John Marsh v. The Managers of the Elections for the District of York

by Cynthia A. Walsh


John Marsh, a Pamunki Indian, married a Catawba woman. He served six years in the American Revolution, and his son fought for Americans in the War of 1812. Marsh sought the right to vote, but was denied this right in South Carolina because he was Indian. His character, as noted by the court, was one of excellence, but he belonged to a race and class of people who have always been recognized as separate and distinct, never having been part of the body politic.

The following is the summary from 1 Bailey, pages 215-216, of the case of John Marsh v. The Managers of Elections for the District of York.


Note

There has been some confusion on names in several sources. It is believed that it was actually Robert Marsh, and not his son John, who had to appeal to the South Carolina Court of Appeals for the right to vote. Although the name John Marsh appears as the appellant on the court record of this case, the description of the appellant matches Robert Marsh and not his son John Marsh.

CASES AT LAW


ARGUED AND DETERMINED IN THE COURT OF APPEALS OF
SOUTH CAROLINA, AT COLUMBIA, MAY AND JUNE, 1829

JUDGES PRESENT.

HON. ABRAHAM NOTT, Presiding Judge,
HON. C.J. COLCOCK,                                                             HON. DAVID JOHNSON.


1 Bailey, *215

*THE STATE ex rel. JOHN MARSH v. THE MANAGERS OF ELECTIONS FOR THE DISTRICT OF YORK.

(Columbia. May, 1829.)

[Indians (Key No.) 29.]
    An Indian is not intitled [entitled] to the elective franchise in this State; nor can merit, services, or any other circumstance, alter the condition of his birth, under the existing provision, of the constitution.
    [Ed. Note. -- For other cases, see Indians, Cent. Dig 1 Sect. 24; Dec. Dig. (Key No.) 29.]

[Elections (Key No.) 61.]
    [The constitution confines the right of voting to free white men.]
    [Ed. Note. -- For other cases, see Elections, Cent. Dig. Sect. 57; Dec. Dig. (Key No.) 61.]

    Before Mr. Justice Richardson, at York, Spring Term, 1829.
    This was an application for a mandamus,to the managers of elections for the district of York, to receive the vote of the relator, John Marsh. The managers showed for cause against the application, that the relator was an Indian of the Pamunki tribe of Virginia. It appeared, that the relator had been a soldier of the revolution, and attached to the continental army; In which character he had taken the oath of allegiance, and was

*216

*now a pensioner of the United States. It also appeared that he had for many years resided in the district of York, and was a man of unexceptionable character. The managers, however, believed that he was not intitled to the elective franchise, not being "a free white man," as required by the existing provisions of the State constitution; and they had for this reason heretofore refused to receive his vote at elections. The presiding Judge granted the order for a mandamus; and a motion was now made to the Court of Appeals, on behalf of the managers, to set aside the said order.

    Mills, for the motion.
     COLOCK, J., delivered the opinion of the Court.
    It is with regret I find myself obliged to declare, that by the laws of this State, the applicant is not intitled to a vote. He seems to be a man of excellent character, and has been useful to the country, both in a military and a civil capacity. But he belongs to a race of people, who have always been considered as a separate and distinct class, never having been incorporated into the body politic. Whether the policy which led to this was wise, is a question not for us to decide. Our ancestors thought it so; and all the laws of our State provide for the regulation of their affairs in a peculiar manner. When guilty of offences, they are tried by a particular tribunal, and in no respect are they considered as citizens. But above all, our constitution expressly confines the right of voting to free white men; and there can be no doubt that the term was used as contradistinguishing the white man from the Indian, and negro, or mulatto. It is perhaps worthy of the consideration of the Legislature whether it would not be politic to make exceptions in favor of such individuals as the present applicant; but we have not the authority to do so.
    Motion granted.