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Re: [Revlist] Dunmore's War

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  • Glenn Williams
    Hi Ron, David and Todd,   I d like to offer a few observations to this discussion based on my research of the subject.   The Burgesses, as you indicated,
    Message 1 of 7 , Feb 12, 2013
      Hi Ron, David and Todd,
      I'd like to offer a few observations to this discussion based on my research of the subject.
      The Burgesses, as you indicated, told Dunmore he had the authority to call out militia under the Act to Repel Invasions and Suppress Rebellions. 
      From the Journals of the House of Burgesses for May 5, 1774: "... your Excellency will be pleased to exert those powers with which you are fully vested by the Act of Assembly, for making provision against Invasions and Insurrections..."
      By his royal commission and letter of instructions, Dunmore was commander in chief of the militia; had the authority to call out all or part of the militia; march them to any place in the colony; commission officers, etc.  
      We should not forget that Dunmore was not an elected governor, but since Virginia was a "royal colony" he acted as the king's viceroy, with the power and authority delegated by the monarch to: “at all times to arm, levy, muster and command” all persons living within the boundaries of Virginia.He could call or issue the order to raise as many regiments and march them anywhere within the province’s boundaries as he saw fit.In addition to enlisting volunteers, the governor could levy, or draft, men as soldiers and artificers for active service.The governor could order the construction of fortifications, and impress or commandeer private property such as sloops, boats, draft animals, wagons, supplies, and provisions for military use.He could also proclaim martial law and issue letters of marque in the king’s name during wartime. (from Dunmore's Royal Commission from the king, and letter instructions from the Secretary of State or the Colonies, dated
      the Court of Saint James, February 7, 1771).
      The Militia Act, which needed to be "continued" in 1774, but as you indicated the Assembly was "dissolved," which means new delegates to the House of Burgesses had to be elected, it did NOT mean the General Assembly ceased to exist.  Think of it in terms of being like a "vote of no confidence" in the current British Parliament.  The Militia Law needed to be "continued" (not "renewed") , or a new one enacted, also did NOT mean the colonial militia ceased to exist, or could not be called out.  The "expiration" gave the House the opportunity to amend or change the legislation.  The governor did exactly as he and all the royal governors before him did after disolving the Burgesses: he issued a writ for new elections in order to call the House of Burgesses for the next session of the General Assembly, before he left on campaign, if memory serves.  Remember, in June 1775 the General Assembly was in session when Dunmore removed to HMS FOWEY.  The
      House of Burgesses, like the House of Commons in England, had to initiate any legislation to levy taxes and appropriate revenue  The Act for Repelling Invasions and Suppressing Insurrections was not due to expire until 1775.  Also, read the wording of the Militia Act, and as I recall, it is mostly administrative and organizational requirements (who must be enrolled, who is exempt, or excused from attending assemblies; how often private and general musters are held; .  The Act for Repelling and Suppressing is more operational.
      The difference between the Militia Act and the Act for Repelling and Suppressing:
      The Act for the better regulating and
      disciplining the militia, or the Militia
      Law (Hening, 8: 241-245, 503).  The act defined the obligation of all free
      men to serve, specified their related responsibilities, and qualified the
      exemptions of those who could be excused from performing service or attending training.  The Militia Law also defined the government’s
      role in supporting its military establishment, enforcing the act’s provisions, and
      maintaining order and discipline when its soldiers were not serving on active
      In The several acts of Assembly for
      making provision against invasions and insurrections,(Hening 8: 9-12) defined the colonial government’s
      responsibilities for defense and internal security.  These included provisions and procedures for
      raising and supporting militia forces called into “actual service,” and
      provided for enhanced military measures, such as organizing standing forces,
      “in times of danger.”  
      Dunmore to Col. Andrew Lewis, letter dated Winchester, July 24, 1774: "the Old [Militia] Law [is] Still in force as
      far as it goes we are sure of being reimbursed,” by the General Assembly.
      What the governor could not do was pay the troops or suppliers.  Certainly, he could "draught" men and "impress" private property, and possibly pay for it out of his own treasure, or seek for the general Assembly to enact the necessary legislation to appropriate funds and levy taxes to raise the revenue.  Remember, the Townshend Duties and the Tea Tax were attempts by the Parliament to make the royal and proprietary governors LESS DEPENDENT on their colonial assemblies (especially the representative lower houses) since they held the colonial purse strings. 
      The colonial treasurer disbursed such money to pay for militia soldiers who had performed "actual service" only
      after the Burgesses appointed commissioners “to examine and state accounts of
      the militia ordered into actual service” made their reports, and the House’s
      committee of the whole approved their findings. (Hening:8: 9). The House of Burgesses appropriated the money by legislation, and the colonial treasurer was always a member of the House appointed by the House. 
      The commissions of the county lieutenants, among other directives, required them "... in case of any sudden
      Disturbance or Invasion, I do likewise empower you to raise, order, and march
      all or such part of the Said militia, as you shall seem meet, for resisting and
      subduing the Enemy:”  
       As for how the army was formed, only the General Assembly could pass an act that enabled the county lieutenants to draft militia for actual service at the colony's expense; and they would never vote to authorize the militia to operate with drafted men outside the colony's borders or more than five miles beyond the farthest settlement (Hening 6: 31, 548).  Previous expeditions were almost always conducted with volunteers (the Virginia provincial regiments during the Forbes campaign against Fort Duquesne are a different story - but then, although they were not militia, still required the approval of the General Assembly).  County lieutenants had the power to draft men for local defense or to serve as rangers (at the county's expense), but could only apply to get the colony to pay in arrears.  And regardless of their rank in the militia, officers and NCOs were only paid for serving in the size unit they recruited as volunteers:
      The county lieutenants were cautioned “not depute any greater number of inferior
      officers than one captain, one lieutenant, one ensign, three serjeants or
      corporals, and one drummer for every fifty soldiers,” and in that proportion
      for a greater number.  When the full
      established strength of fifty men for a company could not be reached, the
      number of leaders decreased proportionally.  For example, “every company consisting of thirty men,” when properly
      officered, could have no more than “one lieutenant, one ensign, and two
      serjeants,” while a company of fifteen or fewer men had “not more than one
      ensign, and one serjeant.”   (Hening 7:114)

      When the military operation was over, the Burgesses would, the next time convened, appoint commissioners to determine if the colony paid the troops and for military expenses.  If you read some of the correspondence, Governor Dunmore and the county lieutenants discuss that recruiting of volunteers for the expedition had to be done, and to assure the men that the Burgesses would certainly approve the pay for them at the next session.  The commission's report would also cover the men drafted for local defense and for rangers, spies and scouts.  Militiamen called out on alarm were not entitled top pay, usually retroactively, until they had been on duty in excess of six days.   
      I hope this helps (or at least does not make it any MORE confusing.
      Best Regards,

      From: "umfspock87@..." umfspock87@...
      Sent: Sunday, February 3, 2013 9:54 AM
      Subject: Re: [Revlist] Dunmore's War

      Hi David and Ron, Thanks for responding guys. I have some follow up questions. I found in the House of Burgesses journal (p. 93) that on May 12th the assembly instructed Governor Dunmore to, "exert the Powers vested in him, by the Act of Assembly, for making Provisions against Invasions and Insurrections, which we doubt not, will besufficient for the present to repel the Attacks of the Indians, who haveperfidiously commenced Hostilities against his Majesty’s Colonies." I think Ron that you are spot on in your speculation that the House assumed the expired militia law (of 1771) was going to finally be renewed (it expired in 1773) and thus, instructing the Governor to "exert the Powers vested in him" was no big deal. But the law wasn't renewed (as you noted) because of the sudden dismissal of the House in late May. So the question remains, under what legal authority did Governor Dunmore act when he , "directed that the Militia of [ Augusta,
      Botetourt, and Fincastle] Counties be draughted out, in order to compose a body of Men sufficient to go against the Indian Towns and drive off, or extirpate, the Blood-thirst and savage Inhabitants." ( Purdie & Dixon July 14, 1774, p. 2 col. 3) By this time they all knew the militia law had not been renewed, so I wonder how this action was legally justified. By the way, I found in Henings on April 30, 1757 that the House of Burgesses, in renewing an earlier militia law, specifically authorized the governor to muster the militia in times of invasion or insurrection... p 106. This act was to be renewed in two years, and was done so a number of times after that until 1773. The fact that renewal of this law was required, tells me that the governor did not have a blanket authority to call out the militia. It also suggests that since the law was renewed after 1771, then technically speaking, Governor Dunmore had no legal authority to call out the
      militia of the frontier counties. Of course, with their lives and property on the line, the men out west didn't probably split hairs on the issue, but it appears to me that, strictly legally speaking, Dunmore had exceeded his authority. This brings me to another question. The militia law that was frequently renewed did authorize County Lieutenants and company commanders to muster and drill a few times a year, but I haven't actually seen any authorization for these officials to call out the militia in a crisis. I assume that authority existed with at least the County Lieutenant (because one duty of the militia was clearly to suppress possible slave insurrections). Does anyone know for sure that county level officials had the power to call out the militia? And here is another thing. I've always kind of assumed that the expiration of the Militia Law in 1773 meant that County-Lieutenants and other designated officials who formerly had the
      authorization to call out (and compel) the militia to muster/serve, no longer had that authority. But does that mean that they actually did not have the authority to call out the militia and to do so would have been similar to an act of rebellion, or does it really mean that they did not have the authority to COMPEL the militia to serve..... This is an important distinction because the latter interpretation allows for volunteers to muster and train ( aka Fairfax County in Sept. 1774) but the first interpretation would view even that sort of voluntary activity as illegal. I'm curious to know your views on the significance of the militia law's expiration. Thanks, Mike Cecere 7th VA [Non-text portions of this message have been removed]

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