8. That persons who have, or may hereafter join any light or indepen- Persons joining dent company, that has performed a tour of duty, shall be subject to a draft light company in the class he may have left, in the same manner as though he had not joined to perform tour such light or independent company, till the time he shall have performed a of duty. tour of duty. 9. That any private when called on to perform a tour of duty, may Privates may serve by substitute, to be approved by the colonel or commanding officer of the serve by substiregiment or odd battalion on the day, and at the place of rendezvous of the tutes. detachment from such regiment or odd battalion, provided the substitute shall suffer himself to be enrolled and placed under the command of the officer commanding the detachment. And while marching to the place of general rendezvous, no officer below the rank of captain, shall suffer any militia-man to be exchanged for a substitute. Provided, that if any substitute should be Proviso. 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 in his. substitute's place, to be accepted as aforesaid, or be liable to all the penalties incurred by persons refusing to serve when called on tours of duty: and the commanding officer of the company from which such substitute was taken, may go into the bounds of any company within the state, and notify the principal to march in his substitute's place, and on his failing to appear at the place of rendezvous, he shall be proceeded against in the same manner as though he was actually enrolled in the company from which such substitute was taken. : eral officers; routine of field officers; routine mental staff; 10. That for the purpose of having the militia called by classes properly Routine of gen officered, the following order is hereby enjoined, that is to say: all majorsgeneral shall serve on tours of duty, agreeably to the dates of their respective commissions (if the detachment from the state amounts to a major- of company general's command;) and the brigadiers-general shall also serve agreeably to officers; rank of the dates of their respective commissions successively; and all other officers officers, by throughout the state, shall serve according to the date of their respective whom detercommissions, as follows, viz: when any one or more divisions furnishes a regi- mined; division ment, the senior colonel within the bounds from which such regiment was and brigade formed, shall command the detachment; when any one or more regiment or staff officers, brigades furnishes a battalion, the senior major within the regiment, brigade their routine; or brigades furnishing the detachment, shall command; when any battalion, routine of regiregiment or brigade furnishes a company, the company officers shall be taken routine of nonfrom within the bounds furnishing the same, the senior captain, lieutenant and commissioned ensign (not having performed a tour) shall always be the first for duty, and officers. shall be so called into service: and where there shall be any two commissions in any regiment or odd battalion of the same date and grade, the colonel or commanding officer of the odd battalion shall, in the presence of, at least, two disinterested officers, determine the seniority of such officers by lot, which shall ever after govern such officers as to their rank in like manner shall the brigadier-general determine the ranks of any colonels or majors of odd battalions in his brigade, when any such commissions prove of the same date: in like manner shall the major-general determine, by lot, the rank of any brigadiers-general within his division, when two or more commissions are found of the same date: in like manner shall the adjutant-general determine, by lot, the rank of any majors-general, when any two commissions shall be found of the same date: and it shall be the duty of any commandant of regiment or odd battalion who has determined the rank of any officer, to certify the same to the brigadier-general, who shall cause the same to be noted on his rank-roll. In like manner shall the brigadier-general certify all rank of field officers under his command so determined, to the major-general, to be by him noted on his rank-roll; and in like manner shall the major-general certify to the adjutant-general, all rank of field officers so established, within the division under his command, to be noted by the adjutant-general. The division staff officers shall perform tours of duty with their major-general. Brigade staff officers shall perform tours of duty with their brigadiers-general: regimental staff officers (excepting the clerk of the regiment) shall perform tours of duty with their colonels; the noncommissioned officers and musicians shall serve with the officers of their respective companies as follows: the first sergeant, first corporal and musicians shall march with their captain; the second and third sergeant, and the second and third corporal, shall march with their lieutenant; the fourth sergeant and fourth corporal shall march with VOL. II. 13 Proviso. Duty of judges of election. Persons failing to march on a tour of duty, their ensign Provided, that when absence, sickness or other circumstances prevent any noncommissioned officers from marching when called, the commissioned officers of the company shall determine by lot among the other sergeants or corporals (as the case may be) who among them shall perform the tour of duty, in the place of him whose duty it was to march; and the person on whom such lot may fall, shall be compelled to perform the tour of duty, in the same manner as though he was otherwise subject to the same; and he whose duty it was to perform such tour of duty, shall march on the next. Any noncommissioned officer who may resign his office, shall be placed the first man on the first class for duty. 11. That it shall be, and is hereby made the duty of the judges of any election, held by virtue of the fiftieth section of the act to which this is an amendment, to certify such election to the governor, who shall issue and forward commissions to the persons certified to be duly elected: and the judges of such elections, shall moreover, give to the persons declared duly elected, certificates thereof, which certificates shall be good authority for such persons to enter upon, and execute the duties of such office, until they shall receive commissions. 12. That if any noncommissioned officer, musician or private, being legally notified, shall neglect or refuse to march on any tour of duty, armed and equipped, as by the act to which this is an amendment, required (unless such how dealt with; person shall be notified that arms will be otherwise furnished him) shall forfeit warrant to issue for the and pay for every such offence, a sum not less than ten dollars nor more than collection of thirty dollars, for each and every month he is, by law, required to serve on fines; proviso such tour. And it shall be the duty of the commandant of the company to as to imprison- which such delinquent belongs, within three days threafter, to certify the same ment and dis- to the commandant of the regiment or odd battalion, who shall, within ten tress; proviso days after receiving such notice, order and cause to be convened, a board of as to warrants five commissioned officers, two at least of which shall not be below the rank issuing. of captain; and the officer so ordering such court shall give to each commandant of company who has returned delinquents, eight days notice of the time and place of holding such board, who shall forthwith advertise the same, with the names of the delinquents, in at least three public places, in the bounds of his company and the board of officers when met, shall hear and determine on all such delinquencies (allowing the persons charged, the right to be heard, and to introduce such witnesses as he may think material to his defence,) and shall assess such penalty on every such delinquent, as the nature of the case requires, in conformity to the provisions of this section, unless such delinquent, shall render to the board a good and sufficient excuse for such delinquency. And it shall be the duty of the clerk of the regiment or odd battalion, to attend such board, and record all the proceedings; and in case of the absence or inability of the clerk to attend, the board shall appoint a clerk pro tempore, who shall perform the duties aforesaid; and when such board shall have assessed any fine, the commanding officer of the regiment or odd battalion shall forthwith issue his warrant thereon, directed to the sheriff or coroner of the county, in which such delinquent resides or his property may be found, commanding him to levy and collect the said penalty, from the goods and chattels, lands and tenements of such delinquent, (after giving such notice as is required by law for the sale of property in other cases) and for want thereof to take the body of such delinquent and commit him to the jail of the county, where he shall be kept in close confinement until the penalty and costs of imprisonment shall be paid: Provided, that any person confined in jail for fines assessed under the provisions of this act, or the act to which this is an amendment, shall be discharged therefrom on his delivery to the sheriff or coroner so much property as will be sufficient, by sale thereof, to satisfy such fine with costs of imprisonment. And when any person so confined shall not have property sufficient to discharge the fine and costs, for which he may be imprisoned, he may in like manner deliver to the sheriff or coroner, such property as he may be possessed of: whereupon, he shall be discharged from prison, on his taking an oath before some person competent to administer the same, that he has surrendered to the sheriff or coroner, as the case may be, all the property that he possesses or holds, and that he has not directly nor indirectly conveyed or made over any article or articles, estate, money or thing whatsoever, for the purpose of evading the law: Provided, that nothing herein contained shall prevent other warrants from issuing against the goods, chattels, lands and tenements of such delinquent so discharged: Provided, also, that nothing in this act contained shall be so construed as to compel any person having a family to give up such property as is exempt from distress, execution or sale, by the twelfth section of the act regulating judgments and executions, passed January the twenty-fifth, one thousand eight hundred and ten. on. 13. That any person fined under the provisions of this act, or the act to Appeals allowwhich this is an amendment, for neglecting to march on a tour of duty when ed to a second required, (such person not having appeared at the board by which the fine was board in certain assessed) and thinking himself aggrieved, may have the proceedings against cases on givhim stayed, on his giving bond to the pay-master of the proper regiment, and ing bond; proceedings theremaking oath or affirmation before some authority competent to administer the same, that he verily believes he has a good and sufficient excuse, and good cause to show why such fine should not have been assessed, and that he was prevented from appearing at such board for want of notice, or from circumstances not within his control; and on such delinquent's producing to the commanding officer of the regiment or odd battalion a certificate that the oath herein required has been by him taken, together with a certificate from the pay-master, that the bond required has been with him deposited, such commanding officer shall order the proceedings against such delinquent stayed, and cause to be summoned a board of five officers, together with the clerk of the regiment, two of which shall be of the rank of captain; the commanding officer giving to the delinquent at least ten days notice of the time and place of the meeting of the board, which board when formed, shall have power to hear and determine the cause as justice may require. And when such board shall remit the fine previously assessed on such delinquent, his bond to the pay-master shall be void and of no effect; but when such board shall confirm or vary the fine so assessed on such delinquent by the preceding board, such delinquent and his securities shall be proceeded against on the judgment of this board, in the same manner as is provided in the preceding section. ulated. 14. That every member of any board formed for the assessment of fines Boards for ason delinquents failing to perform a tour of duty when required, shall, previous sessment of to his entering on the duties thereof, take the following oath: You, A. B. fines, how regdo swear or affirm, that you will faithfully try and determine the case or cases of such delinquent or delinquents as may be submitted to your decision, and that you will truly administer justice according to law and evidence that may be adduced; and you do further swear that you will never divulge or disclose the vote or opinion of any member of the board, unless required to give evidence thereof as a witness by a county justice, in due course of law, so help you God. And the same oath as to secrecy shall be administered to the clerk. battalion mus 15. That any private failing or neglecting to attend a muster of his regi- Penalty on ment during the whole time the same is on parade or duty, shall be fined in neglect to atthe sum of one dollar and fifty cents for failing or neglecting to attend a mus- tend regimenter of his battalion; in like manner he shall be fined one dollar and twenty-five tal musters; cents for failing or neglecting to attend a muster of his company; in like man- ters; company her he shall be fined one dollar for attending a regiment, battalion, or company musters; at muster without a sufficient musket, rifle or fusee; he shall be fined thirty- tending withseven and a half cents for attending a regimental, battalion, or company mus- out arms. ter without either a cartridge-box, or powder-horn, and bullet-pouch, twelve and a half cents. 16. That when any light or independent company shall be obliged to Light compamarch on a tour of duty, or in case of emergency, and there do not appear at nies when the place of rendezvous above ten privates, they shall be marched to the gen- called on to eral rendezvous under the command of the second sergeant; if any number perform a tour between ten and twenty appear, they shall be marched under the command of of duty, how the first sergeant, with the first corporal; if any number between twenty and officered. thirty appear, they shall be marched under the command of the ensign, with the fourth sergeant and fourth corporal; if any number between thirty and forty-five appear, they shall be marched under the command of the lieutenant or lieutenants, with the ensign or cornet, and second and third sergeants, and second and third corporals; if any number above forty-five appear, the whole company officers shall march: Provided, That where any number of privates below thirty shall appear at the place of company rendezvous when ordered to march on any call, the commanding officer of the regiment or odd battalion to which such independent company is attached, shall have power to dissolve Penalty for disobedience &c. while on parade. Duty of com- cases of delin- ion. Alien enemies to bear arms. such company, after those that appear shall have performed their tour of duty, and the delinquents duly fined. 17. That whenever any noncommissioned officer, musician or private, shall while under arms, at any company, battalion or regimental muster, disobey orders, or use any abusive or reproachful language to his officer or any of thein, or quarrel or excite disorder on parade, or while the men are assembled for refreshment during the hours of parade, he shall immediately be disarmed, placed under guard, and there remain until the parade is dismissed for the day. And it shall be, and is hereby made the duty of the officer ordering such militia-man under guard, to draw up his offence in writing, and deliver the same to the next regimental court of inquiry, when he may be fined in any sum not exceeding thirty dollars, according to the nature of the offence, the board forming themselves into a court-martial for the purpose of his trial. And it is hereby made the duty of every officer commanding a company, to read or cause to be read, this section on parade at their spring company muster, each and every year, for the information of all concerned. 18. That whenever a whole or any part of a company, battalion, regiment, brigade or division, is ordered into service in cases of emergency or actual or threatened invasion, the commanding officers of companies shall note down the delinquents in his orderly book, and on return of such detachment, the commanding officers of companies shall immediately report such delinquents to the commanding officer of his regiment or odd battalion; and the commanding officer of such regiment or odd battalion shall forthwith order a board for the hearing and assessment of fines on such delinquents to whom notice shall be given, and proceedings of the board had in the same manner as in other cases. Provided, That no fine imposed on any delinquent under the provisions of this section, shall be for a less sum than thirty dollars, any thing in this act to the contrary notwithstanding; and for which penalty so imposed, such delinquent shall have no credit when called to perform a regular tour of duty. 19. That no alien enemy who has reported himself as such, agreeably to not compelled the act of congress, entitled 'an act respecting alien enemies,' bearing date July the sixth, one thousand seven hundred and ninety-eight, and who is not by law permitted to be naturalized, shall be compelled to do militia duty in this state, until he shall have it in his power to become a citizen, any thing in the act to which this is an amendment to the contrary notwithstanding. Penalty on commandants of companies for neglect of duty; duty of commissioned officers to re- Duty of adju Proviso. Former fines, of. 20. That if any commanding officer of a company, excepting a light or independent company, shall neglect or refuse to furnish the clerk of the regiment with a class roll of his company within three months from the taking effect of this act (except he has already furnished the clerk with such class roll) or if any commissioned officer of a regiment shall not within three months from the taking effect of this act, furnish such clerk with his rank and date of commission unless the same is already recorder, or if any officer hereafter commissioned, shall not within sixty days after he shall accept any commission in a regiment, have his rank recorded by such clerk, any officer so offending shall be fined in a sum of twenty dollars, by any regimental court of inquiry for assessment of fines, before whom such neglect shall be made to appear. 21. That the adjutant-general shall not be required to keep any rankroll of officers below the grade of field oflicers. 22. That where any delinquent has been fined for a whole tour of duty under the provisions of the act to which this is an amendment, for failing to march in a case of emergency when required, the commanding officer of the regiment or odd battalion in which such delinquent was fined, may reduce the penalty so imposed to the sum of thirty dollars, for which such delinquent shall be entitled to no credit when called to perform a tour of duty: Provided, That nothing herein contained shall prevent any delinquent so fined in the sum of one hundred and twenty dollars, from paying the same, and having credit for a full tour of duty. 23. That all fines incurred by neglecting or refusing to perform a tour of how disposed duty, which have heretofore been assessed by any court-martial and not collected prior to the taking effect of the act to which this is an amendment, shall be collected and disposed of in the same manner as fines assessed under the provisions of the act to which this is an amendment.. Q. L. c. 305, 24. That all acts and parts of acts, so far as the same are contrary to the &c. repealed in provisions of this act, be, and the same are hereby repealed: but all fines incurred or assessed before the taking effect of this act, shall be assessed and collected agreably to the provisions of the act to which this is an amendment. [Passed, February 11, 1814.] CHAP. CCCXXIII.-An act to confirm and legalize all judicial proceedings in the courts of Obsolete. common pleas, in the first and third circuits, at their winter and spring sessions, in the year one thousand eight hundred and thirteen. Whereas, doubts have arisen upon the construction of the act regulating the times of holding the judicial courts, passed the eighth day of February, one thousand eight hundred and thirteen, whether any law was in force authorizing the courts of common pleas in the first and third circuits, to sit and hold courts in the months of February, March, and April in the year aforesaid: And whereas, at the sitting of said courts in the said months of February, March and April in the year aforesaid, all the judicial business in said courts was proceeded in as though no such doubts existed: And whereas, it is of importance to the suitors in said courts that all doubts respecting the validity of the judicial proceedings aforesaid should be removed: therefore, Be it enacted, &c. That all returns, pleadings, orders, decrees judgments and continuances, made and entered at any court of common pleas in the first and third circuits at their winter and spring session, in the year one thousand eight hundred and thirteen, shall, and the same are hereby declared to be confirmed and legalized; and the want of power and anthority to sit and hold courts as aforesaid, shall not by the supreme court be taken and considered as an error sufficient to warrant the reversal of any judgment rendered by said courts of common pleas upon writs of error hereafter sued out. [Passed, February 10, 1814.] _ CHAP. CCCXXIV.-An act increasing the salary of the treasurer. Be it enacted, &c. That the treasurer of state be allowed in addition to his present salary, the sum of one hundred dollars per annum, payable quarterly out of any moneys in the treasury not otherwise appropriated, [Passed, February 10, 1814.] Repealed, O. Obsolete: See O. L. c. 676, and note there. Sarchets releas CHAP. CCCXXV.—An act to amend the several acts regulating the Muskingum salt works. 1. Be it enacted, &c. That Thomas and John Sarchet, present occupants of the Muskingum salt works, be, and they are hereby released and discharged from the payment of any, and all rents that would from and after ed from paythe first day of April next, annually, become due and be owing to this state, ment of rents. by virtue of the provisions of the act, entitled, an act to amend the act regulating the Muskingum salt works,' passed February twentieth, one thousand eight hundred and twelve. 2. That the aforesaid Thomas and John Sarchet, shall, during the term Twenty dollars specified in an act to which this is an amendment, passed February twentieth, to be paid anone thousand eight hundred and twelve, annually pay unto the agent of the nually to the Muskingum salt works, the sum of twenty dollars, to compensate him for dis- agent. charging the several duties required of him by the provisions of the act regulating the Muskingum salt works, passed February the fifteenth, one thousand eight hundred and nine, and the act supplementary thereto, passed February twentieth, one thousand eight hundred and nine. This act to take effect and When to take be in force from and after the first day of April next. [Passed, February effect. 10, 1814.] § 17. Auditor's war CHAP. CCCXXVI.-An act further regulating the duties of the auditor and treasurer, and Repealed, Janfor other purposes. † uary 13, 1816; 1. Be it enacted, &c. That no warrants or bills hereafter issued by the O. L. c. 364, auditor, and payable to the treasurer of this state, shall require the payment of any accruing interest thercon, nor shall any interest be paid on any such warrants or bills, unless the same are presented to the treasurer, and by him draw interest. endorsed, that the funds in the treasury are insufficient to pay the same; and from the date of such endorsement, such warrants or bills shall entitle the holders thereof to interest on the amount of money in such bills or warrants mentioned, until the same shall be paid. rants not to 2. That all lists of taxes and duplicates thereof, to be made out by the Duty of the auditor, or the commissioners of the several counties, shall be so formed as to auditor and * Sce O. L. c. 203, 232, 280. + See O. L. c. 201, 253, 303. |