« EdellinenJatka »
which fenfe the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or the dotation of it, in which fenfe the firft gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this laft fense that we generally call a man the founder of a college or hofpital. But here the king has his prerogative: for, if the king and a private man join in endowing an eleemofynary foundation, the king alone fhall be the founder of it. And, in general, the king being the fole founder of all civil corporations, and the endower the perficient founder of all eleemofynary ones, the right of visitation of the former refults, according to the rule laid down, to the king; and.of the latter, to the patron or endower.
THE king being thus conftituted by law the vifitor of all civil corporations, the law has alfo appointed the place, wherein he fhall exercife this jurifdiction: which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are enquired into and redreffed, and all their controverfics decided. And this is what I understand to be the meaning of our lawyers, when they say that these civil corporations are liable to no vifitation; that is, that the law having by immemorial ufage appointed them to be visited and infpected by the king their founder, in his majesty's court of king's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority. And this is fo ftrictly true, that though the king by his letters patent had fubjected the college of phyficians to the visitation of four very refpectable perfons, the lord chancellor, the two chief juftices, and the chief baron; though the college had accepted this charter with all poflible marks of acquiefcence, and had acted under it for near a century; yet, in 1753, the authority of this provifion coming in difpute, on an Nnn appeal
b 10 Rep. 33.
c This notion is perhaps too refined. The court of king's bench, from it's general fuperintendent authority where other ju.ifdietions are deficient, has power to regulate all
corporations where no fpecial visitor is apposted, Pit, as it's judgments are liable to be revered by writs of error, it wants ONC or the eflential marks of visitatorial power.
appeal preferred to these fuppofed visitors, they directed the legality of their own appointments to be argued: and, as this college was merely a civil and not an eleemofynary foundation, they at length determined, upon feveral days folemn debate, that they had no jurisdiction as vifitors; and remitted the appellant (if aggrieved) to his regular remedy in his majefty's court of king's bench.
As to eleemofynary corporations, by the dotation the founder and his heirs are of common right the legal vifitors, to see that that property is rightly employed, which might otherwise have defcended to the visitor himself: but, if the founder has appointed and affigned any other perfon to be vifitor, then his affignee fo appointed is invefted with all the founder's power, in exclufion of his heir. Eleemofynary corporations are chiefly hospitals, or colleges in the univerfity. These were all of them confidered by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwife; and with regard to hofpitals, it has long been held', that if the hospital be spiritual, the biflop fhall vifit; but if lay, the patron. This right of lay patrons was indeed abridged by ftatute 2 Hen. V. c. 1. which ordained, that the ordinary fhould vifit all hofpitals founded by fubjes; though the king's right was referved, to vifit by his commiflioners fuch as were of royal foundation. But the fubject's right was in part reftored by ftatute 14 Eliz. c. 5. which directs. the bifhop to vifit fuch hofpitals only, where no visitor is appointed by the founders thereof: and all the hofpitals founded by virtue of the ftatute 39 Eliz. c. 5. are to be visited by fuch perfons as fhall be nominated by the refpective founders. But ftill, if the founder appoints nobody, the bishop of the diocese must visit.
COLLEGES in the univerfitics (whatever the common law may now, or might formerly, judge) were certainly confidered by the popifh clergy, under whofe direction they were, as ecclefiaftical, or at lealt as clerical, corporations; and therefore the right of vifitation was claimed by the ordinary of the diocese.
This is evident, because in many of our most antient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bulle to exempt them from the jurisdiction of the ordinary; feveral of which are still preserved in the archives of their refpective focieties. Andin fome of our colleges, where no fpecial visitor is appointed, the bishop of that diocefe, in which Oxford was formerly comprized, has immemorially exercised visitatorial authority; which can be ascribed to nothing elfe, but his fuppofed title as ordinary to visit this, among other ecclefiaftical foundations. And it is not impoffible, that the number of colleges in Cambridge, which are visited by the bishop of Ely, may in part be derived from the fame original.
BUT, whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay corporations, though fometimes totally compofed of ecclefiaftical perfons; and that the right of visitation does not arite from any principles of the canon law, but of neceffity was created by the common law. And yet the power and jurifdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unfettled till the famous cafe of Philips and Bury. In this the main question was, whether the fentence of the bishop of Exeter, who (as visitor) had deprived doctor Bury the rector of Exeter college, could be examined and redreffed by the court of king's bench. And the three puifne judges were of opinion, that it might be reviewed, for that the visitor's jurifdiction could not exclude the common law; and accordingly judgment was given in that court. But the lord chief juftice Holt, was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the ftatutes of the college, and to expel and deprive upon juft occafions, and to hear all appeals of courfe: and that from him, and him only, the party grieved ought to have redrefs; the founder having repofed
f Lord Raym. 8.
g Lord Raym. 5. 4 Mod. 196. Shower, 35. Skinn. 407. Salk. 403. Carthew. 180.
pofed in him fo entire a confidence, that he will administer juftice impartially, that his determinations are final, and examinable in no other court whatfoever. And, upon this, a writ of error being brought in the house of lords, they concurred in fir John Holt's opinion, and reverfed the judgment of the court of king's bench. To which leading cafe all fubfequent determinations have been conformable. But, where the visitor is under a temporary difability, there the court of king's bench will interpofe, to prevent a defect of juftice". Alfo it is faid', that if a founder of an eleemofynary foundation appoints a vifitor, and limits his jurifdiction by rules and statutes, if the vifitor in his fentence excecds the rules, an action lies against him; but it is otherwife, where he millakes in a thing within his power.
IV. WE come now, in the laft place, to confider how corporations may be diffolved. Any particular member may be diffranchifed, or lofe his place in the corporation, by acting contrary to the laws of the fociety, or the laws of the land; or he may refign it by his own voluntary act. But the body politic may alfo itself be diffolved in feveral ways; which diffolution is the civil death of the corporation: and in this cafe their lands and tenements fhall revert to the perfon, or his heirs, who granted them to the corporation; for the law doth annex a condition to every fuch grant, that if the corporation be diffolved, the grantor fhall have the lands again, because the caufe of the grant faileth'. The grant is indeed only during the life of the corporation; which may endure for ever: but, when that life is determined by the diffolution of the body politic, the grantor takes it back by reversion, as in the cafe of every other grant for life. The debts of a corporation, cither to or from it, are totally extinguished by it's diffolution; fo that the members thereof cannot recover, or be charged with them, in their natural capacities" agreeable to that maxim of the civil law", "fi quid univerfitati debetur, fingulis non debetur ; nec, quod debet univerfitas, finguli debent.”
1. Stra. 757.
i a Lutw. 1566.
k 11 Rep. 58.
1 Co. Litt. 13.
m 1 Lev. 137.
A CORPORATION may be diffolved. 1. By act of parliament, which is boundless in it's operations. 2. By the natural death of all it's members, in cafe of an aggregate corporation. 3. By furrender of it's franchises into the hands of the king, which is a kind of fuicide. 4. By forfeiture of it's charter, through negligence or abuse of it's franchises; in which cafe the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular course is to bring an inforination in nature of a writ of quo warranta, to enquire by what warrant the members now exercise their corporate power, having forfeited it by fuch and fuch proceedings. The exertion of this act of law, for the purposes of the state, in the reigns of king Charles and king James the fecond, particularly by feifing the charter of the city of London, gave great and just offence; though perhap, in ftrictness of law, the proceedings in most of them re fufficiently regular but the judgment against that of London was reversed by act of parliament after the revolution; and by the fame ftatute it is enacted, that the franchises of the city of London fhall never more be forfeited for any cause whatsoever. And, because by the common law corporations were diffolved, in cafe the mayor or head officer was not duly elected on the day appointed in the charter or established by prescription, it is v provided', that for the future no corporation fhall be delved upon that account; and ample directions are given for appointing a new officer, in cafe there be no election, or a void one, made upon the charter or prefcriptive day.
o Stat. 2 W. & M. c. 8.
p Stat. 11 Geo. I. c. 4.
THE END OF THE FIRST BOOK.