་ electing its own visitor. Of Magdalene the possessor of 1 This right is preserved by the Act of 1877 until ceded by deed under seal by the possessor of Audley End. 2 By 20 & 21 Vict., c. 25, the Archbishop of York became visitor for the whole foundation. In Bentley's time Trinity, Cambridge, had both a general and a special visitor. 8 The visitor is remarkable, the Chancellor and two persons appointed by grace of the Senate. 4 The canonical majority before the Act was two-thirds (A.-G. v. Davy [1741], 2 Atk. 212). In some cases, provision as to a majority is made by charter or statute. 5 R. v. Blythe [1699], 5 Mod. 404. As a consequence he is bound, although he be in the minority, to affix the corporate seal to a lease (R. v. Windham [1786], Cowp. 377), or the presentation to an advowson (R. v. Kendall [1841], 1 Q. B. 366). Whether his concurrence is necessary for the election of a fellow depends on the statutes. It was held that it was at Queens', that it was not at Clare and Caius. (Re Queens' College [1828], 5 Russ. 64.) 6 Previously the university had been visitor. 7 Griffiths, 8. 3 The importance of the visitor is still considerable, and has been little affected by recent legislation. In most cases of action taken by a college with regard to any of its members on the foundation or claiming to be on the foundation,1 an appeal to the visitor is a condition precedent to proceedings at law or in equity. Even after appeal, since the visitor is in a judicial position, the Courts will not interfere unless on proof of his declining jurisdiction, or on some ground which avoids his decision altogether, such as assuming jurisdiction, breach of trust, dealing with a trust estate, or acting from interested or corrupt motives, or in breach of elementary principles of justice, such as deciding on an ex parte statement. In such cases, mandamus or prohibition will be according to circumstances, and apparently an action if he act without jurisdiction. In one of the Bentley cases in 1723 Mr. Justice Fortescue relied on an extremely early precedent in support of the view of audi alteram partem as part of the visitor's duty. " God himself," said the learned judge, "did not pass sentence on Adam before the latter was called upon for his defence. for his defence. 'Adam,' says God, 'where art thou? Hast thou eaten of the tree whereof I commanded that thou shouldest not eat?' And the same question was put to Eve also."5 An example of the working of the remedy by mandamus is the issue of the writ to the visitor of Peterhouse in 1788, enjoining him to proceed to the election of a master owing to the failure of the fellows to elect. A mandamus does not lie to a visitor to reverse 1 This is put in to cover the decision in R. v. Hertford College (below). 2 His jurisdiction is a forum domesticum, but still a forum. 3 Green v. Rutherforth [1750], the case of a devise of a rectory to St. John's, Cambridge, in trust for the senior fellow. See Whiston v. Dean of Rochester [1849], 7 Hare, 532; R. v. Dean of Rochester [1851], 17 Q. B. 1. The alleged interest of the visitor (the Bishop) was that he had connived at misappropriation of cathedral revenues by the Dean and Chapter. 5 R. v. Chancellor of Cambridge, 1 Str. 566. The principle is illustrated by numerous other decisions. A good modern instance is Wood v. Wood [1874], L. R., 9 Ex. 190. 6 R. v. Bishop of Ely, 2 T. R. 290. his own decision, 1or to a college to restore a fellow after deprivation by the visitor or his commissary. In the absence of any of the grounds above mentioned, the decision of the visitor is conclusive, whether as to a question of law or a question of fact.* He is not bound to wait for an application, but may act mero motu in a proper case. He cannot be judge in his own cause unless such power be specially given him. In deciding an appeal he may properly take into consideration long and undisturbed possession of an office. An example of the smaller questions which he may have to decide is whether a non-resident fellow may let his rooms.7 No appeal lies from the visitor unless he visits qua ordinary, when an appeal lies to the Crown in Chancery. In the words of Lord Camden, visitation "is a despotism uncontrolled and without appeal, the only one of the kind existing in this kingdom."" But the Courts, as in the Peterhouse Case, will take care that he acts within any limitations contained in the statutes. Members or members elect of the college not claiming to be present or future foundationers have no right of appeal. If the college accept them, they are in the position of "mere boarders" (to use Lord Apsley's phrase), and their position is little better than 1 A.-G. v. Stephens [1737], 1 Atk. 358. 2 Parkinson's Case [1689], Carth. 92, a Lincoln College case, the Court holding that a fellow holds his fellowship on the implied condition of submission to the visitor. 3 The visitor seems to have a general right of visiting by commission. In some colleges this was expressly provided by the founder. As a matter of practice in modern times, the visitor usually acts on legal advice if the question be at all an important one. 5 R. v. Bishop of Ely, above, where held that statutory power to nominate a head on lapse does not constitute him a judge in his own cause. 6 Re Downing College [1837], 2 Myl. & Co. 643. A.-G. v. Stephens, above. 8 This is tantamount to saying that no appeal is now competent, for probably no visitor now acts qua ordinary. 9 Grant, 534. 2 that of tenants-at-will. At one time it was thought that only actual members of the foundation had the right of appeal. But it is now settled that anyone claiming to be fellow, scholar, or otherwise on the foundation has the right. A sentence of expulsion by the college, from which no appeal has been made, is conclusive, and is in the nature of a judgment in rem determining the status of the person affected. It is a question whether a visitor can examine witnesses on oath. He cannot, apart from statute, compel the attendance of witnesses. No precise mode of procedure is necessary, as long as substantial justice is done and opportunity given, generally by citation, to all parties interested to be heard. He has a right to use the college hall or chapel, and exclusion by the college does not render the visitation ineffectual. He may adjourn his quasi-court from time to time, and may award costs between parties,9 and charge his own on the college, such costs being liable to taxation.10 5 It is doubtful whether a power to interpret statutes, when conferred on a particular person, constitutes him visitor. Ex parte Wrangham [1795], 2 Ves. Jun. 617, as to a fellow-commoner ; Davison's Case [1772], Cowp. 319, a petition to Lord Apsley, L.C., as visitor of University to restore an expelled commoner, on the ground that he had been expelled by a minority of the fellows; R. v. Grundon [1775], Cowp. 315, a case of expulsion of a commoner from University. This is but an example of the rule that a visitor's power exists only between member and member, not between member and stranger. 2 The authority generally cited was R. v. St. John's College, Oxford [1693], Holt, 437. 3 R. v. Hertford College [1878], 3 Q. B. D. 693. In this case Lord Coleridge points out, at p. 703, that the St. John's Case is no authority at all, for there a definite private right of property in the Mayor of Bristol had been interfered with by the college. 4 R. v. Grundon. 5 It was done in Phillips v. Bury, below, p. 6 Summarie simpliciter et de plano sine strepitu aut figura judicii, Com. Dig. Visitor, B. Phillips v. Bury, below. 8 Re Dean of York [1841], 2 Q. B. 39. 9 Queens' College Case [1820], Jac. 47. 10 A.-G. v. Dean of Christ Church [1821], Jac. 487. 2 Probably not, as the provision in the Act of 1877, that the Chancellor of Cambridge is the interpreter of university statutes made under the Act, does not constitute him visitor of the university. In college statutes it is generally provided that he is the sole interpretative authority where any doubt arises as to the meaning of a statute. He need not necessarily give a decision on the merits: he may hold that the appeal comes too late. The visitor qua visitor, even when the Crown, appears to have no right to inspect the books of a university. Whether he would have a right as such to inspect the books of the college visited by him, does not seem to have been decided. A college, besides being subject to visitation, may itself be visitor of a school. The visitatorial authority of the Crown does not supersede the jurisdiction of the Chancery Division or prevent it from exercising its functions in respect of an existing trust." The same result would follow a fortiori where the visitor is a subject. If a charity be founded by a subject and no visitor be appointed, and the Crown then by charter incorporate governors and authorise them to make rules, the Court will interfere and direct a scheme if the existing rules do not carry into effect the views of the founder. In the case of a college, the same result seems to follow by the submission of new statutes to the Crown in Council. In the old statutes of Exeter and some other colleges a quinquennial visitation 1 Before the first commission, as the report states, he sometimes relieved himself of difficulty by explaining away the statute or statutes. 2 R. v. Bishop of Lincoln [1785], 2 T. R. 338n., opposition to election of Dr. Horner as Rector of Lincoln. 8 R. v. Purnell [1748], 1 W. Bl. 37. 4 As Caius of the Cambridge Free School. See Protector v. Crayford, [1656], Style, 457. Daugars v. Rivaz, [1860], 28 Beav. 233. The case of A.-G. v. Magdalen College [1847], 10 Beav. 402, illustrates this point. The Master of the Rolls declined to interfere on an allegation of Magdalen College School of breach of duty by the college, as it was matter for inquiry by the visitor, there being no evidence of a trust. 6 A.-G. v. Dedham School [1857], 23 Beav. 350. |