22.5 
CORPORATION. 
tioned; efpecially in cafes where, in the firft inftance, he 
gives his vote with the members of the fociety. It is 
the ufual language of college ftatutes to diredt that many 
adts fha.II be done by guardianus & major pars fociorum, or 
magijler, or prcepofitas & major pars ; and it has been deter¬ 
mined by the court of king’s bench, ( Cowp . 377.) and by 
the vifitor of Clare-hall, Cambridge, andalfo by the vifi- 
tors of Dublin college, that this expreflion does not con¬ 
fer upon the warden, mailer, or provolt, any negative; 
but that his vote mull be counted with the relt, and he 
is concluded by a majority of votes againll him. 
Corporations being compofed of individuals, fubjedl 
to human frailties, are liable, as well as private perfons, 
to deviate from the end of their inllitution. And for that 
reafon the law has provided proper perfons to vifit, en¬ 
quire into, and cor re 61 all irregularities that arife in fuch 
corporations, either foie or aggregate, and whether ec¬ 
clefiaftical, civil, or eleemofynary. With regard to all 
ecclefiallical corporations, the ordinary is their vifitor, fo 
conflituted by the canon law, and from thence derived to 
us. The pope formerly, and now the king, as fupreme 
ordinary, is the vifitor of the archbilhop or metropolitan ; 
the metropolitan has the charge and coercion of all his 
fuffragan bilhops; and the bilhops in their leveral dio- 
cefes, are in ecclefiallical matters the vifitors of all deans 
and chapters, of all parfons and vicars, and of all other 
fpiritual corporations. With refpect to all lay corpora¬ 
tions, the founder, his heirs, or afligns, ai'e the vifitors, 
whether the foundation be civil or eleemofynary; for in 
a lay corporation, the ordinary neither can nor ought to 
Vifit. 10 Rep. 31. 
The founder of all corporations in the ftridtefl and ori¬ 
ginal fenfe is, the king alone, for he only can incorpo¬ 
rate a fociety; and in civil incorporations, fuch as mayor 
and commonalty, where there are no pofleflions or en¬ 
dowments given to the body, there is no other founder 
but the king : but in eleemofynary foundations, fuch as 
colleges and hofpitals, where there is an endowment of 
lands, the law diftinguilhes and makes two fpecies of 
foundation ; the one fundatio incipicns, or the incorpora¬ 
tion, in which fenfe the king is the general founder of 
all colleges and hofpitals 5 the other fundatio perjiciens, 
or the dotation of it, in which fenfe the firlt gift of the 
revenues is the foundation, and he who gives them is in 
law the founder: and it is in this lall fenfe that we ge¬ 
nerally call a man the founder of a college or hofpital. 
30 Rep. 33. But here the king has his prerogative; for, 
if the king and a private man join in endowing an elee¬ 
mofynary foundation, the king alone fhall be the founder 
of it. And, in general the king being the foie founder 
of all civil corporations, and the endow’er the perficient 
founder of all eleemofynary ones, the right of vilitation 
of the former, refults, according to the rule laid down, 
to the king; and of the latter to the patron or endower. 
The king being thus conflituted by law vifitor of all 
civil corporations, the law has alfo appointed the place 
wherein he fhall exercife this jurifdidlion; which is the 
court of king’s bench : where, and where only, all mif- 
behaviours of this kind of corporations are inquired into 
and redrelfed, and all their controverfies decided. How¬ 
ever, though the court of king’s bench, upon a proper 
complaint and application, can prevent and punifh in- 
juflice in civil corporations, as in every other part of 
their jurifdidlion; it is not the language of the profeflion, 
to call that part of their authority a vifitatorial power. 
1 Comm. 481. 7i. 
As to eleemofynary corporations, by the dotation, the 
founder and his heirs are of common right the legal vifi¬ 
tors ; but, if the founder has appointed and afligned any 
other perfon to be vifitor, then his affignee fo appointed 
is inverted with all the founder’s power, in exclufion of 
his heir. Eleemofynary corporations are chiefly hofpitals, 
or colleges in the univerrtties; thefe were all of them 
confidered, by the popifh Clergy, as of mere ecclefiaftical 
jurifdidlion: however, the law of the land judged other. 
Vol. V. No, 267. 
wife ; and, with regard to hofpitals, it has long been held, 
that if the hofpital be fpiritual, the bilhop fhall vifit ; 
but if lay, the patron. This right of lay patrons was in¬ 
deed abridged by 2 Hen. V. c. 1. which ordained, that 
the ordinary fhould vifit all hofpitals founded by fub- 
je£ls; though the king’s right was referved to vifit by 
his commiffioners fuch as were of royal foundation. But 
the fubject’s right was in part reftored by 14 Eiiz. c. 5. 
which diredls the bifhop to vifit fuch hofpitals only where 
no vifitor is appointed by the founder thereof: and all 
hofpitals founded by virtue of 39 Eliz. c. 5. are to be vi- 
fited by fuch perfons as fhall be nominated by their re- 
fpedtive founders. But Hill, if the founder appoints no¬ 
body, the bifhop of the diocefe inuft vifit. 2 Injl. 275. 
Colleges in the univerfities (whatever the common law 
may now,’or might formerly judge) were certainly con- 
fidered by the popifh clergy, under whofe diredtion they 
were, as ecclefiaflical, or at lead as clerical corporations ; 
and therefore the right of vifitation was claimed by the 
ordinary of the diocefe. This is evident, becaufe in 
many of our moft ancient colleges, where the founder 
had a mind to fubjedl them to a vifitor of his own no¬ 
mination, he obtained for that purpofe a papal bull, to 
exempt them from the jurifdidlion of the ordinary; feve- 
ral of which are ftill preferved in the archives of the re- 
tpedlive focieties. And in fome of our colleges, where no 
fpecial vifitor is appointed, the bifhop of that diocefe, in 
which Oxford was formerly comprifed, has immemorial- 
ly exercifed vifitatorial authority ; (that is, the bifhop of 
Lincoln, from whofe diocefe that of Oxford was taken;) 
which can be aferibed to nothing elfe, but his fuppofed. 
title as ordinary to vifit this, among other ecclefiaftical 
foundations. But, whatever might be formerly the opi¬ 
nion of the clergy, it is now held as eftablifhed common 
law, that colleges are lay corporations, though fometimes 
totally compofed of ecclefiaftical perfons ; and that the 
night of vilitation does not arife from any principles of 
the canon law, but of neceflity was created by the com¬ 
mon law. Ld.Raym. 8. And yet the power and jurifdic- 
tion of vifitors in colleges was left fo much in the dark 
at common law, that the whole dodtrine was very unfet¬ 
tled till the famous cafe of Philips v. Bury. Ld. Rayrn. 5. 
4 Mod. 106. In this the main queftion was, whether the 
fentence of the bifhop of Exeter, who (as vifitor) had 
deprived dodlor Bury, the rector of Exeter-college, could 
be examined and redrefled by the court of king’s bench. 
And the three puifne judges were of opinion, that it might 
be reviewed, for that the vifitor’s jurifdidlion could not 
exclude the common law; and accordingly judgment was 
given in that court. But lord chief juftice Holt was of 
a contrary opinion; and held, that by the common law, 
the office of vifitor is to judge according to the ftatutes 
of the college, and to expel and deprive upon juft occa- 
fions, and to hear all appeals of courfe; and that from 
him, and him only, the party grieved ought to have re- 
drefs: the founder having repoled in him fo entire a con¬ 
fidence, that he will adminifter juftice impartially, that 
his determinations are final, and examinable in no other 
court whatever. And, upon this, a writ of error being 
brought into the houfe of lords, they concurred in fir 
John Holt’s opinion, and reverfed the judgment of the 
court of king’s bench. To which leading cafe all fub- 
fequent determinations have been conformable. But, 
where the vifitor is under a temporary difability, there 
the court of king’s bench will interpofe, to prevent a de- 
fedt of juftice. Stra. 797. Alfo it is faid, 2 Lutw. 1566, 
that if a founder of an eleemofynary foundation appoints 
a vifitor, and limits his jurifdidlion by rules and ftatutes, 
if the vilitor in his fentence exceeds thofe rules, an adlion 
lies againft him; but it is otherwife, where he miftakeS 
in a thing within his power. 
No particular form of words is neceflary for the ap¬ 
pointment of a vifitor. Sit vifitator, or vifitatio/iem com- 
mtndamus , will create a general vilitor, and confer all the 
authority incidental to the office ; but this general power 
3 M may 
