Proviso.

Penalty for a captain refus ing to call out his quota.

Militia-men

substitute;

conditions.

which they belong, the first flank company in each division serving on the first tour of duty, and so on in succession throughout the divisions agreeable to their ranks, reckoning the same from the date each company was first raised and organized: Provided, That a proper credit shall be given to all such companies as have already served a tour of duty.

41. That if any commanding officer of a company shall refuse or neglect to make a list of the persons noticed to perform any tour of duty, and send or convey the same to the colonel or commanding officer of the regiment to which such company may belong, or if he shall fail to call forth such officers and men as shall from time to time be legally called from his company, upon any call from the governor or his superior officer, or on invasion or insurrection in the state, or failing on any such occasion to repair to the place of rendezvous, for such neglect or refusal he shall be cashiered or fined, at the discretion of a court-martial, in any sum not exceeding two hundred and fifty dollars, nor less than fifty dollars.

42. That any person called on to perform a tour of duty, may serve by a may serve by sufficient substitute: Provided, such substitute be approved by the captain or commanding officer of the company to which he may be offered to serve in; but if such substitute should be called in his own turn into actual service before the term expires which he was to serve for his employer, the person employing such substitute shall march or find a person to march in his substitute's turn, to be accepted as aforesaid, or be liable to all the penalties incurred by persons refusing to serve when called on tours of duty.

Officers, how classed for duty; major-generals; brigadier-generals;

field officers; company officers; proviso, as to odd bat

talions; routine of regimental staff officers; brigade staff;

division staff;

noncommissioned officers and musicians; sergeants, &c; six months a

43. That for the purpose of having the militia when called by classes properly officered, the following order is hereby enjoined, that is to say: all major-generals shall serve on tours of duty agreeable to the dates of their respective commissions, if the detachment required from the state amounts to a major-general's command; and the brigadier-generals shall also serve agreeably to the dates of their respective commissions successively throughout the state; and all colonels and majors of each division shall be called into service agreeably to the dates of their respective commissions, the oldest colonel and two oldest majors in each division to serve on the first call, and so on successively throughout the divisions, agreeably to the dates of their commissions; but in case the commissions of any two or more officers of the same grade in the state should bear the same date, the commander-in-chief or the adjutantgeneral shall determine by lot which of said officers shall first command, and notify them accordingly; and captains and subalterns in each regiment shall be classed as follows, that is to say,

tour of duty;

called on for a

reckoning the same from the date of their respective commissions. Provided, That where there may be an odd battalion in any brigade, the company officers shall be classed in like manner: all regimental staff officers to take tours of duty with the colonels of their respective regiments; brigade staff officers with their respective brigadier-generals; and division staff officers with their respective major-generals; and noncommissioned officers and musicians with the commissioned officers of companies in the following manner, viz: The first sergeant, first corporal, and musicians to take tours with the captains of their respective companies; and the third and fourth sergeants, and the third and fourth corporals to take tours with the lieutenants, and the second sergeant and second corporal with the ensign: all of which officers and privates shall serve when called into actual service, six months, if not sooner dismissed, from the time they arrive at the first place of rendezvous and no longer, and to be relieved by the class next in numerical order, the second to arrive at least two days before the expiration of the tour of the class to be relieved.

Duty of cap44. That when any detachment of the militia shall be called into sertains on being vice, the captain or commandant of each company shall take care that his prodetachment for portion of men are assembled and marched to the proper place of parade, to a tour of duty; rendezvous under the care of a commissioned officer or sergeant, with a list of the men, which list shall be delivered to the adjutant of the regiment; and he

shall make out a roll of the whole, the rank of the officers, and names of the commandant noncommissioned officers and privates; and when the detachment shall be of detachcompleted and placed under the proper officer, he shall attend them to the ment, his duty. place appointed for the meeting of the detachment of the brigade, when the several adjutants shall deliver to the brigade-major or the officer appointed to command the whole detachment, a complete roll containing the names of the commissioned and noncommissioned officers and privates comprising the detachment from each regiment or battalion, noting such remarks as circumstances may require; and it shall be the duty of the officer appointed to the command of such detachment, to cause two complete rolls to be made out and certified under his hand, one of which rolls he shall transmit forthwith to the adjutant-general, and the other to the brigade-inspector.

45. That the persons of all noncommissioned officers and privates, who Persons and shall actually perform a tour of duty, shall be exempt from arrest, and their property of perproperty from distress and sale, under any civil process, from the time they sons on a tour are legally notified to march on a tour of duty, and during the time they may of duty exempt serve on said tour of duty, and until they shall have reasonable time to return from arrest, &c. to their respective homes."

46. That if any detachment of militia shall be drafted or shall volunteer Arms, actoutheir service under a call of this state, when they arrive at the place of ren- trements, and dezvous, the commandant shall appoint three persons, who shall on oath or horses, to be affirmation, appraise the private arms, accoutrements, horses and equipage appraised; which may belong to such detachment; and said appraisers shall give each proceedings on said apperson a certificate of the property for him appraised with the amount of appraisement. praisement; and the said commandant shall transmit a certified statement of such appraisement to the office of the secretary of state; and the appraisers aforesaid shall receive a compensation of one dollar each for every day they may be so employed, to be drawn from the treasury of this state on the certificate of the commandant of said detachment; and if any of said property shall be lost (the owner using due diligence to preserve the same,) the amount of such appraisement shall be paid to such person, his heirs or assigns, out of the state treasury.

47. That when a detachment of militia shall be required to go into Baggage wagactual service under a call of this state, the commandants of brigades, regi- ons or pack-horments or battalions, (as the case may be) from whom detachments may be re- ses to be emquired, shall (if to be procured on reasonable terms) employ for the use of each ployed for decompany so required to march from their respective commands, a wagon, team tachments and driver, or a driver and six pack horses; and the commandant aforesaid when called inshall stipulate with the owner or owners for a certain sum per day, to be paid what manner to service; in to him or them for services to be rendered by such wagon, team, and driver, procured and or driver and pack-horses, during the time they may remain in service, and how paid for. give to the owner or owners aforesaid a certified copy of the agreement so entered into therein, specifying the sum or sums per day promised to be paid for said services; and the officer commanding the detachment while in service, shall, at the time of discharging the same, give or transmit to the owner or owners of such wagon and team or pack-horses, a certificate of the services rendered by said wagon and team or pack-horses, stating the price of hire per day, and the sum total such persons may be entitled to receive for said services, directed to the auditor of public accounts, who shall, on receipt of such certificate, issue bills as in other cases, in favor of the person or persons entitled to the same, and the treasurer of state shall pay the amount of such bills out of any moneys in the treasury not otherwise appropriated.

48. That the commandants of brigades, regiments or battalions, from Wagons, packwhich detachments are drawn, if not otherwise to be obtained, shall cause to horses and be procured by impressment, for each company a wagon and team or six pack- camp equiphorses, six axes, and six camp-kettles or pots, of a convenient size, all of which age may be impressed; shall be delivered to the commandant of the company for the use of such comproceedings pany; and the commandant of such company shall receipt for such articles to in that case; the officer impressing the same, who shall cause all property by him impress- property not ed to be appraised by three respectable persons on oath or affirmation, before returned, to be the same shall be sent away, and shall give the person from whom any arti- paid for by the cle may have been impressed, a receipt therefor, together with a certificate of state; goverthe appraised value, signed by the appraisers; and if such property or any part nor to sell certain property; thereof shall be returned to the person or persons from whom the same was 10.

VOL. II.

commandant

of detachment liable for neglect or misuse of property; how recovered.

Commandant

of detachment may appoint a purchasing commissary, who shall take

an oath; duty" of said conimis

sary; to report

to the auditor of state; duty of auditor; further duty of commandant

of detachment.

A volunteer company to

elect their officers; election,

how conducted; volunteer companies to elect field offi

cers in-like manner; officers of volunteer regiments to elect a brig

adier; certificate of judges of election to

supersede the issuing of a commission.

taken, at the end of such tour of duty, such property shall be again appraised as above directed, the appraisers allowing the owner a reasonable compensation for the use and wear of the same, and the amount thereof shall be allowed by the auditor on the certificate of the appraisers and commandant of the detachment, and be paid out of the state treasury as other moneys due therefrom; but if the property thus impressed shall not be returned, on return of said detachment, it shall be considered the property of the state and be paid for out of the state treasury agreeably to the first appraisement, on the order of the auditor as other moneys are paid; and when the public shall have no further necessity for said property, the governor shall direct the same to be disposed of, and shall cause all moneys arising from the sale thereof to be paid into the state treasury, and the treasurer's receipt to be taken therefor, which receipt shall be filed in the auditor's office: whenever public property shall be placed in the care of an officer, such officer shall be accountable for all losses sustained by his misconduct or neglect; and the adjutant-general shall prosecute a suit against such offender and recover damages for the use of the state, unless such damage is paid on demand, and all moneys thus received shall be paid into the state treasury as above directed.

of

49. That when detachments of militia are called into actual service and cannot otherwise be provided with rations, forage, &c. the commandant thereof shall appoint a purchasing commissary, who shall, before he enters on the duties of his appointment, take and subscribe the following oath or affirmation: You A. B. do solemnly swear or affirm (as the case may be) that you will purchase and provide provisions for the detachment under the command on the best terms for the public that the exigencies of the case will allow of, and in all respects perform, with fidelity, the duties of your appointment, according to the best of your judgment and abilities; and such purchasing commissary shall procure provisions, forage, &c., for said detachment, until they can be furnished by a regular contractor or purchasing commissary, and shall give receipts to all persons from whom he may procure provisions as aforesaid, stating therein the quality, quantity, and price of the articles thus purchased, together with a pertinent designation of the detachment for whose use such purchase may have been made; and such purchasing commissary, on the close of the tour of duty of the detachment for which he may be appointed, or when his appointment shall or may cease, shall forthwith transmit to the auditor of state, a correct account of his purchases, and the number and amount of receipts given by him, and the person receiving such voucher shall apply to and receive from the auditor of public accounts, an order on the treasurer of state for the amount thereof, in the same manner as is provided in the forty-eighth section of this act, in case of impressments; and the commandants of detachments as aforesaid, shall also appoint an issuing commissary, who shall likewise serve until superseded, and shall be governed by the rules and regulations of the armies of the United States in such case made and provided.

50. That when any detachment of the militia shall be called for with a view to their actual service, either under the authority of this state or of the United States, if a number of men sufficient to form a company to consist of from fifty to eighty, shall volunteer their services from one battalion, regiment, brigade or division, they are hereby authorized to choose by ballot officers for said company, at such time and place as the commanding officer of such battalion, regiment, brigade or division shall direct, at which time and place the commanding officer aforesaid shall attend, and take to his assistance two persons, who, together with himself, shall be judges of such election, who shall certify to the persons having the highest number of votes, that they were duly elected and chosen officers of said company; and in like manner, when a sufficient number of companies shall so volunteer in any brigade or division within this state, to form a battalion or regiment, the comofficers chosen as aforesaid, are hereby authorized to choose, in like manpany ner, their major; and if two battalions shall so volunteer, the company officers, with the majors, in like manner, choose their colonel, at such time and place as shall be appointed by the general of division or commander-in-chief; and, in like manner, if two complete regiments shall volunteer their services as a part of the detachment required of this state, they are, in like manner, authorized to choose their general of brigade, at such time and place as the commander-in-chief may direct, under the superintendence of such person or

persons as he may appoint; and the certificate of the officer and judges who preside at such election, shall be sufficient authority to the officer thus elected, and shall supersede the necessity of his being commissioned for such tour of duty.

51. That when any person shall volunteer his service, and perform a Regimental tour of duty, such services shall be recorded by the clerk of the regiment and clerk to record credited to such person as a tour of duty in the proper class to which he tours of duty. belonged at the time he entered on said tour of duty.

52. That if any noncommissioned officer or private shall desert while he Desertion of a is on a tour of duty, and shall not be apprehended and return to join his com- private, how pany, if a private, he shall be fined not less than one hundred, nor more than punished; of a two hundred dollars, and be obliged to march on the next tour of duty under noncommisthe same penalties as the first; if a noncommissioned officer, he shall be sioned officer, how punished; degraded and placed in the ranks, shall pay a fine not less than one hundred deserters, by and fifty, nor more than two hundred and fifty dollars, and be obliged to serve whom and how another tour as a private; and it shall be the duty of all commissioned officers apprehended, in this state, to apprehend as deserters, all noncommissioned officers and privates belonging to any detachment of this state then in service, who has not a written furlough signed by the commandant of his company and countersigned by the commandant of the detachment.

dollars per

leased from

punishment for

53. That if any noncommissioned officer or private being legally noti- Privates refusfied, shall neglect or refuse to march on any tour of duty, armed and equipped ing to march on as by this act required, (unless such person shall be notified that arms will be a tour of duty otherwise furnished) he shall forfeit and pay, for every such offence, a sum of to be fined 20 twenty dollars for each and every month he is by law required to serve on month; comsuch tour; and it shall be the duty of the commandant of the company to mandants of which such delinquent belongs, within three days thereafter, to certify the companies to same to the commandant of the proper regiment or battalion, who shall, within certify, &c.; ten days after receiving such notice, order and cause to convene, a board of board of offi five commissioned officers, and shall give five days notice of the meeting of such cers to be callboard by written advertisements set up within the bounds of the company ed; notice, how where such delinquent did reside when notified, who shall hear and determine of given; duty of all such delinquencies; and they shall assess the penalty aforesaid on each and the board of officers; clerk to every such delinquent who does not render to them a sufficient excuse for such attend; comdelinquency; and it shall be the duty of the clerk of the regiment to attend mandant to issuch board and record all their proceedings; and in case of the absence or sue warrant; inability of such clerk to attend, the board shall appoint a clerk pro tempore, substance of who shall perform the duties aforesaid; and when said board shall have warrant; proassessed any such fine, the commanding officer of the regiment or battalion viso, delinshall issue his warrant, directed to the sheriff or coroner of the county in quents, how rewhich such delinquent resides, or his property may be found commanding confinement; him to levy and collect said penalty from the goods and chattels, lands and tenements of such delinquent, after giving such notice thereof as is required making false - by law for the sale of property in other cases, and for want thereof to take affirmations; the body of such delinquent and commit him to the jail of the county, where further proviso, he shall be kept in close confinement, unless the penalty and cost of imprisonment shall be paid: Provided, That such person may be released from confinement upon his making oath or affirmation before some justice of the peace, that he is unable to pay the fine assessed as aforesaid, and that he has not secreted, made over or conveyed away any of his property, either directly or indirectly, for the purpose of evading the law, and that he has not property to pay such fine; and if the person making oath or affirmation as aforesaid, shall wilfully depose or affirm any matter to be a fact, knowing the same to be false, or shall, in like manner, deny any fact, knowing the same to be true, he shall be deemed guilty of perjury, and upon conviction thereof shall be punished accordingly as in other cases: And provided also, That the commanding officer of the regiment or battalion may at any time thereafter order and cause to be issued a process against the lands, goods and chattels of the person so discharged from imprisonment, for the amount of such fine and costs, in the same manner as is directed by the foregoing provisions of this section, which warrant shall be made returnable to the clerk of the regiment in sixty days from its date; and in case such warrant, shall be returned unsatisfied, for want of property, or the body of the delinquent, the commanding officer may, from time to time, issue new warrants in like manner, until the same shall be satisfied.

Form of warraut.

Persons evading a tour of duty, how dealt with.

Sheriff to pay

master; penalty for neglect of duty; duty of the court of common pleas; what testimony is admissible.

54. That the warrant to be issued agreeably to the preceding section shall be, as near as the case will admit, in the form following:

State of Ohio,

county, ss.

To the sheriff of said county, greeting: Whereas at a board of officers of the regiment of the division of Ohio militia, convened at

day of

brigade of the
on the

to hear and determine of delinquencies, a fine of dollars was by the judgment of said board assessed upon A. B. a sergeant, corporal, or private (as the case may be) of the company of said regiment for neglect of duty as appears of record, whereof execution remains to be done; you are therefore commanded that of the goods and chattels, lands and tenements of the said A. B. within your bailiwick, you cause to be levied and made the said sum of dollars, together with your own fees for collection; and for want of such goods and chattels, lands and tenements, you are commanded to take the body of the said A. B. if he may be found in your bailiwick and him commit to the jail of said county, there to remain until the fine and fees aforesaid are paid, or he be otherwise discharged by due course of law; and the fine aforesaid, when collected, you are to pay unto the pay-master of said regiment, taking his receipt therefor, and make return of this writ, with your doing thereon, to the clerk of said regiment, within sixty days from this date. Given under my hand and seal day of

at

this

55. That if any noncommissioned officer or private, shall absent himself from the bounds of his company district, whereby he shall evade a draft or tour of duty, he shall he notified immediately on his return, to hold himself in readiness to march on the next tour; and if he shall neglect or refuse to perform the next tour of duty, after being notified of the time and place of rendezvous, which notice may be given by leaving a written notification at his last place of residence in said company district, in case he cannot be found he shall be subject to the same penalty as is inflicted by the fifty-third section of this act, which shall be collected in the same manner.

56. That whenever any sheriff or coroner shall collect any such penalty, fines when col- he shall immediately pay the same to the pay-master of the proper regiment, lected to payand take his receipt there for on the back of the warrant, and return said warrant to the clerk of the regiment, with his doings thereon as commanded; and in case any sheriff or coroner shall neglect or refuse to serve such warrant, or make return of the same, or to pay over any money by him thereon collected as aforesaid, the clerk of the regiment shall make a motion, in writing, to the next court of common pleas, for the proper county, against such sheriff or coroner, setting forth the facts of the case; and provided said sheriff or coroner shall have had four days notice thereof, and a copy of such motion, the court shall at the same term proceed to render judgment against such sheriff or coroner for the amount of such warrant, with twenty-five per cent. penalty and interest; and the records of said board of officers, and the testimony of the clerk or pay-master or other parole evidence of such delinquency, shall be sufficient for said court to render judgment upon, from which judgment there shall be no appeal,

Fines, when collected, to be paid over to the pay-master;

captain to hire

substitutes; proviso, not more than

57, That all fines collected from persons legally enrolled in any company, for neglecting or refusing to perform a tour of duty, shall be paid into the hands of the paymaster of the regiment, and by him placed to the credit of the proper company from which such fines were collected; and when the commandant of a company shall be required to furnish his quota of a draft, he shall, if practicable, hire substitutes to make up any deficiency which may happen from the refusal of any person drafted to perform a tour of duty, to twenty dollars the extent that the funds in the hands of the paymaster in his favor will jusper month to be tify: Provided, That he shall not, in any case, give more than twenty dolgiven for a sub- lars per month for a substitute; and in case substitutes cannot be procured to stitute; promake up such deficiency, the commandant of such company shall proceed to ceedings when draft until his quota is furnished, and so on in succession until his company is substitutes cangone through; and when all the men in his company have been called on to not be had. perform a tour of duty, the commandant of such company shall certify the same to the commandant of the regiment; and the commandant of such company shall not again be required to furnish any quota of men by draft, until all the companies in the regiment are, in like manner, gone through, and all the privates therein have been called upon to perform a tour of duty.