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CHAP. III.
An Act for the better regulating and disciplining the Militia.
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| 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.
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All officers of the militia, to be resident in the county.
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| 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.
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All above and under 12 60 to be listed.
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| 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
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Persons exempted.
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| inlisted or any wise concerned in the militia during the time they shall continue in
such station or capacity.
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| 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 sue 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 or 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.
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The accoutrements.
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| 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
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Persons exempted to find arms, &c. for the use of the militia.
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| students of William and Mary college, the keeper of the public goal, 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 the militia, each two compleat sets, as
before; the mayor, recorder, and aldermen 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.
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| 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.
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Not to extend to them who have already found arms.
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| 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.
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Free negroes, &c. to be employed in any servile labour.
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| 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
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General and private musters.
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| 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.
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Misbehaviour at courts martial how punishable.
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| IX. And every captain, or in his absence the lieutenant, shall duly
make a list of all the persons upon his muter-roll [muster-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.
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Captains to keep proper lists of delinquents.
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| X. And be it further 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
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Court martial.
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| 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 preceeding
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
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| and required to collect, levy and account for the same in the manner herein before
directed.
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| XI. And be it further enacted, by the authority aforesaid,
That the several persons herein after mentioned failing 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, 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 refuse; 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
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| 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.
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| 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
officer 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.
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Officers accoutrements.
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| 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.
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Twelve months allowed to provide them.
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| 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 with ammunition according to the directions of this act, it
shall and may be lawful for the captain of the company
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The same time allowed the soldiers.
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| 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 enlisted 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.
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| 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.
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Arms to be free from executions, &c.
Persons going to, or coming from musters, exempted from arrests.
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| 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
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Miller.
Infants.
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| servants for the breach or neglect of their duty in any particular service by this act
required of them, shall be 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.
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Servants.
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| 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 virtue 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 be 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, is 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 bee
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.
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Penalty on sheriffs failing to collect.
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| 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.
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| 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,
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Officers to take the oaths of government.
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| 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.
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Oath at court martial.
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| 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.
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| 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.
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Appropriation of fines of county-lieutenants not appointing general musters.
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| XX. And be it further enacted, That if there by 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
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Penalties on officers not attending court martial or general muster, how
recovered.
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| and collecting the fines and penalties laid on officers failing to appoint general
musters.
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| 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.
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Adjutant.
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| XXII. And be it further enacted, by the authority aforesaid,
That all and ever 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.
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Repealing clause.
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| 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 pursuaece 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 by them purchased or sent for to Great-Britain, by the directions of the before recited
act.
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Proviso.
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| 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
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How far this act does not extend to Williamsburg and Norfolk.
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| 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,
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[This second act from
12 Geo. II not Geo. I]
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| 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 in the
counties, any thing in the said recited acts to the contrary notwithstanding.
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To hold a court martial in Williamsburg and Norfolk.
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| 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.
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Officers of the militia of any other place not to be inlisted in Williamsburg
or Norfolk.
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| 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 or her master, mistress, or overseer,
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Patrollers.
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| and to carry them before the next justice of the peace, who id 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.
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| 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
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Penalties.
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| 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.
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| 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 be 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.
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This act may be given in evidence.
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| XX. 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.
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Continuance.
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CHAP. IV.
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| An
| Act for reducing the several acts for making provision
against invasions and insurrections into one act.
|
|
| I. WHEREAS it is necessary that the several acts of Assembly
relating to invasions and insurrections should be reduced into one act, 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 upon any invasion of any enemy,
by sea or land, or upon any insurrection, the governor or commander in chief for the time being
shall have full power and authority to levy, raise, arm and muster such a number of forces out of
the militia of this colony, as shall be thought needful for repelling the invasion, or
suppressing the insurrection
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Governor may order out the militia.
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| or other danger; and the same to lead, conduct, march, transport and employ, or by his
lieutenants, commanders, or other officers by him commissioned, to cause to be led, conducted,
marched, transported and employed, as well within the several counties and places to which they
belong as into any other counties and places within this dominion, for the suppressing and
repelling of all such invasions and insurrections, and such forces again to discharge and disband
as the cause of danger ceases.
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| II. And be it further enacted, by the authority aforesaid,
That every officer of the militia, to whom notice shall be given of any invasion or insurrection,
shall raise the militia under his command, and send intelligence to the county lieutenant, or in
his absence to the chief commanding officer in the county, and shall moreover immediately proceed
to oppose the enemy according to the orders he shall receive from his chief commanding officer
until further orders arrive from the governor or commander in chief of this dominion for the time
being, and such county-lieutenant or chief commanding officer shall give immediate notice to the
officers of the militia of the next adjacent counties of such invasion or insurrection, and the
situation and circumstances of the enemy according to the best of his information and judgment;
and such officer to whom such notice shall be given, if not the chief commanding officer of the
county, shall give immediate notice to his commanding officer of the information that he shall
receive, who shall immediately raise the militia of his county and march part thereof, not
exceeding two-thirds, against such enemy, if the circumstances of the case shall require it,
which shull be enquired into by a council of his field-officers and captains, or the major part
of them, which council every such commanding officer is hereby impowered and required forthwith
to summon and hold; and such commanding officer shall cause the remaining part of his militia,
not so marched, to remain in arms in the county for the defence and protection thereof, until he
shall receive orders from the governor or commander in chief as aforesaid; And every county
lieutenant or chief commanding officer in any county to whom such intelligence shall be given of
any invasion or insurrection, shall forthwith dispatch an express to the governor or commander in
chief as aforesaid, notifying the
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Officers duty.
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| danger, and shall therewith signify in the best manner he can the strength and motions
of the enemy, and for that purpose such county lieutenant or chief commanding officer shall have
full power to impress boats and hands, men and horses, as the service may require, for the
dispatch of such intelligence.
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| III. And be it further enacted, by the authority aforesaid,
That any officer receiving information of any invasion or insurrection from any officer of
an adjacent county in the manner herein before expressed, that shall refuse to raise his militia,
and call a council of his field officers and captains, for the determination of what is necessary
to be done on such information, and shall forfeit and pay the sum of two hundred pounds, and
every officer summoned to such council as aforesaid, that shall refuse to attend the same, shall
forfeit and pay the sum of fifty pounds.
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Penalty on officers refusing to raise the militia.
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| IV. And be it further enacted, by the authority aforesaid,
That if any officer of the militia who upon occasion of any invasion or insurrection, shall
receive any orders or informations from the governor or commander in chief for the time being, or
from any other his superior officer, either for calling together the soldiers or marching them to
any particular place, shall neglect or refuse to execute such orders or instructions in the best
manner he is capable, every such officer so neglecting or refusing, shall respectively forfeit
and pay the sums following, that is to say, very lieutenant of a county the sum of two hundred
pounds; every colonel the sum of two hundred pounds; every lieutenant-colonel the sum of two
hundred pounds; every major the sum of one hundred pounds; every captain the sum of seventy five
pounds; every lieutenant the sum of fifty pounds; every ensign the sum of twenty five pounds;
every serjeant or corporal twenty pounds; and every soldier who shall be summoned to appear upon
any such occasion and shall fail so to do, or shall fail to bring with him his arms, with one
pound of powder and four pounds of ball, or shall refuse to march, shall forfeit and pay the sum
of twenty pounds: And if any officer or soldier during the time the militia shall be employed
for suppressing any invasion or insurrection under this act, shall desert the said service or
raise any mutiny or sedition in the company to which he belongs, or any other company in the said
service, or coming to the knowledge of any such mutiny or intended
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Penalty on officers or soldiers failing to do their duty.
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| mutiny, shall not give information thereof to his commanding officer and use his utmost
endeavour to suppress the same, shall suffer such corporal punishment as shall be inflicted on
him by a court martial, to consist of the field officers and captains then present not extending
to life or member. And every person holding correspondence with, or giving intelligence to the
enemy, during the time such militia is employed for suppressing such invasion or insurrection,
shall suffer death as in the cases of felony without benefit of clergy, upon being thereof
lawfully convicted before the general court of this colony.
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| V. And be it further enacted, by the authority aforesaid,
That in all trials of offenders by any court martial to be held by virtue of this act, every
officer present at such trial before any proceedings be had thereupon, shall take the following
oath (which the presiding officer then present shall first take himself, and then administer to
the others) that is to say,
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Court martial to take an oath.
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| I A. B. do swear, that I will well and truly try and determine
according to the evidence in the matter now before me, between our sovereign lord the king and
the prisoner to be tried, and that I will duly administer justice according to the act of
Assembly, intituled, An act for reducing the several acts for making provision against invasions
and insurrections into one act, without partiality, favor, or affection, and that I will not upon
any account, at any time whatsoever, disclose or discover the vote or opinion of any particular
member of the court martial, unless required to give evidence thereof as a witness by a court of
justice in a due course of law.
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| So help me God.
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The oath.
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| And that such court martial shall have power to appoint a clerk to keep a register of
their proceeding, to whom the president of the court shall administer the following oath, to wit,
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| You shall swear, that you will not upon any account, at any time
whatsoever, disclose or discover the vote or opinion of any particular member of the court
martial, unless required to give evidence thereof as a witness by a court of justice in due
course of law.
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| So help you God.
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|
<
Clerk's oath.
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| VI. And be it further enacted, by the authority aforesaid,
That if any inferior officer or soldier during the time the militia shall be employed for
suppressing any
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Penalty on misbehaviour.
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| invasion or insurrection, as aforesaid, shall disobey the lawful commands of his
superior officer, or behave himself refractorily, every officer so offending shall pay such fine,
not exceeding fifty pounds; and every soldier so offending shall pay such fine, not exceeding
five pounds, as by a court martial to be held as aforesaid, shall be imposes; and if any soldier
shall fail or refuse to pay down such fine immediately to his commanding officer, or give
sufficient security to pay the same within three months, then such soldier shall receive
thirty-none lashes on his bare back well laid on; and if any inferior officer or soldier during
the time the militia shall be employed as aforesaid, shall be guilty of prophane swearing,
drunkenness, or any other the like offence, every person so offending shall upon conviction
thereof before a court martial to be held as aforesaid, pay five shillings for every offence, so
that the same at any one time doth not exceed twenty shillings; and if any soldier shall fail to
pay the same, or give security as aforesaid, he shall for every of the said offences receive five
lashes on his bare back well laid on, so that the same at any one time doth not exceed twenty
lashes. And no person shall be subject to a second trial for the same offence, after he hath been
once condemned or acquitted thereof.
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| VII. And be it further enacted, by the authority aforesaid,
That if any officer shall be sued for any thing by him done in pursuance of this act, it
shall and may be lawful for such officer to plead the general issue, and to give the special
matter and this act in evidence.
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This given in evidence on general issue.
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| VIII. And be it further enacted, by the authority aforesaid,
That if any officer of the militia shall upon receiving the orders of the governor or
commander in chief or any his superior officer, for raising and marching the militia according to
this act, deliver up his commission thereby intending to avoid the force of this act, and the
punishment for disobeying such orders, every such officer so offending, shall be liable to the
same penalty as by this act is inflicted for disobeying or neglecting such orders, and shall be
immediately inlisted as a common soldier by the next officer acting in command.
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Where officers deliver up their commission.
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| IX. And be it further enacted, by the authority aforesaid,
That when any forces shall be raised out of the militia of this colony according to the
directions of this act, it shall and may be lawful for any commissioned
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Where officers may impress.
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| officer commanding any part of the same by warrant under the hand and seal of any county
lieutenant, colonel, lieutenant-colonel, or major, to impress and take up at the public charge
necessary provisions of and from any person or persons, and to impress and take up sloops and
boats necessary for the transportation of forces over rivers and creeks, or the main bay of
Chesapeak, together with the rigging, tackle, furniture and apparel belonging thereunto; and also
all manner of carts, waggons, draught horses or oxen, or other conveniences for the land carriage
of provisions, great guns, arms and ammunition, from place to place, and likewise any manner of
utensils, tools or instruments, which shall or may be wanted for digging or entrenching, or
towards mounting the great guns, and making them useful; and further, that it shall and may be
lawful by warrant as aforesaid, to impress able and fit men to go in sloops or boats, and also
any smith, wheelwright, carpenter, or other artificer whatsoever, which shall be thought useful
for the fixing of arms, making carriages for great guns, or doing any other work whatsoever,
where need shall be of such artificers.
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| X. Provided always, That it shall not be lawful to make
use of any provisions, utensils, tools or instruments, so impressed or taken up, until
appraisement thereof hath been made in money by two good and lawful men upon oath, one whereof to
be chosen by the proprietor of such provisions, or other thing or things so impressed, and the
other by the commanding officer present, which said officer is hereby impowered to administer
such oath to the persons so appointed to appraise the same; nor of any sloop, boat, cart, waggon,
horses or oxen, until such appraisement made of the same with the appurtenances belonging
thereunto; and also an estimate made by the same men of a suitable allowance in money by the day
for the use of such sloop, boat, cart or waggon, with the draught horses or oxen, and
appurtenances thereto belonging, which every person so impressing is hereby required to cause to
be made, and to give a receipt to the owner of every particular by him impressed and taken up,
and a certificate how and by whom the same was appraised and estimated, and for what use and
service impressed, upon pain of being liable to the penalty of twenty shillings,
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Where there must be an appraisement.
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| and moreover to the action of the party grieved for unlawful seizure.
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| XI. And for the better discovery of the approach of enemies by sea,
It is hereby further enacted, That in each of the counties of Elizabeth-City,
Princess-Anne, Accomac, and Northampton, at such times and places as the governor or commander in
chief of this dominion shall think fit, to direct any number of men, not exceeding six, be
appointed by the chief officer of the militia in each of the said counties respectively; which
men shall keep a constant look-out to seaward by night and by day, and diligently observe the
courses and motion of all such ships or vessels, as they or either of them shall discover upon
the coast, and if upon such observation, such person shall suspect the said ships or vessels to
belong to an enemy, he shall immediately give notice thereof to the next field officer in his
county, who is thereupon to transmit an account thereof to the governor or commander in chief,
and to the county lieutenant or chief commanding officer of the militia in the said county.
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Look-outs.
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| XII. And be it further enacted, by the authority aforesaid,
That there shall be raised and paid by the public to the officers and soldiers drawn out
into actual service by virtue of this act, and to the look-outs after the rates following; to
wit, to the county lieutenant or commander in chief ten shillings per day; a colonel, lieutenant
colonel each ten shillings per day; major eight shillings per day; captain six shillings per day
lieutenant three shillings per day; ensign two shillings per day, serjeant and corporal each one
shilling and four-pence per day; drummer one shilling and two pence per day; soldier one shilling
per day; and to a look-out after the rate of thirty shillings per month.
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The pay of officers and men.
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| XIII. And be it further enacted, by the authority aforesaid,
That every smith, wheelwright, carpenter, or other artificers, and all watermen employed in
the service, as by this act is directed, shall be paid and allowed by the public after the rates
following, to wit, every smith four shillings per day; wheelwright three shillings per day;
carpenter three shillings per day; and watermen one shilling and six-pence per day; And where any
sloop, boat, waggon or cart, impressed and appraised according to the directions of this act
shall be damnified; or horse or ox hurt, the damage of the same shall be enquired into by two
good and
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Of wheelwrights and other artificers.
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| lawful men on oath, to be appointed as is before directed for appraising; and if the
proprietor shall refuse to appoint persons to appraise or value the goods so impressed, it shall
and may be lawful for the commanding officer then present, to appoint both persons to make such
enquiry, and to administer to them an oath for that purpose, and the difference between the
appraisement and valuation when discharged, shall be paid by the public to the proprietor of such
sloop, boat, waggon, cart, horse or ox.
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| XIV. And to the end a sufficient number of man may be appointed for
guarding the batteries erected in the several rivers of this dominion, and to assist in the
better managing the great guns there mounted, when occasion shall be, It is hereby further
enacted, That it shall and may be lawful for the governor or commander in chief of this
dominion for the time being, to appoint and assign such a number of the militia as he shall think
fit to attend the said batteries, under the command of such officer or officers, and under such
order and discipline as he shall appoint and direct, which number of the militia shall be drafted
out of any of the militia of the county by the commanding officer of such county in which such
battery is or shall be erected, and shall be exempted from all private musters, except at such
battery only during their attendance at such battery; and if any soldier drafted as aforesaid,
shall refuse to enter upon the said service, or shall refuse to obey the commands and orders of
the commanding officer at such battery, every soldier so offending shall forfeit and pay three
pounds, or receive thirty-nine lashes on his bare back well laid on, for every such refusal, upon
conviction thereof before a court martial to be held as aforesaid.
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Batteries.
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| XV. And whereas it may be necessary in time of danger to arm part
of the militia, not otherwise sufficiently provided out of his majesty's magazine, and other
stores within this colony, Be it further enacted, by the authority aforesaid, That if
any person or persons so armed out of his majesty's stores, shall detain or embezzle any arms or
ammunition to him or them delivered for the public service, and shall not produce and re-deliver
the same when ordered and required so to do, it shall be lawful for the respective county
lieutenants or chief commanding officer within their counties by warrant under his or their
hands, to commit such
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Embezzling arms.
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| offender to prison, there to remain until he shall make satisfaction for the arms or
ammunition by him detained or embezzled.
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| XVI. And be it further enacted, by the authority aforesaid,
That where any commanding officer of the militia, shall in pursuance of this act be obliged
to raise any of the militia of his county, such officer shall not depute any greater number of
inferior officers to act upon duty than is herein after expressed; that is to say, not more than
one captain, one lieutenant, one ensign, three serjeants or corporals, and one drummer for every
fifty soldiers; and so in proportion for a greater number: And for every company consisting of
thirty men, not more than one lieutenant, one ensign, and two serjeants; and for every company
not exceeding fifteen men, not more than one ensign, and one serjeant; and that every commanding
officer shall together with the officer of the company by him raised and sent out as aforesaid,
certify to the succeeding assembly a distinct list of the number of such company and officers
acting under him, together with the time that they shall have been upon actual duty, which
certificate shall be attested upon oath by the chief officer of such company before any justice
of the peace of the county in which such company shall be raised. And if any commanding officer
shall presume to order out a greater number of inferior officers, than are herein before
expressed, according to the proportion of soldiers aforesaid, the pay of such supernumerary
officers shall be levied on such commanding officer.
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The number of officers to the respective companies.
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| XVII. Provided always, That when any part of the militia
raised by virtue of this act, shall be discharged within two days, no pay or allowance shall be
given for the same, but every person shall bear his own charges; and when they shall be kept in
service above two days, then the whole time shall be paid for and allowed as aforesaid.
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No pay where they serve only two days.
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| XVIII. And whereas officers and soldiers may mutiny or desert the
service and cannot be apprehended, so as to be tried by a court martial, according to the
directions of this act; that such offenders may not go unpunished, Be it enacted, by the
authority aforesaid, That when any of the said offenders cannot be apprehended so as to be
tried by a court martial as this act directs, it shall and may be lawful for any court of record
within this dominion, upon complaint made to
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Mutiny and desertion.
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|---|
| them by any commanding officer of the militia, and they are hereby required and
impowered to cause every such offender to be apprehended and brought before them and take
cognizance of the said offence or offences, and upon conviction to impose such fine or inflict
such corporal punishment, not extending to life or member, upon every such offender as shall be
thought reasonable.
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| XIX. And be it further enacted, by the authority aforesaid,
That when the militia of any county shall be drawn out into actual service by virtue of this
act, every officer and soldier of such militia shall be exempted from all process in any cause or
suit whatsoever, (other than for some criminal matter) and his estate privileged from all
executions, attachments and distresses whatsoever; And that if any suit shall be depending in any
court whatsoever, in which any officer or soldier so drawn out as aforesaid, shall be a party
either plaintiff or defendant, the same shall be stayed and no proceedings be had or taken
therein, during the time such officer or soldier shall continue in such service.
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Militia drawn out exempt from civil process.
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| XX. And be it further enacted, by the authority aforesaid,
That for any message sent according to the directions of this act, either by land or water, the
same allowance shall be made as is by law given for other public expresses.
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Pay of messengers.
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| XXI. And be it further enacted, by the authority aforesaid,
That this act shall be published at every general muster during the continuance thereof, by
order of the county lieutenant or chief officer of the militia then present, under the penalty of
ten pounds for every neglect.
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This act to be published at every general muster.
|
| XXII. And be it further enacted, That all the fines
inflicted by this act, and not otherwise directed, shall be one half to our sovereign lord the
king, for and towards supplying with arms the militia of the county to which the offender
belongs, and the other half to the informer, to be recovered with costs by action of debt or
information in any court of record within this dominion.
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Appropriation of fines.
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| XXIII. And be it further enacted, by the authority aforesaid,
That all and every other act and acts, clause and clauses theretofore made, for or
concerning any matter or thing within the purview of this act, shall
|
Repealing clause.
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Pages 116-139
