National Anti-Vivisection Society v Inland Revenue Commissioners
[1947] 2 All ER 217(Judgment by: Lord Simonds)
National Anti-Vivisection Society
v Inland Revenue Commissioners
Judges:
Viscount Simon
Lord Wright
Lord Porter
Lord SimondsLord Normand
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 upon the income of its investments. The Commissioners for the Special Purposes of the Income Tax Acts, thinking that they were bound by authority so to do, answered this question in the affirmative. From their decision the Commissioners of Inland Revenue appealed to MacNaghten J who reversed it, holding that the society is not a body of persons established for charitable purposes only. His judgment was upheld by the Court of Appeal (Mackinnon and Tucker LJJ, Lord Greene MR dissenting). Hence the appeal of the society to this House. I think that it is important to set out the decision contained in the Case stated by the commissioners. It is amply supported by the findings of fact which therein appear. The material parts of the decision are as follows:
'The object of the society, as set out in its book of rules, is stated to be "to awaken the conscience of mankind to the iniquity of torturing animals for any purpose whatever; to draw public attention to the impossibility of any adequate protection from torture being afforded to animals under the present law; and so to lead the people of this country to call upon Parliament totally to suppress the practice of vivisection." An explanatory resolution was passed by the council of the society on Feb. 9, 1898, in the following terms:-
- "The council affirm that, while the demand for the total abolition of vivisection will ever remain the object of the National Anti-Vivisection Society, the society is not thereby precluded from making efforts in Parliament for lesser measures having for their object the saving of animals from scientific torture."
The quotations set out above are taken from the book of rules of the society as reprinted in 1938. We are satisfied that the main object of the society is the total abolition of vivisection, including in that term all experiments on living animals, whether calculated to inflict pain or not, and (for that purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether. Dr. Fielding-Ould, in his evidence before us, suggested that there were some experiments on living animals to which the society did not object, and that the society was only opposed to such experiments as caused pain and suffering to the animals, but we find it difficult to reconcile this evidence with the statements contained in the literature produced by the society, or indeed with the speeches of Dr. Fielding-Ould, as reported in The Animals' Defender, a paper of which he is the editor. We are satisfied that the members of the society are actuated by an intense love of animals, and that the work of the society is to a large extent directed towards the prevention of cruelty to animals. Part of its propaganda literature is directed towards inculcating a love of animals in the young. A number of very distinguished men were called as witnesses by the Crown with the object of proving the great benefits which had accrued to the public by reason of the medical and scientific knowledge which had been obtained through experiments on living animals. We think it has been proved conclusively that:-( a ) a large amount of present day medical and scientific knowledge is due to experiments on living animals; ( b ) many valuable cures for and preventatives of disease have been discovered and perfected by means of experiments on living animals, and much suffering both to human beings and to animals has been either prevented or alleviated thereby. We are satisfied that if experiments on living animals were to be forbidden ( i.e ., if vivisection were abolished) a very serious obstacle would be placed in the way of obtaining further medical and scientific knowledge calculated to be of benefit to the public. We were very impressed by the evidence of Major General Poole, Director of Pathology at the War Office, as to the great value of experiments on living animals in connection with the successful carrying on of the present war by the maintenance of the health of the troops and the avoidance or minimizing of many diseases to which soldiers in the field are particularly liable. There was no express evidence before us that any public benefit in the direction of the advancement of morals and education amongst men (or in any other direction) would or might result from the society's efforts to abolish vivisection, but if it must be assumed that some such benefit would or might so result, and if we conceived it to be our function to determine the case on the footing of weighing against that assumed benefit the evidence given before us, and of forming a conclusion whether, on balance, the object of the society was for the public benefit, we should hold, on that evidence, 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, with the result that the society could not be regarded as a charity. But, upon the authorities, we regard ourselves as precluded from so holding.'
The commissioners then referred to the authorities which it will be my task to examine and came to the conclusion which I have already stated. 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 Lord Greene MR. 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 Lord Greene MR cites in his judgment ( [1946] 1 All ER 214 ), a passage from the speech of Lord Parker in Bowman v Secular Society Ltd ( [1917] AC 442 ):
'... 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 though 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 how 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 Lord Greene MR and from Chitty J whose decision 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. The passage which is at p 176 [in the original 1898 ed] is worth repeating at length:
'It is a common practice for a number of individuals amongst us to form an association for 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 patriae 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 falls 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 Comrs of Inland Revenue v Temperance Council , the principle was clearly recognised by Rowlatt J as it was in Re Hood , ([1931] 1 Ch 250, 252). 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 upon the hypothetical example of a private enabling Act, which was suggested in the course of the argument. I do not regard 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, ( [1891] AC 580 ). Undoubtedly the favour shown by the civil law to gifts in pius usus had some part in it. So too had the conception, to which I have already referred, that the King as parens patriae 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. He says at p 5:
'One by one 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 Da 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 , Sir W Grant MR 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 patriae intervened pro bono publico for the protection of charities, what room is there for the doctrine, which has found favour with Lord Greene MR 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 of 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 "educational" 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 misreading of Lord MacNaghten's speech in Pemsel's case (one was pointed out 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 upon doubtful evidence the avowed benevolent intention of a donor. But, my Lords, the next step is one that I cannot take. Where upon 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 Re Hummeltenberg , (1923 1 Ch 242). He said:
'In my opinion 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 Re Foveaux , and Re Cranston which were the mainstay of the appellant's argument. 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 ([1895] 2 Ch 507):
'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 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 ( ibid 503):
'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 himself in this very case? He said ([1895] 2 Ch 504):
'After all, 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 upon the authority of such cases as University of London 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 LJ in Re Wedgewood ([1915] 1 Ch 122). 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 LJJ 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 upon 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 purposes of the society.
Lord Greene MR from whose opinion on a broad question of principle such as this is I differ with great reluctance, supports his decision by reference to such cases as A-G v Marchant , and Re Campden Charities . In the former case a testator had, in the year 1640, left real estate upon trust to pay £50 per annum to four charitable objects, viz , £20 for the salary of a schoolmaster, £20 to a college for the purchase of books and £5 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 £50 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 A-G v Dean & Canons of Windsor (8 HL Cas 452) 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 (LR 3 Eq 430):
'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 ( ibid 431):
'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 pauperise 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 contradictory to 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.
Re Campden Charities is an authority of some importance in a difficult branch of the law of charity relating to the cy-pres application of charitable funds and the jurisdiction of the Charity Commissioners, and it is often cited in that connection. 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 £10, 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. Jessel MR said (18 ChD 324):
'The habits of society 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 ( ibid , 327):
'With our present ideas on the subject, and our present experience, which has been gathered as the result of very careful enquiries by various committees and commissions on the state of the poor in England, we know that the extension of doles is simply an 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-pres 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 enquiry to say, eg, 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 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 MR 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 ([1929] 1 Ch 572):
'Who is to decide these questions? I agree with Holmes, L.J., that the answer does not depend on the view entertained by any individual-"either by the judge who is to decide the question, or by the person who makes the gift": 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 Re Hummeltenberg . The same view is reiterated by that learned judge (Russell LJ as he then was), at p 588:
'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 repellant alike to common sense and to the principles upon which the equitable jurisdiction has been founded.
I ought not to let Re Cranston ([1898] 1 IR 431) 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 society properly relied. But they must not be pressed too far. Thus when Porter MR (who first heard the case) felt bound "to give effect to he intention unless there is coercive reason to the contrary" ( ibid , 433), it is at least open to doubt whether he would not have been coerced to a contrary view if he had found upon 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 LC perhaps went further. For he observed ( ibid , 445) that, though the vast majority 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 and 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 upon evidence whether the test of charitable purpose was satisfied. Fitzgibbon LJ uses words which I think it worth citing at length. He says ( ibid , 446):
'What 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 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 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 upon relevant evidence. I do not understand Fitzgibbon LJ to support the view of the society that, given a measure of public advantage, the public disadvantage can be ignored. Walker LJ appears more strongly to favour the society. He says ( ibid , 451):
'The idea 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 was 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 LJ 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 ( ibid , 454, 455):
'... 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 stand 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 anti-vivisection claims. Of anti-vivisection he says ( ibid , 458):
'... 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. It 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. I have dealt at some length with Re Cranston , partly because it was relied on by the society, 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 upon such evidence as might to-day be available a similar conclusion would be reached. I use it for the purpose of emphasising 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 Lord Greene MR which I ought not to ignore. He says ( [1946] 1 All ER 212 ):
'I do not see 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 MR in Re Campden Charities (18 ChD 324). A bequest in the will of a testator dying in 1700 might be held valid upon the evidence then before the court, but, upon 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-pres 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 Lord Greene MR 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 [in Williams (Sir HJ) Trust, Trustees v Inland Revenue Comrs ( [1947] 1 All ER 519 )] 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 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.