Virginia Militia Act 1757
CHAP. III.
An Act for the better regulating and
disciplining the Militia.
I.
WHEREAS it is necessary, in this time of danger,
that the militia of this colony should be well regulated and disciplined. Be it
therefore enacted, by the Lieutenant-Governor, Council, and Burgesses, of this
present General assembly, and it is hereby enacted by the authority of the
same, That from and after the passing of this act every county lieutenant,
colonel, lieutenant-colonel, and other inferior officer, bearing any commission
in the militia of this colony, shall be an inhabitant of, and resident in the
county of which he is or shall be commissioned to be an officer of the militia.
II.
And be it further enacted, by the authority
aforesaid, That the lieutenant, or in his absence the chief officer of the
militia, in every county, except the county of Hampshire, shall list all male
persons above the age of eighteen years, and under the age of sixty years,
within this colony (imported servants excepted) under the command of such
captain as he shall think fit, within one month after the passing of this act.
III.
Provided always, That nothing herein contained
shall be construed to compel any person hereafter mentioned to muster, that is
to say, such as are members of the council, speaker of the house of burgesses,
receiver-general, auditor, secretary, attorney-general, clerk of the council,
clerk of the secretary's office, ministers of the church of England, the
president, masters or professors, and students of William and Mary college, the
mayor, recorder, and aldermen of the city of Williamsburg, and borough of
Norfolk, the keeper of the public gaol, any person being bona fide an overseer
over four servants or slaves, being tithables, and actually residing on the
plantation where they work, and receiving a share of the crop or wages for his
care and pains in looking after such servants and slaves; any miller having the
charge and keeping of any mill, and founders, keepers, or other persons
employed in or about any copper, iron, or lead mine, who are all hereby
exempted from being inlisted or any wise concerned in the militia during the
time they shall continue in such station or capacity.
IV.
And be it further enacted, by the authority
aforesaid, That every person so as aforesaid inlisted (except free mulattoes,
negroes, and Indians) shall be armed in the manner following, that is to say:
Every soldier shall be furnished with a firelock well fixed, a bayonet fitted
to the same, a double cartouch-box, and three charges of powder, and constantly
appear with the same at the time and place appointed for muster and exercise,
and shall also keep at his place of abode one pound of powder and four pounds
of ball, and bring the same with him into the field when he shall be required:
And if it shall be certified to the court of any county, by order of the
court-martial, that any soldier inlisted in such company is so poor as not to
be able to purchase the arms aforesaid, then such court shall, and they are
hereby required, immediately to depute some person to send for the same to
Great Britain by the first opportunity, and to levy the charge thereof in the
next county levy; which arms so to be sent for shall be marked with the name of
the county; and if any person shall presume to buy or sell any such arms, so
provided as aforesaid, then, and in such case, every person so buying or
selling shall forfeit and pay the sum of six pounds, to be recovered, with
costs, by information, before the court of the county to which the arms shall
belong, or in the court of the county wherein the offender or offenders shall
reside, one moiety whereof shall be to and for the use of the county to which
the arms shall belong for the purchasing other arms, and the other moiety to
the informer: And all arms purchased by any county and delivered to any poor
soldier, as aforesaid, shall, on his death or removal out of the county, be
delivered to the chief officer of the militia in the county, or to the captain
of the company to which such poor soldier did belong, to be by such officer
delivered to any other poor soldier that the commanding officer of the said
county shall adjudge unable to provide himself with arms, as aforesaid.
V.
And be it further enacted, by the authority
aforesaid, That the several persons herein before exempted from mustering
(except ministers of the church of England, the president masters or
professors, and students of William and Mary college, the keeper of the public
gaol, overseers and millers, and all workers in any mine whatsoever) shall
provide arms for the use of the county, city, or borough wherein they shall
respectively reside, in the following manner, that is to say: Each counsellor,
not being an officer of the militia, four compleat sets of arms, as is herein
before directed for a soldier; the speaker of the house of burgesses, not being
an officer of the militia, four compleat sets as before; the receiver-general,
auditor, and secretary, not being a counsellor or officer of the militia, each
four compleat sets, as before; the attorney-general, not being an officer of
the militia, two compleat sets as before; the clerk of the council and clerk of
the secretary's office, not being officers of thee militia, each two compleat
sets, as before; the mayor, recorder, and alderman of the city of Williamsburg
and borough of Norfolk, not before by this act obliged, and not being officers
of the militia, each two compleat sets, as before, And if they shall fail or refuse so to do,
within twelve months after the passing of this act, then it shall and may be
lawful for the several courts of the counties wherein the persons before
mentioned shall reside, and they are hereby impowered and required to levy the
value of the same on each of them respectively.
VI.
Provided always, That nothing herein contained
shall be construed to oblige any of the persons exempted from mustering, as
aforesaid, who have already provided arms for the use of the county, city, or,
borough wherein they respectively reside, according to the directions of the
act made in the twenty ninth year of his present majesty's reign, intituled, An
act for the better regulating and training the militia, to provide any other
arms for the use aforesaid.
VII.
And be it further enacted, by the authority
aforesaid, That all such free mulattoes, negroes, and Indians as are or shall
be inlisted, as aforesaid, shall appear without arms, and may be employed as
drummers, trumpeters, or pioneers, or in such other servile labor as they shall
be directed to perform.
VIII.
And for the better training and exercising the
militia, and rendering them more serviceable, Be it further enacted, by the
authority aforesaid, That every captain shall, once in three months, and oftner
if thereto required by the lieutenant or chief commanding officer in the
county, muster, train, and exercise his company, and the lieutenant or other
chief commanding officer in the county shall cause a general muster and
exercise of all the companies within his county, to be made in the months of
March or April, and September or October, yearly; and if any soldier shall, at
any general or private muster, refuse to perform the command of his officer, or
behave himself refractorily or mutinously, or misbehave himself at the courts
martial to be held in pursuance of this act, as is herein after directed, it
shall and may be lawful to and for the chief commanding officer, then present,
to cause such offender to be tied neck and heels, for any time not exceeding
five minutes, or inflict such corporal punishment as he shall think fit, not
exceeding twenty lashes.
IX.
And every captain, or in his absence the
lieutenant, shall duly make a list of all the persons upon his muter-roll who
shall be summoned and do not appear at any of the said musters, armed, and with
powder and ball as by this act is directed, and return the same, with the names
of all officers who shall be absent, to the next court martial; and every
captain shall have power to appoint a clerk to his company, who shall be sworn
by such captain well and truly to execute his said office, and such clerk shall
keep the muster-roll and attend all musters with the same, and shall be
exempted from mustering, but shall appear with arms, and powder, and ball, as
is before (directed at all such musters: And further, it shall and may be
lawful for the lieutenant or other chief officer of the militia in the county,
to order all soldiers inlisted therein to go armed to their respective parish
churches.
X.
And be it farther enacted, by the authority
aforesaid, That it shall and may be lawful for the field officers and captains
of every county, or the major part of them, whereof the county-lieutenant,
colonel, lieutenant-colonel, or major, shall be one, and they are hereby
required to meet at the court house of their counties respectively, the day
next following the general muster in September or October every year, if fair,
if not, the next fair day, then and there to hold a court martial, which court
shall have power to adjourn from day to day, and to enquire of the age and
abilities of all persons inlisted, and to exempt such as they shall adjudge incapable
of service, and of all delinquents returned by the captains for absence from
musters or appearing without arms, powder, or ball; and where any person is
returned a delinquent to a court-martial and shall not be able, by reason of
sickness or other real disability, to attend such court to give in his
reasonable excuse for such his delinquency, it shall and may be lawful for the
succeeding court-martial to be held for such county, city or borough, wherein
such person shall be returned a delinquent, upon such reasonable excuse then
offered, to remit such fine or fines levied by the proceeding court-martial on
such person; and such court shall and may, and they are hereby impowered to
administer an oath or oaths to any person or persons for their better
information in the premisses, and to order the fines inflicted by this act, not
otherwise directed, to be levied upon all delinquents who shall not make out
some just excuse, for not performing their duty, and to order and dispose of
all such fines for buying drums and trophies for the use of the militia of the
county, and for supplying the militia of the said county with arms: And the
said courts shall have full power, and are hereby required to keep a register
of all their proceedings, and for that purpose to appoint a clerk, and to
administer an oath to such clerk well and faithfully to execute his office, and
to allow him such salary for his service, out of the said fines, as they in
their discretion shall think reasonable; and after the holding of every such
court the clerk shall make out copies of all their orders and deliver the same,
within one month next following the said court, to the sheriff of the county,
who is hereby required to demand and receive the money therein charged of the
person made chargeable therewith, and in case of non-payment, on or before the
tenth day of April then next following: to levy the same by distress and sale
of the goods of the person refusing, according to the directions of the laws
now in force enabling the sale of goods distrained for rent; and where any
delinquent shall remove out of the county before he hath paid and satisfied all
fines laid on him in pursuance of this act and shall not leave sufficient
effects in the county to satisfy the same, then the said clerk shall send
copies of the said courts orders against such delinquents to the sheriff of the
county into which he or they shall be removed, and such sheriff is hereby
impowered and required to collect, levy and account for the same in the manner
herein before directed.
XI.
And be it further enacted, by the authority
aforesaid, That the several persons herein after mentioned failure to do their
duty in the manner by this act directed shall forfeit and pay the several sums
following respectively, that is to say: The lieutenant of any county or the
chief commanding officer there failing to appoint a general muster in the
months of March or April, and another in the months of September , or October,
in every year, not having a reasonable excuse, shall for every such failure
forfeit and pay the sum of twenty pounds, every county lieutenant, colonel,
lieutenant-colonel, and major failing to appear at every such general muster,
or at the court-martial shall forfeit and pay ten pounds for every such
failure, every captain who shall fail to muster and exercise his company four
times a year, or oftener if thereto required, shall forfeit and pay forty
shillings for every time he shall so fail to muster and exercise, and every
captain failing to appear at every general muster and court-martial shall
forfeit and pay five pounds for every such failure; every lieutenant who shall
fail to appear at any muster shall forfeit and pay twenty shillings for every
such failure; and every ensign ten shillings for every such failure; and every
captain, or in his absence the lieutenant, failing to return a list of the
persons who shall not appear at musters, or shall appear without arms, powder
and ball, shall forfeit and pay ten pounds for every such failure; every clerk
failing to appear with arms, powder and ball, as is before directed, shall pay
ten shillings for every such failure; every soldier refusing to serve as a
serjeant, corporal or drummer, being thereto required by his captain, shall pay
five shillings for every muster he shall so re- fuse; and every soldier
appearing at muster without a firelock well fixed, and a bayonet fitted to the
same, shall pay three shillings for every such failure, and for appearing at
muster without a double cartouch-box shall pay one shilling, and without three
charges of powder shall pay two shillings for every such failure, and every
soldier failing to appear at muster shall forfeit and pay ten shillings for
every such failure.Provided, That no person be fined above six times in the
year for any particular default. Every soldier ordered to go armed to church
neglecting so to do shall pay five shillings for every such failure; and every
clerk of a court-martial failing to deliver the orders of the court-martial to
the sheriff or sheriffs within the time before limitted shall forfeit and pay
fifty pounds.
XII.
And be it further enacted, by the authority
aforesaid, That every officer of the militia within this colony shall at all
times that he acts on duty at any private or general muster, appear well armed,
in the following manner, that is to say: Every county lieutenant, colonel,
lieutenant-colonel, major with a sword; and every captain and lieutenant with a
firelock and a sword, and every ensign with a cuttingsword; every corporal and
serjeant with a cutting-sword and halbert, under the penalty of ten shillings
for every time that every such officer shall appear without such arms; all
which fines shall be levied by the court-martial directed to be held by this
act in such county, city or borough wherein such officers shall act as an
officer, and be appropriated to the same uses as is before directed for the
appropriation of the fines levied on the soldiers of the militia appearing
unarmed.
XIII.
Provided nevertheless, That every such officer
shall have twelve months allowed him, after his promotion to such office, for
the furnishing the arms as aforesaid, but in the mean time shall appear with
such of the said arms as he already hath: And the same fines and penalties
shall be paid by the officers and soldiers of the militia in the city of
Williamsburg and borough of Norfolk, in case of their failing or refusing to do
and perform the several services, and to appear armed and with powder, in the
same manner as is by this act required of the officers and soldiers of the militia
of the several counties.
XIV.
Provided also, and it is hereby enacted, That
twelve months shall be given and allowed to each soldier, not already inlisted,
to furnish and provide himself with arms and ammunition according to the
directions of this act, and that no soldier be fined for appearing without or
not having the same at his place of abode until he hath been inlisted twelve
months as aforesaid, so as such soldier do appear at all musters during the
said twelve months with such arms as he hath and is already furnished with: And
if any soldier shall appear at any muster not armed, and without ammunition
according to the directions of this act, it shall and may be lawful for the
captain of the company to which such soldier shall belong to examine such soldier,
upon oath, whether he hath any, and what arms and ammunition he really hath of
his own property, and if on such examination it shall appear that such soldier
hath any arms or ammunition of his own property, and hath not brought the same,
or so much thereof as this act requires, to such muster, he shall be liable to
the penalties inflicted by this act altho' he hath not been inlisted twelve
months; and where any person inlisted, pursuant to this act, in any county,
shall remove to another county, the time for furnishing himself with arms and
ammunition shall commence from the time of his being first inlisted in the
county from whence he removed.
XV.
And for an encouragement to every soldier to
provide and furnish himself according to the directions of this act, and his
security to keep his arms and ammunition when provided. Be it further enacted,
by the authority aforesaid, That the arms and ammunition provided and kept in
pursuance of this act be free and exempted at all times from being impressed
upon any account whatsoever, and likewise from being seized or taken by any
manner of distress, attachment, or writ of execution, and that every distress,
seizure or execution made or served upon any of the premisses be unlawful and
void, and that the officer or person who presumes to make or serve the same be
liable to the suit of the party grieved, wherein double damages shall be given
upon a recovery; and every person going to, attending at, and returning from
muster shall be priviledged and exempted from arrests, and from being served
with any other process in any civil action or suit.
XVI.
And be it further enacted, by the authority
aforesaid, That if any exempted overseer or miller shall presume to appear at
any muster, or in any muster-field whatsoever on the day on which such muster
shall be appointed, the party so offending shall, for every such offence,
forfeit and pay twenty shillings, to be assessed upon him by the next
court-martial, upon a certificate of the offence to them made by the captain or
chief officer present at such muster, or the information, on oath, of any
person whatsoever, and levied, accounted for, and appropriated in the same
manner as the other fines ordered by the court-martial; and that the fines and
penalties incurred by infants and servants for the breach or neglect of their
duty in any particular service by this act required of them, shall paid by the
parent, guardian, or master, respectively; and if the breach or neglect of such
servants is, not occasioned by their masters influence or direction, then the
fines incurred by them and so paid by the master, shall be repaid to the master
by the further service of such servant, after the time they are bound to serve
is expired, which shall be determined by the county court, or the court of Hustings
in the city of Williamsburg or borough of Norfolk, wherein either of the
parties reside, upon complaint made to them thereof by such master.
XVII. And
be it further enacted, by the authority aforesaid, That if any sheriff shall
refuse to receive the; orders of any court martial offered to him, by virtues
of this act, or to collect and levy the fines herein mentioned, such sheriff
upon a motion and complaint thereof, made to the county court or general court,
shall he fined for every such refusal, one hundred pounds, to be appropriated
in the same manner as the other fines last mentioned: And if any sheriff shall
take upon him such collection, or receiving the said orders shall fail to
account for and pay what he shall have received by virtue thereof to the
receiver, to be appointed for that purpose by the court martial, deducting six
per cent, only for his commission in collecting and receiving, upon a motion or
complaint made against him by the said receiver or the commanding officer of
the militia, to the county court or general court, such court shall give
judgment and award execution against him, his executors or administrators, for
the same. Provided, That such sheriff, his executors or administrators, have
ten days previous notice of such motion. And if any receiver heretofore
appointed or hereafter to be appointed, hath failed or shall fail to account
with the court martial when required, or to apply the money by him received or
to be received, as he hath been or shall be directed by the court martial, that
then upon a motion or complaint made to the county court or court of hustings,
in the city of Williamsburg or borough of Norfolk, respectively, by any officer
of the militia against such receiver, such court shall give judgment and award
execution against him, his executors or administrators for the same, and cause
the money to be appropriated to the uses directed by the court martial.
Provided, That such receiver, his executors or
administrators, have ten day previous notice of such motion, And if any sheriff
hath heretofore failed to account for and pay all militia fines collected by
him, upon a motion or complaint made by the receiver or commanding officer of
the militia of the county whereof he is or hath been sheriff to the general or
county court, such court shall give judgment and award execution against him,
his executors or administrators for the same. Provided, Notice be given to such
sheriff, his executors or administrators, as aforesaid.
XVIII. And
be it further enacted, by the authority aforesaid, That every commission officer
in the militia, shall, before he acts under or executes any such commission in
the court of his county, take the oaths appointed by law to be taken, instead
of the oaths of allegiance and supremacy, the abjuration oath, and subscribe
the same with the test; and that every county lieutenant, colonel,
lieutenant-colonel, major, and captain, at the time of holding every court
martial, before they hold the same, shall take the following oath, which shall
be first taken by the presiding officer then present, and then be by him
administered to the rest of the officers, to wit,
I A. B. do swear, that I will do equal right
and justice to all men according to the act of Assembly, for the better
regulating and disciplining the militia. And every person accepting a
commission in the militia, who shall neglect or refuse to qualify himself to
act under the same, by taking and subscribing the oaths and test before
mentioned, within three months after receiving his commission, every such person
shall forfeit and pay the sum of five pounds.
XIX.
And be it further enacted, That the fine by this
act imposed on the lieutenant or chief commanding officer of the militia for
neglecting to order general musters, shall be one moiety to the informer and
the other to and for the use of the county for providing arms, and shall and
may be recovered with costs, by action of debt or information, in any court of
record.
XX.
And be it further enacted, That if there be no
court martial held the penalties herein before inflicted on officers not
attending such court martial or the general muster, shall be recovered against
the officers failing to attend or appear, and collected in the same manner, as
is herein before directed for recovering and collecting the fines and penalties
laid on officers failing to appoint general musters.
XXI.
And be it further enacted, by the authority
aforesaid, That every adjutant for the time being, with one servant and their
horses, shall be exempt from the payment of ferriages, at all public and other
ferries within this colony, and that the respective ferry keepers shall give
them and their servants and horses immediate passage at all such ferries, as in
the case of public expresses, any law or custom to the contrary
notwithstanding.
XXII. And
be it further enacted, by the authority aforesaid, That all and every other act
and acts, and every clause and article therein contained for the settlement and
regulation of the militia, or any other matter or thing within the purview of
this act, shall be and is hereby repealed and made void to all intents and
purposes whatsoever.
XXIII. Provided
nevertheless, and be it enacted, by the authority aforesaid, That nothing
herein contained shall be construed so as to discharge or excuse the militia
established by the act of Assembly made in the twenty-ninth year of his present
majesty's reign, intituled, An act for the better regulating and training the
militia, from conforming to the several rules and performing the several duties
in the said act directed; but that the said militia shall continue on such
establishment until they are inlisted according to the directions of this act,
and that the several penalties incurred by any offender or delinquent in the
before recited act shall be enquired into, and the fines thereupon arising
assessed by the court martial appointed to be held in pursuance of this act,
and that all such fines shall be levied on such offenders or delinquents, and
appropriated and accounted for in the same manner as is herein before directed
for any other fines or penalties and that the several county courts shall have
full power and authority to levy in their respective county levies the charges
and expences for all such arms as have been, purchased or sent for to
Great-Britain, by the directions of the before recited act.
XXIV. Provided
always, That nothing in this act contained shall extend or be construed to
extend to the inhabitants of the city of Williamsburg or borough of Norfolk, so
as to oblige them to muster or serve in the militia out of the said city or
borough, but that such inhabitants shall be inlisted and trained in manner as
is directed by the acts of Assembly made in the ninth and twelfth years of the
reign of his late majesty king George the first, intituled. An act for
enlarging the jurisdiction of the court of hustings in the city of Williamsburg
within the limits thereof: And an act to prevent the inhabitants of the borough
of Norfolk from being compelled to serve in the militia of the county of
Norfolk, and to exempt sailors or seamen in actual pay on board any ship or
vessel from serving in the militia, any thing: in this act to the contrary
notwithstanding. And whereas the method
by the said recited acts prescribed for fining delinquents in the militia of the
said city or borough hath been found inconvenient, for remedy whereof.
XXV. Be
it further enacted, by the authority aforesaid, That from and after the passing
of this act, the colonel, major, and captains of the militia of the said city
of Williamsburg and borough of Norfolk, or the major part of them, whereof the
colonel or major shall be one, shall, and they are hereby impowered and
required to hold a court martial at the court houses of the said city and
borough respectively, in the same manner and for the same purposes as the
courts martial are by this act directed and appointed to be held the counties,
any thing in the said recited acts to contrary notwithstanding.
XXVI. And
be it further enacted, That the colonel or chief commanding officer of the said
city or borough, shall not by virtue of the two last recited acts be suffered
to inlist in the militia of the said city or borough any persons that are
officers of the militia in the counties wherein such city or borough shall lie.
XXVII.
And for establishing a better method of
appointing patrollers, and for declaring their duty therein. Be it enacted, by
the authority aforesaid, That it shall and may be lawful for the chief officer
of the militia in every county, and he is hereby required some time before the
tenth day of June yearly, to appoint an officer and so many men of the militia,
as to him shall appear to be necessary, not exceeding four, once in every month
or oftner if thereto required by such chief officer, to patrol and visit all
negroe quarters, and other places suspected of entertaining unlawful assemblies
of slaves, servants, or other disorderly persons as aforesaid, unlawfully
assembled, or any other strolling about from one plantation to another without
a pass from his master, mistress, or overseer, and to carry them before the
next justice of the peace, who if he shall see cause, is to order every such
slave, servant, stroller, or other disorderly person as aforesaid, to receive
any number of lashes, not exceeding twenty, on his or her bare back well laid
on; and in case one company of patrollers shall not be sufficient, to order
more companies for the same service. And
after every patrol the officer of each party shall return to the captain of the
company whereunto he belongs, a report in writing upon oath (which oath such
captain is hereby impowered to administer, of the names of those of his party
who were upon duty, and of the proceedings in such patrol, and each captain
shall once in every month deliver such patrol returns to the county lieutenant,
or other chief commanding officer in his county, by whom they shall be
certified and delivered to the next court, martial, and if they shall adjudge
the patrollers have performed their duty according to law, the chief officer
shall certify the same to the county court, who upon such certificate are
hereby impowered and required at the laying of their county levy to allow to,
and levy for every one of the patrollers ten pounds of tobacco for every day or
night they shall so patrol and moreover such patrollers shall be exempt from
the payment of public, county, and parish levies, for their own persons for
those years in which they shall be employed in that service.
XXVIII.
And be it further enacted, by the authority
aforesaid, That if the chief officer of the militia in any county, shall fail
to appoint patrollers according to the directions of this act such officer
shall forfeit and pay the sum of five pounds, and every person appointed to
patrol in pursuance of this act failing to do his duty therein shall pay the
sum of five shillings, for every such failure, which fines shall be laid by the
court martial of the county, and shall be collected, levied, accounted for, and
appropriated as is herein before directed, for the collecting, levying,
accounting for, and appropriating the several fines and penalties herein before
laid; and in like manner the chief officer of the militia in the aforesaid city
of Williamsburg and borough of Norfolk, shall appoint all the persons of their
militia to patrol within the said city and borough, or within half a mile of
the limits thereof by turns, in such numbers and at such times as they shall
think necessary, which officers and patrollers shall be subject to the same
fines and penalties, and to be recovered and appropriated in the same manner as
is herein before directed in the case of patrollers in the counties.
XXIX. And
be it further enacted, by the authority aforesaid, That if any action shall
hereafter be brought in any court of this colony, against any person or persons
appointed to patrol pursuant to this act, for any matter or thing done by him
or them in the execution of their duty as patrollers, it shall and may he
lawful to and for every person and persons against whom such action or suit
shall be brought to plead the general issue, and give the special matter in
evidence on the trial, and if any judgment shall be given for the defendant, or
if the plaintiff shall become nonsuit or discontinue his suit, then the
defendant shall recover treble costs.
XXX. And
be it further enacted, by the authority aforesaid, That this act shall commence
and be in force from and after the passing thereof, for and during the term of
three years.
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