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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 autho
rity 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 appellant, if aggrieved, to his regular remedy in his majesty's court of King's Bench.
(c) This notion is perhaps too re- cial visitor is appointed. But not in fined. The court of King's Bench, (it the light of visitor : for, as its judgmay be said), from its general super- ments are liable to be reversed by writs intendent authority where other juris- of error, it may be thought to want dictions are deficient, has power to one of the essential marks of visitaregulate all corporations where no spe- torial power (22).
(21) This dictum must not be relied is, the discretion of a visitor volunta
That there may be cases of mis- rily to regulate and superintend. The conduct by corporations which will court of King's Bench, upon a proper bring them within the jurisdiction of complaint and application, can prevent the court of Chancery, and in which and punish injustice in civil corporathe court of King's Bench could not tions, as in every other part of their interfere, see The Mayor of Colchester jurisdiction; but it is not the language v. Lowton, 1 Ves. & Bea. 245; The of the profession to call that part of King v. Watson, 2 T. R. 200.
their authority a visitatorial power.(22) And it wants, I conceive, an- Ch. other mark of visitatorial power; which
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.
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
[ *484 ]
() Lord Raym. 8.
Show. 35; Skinn. 407; Salk. 403; (g) Lord Raym. 5; 4 Mod. 106; Carthew, 180.
(23) That is, the Bishop of Lincoln, from whose diocese that of Oxford was taken.--Ch.
the court of King's Bench will interpose to prevent a defect
IV. We come now, in the last place, to consider how cor- iv. Corporations
(24) No particular form of words is the duty of the visitor, in every innecessary for the appointment of a stance, to effectuate the intention of visitor. Sit visitator, or visitationem the founder, as far as he can collect it commendamus, will create a general from the statutes and the nature of the visitor, and confer all the authority institution; and in the exercise of this incidental to the office; (1 Burr. 199); jurisdiction he is free from all control. but this general power may be re- Lord Mansfield has declared, that “the strained and qualified, or the visitor visitatorial power, if properly exermay be directed by the statutes to do cised, without expense or delay, is useparticular acts, in which instances he ful and convenient to colleges; and it has no discretion as visitor: as where is now settled and established, that the the statutes direct the visitor to appoint jurisdiction of a visitor is summary, one of two persons, nominated by the and without appeal from it.” (1 Burr. fellows, the master of a college; the 200). It has been determined that, court of King's Bench will examine the where the founder of a college or eleenomination of the fellows, and if cor- mosynary corporation has appointed no rect, will compel the visitor to appoint special visitor, if his heirs become exone of the two. (2 T. R. 290). New tinct, or if they cannot be found, the ingrafted fellowships, if no statutes right of visitation devolves to the king, are given by the founders of them, to be exercised by the chancellor in the must follow the original foundation, same manner, as where the king himand are subject to the same discipline self is the founder. (4 T. R. 233; 2 Ves. and judicature. (1 Burr. 203). It is jun. 609). -CH.
1. By act of parliament:
death of all its
4. By forfeiture of its charter.
during the life of the corporation; which may endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. The debts of a corporation, either to or from it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities (m): agreeable to that maxim of the civil law (n), “ si quid unversitati debetur, singulis non debetur; nec, quod debet uniretsitas, singuli debent.”
* A corporation may be dissolved-1. By act of parliament, 2. By the natural which is boundless in its operation; 2. By the natural death
of all its members, in case of an aggregate corporation; 3. By surrender of its franchises into the hands of the king, which is
a kind of suicide; 4. By forfeiture of its charter, through neg. [ *485 ] ligence or abuse of its franchises; in which case the law judges
that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is roid. And the regular course is, to bring an information in nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. The exertion of this act of law, for the purposes of the state, in the reigns of King Charles and King James the Second, particularly by seizing the charter of the city of London, gave great and just offence (25); though perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by act of parliament (n) after the Rerolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatsoever. And because, by the common law, corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter, or established by prescription, it is now provided (p), that for the future no corporation shall be dissolved upon that account;
(m) 1 Lev. 237.
(0) Stat. 2 W. & M. c. 8.
(25) See Vol. 3, p. 485.