9 The Statutes at Large of South Carolina: Containing the Acts Relating to Roads, Bridges and Ferries, With an Appendix, Containing the Militia Acts Prior to 1794, at 666-72 (David J. McCord ed., 1841)

WHEREAS, the establishment of a well regulated militia in a free State, will greatly conduce to its happiness and prosperity, and is absolutely essential to the preservation of its freedom; and whereas, it is necessary that the laws hitherto enacted for the regulation of the militia of this State, be amended and reduced into one body, for the satisfaction and better information of individuals, and for the interest of the community. I. Be it therefore enacted, by his Excellency Rawlins Lowndes, Esqr., President and Commander-in-chief in and over the State of South Carolina, by the Honorable the Legislative Council and the General Assembly of the said State, and by the authority of the same, That as soon as conveniently may be, after the passing of this Act, the whole militia of this State shall be divided into three brigades; and there shall be a Brigadier-General and a Major of Brigade appointed to each; and the several regiments of militia in this State, consisting of more than twelve hundred men, shall be divided into regiments of not less than six hundred men each, by the majority of the field officers of the regiments so to be divided and those appointed to such new regiments, and who are hereby empowered and directed to ascertain the boundaries and districts of such regiments, and the districts of the several companies of their respective regiments; to each of which regiments there shall be one Colonel, a Lieutenant-Colonel and Major, and an Adjutant, to be nominated by a majority of the field officers, and commissioned by the Governor and Commander-in-chief for the time being, who shall be entitled to a daily pay of three pounds, and shall be obliged to attend and instruct the several companies in the said regiments, both separately and in battalion, and to examine the arms, accoutrements and state of the regiments, and report the same every three months to the commanding officer; and to each company of such regiments, a captain and two subalterns, if the same consists of not more than sixty men, and three subalterns if above that number, three sergeants, three corporals and a clerk, (whose duty shall be to keep always an exact circumstantial and fair list of the company he belongs to, expressing where the several persons belonging to such company do respectively reside, to attend militia courts, and to do all such other business as relates to the office of a clerk in the said company) nor more than two drummers and one fifer: all and every of which officer and officers, respectively, shall reside in the district to which the regiment or company belongs. II. And be it further enacted by the authority aforesaid, That there shall not be formed any volunteer company in this State after the passing of this Act; and all Colonels of the regiments of militia, wherein there are any volunteer companies of foot or troops of horse, are hereby enjoined and required to break and dissolve such companies of foot, wherever they, respectively, fail to have on the muster roll of such company fifty good and effective men: and also, such troops of horse, where they in like manner fall short of twenty-five good and effective men on the muster roll of such troop; the officers and privates of which companies and troops shall be then liable to militia duty, as if such companies and troops had not been formed; and shall not be permitted to enter into any other volunteer company then existing; and no person belonging to a volunteer company shall quit the same, without giving three months notice thereof, after the expiration of which time he shall be obliged to do duty in the company of militia for the district where he resides. III. And be it further enacted by the authority aforesaid, That every person residing in this State, out of the district of a militia company, shall be obliged to do duty as a militia man, in the company whose district is nearest his residence. And that every Colonel and field officer of a militia regiment of this State, shall, once in every six months, turn out, train and exercise, the whole of their respective regiment, within their proper districts, by not less than three companies at a time, at such places, respectively, as by the majority of the field officers shall be chosen as convenient for the people; excepting any regiment of Charlestown, which shall be so turned out and exercised in battalion, once in every two months; on pain that every field officer, who, not being prevented from so doing by sickness or unavoidable necessity, shall neglect the doing thereof, shall thereby forfeit and pay the sum of two hundred pounds for every such offence. And every captain, subaltern, adjutant, clerk, sergeant, corporal, drummer, fiter and private, who, not being prevented by sickness or other unavoidable necessity, shall neglect or refuse to march to or attend such muster, after proper notice thereof, according to the orders of the officer commanding him, in a proper manner, armed and accoutred as directed in this Act, at the time and place appointed for such muster, or shall not, at such muster, obey all the lawful commands of the officer so commanding him, every such captain, subaltern, adjutant, clerk, sergeant, corporal, drummer, fifer or private, shall, for every such offence, forfeit and pay a sum not exceeding the following, that is to say:—every such captain, one hundred pounds; every such subaltern, fifty pounds; every such adjutant, fifty pounds; every such sergeant, fifteen pounds; every such clerk, fifteen pounds; and every such corporal, drummer, fifer or private, ten pounds. Provided, nevertheless, that no person shall be obliged to remain at any such muster above one day at a time, except in time of alarm, invasion, insurrection or rebellion against the State. IV. And be it further enacted by the authority aforesaid, That every captain and subaltern of every regiment in this State, shall, once in every month, turn out, train and exercise the company under his command, within his proper district, excepting the captains and subalterns of the regiments of Charlestown, who shall, for six months after the passing of this Act, turn out and train their respective companies, once in every fortnight; after which, they shall be turned out, trained and exercised, once in every month; and every such captain or subaltern, who, not being prevented by sickness or unavoidable necessity, shall refuse or neglect so to do, shall, for every such offence, forfeit the following fines, that is to say:—every such captain, fifty pounds; and every such subaltern, twenty-five pounds; and each sergeant, corporal, drummer, fifer, clerk and private, who, having proper notice of such muster by beat of drum or otherwise, and not being prevented by sickness or any unavoidable necessity, shall neglect or refuse to repair to the place and at the time appointed for such muster of the company to which he belongs, properly armed and accoutred according to the directions of this Act, and shall not, at such muster, obey the lawful commands of the officer commanding such company, every such sergeant, corporal, drummer, fifer, clerk or private, shall, for every such offence, forfeit and pay in manner following, that is to say:—such clerk or sergeant, six pounds; and such corporal, drummer, fifer or private, five pounds. V. And be it further enacted by the authority aforesaid, That any person on being appointed to the office of sergeant or corporal of the company to which he belongs, by a majority of the commanding officers thereof, who shall refuse to undertake and execute the duties of such appointment, shall, for every such refusal of the office of sergeant, corporal, forfeit and pay the sum of twenty-five pounds; and for such refusal of the appointment of corporal, forfeit and pay the sum of fifteen pounds. Provided, nevertheless, that no person shall be obliged to serve as sergeant or corporal, longer than a year, at one time, in seven years; and all and every process which shall be issued by the captain and officers of any company, against any person for any offence against this Act, shall be served or executed by the sergeant of such company in which such person is against whom the process issues, who is fully authorized hereby so to do; provided, nevertheless, if such sergeant cannot be found in convenient time, that any lawful constable shall be authorized hereby to execute such process; which sergeants and constables, respectively, shall be entitled for so doing, to the fees allowed to constables by law for serving process. VI. And be it further enacted by the authority aforesaid, That the captain and commissioned officers of the different regiments of militia in this State, shall, and are hereby authorized and required to, hold an ordinary militia court, once in every month, for the trial of offenders against this Act within their respective companies; a majority of the officers of which companies, respectively, shall have full power and authority to hear and determine such offences, to administer the necessary oaths to witnesses or other evidences thereof, and to issue the necessary processes for inflicting and enforcing the payment of such fines and penalties as shall be incurred by this Act, in manner as hereafter directed. Provided, nevertheless, that if at any time the number of officers to any such company are not sufficient to form a majority, then the remaining officers or officer, shall have like power to hold such court for trial of such offenders, and to inflict and enforce the payment of such fines and penalties. VII. And be it further enacted by the authority aforesaid, That the commanding officer and field officers of every regiment of the State aforesaid, shall, and are hereby enjoined to, hold a regimental militia court in their respective regiments, at least once in every six months, for enquiring into the conduct of the inferior commissioned officers of such regiments, and the punishment of such of them as shall offend against this Act, and to administer necessary oaths to evidences at such court, and to enforce the payment of such penalties as shall be incurred under this Act, within the jurisdiction of such court, in manner as shall be directed by this Act; at which court, every captain of such regiment, shall, once in every six months, make a return, on oath, to the commanding officer thereof, of all fines inflicted and levied by him on any defaulter or offender, together with an account in what manner such fines have been disposed of or applied, and of the balance or remaining sum thereof in his hands. Provided, nevertheless, that no regimental militia court, held in time of peace, shall be held out of the district of his regiment, and shall consist of not less than seven, of whom there shall be at least one field officer of such regiment, and three captains; and that every regimental militia court, held for the trial of any officer for any offence committed by him in time of alarm, or while on actual service, shall consist of at least seven members, whereof a field officer of the regiment to which such offender belongs, one to be appointed by the commander of the expedition, shall be one, and not less than three captains; which court shall be ordered by the commander of such expedition, when he shall think necessary. VIII. And be it further enacted by the authority aforesaid, That every offence committed by a Brigadier General, or at any time by a field officer against this Act in time of peace, and while not on service, shall be heard and determined by his Excellency the President or Governor and Commander-in-chief, as the case may be, and the privy council for the time being, upon complaint made to the President or Governor and Commander-in-chief, as the case may be, of this State, who are hereby empowered to inflict and enforce such penalties as shall be incurred by such offender under this Act, and either to suspend or break and degrade such Brigadier-General or field officer, from the degree and appointment of Brigadier-General or field officer. And every offence committed by a field officer against this Act in time of alarm, or while on actual service, shall be tried and determined by a militia court, consisting of seven members, belonging to the regiment or detachment of such field officer, of which number, one, at least, shall be a field officer and the rest, captains; which court shall be appointed by the commander of the body or detachment in which the said offender shall be, and by whom he is commanded; and shall have power to suspend such offender, until, on a report of such trial to the President or Governor and Commander-in-chief, as the case may be, and privy council for the time being, they shall either acquit such offender, or inflict such penalties as shall be inflicted by this Act for the offence whereof he shall be found guilty, or cause him to be degraded as aforesaid. IX. And be it further enacted by the authority aforesaid, That all officers neglecting to attend any court for trying offences against this Act, after being duly summoned, shall, for every such offence, forfeit the sum of twenty-five pounds; and that every regimental militia court, or any other militia court held by the officers of any of the regiments of militia of this State, for the punishment of any offenders against this Act, every member of every such court shall, previous to the hearing or trying any such offenders, publicly in such court, take the following oath, to be administered by one of such members to the President or eldest officer of such court, who shall afterwards administer the same to the rest of such members, viz: "I (the person to be sworn) do swear that I will impartially, without favour or prejudice, hear and determine upon every matter or thing brought or to be brought before me in this militia court to be tried and determined, according to the best of my skill and ability, and the militia laws now in force in the State of South Carolina—so help me God." And that no offence shall be tried or determined, whereby any person shall be punished or fined under this Act in any such court, before the person supposed to commit such offence hath been previously summoned by a majority of the members of such court, by notice to attend the same, mentioning for what cause, by setting forth the offence charged, and the time and place of holding such court, for at least ten days theretofore, in manner as herein is prescribed, and until such person so summoned shall thereafter wilfully make default and not appear according to such notice, or appearing, not offering such defence or excuse as in the opinion of the majority of the members of the court, on evidence by one or more witness or witnesses, or the oath of the party having no such witness, shall appear sufficient under this Act; which summons or notice shall be written in the following form, viz: X. And be it further enacted by the authority aforesaid, That all fines which are inflicted under this Act for any sum not exceeding ten pounds, shall be applied by the majority of the officers of the company in which the persons paying them are, towards purchasing drums, fifes, standards and other necessaries for the said company; and the purchasing of arms, ammunition and accoutrements for such persons belonging to such companies respectively, as shall on oath make it appear they cannot purchase the same without distressing their families. Provided, nevertheless, that such persons so furnished, shall return the same on removing out of the beat of such company, on pain of forfeiting for neglect thereof, seventy-five pounds, currency, to be recovered as all fines under six pounds, are recoverable by this Act. And that all fines recovered in any regiment in the county above ten pounds, shall be paid by the commanding-officer, once a year, into the treasury of this State, for the use thereof; and those above ten pounds recovered in any regiment of Charlestown, shall be paid at the end of every six months, into the treasury for the use aforesaid: Provided, nevertheless, That the major of each regiment shall receive and pay, in like manner, all fines and forfeitures incurred by his commanding officer. XI. And be it further enacted by the authority aforesaid, That every captain of every regiment of militia in this State shall, (in Charlestown immediately, and in the country within two months,) after the passing of this Act, and once in every six months thereafter, take and enrol the names of all male free inhabitants within the districts of their respective companies, from the age of sixteen to sixty years, and inform them of the companies to which they belong, who are hereby obliged to turn out, and to do the duty of such companies, whenever their respective companies are by law obliged to be mustered or trained, or to perform any duty or service whatever; the publishing of the time and places of any such mustering, training or performance of any duty or service, by beat of drum, or any other expeditious and proper manner, shall be deemed a legal notice thereof, to oblige such persons to appear in their respective companies in a proper and legal manner for such purposes, and in no other. And every captain of every regiment shall, immediately after taking such list, as he is hereby enjoined to do twice in every year, and as often after as required by the commanding officer, make and return an exact copy thereof, on oath, to the adjutant of the regiment to which he belongs, who shall therefrom make an exact roll of the officers and privates of such regiment, and certify the same immediately to the brigadier-general of the brigade to which such regiment belongs, who shall return the same to the colonel of such regiment, who shall return an exact copy thereof to the President or Governor and Commander-in-chief, as the case may be, for the time being, within sixty days thereafter; on pain that every such captain, adjutant, colonel or brigadier, neglecting or refusing to do so, shall, for every such offence, forfeit the sum of one hundred pounds. XII. And be it further enacted by the authority aforesaid, That all persons under the age of sixteen and above the age of sixty years, are hereby excused from bearing arms in time of peace or alarm, on making such age appear, on oath; and all persons liable to bear arms by this Act, shall constantly keep in good repair, and appear with, at every muster of the company to which he belongs, and do duty in the said company on all occasions, with one good musket and bayonet, or a good substantial smooth bore gun and bayonet, a cross belt and cartouch box, capable of containing thirty-six rounds, with at least twelve rounds of good cartridges, filled with good gun powder and a leaden bullet, each fit for such musket or smooth bore gun, and half a pound of spare powder and twenty-four spare rounds of leaden bullets or buck-shot, or one good rifle-gun and tomahawk or cutlass, with three quarters of a pound of powder for such rifle, with an equal number of patches, together with a cover for the lock of such musket or gun, one ball of wax, one worm and picker, six spare flints, and one screw driver or substantial knife, of the fitness and sufficiency of which arms, ammunition and accoutrements, the captain or commanding officer of each company shall determine. XIII. And be it further enacted by the authority aforesaid, That every person liable to bear arms by this Act, whose arms, ammunition or accoutrements shall be found deficient, and not sufficient as required by this Act, shall forfeit and pay, for every such part of his arms, ammunition or accoutrements which shall be so deficient, a sum not exceeding three pounds. And every commissioned officer of any company in any of the regiments of militia of this State, may, once in every two months, with one or more sergeants of the company under his command, repair to the abode of every such person enrolled in such company, and demand a sight of his arms, ammunition and accoutrements, and every such person refusing to produce such arms, ammunition and accoutrements to be viewed, and who shall be found deficient in any of them, or not to have kept them in good order, shall, for every such refusal, or part of such arms, ammunition or accoutrements so deficient or out of order, forfeit and pay a sum not exceeding six pounds. Provided, nevertheless, that no such person shall be fined for such deficiency of arms, ammunition or accoutrements, if he can make it credibly appear to the captain of his company that such deficiency of his arms, ammunition and accoutrements, is not from wilful neglect.