Inland Revenue Commissioners v The National Anti-Vivisection Society

 Inland Revenue Commissioners v The National Anti-Vivisection Society

TAXATION; Income Tax: TRUSTS

COURT OF APPEAL

LORD GREENE MR, MACKINNON AND TUCKER LJJ

20, 21, 22 NOVEMBER, 20 DECEMBER 1945

Income Tax – Exemption – Charity – Anti-Vivisection Society – Whether established for charitable purposes only – Admissibility of evidence as to detrimental

effect of society’s object – Income Tax Act, 1918 (c 40), ss 37(1) (b), 40.

The appellant society claimed exemption from income tax on their investment income, under the Income Tax Act, 1918, s 37(1)(b), on the ground that it was

“a body of persons established for charitable purposes only.” In allowing the claim, the Special Commissioners found that they were bound by authority so to

hold, in spite of the their view that the objects of the appellant society were, on balance, not for the public benefit. Part of the evidence received by the Special

Commissioners showed that, although suppression of cruelty to animals as such was to the public benefit, the full attainment of the appellant society’s objects

would be injurious to the community. On appeal, the question for the determination of the court was whether there was any evidence before the Special

Commissioners on which they could find that the society was established for charitable purposes only:—

Held – (i) [Per Tucker LJ]: although the appellant society had established by evidence that its objects were for the benefit of animals, the court was not

precluded from receiving evidence as to the corresponding detriment to the community.

Re Grove-Grady, Plowden v Lawrence applied.

(ii) [Lord Greene MR dissenting]: on the facts here, therefore, the appellant society was not a body established for charitable purposes only.

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Re Foveaux, Cross v London Anti-Vivisection Society overruled.

Decision of MacNaghten J ([1945] 2 All ER 529) affirmed.

Notes

In his dissenting judgment Lord Greene MR, holds that, from the strictly ethical standpoint, the moral benefit to man resulting from a trust to suppress cruelty

to animals is not to be regarded as offset by the material benefits due to the increased knowledge of remedial medicine imparted by vivisection. In any event,

prevention of cruelty to animals has already been held to be a good charitable object within the fourth class of Pemsel’s case and cannot now be altered. The

majority of the court, however, hold that there is no presumption that a society for the suppression of cruelty to animals is necessarily a charity. It is a

question of fact and the duty of the court is to decide upon the evidence whether the public benefit will be promoted by the existence of the society. The

attitude of Chitty J, in Re Foveaux that the court must “stand neutral” and pronounce no opinion upon the controversy between the promoters and the opposers

of vivisection cannot be supported, since this is the very issue of fact which the court exists to determine.

As to Meaning of Charities for Income Tax Purposes, see Halsbury, Hailsham Edn, Vol 17, pp 310–317, paras 617–624; and for Cases, see Digest, Vol

28, pp 82–84, Nos 469–483.

As to Charitable Purposes, see Halsbury, Hailsham Edn, Vol 1, pp 125, 126, para 166; and for Cases, see Digest Supp, Charities, Nos 4a, 208a.

Cases referred to in judgments

Re Foveaux, Cross v London Anti-Vivisection Society [1895] 2 Ch 501, 8 Digest 259, 206, 64 LJCh 856, 73 LT 202.

Re Wedgwood, Allen v Wedgwood [1915] 1 Ch 113, 8 Digest 259, 208, 84 LJCh 107, 112 LT 66.

Income Tax Special Purposes Comrs v Pemsel [1891] AC 531, 8 Digest 241, 1, 61 LJQB 265, 65 LT 621, 3 Tax Cas 53.

Re Cranston, Webb v Oldfield [1898] 1 IR 431, 8 Digest 259, 214i.

Re Hummeltenberg, Beatty v London Spiritualistic Alliance [1923] 1 Ch 237, Digest Supp, 92 LJCh 326, 129 LT 124.

Re Grove-Grady, Plowden v Lawrence [1929] 1 Ch 557, Digest Supp, 98 LJCh 261, 140 LT 659, varied on appeal, sub nom A-G v Plowden, [1931] WN 89.

Armstrong v Reeves (1890), 25 LR Ir 325, 8 Digest 258, 205i.

Marsh v Means (1857), 3 Jur NS 790, 8 Digest 312, 933, 30 LTOS 89.

A-G v Marchant (1866), LR 3 Eq 424, 8 Digest 330, 1128, 36 LJCj 47.

Re Campden Charities (1881), 18 ChD 310, 8 Digest 343, 1359, 50 LJCh 646, 45 LT 152.

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Lewis v Fermor (1887), 18 QBD 532, 2 Digest 289, 595, 56 LJMC 45, 56 LT 236.

Bowman v Secular Society Ltd [1917] AC 406, 8 Digest 265, 270, 86 LJCh 568, 117 LT 161.

A-G v National Provincial & Union Bank of England [1914] AC 262, Digest Supp, sub nom Re Tetley, A-G v National Provincial & Union Bank of England,

93 LJCh 231, 131 LT 34, affg SC sub nom Re Tetley, National Provincial & Union Bank of England Ltd v Tetley [1923] 1 Ch 258.

Appeal

Appeal by the taxpayer from a decision of Macnaghten J dated 27 July 1945, and reported ([1945] 2 All ER 529). The facts are fully set out in the judgment

of Lord Greene MR.

Federick Grant KC, Valentine Holmes KC and John Senter for the appellants.

The Solicitor General (Sir Frank Soskice KC), J H Stamp, and Reginald P Hills for the respondents.

Cur adv vult

20 December 1945. The following judgments were delivered.

LORD GREENE MR. The National Anti-Vivisection Society claim exemption from income tax on their investment income on the ground that they are a

body of persons established for charitable purposes only. The claim was admitted by the Special Commissioners in spite of their view that the objects of the

society, so far from being for the public benefit, were gravely injurious thereto. On this ground they would have held that the society could not be regarded as

a charity had they not considered themselves bound to hold otherwise by the authority of Re Foveaux decided by Chitty J and approved by this court in Re

Wedgwood. Macnaghten J held, on appeal, that he ought not to follow Re Foveaux in view of certain observations upon the decision which I shall presently

discuss, and that, as the attainment of the society’s object would be gravely injurious to the community, it was impossible to regard that object as charitable.

From that decision the society appeals.

It will be convenient at the outset to summarise certain findings of fact of the Commissioners. The Society is the same body as one of the three bodies

concerned in Re Foveaux under its then name of “The Victoria Street Society for the Protection of Animals from Vivisection united with the International

Association for the total suppression of Vivisection.” Its main object is still:

‘… the total abolition of vivisection including in that term all experiments on living animals whether calculated to inflict pain or not, and (for that

purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether … The work of the

society is to a large extent directed towards the prevention of cruelty to animals.’

The Commissioners held it to have 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

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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.’

The weight of the evidence called on behalf of the Crown, and accepted by the Commissioners, dealt with the advances in medical knowledge made by means

of experiments on animals in regard to the prevention or cure of various diseases, such as malaria, typhus and typhoid and yellow fever, diphtheria, tetanus,

smallpox and diabetes. The treatment of such diseases by inoculation, vaccines or drugs, as the case may be, has been rendered possible by means of

experiments on animals, whether for the purpose of ascertaining the causes of the disease, of testing the efficacy of suggested remedial treatment, or of testing

the purity of drugs or vaccines. Valuable knowledge has also been gained with regard to the treatment of burns, wound infections and gas gangrene. To all

such experiments on animals the society is opposed and (as a logical consequence) it is opposed to immunisation of human beings against typhoid and

diphtheria.

On the question of the extent to which cruelty or the infliction of pain or suffering is involved in experiments on animals, the matter stands as follows.

The Cruelty to Animals Act, 1876, was passed as a result of the report of the Royal Commission on the practice of subjecting live animals to experiments

􀂭 206􀀉 for scientific purposes which was appointed in 1875 and reported on 8 January 1876. The preamble recited that it was expedient to amend the law

relating to cruelty to animals by extending it to the cases of animals subjected when alive to experiments calculated to inflict pain. Sect 2 prohibited the

performance of any such experiment except subject to the restrictions mentioned in the Act and imposed penalties. Sect 3 gave a list of the restrictions. It will

be noticed that the Act, so far from prohibiting experiments calculated to give pain, in fact recognised that such experiments could lawfully be carried out

provided that the statutory restrictions were complied with. The restrictions limited the permitted experiments to those performed with a view to the specified

advancement of knowledge (para (1)) or for the testing of a former discovery (proviso (4)) by a person duly licensed (para (2)). The subject of pain is dealt

with in paras (3) and (4) and provisos (2) and (3). Para (3) provides that the animal must during the whole of the experiment be under the influence of an

anaesthetic of sufficient power to prevent it feeling pain, but this is subject to proviso (2) which permits the performance of experiments without anaesthetics

on a certificate being given that insensibility would frustrate the object of the experiment. Para (4) requires that the animal be killed before it recovers from

the anaesthetic in cases where pain is likely to continue after the effect of the anaesthetic has ceased or if serious injury has been inflicted; but this is subject to

an exception (proviso (3)) where a certificate is given that the killing of the animal would necessarily frustrate the object of the experiment; in such case the

animal must be killed as soon as that object has been attained. I need not take up time by referring to other provisions of the Act which (sect 22) does not

apply to invertebrate animals. The object of the Act therefore was to limit and regulate experiments calculated to give pain, to provide (save in exceptional

cases) that such experiments should only be carried out under an anaesthetic and that (save in exceptional cases) the animal should be destroyed while still

under the anaesthetic. It is apparently contemplated that, save in exceptional cases, pain will be eliminated by the use of anaesthetic coupled with the

destruction of the animal.

One aspect of the practical operation of the Act is to be found in an extract from the Home Secretary’s return for 1938. It appears that in that year

908,846 experiments were performed without anaesthetics, mostly incoculations and feeding experiments with a certain number of oral administrations,

inhalations, external applications, and the abstraction of body fluids. Experiments so performed, it is said, are “such as are attended by no considerable, if

appreciable, pain.” Further facts bearing on the question of pain are to be found in the evidence accepted by the Commissioners and set out in the case. In

para 9(b) Major-General Poole’s views are given. He said that “it was inevitable that they must suffer some pain.” This pain was “pure physical pain,” and if

the animals were properly treated, they did not suffer any “mental pain.” He then said that:

‘… a certain portion of the experiments involved no pain. In addition to the tests there was the preparation of anti-serum. There was practically no

pain attached to that; just the prick of a needle.’

I read this as meaning that the only experiments involving no pain beyond the prick of a needle are the preparation of anti-serum. No other such “painless”

experiments are referred to. The “tests” mentioned in this passage are described in para 9(a) of the case and involve infecting animals with the disease. The

meaning attributed by the profession to such a phrase as a “painless” experiment is illustrated in a statement at the end of para 9 of the case. The witness

pointed out that in the case of an experiment which would otherwise cause severe pain “such as the burning of a guinea pig,” the animal would be

anaesthetised and killed before it recovered consciousness and would, therefore, suffer no pain at all. The word “severe” is worth nothing.

In para 12 of the case there is set out a statement by Dr Trevan with regard to 277,565 experiments conducted in the course of a year at the Wellcome

Physiological Research Laboratories. He said that:

‘… although there were grounds for thinking that in the great majority of cases the animal suffered no pain it was not always possible to be certain

that some pain might not be involved. In some cases pain was inevitable.’

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In para 15 it appears that Professor Burn:

‘… did not think it possible to distinguish between experiments on animals which caused pain and those which did not cause pain.’

He took the example of Neoaraphenamine injections. What had to be determined was:

‘… the dose with which only 50 per cent. of the animals developed symptoms terminating in death. It was quite impossible to know beforehand

which of those animals was going to suffer pain and which was not. It was very difficult to say how much pain they would suffer, and there would be

no possible means of administering an Act which said that painless experiments need not be reported to the Home Office, but those which caused pain

must be reported. Therefore any Act of Parliament which attempted to lay down that there must be controlled experiments which caused pain, or that

experiments which caused pain must not be allowed, would in fact prevent all experiments on animals. For example, feeding experiments when the

deficiency in diet was a deficiency of Vitamin D1, caused convulsions in pigeons. He could not say that pigeons which had these convulsions suffered

very much pain, but it would be impossible for anyone to say that they suffered none.’

The whole of the evidence to which I have referred was accepted by the Commissioners, and must, therefore, be regarded as establishing the facts stated

by the witnesses. With the possible exception of the preparation of anti-serum referred to by Major-General Poole, who says nothing about consequential

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illness as distinct from pain, the facts appear to me to show beyond question that, while in the majority of cases pain, illness or, at best, the destruction of the

animal is involved, it is quite impossible to say that in any other case pain or illness is not involved. In other words, the experimenters have to take the chance

without having any means of knowing whether the animal suffers or not. This examination of the facts satisfies me that the practice, the suppression of which

the society wishes to bring about, is one which involves the ill-treatment (to use a less extreme word than “cruelty”) of animals in a manner which leads to

pain and suffering, or at the best death, after experiment under an anaesthetic. The best that can be said of it from that point of view is that in some cases there

may be no pain or suffering, but whether or not this is the case no one can tell. The controversy in the present case is whether in view of the admittedly

great—and indeed overwhelming—advantages derived from the practice of vivisection, the object of totally suppressing the practice is a good charitable

object. Nothing is to be gained by pretending that the practice does not involve ill-treatment of the animals subjected to it; and to say that it does not involve

cruelty because the end at which it aims is justifiable, and that, therefore, its suppression cannot be a good charitable object, in truth begs the very question

which we have to decide.

It is claimed by the society, and Chitty J, in Re Foveaux so decided, that its objects fall within the fourth of Lord MacNaghten’s classes, in Income Tax

Special Purposes Comrs v Pemsel ([1891] AC 531, at p 583), namely, “other purposes beneficial to the community” not falling under any of the three

preceding heads. The Crown relies on the findings of the Commissioners that the objects of the society, so far from being beneficial to the community, are

positively harmful. The society replies that this conclusion can only be reached by adopting an illegitimate method of reasoning. It is said that the objects of

the society being to suppress a practice which involves cruelty to, or at least ill-treatment of, animals fall within a well-established category of charity, and that

the charitable character of those objects cannot be altered by pointing to the consequential disadvantages which would flow from the achievement of them. In

particular it is said that in the present case this process of reasoning would involve the weighing of the moral benefits accruing to the community by the

suppression of cruelty and the inculcation of a love of animals against the material benefits derived from the improvement in medical knowledge. The court, it

is said, has no scales in which to weigh material against moral benefits.

If, in the present state of knowledge, it were possible to achieve, by some other method, the results obtained by means of vivisection so that it was merely

an alternative which could be dispensed with, I entertain no doubt whatever that the total suppression of vivisection would be a good charitable object. I

adopt, with respect, the elevated view of such matters expressed 􀂭 208􀀉 by Swinfen-Eady LJ, in Re Wedgwood ([1915] 1 Ch 113, at p 122):

‘A gift for the benefit and protection of animals tends to promote and encourage kindness towards them, 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.’

I accept without hesitation the view that the objects of the society, considered by themselves and without reference to the benefits derived from vivisection are

good charitable objects and fall within a well established category. Are those objects prevented from being good charitable objects by reason of the fact that

the acts to the suppression of which they are directed produce benefits of a very high order to the human race and, indeed, to the animal kingdom itself?

It is, I think, the better view that gifts for the benefit of animals derive their charitable status not from the fact that they are for the benefit of animals, but

from the fact that the community is benefited. Animals as such cannot, I think, be the beneficiaries under a charitable trust. Apart from the material benefits

to be derived from the proper treatment of animals useful to man, the benefit to the community which is derived from the proper treatment of animals is a

purely moral one. As Chitty J, said in Re Foveaux ([1895] 2 Ch 501, at p 507):

‘Cruelty is degrading to man; and a society for the suppression of cruelty to the lower animals, … has for its object … the advancement of morals

and education among men.’

The same view appears in the passage quoted above from the judgment of Swinfen-Eady LJ, in Re Wedgwood. The benefit, therefore, to the community at

which the society aims is a moral benefit, emphatically not a material one, and it is on that ground alone that the claim that its objects are charitable must be

rested.

I will now turn to the authorities. The leading case on the topic of anti-vivisection is Re Foveaux. The Crown argues that this case was wrongly decided

and should be overruled. Alternatively, the Crown says that the facts as they exist today are substantially different from what they were when Chitty J,

decided Re Foveaux, and that, even if that case was rightly decided, it does not govern the present case. This latter argument (which I do not accept) I will

deal with later in this judgment. In Re Foveaux the objects of the present appellants were found to be the total abolition of the practice of vivisection as

defined in the report of the Royal Commission. This phrase, which refers to the 1876 report, appears to mean “the practice of subjecting live animals to

experiments for scientific purposes” which was the matter upon which the Commission was required to report. It was suggested that the decision of Chitty J

was based on the view that the purpose of the maker of an alleged charitable gift was what determined whether or not it was in the eyes of the law charitable.

This view cannot today be regarded as correct. But I do not think that Chitty J based his opinion upon it, and it is clear that this court in Re Wedgweed did not

think so either. The real ground of his decision is, I think, that the prevention of cruelty to animals is a charitable object, and that the society existed for the

purpose of preventing a particular form of cruelty, namely, vivisection. This view he formed some 19 years after the passing of the Cruelty to Animals Act,

1876, and with the report of the Royal Commission of 1876 before him, as appears from the record of Re Foveaux which we obtained from the Public Record

Office.

Assuming no relevant difference in the existing circumstances is established, the decision in Re Foveaux appears to me to be conclusive of this appeal

unless we are prepared to overrule it. It has stood for fifty years, and has been approved on numerous occasions. The authorities earlier in date than Re

Foveaux are examined in the judgment itself. It was approved in the Irish Court of Appeal in Re Cranston, and in 1914 it was emphatically approved in this

court in Re Wedgwood. There are, however, certain observations in later cases which MacNaghten J held to justify him in declining to follow Re Foveaux.

The first is Re Hummeltenberg in which Russell J (as he then was), negatived, and, in my view, correctly negatived, the view ([1923] 1 Ch 237, at p 242), that

it was for the donor and not for the court to judge 􀂭 209􀀉 whether a gift was charitable as being for the benefit of the public. He added that 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. The

gift there in question was for training mediums and did not fall within any established category of charity. In order, therefore, to decide whether or not it could

be classed as charitable, Russell J held that it was necessary to examine the evidence and see whether the object of the gift was beneficial to the community.

He rejected the argument that this question fell to be decided by the intention of the testator. I do not think that the words of Russell J are, or were, intended to

be applicable to the case of a gift whose objects fall within an established category of charity. If he so intended, I must respectfully disagree.

But the case principally relied on by the Crown is that of Re Grove-Grady, a decision of this court. The gift there was a peculiar one. The branch of it

relevant for present purposes had for its object the acquisition of land for the provision of refuges for the preservation of “all animals, birds or other creatures

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not human.” All such creatures were to be preserved from molestation or destruction by man. Romer J held the gift to be a good charitable gift. In the Court

of Appeal, Lord Hanworth MR stated ([1929] 1 Ch 557, at p 570) that societies for the abolition of vivisection are charities within the legal definition and

cited Re Foveaux. He referred to other authorities, and went on to say (ibid):

‘From these authorities it seems clear that if the object be to enhance the condition of animals that are useful to mankind, or to secure good treatment

for animals, whether those animals are useful to mankind or not (see per the VICE-CHANCELLOR in Armstrong v. Reeves (25 L.R. Ir. 325, at p. 341),

and see per WOOD, V.-C., in Marsh v. Means or to insure humane conduct towards and treatment of them whether in respect of a particular subjection

of them to the use of mankind, as for food (In Re Cranston), or in what is called vivisection, such objects are to be deemed charitable.’

He quoted with approval the passage from the judgment of Russell J in Re Hummeltenberg referred to above, and proceeded to examine the facts of the case

before him. He pointed out that all animals ferea naturae, including noxious and predatory animals, were included and that the struggle for existence was to

be given free play so that the animals living in the sanctuary would be free to molest and harry one another. Such a purpose he considered was not beneficial

to animals, and did not denote any elevating lesson to mankind. On these findings the question which arises in this case or anything approaching it did not, of

course, arise.

Lawrence LJ, dissented, and held, that the trust was a valid trust for the protection of animals, and came within the principle of Re Wedgwood. Russell LJ

(as he then was) began his judgment as follows ([1929] 1 Ch 557, at p 582):

‘There can be no doubt that upon the authorities as they stand a trust in perpetuity for the benefit of animals may be a valid charitable trust if in the

execution of the trust there is necessarily involved benefit to the public; for if this be a necessary result of the execution of the trust, the trust will fall

within LORD MACNAGHTEN’S fourth class in Pemsel’s case, namely, “trusts for other purposes beneficial to the community.” So far as I know there

is no decision which upholds a trust in perpetuity in favour of animals upon any other ground than this, that the execution of the trust in the manner

defined by the creator of the trust must produce some benefit to mankind. I cannot help feeling that in some instances matters have been stretched in

favour of charities almost to bursting point; and that a decision benevolent to one doubtful charity has too often been the basis of a subsequent decision

still more benevolent in favour of another. The cases have accordingly run to fine distinctions, and speaking for myself I doubt whether some

dispositions in favour of animals held to be charitable under former decisions would be held charitable today. For instance, anti-vivisection societies,

which were held to be charities by CHITTY, J., in Re Foveaux and were described by him as near the border line, might possibly in the light of later

knowledge in regard to the benefits accruing to mankind from vivisection be held not to be charities.’

The trust in question he held not to be a good charitable trust for reasons which may be summarised thus: it was not a trust directed to insure absence or

diminution of pain or cruelty in the destruction of animal life; it would not permit the destruction, however painless, of any animal noxious to mankind 􀂭 210􀀉

or to the other animals or even its destruction in its own interest. The carrying out of such a trust could not benefit the public. He then examined the decision

in Re Wedgwood and pointed out correctly, if I may respectfully say so, that that case did not decide that any trust for the protection and benefit of animals

necessarily involves a benefit to the community. This proposition appears to me to be beyond argument. A trust, for example, which has as its object, or

included among its objects, the preservation of animals noxious to man, such as rats or mosquitoes, could not, I venture to think, be a good charitable trust.

Such a trust could not be said to “promote feelings of humanity and morality,” to quote Swinfen-Eady LJ again. No question of moral benefit to the human

race would be involved since man is entitled to protect himself as such against noxious animals as against his fellow men if they attack him. In the case of

noxious animals, the suppression of cruelty in dealing with them would, however, surely be a good charitable object. Russell LJ thought that the benefit to

humanity to be derived from the gift in Re Wedgwood lay in the suppression of cruelty to animals. I do not myself think, if I may respectfully say so, that the

decision was based on so narrow a ground; and the weight of authority appears to me to support the proposition that, subject to what I have said with regard to

noxious animals, a trust which is really and truly for the benefit of animals (which the trust in Re Grove-Grady was not) is a good charitable trust, quite apart

from the question of the suppression of cruelty, not because animals themselves are the beneficiaries, but because kindness and love towards animals are

virtues, the cultivation of which is conducive to the moral advancement of humanity. I should be ashamed to hold otherwise. The proposition is not made

untrue by the fact that human weakness or urgent need persuades or compels individuals or the community at large to sacrifice the moral benefit. When this

happens it merely means that a moral problem has been solved in a particular way, and that the end is thought to justify the means. It does not mean that the

moral problem does not exist, or that the means are in themselves free from evil. I should not care to find myself having to argue with anyone who regarded

the practice of operations on living animals as anything better than a lamentable necessity.

The decision in Re Grove-Grady was to the effect that the trust was not for the benefit of animals and that no benefit to the community could flow from

such a trust. These conclusions were arrived at upon a consideration of the facts, in accordance with the principle stated by Russell J in Re Hummeltenberg.

But if upon the facts the court had come to the conclusion that the benefit of animals (excluding animals noxious to man) was the real object of the gift, I

venture to think that the decision would have been different. In any case the decision in no way approaches the present case, and the comments of Russell LJ

on Re Foveaux, though deserving the utmost respect, were dicta only. Also his proposition that the question of benefit to humanity must be decided on the

evidence although, if I may say so, indisputably correct in relation to the questions which were before him in Re Hummeltenberg and Re Grove-Grady is liable

to serious misconstruction if applied to such a problem as the present. To say that the question is whether the facts bring a gift within a category of charitable

gifts is undoubtedly true: it was so laid down by Russell J in Re Hummeltenberg in opposition to the view that the intention of the donor is the decisive factor.

But to say that a gift, the purpose of which is in itself charitable as falling under an established head of charity, can be taken out of that category by proof that

the achievement of its purpose would bring in its train countervailing disadvantages is, as it appears to me, a different proposition altogether; and, apart from

the dicta of Russell J (if indeed this is what they mean), I know of no authority which supports it.

It is important to follow the reasoning of Russell J on this matter.

In Re Hummeltenberg he said this ([1923] 1 Ch 237, at p 240):

‘But no matter under which of the four classes a gift may prima facie fall, it is still, in my opinion, necessary (in order to establish that it is

charitable in the legal sense) to show (1) that the gift will or may be operative for the public benefit, and (2) that the trust is one the administration of

which the court itself could if necessary undertake and control.’

It is quite clear that in referring to “public benefit” the emphasis is on the word “benefit,” that is, the statement is not merely asserting that in all 􀂭 211􀀉

charitable gifts the necessary element of publicity must be present. This proposition cannot, I think, mean that a gift which prima facie falls under one of the

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first three of Lord MacNaghten’s classes in Income Tax Special Purposes Comrs v Pemsel, for example, a gift for the relief of poverty, or a gift for the

advancement of religion, can fail to be regarded as charitable on the ground that it may be thought to be in fact, on balance, calculated to injure rather than to

benefit the community. No attempt of the kind, so far as I have been able to discover, has ever been made, much less succeeded. Cases have, of course,

occurred in which a question has arisen whether the object of a gift is truly the advancement of religion or education or the relief of poverty. But I know of no

case in which this question having been answered in the affirmative, the gift was nevertheless held not to be a charitable gift.

The case of “dole” charities is a good example. These have always been regarded as good charities; but in directing schemes the court has refused to

sanction the augmentation of the doles or to increase their number, not because they were not charitable, but because the court in its discretion has regarded

them as mischievous in their results. This was strongly put by Sir R T Kindersley, V-C, in A-G v Marchant (LR 3 Eq 424, at p 431):

‘I think, by common consent it is established at the present day that there is nothing more detrimental to a parish, and especially to the poor

inhabitants of it, than having stated sums periodically payable to the poor of that parish by way of charity … The only effect of such gifts is to

pauperise the parish … I think it would be detrimental to the poor of these parishes to increase what has already been dedicated to them by the testator.’

In Re Campden Charities Sir George Jessel MR said of such a gift (18 ChD 310, at p 327):

‘There is no doubt that it tends to demoralise the poor and benefit no one.’

In Pemsel’s case itself Lord Herschell said this ([1891] AC 531, at p 572):

‘It is a mistake to suppose that men limit their use of the word “charity” to those forms of benevolent assistance which they deem to be wise,

expedient, and for the public good. There is no common consent in this country as to the kind of assistance which it is to the public advantage that men

should render to their fellows, or as to the relative importance of the different forms which this assistance takes. There are some who hold that even

hospitals and almshouses, which are specially mentioned by the legislature, discourage thrift, and do upon the whole harm, rather than good. This may

be an extreme view entertained by few, but there are many who are strongly convinced that doles, and other forms of beneficence, which must

undoubtedly be included, however narrow the definition given to the term “charitable purpose,” are contrary to the public interest; that they tend to

pauperise and thus to perpetuate the evil they are intended to cure, and ought to be discouraged rather than stimulated. It is common enough to hear it

said of a particular form of almsgiving that it is no real charity, or even that it is a mischievous form of charity. I think, then, that a purpose may be

regarded by common understanding as a charitable purpose, and so described in popular phraseology even though opinions differ widely as to its

expediency or utility.’

The existing categories of objects regarded by the law as charitable have been fixed by judicial decision. Lord MacNaghten, in Income Tax Special

Purposes Comrs v Pemsel, summarised and classified those categories. A gift which is shown in fact to be for the advancement of education or of religion, or

for the relief of poverty, must, in my opinion, be treated by the courts as a good charitable gift, just as if a statute had laid it down that a gift of such a

description was a good charitable gift. Once the fact is established, any inquiry into consequence appears to me to be irrelevant. But it is argued that, however

true this may be of Lord Macnaghten’s first three classes, it cannot be true of the fourth which actually speaks of objects “beneficial to the community.” But

this is to misunderstand Lord Macnaghten’s language. His fourth class sweeps up a variety of objects which had been, or might in the future be, held to be

beneficial to the community. In the present case, if my view of the authorities is correct, the prevention of cruelty to, or the infliction of pain upon, animals,

and the benefit of animals not noxious to man are good charitable objects which have been held to be beneficial to the public, and I do not see how at this time

of day it can be asserted that a particular exemplification of those objects is not beneficial merely because in that particular case the 􀂭 212􀀉 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. It is to be noticed that

Russell LJ himself, in speaking of Re Foveaux, went no further than to say ([1929] 1 Ch 557, at p 582), that anti-vivisection societies “might possibly in the

light of later knowledge in regard to the benefits accruing to mankind from vivisection be held not to be charities.” This is far from suggesting that Re

Foveaux was wrongly decided as the Crown now asserts. It appears to mean that an object which was originally charitable may subsequently become

non-charitable because of an increase in the benefits derived from the practice at the suppression of which it is aimed. This, if I may say so, with the utmost

respect, is to me a novel conception, and, in the absence of authority binding upon me, I am unable to accept it.

The alternative argument of the Crown, namely, that in the light of the facts as known today the objects of the society, however charitable they were at

the date of Re Foveaux cannot be regarded as charitable today because of the increase of the benefits derived from vivisection, is based on this interpretation

of the words of Russell LJ. But, apart from the objections which, for my part, I see to the proposition of law involved, the argument appears to me to break

down on the facts. The benefits derived from vivisection were in 1895 very great indeed, as appears from the report of the Royal Commission which, as I have

said, was in evidence before Chitty J a fact which can only be ascertained by an examination of the record. Russell LJ does not appear to have been aware of

this. It is true that a large field of benefit to humanity has since been opened up, particularly in regard to the treatment of disease. But if these benefits are

now to be regarded as sufficient to deprive a gift aimed at the suppression of the ill-treatment of animals of its charitable character, I cannot see why the

known benefits were not sufficient in 1895. But Chitty J did not even inquire into that matter.

In the present case an additional argument is available which I find convincing, that an object which falls within an established category of charity, if its

qualification for holding that status consists in a moral benefit to the community, cannot be taken out of that category by proving that great material benefits

are derived from the practice which the gift aims at suppressing. I cannot see how any court can be asked to weigh material against moral benefit, however

easy a particular judge, speaking as an individual, may find it to solve the problem involved in a manner satisfactory to his own conscience.

Counsel for the Crown [Mr Stamp] argued that Re Foveaux was wrongly decided because, as he said, Chitty J had misused the word “cruelty.” That

word, he said, could not properly be used to describe the justifiable infliction of pain, and he quoted Lewis v Fermor. That case was decided upon the special

language of a criminal statute and has not, in my opinion, any general application. In 1895, as in 1945, the supporters of vivisection were maintaining that the

infliction of pain was justifiable; but as Chitty J said ([1895] 2 Ch 501, at p 507):

‘The question of what is and what is not justifiable is a question of morals, on which men’s minds may reasonably differ and do in fact differ.’

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In any case, the view that the suppression of cruelty is a necessary factor in a charitable gift for the benefit of animals is not, as I have already indicated, one to

which I can subscribe.

The last argument on which I must say a word is to the effect that the objects of the society are in part at any rate non-charitable, in that they comprise the

repeal of the Cruelty to Animals Act, 1876, and the promotion of legislation forbidding experiments on living animals. These objects, it is said, are “political”

and “political” objects are not charitable. Lord Parker of Waddington, in Bowman v Secular Society Ltd, referred to the objects of the Secular Society which

comprised matters of acute political controversy. It is, I think, in reference to matters of that kind that the language of Lord Parker of Waddington must be

interpreted when he says ([1917] AC 406, at p 442):

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‘… a trust of 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 … ’

I feel difficulty in applying these words to a change in the law which is, in common parlance, a “non-political” question. I do not in any case think that they

can apply when the desired legislation is merely ancillary to the attainment of what is, ex hypothesi, a good charitable object. If before the passing of the

various statutes relating to cruelty to animals a society having as its object the suppression of cruelty to animals had included, as a means of attaining its main

object, the ancillary object of obtaining the enactment of that very legislation, it could scarcely have been said that it thereby lost its status as a society

established for charitable purposes only. A charitable institution must surely be at liberty to achieve its object by the most efficient and practical means which

may well be legislation. Some of the difficulties arising from the language of Lord Parker Of Waddington are discussed in Tudor on Charities, 5th Edn, p 41.

I would allow the appeal.

MACKINNON LJ. The appellant society made a claim in December 1943, before the Special Commissioners of Income Tax to be exempt from income tax

on its income from investments amounting to £2,876 15s 7d. That claim was based on the Income Tax Act, 1918, s 37, which provides for such exemption for

the income from investments “of any body of persons or trust established for charitable purposes only.” If this society is established “for charitable purposes

only,” those purposes must be within the fourth category in Lord MacNaghten’s famous definition in Comrs of Inland Revenue v Pemsel ([1891] AC 531, at p

583), namely, as being “a trust for other purposes beneficial to the community not falling under any of the preceding heads.”

Whether this society is “established for charitable purposes only” that is, “for purposes beneficial to the community,” is clearly a question of fact to be

decided upon evidence. The Commissioners heard a considerable amount of evidence, and its details are clearly stated in the special case. Having read that

account of the evidence, I am abundantly satisfied that the avowed purposes of this society are not beneficial to the community. Indeed, I am equally satisfied

that the successful achievement of those purposes would inflict incalculable injury on the community and on all mankind. The primary avowed purpose of the

society is to induce the Legislature “totally to suppress the practice of vivisection.” Other avowed objects are (1) “opposition to the immunisation (by

innoculation) of the members of the armed forces against typhoid,” and (2) “opposition to the immunisation of the civil population against diphtheria.” Of the

immense benefits to mankind which medical research has conferred by means of what is summarily called vivisection there was an imposing body of

testimony. This evidence, say the Commissioners in the special case, “we accepted in its entirety.” It is probably not too much to say that those benefits

equal, if the sum of them does not exceed, the blessings on mankind bestowed earlier by the labours of Jenner, Simpson and Lister.

The main purpose of this society is to put an end to all further medical research of this character. And its avowed aim of preventing inoculation against

typhoid and diphtheria is to deprive mankind of some of the benefits that such medical research has already conferred upon it. In short, the purposes of this

society, so far from being “beneficial to the community,” might, with reason, be stigmatized as malignantly designed for the injury of the community. It is not

surprising that the Commissioners in the special case state as their own conclusion of fact upon the evidence that” the object of the society, so far from being

for the public benefit, is gravely injurious thereto, with the result that the society cannot be regarded as a charity.” I cannot imagine that any body of sensible

men, upon the evidence produced to them, could arrive at any other conclusion.

But though this was their conclusion as sensible men upon the facts, the Commissioners were unhappily persuaded that, as a matter of law, by reason of a

reported case, they were constrained to hold that this society is established for purposes beneficial to the community. That case is Re Foveaux, and was

decided by Chitty J as he then was, fifty years ago. It concerned bequests to two anti-vivisection societies, and the question was whether these were good

􀂭 214􀀉 charitable bequests. That question, as I conceive, involved the determination of an issue of fact. Chitty J says ([1895] 2 Ch 501, at p 504):

‘To be a charity there must be some public purpose—something tending to the benefit of the community.’

As it appears to me, the issue which the judge was called upon to decide was: “Has it been proved to me, by the evidence to which I have listened, that the

purposes of these societies are beneficial to the community?” Incidentally, I may remark, it is not possible to discover from the report what was the evidence

called at the hearing. The judge makes no reference to it in his judgment. At the hearing of this appeal Lord Greene MR sent to the Record Office for the file

of Re Foveaux. From that it appeared that the material before the court by way of evidence was the report of the Royal Commission on Vivisection of 1876. I

have not had an opportunity of looking at that weighty volume, and I do not think it was necessary for me to do so. I expect that the Royal Commissioners

referred to, and possibly quoted, the evidence of witnesses before them, and that there was sharp conflict of opinion between such witnesses.

If, however, I am right in thinking that the issue to be determined by the judge was: “Has it been proved to me, by the evidence adduced before me, that

the purposes of these societies are beneficial to the community?”, he in terms declined to fulfil that task, giving as his reason that on this disputed issue it was

the duty of the court to “stand neutral.” He says ([1895] 2 Ch 501, at p 503:

‘… the court does not enter into, or pronounce any opinon on, the merits of the controversy which subsists between the supporters and opponents of

the practice of vivisection. It stands neutral.’

He goes on to say later (ibid, at p 507):

‘The intention [of these societies] 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.’

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I do not understand this reasoning. Surely “the controversy between the supporters and opponents of the principle of vivisection” is simply whether the

practice of that principle is or is not of benefit to the community? And that was the issue which the court was called upon to determine. In deciding any issue

of fact a tribunal cannot “stand neutral.” It must decide that one party to the dispute is right and the other party wrong. As it seems to me, the judge was

declining to decide the very issue that was raised before him. In finding, as he does, that “the intention of these societies is to benefit the community,” the

judge did not, so far as I know, rely upon evidence he had heard or read, but rather upon the fact that societies for the prevention of cruelty to animals had, in

previous cases, been held to be charitable, and upon an assumption that the purpose of these societies was to prevent cruelty to animals. For, after referring to

the cases about societies for the prevention of such cruelty, he adds (ibid, at p 507):

‘… it would seem to follow that an institution for the prevention of a particular form of cruelty to animals is also charitable … Cruelty is degrading

to man; and a society for the suppression of cruelty to the lower animals, whether domestic or not, has for its object, not merely the protection of the

animals themselves, but the advancement of morals and education among men.’

This seems to me to confuse the motives of those who support such a society as this with their money with the purposes of the society that receives and uses

that money. But the motive of those who provide the money is immaterial. So, I think, it was rightly held by Russell J as he then was, in Re Hummeltenberg.

The head-note seems properly to summarise his judgment:

‘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.’

And he disagrees with “a sentence in the judgment… in Re Foveaux to the contrary.”

Upon the reasoning and assumption of Chitty J I conceive that a society, whose object was to secure legislation making illegal the manufacture and

􀂭 215􀀉 sale of rat-traps and rat poisons, would have to be held established for charitable purposes; and that the more readily if the tribunal insisted on

“standing neutral” upon the question whether rats are, or are not, vermin that are a menace to mankind. Indeed, if it be true, as some may think, that:

‘… the poor beetle, that we tread upon,

In corporal sufferance finds a pang as great

As when a giant dies … ’

a society to promote legislation to prohibit the manufacture and sale of all insecticides would seem to have good ground for a like claim.

For these reasons, I cannot think that the case of Re Foveaux constrains me, as the Commissioners thought it constrained them, to hold that the appellant

society is “established for charitable purposes only.” It was said in argument that that case has been referred to without disapproval, or even with approval, in

this court. That may be so; but the references were only to incidental matters. The main ground of the decision has never been the subject of discussion and

review. And a serious doubt as to its correctness was voiced by Russell LJ, in Re Grove-Grady. In this appeal its correctness is directly involved, and for my

part I think it should be overruled. In truth that phrase need not be used, and is perhaps inaccurate. Chitty J in Re Foveaux had to decide a question of fact,

though, as I think, he declined to decide it. The question to be decided here is one of fact, and it would be more correct to say that some of the considerations

stated by the judge in Re Foveaux as relevant to his conclusion cannot be regarded as admissible.

In the result my conclusion is that the decision of MacNaghten J allowing the appeal from the Commissioners was right, and that this appeal from his

judgment should be dismissed with costs.

TUCKER LJ [read by MacKinnon LJ]. Approaching, as I do for the first time, the question of the application of Lord Macnaghten’s fourth division in his

definition of charitable trusts in Pemsel’s case, namely, “trusts for other purposes beneficial to the community not falling under any of the preceding heads,”

and experiencing some difficulty in ascertaining from the authorities the principles that have been applied, I am relieved to find that others more familiar with

the subject have not met with any greater measure of success.

In Tyssen’s “Law of Charitable Bequests,” 2nd Edn, the authors write:

‘There remains the fourth of LORD MACNAGHTEN’S heads, namely, “other purposes beneficial to the community not falling under any of the

preceding heads.” These purposes cannot be classified or reduced to any principle. All we can do is to look at the cases and see what has been

decided.’

More recently in an article in the Law Quarterly Review, July, 1945, Vol 61, from which I have derived much assistance, it is said (at p 279):

‘… The fourth head, gifts for the benefit of the community, is a collection of disjointed decisions, for which no complete definition or connecting

principle has ever been enunciated.’

If these statements are correct, as I am inclined to think they are, the Court of Appeal is, at any rate, left with a considerable measure of freedom in deciding

any particular case that comes before it. Although no complete or satisfactory connecting principle may be discernible, certain propositions are, I think,

established which afford some guidance to the correct approach to the problem. Two of the propositions are as follows: (1) Not all trusts beneficial to the

community are charitable. Benefit to the community is an essential requisite, but there is a further necessary, if somewhat elusive, element, namely, that the

trust should be analogous to trusts for purposes enumerated in or within the spirit of the Statute of Elizabeth: see A-G v National Provincial Bank. (2) 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. It does not depend upon the intention of the donor: see Re Hummeltenberg, and Re Grove-Grady.

No 2 is, in my view, vital to the decision of the present case, which raises the question of the admissibility of certain evidence led for the purpose of

negativing any presumption there might otherwise have been that the objects of this society were or might be beneficial to the community. If this is a matter

􀂭 216􀀉 for the court to decide, and if communal benefit is essential, upon what evidence is the court to act? Upon what principle can it be said that the court

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must arrive at its decision without hearing evidence as to the inestimable benefits or incalculable harm that may result to the community in any particular

case? If it be said that the court is being called upon to perform an impossible task, or one better suited to the Legislature, I would answer that this might be a

good reason for removing such matters from the purview of the courts, but that it can be no justification for requiring the courts to adjudicate blindfold. No

authority has been cited for the proposition that such evidence is inadmissible save the statements of Chitty J in Re Foveaux, where he says ([1895] 2 Ch 501,

at p 503), referring to this particular society:

‘In determining this question of charity the court does not enter into, or pronounce any opinion on, the merits of the controversy which subsists

between the supporters and opponents of the practice of vivisection. It stands neutral.’

And later (ibid, at p 507):

‘The purpose of these societies, whether they are right or wrong in the opinions they hold, is charitable in the legal sense of the term. The intention

is to benefit the community; whether, if they achieved their object, the community would, in fact, be benefited is a question on which I think the court is

not required to express an opinion.’

With great respect, this seems to me to conflict with the later decisions in Re Hummeltenberg, and Re Grove-Grady, to the effect that it is the function of

the court to decide the question of benefit to the community on the evidence before it, and appears to be an abdication by the court of its functions in favour of

the intention of the donor based on some supposed irrebuttable presumption of moral benefit to the community resulting from a movement directed to the

alleviation or prevention of suffering amongst animals. In this connection I would observe that in the case of societies for the prevention of cruelty to animals

one would not normally expect to find any conflict between the moral benefit and the material disadvantages to man resulting from the diminution of cruelty.

We are, as a race, peculiarly solicitous for the welfare of animals, but, none the less, both the law and the practice of society recognise that animals may be

used for the service and benefit of man, even at the expense of the infliction of some suffering. The offence of “cruelty,” broadly speaking, involves an

element of wantonness or the causing of unnecessary suffering, and, in considering what is necessary or justifiable, the requirements of man are to some extent

taken into consideration. If, however, in the case of a trust for the benefit of animals, such a conflict does arise, it is, in my view, the duty of the court to

decide, and to decide on the evidence adduced with reference to the resulting benefit or detriment to the community.

Counsel for the appellants relied on the passage in Re Cranston in the judgment of Fitzgibbon LJ quoted with approval in Re Wedgwood by Lord

Cozens-Hardy MR ([1915] 1 Ch 113, at p 117), in which it was said ([1898] 1 IR 431, at p 446):

‘… 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.“’

Here I would emphasise the words “and which will confer the supposed benefit” as indicating the duty of the court to inquire whether the benefit will in

fact result. These words were again quoted with approval by Lord Hanworth MR, in Re Grove-Grady ([1929] 1 Ch 557, at p 572), but as it is clear from the

judgments in that case that the court considered that benefit to the community, and not merely to the animals, was necessary, I doubt whether it was intended

to endorse the view, if, indeed, Fitzgibbon LJ ever held it, that benefit to the animal world alone, irrespective of any resulting moral or material benefit to

mankind, would suffice to satisfy the requirements of Lord Macnaghten’s classification under the fourth head in Income Tax Special Purposes Comrs v

Pemsel. But however this may be, I know of no English authority for the proposition that, once some benefit to animals is established, the court is precluded

from receiving evidence as to the corresponding detriment to mankind. Such a proposition appears to me to be negatived by the whole trend and reasoning of

the judgment of Russell LJ in Re Grove-Grady.

􀂭 217􀀉

If such evidence is admissible, as, in my opinion, it is, this case is concluded in favour of the Crown, since the evidence given before, and accepted by,

the Special Commissioners was all one way and stood uncontradicted and unchallenged. I am in complete agreement with the judgment of MacNaghten J and

consider that this appeal should be dismissed, and that Re Foveaux must be overruled.

Appeal dismissed with costs. Leave to appeal to the House of Lords.

Solicitors: Shield & Son (for the appellants); Solicitor of Inland Revenue (for the respondents).

F Guttman Esq Barrister.

[1946] 1 All ER 218