Philips V. Bury. Judgment. ["I will put the case (7) as short as I can upon the record, and it is thus. Exeter College in Oxford was founded by William Stapleton, to consist of a rector and scholars. By the Lord Holt's statutes and constitution of the college, the Bishop of Exeter for the time being is appointed visitor, to visit by himself or commissary; and the time is set when he shall visit at the request of the college, as often as they think requisite, and without such request, once in five years ex officio. Then it is directed that in his visitation he may proceed to the deprivation of the rector, or to the expulsion of the scholars. Then there is a qualification of this power by the particular words of the statute: Si tamen ad deprivationem rectoris aut expulsionem scholaris alicujus per episcopum aut ejus commissarium agatur,' then his crimes shall be shown unto him, and if he cannot probably make out his innocence, then he shall be amoved without further appeal; dum tamen ad ejus expul sionem, there shall be the consent of the rector and three of the seven senior fellows. Then the statute goes on further, that if the rector be removed by the bishop's commissary, etiam consentientibus four of the senior fellows, he may appeal to the bishop. Then there is another statute, which shows for what faults and crimes the rector shall be deprived; wasting or alienating the revenues or goods of the college; adultery; and some particular things. Then it showeth the method that shall be taken against him when they do proceed to deprivation, i. e. within fifteen days after the fact committed he shall by the college be admonished to resign. Then they are to apply to the bishop, and if he be convicted, the bishop or his vicar may proceed to deprive him. There was one Colmer, a scholar, expelled the college by the rector and fellows for incontinency; against this expulsion he appealed to the bishop, as visitor, in March 1690. Upon the appeal the bishop granted a particular commission to Doctor Masters to examine this matter. He went to the college, and his proceedings are found in the verdict, and reversed the sentence of expulsion, and restored Colmer to his fellowship. After this the bishop appointed a visitation to be held in the chapel, when the doors were shut. The rector and scholars would not open the doors, but protested in the area against the visitation. The visitor called over the names of the rector and scholars, and swore one to prove the summons, and went away without doing any thing more. After this another visitation was appointed in the hall, to be held the 24th of July; at which time the bishop repaired thither, and divers protestations against the visitation were made; but he proceeded, called over the names, registered the act of the 16th of June, and King v. The Bishop of Exeter, and is printed by the reporters at the end of that case from the MS. notes of Lord Holt.-ED.] () [Vide 1 Lord Raym. 5.] Philips V. Bury. Lord Holt's senior fellows to the deprivation of the rector? For if there Philips V. Bury. Judgment. ableness; and it is to be supposed that the founder had some reason for giving the bishop such power over the rector; though if he had not, it is not material; his will is his reason Lord Holt's in ordering and disposing of his own; and it is not in our power to take away this authority from him, because we think it unreasonable. Then consider the rector hath a benefit that the scholars have not; for if the commissary visit the college, and deprive him with the consent of four senior fellows, he may have an appeal to the bishop; but the scholars can have no such appeal. And it may be the founder thought fit to trust the rector with the bishop alone, as knowing that he would take more care of the head of the college than he would of the inferior members of it. But after all, I say again, who knoweth what reason a man may have? Every man is master of his own charity, to appoint and qualify it as he pleaseth. Now if the Bishop of Exeter be by statute in express words made visitor of the college, and hath by express words a power given to him to proceed to the deprivation of the rector, and there were no words to lessen that power, I would fain know how we can make such a construction as to limit this power to be with the consent of four senior fellows. So that I think by the statutes in this case, and the constitutions of the college, the bishop being made visitor, and having authority to deprive him, without any qualification of that authority, he might proceed to deprive him without the consent of the four senior fellows; though I do agree, if their consent had been necessary, the suspension doth not make them no fellows during the suspension, for it is only an impediment to them from enjoying any benefit from their office, but it makes no vacancy of the office at all. For if a minister be suspended, during the suspension the place is full (m); and if the rector had been suspended, the rectory had been full, and he might with the fellows have maintained an assize for the lands of the college, and he is as much rector as before; and then if a suspended fellow remained a fellow, if it were necessary for them to consent, such a fellow is as much empowered to consent as ever he was; but I think it was not at all necessary as the case is. The next point is no more than this, Whether (supposing the bishop has an authority to deprive the rector, and he doth by sentence deprive him), the justice of this sentence be examinable in any of the courts of common law? That is, first, Whether the sufficiency of the sentence as to the cause be examinable in the common law courts? And, secondly, Whether the truth of that cause, suppose it be good and sufficient to ground the sentence if true, can be inquired into or be examined? And I think the sufficiency of the sentence is never to be called in question, nor any inquiry to be made here into the reasons or causes of the deprivation. If the sentence be given by him that (m) [1 Durn. & East, 526.] Philips v. Bury. Lord Holt's is visitor, created so by the founder, or by the law, you shall never inquire into the validity or ground of the sentence; and this will appear, if we consider the reason of a visitor, how he comes to be supported by authority in that office. And that we may the better apprehend the nature of a visitor, we are to consider that there are in law two sorts of corporations aggregate; such as are for public government, and such as are for private charity. Those that are for the public government of a town, city, mystery, or the like, being for public advantage, are to be governed according to the laws of the land; if they make any particular private laws and constitutions, the validity and justice of them is examinable in the king's courts; of these there are no particular private founders, and consequently no particular visitor: there are no patrons of these; therefore, if no provision be in the charter how the succession shall continue, the law supplieth the defect of that constitution, and saith it shall be by election; as mayor, aldermen, common council, and the like; and so it was in the case of the town of Launceston (®), But private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and, therefore, if there be no visitor appointed by the founder, the law appoints the founder and his heirs to be visitors, who are to proceed and act according to the particular laws and constitutions assigned them by the founder. So it appears by the cases in Yelv. 65, and 2 Cro. 60, Fairchild and Gaire, where it is now admitted on all hands that the founder is patron, and, as founder, is visitor, if no particular visitor be assigned. And so is 8 E. 3, Ass. Placit. 29, 31. So that patronage and visitation are necessary consequents one upon another; for this visitatorial power was not introduced by any canons or constitutions ecclesiastical (as was said by a learned gentleman, whom I have in my eye, in his argument of this case): it is an appointment of law; it ariseth from the property which the founder had in the lands assigned to support the charity; and as he is the author of the charity, the law gives him and his heirs a visitatorial power, that is, an authority to inspect the actions and regulate the behaviour of the members that partake of the charity; for it is fit the members that are endowed, and that have the charity bestowed upon them, should not be left to themselves (for divisions and contests will arise amongst them about the dividend of the charity), but pursue the intent and design of him that bestowed it upon them. Now indeed, where the poor, or those that receive the charity, are not incorporated, but there are certain trustees who dispose of the charity, according to the case in 10 Co. there is no visitor; because the interest of the revenue is not vested in the poor that have the benefit of the charity, but they are subject to the orders and direction of the trustees. But where they who are (n) [1 Roll. Abr. 513.] Philips V. Bury. Judgment. to enjoy the benefit of the charity are incorporated, there, to prevent all perverting of the charity, or to compose differences that may happen among them, there is by law a visitatorial Lord Holt's power; and it being a creature of the founder's own, it is reason that he and his heirs should have that power, unless by the founder it is vested in some other. Now there is no manner of difference between a college and an hospital, except only in degree; an hospital is for those that are poor, and mean, and low, and sickly: a college is for another sort of indigent persons; but it hath another intent, to study in, and breed up persons in the world, that have not otherwise to live; but still it is as much within the reason of hospitals. And if in an hospital the master and poor are incorporated, it is a college having a common seal to act by, although it hath not the name of a college (which always supposeth a corporation), because it is of an inferior degree; and in the one case and in the other there must be a visitor, either the founder and his heirs or one appointed by him; and both are eleemosynary. A visitor being then of necessity created by the law (as 8 E. 3, 69, 70), every hospital is visitable either by the patron if a lay hospital, or by the ordinary if spiritual. What is the visitor to do? He is to judge according to the statutes and rules of the college. He may expel, and (as in 8 Ass. 29, 31) he may deprive. The only question there was, Who was visitor? For it is agreed on all hands, that quatenùs visitor he may deprive: if he be visitor as ordinary (o), there lieth an appeal from his deprivation; but if as patron, then none; that deprivation, whether by right or wrong, was to stand good. But you will say, the visitor hath no court, and it is unreasonable to conclude a man by the sentence of one that hath no court. It is (I say) not material whether he hath a court or no, all the matter is, whether he hath a jurisdiction; if he hath a jurisdiction and cognizance of the matter and person, and he giveth sentence in the matter, his sentence must make a vacancy, be it never so erroneous; but there is no appeal, if the founder hath not thought fit to direct one. That an appeal lieth to the common law courts of England is without precedent. It is plain by all the authorities of our books, and by the way of pleading, that the cause of the visitor's sentence is not examinable; if a sentence of deprivation be pleaded, you need not show the cause; it is not traversable even in a visitation, when it is by the visitatorial power; so is Rastal, Entr. fol. 1, 11 H. 7, 27, and 7 Co. 42, Kenn's case. Now I would suppose that this rectory had been a sole corporation, and not a corporation aggregate of rector and scholars, and Dr. Bury had brought an assize, and then this deprivation. (0) [This dictum of Lord Holt was much relied upon in the case of The Queen v. Archbishop of York and Dr. Phillimore, by the counsel of the latter, as justifying the visitor of a cathedral, quà ordinary, in depriving a member of that ecclesiastical corporation in the See |
