An Act for the better regulating and disciplining the Militia.
I. WHEREAS it is necessary, in this time of danger, that the militia of this colony should be well regulated and disciplined. Be it therefore enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General assembly, and it is hereby enacted by the authority of the same, That from and after the passing of this act every county-lieutenant, colonel, lieutenant-colonel, and other inferior officer, bearing any commission in the militia of this colony, shall be an inhabitant of, and resident in the county of which he is or shall be commissioned to be an officer of the militia.
II. And be it further enacted, by the authority aforesaid, That the lieutenant, or in his absence the chief officer of the militia, in every county, except the county of Hampshire, shall list all male persons above the age of eighteen years, and under the age of sixty years, within this colony (imported servants excepted) under the command of such captain as he shall think fit, within one month after the passing of this act.
III. Provided always, That nothing herein contained shall be construed to compel any person hereafter mentioned to muster, that is to say, such as are members of the council, speaker of the house of burgesses, receiver-general, auditor, secretary, attorney-general, clerk of the council, clerk of the secretary's office, ministers of the church of England, the president, masters or professors, and students of William and Mary college, the mayor, recorder, and aldermen of the city of Williamsburg, and borough of Norfolk, the keeper of the public goal, any person being bona fide an overseer over four servants or slaves, being tithables, and actually residing on the plantation where they work, and receiving a share of the crop or wages for his care and pains in looking after such servants and slaves; any miller having the charge and keeping of any mill, and founders, keepers, or other persons employed in or about any copper, iron, or lead mine, who are all hereby exempted from being inlisted or any wise concerned in the militia during the time they shall continue in such station or capacity.
IV. And be it further enacted, by the authority aforesaid, That every person so as aforesaid inlisted (except free mulattoes, negroes, and Indians) shall be armed in the manner following, that is to say: Every soldier shall be furnished with a firelock well fixed, a bayonet fitted to the same, a double cartouch-box, and three charges of powder, and constantly appear with the same at the time and place appointed for muster and exercise, and shall also keep at his place of abode one pound of powder and four pounds of ball, and bring the same with him into the field when he shall be required: And if it shall be certified to the court of any county, by order of the court-martial, that any soldier inlisted in such company is so poor as not to be able to purchase the arms aforesaid, then such court shall, and they are hereby required, immediately to depute some person to send for the same to Great Britain by the first opportunity, and to levy the charge thereof in the next county levy; which arms so to be sent for shall be marked with the name of the county; and if any person shall presume to buy or sell any such arms, so provided as aforesaid, then, and in such case, every person so buying or selling shall forfeit and pay the sum of six pounds, to be recovered, with costs, by information, before the court of the county to which the arms shall belong, or in the court of the county wherein the offender or offenders shall reside, one moiety whereof shall be to and for the use of the county to which the arms shall belong for the purchasing other arms, and the other moiety to the informer: And all arms purchased by any county and delivered to any poor soldier, as aforesaid, shall, on his death or removal out of the county, be delivered to the chief officer of the militia in the county, or to the captain of the company to which such poor soldier did belong, to be by such officer delivered to any other poor soldier that the commanding officer of the said county shall adjudge unable to provide himself with arms, as aforesaid.
V. And be it further enacted, by the authority aforesaid, That the several persons herein before exempted from mustering (except ministers of the church of England, the president masters or professors, and students of William and Mary college, the keeper of the public gaol, overseers and millers, and all workers in any mine whatsoever) shall provide arms for the use of the county, city, or borough wherein they shall respectively reside, in the following manner, that is to say: Each counsellor, not being an officer of the militia, four compleat sets of arms, as is herein before directed for a soldier; the speaker of the house of burgesses, not being an officer of the militia, four compleat sets as before; the receiver-general, auditor, and secretary, not being a counsellor or officer of the militia, each four compleat sets, as before; the attorney-general, not being an officer of the militia, two compleat sets as before; the clerk of the council and clerk of the secretary's office, not being officers of thee militia, each two compleat sets, as before; the mayor, recorder, and alderman of the city of Williamsburg and borough of Norfolk, not before by this act obliged, and not being officers of the militia, each two compleat sets, as before, And if they shall fail or refuse so to do, within twelve months after the passing of this act, then it shall and may be lawful for the several courts of the counties wherein the persons before mentioned shall reside, and they are hereby impowered and required to levy the value of the same on each of them respectively.
VI. Provided always, That nothing herein contained shall be construed to oblige any of the persons exempted from mustering, as aforesaid, who have already provided arms for the use of the county, city, or, borough wherein they respectively reside, according to the directions of the act made in the twenty ninth year of his present majesty's reign, intituled, An act for the better regulating and training the militia, to provide any other arms for the use aforesaid.
VII. And be it further enacted, by the authority aforesaid, That all such free mulattoes, negroes, and Indians as are or shall be inlisted, as aforesaid, shall appear without arms, and may be employed as drummers, trumpeters, or pioneers, or in such other servile labor as they shall be directed to perform.
VIII. And for the better training and exercising the militia, and rendering them more serviceable, Be it further enacted, by the authority aforesaid, That every captain shall, once in three months, and oftner if thereto required by the lieutenant or chief commanding officer in the county, muster, train, and exercise his company, and the lieutenant or other chief commanding officer in the county shall cause a general muster and exercise of all the companies within his county, to be made in the months of March or April, and September or October, yearly; and if any soldier shall, at any general or private muster, refuse to perform the command of his officer, or behave himself refractorily or mutinously, or misbehave himself at the courts martial to be held in pursuance of this act, as is herein after directed, it shall and may be lawful to and for the chief commanding officer, then present, to cause such offender to be tied neck and heels, for any time not exceeding five minutes, or inflict such corporal punishment as he shall think fit, not exceeding twenty lashes.
IX. And every captain, or in his absence the lieutenant, shall duly make a list of all the persons upon his muter-roll who shall be summoned and do not appear at any of the said musters, armed, and with powder and ball as by this act is directed, and return the same, with the names of all officers who shall be absent, to the next court martial; and every captain shall have power to appoint a clerk to his company, who shall be sworn by such captain well and truly to execute his said office, and such clerk shall keep the muster-roll and attend all musters with the same, and shall be exempted from mustering, but shall appear with arms, and powder, and ball, as is before (directed at all such musters: And further, it shall and may be lawful for the lieutenant or other chief officer of the militia in the county, to order all soldiers inlisted therein to go armed to their respective parish churches.
X. And be it farther enacted, by the authority aforesaid, That it shall and may be lawful for the field officers and captains of every county, or the major part of them, whereof the county-lieutenant, colonel, lieutenant-colonel, or major, shall be one, and they are hereby required to meet at the court house of their counties respectively, the day next following the general muster in September or October every year, if fair, if not, the next fair day, then and there to hold a court martial, which court shall have power to adjourn from day to day, and to enquire of the age and abilities of all persons inlisted, and to exempt such as they shall adjudge incapable of service, and of all delinquents returned by the captains for absence from musters or appearing without arms, powder, or ball; and where any person is returned a delinquent to a court-martial and shall not be able, by reason of sickness or other real disability, to attend such court to give in his reasonable excuse for such his delinquency, it shall and may be lawful for the succeeding court-martial to be held for such county, city or borough, wherein such person shall be returned a delinquent, upon such reasonable excuse then offered, to remit such fine or fines levied by the proceeding court-martial on such person; and such court shall and may, and they are hereby impowered to administer an oath or oaths to any person or persons for their better information in the premisses, and to order the fines inflicted by this act, not otherwise directed, to be levied upon all delinquents who shall not make out some just excuse, for not performing their duty, and to order and dispose of all such fines for buying drums and trophies for the use of the militia of the county, and for supplying the militia of the said county with arms: And the said courts shall have full power, and are hereby required to keep a register of all their proceedings, and for that purpose to appoint a clerk, and to administer an oath to such clerk well and faithfully to execute his office, and to allow him such salary for his service, out of the said fines, as they in their discretion shall think reasonable; and after the holding of every such court the clerk shall make out copies of all their orders and deliver the same, within one month next following the said court, to the sheriff of the county, who is hereby required to demand and receive the money therein charged of the person made chargeable therewith, and in case of non-payment, on or before the tenth day of April then next following: to levy the same by distress and sale of the goods of the person refusing, according to the directions of the laws now in force enabling the sale of goods distrained for rent; and where any delinquent shall remove out of the county before he hath paid and satisfied all fines laid on him in pursuance of this act and shall not leave sufficient effects in the county to satisfy the same, then the said clerk shall send copies of the said courts orders against such delinquents to the sheriff of the county into which he or they shall be removed, and such sheriff is hereby impowered and required to collect, levy and account for the same in the manner herein before directed.
XI. And be it further enacted, by the authority aforesaid, That the several persons herein after mentioned failure to do their duty in the manner by this act directed shall forfeit and pay the several sums following respectively, that is to say: The lieutenant of any county or the chief commanding officer there failing to appoint a general muster in the months of March or April, and another in the months of September , or October, in every year, not having a reasonable excuse, shall for every such failure forfeit and pay the sum of twenty pounds, every county lieutenant, colonel, lieutenant-colonel, and major failing to appear at every such general muster, or at the court-martial shall forfeit and pay ten pounds for every such failure, every captain who shall fail to muster and exercise his company four times a year, or oftener if thereto required, shall forfeit and pay forty shillings for every time he shall so fail to muster and exercise, and every captain failing to appear at every general muster and court-martial shall forfeit and pay five pounds for every such failure; every lieutenant who shall fail to appear at any muster shall forfeit and pay twenty shillings for every such failure; and every ensign ten shillings for every such failure; and every captain, or in his absence the lieutenant, failing to return a list of the persons who shall not appear at musters, or shall appear without arms, powder and ball, shall forfeit and pay ten pounds for every such failure; every clerk failing to appear with arms, powder and ball, as is before directed, shall pay ten shillings for every such failure; every soldier refusing to serve as a serjeant, corporal or drummer, being thereto required by his captain, shall pay five shillings for every muster he shall so re- fuse; and every soldier appearing at muster without a firelock well fixed, and a bayonet fitted to the same, shall pay three shillings for every such failure, and for appearing at muster without a double cartouch-box shall pay one shilling, and without three charges of powder shall pay two shillings for every such failure, and every soldier failing to appear at muster shall forfeit and pay ten shillings for every such failure. Provided, That no person be fined above six times in the year for any particular default. Every soldier ordered to go armed to church neglecting so to do shall pay five shillings for every such failure; and every clerk of a court-martial failing to deliver the orders of the court-martial to the sheriff or sheriffs within the time before limitted shall forfeit and pay fifty pounds.
XII. And be it further enacted, by the authority aforesaid, That every officer of the militia within this colony shall at all times that he acts on duty at any private or general muster, appear well armed, in the following manner, that is to say: Every county lieutenant, colonel, lieutenant-colonel, major with a sword; and every captain and lieutenant with a firelock and a sword, and every ensign with a cutting-sword; every corporal and serjeant with a cutting-sword and halbert, under the penalty of ten shillings for every time that every such officer shall appear without such arms; all which fines shall be levied by the court-martial directed to be held by this act in such county, city or borough wherein such officers shall act as an officer, and be appropriated to the same uses as is before directed for the appropriation of the fines levied on the soldiers of the militia appearing unarmed.
XIII. Provided nevertheless, That every such officer shall have twelve months allowed him, after his promotion to such office, for the furnishing the arms as aforesaid, but in the mean time shall appear with such of the said arms as he already hath: And the same fines and penalties shall be paid by the officers and soldiers of the militia in the city of Williamsburg and borough of Norfolk, in case of their failing or refusing to do and perform the several services, and to appear armed and with powder, in the same manner as is by this act required of the officers and soldiers of the militia of the several counties.
XIV. Provided also, and it is hereby enacted, That twelve months shall be given and allowed to each soldier, not already inlisted, to furnish and provide himself with arms and ammunition according to the directions of this act, and that no soldier be fined for appearing without or not having the same at his place of abode until he hath been inlisted twelve months as aforesaid, so as such soldier do appear at all musters during the said twelve months with such arms as he hath and is already furnished with: And if any soldier shall appear at any muster not armed, and without ammunition according to the directions of this act, it shall and may be lawful for the captain of the company to which such soldier shall belong to examine such soldier, upon oath, whether he hath any, and what arms and ammunition he really hath of his own property, and if on such examination it shall appear that such soldier hath any arms or ammunition of his own property, and hath not brought the same, or so much thereof as this act requires, to such muster, he shall be liable to the penalties inflicted by this act altho' he hath not been inlisted twelve months; and where any person inlisted, pursuant to this act, in any county, shall remove to another county, the time for furnishing himself with arms and ammunition shall commence from the time of his being first inlisted in the county from whence he removed.
XV. And for an encouragement to every soldier to provide and furnish himself according to the directions of this act, and his security to keep his arms and ammunition when provided. Be it further enacted, by the authority aforesaid, That the arms and ammunition provided and kept in pursuance of this act be free and exempted at all times from being impressed upon any account whatsoever, and likewise from being seized or taken by any manner of distress, attachment, or writ of execution, and that every distress, seizure or execution made or served upon any of the premisses be unlawful and void, and that the officer or person who presumes to make or serve the same be liable to the suit of the party grieved, wherein double damages shall be given upon a recovery; and every person going to, attending at, and returning from muster shall be priviledged and exempted from arrests, and from being served with any other process in any civil action or suit.
XVI. And be it further enacted, by the authority aforesaid, That if any exempted overseer or miller shall presume to appear at any muster, or in any muster-field whatsoever on the day on which such muster shall be appointed, the party so offending shall, for every such offence, forfeit and pay twenty shillings, to be assessed upon him by the next court-martial, upon a certificate of the offence to them made by the captain or chief officer present at such muster, or the information, on oath, of any person whatsoever, and levied, accounted for, and appropriated in the same manner as the other fines ordered by the court-martial; and that the fines and penalties incurred by infants and servants for the breach or neglect of their duty in any particular service by this act required of them, shall paid by the parent, guardian, or master, respectively; and if the breach or neglect of such servants is, not occasioned by their masters influence or direction, then the fines incurred by them and so paid by the master, shall be repaid to the master by the further service of such servant, after the time they are bound to serve is expired, which shall be determined by the county court, or the court of Hustings in the city of Williamsburg or borough of Norfolk, wherein either of the parties reside, upon complaint made to them thereof by such master.
XVII. And be it further enacted, by the authority aforesaid, That if any sheriff shall refuse to receive the; orders of any court martial offered to him, by virtues of this act, or to collect and levy the fines herein mentioned, such sheriff upon a motion and complaint thereof, made to the county court or general court, shall he fined for every such refusal, one hundred pounds, to be appropriated in the same manner as the other fines last mentioned: And if any sheriff shall take upon him such collection, or receiving the said orders shall fail to account for and pay what he shall have received by virtue thereof to the receiver, to be appointed for that purpose by the court martial, deducting six per cent, only for his commission in collecting and receiving, upon a motion or complaint made against him by the said receiver or the commanding officer of the militia, to the county court or general court, such court shall give judgment and award execution against him, his executors or administrators, for the same. Provided, That such sheriff, his executors or administrators, have ten days previous notice of such motion. And if any receiver heretofore appointed or hereafter to be appointed, hath failed or shall fail to account with the court martial when required, or to apply the money by him received or to be received, as he hath been or shall be directed by the court martial, that then upon a motion or complaint made to the county court or court of hustings, in the city of Williamsburg or borough of Norfolk, respectively, by any officer of the militia against such receiver, such court shall give judgment and award execution against him, his executors or administrators for the same, and cause the money to be appropriated to the uses directed by the court martial.
Provided, That such receiver, his executors or administrators, have ten day previous notice of such motion, And if any sheriff hath heretofore failed to account for and pay all militia fines collected by him, upon a motion or complaint made by the receiver or commanding officer of the militia of the county whereof he is or hath been sheriff to the general or county court, such court shall give judgment and award execution against him, his executors or administrators for the same. Provided, Notice be given to such sheriff, his executors or administrators, as aforesaid.
XVIII. And be it further enacted, by the authority aforesaid, That every commission officer in the militia, shall, before he acts under or executes any such commission in the court of his county, take the oaths appointed by law to be taken, instead of the oaths of allegiance and supremacy, the abjuration oath, and subscribe the same with the test; and that every county lieutenant, colonel, lieutenant-colonel, major, and captain, at the time of holding every court martial, before they hold the same, shall take the following oath, which shall be first taken by the presiding officer then present, and then be by him administered to the rest of the officers, to wit,
I A. B. do swear, that I will do equal right and justice to all men according to the act of Assembly, for the better regulating and disciplining the militia. And every person accepting a commission in the militia, who shall neglect or refuse to qualify himself to act under the same, by taking and subscribing the oaths and test before mentioned, within three months after receiving his commission, every such person shall forfeit and pay the sum of five pounds.
XIX. And be it further enacted, That the fine by this act imposed on the lieutenant or chief commanding officer of the militia for neglecting to order general musters, shall be one moiety to the informer and the other to and for the use of the county for providing arms, and shall and may be recovered with costs, by action of debt or information, in any court of record.
XX. And be it further enacted, That if there be no court martial held the penalties herein before inflicted on officers not attending such court martial or the general muster, shall be recovered against the officers failing to attend or appear, and collected in the same manner, as is herein before directed for recovering and collecting the fines and penalties laid on officers failing to appoint general musters.
XXI. And be it further enacted, by the authority aforesaid, That every adjutant for the time being, with one servant and their horses, shall be exempt from the payment of ferriages, at all public and other ferries within this colony, and that the respective ferry keepers shall give them and their servants and horses immediate passage at all such ferries, as in the case of public expresses, any law or custom to the contrary notwithstanding.
XXII. And be it further enacted, by the authority aforesaid, That all and every other act and acts, and every clause and article therein contained for the settlement and regulation of the militia, or any other matter or thing within the purview of this act, shall be and is hereby repealed and made void to all intents and purposes whatsoever.
XXIII. Provided nevertheless, and be it enacted, by the authority aforesaid, That nothing herein contained shall be construed so as to discharge or excuse the militia established by the act of Assembly made in the twenty-ninth year of his present majesty's reign, intituled, An act for the better regulating and training the militia, from conforming to the several rules and performing the several duties in the said act directed; but that the said militia shall continue on such establishment until they are inlisted according to the directions of this act, and that the several penalties incurred by any offender or delinquent in the before recited act shall be enquired into, and the fines thereupon arising assessed by the court martial appointed to be held in pursuance of this act, and that all such fines shall be levied on such offenders or delinquents, and appropriated and accounted for in the same manner as is herein before directed for any other fines or penalties and that the several county courts shall have full power and authority to levy in their respective county levies the charges and expences for all such arms as have been, purchased or sent for to Great-Britain, by the directions of the before recited act.
XXIV. Provided always, That nothing in this act contained shall extend or be construed to extend to the inhabitants of the city of Williamsburg or borough of Norfolk, so as to oblige them to muster or serve in the militia out of the said city or borough, but that such inhabitants shall be inlisted and trained in manner as is directed by the acts of Assembly made in the ninth and twelfth years of the reign of his late majesty king George the first, intituled. An act for enlarging the jurisdiction of the court of hustings in the city of Williamsburg within the limits thereof: And an act to prevent the inhabitants of the borough of Norfolk from being compelled to serve in the militia of the county of Norfolk, and to exempt sailors or seamen in actual pay on board any ship or vessel from serving in the militia, any thing: in this act to the contrary notwithstanding. And whereas the method by the said recited acts prescribed for fining delinquents in the militia of the said city or borough hath been found inconvenient, for remedy whereof.
XXV. Be it further enacted, by the authority aforesaid, That from and after the passing of this act, the colonel, major, and captains of the militia of the said city of Williamsburg and borough of Norfolk, or the major part of them, whereof the colonel or major shall be one, shall, and they are hereby impowered and required to hold a court martial at the court houses of the said city and borough respectively, in the same manner and for the same purposes as the courts martial are by this act directed and appointed to be held the counties, any thing in the said recited acts to contrary notwithstanding.
XXVI. And be it further enacted, That the colonel or chief commanding officer of the said city or borough, shall not by virtue of the two last recited acts be suffered to inlist in the militia of the said city or borough any persons that are officers of the militia in the counties wherein such city or borough shall lie.
XXVII. And for establishing a better method of appointing patrollers, and for declaring their duty therein. Be it enacted, by the authority aforesaid, That it shall and may be lawful for the chief officer of the militia in every county, and he is hereby required some time before the tenth day of June yearly, to appoint an officer and so many men of the militia, as to him shall appear to be necessary, not exceeding four, once in every month or oftner if thereto required by such chief officer, to patrol and visit all negroe quarters, and other places suspected of entertaining unlawful assemblies of slaves, servants, or other disorderly persons as aforesaid, unlawfully assembled, or any other strolling about from one plantation to another without a pass from his master, mistress, or overseer, and to carry them before the next justice of the peace, who if he shall see cause, is to order every such slave, servant, stroller, or other disorderly person as aforesaid, to receive any number of lashes, not exceeding twenty, on his or her bare back well laid on; and in case one company of patrollers shall not be sufficient, to order more companies for the same service. And after every patrol the officer of each party shall return to the captain of the company whereunto he belongs, a report in writing upon oath (which oath such captain is hereby impowered to administer, of the names of those of his party who were upon duty, and of the proceedings in such patrol, and each captain shall once in every month deliver such patrol returns to the county lieutenant, or other chief commanding officer in his county, by whom they shall be certified and delivered to the next court, martial, and if they shall adjudge the patrollers have performed their duty according to law, the chief officer shall certify the same to the county court, who upon such certificate are hereby impowered and required at the laying of their county levy to allow to, and levy for every one of the patrollers ten pounds of tobacco for every day or night they shall so patrol and moreover such patrollers shall be exempt from the payment of public, county, and parish levies, for their own persons for those years in which they shall be employed in that service.
XXVIII. And be it further enacted, by the authority aforesaid, That if the chief officer of the militia in any county, shall fail to appoint patrollers according to the directions of this act such officer shall forfeit and pay the sum of five pounds, and every person appointed to patrol in pursuance of this act failing to do his duty therein shall pay the sum of five shillings, for every such failure, which fines shall be laid by the court martial of the county, and shall be collected, levied, accounted for, and appropriated as is herein before directed, for the collecting, levying, accounting for, and appropriating the several fines and penalties herein before laid; and in like manner the chief officer of the militia in the aforesaid city of Williamsburg and borough of Norfolk, shall appoint all the persons of their militia to patrol within the said city and borough, or within half a mile of the limits thereof by turns, in such numbers and at such times as they shall think necessary, which officers and patrollers shall be subject to the same fines and penalties, and to be recovered and appropriated in the same manner as is herein before directed in the case of patrollers in the counties.
XXIX. And be it further enacted, by the authority aforesaid, That if any action shall hereafter be brought in any court of this colony, against any person or persons appointed to patrol pursuant to this act, for any matter or thing done by him or them in the execution of their duty as patrollers, it shall and may he lawful to and for every person and persons against whom such action or suit shall be brought to plead the general issue, and give the special matter in evidence on the trial, and if any judgment shall be given for the defendant, or if the plaintiff shall become nonsuit or discontinue his suit, then the defendant shall recover treble costs.
XXX. And be it further
enacted, by the authority aforesaid, That this act shall commence and
be in force from and after the passing thereof, for and during the term
of three years.