Militia Act, [25 November 1755]
Militia Act
Printed in Anno Regni Georgii II. Regis, Magnae Britanniae, Franciae & Hiberniae, Vigesimo Nono. At a General Assembly of the Province of Pennsylvania, begun and holden at Philadelphia, the Fourteenth Day of October, Anno Domini, 1755, … (Philadelphia, 1755), pp. 243–7.
Beginning in December 1754 Governor Morris had repeatedly asked the Assembly to pass a bill providing for the establishment and discipline of a provincial military force, but the House had always either ignored the request or had evaded a definite answer.1 In a message of November 3 he had pointed out that, while he had been issuing commissions “to such as were willing to take them,” he had been unable, because of the lack of a militia law, “to form the People into such regular Bodies as the present Exigency requires.”2 Within the next few days the Assembly received several petitions, both from Philadelphia and from the exposed frontiers, asking specifically for a militia act or for forts and garrisons.3
As fears of Indian attacks increased, pressure on the Assembly grew until on Wednesday, November 19, “By the Leave of the House, Benjamin Franklin, a Member of this House, brought in a Bill, entituled An Act for the better ordering and regulating the Military Force of this Province, which was read the first Time, and ordered to lie on the Table for Perusal of the Members.”4 This was one of the rare occasions during these years when an important bill originated with an individual member rather than with a committee. The next afternoon the measure was considered and, “after considerable Time spent therein,” was referred to a committee of six, including Franklin, “for Alteration and Amendment.” The following morning, November 21, with “an alteration made in the Title” and other unspecified amendments, the bill was again considered and in the afternoon it was passed, with four strict Quakers recording their dissent. On Saturday morning, the 22d, Governor Morris informed the House that, although it contained many things “of a very extraordinary Nature” and he was convinced it would “never answer the Purpose of defending this Province,” he was willing to assent to it rather than enter into new disputes. The formal enactment took place on Tuesday, November 25, only five legislative days after the introduction of the bill.5
In view of the Assembly’s long-standing refusal to create any sort of military force for Pennsylvania, the passage of this measure was clearly something of an achievement. That it fell far short of providing a militia system the governor and his supporters considered adequate is equally clear.6 The change in its title emphasized the fact that its provisions were merely permissive and in no sense compulsory. In framing the bill Franklin had drawn heavily on his experience in proposing and promoting the Association of 1747.7 The military units contemplated in both schemes were purely voluntary and in both the officers, though commissioned by the governor, were to be elected from below, not appointed from above.8 The most important difference was that in 1747 the Association was a completely extra-legal body created by the volunteers themselves, while in 1755 the military units were, for the first time in Pennsylvania history, to be established by formal legislative act. And during the eleven months before news of its disallowance by the King reached the colony, the act did serve, in spite of its limitations, as a basis for raising reserve forces for provincial defense.9
[November 25, 1755]
An ACT for the better Ordering and Regulating such as are willing and desirous to be united for Military Purposes within this Province.
Whereas this Province was first settled by (and a Majority of the Assemblies have ever since been) of the People called Quakers, who, though they do not, as the World is now circumstanced, condemn the Use of Arms in others, yet are principled against bearing Arms themselves; and to make any Law to compel them thereto against their Consciences, would not only be to violate a Fundamental in our Constitution, and be a direct Breach of our Charter of Privileges, but would also in Effect be to commence Persecution against all that Part of the Inhabitants of the Province: And for them by any Law to compel others to bear Arms, and exempt themselves, would be inconsistent and partial. Yet forasmuch as by the general Toleration and Equity of our Laws, great Numbers of People of other religious Denominations are come among us, who are under no such Restraint, some of whom have been disciplined in the Art of War, and conscientiously think it their Duty to fight in Defence of their Country, their Wives, their Families and Estates, and such have an equal Right to Liberty of Conscience with others. And whereas a great Number of Petitions from the several Counties of this Province have been presented to this House, setting forth, That the Petitioners are very willing to defend themselves and their Country, and desirous of being formed into regular Bodies for that Purpose, instructed and disciplined under proper Officers, with suitable and legal Authority; representing withal, that unless Measures of this Kind are taken, so as to unite them together, subject them to due Command, and thereby give them Confidence in each other, they cannot assemble to oppose the Enemy, without the utmost Danger of exposing themselves to Confusion and Destruction. And whereas the voluntary Assembling of great Bodies of armed Men, from different Parts of the Province, on any occasional Alarm, whether true or false, as of late hath happened, without Call or Authority from the Government, and without due Order and Direction among themselves, may be attended with Danger to our neighbouring Indian Friends and Allies, as well as to the internal Peace of the Province. And whereas the Governor hath frequently recommended it to the Assembly, that in preparing and passing a Law for such Purposes, they should have a due Regard to scrupulous and tender Consciences, which cannot be done where compulsive Means are used to force Men into Military Service; therefore as we represent all the People of the Province, and are composed of Members of different religious Persuasions, we do not think it reasonable that any should, through a Want of legal Powers, be in the least restrained from doing what they judge it their Duty to do for their own Security and the Publick Good; we, in Compliance with the said Petitions and Recommendations, do offer it to the Governor to be enacted, AND BE IT ENACTED by the Honourable Robert Hunter Morris, Esq; with the King’s Royal Approbation, Lieutenant-Governor, under the Honourable Thomas Penn, and Richard Penn, Esquires, true and absolute Proprietaries of the Province of Pennsylvania, and of the Counties of New-Castle, Kent and Sussex, upon Delaware, by and with the Advice and Consent of the Representatives of the Freemen of the said Province in General Assembly met, and by the Authority of the same, That from and after the Publication of this Act, it shall and may be lawful for the Freemen of this Province to form themselves into Companies, as heretofore they have used in Time of War without Law, and for each Company, by Majority of Votes, in the Way of Ballot, to chuse its own Officers, to wit, a Captain, Lieutenant and Ensign, and present them to the Governor or Commander in Chief for the Time being for his Approbation; which Officers so chosen, if approved and commissioned by him, shall be the Captain, Lieutenant and Ensign of each Company respectively, according to their Commissions, and the said Companies being divided into Regiments by the Governor or Commander in Chief, it shall and may be lawful for the Officers so chosen and commissioned for the several Companies of each Regiment to meet together, and, by Majority of Votes, in the Way of Ballot, to chuse a Colonel, Lieutenant-Colonel and Major, for the Regiment, and present them to the Governor or Commander in Chief for his Approbation; which Officers so chosen, if approved and commissioned by him, shall be the Colonel, Lieutenant-Colonel and Major of the Regiment, according to their Commissions, during the Continuance of this Act. Provided Always, That if the Governor or Commander in Chief shall not think fit to grant his Commission to any Officer so first chosen and presented, it shall and may be lawful for the Electors of such Officer to chuse two other Persons in his Stead, and present them to the Governor or Commander in Chief, one of whom, at his Pleasure, shall receive his Commission, and be the Officer as aforesaid.
And be it further enacted by the Authority aforesaid, That as soon as the said Companies and Regiments are formed, and their Officers commissioned, as aforesaid, it shall and may be lawful to and for the Governor, or Commander in Chief, by and with the Advice and Consent of the Colonels, Lieutenant-Colonels, and Majors of all the Regiments, being for that Purpose by him called and convened, or by and with the Advice and Consent of a Majority of the said Officers that shall be met and present together on such Call, to form, make and establish Articles of War, for the better Government of the Forces that shall be under their Command, and for bringing Offenders against the same to Justice; and to erect and constitute Courts Martial, with Power to hear, try and determine any Crime or Offences by such Articles of War, and inflict Penalties by Sentence or Judgment of the same on those who shall be subject thereto, in any Place within this Province. Which Articles of War, when made as aforesaid, shall be printed and distributed to the Captains of the several Companies, and by them distinctly read to their respective Companies; and all and every Captain, Lieutenant, Ensign, or other Freeman, who shall, after at least three Days Consideration of the said Articles, voluntarily sign the same, in the Presence of some one Justice of the Peace, acknowledging his having perused or heard the same distinctly read, and that he has well considered thereof, and is willing to be bound and governed thereby, and promises Obedience thereto, and to his Officers accordingly, shall thenceforth be deemed well and duly bound to the Observance of the said Articles, and to the Duties thereby required, and subject to the Pains, Penalties, Punishments and Forfeitures that may therein be appointed for Disobedience and other Offences.
Provided Always, That the Articles so to be made and established, shall contain nothing repugnant, but be as near as possible conformable to the military Laws of Great-Britain, and to the Articles of War made and established by his Majesty, in Pursuance of the last Act of Parliament for punishing Mutiny and Desertion; the different Circumstances of this Province compared with Great-Britain, and of a voluntary Militia of Freemen, compared with mercenary standing Troops, being duly weighed, and maturely considered.
Provided also, That nothing in this Act shall be understood or construed to give any Power or Authority to the Governor or Commander in Chief, and the said Officers, to make any Articles or Rules that shall in the least affect those of the Inhabitants of the Province who are conscientiously scrupulous of bearing Arms, either in their Liberties, Persons or Estates; nor any other Persons of what Perswasion or Denomination soever, who have not first voluntarily and freely signed the said Articles, after due Consideration as aforesaid.
Provided also, That no Youth, under the Age of Twenty-one Years, nor any bought Servant or indented Apprentice, shall be admitted to enroll himself, or be capable of being enrolled in the said Companies or Regiments, without the Consent of his or their Parents or Guardians, Masters or Mistresses, in Writing under their Hands first had and obtained.
Provided also, That no Enlistment or Enrollment of any Person, in any of the Companies or Regiments to be formed and raised as aforesaid, shall protect such Person in any Suit or civil Action brought against him by his Creditors or others, except during his being in actual Service in Field or Garrison; nor from a Prosecution for any Offence committed against the Laws of this Province.
Provided also, That no Regiment, Company, or Party of Volunteers, shall, by Virtue of this Act, be compelled or led more than three Days March beyond the inhabited Parts of the Province; nor detained longer than three Weeks in any Garrison, without an express Engagement for that Purpose first voluntarily entered into and subscribed by every Man so to march or remain in Garrison.
This Act to continue in Force until the Thirtieth Day of October next, and no longer.
1. Votes, 1754–55, pp. 14–15, 38, 43, 53–8, 83, 103, 114, 127–8, 154, 156.
2. Votes, 1755–56, p. 10.
3. Ibid., pp. 15, 18, 22, 24.
4. Ibid., p. 30.
5. Ibid., pp. 31, 32, 37, 41, 45, 46; Pa. Col. Recs., VI, 724, 735. The chronology of the bill’s passage through the required legislative steps is significant in view of the frequent allegation that the appearance of a mob of frontiersmen in Philadelphia demanding action for defense was the real stimulus for passage of the bill. See for example, Paul A. W. Wallace, Conrad Weiser, Friend of Colonist and Mohawk (Phila., 1945), p. 415; Theodore Thayer, Pennsylvania Politics and the Growth of Democracy, 1740–1776 (Harrisburg, 1953), p. 46; Arthur D. Graeff, “The Relation Between the Pennsylvania Germans and the British Authorities (1750–1776),” Pa. German Soc., XLVII (1939), pt. 3, pp. 135–9. In fact, both the Assembly and the governor had made their decisions to enact the Militia Bill, and the Assembly had ordered it engrossed, by Saturday morning, the 22d, though official word of the intended march of the frontiersmen on Philadelphia did not reach the governor and Council until Monday (Pa. Col. Recs., VI, 729). By the time they appeared, first before the governor and then before the Assembly, on Tuesday morning, the 25th, only the procedural steps remained of comparing the engrossed copy of the bill with the approved text, and its formal enactment, which was done at 4 o’clock that afternoon. Prior knowledge of frontier discontent was doubtless an aid to quick action on BF’s bill, but the arrival of the “mob” just before it was officially enacted into law was coincidental. For accounts of the colloquies of the frontiersmen with Morris and the Assembly, see below, p. 281.
6. Writing to Gov. Horatio Sharpe of Maryland the day after signing the act, Morris declared that the Assembly had passed it “with no other view but that I should refuse it and then to raise a clamour against me on that account, but as it is of such a nature as cannot be carryd into execution, I have disappointed them, and given my consent to it.” Pa. Arch., II, 520. See also ibid., pp. 526, 531, and below, p. 282. Chief Justice William Allen wrote the proprietary agent Ferdinand J. Paris, November 25, that the Assembly had “gone into a Solemn Farce, and made what they call a Melitia Law, impracticable and ridiculous and calculated rather to prevent than incourage persons to exert themselves in defence of their Country.” Lewis B. Walker, ed., The Burd Papers. Extracts from Chief Justice William Allen’s Letter Book (n.p., 1897), p. 30.
7. See above, III, 205–12.
8. Franklin may have been at least partially influenced in this matter by his knowledge, derived from his Boston boyhood, that in some New England colonies the militia company officers were regularly chosen by the men. And see below, p. 298, for his favorable explanation of the terms of this unique bill in “Dialogue between X, Y, and Z.”
9. In recommending the disallowance, the Board of Trade and the Privy Council committee observed that the act was “in every respect the most improper and inadequate to the Service which cou’d have been framed and passed, and is rather calculated to exempt Persons from Military Service than to encourage and promote them,” and then pointed out in detail what they believed to be its many defects. Pa. Col. Recs., VII, 274–5, 276–7.