FOR forming the citizens of this commonwealth into a militia, and disciplining the same for defence thereof, Be it enacted by the General Assembly, That all free male persons, hired servants, and apprentices, between the ages of sixteen and fifty years (except the governour and members of the council of state, members of the American congress, judges of the superiour courts, speakers of the two houses, treasurer, attorney general, commissioners of the navy, auditors, clerks of the council of state, of the treasury, and of the navy board, all ministers of the gospel licensed to preach according to the rules of their sect, who shall have previously taken before the court of their county an oath of fidelity to the commonwealth, postmasters, keepers of the publick jail and publick hospital, millers, except in the counties of Accomack and Northampton, persons concerned in iron or lead works, or persons solely employed in manufacturing fire arms, and military officers or soldiers, whether of the continent or this commonwealth, all of whom are exempted from the obligations of this act) shall, by the commanding officer of the county in which they reside, be enrolled or formed into companies of not less than thirty two, nor more than sixty eight, rand and file, and these companies shall again be formed into battalions of not more than one thousand, nor less than five hundred men, if there be so many in the county. The free mulattoes in the said companies or battalions shall be employed as drummers, fifers, or pioneers. Each company shall be commanded by a captain, two lieutenants, and an ensign; each battalion by a colonel, lieutenant colonel, and major, who shall take precedence and command of each other according to rank and seniority, and the whole by a county lieutenant. These officers shall be resident within their county, and before they enter on the execution of their office shall, in presence of the court of the same county, take the following oath:
I [space] do swear, that I will be faithful and true to the commonwealth of Virginia, of which I profess myself to be a citizen, and that I will faithfully and justly execute the office of a [space] in the militia of the county of [space] according to the best of my skill and judgment. So help me God.
There shall be a private muster of every company once in every month, except the months of January and February, at such convenient time and place as the captain, or next commanding officer, shall appoint, and a general muster in each county, on some day in the months of April and October, in every year, to be appointed by the county lieutenant, or other commanding officer: For notifying the time and place whereof, the captains, or next commanding officers, shall have power to order so many of their serjeants as they shall think fit to give notice to every person belonging to the company of the time and place of such general or private muster, as the case may be; and if any serjeant, so appointed, shall fail in his duty, he shall forfeit and pay forty shillings for every such failure. Every officer and soldier shall appear at his respective muster-field by eleven o'clock in the forenoon, armed or accoutred as follows: The county lieutenant, colonels, lieutenant colonels, and major, with a sword; every captain and lieutenant with a firelock and bayonet, a cartouch box, a sword, and three charges of powder and ball; every ensign with a sword; every non-commissioned officer and private with a rifle and tomahawk, or good firelock and bayonet, with a pouch and horn, or a cartouch or cartridge box, and with three charges of powder and ball; and, moreover, each of the said officers and soldiers shall constantly keep one pound of powder and four pounds of ball, to be produced whenever called for by his commanding officer. If any soldier be certified to the court martial to be so poor that he cannot purche such arms, the said court shall cause them to be procured at the expense of the publick, to be reimbursed out of the fines on the delinquents of the county, which arms shall be delivered to such poor person to be used at musters, but shall continue the property of the county; and if any soldier shall sell or conceal such arms, the seller or concealer, and purchaser, shall each of them forfeit the sum of six pounds. And on the death of such poor soldier, or his removal out of the county, such arms shall be delivered to his captain, who shall make report thereof to the next court martial, and deliver the same to such other poor soldier as they shall order.
And if any poor soldier shall remove out of the county, and carry his arms with him, he shall incur the same penalty as if he had sold such arms; and if any persons concerned in selling or concealing such arms shall be sued for the said penalty, and upon conviction and recovery shall fail to make payment, he shall suffer such corporal punishment as the court before whom the recovery shall be shall think fit, not exceeding thirty nine lashes. And the lieutenant of any county may recover any arms, so sold, concealed, or bought, contrary to this act, by action or petition in detinue or trover, with costs. Each captain shall, at every muster, either by himself or some sworn officer, note down the delinquencies occurring in his company, and make return thereof to the next court martial; but where any person is disabled by sickness from attending, the captain, or commanding officer, being satisfied thereof by testimony on oath, which he is hereby enabled to administer on the spot, shall not note down such non-attendance. Every officer and soldier shall be allowed six months after his appointment or enrollment to provide such arms or accoutrements as he had not at the time. All arms and ammunition of the militia shall be exempted from executions and distresses at all times, and their persons from arrests in civil cases, while going to, continuing at, or returning from, any muster or court martial.
Each captain shall appoint a drummer and fifer to his company, and also shall provide a drum, fife, and colours for the same, at the publick expense, to be reimbursed out of the fines on the delinquents of his county. One or more adjutants shall be appointed by the court martial, and have an allowance by the said court not exceeding the rate of fifty pounds a year each, to be paid out of the fines; or if they be not sufficient, the deficiency to be supplied by the justices of the same county in their next county levy, on certificate from the court martial of such deficiency. Every captain, or next commanding officer, shall, at every general muster, make up and report to his county lieutenant a state of the company last assigned to him, noting therein such as are dead, removed, or exempted, and adding the names of such persons, not already enrolled, as are within the extent of his company, and ought to be enrolled; and, on failure to make such report, shall forfeit five pounds. For failing to qualify himself to a commission at the first or second court which shall be held, after accepting the same, every officer shall forfeit five pounds. For failing to enrol the militia, or to appoint a general muster, the county lieutenant, or, if he be absent on necessary business, the next commanding officer, shall forfeit one hundred pounds. For not appointing a private muster, the captain, or next commanding officer, shall pay forty shillings. For failing to appear at any general muster properly armed, or at any court martial, every county lieutenant and field officer shall pay ten pounds. For failing to appear at any court martial, every captain shall pay forty shillings. For failing to appear at any general or private muster properly armed or accoutred, every captain shall forfeit forty shillings, every lieutenant or ensign twenty shillings, every non-commissioned officer or soldier five shillings. For not returning to the next court martial a true list of delinquencies in his company, every captain, or commanding officer for the time, shall forfeit ten pounds. Every officer failing to furnish himself with one pound of powder shall forfeit and pay ten shillings, and the same for failing to furnish himself with four pounds of ball; and every soldier failing therein shall likewise be liable for the same penalties, which penalties, where incurred by infants, shall be paid by the parent or guardian, and where incurred by servants shall be paid by the master, who, if such delinquency were without his influence or direction, may retain so much out of the hire of such servant, or be compensated by farther service, to be ascertained by the county court. If any officer, when on duty, shall misbehave, he may be put under arrest, for the day, by his commanding officer; and the next court martial, if required, shall inquire into such misbehaviour, and either censure the same, or make report thereof to the governour and council, who, if the cause be sufficient, shall thereupon degrade such officer. If any soldier, at any muster, shall refuse to obey the command of his officer, or shall behave himself refractorily or mutinously, or misbehave himself at a court martial, the commanding officer, or court martial, may, in like manner, put him under arrest for the day, or may cause him to be bound, neck and heels, for any time not exceeding five minutes. If any bystander interrupt, molest, or insult any officer or soldier while on duty, at any general or private muster, or misbehave before any court martial, the commanding officer, or court martial, may put him under arrest for the day. The county lieutenant, field officers, and captains, or the greater part of them (whereof the county lieutenant or a field officer shall be one) shall hold a court martial at the courthouse of their county, or at, or convenient to, the place where the general muster shall be, on the day following their general muster, having first taken the following oath: I. [space] do swear, that, as a member of this court martial, I will do equal right and justice to all men, according to law. So help me God. Which oath shall be administered to the presiding officer by the next in command, and then by such presiding officer to the other members. The said court may adjourn from day to day, and shall have power to exempt all persons enrolled whom, from age or inability, they may adjudge incapable of service; and shall also inquire, by testimony, on oath, (which the clerk is hereby enabled to administer) into all delinquencies against this act which shall have happened since the last court martial, and where no reasonable excuse for the same is made appear to them, shall give judgment for the penalties thereto annexed. But if it shall appear to the next court martial that any person fined for such delinquency was unable to attend the court, by which he was fined, and had reasonable excuse for the delinquency, such fine shall be remitted.
The said court shall have power to appoint a clerk to enter and preserve their proceedings, to whom the president shall administer an oath, truly and faithfully to execute the duties of his office and may also appoint a provost martial to attend on the said court for the preservation of order and good behaviour. And all fines shall be collected by the sheriff of the county, who shall have power to levy the same in like manner, and be entitled to the like fee, as in case of execution of fieri facias; and on failing, without reasonable cause, or refusing to make such collection, shall be held accountable for the same, to be recovered with costs, before any court of record, by action, to be brought in the name of the members of such court martial, or the survivors of them; and after collecting the same, if he shall refuse to pay them to the order of the said court martial, judgment, on motion, in the court of the said county, shall be given, and execution awarded against him and his securities for the same, with costs, they having ten days previous notice of such motion. And the said court martial shall also appoint some person, not being a member of the said court, to be a bursar, who shall receive from the collector all fines by him collected, and all sums of money recovered from him, and who, before he enters on the execution of his office, shall give bond, with sufficient security, payable to the members of the said court and their successours, for the due payment of all such monies which shall come to his hands. And if any bursar shall fail or delay to account with the said court, or to apply the money in his hands as by them directed, after deducting at the rate of five per centum for his own trouble, on motion made in any court of record, by any person authorised to receive money for him, or by any other by order of the said court martial, judgment shall be given, and execution awarded for the sums so unpaid or unaccounted for, together with the costs of the motion, the defendants having first had ten days notice of such motion.
All fines imposed by this act shall be appropriated, in the first place, to the payment of the salaries and allowances to the adjutant, clerk, provost martial, collectors, and bursar, then to reimbursing the publick treasury for any arms purchased for the poor soldiers of such county, and for drums, fifes, and colours, bought for the several companies; and if any surplus remain, it shall be laid out by the court martial in establishing and furnishing, for the use of their county, a magazine of small arms, field pieces, ammunition, and such other military stores as may be useful in case of invasion or insurrection.
And be it enacted, 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 August, 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 oftener, if thereto required by such chief officer, to patrol and visit all negro quarters, and other places suspected of entertaining unlawful assemblies of slaves, servants, or other disorderly persons, as aforesaid, unlawfully assembled, or any others trolling about from one plantation to another, without a pass from his or her master, mistress, or owner, and to carry them before the next justice of the peace, who if he shall see cause, is to order every such slave, servant, or 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 empowered to administer) of the names of those of his party who where [were] upon duty, and of the proceedings in such patrol. And such 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 certificates, are hereby empowered and required to levy fifteen pounds of tobacco, or two shillings and sixpence, for every twelve hours each of them shall so patrol. And every commanding officer of the militia failing to appoint patrollers, according to the directions of this act, shall forfeit and pay the sum of fifty pounds; and every person appointed to patrol in pursuance of this act, and failing to do his duty, shall forfeit and pay the sum of twenty shillings for every such failure; which fines shall be laid by the court martial of the county, and shall be collected, 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.
All other acts and ordinances, so far as they relate to regulating and disciplining the militia of the several counties, are hereby repealed: Provided, nothing in this act shall be construed to alter or change any thing contained in the general constitution or form of government, or to disqualify any militia officers heretofore appointed from acting by virtue of such commissions respectively; and provided also, that any court martial, which shall be held by virtue of this act, shall hear and determine any delinquency committed or done before the passing thereof, according to the laws in force at the time of the commission of the offence.
This act shall be read to every company of the militia, by order of the captain, or next commanding officer thereof, at the first muster next succeeding every general muster, on penalty of five pounds for every omission.