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

itmust be received when used in the Constitution,
when prescribing such a qualification for voters.
it may be thought by some pefsonss that, in favor
of the elective franchises the Constitution should
ceive equitable interpretation, enlargng the Term
freehold, SOFAS to embrace alse, what is called
equitable freehold But that instFunient is to be
fairly construed andFeceived according TO the plain
and popular import ofits language generally, ae
cordhg to their legal sense when it uses technical
legal terms. 1t is not to be crippled by rigorous
adherence to the letter. on one hand nor stretched
cut of bounds on the other, by latitudinous con-
strucon of words of definite and well known signi-
fcation. Theyery fact of requiring property qua-
fcation rePes all attempts to ftter it away upon
plea of favor to the citizen The Constitution forbids
any such favor; by the plain implication that such
qualification is deemed indispensaby requisite to the
security of the citizens the stability of the govern
ment and its provisions in respect oughtno
to be enlarged than restricted, by construction Now
Sfreehold and freehoder are terms of art of the
definite signifcaon in the law hitherto mentioned,
and therefore they ought TO be understood 1t is
true, that writer's on that peculiar branch of our
Jurisprudence, which is called Equity, in contradis
5tincfion to the common or statute laws, and also
Chancellors. sometimes use the expression "equita-
BILE freeholder' But in thus using it, they speak,
not in literal, bHt ignratiTe They do not
mean, that there really is freehold in equity; but
only that one, Who'll the view of Court of Equity,
is entitled In present. to the profits of land for e of
which another is seized, is to be regarded in that
Court, to many purposes, ifhe seised of the
land, instead of being Untitled to the use and profits
merely. But that refers solely to the
of property IN equity, in respect to the enjoyment
and transmission of the use by descent
the like; and all to legal rights, political
privileges To such rights and privileges the clause
in the Constitution reates and its terms cannot there
Chancellor might fguratively them in reference
to certain equitable interests, which IN some respects
have similitude to freehods in land but are not
ally freeholds.
The foregoing considerations have so much weight
In establishing the proposition, that bargalnor In
such deed of trust that supposed, or mortgag-
or, is not entitled for member of the Senate
that the Judges would entertain that opinion those
grounds, there nothing else bearing the point
But there various other reasons, arising out of
the purposes of the provision in the Constitution,
and from the nature of such trusts and the rights of
mortgagors which strongly tend to the same result.
Undoubtedly the object, in requiring the freehold
qualification, to constitute one branch of the Le-
gisature peculiarly the guardian of property by hay
ing it chosen by the owners of property To answer
that end, the ownership of the property ought to be
bona de and substantial, and not colourable and
lnous, nominal merely. Then, 1t is to be observ-
ed that debtors frequently mortgage their estates,
convey them in trust, security for debts to a
greater amount than the value of the land. In those
cases they have such interests in the equity of re-
dempton resulting trust, that while they continue
in the possession and enjoyment of the land, they
may be called tsthe equitable freeholders In. tie
Court of Chancery, though their estaes or rather,
Interests are, really of no value. 1t would be a
gross abuse of the Constitution for such persons to
vote; as they have neither legal beneficial pro-
perty. That might indeed, be otherwise IT the Con-
stitution required freehold of particular value In
that case, possibly the value of the land above the
incumbrance might be deemed or declared to be the
measure of the equitable freehold, it is called.
But there be such discrimination in this State.
No act of the Legislature add to the qualifca-
tions for voting or take any thing away. No law
can now declare what is freehold, so as to make it
that daccFihpd aud tho Com
sttution. AS therefore, debtors, who convey their
estates in mortgage or in trustto secure more than
their value cannot in any just sense, by any intel
igent and upright tribunal, be deemed freeholders,
the purposes of the Constitution, and, there is
no power 20 create distinction between such mort
cages and deeds of trust, and those in which the
debts less than the value of the estate it appears
to follow necessarily, that mortgagor, or bargain
in deed of trust of that kind, is competent to
vote. For all cannot be admitted at the polls,
can since they all have rights of the nature,
though of different values in the market, and the
Constitution refers exclusively to the quantity of land
and the nature of the estate it, without regard to
value in any case.
Moreover, if persons claiming equitable interests
under express reservations declarations of trust
were entitled to vote, in like manner, would those
entitled by way of resulting implied trusts. Thus,
upon contract for the purchase of freehold, the
vendor before conveyance becomes trustee for the
vendee, and the latter the equitable owner of the
land, provided he has paid the purchase money or
quite clear, that it not contemplated In the Con-
stitutlon to make such nice and doubtful eqples as
often arise out of such dealings, the subject of con-
roversy at the polls, to be decided by the judges of
the election On the contrary, 1t was proper, that
the title to vote should be defined clearly and render
ed simple, that the rights and duties of the citizen
could be easily understood and readily determined.
By viewing the Constitution in the legal and obvi
Gus sense of its language the right to vote is thus
defined, and vested in the owner of the land for life
-" the freeholder" in possession. 4s7 -t--+-
The conclusion of the Judges is, and they are all
of opinion, that the barganor such deed of trust,
as that supposed, is entitled to vote for men,
the land in the surplus of its proceeds, after pay
ment of the debts, reserved or resulting to him.
1t follows that creditor, secured by such a deed,
cannot a~cest que trust, vote for Senator; for
he has neither legal nor equitable right to the
land, but only right to have his debt raised out of
it. Indeed, if a conveyance be made to one upon an
express and pure trust for another for life, the
sons already addressed upon the first point, satisfy
the Judges, that the cesi que trust is not entitled to
vote because, in their opinion, merely equitable
interests not within the purview of the Constitu-
ton at all, but proper freeholds only. q ?.
Upon the remaining question as framed, namely
Whether the bargainee trustee in such deed be
entitled to vote, the opinion of the Judges is likewise
in the negative. Such person is freeholder; and
if that by itself would suffice, he would be entitled
to vote. But by the words of the Constitution, one
must not only have freehold, but be possessed OF
it. That is materia and indeed, essential part oi
the provision. In legal languages possessed" is moi
the approproprate to describe the quantity Of
an estate, as being freehold. Technically, he, who
has freehold, is said to be g seised, and we know
thereby that he is fully invested of the estate. Pos-
sessed," then when applied to a freehold means
something than that the party is seised for fe
for such seisn is implied in the term 6 feehold, BY