United Kingdom House of Lords Decisions

[2]

Lord Wright

MY LORDS,

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.

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.

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,

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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.

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

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.

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.

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.

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.

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.)

5 [14]

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

[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.

[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 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.

[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.

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.

[23] 9

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

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

[26]

Lord Normand

MY LORDS,

[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.

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.

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