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Supposing then that this Act of Assembly, which was made in
1715, for the Ordering and Regulating the Militia of this Province,
for the better Defence and Security thereof, is in full Force and
Virtue (and if any Thing could have been said to invalidate it, I am,
as I have already hinted, apt to think you would not so studiously have
avoided entering into a Dispute with me about it's Existence): It
not only seems to give, but expressly does give Power to every
Colonel, Lieutenant-Colonel, Major or Captain, to enlist the Inhabi-
tants of this Province to be of the Militia, and to muster, exercise
and train them, and it likewise subjects such Inhabitants to a Fine
for Non-Appearance, or Refusal to be enlisted in the Militia or
Train-Bands; but whence you would deduce, that the Inhabitants of
this Province are to be only mustered in, and not liable to be marched
out of, the Counties where they respectively reside, I cannot con-
ceive, since the Act plainly and expressly declares, that the Officers
shall muster, exercise, and train the Persons so enlisted, " in and at
such Places, and at such certain Times as to them shall seem meet,
and as the Service, Safety or Defence of this Province shall require,
or as his Excellency the Governor of this Province, or Commander
in Chief for the Time being, shall see Cause to Order."
After this Act has settled or regulated the Pay of the Officers and
Soldiers of Militia, while in actual Service, it proceeds by another
Clause, beginning with the Words, " and to the Intent that when-
soever," &c. and by the following Enacting Clause, to vest, or it
supposes the Governor and his Council already vested, with the sole
Power of determining when it is necessary to raise Men for sup-
pressing any foreign Invasion, domestic Insurrection or Rebellion,
or War with any Indians; it consequently makes, or supposes, them
the only Judges of what is to be deemed a foreign Invasion, domestic
Insurrection, &c. and does not leave that to the Determination of
every Individual, or any Number of Individuals of the Militia what-
ever. The Law then declares, that the Pay of such Officers and Men,
as may be so raised and employed, and all the necessary Charges of
such War, shall be discharged and defrayed by an equal Assessment
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L. H. J.
Liber No. 50
May 5
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upon the Taxables of this Province, or out of the Public Treasury of
this Province, and no otherwise whatsoever.
By a subsequent Clause of this Act, beginning with the Words,
" and be it further Enacted, by the Authority aforesaid, that if upon
any foreign Invasion, any Person or Persons, or a Mode is pre-
scribed, (as the Gentlemen of the Lower House observed to Governor
Ogle, in an Address they presented to him the 4th of June 1740)
" for the Punishment of any Men that shall not, after being duly
warned, appear and serve in Arms, for the necessary Defence of this
Province on such an Occasion; " to wit, they are first to be carried
before a Justice of the Peace, and if the Justice shall think their
Excuses insufficient, he is to commit them, and they are to remain
45
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p. 165
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