The North-Carolina standard., 1849-01-31

own sell be true, thou cannot then be fase to any
man." aa. 3s3 at4 at e-tt ssast
N. B.. The vote was taken separately ON the reso-
lutions, and they all passed unanimously with the
exception of the fourth and fifth to which there were
two votes in the negative.
OPINION OF THE SUPREME COURT,
Communicated to the Senate of North Carolina, in
relation to the legality of the votes of Bargainors
Trustees, and Cestuis que Trust.
--s.sr RALEIGH, January 18th, I849.
Sir: The Resolution of the Senate, passed on the
18th instant, requesting the Judges of the Supreme
Court to furnish the Senate with their opinions
certain questions therein mentioned, touching the
qualifications of persons to vote for members of the
Senate, under the Constitution of this State, was
laid before the Judges the evening of yesterday.
Although not strictly act of official obligation,
which could not be declined, yet from the nature Of
the questions, and the purposes to which the an
swers are to be applied-being somewhat of judi
cial characteristic Judges have deemed it duty Of
courtesy and respect to the Senate to consider the
points submitted to them and to give their opinions
thereon. / am, accordingly, directed to communi-
cate il. 1888
Three questions are proposed, which are thus ex-
pressed
First. Is or is not the vote of Bargainor in
deed of trust legali . -..1,.5t I'd.
"Second. Is or is not the vote of Trustee un-
der deed of trust legal!
Third. Is is not the vote of Cestu que Trust
legal4" s-e
1t is to be promised that categorical answers to
these enqpies could be nsef1 to the Senate. for
of the preeision in the terms of the questions
themselves, which is usual and requisite in legal dis
cussions. For, neither the subject of the convey
ance the nature of the Trusts, the estates of
the bargainor and barganee are specified. But, re-
ferrng to the nature of the controversy before the
Senate, stated in the resolution, it. is supposed
that the case to which the Senate audes is of this
kind: That entitled to at least fifty acres of
land for life greater estate, conveys it by
deed of bargain and sale to trustee, to debts
to other persons, with power to the trustee to sell
the estae and out of the proceeds to pay the debts
Then, supposing the proper residences of the par
ties the points are, whether the bargainor the bar
gainee, the CREDITOR and if either, which of them,
hath right to vote for member of the Senate.
The Judges would have been gratifed to have
heard, before forming their opinion, argument
the part of the gentlemen concerned opposite
sides; and, if the matter of law, involved In the
questions of the Senate deemed by them doubt
full they would have been obliged to defer their
swer until the parties their counsel could submit
their views. But as the Judges, upon conference,
have found that their opinions entirely concur, and
that of them entertains serious doubt upon
the subject they have felt safe, and that it pro-
per deliver their opinion at once, in order to
move the difficulty felt by the Senate in determin-
ing the pending contest, far as their opinion can
contribute to that end. 7si .5- .a.s-
The questions depend entirely upon the proper
structon of the second clause of the third section OF
the first article of the amendments to the Constitu-
ton of the State. 1t is, that " all feemen, (except
free negroes &c. who have been Inhabitants of any
district Within the State twelve months lmmedt-
ately preceding the day of any election, and possess
ed of freehold within the same district, of fifty
of land for six months next before and at the
day of election, shall be entitled to vote for men,
ber of the Senate" This language is precise and
positive, that the right to vote belongs only to him
who is possessed of freehold. The first enquiry,
then, naturally is, what is freehold, and who is a
freeholder within the meaning of the Constitution
The term, s. Freehold is legal one, of very an
cient use, and of known Specification in the Com
law Il in land of q
freeman is sesed for the term of his own ife the
life of another, at least In its proper sense it is
restricted such estate at law. In reference to
private rights it is always used in pleadings and
statutes, applicable to legal rights and to legal
rights only. 1t has likewise been used in the same
sense, in reference to the qualifications of voters
Long before the settlement of the Colony of North
Carolina, the right of voting for member of parlia
ment was limited, by an ancient Statute of England
to s:Freeholders." conclusive proof, that free
holder, as meant in that Statute, was at Common
Law, one who had the legal estate in himself, is
furnished by the facts, that it required subsequent
Statute in that country to enable mortgagor of
freehold estate continuing in possession, to vote
and another to disable the mortgage from voting
when he is not in the actual possession of the mort
| gagged premises OF in the pernancy of the profits
So, by Act passed in the year 1850, by Colo
nial Legislature, substantially following previous
one of the year 1743, it was thought necessary o.
useful to define the term, s. freeholder, descrip
tive of entitled to vote for Representatives ano
therein 1t was provided, that person who bona dt
hath an Estate Real for his own life or the life
another, estate of greater dignity, of sufficient
number of acres of land, should be accounted
ssfreeholder and entitled, such to votes and ir
subsequent clause it further enacted, that the
voter must be possessed of freehold within the
meaning of that act-that Is, estate real for life
leastss In fifty acres of land 1t is, thus, easy
see whence the trainers of the Constitution, 1776
and in 1886, derived the motion of the particular
qualification of freehold, and also the terms of its
description. Certainly, the settled sense of the
word ssfreehold,'' as term of the law descriptive
of an estate in land and in like manner descrp-
tive of property qualification of voters both in the
mother country and in this Colony, is that in which