[ THE KING ย. admit him afterwards (v). But if the Bishop has a concurrent authority, he might judge one way, and the church of SouthBp. of ELY. well another; and so the jurisdictions would clash, and the Col*81] lege would be ground between them. * On the whole, if the Bishop's jurisdiction be even doubtful, the prohibition will be granted, or at least, leave to declare in prohibition, as was allowed in Fitzgibbon, 161, else the parties will be totally precluded of all remedy, and cannot appeal to any superior jurisdiction. HILARY TERM, 30 GEO. 2. 1757. Leave to declare Afterwards, in the next Term, the Court delivered their opinion. Lord MANSFIELD, C. J.-It has been strongly insisted on, that the Court should at least give the College leave to declare in prohibition, that this matter might receive a more solemn determination: but I own I have strong objections to it, and will say a few things on that head, before I come to the merits of the case. Where the Court inclines to grant the motion for the proin prohibition hibition, there the defendant has a sort of right to insist that only granted, when the Court the plaintiff shall declare in prohibition; but where the Court inclines to pro- inclines against granting the motion, there the plaintiff has no hibit; not when such right to insist upon declaring (a). For, since by the stat. it inclines to the Winton the defendant is liable to costs, he cannot be compelled contrary. to defend the suit; wherefore, in such a case there may be judgment by default, and the Court may be obliged to prohibit, even against their own opinion. The defendant has his option, [ *82 ] * and shall not be obliged to stand to an expense, which the thing contended for may by no means answer. And there can be no injury to the plaintiff, by discharging this rule; because all the King's Courts have an equal right to grant prohibitions. Who shall take upon them the burthen of defending such a suit? The promoter, or fellow aggrieved, who has only a temporary right? Or shall the visitor himself run through all the forms of law, even to a writ of error, only because the plaintiff desires it? If neither of them will do it, the consequence must be, that every College shall do as they please, even where the authority of their visitor is well founded. Visitatorial power a very convenient establishment. I come now to the merits of the case, in which there are two general questions:-First, Whether the Bishop of Ely is by the statute general visitor of the College, with respect to the elections of fellows; for it is not disputed, that he is so in many other respects. Secondly, Whether, supposing him so on the original foundation, he has the same jurisdiction over Dr. Keton's, which are ingrafted fellowships. 1. Visitatorial power, however depreciated by the Counsel for the rule, is certainly very convenient for these learned bodies. It is a forum domesticum, calculated to determine sine strepitu all disputes that arise within themselves, and the exercise of it (v) But see Dr. Widdrington's Case, 1 Lev. 23; and R. v. Alsop, 2 Show. 170. (a) Bac. Abr. Prohibition (F); Gare v. Gapper, 3 East, 472; Graham v. Potts, post, 295. is in no instance more convenient, than in that of elections. If the learning, morals, or proprietary qualifications of students were determinable at common law, and subject to the same reviews as in legal actions, there would be the utmost confusion and uncertainty; while he who has the right, may possibly be kept out of the profits of what is in itself but a temporary subsistence. This power, therefore, being exercised properly and without parade, is of infinite use (b). But, whether convenient THE KING บ. Bp. of ELY. *83 ] or not, we must take it, as it is established by law. A visitor, No appeal from it is determined in Philips and Bury, is a summary judge, and a visitor. a judge without appeal (c). Whatever objection* therefore is [ made, must be to the right itself, and not to his manner of exercising it. And having premised this, I will mention some other established rules concerning visitatorial power. delegated gene The law considers these foundations in two lights; 1. As Visitatorial corporations; in which respect, they are the creatures of the power may be Crown's charter, and governed by the law of the land: 2. As rally, or speeleemosynary foundations; in which case they are the crea- cially. tures of the founder's bounty, and subject to the power of visitation by the founder and his heirs, as was held in the Case of the Charter-house. But the founder may delegate this visitatorial power, either generally; or specially, by prescribing a mode for the exercise of any part of this power. But if a mode of visitation is prescribed in any particular case, that will not take away the general powers incidental to the office of a visitor; of which incidental powers, that of hearing complaints and doing justice thereon, was determined to be one, in the Case of Philips and Bury. No precise form of words is necessary to the appointment of a visitor: "Sit visitator" has been held a sufficient appointment. You must look into the whole tenor of the statutes, to see whether the power be given or intended to be given. When the statutes in question were made, visitatorial power was not so well understood as it has been since, and is at this day. A founder may appoint a particular visitor for a Appointment of particular purpose. And he may split the power into as great a visitor may be a variety of statutes, for particular cases, as he pleases. But the general tenor when he does that, the Court will collect from the whole con- of the statutes. sidered together, whom he intended to appoint as general visitor. In the Attorney-General and Talbot, the Case of Clarehall, Cambridge, in Canc. 21st March, 1747, Lord Chancellor argued thus, in order to determine, who was general visitor: One statute directed that the Chancellor of the University should visit " annuatim, si quid sit corrigendum:" A second gave him power to interpret the statutes: By a third, the Countess of Clare reserved to herself (but expressly not to her heirs) a power to alter the statutes. And from this review, though there were no general words * appointing the Chan- [ 84 ] cellor general visitor; yet, as there were several references to him, and the heir was expressly excluded in one instance, the Court collected the intention of the foundress, and deter (b) 4 T. R. 243, 2 Ves. Jun. 619, acc. (c) Cowp. 322, S. P. collected from * THE KING V. Bp. of ELY. Visitor's power may be limited by the founder. mined that the Chancellor of the University was general visitor. The founder may also appoint a general visitor, and except some particular cases out of his general jurisdiction; or may chalk out another method of proceeding in others, without resorting to the visitor in the first instance (d). Let us now consider the present case upon the local statutes, that is, upon the statutes of Queen Elizabeth. For, the old statutes of Bishop Fisher are no otherwise material, than as they may throw light upon the new ones, which refer to the old in their preamble: as the common law, or an old act of Parliament may throw light upon a new act, which alters the former in some respects, though the new one is the rule to resort to. Where a body of statutes is given by a founder, and a visitor appointed, I much doubt, whether the visitor can give new laws or injunctions, except the founder gives him an express authority; though I know there are cases wherein visitors (not being expressly prohibited) have exercised such a power. I mention this, because I observe a jealousy in the foundress here, lest the right of making statutes should be taken from her heirs, i. e. the Crown. The Bishop is therefore appointed visitor, not legislator; the legislative power is reserved to the Crown, the heir of the foundress, c. 50. In Bentley's Case (e) it was held, that when the founder had given a complete body of statutes, his heir (which in that case was the Crown) could not alter them, or give new ones without the consent of the College. But here is an express reservation of such a power. The particular powers granted to the ViceChancellor and three heads, in c. 45, and some other particular cases, seem only exceptions to the general visitatorial power. The question is, whether all the rest of the visitatorial power (not so excepted) is not vested in the Bishop of Ely. This de[ *85 ] pends principally on three statutes. Cap. 2 refers to the Power to interpret statutes con stitutes a visitor. * Bishop, as the known visitor of the College; and by words that would alone be sufficient to make him a visitor, if there be no other general visitor appointed. And if the general power be in the Vice-Chancellor, who is named in one single instance, or in the Crown, because it has the legislative power, this statute would be void. Cap. 50, gives express authority to the Bishop, to determine, interpret and explain the statutes. This is as large an authority as a visitor can have. A power to interpret implies a power to visit, and was held, in Attorney-General and Talbot, to constitute a visitor. The words at the end of this statute, "visitationem commendamus," are most strong Visitors may vi- and explicit words to make him a general visitor. Cap. 51, gives the Bishop a power to visit ex officio, " cæteraque omnia facere et exercere, &c." And though he is to visit when called in, yet he is not restrained to that time only. As in Talbot's Case, the visitor was to visit de anno in annum, yet held a general visitor: In Philips v. Bury, de quinquennio in quinquen sit mero motu. (d) See Ex parte Kirby Ravensworth 912, S. C. and post, 550, 3 Burr. 1656, S. P. and 2 T. R. 310. THE KING V. Bp. of ELY. to their office to *86 ] nium, yet a general visitor. If therefore the Bishop be general visitor, he is so at all times. For if he is to visit, it is incidental to his office to hear complaints at any time. So held in Philips v. Bury, wherein Lord Holt cited from Roll. Abr. It is incidental 513, the case of the Corporation of Launceston, where it was hear complaints. held to be incidental to a corporation to elect; and though they are directed to elect on a certain day, the power of election always belongs to them; which is a case directly apposite. I am the more confirmed in my opinion, by the case of Green v. Rutherforth. This was an attempt of the visitor to compel the execution of a trust reposed in this College, to present [one of] their senior fellows to a particular living. In which it was argued, 1. That the Bishop of Ely was not the general visitor of this College. 2. If he was, that this was an ingraftment on the old foundation, in which the general visitor had no right to interfere. 3. That no visitor can interfere in relation to a trust at common law. The cause was made * up, but not till after [ Hardwicke, C., had, assisted by the Master of the Rolls, delivered his opinion for the Bishop, on the first and second points: in the last of which, Sir John Strange agreed with him, though he gave no opinion upon the first. Lord Hardwicke, upon Ifany specialexperusal of c. 2, 50, 51, was of opinion, that the Bishop was ge- ception from the neral visitor. His only doubt was upon that clause in c. 50, the jurisdiction wherein the master is directed not to obey the Bishop of Ely, devolves to the if he acted contrary to the statutes. But this he said was a King's Courts. special exception, and (whenever it happened) the jurisdiction would devolve to the King's Courts, as in the case of Manchester College (f), the Bishop of Chester (being the appointed visitor) happened also to be warden: It was held he could not visit himself, but his right was suspended, and during this suspension devolved to the Crown. There is no light thrown in by the old statutes that tends to impeach this opinion, but they rather confirm it. What words in them might have raised a doubt, are left out in the new ones. Cap. 50, is in both: The words "Visitationem Episcopo Eliensi commendamus," are in both. So is also Cap. 51. But the words at the end of this statute, "Præter hunc visitationis modum" to " ubi non fundatores," are left out in the new. This seems to have been done purposely to avoid doubt. Though even as they stood in the old statute, they would not bear the construction which has been endeavoured to be put on them; as if the Bishop were confined to the special form there prescribed, or only to his jurisdiction as ordinary. The truth is, the Countess was jealous that the Bishop of Ely might claim to be founder; she was anxious lest he should give new statutes, or set up a right to change the old ones, and therefore she directs he should have no greater power than in other colleges, where he was clearly not the founder. It is to be observed, that to visit as ordinary, and to visit an eleemosynary foundation, are very different things; and yet the Bishops of Ely in Cambridge, and THE KING V. Bp. of ELY. of Lincoln in Oxford, had more visitorships because they were diocesans (g). It has been objected, that this is a proceeding to the deprivation of Craven, which cannot be done without the concurrence of the master and five seniors. But the fact is otherwise. This is not a proceeding to deprivation. It is a [ *87 ] mere question of *right between Toddington and Craven to determine whether the latter is a legal member of the College or no; the decision of which has always been held incidental to the power of a visitor. Indeed, I believe it has never been seriously doubted in the College, whether the Bishop was the general visitor of the old foundation. Nothing has been suggested at the bar to shew it: And a case has been cited of Pegge v. Burton, where an appeal was made to the Bishop, and acquiesced in, concerning even an ingrafted fellowship. This brings me to the second question:-2. Whether Dr. Keton's ingrafted fellowships are subject to the review and sentence of the visitor of the old foundation? And this draws on a debate of the greatest consequence to all the Colleges in both Universities. One cannot see the tenth part of the mischiefs which would arise to the Colleges, if they should succeed in this point. There is no College which would not be involved in it. It would subject some of them totally to the King's Courts. In this very College of St. John's, the ingrafted fellows are in the proportion of seventeen out of thirty. I was desirous to know, whether the form of ingrafting fellowships before the reign of Queen Elizabeth, was not usually by indenture with a clause of distress, as this of Dr. Keton's is. I suspected it took its original from an analogy to tenure by divine service, which differed from frankalmoign, in that it was certain; and, if not performed, the donor or his heirs had, by common law, a right to distrain for it: whereas in frankalmoign, he had no remedy, but to complain to the ordinary; Litt. 136, 137. I have therefore inquired into most of the old foundations in both Universities, and find there are few without some ingraftments, and those generally made by indenture, as this is. And all ingrafted fellowships are upon the same footing as the old ones, except they are received upon particular terms, by a special form of foundation, and a special manner of acceptance. [ *88 ] And (except the new founder has ordained the contrary) the old visitor, eo nomine, visits all annexed foundations. In the case of University College, Oxon. in Canc. 26th July, 1740, William of Durham had ingrafted two fellowships under particular qualifications (King Alfred being the founder) without any particular directions about their visitor. On an appeal to the Crown, concerning the election of one of these fellows, the case was determined against the College; but there was no contest, nor so much as a doubt, concerning the right of visitation. The mode of donation is in all cases the law of it. If Dr. Keton had appointed another visitor, and the College had accepted his donation upon these terms, his visitor would take (g) Ante, 71, n. (7). |