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Marshall, John (1755-1835) to James Mercer Garnett

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Gilder Lehrman Collection #: GLC06682 Author/Creator: Marshall, John (1755-1835) Place Written: Richmond, Virginia Type: Autograph letter signed Date: 20 May 1829 Pagination: 4 p. ; 24.9 x 19.8 cm. Order a Copy

Written by Marshall as Chief Justice of the U.S. Supreme Court to Garnett, the well-known Virginia politician and agricultural enthusiast and pamphleteer. Recipient inferred from Marshall's reference to "your" pamphlet "Reply to the Enquiries of a Freeholder," which was written by Garnett. Marshall states his private belief that the right to vote must be tied to land ownership. Says not all rights that Americans speak of are natural rights. Remarks that some "rights exist in a state of nature, but are surrendered, as it seems to me, when he enters into a state of society, in exchange for social rights and advantages." Says natural rights are controlled by society and exercised at its discretion and that "On no other principle can the exclusion of females, minors, free people of colour, &c from the polls be sustained." In other words, voting is not a right a person is born with, but a right conferred by society, which can be regulated. Says most laws passed by the state deal with property, and rhetorically asks if it is proper to not consider it when regulating suffrage. Says "We ought not entirely to overlook the safety of our property" and that is best done by making it the foundation of suffrage. Says he knows "the most destitute of the human race" have intelligence, honor, and principles, but that there is no means to distinguish that by law. Says "[Land] is so easily acquired that no person of any property who values the right of suffrage will be without it." Says that is his personal belief, but that the public thinks differently. Says if land is not the basis of suffrage, that taxation might be, but is unsure on the amount to base it on. Says slaves, "though property, are also persons," and should be included in the population totals to calculate representation since they are "incapable of exercising the right of suffrage themselves[.] why may it not be exercised for them by that active part of the society which exercises the same right for others equally incapable of acting for themselves?" Stresses this is a private letter not fit for publication. Hopes Garnett will be elected to the state constitutional convention. Garnett was elected, and the convention extended the franchise to leaseholder and householders, a move Garnett and Marshall both opposed.

Richmond May 20th 1829
Dear Sir
On my return from North Carolina I received your letter of the 16.th
My private judgement is certainly in favor of founding the right of suffrage on the basis of an interest in land. I have no objection to extending the present rule to a [revisionary] interest, and to lease for such a time of year as may give the lessee actual property in the soil. The state of society in a part of our country suggests this extension. Tenants in the upper part of the state are [illegible] and the migratory spirit of our people creates such difficulty in ascertaining the expiration of leases for lives, as to excite some unwillingness on the part of land holders, to execute leases of that description.
I have never thrown my ideas on this subject in the shape of an argument; and they are very well expressed in your "reply to the enquiries of a free holder".
I have never, in reflecting on [struck: this subject,] [inserted: it], allowed all the insight which is generally ascribed by my country men, to the natural rights of man. These rights exist in a state of nature, but are surrendered, as it seems to me, when he enters into a state of society, in exchange for social rights and advantages. If any original natural rights were retained (I speak not of those with which society has no concern, the exercise of which cannot affect others, such as freedom of thought, breathing the atmosphere, using our senses &c) we should expect them to be those of life and liberty. Yet both are at the disposition of society. All natural rights therefore of this description may be [controuled] by society, and are exercised by its permission. The [maintenance] of the powers by the imposition of unnecessary restraints to would certainty be an abuse of it. Still the power exists, and its exercise must be regulated by the wisdom of society. On no other principle can the exclusion of females, minors, free people of colour &c from the polls be sustained.
If, as I think cannot be denied; a voice in the government of a country be the exercise of a social, not of a natural right, society must judge of the extent to which it ought to be greater, and of the individuals on whom it may be safely and beneficially [2] conferred. It is a question of expediency, not of right.
Considering it as a question of expediency, we ought, it would seem to me, in solving it, to take into view all the great objects for which government is instituted. One of primary magnitude, - security against it external force, devolves mainly on the government of the union. State legislation embraces taxation for state purposes, and every thing relative to persons and property.
Personal security is undoubtedly an object of the first importance; but it is obvious to all, and has been repeatedly observed that this is an object in which all have an equal interest. However, the legislature may be elected, personal liberty will be equally secure, because the legislator must be equally intent on its preservation. All powers must be equally [strikeout] [inserted: subject] to the laws; and no difference or opposition of interest can exist in this respect.
But the laws which affect one persons constitute a small portion of the code of every nation. The great map of legislation respects property. Is it wise, is it safe, in framing the legislature to exclude property altogether from our consideration? If power and property be separated entirely from each other, is there not reason to fear that they may be reunited by means which cannot be avowed?
To me it seems true wisdom so to constitute the legislature as to furnish the best attainable security that its opinions will lead to the preservation of the great subjects of legislation, - power and property. If it be true as I think it is, that any representation of the people which public opinion would tolerate, or any statesman - of the day could suggest, would sedulously and with equal vigilance guard our persons, we ought not entirely to overlook the safety of our property. This is I think but done by beginning at the foundation at the right of suffrage. In the representative we may expect to see the image - the improved image, but still the image, of his constituents; and if we would form a representative body both wise and faithful, we must give its full effect, as far as human provisions can give it, to the sense of the honest yeomanry of the country - the real people - by removing the [influence] of those whom it would be unsafe to trust.
I know very well that among the most destitute of the human race may be found intelligence, honour, and inflexible principle; but we have no means of distinguishing them by law; and, in framing [3] a constitution must act on general principles. It is generally true that the opposite qualities may be too often looked for among those who could be excluded from the right of suffrage by the rule which has been [illegible]one it.
If any property qualification be required, the agreement in favour of an interest in land are so obvious and have been so often mentioned that they need not be repeated. It is so easily acquired that no person of any property who values the rights of suffrage will be without it. If any discrimination be made this is recommended additionally by the fact that we are accustomed to it.
While I express my individual judgement I must say that public opinion has, I suspect, decided the question differently. If we are to trust what we see in the papers, the disposition to abandon the principle we have hitherto maintained, and to make the right of suffrage universal, or to depend on a small property qualification, has become very extensive. Beyond the blue ridge this opinion appears to be universal. Immediately east of that mountain, it has been adopted by many. It has derived great support from the sentiments ascribed to Mr. Jefferson.
Should the friends of the present system, or of some thing very like it be outvoted, the question will be whether any; and if any, what other [test] shall be substituted in its place. The payment of taxes presents itself as the most obvious; but there is great difficulty in fixing the amount.
I am also in favour of estimating our slave population in [strikeout] apportioning our representation.
Most of the observations already made apply to this question as strongly as to freehold suffrage. [textloss: It is] among the most productive funds for taxation, it bears a great portion of the burthens of government, and has peculiar as claims to consideration in the formation of that body which is to be entrusted with the power of imposing Taxes. The [4] fact that they are unequally distributed in different sections of the state gives additional strength to the claims of those who possess it to have or this amount some increased weight in the legislature. It is the best, perhaps the only certain security against oppressive taxation. I would add that slaves though property, are also persons. They constitute a part of the real effective population of the country. They exclude a white population to the same extent. Although incapable of exercising the right of suffrage themselves why may it not be exercised for them by that active part of the society which exercises the same rights for others equally incapable of acting for themselves. Females, minors &c are excluded from the polls, but are included in the enumeration of persons on whom representation is apportioned.
The obvious unfitness of this sketch for publication well secure it from the public view. It is designed for your private eye. I shall of course perform that part which my duty as a citizen may require, but am not willing as a mere volunteer to emerge from that privacy and retirement to which my period of life as doomed me. I do not give this hint from any apprehension of the publication of this letter but to suggest my unwillingness that the one you mention should be made of it. Indeed this is an unnecessary precaution, as neither its matter nor its manner fit it for your purpose.
I look with anxiety for the election is your district in the earnest hope that Virginia will have the aid of your services in the convention.
With great and respectful esteem
I am dear Sir your Obedt
J Marshall

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