National Anti-vivisection Society v Inland Revenue Commissioners
[1948] A.C. 31(Judgment by: Lord Simonds)
Between: National Anti-vivisection Society - Appellant
And: Inland Revenue Commissioners - Respondents
Judges:
Viscount Simon
Lord Wright
Lord Porter
Lord SimondsLord Normand
Subject References:
CHARITY
REVENUE
INCOME TAX
EXEMPTION OF CHARITIES
Body 'established for charitable purposes only'
Abolition of vivisection
Legislative References:
Income Tax Act, 1918 (8 & 9 Geo. 5, c. 40) - s. 37, sub-s. 1 (b)
Judgment date: 2 July 1947
Judgment by:
Lord Simonds
My Lords, the question raised in this appeal is whether the National Anti-Vivisection Society, which I will call "the society," is a body of persons established for charitable purposes only within the meaning of s. 37 of the Income Tax Act, 1918, and, accordingly, entitled to exemption from income tax on the income of its investments. Before I refer to the cases and to the judgments in the courts below I will state the two questions which appear to me to be raised in this appeal. The first and shorter point is whether a main purpose of the society is of such a political character that the court cannot regard it as charitable. To this point little attention was directed in the courts below. It is mentioned only in the judgment of the learned Master of the Rolls. As will appear in the course of this opinion, it is worthy of more serious debate.
The second point is fundamental. It is at the very root of the law of charity as administered by the Court of Chancery and its successor, the Chancery Division of the High Court of Justice. It is whether the court, for the purpose of determining whether the object of the society is charitable may disregard the finding of fact that any assumed public benefit in the direction of the advancement of morals and education was far outweighed by the detriment to medical science and research and consequently to the public health which would result if the society succeeded in achieving its object, and that on balance, the object of the society, so far from being for the public benefit, was gravely injurious thereto. The society says that the court must disregard this fact, arguing that evidence of disadvantages or evils which would or might result from the stopping of vivisection is irrelevant and inadmissible.
My Lords, on the first point the learned Master of the Rolls cites in his judgment a passage from the speech of Lord Parker in Bowman v. Secular Society, Ld.:
"A trust for the attainment of political objects has always been held invalid, not because it is illegal.... but because the court has no means of judging whether a proposed change in the law will or will not be for the public benefit."
Lord Parker is here considering the possibility of a valid charitable trust and nothing else and when he says "has always been held invalid" he means "has always been held not to be a valid charitable trust."
The learned Master of the Rolls found this authoritative statement upon a branch of the law, with which no one was more familiar than Lord Parker, to be inapplicable to the present case for two reasons, first, because he felt difficulty in applying the words to "a change in the law which is in common parlance a 'non-political' question," and secondly, because he thought they could not in any case apply, when the desired legislation is "merely ancillary to the attainment of what is ex hypothesi a good charitable object."
My Lords, if I may deal with this second reason first, I cannot agree that in this case an alteration in the law is merely ancillary to the attainment of a good charitable object. In a sense no doubt, since legislation is not an end in itself, every law may be regarded as ancillary to the object which its provisions are intended to achieve. But that is not the sense in which it is said that a society has a political object. Here the finding of the commissioners is itself conclusive.
"We are satisfied,"
they say,
"that the main object of the society is the total abolition of vivisection.... and (for that purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether."
This is a finding that the main purpose of the society is the compulsory abolition of vivisection by Act of Parliament. What else can it mean? And now else can it be supposed that vivisection is to be abolished? Abolition and suppression are words that connote some form of compulsion. It can only be by Act of Parliament that that element can be supplied. Upon this point I must with respect differ both from the learned Master of the Rolls and from Chitty J. whose decision in In re Foveaux I shall later consider. Coming to the conclusion that it is a main object, if not the main object, of the society, to obtain an alteration of the law, I ask whether that can be a charitable object, even if its purposes might otherwise be regarded as charitable.
My Lords, I see no reason for supposing that Lord Parker in the cited passage used the expression "political objects" in any narrow sense or was confining it to objects of acute political controversy. On the contrary he was, I think, propounding familiar doctrine, nowhere better stated than in a text-book, which has long been regarded as of high authority but appears not to have been cited for this purpose to the courts below (as it certainly was not to your Lordships), Tyssen on Charitable Bequests, 1st ed. The passage which is at p. 176, is worth repeating at length:
"It is a common practice for a number of individuals amongst us to form an association for the purpose of promoting some change in the law, and it is worth our while to consider the effect of a gift to such an association. It is clear that such an association is not of a charitable nature.
However desirable the change may really be, the law could not stultify itself by holding that it was for the public benefit that the law itself should be changed. Each court in deciding on the validity of a gift must decide on the principle that the law is right as it stands. On the other hand, such a gift could not be held void for illegality."
Lord Parker uses slightly different language but means the same thing, when he says that the court has no means of judging whether a proposed change in the law will or will not be for the public benefit. It is not for the court to judge and the court has no means of judging.
The same question may be looked at from a slightly different angle. One of the tests, and a crucial test, whether a trust is charitable, lies in the competence of the court to control and reform it. I would remind your Lordships that it is the King as parens patri' who is the guardian of charity and that it is the right and duty of his Attorney-General to intervene and inform the court, if the trustees of a charitable trust fall short of their duty. So too it is his duty to assist the court, if need be, in the formulation of a scheme for the execution of a charitable trust. But, my Lords, is it for a moment to be supposed that it is the function of the Attorney-General on behalf of the Crown to intervene and demand that a trust shall be established and administered by the court, the object of which is to alter the law in a manner highly prejudicial, as he and His Majesty's Government may think, to the welfare of the state? This very case would serve as an example, if upon the footing that it was a charitable trust it became the duty of the Attorney-General on account of its maladministration to intervene.
There is undoubtedly a paucity of judicial authority on this point. It may fairly be said that De Themmines v. De Bonneval, to which Lord Parker referred in Bowman's case, turned on the fact that the trust there in question was held to be against public policy. In Inland Revenue Commissioners v. Temperance Council of the Christian Churches of England and Wales, the principle was clearly recognized by Rowlatt J., as it was in In re Hood. But in truth the reason of the thing appears to me so clear that I neither expect nor require much authority. I conclude upon this part of the case that a main object of the society is political and for that reason the society is not established for charitable purposes only. I would only add that I would reserve my opinion on the hypothetical example of a private enabling Act, which was suggested in the course of the argument. I do not regard In re Villers-Wilkes as a decision that a legacy which had for its main purpose the passing of such an Act is charitable.
The second question raised in this appeal, which I have already tried to formulate, is of wider importance, and I must say at once that I cannot reconcile it with my conception of a court of equity that it should take under its care and administer a trust, however well-intentioned its creator, of which the consequence would be calamitous to the community. I would not weary your Lordships with a historical excursion into the origin of the equitable jurisdiction in matters of charity, one of the "heads of equity" as Lord Macnaghten called it in Pemsel's case. Undoubtedly the favour shown by the civil law to gifts in pios usus had some part in it. So too had the conception, to which I have already referred, that the King as parens patri' took under his special care charitable gifts as he took also infants and lunatics.
But, whatever its origin, from the fact of its existence arose the necessity of definition. And so both before and after the Statute of 43 Elizabeth it became the duty of the Court of Chancery to determine what objects were and what were not charitable. I will refer to Tyssen again at p. 5,
"One by one,"
he says,
"the question of the validity of such trusts was brought before the Court of Chancery....
It considered only this. Having regard to all legislative enactments and general legal principles is it or is it not for the public benefit that property should be devoted for ever to fulfilling the purpose named? If the court considered that it was not for the public benefit, it held the trust altogether void...."
The learned author proceeds to illustrate his statement by reference to various trusts which the court held to be invalid, as trusts to say masses for the donor's soul, to keep in repair a tomb outside a church, or to teach religious opinions for which penalties were inflicted by statute. The task of the court was in some degree simplified by the Statute of Elizabeth, which made it clear that at least the purposes enumerated in the preamble were charitable, but from the beginning it appears to have been assumed that the enumeration was not exhaustive and that those purposes also were charitable which could be fairly regarded as within its spirit and intendment. This view enabled the court to extend its protection to a vast number of objects which appeared both to the charitable donor and to it to be for the benefit of the community.
Nowhere perhaps did the favour shown by the law to charities exhibit itself more clearly than in the development of the doctrine of general charitable intention, under which the court, finding in a bequest (often, as I humbly think, on a flimsy pretext) a general charitable intention, disregarded the fact that the named object was against the policy of the law and applied the bequest to some other charitable purpose. Thus in De Costa v. De Pas Lord Hardwicke applied a bequest for instructing the people in the Jewish religion (then regarded as an illegal purpose) for the benefit of the Foundling Hospital, and in Cary v. Abbot Grant M.R. directed that the residue of an estate, which had been bequeathed for the instruction of children in the Roman Catholic faith, should be applied as the King by Sign Manual should direct. I refer to this doctrine in a brief review of the equitable jurisdiction only because, as I think, it has been the cause of some confusion in the argument which has been presented to the House. It would be very relevant, if the society, conceding that the campaign against vivisection was not a charitable purpose, argued that there was yet a general charitable intention and that its funds were applicable to some other charitable purpose. That is not the argument. If it were, I should not entertain it, though it might in an earlier age have succeeded.
My Lords, this then being the position, that the court determined "one by one" whether particular named purposes were charitable, applying always the overriding test whether the purpose was for the public benefit, and that the King as parens patri' intervened pro bono publico for the protection of charities, what room is there for the doctrine which has found favour with the learned Master of the Rolls and has been so vigorously supported at the bar of the House, that the court may disregard the evils that will ensue from the achievement by the society of its ends? It is to me a strange and bewildering idea that the court must look so far and no farther, must see a charitable purpose in the intention of the society to benefit animals and thus elevate the moral character of men but must shut its eyes to the injurious results to the whole human and animal creation.
I will readily concede that, if the purpose is within one if the heads of charity forming the first three classes in the classification which Lord Macnaghten borrowed from Sir Samuel Romilly's argument in Morice v. Bishop of Durham, the court will easily conclude that it is a charitable purpose. But even here to give the purpose the name of "religious" or "education" is not to conclude the matter. It may yet not be charitable, if the religious purpose is illegal or the educational purpose is contrary to public policy. Still there remains the overriding question: Is it pro bono publico? It would be another strange mis-reading of Lord Macnaghten's speech in Pemsel's case (one was pointed out in In re Macduff) to suggest that he intended anything to the contrary. I would rather say that, when a purpose appears broadly to fall within one of the familiar categories of charity, the court will assume it to be for the benefit of the community and, therefore, charitable, unless the contrary is shown, and further that the court will not be astute in such a case to defeat on doubtful evidence the avowed benevolent intention of a donor.
But, my Lords, the next step is one that I cannot take. Where on the evidence before it the court concludes that, however well-intentioned the donor, the achievement of his object will be greatly to the public disadvantage, there can be no justification for saying that it is a charitable object. If and so far as there is any judicial decision to the contrary, it must, in my opinion, be regarded as inconsistent with principle and be overruled. This proposition is clearly stated by Russell J. in In re Hummeltenberg. "In my opinion," he said, "the question whether a gift is or may be operative for the public benefit is a question to be answered by the court by forming an opinion upon the evidence before it." This statement of that very learned judge follows immediately upon some observations on the cases of In re Foveaux and In re Cranston which were the mainstay of the appellant's argument.
In In re Foveaux a testatrix had bequeathed legacies to two societies described briefly by Chitty J. as the two defendant anti-vivisection societies, one of them being the appellant society under the name which it then bore. The question as stated by the learned judge was whether they were charities in the technical sense in which the term "charity" is used in law. That is the same question as that which your Lordships have to decide here. Chitty J. decided that they were charities. His judgment concludes with these words:
"The purpose of these societies, whether they are right or wrong in the opinions they hold, is charitable in the legal sense of the term. The intention is to benefit the community; whether, if they achieved their object, the community would, in fact be benefited is a question on which I think the court is not required to express an opinion. The defendant societies may be near the border line, but I think they are charities."
These words, which appear to me to be in direct opposition to the passage that I have cited from the judgment of Russell J., in effect repeat what Chitty J. said earlier in his judgment:
"In determining this question of charity the court does not enter into or pronounce any opinion on the merits of the controversy which subsists between the supporters and opponents of the practice of vivisection. It stands neutral."
My Lords, in the passages that I have cited from the judgments of Chitty J. and Russell J. the issue is clear cut. Which of them is right? Your Lordships will now see why I have thought it proper, however briefly, to consider the origin of this equitable jurisdiction. For at once this question arises: If, indeed, Chitty J. is right, if it is not the duty of the court to express an opinion whether the community will in fact be benefited, should the object of those, who intend to benefit it, be achieved, at what point in its long history did it cease to be its duty?
One by one the purposes enumerated in the preamble to the Statute of Elizabeth were held to be charitable by a court which performed just this duty and applied this overriding test. And since the statute the court has performed the same duty in determining whether objects alleged to be charitable are within the spirit and intendment of the preamble. May I not cite Chitty J. himslf in this very case?
"After all,"
he said,
"the best that can be done is to consider each case as it arises, upon its own special circumstances."
Is there a more special circumstance than this, that the fact is proved that
"on balance the object of the society so far from being for the public benefit, was gravely injurious thereto?"
Nor do I understand why, in his concluding words, Chitty J. said that the defendant societies might be near the border line, if he looked only at their intention and formed no opinion upon the result of their efforts if they were successful. For there could be no doubt on the authority of such cases as London University v. Yarrow and Marsh v. Means, that a gift for the protection of animals is prima facie a charitable gift for the reason later stated by Swinfen Eady L.J. in In re Wedgwood. Upon this line of authority Chitty J. founded his judgment and, if intention only was looked at, the defendant societies could fairly claim to be in the heart of the province of charity. If the learned judge had a doubt, it could only have been due to the passing thought that perhaps result as well as intention was material. It is worthy of notice that the same doubt, so strong indeed that final opinion was reserved, was entertained by Cotton, Lindley and Bowen L.JJ. in In re Douglas. In that case it was unnecessary to determine whether the same anti-vivisection society in its then form was a charity. But the learned lords justices expressly reserved their opinion on the point. I see no reason why they should have done so, unless they held, as I invite your Lordships to hold, that injury to the community must be weighed with the ostensible charitable purpose of the society.
The learned Master of the Rolls, from whose opinion upon a broad question of principle such as this is I differ with great reluctance, supports his decision by reference to such cases as Attorney-General v. Marchant and In re Campden Charities. In the former case a testator had, in the year 1640, left real estate upon trust to pay 50l. per annum to four charitable objects, namely, 20l. for the salary of a schoolmaster, 20l. to a college for the purchase of books and 5l. each to the poor of two parishes, with a direction that any deficiency should be borne rateably. It appears to have been assumed that any excess of the rents and profits of the real estate over 50l. was applicable for charitable purposes.
There was, in fact, a substantial surplus and the question submitted to the court was whether it should be divided rateably between the charities named in the will or should be appropriated for the benefit of one or more of them to the exclusion of the others. Kindersley V.-C. after referring to the rule of law laid down by Lord Kingsdown in Attorney-General v. Dean and Canons of Windsor, that the accretion was prima facie to be applied and apportioned pro rata among the objects of the testator's bounty, but subject to the discretion of the court to be exercised in certain cases and within certain limits, thus expressed himself:
"So, I apprehend, if it should appear that the directions of the testator with respect to a particular object, if carried out in these days, so far from being beneficial, would be detrimental to the objects he meant to benefit: in that case, a good reason would exist for exercising the discretion."
Then he applies this principle to the gifts to the poor of the two parishes and says,
"I think, by common consent, it is established at the present day that there is nothing more detrimental to a parish, and especially to the poor inhabitants of it, than having stated sums periodically payable to the poor of that parish by way of charity. The poorest class of all is not allowed to participate in such charities, because the court, in such cases, always excludes those who are in receipt of parochial relief, inasmuch as that would be a relief to the poor rates and so a charity to the ratepayers and not to the poor. The only effect of such gifts is to pauperize the parish...."
Accordingly the Vice-Chancellor declined to increase pro rata the gifts to the poor and directed that the whole of the surplus revenue should be divided between the other two objects of the testator's bounty. My Lords, I find in this decision nothing contradictoryto the principles that I have asserted. A purpose deemed charitable in 1640 was no longer deemed charitable in 1866; therefore the court declined to give effect to it in regard to surplus revenues. It does not follow from this that, if in 1640 the court had thought that nothing could be more detrimental to a parish than such doles, it would, nevertheless, have supported the gift as a good charitable gift.
The case of In re Campden Charities is an authority of some importance in a difficult branch of the law of charity relating to the cy-prss application of charitable funds and the jurisdiction of the charity commissioners and it is often cited in that connexion. Substantially the same question had arisen as in Attorney-General v. Marchant. There, too, a bequest had been made for the purchase of lands of the annual value of 10l. half of which was to be applied towards the better relief of the most poor and needy people of good life and conversation in the parish of Kensington. The value of the lands so purchased had greatly increased; so had the parish of Kensington. It became necessary to establish a scheme for the administration of the charity, and the charity commissioners did so. Taking the view expressed by Kindersley V.-C. that doles to the poor were detrimental to the parish they in substance diverted to educational purposes a gift which was in part eleemosynary. The Court of Appeal held that they were entitled to do so.
"The habits of society,"
said Jessel M.R.,
"have changed, and not only men's ideas have changed, but men's practices have changed, and in consequence of the change of ideas there has been a change of legislation; laws have become obsolete or have been absolutely repealed, and habits have become obsolete and have fallen into disuse, which were prevalent at the times when these wills were made,"
and, later,
"with our present ideas on the subject, and our present experience, which has been gathered as the result of very careful inquiries by various committees and commissions on the state of the poor in England, we know that the extension of doles is simply the extension of mischief."
Again, my Lords, I find nothing in this reasoning which is opposed to what I have said. If to-day a testator made a bequest for the relief of the poor and required that it should be carried out in one way only and the court was satisfied by evidence that that way was injurious to the community, I should say that it was not a charitable gift, though three hundred years ago the court might upon different evidence or in the absence of any evidence have come to a different conclusion. I have been careful to add the condition that the testator required the gift to be carried out in one way only. For I would again remind your Lordships how much confusion has been introduced by the doctrine of general charitable intention, which is itself the substantial justification of the cy-prss doctrine.
The two cases to which I have last referred both fall within one of the three determinate categories in Lord Macnaghten's classifications, the relief of poverty. In a case, which it is sought to bring within the indeterminate fourth category, it is, I think, even more difficult to pause at a certain stage in the inquiry, to say, for example, that the purpose is to protect animals, that kindness to animals is conducive to the moral advancement of man, and to conclude that the purpose is charitable without looking to the end of the matter. Thus, in In re Grove-Grady, a testatrix left her residuary estate to trustees to found an institution which should have as one of its objects the acquisition of land for the provision of refuges for the preservation of "all animals birds or other creatures not human."
The Court of Appeal by a majority held that the trust not having been shown to be for purposes beneficial to the community was not a good and valid charitable trust. It is instructive to see why not. Lord Hanworth M.R. thus states the law. Having formulated the test in the two familiar questions
- (1.)
- is the trust for a purpose beneficial to the community,
- (2.)
- if it satisfies that first test, is it charitable,
he then asks,
"Who is to decide these questions? I agree with Holmes L.J. that the answer does not depend upon the view entertained by any individual 'either by the judge who is to decide the question or by the person who makes the gift': In re Cranston. The test is to be applied from evidence of the benefit to be derived by the public or a considerable section of it, though a wide divergence of opinion may exist as to the expediency, or utility of what is accepted generally as beneficial. The court must decide whether benefit to the community is established."
The learned Master of the Rolls then expressly approved the passage that I have cited from the judgment of Russell J. in In re Hummeltenberg. The same view is reiterated by that learned judge (Russell L.J., as he then was),
"In my opinion, the court must determine in each case whether the trusts are such that benefit to the community must necessarily result from their execution."
Counsel for the society sought to distinguish this case on the ground that the initial step was not there taken; there was not found to be any benefit to the community, so that no question arose of weighing advantage against disadvantage. In this view presumably however slight the benefit, the court must disregard injury however great. Such a view is repellent alike to common sense and to the principles upon which the equitable jurisdiction has been founded.
I ought not to let the case of In re Cranston pass unnoticed. In that case the court had to consider whether a bequest to two vegetarian societies was a good charitable bequest, and, though there was no such evidence of injury to the community arising from the activities of the societies as was adduced in this case, yet there were observations in the judgments of the very learned judges who took part in the decision upon which counsel for the appellant properly relied. But they must not be pressed too far. Thus, when Porter M.R. (who first heard the case) felt bound "to give effect to the intention unless there is some coercive reason to the contary," it is at least open to doubt whether he would not have been coerced to a contrary view if he had found on the evidence that injury to the community was the necessary result of the societies' work. It may indeed be said that even the possibility of a coercive reason to the contrary is fatal to the contention that the court may not look to the end of the chapter.
Lord Ashbourne L.C. perhaps went further. For he observed that though the vast majority might be opposed to it and it might be disapproved by medical men, yet he did not feel at liberty to sit in judgment upon objects or purposes or to measure the success which they might then have or might thereafter attain to. If by this the learned Lord Chancellor meant that it was not a matter for his individual opinion, I should not dissent, but I cannot accept it, if he meant that the court could abrogate its duty of deciding on evidence whether the test of charitable purpose was satisfied. Fitzgibbon L.J. uses words which I think worth citing at length.
"What,"
he says,
"is the tribunal which is to decide whether the object is a beneficent one? It cannot be the individual mind of a judge, for he may disagree, toto coelo, from the testator as to what is or is not beneficial.
On the other hand, it cannot be the vox populi, for charities have been upheld for the benefit of insignificant sects and of peculiar people. It occurs to me that the answer must be - that the benefit must be one which the founder believes to be of public advantage and his belief must be at least rational and not contrary either to the general law of the land, or to the principles of morality."
Your Lordships see how inevitably some qualification slips in. Here we have the test of rationality, of conformity with the general law, of the principles of morality. These are tests which the court must examine and, so far as they depend on facts, come to a conclusion on relevant evidence. I do not understand Fitzgibbon L.J. to support the view of the appellant that, given a measure of public advantage, the public disadvantage can be ignored. Walker L.J. appears more strongly to favour the appellant.
"The idea,"
he says,
"may be erroneous and may be visionary, but it was entertained honestly by the giver, and her gift was designed for the benefit of mankind, and I think it is charitable."
I can hardly think that the learned lord justice intended to say that the honest opinion of a donor is conclusive. At least an exception must be made in the case of an illegal purpose or a purpose contrary to public policy. The question here, with which he did not purport to deal, is whether it is as fatal to the charitable nature of a gift that it is shown specifically to be to the public detriment as that it is regarded generally as contrary to public policy. From the dissenting judgment of Holmes L.J. your Lordships may get some assistance. That learned lord justice is careful to say that there is nothing illegal or contrary to public policy in the propagation of the doctrines of vegetarianism. The question remained whether the object of the societies was charitable and after stating that the object must be one by which the public, or a section of the public, benefits, the lord justice proceeds:
"But what is the test or standard by which a particular gift is to be tried with a view of ascertaining whether it is beneficial in this sense? I am of opinion that it does not depend upon the view entertained by any individual - either by the judge who is to decide the question, or by the person who makes the gift."
And he answers the question by saying,
"There is probably no purpose that all men would agree is beneficial to the community: but there are surely many purposes which everyone would admit are generally so regarded, although individuals differ as to their expediency or utility. The test or standard is, I believe, to be found in this common understanding."
He then applies this standard to the gift there in question, and, applying it, finds that the object does not benefit mankind and therefore is not charitable. It is, I think, instructive to see how he contrasts the vegetarian and the antivivisection claims. Of anti-vivisection he says:
"There is a great body of well-informed opinion, holding that it would be for the true interests of mankind to put an end to it [i.e., vivisection] altogether. I think that there is no analogy between a practice such as this, pursued by only a few individuals, attended with the severest suffering, and productive of very doubtful benefit, and the universal habit of killing animals for human food in a manner that causes at the most but momentary pain."
It may well be that if the finding of the special commissioners in this case had been in similar terms, I should accede to the society's claim. But the value of the observations of the lord justice is that he looks first and last to the true interests of mankind. That is the test. Be the intention of the donor what it will, let him label his gift by what name he likes, he cannot draw a line and say to the court that it shall go thus far and no farther. My Lords, I have dealt at some length with the case of In re Cranston, partly because it was relied on by the appellant, partly because it is, I think, one of the most important cases in this branch of the law of charity. I do not express any opinion whether it was rightly decided. Still less do I express an opinion whether on such evidence as might to-day be available a similar conclusion, would be reached. I use it for the purpose of emphasizing a view, too often, I fear, reiterated, that the court must still in every case determine by reference to its special circumstances whether or not a gift is charitable.
My Lords, what I have said is enough to conclude this case. But there is an important passage in the judgment of the Master of the Rolls, which I ought not to ignore.
"I do not see,"
he says,
"how at this time of day it can be asserted that a particular exemplification of those objects is not beneficial merely because in that particular case the achievement of those objects would deprive mankind of certain consequential benefits however important those benefits may be. If this were not so, it would always be possible, by adducing evidence which was not before the court on the original occasion to attack the status of an established charitable object to the great confusion of trustees and all others concerned.
Many existing charities would no doubt fall if such a criterion were to be adopted."
I venture with great respect to think that this confuses two things. A purpose regarded in one age as charitable may in another be regarded differently. I need not repeat what was said by Jessel M.R. in In re Campden Charities. A bequest in the will of a testator dying in 1700 might be held valid on the evidence then before the court but on different evidence held invalid if he died in 1900. So, too, I conceive that an anti-vivisection society might at different times be differently regarded. But this is not to say that a charitable trust, when it has once been established can ever fail. If by a change in social habits and needs, or, it may be, by a change in the law the purpose of an established charity becomes superfluous or even illegal, or if with increasing knowledge it appears that a purpose once thought beneficial is truly detrimental to the community, it is the duty of trustees of an established charity to apply to the court or in suitable cases to the charity commissioners or in educational charities to the Minister of Education and ask that a cy-prss scheme may be established. And I can well conceive that there might be cases in which the Attorney-General would think it his duty to intervene to that end.
A charity once established does not die, though its nature may be changed. But it is wholly consistent with this that in a later age the court should decline to regard as charitable a purpose, to which in an earlier age that quality would have been ascribed, with the result that (unless a general charitable intention could be found) a gift for that purpose would fail. I cannot share the apprehension of the Master of the Rolls that great confusion will be caused if the court declines to be bound by the beliefs and knowledge of a past age in considering whether a particular purpose is to-day for the benefit of the community. But if it is so, then I say that it is the lesser of two evils.
My Lords, in a speech, which I recently delivered in this House, I had occasion to say that the cases decided on this branch of the law were legion in number and were not easy to reconcile. This is the first time, so far as I am aware, that the issue in the form in which I have endeavoured to state it has reached this House. If your Lordships are satisfied that the law as laid down by Russell J. (as he then was) in In re Hummeltenberg is correct, and the decision of this House confirms it, I believe that it will be a useful landmark in the history of the law of charity.