MAY 1723−−9th GEORGE I.

CHAP. II.

An Act for the settling and better Regulation of the Militia.

I. WHEREAS a due regulation of the Militia is absolutely necessary for the defence of the country, and the act now in force, doth not sufficiently provide for the same.

II. 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 publication of this act, the colonel, or chief officer of the militia of every county, have full power and authority to list all free male persons whatsoever, from twenty-one to sixty years of age, within his respective county, to serve in horse or foot; having regard to the ability of each person, and to order and place them under the command of such captain as he shall think fit.

III. Provided nevertheless, That nothing herein contained, shall be construed to compel any person or persons that shall be, or shall have been, of his Majesty's council in this colony, speaker of the house of burgesses, secretary of this colony, judge of the court of vice-admiralty, his Majesty's attorney-general, a justice of the peace, or any person that shall have born any military commission within this colony, as high as the commission of a captain, or the clerk of the council, for the time being, or the clerk of the general court, for the time being, or any county court clerk, during his being such, personally to appear at any musters: But that all, and every the persons aforesaid, shall and may, and are hereby required, to find and provide one able-bodied white man, a good horse, and such trooper's accoutrements, as are herein after-mentioned, who shall constantly appear and exercise at all musters.

IV. Provided nevertheless, That nothing herein contained, shall impower or enable any colonel, or commander in chief, to list, or cause to be listed, any minister of the church of England, or the president, masters, professors, or students, of the college of William and Mary, during the time of their being such; or any person being emploied as an overseer, and having four or more slaves under his charge and keeping; or the founders, keepers, or any other persons emploied in or about any iron copper, or lead work, or any other mine, during the time of their being so emploied; or any free Negro, Mulatto, or Indian.

V. Provided always, That such free Negros, Mulattos, or Indians as are capable, may be listed and emploied as drummers or trumpeters: And that upon any invasion, insurrection, or rebellion, all free Negros, Mulattos, or Indians, shall be obliged to attend and march with the militia, and to do the duty of pioneers, or such other servile labour as they shall be directed to perform.

VI. And be it further enacted, by the authority aforesaid, That if an exempted overseer, or miller, or any free Negro, Mulatto, or Indian, other than as before excepted, shall presume to appear at any muster whatsoever, the party so offending, shall for every such offence, forfeit and pay one hundred pounds of tobacco, and shall immediately give security to the said commanding officer, for paiment of the same: Which fine or fines shall be disposed of in such manner, and to such uses as the other fines herein after-mentioned. And each person failing to pay, or give security, as aforesaid, shall, by order of the said commanding officer, be tied neck and heels, and so remain for any time not exceeding twenty minutes.

VII. And be it further enacted, by the authority aforesaid, That every soldier belonging to the horse, be provided with a good serviceable horse, a good saddle, with breast-plate, crupper, and curb bridle, holsters, and a case of pistols, cutting sword, or cutlace, and double cartouch box, and six charges of powder, and constantly appear with the same at time and place appointed for muster and exercise; and shall keep at his place of abode, a well fixed carbine, with holt and swivel, one pound of powder, and four pounds of shot, and being the same into the field with him when thereunto specially required. And that every foot soldier be provided with a firelock, musquet, or fuzee, well fixed, and bayonet fitted to such musquet or fuzee, or a good cutting sword or cutlace, a cartouch box, and three charges of powder, and appear constantly with the same, at the time and place appointed for muster and exercise; and shall keep at his place of abode, one pound of powder, and four pounds of shot, and bring the same into the field with him, when thereunto specially required.

VIII. And be it further enacted, by the authority aforesaid, That whatsoever soldier shall fail to appear at any time and place appointed, or appearing, shall not be furnished and provided with arms and ammunition, as aforesaid, for muster and exercise, or shall not keep at his place of abode, what by this act he is directed, such soldier, for every such failure, shall be fined one hundred pounds of tobacco.

IX. Provided always, and be it enacted, That eighteen months time be given and allowed to each soldier, to furnish and provide himself with arms and ammunition, according to 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 listed eighteen months, after the passing of this act; any thing in this act to the contrary, or seeming to the contrary, notwithstanding: −− So as every soldier, during the said eighteen months, do appear at all musters with such arms as he is already furnished with.

X. And be it further enacted, by the authority aforesaid, That every captain of a troop or company, who shall fail to appear at any muster or musters hereafter to be appointed, or appearing, fail and neglect to exercise the troop or company under his command, every such captain, for every such offence, shall be fined two hundred pounds of tobacco. And every lieutenant, cornet, or ensign, who shall at any time hereafter fail to appear at any such muster, and perform his duty thereat, shall forfeit and pay one hundred pounds of tobacco for every such offence.

XI. And for an encouragement of every soldier to provide and furnish himself, according to the directions of this act, and his security to keep his horse, arms and ammunition, when provided, Be it enacted, by the authority aforesaid, That the horses and furniture, arms and ammunition, provided and kept, in pursuance of this act, be free and exempted at all items 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, attachment, or execution, made or served upon any of the premises, be unlawful and void: And that the officer or person that 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.

XII. And to the end, the militia of this his majesty's colony and dominion, being settled and armed, as aforesaid, may be the better fitted for service, Be it further enacted, by the authority aforesaid, That the colonel, or chief officer of the militia of every county, once every year at least, cause a muster and exercise of all the troops and companies in his county, at one or more place or places, or oftner, if there shall be occasion: −− And That every captain, once in every three months, muster, train, and exercise his troop or company, or oftner, if occasion require. Provided, that no officer or soldier be fined above five times in one year.

XIII. And be it further enacted, by the authority aforesaid, That all soldiers, during the time they are in arms, shall observe and obediently perform the commands of their officer, relating to their exercise, according to the best of their skill. And if any soldier, as aforesaid, shall, at any such muster, disobey his officers' commands, or behave himself disorderly or refractorily thereat, it shall and may be lawful for the chief commanding officer then present, to cause such offender to be tied neck and heels, for any time not exceeding twenty minutes, And if any such soldier shall thereafter offend, it shall and may be lawful for the said commanding officer, by a warrant under his hand, to commit such offender to the county goal, there to remain for any time not exceeding ten days; and that the said offender shall not be thence discharged, until he hath paid and satisfied all fees due, and accustomed for sherifs or goalers to take, upon any commitments and discharges.

XIV. And be further enacted, by the authority aforesaid, That if any soldier, upon occasion of an incursion, invasion, insurrection, or rebellion, or other alarm or surprize, shall be summoned to meet at a certain time and place, and shall fail to appear, such soldier shall be fined for his failure, the sum of ten pounds, current money; and the captain of such soldier so failing, is hereby required, at the meeting of the field officers and captains, herein after directed, to give an account, under his hand, of every such failure: And any soldier refusing to obey the lawful commands of his captain, shall and may be committed to the county goal, by warrant under the hand of his said captain, for three months, without bail or mainprize.

XV. Provided nevertheless, That the colonel, or commander in chief, have power to release, and discharge him in less time, if he see cause. And if any officer shall fail or neglect to appear on occasion of any such incursion, invasion, insurrection, or rebellion, or other alarm, every such officer, so offending, shall be fined the sum of twenty pounds, current money, for every such failure.

XVI. And forasmuch, as some difficulty hath been found in procuring some soldiers to be willing to serve as serjeants, corporals, drummers, or trumpeters, all of them absolutely necessary in troops and companies: For prevention of the like in time to come, Be it enacted, by the authority aforesaid, That whatsoever soldier shall refuse to take upon him, act in, and execute any of the said offices, in the troop or company wherein he is listed, being known to be capable, and thereunto appointed by his captain, shall for such his refusal, be fined five hundred pounds of tobacco; which being once paid, he shall thereafter be exempted from being fined for any such refusal.

XVII. And to the end, no wilful and obstinate defaulter or offender may escape the penalty inflicted by this act, for his default or offence, Be it enacted, by the authority aforesaid, and it is hereby enacted, That all captains of troops and companies within this his Majesty's colony and dominion, be required, and every of them is hereby strictly required and enjoined, at every muster, to take, or cause to be taken, an exact account in writing, of svery such default or offence made or committed in his troop or company, by whom the said default or offence was made or done, and at what time, and to sign the same with his own hand, and deliver it, or cause it to be delivered, to the field officers and captains, at their next meeting for the fining offenders.

XVIII. And be it further enacted, by the authority aforesaid, That the field officers and captains of every county, or the major part of them, whereof the colonel, lieutenant-colonel, or major, shall be one, have full power and authority to meet yearly, at the courthouse in their respective counties, on the first Thursday in October; or, in case of failure in meeting that day, on the next Thursday following, to inspect the several lists or accounts given in by the captains, as aforesaid; and thereupon to fine every defaulter or offender therein charged, according to the directions of this act.

XIX. Provided always, That nothing in this act contained, be construed to give any power or authority to the said field officers and captains, to meet or act, as aforesaid; at any other place or times, than the place and times aforesaid; or to fine any defaulter or offender for any default or offence whatsoever, by or against this act, which hath been made or done above a year; any thing herein before contained to the contrary, in any wise, notwithstanding.

XX. And, because several persons may happen to be charged with a default or offence in their captains said lists or accounts, who are not wilfully guilty thereof, or may have a fair and just excuse for their not complying with this act: For remedy in such cases, Be it enacted That whensoever any officer or soldier, charged with any default or offence, as aforesaid, can and doth shew forth to the said field officers and captains, at their meetings to fine offenders, as aforesaid, such matter and cause that he ought not to be fined for the same, as they shall judge reasonable, it shall be lawful for the said field officers and captains, and they are hereby required to admit of such officer's and soldier's excuse, and to lay no fine upon him for such default or offence; any thing in this act contained to the contrary, notwithstanding.

XXI. And be it further enacted, by the authority aforesaid, That where any person on whom any fine shall be laid or assessed, by virtue of this act, by the said field officers and captains, shall fail or refuse to pay the same to the sheriff, in specie, upon sight of a copy of their order, in such case, the sheriff is hereby required to apply to the chief commanding officer, residing in the county, who thereupon is hereby impowered and required to make out his warrant, directed to the said sheriff, impowering and commanding him to levy the same by distress and sale of the offender's goods, and make return of his proceedings, to the clerk attending the said officers at their meeting, to be by him entred on the register. And if, upon such warrant, the sheriff shall return, that he can find no goods whereon to make distress, then it shall and may be lawful, to and for the chief commanding officer residing in the county, and he is hereby authorized and required, by warrant under his hand, directed to the sheriff, to cause the body of the said offender to be committed to the county goal, without bail or mainprize, until he shall satisfy the same fine, and all fees incident, in the same manner, as in executions served at common law.

XXII. And be it further enacted, by the authority aforesaid, That the said field officers and eaptains have full power and authority to appoint and employ a clerk to attend them at their said meetings, and to keep a register of all their proceedings; and to allow the said clerk such salary, for his said service, and for providing necessary books and paper for their use, as in their discretion they shall think fit and reasonable, and to pay the same out of the penalties and fines accruing by this act.

XXIII. And be it further enacted, by the authority aforesaid, That the said field officers and captains, at their meetings, as aforesaid, have full power and authority to order and dispose of the fines, penalties, and forfeitures mentioned in this act, in such manner as in their discretions shall seem best, for paying therewith a clerk, as aforesaid, and for furnishing the several troops and companies belonging to the county, with necessary drums, colours, trumpets, leading-staffs, partizans, and halberts, and after all those, for providing arms and ammunition for the county's use.

XXIV. And be it further enacted, by the authority aforesaid, That every captain of a troop or company within this colony, be permitted and allowed to take one of the soldiers under his command, to be clerk to his troop or company: And that such clerk, in consideration of his service in that respect, be excused from carrying arms at any muster, except in case of a rebellion, or an invasion; any thing in this act, to the contrary, notwithstanding.

XXV. 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 test; and that every colonel, lieutenant-colonel, major, and captain, at the time of their meeting to fine offenders, shall also take the following oath, to wit:

I A. B. do swear, That I will do equal right and justice to all men, to the best of my judgment, according to the directions of the act, intituled, An act for the settling and better regulation of the militia.

Which oath shall be first taken by the presiding officer then present, and shall by him be administred to the rest of the said officers.

XXVI. And be it further enacted and declared, That nothing in this act contained, shall hinder or debar any captain from admitting any able-bodied white person, who shall be above the age of sixteen years, to serve in his troop or company, in the place of any person required by this act to be listed.

XXVII. And be it further enacted, by the authority aforesaid, That the act of assembly, made in the fourth year of the reign of our late sovereign lady Queen Anne, intituled, An Act for settling the Militia, be, and is hereby repealed, and made void, to all intents and purposes.