April 1757 – 30th GEORGE II. CHAP. IV. An Act for reducing the several acts for making provision against invasions and insurrections into one act.

April 1757 – 30th GEORGE II.

CHAP. IV.

 

An Act for reducing the several acts for making provision against invasions and insurrections into one act.

 

I. WHEREAS it is necessary that the several acts of Assembly relating to invasions and insurrections should be reduced into one act, 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 upon any invasion of any enemy, by sea or land, or upon any insurrection, the governor or commander in chief for the time being shall have full power and authority to levy, raise, arm and muster such a number of forces out of the militia of this colony as shall be thought needful for repelling the invasion, or suppressing the insurrection or other danger; and the same to lead, conduct, march, transport and employ, or by his lieutenants, commanders, or other officers by him commissioned, to cause to be led, conducted, marched, transported and employed, as well within the several counties and places to which they belong as into any other counties and places within this dominion, for the suppressing and repelling of all such invasions and insurrections and such forces again to discharge and disband as the cause of danger ceases.

 

II. And be it further enacted, by the authority aforesaid, That every officer of the militia, to whom notice shall be given of any invasion or insurrection, shall raise the militia under his command, and send intelligence to the county lieutenant, or in his absence to the chief commanding officer in the county, and shall moreover immediately proceed to oppose the enemy according to the orders he shall receive from his chief commanding officer until further orders arrive from the governor or commander in chief of this dominion for the time being, and such county-lieutenant or chief commanding officer shall give immediate notice to the officers of the militia of the next adjacent counties of such invasion or insurrection, and the situation and circumstances of the enemy according to the best of his information and judgment; and such officer to whom such notice shall be given, if not the chief commanding officer of the county, shall give immediate notice to his commanding officer of the information that he shall receive, who shall immediately raise the militia of his county and march part thereof, not exceeding two-thirds, against such enemy, if the circumstances of the case shall require it, which shall be enquired into by a council of his field-officers and captains, or the major part of them, which council every such commanding officer is hereby impowered and required forthwith to summon and hold; and such commanding officer shall cause the remaining part of his militia, not so marched, to remain in arms in the county for the defence and protection thereof, until he shall receive orders from the governor or commander in chief as aforesaid: And every county lieutenant or chief commanding officer in any county to whom such intelligence shall be given of any invasion or insurrection, shall forthwith dispatch an express to the governor or commander in chief as aforesaid, notifying the danger, and shall therewith signify in the best manner he can the strength and motions of the enemy, and for that purpose such county lieutenant or chief commanding officer shall have full power to impress boats and hands, men and horses, as the service may require, for the dispatch of such intelligence.

 

III. And be it further enacted, by the authority aforesaid, That any officer receiving information of any invasion or insurrection from any officer of an adjacent county in the manner herein before expressed, that shall refuse to raise his militia, and call a council of his field officers and captains, for the determination of what is necessary to be done on such information, shall forfeit and pay the sum of two hundred pounds, and every officer summoned to such council as aforesaid, that shall refuse to attend the same, shall forfeit and pay the sum of fifty pounds.

 

IV. And be it further enacted, by the authority aforesaid, That if any officer of the militia who upon occasion of any invasion or insurrection, shall receive any orders or information from the governor or commander in chief for the time being, or from any other his superior officer, either for calling together the soldiers or marching them to any particular place, shall neglect or refuse to execute such orders or instructions in the best manner he is capable, every such officer so neglecting or refusing, shall respectively forfeit and pay the sums following, that is to say, every lieutenant of a county the sum of two hundred pounds; every colonel the sum of two hundred pounds; every lieutenant-colonel the sum of two hundred pounds; every major the sum of one hundred pounds; every captain the sum of seventy five pounds; every lieutenant the sum of fifty pounds; every ensign the sum of twenty five pounds; every serjeant or corporal twenty pounds; and every soldier who shall be summoned to appear upon any such occasion and shall fail so to do, or shall fail to bring with him his arms, with one pound of powder and four pounds of ball, or shall refuse to march, shall forfeit and pay the sum of twenty pounds: And if any officer or soldier during the time the militia shall be employed for suppressing any invasion or insurrection under this act, shall desert the said service or raise any mutiny or sedition in the company to which he belongs, or any other company in the said service, or coming to the knowledge of any such mutiny or intended mutiny, shall not give information thereof to his commanding officer and use his utmost endeavour to suppress the same, shall suffer such corporal punishment as shall be inflicted on him by a court martial, to consist of the field officers and captains then present not extending to life or member. And every person holding correspondence with, or giving intelligence to the enemy, during the time such militia is employed for suppressing such invasion or insurrection, shall suffer death as in cases of felony without benefit of clergy, upon being thereof lawfully convicted before the general court of this colony.

 

V. And be it further enacted, by the authority aforesaid. That in all trials of offenders by any court martial to be held by virtue of this act, every officer present at such trial before any proceedings be had thereupon, shall take the following oath (which the presiding officer then present shall first take himself, and then administer to the others) that is to say,

 

I A. B. do swear, that I will well and truly try and determine according to the evidence in the matter now before me, between our sovereign lord the king and the prisoner to be tried, and that I will duly administer justice according to the act of Assembly, intituled, An act for reducing the several acts for making provision against invasions and insurrections into one act, without partiality, favor, or affection, and that I will not upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness by a court of justice in a due course of law.

 

So help me God.

 

And that such court martial shall have power to appoint a clerk to keep a register of their proceeding, to whom the president of the court shall administer the following oath, to wit,

 

You shall swear, that you will not upon any account, at anytime whatsoever, disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness by a court of justice in due course of law.

 

So help you God.

 

VI. And be it further enacted, by the authority aforesaid. That if any inferior officer or soldier during the time the militia shall be employed for suppressing any invasion or insurrection, as aforesaid, shall disobey the lawful commands of his superior officer, or behave himself refractorily, every officer so offending shall pay such fine, not exceeding fifty pounds; and every soldier so offending shall pay such fine, not exceeding five pounds, as by a court martial to be had as aforesaid, shall be imposed; and if any soldier shall fail or refuse to pay down such fine immediately to his commanding officer, or give sufficient security to pay the same within three months, then such soldier shall receive thirty-nine lashes on his bare back well laid on; and if any inferior officer or soldier during the time the militia shall be employed as aforesaid, shall be guilty of prophane swearing, drunkenness, or any other the like offence, every person so offending shall upon conviction thereof before a court martial to be held as aforesaid, pay five shillings for every offence, so that the same at any one time doth not exceed twenty shillings; and if any soldier shall fail to pay the sum, or give security as aforesaid, he shall for every of the said offences receive five lashes on his bare back well laid on, so that the same. at any one time doth not exceed twenty lashes.   And no person shall be subject to a second trial for the same offence, after he hath been once condemned or acquitted thereof.

 

VII. And be it further enacted by the authority aforesaid, That if any officer shall be sued for any thing by him done in pursuance of this act, it shall and may be lawful for such officer to plead the general issue, and to give the special matter and this act in evidence.

 

VIII. And be it further enacted by the authority aforesaid, That if any officer of the militia shall upon receiving the orders of the governor or commander in chief or any his superior officer, for raising and marching the militia according to this act, deliver up his commission thereby intending to avoid the force of this act, and the punishment for disobeying such orders, every such officer so offending, shall be liable to the same penalty as by this act is inflicted for disobeying or neglecting such orders, and shall be immediately inlisted as a common soldier by the next officer acting in command.

 

IX. And be it further enacted, by the authority aforesaid, That when any forces shall be raised out of the militia of this colony according to the directions of this act it shall and may be lawful for any commisioned officer commanding any part of the same by warrant under the hand and seal of any county lieutenant, colonel, lieutenant-colonel, or major, to impress and take up at the public charge necessary provisions of and from any person or persons, and to impress and take up sloops and boats necessary for the transportation of forces over rivers and creeks, or the main bay of Chesapeak, together with the rigging, tackle, furniture and apparel belonging thereunto; and also all manner of carts, waggons, draught horses or oxen, or other conveniences for the land carriage of provisions, great guns, arms and ammunition, from place to place, and likewise any manner of utensils, tools or instruments, which shall or may be wanted for digging or entrenching, or towards mounting the great guns, and making them useful; and further, that it shall and may be lawful by warrant as aforesaid, to impress able and fit men to go in sloops or boats, and also any smith, wheelwright, carpenter, other artificer whatsoever, which shall be thought useful for the fixing of arms, making carriages for great guns, or doing any other work whatsoever, where need shall be of such artificers.

 

X. Provided always, That it shall not be lawful to make use of any provisions, utensils, tools or instruments, or impressed or taken up, until appraisements thereof hath been made in money by two good and lawful men upon oath, one whereof to be chosen by the proprietor of such provisions, or other thing or things so impressed, and the other by the commanding officer present, which said officer is hereby impowered to administer such oath to the persons so appointed to appraise the same; nor of any sloop, boat, cart, wagon, horses or oxen, until such appraisement made of the same with the appurtenances belonging thereunto; and also an estimate made by the same men of a suitable allowance in money by the day for the use of such sloop, boat, cart or waggon, with the draught horses or oxen, and appurtenance thereto belonging, which every person so impressing is hereby required to cause to be made, and to give a receipt to the owner of every particular by him impressed and taken up, and a certificate how and by whom the same was appraised and estimated, and for what use and service impressed, upon pain of being liable to the penalty of twenty shillings, and moreover to the action of the party grieved for unlawful seizure.

 

XI. And for the better discovery of the approach of enemies by sea. It is hereby further enacted, That in each of the counties of Elizabeth-City, Princess-Anne, Accomac, and Northampton, at such times and places as the governor or commander in chief of this dominion shall think fit, to direct any number of men, not exceeding six, be appointed by the chief officer of the militia in each of the said counties respectively; which men shall keep a constant look-out to seaward by night and by day, and diligently observe the courses and motion of all such ships or vessels, as they or either of them shall discover upon the coast, and if upon such observation, such person shall suspect the said ships or vessels to belong to an enemy, he shall immediately give notice thereof to the next field officer in his county, who is thereupon to transmit an account thereof to the governor or commander in chief, and to the county lieutenant or .chief commanding officer of the militia in the said county.

 

XII. And be it further enacted, by the authority aforesaid, That there shall be raised and paid by the public to the officers and soldiers drawn out into actual service by virtue of this act, and to the lookouts after the rates following; to wit, to the county lieutenant or commander in chief ten shillings per day; a colonel, lieutenant colonel each ten shillings per day; major eight shillings per day; captain six shillings per day lieutenant three shillings per day; ensign two shillings per day, serjeant and corporal each one shilling and four-pence per day; drummer one shilling and two-pence per day; soldier one shilling per day; and to a look-out after the rate of thirty shillings per month.

 

XIII. And be it further enacted, by the authority of aforesaid. That every smith, wheelwright, carpenter, or other artificers, and all watermen employed in the service, as by this act is directed, shall be paid and allowed by the public after the rates following, to wit, every smith four shillings per day; wheelwright three shillings per day; carpenter three shillings per day; and watermen one shilling and six-pence per day:

 

And where any sloop, boat, waggon or cart, impressed and appraised according to the directions of this act shall be damnified; or horse or ox hurt, the damage of the same shall be enquired into by two good and lawful men on oath, to be appointed as is before directed for appraising; and if the proprietor shall refuse to appoint persons to appraise or value the so impressed, it shall and may be lawful for the commanding officer then present, to appoint both to make such enquiry, and to administer to oath for that purpose, and the difference between the  appraisement and valuation when discharged, shall be paid by the public to the proprietor of such sloop, waggon, cart, horse or ox.

 

XIV. And to the end a sufficient number of men may be appointed for guarding the batteries erected the several rivers of this dominion, and to a the better managing the great guns there mounted when occasion shall be. It is hereby further enacted, That it shall and may be lawful for the, governor or commander in chief of this dominion for the time being, to appoint and assign such a number of the militia as he shall think fit to attend the said batteries under the command of such officer or officers, and under such order and discipline as he shall appoint and direct, which number of the militia shall be drafted out of any of the militia of the county by the commanding officer of such county in which such battery is or shall be erected, and shall be exempted from all private musters, except at such battery only during attendance at such battery; and if any soldier drafted as aforesaid, shall refuse to enter upon the service, or shall refuse to obey the commands and of the commanding officer at such battery, every soldier so offending shall forfeit and pay three pounds or receive thirty-nine lashes on his bare back well  laid on, for every such refusal, upon conviction therof before a court martial to be held as aforesaid.

 

XV. And whereas it may be necessary in times of danger to arm part of the militia, not otherwise sufficiently  provided out of his majesty’s magazine other stores within this colony. Be it further enacted by the authority aforesaid, That if any person or persons so armed out of his majesty’s stores, shall detain or embezzle any arms or ammunition to him or them delivered for the public service, and shall not produce  and re-deliver the same when ordered and required so to do, it shall be lawful for the respective county lieutenants or chief commanding officer within their counties by warrant under his or their hands, to commit such offender to prison, there to remain until he shall make satisfaction for the arms or ammunition by him detained or embezzled.

 

XVI. And be it further enacted, by the authority aforesaid, That where any commanding officer of the militia, shall in pursuance of this act be obliged to raise any of the militia of his county, such officer shall not depute any greater number of inferior officers to act upon duty than is herein after expressed; that is to say, not more than one captain, one lieutenant, one ensign, three serjeants or corporals, and one drummer for every fifty soldiers; and so in proportion for a greater number: And for every company consisting of thirty men, not more than one lieutenant, one ensign, and two serjeants; and for every company not exceeding fifteen men, not more than one ensign, and one serjeant; and that every commanding officer shall together with the officer of the company by him raised and sent out as aforesaid, certify to the succeeding assembly a distinct list of the number of such company and, officers acting under him, together with the time that they shall have been upon actual duty, which certificate shall be attested upon oath by the chief officer of such company before any justice of the peace of the county in which such company shall be raised. And if any commanding officer shall presume to order out a greater number of inferior officers, than are herein before expressed, according to the proportion of soldiers aforesaid, the pay of such supernumerary officers shall be levied on such commanding officer.

 

XVII. Provided always,  That when any part of the militia raised by virtue of this act, shall be discharged within two days, no pay or allowance shall be given for the same, but every person shall bear his own charges; and when they shall be kept in service above two days, then the whole time shall be paid for and allowed as aforesaid.

 

XVIII. And whereas officers and soldiers may mutiny or desert the service and cannot be apprehended, so as to be tried by a court martial, according to the directions of this act; that such offenders may not go unpunished, Be it enacted, by the authority aforesaid, That when any of the said offenders cannot be apprehended so as to be tried by a court martial as this act directs, it shall and may be lawful for any court of record within this dominion, upon complaint made to them by any commanding officer of the militia, and they are hereby required and impowered to cause every such offender to be apprehended and brought before them and take cognizance of the said offence or offences, and Upon conviction to impose such fine or inflict such corporal punishment, not extending to life or member, upon every such offender as shall be thought reasonable.

 

XIX. And be it further enacted, by the authority aforesaid, That when the militia of any county shall be drawn out into actual service by virtue of this act, every officer and soldier of such militia shall be exempted from all process in any cause or suit whatsoever, (other than for some criminal matter) and his estate privileged from all executions, attachments and distresses whatsoever; And that if any suit shall be depending in any court whatsoever, in which any officer or soldier so drawn out as aforesaid, shall be a party either plaintiff or defendant, the same shall be stayed and no proceedings be had or taken therein, during the time such officer or soldier shall continue in such service.

 

XX. And be it further enacted, by the authority aforesaid, That for any message sent according to the directions of this act, either by land or water, the same allowance shall be made as is by law given for other public expresses.

 

XXI. And be it further enacted, by the authority aforesaid, That this act shall be published at every general muster during the continuance thereof, by order of the county lieutenant or chief officer of the militia then present, under the penalty of ten pounds for every neglect.

 

XXII. And be it further enacted, That all the fines inflicted by this act, and not otherwise directed, shall be one half to our sovereign lord the king, for and towards supplying with arms the militia of the county to which the offender belongs, and the other half to the informer, to be recovered with costs by action of debt or information in any court of record within this dominion.

 

XXIII. And be it further enacted, by the authority aforesaid, That all and every other act and acts, clause and clauses heretofore made, for or concerning any matter or thing within the purview of this act, shall be and are hereby repealed; and that this act shall commence and be in force from and after the passing thereof, for and during the term of two years.

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