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IV. Of the visitation of corporations.
I proceed next to consider the power and discipline of visitations to which corporations are subject. It is a. power applicable only to ecclesiastical and eleemosynary corporations ;a and it is understood, that no other corporations go under the name of eleemosynary, but colleges, schools, and hospitals. The visitation of civil corporations is by the government itself, through the medium of the courts of justice. And in the case of the failure or want of a visiter over a private eleemosynary foundation, the duties of visitation devolve, in England, upon the crown, and is exercised at the present day not by the K. B., but by the lord chancellor in his visitatorial capacity. As it has been determined in New-York,d that the chancellor cannot act in a visitatorial character, the jurisdiction in such a case would revert to the courts of law, according to the ancient English practice, to be exercised. under common law process.e
To eleemosynary corporations, a visitatorial power is attached as a' necessary incident. The nature and extent of this power were well explained by Lord Holt, in his celebrated judgment in the case of Philips v. Bury.
If the corporation be public, in the strict sense, the *301 government *has the sole right as trustee of the
York, 2 Hoffman's Ch. Rep. See also supra, n. c. the cases of Sharp v. Spier, and of Sharp v. Johnson. There is a very valuable discussion on the nature, power and restriction of the transfer of corporate stock in ch. 16 of Angell f Ames on Corporations, 3 edit. p. 499, and the numerous American cases are there cited, and examined. The subject is rather of too practical a nature to admit in a work of this character of a digest of the many and nice distinctions, and I must refer the student to the treatise itself.
• 1 Blacks. Com. 480. 2 Kyd on Corp. 174. »1 Wood. Lec. 474.
• The Attorney-General v. Dixie, 13 Ves. 519. The Same v. Clarendon, 17 Ibid. 491.
à Auburn Academy v. Strong, 1 Hopkin's Ch. Rep. 278.
public interest, to inspect, regulate, control, and direct the corporation, and itsfunds and franchises, because the whole interest and franchises are given for the public use and advantage. Such corporations are to be governed according to the laws of the land. The validity and justice of their private laws are examinable in the courts of justice ; and if there be no provision in the charter how the succession shall continue, the law supplies the omission, and says it shall be by election. But private and particular corporations, founded and endowed by individuals, for charitable purposes, are subject to the private government of those who are the efficient patrons and founders. If there be no visiter appointed by the founder, the law appoints the founder himself, and his heirs, to be the visiters. This visitatorial power arises from the property which the founder assigned to support the charity ; and as he is the author of the charity, the law gives him and his heirs a visitatorial power ; that is an authority to inspect the actions, and regulate the behaviour of the members that partake of the charity. This power is judicial, and supreme, but not legislative. He is to judge according to the statutes and rules of the college or hospital ; and it was settled by the opinion of Lord Holt, in the case of Philips v. Bury, (and which opinion was sustained and affirmed in the house of lords) that the decision of the visiter (whoever he might be) was final, and without appeal, because the doctrine is, that the founder reposes in him entire confidence that he will act justly. In most cases of eleemosynary establishments, the founders do not retain this vi
• In Shipley's case, who was expelled from his college in Oxford univer. sity, for publishing a libel and being guilty of general immorality, he appealed to the king as visiter, and the appeal was heard before Lord Chancellor Camden. The judgment of the chancellor was most masterly, and the decree of the dean and chapter was reversed, as most arbitrary and unjust, and contrary to the “first principles of common justice." Campbell's Lives of the Lord Chancellors, vol. 5. 364.
sitatorial power in themselves, but assign or vest it in favour of some certain specified trustees or governors of the institution. It may even be inferred, from the nature of the duties to be performed by the corporation or trusters for the persons interested in the bounty, that the founders or donors of the charity meant to vest the power of visitation in such trustees. This was the case with Dartmouth
College, according to the opinion of the supreme *302 court *of the United States, in the case of Dartmouth
College v. Woodward.a Where governors or trustees are appointed by a charter, according to the will of the founder, to manage a charity, (as is usually the case in colleges and hospitals,) the visitatorial power is deemed to be long to the trustees in their corporate character.b
The visiters of an incorporated institution are a domestic tribunal, possessing an exclusive jurisdiction from which there is no appeal. It is an ancient and immemorial right given by the common law to the private founders of charitable corporations, or to those whom they have nominated and appointed to visit the charities they called into existence. The jurisdiction is to be exercised within the bosom of the corporation, and at the place of its existence. Assuming, then, (as is almost universally the fact in this country,) that the power of visitation of all our public charitable corporations is vested by the founders and donors of the charity, and by the acts of incorporation in the governors or trustees, who are the assignees of the rights of the founders, and stand in their places; it follows, that the trustees of a college may exercise their visitatorial power in sound discretion, and
4 Wheaton, 518.
Story, J. in 4 Wheaton, 674, 675. 1 Blacks. Com. 482 Case of Sut. tou's Hospital, 10 Co. 33. a. b. Philips v. Bury, supra. Grera v. Ruther. forth, 1 Ves. 462. Attorney-General v Middielou, 2 Ves, 327.
• The visiter is to proceed, whether upou a general visitation, or a par. licular appeal summurie, simpliciter, at de plano sine strepitu aui figura judicii, per Lord Mansfield in The King v. The Bishop of Ely, 1 Blacks.
without being liable to any supervision or control, so far as respects the government and discipline of the institution, and so far as they exercise their powers in good faith, and within the limits of the charter. They may amend and repeal the by-laws and ordinances of the corporation, remove its officers, correct abuses and generally superintend the management of the trust.a
This power of visitation, Lord Hardwicke admits to be a power salutary to literary institutions; and it arose from the right which every donor has to dispose, direct and regulate his own property as he pleases; cujus est dare ejus est disponere. *Though the king,
*303 or the state, be the incipient founder, (fundator incipiens,) by means of the charter or act of incorporation, yet the donor or endower of the institution with funds, is justly termed the perficient founder, (fundator perficiens ;) and it was deemed equitable and just at common law, that he should exercise a private jurisdiction as founder in his forum domesticum, over the future management of the trust.b But as this visitatorial power was, in
The visitatorial power is applied to control and correct abuses, and to enforce a due observance of the statutes of the charity, and it is not a power to revoke the gift, or change its uses, or to divest the rights of the parties to the bounty. Where the power is vested in trustees, it is an hereditament founded in property, and there can be no amotion of them from their corporate capacity, or interference with the just exercise of their power, unless it be reserved by the statutes of the foundation or charter, except in chancery for abuse of trust. Allen v. Mc Keon, 1 Sumner, 276.
• The case of Sutton's Hospital, 10 Co. 33. a. Green v. Rutherforth, 1 Ves. 472. The Institution of Sutton's Hospital, Lord Coke extolled as a work of charity surpassing any foundation " that ever was in the christian world, or that was ever seen by the eye of time." (Pref. to 10 Co.) The founder was Thomas Sutton, and his object was to establish a hospital for the relief of such poor, aged, maimed, needy, and impotent military men, and captives in war, and other persons, as should be deemed fit objects ; and to establish a free school for the maintenance and education of poor children in good literature; and provision was likewise to be made for the maintenance of religious instruction in the hospital, under the superintendence of a grave and learned divine. His real estate appropriated consisled of the charter house in the county of Middlesex, and twenty acres of land, yielding, when Lord Coke reported the case, an annual income of VOL. II.
its nature, summary and final, and therefore liable to abuse, Lord Hardwicke was not disposed to extend it in equity. It is now settled, that the trustees or governors of a literary or charitable institution, to whom the visitatorial power is deemed to vest by the incorporation, are not placed beyond the reach of the law. As managers of the revenues of the corporation, they are subject to the general superintending power of the court of chancery,
not as itself possessing a visitatorial power, or a *304 right to control the charity, *but as possessing a
general jurisdiction in all cases of an abuse of trust, to redress grievances, and suppress frauds. Where a corporation is a mere trustee of a charity, a court of equity will yet go further; and, though it cannot appoint or remove a corporator, it will, in a case of gross fraud, or abuse of trust, take away the trust from the corporation, and vest it in other hands.a
There is a marked and very essential difference between civil and eleemosynary corporations, on this point of visitation. The power of visiters, strictly speaking, extends only to the latter; for though, in England, it is said that ecclesiastical corporations are under the jurisdiction of the bishop as visiter, yet this is not that visitatorial power of which we have been speaking, and which
3,5001. sterling, and which he said would shortly be 5,0001. This charitable purpose was aided and carried into effect by a liberal charter from King James ; and the most illustrious names in England were nominated by the founder, and inserted in the charter, as governors; and the charter received, on discussion, the sanction of all the judges in the exchequer chamber. Such a case reflected lustre on that age ; and, considering it under all its circumstances, it was pre-eminent for the benevolence of its object, as well as for the munificence of the donation.
Attorney General v. Governors of the Foundling Hospital, 2 Vesey, jt., 42. Ex parte Greenhouse, 1 Madd. Ch. Rep. 92. Story, J., 4 Wheaton, 676. The strict principles and watchful care of chancery in respect to corporations acting as trustees of charities and charitable funds, and in respect to free schools and all other charitable foundations, are announced with much force in the late English cases, as see Attorney General v. Atherstone Free School, 3 Mylne Keene, 544. Attorney General v. May. or of Newbury, Ibid. 647.