Philips v Bury by b7sgx93


									Philips v Bury

Court of King's Bench

Holt CJ, Dolben, Gregory and Eyre JJ

Trinity Term, 1694

I will put the case as shortly as I can on the record, and it is thus. Exeter College, Oxford,
was founded by William Stapleton to consist of a rector and scholars. By the statutes and
constitution of the college, the bishop of Exeter, for the time being, is appointed visitor,
to visit by himself or commissary, and the time is set when he shall visit at the request of
the college as often as they think requisite and, without such request, once in five years
ex officio. It is then directed that in his visitation be may proceed to the deprivation of the
rector or to the expulsion of the scholars. Then there is a qualification of this power by
the particular words of the statute: “Si tamen ad deprivationem rectoris aut expulsionem
scholaris alicujus per episcopum aut ejus commissarium agatur,” then his crimes shall be
shown to him, and if he cannot probably make out his innocence, that he shall be
removed without further appeal. Dum tamen ad ejus expulsionem, there shall be the
consent of the rector and three of the seven senior fellows. The statute goes on, that if the
rector is removed by the bishop's commissary, etiam consentientibus four of the senior
fellows, he may appeal to the bishop.
Then there is another statute which shows for what faults and crimes the rector shall be
deprived: wasting or alienating the revenues or goods of the college, adultery and some
particular things. Then it shows the method that shall be taken against him when they do
proceed to deprivation, ie, within fifteen days after the fact committed he shall by the
college be admonished to resign. Then they are to apply to the bishop and, if he is
convicted, the bishop or his vicar may proceed to deprive him.
There was one scholar, Colmer, expelled from the college by the rector and fellows for
incontinency. He appealed against this expulsion to the bishop, as visitor, in March 1690.
On the appeal the bishop granted a particular commission to Doctor Masters to examine
this matter. He went to the college and his proceedings are found in the verdict. He
reversed the sentence of expulsion and restored Colmer to his fellowship. After this the
bishop appointed a visitation to be held in the chapel [on June 16] when the doors were
shut. The rector and scholars would not open the doors, but protested in the area against
the visitation. The visitor called over the names of the rector and scholars, swore one to
prove the summons and went away without doing anything more.

After this another visitation was appointed to be held in the hall on July 24. At that time
the bishop repaired thither and divers protestations against the visitation were made.
However, the bishop proceeded, called over the names, registered the act of June 16 and,
on several warnings to appear, Doctor Bury [the rector of the college and defendant in
this case] and divers of the fellows having absented themselves and refused to submit to
the visitation, were pronounced contumacious. The bishop first expelled Doctor Horne
and suspended some of the senior fellows. Afterwards, with the consent of the
unsuspended fellows, he deprived the rector. That sentence of deprivation being thus
given, the college proceeded to a new election and elected Mr Painter who joined in the
lease to the plaintiff on which this action is brought.
The question is whether this sentence of deprivation, given by the bishop against Doctor
Bury, makes the rectorship of Exeter College void as to him, and so consequently gives a
title to the lessor of the plaintiff. My brothers have all given their opinions that this
sentence of deprivation is a void sentence, that Doctor Bury continues rector; that the
rectory is not void by that sentence and that judgment ought to be given for the
defendant. I must crave leave to differ from them in this case, for I am of opinion, on this
verdict, that judgment ought to be given for the plaintiff, and that this deprivation by the
visitor is a good deprivation to void the rectory.
The questions that I ask in this case are but two: (i) whether or not by the constitution of
this college the Bishop of Exeter had power in this case to give sentence; (ii) supposing
he had such a power, whether the justice of this sentence be examinable in this court on
this action. I am of opinion that the bishop had power by the constitution of the college to
give a sentence, and having that power, the justice of that sentence is not to be examined
in a court of law on an action.
Concerning the bishop's power, there have been several things said which I would take
notice of. The first thing is, what time he has by the constitution of the college, to make
his visitation in. I agree that he can make his visitation but once in five years, unless he is
called by the request of the college; and if he comes uncalled within the five years, his
visitation would be void, and if he gave, then, any sentence, that would be a mere nullity
as coram non judice. But I hold that the visitation of July 24 was a good visitation and
consequently, the sentence given on it is good.
Two objections have been made against it. First, it is objected that Doctor Master's
coming in March to examine Colmer's appeal on the visitor's commission was a
visitation. I think there is no colour that it should be accounted a visitation, because it is
only a commission on a particular complaint made by a single expelled fellow for an
injury supposed to be done to him. Colmer complained that he was expelled without just
cause and appealed to the visitor for redress. They had expelled him for incontinency,
whereas he thought himself innocent, and the visitor sent his commissary to examine this
particular matter only. Now although the visitor is restrained by the constitutions of the
college from visiting ex officio more than once in five years, yet as visitor, he has a
standing, constant authority at all times to bear the complaints and redress the grievances
of the particular members. That is the proper office of a visitor, which appears by
So it was held in this court in Appleford's Case (1) who was expelled on a like accusation
as Colmer was. He appealed to the visitor, the Bishop of Winton, who confirmed the
expulsion. For visiting is one act in which he is limited to time; but hearing appeals and
redressing grievances is his proper office and work at all times. It is like the case of all
the bishops of England who can visit but once in three years; but their courts are always
open to hear complaints and determine causes. So that although the bishop here can visit
but once in five years, unless called, yet he has power and authority to bear any
difference between the members and redress any particular injury at any time.
The next thing to be considered is whether that which was done on June 16 was a
visitation. There is no question but that the bishop did intend to visit then, and went
thither to proceed in the visitation; but they would not let him enter the chapel where he
had appointed it to be held. It would be absurd to construe his coming there to visit to be
a visitation, which imports a judicial proceeding. It appears he did no act but called over
the names to see who it was that hindered him from visiting. But it is said that after this
he administered an oath at the time, and when he came in July he made an act of it.
Therefore, says EYRE, J, this is tacking the visitation in June to that of July, and the
visitation continued much longer than was intended; nay, than it can continue by the
constitution and statutes of the college, for it is thereby to cease in three days. I make
quite another construction of it. When he was hindered in June and made an act of this at
his visitation in July, that was only in order to call them to account for their contumacy
and to bring them in judgment at his visitation; it is no more than taking an affidavit of
the service of his citation. If that which was done in June should amount to a visitation, it
would be in the power of the rector and fellows, by their contumacy, at any time to hinder
the effect of a visitation, and such their contumacy would never be punished.
The next thing to be considered is what arises from the construction of the statute de
visitatione, whether there is a necessity that there should be the consent of the four senior
fellows to the deprivation of the rector. For if there was such a necessity by the statutes of
the founder, I agree this sentence was a nullity. However, as this statute is framed, I
conceive it is not necessary, but the bishop has a power to deprive the rector (although
the four seniors do not concur in the sentence) for the following reasons. First, by the
statutes the Bishop of Exeter for the time being is made the ordinary visitor of Exeter
College, and it is clear that, where anyone is visitor of a college, he has full and ample
power to deprive and remove any member of the college, qua visitor. Secondly, there is
an express power given to the bishop to proceed to the deprivation of the rector or the
expulsion of a scholar, in his visitation. But thirdly, although there are qualifications of
the bishop's power in the expulsion of a scholar, yet the bishop's power in depriving the
rector is not limited to be with the consent of four of the seven senior fellows.
The words of the statute are:
“Si tamen ad deprivationem aut inhabilitatem rectoris aut expulsionem scholaris alicujus
per episcomum Exon vel ejus commissarium agatur, dummodo ad ejus expulsionem
concurrat consensus rectoris et trium de septem maxime senioribus scholaribus.”
I would observe that it is deprivatio as to the rector and it is expulsio as to the scholar,
and although I agree the words are synonymous, yet by this statute they are differently
applied. It is impossible that the consent should relate to the rector, for then he must
consent to his own deprivation, and it is impossible to imagine he should so consent; for
in this place the consent of three of the senior fellows is not to do, without the consent of
the rector. Then the subsequent words are that if the rector is deprived by the bishop's
commissary, although four of the senior fellows consent, he may appeal to the bishop.
The rector has that liberty if the bishop's commissary deprives him. But where are there
any words that abridge the bishop's own power? The commissary's power seems to be
abridged by these words: “to have their consent”; and yet that is but by implication. But
the statute has appointed no qualification of the bishop's power. Here are express words
that he may proceed to the deprivation of the rector, not only by the general words of
making him visitor, but particular words for that purpose in the very statute. Then you
must show some other words to qualify this power for I, for my part, can find none. I can
find some that qualify the commissary's power, but none that reach the bishops'.
It is objected that it is unreasonable to imagine that the founder should give a greater
authority to the visitor over the rector than the scholars. The question is not, what was
reasonable or fit for the founder to do, but what he has done on a view and perusal of the
statutes. Suppose he gives the bishop such an absolute authority, it is not in our power to
control it for any imagined unreasonableness. It is to be supposed that the founder had
some reason for giving the bishop such power over the rector, although if he had not, it is
not material; his will is his reason in ordering and disposing of his own, and it is not in
our power to take away this authority from him because we think it unreasonable.
Then consider the rector has a benefit that the scholars have not, for if the commissary
visits the college and deprives him with the consent of four senior fellows, he may have
an appeal to the bishop; but the scholars can have no such appeal. It may be that the
founder thought fit to trust the rector with the bishop alone, as knowing that he would
take more care of the head of the college than he would of the inferior members of it. But
after all, who knows what reason a man may have? Every man is master of his own
charity, to appoint and qualify it as he pleases.
If the Bishop of Exeter is, by statute in express words, made visitor of the college and
has, by express words, a power given to him to proceed to the deprivation of the rector,
and there are no words to lessen that power, I would fain know how we can make such a
construction as to limit this power to be with the consent of four senior fellows. So I think
that by the statutes and the constitutions, the bishop being made visitor and having
authority to deprive the rector, without any qualification of that authority, he may
proceed to deprive him without the consent of the four senior fellows. I agree, however,
that if their consent had been necessary, the suspension does not make them not fellows
during the suspension, for it is only an impediment to them from enjoying any benefit
from their office, but it makes no vacancy of the office at all. For if a minster is
suspended, during the suspension the place is full, and if the rector had been suspended,
the rectory would have been full, and he might with the fellows have maintained an
assize for the lands of the college, and he is as much rector as before. And then if a
suspended fellow remained a fellow, if it were necessary for them to consent, such a
fellow is as much empowered to consent as ever he was; but I think it was not at all
necessary as the case is.
The next point is no more than this, whether or not (supposing the bishop has an authority
to deprive the rector and be does by sentence deprive him) the justice of this sentence be
examinable in any of the courts of common law. That is, first, whether the sufficiency of
the sentence as to the cause be examinable in the common law courts. Secondly, whether
the truth of that cause, suppose it to be good and sufficient to ground the sentence if true,
can be inquired into or be examined. I think the sufficiency of the sentence is never to be
called in question, nor any inquiry to be made here into the reasons or causes of the
deprivation. If the sentence is given by him who is visitor, created so by the founder or by
the law, you shall never inquire into the validity or ground of the sentence. This will
appear, if we consider the reason of a visitor and how he comes to be supported by
authority in that office.
In order that we may the better apprehend the nature of a visitor, we are to consider that
there are in law two sorts of corporations aggregate; such as are for public government
and such as are for private charity. Those that are for the public government of a town,
city, mystery or the like, being for public advantage, are to be governed according to the
laws of the land. If they make any particular private laws and constitutions, the validity
and justice of them is examinable in the King's courts. There are no particular private
founders and consequently, no particular visitor of these; there are no patrons of these.
Therefore, if no provision is in the charter how the succession shall continue, the law
supplies the defect of that constitution and says that it shall be by election as mayor,
aldermen, common council and the like. So it was in the case of the town of Launceston,
1 ROLL ABR 513, tit Corporation, G pl 5.
Private and particular corporations for charity, founded and endowed by private persons,
are subject to the private government of those who erect them, and, therefore, if there is
no visitor appointed by the founder, the law appoints the founder and his heirs to be
visitors who are to proceed and act according to the particular laws and constitutions
assigned them by the founder. So it appears in Fairchild v Gayre (2) where it is now
admitted on all hands that the founder is patron and as founder, is visitor if no particular
visitor be assigned. See also YB 8 Edw 3, fo 69, pl 37; 8 LIB Ass placit 29, 31. So that
patronage and visitation are necessary consequents one upon another, for this visitatorial
power was not introduced by any canons or constitutions ecclesiastical (as was said by
counsel in argument). It is an appointment of law; it arises 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, that is, an authority to inspect
the actions and regulate the behaviour of the members that partake of the charity. For it is
fit that the members who are endowed and have the charity bestowed on them should not
be left to themselves – for divisions and contests will arise among them about the
dividend of the charity – but pursue the intent and design of him that bestowed it on
Where the poor or those that receive the charity are not incorporated but there are certain
trustees who dispose of the charity, according to the case in 10 Co [Sutton's Hospital
Case (3)] there is no visitor, because the interest of the revenue is not vested in the poor
that have the benefit of the charity, but they are subject to the orders and direction of the
trustees. But where they who are to enjoy the benefit of the charity are incorporated,
there, to prevent all perverting of the charity or to compose differences that may happen
among them, is by law a visitatorial power; and it being a creature of the founder's own, it
is reason that be and his heirs should have that power unless by the founder it is vested in
some other. There is no manner of difference between a college and a hospital, except
only in degree. A hospital is for those that are poor, mean, low, and sickly; a college is
for another sort of indigent persons, but it has another intent, to study in and educate
persons in learning that have not otherwise the wherewithal to do it.
Still it is as much within the reason of hospitals. Further, if in a hospital, the master and
poor are incorporated, it is a college having a common seal to act by, although it has not
the name of a college (which always supposes a corporation) because it is of an inferior
degree. In both cases there must be a visitor, either the founder and his heirs or one
appointed by him; and both are eleemosynary.
A visitor being then, of necessity, created by the law (as YB 8 Edw 3, fo 69, pl 37) every
hospital is visitable either by the patron if a lay hospital, or by the ordinary if spiritual.
What is the visitor to do? He is to judge according to the statutes and rules of the college.
He may expel and (as in 8 LIB Ass 29, 31) he may deprive. The only question in that
case was, who was visitor? For it is agreed on all hands that quatenus visitor he may
deprive. If he is visitor as ordinary, there lies an appeal from his deprivation, but if as
patron, then none. That deprivation, whether by right or wrong, was to stand good.
As to the objection that it is not the sentence of a court and, therefore, not conclusive, it is
not material whether it is a court or not; all the matter is whether the visitor has a
jurisdiction. If he has a jurisdiction and cognisance of the matter and person, and be gives
sentence in the matter, his sentence must make a vacancy, be it never so erroneous; and
there is no appeal if the founder has not thought fit to direct one. That an appeal lies to
the common law courts of England is certainly not so. It is plain by all the authorities of
our books and by the way of pleading, that the cause of the visitor's sentence is not
examinable. If a sentence of deprivation is pleaded you need not show the cause; it is not
traversable even in a visitation, when it is by the visitatorial power; so is RASTAL
ENTR, fol 1, YB 11 Hen 7, 27, and Kenn's Case (4).
Suppose that this rectory had been a corporation sole, and not a corporation aggregate of
rector and scholars; and Dr Bury had brought an assize and then this deprivation had
been pleaded. I would fain know whether it would not be a good plea to show that the
visitor had pro certis causis, etc, deprived him. Without all question it would have been a
good plea and not traversable, for everything that is traversable must be expressed in
certainty. It is strange that pleading a sentence without showing the cause should be good,
and finding a sentence, in a special verdict without finding the cause should not be as
good and conclusive to the party. I thought things had more exactly to be pleaded than set
forth in the finding of a jury on a special verdict; and if in pleading it be not traversable,
the argument is the strongest that can be that the cause is not to be inquired into. For if it
were, a fairer opportunity must needs be given than on a special verdict, which concludes
[estops] the party as to the fact that is found.
As to the matter of there being no appeal from an arbitrary sentence, it is true the case is
the harder because the party is concluded [estopped] by one judgment; that does make it
the more severe on the rector, but it does not lessen the validity of the sentence. If the
constitution had been that, if the visitor deprives the rector then be might appeal to the
Archbishop of Canterbury, it would have been more equitable; but in that case, if there
had been any appeal and the sentence had not been reversed, then the deprivation would
have been in force and irremediable in any court of law. I do not know any authority of
law that makes the sentence to be the weaker because the party deprived is barred of an
appeal. In Caudrey's Case (5) a sentence of deprivation was given against him by the
High Commission court, and there was no appeal. In Allen v Nash (6) the sentence was
found but no cause shown; yet it was held to be well enough although no appeal did lie,
the sentence being in the High Commission Court.
How does EYRE, J, distinguish this case from ours here? He says that it was by virtue of
the ecclesiastical law. I would fain have anybody tell me the difference, for in one case as
well as the other there is a lawful jurisdiction to deprive without appeal. If then in one
case the sentence is conclusive, although there is no appeal, why by the same reason
should it not be as conclusive in the other? It was so in Bird v Smith (7) where a man was
deprived for not conforming to the canons. It was certainly a very hard case, for all the
canons are not according to law, nor any of them obligatory further than as received and
allowed time out of mind.
As to Coveney's Case (8) and Bagg's Case (9) that the party deprived shall have an assize
when no appeal, I take the cases to be all one as to this matter, although in two books;
and there being an error in the first, it was not rectified afterwards. Coveney, president of
Magdalen College, was deprived by the visitor, not as ordinary but as visitor. The
question was whether an appeal would lie from the visitor's sentence to the King. It was
held there could be none to the archbishop because it was not done as ordinary but as
visitor. What then? Why is there this collection by the reporter: “ex hoc sequitur [says he]
that Coveney who was deprived, shall have an assize.” And that was the cause of the
opinion of SIR EDWARD COKE, CJ, that is cited in Bagg's Case (9) and be there quotes
YB 8 Edw 3, fo 69, pl 37, and LIB Ass 29, 31, for such a distinction. But if there be an
inspection of the book, there is no such distinction to be found; the party is concluded
[estopped] in that case as well as the other.
Therefore, there is an end of that opinion, for the foundation fails and is not warranted by
any authority. Besides, it is reasonable to suspect that case not to be law when the
instance is impracticable which it is brought to prove. The head of a college cannot
maintain an assize for his office of headship. He does not have such estate as will bear it.
Therefore, to give such an instance as in Coveney's Case (8) is to overthrow the authority
of the case. The head of such a body cannot maintain an assize for his headship, for he
has no sole seisin. The whole body of the college have an interest in the estate and he has
not a title to a penny of the revenues in his own right until, by consent, they are privately
divided and distributed. Then too, it is not the rector's money, it is Dr Bury's money after
division. It is a notion that cannot be maintained or supported by the rules of law; he is,
indeed, the only visible person of the body, but be has no separate right.

In Appleford's Case (1) the like argument was used in this court, and then it was insisted
that he might have an assize. SIR MATTHEW HALE, CJ, said that was impossible, and I
remember well that he disallowed of that opinion of COKE. I know no difference
between this case and that of a mandamus. In Appleford's Case (1) there was a mandamus
brought to restore him to his fellowship. It was returned that by the statutes of the college
they had power to turn him out for misdemeanour, that the Bishop of Winchester was
visitor, that he was turned out pro crimine enormi and appealed to the bishop who had
confirmed the expulsion, and the particular cause was not returned.
I know it well because I was of counsel for the college and we omitted the cause in the
return for that reason, because we thought it not sufficient. It was strongly urged that we
ought to show the cause of expulsion in the return to bring it within the compass of the
statute. It was answered: No, there was a local visitor who had given the sentence and, be
it right or wrong, the party was concluded by it; the members of the college must submit
to such laws as the founder was pleased to give them. Mr Appleford was never restored.
There is an express authority to guide us in our judgment in this case.
Here a local visitor has given a sentence and, thereby, actually deprived the rector of his
place; and why the law should not be the same when the case appears in a special verdict
in an ejectment as in a return to a mandamus, no reason can be given. At this rate we
shall always be at sea and with uncertainties, and not know when we shall come to shore.
I thought we had reached some certainty at law since Appleford's Case (1) that where
there is a visitor and he has power to proceed to deprivation, this court ought to give
credit to the justice of his proceedings as much as to those of any judge. I remember that
SIR MATTHEW HALE CJ, took it for clear law that such a sentence was as strong as a
judgment in an assize to bind the party deprived. The visitor is made a judge and
particularly designed by the founder; but he has his authority from the law and he is to
judge by the statutes. The founder has trusted this particular matter to his direction, and
why shall we suspect him that he will not do right?
As to the next point, suppose the cause is examinable yet the cause need not be found in
the verdict – for if a deprivation be found by the jury we must presume it to be just – we
are to give credit to a man that exercises judicial power if he keeps within his jurisdiction.
The law has respect not only to courts of records and judicial proceedings there, but to all
other proceedings where the person that gives his judgment or sentence has judicial
authority, and no fault is shown in the sentence. The jury do not so much as find that the
matter and ground of it is untrue or insufficient in point of law or any other fault or defect
whatsoever, but it appears that the cause of deprivation is good, it being for contumacy.
If the bishop had power to visit in June, as I think he had, and was hindered by shutting
the doors, whereupon he went away without doing anything, and came again in July,
when he held his visitation, and they carried themselves contumaciously and refused to
submit to his authority, this was contra officii sui debitum. It is by the constitution of the
college inseparably incident to their places that both head and members should submit to
the visitation. And contumacy is held a good cause of deprivation. It was held a good
cause in Bird v Smith (7) and Allen v Nash (6) quod fuit refractarius.
Although this is not one of the causes mentioned in the statute of deprivation, yet when
the bishop comes to make a visitation and the members refuse to submit, it is certainly
contrary to that duty which their places oblige them to perform. I do not think that
entering a protestation against the visitation was any fault (that was surely very lawful)
but heir turning their backs on the visitor, and not appearing on summons and refusing to
submit to his examination, was an offence and contrary to that duty which the statutes
require. For the visitor is to inquire into the state of the college and into each one's
particular behaviour and conformity to the college statutes, and if he comes to make such
an inquisition and the head or the members absent themselves or will not appear to be
examined, it tends to the subversion of the whole constitution of the college, which is a
good cause of deprivation. And although there is a particular statute which declares for
what causes the rector should be deprived, of which this is none, yet that does not extend
to a deprivation in time of visitation but it shows in what manner the college shall
proceed to get the rector, if guilty of such offences, removed. They may complain to the
visitor when he is not in his visitation, if he waste his revenues or behave himself
scandalously and, on request, will not resign, and they may article against him before the
visitor, out of his visitation. But when he comes to execute his visitatorial power in the
quinquennial visitation, he is to inquire into all the affairs of the college, and he is not to
proceed in that case on the information of the fellows, but he may proceed even to
deprivation wherever he sees cause. Contumacy, I take it, is a cause of forfeiture of his
office, being an offence against the very essence of his place, whereby he is subject to the
power of the visitor. If he endeavours to evade or contumaciously refuses to submit to his
power and authority, it is an offence against the duty of his place and a good cause of
So that I hold in this case, first, that the Bishop of Exeter has a visitatorial power vested
in him to deprive the rector, without the consent of the senior fellows; secondly, that the
justice of this sentence is not to be examined into here; and thirdly, if it were [to be
examined into here] and the cause were necessary to be shown, I think contumacy is a
very good cause of deprivation, being an affront to him in his visitatorial authority.
Although I believe that Dr Bury did not design to affront the bishop but to assert his
right, yet ignorantia juris non excusat. If the law is that he ought to submit, which he
refuses, we cannot help it. I am far from being such a judge as shall lay any intolerable
yoke on anyone's neck, but I must say that if the head and members of a college will
receive a charity with a yoke tied to it by the founder, they must be contented to enjoy it
in the same manner as they received it from him. If they will have one, they must submit
to the other. And so my judgment ought to be given for the plaintiff, but my brothers are
all of another opinion and so I submit to it. The defendant must have his judgment.
[Although judgment was given for the defendant by the opinion of the other three judges,
it was reversed on appeal by the House of Lords.]

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