An Act for Establishing a Militia in This State.
Whereas, in all republican governments a well regulated militia is highly necessary for the defence and safety thereof:
I. Be it Enacted by the General Assembly of the State of North Carolina, and it is hereby Enacted by the authority of the same, That all freemen and indented servants within this State, from eighteen to fifty years of age shall compose the militia thereof; and that the several captains of the same shall enroll the names of all such freemen and indented servants of which their several companies consist, and shall, at their respective general musters return a copy thereof to the colonel of their respective regiments, under the penalty of ten pounds, to be levied by warrant of distress from the colonel of the regiment, directed to the sheriff of the county to which the said regiment belongs; which sheriff shall be paid out of the said penalty the sum of eight shillings, and in case any sheriff shall neglect or refuse to execute such warrant, he shall forfeit and pay the sum of five pounds, to be recovered before any jurisdiction having cognizance thereof, and applied as herein after directed; which copy so returned, shall by every colonel be returned to the brigadier general of the district within one month after such muster, under the penalty of twenty-five pounds, who is hereby required within three months to transmit the same to the Governor, under the penalty of fifty pounds, to be recovered and applied as other fines by this Act imposed; and that all persons after being so enrolled, who shall at any time (unless rendered incapable by sickness or other accident) neglect or refuse when called upon to appear, at such times and places where ordered by the colonel or commanding officer, there to be mustered, trained and exercised in arms, and be provided with a well fixed gun and cartouch-box, with nine charges of powder made into cartridges and sizeable bullets or swan-shot, and one spare flint, worm and picker, under the penalty, if at a private muster of ten shillings, and if at a general muster twenty shillings, to be levied by a warrant of distress by the captain of the company, directed to the serjeant of the same, who is hereby empowered to execute the said warrant and distrain for the said fines and penalties in the same manner as sheriffs are empowered to distrain for public taxes, and shall make return thereof to the captain, which serjeant shall deduct two shillings and eight-pence for his services out of every fine so levied; and in case such serjeant shall neglect or refuse to serve any warrant or warrants to him directed, he for such neglect or refusal shall be fined forty shillings, to be recovered by a warrant from the captain, directed to another serjeant, under the same penalty, to be accounted for and applied as other fines in this Act directed. Provided always, That every absentee shall be allowed till the next succeeding muster to make his excuse before the captain shall issue his warrant, unless against such defaulters as he may suspect are about removing themselves out of the county before such succeeding muster; and every person that shall be fined by virtue of this Act, and shall think himself injured by his officers may appeal to the next court-martial, first giving security to appear and abide by the judgment of the said court, and if judgment shall be against him that he will then and there pay the fine, with five shillings cost. Provided also, That the members of the General Assembly, Council of State, judges, justices of the peace, secretary of State, attornies, continental delegates, officers who have served in the continental line, officers in the militia of as high rank as captain, who did not resign or were not broke in the time of the war, ministers of the gospel regularly called to the cure of souls, school masters having the care of twelve scholars, students, clerks of the court, physicians, ferrymen, overseers having the care of six taxable slaves, inspectors, public millers, sheriffs, coroners, constables and branch pilots, so long as they shall continue in office shall not be obliged to enlist themselves or appear at such musters.
II. And be it further Enacted by the authority aforesaid, That if the captain, lieutenant and ensign, or any two of them shall adjudge any person or persons enrolled as aforesaid, to be incapable of providing and furnishing him or themselves with arms, ammunition and accoutrements, required by this Act imposed, until such arms and accoutrements shall be provided and delivered him by the court-martial, to be paid out of the fines already collected, and that may hereafter be collected, such court-martial first taking security for the safe keeping of such arms and accoutrements and to be returned when required.
III. And be it further Enacted by the authority aforesaid, That each and every company shall consist of one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, one fifer, and not less than fifty privates; the serjeants, corporals, drummer and fifer to be chosen by the captain of the company for which they are appointed, and the first serjeant of each company shall keep an exact list of the same, and shall give his attendance on every muster day, and call the roll agreeable to the directions of the commanding officer of the regiments or company, and make due return (on oath if required) to his captain or officer commanding the company of such persons as were absent on each of the said muster days, under the penalty of fifteen shillings.
IV. And be it further Enacted by the authority aforesaid, That each regiment shall consist of all the companies in the county, except Rowan and Mecklenburgh counties, which shall each have two regiments, and be officered in the following manner, viz. One colonel, or lieutenant colonel commander, one lieutenant-colonel, two majors, one adjutant, one surgeon, one serjeant-major, one drum-major and one fife-major: Provided nevertheless, That when a vacancy for a full colonel shall happen, a commission shall issue to the next officer in rank in said regiment as Lieutenant-colonel commandant. And provided also, That the field-officers of each regiment shall have power to appoint the adjutant and non-commissioned staff officers of the same.
V. And be it further Enacted by the authority aforesaid, That the militia of each district shall compose a brigade, and be commanded by a brigadier general, who shall be allowed an aid-de-camp, major of the brigade, inspector and other officer of the staff department, of his own choosing, who shall be allowed the pay of lieutenant-colonel.
VI. And be it further enacted by the authority aforesaid, That in case of an insurrection within this state, or invasion, it shall and may be lawful for the Governor and Commander in Chief for the time being, or any officer by him directed to raise so many of the militia as shall be thought necessary for opposing such insurrection or invasion, and the militia so raised shall perform such duty or service as they shall be required to do by their commanding officer. And it is hereby required and directed, That the said militia shall appear furnished with arms, ammunition and accoutrements as aforesaid.
VII. And be it further enacted by the authority aforesaid. That every person who shall neglect or refuse on call or alarm given, to appear at such times and places as shall be appointed by his Captain or other officer, shall on due conviction before a court-martial, forfeit and pay ten pounds, to be levied by warrant from the Colonel or Commanding Officer for that service, directed to the Sheriff of the county where the offender resides; and such Sheriff, who is hereby required and directed to execute the same, shall for every neglect or refusal forfeit and pay the sum of ten pounds, to be recovered by action of debt before any jurisdiction having cognizance thereof; and any person who shall refuse to march against the enemy when commanded, or refuse or neglect to do his duty or perform the service he is put upon by his officer, or shall quit his post, desert his colours or mutiny, it shall and may be lawful for the commanding officer of the regiment or corps to order a court-martial for the trial of such offender, first taking the following oath, to-wit, “You shall swear well and truly to try and determine, according to your evidence in the matter now before you, between the State and the prisoner to be tried: So help you God.” And on trial and conviction, to punish the offender according to martial law, as the nature of the offence may require (death excepted) and for the want of a sufficient number of officers to compose a court-martial, the offender shall be put under guard (and his crime in writing lodged with the officer of the same) until such time as there are a sufficient number to hold a courtmartial.
VIII. And be it further Enacted by the authority aforesaid, That the respective officers, non-commissioned officers and privates, when in actual service shall, from the day they are ordered on duty be paid according to the following rates, viz. A brigadier-general per day one pound four shillings; a colonel or lieutenant-colonel commandant per day twelve shillings and six-pence; lieutenant-colonel per day ten shillings; major per day ten shillings; captain per day seven shillings and six-pence; lieutenant per day five shillings; ensign per day four shillings and six-pence; adjutant per day seven shillings and six-pence; surgeon per day seven shillings and six-pence; serjeant-major per day four shillings; drum-major per day four shillings; fife-major per day four shillings; serjeant per day four shillings; drummer per day three shillings; fifer per day three shillings; corporal per day three shillings, and a private per day two shillings.
IX. And be it further Enacted by the authority aforesaid, That every captain or commanding officer of a company shall, once within two months at such place as he shall think most convenient, muster his company, and see that each non-commissioner and private in his company is furnished with such arms, ammunition and accoutrements as by this Act directed, under the penalty of five pounds for each muster he shall neglect, to be levied by a warrant of distress from the colonel or commanding officer of the regiment to which he belongs, in manner aforesaid, and be applied as by this Act directed.
X. And be it further Enacted by the authority aforesaid, That all officers of the militia shall be resident in the county for which they are appointed, and possess a freehold of fifty acres of land or freehold in some town.
XI. And be it further Enacted by the authority aforesaid, That if any noncommissioned officer or private shall, during the time of muster resist his commanding officer or refuse his lawful commands, shall if a non-commissioned officer be reduced to the ranks and kept under guard during the time of such muster, and if a private shall be fined twenty shillings and be kept under guard during the time of such muster, to be levied by warrant from any field-officer of the regiment and applied as other fines by this Act directed.
XII. And be it further Enacted by the authority aforesaid, That if any number of men not exceeding thirty-six nor less than twenty-four, belonging to any regiment in this State shall desire to form themselves into a troop of horse, shall and may after being approved of by the field officers of the same, form themselves into a troop and give a list of their names to the said field officers; who shall forthwith appoint a captain-lieutenant and cornet out of the commissioned officers of said regiment and recommend them to the Governor to be commissioned accordingly; and when the said troop is officered as aforesaid and not before, the persons enrolled in the said troop shall be and are exempt from their service in the foot company, and shall muster as many times as well with regard to private as general musters of the county, and under the same penalties as in and by this Act before directed for the foot musters.
XIII. And be it further Enacted, That the different troops of horse in each district shall be formed into one regiment, and be commanded by a lieutenant colonel commandant and two majors.
XIV. And be it further Enacted by the authority aforesaid, That every trooper shall, before he is approved of as aforesaid, be furnished with a good serviceable horse not less than fourteen hands high, with a good saddle, bridle, holsters and pistols, a horseman's sword and cap, and a pair of shoe-boots and spurs, with a cartouch box and cartridges suitable for their pistols; and shall receive when in actual service the following pay, to wit. a lieutenant-colonel commandant per day fifteen shillings; a major per day twelve shillings and six-pence; a captain per day ten shillings, a lieutenant and cornet per day seven shillings and six-pence each; a serjeant per day five shillings; a trumpeter, drummer and fifer per day five shillings, and each private man four shillings.
XV. And be it further Enacted by the authority aforesaid, That the colonel or commanding officer of each and every regiment shall, in every year cause two general musters to be made of their respective regiments, at the court house of their county; which if any of them shall fail or neglect to do, and fail to appear at such musters (sickness or accident excepted) he or they so offending shall forfeit and pay the sum of twenty pounds, to be recovered by action of debt in any court of record within this State, one half to the person who shall sue for the same, and the other half to be applied as other fines in this Act directed.
XVI. And be it further Enacted by the authority aforesaid, That the colonel or commanding officer of each and every regiment shall order a court-martial to be held at the court-house of his county (except in the counties before excepted) on the day following their respective general-musters, which said court shall consist of a president, judge-advocate, and twelve members, the president to be appointed by the colonel or commanding officer of the regiment out of the field officers of the same, and the members to be warned out of the captains and subalterns agreeable to a roster to be kept by the Adjutant of the regiment; and the said court so convened shall have power to enquire into the age and abilities of all persons brought before them, and exempt such as they may judge incapable of service, and also all neglects and omissions, as well by officers as soldiers, and to hear and determine all appeals which shall be made to the court by any noncommissioned officer or private who may think himself unjustly fined by the officers of his company, and to order and dispose of all fines, in the first place for buying drums and fifes, and other necessaries for the use of the company from whence the same shall arise, and afterwards with supplying the militia with arms and accoutrements; and the said court shall cause the judge-advocate (who shall be appointed by the court) to keep a register of all their proceedings, which shall be laid before the colonel or commanding officer of the regiment before the same is published, and allow him a reasonable salary out of the fines. Provided nevertheless, That no regimental court-martial shall have power to try a field officer for breach of duty or otherwise. And provided also, That no officer shall be arraigned before any court-martial on any charge unless the same be lodged in writing with the colonel or commanding-officer of the regiment, setting forth the crime with which he is charged, on which the said colonel or commanding officer shall direct the adjutant of his regiment to arrest such officer, and the adjutant shall at the time of serving the arrest, furnish the officer so arrested with a copy of the same.
XVII. And be it further Enacted by the authority aforesaid, That the court-martial of each and every county shall have full power from time to time, to call the sheriffs or any other person or persons whatsoever to account, on oath, who shall pay to them the monies in the hands of him or them, belonging to their respective regiments, that have accrued or shall or may become due by virtue of this or any other Act, and if any sheriff or other person shall refuse or neglect to appear, account and pay as aforesaid, he shall forfeit and pay the sum of fifty pounds, to be received with costs, by the colonel or commanding officer of the regiment to which such money is or may become due, by action of debt in any court of record in this State, to be applied to the use of the regiment; and when any suit shall be brought by the colonel or commanding officer, and he shall happen to die or resign before such suit shall be determined, the same shall and may be carried on by the next officer in command, in the name of his predecessor who brought such suit, and the death and resignation of such colonel or commanding officer shall not be pleaded in abatement of such suit, nor deemed matter of error, any law, usage or custom to the contrary notwithstanding.
XVIII. And be it further Enacted by the authority aforesaid, That if any officer fails to appear at such court or muster as aforesaid, shall on conviction before a court-martial forfeit and pay, if a colonel, lieutenant-colonel or major, the sum of ten pounds, if a captain the sum of five pounds, and if a lieutenant or ensign the sum of four pounds, unless he or they shall make such excuse for his or their absence as the said court shall judge sufficient, and every captain or commanding officer of a company shall return on oath if required, an exact list of all the persons who have been fined, and whether for absence or want of accoutrements, and every captain or commanding officer of a company shall then and there pay into the court all such fines as he shall have received, under the penalty of fifty pounds, to be levied by a warrant from the colonel or commanding officer of the regiment, which fine shall be applied as other fines by this Act directed.
XIX. And be it further Enacted by the authority aforesaid, That the colonel or commanding officer of each regiment shall procure a copy of this Act and cause it to be read at the head of his regiment each general musterday, and that each and every captain shall also procure a like copy, and cause it to be read three times in the year at the head of his company, and be allowed for the same out of the fines.
XX. And be it further Enacted by the authority aforesaid, That no officer or soldier ordered or directed by this Act to appear at muster as aforesaid, shall be liable to be taken or arrested by any officer in any civil action or process whatsoever on the day such person or persons is or are directed to appear, in any reasonable time either going to, continuing at or returning home from the place appointed to muster, but every such arrest is hereby declared to be void, and all officers are hereby required to take notice thereof, any law, usage or custom to the contrary notwithstanding.
XXI. And be it further Enacted by the authority aforesaid, That every person able to appear or muster, going to or returning from any muster shall be suffered to pass over any bridge and shall be put over any ferry without delay, free from any charge whatsoever, and if any ferryman shall demand, delay or refuse to put such person or persons over, he shall forfeit and pay for every such offence the sum of twenty shillings, to be recovered by a warrant from a justice of the peace, one half to the informer and the other half to the use of the county wherein the offence was committed.
XXII. And be it further Enacted by the authority aforesaid, That the judge-advocate shall have power to administer all oaths required to be taken by the president and members of any court-martial, also the oath required of witnesses, and shall himself take the following oath, to be administered by the president of such court-martial, viz. “I, A. B. do swear, that I will faithfully execute the duty of my appointment as judge-advocate to the best of my knowledge.”
XXIII. And be it further Enacted by the authority aforesaid, That whenever any commissioned officer shall be convicted before a court-martial of having violated this Act, he shall not only be subject to the fines imposed, but shall be cashiered, any law, usage or custom to the contrary notwithstanding.
XXIV. And be it further Enacted by the authority aforesaid, That each and every brigadier-general shall have power and authority to call courts martial, composed of the officers of his brigade not under the rank of captain, for the trial of field-officers, in the same manner as colonels or commanding officers of regiments are herein before directed to call regimental courts martial.
XXV. And be it further Enacted by the authority aforesaid, That when any brigadier-general shall be charged with mal-practice or neglect of duty in his office, the Governor shall order a court-martial, composed of field officers from different regiments, of not less than thirteen members, exclusive of the judge-advocate, in which a brigadier-general shall preside, and if they shall find him guilty of the charge to make report to the next General Assembly.
XXVI. And be it further Enacted by the authority aforesaid, That the same method of training and disciplining of the militia shall be observed as laid down by Baron de Steuben, for training and disciplining the late continental army.
XXVII. And whereas in the county of Rowan it is found inconvenient for the inhabitants who reside on the east side of the Yadkin river to attend general-musters in the town of Salisbury, for remedy whereof, Be it Enacted by the authority aforesaid, That the colonel or commanding officer of the first battalion shall hereafter cause general-musters for the inhabitants aforesaid to be at Charles Wilson's old field on the east side aforesaid, any thing to the contrary notwithstanding.
XXVIII. And be it further Enacted, that the general musters of the counties of Rowan and Mecklenburgh, except those of the battalion aforesaid, shall be held at such places as such musters have been usually held at heretofore. Provided nevertheless, That nothing in this Act contained shall be construed so as to oblige any of the people called Quakers, Moravians, Dunkards or Menonists to attend any private or general muster.
XXIX. And be it Enacted, That all former laws for regulating the militia of this State, and every part thereof, as far as comes within the purview of this Act be, and they are hereby repealed and made void.
(Passed December 29, 1785.)
Acts of the North Carolina General Assembly, 1785
North Carolina General Assembly
November 19, 1785 - December 29, 1785
Volume 24, Pages 710-782
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