He might think fit to trust the Rector with his Visitor the Bishop, as supposing more Care would be taken by him of the Head of the College, than of inferior Members.
But the Quære is not, What Reason induced the Founder to make those Appointments? He was Master of his own Charity, and might qualify it as he pleased; and he hath given it under this Qualification, That the Bishop is made Visitor, and might deprive the Rector, as he hath done, according to the Statutes and Constitutions of this College.
Whether the Justice of the Visitor's Sentence examinable.—Then 2. The Sufficiency of the Cause of this Deprivation is never to be called in Question, nor any Inquiry to be made in Westminster-hall into the Reasons or Causes of such Deprivation, if the Sentence be given by him that is the proper Visitor, created so by the Founder, or by the Law.
[45] Diversity of Corporations aggregate.—'Twas urged, That there are in Law two Sorts of Corporations aggregate, consisting of many Persons; such as are for Publick Government, and such as are for Private Charity. Those that are for Publick Government of a City, Town, Mystery, or the like, being of Publick Concern, are to be governed according to the Laws of the Land, and to be regulated and reformed by the Justice of Westminster-hall; of these there are no private Founders, and consequently no particular Visitors: There are no Patrons of these; they only subsist by Virtue of the King's Letters Patent, or Custom and Usage, which supposes Letters Patent, and are supported and ruled by the Methods of Law: Therefore, if a Corporation be made for the Publick Government of a Town or City, and there is no Provision in the Charter how the Succession shall be, the Law supplies the Defect of that Constitution, and says it shall be by Election, as Mayor, Aldermen, and Common Councilmen, and the like; and so is 1 Rolls Abridg. 513.
But private and particular Corporations for Charity, Founded and Endowed by private Persons, are subject to the particular Government of those who Erect them: Therefore, if there be no Visitor appointed; in all such Cases of Eleemosynary Corporations, the Law doth appoint the Founder and his Heirs to be Visitors: They are Patrons, and not to be guided by the common known Laws and Rules of the Kingdom; but such Corporations are as to their own Affairs to be governed by the particular Laws and Constitutions assigned them by the Founder.
The Founder and his Heirs Visitors where no special Appointment.—Though some have said, that the Common Law doth not appoint any Visitation or Visitor at all; yet 'tis plain, that it doth in Defect of a particular Appointment; it makes the Founder Visitor; and it is not at his Pleasure whether there shall be a Visitor or not; but if he is silent during his Life-time, the Right will descend to his Heirs, and so is Yelv. & 2 Cro. where it is admitted on all Hands, that the Founder is Patron, and as Patron is Visitor, if no particular Visitor be assigned, 8 Edw. 7. 8. 8 Assis. 29. 9 Hen. 6. 33. 1 Inst. 96. so that Patronage and Visitation are necessary Consequents one upon another; for this Visitatorial Power was not introduced by any Canons or Constitutions Ecclesiastical, it is an Appointment of the Law; it ariseth from the Property which the Founder had in the Lands assigned to support the Charity: And as he is the Author of the Charity, the Law gives him and his Heirs a Visitatorial Power, i.e. an Authority to inspect their Actions, and regulate their Behaviour as he pleaseth: For it is not fit, that the Members who are indowed, and that have the Charity bestowed upon them, should be left to themselves, but they ought to pursue the Intent and Designs of him that bestowed it upon them.
Where the Poor are not Incorporated, i.e. they who are to have the Charity, but Trustees are appointed, there is no Visitatorial Power, because the Interest of the Revenue is not vested in them ; but when they who are to enjoy the Benefit of the Gift are Incorporated, there, to prevent all Perverting of the Charity, [46] the Law doth establish a Visitatorial Power ; and it being a Creature of the Founder's, 'tis reasonable that he and his Heirs should have that Power, unless it were devolved elsewhere.
'Twas further argued, That in our old Books deprived by Patron, and deprived by Visitor, are all one; for this Authority to visit is a Benefit that naturally springs out of the Foundation, and it was in his Power, if he pleased, to transfer it to another, and where he hath done so, the other will have the same Right and Authority as the Founder had.
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