The Case of Kings College.

Henry VI A.D. 1441Anno regni sui 19. Feb. 20 founded Kings College in Cambridge by Letters Patents wherein he granted power to five Commissioners or to yethe major part of them or of yethe survivors of them to make statutes for the College & to alter interpret or dispense wthwith those statutes or to make new ones during their lives or yethe lives of yethe survivors. But two years after at their motion when such Statutes were not yet made he by new Letters PatentsRot. Pat. 21 H. 6 parte 2da M. 4 revoked that their power of making them & placed it in the King Crown. And in case tho he in his life time should make such Statutes (wchwhich he did yet he reserved to himself during life the a power of altering interpreting or dispensing wthwith those he should make or of making new ones. Now is not the law, is that a power once in the crown remains in it for ever unless expresly granted away?

About the same timeAnno regni sui 19 Octob. 11. he founded also Eaton CollegeRot. Parl. 20 H. 6. N. 17 consisting of a Provost & others to be granted corrected deprived & removed according to Statutes & ordinances wchwhich he & his Heirs Kings of England should make; & declared itRot. Pat. 21 H. 6 parte 2da M 4 his pleasure that those two Colleges should agree in constitution as far as might be, especially as to their Provosts for uniting them in brotherly affection, & especially their Presidents, as they had none were supported by the authority of one founder so they should have yethe name or title of one dignity or office wthwithout difference & made yethe statutes for electing the Provosts alike his mind that those two Colleges should be alike.

Afterwards in yethe life time of Hen. VI, his successor Edw. IV inherited all his possessions & authority not only as King but by a right antecedent to yethe foundation of these Colleges granted himRot. Parl. 1 Edw 4. N. 11, 26. by Acts of Parliament. And by vertue of these Acts he took away all the lands & revenues of these Colleges, but soon afterrestored by his Letters Patents restored part of them & thereby acquired the title of ffounder & is their ffounder by Rot. Parl 33 H. 8 n. 42.Act of Parliament, as are also his successors. Tis said Fuller's Hist. of Cambridge.that he restored their lands on condition that they should acknowledg him their ffounder & write him so in their their Deeds.

And seing the King is their perpetual ffounder its reasonable he should have the same authority in these Colleges as in other Royall foundations; that is of interpreting, enlarging, overruling & even revoking their statutes & making new ones. For the statutes of such FoundationsSee yethe Letters Patents by wchwhich the statutes of yethe Vniversity were imposed & wherein Q.Queen EizEliz. distinguishes between their Privileges & their Statutes are not Privileges granted but laws commanded imposed by Letters mandatory, & therefore may be & sometimes have been revoked at yethe Kings pleasure. Q.Queen Elizabeth revoked the statutes of yethe Statu Vniversity twice & those of Trinity College once & imposed new ones by wchwhich they are now governed. She did not grant but only impose them by her Letters mandatory & therefore those societies never did account them of force against yethe King. In yethe Whence in yethe case of Father Francis they would not so much as urge them but insisted only on the Laws of yethe Land backt wthwith the Vicechancellours Oath to observe them. And of yethe same kind are yethe statutes of Kings College. For Hen. VI setled first in himself & then in the Trustees as was said & then in himself, a power not of giving & conveying & granting but of condendi, statuendi faciendi & stabiliendi hujusmodi statuta. Rot Pat. 21 H. 6. p. 2. m. 4.appoordeining appointing making & establishing these statutes. Tis the nature of things granted that they cannot be revoked without yethe consent of yethe person Granted to whom they are granted, but of Laws imposed that they may be repealed by the authority alone wchwhich made them. Nor doth the imposition of yethe broad Seal alter to th to any writing alter the nature of the contents but fortify them in their own kind.

By one of the Statutes of Kings College they are empowered to elect their Provost out of those & only those in orders who are or have been of their College & are to elect whom they shall think fittest of those. But this statute (by the tradition of yethe College) never took place. Henry VI put in two Provosts besides yethe first & his successors have ever since followed his example; the College in order to the Kings nomination ever giving him notice of the voidance & electing whom he hath nominated. Wh Whence Whence K.King Iames I above 80 years ago claimed it his right by custome to nominate. Nor was the Kings right in this point ever yet disputed.

Tis said that the College upon voidances hath usually recommended some persons to yethe King as qualified by their statutes & that the King hath nominated one of them & therefore the usage hath been against nominating persons unqualified. But the King's favours ought not to be turned against him, especially since he hath sometimes nominated persons unqualified.

SrSir Iohn Cheek a Lay-man of St Iohn's College was nominated by Edw. 6 & received wthwithout dispute, the College returning a gratulatory letter of thanks upon his nomination.

SrSir Tho. Page a Lay-man was nominated by Charles II & elected without any opposition & some of yethe Electors are still living & yethe Viceprovost who admitted him is still Viceprovost.

Every person nominated by the King is, to as many of the Electors as do not think him the most worthy, unqualified by the statutes: & therefore the College in recommending to yethe King more persons then one (whereof they could account but one the most worthy) hath always allowed the King a right of nominating persons in some respect unqualified.

In Eaton the King hath not only constantly nominated the Provost but often nominated him from others places then the Statutes appoint, & sometimes nominated a Lay-man.

And as custome so reason is for yethe King in this point. The statutes authorize yethe College to elect only persons so qualified as they prescribe but do not bar the King from nominating authorizing them to elect others.

From all wchwhich these Conclusions seem to follow.

1. That the King hath the same authority in Kings College College as in other royal foundations, that is of interpreting & altering their Statutes & making new ones –

2. That yethe King without a dispensation may grant authority to Kings College to elect such persons as they are not authorized by their Statutes to elect.

3. That the King hath also a right by custome to nominate yethe Provost & that this from a legal right wchwhich the first Kings had & exercised as Founders & wchwhich their successors inherited by law.

4 That custome alone puts this interpretation upon yethe statutes, That they are to elect as is there prescribed unless when their Founder gives them authority to elect otherwise.

Mr KenvillKinviss in Bow lane