Colleges, their Nature.—There's no Manner of Difference between an Hospital and a College, except only in Degree: An Hospital is for those that are Poor and Mean, or Sick, &c. a College is for another Sort of Persons, and to another Intent; the former is to maintain and support them; this is to Educate them in Learning, that have not otherwise wherewithal to do it: But still it is much within the same Reason of that of an Hospital; and if in an Hospital, the Master and Poor are incorporated, 'tis a College having a common Seal to act by, though it bears not that Name: Because it is of an inferiour Degree; and in both Cases there must be a Visitor, as both are Eleemosynary.
Hospitals.—A Visitor being then of Necessity created by the Law, (as 8 Edw. 3. 69, 70. Every Hospital is visitable, if lay, by the Patron, if Spiritual, by the Ordinary,) he is to Judge, and he may Expel; and as it is 8 Assis. 29, 30. he may deprive; the only Quære is, if he were a Visitor at this Time, for it hath been and must be agreed on all hands, that Quatenus Visitor he might deprive; if he be a Visitor as Ordinary, there lieth an Appeal from his Deprivation; but if as Patron, there's none; and then that Deprivation, whether Right or not, must stand.
Objections answered. No Court.—As to the Objection, that 'tis not the Sentence of a Court, and therefore not Conclusive; 'tis not material whether it be a Court or not, but the Quære is, if he had Jurisdiction and Conusance of the Person and Thing; and if he had, then his Sentence holds; and where the Founder hath not thought fit to direct an Appeal, no Appeal lies, nay not to the Common Law Courts; the Founder having put all under the Judgment of the Visitor, it must continue so: He might have ordered it, that the Rector should continue only during the Pleasure of the Visitor, but now he hath left it to his Wisdom according to the Statutes.
He is a Judge not only in particular by Appointment, but as he is Constituted a Visitor in general; then in pleading of a Sentence of Deprivation, there is no Necessity of shewing the Cause, the Cause is not traversable even in a Visitation; so is Rastal 1. 11 Hen. 7. 27. 7 Rep. Kenne's Case, 9 Edw. 4. 24.
Form of Pleading instanced.—Suppose this Rectory had been a sole Corporation: And not Part of a Corporation aggregate, as it is, Consisting of Rector and Scholars; and Dr. Bury had brought an Assize, and this Deprivation had been pleaded; it had been good to have said that the Visitor certis de Causis ipsum adinde moventibus had deprived [47] him: Every Thing that is traversable must be expressed with Certainty, but the Cause need not be so in this Case.
Now 'tis strange, that Pleading a Sentence without a Cause should be good, and the finding of a Sentence in like Manner in a special Verdict should not be good: If in Pleading it be not traversable, 'tis the strongest Argument, that the Cause is not to be inquired into; the having no Appeal doth not lessen the Validity of the Sentence, it doth only shew the Rector's Place not to be so certain and durable, as in other Cases they are, where Appeals are allowed.
Caudrey's Case—The Case of Caudrey in the High Commission Court is as strong; a Sentence of Deprivation, no Appeals, and the Sentence found, and no Cause shewn, yet held good: 'Tis no Answer to say, that that was by the Ecclesiastical Law. How is it the Ecclesiastical Law, that a Man shall be concluded by one Sentence without Appeal? no, it was, because it was by a Court that had Jurisdiction, and the Sentence was not the weaker, or the Cause of it more inquirable, because there's no Appeal.
'Twas by the Ecclesiastical Constitution, that the Commissioners had that Power, but that was established by the Law of the Land, and so is the Visitatorial Power; the one Authority is as much derived from the Law as the other.
Bird and Smith's Case.—Bird and Smith's Case in Moor's Rep. Deprivation for not conforming to the Canons, held good in like Manner.
Coveney's Case. Bagges's Case.—As to the Case of Coveney in Dyer 209. and that in Bagges's Case, 11 Rep. 99. they are the same as to this Matter, though in Two Books, an Assize because no Appeal; he quotes Books for it, but upon a Perusal they will not warrant the Distinction, for the Party is as much concluded in the one Case as in the other; 'tis reasonable to suspect that Case not to be Law, because that is impracticable, which it is brought to prove. The Head of a College cannot maintain an Assize for his Office of Headship: He hath not such an Estate as will
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