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(although the same was not now extant in writing,) that from thenceforth for ever, the Mayor and Aldermen of the said borough and town for the time being, or the major part of them, from time to time, in all future times, being met together and assembled in the Guildhall of the said borough and town, or in any other convenient place within the said borough and town, for the nomination of a Mayor of the said borough and town, might and should be at liberty, whenever and as often as it should seem meet and convenient to them, to choose and name four of the Burgesses or inhabitants of the said borough and town, who should be then all of them Aldermen of the said borough and town, or whereof any one or more should be then Alderman or Aldermen of the same borough and town, and the other or rest of them not Alderman or Aldermen of the said borough and town, in order that out of the said four so to be named and chosen, the Mayor, Aldermen, Bailiffs, principal Burgesses, and other Burgesses and inhabitants of the borough and town aforesaid, for the time being, (being also there on the same day met together and assembled for that purpose,) might, by the majority of voices of them so met together, elect and prefer one to be Mayor of the borough and town aforesaid; and that the said Mayor, Aldermen, Bailiffs, principal Burgesses, and other Burgesses and inhabitants of the said borough and town for the time being, should elect and prefer one of those four so to be named, to be Mayor of the said borough and town for the year then next ensuing. Which said bye-law the then Mayor, Aldermen, Bailiffs, principal or capital Burgesses, and other Burgesses [309] and inhabitants of the said borough and town, on the said 1st day of September, in the 14th year of the said King James I. accepted and assented thereunto, and had ever since conformed themselves thereto.—And then set forth an usage agreeable to the said bye-law.

To this bye-law the said Coroner and Attorney demurred.—And the said Richard Tucker joined in demurrer.

The several issues above joined were tried at the assizes holden at Dorchester, on the 12th of March 1740; when a verdict was found for Tucker upon every one of them.

The demurrer was argued in Easter term 1741, when the court were unanimously of opinion, that the bye-law set up by Tucker was not a good bye-law; and that he being an Alderman of the said borough and town at the time of his election to be Mayor, was by the charter incapable of being chosen Mayor, and therefore judgment of ouster was given against him.

To reverse this judgment, the present writ of error was brought; and on behalf of the plaintiff in error it was argued (N. Gundry, W. Murray), that an Alderman is as much a Burgess or inhabitant, as any other Burgess or inhabitant whatsoever; that his being chosen into the office of Alderman, does not make him cease to be a Burgess or inhabitant; and if he be a Burgess or inhabitant, he is qualified by the words of the charter to be elected Mayor. That if the words and letter of the charter allowed this construction, the sense and spirit of the charter plainly required it; for there was nothing more evident, than that the charter (being as it were a key to itself) considered Aldermen or capital Burgesses, as not ceasing to be Burgesses or inhabitants, but as continuing capable of any office which any inhabitant might enjoy. That Henry Mitchell and Robert Fry were appointed the first two Bailiffs under the charter, notwithstanding they were also amongst the four-and-twenty first named capital Burgesses in the charter; and the clause relating to the election of Bailiffs, was in the same words as that relating to the Mayor, viz. that the Bailiffs were to be chosen out of the Burgesses or inhabitants; which as strongly excluded a capital Burgess from the office of Bailiff, as the other clause relating to the election of a Mayor, excluded an Alderman or capital Burgess from the office of Mayor. That it was scarcely possible to conceive that the Crown, after having by their charter selected out and named thirty-eight of the principal Burgesses or inhabitants of the town, viz. one for Mayor, two for Bailiffs, eleven for Aldermen, and twenty-four for capital Burgesses, should thereby intend to make those principal inhabitants incapable for ever after of bearing the office of Mayor, or of Justice of the Peace for the unavoidable consequence would be, that in so small a town as Weymouth, after thirty-eight were made incapable, the office of the greatest trust and power, and of most consequence to the public in general, as well as to the town in particular, must devolve upon the meanest of the inhabitants: it being undeniable, that if by the charter an Alderman