abused in England as instruments of vengeance by a successful over a defeated party. But what institution is insusceptible of abuse, in wicked hands?
"Again, the judge says, 'the court refused to pass sentence of execution pursuant to the directions of the act.' The court could not refuse this, because it was never proposed to them, and my authority for this assertion shall be presently given.
"For the perversion of a fact so intimately known to himself, Mr. Randolph can be excused only by our indulgence for orators who, pressed by a powerful adversary, lose sight, in the ardour of conflict, of the rigorous accuracies of fact, and permit their imagination to distort and colour them to the views of the moment. He was attorney general at the time, and told me himself, the first time I saw him after the trial of Philips, 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, because the first object of the act of attainder was, to bring him to fair trial. Whether Mr. Randolph was right in this information to me, or, when in the debate with Mr. Henry, he represents this atrocious offender as sentenced and executed under the act of attainder, let the record of the case decide.
"'Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and afterwards actually executed.' I appeal to the universe to produce one single instance, from the first establishment of government in this state to the present day, where, in a trial at bar, a criminal has been refused confrontation with his accusers and witnesses, or denied the privilege of calling for evidence in his behalf. Had it been done in this case, I would have asked of the attorney general, why he proposed or permitted it? But, without having seen the record, I will venture, on the character of our courts, to deny that it was done. But if Mr. Randolph meant, only, that Philips had not these advantages, on the passage of the bill of attainder, how idle to charge the legislature with omitting to confront the culprit with his witnesses, when he was standing out in arms, and in defiance of their authority; and their sentence was to take effect, only on his own refusal to come in and be confronted. We must either, therefore, consider this as a mere hyperbolism of imagination, in the heat of debate, or, what I should rather believe, a defective statement by the reporter of Mr. Randolph's argument. I suspect this last the rather, because this point in the charge of Mr. Randolph, is equally omitted in the defence of Mr. Henry. This gentleman must have known that Philips was tried and executed under the common law, and yet, according to this report, he rests his defence on a justification of the attainder only. But all who knew Mr. Henry, know, that when at ease in argument, he was sometimes careless, not giving himself the trouble of ransacking either his memory or imagination for all the topics of his subject, or his audience that of hearing them. No man on earth knew better, when he had said enough for his hearers.
