Nov. 20, 21, 22; Dec. 20, 1945.
LORD GREENE, M. R. - 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 injuries 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 Foveaux, In re, decided by Chitty, J., in 1895 and approved in 1915 by this court in Wedgwood, In re. Macnaghten, J., held on appeal that he ought not to follow Foveaux, In re, in view of certain observations upon the decision which I shall presently discuss, and that as the attainment of the societys 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 summaries certain findings of fact of the Commissioners. The society is the same body as one of the three bodies concerned in the case of Foveaus, In re, 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' (Case, paragraph 4). 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' (Case, paragraph 20). '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 the experiments on living animals were to be forbidden, that is, 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 be 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, typhoid, 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 treatments, or of testing the purity of drugs or vaccines. Valuable knowledge has also been gained with regard to the treatment of burns, would infections and gas gangrene (Case, paragraph 9). To all such experiments on animals the society is opposed and, as a logical consequence, it is opposed to immunization of human beings against typhoid and diphtheria (Case, paragraph 6).
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 of the practice of subjecting live animals to experiments for scientific purposes, which was appointed in 1875 and reported in 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. Section 2 prohibited the performance of any such experiment except subject to the restrictions mentioned in the Act, and imposed penalties. Section 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 (paragraph 1) on for the testing of a former discovery (proviso 4) by a person duly licensed (paragraph 2). The subject of pain is dealt with in paragraphs 3 and 4 and provisos 2 and 3. Paragraph 3 provides that the animal must during the whole of the experiment be under the influence of an anesthetic of sufficient power to prevent it feeling pain, but this is subject to proviso 2, which permits the performance of experiments without anesthetics on a certificate being given that insensibility would frustrate the object of the experiment. Paragraph 4 requires that the animal be killed before it recovers from the anesthetic in cases where the pain is likely to continue after the effect of the anesthetic has ceased, or if serious injury has been inflicted; nut 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 a case the animal must be killed as soon as the object has been attained. I need not take up time by referring to other provisions of the Act which (Sections 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 an exceptional cases, that such experiments should only be carried out under an anesthetic, and that, save in exceptional cases, the animal should be destroyed while still under the anesthetic. It is apparently contemplated that, save in exceptional cases, pain will be eliminated by the use of anesthetic coupled with the destruction of the animal. On aspect of the practical operation of the Act is to be bound in an extract from the Home Secretarys return for 1938, quoted in paragraph 3 of the case. It appears that in that year 908, 846 experiments were performed without anesthetics, mostly inoculations 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 paragraph 9(b) Major-General Pools views are given. He said that 'it was inevitable that they must suffer some pain.' This pain was 'pure physical 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 as referred to. The 'tests' mentioned in this passage are described in paragraph 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 paragraph 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 anesthetised and killed before it recovered consciousness and would therefore suffer no pain at all. The work 'serve' is worth nothing.
In paragraph 12 of the case there is set out a statement Dr. Trevan with regard to 277, 565 experiments conducted in the course of a year at the Welcome Physiological Research Laboratories. He said that 'although there were grounds for thinking that great majority of cases the animals suffered no pain it was not always possible to be certain that some pain might not be involved. In some cases pain was inevitable.' In paragraph 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 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 has these convulsions suffered very much pain, but it would be impossible for anyone to say that they suffered non.'
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 consequential illness as distinct from pain, the facts appear to me to show beyond question they, 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 change 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 boring 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 anesthetic. 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, no 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 involved cruelty because the lend 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 Charity, J., in Foveauss case so decided, that its objects fall within the fourth of Lord Macnaghtens classes, namely, 'other purposes beneficial to the community' not falling under any of the three preceding heads. The crown relies on the findings of any of the three preceding heads. The crown relied on the findings of the Commissioner that the objects of the society, so far from being beneficial to the community, are positively harmful. The society replies that reasoning. It said that the objects of the society, being to suppress a practice which involves cruelty to, or at least ill treatment of, animals fall 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 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 by Swinfen Eady, L. J., in Wedgwood, In re (84 L. J. Ch., at p. 111;  1 Ch., at p. 122) : 'A gift for the benefit and protection of animals tends to prompt 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 object prevented from being good charitable objects by reason of the facts 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 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 animal is a purely moral one. As Chitty, J., said in Foveaus, In re (64 L. J. Ch., at p. 858;  2 Ch., at p. 507) : '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.' The same view appears in the passage quoted above from the judgment of Swinfen Eady, L. J., in Wedgwood, In re. 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.
It will not turn to the authorities. The leading case on the topic of anti-vivisection in Foveaus, In re. The Crown argues that this case was wrongly decided and should be overruled. Alternatively, the Crown says that the facts as they exist to-day are substantially different from what they were when Chitty, J., decided in Foveaux, In re, and that, event if that argument, which I do not accept, I will deal with later in this judgment. In Foveauxs case 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 to-day 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 Wedgwood, In re Assistant Commissioner did not think so either. Their 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 from of cruelty, namely, vivisection. This view he formed some nineteen years after the passing of the Cruelty to Animals Act of 1876, and with the report of the Royal Commission of 1876 before him, as appears from the record of foveaux, In re, which we obtained from the Public Record Office. Assuming no relevant difference in the existing circumstances is established, the decision in Foveaus, In re, appears to me to be stood for fifty years, and has been approved on numerous occasions. The authorities earlier in late than Foveaux, In re are examined in the judgment itself. It was approved in the Irish court of Appeal in Cranston, In re, in 1896, and in 1941 it was emphatically approved in this court in Wedgowoods case.
There are, however, certain observations in later cases which Macnagghten, J., held to justify him in declining to follow Foveaux, In re. The first case is Hummeltenberg, In re. In that case Russell, J., as the then was, negatived, and, in may view, correctly negatived, the view that it was for the donor land not for the court to judge 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 classes as charitable Russell, J., held that it was necessary to examine the evidence and see whether the object of the gift was beneficial to 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 Grove-Grady, In re, 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 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, M. R., stated that societies for the abolition of vivisection are charities within the legal definition, and cited Foveaux, In re. He referred to other authorities, and went on to say (98 L. J. Ch., at p. 264;  1 Ch., at p. 570) : '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, 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 use of mankind, as for food (Cranston, In re), or in what is called vivisection, such object are to be deemed charitable.' He quoted with approval the passage from the judgment of Russell, J., in Hummeltenberg, In re, referred to above, and proceeded to examine the facts of the case before him. He pointed out that all animals fera nature, 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, L. J. dissented, and held that the trust was a valid trust for protection of animals, and came within the principle of Wedgwood, In re. Russell, L. J., as he then was, began his judgment as follows (98 L. J. Ch., at p. 269;  1 Ch., at p. 582) : 'There can be no doubt that upon the authorities as they stand a trust in perpetuity for 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 Macnaghtens fourth class in Pemsels 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 excitation 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 in favour of animals held to be charitable under former decisions would beheld charitable to-day. For instance, anti-vivisection societies, which were held to be charities by Chitty, J., in Foveaux, In re, and were described by him as near the border line, might possibly in the light of late 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 ensure 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 or to the other animals, trust could not benefit the public.
He then examined the decision in Wedgwoods case, and pointed out correctly, if I may respectfully say so, that that case did not decide that any trust for the protection land benefit to the community. This proposition appears to me to be beyond among its objects the preservation of animals noxious to man, such as arts or mosquitoes, could not, I venture to think, be good charitable trust. Such a trust could not be said to 'promote feelings of humanity and morality,' to quote Swinfen Eady, L. J., again. No question of moral benefit to human race would be involved since man is entitled to protect him, self as much 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, L. J., thought that the benefit to humanity to be derived from the gift in Wedgwood, In re, 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 leave said with regard to noxious animal, a trust which is really land truly for a benefit of animals, a trust which is really and truly for the benefit of animals, which the trust Grove-Grady, In re, was not, in 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 human need persuades or compels individuals or the community at large to 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 Grove-Grady, In re, 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 Hummeltenberg, In re. 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, L. J. on Foveaux, In re, 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 Hummeltenberg, In re, and Grove-Grady, In re, 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 Hummeltenberg, In re, 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 boy 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 my authority which supports it.
It is important to follow the reasoning of Russell, J., on this matter. In Hummeltenbergs case he said (92 L. J. Ch., at p. 328;  1 Ch., at p. 242) : '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 charitable gifts the necessary element of publicity must be present. Now this proposition cannot, I think, mean that a gift which prima facie falls under one of the first three of Lord Macnaghtens classes, 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 lot 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 Kindersley, V. -C., in Att. -Gen. v. Merchant (36 L. J. Ch., at p. 5I; L. R. 3 Eq., at p. 43I) : '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.' And Sir George Jessel, M. R., in Campden Charities, In re, said of such a gift (18 Ch. at p. 327) : 'There is no doubt that it tends to demoralise the poor and benefit no one.' And in Pemsels case itself Lord Herschell said (6I L. J. Q. B., at p. 285; [189I] A. C., 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 level 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, in the definition given to the term charitable lip; purpose, are contrary to the public interest; that they tend to pauperise and thus to perpetuate the evil they are intended to cure, and bought to be discouraged rather than stimulated. It is common enough to hear lit 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 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 lit 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 Macnaghtens 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 Macnaghtens 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 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 attach 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 Resale, L. J., himself, in speaking of Foveaux, In re, went no further than to say 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 Foveauxs case 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 to-day the objects of the society, however charitable they were at the date of Foveaux, In re, cannot be regarded as charitable to-day because of the increase of the benefits derived from vivisection, is based on this interpretation of the words of Russell, L. J. 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 I895 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, L. J., 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 list 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 lout of that category be 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 lit to solve the problem involved in a manner satisfactory to his own conscience.
Counsel for the Crown argued that Foveaux, In re, 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 the case of 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 I895, as in 1945, the supporters of vivisection were maintaining that the infliction of pain was justifiable, but as Chitty, J., said (64 L. J. Ch., at p. 858;  2 Ch., at p. 507) : 'The question of what is land what is not justifiable is a question of morals, on which mens minds may reasonably differ, and do, in fact, differ.' 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, lone 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 on-charitable in that they comprise the repeal of the Cruelty to Animals Act of 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 Parked, 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 Lord Parkers language must be interpreted when he says (86 L. J. Ch., at p. 584;  A. C., at p. 442) : 'A trust for the attainment of political objects has always been held invalid, not because lit 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 hypothesis a good charitable object. If before the passing of the various statutes relating to cruelty to animals a society, having lap its object the suppression lot 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 Lord Parkers language are discussed in the fifth edition of Tudor on Charities, page 41.
I would allow the appeal.
MACKINNON, L. J. - 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 Pound 2,876 15s. 7d. That claim was based on the Income-tax Act, 1981, 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 Macnaghtens famous definition in Commissioners of Inland Revenue v. Pemsel 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 lot the evidence I am abundantly satisfied that the avowed purposes lot 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 section.' Other avowed objects are (1) 'opposition to the immunization, by inoculation, of the members of the Armed Forces against typhoid' and (2) 'opposition to the immunization 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 stigmatised as malignantly designed for the injury of the community. It is not surprising that the Commissioners in the Special Case state as their known conclusion of fact upon the evidence that 'the object lot 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 low, 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 Foveaux, In re. That case 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 charitable bequests. That question, as I conceive it, involved the determination of an issue of fact. The learned Judge says (64 L. J. Ch. at p. 857;  2 Ch., at p. 504) : 'To be a charity there must be some public purpose - something tending to the benefit lot 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 in his judgment. At the hearing of this appeal Lord Greene, M. R., sent to the Record Office for the file of Foveaux, In re. 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 learned 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 fulfill that task, giving as his reason that on this disputed issue it was the duty of the Court to 'stand neutral.' He says (64 L. J. Ch., at p. 856;  2 Ch., at p. 503) : '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 in the last words of his judgment he says (64 L. J. Ch., at p. 858;  2 Ch., 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.'
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 land the other party wrong. As it seems to me, the learned 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, land upon an assumption that the purpose of these societies was to prevent cruelty to animals. For, after referring to the cases about societies or the prevention of such cruelty, he adds (64 L. J. Ch. at p. 858; (1895) 2 Ch., 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 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. I readily assume that the motive which leads old women to make bequests to this society is concern for the welfare of the dear dogs. As lone who has lore than once experienced the grief of losing a beloved spaniel I can respect land applaud that motive; though I do not think my respect and applause can be expected when it becomes a matter of the dear guinea pigs and the dear arts. But the motive of those who provide the money is immaterial. So I think it was slightly held by Russell, J., as he then was, in Hummeltenberg, In re. The headnote (in the report at (1923) 1 Ch., at p. 237) 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 lit so; the matter is lone to be determined by the Court on the evidence before lit.' And in his judgment he disagrees with 'a sentence in the judgment in Foveaux, In re, 'to the contrary.
Upon the reasoning land assumption of Chitty, J., I conceive that a society whose object was to secure legislation making illegal the manufacture and sale of at traps and at 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 lit 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 Foveaux, In re, 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, L. J., in Grove-Grady, In re. 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 Foveauxs case 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 learned Judge in Foveauxs case 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, L. J., (read by MacKinnon, L. J.) - Approaching as I do for the first time the question of the application of Lord Macnaghtens fourth division in his definition of charitable trust in Pemsels 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. On page 103 of the second edition of Tyssons Charitable bequests the authors write : 'There remains the fourth of Lord Macnaghtens 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 July, 1945, number of the Law Quarterly Review, from which I have derived much assistance, it is said : '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 those 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, is 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 Att. -Gen. 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 Hummeltenberg, In re, and Grove-Grady, In re). 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 for the Court to decide, and if communal benefit is essential, upon what evidence is the Court to act Upon what principle can lit be said that the Court 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 the Chitty, J., in Foveaux, In re, where referring to this particular society, he says (64 L. J. Ch. at p. 856;  2 Ch. at p. 503) : 'In determining this question of charity the court do not enter into to 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 (64 L. J. Ch. at p. 858  2 Ch. at p. 507) : 'The purpose of these societies, whether they are right or wrong in the opinions they gold, 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 Hummeltenberg, In re, and Grove-Grady, In re, 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 function 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 disadvantage 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 the 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. Council for the society relied on the passage in the judgement of Fitzgibbon, L. J., in the case of Cranston, In re, quoted with approval in Wedgwood, In re, by the Master of the rolls, in which he said (84 L. J. Ch., at p. 108;  1 Ch., at p. 117) : 'Any gift which proceeds from a philantrophic or benevolent motive and which is intended to benefit an appreciable 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 emphasis the words 'and which will confer this 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, M. R., in Grove-Gradys case, but as it clear from the judgments in that case that the courts considered that benefit to the community and not merely to the animals would alone, irrespective of any resulting moral or material benefit to mankind, suffice to satisfy the requirements of Lord Macnaghtens fourth head. But however this may be, I know of no English authority for the proposition that ones some benefit to animal 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, L. J., in Grove-Gradys case. If such evidence is admissible, as, in may opinion, it is, this case is concluded in favour of the Crown, since the evidence given before and accepted by the Special Commissioner 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 the case of Foveaux, In re, must be overruled.
Leave to appeal to the House of Lords.