GILMOUR
v.
COATS AND OTHERS
8th April, 1949.
Lord
Simonds
Lord du
Parcq
Lord
Normand
Lord
Morton of
Henryton
Lord Reid
Lord Simonds
MY LORDS,
The Appellant, Ethel Gilmour, is the present Prioress of the Carmelite
Priory of St. Charles’ Square, Notting Hill, London. In that capacity she
appeals against a judgment of the Court of Appeal, whereby that Court
dismissed an appeal from a judgment of Mr. Justice Jenkins who had in
effect declared the purposes of the Carmelite Priory not to be charitable
in the technical sense which the law ascribes to that word.
The question arises in this way. By a declaration of trust made on the
10th June, 1946, between the Respondent, Evelyn Dudley Coats, of the one
part and herself and George Bellow (therein called ” the Trustees “) of the
other part a sum of £500 cash was settled upon trust after payment of
costs for investment as therein mentioned and to hold the resulting trust
fund ” Upon trust if the purposes of the Roman Catholic Community situate
” and known as the Carmelite Priory, St. Charles’ Square, Notting Hill, in the
” County of London, are charitable to apply the income of the Trust Fund
” to all or any such purposes . . . but if the purposes of the said com-
” munity are not charitable then upon trust to apply the Trust Fund to all
” or any of the purposes of the Converts’ Aid Society of 20, Holmes Road,
” Twickenham, Middlesex.” This settlement was admittedly made for the
purpose of raising the question which has now reached this House. Accord-
ingly within a short time an originating summons was issued in the Chancery
Division by the trustees, to which the present Appellant and certain persons
representing the Converts’ Aid Society, who are the present Respondents,
were made Defendants, asking how the trustees ought to apply the income
of the trust fund. The question, though framed in this general way, was
intended to raise the issue whether the purposes of the Carmelite Priory
were charitable. For it was clear that the settlement created a perpetuity
in favour of that community, so that, if the purposes were not charitable,
the gift over in favour of the Converts’ Aid Society would take effect.
What then were the purposes of this Carmelite Priory, which I will some-
times refer to as ” the Convent ” or ” the community “? Upon this matter
evidence was given by the Appellant herself and by His Eminence Cardinal
Griffin, the Roman Catholic Archbishop of Westminster. This evidence
is stated at length in the very careful judgment of Mr. Justice Jenkins and
1 will refer to certain salient features of it. The whole of it has been care-
fully considered by the House.
It appears that this community is one of the communities of the Discalced
Nuns of the Order of Our Blessed Lady of Mount Carmel, and that the
Discalced Friars and Nuns have been a separate branch of the Order under
the jurisdiction of their own Father General since the General Chapter of
the whole Order held at Cremona in the year 1593. They were founded
by St. Theresa of Avila with the object of restoring the strict enclosure
and intensifying the contemplative life of the communities and promoting
their share in the apostolate. The first convent of nuns was founded by
her at Avila in 1562. The convent here in question was founded in the
year 1878 from the Convent of the Incarnation in Paris and from it 33
other convents have been founded in England, Scotland and Wales.
The Discalced Carmelite Nuns throughout the world follow the Primitive
Rule, which was drawn up by St. Albert Patriarch of Jerusalem and con-
firmed by Pope Innocent IV in 1247, and the Constitutions of 1591 as
modified in 1926 to bring them into conformity with the new code of
Canon Law of the Roman Catholic Church. Each Carmelite Convent
2
consists of not more than 20 or 21 nuns who live in community and are
presided over by a Prioress. Each convent is autonomous and all are
subject to the jurisdiction of the General of the Discalced Carmelite Friars
or of the local Bishop. The purposes of the nuns are conveniently sum-
marised in the prologue to the Constitutions of the Discalced Carmelite
Friars which states ” two vocations in their due order have been divinely
” ordained. The more important aim of our life shall be the love and
” contemplation of divine things and the secondary aim the apostolate, par-
” ticularly all that pertains to our neighbours’ salvation.”
The nuns take vows of perpetual poverty, chastity and obedience and live
under rules which impose and regulate the strict enclosure and observance
of silence, which are said to be the conditions of the true and fruitful following
of the contemplative life. So too their rules prescribe the occupations
which are to fill their lives. They must assist devoutly and every day at
the celebration of the mass and the recital of the Divine Office and other
offices and prayers of the Church, must spend so many hours a day in
mental prayers which are offered with general or special intentions in
furtherance of their aims, must never be idle but must spend all the time
that is not occupied in community duties in prayer or spiritual reading or
work in their cells. Further, the rules prescribe practices to further the
spirit of humility and particular mortifications, as for example a monastic
fast lasting from September 14th to Easter, and the prohibition throughout
their lives of those aids to comfort which by ordinary women are regarded
as necessities rather than luxuries of life.
This, then, is the life which it is the purpose of this community to promote
in the women who join it. Is it a charitable purpose and is a trust for
its furtherance a charitable trust?
The community does not engage in, indeed is by its rules debarred from,
any exterior work, such as teaching, nursing or tending the poor, which
distinguishes the active branches of the same Order. A Catholic woman,
it is said, joins such a contemplative Order as this to promote in herself
more fully and perfectly the love of God, expressed in as perfect a sub-
mission to His will as she can achieve with the help of His Grace, to pro-
mote that love in her neighbour and to make reparation to God for the
sins of mankind. It is the teaching of the Church that the religious life
thus led is, as it is called, the State of Perfection. But it is not a complete
statement of their purpose to say that it is merely to work out their own
salvation. For it is the established belief of the Roman Catholic Church,
as appears from the Apostolic Constitution ” Umbratilem ” that the prayers
and other spiritual penances and exercises, in which the nuns engage for
the benefit of the public, in fact benefit the public by drawing down upon
them grace from God, which enables those who are not yet Christians to
embrace the Christian religion and those who are already Christians to
practice Christianity more fully and fruitfully, and, further, that the prayers
and other spiritual exercises of the nuns are the more efficacious by virtue
of the fact that they devote their lives with especial devotion to the service
of God. It is this benefit to all the world, arising from the value of their
intercessory prayers, that the Appellant puts in the forefront of her case
in urging the charitable purpose of the trust.
Nor is it only upon the intercessory value of prayer that the Appellant
relies for the element of public benefit in their lives. For it is the evidence
of Cardinal Griffin—and I do not pause to ask whether it is evidence of
fact or opinion—that the practice of the religious life by the Carmelite nuns
and other religious is a source of great edification to other Catholics—and
indeed in innumerable cases to non-Catholics—leading them to a higher
estimation of spiritual things and to a greater striving after their own spiritual
perfection and that the knowledge that there are men and women who are
prepared to sacrifice all that the worldly in man holds dear in Order to attain
a greater love of God and union with Him inculcates in them a greater
estimation of the values and importance of the things which are eternal
than they would have if they had not these examples before them. Here
then is the second element of public benefit, upon which the Appellant
relies, the edification of a wider public by the example of lives devoted to
prayer.
3
I will reserve for final consideration an argument which was not urged
in the Courts below; that the trusts declared by the settlement are beneficial
to the public in that qualification for admission to the community is not
limited to any private group of persons but any person being a female
Roman Catholic may be accepted, and therefore those trusts provide facilities
for the intensified and most complete practice of religion by those members
of the public who have a vocation for it. Your Lordships were reluctant
to listen to an argument upon which you have not the advantage of the
opinions of the learned Judges in the Courts below, but in the special
circumstances of this case thought fit to admit it.
I turn then to the question whether, apart from this final consideration,
the Appellant has established that there is in the trusts which govern this
community the element of public benefit which is the necessary condition
of legal charity. If now for the first time the necessity for determining that
question arose, it might be a more difficult one to answer than it now
appears to me to be.
But, my Lords, when I consider the law of charity, its origin and the
manner of its development, when I find that, though communities such as
this have existed over a considerable period and their charitable character
has been rarely advocated and never sustained, I do not think that it is
possible to open the door and admit them to the house of charity unless
there is some novel and compelling reason for doing so.
When I speak of the law of charity, I mean that law which the Court
of Chancery and its successor, the High Court of Justice, has evolved from
a consideration of the statute 43 Eliz. c. 4. It is a commonplace that that
statute, as its title implied, was directed not so much to the definition of
charity as to the correction of abuses which had grown up in the administra-
tion of certain trusts of a charitable nature. But from the beginning it
was the practice of the Court to refer to the preamble of the statute in
order to determine whether or not a purpose was charitable. The objects
there enumerated and all other objects which by analogy ” are deemed
” within its spirit and intendment ” and no other objects are in law charitable.
This is settled and familiar law. I refer to it for two reasons. First, I
think that it follows that, however valuable an investigation of the earlier
law may be for determining the legality of religious practices (as was
shown in Bourne v. Keane [1919] A.C. 815), it is of negligible importance
for determining whether an object is charitable. Three hundred and fifty
years have passed since the statute became law; few, if any, subjects have
more frequently occupied the time of the Court. The law of mortmain, the
law of perpetuity, and in latter days the revenue law, in all these aspects it
has over and over again been the vital issue whether or not an object is
charitable, and always it is primarily to the statute of Elizabeth and not
behind it that the Court has looked for guidance.
And this leads me to my second reason. A great body of law has
thus grown up. Often it may appear illogical and even capricious. It
could hardly be otherwise when its guiding principle is so vaguely stated
and is liable to be so differently interpreted in different ages. But, be that
as it may, I suppose that if there was any question upon which in this
branch of the law an answer based upon authority could confidently be
given, it would be the question whether a gift to a community such as this
was a gift for charitable purposes. This is no question of a patent mis-
interpretation of a statute. If it were, following Bourne v. Keane, I might
not hesitate to say that a new departure should be made. But it is far
otherwise. It is a matter in which the Court has consistently over a long
period of time, acting on those principles which it has laid down for its own
guidance, held that a particular object is not charitable. I do not seek
to qualify what I recently said in the National Anti-Vivisection Society
Case [1948] AC 31 that there may be circumstances in which the Court
will in a later age hold an object not to be charitable which has in earlier
ages been held to possess that virtue. And the converse case may be
possible. That degree of uncertainty in the law must be admitted. But I
would ask your Lordships to say that it is only a radical change of circum-
64994 A 2
4
stances, established by sufficient evidence, that should compel the Court
to accept a new view of this matter. Let me then examine briefly the law as
it is to-day and, having done so, ask what are the compelling reasons for a
change.
I need not go back beyond the case of Cocks v. Manners (L.R. 12 Eq. 574),
which was decided nearly 80 years ago by Wickens V.C. In that case the
testatrix left her residuary estate between a number of religious institu-
tions, one of them being the Dominican Convent at Carisbrooke, a com-
munity not differing in any material respect from the community of nuns
now under consideration. The learned Judge who was, I suppose, as deeply
versed in this branch of the law as any judge before or since (for he had
been for many years junior counsel to the Attorney General in equity
cases), used these words, which I venture to repeat, though they have
already been cited in the Courts below: ” On the Act [sc. the Statute of
” Elizabeth] unaffected by authority I should certainly hold that the gift
” to the Dominican Convent is neither within the letter nor the spirit of
” it; and no decision has been referred to which compels me to adopt a
” different conclusion. A voluntary association of women for the purpose
” of working out their own salvation by religious exercises and self-denial
” seems to me to have none of the requisites of a charitable institution,
” whether the word ‘ charitable’ is used in its popular sense or in its legal
” sense. It is said, in some of the cases, that religious purposes are charit-
” able, but that can only be true as to religious services tending directly
” or indirectly towards the instruction or the edification of the public; an
” annuity to an individual, so long as he spent his time in retirement and
” constant devotion, would not be charitable, nor would a gift to ten persons,
” so long as they lived together in retirement and performed acts of devo-
” tion, be charitable. Therefore the gift to the Dominican Convent is not,
” in my opinion, a gift on a charitable trust.”
No case, said the learned Vice Chancellor, had been cited to compel
him to come to a contrary conclusion, nor has any such case been cited
to your Lordships. Nor have my own researches discovered one. But
since that date the decision in Cocks v. Manners has been accepted and
approved in numerous cases. They are referred to in the judgment of
Mr. Justice Jenkins and I need only remind your Lordships, first, that
Lord Lindley in In re White [1893] 2 Ch. 41 used these words: ” A society
” for the promotion of private prayer and devotion by its own members,
” and which has no wider scope, no public element, no purposes of general
” utility would be a ‘ religious ‘ society, but not a ‘ charitable ‘ one: see Cocks
“v. Manners,” and, secondly, that in Dunn v. Byrne [1912] AC 407.
Lord Macnaghten in delivering the judgment of the Privy Council refers
to Cocks v. Manners as the exemplar of a case in which the purpose would
be considered by a devout Catholic to be conducive to the good of religion
but which is ” certainly not charitable.”
I have thus stated the law as it was universally accepted in case-law (except
some recent Irish cases) and also in all text books of authority at the date
when these proceedings were begun, and I now ask what is the argument
upon which your Lordships are invited to unsettle it.
Apart from what I have called the final argument, which I will deal
with later, the contention of the Appellant rests not on any change in the
lives of the members of such a community as this nor, from a wider aspect,
on the emergence of any new conception of the public good, but solely
on the fact that for the first time certain evidence of the value of such lives
to a wider public together with new arguments based upon that evidence has
been presented to the Court. Never before, it was urged, has the benefit
to be derived from intercessory prayer and from edification been brought to
the attention of the Court; if it had been, the decision in Cocks v. Manners
would, or at least should, have been otherwise. I have examined the records
of Cocks v. Manners which were supplied to me by the Record Office
and I find that the case has been fully and accurately reported. There
was no such evidence as was adduced in this case by the Appellant and
Cardinal Griffin. Nor, as appears from the Report, was any argument
addressed to this specific point nor any judgment upon it.
5
What weight is to be attributed to this, which is the mainstay of the
Appellant’s case? To me, my Lords, despite the admirable argument of
Mr. Charles Russell, the weight is negligible. True it is that Wickens V.C.
emphasised that aspect of the religious life which is admittedly its more
important aim, ” the love and contemplation of divine things “. But ” its
” secondary aim the apostolate, particularly all that pertains to our neigh-
” bours’ salvation ” (I use the Appellant’s words) is no new thing and I
cannot suppose that it was absent from the learned Judge’s mind that those,
who devote their lives to prayer, pray not for themselves alone, or that they
believe that their prayers are not in vain. Nor, as I think, can he have been
unaware of the effect which the example of their lives may have upon
others. As I venture to think, these aspects of the case were neither insisted
upon in evidence or argument nor discussed by the learned Judge because
they do not afford any real support for the contention that there is in the
purpose of the community the element of public benefit which is the con-
dition of legal charity.
My Lords, I would speak with all respect and reverence of those who
spend their lives in cloistered piety, and in this House of Lords Spiritual
and Temporal, which daily commences its proceedings with intercessory
prayers, how can I deny that the Divine Being may in His wisdom think
fit to answer them? But, my Lords, whether 1 affirm or deny, whether I
believe or disbelieve, what has that to do with the proof which the Court
demands that a particular purpose satisfies the test of benefit to the com-
munity? Here is something which is manifestly not susceptible of proof.
But, then it is said, this is a matter not of proof but of belief: for the value of
intercessory prayer is a tenet of the Catholic faith, therefore in such prayer
there is benefit to the community. But it is just at this ” therefore ” that I
must pause. It is, no doubt, true that the advancement of religion is
generally speaking one of the heads of charity. But it does not follow
from this that the Court must accept as proved whatever a particular
church believes. The faithful must embrace their faith believing where
they cannot prove: the Court can act only on proof. A gift to two or ten or
a hundred cloistered nuns in the belief that their prayers will benefit the
world at large does not from that belief alone derive validity any more
than does the belief of any other donor for any other purpose. The import-
ance of this case leads me to state my opinion in my own words but, having
read again the judgment of the learned Master of the Rolls, I will add
that I am in full agreement with what he says upon this part of the case.
I turn to the second of the alleged elements of public benefit, edification by
example. And I think that this argument can be dealt with very shortly.
It is in my opinion sufficient to say that this is something too vague and
intangible to satisfy the prescribed test. The test of public benefit has,
I think, been developed in the last two centuries. Today it is beyond doubt
that that element must be present. No Court would be rash enough to
attempt to define precisely or exhaustively what its content must be. But
it would assume a burden which it could not discharge if now for the
first time it admitted into the category of public benefit something so
indirect, remote, imponderable and, I would add, controversial as the benefit
which may be derived by others from the example of pious lives. The
Appellant called in aid the use by Wickens V.C. of the word ” indirectly ”
in the passage that I have cited from his judgment in Cocks v. Manners,
but I see no reason to suppose that that learned Judge had in mind any
such question as your Lordships have to determine.
I must now refer to certain cases upon which the Appellant relied. They
consist of a number of cases in the Irish Courts and re Cans [1934] Ch. 162,
a decision of Mr. Justice Luxmoore. A consideration of the Irish cases
shows that it has there been decided that a bequest for the saying of masses
whether in public or in private is a good charitable bequest; see e.g., A. G.
v. IR. 426 and O’Hanlon v. Logue [1906] 1 I.R. 247. And
in re Caus Luxmoore J. came to the same conclusion. I would expressly
reserve my opinion upon the question whether these decisions should be
sustained in this House. So important a matter should not be decided
except upon • direct consideration of it. It is possible that, particularly in
6
regard to the celebration of masses in public, good reason may be found
for supporting a gift for such an object as both a legal and a charitable
purpose. But it follows from what I have said in the earlier part of this
opinion that I am unable to accept the view, which at least in the Irish cases
is clearly expressed, that in intercessory prayer and edification that public
benefit which is the condition of legal charity is to be found. It is perhaps
significant that even in Ireland, where in regard to the saying of masses
the law has thus been established, there is no consensus of opinion that
a gift to a community of contemplative nuns is charitable: see Munster and
Leinster Bank v. A. G. [1940] I.R. 19 re Maguire [1943] I.R. 238 re Keogh
[1945] I.R. 13. From the judgment of Black J. in the first cited case I would
quote these words (at pp. 30, 31 of the report) which succinctly express my own
view, ” There are perhaps few forms of human activity, good in themselves,
” but solely designed to benefit individuals associated for the purpose of
” securing that benefit, which may not have some repercussions or conse-
” quential effects beneficial to some section of the general community: and
” unless a further and sweeping inroad is to be made on the rule against
” perpetuities, the line must be drawn somewhere. Cocks v. Manners has
” drawn it”.
Of the decision of Mr. Justice Luxmoore in re Caus, I would only say
that his ratio decidendi is expressly stated to be, first, that it (i.e., a gift for
the saying of masses) enables a ritual act to be performed which is recognised
by a large proportion of Christian people to be the central act of their
religion, and, secondly, that it assists in the endowment of priests whose
duty it is to perform the ritual act. The decision therefore does not assist
the Appellant’s argument in the present case and I make no further com-
ments on it.
It remains finally to deal with an argument which, as I have said, was
not presented to the Court of Appeal but appears in the Appellant’s formal
case. It is that the element of public benefit is supplied by the fact that
qualification for admission to membership of the community is not limited
to any group of persons but is open to any woman in the wide world who
has the necessary vocation. Thus, it is said, just as the endowment of a
scholarship open to public competition is a charity, so also is a gift to enable
any woman (or, presumably, any man) to enter a fuller religious life a
charity.
To this argument which, it must be admitted, has a speciously logical
appearance, the first answer is that which I have indicated earlier in this
opinion. There is no novelty in the idea that a community of nuns must,
if it is to continue, from time to time obtain fresh recruits from the outside
world. That is why a perpetuity is involved in a gift for the benefit of such
a community and it is not to be supposed that, to mention only three
masters of this branch of the law, Vice Chancellor Wickens, Lord Lindley,
or Lord Macnaghten failed to appreciate the point. Yet by direct decision
or by way of emphatic example a community such as this is by them regarded
as the very type of religious institution which is not charitable. I know of
no consideration applicable to this case which would justify this House in
unsettling a rule of law which has been established so long and by such
high authority. But that is not the only, nor indeed the most cogent,
reason why I cannot accede to the Appellant’s argument. It is a trite
saying that the law is life, not logic. But it is, I think, conspicuously true
of the law of charity that it has been built up not logically but empirically.
It would not, therefore, be surprising to find that, while in every category
of legal charity some element of public benefit must be present, the Court
had not adopted the same measure in regard to different categories, but
had accepted one standard in regard to those gifts which are alleged to be
for the advancement of education and another for those, which are alleged to
be for the advancement of religion, and it may be yet another in regard to the
relief of poverty. To argue by a method of syllogism or analogy from the
category of education to that of religion ignores the historical process of
the law.
Nor would there be lack of justification for the divergence of treatment
which is here assumed. For there is a legislative and political background
peculiar to so-called religious trusts, which has I think influenced the develop-
7
ment of the law in this matter. Thus, even if the simple argument that, if
education is a good thing, then the more education the better, may appear
to be irrefutable, to repeat that argument substituting ” religion ” for ” educa-
” tion ” is to ignore the principle which I understand to be conceded that not
all religious purposes are charitable purposes. It was, no doubt, this considera-
tion which led Wickens V.C. to say that a gift to a Dominican convent was
” one of the last gifts which the Legislature which passed the Act would have
” thought of including in it”. Upon this final argument I would add this
observation. I have stressed the empirical development of the law of
chanty and your Lordships may detect some inconsistency in an attempt
to rationalise it. But it appears to me that it would be irrational to the point
of absurdity on the one hand to deny to a community of contemplative
nuns the character of a charitable institution but on the other to accept as
a charitable trust a gift which had no other object than to enable it to be
maintained in perpetuity by recruitment from the outside world.
Finally 1 would say this. I have assumed for the purpose of testing this
argument that it is a valid contention that a gift for the advancement of
education is necessarily charitable if it is not confined within too narrow
limits. But that assumption is itself difficult to justify. It may well be that
the generality of the proposition is subject to at least two limitations. The
first of them is implicit in the decision of Russell J. in re Hummeltenberg
[1923] 1 Ch. 237: the second is one that is not in the nature of things likely
to occur, but, if it can be imagined that it was made a condition of a gift
for the advancement of education that its beneficiaries should lead a
cloistered life and communicate to no one, and leave no record of, the fruits
of their study, I do not think that the charitable character of the gift could be
sustained.
For the reasons that I have given I am of opinion that this appeal should
be dismissed.
Lord Simonds: I understand there is some question to be raised on the
matter of costs. I will give Counsel an opportunity, when the other noble
Lords have delivered their opinions, of making representations upon it.
Lord du Parcq
MY LORDS,
1 cannot usefully add any words of my own to what has been said by my
noble and learned friend on the Woolsack in support of the view that a
principle which has for so long been followed and is so well established as
that laid down in Cocks v. Manners cannot now be repudiated. For the
reasons which he has so convincingly stated I believe it to be the duty of
your Lordships’ House to treat that decision as conclusive of this appeal,
unless it be possible to find a real distinction between that case and this.
It is on the question whether any such distinction exists that 1 wish to add
some observations.
The appellant seeks to draw the necessary distinction on three grounds,
none of which, as my noble and learned friend has pointed out, was very
likely to have been overlooked in earlier cases if it had any validity. As to
the third of these grounds I have only to express my concurrence in what my
noble and learned friend has said. The two other contentions were founded
on evidence which had not been before the court in Cocks v. Manners.
First, there was here evidence that in the belief of the Roman Catholic Church
” the prayers and mortifications of the members of the Church for their
” neighbour both inside and outside the Church advance religion and are an
” inestimable spiritual benefit to their neighbour.” (I am now quoting from
the affidavit of Cardinal Griffin.) Secondly, there was evidence, which
again was lacking in Cocks v. Manners, that the practice of the religious
life by the Carmelite Nuns is a source of great edification to other Roman
Catholics and also (it is said) ” in innumerable cases to non-Catholics.”
Under both these heads, it was submitted, the necessary element of public
benefit is found.
8
My Lords, the first of these three heads of the argument must stand or fall
with a further submission which was powerfully urged at the bar and is
not without the support of authority. This submission requires the acceptance
of the proposition that when a question is raised as to the spiritual efficacy
of religious acts, the court is bound to assume that the doctrines of the
religion which practises them are true, and must ascertain according to those
doctrines whether or not they have the spiritual efficacy which is claimed
for them.
The learned counsel for the appellant, in their presentation of this argument,
naturally relied on the decision of the Court of Appeal in Ireland in O’Hanlon
v. Logue [1906] 1 I.R. 247, and in particular on the judgment of Palles, C.B.
in that case. In the earlier case of The Attorney-General v. Delaney I.R.
10 C.L. 104, at pp. 126-127, the learned Chief Baron had stated the law
in these words: —
” I am of opinion that a gift for a religious, or for any other purpose,
” to be charitable within the Statute of Elizabeth, must, to some extent
” at least, be in the nature of a general public use. It must be of such
” a nature that the Court can determine that its execution shall confer
” a benefit upon the public or upon some section of the public. . . .
” To constitute a charitable use in analogy to the Statute of Elizabeth
” the purpose must be one which the Court itself can ascertain and
” declare to be public or beneficial to the public. It cannot, in my
” opinion, derive the element of public benefit from the efficacy spiritual
” or temporal which, according to the faith of the testatrix, the religious
” act may possess.”
Over thirty years later, in O’Hanlon v. Logue, the learned Chief Baron
was persuaded that he had been wrong in the view which he had expressed
in Delaney’s case, and reached the conclusion that if, according to the
doctrines of the religion in question, an act of divine service does result in
public benefit, either temporal or spiritual, the act must, in law, be deemed
charitable.
My Lords, in my respectful opinion the earlier of these two opinions of
Palles, C.B. is, and the later is not, consonant with the law as it has
developed in England. I must add, after giving careful consideration to
the reasoning of the learned Chief Baron in the later case, that it does not
seem to me to be convincing.
I am now referring to the third reason which the Chief Baron gave for his
decision, a reason which, as he said, was ” of wider application ” than the
others which he gave, and would, if valid, be applicable to the present case.
It may be stated fairly, I think, in this way. The law can only know what
spiritual efficacy religious acts have by knowing first what efficacy the doctrines
of the particular religion concerned ascribe to them. ” But when it knows
” those doctrines, although it knows that, according to them, such an act
” has the spiritual efficacy alleged, it cannot know it objectively and as a
” fact, unless it also knows that the doctrines in question are true.” It
cannot know this, and therefore one of two results must follow. Either ” the
” law must cease to admit that any divine worship can have spiritual efficacy
‘” to produce a public benefit; or it must admit the sufficiency of spiritual
” efficacy, but ascertain it according to the doctrines of the religion whose
” act of worship it is.”
My Lords, the learned Chief Baron ruled out the former of these alternatives
as impossible, because to accept it, he said, would be ” to refuse to recognise
” the essence of all religion.” The other result therefore, he held, must
necessarily ensue.
It must be remembered that the law of England recognises as proper
objects of charitable endowment at least all those varied forms in which the
Christian religion is professed and practised. In some respects there are
differences and irreconcilable conflicts of opinion between some of the
many religious bodies which are thus recognised. An argument which leads to
the conclusion that the courts, when they are considering whether it is for the
9
public benefit that property should be devoted for ever to a religious purpose
are compelled to accept as true any doctrine of a particular religion which
ascribes efficacy, spiritual or temporal, to acts which that religion enjoins
upon its followers, cannot I think be sound. The learned Chief Baron
spoke of a ” hypothetical admission ” of the truth of the religious belief,
but a court is not performing its duty if it treats a hypothesis as a proved
fact and proceeds to draw inferences from it. It appears to me, there-
fore, that the conclusion to which one is forced is that expressed by the
learned Chief Baron in the earlier case of Delaney, that the purpose of the
trust must be one which the court itself can determine and declare to be
beneficial to the public.
Judged by this test, the case before your Lordships cannot in my opinion
be distinguished on the first ground from that of the convent in Cocks v.
Manners. The conclusion which the Chief Baron feared, that the law
would deny spiritual efficacy to all prayers and religious exercises, by no
means follows from the adoption of his original opinion. The law may
assume, without inconsistency, that all intercessory prayer for spiritual
benefits, offered by devout persons of no matter what religion, is capable
of benefiting the public generally or a section of it. This will not suffice
the appellant. It is not merely on the ground that the nuns offer inter-
cessory prayer that the appellant’s case must rest. It is not to be supposed
that if they did not live in seclusion they would cease to pray, though it
is of course true that a life in the world would not allow them to give their
time so unremittingly to prayer and devotion. The religion which they follow
with such self-sacrificing zeal itself teaches, as the Cardinal’s affidavit tells
us, that ” public prayer excels any other.” It has not been suggested that
private prayer is a fit subject for charitable endowment unless there is
something to distinguish it from that offered by the ordinary man. What it
would be necessary to accept as a fact in order to show ” public benefit”
in the sense in which that phrase is used of charity is that (I again quote
the Cardinal’s words) ” the prayers and mortifications of the contemplative
” and practising religious are especially efficacious.” Here we are outside the
region of proof as it is understood in our mundane tribunals. This is ground
on which the law does not presume to tread.
When I turn to the second contention, I find that (apart from the fact
that, as has already been said, edification by example is too remote a public
benefit to be considered) the same difficulty arises. It is true that those
who share the beliefs of these devout women, and some, it may be, of those
who do not share them, are moved to admiration, if not to imitation, by
the knowledge of their example. But the total effect on the community
outside the convent of a life lived according to ideals which one faith, but
by no means every faith, ranks among the highest, is something which the
law has no means of judging. It happens that in the present case the litigants
who were before the court were at one in accepting the tenets of the Roman
Catholic religion. If there were evidence before a court concerning religious
acts which the creed of a particular church commended, or enjoined as
duties, and if it were said on behalf of one party to a dispute that these acts
resulted in the edification of many, and on behalf of another, that they
aroused in the hearts of no less a number of persons feelings injurious to
the advancement of religion, it must surely be conceded that no court could
properly attempt the task of deciding between the disputants. Indeed it
could hardly be desired by the devout followers of any creed that such a task
should be essayed by a temporal court.
I have only to add that although I am unable to accept part of the reasoning
which led the Court of Appeal in Ireland to the conclusion that a bequest
for Masses, whether they were to be said privately or in public, was a good
charitable bequest, I do not desire to express, and indeed have not formed,
any opinion as to the propriety of that decision on other grounds. It follows
that I must reserve my opinion as to the correctness of the decision of
Luxmoore J. in In re Cans.
I concur in the recommendation of the Committee that this appeal should
be dismissed.
10
Lord Normand:
MY LORDS,
1 agree with the opinions which have been delivered by my noble and
learned friend on the Woolsack and by my noble and learned friend Lord
du Parcq. I have had the advantage of reading the opinion of my noble
and learned friend Lord Reid and I concur also with it.
Lord Morton of Henryton:
MY LORDS,
I also have had the advantage of reading the opinions to which my noble
and learned friend Lord Normand has referred. I agree with them and I
have come to the conclusion that 1 cannot usefully add anything to them.
Lord Reid
MY LORDS,
In this case a sum of money was given to be held by trustees ” Upon trust
” if the purposes of the Roman Catholic Community situate and known as
” the Carmelite Priory St. Charles’ Square Notting Hill in the County of
” London are charitable to apply the income of the Trust Fund to all or
” any such purposes . . . but if the purposes of the said Community are
” not charitable then Upon trust” for other purposes. The question for
decision is whether or not the purposes of that community are charitable
in the legal sense of that word. It is admitted and properly admitted by
the Appellant that it is not enough to make this gift charitable in the legal
sense that it is a gift for religious purposes: the Appellant can only succeed
by showing that the gift involves a benefit to the public. On the other hand
it is not disputed that if benefit to the public can be held to be established
the appeal must succeed. Accordingly the sole point in issue is whether
or not there is any ground on which it can be held that the gift would
involve public benefit.
The community referred to is a community of Discalced Carmelite Nuns
belonging to one of the Orders of the Roman Catholic Church which are
called contemplative Orders. ” They are so called because their members
” are strictly enclosed in their convents and engage in no exterior works but
” devote their lives to contemplation and penance, contemplation including
” not only assisting at Mass and reciting the Divine Office and other vocal
” prayers but also reflection of the mind on God and the things of God
” which evokes from the Will or heart acts of adoration, propitiation, love and
” intercession towards God and which in the case of contemplatives as a
” general rule passes sooner or later and to a less or greater degree into
” mystical prayer.” I quote from the Affidavit of Cardinal Griffin. That
affidavit and the affidavit of the Prioress of the Community set out at length
the purposes of the Order and the teaching of the Roman Catholic Church.
As I understand it from these affidavits the essential part of that teaching
for the present purpose is that the daily prayers and mortification which
these nuns offer for others advance religion and are an inestimable spiritual
benefit to those both inside and outside the Church, and that the prayers
and mortification of contemplatives are especially efficacious in view of the
high degree of union with God which results from the following of their
vocation.
Mr. Russell for the Appellant submitted three grounds on each of which
he argued that the Appellant is entitled to succeed: if none of these three
grounds is valid the appeal must fail. His main argument was that a Court
is entitled to accept the belief of Roman Catholics that spiritual benefit
to mankind flows from intercessory prayer as sufficient to establish the
necessary element of public benefit. It was not suggested that the effect of
prayer is capable of legal proof by evidence. No temporal Court of Law
11
can determine the truth of any religious belief: it is not competent to
investigate any such matter and it ought not to attempt to do so. How then
does the law deal with a question like that now in issue?
The leading authority cited by Mr. Russell was O’Hanlon v. Logue [1906],
1 I.R. 247. In that case it was held, on a reconsideration of the older
Irish authorities, that the celebration of Mass in private was a charitable
purpose. The question there decided is not the same as that which arises
in the present case, but many of the reasons stated by the Irish judges
are equally applicable to both questions. I shall examine them in some
detail; by doing so I shall deal with the main argument for the Appellant:
Walker, C., states (p. 259): ” There are some legal propositions germane to
” the case for which it would be mere pedantry to cite authority . . . (b) that
” included amongst charitable objects is one which, according to the ideas
” of the giver, is for the public benefit.” It appears from the report of the
argument (p. 252) that there had been cited from the opinion of FitzGibbon,
L.J., in Webb v. Oldfield [18981, 1 I.R. 446, this passage, ” the benefit must
” be one which the founder believes to be of public advantage, and his belief
” must be at least rational and not contrary either to the general law of
” the land or to the principles of morality “. Walker C., appears to have
accepted this view and I think that his whole opinion is largely based on it.
But Mr. Russell could not maintain that it correctly states the law of
England. I do not think that there has been any doubt, at least since
the decision of In re Hummeltenberg [1923] 1 Ch. 237, by Russell J., as he
then was, that the Court cannot accept the opinion of the donor as sufficient
to establish public benefit. As regards an opinion or belief other than a
religious belief I think that that is conclusively settled by the decision of this
House in National Anti-Vivisection Society v. Inland Revenue Commissioners
[19481 A.C. 31. The point could only now be maintained in the form
that when the opinion of the donor is based on a religious belief of the
Church of which the donor is a member different considerations apply.
That I think is the question to be determined in the present case.
The opinion of Palles, C.B., in O’Hanlon’s case is based on three con-
siderations. In the first place he deals with the validity of gifts for religious
purposes prior to the Reformation. Such gifts were regarded as gifts to
God and were frequently stated to be gifts to God and to a particular
Abbey or Church. I think that his view was that such a gift was always
held to be charitable without there being any need to enquire further
whether there was any public benefit involved in it. It may well be that
that is correct. It is the next step in his reasoning that I am unable to
accept. He takes the view that after the Reformation the only reason why
gifts such as gifts for Masses to be celebrated in private ceased to be regarded
as charitable was that the purposes of such gifts had been made illegal by
Statute and that (p. 273) ” when, in 1793, all laws prohibiting or discouraging
” the practice of the Roman Catholic religion were repealed the illegality
” determined, and they resumed the character they enjoyed in pre-Reformation
‘”times, and once more became charitable (1) because of their piety; and
” (2) because they were devoted to the support and maintenance of the
” clergymen, the celebrants “. With the greatest respect to that great judge
I think that he has not given due weight to an essential difference between
the position before the Reformation and the position now. Before the
Reformation only one religion was recognised by the law and in fact the
overwhelming majority of the people accepted it. It was natural that the
law should accept the beliefs of that religion without question and act upon
them. But since diversity of religious beliefs arose and became lawful the
law has shown no preference in this matter to any church and other religious
body. Where a belief is accepted by some and rejected by others the
law can neither accept nor reject, it must remain neutral. If the law before
the Reformation accepted gifts for religious purposes as charitable simply
because of their piety and without further consideration of the question of
public benefit I think that it did so on grounds which are no longer available.
I think that Palles, C.B., sums up this part of his opinion when he says
(p. 274) that the celebration of Mass is ” an act from which the Common
12
” Law knew previous to the Reformation, and therefore knows now, that
” benefits spiritual and temporal flow to the general body of the faithful–
” benefits which, even were they spiritual only, would render the service
” charitable within 10 Car. 1 Sess. 3 c. 1 “. I have difficulty in seeing
how this could be consistent with the law showing no preference to any
particular religion. There may be a new religion with new beliefs which the
Common Law never knew. To preserve equality between the old and the
new it would be necessary to hold that the law must also know, in the sense
of accepting as true, new beliefs which may directly contradict the old. What-
ever other reasons there may be to support the Appellant’s case this reason
appears to me to be invalid. I am unable to agree with Palles, C.B., when
he says (p. 270) ” Even had the Common Law acknowledged more religions
” than one, it would have held pious any gift making provision for the
” worship of God, irrespective of the particular acknowledged religion accord-
” ing to which the worship was to be offered, provided only such religion were
” recognised as lawful.” If this were so, one would expect to find some
authority to support it after the law did acknowledge more religions than
one: 1 have not found it.
The second ground of judgment of the learned Chief Baron appears to
be based on the premiss (p. 274) ” all will admit that the divine service
” of the Reformed Church was, by virtue of its spiritual efficacy, a charitable
” act, so long as it remained the established Church “. I can find no basis
for drawing a distinction in the matter of charity between the Established
Church and other churches. But apart from that it has been decided in
England that it is not a charitable purpose to provide for Church of England
services in a private chapel. Hoare v. Hoare (1887) 56 L.T. 147.
The third ground of Palles, C.B.’s, judgment is perhaps the most relevant
to the present argument. It is to the effect that the only basis on which
the law can hold, as it does hold, that public benefit flows from Divine
Worship, is the acceptance as true of the beliefs of the worshippers. Palles,
C.B., puts a dilemma (p. 276): ” There must be one of two results: either (1)
” the law must cease to admit that any divine worship can have spiritual
” efficacy to produce a public benefit; or (2) it must admit the sufficiency of
” spiritual efficacy, but ascertain it according to the doctrines of the religion
” whose act of worship it is”. Holmes, L.J., puts the matter thus (p. 285):
” I am wholly at a loss to know now, if the Court cannot determine whether
” the celebration of a private Mass carries with it public benefits, by what
” means it can determine that a Mass said in public confers such benefits “.
Again I must with great respect suggest that these learned judges have
taken too narrow a view. There is another way of looking at the matter
which avoids these difficulties.
The Law of England has always shown favour to gifts for religious
purposes. It does not now in this matter prefer one religion to another.
It assumes that it is good for man to have and to practise a religion but
where a particular belief is accepted by one religion and rejected by another
the law can neither accept nor reject it. The law must accept the position
that it is right that different religions should each be supported irrespective
of whether or not all its beliefs are true. A religion can be regarded as
beneficial without it being necessary to assume that all its beliefs are true,
and a religious service can be regarded as beneficial to all those who
attend it without it being necessary to determine the spiritual efficacy of that
service or to accept any particular belief about it. Admittedly public benefit
in the present case can only be established if the Court is entitled to accept
and act on the beliefs of the Roman Catholic Church. This would in my
view now be something new.
In Cocks v. Manners, 12 Eq. 574, there was a gift to a community which
belonged to a contemplative order of the Roman Catholic Church and in
that case that gift was held not to be a charitable gift because it lacked
the necessary element of public benefit. The only difference between that
case and the present case is that in that case there was no evidence of
the teaching of the Roman Catholic Church about the efficacy of intercessory
prayer or of the special place which these orders occupy in that church;
13
but I find it difficult to believe that these matters were wholly unknown
not only to Wickens, V.C., who decided that case, but also to the numerous
judges of great eminence, both English and Irish, who have referred to
that decision with approval and without even suggesting that it may have
been decided without all the relevant facts being before the Court.
I think that it is also noteworthy that, with one exception, the Irish Courts
have not since the decision of O’Hanlon v. Logue taken the view that Cocks
v. Manners should no longer be followed in Ireland. In Commissioners of
Charitable Donations v. M’Cartan [1917J 1 I.R. 388, a gift to establish a
monastery was held not to be charitable. O’Connor, M.R., said (at p. 396):
” Monasteries of men and women are often, if not mostly, institutions the
” members of which devote their lives exclusively to acts of piety such as
” pious meditation, prayer and self-denial. Such institutions, however praise-
” worthy, are not charitable in the sense recognised by this Court”. In
Munster & Leinster Bank v. Attorney General [19401 I.R. 19, to which I shall
return in another connection, Black, J., recognised Cocks v. Manners as good
law. In In re Keogh [1945] I.R. 13, gifts for the purposes of Discalced Car-
melite Orders were held not to be charitable. The one exception is Maguire
v. Attorney General [19431 I.R. 238, where Gavan Duffy, J., held that a gift
to found a convent for the perpetual adoration of the Blessed Sacrament
was charitable. He said (p. 250): ” To rescue the gift here from the post-
” Elizabethan morass and place it upon firm ground, I am driven back to the
” earlier position before prescriptive legislation had for the time being blocked
” the steady flow of the common law”. Having expressed the opinion
that the case of O’Hanlon was decided on the ” dual grounds that the gift
” was charitable at common law and that it imported the element of
” public benefit necessary to bring a gift within the Statute of Pious Uses ”
he said ” I rest my judgment upon the common law “. Accordingly this
case is not an authority which helps Mr. Russell’s main argument on public
benefit. For the reasons which I have given I do not think that this argument
can succeed.
Before passing to the second argument 1 should notice the case of In re
Cans [11934] 1 Ch. 162. In that case Luxmoore, J., held following O’Hanlon
that a bequest for private Masses was a good charitable gift. There are
grounds on which it can be argued that such a gift is charitable which
do not apply to the present case. I express no opinion as to whether
this decision can be supported on these grounds. But in my view it cannot
be supported on the ground that a Court is entitled to accept the beliefs
of Roman Catholics or the teaching of the Roman Catholic Church regarding
the Mass as sufficient to establish the necessary element of public benefit.
Mr. Russell’s second argument is founded on Cardinal Griffin’s affidavit
in which it is stated ” It is an undoubted fact that the practice of the
” religious life by the Carmelite Nuns and other religious is a source
” of great edification to other Catholics—and indeed in innumerable
” cases to non-Catholics—leading them to a higher estimation of spiritual
” things and to a greater striving after their own spiritual perfection and
” that the knowledge that there are men and women who are prepared to
” sacrifice all that the worldly in man holds dear in order to attain a
” greater love of God and union with Him inculcates in them a greater
” estimation of the value and importance of the things which are eternal
” than they would have if they had not these examples before them “. This
argument must be considered on the footing that it has already been decided
that the necessary element of public benefit cannot be directly established
under the first argument—otherwise the Appellant would succeed without
this argument. Mr. Russell relies on a passage in the judgment of Wickens,
V.C., in Cocks v. Manners, ” It is said, in some of the cases, that religious
” purposes are charitable, but that can only be true as to religious services
” tending directly or indirectly towards the instruction or the edification of
” the public “. He says that it is proved by evidence that the public or at
least a sufficient section of the public are edified. I doubt whether Wickens,
V.C.. meant to use the word edification in this sense. But whether he did
or not there must be some limit to the kind of indirect instruction or
edification which will constitute a public benefit. It is hard to imagine any
14
form of religious activity by an organised religious body which does not
have some effect of this kind, and if the words were applied literally the
requirement of public benefit would virtually disappear. Mr. Russell admitted
that it must be a question of degree whether or not in any case the public
benefit is too remote. In this case 1 think it is too remote. Moreover I do
not think that, when a decision has stood for three-quarters of a century
as Cocks v. Manners has, it ought to be reversed on a question of degree
of this kind. No broad principle is here involved. I agree with the view
of Black, J., in Munster & Leinster Bank v. Attorney General ” unless a
” further and sweeping inroad is to be made on the rule against perpetuities,
” the line must be drawn somewhere. Cocks v. Manners has drawn it”.
The third argument submitted by Mr. Russell is of a different character.
It was not submitted to the Court of Appeal. It is that the existence of this
community enables some 20 women to practise religion in a way which
would otherwise be impossible for them ; and that, if the law recognises the
practice of religion as beneficial, it must regard any gift to enable religion
to be practised more fully as a gift for a beneficial purpose. On this argument
the necessary element of public benefit is found in the fact that the 20
persons benefited are not drawn from any limited class but from the whole
body of Roman Catholic women who have a vocation for a contemplative
life. I am prepared to assume that, if the law can regard the purposes of
this community as beneficial, the necessary element of public benefit could
be so found. But this argument, like the last, can only be reached after the
Appellant has failed on the first argument and it has therefore been decided
that the law is disabled from recognising any public benefit resulting from
the existence of the community. Mr. Russell when asked was unable to
cite any authority to the effect that it can be a valid charitable purpose to
assist persons to do something which cannot be shown to have any public
utility. In the absence of authority I can see no reason why this should
be regarded as a valid charitable purpose and therefore I think that this
argument fails.
Accordingly I agree that the appeal must be dismissed.
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