7. A Bill Giving Certain Powers to the Governor and Council for a Limitted Time
Whereas the present war between America and Great-Britain was undertaken for defence of the common rights of the American States, and it is therefore just that each of them, when in danger, should be aided by the joint exertions of all; and as on any invasion of this commonwealth in particular, we should hope for and expect necessary aids of militia from our neighboring sister states, so it is incumbent on us to yeild the same assistance to them under the like circumstances;1 and the laws heretofore empowering the Governor and Council to send aids of militia to such states2 will expire3 at the end of this present session of Assembly.
Be it therefore enacted by the General Assembly that on the invasion, or reasonable apprehension of an invasion of4 any sister state,5 and application from Congress, or from the Legislative or Executive powers of such state for aids of militia, it shall be lawful for the Governor, with the advice of the Council of State, to order to their assistance such corps of the militia, from any of the counties of this commonwealth, as the exigence of the case may require or admit, having regard, in such orders, to the convenience and vicinity of such counties to the place invaded, their internal security and the imminence of the danger; and moreover to appoint such General, Field, and Staff Officers as may be requisite to command, attend and provide for the same, to have them furnished with necessaries for travelling and camp uses, and such arms, ammunition, and accoutrements, as may be called for, if the same can be procured and spared from this commonwealth. And to answer the expences hereof in the first instance, the Governor with the advice of Council6 is empowered7 to draw for any sums of money necessary to carry these purposes into effect, on the Treasurer of this commonwealth, who shall pay the said draughts8 and keep a separate and distinct account thereof, in order that the same may be reimbursed to the commonwealth.
Such militia while on duty shall be subject to the continental rules and articles of discipline and government;9 save only that all courts-martial, whether general or regimental, which shall be holden on any of them, shall consist of their own officers only.
This act shall be in force till the end of the next session of General Assembly only, and no longer.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 8. MS (Vi) in TJ’s hand, endorsed partly in his hand (the deleted portion in TJ’s hand being indicated by angle brackets), followed by the substituted title in another hand: “A Bill <empowering the Governor to send aids of militia to our sister states when invaded> for giving certain powers to the Governor and council.” Also docketed, partly in the hand of John Tazewell: “Jan: 13. 1778. Read the first time. Jan: 14: Read the second time & commd. to be ingrossed.” This MS is not to be confused with MS (ViU), which is the clerk’s copy described in Editorial Note, above.
On 6 Nov. 1777 the committee on courts of justice was ordered to bring in a Bill on this subject: the Bill was introduced by Fleming on 13 Jan.; on 21 Jan. it was amended by the committee of the whole; the next day it was passed by the House and agreed to by 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 , Oct. 1777, 1827 edn., p. 15, 113, 114, 124–6). At the sessions of May and Oct. 1778 and May 1779 the Act of 1777 was continued from session to session (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 428–9, 462, 477–8; x, 106). The continuing Act of Oct. 1778 added certain other powers authorizing the Governor and Council to appoint justices of the peace in certain cases (death, refusal to act, and removal out of the county) and to remove justices from office for proved misconduct; these additional powers were continued, but that portion of the Act of 1777 respecting the use of the militia was allowed to expire with the continuing Act of May 1779, being superseded by enlarged emergency powers granted to the Governor by other Acts (Chancellors’ Revisal description begins A Collection of all Such Public Acts of the General Assembly, and Ordinances of the Conventions of Virginia, Passed since the Year 1768, as Are Now in Force‥‥ Published under Inspection of the Judges of the High Court of Chancery, Richmond, 1785 description ends , p. 81; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 309–15, 386–9, 413–16; the first of these superseding Acts was passed May 1780, the second Oct. 1780, and the third May 1781). Except as indicated below, the MS Bill, the Act of 1777, and Bill No. 7 are identical.
1. The word “circumstances” is underscored in MS, with the number “6” written in the margin corresponding to the number of the line, as if an amendment to the MS Bill had been intended; but the Act as adopted corresponds to the reading above.
2. The laws referred to are the ordinance of May 1776 and its continuing Acts of Oct. 1776 and May 1777 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 119–22, 178, 309). The ordinance of May 1776 and its continuing Acts gave the Governor and Council a general power “to direct such military movements and operations as … will be necessary for the safety and security of the commonwealth.” It is significant that this general power, which under a broad construction could be regarded as authorizing the sending of militia out of the state, was made explicit under TJ’s Bill of 1777.
3. MS read originally “have expired,” and TJ altered it to read as above.
4. The words “or reasonable apprehension of an invasion of” are not in MS Bill or in Act of 1777 as adopted.
5. MS reads: “of any adjacent or neighboring state,” but this was amended to read as above, which corresponds to the wording of the Act of 1777.
6. The words “with the advice of Council” do not appear in MS or in Act of 1777.
7. MS read originally “authorised,” and TJ altered it to read as above.
8. MS and Act of 1777 read: “who is hereby authorised to pay the same out of any public money in his hands.”
9. MS read originally “but shall be subject and shall be tried,” but these words were deleted by TJ.