Queen's Bench. THE QUEEN บ. TRINITY COLLEGE. statutes, chapters 11 and 27. The discretion vested in them is T. T. 1845. only as to the times of holding visitations. To hold that they are general Visitors, and had in right of that general authority any jurisdiction to entertain this appeal, would enable them to displace any of the sixteen candidates elected, and admit Heron; and if they have not this power of removal and substitution, the Court will not grant a peremptory mandamus to hear an appeal which could be attended with no effect. The application is one to the discretion of the Court: The King v. Paddington Vestry (a); and if the granting the mandamus will lead to no result, the Court will refuse it: The King v. Justices of Pembrokeshire (b). Napier, on same side. The objections to the return are divided into two classes; first, formal ones; and second, as to the jurisdiction of the Visitors. As to the first class, there is no inconsistency in this return, for it only sets forth that the Visitors have no jurisdiction in the matter brought before them by appeal; and that according to the discretion vested in them as Visitors as to holding visitations, they refuse to entertain the appeal. The principle of inconsistency in a return is this; that if two matters be returned, which neutralise each other, the Court will then interfere, and say there is no ground for refusing to put the jurisdiction in motion; but if on the return there appears to be no jurisdiction, the Court will never grant a peremptory mandamus: The King v. Mayor of Bristol (c); The King v. Corporation of Dublin (d). Then, as to the jurisdiction of the Visitors: the election of Scholars is to be had with regard to matters connected with the learning and attainments of the candidates, and is to be in secret. No one can then tell what influenced the minds of the electors; though the writ assign two reasons, yet it does not state all the reasons: The Queen v. Governors of the Darlington School (e); Rex v. Mayor of London (f). It merely says an insufficient reason for Heron's rejection has been assigned, that he was a Roman Catholic; but could the Visitors on this ground be called on to reinstate Heron? The Electors are bound by the sanctity of an oath, and are the Visitors to be called upon to exercise an appellate jurisdiction, because the reasons have not been given under the sanction of an oath? It is analogous to the case of a jury; the Court will not (a) 9 B. & Cress. 460. (c) 1 Dow. & Ry, 389. (e) 9 Jurist, 24. (b) 2 B. & Ad. 391. (f) 3 B. & Ad. 255. T. T. 1845. receive the statement or affidavit of a juror that the verdict was Queen's Bench. decided by a toss: Burgess v. Langley (a). It is then said no other V. TRINITY COLLEGE. THE QUEEN reason is given; but how could that be traversed? How could the Visitors say there was any other reason? From the nature of the thing, no question can be raised as to the want of reasons; and it must be left in the hands of those who ought to know all the reasons. The discretion must be somewhere: The King v. Archbishop of Canterbury (b). Holmes, in reply. The Visitors have, by this return, denied their own jurisdiction ; it is usually one of the litigant parties who does so; but here it is the Court itself. Every founder of an eleemosynary corporation has an uncontrolled right to prescribe laws to the body he creates, so far as that he prescribes nothing inconsistent with the law or religion of the land. He has the right to visit them, and he may appoint Visitors unless there be negative words in the grant; and they have the same rights as the founders. If the power of Visitors be given in general terms, it is universal. The statute of William the Fourth refers merely to ordinary official visitations, but does not say a word as to extraordinary visitations. The Visitors have an inherent authority to hear appeals that come within their jurisdiction; that is decided by the case cited of St. John's College v. Toddington. A Visitor's authority shall not be restrained except by negative words: The King v. Bishop of Worcester (c). Danpier, J., says: “ A general visitatorial power requires particular words to abridge it." Whether, then, on the statutes of this College the visitatorial power is restrained, depends on the construction of particular Latin words. The Scholar's oath any Roman Catholic may take; and to exclude Heron, because he is a Roman Catholic, is extra viam. It is argued that the words "definiant et concludant" are conclusive as to the election; but because this Court, for example, decides a case, is there not still an appeal? The words, too, "collegii regimen" mean something more than the trifling regulations of the college; primarily "regimen" means the rudder of a ship, without which she cannot be managed; and in Tacitus the words regimen imperii are used. They mean a general control and management of a thing. In that case cited from the Jurist, the power of the Visitors was limited; here the Visitors had the power of referring to the records of the College; and has it been shown that the visitatorial power is limited, บ. TRINITY COLLEGE. as they contend? We have found two cases applicable as far as the T. T. 1845. Queen's Bench. power of the Visitors is concerned, in reference to scholarships, not certainly as regards election thereto. One is the case of Mr. Anster; THE QUEEN when in Trinity College he did not go in for the scholarship with the class he was first in, but with one he joined afterwards; and in 1818, on an election for the Members for the University, Anster tendered his vote for Mr. Plunket, one of the candidates; the vote was objected to, but ultimately received by the assessor, and Mr. Croker, the other candidate, insisted on this vote being brought before the Visitors on appeal, and it was decided Anster had no right to drop his class. The appeal was from the Board to Lord Downes, as Vice-Chancellor, who heard the appeal as to Anster's right to hold the scholarship; and it was decided against him. That was a case where the Provost and Senior Fellows "possunt componere litem ;" they had decided; but the appeal being entertained, shows that the power of the Visitors is not limited. The other case is recorded in Lachrymæ Academica, pp. 192, 205, 220, by Dr. Duigenan, the case of the Rev. Edward Berwick. The Provost and Senior Fellows had sentenced him to be deprived of his scholarship for contumacy; from which sentence he appealed to the Visitors, who investigated the matter publicly in the College Hall, and examined the Provost and Senior Fellows upon their oaths relative to the sentence, and the grounds of it. The Visitors reversed the sentence, and ordered Mr. Berwick to be restored to the full emoluments of his scholarship. Cur. ad. vult. June 10. PENNEFATHER, C. J., delivered the judgment of the Court. In this case a mandamus has issued at the suit of D. C. Heron against the Visitors of Trinity College, and the prayer of the mandamus is that the Visitors may be ordered to proceed to hear and to determine the appeal of Heron, and the mandatory part of the writ commands the Visitors to hear and determine the appeal. The writ sets out the circumstances under which the prosecutor applied for the protection and interference of the Court in his favour; it is directed to the Primate and to the Archbishop of Dublin as Visitors. It states, by way of recital, that Queen Elizabeth, by royal charter, dated 3rd of March, in the thirty-fourth year of her reign, founded and appointed that there should be a College for the education of youth and students in arts and sciences near Dublin. It recites a patent of confirmation of King Charles the First, dated 25th May, in the fifteenth year of his reign, whereby he appointed the Chancellor, or, in his absence, the Vice-Chancellor, v. TRINITY COLLEGE. T. T. 1845. who is now the Lord Primate, and the Archbishop of Dublin, Queen's Bench. Visitors. It states, that of the same date King Charles the First did THE QUEEN make certain statutes for the better government of the College, whereby he appointed certain days and times for the examination of candidates for scholarships in the College, and otherwise regulated the examination and election thereof; and whereby he enacted that the Scholars of the College should be seventy in number; and that, so often as the place of any Scholar should become vacant, some fit and proper person should be elected to such vacancy, by the Provost and Senior Fellows; and that in such election, regard should be had to poverty, talent, learning, and virtue, and the more any of the candidates excelled in these, the more, as was just, he should be preferred. The writ then states, that on the 1st of June 1843, sixteen places being vacant in the body of Scholars, and several persons, exceeding sixteen in number, offering themselves as candidates, the Provost and Senior Fellows, for the time being, proceeded to an examination of the candidates, in order to ascertain their qualifications; that Mr. Heron, a Sizar of the College, attended the examination as a candidate, and was examined, and that a list was subsequently made out, by order of the Provost and Senior Fellows, ranging in order of merit the candidates who had attended and been examined, on which list Heron's name appeared the fifth in order of merit. The writ then states, that on the 12th of June 1843, the day appointed by the statutes, the Provost and Senior Fellows proceeded to make the election, and to fill up the sixteen vacant places of Scholars; that they elected sixteen of the candidates, in the order of merit in which they stood on the list, with the exception of Heron, and that they rejected Heron, and declined to elect him to one of the sixteen vacant places of Scholars, on the ground by them assigned that he had not received the Sacrament of the Lord's Supper according to the usage of the United Church of England and Ireland, in the chapel of the College, on the Sunday immediately preceding the day appointed for the election of Scholars, and on the further ground by them also assigned, that he was a member of the denomination of Christians commonly called Roman Catholics, and for no other reason whatever. The writ then states that Heron had been advised, that inasmuch as eleven of the sixteen persons so elected to be Scholars, had been, on the examination held pursuant to the statutes, declared by the Provost and Senior Fellows inferior in merit to him, he was entitled, according to the provisions of the statutes, to one of the sixteen places of Scholars vacant before the election. The writ then states, that the Primate and Archbishop of Dublin บ. TRINITY COLLEGE. were and are the Visitors of the College; and that on the 1st of T. T. 1845. Queen's Bench. November 1843, Heron made an application to them in the nature of an appeal against the decision of the Provost and Senior Fellows, THE QUEEN in which he prayed that they would hear his appeal, would institute an inquiry into his case, and would adopt such means as might seem good to them as Visitors, for securing to him the place and advantages of scholarship in the College, to which he claimed to be rightfully entitled, or would otherwise determine the matter of his appeal; and that, notwithstanding his application, the Visitors did absolutely refuse to hear and determine his appeal. The writ of mandamus then concludes with the command which I first noticed. The Visitors have made a return to the following effect:-They state the patent of Queen Elizabeth, as mentioned in the writ; and add, that the Corporation of the College was made to consist of the Provost, Fellows, and Scholars. They state the patent of King Charles the First, mentioned in the writ, and add the following passage : 66 "Similiter etiam si contigerit Sociorum Juniorum et Scholarium· "aliquem ullo modo deesse et amoveri, morte, decessu, resignatione, 'deprivatione, vel alio quovis modo quod tunc et deinceps bene "liceat et licebit Præposito et Sociis Senioribus vel majori parti "eorundem pro tempore existentium una cum Præposito aliam "idoneam personam aut alias idoneas personas in locum vel locos "prædicti Socii Junioris aut Scholaris 'Sociorum Juniorum aut "Scholarium die Lunæ post Dominicam Sanctæ Trinitatis ad tunc "proxime sequentem eligere nominare et constituere juxta Statuta "nostra prædicta in hoc casu provisa et sic de tempore in tempus "toties quoties mors, decessus, resignatio, vel deprivatio contigeret "quodque quilibet eorum in hujusmodi locum vel locos, Præpositi, "Sociorum Seniorum, Sociorum Juniorum, vel Scholarium respec"tive sic (ut præfertur) electus habeat et gaudeat ac habere et "gaudere valeat et possit adeo plenam et liberam potestatem auctori"tatemque in omnibus, et per omnia, et ad omnia, et singula agenda "perimplenda et exigenda prout ipse Præpositus, vel aliquis alius "Sociorum Seniorum, Sociorum Juniorum, vel Scholarium dicti "Collegii pro tempore existentium quovis modo habere seu gaudere "debeant aut possint juxta tenorem prædictorum statutorum nostrorum in hoc casu designatorum (a).” It is quite plain that the mode of election thus pointed out in this passage of the charter, conferring this power, did not give the Provost and Senior Fellows any thing like a capricious power of (a) College Statutes, &c., Mac Donnell's edition, p. 20. 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