OF MORTMAIN AND CHARITABLE USE S. PART III. OF SEVERAL INCIDENTS TO COLLEGES AND CHARITABLE INSTITUTIONS. CHAP. I. OF VISITATION. THERE is no constitution established in society, without a power being vested somewhere, either declared or implied, for redressing its grievances or abuses: in nations this power generally belongs to the party invested either with the legislative or the executive branch of government in inferior communities, it often depends. on the will of their founders, not repugnant to the laws of the land; or when this is not 'declared, the right devolves upon the executive power. : There are two sorts of corporations: 1. Those that are for the public government; and, 2. Those that are for private charities; the first of these are governed by the common Rex v. Bentley. common, law, but the second is the creature of the founder, and governed by his private laws-not that the particular persons are exempted from the common law, but the body in general is; and as these are private laws, they are in the nature of trusts, and the breach of them is not a crime cognizable by the common law. The king's power of pardoning arises from his having 13 Geo. 1. K.B. the executive power in him; and though the king may be founder, yet the breach of his private statutes is not a crime against the crown: crimes pardoned are such as are against the public laws and statutes of the realm, whereas these are in the nature of domestic rules, for the better ordering of a private family and although the violation of the statutes may be done by several in conjunction, yet each are punishable in his individual capacity (as in the case of every Tort), and prohibition will not on that ground lie against the visitor. Bentley v. Bp. of Ely. 1 Barnard. 192. 1729. Powers given to an office and to successors, without name, vest in the successors, without the words "for the time being." When the crown has appointed a general visitatorial authority, and the party afterwards acts as a special visitor, under the statute of 43 Eliz. a prohibition will lie from K. B.; for being before appointed general visitor, there remained no further power in the crown with regard to, enlarging the visitatorial authority. Wherever a visitor proceeds contrary to his citation, or inflicts penalties different to those which the statutes prescribe, the court of K. B. always grants a prohibition. Whether a visitor can alter former statutes, without express authority so to do, has not been authorised by any determination, however the practice may have prevailed; and I think prohibition will lie in such case. Royal Royal foundations, as deans and chapters, are not 1 Mod. 27. visitable by the bishop. Archbishop Laud, in the reign of Cha. I. agitated in the royal presence, at, Hampton court, the question of his right of visiting the universities; and after solemn debate of his claim, in which he took a considerable part, it was finally settled that he should visit them metropolitically, namely, the body of the university, and every scholar, for his obedience to the doctrine and discipline of the church of England-and not to meddle with the statutes of the colleges or university, or particular visitors of any college. Fortescue, 319. 10 Geo. 1. The archbishop, in exercise of this power, visited Rushworth's Merton college, in 1638, and adjourned his visitation to Lambeth, in October following. The right of the archbishop has been acknowledged, with the reservation of the king's superior right. crown. power Hist. Col. 1 Burn Ecc. Law, 426. Skin. 645. 500. The power of a visitor is arbitrary, and yet conclusive 2 Vezey, 329 in the first instance; all fundatory rights arise from the property of the donor: a founder has the nomination, of his visitor, and unless he dispose of this power, it remains to his heirs; and if he die without heirs, it goes to the Whosoever is made patron has the same as the founder, and where the patronage descends to the heir, he has the power of a founder eo nomine as patron; for the patronage is said to draw all things with it. And therefore it is, that where once a visitor, legally authorized by the founder, hath given judgment, no court can interfere with it. See the references in the margin, where the powers of deprivation are well defined. A founder, or his heirs (if he does it not), may make a visitor; may give him partial or general powers; if partial ones, and he exceeds them, that excess becomes a nullity, and lets in the law; and the court, whether they can 2 P.Wms. 325. And see further, Vezey, 472. Green v. Rutherforth.. 1 Burn Eccl. Law, 417. 4 Mod. 233. Viner Mandamus, H. II. Str. 1139. St. John's Coll. v. Toddington. Law, 429. can give relief or not, will see that these jurisdictions keep within their bounds, and will grant a prohibition, where there is such excess of power, as well as where there is no power at all. For though the king's courts cannot interfere with regard to the private statutes of the society as established by the founder; yet as to the public laws of the land, they may; for over these the founder could give to the visitor no exclusive juris. diction. The power of a visitor, though a summary one, is 1 Barn. Eccl. certainly very convenient: the exercise of it is in no case more so, than in that of elections. When the proprieties and disqualifications of candidates are to be determined, it is obvious what confusion would be made, if these were to be determined by the common law, and the party who had the right, were kept out of the profits in the mean time. Year Book. 1 Bl. Com.482. 2 Inst. 725. Eden v. Foster. It was formerly held, that if the hospital be spiritual, the bishop should visit; if lay, the patron. This right of lay patrons was indeed abridged by 2 Hen. V. c. 1. which directs, that the ordinary should visit all hospitals founded by subjects; but the king's writ was reserved, to visit by his commissioners such as were of royal 2 P. Wms. 326. foundation. But the subject's right was in part restored 2 P.Wms. 325. by 14 Eliz. c. 5. which directs the bishops to visit those hospitals only, where no visitor is appointed by their founders and all the hospitals founded under 39 Eliz. c. 5. are to be visited by such persons as shall be nominated by the respective founders; and if they do not appoint, then by the bishop of the diocese. It was laid down as a 2 P.Wms. 326. rule, that where the king is founder, he and his successors are visitors; but where a private person is founder, there such private person and his heirs are, by implication of law, visitors; who may substitute their visitatorial power to any other person, or his heirs: but where the founder 2 Wil. 325. appoints no special visitor, the visitatorial power results 2 Vezey, 552. to his heir. And the commissioners instituted by 43 Eliz. c. 4. had power to visit, in case the visitors appointed Duke, 69. by the donor misbehaved (but here the power of the ordinary was still reserved); for it would be unreasonable 2 P. Wms. 326. and of mischievous consequence, that where governors are appointed, these, by construction of law, and without any more, should be visitors, have an absolute power, 69. and remain exempt from being visited themselves: and See Duke, 68. therefore in those cases where the governors or visitors are said not to be accountable, it must be intended where they have the power of government only, and not where they have the legal estate, and are entrusted with the receipt of the rents and profits; for to be unaccountable in such a case, would be such a privilege as might of itself be a temptation to a breach of trust. 552. 2 P. Wms. 327. And although in many charities, some of the gover- 1 Vezey, 418. nors are appointed by the rules and orders to be visitors, 2 Vezey, 329, yet the word governor does not of itself imply visitor, 10 Co. 31. or give any power of visitation; but they are not, having the legal estate vested in them, therefore excluded from being visitors such a forced construction might prove of very great prejudice to the charity; and besides, would be making either a charter of incorporation, or a founder's liberality, of double intent, which ought not to be. And in general where governors happen to unite the capacity of visitor in the same person, it is for the management Str. 797. of the house or affairs of the charity; and then they 2 P. Wms. 327. remain accountable to the king's courts for the estates and revenues which may come to their hands: and a commission under 43 Eliz. c. 4. may be issued to call 2P. W. 325. them to account. 3 Atk. 164. Eden v. Foster. Since the 43 Eliz. where there is a charity for the par- 2 Vezey, 328. ticular |