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Cite as: [1947] UKHL 4, [1948] AC 31

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JISCBAILII_CASE_TRUSTS

Die Mercurii, 2° Julii, 1947

Parliamentary Archives,
HL/PO/JU/4/3/986

Viscount
Simon

Lord
Wright

Lord
Porter

Lord
Simonds

Lord
Nornand

THE NATIONAL ANTI-VIVISECTION SOCIETY

v.
THE COMMISSIONERS OF INLAND REVENUE

Viscount Simon

MY LORDS,

In this very important and most difficult case, going as it does to the
foundations of the conception of one kind of charitable trust, I have
read and re-read the opinion which has been prepared by my noble and
learned friend Lord Simonds. Notwithstanding views to a different
effect which are to be found in the minority judgment of the Master
of the Rolls in the Court of Appeal, and in another opinion about to be
pronounced in this House, I cannot escape from the course of argument
contained in Lord Simonds' opinion, or from the conclusion at which
he arrives. I therefore move that this appeal be dismissed with costs.

[2]

Lord Wright

MY LORDS,

The issue in this case is whether the Appellant Society is entitled to
exemption from Income Tax under section 37 of the Income Tax Act,
1918, on the ground that it is a body established for charitable purposes
only. The year of charge is the year ending the 5th April, 1943, and the
subject is the Appellant's invested income aggregating £2,876 15s. 7d.
The Special Commissioners before whom the matter came felt bound to
allow the claim on the authority of In re Foveaux, (1895 2 Ch 501), in
which Chitty J. had held that the Society was a charity, though they
would, apart from authority, have held that on balance the object of the
Society, so far from being for the public benefit, was gravely injurious
thereto, and therefore that the Society could not be regarded as a charity.
They also on the ground of the same authority rejected the argument that
the Society could not claim to be a charity because the alteration of the law
by means of legislation was a main object of the Society. That decision
was reversed by the Revenue Judge, Macnaghten J., and his decision was
affirmed on appeal by the Court of Appeal, by a majority, the Master
of the Rolls dissenting.

The Commissioners heard a great deal of evidence, and their material
conclusions in the case they stated were: '' 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 vivi-
" section altogether. . . .

" 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."

They were also prepared, if it was to be assumed that any public
benefit in the direction of the advancement of morals and education
amongst men would or might result from the Society's efforts to abolish
vivisection, of which they had no express evidence, and if their function
was to determine the case on the fooling of weighing an assumed public
benefit, in the direction of the advancement of morals amongst men,
which could or might result from the Society's efforts to abolish vivisec-
tion, to hold on the evidence that any such assumed public benefit was far
outweighed by the detriment to medical science and research, and con-
sequently to the public health, that would result if the Society succeeded
in 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.

I think the first thing to examine is whether In re Foveaux (supra)
was rightly decided and whether the Commissioners were justified in
regarding themselves as bound by that authority.

Before examining In re Foveaux (supra) it will be convenient to bear
in mind what is now generally accepted, that the question whether a gift or

[3] 2

fund is charitable is a matter for the decision of the Court on all the
materials before it. " Charitable " in this context has reference to
charitable in the legal sense. " Charity," indeed, is here a word of art of
precise and technical meaning. From very early times the decision was
the function of the Court. Thus rules grew around the very sketchy list
in the Statute of Elizabeth (43 Eliz. c. 4). Judicial precedents were estab-
lished. An early attempt to simplify the problem by a classification under
main heads was the summary under four heads submitted by Sir Samuel
Romilly (then Mr. Romilly) arguing in Morice v. Bishop of Durham,
10 Ves. 522. These heads were, first, relief of the indigent, second,
advancement of learning, third, the advancement of religion, fourth,
which is the most difficult, the advancement of objects of general public
utility. This classification substantially was adopted by Lord Macnaghten
about 85 years later in his famous list of charitable purposes in Pemsefy
case (1891, A.C. 531 at p. 583) which is too familiar to call for quotation
here. The noble and learned Lord had emphasised that he was discussing
the legal meaning of charity; like Sir Samuel Romilly he remarked on the
distinction between the popular and the legal meaning of the word.

It is not necessary at this time of day to observe that not every object
which is beneficial to the community can be regarded as charitable. The
legal significance is narrower than the popular. This was fully and
explicitly held by this House in A.G. v. National Provincial Bank, (1924,
A.C. 262), which followed re Macduff, (1896, 2 Ch. 451), and was discussed
more recently, but more in relation to the construction of general words
than to specific instances, in Chichester Diocesan Fund v. Simpson, (1944,
A.C. 341). Even if the object were in some sense beneficial to the com-
munity, it would still be necessary to discover that it fell within the spirit
and intendment of the instances given in the Statute of Elizabeth. Healthy
and manly sports are certainly in fact beneficial to the public, but apart
from special concomitants are not generally entitled to qualify as charit-
able objects. On the other hand societies or institutes for scientific research
would generally be charities as being for the benefit of mankind under the
fourth head, or alternatively as falling within the extended significance
given to education or the advancement of learning, which includes, in
modern times, science. Even societies coming within the first three heads
of Lord Macnaghten's classification would not be entitled to rank as legal
charities if it was seen that their objects were not for the public benefit.
Where a society has a religious object it may fail to satisfy the test if
it is unlawful, and the test may vary from generation to generation as
the law successively grows more tolerant. Lord Parker in Bowman v.
Secular Society, (1917, A.C. 406, at pp. 448 seq.), gives a long list illustrat-
ing this principle. It cannot be for the public benefit to favour trusts
for objects contrary to the law. Again, eleemosynary trusts may,
as economic ideas and conditions and ideas of social service change, cease
to be regarded as being for the benefit of the community. And trusts
lor the advancement of learning or education may fail to secure a place
as charities, if it is seen that the learning or education is not of public
value. The test of benefit to the community goes through the whole of
Lord Macnaghten's classification, though as regards the first three heads,
ft may be prima facie assumed unless the contrary appears.

In re Foveaux (supra) was decided in 1895 by Chitty J. The headnote
is simply: '' Societies for the suppression and abolition of vivisection are
" charities within the legal definition of the term ' charity ' ". The
particular societies in question were either the predecessors of the present
Appellant or were substantially identical for all relevant purposes. The
object, as stated by Chitty J., was the total suppression of the practice of
vivisection. At the time when the decision was given an Act entitled " the
" Cruelty to Animals Act, 1876," was in force; that Act made it unlawful
and an offence to perform on a living animal any experiment calculated
to give pain except subject to the restrictions imposed by the Act.
One provision was that the particular experiment was to be performed
with a view to the advancement by new discovery of physio-
logical knowledge or of knowledge which will be useful for sav-
ing or prolonging life or alleviating suffering It was generally
58553 a 2

[4]

required by the Act that the animal should be under a sufficient
anaesthetic, save in special circumstances, in which case a certificate was
necessary under stringent conditions, and experimenters were to hold
a licence. This Act has remained in force since then. Its repeal is the
main object of the Appellant Society. Chitty J. refers to the Act as being
the subject of controversy between the supporters and opponents of the
practice of vivisection. The former, he said, argue that the practice under
carefully guarded provisions is justifiable because it tends to promote the
welfare of the human race and even animals. The latter argue that the
practice is really unjustifiable. The Judge seemed disposed to regard the
issue as depending on how the element of the improvement of morality
was to be considered. But he had already accepted the position that
the Court does not enter into or pronounce any opinion on the merits
of the controversy between these two sides. Though he knew
of the Report of the Royal Commission on Vivisection, the Court, he said,
" stands neutral." Later in his judgment he said that 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 the Court
is not required to express an opinion. Whatever else is clear, it is, I think,
clear that the question he is proposing involves the balancing of utilities.
I cannot understand how the Judge could avoid deciding the very question
necessary for his decision, viz., whether the Society satisfies the
fourth head, as being beneficial to the community. That, I think, is the
test he proposes. He questions if the infliction of pain is necessarily cruelty.
It may be justifiable, he concedes, but that, he thinks, is a question of
morals on which men's minds may differ. But he seems to conclude the
matter by holding that the intention of the creator of the trust is to benefit
the community. That he treats as decisive: he declines to determine
whether the community would in fact be benefited.

This judgment has stood since it was delivered. Though it has not been
reversed, it has been severely criticised by a great authority, Lord Russell
of Killowen, though by way of dictum and not decision. There have
also been other judicial pronouncements which may have to be considered.

The earlier of the cases in which Russell J., as he then was, adverted
to this question was in re Hummeltenberg, (1923, 1 Ch. 237); the matter
in that judgment most material to the discussion of Chitty J.'s judgment
is shortly expressed in the headnote: '' The opinion of the donor of a
" gift or the creator of a trust that the gift or trust is for the public benefit
" does not make it so, the matter is one to be determined by the Court
" on the evidence before it." Russell J. at p. 242 rejected the contention
on the lines of the views expressed in In re Cranston, 1898, 1 I.R. 431,
and by Chitty J. in In re Foveaux (supra). Russell J. clearly defined
his opinion at p. 242, " If a testator by stating or indicating his view that
" a trust is beneficial to the public can establish that fact beyond question,
" trusts might be established in perpetuity for the promotion of all kinds
" of fantastic (though not unlawful) objects, of which the training of
" poodles to dance might be a mild example. 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."

I accept these observations as correctly stating the law.

They were in fact adopted by the majority of the Court of Appeal in the
next case I shall cite, which is an " animal " case; it is In re Grove-Grady,
(1929, 1 Ch. 557). It is sufficient here to record that the purpose of
the Society contemplated by the trust was the acquisition of land for
the provision of refuges for the preservation of " all animals birds or
" other creatures not human." The principle of the decision was that
there could hot be a legal charitable trust unless its execution involved a
benefit to the community. Hence a trust for the benefit of animals would
not merely on that ground be charitable. There must be a further element,
in particular that the discouragement of cruelty promotes humane senti-
ments in man towards the lower animals which involves moral benefit to

[5] 4

the human community. Russell L.J., as he then was, at p. 588 reiterated
the proposition that, " the Court must determine in each case whether
" the trusts are such that benefit to the community must necessarily
" result from their execution." He added significant words: ' The
" authorities have, in my opinion, reached the furthest admissible point
" of benevolence in construing, as charitable, gifts in favour of animals,
" and for myself, I am not prepared to go any further ".

•

The same warning had been uttered by Lord Sterndale M.R. in In re
Tetley, (1923, 1 Ch. 258 at p. 266). " I confess," he said," I find con-
¹' siderable difficulty in understanding the exact reason why a gift for the
' benefit of animals and for the prevention of cruelty to animals generally
" should be a good charitable gift while a gift for philanthropic purposes,
" which, I take it, is for the benefit of mankind generally, should be bad
" as a charitable gift ". Lord Sterndale M.R. agreed with the principles
stated by Russell J., which formed the basis of the decision of the Court
of Appeal.

It is clear that In re Grove-Grady (supra) was not inconsistent with
the general view in favour of preventing cruelty to animals. The trust in
that case did not protect the weaker animals from the cruelty of the stronger
and more savage, because the idea of the testatrix was to provide a
sanctuary in which animals might be free from the danger of being shot
or trapped or otherwise maltreated by human beings, though left at liberty
to indulge their natural instincts of inherent cruelty against each other.
In re Wedgwood, (1915, I Ch. 113), was discussed in that case. The
trust there was to apply the fund for the protection and benefit of animals.
It was held to be valid on the ground that it was calculated to promote
public morality by checking the innate tendency to cruelty. Much that was
said in that case clearly went too far. The emphasis of the actual decision,
however, was that the moral benefit to mankind consisted in promoting
feelings of kindness towards animals and thus promoting feelings of
humanity and morality generally; the limitation of the doctrine to animals
useful to man which was prominent in the earlier of the animal cases,
University of London v. Yarrow (1 De G. & J. 72), was lost sight of, or
at least had fallen into the background in view of the wider and less
specific doctrine of moral improvement, which was held to satisfy the
requirement of benefit to the community under the fourth head of Lord
Macnaghten's classification. It was held to be present in In re Wedgwood
(supra) but absent in In re Grove-Grady (supra), but in neither case was
it ignored.

I do not intend to make a complete anthology of the " animal " cases,
but I must refer shortly to the most important of the Irish cases on gifts
for the benefit of animals, namely, In re Cranston (supra), a decision of
the Irish Court of Appeal. There the bequest was in favour of a vegetarian
society, whose purpose was to stop the killing of animals for food, which
was condemned as being inconsistent with the rights of animals and calcu-
lated to produce demoralising effects upon men. The validity of the gift
was upheld by the majority of the Irish Court of Appeal, largely for
reasons taken to be derived from In re Foveaux (supra). But a powerful
dissenting judgment was delivered by Holmes L.J.: he was content indeed
to distinguish in In re Foveaux (supra): but he demanded to know if
a belief by the promoters in the utility of their project to eliminate the
use of animal food could make it a charity in any sense which the law
attaches to that term. ' If so," he said, " every object not actually
" immoral or illegal must be held a charity ". He enforced his opinion
by giving instances of matters which might be conceived to be beneficent
agencies by a few idealists or cranks.

The result so far has been that it is necessary for your Lordships to
decide whether In re Foveaux (supra) was rightly decided, or perhaps
more accurately whether the Commissioners were right in thinking that
it governed the case before them. No doubt Chitty J. had, in the Report
of the Royal Commission on Vivisection which was before him, amply

58553 a 3

5 [6]

sufficient evidence of the utility of vivisection and hence of the mischief
of any project aimed at making it unlawful. But it is not clear how far
he had appreciated the full force of the evidence. The evidence now pro-
duced of the enormous advances in science and research which has been
accepted by the Commissioners in their findings of fact on the utility of
vivisection is indeed such as no fair-minded man could refuse full credence.
It is conclusive to my mind; besides, the findings are binding on your
Lordships. In re Foveaux (supra) has been the subject of much dis-
cursive comment, but it has not been the subject of decision in this House
until the present case. The fact that it has stood so long cannot bar this
House from reversing it if your Lordships are satisfied that it is wrong.
Bourne v. Keane, (1919, A.C. 815), is sufficient authority as to the
general powers of the House, or, as I should say, its duty. One of the
most important aspects of the judicial functions of this House is to
harmonise or correct the decisions of the lower Courts, even though,
as Lord Birkenhead L.C. said at p. 830, it would be " overruling decisions
" which have been treated as binding for generations ".

In my opinion In re Foveaux (supra) was wrongly decided and should
now be reversed. Chitty J. was wrong in taking the intention of the donor
as a sufficient test that the gift was charitable. That is vital. He was
wrong in holding that he could stand neutral and not decide, on the
facts before him, the question whether the gift was for the public benefit.
If he stood neutral he could not decide in favour of one side and against
the other side. He was inconsistent in holding that the gift was charitable
while at the same time refusing to decide whether it was for the public
benefit: unless he so decided in favour of the gift he could not decide
that it was charitable. If he was not satisfied that the propaganda and
expenditure for the suppression of vivisection were beneficial to the com-
munity, he could not hold that the activities of the Society were charitable.
He was also wrong in deciding that he could not weigh against each other
the detriment inseparable from suppressing vivisection on the one hand
and on the other hand the benefit to the community of higher moral
standards said to be due to enhanced regard for the wellbeing of animals.
There is not, so far as I can see, any difficulty in weighing the relative
value of what it called the material benefits of vivisection against the moral
benefit which is alleged or assumed as possibly following from the success
of the appellant's project. In any case the position must be judged "as a
whole. It is arbitrary and unreal to attempt to dissect the problem into
what is said to be direct and what is said to be merely consequential. The
whole complex of resulting circumstances of whatever kind must be fore-
seen or imagined in order to estimate whether the change advocated would
or would not be beneficial to the community. The Commissioners have
abstained from any but the vaguest finding on the possibility of
moral benefit: they had no evidence, they said, on the point.
But at the highest the assumed or alleged benefit is indirect and
problematical. There is clearly no general consensus of opinion
or understanding against the practice of vivisection which has
been permitted by Parliament as regulated under the Act of 1876.
That Act has stood all these years substantially without any serious
attack. It seems that people's moral feelings are not weakened nor their
objections to cruelty to animals reduced by the existence of the Act. If
they think about it at all they think of the immense and incalculable
benefits which have resulted from vivisection: if that involves some
measure of pain at times to some animals, notwithstanding the Act, they
fee] that it is due to a regrettable necessity. Similarly a man who has
a beefsteak for dinner, if he thinks at all about the slaughter of the beast,
reflects that that is inevitable in the present constitution of society. I do
not question that a high degree of regard for animals is a good thing.
But it must be a regulated regard. Cruelty, that is, purposeless cruelty,
whether through brutality or through a purpose to satisfy our pleasure
or our pride, cannot be forgiven. It is indeed also a penal offence at
law But it is impossible to apply the word cruelty to efforts of the high-
minded scientists who have devoted themselves to vivisection experiments
for the purpose of alleviating human suffering. Harvey was only able

[7] 6

to publish in 1628 his great work, De motu cordis, because he had been
given deer from the Royal park for purposes of vivisection. Countiess
millions have benefited from that discovery. I do not minimise the suffer-
ings of the unfortunate deer. The subject of vivisection is not a consenting
party, nor does it benefit. But I put against that the benefit to humanity.
It has been argued that a Court cannot weigh moral and material benefits
against each other. This is not the place to accept or reject Bentham's
pronouncement that " measure for measure, pushpin is as good as
poetry ", or debate whether utilitarian or intuitionist ethics is the truer
theory. But in ordinary life people often have to decide between a moral
and a material benefit. However, 1 do not think that is a fair statement
of the issue. The scientist who inflicts pain in the course of vivisection is
fulfilling a moral duty to mankind which is higher in degree than the
moralist or sentimentalist who thinks only of the animals. Nor do I agree
that animals ought not to be sacrificed to man when necessary. A strictly
regulated amount of pain to some hundreds of animals may save and
avert incalculable suffering to innumerable millions of mankind. I can-
not doubt what the moral choice should be. There is only one single
issue.

I have great sympathy with much that the Master of the Rolls has
said in his powerful dissenting judgment. I have a great love for animals
and some familiarity with certain classes. I am sorry that rabbits, a weak
and an innocent, but monstrously destructive, race, should have to be
destroyed in great numbers, as they were and are being, to save our people
from qualified starvation. I agree with the Master of the Rolls that rats,
beetles and other pests, if they have to be destroyed, should be destroyed
with as little cruelty as possible. But destroyed they must be. The lives
of animals at the best are precarious. Millions have perished in the last
frost. That is a regrettable necessity. But however it is looked at, the life
and happiness of human beings must be preferred to that of animals.
Mankind, of whatever race or breed, is on a higher plane and a different
level from even the highest of the animals who are our friends, helpers
and companions.

No one faced with the decision to choose between saving a man or an
animal could hesitate to save the man.

I have turned for a while to considerations of fact, because that is
inevitable in balancing conflicting values. To my mind the scale of the
anti-vivisectionist mounts up and kicks the beam. A statesman is con-
stantly weighing conflicting moral and material utilities.

I must add that I have great doubt, even apart from the final argu-
ment which I shall advert to in a moment, that the object of abolishing
vivisection can on any view be regarded as being in law a public charit-
able object. It is not analogous to any of the objects enumerated in the
preamble to the Statute. Its only claim to be admitted must rest on
the fourth head. To get into that class it must be established that it is
beneficial to the community. What it seems to do, however, is to destroy
a source of enormous blessings to mankind. That is a positive and
calamitous detriment of appalling magnitude. Nothing is offered by way
of counterweight but a vague and problematical moral elevation. The
law may well say that quite apart from any question of balancing values,
an assumed prospect, or possibility, of gain so vague, intangible and re-
mote cannot justly be treated as a benefit to humanity, and that the
appellant cannot get into the class of charities at all unless it can
establish that benefit. If it fails, it can still continue to carry on such
lawful purposes as the members desire and its funds, exiguous as they are,
permit. Apart from the " animal " cases I cannot find any precedent
for such an object being held charitable. On the other hand, the vivi-
sectionists, who are attacked, can fairly claim that their purpose is charit-
able and would generally be so recognised either under the fourth head of
the accepted classification or under the head of advancement of learning.
I think that the whole tendency of the concept of charity in a legal
sense under the fourth head is towards tangible and objective benefits,

58553 A4

7 [8]

and at least that approval by the common understanding of enlightened
opinion for the time being is necessary before an intangible benefit can be
taken to constitute a sufficient benefit to the community to justify admis-
sion of the object into the fourth class. By this test the claim of the appel-
lant Society would fail.

But there is another and essentially different ground on which in my
opinion it must fail; that is because its object is to secure legislation
to give legal effect to it. It is, in my opinion, a political purpose within
the meaning of Lord Parker's pronouncement in Bowman v. Secular
Society Ltd. (supra) at p. 442. Lord Parker was discussing in a different
connection the same question of the true criterion for deciding if charitable
gifts are for the benefit of the public in the legal sense; he was there
referring to the objects enumerated in the Memorandum of Association
of the Secular Society, Ltd. He said: ' Now if your Lordships will
"refer for a moment to the Society's Memorandum of Association you
"will find that none of its objects, except, possibly, the first, are charit-
"able. The abolition of religious tests, the disestablishment of the Church,
"the secularisation of education, the alteration of the law touching
"religion or marriage, or the obervation of the Sabbath, are purely
"political objects. Equity has always refused to recognise such objects
"as charitable. It is true that a gift to an association formed for their
"attainment may, if the association be unincorporated, be upheld as an
"absolute gift to its members, or, if the association be incorporated, as
"an absolute gift to the corporate body; but a trust for the attainment
"of political objects has always been held invalid, not because it is
"illegal, for everyone is at liberty to advocate by any lawful means a
"change in the law, 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 and therefore cannot say that a gift to secure the change is a
"charitable gift." While I was preparing this part of my opinion my
noble and learned friend Lord Simonds was kind enough to draw to my
attention the passage which in due course your Lordships will hear quoted
by him from a work of authority, Tyssen on Charitable Bequests. It is,
I think, a very important contribution to this question. It appears to
me to go to explain and justify Lord Parker's opinion. I refer especially
to Tyssen's words: " the law could not stultify itself by holding that
" it was for the public benefit that the law itself should be changed ";
and again: " each Court . . . must decide on the principle that the law
" is right as it stands ". I am reminded of the words of a great common
law judge who warned the Courts against usurping the functions of the
legislature. I do not regard the statements of Lord Parker and Tyssen
as inconsistent, but as complementary.

In my opinion, the Respondents' objection under this head is well
founded. The Commissioners held that " the alteration of the law by
" means of legislation is a main purpose of the Society, but the repeal
" of the Act of Parliament, (i.e., 39 & 40 Vict. c. 77) " [the Cruelty to
Animals Act, 1876, which I have referred to above] " was undoubtedly
" part of the Society's object in 1895." They accordingly felt bound to
follow Chitty J. on this point, as they had done on the first point.

Your Lordships are not bound by the judgment of Chitty J., and I
prefer the reasoning on the point of Rowlatt J. in C.I.R. v. Temperance
Council of the Christian Churches of England and Wales, (10 T.C. 748).
Rowlatt J. held in respect of the Respondent in that appeal that the pur-
pose was not charitable but political within the meaning of the principle
stated by Lord Parker. He held that legislation occupied the greater part
of the field in the description of the objects of the Respondent. He held
that any purpose of influencing legislation is a political purpose in this
connection on the clear authorities: that the Respondent's direct purpose
was to effect changes in the law and that was not a charitable purpose.
He distinguished what he called the antivivisection cases (that is the cases
which I have been discussing) on the ground that in them the alteration
of the law was subsidiary and not a main purpose. While I agree with

[9] 8

the decision of Rowlatt J., I venture to think that he fell into error in
distinguishing as he did, the and vivisection cases, or at least that his
assumed ground of distinction could not be applied in the present case.

The Commissioners here held categorically, as already stated, that the
repeal of the Cruelty to Animals Act, 1876, and the substitution of a new
enactment prohibiting vivisection altogether, was the main object of the
Society. I accordingly treat the judgment of Rowlatt J. which I have just
cited as a precise authority from that very eminent judge to support my
conclusion that on this special ground, in addition to the others I have
mentioned, the objects of the appellant Society were not charitable.
Rowlatt J's. judgment was distinguished but not disapproved by Lawrence
L.J. in In re Hood (1931 I Ch. 240, at p. 252). " In that case ", he said,
' the gift was not for the promotion of temperance generally, but was for
'' the promotion of temperance mainly by political means.'' These words,
mutatis mutandis, can be applied aptly to the present case. The illustra-
tions given by Lord Parker in the passage quoted above show clearly
what meaning he attached to the word political. It was not limited to
party political measures, but would cover activities directed to influence
the legislature to change the law in order to promote or effect the views
advocated by the Society. Such a change would be in the same category
as the instances given by Lord Parker of what he regarded as political
objects, and would exclude the appellant from the category of charities.
Its proposed object is of .a public and very controversial character. The
present capacity of the appellant Society is not great, but the possibilities
of political agitation would be immensely increased if a few millionaires
were to endow it with great financial resources. This conclusion does not
in any way extend or affect the freedom of the Society to promote their
cause, which is lawful enough, by any legitimate or proper means. But
it does prevent them from claiming the benefit of being immune from
income tax, which would amount to receiving a subsidy from the State
to that extent. Lord Parker was, I think, merely enunciating a specific
limitation on the extent of the legal definition of charitable trusts. There
are in this case stronger grounds than Lord Parker contemplated in his
broader statement of principle for the Court declining to say that a gift
to secure the change is a charitable gift.

I should dismiss the appeal.

[10]

Lord Porter

MY LORDS,

The question what is or is not a charity is always a difficult problem
partly, I think, owing to the fact that the meaning now attributed to the
word is derived from the preamble to the Act of Elizabeth, which, though
the Act itself has been repealed, has been re-enacted and gives a kind of
example of the class of matters then held to be charitable. From this
beginning legal decisions have extended the meaning of the word to many
matters which would not originally have been included.

But the difficulty does not lie in the origin of the doctrine alone.
It is, I think, inherent in the subject matter under consideration. Whether
any two persons would agree in all cases as to what " charity " should
include is at least doubtful. It is not the law but the diversity of subjects
which creates the difficulty.

A step towards a closer definition was however reached in Pemsel's
Case [1891], A.C. 531 in Lord Macnaghten's well-known speech dividing
charitable objects into four classes, with the result that, at the present day,
all claims to embrace an object under the head of a charity must assert
that it comes within one of the four classes. In the present case the
Appellants claim to come under the fourth head.

" Charity ", says Lord Macnaghten at p. 583, "in its legal sense
'' comprises four principal divisions—trusts for the relief of poverty:
" trusts for the advancement of education : trusts for the advancement of
" religion: and trusts for other purposes beneficial to the community
" not falling under any of the preceding heads." In this language it
might well have been argued that trusts for any of the first three objects
were charitable whether they were beneficial to the community or not, but
that inclusion in the fourth class is only permissible if such benefit can be
shown. I cannot, however, find that such a contention has been put for-
ward. It was expressly repudiated by both sides in the present case and
rejected by Russell J., as he then was, in Hummeltenberg's Case [1923]
1 Ch. 237 at p. 240. One must take it, therefore, that in whichever of the
four classes the matter may fall, it cannot be a charity unless it is beneficial
to the community or to some sufficiently defined portion of it.

The difficulties of the present case arise firstly in determining what is
of benefit to the public and who is to determine that question; but a not
less difficult, though perhaps less subtle, question is as to whether the
objects of the Appellant Society are political within the meaning of that
word as used by Lord Parker in Bowman's Case [1917] A.C. 406 at
p. 442.

The facts have been fully stated by my noble and learned friend Lord
Simonds, and he has quoted the material passages from the findings of the
Commissioners. In so far as those findings are for them and are determina-
tive of the matter in issue your Lordships are of course bound by their
decision. The only questions, therefore, are (1) whether the finding of the
Commissioners 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 " amounts to a finding that the society's object
is political in the sense in which that word is used when it is said that
political objects are not charitable, and (2) whether the finding that
" any assumed public benefit in the direction of the advancement of morals
" and education is 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, is gravely
" injurious thereto " is a finding of fact as a result of which your Lord-
ships ought to hold that the objects of the society are not charitable.

[11] 2

My Lords, before dealing with the first question I would desire to point
out that read strictly the second finding would appear to contrast moral
and educational advancement with the public health, and so to contrast
an ethical with a material benefit.

It was, however, strenuously and, I think, successfully urged by the
Respondents that this was not an accurate summing up of the position.
The object of curing human, or even animal, illness and suffering itself
aims at a moral end, and the question is not fairly stated as a conflict
between material and moral benefits but, as Mr. Grant on the part of
the Appellants was prepared to accept, as a conflict between one ethical
outlook and another. His point was not that the material must give
place to the moral but that the Commissioners or the Court are not
empowered to decide such a question. In the words of Chitty J. in
Foveaux's Case [1895] 2 Ch 501 " the Court stands neutral."

The Commissioners, against their own judgment, felt themselves bound
to follow the opinion of Chitty J. in that case. Macnaghten J., however,
and the majority of the Court of Appeal (the Master of the Rolls dissent-
ing) took a contrary view. In both cases the decision turned upon the
second point. Neither tribunal decided the first, though it is obviously
important and, as I understand, in the view of the majority of your Lord-
ships, is determinative of the present case in favour of the Respondents.

1. As my noble and learned friend Lord Simonds points out, it is curious
how scanty the authority is for the proposition that political objects are not
charitable, and the only case quoted by Lord Parker in Bowman's Case
(supra) viz.: de Themmines v. de Bonneval, 5 Russ. 288, turned upon
public policy, not upon what, apart from that question, is or is not a
charity.

Moreover, the illustrations given by Lord Parker at p. 442 of the
political matters which he had in mind, " The abolition of religious tests,
" the disestablishment of the Church, the secularization of education,
" the alteration of the law touching religion or marriage or the observa-
" tion of the Sabbath ", are I think, primarily matters which could not
be effected without an alteration of the law. The object in each case
is to do away with a positive injunction to which an end can only be
put by repealing the law; an Act of Parliament is required in order to do
so. An example may be taken from the first illustration given by Lord
Parker. No agreement come to by individuals or groups could dispense
with the obligation of complying with the provisions of the Test Acts,
whereas slavery or vivisection could be put an end to without disobedience
to the law if all members of the community could be induced to desist
from these practices. It is in the narrower sense in which I think the
phrase " purely political objects " is rightly used, i.e., as applicable to
objects whose only means of attainment is a change in the law.

I cannot accept the view that the anti-slavery campaign, or the enact-
ment of the Factory Acts, or the abolition of the use of boy labour to
sweep chimneys, would be charitable so long as the supporters of these
objects had not in mind, or at any rate did not advocate, a change in
the laws, but became political and therefore non-charitable if they did
so. To take such a view would to me be to neglect substance for form.
The object was to stop slavery or the use of boy chimney sweeps, and
to ensure that certain minimum requirements were carried out in
factories. All this could be done by common consent, though no doubt
the only effective method would be to alter the law. But persuasion
not force was a possible means of effecting the desired purpose.

So in the case of members of the Antivivisection Society a conceivable
though a very unlikely way of effecting its purpose would be to persuade
mankind to cease from experiments on animals, and it is possible that
its members would prefer success by that means, though I have no doubt
they would frankly admit that they saw no possibility of such an event.
They would not, however, be asking anyone to break the law by refrain-
ing from vivisection. Their primary object, as I see it, is to prevent

58553 A 6

3 [12]

animal suffering caused by vivisection, though a main method of effect-
ing that end is to repeal the present Act, and such repeal is in that sense
a main object of the Society. As the Commissioners say: ' We are
" satisfied 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." And again, " We agree that the alteration
" of the law by means of legislation is a main purpose of the Society."

In so far as the decision of Rowlatt J. in Inland Revenue Commis-
sioners v. Temperance Council, (1926) 42 T.L.R. 618, is inconsistent with
this view, I do not agree with it, though a distinction might be made
between that case and this inasmuch as there legislation is put in the
forefront of the objects of the Council, and some support for this view
may perhaps be gained from the decision in re Hood, [1931] I Ch. 240.

Moreover, as the Commissioners point out, this point was as open and
as valid in re Foveaux (supra) as in this case and yet it was never taken.

For these reasons, which perhaps differ a little from those presented
by the Master of the Rolls, I agree with his view upon this point, and
inasmuch as none of the other members of the Courts below dealt with
it do not find myself at variance with any of their expressed views.

2. On the second point the Respondents say that the object, if it is to be
charitable, must, like any other charitable object, be for the benefit of
the public; the Commissioners have held that " on balance the object
"of the society, so far from being for the public benefit, is gravely
" injurious thereto ": and that that finding was one of fact and conclu-
sive of the case as against the Appellants.

The Appellants on their part maintain that trusts inculcating humanity
towards animals are (as has frequently been held) for the public benefit
and that it is not for the Commissioners or a Court to enter into what
may be fine distinctions as to the question of the quantum of benefit as
opposed to the disadvantages. The conflict, as I see it, is between the
view held by Chitty J. in re Foveaux (supra) and the criticisms or sug-
gested criticisms of that view to be found in the Judgments of Russell J.,
as he then was, in re Hummeltenberg (supra), and of the Court of Appeal
of whom Russell L.J. formed one in re Grove-Grady, [1929] I Ch. 557.

Any observations of that learned judge, whether in the Court of first
instance or the Court of Appeal or in your Lordships' House, even
though not strictly an essential part of his decision, could only be differed
from with great diffidence, and it is therefore necessary to consider their
exact bearing in the cases in which they are found.

One thing is certain, and was not contested by Mr. Grant—the intention
of the donor in making the gift cannot affect the result. The question
must be judged independently of his idea of what is or is not charitable,
but undoubtedly, as has been pointed out more than once, a gift for the
protection of animals is prima facie at any rate a good charitable gift.
It is enough in this connection to refer to the observations of Swinfen

Eady L.J. in Wedgwood [1915] I Ch. 113.

Such a gift, then, being prima facie charitable, must remain charitable
unless its charitable nature is taken away because on the whole it does
more harm than good in the eyes of some tribunal authorised to determine
that question.

Chitty J., as I understand him, said in re Foveaux (supra) that that
question was not one which the tribunal of fact was entitled to decide. The
Court or the Commissioners, as the case may be, were authorised to deter-
mine whether the object was one of a class which was or had been held
to be charitable, i.e., whether it was one of a class which prima facie
benefited the public. After that the tribunal remained neutral. It was
not for it, in a conflict of opposed opinions, to analyse further the beneficial
»r injurious results of the gift.

Foveaux's case (supra) has more than once been quoted since its
decision, and apparently accepted without criticism except in so far as

[13] 4.

Lord Russell can be said to disapprove of it and save for such qualifications
of the acceptance of its doctrine as may have been implied in the earlier
case of re Douglas, 35 Ch. D. 472. In re Wedgwood [1915] 1 Ch. 113, it
appears to have been accepted without comment by Kennedy and Swinfen
Eady, L.JJ, and Lord Hanworth M.R. cites it without criticism in re
Grove-Grady (supra).

Moreover its principle does, I think, receive support from such a case
as A.G. v. Marchant, L.R. 3 Eq. 424. It is quite true that in that case
Kindersley V.-C. refused to increase a gift of doles proportionately with
the increase which he granted to a number of other charitable objects
on the ground that doles, though for the relief of property, were harmful
rather than beneficial. But he acted in this way only with regard to
accretions to the original gifts on the ground that the Court had a dis-
cretion, where the original gift has been unexpectedly augmented, to add
or not to add to the sum originally given to any one of the different objects.
The original gift itself presumably was just as harmful as the accretion
would have been, but that portion of the dole he did not, and indeed it was
not suggested that he could, touch.

Re Campden Chanties, 18 Ch. p. 310, also turned upon the discretion
which the Court was given of varying the objects of a charity, where,
but only where, a scheme was settled cy-pres by the Charity Com-
missioners as a result of a complete change in the character of the
neighbourhood and in the value of the gift. The judgment deprecated the
giving of and denied the benefit to be obtained from doles, but nowhere
said or attempted to say that to give them would not be a good charity.
All it decided was that where the Court was bound to administer the funds
cy-pres it had a discretion as to the objects to be included in the scheme
and was under no obligation to perpetuate doles.

There remains for consideration Lord Russell's two warnings.

In Hummeltenberg (supra) he was discussing the question whether the
intention of the giver plays any part in making the object charitable or
not, and decides that it has no effect, and adds: " In my opinion the
' question whether a gift is or may be for the public benefit is a question
' to be answered by the Court by forming an opinion upon the evidence
" before it." It will be observed that the opinion which the Court has
to form is as to whether the gift is or may be for the benefit of the public,
not as to whether on the balance of evidence the scale inclines one way
or the other. If the latter were the true meaning I do not know why the
words " or may be " were added. The phraseology is at least capable
of the interpretation that the Court has to determine whether the gift comes
within the category of things beneficial to the public, not whether on
balance the tribunal holds that the disadvantages attached to it outweigh
its benefits.

Re Grove-Grady, [1929] I Ch. 557, was concerned with this very point,
viz.: was the gift in question within that class which could be held to
be a charity. The Court of Appeal, differing from Romer J., held by
a majority that it could not because there was no benefit to the community
in a devise to form a reserve for animals of all kinds, wild or tame, free
from the interference of man and with no provision even for his observa-
tion of the result. (See p. 572.)

The Master of the Rolls, after citing the language of Russell J. in re
Hummeltenberg (supra) follows re Wedgwood (supra) in quoting the
words of Fitzgibbon L.J. in re Cranston, [1898] 1 I.R. 431 at p. 448.
" Any gift which proceeds from a philanthropic or benevolent motive
" and which is intended to benefit an appreciably important class of
" our fellow creatures (including, under decided cases, animals), and
" which will confer the supposed benefit without contravening law or
' morals, will be ' charitable ' ", and adopts the views of Kennedy and
Swinfen Eady L. JJ. in the former case. The statement of Fitzgibbon L.J.
undoubtedly requires qualification in that it appears to make the intention
of the donor the deciding factor and fails to point out that it is the stimu-
lation of humane and generous sentiments in man and not the protection

5 [14]

of animals per se which is important, but this fact does not affect the view
adopted by the Master of the Rolls.

Russell L.J., however, at p. 582 contemplates the possibility of anti-
vivisection societies being removed from the class of charities in the light,
as he says, of later knowledge in regard to the benefits accruing to man-
kind from vivisection.

In answer to this suggestion it is immaterial to consider the evidence
which Chitty J. had before him in re Foveaux, since the principle which
he adopts is not that he is constrained by the evidence to hold the
society charitable when he came to weigh the advantages of vivisection
against the benefits to be obtained by a crusade against it. Russell L.J,
on the contrary, appears to take the view that the case for and against the
benefits to be conferred is to be decided by some tribunal which shall
determine whether the humane and generous sentiments exhibited in
a desire to save animals from suffering may not be outweighed by the
benefits conferred by inflicting it.

I find it difficult to accept the view that, once an object has been held
to be included in the class of charities, it is then for the court to hear
the evidence of witnesses on the one side and on the other as to whether
it is in fact beneficial. I can imagine the severest contest between two
sets of witnesses in the case of a gift for a religious purpose, the one
saying that it is most beneficial and the other that it is very harmful.
Is the tribunal to make up its mind between these two views, whether on
balance the gift is beneficial to the community or not? Yet if the argu-
ment be that the tribunal is to make up its mind on the evidence called
before it, I cannot see where it can stop short of determining the matter
on the ordinary principles upon which Courts act in deciding upon a
conflict of evidence, nor can I see any method of determining what
preponderance of weight is to incline the scale sufficiently to one side
or the other.

This view is, I think, in accordance with the opinion of Sir John
Romilly M.R. in Thornton v. Howe, 31 B. 14, (the Joanna Southcote
case), when he says (inter alia]: " If the tendency were not immoral and
" although the Court might consider the opinions sought to be propagated,
" foolish or even devoid of foundation, it would not on that account . . .
" take it out of the class of legacies which are included in the general
" terms ' charitable bequests

Undoubtedly the object must not be a mere fad or contrary to public
policy, but no argument against the claim of the society was presented
to Your Lordships on either of these points, and fads can be dealt with by
the method suggested by Kennedy L.J. in re Wedgwood.

In my view the object of this society is the protection of animals from
the sufferings believed to be involved in vivisection, that object is, in
accordance with the decisions in what may be called the animal cases,
charitable, and does not cease to be charitable, in spite of the finding of
the Commissioners that its success would be gravely injurious to the
public benefit.

For these reasons, which are substantially those expressed by the Master
of the Rolls, as well as because I do not think the objects of the society
are political in the sense which would prevent them being charitable, I
should allow the appeal.

[15]

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 mean-
ing of Section 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 L.J.J.,
Lord Greene M.R. 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 9th February, 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 experi-
" ments 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 pre
" vention of cruelty to animals. Part of its propaganda
" literature is directed towards inculcating a love of animals
" in the young.

2 [16]

" 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 experi-

" ments 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 vivi-
" section, 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 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 in-
" jurious 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, upon 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, Ltd. (1917 A.C. 406 at page 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 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 rinding 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 Parlia-
ment. 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 the learned Master
of the Rolls 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 contro-
versy. 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, is worth repeating at length: " It is a common
" practice for a number of individuals amongst us to form an

4 [18]

" 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 charit-
able, 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 nght 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 pre-
judicial, 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, 5 Russell
288, 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 C.I.R. v. Temperance Council, 42 T.L.R. 618,
the principle was clearly recognised by Rowlatt J. as it was in
re Hood, 1931 1 Ch. 240, at pp. 250 and 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 sug-
gested in the course of the argument. I do not regard re Villers-
Wilkes, 72 L.T. 323, 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 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

[19] 5

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. Haying 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, (Ambler 228),
Lord Hardwicke applied a bequest for instructing the people in
the Jewish religion (then regaraed as an illegal purpose) for the
benefit of the Foundling Hospital, and in Gary v. Abbot (7 Ves.
490) Sir W. 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 equit-
able 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 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 of the
heads of charity forming the first three classes in the classification
which Lord Macnaghten borrowed from Sir Samuel Romilly's

6 [20]

argument in Morice v. Bishop of Durham, 10 Ves., 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 publicol 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. 237
at p. 242. " 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 re Foveaux,
1895 2 Ch 501, and re Cranston, 1898 1 I.R. 431, 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: " 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 1 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 vivi-
" section. 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

[21] 7

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?
" 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 I. 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,
1 De G. & J. 72, and Marsh v. Means, 3 Jur. (N.S.) 790, 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 re Wedgwood, [1915]
1 Ch. 113, at p. 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 L.JJ. in re Douglas, 35 C.D. 472.
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 com-
munity 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, L.R-3, Eq.424, and re Campden Charities, 18 C.D. 310.
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, namely,
£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 Attorney-General v. Dean & Canons of
Windsor, 8 H.L.C. 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:
" 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 estabb'shed 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

8 [22]

" 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.

The case of re Campden Chanties 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. " The
' habits of society ", said Jessel M.R., at p. 324, " 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, at p. 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 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-pres doctrine.

The two cases to which I have last referred both fall within
one of the three determinate categories in Lord Macnaghten's classi-
fications, 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,
for example, that the purpose is to protect animals, that kindness
to animals is conducive to the moral advancement of man, and

[23] 9

to conclude that the purpose is charitable without looking to the
end of the matter.

Thus in re Grove-Grady, [1929] 1 Ch. 557, 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 satis-
fies 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 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': In re Cranston. The test is to be applied from
" evidence of the benefit to be derived by the public or a con-
" siderable 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 (Lord Justice Russell 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 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 re Cranston, (1898 1 I.R. 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 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 contrary ", 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 con-
tention that the Court may not look to the end of the chapter. Lord
Ashbourne perhaps went further. For he observed that though
the vast majority might be opposed to it and it might be dis-
approved 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 L.J. uses words which I think worth citing at length.

10 [24]

" 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 insig-
" niticant 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 upon 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 con-
clusive. At least an exception must be made in the case of an
illegal purpose or a purpose contrary to public policy. The ques-
tion 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 1 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 indi-
" viduals 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 anti-vivisection 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 pro-
" ductive 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.

[25] 11

My Lords, I have dealt at some length with the case of 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
upon such evidence as might to-day be available a similar con-
clusion 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 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 exempli-
' fication 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 re Campden Chanties. 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 suit-
able 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
pin-pose, 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,
1 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.

[26]

Lord Normand

MY LORDS,

The Appellant Society claims exemption from Income Tax on
its investment income on the ground that it is a body of trustees
established for charitable purposes only within the meaning of
Section 37 of the Income Tax Act, 1918.

The Trust purposes are to be found in Resolutions passed by a
General Meeting of the Society held on 31st July, 1897 and by the
Council on 9th February, 1898. Of these resolutions the first
declares that the object of the Society is 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.
By the second resolution, which is described as an explanatory
resolution, the Council affirmed that, while the demand for the
total abolition of vivisection would ever remain the object of the
National Anti-Vivisection Society, the Society was not thereby
precluded from making efforts in Parliament for lesser measures,
having for their object the saving of animals from scientific torture.

The first question in the appeal is whether these purposes do
not demonstrate that the Society is an association for political
purposes and not an association or trust for charitable purposes.

The distinction between a political association and a charitable
trust has not been denned, and I doubt whether it admits of precise
definition. The Attorney-General, however, submitted that any
Association which included among its objects the passing by
Parliament of any legislation, unless it were an uncontroversial
enabling Act, was to be considered a political association, and must
be refused the privileges which the law allows to charities. But
no authority was cited which would warrant so extreme a
proposition.

The formation of voluntary associations for the furtherance of
the improvement of morals is familiar, and such associations are
a well recognised sub-division of the fourth of Lord Macnaghten's
divisions of charities in Pemsel's case, 1891 Appeal Cases 531. It
is also familiar that trusts for preventing cruelty to animals or
for improving the conditions of their lives have found a recognized
place in that sub-division. Trusts for the benefit of animals are
allowed to be charitable because, to quote the language of Lord
Justice Swinfen Eady in [Re] Wedgwood, 1915 1 Chancery
113 at page 123, they tend to promote and encourage kindness
' towards animals, to discourage cruelty, and to ameliorate the
' condition of the brute creation, and thus to stimulate humane
' and generous sentiments in man towards the lower animals, and
' by these means promote feelings of humanity and morality
' generally, repress brutality, and thus elevate the human race ".
Societies for the amelioration of the condition of animals, like other
societies for the improvement of human morals, do not as a rule
limit their activities to one particular method of advancing their
cause. Commonly they hope to make voluntary converts, and
they also hope to educate public opinion and so to bring its in-
fluence to bear on those who offend against a humane code of
conduct towards animals. But they seldom disclaim, and frequently
avow, an intention of inducing Parliament to pass new legislation
if a favourable opportunity should arise of furthering their pur-
pose by that means. A society for the prevention of cruelty to
animals, for example, may include among its professed purposes
amendments of the law dealing with field sports or with the taking
of eggs or the like. Yet it would not in my view necessarily lose
its right to be considered a charity, and if that right were questioned,

[27] 2

it would become the duty of the Court to decide whether the
general purpose of the society was the improvement of morals
by various lawful means including new legislation, all such means
being subsidiary to the general charitable purpose. If the Court
answered this question in favour of the Society, it would retain
its privileges as a charity. But if the decision was that the leading
purpose of the Society was to promote legislation in order to bring
about a change of policy towards field sports or the protection of
wild birds, it would follow that the Society should be classified
as an association with political objects and that it would lose its
privileges as a charity. The problem is therefore to discover the
general purposes of the Society and whether they are in the main
political or in the main charitable. It is a question of degree of a
sort well known to the Courts.

The appellant Society is a Society for the prevention of cruelty
to animals, and it is not disputed that by the vigilance of its
members it does much to prevent the infliction of cruelly on
animals undergoing experiments. But it has chosen to restrict
its attack upon cruelty to a narrow and peculiar field, and it has
adopted as its leading purpose the suppression of vivisection by
legislation. This is apparent from the resolutions which I have
quoted. In the first of them the Society condemns the existing
legislation as an insufficient protection against the torture of
animals, and sets forth as its object the total suppression of vivi-
section by new legislation passed by Parliament under pressure
from an enlightened people. By the second resolution the Council
affirms that the total abolition of vivisection remains the object
of the Society but intimates that lesser Parliamentary measures
for the protection of animals from scientific torture will also be
pursued by the Society. The Society seems to me to proclaim
that its purpose is a legislative change of policy towards scientific
experiments on animals, the consummation of which will be an
Act prohibiting all such experiments. I regard it as clear that a
Society professing these purposes is a political association and not
a charity. If for legislative changes a change by means of Govern-
ment administration was substituted the result would be the same.

In Bowman v. Secular Society, 1917 Appeal Cases 406, Lord
Parker said that " 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". That was said in
a case in which the Society was advocating a very important change
in the relations of the State and the community towards religion.
I respectfully agree with the comment of the Master of the Rolls
that Lord Parker's words do not apply when the legislation is
merely ancillary to the attainment of what is ex hy-pothesi a good
charitable object. For the charitable purpose, being dominant,
would prevail as it did in Inland Revenue Commissioners v.
Falkland Temperance Cafe Trust, 1027 Session Cases 261, and in
Public Trustee v. Hood, 1931 Chancery 240, where it was held that,
the main object of the gift being charitable, the gift was none the
less valid because the testator had pointed out one of the means by
which, in his opinion, the main object could best be attained and
which in itself might not have been charitable if it had stood alone.
But I regret that I cannot agree with the Master of the Rolls in
limiting the scope of Lord Parker's words to matters of acute
political controversy. Whether a project for new legislation
excites acute political controversy may depend on the prudence
and good management of the promoters. If they have patiently
prepared the way by a gradual education of the public they
may succeed in eliminating much of the opposition. But I
cannot imagine that it is probable that a measure for the
suppression of the kind of research which is impugned by

3 [28]

this 'Society would. pass without acute controversy. It excites
little or no controversy at present because the immediate
prospects of its success are negligible, but, if the efforts of the
Society were to bring success near, acute and bitter controversy
would, it is almost certain, become inevitable. But in my opinion
it is not relevant to inquire whether the change of policy, for such it
would be, represented by the prohibition of experiments on animals,
might be accompanied by controversy or not. The relevant con-
sideration is that it would be a change of policy, and that this
Society makes the achievement of that change by legislation its lead-
ing purpose. That, in my opinion, settles the issue in this case. I
think that the same reason explains the decision of Inland Revenue
Commissioners v. Temperance Council o/ Christian Churches of
England and Wales, 136 Law Times 27, and I adopt the words
used of that case by Lord Justice Lawrence in Public Trustee v.
Hood, 1931 1 Chancery at page 252:—"In that case the gift was
" not for the promotion of temperance generally, but was for the
" promotion of temperance mainly by political means". The
Anti-Vivisection Society is similarly not a society for the pre-
vention of cruelty to animals generally, but a society for the
prevention of cruelty to animals by political means.

It would not, however, be right to pass by in silence the other
question which occupied so much of the debate. This question,
which in my opinion only arises on the assumption that the
appellant Society is held not to be a political body, is in brief
whether it is sufficient for it to prove that its purpose is to alleviate
or prevent the suffering of animals or whether it must prove that
on balance its purpose is beneficial to mankind. I confess that
my opinion has wavered and that I was for long inclined to agree
with the judgment of the Master of the Rolls. But after careful
consideration of the speech of my noble and learned friend Lord
Simonds, which I have had the advantage of reading in print,
I have come to agree with it. I do not propose to attempt to add
anything to what my noble and learned friend has said on this
part of the case.

(58663r) Wt. 8047-45 35 8/47 DL. G.338