Page:The English Reports v1 1900.pdf/980

was incapable of being chosen [310] Mayor, a capital Burgess was also incapable of being elected either Mayor or Alderman; and also, that neither an Alderman or capital Burgess was capable of being elected a Bailiff. That the charter appointed but eleven Aldermen, as a number thought sufficient for the government of this town; and directed that every Mayor, after he had executed that office, should be an Alderman for life if, therefore, the charter was to be so construed, as necessarily to enforce the annual election of a Mayor to be out of the inhabitants and not the Aldermen, there might have been within fifty years after the charter, and might very probably now have been, fifty Aldermen within this little town: the charter also gave no power to elect an Alderman, until the number came to be under eight; but if new Aldermen must of necessity be introduced annually into the corporation, by choosing an inhabitant, not before an Alderman, into the office of Mayor, it could not be presumed that this power of electing an Alderman should ever take place. That the election of Mr. Tucker was conformable to the constant and uninterrupted usage ever since the charter, a period of more than 125 years; a usage fully proved upon the trial of the cause, when all the eight issues were found for Mr. Tucker, that he was duly nominated, elected, and sworn into his office of Mayor; and a usage confessed also by the demurrer, which admitted the bye-law, though not extant in writing. Lastly, that it would be of very dangerous consequence to corporations in general, as well as to this in particular, if their charters were to be explained by nice and critical constructions upon words, contrary to the sense in which such words had been understood for centuries, and to the interpretation of them by constant usage from the time of granting the charters.

In support of the judgment it was contended (J. Strange, R. Lloyd), that it appeared clearly by the charter in question, the Burgesses or inhabitants were in all elections distinguished from every other branch of the body, and were as much a separate part of it as the Mayor, the Aldermen, the Bailiffs, or the principal Burgesses. That by this charter, the four to be nominated out of whom the Mayor was to be chosen, were to be so nominated, not out of the Aldermen, or Bailiffs, or principal Burgesses, but out of the Burgesses or inhabitants. That Tucker in his pleadings insisted at first, that by the charter, the four out of whom the Mayor was to be chosen, could be nominated out of any part of the body, so as they were Burgesses or inhabitants; but by this rejoinder, he rested his defence upon a bye-law supposed to be made by the Mayor, Aldermen, Bailiffs, and principal or capital Burgesses, whereby the Aldermen or Bailiffs were capacitated to be put in nomination for Mayor: but surely this bye-law, if any such existed, was void in law; for though the Mayor, Aldermen, Bailiffs, etc. might by mutual consent, and to avoid popular elections and the confusion arising from them, abridge any particular election to a smaller number than the charter gave the power to; yet they could not transfer such franchise from that part of the body in whom it was [311] vested by the Crown, to another part who by the charter had nothing to do with it. That Tucker, by relying on this bye-law, had departed from his first defence, which he was not by law entitled to do; and therefore, if there was no other reason, the judgment of the Court of King's Bench ought to be affirmed.

After hearing counsel on this writ of error, it was moved to reverse the judgment; which occasioning a debate, the following question was agreed to be put to the Judges, viz. "Whether an Alderman of the borough of Weymouth is a Burgess of the said borough; and is capable of being put in nomination, in order to be Mayor of the said borough, by virtue of the charter of the 14th year of King James I." And the Judges present being directed to deliver their opinions, with their reasons, seriatim, upon this question; they were all heard accordingly, and declared their opinion to be, "That an Alderman was a Burgess, but not to be considered as capable of being put in nomination to be Mayor."—The Judges were then directed to deliver their opinions upon this question, viz. "Whether the rejoinder is a departure from the plea in bar; and what is the consequence thereof in point of law, upon this record?" And they having conferred together, the Lord Chief Justice of the Common Pleas acquainted the House, "That they were unanimously of opinion, that this is no departure in pleading, and cannot be at all material in the present case."—Then after further debate, the question was put, Whether the judgment should be reversed? And it was resolved in the negative. Whereupon it was ordered and adjudged,