MAY 1781 – 5th of COMONWEALTH

CHAP. VIII

An act to amend the act for regulating and disciplining the militia, and for other purposes.

WHEREAS the now existing laws to regulate and discipline the militia and for providing against invasions and insurrections, have been found inadequate to the end, Be it therefore enacted by the General Assembly, That the militia of this state when drawn out into actual service, and acting separately or in conjunction with regular troops, shall be and they are hereby declared to be subject to the continental rules and articles of war, except as hereafter is excepted; which shall be previously read to the militia so drawn into service. That every militia-man ordered into actual service, who shall, refuse and neglect to appear at the time and place of rendezvous appointed for the company, corps or detachment to which he belongs, without a reasonable excuse, or produce an able-bodied substitute to serve in his room (but no person shall be admitted as a substitute except he belongs to the militia of the same county, and if it shall come to such substitute's tour of duty before he returns, then the person employing him shall be obliged to serve in his room or procure a second substitute) shall, upon conviction before a court-martial, be declared a regular soldier for six months, and shall, by order of such court-martial, be delivered to a continental officer for that purpose, who shall give to the officer delivering him a receipt descriptive of his age, person, occupation, and residence, which receipt shall be returned to the county lieutenant or commanding officer of the county to which the delinquent belongs, to the end that every such delinquent may, in case of desertion before the expiration of his term of service, be duly apprehended and punished agreeable to the law-martial. And for the due conviction of all such delinquents, a court-martial shall, by order of the county lieutenant or commanding officer, be held within ten days at such place as he shall appoint, under the penalty of ten thousand pounds of tobacco on such county lieutenant or commanding officer neglecting to order the same, and of five thousand pounds of tobacco upon every member of such court failing to attend without a reasonable excuse.

And be it enacted, That where any quaker or menonist shall be allotted to any division of the militia, who is to perform the succeeding tour of duty, he shall not be compelled personally to serve, the same, but it shall and may be lawful for the commanding officer, of the militia of said county, to cause to be levied on all the society of quakers and menonists in such county according to their assessable property by warrant under his hand directed to the sheriff or any person or persons whom he shall appoint, such sum or sums of money as he shall think sufficient to procure a substitute for each quaker or menonist whose tour of duty it is, and the money when collected shall be deposited, in the hands, of the commissioners of the money tax, who shall, pay the same on warrant from the commanding officer of the said militia, to such substitute ors substitutes as may be employed for such quaker or menonist, and the overplus (if any) shall be returned to the said quakers or menonists in equal proportion to their different advancements or credited in their next money tax; and in case the money so collected shall not be applied as above directed before the next assessment, the said commissioners shall allow the same in discount of their several taxes. Any sheriff or collector failing to perform his duty as above, shall forfeit and pay five thousand pounds of tobacco, and each of the said commissioners who shall fail to perform his duty, shall forfeit and pay five thousand pounds of tobacco, to be recovered on motion by the said commanding officer of the militia in any court of record, giving ten days previous notice.  The fines thus recovered shall go towards satisfying the quakers or menonists who shall be aggrieved thereby, and the overplus towards enlisting a soldier to serve in the continental army.

And be it farther enacted. That any militia-man deserting while in actual service with public arms, shall, upon conviction before a court-martial, suffer death, or such other punishment as the said court shall inflict. And every militia-man deserting without public arms, shall suffer such punishment, not touching life or member, as a court-martial shall direct; to which end, if such deserter be apprehended before the discharge of the company, corps or detachment to which he belongs, he shall be forthwith returned thereto and be tried by the rules of the law-martial; but if such corps, company or detachment shall have been previously discharged, then such deserter shall be tried by a court-martial of the county to which he belongs; such court to be ordered by the county lieutenant or commanding officer of the militia upon receiving notice of the apprehension of any such deserter, under the same penalty for his neglect in so doing and for the failure of attendance in any member of such court as is before directed. And for the information of the county lieutenant or commanding officer of the militia, the officer commanding a company, corps or detachment, to which such deserter belongs, shall certify the same as soon as may be to such county lieutenant or commanding officer, under the penalty of five thousand pounds of tobacco for every failure.

And whereas there are many difficulties in bringing delinquent officers of the militia to punishment; It is farther enacted. That any militia officer either on duty or not, for crimes relating to the duties of his office may be arrested in the same manner as is allowed by the law-martial, and when arrested shall be tried within the number of days prescribed by the continental articles of war, before a court-martial to be appointed by the commanding officer at the post or in the county, and if the rank of the delinquent officer shall make it impossible to get a court-martial for his trial under the said articles, the governor, on information thereof, shall order a court-martial to be appointed out of the militia at large within any reasonable time, for the trial of the offender. The governor may arrest and bring to trial in manner herein prescribed any officer of the militia whatsoever. The members of the said court so constituted, shall take the oath of secrecy and also an oath to be conformable in their sentence to the continental articles of war as therein written.   Every sentence of the said court where the trial shall be before the court-martial of the county and the officer tried shall be a field officer, shall be transmitted to the governor for the time being, who may either approve or disapprove the same, according to the custom of the law-martial, but where the officer tried shall be under the rank of a field officer, in that case the lieutenant or commanding officer of the county where the trial shall be, shall have the power to approve or disapprove the sentence of the said court.

And be it farther enacted. That the militia of this commonwealth, when drawn out into actual service, except upon sudden alarms, for the defence of their respective counties, shall be entitled to and receive the same pay and rations as the officers and soldiers in continental service.  The captain or other officer commanding a company or detachment, shall, when discharged, make out a pay-roll to commence from the day they join the army when to act within the state, and from the commencement of their march when they are to act out of the state, which shall be examined and certified by the commanding officer of the regiment or detachment to whom they belonged; which pay-roll shall be by the officer laid before the auditors, of public accounts, who are hereby empowered and required to issue printed certificates agreeable thereto, and shall be by the captain or officer paid to the men entitled to receive the same, which said certificates shall be receivable in taxes; and in case any person or persons shall counterfeit, alter or erase, or shall aid or assist in counterfeiting, altering or erasing, the certificates so issued, or shall attempt to pass the same knowing them to be counterfeited, altered or erased, he or she so offending shall be deemed a felon and suffer death without the benefit of clergy.   No person shall be considered to have performed a tour of duty unless he shall have joined the army or detachment where ordered. A tour shall not exceed two months, unless the relief ordered shall not arrive in time from any unavoidable accident. The militia marching to and from camp shall be furnished with rations at the public expence.

And be it farther enacted, That as an inducement, additional to what the law hath already given, to persons for apprehending deserters, that any militia-man who shall apprehend and deliver an able-bodied deserter to any officer of the continental army or of the troops of this state, not being under the rank of a field officer in either service, and taking the receipt of such officer for the said deserter, or if the deserter be a militia-man shall deliver him to the commanding officer of the battalion or regiment from whence he deserted and taking the receipt of such officer, in either case it shall be considered as having thereby performed a tour of militia duty.

And whereas an opinion hath prevailed that the courts are obliged by law to promote officers in the militia according to seniority, whereby great mischief hath accrued to the country by improper appointments; Be it farther enacted. That the county courts in all their recommendations of militia officers, are and shall be at full liberty to nominate their militia officers hereafter to be appointed out of the people in their respective counties at large, without paying any regard to seniority.  And for the due promulgation of this act and the better information of the militia, Be it farther enacted. That such a number of printed copies of this act and of the continental articles of war as the governor may deem necessary, shall be with all possible; expedition transmitted to each county in this commonwealth for the use of the militia officers therein, and shall by such officers be read to their respective militia at every general and petty muster. Each county lieutenant failing herein shall for every offence forfeit and pay the sum of five thousand pounds of tobacco of each field officer three thousand; and each captain two thousand pounds of tobacco.

And be it farther enacted. That all the penalties inflicted by the said recited acts, or either of them, shall cease, and in lieu thereof there shall be inflicted an additional penalty in the proportion of ten for one upon every officer, non-commissioned officer-and private, for neglect or failure of duty therein prescribed; which penalties, as well as those inflicted by this act, shall be recovered and applied in manner therein directed.

And whereas it has happened that some counties have been thrown into confusion by means of the necessary papers for laying off the militia into divisions being lost or destroyed by accident or neglect; for remedy whereof, Be it enacted. That the field officers of any county where such case may be, shall, upon the receipt of this act, immediately proceed to lay off their said militia into divisions, and cause the same to be again drafted agreeable to the rules and directions laid down in the act entitled "An act for providing-against invasions and insurrections," in order that a due and regular rotation may be kept up.