6. A Bill Making Provision against Invasions and Insurrections
For making provision against invasions and insurrections, and laying the burthen thereof equally on all: Be it enacted by the General Assembly, that the division of the militia of each county into ten parts, [made under the laws heretofore in force, shall be]1 kept up in the following manner: The commanding officer of every county, within one month after every general muster, shall enroll, under some Captain, such persons, not before enrolled, as ought to make a part of the militia, who, together with those before enrolled, and not yet formed into tenths2 shall, by such Captain, at his first muster after receiving the same, be divided into ten equal parts, as nearly as may be, each part to be distinguished by fair and equal lot, by numbers from one to ten, and when so distinguished to be added to and made part of the division of the militia of such county already distinguished by the same number. And where any person subject to such allottment, shall not attend, or shall refuse to draw for himself, the Captain shall cause his lot to be drawn for him, by some other in presence of the company; [and as soon as such division shall be made, the Captain shall make return thereof to the commanding officer of the county. For failing to make such division, or return the same, the Captain shall forfeit ten pounds to be assessed by the court-martial of his county.] When any officer of the militia shall receive notice of any invasion or insurrection within his own county, he shall immediately give intelligence thereof to the commanding officer of the county, and if the urgency of the case requires it, he shall forthwith raise the militia under his special command, and proceed to oppose the enemy or insurgents. The commanding officer of the county, on receiving notice thereof, shall immediately, if the case will admit delay, or the danger be greater than the force of his own militia may be able to encounter, communicate the same to the Governor by express, for which purpose he may impress boats, men, and horses, and may also notify it to any militia officer of the adjacent counties, to be by him forwarded to his commanding officer; and in the meantime, if it be urgent, shall raise such part of his own militia as the case shall require and admit. The commanding officer of any adjacent county, receiving the notice so forwarded, shall immediately raise such part of his militia3 as the circumstances of the case may require, and order them to the assistance of such adjacent county; but any officer thinking4 the case of too small consequence to require these proceedings, may call a council of war, to consist of a majority of his Field-Officers and Captains, [or of a Field-Officer and of five Captains at the least,] and take their advice whether any, and what force, shall be raised or sent, or whether they may wait the Governor’s orders. The Governor, on receiving such intelligence, may, with advice of the Council of State, cause to be embodied and marched, to oppose such invasion or insurrection, such numbers of the militia as may be needful, and from such counties as will suit the exigency of the case, and, if the corps consists of three or more battalions may appoint a general officer [or officers, as the case may require,] to take command thereof. The several divisions of the militia of any county shall be called into duty by regular rotation from the first to the tenth; and every person failing to attend when called on, or to send an able bodied man in his room, shall, unless there be good excuse, be considered as a deserter, and suffer accordingly. Any able bodied volunteers who will enter into the service shall be accepted instead of so many of the divisions of the militia called for, [or of the particular person in whose room they may offer to serve;] but if the invasion or insurrection be so near and pressing as not to allow the delay of calling the division or divisions next in turn, the commanding officer may call on such part of the militia as shall be most convenient to continue in duty till such division or divisions can come to supply their places. The soldiers of such militia, if not well armed and provided with ammunition, shall be furnished with the arms and ammunition of the county, and any deficiency in these may be supplied from the public magazines, or if the case admit not that delay, by impressing arms and ammunition of private property; which ammunition, so far as not used, and arms, shall be duly returned, as soon as they may be spared: And any person embezzling any such public or private arms, or not delivering them up when required by his commanding officer, shall, on his warrant, be committed to prison without bail or mainprize, there to remain till he deliver or make full satisfaction for the same, [unless he be sooner discharged by the court of his county.] The commanding officer shall appoint such officers of the militia as he shall think most proper to command the men called out by divisions, in the following proportions: If there be called into duty not more than twenty, nor less than fifteen, he shall appoint one ensign and one serjeant to command them. If not more than thirty, or under twenty men,5 a Lieutenant, an ensign, and two serjeants. If not more than fifty men,6 a Captain-Lieutenant, ensign, and three serjeants. If sixty eight men,7 a Captain, two Lieutenants, an ensign, and four serjeants. And [if not more than one hundred and fifty, nor less than one hundred, a Major shall command. If more than one hundred and fifty, and not exceeding two hundred and fifty, a Lieutenant-Colonel shall command, and have under him a Major, with the proper number of Captains and other officers. A Colonel to command any number of men not exceeding five hundred, nor under two hundred and fifty. A County Lieutenant to command any number of men above five hundred, and not exceeding a battallion.]8 A distinct list of the names and numbers of officers and soldiers sent on duty, and of all persons impressed, with the time they served, attested, on oath, by the officer commanding such party, shall be certified by the commanding officer of the county to the [Auditors of Public Accounts to be by them examined and certified to the Treasurer, for payment of what may be justly due.]9
Any officer resigning his commission on being called into duty by the Governor, or his commanding officer, shall be sent on the same duty as a private, and shall moreover, suffer punishment as for disobedience of command. The commanding officer of the corps marching to oppose any invasion or insurrection, or any commissioned officer, by warrant under the hand of such commander, may, for the necessary use of such corps or for the transportation of them across waters, or of their baggage by land or water, impress provisions, vessels with their furniture, hands, waggons, carts, horses, oxen, utensils for intrenching, smiths, wheel-wrights, carpenters, or other artificers, and arms in the case before directed. Such necessaries, or the use of them by the day, shall be previously appraised by two persons chosen, the one by such officer, and the other by the person interested, or both by the officer, if the person interested shall refuse to name one, [or cannot readily be called upon] and duly sworn by the said officer, who is hereby, empowered to administer the oath. Such officer shall give a receipt or a certificate of every particular impressed, of its appraised value, and of the purpose for which it was impressed. And if any article impressed shall [be lost, or] receive damage, while in public service, such [loss and] damage shall be enquired of, and estimated by two men chosen and sworn in the same manner. [The said certificates shall be transmitted to the Auditors, to be by them certified and paid in manner herein before directed.]10 All persons drawn into actual service, [or impressed] by virtue of this act, shall be exempted in their persons and property from civil process, and all proceedings against them in civil suits shall be stayed during their continuance in service. When any corps or detachment of militia shall be on duty with any corps or detachment of [regulars belonging to the continent or this commonwealth,]11 or both of them, the continental officer shall take command of [officers of the commonwealth]12 of the same rank, and these again of militia officers of the same rank, [and all militia officers of the same rank shall take command according to seniority, and if their commissions be of equal date, then their rank shall be decided by lot; a County-Lieutenant, when acting in concert with regulars taking rank as a Colonel.] The commanding officer of each of the counties of Elizabeth City, Princess Anne, Norfolk,13 Northampton, and Accomack, with permission from the Governor, may appoint any number of men not exceeding six, in each [of the former counties, and in the two latter not more than ten men,] to keep a constant looking out to seaward, by night and by day, who discovering any vessels appearing to belong to an enemy, or to purpose landing or hostility, shall immediately give notice thereof to some militia officer of the county. [And the Lieutenant, or next commanding officer of the several counties on the western frontier, with the like permission, shall be empowered to appoint any number of proper persons not exceeding ten, in any one county, to act as scouts for discovering the approach of the Indians, or any other enemy on the frontiers; who, on such discovery, shall immediately give notice thereof to some militia officer of the county,] whereon such course shall be pursued as is before directed in case of an invasion or insurrection. The pay of all officers and soldiers of the militia, from the time they leave their homes by order of their commanding officer till they return to them again, and of all look-outs [or scouts,] shall be the same as shall have been allowed by the last regulations of General Assembly to regulars of the same rank or degree. Messengers shall be allowed, by the Auditors of Public Accounts, according to the nature of their service. Any militia officer receiving notice of an invasion or insurrection, or of the approach of any vessel with hostile purpose, and not forwarding the same to his commanding officer, shall forfeit, if a Field-Officer, one hundred pounds; if a Captain or subaltern, fifty pounds; and any commanding officer of a county receiving such notice, and not raising part of his militia, nor taking the advice of his council of war, two hundred pounds. [Such forfeitures to be recovered,] with costs, by action of debt, in the name of the [other members of the said court-martial, or the survivors of them]14 before any court of record, and appropriated to the same use as the fines imposed by the court-martial of his county. Any officer or soldier guilty of mutiny, desertion, or disobedience of command, absence from duty or quarters neglect of guard, or cowardice, shall be punished at the discretion of a court-martial, by degrading, cashiering, drumming out of the army,15 fine not exceeding two months pay, imprisonment not exceeding one month.16 Such courtmartial, [which the commanding officer is hereby empowered to order,] shall be constituted of militia officers only, of the rank of Captains or higher, and shall consist of seven members at the least, whereof one shall be a County-Lieutenant or Field-Officer: [Provided that if two or more companies, without a Field-Officer, should be called out to duty, the senior officer, may appoint a courtmartial, to consist of one Captain and three or more commissioned officers, whose sentence, not extending to amercement or imprisonment, being confirmed by the commanding officer, not being a member of the court, shall be put in execution;] each of whom shall take the following oath: “I do swear, that I will well and truly try, and impartially determine the cause of the prisoner now to be tried, according to the act of Assembly, for providing against invasions and insurrections. 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 shall also 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 such clerk shall be paid such compensation for his service as shall be judged reasonable by the court-martial, out of the fines imposed by this act; the fines to be collected by the sheriff, as in the militia law, except such as can be retained out of the pay of the delinquent.] All persons called to give evidence shall take the usual oath of evidence, to be administered by the clerk of the court. If in any case the offender be not arrested before the corps of militia on duty be discharged, or cannot be tried for want of members sufficient to make a court, he shall be subject to be tried after by the court martial of his county. [The Governor with the advice of the Council of State, may, and he is hereby authorised and desired, to appoint one or more fit and able persons to act as quarter-masters to the militia drawn into actual service, whose duty it shall be to provide, in due time, all things necessary for their accommodation. And such quarter-masters shall have power, and they are hereby strictly enjoined, to inspect and examine all provisions dealt out by any comissary or contractor to such militia, and make report to the Governor, from time to time, of the quality thereof. And the said quarter-masters shall, for their services, receive such allowance as to the Governor and Council may appear reasonable. The commanding officer of any detachment of militia drawn out into actual service shall, if necessary, appoint a commissary, or contractor, to procure provisions for the said detachment. Such commissary, upon complaint to a court-martial, to be composed of the officers of the corps, may, by judgement of such court-martial, be removed for misconduct. Every commissary or contractor appointed by virtue of this act shall obtain a certificate of his service from the commanding officer of the detachment for which he served, on producing which to the Governor and Council he shall be entitled to such reward as they think fit.]17
This act shall be read to every company of the militia by order of the Captain, or next commanding officer, twice in every year,18 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. 6–8. MS (Vi) in TJ’s hand endorsed: “3. A Bill for providing against invasions & insurrections.” Also docketed, partly in hand of John Tazewell: “In the House of Delegates. A Bill for providing against invasions and Insurrections. May 1777. to be engrossed.” Accompanying this MS is a list of amendments to TJ’s Bill, in the hand of Tazewell; most of these are indicated in textual notes below. This MS is not to be confused with MS (ViU), which is the clerk’s copy described in Editorial Note, above. The Act as adopted in 1777 is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 291–7.
On 9 May 1777 TJ was appointed a member of a committee to bring in a Bill on this subject; he reported the Bill next day, when it was read the first time; in the course of the next month it was amended by both the House and 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. 6–8, 20, 24, 56, 70–2). Bill No. 6 is the same text as the Act of 1777, except as indicated in the notes below; in one instance TJ did not include in this Bill a significant clause that had been in the Act of 1777 (note 17, below); nor did this Bill take account of the amending Act of 1778 (note 16, below). The Bill here presented was not adopted, though the general militia Act of Oct. 1784. which repealed all preceding Acts pertaining to the subject, incorporated many of the provisions set forth in Bills No. 5 and 6 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xi, 476–94). On 31 Oct. 1785 Madison presented this and the preceding Bill. Earlier, the House had received a petition protesting against the Act of 1784 as being “in several instances repugnant to the principles of the constitution.” In response to this petition a Bill repealing part of the Act of 1784 was introduced but failed of passage. Instead a bill “to amend and reduce into one Act, the several laws ‘for regulating and disciplining the militia, and guarding against invasions and insurrections’” was introduced and, after being amended by both houses, was adopted (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 7, 8, 12–15, 34, 73, 75, 91, 93, 117, 125, 127, 129, 135–7, 144; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 9–24).
1. Matter within square brackets (supplied) here and elsewhere in the text is not in TJ’s MS Bill of 1777 but is in the Act of 1777. MS at this point reads: “directed by a former ordinance shall be completed and kept up”; Act of 1777 reads: “directed by an ordinance of general convention shall be completed and kept up.” The ordinance referred to is that of 1775 concerning the militia (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 9–35, at p. 27ff.).
2. At this point the MS included the phrase “and with such Quakers and Menonists as are not formed into tenths.” This was deleted by amendment.
3. MS read: “not exceeding two thirds,” but this was deleted by amendment.
4. MS read: “any of the said commanding officers, if he think”; this was altered by amendment to read as above and in the Act.
5. MS read: “25 men,” but this was altered by amendment to read as above and in the Act.
6. MS read: “40 men,” altered by amendment to read as above and in the Act.
7. MS read: “50 men,” altered by amendment to read as above and in the Act.
8. The passage in square brackets was substituted by amendment for the following in MS: “and so in proportion for every greater number; adding, if there be several companies, such feild officers as may be requisite.”
9. The passage in square brackets was substituted by amendment for the following in MS: “next General Assembly.”
10. The passage in square brackets was substituted by amendment for the following in MS: “and shall be made good by the public.”
11. The passage in square brackets was substituted by amendment for the following in MS: “Colonial regulars or Continental troops.”
12. The passage in square brackets was substituted by amendment for the following in MS: “the Colonial regulars.”
13. “Norfolk” does not appear in MS.
14. The passage in square brackets was substituted by amendment for the following in MS: “Commonwealth.”
15. The following in MS was deleted by amendment: “whipping not exceeding 20 lashes.”
16. An amending Act of May, 1778, stated that it had been found by experience that the fine inflicted on any officer or soldier guilty of mutiny, desertion, &c., was by no means sufficient to deter the defaulters; hence the amending Act provided that the court martial could inflict any fine “they shall determine reasonable,” so long as it did not exceed six months’ pay (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 458).
17. MS and the Act as adopted contain at this point the following: “All other acts and ordinances so far as they make provision against invasions and insurrections are hereby repealed”; the Act also contains the following proviso, but the MS does not: “Provided, that nothing in this act shall be construed to alter or change anything contained in the general form or constitution of this government.”
18. The following in MS was deleted by amendment: “that is to say, at their first muster next succeeding every general muster in his county.”