1803.

ecutive.

made to execu

dant, majors and captains, as shall make up a number not less than thirteen; and such courts martial shall proceed to hear and determine on all offences under this act, and may censure or cashier such oficer; which sentence shall be final, saving to the party an appeal Appeals may be to the executive. And any brigadier general, lieutenant colonel made to the excommandant, or major, for misconduct in any captain or subaltern, Capts. or subalwithin his own knowledge, or upon complaint lodged in writing by terns, by whosa any commissioned officer, may arrest such captain or subaltern; and to be arrested. the brigadier or commanding officer of the brigade, shall order a Court martial for brigade court martial, for the trial of such captain or subaltern, to be their trials. composed of one or more field officers, and a sufficient number of captains and subalterns to make up a number not less than thirteen ; and such courts martial shall proceed to hear and determine on all offences under this act, and may censure or cashier any officer so Appeals may be tried; (a) which sentence shall be final, saving to the party an ap- tive, and compeal to the executive; and the power of the commanding officer of mai ding officers' the brigade or division, to affirm or reverse such sentence, is hereby power to afirm abolished. And in all cases of appeal, the party making the appeal, sentence abolishmay demand of the clerk or judge advocate of the court martial, a ed. full copy of the proceedings had thereon, to be laid before the exe- Party appealing cutive, who shall determine agreeable to the right of the case; and as oftain & Ly for obtaining the necessary evidences for the trials aforesaid, the cutive proceed. commanding officer of the state, division or brigade, (as the case may lags of the trials. be) shall issue his summons; and every person so summoned, tail- Penalty for falling to attend, shall be subject to and may be tried, by a court mar- ing to attend tial, and, if an officer, may, at the discretion of the court martial be when summoned cashiered or fined, not exceeding six months' pay, as by law allowed; and, if a non-commissioned officer or soldier, to be reported to the court of enquiry of the regiment to which he shall belong, and be then subject to such fines and penalties, as they may think proper to inflict, not exceeding six months' pay.

or reverse such

before the cre

of officers.

court martial.

23. And be it further enacted, That the said courts martial, shall, Mode of proceein the trial of any officer, proceed according to the rules and articles ding in the triad of war, as established by a resolution of congress, except when any officer shall be tried for any offence committed while not in actual service, the officers convened for his trial, shall, instead of the oath prescribed by the said articles, take the following, viz. “I, A. B. do Oath to be taken swear that I will well and truly try and determine, according to the by each officer evidence, the matter now depending between the commonwealth of constituting a Virginia, and C. D. under an arrest; and that I will duly administer justice, according to law, to the best of my knowledge, without partiality, favor or affection; nor will I upon any account at any time whatsoever, 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, or in due course of law-so help me God;" which said oath shall be administered by the judge advocate, to all the members of the court martial, and the president of such court shall thereupon administer the following oath to the judge advocate, to wit: "You, A. B. do swear, that you 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 requir

(a) A conviction of felony, or of misdemeanor, punishable by confinement in the penitentiary, or by stripes, or of perjury or forgery, absolutely vacates the commission of a militia officer. See post ch. 110, sec. 3.

H

1

1803.

Compensation allowed officers & witnesses for

court m rtial.

ed to give evidence thereof as a witness, by a court of justice, or in due course of law- -SO help you God."

29. And be it further enacted, That every officer attending such court martial for the trial of any arrested officer, shall receive such attending such compensation as if they were in actual service, allowing one day for every twenty miles they shall necessarily travel in going to, and returning from, the place appointed for such trial, and the time they shall actually attend; and every witness summoned and attending, shall be allowed the same compensation as witnessess in the district courts. Which attendance of the said officers and witnesses, shall be certified by such court, if any shall be holden; if not, by any five officers summoned to attend as aforesaid, and paid out of the contingent fund.

How paid.

Courts for as

to be holden.

30. And be it further enacted, That there shall be battalion courts essment of fines of enquiry, to be appointed by the commanding officer of the battawhen and where lion, for the assessment of fines incurred under this act in such battalion, and such courts of enquiry shall be held within fifteen days after each regimental muster, and to consist of the commanding officer of the battalion, and the commanding officers of companies, or a majority of them, who shall take the following oath, to be administered by the presiding officer, and afterwards, by any other officer of the said court, to him, to wit: "I will truly

Their oath.

Courts for as

sessment of fines incurred by officers, when to be

held.

and faithfully enquire into all deliquencies which appear on the returns to be laid before me, and will assess the fines thereon as shall seem just, without favor, partiality or affection-so help me God." The commanding officer of the battalion shall then lay before the said court, all delinquencies, as directed by this act; whereupon they shall proceed to hear and determine. And there shall moreover be a regimental court of enquiry, in each year, for the assessment of fines incurred by the officers of the regiment; and such court of enquiry shall be held by appointment of the commanding officer, in not less than ten days nor more than twenty days after the last battalion court of enquiry; to consist of the commanding officer of the regiment, battalions and companies, or a majority of them, who shall take an oath in manner and form as prescribed above; the commanding officer of the regiment, shall then lay before the said court, all delinquencies as directed by this act; whereupon they shall proceed to hear and determine. It shall be the duty of the presiding officer of each and every such court of enquiry, to return to the next regimental court of enquiry, all delinquent officers failing to attend the preceding court, and such regimental court may, How fines may for good cause shewn, remit or moderate any fine imposed by the be remitted; & two preceding battalion courts, or the preceding regimental court of enquiry. The said court may also exempt any militia man from duty, on account of bodily infirmity, and may again direct such person to be enrolled when able to do duty.

infirm persons exempted from militia duty.

The courts shall

31. The respective regimental courts of enquiry where it has not appoint a clerk already been done, shall at their first court to be held under this act, and provost marappoint by ballot, a clerk and provost marshal, who shall attend shal. Their duty. the courts herein before directed to be held. Such clerk shall keep a fair record of the proceedings of such courts, as also of the roster returned by the several captains or commanding officers of companies for regular rotine of duty, and shall make out for the sheriff a fair list of all the fines assessed by the regimental and battalion courts,

1803.

and one other list, which shall be transmitted to the auditor* on or before the first day of May next, after such regimental court of enquiry was holden, in each year, and all other duties required by this [ Sec post ch. act, and, together with the provost marshal, shall receive such al- 53, sec. 3, 4, allowance and dulowance to be paid out of the fines, as the court shall think reason- ties of clerks and

able.

provost marshal]

them into the

tion.

32. All fines to be assessed by virtue of this act, shall be collect- Sheriff's to coled by the sheriff of the county, upon a list thereof, certified by the lect fines and pay clerk of the court of enquiry, and delivered to the sheriff on or be- treasury. fore the first day of January, in every year; but no fine imposed at any court of enquiry shall be put into his hands before a subsequent court of enquiry shall have intervened; the sheriff shall give his receipt therefor, and having deducted a commission of six per centum, Their compensa shall account for and pay the residue into the public treasury, on or before the fifteenth day of December next thereafter, under the same penalties, and subject to the same mode of recovery, as are prescribed by law with respect to the collection of the taxes. And should May distress for any person so charged with fines fail to make payment on or before fines after first of May. the first day of May, in any year, the sheriff is hereby authorised to make distress and sale therefor; Provided nevertheless, That the com- Proviso. manders of regiments, shall have power, for good cause shewn, and where it shall appear that any non-commissioned officer or private had it not in his power, to attend the regimental court of enquiry, to offer his excuse, to suspend the collection of said fine, until the next regimental court of enquiry, by a written order to the clerk of such court or to the sheriff, as the case may be; Provided, such ap- Further proviso. plication is made before the first day of March next after the said fine shall have been imposed; which said regimental court of enquiry, shall order and adjudge as if such excuse had been offered in due time.

33. And be it further enacted, That if any person on whom any fine How fiaes due by shall be imposed shall not have any visible property, it shall be law- persons not havful for the sheriff to attach the effects or money of such delinquent ing visible proin the hands of any person, and it shall be lawful for such garnishee perty may be collected. to satisfy and pay the amount due on account of such fines; and it shall be a discharge for so much against such delinquent, but if he shall refuse or fail to pay the said amount it shall be the duty of such sheriff to summon such garnishee before the nearest justice of the peace for such county, informing him the precise time he shall appear, and if he shall appear and on oath confess that he has effects in his hands, or stands indebted to such delinquent sufficient to satisfy such fine and costs, or if he shall fail to appear, it shall be lawful for the said justice to award execution against such garnishee for the amount thereof, or so much as shall appear to be in his hands, including sixty-three cents as a fee to such sheriff; Provided, That before such justice shall award any execution for default, he shall require an oath that such garnishee was duly informed of the time of such application.

34. And be it further enacted, That the sheriff of each county shall Sheriffs to pay all on or before the first day of October in every year, pay and satisfy drafts drawn by all drafts of the lieutenant colonel commandants, drawn as herein af- the lieut. colon 1 ter directed, for any purpose authorised by law, and on failure so to October. do, the court of the county whereof he is sheriff, shall be and here

Formerly to the executive. See Revised Code, vol. 1, ch. 182, sec. 30, pa. 338

com. by the first

1803.

Proviso.

Return of drafts to be made to

county &c.

courts,

Lists not returned in due time by whom to be col

lected.

How the fund.a

by are impowered and required, on motion of the lieutenant colonel commandant to render judgment against the said sheriff, his executors or administrators, for the amount of such draft with the costs of the said motion, upon which judgment, execution shall issue, be endorsed and proceeded on in like manner as executions are directed by law, in other cases against delinquent sheriffs; Provided, where it shall so happen, that the sheriff of any county shall be commanding officer of a regiment therein, the officer next in command shall proceed as herein particularly directed.

35. The commanding officer of every regiment shall, on or before the first day of December, in every year, render to the county or corporation court, an account of all the drafts made by him on the sheriff or collector, for such requisites as under this act, he is authorised to purchase or procure, specifying therein the particular articles for which such drafts were given, and the passing of such account by the court, shall exonerate such officer from any claim by the commonwealth.

36. And be it further enacted, That if it shall have so happened that lists of fines have not in due time been delivered to a sheriff for collection, any succeeding sheriff shall and is hereby directed to receive such lists, and shall collect and account for the same in like manner with other fines placed in his hands for collection.

37. Whatever fines shall be thus paid into the public treasury by rising from fines virtue of this act, shall be held as a fund for defraying the salaries shall be applied. of the officers herein after mentioned, and equipping and furnishing the militia with all necessary apparatus for the defence and security of the state, and the treasurer shall keep a separate book for the same and the expenditures thereof.

ment and battali

Colours, drum & 38. The lieutenant colonel commandant shall cause to be purchasfife to be furnished out of the money arising from the fines, a set of colours for each ed each regiregiment, and also a set of colours for each battalion; he shall also procure in like manner, for each company, a drum and fife or buglehorn; and on the colours and drums shall be marked the number of the regiment and the battalion, together with the name of the county to which they belong.

on.

refunded.

Captains who 39. And whereas, it is represented that sundry captains of comhave advanced money for their panies have already advanced money for the purchase of drums, fifes companies, how and colours, for the use of their respective companies: Be it enacted, That in such cases, the sheriff, upon a certificate from the lieutenant colonel commandant of the regiment, to which such captain shall belong, shall refund the money to the said captain, which shall have been thus advanced, for which the sheriff shall have credit in the settlement of his account with the auditor.

Drafts and insol

vencies duly certified to be allow ed bythe auditor.

Sheriffs to return

40. And whereas sundry other charges and expenses are authorised herein: Be it enacted, That the sheriff having a draft or drafts from the lieutenant colonel commandant, shall be authorised to discharge the same, for which, as well as all insolvencies duly certifi ed by the clerk of the court of enquiry, he shall be allowed on a settlement between the auditor and sheriff.

lists of insolvents 41. And be it further enacted, That it shall be the duty of the shetothe court of en- riffs who undertake the collection of militia fines, to return before quiry to be exa- the next succeeding regimental court of enquiry, after receiving a by their clerk. list of such fines, a list of all insolvencies within such regiment, to

mined & certified

be examined by said court, who shall judge of such insolvents, and shall direct their clerk to certify a part or the whole of any such list as to them shall seem just.

1803.

on the executive.

42. And be it further enacted, That the governor with the advice In case of invasiof council, be authorised and empowered, on an invasion or insur- on or insurrecti rection, or probable prospect thereof, to call forth such a number of shall call out the the militia, and from such counties as they may deem proper, and militia. for the accommodation, equipment and support of the militia, so at any time to be called forth, the governor with the advice aforesaid, may appoint such quarter masters, commissaries and other staff as to him shall seem proper, and fix their pay and allowances; and shall also take such measures for procuring, transporting and issuing all orders which may be necessary, as to him shall seem best; orders for the militia to be called forth as aforesaid, shall be sent to the commanding officers of brigades, with a notification of the place or places of rendezvous, who shall immediately take measures for detaching the same, with the necessary number and ranks of officers by detail and rotation of duty.

lienter ant colo

43. The lieutenant colonel commandant or commanding officers Impressments to of regiments from which detachments are drawn, shall cause to be be made by th procured by impressment or otherwise, for each company, a waggon, nel commandant. team and driver, six axes and six camp kettles or pots, of convenient size, all which shall be delivered to the commanding officer of the company, who shall be accountable for returning the same when his tour is over, and the articles aforesaid shall be returned to the owners, who shall be allowed for the use of the same whatever shall be adjudged by the court herein after appointed for enquiring into delinquencies; and to the end, if any article impressed by virtue of this act, to be valued by two or more freeholders, on oath, before the same shall be sent away, and upon proof being made of any article being lost, the valuation thereof shall be allowed without any allowance for the use, and the said allowance shall be certified to the auditor of public accounts. The said court shall make inquiry into the cause of such loss, and if it shall appear that the said loss was occasioned by the misconduct or inattention of any officer, the lieutenant colonel commandant, or commanding officer, is hereby authorised and required to prosecute a suit against such officer for the recovery of damages for the use of the commonwealth.

44. And if it shall appear to the executive upon calling forth the A second call of militia, as aforesaid, that the necessary number and ranks of off- the militia may cers will not attend the detachments for officering them at the places be made if the first provesinsufof rendezvous, the governor, with the advice of council, is hereby ficient. authorised and required to appoint such officers as may be necessary from the counties called upon as they may think proper, to join the detachments so raised. If a sudden invasion shall be made into any county in this commonwealth; or, in case of an insurrection in any county, the commanding officer of the militia in such county is hereby authorised and required to order out the whole or such part of the militia as he may think best, for repelling or suppressing such insurrection, and shall call on the commanding officers of regiments in the adjacent counties, for such aid as he may think necessary, who shall forthwith in like manner furnish the same.

When in actual

45. Whenever any militia shall be called forth into actual service service to be goas aforesaid, they shall be governed by the articles of war, which ticles of war of govern the troops of the United States. And courts martial shall the U. S. troops.