rappahannock, though his company had been mustered for its protection. The council ordered the arrest of the offenders and reimbursed the shipmaster. Traitors like Yerby occasionally ran the risk of violence. Robert Parker, in May, 1778, complained to the assembly that on account of an unjust suspicion of his being inimical the militia had burned his house and a courtmartial had sentenced him to five years' imprisonment.<a href="#29" class="toolTip" title="Footnote: 29
Journal, House of Delegates (May, 1778), 10."> The government pardoned him. The council, indeed, continued to treat offenders with considerable leniency. Prisoners, instead of being confined in jail or forced to leave the State, were frequently paroled within certain limits. The assembly, more susceptible to popular opinion, was more inclined to rigor. As if the laws were not already severe enough, the House of Delegates, in October, 1778, considered a bill "to expel from the Commonwealth, and to prevent in future the return of persons who have shewn themselves inimical to America."<a href="#30" class="toolTip" title="Footnote: 30
Journal, House of Delegates (October, 1778), 9."> This measure had been immediately suggested by protests from Norfolk and the neighboring counties declaring that there were still people living in the State who considered themselves subjects of the king and asking for their expulsion. The bill passed a second reading and then failed.
The House of Delegates heard the appeal for admission to the State of a number of persons who had come from New York to Hampton in a flag-of-truce vessel. Most of them had been abroad and now wished to return to Virginia. Charles Mortimer, who had gone to England in 1775 and who claimed to have befriended American prisoners there, was allowed to enter the State on taking the oath of allegiance. Alexander Trent, returned from being educated abroad, and Elizabeth Muir were also admitted. Other immigrants or returning Virginians who were considered "unfriendly to the rights and liberties of America" failed to secure the same privilege.<a href="#31" class="toolTip" title="Footnote: 31
Ibid., 40."> Such exclusion may seem harsh, but the policy of banishing and keeping out loyalists was pursued more rigorously in other States. Massachusetts even wished to cooperate with Virginia in the exclusion of each other's loyalist exiles, but the scheme came to nothing.
The year 1779 saw the beginning of the saddest, and to us, after the long lapse of time, the most regrettable feature of the Revolution general confiscation. Hundreds of estates in all parts of Virginia, comprising many thousands of acres, had been left vacant by their refugee owners, who in most cases were Britons that had left the country at the outbreak of the war, or were Virginians living abroad and represented by relations or agents. These estates were now condemned by escheators and sold for amounts of depreciated currency representing a very small value in specie. The forfeitures, as in the case of almost all similar seizures, brought in little to the State, but greatly benefitted purchasers, and there can be small doubt that much corruption and injustice were practiced and that many estates were wrongfully condemned and sold. Occasionally confiscation had occurred early in the Revolution. Thus, Dunmore's property was sold in 1776, and the council, on November 16, 1776, heard the appeal of James Parker from a decision of the Accomac commissioners' court directing the sale of his estate and condemning him to imprisonment during the war, an unusually severe sentence. The council confirmed the decision and sent Parker to New London on parole, as he had accepted a commission from Dunmore.<a href="#32" class="toolTip" title="Footnote: 32
Council Journal (1776-77) 233."> Property seized before this time had been chiefly marine, taken under direction of Congress, though ordinances of the convention sanctioned the forfeiture of estates of persons aiding the enemy. Few estates, however, were confiscated under this authority, and forfeiture was not immediately adopted by the permanent government when it came into power late in 1776. An act of 1777 put the lands, slaves, stock, and other property of British subjects, including debts, into the hands of commissioners to manage in the interest of the State.<a href="#33" class="toolTip" title="Footnote: 33
Hening, ix, 377."> Debts due British subjects might be paid into the treasury and the government would give discharge. This act affected hundreds of people, especially the debt clause. Planters stood indebted to British firms for great amounts, and many of them took advantage of the opportunity to rid themselves of their obligations in depreciated paper. The government made little by these transactions and at the same time laid up trouble for itself against the time when England demanded a reckoning for its merchants. Afterwards the act was repealed, probably because it was seen to be little better than repudiation.
The assembly, in May, 1779, passed from guardianship to confiscation. The act "concerning escheats and forfeitures"<a href="#34" class="toolTip" title="Footnote: 34
Ibid., x, 67."> voided the titles of all property of aliens held by commissioners and directed the government to institute forfeiture proceedings. One month was allowed native claimants of such estates to file their pleas, after which limit the old titles were forever barred, though claims might be advanced on the money proceeding from the property sales. The act also defined British subjects, who were all Britons living outside the United States on April 19, 1775, - the date of Lexington, - and who had not since then proved their allegiance to the United States; all persons residing in the country at that time who had adhered to the enemy or who had joined them. Immediately after the confiscation measure, the assembly aimed what was intended as a finishing stroke at the few loyalists who continued to linger in Virginia. The House of Delegates, in June, 1779, passed a resolution directing the governor to banish all Tory refugees and take means to prevent the return of persons designated as British subjects.<a href="#35" class="toolTip" title="Footnote: 35
Journal, House of Delegates (May, 1779), 68."> The House further considered, but failed to pass, a resolution for disarming "all persons inimical or disaffected to the liberties of America," which directed local committees to search for suspects and tender them a stringent oath.<a href="#36" class="toolTip" title="Footnote: 36
Executive communications, 1779.">
The essential injustice of confiscation as a policy and its cruel hardships soon became apparent. As long as commissioners held estates in trust, owners might hope to get them back some day, even though sadly plundered and depreciated, but with the condemnation and sale of property all chance of recompense practically disappeared; the needy State would not be able for years to pay to owners accidentally sold out the money obtained from sales, which were beggarly amounts at best. Escheators took great license in their proceedings; every estate deserted by its owner for any reason whatever was liable to seizure and forfeiture, and many innocent persons suffered loss. One case illustrates a number. Lucy Ludwell, a Virginia woman, while in England, had married John Paradise, a Greek. The couple continued to live in England and confided the care of Mrs. Paradise's Virginia estate to an agent. Paradise, not having been naturalized in England, was not a Briton, but nevertheless his property in Surry and York Counties, Virginia, was condemned, though the court had not found him a British subject.<a href="#37" class="toolTip" title="Footnote: 37
Legislative Petitions. Surry."> An inquisition in James City found both husband and wife to be British subjects and condemned their property in that county.
Notwithstanding many confiscation proceedings and many sales, the State derived small profit, partly because land auctions conducted in war-time in a country without currency could hardly bring in a large return, and partly because the government allowed obstacles to be put in the way of forfeiture<a href="#38" class="toolTip" title="Footnote: 38
Executive communications, 1779."> and seemingly made little effort to prevent fraud in the conduct of the sales. The chief effect of confiscation, so futile as far as the State was concerned, was to pass over to astute neighbors abandoned lands and lands of uncertain ownership at purely nominal prices; it is doubtful whether the returns in badly depreciated paper were worth the trouble of conducting sales. If the government had required payment in articles of value, like tobacco and provisions, some good would have resulted; as it was, many people, hardly a handful of whom were active enemies, lost their Virginia lands and thereby paved the way for the rise of numerous small farmers to affluence. This was one of the most important social results of the Revolution.
In the early years of the war the Virginia government was actively engaged in suppressing loyalism, but it was not called on to deal with insurrection. The State was in no great danger of internal disturbance so long as it remained uninvaded by the British. From the fall of Dunmore to 1780 the council was disturbed by only one instance of disaffection serious enough to threaten any military results. This was in the celebrated case of Josiah Philips.<a href="#39" class="toolTip" title="Footnote: 39
American Historical Review, r, 445, et seg."> There was little noteworthy about the man. He was a laborer living in Lynhaven Parish, Princess Anne, the one really Tory county. Philips himself had little concern with political issues; he was an ignorant and brutal man who took advantage of the opportunity offered by disturbed conditions to plunder his neighborhood, and if it were not for the fact that the government regularly attainted him of treason he might be passed over with a few words.
Philips accepted a commission from Dunmore early in the war, because British commissions were going begging and might serve as warrants for miscellaneous acts of violence. He gathered a small band of followers, whites and runaway slaves, and began to plunder the isolated and swamp-covered country on the border of Virginia and North Carolina. By the summer of 17'77 he had become so notorious that John Wilson, the much-tried Norfolk county-lieutenant, reported that he and a dozen others were threatening people and doing mischief.<a href="#40" class="toolTip" title="Footnote: 40
Council Journal (1777-78), 19."> The council thereupon, on June 20, 1777, advised the governor to offer a reward for his capture. Philips was arrested and the government paid the reward.
But he either escaped or was released and soon made himself a genuine nuisance. His band now included about fifty men, a force of sufficient size for plundering a thinly settled community. The council, on May 1, 1778, directed the authorities and militia in Princess Anne, Norfolk, and Nansemond to cooperate for his capture. Militia was ordered out but failed to arrest the criminals, and Wilson advised the removal of certain families in league with them. The Philips gang was accused of committing robbery, arson, and murder. The council sent Wilson's letter to the assembly and ordered a company of regular troops to the scene of disturbance.<a href="#41" class="toolTip" title="Footnote: 41
Council Journal (1777-78), 860."> The House of Delegates was so moved by the letter that it feared that an insurrection was about to break out in the Norfolk region, known to be lukewarm or hostile towards the Revolution. Consequently, it decided, on May 28, 1778, that Philips and his followers were guilty of treason and should be attainted if they did not surrender before a certain date. Jefferson undoubtedly inspired these proceedings, the precedent for which, like so many other Revolutionary precedents, came from the English Civil War. The bill of attainder passed the House and Senate without opposition; it named June 30, 1778, as the last day of grace.<a href="#42" class="toolTip" title="Footnote: 42
Hening, x, 463.">
Philips did not surrender, but was hunted down by the State troops. Several of his band were captured and several others killed,<a href="#43" class="toolTip" title="Footnote: 43
Council Journal (1777-78), 310."> among the latter one Will, a negro, who had distinguished himself for ferocity. Will was shot under the attainder, which, of course, made the attainted outlaws, but Philips, when captured, was not immediately executed as might have been expected, since no trial was necessary. Instead of proceeding under the attainder, the government indicted him in the general court, on October 23, 1778, for robbery of twine and hats; two of his associates were tried with him for the same offense. All three were found guilty of felony, condemned to death, and executed on December 4, 1778.
There was nothing very remarkable about Philips's attainder. The assembly claimed and exercised wide powers, and the treason laws allowed large scope. Probably when the government recovered from its fright and realized that Philips was only an ordinary robber instead of a traitor seeking to light the torch of loyalist revolt, it preferred to use ordinary legal measures in place of the attainder.<a href="#44" class="toolTip" title="Footnote: 44
Tucker's Blackstone, i appendix, 293."> The point about the case that has excited comment is its curious sequel. In 1788, when the Virginia Convention was debating the adoption of the Federal Constitution, Edmund Randolph arose one day and declared that Josiah Philips had been the victim of an act of attainder, under which he had actually suffered death.<a href="#45" class="toolTip" title="Footnote: 45
American Historical Review, i, 449."> This astounding statement came from no less a person than the former attorney-general, who had conducted the prosecution of Philips in the general court on the charge of robbery. Stranger still, Patrick Henry next day defended the execution of Philips under the attainder, forgetting the regular trial. Randolph's motive in making his statement is evident, for he was endeavoring to discredit the Revolutionary government of Virginia in the interest of the new Federal plan by displaying its tyranny and arbitrary methods. He probably counted on Henry's forgetfulness of the facts, and if so he calculated well. The former governor's memory had failed him as to the trial, but it was less at fault than might appear. Many irregularities had occurred in connection with Philips. Will had been hunted down like a mad dog under the attainder and several others suffered a like fate. A slave named Bob, belonging to the estate of James Wilson, had been tried in Norfolk court in August, 1778, convicted of treason and robbery and executed; he was in all probability a member of the Philips gang.<a href="#46" class="toolTip" title="Footnote: 46
Legislative Petitions, Norfolk (B42223)."> It may well be that Henry confused these cases with that of Philips himself.
The destruction of this band quieted the uneasy southeast for a time. The sternness of the government and its evident intention to proceed to extremities in the case of actual insurrection overawed any malcontents who might have been disposed to raise the British standard.
At the close of Patrick Henry's administration, the government under the new constitution was firmly established. While the law was undergoing radical change at the hands of Jefferson, administration did not differ much from the colonial period. This continuance of tradition was due to the council, which conducted the routine business conservatively and intelligently. Unfortunately, it did not realize that a reorganization of the whole administrative system was essential for a government engaged in carrying on a long and exhausting war.