5. A Bill for Regulating and Disciplining the Militia
For1 forming the citizens of this commonwealth into a militia and disciplining the same for defence thereof, be it enacted by the General Assembly of the commonwealth of Virginia, that all free male persons, hired servants and apprentices,2 between the ages of 16 and 50 years (except the Governor and members of the Council of State, members of the American Congress, Judges of the Superior Courts, Speakers of the two Houses, the Treasurer, Attorney General, Commissioners of the navy, Auditors, Clerks of the Council of state,3 of the Houses of Assembly 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, the Presidents, Professors, and students of the College of William and Mary, and Academy of Hampden-Sidney, post-masters, keepers of the public jail and public hospital, millers, except in the counties of Accomack and Northampton, persons concerned in iron or lead works, inspectors of tobacco, quakers and menonists, and military officers or soldiers, whether continental or colonial,4 all of whom are exempted from the obligations of this act) shall, by the commanding officer of the county in which they reside, be inrolled and formed into companies of not less than 32, nor more than 68 rank and file; and these companies shall again be formed into battalions of not more than 1000 nor less than 500 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, 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 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 in the militia of the county of 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 December and January,5 at such convenient time and place as the Captain, or next commanding officer, shall appoint; and a general muster in each county, at the courthouse of the same,6 on a convenient day in the months of April and October in every year, to be appointed by the County Lieutenant or other commanding officer,7 Every officer and soldier shall appear at his respective musterfield, by 11 o’clock in the forenoon, armed or accoutred as follows; the County Lieutenant, Colonels, Lieutenant Colonels, and Majors, 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 serjeant with a sword and halbard; every private with a rifle and tomahawk, or common 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.8 If any soldier be certified to the court-martial to be so poor that he cannot purchase such arms, the said court shall cause them to be procured at the expence of the public, 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 such arms, the seller 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.9
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 has 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 arrest, 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 colors, and halbards10 for the same, at the public expence, to be reimbursed out of the fines on the delinquents of his county.
An adjutant11 shall be appointed, by the court-martial of each county, to attend all musters general and private, and instruct the officers and soldiers in military duty: He shall continue in office till the next court-martial, and have an allowance by the said court, not exceeding the rate of fifty pounds a year, 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 also of all quakers and menonists, within the same extent, not yet divided into tenths;12 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 enroll 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, and every soldier five shillings; for not returning to the next court-martial a true list of the delinquencies in his company, every Captain, or commanding officer for the time, shall forfeit ten pounds;13 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.14
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 enquire into such misbehavior and either censure the same or make report thereof to the Governor 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 refactorily or mutinously, or misbehave himself at a court-martial, the commanding officer,15 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 by-stander 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 a 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 court-house of their county,16 on the day following their general muster; having first taken the following oath: “I 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 enquire, 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 courtmartial; 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 any 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 behavior; and either by themselves, or any of their members, by their order, may appoint one or more persons to collect all fines, with an adequate allowance out of the same for their trouble: who shall have power to distrain for the same, and failing, or refusing, without reasonable cause, to make such collection, after having undertaken it, shall be held accountable for the same, each in his proper person and of his proper estate, to be recovered before any court of record, by action to be brought in the name of the court martial: And if after collecting the same he shall refuse to pay them, to the order of the said court-martial, he shall be subject to pay the double thereof on motion in any court of record and ten days previous notice given him of such motion;17 and the said court-martial shall also appoint some person, not being a member of the said court, to be their burser, 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 successors, for the due payment of all such monies which shall come to his hands. And if any burser 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 from 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 burser; then to reimbursing the public treasury for any arms purchased for the poor soldiers, of such county, and for drums, fifes, and colors, 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.18
All other acts and ordinances, so far as they relate to regulating and disciplining the militia of the several counties, are hereby repealed.19
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.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 4–6. No MS of this Bill, as introduced in 1777, has been found. See Bill No. 6, below, which TJ introduced the same day that this one was brought in, 10 May 1777; both Bills were based on the ordinance of 1775 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 9–35) and both, in fact, were embodied in one Bill when finally enacted into law in 1784 and again in 1785 (same, xi, 476–94; xii, 9–24).
On 9 May 1777 TJ was appointed a member to bring in a Bill for regulating and disciplining the militia; he introduced the Bill 10 May; and during the next month it was amended by both the House and the Senate (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1777, 1827 edn., p. 6–7, 12, 14, 20, 36, 58–9, 62, 68, 70, 72). The text here presented (Bill No. 5) follows the text of the Act of 1777 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 267–74) except as indicated in the notes below. The Act of May 1777 (same, ix, 313–14), which provided for regulating and disciplining the militia of the city of Williamsburg and the borough of Norfolk by incorporating the students, professors, and others liable to militia duty in a special category, but subject to the same regulations, orders, and penalties as set forth in the general militia Act passed at the same session, was disregarded in Bill No. 5, thereby making the exemption of professors and students absolute; the special Act relating to Williamsburg and Norfolk was incorporated in the Act of 1784 (same, xi, 494). The latter Act, as indicated in the notes below, elaborated the militia law and incorporated many of the lessons learned during the Revolution; such as that Steuben’s plan of discipline should be followed in training the militia; it also embraced much of Bill No. 5 as here presented and also of Bill No. 6. For the treatment of Bill No. 5 by the General Assembly in 1785, see notes to Bill No. 6.
1. The Acts of 1784 and 1785 include a preamble which indicates in part why the Act of 1777 and Bills No. 5 and 6 of the Committee of Revisors were considered inadequate: “the defence and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty, and the different laws heretofore enacted being found inadequate to such purposes, and in order that the same may be formed into one plain and regular system” (same, xi, 476; xii, 9).
2. The Acts of 1784 and 1785 omit the phrase “hired servants and apprentices” and alter the age limits to 18 and 50 years respectively.
3. The Act of 1777 does not include the following exemptions allowed by Bill No. 5: clerks of the houses of assembly, the presidents, professors, and students of the College of William and Mary and of Hampden-Sidney, inspectors of tobacco, Quakers, and Menonists. The Act of 1777 includes the following not in Bill No. 5: clerks of the treasury and persons solely employed in manufacturing firearms. The Acts of 1784 and 1785 enlarged the exemptions by the addition of auditors and their clerks, the solicitor general and his clerks, clerks of the treasury, the register of the land office, the deputy-register, and clerks of the register, custom house officers; it excluded clerks of the houses of assembly and of the navy board, Quakers and Menonists. The exclusion of Quakers and Menonists from the Acts of 1777, 1784, and 1785 is an indication of TJ’s authorship of Bill No. 5; see note 2 to Bill No. 6.
4. The Act of 1777 reads “whether of the continent or this commonwealth”; the use of the word “colonial” here and elsewhere in Bill No. 5 may be another indication of TJ’s authorship, since Bill No. 6, which TJ drew, also used the inappropriate word “colonial.”
5. The Act of 1777 reads: “January and February”; the Act of 1784 provided that each company should muster once in every three months, each regiment in March or April, and a general muster be held in October or November.
6. The Act of 1777 reads: “at a convenient place, near the centre of the county.”
7. The Act of 1777 provided for an elaborate manner of giving notice of muster days, through the regular chain of command from the county lieutenant down to the individual militiaman. This proviso was not incorporated in Bill No. 5, but was included and elaborated in the Acts of 1784 and 1785.
8. The terms of the Acts of 1784 and 1785 respecting arms reflect some of the lessons learned during the Revolution: captains, lieutenants, and ensigns were to carry swords and espontoons; non-commissioned officers and privates, “a good clean musket,” carrying an ounce ball and having a barrel three feet eight inches long, twenty cartridges, a knapsack, a canteen, a pound of good powder and four pounds of lead, “including twenty blind cartridges”; each sergeant was required to carry a pair of molds for casting musket balls; and the counties westward of the Blue Ridge were not required to be armed with muskets but might bear rifles instead. The Act of 1777 had provided that non-commissioned officers and privates should carry a rifle and tomahawk or a “good firelock and bayonet.”
9. The Act of 1777 includes at this point a provision for penalizing poor soldiers and others guilty of carrying arms out of the county; this was also included in Act of 1784. The omission of this provision from Bill No. 5, together with those described in notes 7, above, and 18, below, is another indication that, in drawing this Bill in 1779, TJ may have depended upon an original bill drafted by him in 1777.
10. The Act of 1777 omits the words “and halbards.”
11. The Act of 1777 reads: “One or more adjutants.”
12. The words “and also of all quakers … not yet divided into tenths” were not included in the Act of 1777.
13. The Act of 1777 adds the following at this point: “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.”
14. The Act of 1777 adds the following at this point: “or be compensated by farther service, to be ascertained by the county court.”
15. The Act of 1777 adds: “or court martial.”
16. The Act of 1777 adds: “or at, or convenient to, the place where the general muster shall be.”
17. Instead of the foregoing, the Act of 1777 provides authority for collection of fines by the sheriff.
18. The Act of 1777 includes a section at this point requiring small details of officers and men to make monthly inspections of “all negro quarters, and other places suspected of entertaining unlawful assemblies of slaves, servants, or other disorderly persons … or any others strolling about from one plantation to another, without a pass‥‥” The Act of 1784 also included such a provision; see notes 7 and 9, above.
19. The Act of 1777 includes the following at this point: “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.” See note 17 to Bill No. 6.