A college is called Eleemosynary, be reuse its object is the perpetual distribu tion of alms (eleeinosynae) or bounty of the founder, among such persons as he has mentioned in the terms of the endow. ment. It is called a Lay corporation, because it is not subject to the jurisdiction of the ecclesiastical courts, or to the visit ation of the ordinary or diocesan in his spiritual capacity. (Blackstone, Comm. i. p. 471.) These eleemosynary corpora tions however are generally composed of spiritual persons, and have a spiritual character ; but they are considered as Lay corporations for the reason just men tioned.
The particular form and constitution of a college depend on the terms of the foundation. A college generally con sists of a head, called by the various names of provost (prrepositus), master, rector, principal or warden, and of a body of fellows (well), and generally of scho lars also, besides various officers or ser vants, according to the peculiar nature of the foundation. A college is wholly subject to the laws, statutes, and ordi nances which the founder makes, and to the visitor whom he appoints, and to no others. All elections, and the general management of a college, must be in con formity with such statutes or rules. If a college does not exceed its jurisdiction, the king's courts have no cognizance, and expulsion of a member is entirely within its jurisdiction. If there is no special visitor appointed by the founder, the right of visitation, in default of the heirs of the founder, devolves upon the king, who exercises it by the great seal. When the king is founder, his successors are the visitors.
The general power of a visitor is to judge according to the statutes of a col lege, to expel and deprive for just reason, and to hear appeals. His precise powers are determined by the founder's statutes, and if there are any exceptions to his power, the jurisdiction in such excepted cases devolves on the king. Certain times are generally named in the statutes for visitation, but the visitor may visit whenever he is called on, for it is incident to his office to hear complaints. So long as a visitor keeps within his jurisdiction his acts cannot be controlled, and there is no appeal from him, as was decided in the well known case of Philips e. Bury,
or the case of Exeter College, Oxford.
(Show. P. C. 35.) A visitor is not bound to any particular forms of proceeding, and, in general, want of jurisdiction is the only ground on which he is liable to prohibition. If a visitor's power is not limited or defined, he must use his best discretion. If a power to interpret the statutes is given to any person, as to the bishop of the diocese, this will constitute him and his successors visitors. The heirs of a founder cannot alter the sta tutes, unless such a power is expressly reserved ; and it appears, that where the king is founder, his successors cannot alter statutes without the consent of the college, unless such a power is reserved. Bat as to the power to alter statutes, it must be observed, that in the case of the crown at least, it has not unfrequently been done, though such a power might possibly be disputed, unless expressly reserved to the founder and his successors by the original statutes.
Whenever a visitor is appointed, the Court of Chancery never interferes with the internal management of a college ; but this court exercises jurisdiction on all matters pertaining to the management of the funds, for as to the fords of a college, those who possess the legal estate are in the situation of trustees. If governors, or persons called visitors, have the legal estate, and are intrusted with the rents and profits, the Court of Chancery will make them account. In colleges, when a new foundation is engrafted on the old one, it becomes part of the old one, and subject to the same visitorial authority, unless new statutes are given with the new foundation.
The validity of all elections in colleges must be determined by the words of the founder's statutes or rules. In the dis putes that have arisen on elections, the point has generally been, whether the master's concurrence is necessary, or whether a bare majority of the electors, of which electors the master is one, is sufficient. In Catherine Hall, Cam bridge, fellows must be elected "corn mum omnium consensu, aut saltem ex consensu magistri, et majoris partis corn munitatis ;" and it was held by Lord Eldon, upon these words and another clause which follows, that no election was valid in which the master did not concur.