T. T. 1845. election; but in the election due regard was to be had to the statutes Queen's Bench. of the College. THE QUEEN V. TRINITY COLLEGE. The Visitors then state that King Charles the First gave certain statutes for the better government of the College, by the first head of which it is ordained as follows: "Corpus Collegii constare volumus ex Præposito tanquam capite "et ex Sociis et Scholaribus tanquam nobilioribus hujus corporis "membris (a)." The Visitors then state, that by the fourth head of these statutes, the authority of the Provost and seven Senior fellows is ordained in these words:— 66 "Quia in omni societate bene constituendâ paritas membrorum "maxime caveri debet utpote quæ anarchiam, et rerum omnium "confusionem inducat idcirco, Præpositum hujus Societatis caput "constituimus eumque auctoritate summâ in moderandis personis et "negotiis Collegii et in omnibus aliis quæ ad Collegii regimen "quovis modo spectant, vel spectare possunt munimus. Quo melius "autem munere suo fungatur ordinamus et volumus, ut e toto "Sociorum numero septem maxime seniores Socii ei sint tanquam assessores et ut eorum consilio et auxilio omnia majora Collegii negotia tractet sive ad mores sive ad doctrinam sive œconomiam spectantia et hi septem Socii Seniores vocentur. Horum autem "auctoritas qualis esse debeat partim hic et partim aliis variis "Statutis Collegii exponitur. Volumus igitur ut Præpositus et "horum Seniorum pars major (nempe quatuor) Collegii regimen "electiones omnes Sociorum Officiariorum, Discipulorum, et Minis"trorum Collegii graduumque collationes definiant et concludant. "In quibus omnibus definiendis Præpositum, aut eo absente, Vice"præpositum, unum semper esse volumus (b).” 66 It is quite certain that great power is intentionally and purposely conferred on the Provost and Senior Fellows, who form what is commonly called the Board of the College. The founder intended them to have great power and authority in the matter of elections, as also the power of interfering and regulating all other matters belonging to the College. The conferring of such great power on the Provost and Senior Fellows was considered salutary, without any particular distinction being taken as to this or that power in this or that business. The Visitors then return that by the statutes of Charles, provision is made for the qualification of Scholars in these words: "In Discipulorum electione quoties locus aliquis quocunque modo (a) College Statutes, &c., Mac Donnell's edition, p. 31. (b) Ib. p. 35. บ. TRINITY "vacaverit volumus et statuimus ut a Præposito, et septem seniori- T. T. 1845. Queen's Bench. "bus aut saltem majore parte eorundem alius aptus et habilis in "locum vacuum assumatur. In quâ electione habeatur ratio inopiæ THE QUEEN "ingenii, doctrinæ, virtutis, et quo magis quisque ex eligendorum numero his excedit eo magis ut æquum est præferatur. Omnes "qui Discipulatum in Collegio petunt ab electoribus ab horâ octavâ "antemeridianâ ad decimam et ab horâ secundâ pomeridianâ ad ❝quartam per duos dies diligenter quid in grammaticâ et literis "humanioribus possint examinentur" (a). Then there is a preference to be given to those educated in Dublin Schools, or born in counties where the College has property, for the reason, as stated in the statutes, that the sons of those who contribute to the support of the College, may be educated in a manner that shall be of advantage to Church and State. Heirs present or future are not to be elected. The Visitors then return the statute concerning the form of election to be observed as follows: "Quoniam ad regimen Collegii permultum conducit legitimam "in electionibus formam observari, volumus ut quoties Socii juniores "vel Discipuli eligendi sint peractâ examinatione per Statuta requi"sitâ Præpositus et Socii Seniores ad monitum Præpositi convenient "in Sacello et perlectis statutis De eorum qualitate et electione una "cum hoc capite De forma et tempore electionum, nomina candidatorum publice a primario Lectore recitabuntur. Quo peracto quisque "elector hoc juramentum dabit. "Ego, G. C. Deum testor in conscientiâ meâ me statuta nuper “lecta fideliter et integre observaturum et illum vel illos in Socium "vel Socios aut Scholarem discipulum sive Scholares discipulos "nominaturum et electurum quem vel quos Statuta nuper lecta "significare et apertius describere mea conscientia judicabit omni "illegitimâ affectione, odio, amore, et similibus sepositis" (b). The electors are therefore bound to elect the person whom the statutes point out. This form of election makes it a very solemn proceeding on behalf of those to whom the statutes intrust the power. They are under a solemn resposibility to be actuated and guided only by the statutes of the College. The election is, therefore, an exceedingly solemn proceeding, and it is not stated that any thing has been done through fear, favour or affection, or improper motives in the election from which the appeal has been brought. The return then states the facts of the number of vacancies in (a) College Statutes, &c., Mac Donnell's edition, p. 36. (b) Ibid, 96. COLLEGE. E. T. 1845. scholarships having been sixteen-of the election having been held, Queen's Bench. and of the vacancies having been duly filled. THE QUEEN v. TRINITY COLLEGE. The Visitors then go on to state their own position. It is observable that there is no restriction imposed on their office and duties. They appear to be general Visitors, their duties extending to every thing which may be requisite for the superintendence and advancement of the College. The language of the passages of the statutes set out in the return shows the extent of the power which was to be conferred on the persons who should thereafter come to fill the offiee of Visitor. Persons high in rank, and who must be considered altogether incapable of violating the important duties of the office cast upon them-persons who might safely be intrusted with the care of all that regarded the preservation of the College. The Visitors are further empowered by the statutes "ut omnes "lites, actiones, et controversias, quas Praæpositus et major pars "Seniorum Sociorum pro tempore existentium non possint componere dirimant et definiant" (a). There is no distinction here as to the subject matter of the complaint which the Visitors are empowered to decide. There is nothing presumed or assumed so as to make one conclude that there was any thing that the Visitors had not equal power of inquiry over. The Visitors are further empowered "et quod in omnia delicta ab "ipso Præposito et Sociis Senioribus Collegii prædicti non emendata "animadvertant" (b). There is no class of cases not subject to their power. No individual, however high or exalted in the College, but is supposed to be capable of falling into error, and as often as such an event shall happen, power is given to the Visitors of coming to a conclusion on the subject matter of that error. The Visitors next return a passage of the statutes, providing that all domestic disputes should be decided within the College. But this passage contains the following remarkable clause:-"appellationem tamen "ex justâ causâ gravaminis ad Visitatores Collegii non impedimus. "Sed ne frequenti appellatione Collegio dedecus aut Visitatoribus "nimia creatur molestia licebit iis inepte et de levi appellantem "rejicere" (c). It appears, therefore, that the power of the Visitors is totally unrestrained. This power is assumed to extend to every thing of which just complaint might be made; this power clearly extends to those things which relate to the purity of election, and to the manner in which elections are conducted. Such a case as the present is a (a) College Statutes, &c., Mac Donnell's Edition, p. 27. (b) Ibid. บ. TRINITY COLLEGE. case of the kind that the founder of this College contemplated, as T. T. 1845. Queen's Bench. proper to be the subject of appeal to the Visitors. The phrase "inepte et de levi appellantem" shows the strong distinction between THE QUEEN absurd and unfounded complaints, and complaints that may be founded in justice. Then the Visitors return the power (a) of interpretation given to them in certain cases, and though the present is not a proceeding under that clause, the clause appears necessary to advert to here, to show another instance of the founder's willingness to have causes of complaint, proper to be entertained, entertained and investigated by the Visitors. There is, in fact, nothing that I can conceive that is not open to the Visitors to entertain, and this conclusion appears on the face of the return the Visitors have made. I have taken pains to show that the Visitors are competent to investigate, inasmuch as the defence made by them is, that they have no jurisdiction. The charter of William the Fourth (b) is set out in the return, and, as appears to me, without any occasion, for the construction put upon that charter by the Counsel for the prosecutor is perfectly correct. It refers to solemn visitations, and not to an appeal like the present case. Formerly the Visitors were compelled to hold solemn visitations at stated periods; first triennially, and then annually. By the charter of William the Fourth they are relieved from this compulsion, and they may now choose the times of holding solemn visitations. But that charter of William the Fourth does not apply to a case like the present. The Visitors conclude their return by saying: "We are advised "and submit that the said Provost and Senior Fellows were fully empowered by the said statutes finally to perfect and complete the "election of candidates for the said sixteen places for Scholars, "without any appeal to us, as Visitors of said College, from said "election, when duly completed; and that we had not in or during "the said year 1843, or at any time since, and did not derive under “said statutes, or from any other sufficient authority, any jurisdiction, "power, or right whatsoever, as such Visitors as aforesaid, to hear "the matter of the said appeal of the said D. C. Heron, against the "election of candidates for scholarships in 1843, or to institute "inquiry into his case, or to adopt means for securing the place of "Scholar which he claimed, or otherwise to determine his appeal." As to the statement, that the Visitors have, according to the discretion vested in them, rejected Heron's appeal, I pass that by, as I have (a) College Statutes, &c., Mac Donnell's Edition, p. 102. (b) Ibid, p. 293. T. T. 1845. already said the charter of William the Fourth gave them no such Queen's Bench. discretion. THE QUEEN V. TRINITY COLLEGE. I will make a few observations on the nature and position of the office of Visitor, which the Primate and Achbishop of Dublin are called on to exercise. A great many cases have been cited, but I find the subject well stated in 1 Blackstone's Commentaries, p. 479: "The general duties of all bodies politic, considered in their "corporate capacity, may, like those of natural persons, be reduced "to this single one, that of acting up to the end or design, whatever "it be, for which they were created by their founder. "I proceed, therefore, next to inquire how these corporations "may be visited; for corporations, being composed of individuals "subject to human frailties, are liable, as well as private persons, "to deviate from the end of their institution. And for that reason "the law has provided proper persons to visit, inquire into, and "correct all irregularities that arise in such corporations, either "sole or aggregate, and whether ecclesiastical, civil, or eleemosy"nary." "With respect to all lay corporations, "the founder, his heirs, or assigns, are the Visitors, whether the "foundation be civil or eleemosynary." And again, p. 483. "But "whatever might be formerly the opinion of the clergy, it is now "held as established common law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons, and "that the right of visitation does not arise from any principles of "the canon law, but, of necessity, was created by the common law. "And yet the power and jurisdiction of Visitors in colleges was left 66 Iso much in the dark at common law that the whole doctrine was "very unsettled till the famous case of Philips v. Bury (a). In this "the main question was, whether the sentence of the Bishop of 'Exeter, who, as Visitor, had deprived Doctor Bury, the Rector of "Exeter College, could be examined and redressed by the Court of "King's Bench. And the three puisne Judges were of opinion that "it might be reviewed, for that the Visitor's jurisdiction could not "exclude the common law, and accordingly judgment was given in "that Court. But the Lord Chief Justice Holt was of a contrary opinion, and held, that by the common law, the office of Visitor is "to judge according to the statutes of the College, and to expel and "deprive upon just occasions, and to hear all appeals of course, and "that from him, and him only, the party aggrieved ought to have redress, the founder having reposed in him so entire a confidence "that he will administer justice impartially, that his determinations are final, and examinable in no other Court whatsoever. And upon (a) Ld. Raym. 5; 4 Mod. 106; Show. 35; Skinn. 407; Salk. 403; Carthew, 108. |