[ *484 ] OF CORPORATIONS. visitatorial authority (23); which can be ascribed to nothing else but his supposed title as ordinary to visit this, among other ecclesiastical foundations. And it is not impossib that the number of colleges in Cambridge, which are visited by the Bishop of Ely, may in part be derived from the same 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 sometimes totally composed of ecclesias tical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law (f). And yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unset tled till the famous case of Phillips and Bury (g). In this the main question was, whether the sentence of the Bishop of Exeter, who, as visitor, had deprived Doctor Bury, the rector of Exeter College, could be examined and redressed by the court of King's Bench. And the three puisne judges were of opinion, that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. But the Lord Chief Justice Holt was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course: and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he *will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. upon this, a writ of error being brought into the house of lords, they concurred in Sir John Holt's opinion, and reversed the judgment of the court of King's Bench. To which leading case all subsequent determinations have been conformable. But, where the visitor is under a temporary disability, there (f) Lord Raym. 8. (g) Lord Raym. 5; 4 Mod. 106; And Show. 35; Skinn. 407; Salk. 403; (23) That is, the Bishop of Lincoln, from whose diocese that of Oxford was taken.-CH. 1 the court of King's Bench will interpose to prevent a defect of justice (h). Also it is said (i), that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise where he mistakes in a thing within his power (24). IV. We come now, in the last place, to consider how cor- IV. Corporations porations may be dissolved. Any particular member may be how dissolved. disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act (k). But the body politic may also itself be dissolved in several ways, which dissolution is the civil death of the corporation; and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation: for the law doth annex a condition to every such grant, that, if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth (7). The grant is, indeed, only (h) Stra. 797. (24) No particular form of words is necessary for the appointment of a visitor. Sit visitator, or visitationem commendamus, will create a general visitor, and confer all the authority incidental to the office; (1 Burr. 199); but this general power may be restrained and qualified, or the visitor may be directed by the statutes to do particular acts, in which instances he has no discretion as visitor: as where the statutes direct the visitor to appoint one of two persons, nominated by the fellows, the master of a college; the court of King's Bench will examine the nomination of the fellows, and if correct, will compel the visitor to appoint one of the two. (2 T. R. 290). New ingrafted fellowships, if no statutes are given by the founders of them, must follow the original foundation, and are subject to the same discipline and judicature. (1 Burr. 203). It is (k) 11 Rep. 98. the duty of the visitor, in every in- The king being thus constituted by law visitor of all civil corporations, the law has also appointed the place wherein he shall exercise this jurisdiction: which is the court of King's Bench; where, and where only (21), all misbehaviours of this kind of corporations are inquired into and redressed, and all their controversies 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 visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected 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 (c). And this is so strictly true, that, though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet in 1753, the authority of this provision coming in dispute, on an appeal pre[*482] ferred to these supposed *visitors, they directed the legality of their own appointment to be argued; and, as this college was merely a civil and not an eleemosynary foundation, they at length determined, upon several days' solemn debate, that they had no jurisdiction as visitors; and remitted the appel (c) This notion is perhaps too refined. The court of King's Bench, (it may be said), from its general superintendent authority where other jurisdictions are deficient, has power to regulate all corporations where no spe cial visitor is appointed. But not in the light of visitor: for, as its judgments are liable to be reversed by writs of error, it may be thought to want one of the essential marks of visitatorial power (22). on. (21) This dictum must not be relied That there may be cases of misconduct by corporations which will bring them within the jurisdiction of the court of Chancery, and in which the court of King's Bench could not interfere, see The Mayor of Colchester v. Lowton, 1 Ves. & Bea. 245; The King v. Watson, 2 T. R. 200. (22) And it wants, I conceive, another mark of visitatorial power; which is, the discretion of a visitor voluntarily to regulate and superintend. The court of King's Bench, upon a proper complaint and application, can prevent and punish injustice in civil corporations, as in every other part of their jurisdiction; but it is not the language of the profession to call that part of their authority a visitatorial power.— Сн. lant, if aggrieved, to his regular remedy in his majesty's court of King's Bench. As to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that such property is rightly employed, as might otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder's power, in exclusion of his heir. Eleemosynary corporations are chiefly hospitals, or colleges in the universities. These were all of them considered, by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held (d), that, if the hospital be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged by statute 2 Hen. V. c. 1, which ordained that the ordinary should visit all hospitals founded by subjects; though the king's right was reserved to visit by his commissioners such as were of royal foundation. But the subject's right was in part restored by statute 14 Eliz. c. 5, which directs the bishop to visit such hospitals only where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute 39 Eliz. c. 5, are to be visited by such persons as shall be nominated by the respective founders. But still, if the founder appoints nobody, the bishop of the diocese must visit (e). Colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. [ *483 ] 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 bull to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. And in some of our colleges, where no special visitor is appointed, the bishop of that diocese, in which Oxford was formerly comprised, has immemorially exercised (d) Year Book, 8 Edw. III. 28; 8 Ass. 29. (e) 2 Inst. 725. [ *484 ] visitatorial authority (23); which can be ascribed to nothing else but his supposed title as ordinary to visit this, among other ecclesiastical foundations. And it is not impossible that the number of colleges in Cambridge, which are visited by the Bishop of Ely, may in part be derived from the same 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 sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law (f). And yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till the famous case of Phillips and Bury (g). In this the main question was, whether the sentence of the Bishop of Exeter, who, as visitor, had deprived Doctor Bury, the rector of Exeter College, could be examined and redressed by the court of King's Bench. And the three puisne judges were of opinion, that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. But the Lord Chief Justice Holt was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course: and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he *will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. And upon this, a writ of error being brought into the house of lords, they concurred in Sir John Holt's opinion, and reversed the judgment of the court of King's Bench. To which leading case all subsequent determinations have been conformable. But, where the visitor is under a temporary disability, there (f) Lord Raym. 8. (g) Lord Raym. 5; 4 Mod. 106; Show. 35; Skinn. 407; Salk. 403; (23) That is, the Bishop of Lincoln, from whose diocese that of Oxford was taken.-CH. |